I'm trying to avoid the rash of end-of-year retrospectives and New Year's predictions, with only partial success.
Michael Crichton, who has written some good and some bad books, and grandfathered many films, gave this speech, illustrated, about complexity, predictions gone awry, and feckless meddling in complex systems, such as Yellowstone Park. He has struck a rich vein of human stupidity.
Among other things, YASPE ("Yet Another Skewering of Paul Ehrlich").
RTWT: Read the Whole Thing.
December 31, 2005
A New Years' Thought From Ben Stein
Here:
And Happy New Year to our troops in Afghanistan, Iraq, wherever.
And my favorite moments now, lying in bed in front of the fire, wind blowing through the palm fronds outside, with the dogs and my wife, napping while the dogs snore and my wife reads her mysteries: and all while far better men and women than we are fight and die in Iraq and Afghanistan and their families live in terror back home.Amen.
A glorious moment: speaking as valedictorian of my class at Yale Law, '70, talking airily about peace and love and gardens of Eden, and all the while, as I chattered in my bubble, high on something, I am sure, with my coterie of girls watching and oooh-and-ahhing, far better humans than I, with far better claims to human decency than I, with far closer relations to the Almighty, were being held in prison camps and torture chambers in Vietnam.
Now that I think of it, every moment that's great in my life shares the same foundation: we live large thanks to those who serve in difficult, life-threatening places and ways.
And Happy New Year to our troops in Afghanistan, Iraq, wherever.
December 29, 2005
The Grammar Police Nail the Gray Lady
In this piece about the latest twists and turns of the Padilla case, New York Times reporter Eric Lichtblau writes:
The layers of editors who are supposed to insure accuracy must be on Christmas break.
Ninety days in jail, stayed; one year on unsupervised probation and 50 hours of community service.
Ms. Newman said she expected that the Supreme Court might decide at its Jan. 13 conference whether to hear Mr. Padilla's case, which the Bush administration argues is now mute because of the pending criminal charges against him.It's a sad day when the "newspaper of record's" legal reporter doesn't know the difference between "mute" and "moot." "Mute" just means "silent, unable to speak," while "moot" in this context means "no longer a matter of controversy."
The layers of editors who are supposed to insure accuracy must be on Christmas break.
Ninety days in jail, stayed; one year on unsupervised probation and 50 hours of community service.
December 27, 2005
A Syllabus of Contemporary Conservative Errors
Jeffery Hart, Professor Emeritus at an unlikely place (Dartmouth), has long been one of our important conservative writers.
In this piece, he summarizes the key featues of post-WW II American conservatism, and makes a pointed critique of current political "conservatism."
Among his points are these:
Food for serious thought.
In this piece, he summarizes the key featues of post-WW II American conservatism, and makes a pointed critique of current political "conservatism."
Among his points are these:
- Conservation. Although the free market has great merit, we should not make a utopian fetish of it. In particular, the glories of nature are part of the "unbought grace of life." The preservation of the environment should not be the sole province of liberal Democrats.
- Wilsonianism. This, to Hart, is a dangerous and destructive form of utopia. By implication, Hart, at the very least, would not make the spreading of democracy by force, as in Iraq, a centerpiece of our foreign policy. Perhaps, given what we now think we know about the lack of an imminent threat from Iraq, he would not have had us go in at all.
- The Republican Party. Although this party was the main home of conservative politics. But Hart observes:
The most recent change occurred in 1964, when its center of gravity shifted to the South and the Sunbelt, now the solid base of "Republicanism." The consequences of that profound shift are evident, especially with respect to prudence, education, intellect and high culture. It is an example of Machiavelli's observation that institutions can retain the same outward name and aspect while transforming their substance entirely.
- Religion. Hart distinguishes, in religion, between faddish enthusiasm and "traditional forms of religion--repeat, traditional, or intellectually and institutionally developed, not dependent upon spasms of emotion." The latter is likely to be ephemeral, but the former is one of the bases of Western civilization.
Food for serious thought.
December 26, 2005
D-I-V-O-R-C-E
Tammy Wynette wrote one of the most famous Country songs, D-I-V-O-R-C-E, rather poignantly singing of a mother's reluctance to tell her son his parents were breaking up.
On Christmas Eve I saw our neighbors across the street. The mother, who lives there, was handing off their kindergarten-age daughter to the divorced father. The parents divorced when the daughter was a baby, after having arranged a child through a surrogate. No, I'm not making this up.
