Big Lizards:Blog:Entry “Weapon of Mass Media Deception”

Mass Obstruction by UN -- Again?Big Lizards:Blog:Entry “Weapon of Mass Media Deception”

Here is a brilliant analysis of why the refrain, "We found no WMD in Iraq" has no merit.

Do we believe the UNSCOM and the UN generally about WMD now that Oil-for-Food demonstrates a culture of corruption at the UN?

Simply put, the UN squarely placed its head in the sand about WMD because Saddam kept the component parts of chemical WMD next to each other, but, having dual uses, could create plausible (?) deniability. I find it less than plausible.

It is a modus operandi throughout Saddam's Iraq. It is circumstantial evidence. It is clear and convincing to me that Saddam hid the WMD in plain sight and called it agricultural pesticides. Have you ever seen pesticides delivered by artillery shell?

Can Scalia Write or What?

Can Scalia Write or What?

This is a book review written by Justice Scalia. Once again he demonstrates why textualism is the best means of interpreting the Constitution. His theory is slightly different than mine posted below, so I must revisit my theory.
FT June/July 2005: Books in Review

Schumer has a point?

Schumer has a point?
The AP reports:

Sen. Chuck Schumer, D-N.Y., said the panel's recommendations to eliminate the state and local tax deduction would slap a $12 billion tax on New Yorkers. Rep. Steve Israel, D-N.Y., and Rep. Katherine Harris, R-Fla., said another suggestion — shrinking homeowners' tax breaks — would hurt families in states with expensive housing.

Yes, New York would get hit with more taxes, but why should Indiana taxpayers New Yorker's voting stupidity? Indiana needs more tax revenue, but raising taxes in Indiana is not politically tenable. Instead, we get a much smaller federal income tax deduction due to lower taxes: translated, that means that the federal government is not giving us as much discount on our taxes. All other things being equal, if New York pays more federal taxes ($12 B) and Indiana pays more taxes (let's make up a number for this exercise - $500M), the federal government will have $12.5B that it could theoretically cut out of its budget. As theory goes, the federal government could cut the federal tax rate by an amount to return the $12.5B to the taxpayers. I would hazard a guess that Indiana would get more than $500M in savings. If it were $700M in savings and Indiana adjusted its tax rate higher from 3.4% to capture that $700M, we would end a small state subsidy of a big state tax debacle.

All speculation, but sound theory. I wonder what the facts would be.

Foreign Law & Court Decisions

Foreign Law, Constitional Law, & the Courts

The use of foreign law in making legal decisions is becoming the discussion point for the king of talk radio Rush Limbaugh. Rush has regular contact with far better lawyers than I, but his discussion misses a few points that are a bit more subtle than he is making it seem to his non-lawyer audience. I have also heard local talk show host Abdul Hakim Shabazz on WXNT 1430 in Indianapolis talk about this. Abdul, as he is commonly advertised, is a lawyer by training, and it shows in his discussions. Unfortunately Abdul's understanding of foreign law is also confused because he is a victim of the poor use of history of law courses in law schools when he says that we use "foreign law" when we look to English cases.

I am a former note editor of the Indiana International & Comparative Law Review (1990-1991 volume). I appreciate the value of foreign law in the process. But why do we look at any law from outside a jurisdiction? How should international law play out in Constitutional issues versus common law issues? What is truly foreign law?

Rush’s Postion

Since this is a growing debate, looking at Rush's comments is a good place to start with the current understanding of well-informed, legal laymen. I would summarize Rush's points as being that (1) the US Constitution cannot be interpreted using foreign law; (2) judges can't make law, so looking to foreign law can't be used. On point #1 Rush said,

[U]nless it's in our Constitution it is irrelevant when you are deciding constitutional law that comes before you in the form of cases at the Supreme Court. It's just that simple, but if you're going to have a personal view -- like Justice Breyer obviously does, a personal view -- that what they're doing around the world is something that we can learn from, that may be, independently speaking, but if it's not in our Constitution, it ought not be in anybody's reasoning or anybody's decision-making when it comes to deciding law in cases that come before the Supreme Court. What Justice Breyer is essentially saying here is that there are certain things going on in this country that he disagrees with, and he may find a better way of handling them in foreign countries, and since he's a judge, and since other judges where writing these things in other countries, why, it would be silly not to incorporate them!

On item #2 on judges making law, Rush said the following:

Do you know that foreign law was used to overturn 19 state laws on sodomy? It was foreign law. Justice Kennedy cited it. Well, what good is any law in any state if nine lawyers at the Supreme Court can find what they're doing elsewhere around the world and say, "You states are so far behind the curve. You don't know what you're doing. They're way ahead of us, say, in Belgium. So we're going to going to incorporate Belgium into our decision on this case." Sorry. If it's not in the Constitution, you can't do that, and this started with Roe vs. Wade -- and this is the big argument that people have. Once you start finding things that aren't there, and pretending that they are, or inserting them yourself as a judge, the Constitution becomes meaningless, folks.

All this rigmarole and hoity-toity talk about human rights and civil rights and democracy? All of it would be meaningless. The only way it would have meaning is if a majority of judges agreed on some civil right or human right or what have you, or if they want to create a new one that's not in the Constitution. That's not how these things happen. The laws are not written by judges. They're not supposed to be. The laws are written by elected representatives in Congress and the state legislatures. If they want to go scrutinize foreign law, if they want to make a bill out of it and they can convince enough members of Congress as elected officials that we send there to do so, and then get the president to sign it, well, then fine. But this is not how this is supposed to happen, and Breyer knows, I think, he's under the gun. He won't stop talking this. He's got a book out about it, now. This is an argument going on within the court itself. You've got Scalia and Thomas, and you had Rehnquist, who are dead-set against all of this. We don't know where Harriet Miers comes down on this. We might find out in the hearings, but we don't know now. But there are plenty of other people out there whose opinion on this we do know.

History of American Common Law

Now any first year law student would immediately pick an argument with Rush about whether judges make law. Rush is a strong proponent of the legal doctrine of stare decisis: "let the decision stand." All of this argument can't get confused if you start listening in the middle and take short cuts in history and logic. Rush is making a valid point but the first year law student's challenge is not valid. Let's take a few steps back and look at what stare decisis is all about.

Our system of law arises out of the Treaty of Winchester (1153) which established to Writ of Right. This was the petition to the king to settle land disputes between competing lords arising from the long civil war (1) Queen Matilda and later the-soon-to-be-King Henry II (father of Richard the Lion Hearted and King John of Robin Hood and Magna Carta fame) and (2) King Stephen. This process was important because 4 competing legal schemes existed (1) Danelaw, (2) East Anglian, (3) Wessex (the source of the current monarchical succession), and (4) another I can't remember -- Sussex, I believe. The Norman French King Henry had followers he had promised land. King Stephen had followers he had promised the same land. After King Henry took over peacefully at Stephen's death, a Common Law grew under King Henry that ignored the competing legal systems. This land dispute resolution process proved so powerful over the coming centuries it eventually replaced the 4 competing systems. It did not reach into the other kingdoms of the modern UK: Wales, Scotland, or Ireland.

When the American Constitution was passed, Article III, section 2, clause 1, specifically brought the English Common Law and its sister body of law "equity" to the federal judicial system. This means that the English Common Law was not "foreign law," as Abdul has claimed, it is the parent law of the American court system. Reference to the parent law would make sense if referring to other court decisions makes sense.

Why Precedent?

So why do courts look to one another? There are historical reasons and practical reasons. Chief among a litany of reasons are the Common Law being the King's Writ of Right (i.e., order to find the plaintiff-lord's right to the land in question over the defendant-lord) being the source of law. Even early in this process, King Henry II was so busy being a military general in France that he left these decisions to judges acting in his name, i.e., in the name of the Crown. These judges wanted to act consistent with the King's wishes, so they tried to look to the King's prior decisions with similar facts for guidance. If the judge followed the King's example, they were less likely to incur the rather of the mercurial King Henry II. As a matter of historical practice, the judges, as proxies of the king, were trying to act like they were thinking like the King, so reference to his past decisions was instructive.

This piece of history belies the practical benefit of this practice. If a judge looks at past cases with similar facts, he can learn what the earlier court's logic was. Following precedent is just a practice in using similar logic in similar cases. This duplication of past patterns served the country of England well as its commerce grew and risk of legal conflicts grew. Having predictable legal precedents actually reduces the risk of litigation. As a lawyer, I constantly advise my clients based on what the likely outcome in litigation would be. Why go to court with a known losing case? Save the attorneys' fees and headaches, unless you think you can get a different result. Following precedent means disputants can resolve their disputes outside of court more efficiently.

What happens if a court has a case that has never been decided in its history? With 50 states and a federal bench, American lawyers are accustomed to looking outside of the jurisdiction for case law that is similar. Enterprising lawyers can take advantage of the multiplicity of countries who are the descendants of King Henry II's Common Law: Canada, Australia, British West Indies, Bahamas, and the UK. Looking to these countries becomes dicier all the time as their respective legal histories diverge and these countries base more of their decisions on their own constitutions.

