P.S. I'm basically still out -- I just wanted to add the post below.

update I'm having tremendous problems with the comments feature -- I played with it a little and ended up not even being able to post these last two items. I'm leaving comments out for now and may wipe it all clean and start over again. Or comments may reappear without my intent -- who knows.

Kass The Kass Council is out with it's report on cloning, as I'm sure everyone who's come here is aware.

In brief, the 10 member majority of the Council "recommend a ban on cloning-to-produce-children combined with a four-year moratorium on cloning-for-biomedical-research." On the other hand, the seven member minority supports permitting "cloning-for-biomedical-research now, while governing it through a prudent and sensible regulatory regime, is the most appropriate way to allow important research to proceed while insuring that abuses are prevented." The 10 member majority is made up of Rebecca S. Dresser, Francis Fukuyama, Robert P. George, Mary Ann Glendon, Alfonso Gómez-Lobo, William B. Hurlbut, Leon R. Kass, Charles Krauthammer, Paul McHugh, and Gilbert C. Meilaender. The seven member minority is made up of Elizabeth H. Blackburn, Daniel W. Foster, Michael S. Gazzaniga, William F. May, Janet D. Rowley, Michael J. Sandel, and James Q. Wilson.

By and large, the Council seems to have really struggled with the issues at hand, seeking both to understand and be understood. Yes, the members came in with many pre-conceived ideas, but these are ideas that comes from years of study and deliberation and do not reflect some sort of knee-jerk positions, whether they arrive at results favored by some or not. As Charles Murtaugh writes: ". . . the commission was proving more balanced than its early detractors had expected, myself included. It is to Kass's credit that he is publishing the dissenting report alongside the majority opinion, rather than trying to create a false sense of unanimity." Personnally, I think the Council members have proved to be far more open-minded on these questions than their detractors (excepting Mr. Murtaugh).

I do find the Tapped search for commies, er, pro-lifers pretty humorous. we were shocked to discover at least one section that seems to imply that human embryos are morally equivalent to persons. To quote:

As much as we wish to alleviate suffering now and to leave our children a world where suffering can be more effectively relieved, we also want to leave them a world in which we and they want to live -- a world that honors moral limits, that respects all life whether strong or weak, and that refuses to secure the good of some human beings by sacrificing the lives of others.

I have been reading the personal statements in the Appendix and have found several to be very interesting and thought-provoking. (At 196 pages, I have not read all the statements yet.) In particular, I was impressed by the joint statement of Robert George and Alfonso Gómez-Lobo (p. 168), focusing on the status of the embryo (I confess a particular interest in the discussion of miscarriage as I have a family member grieving over a very recent miscarriage, as well as another friend who experienced her fourth miscarriage in the past month) and the statement of James Q. Wilson (p. 194) who favors "Regulated Cloning-for-Biomedical-Research." Next up for me is the statement of Dr. Hurlbut (page 176)

One last note, Professor James Q. Wilson, of UCLA, shows that he may have been reading UCLA Law Professor Eugene Volokh's upcoming article on slippery slopes:

There is always some risk that allowing even strongly regulated research will create conditions that lead some scientists to ask for access to fertilized eggs beyond the blastocyst stage. But I do not believe we can object to this by making a generalized slippery slope argument, since virtually every medical procedure that involves entering or affecting the human body would also be liable to such an argument, a conclusion that would leave us (for example) without surgery. The slippery slope argument, stated baldly, would lead us to oppose allow-ing doctors to remove an inflamed appendix because they might later decide to remove a kidney, and after that a heart, and to oppose as well doctors prescribing a drug that will harm 0.5 percent of its recipients because we suspect that, once they do this, they will later insist on prescribing drugs that harm 1 percent, and then 10 percent, and possibly 50 percent of their patients. There may be good slippery slope arguments, but they cannot rest simply on the phrase “slippery slope”; they must also point clearly to a serious moral hazard and contain some reason for thinking that this hazard will become much more likely if we take the first step.

You can find this section all the way at the end of the appendix.

Off line. It looks like another 12+ hour day today at work, so not much in the way of blogging. I'm probably going to take the comments boxes off-line for a little while, as well. It appears that I'm not able to update my links and some other things while that code is lurking behind the scenes. Check back with me in a week or two and I should be back to 'normal' (heh).

Overruled. More on Judge Stephen Reinhardt.

And speaking of correspondence... I actually had a telephone call from Fritz Schranck this morning -- how cool -- this world is shrinking.

Rambing about the Pledge and walls and so on. I received a nice note from a person in C' ville, VA (when I lived in the Valley, we referred to Charlottesville as 'hookville' because the C looked like a hook when abbreviated.) disagreeing with me on the Newdow (pledge) decision. The reader writes "Church and state should be separate and 'under God' clearly violates this this supposed separation."