Although no one was crying or seemed particularly unhappy, the moment was very poignant to me. Both parents seem like intelligent, pleasant people. It seems unutterably sad that this child should be divided this way, shipped back and forth.
I don't say this out of pride. I, too, was divorced when a daughter was young, for what seems in retrospect no good reason. At age five, she came to visit me for a month. At one point, she said to me, "I wish there were two."
"Two what?" I asked.
What she meant was, she wished there were two of her, so one could stay with me and another go off with her mother. Very cogent for a five-year-old.
Eventually, I ended up raising her, which was a pleasure, and if anything did, made a man of me. She grew up into a woman I love and am proud of.
Now, though, in my old age, the frequency and ease of divorce seems both sad and symptomatic, and like my neighbors' cleavage, unutterably sad.
On Christmas Eve I saw our neighbors across the street. The mother, who lives there, was handing off their kindergarten-age daughter to the divorced father. The parents divorced when the daughter was a baby, after having arranged a child through a surrogate. No, I'm not making this up.
Although no one was crying or seemed particularly unhappy, the moment was very poignant to me. Both parents seem like intelligent, pleasant people. It seems unutterably sad that this child should be divided this way, shipped back and forth.
I don't say this out of pride. I, too, was divorced when a daughter was young, for what seems in retrospect no good reason. At age five, she came to visit me for a month. At one point, she said to me, "I wish there were two."
"Two what?" I asked.
What she meant was, she wished there were two of her, so one could stay with me and another go off with her mother. Very cogent for a five-year-old.
Eventually, I ended up raising her, which was a pleasure, and if anything did, made a man of me. She grew up into a woman I love and am proud of.
Now, though, in my old age, the frequency and ease of divorce seems both sad and symptomatic, and like my neighbors' cleavage, unutterably sad.
Barone On NSA
Michael Barone is one of the most thorough and thoughtful political columnists arounds.
He's given his take on the revelations about the feds' warantless culling of electronic communications. It's one of the more thoughtful commentaries on the issue.
This will likely blow over unless the Dems take over the House or the Senate next year.
He's given his take on the revelations about the feds' warantless culling of electronic communications. It's one of the more thoughtful commentaries on the issue.
This will likely blow over unless the Dems take over the House or the Senate next year.
December 25, 2005
Ho Bleepin' Ho
Actually, this is my last opportunity to wish those of you who stop by a Merry Christmas.
Have one. And a Happy New Year.
Have one. And a Happy New Year.
YAFV (Yet Another Fake Victim)
The Boston Globe reports that a UMass Dartmouth student fabricated a story that the Department of Homeland Security had visited him after he checked Mao's Little Red Book out of the library. (HT: Hugh Hewitt.)
I commented on the phenomenon of faked incidents of racial victimization. It appears that if some lefties can't document oppression, they find it necessary to invent it.
The retort, no doubt, will be that it's fake but true, that is, the incident was trumped up, but the threat to civil liberties is real. Mebbe so, but facts can be stubborn things.
I commented on the phenomenon of faked incidents of racial victimization. It appears that if some lefties can't document oppression, they find it necessary to invent it.
The retort, no doubt, will be that it's fake but true, that is, the incident was trumped up, but the threat to civil liberties is real. Mebbe so, but facts can be stubborn things.
December 24, 2005
Correction
In November, I made this post, supposedly linking to a photograph showing an Iranian boy being punished for stealing bread by having a car roll over his arm.
Apparently, it wasn't what I thought, but some kind of street show. An odd one, but no weirder than some of Evel Knievel's exploits, whose subtext is the mayhem that would result when he missed.
Oops. I try to avoid promoting urban legends. Especially when they demonize our adversaries. The current Iranian scene is grim enough, without misrepresentations, unjustified alarums and excursions.
Apparently, it wasn't what I thought, but some kind of street show. An odd one, but no weirder than some of Evel Knievel's exploits, whose subtext is the mayhem that would result when he missed.
Oops. I try to avoid promoting urban legends. Especially when they demonize our adversaries. The current Iranian scene is grim enough, without misrepresentations, unjustified alarums and excursions.
The Doc Was On To Something
One of my favorite blogs is The Doctor Is In, written by a Seattle urologist who goes by the name of "Dr. Bob."
In the aftermath of Hurricane Katrina and the New Orleans floods, Dr. Bob wrote a piece about allegations of euthanasia in one New Orleans hospital, Memorial.
At the time, as I recall, there was much discussion in his comments section about whether this report was genuine or something akin to an urban legend. I was a bit skeptical.