If the logic of a court case can be stripped of the visicitudes of their respective consitutions (to which I will return in a moment) and parliamentary legislation, Artistolean logic is Aristolean logic. Why should a judge have to invent new logic when he doesn't have to do so? This is very similar to mathematical proofs in high school geometry classes. Once the class proves to themselves that when 2 lines cross opposite angles are sysmetrical, the class can then use that as an established theorem. All you have to do is cite the theorem to short-hand the whole discussion. This process that Noam Chomsky called "chunking" is helpful in building more complex ideas more efficiently. We don't need to go back in math and debate the effects of parallel lines, basic arithmetic, Newton's calculus, Einstein's theories of relativity, etc. We can focus on the conclusions that we can draw on more complicated questions.

Proper Constitutional Analysis

This theorem building process is supposed to exist in the law, too. The problem is that, while mathematics and science have hierarchies of established postulates, theorems, hypotheses, and questions, the law is more jumbled. The problem of applying foreign law reflects this jumble. It shouldn't be so jumbled. It is actually very easy to layout the hierarchy of rules. Unfortunately for Justice Breyer, this exercise exposes the fallacies of his approach. Nevertheless, let's give it a try.

First, the US Constitution is the highest source of law. This is the voice of the people. We, the people, have imposed rules on our government at all levels to which the government must comply. All laws must be made consistent with the Constitution, so interpreting the Constitution is really about verifying if laws were made properly. As the evidence about the people who have debated and agreed to the Constitution, it is a contract between the people, and like all contracts, it must be "strictly construed." That is, if the document says something, it must be read to mean exactly what it says. "Speech" means speech, not expression. We should use the dictionary definition of terms. The dictionary used should be the one closest in time to the approval of the Constitution. As any person knows, over hundreds of years, a language changes. Its process has slowed in recent centuries, but the death of Middle English and its replacment by Early Modern English took less than a hundred years. Using modern dictionaries may be better researched, but it is likely to introduce unintentional errors with the passage of time and addition of new definitions.

Second, as a contract, the US Constitution should only be interpreted using sources outside of the Constitution when the language is ambiguous. This is where Justice Brennan's progeny make trouble, like Justice Breyer is trying to do. I will come back to this. "Speech" is not ambiguous. A person has a right to stand on a soap box make a speech. New technology transmitting that speech through the ether does not make the speech less valid. The Constitution does not mention the transmission of speech through the ether. Consequently, there is no Constitutional issue about FCC regulation of the airwaves. Where ambiguity about "due process" arises, we should only look to the thinking of authors of the Constitution. The Federalist Papers are invaluable in this regard since they were written at the same time for specific purpose of explaining the Constitution by its authors and defenders to cause its approval by the several states. If newspapers of the era had quotes of these same persons, they would be valuable, too. As time passed, these same persons had further thoughts. These become less and less valuable as personal, non-theoretical biases slipped into their thinking. Nevertheless, the comments of Secretary of the Constitutional Convention James Madison, as author, are infinitely more valuable than Ambassador to France Thomas Jefferson. Jefferson had no input into the Constitution. His role as the author of Virginia's Declaration of Rights is a "persuasive document" but it is not an "interpretive document." Madison writing about his authorship helps us to interpret his exact words. Jefferson wrote a document on which Madison relied. That is hearsay evidence about what Madison thought. It is not admissible for this purpose.

Third, if previous cases on the same subject have addressed these first 2 points, they can be cited to chunk the previously established doctrine into the new case. Translated into legalese, this means by citing the previous case's analysis the current court can "incorporate by reference" the previous decision. This citation is encouraged under the doctrine of stare decisis. Stare decisis tends to favor not changing the previous analysis. However, if new information is forthcoming that changes the validity of the previous court's decision, then the current court is obligated to test the validity of previous decisions.

Reliance on Previous, Good Logic

This is an important point. Stare decisis does not encourage the blind leading the blind. It encourages standing by sound, tested, and established logical analysis. What information would tend to give rise to changes in previous cases? If the previous case made a mistake, the new case should overturn the faulty logic and establish a new precedent. The case of Brown v. Board of Education overturning Plessy v. Ferguson's separate but equal doctrine is a great example. Plessy was based on the idea that having 2 separate facilities was not Constitutionally questionable if the facilities were equal. As a purely logical exercise, this is unquestionable. We do it all the time with men's and women's bathrooms and locker rooms. The flaw in applying the logic is that in practice separate was not equal. Blacks did not have comparable facilities. They had separate. Plessy's logic was sound but flawed because it did not fully take into account the facts.

In Aristolean logic, you can say, "If A then B, if B then C, therefore if A then C." So "If 2+2, then 4. If 4, then 3+1. If 2+2, then 3+1." In this case, no intervening facts can change the truth of these statements. In law, we deal with a series of events that can always be interrupted by intervening events. Logic alone would suggest that, "If a pregnant cow dies, then her blood quits circulating. If the pregnant cow's blood quits circulating, the unborn calf dies. If the pregnant cow dies, the unborn calf dies." This is sound logic, but it can be proven to be false if the veternarian delivers the calf by c-section.

This makes legal reasoning difficult to apply in a solely Artistolean pattern. In law school, this is handled by trying to separate analysis of law from application of fact to the law. Students are taught to (1) identify legal issues, (2) determine the applicable law and precedent, (3) apply the facts, and (4) reach a conclusion. Identifying issues is a subject for a different day. The problem is determination of law and precedent and applying facts.

The problem is that courts and lawyers get lazy. In determining the law is different than determining precedent. Because some judges have had the hubris to declare, "The law is what I say it is," lawyers have fallen to the erroneous belief that case precedent is law. It is not. Precedent can be overturned by the whim of the proper court. Law can only be overturned by established, legislative bodies.

Precedent is a process of building sound, logical constructs. Since courts must decide for one party over the other, it must reach a decision. Where no law exists, the case must be thrown out. Without further historical consideration, we have logical incongruity in our system.

Lower courts must follow precedent. This is simply to say that they must use the same logic on similar cases. If a case differs on its facts, the logic can differ. The problem is that higher courts’ methods of broadcasting their wishes on how the logic should be followed in the future. These courts roam far a field of the actual dispute and pronounce on broad theories of law. These are helpful to lawyers to understand the actual decision, but ultimately precedent is only about the actual logic that reaches the court’s holding.

In some sense, the higher court may be like listening to that loud-mouth uncle at Thanksgiving dinner. He talks loudly about his brilliance and past conquests, but ultimately whether you give him white meat or dark meat comes down to a simple “white meat, please.” If you want to limit his discussions of how to cook the perfect turkey, you just offer him the white meat without asking. The lower courts just want to give the white meat and move on: how should this case be decided?

Role of Judges as Legislative Gatekeepers

Judges were the king's proxy – or, to borrow the Spanish king's vocabulary, the viceroy, the assistant king. The judge's role as viceroy is limited to judicial functions, that is, resolving disputes between parties. This is a derivative of the Common Law scheme, born of a treaty between lords centuries ago and built by judges under the direct control of a monarch for centuries. This system relied on something akin to King James' doctrine of the divine right of kings. Only through Magna Carta, the growth of Parliament, and the Glorious Revolution's elevation of William and Mary did the executive control over the function of law-making weaken.

Our Founders took this evolutionary change and broke it soundly with the Declaration of Independence and the adoption of the Constitution. They brought the judge's power to decide cases and reliance on established precedent from the king's bench over to the new states. They broke the legislative function and judicial function clearly away from the executive function, save checks and balances. Here we have continuity and revolution side by side.

The Founders interjected a new source of law into the mix through the Constitution. Unfortunately, they did not give us much guidance on how interaction of the Constitution and the Common Law were to play out. The contractual theory, noted above, solves for that lack of guidance within a legal framework that was already in use when the Constitution was written and is consistent with the "We, the People," language.

By the Constitution's continuing the Common Law in light of its birth in the Treaty of Winchester, American courts still retain some of their viceroy function of creating precedents to new questions. The Supreme Court is clearly the court of last resort under Article III, Section 2, Clause 2, Sentence 2, for all questions of "Law and Fact." This authority includes "all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority." Article III, Section 2, Clause 1. "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Article VI, Clause 2.

All laws made in pursuance of the Constitution are the supreme law of the land. So Chief Justice Marshall's decision to acknowledge judicial review arises from the authority of the Supreme Court to hear cases arising under the Constitution and the Laws under the authority of the Constitution. Article VI makes clear that the courts must follow the laws if made in pursuance of the Constitution. The courts then have an obligation to question whether a Law of the United States was made in pursuance of the Constitution. It is a "threshold question": a question of law that must be answered when raised before the enforcement of the law can be considered. This is a procedural question. Does Congress have the power to issue such a law? Did Congress pass the law using the proper procedure and send it to the president? The contractual analysis is key for this process.