I agree that the church and state occupy different spheres (see Augustine, City of God), nevertheless, these spheres cross over from time-to-time (especially in an expanisve state like we live in now.*). Accordingly, strict separation is both impossible and unwise, not to mention, not a constitutional doctrine.

The framers, whether by happy accident or shrewd foresight barred the establishment of religion by law of Congress. The framers did not mandate a total separtion of religion and state. I believe that the framers recognized that religion was necessary to government (see, for example, the Northwest Ordinance: "Religion, morality, and knowledge, being necessary to good government and the happiness of mankind. . ." therefore would not seek to exclude it.

Moreover, it should be noted that the national charter is not the U.S. Constitution, it is rather the Declaration of Independence. (The Constitution, of course, replaced the Article of Confederation. The second self-evident truth set forth in the Declaration is that all are "endowed by their Creator with certain unalienable rights. . ." The "representatives of the United States of America, in General Congress assembled, appeal[ed] to the Supreme Judge of the world for the rectitude of [their] intentions . . ." Finally, their pledge was issued "with a firm reliance on the protection of Divine Providence. . ." Accordingly, I believe, the phrase "under God" as used in the Pledge of Allegiance is fully consistent with the national charter and is a statement of fact and not a matter of religion.

The phrase "under God" was used by Abraham Lincoln in his Gettysburg address (". . .that we here highly resolve that these dead shall not have died in vain, that this nation under God shall have a new birth of freedom, and that government of the people, by the people, for the people shall not perish from the earth.") which itself references not the Constitution as the charter of the U.S., but the Declaration (calculate the fourscore and seven years). Therefore, there is all a poetic symmetry that weaves its way throughout.

Now, one may object to the use of the phrase in the Pledge. If so, the proper thing to do is to seek to amend it. However, this is not what Mr. Newdow tried to do, rather he is attempting to impose his views of the constitution and his religion on the people of the United States. Moreover, there is nothing in the Constitution which supports this view. Rather it is a series of Supreme Court decisions that have gone seriously off-kilter from the words and intent of the framers (not to mention the national charter).

And I understand those of you who are devoutly religious or non-religious who object to this phrase in the pledge. I almost agree with you, for the reasons stated in James Madion's Memorial and Remonstrance:

. . . for it is known that this Religion both existed and flourished, not only without the support of human laws, but in spite of every opposition from them, and not only during the period of miraculous aid, but long after it had been left to its own evidence and the ordinary care of Providence. Nay, it is a contradiction in terms; for a Religion not invented by human policy, must have pre-existed and been supported, before it was established by human policy. It is moreover to weaken in those who profess this Religion a pious confidence in its innate excellence and the patronage of its Author; and to foster in those who still reject it, a suspicion that its friends are too conscious of its fallacies to trust it to its own merits.

Based on this essay by Arthur Schlesinger Jr., it appears that President Theodore Roosevelt had similar doubts:

T. R. expressed his "very firm conviction that to put such a motto on coins . . . not only does no good but does positive harm." His objection to "In God We Trust" was not constitutional; it was aesthetic. He felt that the motto cheapened and trivialized the trust in God it was intended to promote. "In all my life I have never heard any human being speak reverently of this motto on the coins or show any sign of its having appealed to any high emotion in him," he wrote. Indeed, he added, "the existence of this motto on the coins was a constant source of jest and ridicule." (my emphasis added)

Okay, I know I've gone on too long (I've got to to my share of 'blithering' to keep my title -- the idiocy comes effortlessly), but I did want to thank Jason Steffens for his link to the essay in the NYTime this past weekend on the 'wall of separation' phrase. When reading this last night, I recalled that Roger Williams was the souce of the metaphor and made a note on Steffans blog to that effect. I went looking through my books and didn't find the reference I recollect, but did come across this quote that rings true in my memory, but I don't have a source:

When they have opened a gap in the hedge or wall of separation between the garden of the Church and the wilderness of the world, God hath ever broke down the wall itself, removed the candlestick, and made his garden a wilderness, as at this day. And that therefore if He will e'er please to restore His garden and paradise again, it must of necessity be walled in peculiarly unto Himself from the world...

Since I don't have the source of that, consider it dubious for now, until I can back it up (or if someone else has it). In addition, consider Rich Hailey's comments and quotes on the Jeffersonian correspondence.

See also, this Rehnquist dissent for a critique of the the Court's use of the "wall" metaphor. From Wallace v. Jaffree, 472 U.S. 38 (1985).

Last, here's a piece on how the phrase got into the pledge.
----
endnote (for a blog, of all places):
*Justice Rehnquist accurately notes in his Thomas v. Review Board dissent: "First, the growth of social welfare legislation during the latter part of the 20th century has greatly magnified the potential for conflict between the two Clauses, since such legislation touches the individual at so many points in his life."