It now appears, though, that fire may be causing all that smoke. At least Louisiana Attorney General Charles Foti thinks so, because there is an ongoing investigation.
I'm not going to prejudge the investigation. But even the fact that the stories arising out of this event are so plausible leads one to ponder a society that increasingly has a purely instrumental view of life and death.
Ideas, as Richard Weaver argued, have consequences. What if our "enlightenment" is in fact "a covenant with death and a treaty with Hell"?
In the aftermath of Hurricane Katrina and the New Orleans floods, Dr. Bob wrote a piece about allegations of euthanasia in one New Orleans hospital, Memorial.
At the time, as I recall, there was much discussion in his comments section about whether this report was genuine or something akin to an urban legend. I was a bit skeptical.
It now appears, though, that fire may be causing all that smoke. At least Louisiana Attorney General Charles Foti thinks so, because there is an ongoing investigation.
I'm not going to prejudge the investigation. But even the fact that the stories arising out of this event are so plausible leads one to ponder a society that increasingly has a purely instrumental view of life and death.
Ideas, as Richard Weaver argued, have consequences. What if our "enlightenment" is in fact "a covenant with death and a treaty with Hell"?
December 21, 2005
Silent Cal, Where Are You When We Need You?
“There is no right to strike against the public safety by anybody, anywhere, any time.”In 1919, the Boston police force went on strike. Calvin Coolidge, then Governor of the Commonwealth, and later President, called out the entire state militia. The strike collapsed, and war veterans were rehired to replace the strikers. Coolidge later made the pronouncement quoted above.
Now the transit workers in New York City are on strike. This strike is not one by a downtrodden and exploited minority, but a strike by a strategically placed group seeking to augment its monopoly rents, mostly at the expense of modestly paid working people who don't own cars and can't telecommute.
The Democrats are increasingly the party of government workers and the "knowledge workers" and "helping professios." Governmetn workers nowadays are overcompensated in many places, because they have the motivation and the clout to dominate the political machinery, about which many are too apathetic even to vote. California, where government unions' dogged defense of their power defeated the Governor's modest reform initiatives last month, is a prime example. Cities such as San Diego face bankruptcy because of unfunded pension liabilities won by public employees through collective bargaining and their motivated intervention in the political process.
Another Coolidge would know what to do. Alas, New York politicians are notable neither for taciturnity nor adherence to principle.
Things being how they are, however, don't look for a total union victory.
NB: For an interesting use of Coolidge's image, read, as I just did, John Derbyshire's novel, Seeing Calvin Coolidge In a Dream.
El Jutespa
It seems that Mexican President Vicente Fox is outraged, just outraged that the House (not the Senate, yet) has voted to build additional walls along the border to prevent illegal border crossings from Mexico to the US, and the outrage is general in our neighbor to the south.
The outrage is apparently not confined to El Presidente:
This country has been pretty good at assimilating immigrants, and has in many ways benefitted from immigration. Nor can it be said that most illegal Mexican immigrants are anything but economic refugees, seeking work to support themselves and their families. The particulars of current cross-border immigration--large numbers, no control, domination of the immigration by one ethnic group, the threat of terrorist infilitration--have, however, changed the picture.
A fundamenntal aspect of sovereignty is control of the borders, of who and what enters. That we have lost such control is clear.
Whether the walls are wise or foolish, then, is for this country to decide. How to punish illegal entry is also a sovereign decision. For Mexican politicians, coming from a country that makes a fetish of sovereignty, to howl in outrage at these sovereign decisions, is el jútespa in a big way. For a professional agitator like Jennifer Allen to complain that for this country to punish a violation of its laws should be rejected because it makes her agitation more difficult, is priceless.
The outrage is apparently not confined to El Presidente:
Many Mexicans, especially those who have spent time working in the U.S., feel the proposal is a slap in the face to those who work hard and contribute to the U.S. economy.And there's also outrage that the proposed legislation will make illegal entry a felony, rather than a misdemeanor:
Fernando Robledo, 42, of the western state of Zacatecas, says the proposals could stem migration and disrupt families by breaking cross-border ties.
"When people heard this, it worried everybody, because this will affect everybody in some way, and their families," Robledo said. "They were incredulous. How could they do this, propose something like this?