Constitution as Contract

Overruling the People’s voice, Congress, the Supreme Court has an awesome responsibility. It is very easy for humans to want to impose their desires on the society in which they live. The ability of Congress and the Supreme Court to oversee the other’s behavior is an interesting construct. It is not unique to put these limits on a representative assembly. In Rome, two institutions were established to attempt the same result. The first were the censors. Their job was to keep the Senate and assembly for running amok and follow good morals. The censor could limit legislative behavior. The Tribune of the Plebs was given a similar power over the Senate, the day-to-day legislative body. Since the Founders were well-versed on Roman history, it is not perverse to imagine that this had some impact on how they envisioned the Supreme Court’s role.

The nature of a written contract is unusual in legal disputes. Few forms of evidence are more powerful and given more deference than a written contract. The rationale for this is powerful. A written contract has placed before both parties as they are dreaming about the future of their relationship. Each has a chance to edit the contract to fit his vision more accurately. The courts do not want to get in the business of changing the terms of a contract because the parties have already had a chance to make those changes.

Interestingly, the Constitution bears a resemblance to this process. The people of the day had a chance to say what they wanted in a contract between the states. Each state had to choose to participate in the new contract. Yet, the Supreme Court has an uneven history of enforcing the language of the contract as strictly as it would a contract between two people. If the Constitution is nothing but a contract, why should lesser contracts receive more respect from the courts?

Contracts are enforced strictly to encourage voluntary contracts and give predictable results in court. If the Constitution were enforced the same way every time, the Supreme Court would be less powerful but the costs of litigation would plummet. Why litigate a case when any amateur lawyer could predict the outcome?

Constitution as Agent of Change

On a basic level, this country needs to debate what the Constitution is designed to do. Is it designed to set up the role of different parts of government and define their duties and restrictions? Is it designed to implement utopia and cut off any movement from that vision of utopia?

The justices best representing these separate visions are Scalia and Brennan respectively. Justice Scalia looks at the Constitution as a utilitarian document: define jobs, limits, responsibilities, overseers, etc. Justice Brennan looks at the Constitution as the embodiment of a greater vision for America. Brennan freely acknowledged the limits of the Founders’ vocabulary but saw his role to make the American society fit to the vision that Brennan interpreted on behalf of the Founders. These two processes have very different results. The best way to look at the differences is deal with a problem that has come up that the Founders would never have envisioned.

In this example, I do not claim to be speaking in either justice’s voice. Is a person on television entitled to curse or show nudity as part of their First Amendment right to free speech? Justice Brennan’s thinking on the Constitution could lead to conclusion that speech is merely a form of expression. Television is merely a means to transmit expressions. So televising expression is subject to First Amendment protections. But the justice could take the position that we want some limits on the expressions on television, so we point out that the airwaves are publicly owned and the Congress has right to control publicly owned airwaves.

This simple example shows that the Brennan approach can lead to widely opposite results. FCC regulation could be Constitutional; it could not be. It depends on the whims of the justices.

Scalia type approach would say, speech is the act of talking on a subject. A person has a Constitutional right to talk, but the Constitution is silent on how such speech may be broadcast, so there is no First Amendment protection. This is simple. It avoids later litigation on the subject. Speech is speech. A person considering a flag burning case would look at this and say, “I can speak about burning a flag, but I can’t avoid legal restrictions on flag burning.” No case. No litigation. Interestingly, this same person may be able to point to Article I, Section 8, to claim that Congress has no authority to prohibit flag burning or even the establishment of a national flag or emblem.

This leads to the complaint by many that this simplicity of result actually would lead to many injustices. President Lincoln said, “The best way to get a bad law repealed is to enforce it strictly.” If flag burning is not available to be made criminal, let the court say so. The Congress and states can then address whether it should be by amending the Constitution.

Foreign Law as a Source

Through this long discussion, I have touched on the history of common law, the growth of judges as viceroys and their role in lawmaking, Constitutional interpretation, but I have not touched on the issue at hand: the role of foreign law in court decisions. Allow me to correct that.

Foreign countries face many of the same problems we do: what to do about murderers, whether to limit smoking in public, how to regulate commerce, how to settle disputes, etc. To the extent that we can learn from other countries, why shouldn’t Justice Breyer be able to learn from all humanity like we learn from the German Einstein about relativity or Plato about reality and concept?

Simple. We have a contract that must be observed. Benjamin Franklin as a tradesman who did regular commerce with England and France loved restrictions on duties and freedom of commerce. Benjamin Franklin as a scientist thrived on the free exchange of ideas with the European scientists he encountered when he was our first ambassador to France. Would Franklin as Constitutional Convention delegate have seen the Constitution as part of a clean break with the British Crown? I submit that he and his fellow delegates would have seen it as a break.

The Constitution gives a clean starting point for where our discussions about governmental structure, duties, and limits arise. It is unique to us. The Twelve Tables of Rome, Swiss Confederacy, Mayflower Compact, Virginia Declaration of Rights, and Articles of Confederacy all preceded the Constitution. Yet, each cannot tell us what the convention delegates meant. The delegates had a chance to choose specific words and debated those choices. Ultimately, the words they chose and the words the American public of 1787 had to consider were those written in the Constitution.

No other country has a legal right to affect our Constitution’s operation without entering into a ratified treaty with us. Should we consider their opinions? Sure, but where would that consideration fit in a proper legal analysis of the Constitutionality of a law?

Congress passes a law to outlaw French wine. Clearly, the French winemakers would be opposed. An American importer takes the case through the courts to the Supreme Court. The US government argues that the law meets the requirements of Article I, Section 8, Clause 3 (Congress’s power to regulate commerce with foreign nations). The importer is going to argue that the French courts like French wine? How does this tell us anything about Clause 3? The French regulate wine so that they have fancy names from fancy places so they should be imported without regard to the Constitution? This will not work as an argument. No argument that avoids talking about treaties will get around the Constitution’s clear empowerment of Congress to act.

If a treaty is involved, it is treated co-equal with an Act of Congress and not an amendment of the Constitution. Reid v. Covert 354 U.S. 1, 17 (1957). (hat tip: Mickey O. in comments at PoliPundit.) Consequently, if the French winemakers point out a provision from the WTO treaty, they must also show that the Congressional Act was not more recent.

Foreign law does not provide any context for why the Constitution is written as it is. Reference to the Common Law of the era is not the same as foreign law, because the Common Law was the working law of the land in the United States at the time. The Common Law was nearly indigenous law.

Foreign law on interpretation of the US Constitution can only make sense if a foreign country has nearly identical language in its constitution has dealt with a similar case. Then rules of chunking or precedent can apply. The judges can test the established reasoning for soundness and logical validity. If the French constitution or Déclaration des droits des hommes does not have a similar provision to “full faith and credit,” “cruel and unusual,” or “freedom of speech,” it provides us no logical construct to begin the analysis. Foreign law cannot help much with the Constitution because it has nothing to do with the nature of the agreement that we reached between ourselves and have continued to abide by.

Similarly, foreign law is irrelevant on acts of Congress, unless the Congressional Record makes reference to foreign law. The Congress has expressed its opinion and may have had the author the foreign law testify before committee. Regardless, the law is now settled, even if its meaning is muddy. The courts will have a record of the witness to Congress and can look into that source in greater detail. The court will not have to pick randomly for foreign law.

This leaves one different area of law: the deciding of cases where no Constitutional provision, no act of Congress, nor treaty apply. The court’s decision must rely on precedent of the Common Law. Here, foreign law is potentially invaluable. The logic of other jurisdiction of the fifty states, the federal courts, Great Britain, Australia, and even France can be considered. This is where the thoughts of great people are invaluable. This is where creative thinking is helpful. This is where the courts can wreak havoc.

This is legislating. Ultimately, good judges will write opinions that decry in plain language that the law is slow to adapt and beg the legislature to provide some remedy, but will throw the case out of court for “failing to state a claim upon which relief maybe granted.” The judge will likely stimulate a debate if the case is egregious and cause a law to be made. He will look insightful and intelligent. His plaintiff will be mad, but possibly have new rights soon thereafter to try again.

Conclusion

Ultimately, the use of foreign law can tell us little about the US Constitution or Congressional enactments. The Constitution’s contractual nature makes it hard to look at evidence outside the four corners of the document that help us understand. If we have issues that the Constitution doesn’t address, Congress can consider making laws, but consultation with foreign is part of the legislative function.

If the issue comes to a court without Constitutional or Congressional guidance, the court can try to consult foreign courts, but ultimately this is probably a good sign that the case needs to be thrown out of court with a strong red flag from the court that a legislative body has to fix this problem. Our history allows some ability for courts to follow logic to reach decisions but this must be used carefully or else the courts become legislatures.

The cost of legislation is high enough. If one legislator can see the value of a new law at a luncheon, the legislature can be convinced to fix it within a year. If one judge can see the value of a new law, it will take thousands of dollars in attorneys’ fees and years of litigation.

Justice Breyer’s theory that foreign law is a good source for American Constitutional jurisprudence is wrong. It is historically misleading. It is logically and legally faulty. It is economically inefficient. It is highly arbitrary. It is ultimately destructive of the rule of law over the rule of men.

