Friday, December 19, 2003

Padilla vs Rumsfeld

Prof Volokh writes: The Court will agree with the dissenting judge, and hold both that the President had Congressional authorization here, and that Padilla was entitled to a civilian court hearing on whether he was indeed an enemy combatant.

Is this because he was arrested in the ZI (Zone of the Interior) instead of Afghanistan or Iraq?  Presumably you would not have required a status hearing for the 210,000 US citizens detained during the American Civil War (because they were Confederate Soldiers).   I assume that some of those POWs were arrested off the battlefield by civilians when attempting to escape and evade after a defeat.

The court seemed to establish a bright line between a foreign battlefield and ORD (where Padilla was arrested).  Is that bright line sustainable when 70%+ of the combat casualties suffered in this war were suffered in Zip Code 10048 one mile from where I'm sitting right now?  Isn't NYC a battlefield in this war?  And isn't the civilian air transportation system (including ORD) a battlefield? narcing out its customers

On Mon, 8 Dec 2003, [the famous] Tim May wrote:

> It happened in one of the "movies" groups (rec.arts.current-movies),
> when the thread was on DVD copy protection and the (claimed) illegality
> of making DVDs of movies.
> I explained how I was cheerfully making an average of a DVD a day of my
> favorite current movies.
> A couple of "nyms" went ballistic and foamed that they had forwarded my
> "admissions" to the RIAA and how I would face civil penalties and jail
> time, oh my!
> Then one of them claimed he had arranged to have my account yanked, for
> "violation of the DMCA." He claimed he had sent copies of my "criminal"
> admissions to, to the RIAA, to "law enforcement" (shudder!),
> and so on.

I gather that the denizens of have yet to read the Betamax
case. Perhaps they should expand their reading before they opine on the
state of IP law.

This is one of several times that the readers of Tim's posts have reported
him to the authorities. I recall the Santa Cruz sheriffs's office call of
the early '90s occasioned by a simple admission that Tim legally possessed
weapons at home.

I'm constantly amazed by the things that people think are illegal that

Reporting people to the authorities is such an impolite thing to do. In a
less enlightened era it would have led to an unfortunate breach of the
peace. If you have a problem with someone's behavior speak to him nicely,
first. And make damned sure that he's doing something wrong before you

Remember -- "Since Sodomy is a Virtue, can anything be a Vice?"

Friday, December 12, 2003

Leviticus and the Law

Jim Davila fisks David Klinghoffer's Beliefnet article on Leviticus and homosexuality.

What bothers me is his arguing for a political goal on the basis of assumptions many citizens of the polity don't share...

He seems to be saying that, not the whole Mosaic law, but specific parts of it that he has seized on (using poor and inconsistent exegesis even on his own terms - see above) are so important to God that if we don't follow them we can expect the downfall of our civilization: God will "disgorge" us. The implication is that Americans must make - or refrain from making - their laws on the basis of Klinghoffer's version of biblical morality and his beliefs about biblical authority or else they're doomed. The argument isn't internally consistent in the first place and it doesn't work for anyone who doesn't share his religious presuppositions. It amounts to wanting the state to make political decisions on the basis of a narrow interpretation of a particular scripture, which strikes me as a very bad idea.

Mr. Klinghoffer, if you want to convince anyone who doesn't share your starting assumptions, you need to try again.

One might wonder if Davila would make the same argument against Marxists or Republicans who base their political arguments on premises most people don't share or indeed anyone else. Aren't all arguments made from presuppositions everyone in the polity doesn't share or else there would be no argument.

As for the application of parts of Mosaic law and not others (no on sodomy, yes on eating unclean animals) this is long established Christian Theology. See for example Article 7 of the Anglican 39 Articles of Religion:
VII. Of the Old Testament.
THE Old Testament is not contrary to the New; for both in the Old and New Testament everlasting life is offered to mankind by Christ, who is the only Mediator between God and man, being both God and man. Wherefore there are not to be heard which feign that the old fathers did look only for transitory promises. Although the law given from God by Moses, as touching ceremonies and rites, do not bind Christian men, nor the civil precepts thereof ought of necessity to be received in any commonwealth; yet, notwithstanding, no Christian man whatsoever is free from the obedience of the commandments which are called moral.

Pretty standard stuff. As is Klinghoffer's belief that chunks of Jewish Ceremonial and Civil Law is in suspense pending the rebuilding of the temple. One cannot offer sacrifices in a building that doesn't exist.

Religious believers are just like everyone else. They get to use their beliefs for political arguments just like communists, environmentalists, or others.

And unless one spends a lot of time attacking almost everyone for making stupid arguments based on personal assumptions, to concentrate on religious believers suggests unwarranted discrimination. There is a thread of belief on the Left (which I don't know if Davila shares) holding that religious beliefs have little or no place in politics or governance. But they should actually be treated like any other beliefs.