The sense of dread connected with the measures is hardly restricted to Mexico. Immigrant advocacy and aid groups in the United States are worried about provisions of the House bill that upgrade unlawful presence in the United States from a civil offense to a felony.There is, of course, a great deal of hypocrisy about this issue. Many businesses thrive on paying the low wages that immigrants from Mexico will accept, which is why many in the GOP have paid lip service to stemming the tide of illegal immigration, but done nothing about it, and why Pres. Bush tries to straddle the issue with his non-amnesty amnesty.
"It would have a horrific impact on immigrant rights organizing and immigrant communities" in the United States, said Jennifer Allen of the Tucson-based Red de Accion Fronteriza.
This country has been pretty good at assimilating immigrants, and has in many ways benefitted from immigration. Nor can it be said that most illegal Mexican immigrants are anything but economic refugees, seeking work to support themselves and their families. The particulars of current cross-border immigration--large numbers, no control, domination of the immigration by one ethnic group, the threat of terrorist infilitration--have, however, changed the picture.
A fundamenntal aspect of sovereignty is control of the borders, of who and what enters. That we have lost such control is clear.
Whether the walls are wise or foolish, then, is for this country to decide. How to punish illegal entry is also a sovereign decision. For Mexican politicians, coming from a country that makes a fetish of sovereignty, to howl in outrage at these sovereign decisions, is el jútespa in a big way. For a professional agitator like Jennifer Allen to complain that for this country to punish a violation of its laws should be rejected because it makes her agitation more difficult, is priceless.
December 18, 2005
The March of Dimes Effect
When Franklin Roosevelt was President, and until the polio vaccines became commonplace, polio, or infantile paralysis, was a widely feared disease. Roosevelt himself had been stricken, and except for rare public appearances when he walked with braces with great difficulty, he was wheelchair-bound.
During this period, the “March of Dimes” became one of the country’s largest charities. The considerable funds it raised went for polio research and to assist the many who had been stricken with the disease.
After the vaccines came in, of course, the need for both research and treatment declined, and although one would think that the March of Dimes would ride quietly into the sunset, it was not to be. Instead, the March of Dimes changed its franchise from polio to birth defects, and although reduced in size, the organization lives on past the problem it was set up to solve.
This experience comes to mind when I think of the spate of faked incidents of racial and religious violence. The latest suspected incident came about after, Paul Mirecki, a University of Kansas religion professor, was found to have used anti-Christian expressions in emails about a new course on intelligent design, and forced to resign as department chair. Mirecki claims to have been physically attacked, but his story is strange, and it appears that local law enforcement smells a rat.
It’s too soon to be certain about the Mirecki incident, but there have been numerous cases around the country where people have falsified evidence to make themselves look like the victims of bigotry and violence. The notorious Tawana Brawley case was one of the first and perhaps the most publicized.
Not only have these false alarms been followed by expressions of sympathy and various mass rituals, such as anti-racism rallies, but sometimes, at least, they have caught the attention of individuals and organizations whose charters are to combat racial or religious bigotry. Similarly, whenever there is an incident of alleged police brutality, no matter what the facts are, Jesse Jackson or Al Sharpton is sure to show up, and whenever even the slightest whiff of anti-Semitism appears, there comes the Anti-Defamation League. Most recently, Jackson showed up to protest the execution of gang leader and murderer Stanley “Tookie” Williams, in spite of the racial character of his crimes and the thousands of death his gang and others have caused since their formation.
The motivations of those who fake hate crimes against themselves are obscure. Sometimes it’s an effort to hide their own failings or transgressions, and sometimes, it seems, a narcissistic desire to be in the limelight, even if as a victim as opposed to a person of accomplishment.
The reaction of the professional opponents of racism and other forms of bigotry, however, is an example of what might be called the “March of Dimes Effect.” It was easy enough for organizations to oppose legal segregation, or open exclusion of disfavored groups from housing, employment, or education. This open sort of discrimination is largely a thing of the past, except in the case of “affirmative action,” which is a horse of another color, and will not detain us here.
There are hate groups around, and no doubt individuals who hold too tightly to stereotypes of one kind or another. But for groups whose charter is to oppose bigotry, either they must find it somewhere to oppose, or change their charters as did the March of Dimes. Even for institutions like universities, whose charter presumably is to educate, the need to assume the liberal pose of moral superiority is strong enough to motivate the ritual chest-beating that seems to follow these incidents, real or fake.
In short, where racism and anti-Semitism don’t exist, for those whose bread and butter depends on being seen to fight these evils, if they don’t exist, it’s necessary to invent them.
Certainly easier than removing the log from their own eye.