Chris Edwards on Hurricane Katrina on National Review Online

Chris Edwards on Hurricane Katrina on National Review Online

Why could Louisiana or New Orleans not afford to pay for its own levees and flood control system? If you say corruption, you are missing a larger point.

If corruption were the sole problem, why are all these Congressmen so busy trying to take money home? Simple, the federal government's share of the tax load is far, far too high.

Let's look at the marginal income tax in one state, that I know: Indiana. We still pay the federal marginal tax rate of 35%. Add to that the Indiana flat rate of 3.4%. Without deductions and other adjustments, that theoretically means more than 90% of Indiana's income taxes go to the federal government. Theory is not sound in its detail because the deduction makes this analysis far more complicated. Nevertheless, its principle is sound: the federal government is taking more than 7 times as much revenue from income as the state of Indiana.

That means that Indiana has to beg the Congress for money to get close to getting its money back. If Indiana does get its money back then other states won't because someone has to pay for the Army, Congress, the White House, the Supreme Court, the IRS, etc., etc., etc.

What did we learn out of Katrina? Local resources are sorely underfunded by the dollars going to their stated purpose. From Rita, we learned that major cities gridlock is more than just everyday commuter trouble. It is life threatening in an emergency. The interstates rely on private vehicles. Private vehicles depend on public roads (unless you own an SUV and have courage enough to go off roading through your neighbor's yard with Rita at your back).

The Democrats will seek to "raise taxes." As I have noted before, the word "tax" is really a hanging modifier. Do they want higher tax rates (e.g., more than the 35% noted above) or do they want more tax revenue (e.g., more cash in the federal treasury). More tax revenues are coming through Bush's lower tax rates. Do they prefer higher tax rates with lower tax revenues?

I would argue that the overall tax burden needs to be lower and it needs to be shifted toward the states. The Army Corps of Engineers should not be the primary contracting agency for levees or dams. It should be the repository of engineering expertise as consultant to the state and the central planning agency on interstate waters like the Mississippi. Like the relationship of a private developer to a zoning board, the states should build and the Corps should approve or veto within a pre-existing plan.

This would move the budgeting control and oversight to a small group of people. The federal government would have less control but spend less money for more effect.

If states like Louisiana are corrupt and wasteful, the federal government's rebuilding dollars should be forthcoming but with strings for legal reforms and prosecution of fraud. The state's cleaning will be then both physical and political.

If local officials know that failure of their home-built and -managed infrastructure could lead to their individual prosecution if it should fail, their incentive will be to overbuild. Then local legislature will have the ability to use its purse-strings to control the overspending.

This still leaves me with a problem for which I have no satisfactory conclusion. What happens if and when the legislatures fail to perform their function? Legislators of 30-year tenure are the epitomy of bad legislatures. Federal government dollars in rebuilding need to sting local legislatures for legislative failures.

I am all for democracy, but I am not a big fan of Jacksonian democracy in the modern era. I have no opinion whether it worked in the past but I can say with certainty from a state working under a Jacksonian constitution that it stinks today.

The federal executive's failures are due to its size. No president can manage that many people.

The state executive does not have the same problem. His problem is that in a Jacksonian system, he controls too few departments yet is blamed for all failures.

The federal executive ironically can be more responsive. If a FEMA director fails, you fire him. If an attorney general fails, you fire him. With only one elected official at the head of the government, the secretary and undersecretaries are more at risk and must keep the president content.

In a Jacksonian system, like Indiana, if the attorney general is off in a different direction than the governor in enforcing laws, there is likely to be political fights between the offices and no real correction made until the next election.

Well run companies use the CEO chopping block as the means to control the company. The threat of bad news leading to the CEO's termination makes the underlyings more responsive to the CEO's wishes, particularly if the CEO's underlyings are his cronies. This is a good thing. Firing the CEO is firing the team. Ultimately, this means that the CEO can fire individuals for a period of time to perfect his plan. After a time the plan either works or fails. If it fails, the CEO goes -- along with his failing team.

If the stakes in the state legislature go up so that the legislature knows that a flooded first-class city means they lose their jobs, is that enough to make sure the levees are built properly?

I don't know. All I know is that these same local officials can blame Washington for their own thievery now. Is that really better to institutionalize passing the buck? Not likely.

Cheap Gas Is a Bad Habit

Cheap Gas Is a Bad Habit . . . for Whom?

Mr. Samuelson believes gas prices being low is bad. I agree. He proposes more gas taxes. I agree. I disagree about why. Gas taxes need to be higher only because we need new highway construction (at least here in Indiana, and I suspect many other places).

The problem is that Mr. Samuelson wants to keep people out of certain cars. That may be the result of high taxes, but it will worsen the problem that he proposes to remedy: our dependence on foreign oil.

If the cost of gas has nothing to do with the cost of exploration and development, higher taxes might increase our dependence on foreign oil.

If I am an executive at Exxon, I want to maximize profits. That means find or buy oil cheap and sell it for a reasonable mark-up. Reasonableness is important because I want to sell many gallons of gas to each customer. If I economically rape the customer, he won't come back. For example, if I make 5% on a $2.00 gallon of case, I will get 10 cents for each gallon. SUV's may have 30 gallon tanks (I don't know. I don't own one.) That's $3.00 per fill up. If that customer comes to me every week, that is $150 (assume a couple slow weeks, too) per year for one vehicle.

If I make 20% on a $2.30 gallon, I may get $12.00 one time, but will I get the customer the rest of the year? Not if my competitors beat my price.

If the oil companies want to make money, they have to keep oil flowing. If the price of gas gets to be high based on taxes and my oil company will not stand to make more money from the increased prices, my profits will not go up. I have no incentive to produce more oil. Only the cheapest producers keep tapping wells. But let's hold that thought a moment.

Here is the clincher: the cost of production for a barrel of oil is not equal in all locations. It is cheapest in the Middle East (about $5) and most expensive closer to home (e.g., Colorado or Canada at around $20). As I understand it, most of those costs are in the capital investment and not in the on-going opeations of the production facilities. So if a price rises over a period of years, more production facilities will become cost effective. If my oil company was getting the profits from the increased prices, guess what happens? Our dependence on foreign oil (or at least OPEC oil) decreases!

Now let's revisit the gap in price for oil versus the price of taxed gas. We already concluded that only cheap producers tap new wells. That means that OPEC will be the only ones that benefit. The worst possible situtation for OPEC is to have new competitors, because that allows OPEC greater opportunities to violate the cartel's rules, thereby lowering prices.

If we want less foreign oil, American oil companies need greater profit. Why do you think that these proponents want higher taxes? That's another article.

Price Gouging?

Price Gouging?

Think about the people starving and standing outside a fully stocked Walmart in New Orleans. Why is the Walmart not open? Simple: no power, no personnel.

Why no personnel? There is no way a person is going to risk their life to work at a friggin' Walmart for minimum wage. Why minimum wage? Because raising Walmart's price to deal with the new risks and headaches of a shellshocked New Orleans would be treated as price gouging. Because newly-found homeless persons don't have enough cash or credit cards to pay.

What if we decided that it would be perfectly acceptable to allow prices to increase 1000%? Walmart might be able to afford to pay managers, stockboys, and head cashiers premium wages of $50 maybe $75 per hour. Walmart might be able to afford to pay for special shipments of dry goods and water to there stores. Walmart might be able to afford semi-trucks bearing generators and cellphone towers/satellite dishes to run their stores and maybe serve as new communication hubs for their old neighborhoods. Walmart might make enough money to afford to allow pastors and priests, nuns, Salvation Army colonels to take the materials they need at pre-hurricane prices. Walmart could charge FEMA inflated prices. This would discourage FEMA from controlling the distribution of all food and water and allow the re-establishment of private means of distribution, thereby allieviating suffering at an exponential rate.

What about customers? If they have the money, they can afford to get water that they think they need. They can buy the food they think they need. They will hoard food, but Walmart will make so much profit so fast that they will send extra trucks.

What if the store is damaged? There might be enough profit to bring in a bulldozer to clear the parking lot and throw up tents to serve as temporary stores. A history of allowing these huge profits would encourage Walmart not to build cheap buildings like warehouses in hurricane country or earthquake country but fortresses that are designed to withstand the elements. They know that bad events are boons to their bottom line so it is a good investment in durable and resilient stores. These stores could even become shelters if the toy department is emptied as children are entertained and replacement supplies are focused on food & water, clothing, shelter (e.g., tents), etc.

The Red Cross is wonderful, but it should try to be a competitor to the world's best designed and run distribution center -- which happens to be based near hurrican country.

Let the free market run rampant. Where have 100,000's people ever starved to death for lack of food availability when the free market is allowed to work? Starvation largely occurs when distribution systems are interrupted or prevented from working. Price gouging laws fit the bill.

In SEC securities law there is rule against fraudulent statements called 12b-5. Most companies sued for securities fraud are hit with these fraud counts.

