October 31, 2005

It's Alito

Seems to be a good choice. We'll look at his opinions.

He certainly showed charm, and I think he will do well under fire from Schumer, Kennedy and the boys. They'll show their flag, but I predict confirmation.

October 30, 2005

Another Reason to Like Alex Kozinski

This post on 9th Circuit Judge Alex Kozinski, my favorite candidate for the Supreme Court, quotes extensively some writing on gun ownership.

In essence, Kozinski argues against reading certain provisions of the Bill of Rights in a way that expands individual freedom, and others in a way that favors state control. Further, he argues that the possession of weapons by the populace affords some protection against tyranny and genocide.

The guy is conservative in many ways, but really committed to liberty.

UPDATE: There's a movement afoot to send email to comments@whitehouse.gov with something in the title to the effect of "Nominate Alex Kozinski to the Supreme Court." Can't hurt.

Here and here and here, for example.

UPDATE 2: Welcome, Instapundit readers. Corrected typo in "nominate."

October 23, 2005

Some Bird-Flu Reassurance

The threat of a pandemic like 1918's had been widely touted, on this blog among others.

Here's an analysis that's a bit reassuring. Basically, the idea is that flu viruses evolve very quickly, and unless there are crowded conditions in the host population (as in the trenches in World War I, or modern chicken ranches, a virus that kills its host too quickly and too often is likely to die out, in favor of strains that let the host fly or walk around and infect other hosts.

So absent really crowded conditions, a highly lethal strain would only last for awhile. Evolution favors strains that stay in their hosts longer and don't kill them.

A hopeful thought. Bears thinking about.

October 16, 2005

The Clams of Yesteryear

Rick Lee posted this photo of the Jersey side entrance to the Holland Tunnel, which leads to lower Manhattan.

He thus evoked memories of childhood trips from our "farm" in Pennsylvania, in the hills just west of the Delaware River at Upper Black Eddy, back to New York on summer Sundays. Sometimes we'd buy gas on the Jersey side, where it was cheaper (do you believe 23.9 cents a gallon?), and cross through the tunnel. The smell of the city heat and a slight sour smell of garbage was distinctive.

More often, we'd take the ferry at Hoboken. Before the ferry was "Kelly's Clam House," later just the "Clam Broth House," pictured above. The place had been around since Prohibition, and had hexagonal tiles on the floor, which was covered in sawdust and clamshells. Every night, someone would sweep up the whole mess until they could start over the next day. There were multiple doors, all the way down the block. Like Philippe's famous French dip restaurant in L.A. My father said it was because from time to time the Revenooers would padlock one set of doors, and the next day the owners would open another set of doors.

An early childhood memory was eating a whole pot of steamed clams, and sometimes a fine rare roast beef sandwich, too. Then the ferry across the river and the trip home, where, of course, I always insisted on eating something, no matter how much I had devoured in New Jersey.
PS. The pots of clams at Kelly's were far bigger than this niggardly bowl.

Claire's Meme

The beautiful and talented Danielaphant has given us responses to Claire's meme. I will join her.

1. Mr. Epstein.
2. Daddy.
3. "Hey, David!"

1. My eyes.
2. My chin.
3. My calves.

1. My yellow teeth.
2. My pot belly.
3. My flat ass.

1. "Smart-assed New York Jew." -- Randy Newman
2. Preppy (Andover).
3. Collector of irrelevant facts, jes' lahk m' Dad.