During this period, the “March of Dimes” became one of the country’s largest charities. The considerable funds it raised went for polio research and to assist the many who had been stricken with the disease.
After the vaccines came in, of course, the need for both research and treatment declined, and although one would think that the March of Dimes would ride quietly into the sunset, it was not to be. Instead, the March of Dimes changed its franchise from polio to birth defects, and although reduced in size, the organization lives on past the problem it was set up to solve.
This experience comes to mind when I think of the spate of faked incidents of racial and religious violence. The latest suspected incident came about after, Paul Mirecki, a University of Kansas religion professor, was found to have used anti-Christian expressions in emails about a new course on intelligent design, and forced to resign as department chair. Mirecki claims to have been physically attacked, but his story is strange, and it appears that local law enforcement smells a rat.
It’s too soon to be certain about the Mirecki incident, but there have been numerous cases around the country where people have falsified evidence to make themselves look like the victims of bigotry and violence. The notorious Tawana Brawley case was one of the first and perhaps the most publicized.
Not only have these false alarms been followed by expressions of sympathy and various mass rituals, such as anti-racism rallies, but sometimes, at least, they have caught the attention of individuals and organizations whose charters are to combat racial or religious bigotry. Similarly, whenever there is an incident of alleged police brutality, no matter what the facts are, Jesse Jackson or Al Sharpton is sure to show up, and whenever even the slightest whiff of anti-Semitism appears, there comes the Anti-Defamation League. Most recently, Jackson showed up to protest the execution of gang leader and murderer Stanley “Tookie” Williams, in spite of the racial character of his crimes and the thousands of death his gang and others have caused since their formation.
The motivations of those who fake hate crimes against themselves are obscure. Sometimes it’s an effort to hide their own failings or transgressions, and sometimes, it seems, a narcissistic desire to be in the limelight, even if as a victim as opposed to a person of accomplishment.
The reaction of the professional opponents of racism and other forms of bigotry, however, is an example of what might be called the “March of Dimes Effect.” It was easy enough for organizations to oppose legal segregation, or open exclusion of disfavored groups from housing, employment, or education. This open sort of discrimination is largely a thing of the past, except in the case of “affirmative action,” which is a horse of another color, and will not detain us here.
There are hate groups around, and no doubt individuals who hold too tightly to stereotypes of one kind or another. But for groups whose charter is to oppose bigotry, either they must find it somewhere to oppose, or change their charters as did the March of Dimes. Even for institutions like universities, whose charter presumably is to educate, the need to assume the liberal pose of moral superiority is strong enough to motivate the ritual chest-beating that seems to follow these incidents, real or fake.
In short, where racism and anti-Semitism don’t exist, for those whose bread and butter depends on being seen to fight these evils, if they don’t exist, it’s necessary to invent them.
Certainly easier than removing the log from their own eye.
December 13, 2005
Moonbats on Parade
By Monday evening, the streets of Point San Quentin Village, a small seaside hamlet of 50 houses on the road leading to the prison, were packed with more than 2,000 people. The blazing white floodlights of the prison lit up the whole scene like a movie set. Some residents had rented their driveways to television satellite trucks for spot prices that ranged from $1,000 to $3,000 for the night. A portrait photographer, attended by a pair of assistants, had set up a street side studio where he was shooting demonstrators who posed in the lotus position against a white backdrop. "This is beautiful, absolutely beautiful," he said. Next to him, a small group of men were clustered around a banner that said "QUEERS AGAINST EXECUTION." A man selling hot chocolate was being pursued by a man with a "SAVE TOOKIE" sign, shouting "You fascist bastard."From Newsweek.
The few anti-Tookie activists—a man carrying blow-ups of the victims' autopsy photos, a guy in a sandwich board saying "BELIEVE IN JESUS"—were quickly swarmed by the crowd, with chants of "Tookie is innocent." In places, the air was rich with the telltale sweet aroma of an illegal substance, suggesting the dozens of riot police standing by could have plenty of work—if they wanted it. A man who appeared to be high on something stumbled by with a sign reading: "My 85-year-old father lost his parents to Hitler and he calls the governor Arnold Hitler." Another sign featured a photomontage of Schwarzenegger's face superimposed by two huge crossed syringes and the words "Stop me before I kill again." A speaker from the San Francisco board of supervisors was on stage, calling Schwarzenegger "a roboton of rightwing mediocrity."
A radio talk-show host was roughed up when he asked Jesse Jackson the names of the victims.
December 12, 2005
The Wages of Multiculturalism
This is the best piece I've seen so far on the Australian riots.