The problem with "price gouging" is that the focus is on the pricing -- the result. There is never a question as to why the prices are high. What if lawyers were likely to use existing fraud law from the common law to pursue people who start rumors of gas supplies ending? What if defrauding parties were pursued not for good economics of raising prices but spreading fraudulent rumors to generate panic?

What if stores would stair-step pricing: 5 liters of water per visit per person at 200% price, the next 5 at 500% price, and every other bottle at 2000% price? This would be easy with pre-programmed cash registers for catastrophe pricing.

What if churches all had several Red Cross trained members with prior cross-training from the Red Cross, Wal-mart, FEMA, and local authorities.? What if churches had reserve sheriff deputies assigned to the church to be the government's liaison to the respective churches? What if Kiwanis Clubs, Boy Scout troops, etc. all hade training on the catastrophe "phone tree" that is run by foot or cell phone or walkie-talkie?

What if these groups had pre-arranged payment systems with Walmart or other big box stores so that they could buy using purchase orders rather than cash? What if the churches had mini-satellite receivers that could communicate with the semi-truck satellite at the Wal-mart parking lot?

Just a bit of profit for Wal-mart will slow unnecessary demand and encourage social benefits that better serve their communities.

New Orleans: A case study for federalism?

New Orleans: A case study for federalism?

The blame on politicians has started.

I have a question: why is the federal government the proper agency to protect a city?

One city is a huge voting section of Baton Rouge's thinking. It is a tiny part of Washington's.

Why should the federal government have much say on how a city protects itself? This is reverse political bribery. The politicians bribe the voter to vote for the politician.

If New Orleans was protected by Louisiana's projects, then they could invest what they wished in protecting their city.

If St. Louis and Missouri chose a different protection mechanism and protocol than New Orleans -- great. We would learn which mechanisms work the best. Insurance premiums would even help score the success. Higher premiums for similar starting points would indicate bad methodologies. Theory would score until reality serves as the final referee.

Washington has no business determining how New Orleans is protected or built so it had no business building levees.

Now Washington has made bad decisions starting with LBJ's era in relying on levees by and large. Washington now has to foot some of the bill because of its bad choice.

Washington should get out of this business and make the states carry their own loads.

Shiites Offer Compromise on Constitution - Yahoo! News

The AP story suggests that the last offer by the Shiites could make or break the constitutional process.

Out of all the writing that I have done as a lawyer, some of the best occurred when I threw out the draft that I had spent days on and started from scratch. It pained me. The results were usually far superior. I could see where pitfalls lay more easily. I did not have to compromise the message to make some rather sloppy drafting earlier in the piece stay.

Is this the best solution for Iraq? It would many, many more dead in the short term. It would possibly mean civil war if the second attempt failed or approached failure. It could mean resounding success if the Sunnis actually had elected persons at the table. It could mean success if the Iraqis had another chance to tighten up the number of parties in competition.

I would guess that some of the parties from the first election have died. Some politicians have proven their incompetence by now. It would crystalize the positions more clearly, which could be good or . . . .

I am not crazy about the idea, but it could be better than now. Could be.

Army Recruitment Is Down? Nope!

Ralph Peters shows that army recruitment is over goals at every level. Let's see how long this story takes to report.

Bad Logic, Mr. President

This AP story bothers me. I have been hearing this logic a lot: we should not leave Iraq because of our prior losses.

This is erroneous. Let's talk about money instead of lives for a moment. It is less emotional.

This is just a human version of an economic fallacy: we should put more money in Project A because we have already spent so much.

If Project A will cost $50,000 in the next 6 months but has shown zero benefit, why does its make sense to look at the $300,000 already spent.

The logic fails because prior expenditures tell us nothing about the project. If the logic is changed slightly, the fallacy can be removed. Take an example of an outdoor, Indiana, water park in late September. If the construction of a new park ran 6 months behind schedule, it makes infinite sense to spend the $50,000 maintenance costs to make it through spring of the following year. If you don't spend for maintenance, the foreclosure or eviction would put the project back to zero. You would have to spend the construction costs again with added expenses of having lost credibility as profitable builder.

The prior deaths in Iraq should not be wasted, but the proper way to express this argument is that withdrawing now will lead to more aggressive acts against America throughout the world. Then any future need to tame a terroristic Iraq would potentially require a whole new war and investment of 1,000's of American lives and billions of American dollars. The loss of withdrawal is the re-investment, not the honor of past lives.

Build memorials to the everyday heros in the military. Pray for them. Tell their stories. Inspire the troops there and here to live up to the valor shown already shown in Iraq. Calculate the cost of getting back to where we are today, but don't calculate on previous expenditures alone.

The Coming Al Qaeda Crisis of Spring 2009

One thing we Americans need to remember is that Al Qaeda's leadership is composed of well-educated and thoughtful hatemongers. They have studied America and its habits. Don't doubt that they have studied our reactions to past crises.

A theory of Soviet behavior is that the Soviets provoked each president to test his resolve and his pluck. The Berlin Wall. The Cuban Missile crisis. Vietnam for several presidents. The Yom Kippur War. I can't think of one for Ford. Afghanistan. Missiles in Europe. Iceland.

The timing was not always at the start of each administration. If I was better informed about the diplomacy of each era, I would hazard a guess that relations were testier at the start of each administration then after the sides had a chance to circle each other for a while.

I would suspect that Al Qaeda and OBL are planning a test for the Spring of 2009 or soon thereafter. They will want to get a quick read of our new president. They have learned from the Soviets. They will use an unsure time to try to establish a new relationship of greater predominance.

If a Republican of prominence from the current administration were to rise to the presidency, this confrontation will likely be smaller. The presumption of continuity will reduce it.

If a Republican from outside the administration were to rise, the confrontation will be more aggressive but dependent on who the Republican is. If it is McCain, I would bet a smaller confrontation. His military pedigree will make his resolve seem larger. If it is Senator Hagel . . . (sorry, I am stiffling an involuntary response), this will be highly unpredictable. He has the Republican moniker, but no history of stalwart, clear policy.

If it is a Democrat, the push by Al Qaeda will be small. They want to make the loss of face for the Democrat to be small and the cost of retribution high. The Democrat will have a portion of his or her (I will use the masculine pronour herein as neuter, as is English language standard) party pushing the pasficist line. The retribution cost will make the pascificist position easier to swallow. Then Al Qaeda has a precedent. They will push again. At some point, the Democrat is either going to have blow the wad on the retribution cost and act in a manner far more dramatic than the situation would seem to warrant at the moment.

For example, if Hillary is elected, she will likely react with overwhelming force the first time. There will be no moderate response. She will then be able to avoid reacting at all to some future response, because, when she is accused of fearing to respond, she will point to her prior overwhelming response.

Unfortunately, this up-and-down response is among the more dangerous options. The less predictible the American response, the easier it will be for the aggressive responses to avoid international screaming.

Am I suggesting that from this alone that all Democrats are unqualified? Absolutely not. This prediction has little to do with what choice America should make in 2008 than it does in trying to predict our enemy's behavior.

Americans just need to be aware of what their future may likely hold based on its collective choices.

Murder as Democratic-Republican Measure?

There is a city where murders and shootings have become notorious. Next door to this history of mayhem sits a government debating the future of its democracy as key appointments are argued about in pitched voices. I am thinking of Washington, D.C. Are you?

Throughout the 1990's the stories of murder and death was ever upward. During this time, did we ever dispare of the future of American democracy?

Murder is not a sign of health in any society. Yet, death and non-military killing is not the same as a coupe d'etat.

Has the American left learned nothing from Secretary of Defense McNamara's fallacy of the bodycount? Robert McNamara came to the Department of Defense from the Detroit auto industry, where life is about measurements. McNamara tried to measure success in Vietnam by the number of Viet Cong killed: the bodycount. Cf. Wikipedia.

The left hated the Vietnam war for its unseemly killing. The My Lai massacre came to represent this unseemly killing. Then Lt. John Kerry comes along and makes it sound like this is the US Army's method of fighting. Not a lot of truth, but McNamara's bodycount didn't help.

I always say that you have to be careful whom you choose to be your enemy because that comes to define you. The American Left is a perfect example. It chose Nixon, bodycounts, and enemy lists. Now its perception of life is based on people that the movement hates, the statistics of dead, and politics of destruction and hatred. From the Clinton era to today, the Left has become what it perceived to be wrong with the other side. Iraq is a failure because of the body count. The Bush administration or Republican de la semaine is evil, e.g., Bush, Cheney, Rice, DeLay, Bolton, etc.

Once you remove the body count, what do we know about Iraq?

The questions to the A.P. about this are a start.

Let's look at a proper measure. Could it be persons jailed for speech against the government? Could it be persons summarily killed in captivity by the government for "crimes"? Could it be persons jailed for belonging to a political party other than the ruling party? Could it be the number of stores opened? The number of cars sold? The number of gallons of gas sold? The number of groceries/green grocers/open-air bazaars open? The number of cafes, restaurants, or food stands open? The number of cells phones in use on the key street corners of a city or town?