Monday, December 08, 2003

"Historically driver's license prove(s) citizenship"

U.S. may have to rethink ID cards

By Shaun Waterman
UPI Homeland and National Security Editor
Published 12/1/2003 5:37 PM

WASHINGTON, Dec. 1 (UPI) -- A senior homeland security official said Monday that if states continue to issue driver's licenses to undocumented immigrants, the country will have to re-think the way licenses are used as de facto identity cards by government and the private sector.

"Historically, we've looked at it that (applicants for a driver's license) ought to be able to prove citizenship, because we've relied upon those driver's licenses," Homeland Security Administration Undersecretary for Border and Transportation Asa Hutchinson told reporters. "If the states are going to change the historical context and say they don't need citizenship ... then we have to change our whole reliance upon them."

I don't know what history Asa grew up in.  I remember a history in which licenses were issued in many states by AAA offices without proof of anything.  In which they were merely a form of taxation of drivers.  Then ID started to be required to prove age.  Citizenship was never an issue.  Then they started testing drivers for driving skills -- again, citizenship was not an issue.  Finally they started to require ID to get ID and some states required citizenship or legal residence.  I know for a fact that as recently as 20 years ago California didn't require citizenship for DLs since I helped an Iranian tourist get a license.  They wanted proof of age and identity.  Her passport worked fine.

The citizenship requirement (which has never been universal) is a recent innovation.  One cannot use tradition to justify it.  It is not a tradition.  It's merely another example (as with the SS#) of a system devised for one purpose (paying for highways) being mangled to serve another purpose (security).  And all because our rulers lack the courage to advocate internal passports.  They should be chicken of course because internal passports would be resisted.

Wednesday, December 03, 2003

'Gay' as a bad wurd

Eugene Volokh on school behavioral intervention for talking about homosexuality:
"Marcus decided to explain to another child in his group that his mom is gay. He told the other child that gay is when a girl likes a girl. This kind of discussion is not acceptable in my room. I feel that parents should explain things of this nature to their own children in their own way."

I think, though, that to fully understand this, you need to look at the forms themselves, which the ACLU has put up here and here. It's just shocking, seeing the words there, not just in the teacher's own writing, but worst of all in the poor little boy's own (obviously prompted by the teacher). They can think whatever they please about homosexuality -- but what kind of schoolteacher and assistant principal would take this out on a seven-year-old, for heaven's sake? Utterly shameful.

Now you know how a Southern Baptist child feels in a New York City public school. Lafayette is the "Capital of Acadiana" and full of Cajuns and Creoles who have their own "cultural heritage".

The incident is a good argument against government schools but doesn't prove much else.

America's government schools are much more likely to preach against and punish Christian children or conservative children than the children of homosexuals. Banning religious expression by children, teaching earth worship, promoting left-wing political letter writing by children, teaching left-wing economics goes on every day in schools throughout the US without causing much negative reaction.

Why is all of that worse than this?

Friday, August 29, 2003

Separation of Church and Times?

Good news for Christians -- He lives!

Today's New York Times confirms the Historicity of Jesus on the front page no less (registration required):

Jerusalem Holy Site a Tense Crossroads Again


...Known to Jews as the Temple Mount and to Muslims as the Noble Sanctuary, the holy site had been closed to non-Muslims since September 2000, when Ariel Sharon, then a candidate for the post of prime minister he now holds, paid a visit there in the company of hundreds of armed policemen.

That visit, and the riots that ensued, provided what Palestinians consider the provocation and Israelis consider the pretext for the Palestinians' uprising, the Aksa Intifada. It is named after the mosque on the 35-acre plaza, which is framed by imposing stone walls built by Herod the Great in the decades before Jesus walked there....

Fox Searchlight Pictures: Thirteen

So tell me. Does a photo of two young ladies showing their tounge studs
encourage movie patronage? I'm sure that their great dedication to
performing fellatio on men (to the extent of body modification) would be
interesting in a clinical setting; but would it in an entertainment setting?

Religious Numerology

Has anyone noticed that the Alabama Ten Commandments monument weighs the
same number in pounds as there are feet in a mile -- 5,280 in both
cases. Does this mean anything?

Thursday, August 21, 2003

Jury of One's Peers

Eugene Volokh on a Jury of One's Peers:
Jury of one's peers: One hears a lot about how people are entitled to "a jury of their peers," and how this-and-such trial is unfair because the jurors weren't really the defendant's peers in some significant way (race, class, or what have you). What does the law really say about the right to trial by jury of one's peers?

     Well, U.S. law actually uses this phrase pretty rarely -- it doesn't appear in the U.S. Constitution, Bill of Rights, or statutes -- and for good reason. In England, the phrase apparently referred to a right of nobles to be generally tried by nobles, and commoners by commoners.

Dan Klerman, who teaches law at USC and who is an expert on (among other things) English legal history, puts it this way, ":Basically everyone got jurors from the same pool, except members of the House of Lords ("peers"), who were tried by the House of Lords itself."