1. Outliving my family.
2. Being penniless.
3. Paralysis.

1. Coffee.
2. The blogosphere.
3. Hugs from my children.

1. Long-sleeved tee.
2. Sweat pants.
3. The last pair of clean underwear in the house.

1. Showboat.
2. My Fair Lady.
3. The Threepenny Opera.

1. Amazing Grace.
2. Nashville's Gone Hollywood.
3. The Wreck of the Old 97.

1. Sweet talk and good lies.
2. Sarcasm.
3. Food.

1. A Lauren Bacall voice.
2. Hands.
3. Artistic tattoos.

1. Riding zee bike.
2. Singing in a chorus.
3. Learning languages.

1. A clean bill of health after my cancer operation.
2. A nice quiet home office.
3. A massage (not from the Swedish Prime Minister).;

1. Retiree.
2. HIgh school teacher.
3. 419 scamster.

1. Huahine, Polynesia (OK, so I've been there before).
2. Georgia (in the Caucasus).
3. Glacier National Park.

1. Tommy.
2. Mike.
3. Susie.

1. Ride the Paris-Brest-Paris randonée.
2. Sing "September Song" to a live audience.
3. Watch my two young daughters graduate.

1. I cry at silly movies.
2. I like gossip.
3. I'm crazy about little kids.

1. I belch, fart, and scratch.
2. I'd just as soon not talk or write about personal stuff.
3. I hate changing my clothes.

1. Lauren Graham.
2. Sigourney Weaver.
3. Heather Myles.

What Roe Is All About (Incorporation and Privacy)


Remember that we ended the Introduction with a discussion of the Fourteenth Amendment's ban on the states acting against the newly-minted ex-slave citizens, or any citizens by
  1. Denying them the privileges and immunities of citizens;

  2. Depriving them of life liberty or property without due process of law; or

  3. Denying them the equal protection of the laws.
All of this sounded good, and to the Radical Republicans who enacted the fourteenth Amendment, had a clear intent of protecting the ex-slaves.

Within a few years, however, interest in affording much protection to the ex-slaves waned, and with the compromise arising out of the disputed 1876 election, Rutherford Hayes was allowed to carry Florida in exchange for a promise, largely kept, to end Reconstruction and give the white South a largely free hand with respect to the Negroes, who were largely relegated once again to a condition of subordination. By 1896, the Supreme Court held in Plessy v. Ferguson that a state could enforce racial segregation in railroad cars, provided the facilities provided to each race were equal.

In other areas, however, the Supreme Court found that certain rights of individuals and of corporations (fictitious legal "persons") under the federal constitution applied, under the Fourteenth Amendment, also to the states. The key case for this principle is Lochner v. New York. Lochner held unconstitutional a law of New York that forbade employers from making bakers work more than 60 hours in a week. The court held that a "freedom of contract" that the Fourteenth Amendment imposed upon the states trumped the states' inherent police power, and made it unconstitutional for a state to regulate the hours of work of bakers, even though restrictions on the hours of work of miners and others by other states had been upheld on health and safety grounds. The Supreme Court held that no such restriction on the work of bakers was justified by such health considerations.

This doctrine in Lochner has been labeled "substantive due process." In other words, it is not a case of a right being taken away without proper notice and procedures ("procedural due process"), but the content of the law itself the Court found offensive to the Constitution. In the economic sphere, substantive due process survived little more than 30 years. It was tossed out during the New Deal, when government regulation of the economy, in the face of the Great Depression, once again became fashionable.

But Lochner is most emphatically not dead in non-economic spheres. Increasingly, the court has held, whether or not the focus is the Fourteenth Amendment's original one of race that the rights enumerated in the first ten amendments, much, if not all, of the "Bill of Rights" now applies to the states because the Fourteenth Amendment makes it so. Reams of paper have been covered with arguments as to which aspects of the Bill of Rights are "incorporated" or applied to the states under the Fourteenth Amendment.


The other abstract concept needed to understand the legal arguments about Roe is the "right of privacy."

In American jurisprudence, the concept of a "right of privacy" is generally traced back to an article by later Supreme Court Justice Brandeis and his law partner Samuel Warren in the Harvard Law Review. Brandeis and Warren wrote not about highfalutin' constitutional law, but about the law of torts, a tort being a civil wrong not arising out of a contract, for which suit may be brought. Brandeis and Warren argue that there is ample justification for the common law, as it does from time to time, to create a new tort, whereby damages and more rarely, an injunction, could be obtained for unauthorized publication of private facts, even if truthful. The article does not address the question of whether the constitution itself contains (or does not contain) an implied right of privacy.