Why do we measure success on the number of barrels of oil pumped or schools opened by the government or the number of persons claiming not to have a job? The media, when it does look at numbers, tends to focus on these government and macroeconomic measures. Life is not macroeconomics. Life is the microscopic. Where do I eat? Where do I live? How do I get to work? How do I make money?

We know from American success compared to European and Japanese experiences that the microbusinesses drive economic growth on a macro-level. Big organizations have higher capital investment requirements and, consequently, are more risk-averse. They need bigger government to adjudicate disputes.

Smaller businesses don't. We need to know the number of cell phones or the number of gallons of gas pumped at particular store from month to month. That is life. That is where success is measured by the Iraqi family.

TIME.com: The Condi Doctrine -- Aug. 15, 2005 -- Page 5

TIME.com: The Condi Doctrine -- Aug. 15, 2005 -- Page 5
This article in Time about Condi Rice pushes the notion that democratic reform has to be timid and methodical in places that have never known democracy. (UPDATE: Powerline comments on the same article.)

This is lunacy. Government change in small increments is bound to be hijacked by bureaucrats or despotic tendencies. The one part of the lunacy of Marxism that is true is that government change must be revolutionary.

It must work quickly and throw the baby out with the bath water. Then building institutions can be slow and methodical.

What modern, successful democracy did not start suddenly and take years to get its feet under them? Compare the democracies that we are always fearing will collapse to a military junta.

For democracy to take hold and work, the revolutionaries must throw out the old guard from top to higher middle management. This inevitably means several years of poor management. Shake raw milk. It takes time for the cream to surface.

The building of a system of government works from ideals to bureaucracy. Working the other way -- from bureaucracy to ideals -- means that those who can find power through milking the system will control the bureaucracy. This is dangerous. It is this power stealing process that leads to juntas. The bureaucracy with the guns gets fed up with a feable system. Unfortunately, this often fails because the military's strict control system does not lead to good democracy.

It is the street revolutions that work. The chaos of the masses insisting on good government. The chaos of constitutional conventions that insist on principled government. The implementation through the chaotic first parliament or congress. The implementation through oversight of the brand-new bureaucracy. The law of averages in the pendulum swing.

Everyone is uneasy. Everyone is seeking power and control simultaneously. In the military juntas, power at the top is already guaranteed by gunpoint. The rest of the bureaucracy is seeking its power without much citizen input or restriction.

Now this chaotic transformation has one guaranteed result: the pendulum swing. The Brent Scowcrofts of the world don't fear the pendulum swinging away from their collective noses. They fear its return. They fear the bloodied nose. Here the General and its adherents have defined victory incorrectly. They need to move their nose out of the path of the returning pendulum.

Think about it. If you define your success as making every democracy your ally, when a new government arises that does not agree with you, you have failed. In the Cold War this Kennansian view may have made sense.

If you define victory as building a democracy that later may have a Chancellor Schroeder, how can you have failed when the Chancellor gets thrown out on his ear after a few, peaceful years militarily even if they are a diplomatic nightmare. The Chancellor is removed by his own people. The pendulum swing moves toward the party historically more friendly to the US.

In Iraq, we must admittedly fear the first few pendulum swings. The fear should not be of the Kenansian variety. We should fear that the Iraqi version of the Articles-of-Conferation period or the Iraqi Yeltsin-era not being able to survive to the next pendulum swing. We should not fear the chaos for sake of fearing an unknowable future.

We should fear that the patience of the Iraqi people leads to a knee-jerk revolution against democracy because of their fear of chaos -- even explosive chaos. (Trust me, my fear of explosive chaos would rationalize such a knee-jerk response if I lived in Iraq now.) But it is in such chaos that true democratic strength arises.

Condi has shown confidence in the democratic process. She is right to do so. A successful Iraqi democracy will produce a Iraqi Chancellor Schroeder. I don't doubt sooner than later. The question is not who is the country's leader at any moment. It is what system is necessary for that difficult leader to be removed. If it is by the ballot box or by constitutional limitations, the who is irrelevant. (I mean the top dog, not the puppet, in the Iranian style.)

The pendulum's swing must always pass through the bottom of its swing. As long as the swing always stays centered on a democratic system, over time the pendulum will swing in slower, shorter arcs. These shorter arcs is where we build our true allies.

Radicalism is merely the attempts to push the pendulum out of its swing to the middle. Someone like Venezula's Chavez is dangerous because he pushes the pendulum wide of its natural swing. The swinging is in wider, eratic, circular swings. This is the real danger of getting a blood nose. You have to stand much farther away. When the swinging becomes smaller and more focused on one path, you can stand closer to the pendulum and never get a bloody nose.

The Scowcroft method by comparison is to have some group hold the pendulum with the hope that they will slowly set it in the middle. This is folly. The middle is not defined by one person. An attempt to have one person find the middle just means that a new person holds the pendulum or the holder is moving around.

Being able to predict the pendulum's movement is more like having a circle of people each pushing the pendulum. If each person gets a chance to push the pendulum, there is less need to push the pendulum excessively hard. Build the pendulum and let it swing. Focus on limiting the arc, not setting still.

Rapid City Journal: Alan Aker, 8-7: Mainstreamers have lost their way

Rapid City Journal: Alan Aker, 8-7: Mainstreamers have lost their way: Now that is to the point writing!

TCS: Tech Central Station - Oil, Money and Confidence

TCS: Tech Central Station - Oil, Money and Confidence Russia is on the rise. I hope this is in the best sense of the rise of democratic republic, rather than the ChiComm -- or should I say the fascist Chinese.

When justices refuse to retire - The Boston Globe - Boston.com - Op-ed - News

When justices refuse to retire - The Boston Globe - Boston.com - Op-ed - News

Mr. Jacoby brings up an interesting analysis. My father was one of Justice William O. Douglas's treating physicians at Bethesda Naval Hospital. When you mention justices retiring, he belly laughs. Due to doctor-patient privilege, he does not say much. He just laughs when anybody says that Douglas retired. He says, "I saw that man. He retired? Yeah, right!"

One of my least favorite presidents for domestic policy was FDR, yet the one failure of his administration was the "court packing plan." As any high school history student would tell you, it was a terrible idea to pack the Court with one's cronies to change the Court's balance. Yet, if you look at the proposed approach, it would solve the complaint that Mr. Jacoby makes.

I don't remember the details of FDR's plan, but he essentially wanted to be able to appoint a new justice for every sitting justice over the age of, say 75. Using this method, Clinton would have been able to make a few more appointments during his term, and W. would have a few. This takes a lot of politics out of the Court's appointments because it would nearly guarantee that every president would make a court appointment yet it would leave the Constitution unchanged.

Is this the best solution? No, I would prefer an amendment to the Constitution that would either resemble that 25th Amendment by systemizing the removal of an infirm justice from voting status and making him capable of reinstatement, maybe with the Chief Judge of the Circuits in numerically rotating order (with the DC Circuit and Federal Circuits as numbers 1 and 2) as the temporary stand-ins. The chief judges, if I am not mistaken, have an interesting selection process by being selected by their bi-partisan peers on their respective Circuits. They have already been confirmed by the Senate. They have appellate experience of some years.

This could even be done under the Congressional authority to regulate the Supreme Court.

London attacks: turning point for US Islamic community | csmonitor.com

London attacks: turning point for US Islamic community | csmonitor.com

These are the types of articles that I wish we saw more often.

The Heaviest Element

The Heaviest Element

I have seen this before, but I just love it.

Heaviest Element discovered

A major research institution has just announced the discovery of the heaviest element yet known to science. The new element has been named "Governmentium". Governmentium has one neutron, 12 assistant neutrons, 75 deputy neutrons, and 224 assistant deputy neutrons, giving it an Atomic mass of 311.

These 311 particles are held together by forces called morons, which are surrounded by vast quantities of lepton-like particles called peons. Since Governmentium has no electrons, it is inert. However, it can be detected, as it impedes every reaction with which it comes into contact.

A minute amount of Governmentium causes one reaction to take over 4 days to complete when it would normally take less than a second

Governmentium has a normal half-life of 4 years; it does not decay, but, instead undergoes a reorganization in which a portion of the Assistant neutrons and deputy neutrons exchange places.

In fact, Governmentium's mass will actually increase over time, since each reorganization will cause more morons to become neutrons, forming isodopes. This characteristic of moron-promotion leads some scientists to believe that Governmentium is formed whenever morons reach a certain quantity in concentration. This hypothetical quantity is referred to as "Critical Morass". When catalyzed with money Governmentium becomes Administratium, an element which radiates just as much energy, since it has 1/2 as many peons but twice as many morons.

Judith Miller Coerced?

The phrase "Words mean things" comes to my mind often when I hear liberals argue with conservatives.

The latest version is that the NY Times and Judith Miller claim that her source was "coerced" to sign a general release of that person's confidentiality with reporters.

This is the latest attempt by the MSM to treat journalism as an extension of the justice system. Journalism is not part of the justice system, and cannot ever be yet function.