Cover Watch. Newsweek sleeps. Time disses meat. US News doesn't even publish (it did a double issue on American Music last week). Let's give thanks for a slow news week.

Update. Sasha Volokh reading the world news in Latin out of Finland also finds it was a slow news week.

There Goes the Greatest Hitter who ever lived. Ted Williams died today.
More on the greatest hitter.




Still more by Thomas Boswell.




More comments from others.








Still More. My father (Col. USMC-ret.) reminds me that Ted Williams was a Marine: "I'm a U.S. Marine, and I'll be one 'til I die." He served in the Marines as a "Flying Leatherneck" for 5 years during WWII and Korea; certainly giving up his shot at 600+ home runs for a career.

Independence Day. I'll take a day or two off for this one. See you this weekend.

[enjoy hated owner's birthday -- George Steinbrenner and Al Davis were both born on the 4th.]

905 John Entwistle's death last week got me looking at some of his old songs again. This one, 905 from the album "Who Are You?" strikes me as very current:

Mother was an incubator
Father was the contents
Of a test tube in the ice box
In the factory of birth

My name is 905,
And I've just become alive
I'm the newest populator
Of the planet we call Earth

In suspended animation
My childhood passed me by
If I speak without emotion
Then you know the reason why

Knowledge of the universe
Was fed into my mind
As my adolescent body
Left its puberty behind

And everything I know is what I need to know
And everything I do's been done before
Every sentence in my head
Someone else has said
At each end of my life is an open door

Automatically defrosted
When manhood came on time
I became a man
I left the "ice school" behind

Now I'm to begin
The life that I'm assigned
A life that's been used before
A thousand times

I have a feeling deep inside
That somethin' is missing
It's a feeling in my soul
And I can't help wishing

That one day I'll discover
That we're living a lie
And I'll tell the whole world
The reason why

Well, until then, everything I know is what I need to know
And everything I do's been done before
Every sentence in my head
Someone else has said
At each end of my life is an open door

Blame the child. The Domenecher has a note up referring to his brother and an ABC news article on Grand Theft Auto III. The ABC article is critical (although does present a counter assertion) of the violence and the "realism" in GTA-3. Ellis Domenech disagrees: "though these video games may seem real they are still just games and all you are really killing is a line of zeros and ones." And brother Ben echos: "If a child can't make a distinction between what they see in media -- video games, movies, and on TV -- and what they do in real life, it's a problem with the child, not the media. Life, after all, has no reset button."

I disagree. I would present my case here, but it has been done much better than I ever could by Lt. Col. Dave Grossman in his article in Christianity Today or here at his website. Grossman notes that killing does not come naturally and the military conditions it's soldiers to learn to kill other humans.

How the military increases the killing rate of soldiers in combat is instructive, because our culture today is doing the same thing to our children. The training methods militaries use are brutalization, classical conditioning, operant conditioning, and role modeling. I will explain these in the military context and show how these same factors are contributing to the phenomenal increase of violence in our culture.

He discusses each item primarily with respect to television and movies; however, with the third method, operant conditioning, he pretty clearly demonstrates the media, in this case, violent video games, does condition the child.

Therefore, I'm in disagreement with the Domenech brothers -- after all, life has no reset button.

Hot Dawg! It's summer -- temperatures touched 100 yesterday in my neighborhood and July 4th a day away, what could be more American than the Hot Dog? Not Mom or Apple Pie. See this article by Paul Lukas in the NY Times mentions his favorite 'dog joints. My own favorite place for enjoying a hot dog is at the ball park -- and my personal favorite is the Fenway Frank (although see this dissenting opinion) smothered in Guldens mustard. A close second is the foot long Dodger Dog. The hot dog I had the Sunday before last in Cincinnati (while enjoying a victory by my beloved Athletics over the Reds) was excellent. The dogs in San Diego and Louisville were pretty good. And, to show you I'm no homer, the dogs served up in the Oakland-Alameda County Stadium are to be avoided.

More on the Pledge ruling. Newsweek has a cover story on the Pledge ruling -- issued so smartly the week before our Independence Day reflections on the unalienable rights we are granted by our Creator.

Stuart Taylor notes the source of this shoddy opinion: ". . . the Supreme Court’s tendency to seed its own rulings with loose rhetoric has certainly tempted adventurous lower-court judges to issue decisions that infuriate most Americans." He further comments: "If judges hope to stop a popular wartime president from robbing them of their power, they’ll need to win the support of the Congress, and the public. Attacking the Pledge of Allegiance probably wasn’t the best way to start."

George Will touches on the controversey noting that while we may not be one nation, under God, we are ". . .one nation under judges."