Brandeis and Warren's "privacy" deals more with protection against the likes of paparazzi than against state legislation:
Of the desirability -- indeed of the necessity -- of some such protection, there can, it is believed, be no doubt. The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers. To occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion upon the domestic circle. The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury.
As we shall see, it is this concept of privacy, brought into the constitutional law and imposed on the states through the Fourteenth Amendment "incorporation" doctrine, that provided the initial rationale for Roe.

Whether "privacy" can be found in the Bill of Rights, whether "incorporation" applies a right of privacy to the states, and whether abortion is within the scope of any such right of privacy, are all questions which must wait for further posts.

What Roe Is All About (Introduction)

I haven't blogged the Harriet Miers issue, except for an initial impression, because I know little more about her than I knew when the appointment was first announced.

Behind the Miers controversy, of course, lies above all the endless battle about Roe v. Wade, the case in which the Supreme Court found that the Constitution forbids the states from making it a crime to interrupt a pregnancy, especially in its early stages. I thought to write at some length about these Constitutional issues, which have not been much discussed in the blogosphere, except by lawprofs and the like.

Let me start by saying that if I were a legislator, I'd vote in agreement with what most Americans believe. It would be a mistake to forbid all abortions, but abortion should be regulated, especially in the later stages of pregnancy when a premature birth might result in a baby capable of survival. I don't think abortion in the early stages of pregnancy is the same as murder. That's a theological or philosophical debate to which I don't have much to contribute, but to discuss the Constitutional aspects of the issue, it's best to lay at least that much on the table.

The result I advocate would probably be the law in most states if the Supreme Court had never been involved in the issue, and the noise of the controversy would be far less loud. Why? Because the political process would have taken effect, and changing public attitudes would be reflected in law. No doubt Utah and a few Bible Belt states would outlaw abortion entirely, and others would restrict it. Others, like California, have put a "right of privacy" into their constitutions that was intended, among other things, to limit the state's ability to interfere with abortion. As Justice Ginsburg long ago observed, the effect of the Roe decision was to cut short the political conflict. The debate has now metastasized into a debate not only about constitutional law, but about the role of the Supreme Court and how justices should be selected.

Our Constitution gives the federal government limited powers, and the Bill of Rights, the first ten amendments to the Constitution, places specific restrictions on the feds' ability to do things like promulgate a state religion and tell newspapers what to print. Originally, these restrictions did not limit the powers of state governments, which were sovereign. After the Civil War, a Congress purged of rebels passed three constitutional amendments. One, the fourteenth, was designed to insure that freed slaves became full citizens, and thus provided that persons born or naturalized in this country were citizens of the states where they reside. It also did other post-war things, such as invalidate the Confederate debt, that are rarely spoken of today.

The language of the fourteenth amendment relevant to our discussion is this:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
For the first time, the constitution limited what the states could do. The idea was to protect the freed slaves. As we shall see, that ideas has stretched quite a bit beyond that intention since.

What were the "privileges and immunities" so protected, what were the protected "life, liberty, [and] property" and what was "equal protection of the laws"? The language is general, and when language is general, lawyers prance, preen and saunter. Where this legal horsing around has led our constitutional law, is a subject we will take up in the next post.

October 15, 2005

Million Man Horror Show

This account begins to detail the utter moral and political depravity of what passes for leadership in the African-American community.

It's a true horror show. The liberal élites like it, of course, because they can wear their "anti-racist" credentials on their sleeves and still revel quietly in their superiority.

The same psychological mechanism as affirmative action.


This blog has not followed the '70s feminist slogan, “The personal is the political.”

Guy that I am, I've focused on politics, society, the magnificence of French engineering, and Tuvan throat-singing.