Part of this problem arises by the number of attorneys entering journalism. They use legal terms and logic (by and large better than J-school graduates). J-school grads then want to look like they are acquainted with the rules of logic and syllogisms. (I know, I know. Everyone's favorite media huckster Geraldo Rivera fits this bill, too.) Here is where the fun begins.

Miller's argument for ignoring her source's release is that the source was coerced. She and the Times claim that the Administration insisted that everyone inside it sign a general release for this investigation. The coercion is what? That failing to sign the release would cause the source to lose his/her job? Is that coercion?

To coerce is defined by lay dictionaries as, " To force to act or think in a certain way by use of pressure, threats, or intimidation; compel."

This coercion defense is brought up by many non-lawyers in court. Here are some questions to consider: is it coercion that a woman on the side of the road with a broken down car is required to pay for having her car towed? The towing company may "threaten" not to move her car unless she agrees to pay. The woman feels "compelled" to agree.

Is it coercion when I go to the hardware store and I want to buy material to buildout my basement but I don't want to pay what the store wants me to pay. If I start carrying out material without paying the store's list price, the store manager will surely threaten to have me arrested if I do not "act . . . in a certain way": pay first, carry out second.

This definition of coerce just does not make any sense in determining a person's moral obligations. Since we have no "moral dictionary" (yes, the Bible provides guidance, but I am not doing an exegesis on the Bible here).

The key definition that we need to consider is that in one edition of Black's Law Dictionary. Black's works better since its definitions, as revised over the decades, are actually tested for functionality in real world situations. Black's defines "coercion" as,

1. Compulsion by physical force or threat of physical force. An act such as signing a will is not legally valid if done under coercion. 2. Conduct that constitutes the improper use of economic power to compel another to submit to the wishes of one who wields it."

Black's Law Dictionary, 7th ed., p. 252 (West Group 1999). Note that the first definition is interested in physical threats. While loss of a job does not automatically disqualify from falling within the second definition, we must look deeper. The key is that the conduct (e.g., firing a non-compliant employee) is "improper."

Certainly the Times is not claiming that its source has been physically threatened. The Times is claiming that it is improper for a president to tell his staffers in the White House to cooperate with a criminal investigation or risk losing his/her job?

Miller's defense is completely unsupportable in a legal sense. Even after attempting to use the lay dictionary definition, we find that, while the behavior in question may fit the definition, the definition is impractical to provide any guidance.

This is a perfect example of what the MSM does every day in blurring definitions of legal terms and trying to apply them outside of courts. They use legal terms that sound very damaging to the subject of the MSM's attack. Yet, they fail to properly apply the terms in a legalistic manner. If a critic point this out to the MSM, the MSM would claim literary license and claim that the MSM doesn't intend to use the legal version.

I would suggest that the MSM should be held strictly accountable by bloggers and other critics for using legal terms by analyzing the MSM's statements and headlines using Black's Law Dictionary. If the MSM wants to have more freedom to express themselves in a non-legal context, they have plenty of room to maneuver. As I understand it, the English language has the largest vocabulary of any language. Every middle school English teacher would tell you that there are many synonyms in English. Use them. The MSM could have used "compel" or "forced" or "strong armed." Each has a similar meaning without the legalistic baggage.

They won't though. They want to bluff the layman into believing their storyline because "coercion" sounds legalistic and, therefore, justifiable reason to ignore Miller's source's release.

If they want to use the law as a cover, they should have to justify their actions strictly within the law. No changing contexts as the whim strikes them.

Dhimmi Watch: Muslim leaders denounce some violence

Here is a sign of change in the Islamic world that some like Mansoor Ijaz are calling for.

The MSM Makes OBL!

Austin Bay suggests that OBL is made by the MSM (and by inference Al-Jazeera). So once again the liberal modus operandi is what creates the success of OBL's war on America.

The aspects that can make any liberal or conservative a great American is villified by OBL: equality of women, freedom of speech, freedom of religion (including but not limited to Islam), respect for differences of opinion, respect for the rule of law, democratic republican administration and creation of laws, equality before the law, investigation of criminal behavior based on probable cause, etc.

Yet one is the image cast to the world about America's ideals? The images in gut rot movies, poorly sourced and reported news reports (let alone knee-jerk, anti-American reporting: condemnation in the press without probable cause), elevation to rights' status of behaviour historically condemned in America even if tolerated, etc. These are the images that are OBL's stock in trade.

The lack of these images and poor reporting would make America much more difficult to use as the strawman in OBL's publicity campaigns.

Imagine a self-motivated MSM that would participate on the American side of the war on Islamofacism! This same media that justifies local news stories of missing women as national news only because it generates ratings but that won't cover national news advantageous to conservatives, even though it generates huge ratings, too (see Limbaugh, FNC, blogs, etc.).

The MSM is already selective on what ratings interest them. Why is it that they always tend to choose in a way that helps OBL?

TCS: Tech Central Station - War in Pieces: The Blood Feud

TCS: Tech Central Station - War in Pieces: The Blood Feud">This article suggests that the Global War on Terror should be retitled something like the Global Blood Feud with Terror. If you study the economics of war, this tactic makes some sense. The goal in a partisan or guerilla war is to keep the cost of each attack high enough to get attention but not so high that the victim society wishes to fight back. But can it be a blood feud with just one side acting consistent with the blood-feud model?

What are the economics to each side? So if a terrorist attack against the American population or the London population a few million to clean up and investigate, that makes no sense to START a trillion dollar hunt internationally. It is more economically efficient for the Americans or Brits to ramp up efforts a bit for political gain or at least political-loss prevention.

That is where the attack on the US on 9/11 changes the economic equation. America lost billions from those attacks. The world economy lost trillions. Now it is more economically efficient to seek out terrorists and break the back of terror supporters of Saddam and Iran. The fear of having multiple WTO-type attacks makes taking the war to the terrorists much more efficient then allowing the world economy to collapse in fear of WTO attacks.

The attack in Madrid and London falls back into the more economically efficient attacks on the West. These attacks cost very little to produce and cost the victim societies far less in economic loss, particularly costs directly attributable to the attack. The insurers paying to repair building facades will be small. The cost of life insurance carriers will be in the millions, but probably not much over $100 million, if I had to guess without any evidence -- which I do. London's economy (and therefore largely Great Britain's economy) lost a day of valuable production. Unfortunately, this may not be enough to mean much in long-term political will for Brits.

The WTO collapses cost insurers billions in real estate casualty coverage -- about $4 billion, I believe. The American Congress paid out about $1 million per victim in after-the-fact life insurance amounting to over $2 billion. Business losses were nationwide as the aircraft landed and people waited several days for the next attack. Fear of air travel continued for over a year.

Since then we attacked the Taliban and Al-Qaeda and more than decimated (note: decimate means "deci-" tenth + "mate" to kill; the Romans would punish a poor performing by killing every tenth legionnaire standing in formation) those organizations' leadership and membership. According to President Bush, we have killed far more than a tenth of those organizations leadership.

The blood-feud model is fitting for a terrorist organization like Al-Qaeda using modified guerilla tactics. American Revolutionary War General Francis "Swamp Fox" Marion won in South Carolina using guerilla tactics. The difference between American guerilla tactics and Al-Queda's terror tactics is the target. General Marion targeted the Red Coats, i.e., British soldiers in uniform. Al-Qaeda targets innocent civilians at home.

The classic examples of blood feuds are the Hatfields & McCoys and the Sicilian vendettas. Each had small, surprise attacks because of individuals being members of particular groups or individuals having committed previous "crimes" against the attacker.

While the blood feud model seems to describe Al Qaeda's current and most effective tactics, the same cannot be said of the Western response. Unlike a blood feud, the Western Powers are not reacting in a blood feud approach. This is where the blood feud model fails. In blood feuds there is no attempt to avoid collateral damage, reconstruct societies, spread democracy, build economies, or withdrawal from conquered lands.

So can this one-way blood-feud model work? Al Qaeda and its sympathizers have a huge problem in their military theory. Traditionally guerilla tactics are used by small forces not interested in holding territory to cause occupying forces to withdraw or to cause the government forces to loose credibility in the eyes of the public. General Marion did this well. He made the British occupation of South Carolina prohibitively expensive to maintain. This had the effect of building the American patriots at home believe that Independence could be accomplished. It pointed out the weakness of British control being projected across the Atlantic from London.

Mao Zedong converted these methods against military targets to civilian targets to undermine all sorts of governments in different countries to look shaky. Mao's approach was used by General Giap in Vietnam against the American forces. These guerilla tactics are mostly designed to create a political result. John Kerry's testimony to Congress in 1971 is what these tactics sought to accomplish.

Al Qaeda's attacks on the US, Spain, and Great Britain fail to achieve strategic goals that Mao and Giap demonstrated can work. These were indigenous efforts to cause political wills to change among the indigenous population. Al Qaeda's attacks are not indigenous.

Terroristic attacks tends to cause a rally around the flag. The duration of the rally depends on the effect on the pocketbook of citizens.