Apparently, as in France, the police have shrunk from fighting criminal gangs composed of Middle Eastern immigrants, in the name of tolerance and multiculturalism, and fearing the crowds of Lebanese that come out to confront them when they make arrests. Fueled by alcohol and resentment, and stirred up by agitators, young Australian "yobbos" retaliated inchoherently and indiscriminately. They may be crude, but at least they aren't dhimmis as the French appear to be.
Apparently, as in France, the police have shrunk from fighting criminal gangs composed of Middle Eastern immigrants, in the name of tolerance and multiculturalism, and fearing the crowds of Lebanese that come out to confront them when they make arrests. Fueled by alcohol and resentment, and stirred up by agitators, young Australian "yobbos" retaliated inchoherently and indiscriminately. They may be crude, but at least they aren't dhimmis as the French appear to be.
December 8, 2005
Festivus vs. Kwanzaa?
 |  |
Festivus was invented by some writers on "Seinfeld."
Both equally artificial and contrived.
Take your pick.
Stanley Crouch on the Tookie Fad
Stanley Crouch, in this column, assesses the weird priorities and racial demagoguery of those who are agitating for clemency for Stan "Tookie" Williams, murderer and founder of the Crips gang, who faces the death penalty on December 13:
The hard fact is that since 1980, street gangs have killed 10,000 people in Los Angeles, which is three times the number of black people lynched throughout the United States between 1877 and 1900, the highest tide of racial murder in the history of the nation.Amen, Stanley.
Our commitment to redemption is fundamental to our civilization. But since the death of the Rev. Martin Luther King Jr. in 1968, we have seen the same games run on the black community by the identical kinds of political hustlers who almost never met a criminal or a murderer who was not the real victim of society and should be forgiven all crimes, which, as in the Williams case, shouldn't even be discussed. Look to the bright side. Give the brother a break.
I wouldn't touch that kind of thinking with a garbage man's glove. Yesterday was the anniversary of Colin Ferguson's rampage on the Long Island Rail Road. Maybe he should come out of his mental fog and start writing children's books. Ferguson might join Williams in a nomination for the Nobel Prize and watch the chumps line up in support of clemency for his bloody acts. Who knows? Hope springs eternal.
December 5, 2005
Kill Tookie?
Radio hosts John & Ken (on LA's KFI-640) have launched a "Kill Tookie" hour. Of course, the PC types are Outraged!, and various Bolsheviks are pimping the cause, too. John & Ken are, as usual, a bit over the top, but they're not wrong on this one.
These were murders, in part racially motivated. Here are chilling photos of the victims. Here's the DA's summary of the trial and the case. Note that Williams referred to his Chinese victims as "Buddaheads" and didn't care about his victim Owens because he was white. Also note that in spite of overwhelming evidence, Williams has never admitted to or publicly repented the crime.
My libertarian side makes me a bit hesitant about the death penalty--a lot of power to give the government--but I believe retribution is one basis for sentencing, and if we are to have a death penalty, someone who killed four people in cold blood for a few bucks deserves to die, even if he wrote some stupid children's books and the usual suspects are braying for clemency. And appeal rights and all, 25 years is too long to wait for the sentence to be carried out.
These were murders, in part racially motivated. Here are chilling photos of the victims. Here's the DA's summary of the trial and the case. Note that Williams referred to his Chinese victims as "Buddaheads" and didn't care about his victim Owens because he was white. Also note that in spite of overwhelming evidence, Williams has never admitted to or publicly repented the crime.
My libertarian side makes me a bit hesitant about the death penalty--a lot of power to give the government--but I believe retribution is one basis for sentencing, and if we are to have a death penalty, someone who killed four people in cold blood for a few bucks deserves to die, even if he wrote some stupid children's books and the usual suspects are braying for clemency. And appeal rights and all, 25 years is too long to wait for the sentence to be carried out.
December 4, 2005
Justice Douglas Invents Marital Privacy (What Roe Is All About – Part III)
About with bladder cancer and the press of work have delayed my pressing on with my discussion of the constitutional law issues surrounding Roe.
This is a difficult subject not only because many people’s views on the underlying moral questions are sharply opposed, but also because the issue for many is salient. I recall the episode on Seinfeld where Elaine terminates a budding romance because her beau opposes abortion. Many opponents think abortion is murder. Proponents think the prohibition of abortion is one step short of reducing women to the status of chattels.