Next, while not in Newsweek, you should read the important insights that Howard J. Bashman has on this ruling.

Last, modified for the day, here is the conclusion of the Declaration of Independence:

And for the support of this declaration, with a firm reliance on the protection of Alfred T. Goodwin, we mutually pledge to each other our lives, our fortunes, and our secular honor.

I'm back. Sorry about the long absence -- I thought I would be able to get on-line again last Thursday or Friday. I was in Northern Kentucky for work last week and then went to Texas for my wife's family reunion. My wife took all four kids with her from Dulles early in the morning to fly to Austin, with the eventual destination being the Dixie Dude Ranch, where the reunion was held. Unfortunately, the weather was not with her so she and the kids baked for many hours on the runway at Dulles before returning to the terminal. After my last note on Lavenski Smith, she gave me a call and filled me in. Since I was in a hotel with one phone line and a dial-up modem, I kept the phone free for updates from her. Late in the evening, she and the kids got on a flight to Chicago with the slim possibility of a flight to San Antonio, where her father was staying, and she told me that if she didn't call, it probably meant she managed to get on the flight. When she didn't call by midnight, EDT, I assumed that she was on her way to SA. What it meant, however, was just more delays. She called me about 1:00 am and said that she finally reached Chicago but that there were no connecting flights until the morning. On our earlier calls, we had discussed where to sleep in Chicago at the last minute and I had called her brother (who flies for United, based in Chicago). Well, to cut a long story short, she decided that she and the kids would sleep on the cots offered by the airline (with at least 300 other stranded passengers). So that is where this saint spent the night.

I flew out on Friday morning, also encountering weather delays and re-routing, and we finally met up in Austin at around 2 that afternoon.

Anyway, we had a wonderful time at the family reunion and got back at 1 yesterday.

Unfinished Business. Pat Leahy's Judiciary committee has finally sent the nomination of Arkansas lawyer Lavenski Smith to the full Senate. Let's get off your butt, Pat and start looking at some of these other nominees.

Here's my prior comment about Lavenski Smith, the man from Hope.

Boris the Spider. John Entwistle died today in Las Vegas. Good bye, Ox.

Victory. I imagine everyone stoping here has heard the good news that the majority of the Supreme Court recognized school choice in constitutional. Here is a good link to the various opinions in both HTML and .pdf. I note that in .pdf format all the opinions run nearly 100 pages. In other cases the Court approved random drug tests for many public high school students (Breyer and Kennedy in the majority, O'Connor dissenting), declared a gag rule on judicial candidates to be unconstitutional, and determined that chaining a prisoner to a post for seven hours in the sun is cruel and unusual punishment.

I'll read these opinions and offer comments later, if I have anything to say.

RIP I just received a note saying that the former Dean of my law school (and my Labor Law Professor) passed away recently. He was a grand man. He loved God and his family. May he rest in peace.

Dishonest Judges Don't miss this note in Instapundit regarding historical falsification by David Souter in his opinion in Atwater v. Lago Vista. The referenced article is here in .pdf format.

This is not unusual. I recall prior Supreme Court opinions that severely twisted and manipulated history to suit the Justices preferences. Nevertheless, it's nice to see someone taking on the Justices.

On the cusp. It's the evening before the Zelman decision (whether providing vouchers to parents, which may be used for religious schools) is announced (actually, it could be held over for a decision next term) -- this case, more than any other could be the main case of the October 2001 Supreme Court term. By holding on to it until the last day, the Court clearly shows that this has been the subject of intense internal debate -- far from the unanimous opinion that I once predicted.

What I am very concerned about is that the Court will confuse a policy decision from a constitutional decision. In discussions with people regarding this case in the past few weeks they have all indicated in some fashionthat they hope the Court strikes down the case because it will kill the public schools. In the Zorach case I quoted below, Justice Douglas also wrote: "This program may be unwise and improvident from an educational or a community viewpoint. That appeal is made to us on a theory, previously advanced, that each case must be decided on the basis of 'our own prepossessions.' . . . Our individual preferences, however, are not the constitutional standard. The constitutional standard is the separation of Church and State." He concluded by saying "we cannot expand [our jurisprudence to strike down] the present released time program unless separation of Church and State means that public institutions can make no adjustments of their schedules to accommodate the religious needs of the people. We cannot read into the Bill of Rights such a philosophy of hostility to religion."

Yes, there may be valid reasons for voting against a voucher system like the one used in Cleveland, however, the Court are not council members or legislators -- the only issue before them is whether the use of government vouchers by parents to provide and education for their children is an unconstitutional establishment of religion. I am strongly convinced it is not. A decision to the countrary would be as illegitimate as the 9th Circuit striking down the amendments to the pledge of allegiance.