In the American sense, the rally has waned since 9/11. However, recruiting to the Army's infantry has never waned. The Army's recent recruiting difficulties are in the support positions. Who wants to go to Iraq to provide support to the infantry but get shot at? Americans want to carry guns and shoot. Passing guns up to the front is not nearly as inviting.

What does Al Qaeda strategically envision accomplishing? If this is jihad for conquest, do they really expect the US to collapse and submit to Islam or accept dhimmi status to an Islamic government? How do terror attacks lead to this goal? The logic of this strategy has failed. "Blackhawk Down" as the evidence of American suseptibility to accepting dhimmi status is a dubious source.

Al Qaeda seems to think that the West is as suseptible to spiritual collapse like Vietnam and Mogadishu just like Constantinople collapsed to the Turks. The story goes that the Eastern Roman Empire's (i.e., Byzantine Empire's) Senate debated meaningless theologic issues while the Turks were knocking at the gates of Constantinople. Al Qaeda seems to perceive all of the West through this six hundred year old prism.

Blood feuds have little strategic vision. Blood feuds usually are mirror-image affairs: each sides strategic goals are mostly about vengence and not about larger issues. Al Qaeda's understanding of the West seems to suggest blood feud should work. In the short term, we can see that it is not growing stronger. What about in the long term?

The West wants immediate, clear results. If that is not possible, our basic attitude is not to start. Much of Europe has chosen not to start on several fronts. While Bush and the Republicans remain in power and Blair remains Prime Minister, we have not only started but can see clear to continue. Our problem is that Blair and Bush will be leaving soon. Gordon Brown in Great Britain is not likely to be as strong. Who follows Bush?

This fall Germany's Schroeder may be leaving. Will Germany step up? The Dutch are still reeling from the murder of a director by an Islamicist.

The West's focus after 2008 is not clear. If the next round of Western leaders stay focused, Al Qaeda may be sunk. That will get us between 5-10 more years of focus. That may not solve the problem, but it will make it very difficult for the West to change when the out-of-power parties do come into power as Al Qaeda wishes we would.

What happens if an anti-Bush Democrat takes power with a Democratic Congress (both Senate and House)? Showing signs of change will re-invigorate the Blackhawk Down as the model. If a strong Democrat comes to power with Democratic Congressional support? Al Qaeda is doomed. They won't have a crack to develop in American politics. I don't imagine that Al Qaeda can fight us for 25 years without completely re-writing their theory and philosophy.

American success may depend on the next Democrat president not being from the Carter Administration mold, as was Clinton on Blackhawk Down.

All Four Stanzas

All Four Stanzas: " All Four Stanzas

By Isaac Asimov

Introductory Note. Unless you're already well acquainted with our 'national anthem,' this interesting piece by the late Isaac Asimov will be an eye-opener. It was for me. It's especially appropriate at a time when there is much talk of tossing out this difficult-to-sing and difficult-to-comprehend old song in favor of something that better suits Ray Charles' voice. You'll understand the song much better after you read Mr. Asimov's explanation.--Hardly Waite, Gazette Senior Editor.



I have a weakness--I am crazy, absolutely nuts, about our national anthem.

The words are difficult and the tune is almost impossible, but frequently when I'm taking a shower I sing it with as much power and emotion as I can. It shakes me up every time.

I was once asked to speak at a luncheon. Taking my life in my hands, I announced I was going to sing our national anthem--all four stanzas.

This was greeted with loud groans. One man closed the door to the kitchen, where the noise of dishes and cutlery was loud and distracting. 'Thanks, Herb,' I said.

'That's all right,' he said. 'It was at the request of the kitchen staff.'

I explained the background of the anthem and then sang all four stanzas.

Let me tell you, those people had never heard it before--or had never really listened. I got a standing ovation. But it was not me; it was the anthem.

More recently, while conducting a seminar, I told my students the story of the anthem and sang all four stanzas. Again there was a wild ovation and prolonged applause. And again, it was the anthem and not me.

So now let me tell you how it came to be written.

In 1812, the United States went to war with Great Britain, primarily over freedom of the seas. We were in the right. For two years, we held off the British, even though we were still a rather weak country. Great Britain was in a life and death struggle with Napoleon. In fact, just as the United States declared war, Napoleon marched off to invade Russia. If he won, as everyone expected, he would control Europe, and Great Britain would be isolated. It was no time for her to be involved in an American war.

At first, our seamen proved better than the British. After we won a battle on Lake Erie in 1813, the American commander, Oliver Hazard Perry, sent the message "We have met the enemy and they are ours." However, the weight of the British navy beat down our ships eventually. New England, hard-hit by a tightening blockade, threatened secession.

Meanwhile, Napoleon was beaten in Russia and in 1814 was forced to abdicate. Great Britain now turned its attention to the United States, launching a three-pronged attack. The northern prong was to come down Lake Champlain toward New York and seize parts of New England. The southern prong was to go up the Mississippi, take New Orleans and paralyze the west. The central prong was to head for the mid-Atlantic states and then attack Baltimore, the greatest port south of New York. If Baltimore was taken, the nation, which still hugged the Atlantic coast, could be split in two. The fate of the United States, then, rested to a large extent on the success or failure of the central prong.

The British reached the American coast, and on August 24, 1814, took Washington, D. C. Then they moved up the Chesapeake Bay toward Baltimore. On September 12, they arrived and found 1000 men in Fort McHenry, whose guns controlled the harbor. If the British wished to take Baltimore, they would have to take the fort.

On one of the British ships was an aged physician, William Beanes, who had been arrested in Maryland and brought along as a prisoner. Francis Scott Key, a lawyer and friend of the physician, had come to the ship to negotiate his release. The British captain was willing, but the two Americans would have to wait. It was now the night of September 13, and the bombardment of Fort McHenry was about to start.

As twilight deepened, Key and Beanes saw the American flag flying over Fort McHenry. Through the night, they heard bombs bursting and saw the red glare of rockets. They knew the fort was resisting and the American flag was still flying. But toward morning the bombardment ceased, and a dread silence fell. Either Fort McHenry had surrendered and the British flag flew above it, or the bombardment had failed and the American flag still flew.

As dawn began to brighten the eastern sky, Key and Beanes stared out at the fort, tyring to see which flag flew over it. He and the physician must have asked each other over and over, "Can you see the flag?"

After it was all finished, Key wrote a four stanza poem telling the events of the night. Called "The Defence of Fort M'Henry," it was published in newspapers and swept the nation. Someone noted that the words fit an old English tune called "To Anacreon in Heaven" --a difficult melody with an uncomfortably large vocal range. For obvious reasons, Key's work became known as "The Star Spangled Banner," and in 1931 Congress declared it the official anthem of the United States.

Now that you know the story, here are the words. Presumably, the old doctor is speaking. This is what he asks Key

Oh! say, can you see, by the dawn's early light,
W hat so proudly we hailed at the twilight's last gleaming?
Whose broad stripes and bright stars, through the perilous fight,
O'er the ramparts we watched were so gallantly streaming?

And the rocket's red glare, the bombs bursting in air,
Gave proof thro' the night that our flag was still there.
Oh! say, does that star-spangled banner yet wave,
O'er the land of the free and the home of the brave?

"Ramparts," in case you don't know, are the protective walls or other elevations that surround a fort. The first stanza asks a question. The second gives an answer

On the shore, dimly seen thro' the mist of the deep,
Where the foe's haughty host in dread silence reposes,
What is that which the breeze, o'er the towering steep.
As it fitfully blows, half conceals, half discloses?

Now it catches the gleam of the morning's first beam,
In full glory reflected, now shines on the stream
'Tis the star-spangled banner. Oh! long may it wave
O'er the land of the free and the home of the brave!



"The towering steep" is again, the ramparts. The bombardment has failed, and the British can do nothing more but sail away, their mission a failure.

In the third stanza, I feel Key allows himself to gloat over the American triumph. In the aftermath of the bombardment, Key probably was in no mood to act otherwise.

During World War II, when the British were our staunchest allies, this third stanza was not sung. However, I know it, so here it is

And where is that band who so vauntingly swore
That the havoc of war and the battle's confusion
A home and a country should leave us no more?
Their blood has washed out their foul footstep's pollution.

No refuge could save the hireling and slave
From the terror of flight, or the gloom of the grave,
And the star-spangled banner in triumph doth wave
O'er the land of the free and the home of the brave.



The fourth stanza, a pious hope for the future, should be sung more slowly than the other three and with even deeper feeling.

Oh! thus be it ever, when freemen shall stand
Between their loved homes and the war's desolation,
Blest with vict'ry and peace, may the Heav'n - rescued land
Praise the Pow'r that hath made and preserved us a nation.

Then conquer we must, for our cause is just,
And this be our motto--"In God is our trust."
And the star-spangled banner in triumph doth wave
O'er the land of the free and the home of the brave.

I hope you will look at the national anthem with new eyes. Listen to it, the next time you have a chance, with new ears.

And don't let them ever take it away.

--Isaac Asimov, March 1991