Events have led me to make an exception. This is personal.

About three weeks ago, I went to the men's room at work, and suddenly my urine was bright-red bloody. It ain't supposed to be that way. Of course, my family MD's staff wouldn't give me an appointment until the next week. Thinking it might be an infection, and if so, it might be a good idea to get started on an antibiotic, I went to the emergency room. I picked Hoag, a bigger hospital than our nearby ER, also because Nancy had had a nasty experience with the small ER that same day.

They were very nice and seemed competent, allowed as how it was probably an infection or a kidney stone, took a CT scan, gave me an antibiotic, and said I should see a urologist. I asked my MD biking friend Meredith for a referral, and went to the urology group. My MD was a seemingly very young Iranian-American fellow, who announced that the standard procedure was to send a tiny camera up the urethra to send a TV image of the inside of the bladder to see what was happening, and set me up with an appointment for this delightful experience about a week later.

There I was on my back, with a tube up my virile member—yes, it hurts a bit going in, though less than you might think—looking at TV. We look at everything on a monitor nowadays. Dr. Tebbyani said, “There it is! A tumor.” On the screen was something resembling a sea anemone. After the mildly nasty post-exam events, the good doctor announced that they would schedule me for surgery, and using the same means of entry, snip out the cancer and cauterize the margin. That would probably be it, except that I would need to undergo the camera procedure every three months for a couple of years. Worst case, of course, the thing would have metastasized and I'd soon be dead, but except in my half-empty-glass mind, this outcome was unlikely.

After what seemed an interminable wait, I had the surgery last Thursday, on Yom Kippur. If the Dr. was Muslim, I didn't want to think about whether he would be fasting at the time (it's Ramadan), as I was required to do. The anesthesiologist, apparently Japanese-American (white bread Orange County's long gone, I guess), asked me whether I wanted to be awake or out during the procedure. I allowed as how I did not need to watch a doctor thread an electric knife through my pecker, and putting me out would be just fine.

Nancy drove me to the hospital, after I had mistakenly taken two, not one, tranquilizers. I joshed with the nurses, they stuck me with a needle, put in an IV, and before I knew it I was in the recovery room, joshing with the nurses, who didn't want to let me go home because I was still woozy from the two tranks or the anesthesia.

Eventually, they did kick me out, and home I went. I promptly slept for 18 hours, waking every hour or so.

The aftermath was not as bad as I thought it would be. I anticipated pretty constant pain, but it only hurt for a few minutes after I peed. They've given me pretty good drugs and I'm gradually getting better, although I suspect I'm not quite as strong as I think yet. One of the drugs is from the old Azo dyes and makes your urine bright orange. Believe me, it's a lot better than bright red.

In any case, I was able to see Katharine debut as Brigitta in The Sound of Music and enjoy it, and am able (now that cable is back) to blog.

So perhaps this is all a non-event.

There was a time, however, when people wouldn't mention the word “cancer.” They'd say “C” and doctors would hide the diagnosis from their patients. Now they might say “tumor” but people are pretty open. Of course, in my youth they couldn't remove a bladder cancer without an abdominal incision (talk about nasty, painful experiences).

The word still makes one aware of mortality, and of what's important in life (my family, more than anything), and how little time we have to stay, and all that. All that philosophical stuff, ya know. But I'll divagate on that some other time. Today, just the facts.

The Best Reporting from Iraq

Is by Michael Yon.

He's very specific, tells what he sees, mostly from the military side. Although he likes the Marines, he doesn't seem to have an ax to grind. This in itself makes him an exception.

But more than that, his reporting seems real.

October 12, 2005

The Plane, Bashar, The Plane!

Apparently the Syrian Interior Minister has has swallowed the barrel of his pistol. (In the old movies, it was usually his Luger). The UN investigation into the death of Lebanese Prime Minister Rafik Hariri was coming too close.