My purpose here is not to bridge this gap, nor to advocate what legislators, if freed from the constitutionalized rule of Roe, should enact, but to discuss the legal theories underlying the main abortion cases. These have assumed an overarching significance because in reality, the debate about the confirmation of Supreme Court appointees such as Samuel Alito has boiled down almost entirely to the question of what he’s said about Roe in the past (he was agin’ it) and what he might do in the future if confirmed (hinted he would at least hesitate to overrule what is now an entrenched precedent).
Recall that in my first post on the subject I began to describe the process by which the Court has interpreted the post-Civil-War Fourteenth Amendment as incorporating most of the Bill of Rights as restrictions on the power of the states.
In my second post, I went on to discuss “substantive due process,” a doctrine the Court has used to overrule certain state laws as violating constitutional due process even when they are not matters of procedure. Although in economic regulation cases this doctrine went out with Roosevelt’s New Deal, in certain non-economic areas it is not dead.
I went on to discuss the “right of privacy,” which originated as a new concept in the law of torts.
These concepts bring us to the key Supreme Court case of Griswold v. Connecticut, 381 U.S. 479 (1965). Griswold concerned an obsolete and rarely enforced Connecticut law that prohibited the distribution of birth control devices even to married couples. Opponents maneuvered to create a test case, which found its way to the Supreme Court, based on $ 100 fines imposed upon the plaintiffs.
Fundamental to the outcome was the conviction of all the justices that Connecticut had on its books what dissenting Justice Potter Stewart called “an uncommonly silly law.”
It fell to William O. Douglas, an irascible and determinedly liberal justice, to write the majority opinion.
Douglas reasoned that a right of privacy existed in the Bill of Rights, even though it appears nowhere in the text. Douglas based his conclusion not on the text, but on his belief that
Douglas concluded that marriage lies “within the zone of privacy created by several fundamental constitutional guarantees,” and ends his brief opinion with a paean to the sacredness of marriage.
Douglas mentions the due process clause of the Fourteenth Amendment, but does not analyze the incorporation issues. He simply assumes that incorporation applies.
It fell to Justice Arthur Goldberg, who concurred in the opinion and the judgment, to discuss incorporation. Goldberg had not come around to the view that the entire Bill of Rights was incorporated into the Fourteenth Amendment, but agreed with Douglas that incorporation applied to this case, which involved “personal rights that are fundamental,” and he agreed that incorporation “is not confined to the specific terms of the Bill of Rights.”
Goldberg’s concurrence emphasized the Ninth Amendment, which reads
Goldberg’s analysis shows a certain anxiety about the reliability of Douglas’s constitutional aura detector, and attempts to buttress Douglas’s rather cavalier exegesis on a right of privacy nowhere explicitly mentioned in the constitutional text.
Goldberg goes on to reason that the fact that the state asserted that the statute had a “rational basis” was not sufficient to uphold the statute, when narrower means, such as a prohibition on adultery, would be sufficient to vindicate the state’s interest in marital fidelity.
Stewart’s dissent is sharp and reasoned. He points out that the majority nowhere states which of the amendments in the Bill of Rights the Connecticut law infringes. In his brief but pointed dissent, Stewart says
For unelected judges to infer the existence of rights not remotely found in the text, was an attack on democracy, and a breach of any reasonable canon of interpretation. The views of the “enlightened,” not even those of the law professoriate, should not, in a republic, become part of the Constitution except through the political process. To allow judges to use a virtual Geiger counter to detect emanations and penumbras, is a source, as we shall see in future installments, of great mischief.
This is a difficult subject not only because many people’s views on the underlying moral questions are sharply opposed, but also because the issue for many is salient. I recall the episode on Seinfeld where Elaine terminates a budding romance because her beau opposes abortion. Many opponents think abortion is murder. Proponents think the prohibition of abortion is one step short of reducing women to the status of chattels.
My purpose here is not to bridge this gap, nor to advocate what legislators, if freed from the constitutionalized rule of Roe, should enact, but to discuss the legal theories underlying the main abortion cases. These have assumed an overarching significance because in reality, the debate about the confirmation of Supreme Court appointees such as Samuel Alito has boiled down almost entirely to the question of what he’s said about Roe in the past (he was agin’ it) and what he might do in the future if confirmed (hinted he would at least hesitate to overrule what is now an entrenched precedent).
Recall that in my first post on the subject I began to describe the process by which the Court has interpreted the post-Civil-War Fourteenth Amendment as incorporating most of the Bill of Rights as restrictions on the power of the states.
In my second post, I went on to discuss “substantive due process,” a doctrine the Court has used to overrule certain state laws as violating constitutional due process even when they are not matters of procedure. Although in economic regulation cases this doctrine went out with Roosevelt’s New Deal, in certain non-economic areas it is not dead.
I went on to discuss the “right of privacy,” which originated as a new concept in the law of torts.
These concepts bring us to the key Supreme Court case of Griswold v. Connecticut, 381 U.S. 479 (1965). Griswold concerned an obsolete and rarely enforced Connecticut law that prohibited the distribution of birth control devices even to married couples. Opponents maneuvered to create a test case, which found its way to the Supreme Court, based on $ 100 fines imposed upon the plaintiffs.
Fundamental to the outcome was the conviction of all the justices that Connecticut had on its books what dissenting Justice Potter Stewart called “an uncommonly silly law.”
It fell to William O. Douglas, an irascible and determinedly liberal justice, to write the majority opinion.
Douglas reasoned that a right of privacy existed in the Bill of Rights, even though it appears nowhere in the text. Douglas based his conclusion not on the text, but on his belief that
“specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”Although many liberals now treat the “right of privacy” is a sacred cow that might as well be in the constitutional text, it is a term derived from the law of torts, that Douglas almost mystically discerned in such prohibitions as the rules against unreasonable searches and seizures, and whose method he argued had analogies in “peripheral” rights such as that to send one’s children to a religious school, and not to have one’s membership in an organization such as the NAACP, which Douglas concluded were also derived not from the text but from the policies and philosophy that underlay the First Amendment.
Douglas concluded that marriage lies “within the zone of privacy created by several fundamental constitutional guarantees,” and ends his brief opinion with a paean to the sacredness of marriage.
Douglas mentions the due process clause of the Fourteenth Amendment, but does not analyze the incorporation issues. He simply assumes that incorporation applies.
It fell to Justice Arthur Goldberg, who concurred in the opinion and the judgment, to discuss incorporation. Goldberg had not come around to the view that the entire Bill of Rights was incorporated into the Fourteenth Amendment, but agreed with Douglas that incorporation applied to this case, which involved “personal rights that are fundamental,” and he agreed that incorporation “is not confined to the specific terms of the Bill of Rights.”
Goldberg’s concurrence emphasized the Ninth Amendment, which reads
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”Although Goldberg is careful not to say that the Bill of Rights is not completely incorporated in the Fourteenth Amendment, or that the Ninth Amendment is applied against the states or is an independent source of rights. Goldberg claims simply to be saying that the Ninth Amendment shows that the framers understood that there were fundamental rights beyond those specifically enumerated.
Goldberg’s analysis shows a certain anxiety about the reliability of Douglas’s constitutional aura detector, and attempts to buttress Douglas’s rather cavalier exegesis on a right of privacy nowhere explicitly mentioned in the constitutional text.
Goldberg goes on to reason that the fact that the state asserted that the statute had a “rational basis” was not sufficient to uphold the statute, when narrower means, such as a prohibition on adultery, would be sufficient to vindicate the state’s interest in marital fidelity.
Stewart’s dissent is sharp and reasoned. He points out that the majority nowhere states which of the amendments in the Bill of Rights the Connecticut law infringes. In his brief but pointed dissent, Stewart says
With all deference, I can find no such general right of privacy y in the Bill of Rights, in any other part of the Constitutions, or in any case ever before decided by this Court.That is the gist of the argument. The Connecticut law was a dead letter. Court intervention was not really needed to protect anyone. The political process and jury nullification would soon have resolved the matter.
At the oral argument in this case we were told that the Connecticut law does not "conform to current community standards." But it is not the function of this Court to decide cases on the basis of community standards. We are here to decide cases "agreeably to the Constitution and laws of the United States." It is the essence of judicial duty to subordinate our own personal views, our own ideas of what legislation is wise and what is not. If, as I should surely hope, the law before us does not reflect the standards of the people of Connecticut, the people of Connecticut can freely exercise their true Ninth and Tenth Amendment rights to persuade their elected representatives to repeal it. That is the constitutional way to take this law off the books.
For unelected judges to infer the existence of rights not remotely found in the text, was an attack on democracy, and a breach of any reasonable canon of interpretation. The views of the “enlightened,” not even those of the law professoriate, should not, in a republic, become part of the Constitution except through the political process. To allow judges to use a virtual Geiger counter to detect emanations and penumbras, is a source, as we shall see in future installments, of great mischief.
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