Although there doesn't seem to be much of a visible Syrian opposition, if I were Prime Minister Bashar al-Assad, I'd be warming up my jet for a trip to Paris or London. London, I guess. The French didn't like Syria messing with Lebanon, which they still fantasize is theirs. Bashar can go back to opthalmology.

Someone else can steal from the Syrians for awhile.

October 8, 2005

Another Triumph of French Engineering

October 9, 2005

MOSCOW, Oct. 8 (Agence France-Presse) - A European satellite that was to have helped scientists understand global warming by scanning the thickness of polar ice sheets crashed into the Arctic Ocean on Saturday after its Russian launcher failed, officials said.

The $170 million Cryosat satellite blasted off from the northwestern Plesetsk cosmodrome atop a Russian-built Rockot launch vehicle, a converted Soviet-era SS-19 ballistic missile, but failed to achieve orbit, Vyacheslav Davidenko, a spokesman for the Russian Space Agency, was quoted as saying by the Interfax news agency.

The European Space Agency official in charge of the project, Pascal Gilles, said engineers and scientists had worked five to six years on the satellite. The space agency was expected to make an announcement on Monday on what steps it would take regarding the Cryosat, which was the first of six "Earth Explorer" satellites designed to explore key environmental problems.

October 3, 2005

Street Games

I can't claim to have been a street kid.

Protected Jewish nerd is more like it. I got my strength from lugging books on unlikely subjects from the 96th Street Library to 89th--and back. But I did escape to street life every now and then, between doses of Milton and Schopenhauer (well, not really, but close, for a 9-year-old).

This is a "Spaldeen," a fine rubber ball that you could buy at the cornder candy or cigar store and use to play Chinese handball (using the sidewalk squares and a windowless wall, or stickball (using parked cars as bases).

Rougher and maybe more fun were Ringalevio and Johnny on the Pony. You can get the idea of the latter here:

Harriet Who?

President Bush has nominated Harriet Miers to the Supreme Court. Harriet who?

Just as when Dick Cheney was guiding the search for a Vice Presidential running-mate for Bush, Miers was vetting the potential nominees for the court.

I like the fact that she's not a sitting judge, and I believe the President is entitled to some deference in his nominations, but this choice smacks of cronyism. Does service on the Texas Lottery Commission qualify one for the Supreme Court?

She's not young (59 or 60, depending on whom you read), so she may not be on the court for that long. She was picked partly because she's female, so I guess now we have a female seat on the Court, just as there used to be a "Jewish seat," not a good development.

I wonder what nickname W. has given this woman?

Given how jaundiced I am about the political scene at the moment, look forward to more ethnomusicology posts. Pythagorean tuning, anyone?

UPDATE: NZBear has a tally page on bloggers' opinions on this nomination. To enable his search engine to find this post, I am adding: "I am neutral on the Miers nomination."

October 2, 2005

I Drift Off Into Throat-Singing And Other Curiosities

Enough politics for the moment. Between the feckless Democrats, caught between the reflexive leftism of their activists and the fact that they are no longer the party of government, and the Republicans, who seem unable to lead and bereft of principles, I'd just as soon take a break.

So I drifted (my daughter wonders how) into a consideration of Central Asian throat-singing, which got some press when the redoubtable Richard Feynman took an interest in the small Central Asian country of Tuva. There seem to be traditions of throat-singing in much of Central Asia, and indications that something similar (but not quite the same) among the Inuit.

Apparently, the technique is periodically rediscovered, for the website has links to Xhosa (South Africa) and cowboy versions of the art, which involves the production of a deep tone in the throat and one or more harmonic tones in the mouth at the same time. Thus, one singer can produce more than one note. The singers could accompany themselves on their ponies without carrying musical instruments.

Whether this technique, to us, is more than an ethnomusicological curiosity, is in question, but curious it is. Check out the videos and MP3s. If you like it, you can get on-line lessons, and as the ads in the back of the comic books used to say, amaze your friends.