The concept does make for great drama in Dorothy L. Sayers' novel Clouds of Witness.  Here, her detective - Lord Peter Wimsey - defends his brother - The Duke of Denver - who has been accused of murder and faces a trial in the House of Lords.

Friday, August 08, 2003

TWIC Cards

MAXIMUS Awarded $3.8 Million Smart Card Project by the U.S. Transportation Security Administration
RESTON, Va.--(BUSINESS WIRE)--May 9, 2003--The U.S. Transportation Security Administration (TSA) has awarded MAXIMUS (NYSE:MMS) a five-month, $3.8 million contract to assist TSA in field testing various technologies that will lead to a common and universally-recognized Transportation Worker Identification Credential (TWIC) that could potentially be used by 12 million transportation workers at seaports, airports, and land transportation hubs.

Tuesday, August 05, 2003

Radicals Pleading Guilty

Glenn Reynolds on the Sherman Austin case:
You also see in this case the way in which threats of "terrorism" are allowing prosecutors to extract plea bargains in dubious cases. One consequence is that when the Justice Department gets a plea bargain, you can't automatically assume that it's proof the underlying case was especially good, just that the accused was afraid to roll the dice.

You can't protect cowardly radicals from pleading. This happens a lot in political cases. See the case of Jim Bell or the case of Michael Milkin or the case of Bill Gates.

In these political cases, it's quite common for the defendants to plead and in some cases get longer sentences than they would have got with a straight conviction.

The "Right to Discriminate"

David Bernstein on The Volokh Conspiracy
Hmm. I don't know of anyone in the Federalist Society orbit who advocates a constitutional right to discriminate, as such. Richard Epstein advocates a constitutional right to liberty of contract, a right that would include the ability to discriminate, among many other things. Eugene has vigorously argued that much of the "harassment" part of antidiscrimination law conflicts with, and is a violation of, the First Amendment. And my forthcoming book (which I know Judge Calabresi has seen, and I hope got his attention), argues that the scope of antidiscrimination law must be limited so that it does not conflict with vigorous protection of the constitutional rights to freedom of speech, free exercise of religion, expressive association, and the right to petition government. But none of this is the same as supporting a "right to discriminate."

I don't know why Prof Bernstein is hiding the fact that libertarians believe that enactments such as the Civil Rights Act of 1964 are major human rights violations. That's certainly what I argued back in 1964 during a 7th grade class debate. I think that those who look to the Constitution for validation of this view (rather than to Natural Law) could point to the 5th, 9th, 10th, & 14th Amendments; the Contracts Clause; and the principle of Substantive Due Process.

Indeed, since discrimination is a fundamental aspect of the application of human intelligence and that of the lesser creatures (this is food, that is danger); genuine outlawing of discrimination would be madness.

I must admit, for example, that I practiced many forms of invidious discrimination in the selection of my wife.

Federal Protections and Responsibilities

Sign the Petition ||
There are more than 1,000 federal protections and responsibilities denied to gay, lesbian, bisexual and transgender couples because they cannot legally marry in this country.

Whoa! If there are that many federal protections and responsibilities the Feds have way too much power. They're mucking about with too many things they shouldn't be. Personally, I try and avoid as many federal protections and responsibilities as I possibly can.

Monday, August 04, 2003

The Gods of the Copybook Headings

In honor of the 74th General Convention of the Domestic and Foreign
Mission Society of the Protestant Episcopal Church in the USA:

The Gods of the Copybook Headings

by Rudyard Kipling

I PASS through my incarnations in every age and race,
I make my proper prostrations to the Gods of the Market Place.
Peering through reverent fingers I watch them flourish and fall,
And the Gods of the Copybook Headings, I notice, outlast them all.

We were living in trees when they met us. They showed us each in turn
That Water would certainly wet us, as Fire would certainly burn:
But we found them lacking in Uplift, Vision and Breadth of Mind,
So we left them to teach the Gorillas while we followed the March of

We moved as the Spirit listed. They never altered their pace,
Being neither cloud nor wind-borne like the Gods of the Market Place,
But they always caught up with our progress, and presently word would come
That a tribe had been wiped off its icefield, or the lights had gone out
in Rome.

With the Hopes that our World is built on they were utterly out of touch,
They denied that the Moon was Stilton; they denied she was even Dutch;
They denied that Wishes were Horses; they denied that a Pig had Wings;
So we worshipped the Gods of the Market Who promised these beautiful things.

When the Cambrian measures were forming, They promised perpetual peace.
They swore, if we gave them our weapons, that the wars of the tribes
would cease.
But when we disarmed They sold us and delivered us bound to our foe,
And the Gods of the Copybook Headings said: "Stick to the Devil you know."

On the first Feminian Sandstones we were promised the Fuller Life
(Which started by loving our neighbour and ended by loving his wife)
Till our women had no more children and the men lost reason and faith,
And the Gods of the Copybook Headings said: "The Wages of Sin is Death."

In the Carboniferous Epoch we were promised abundance for all,
By robbing selected Peter to pay for collective Paul;
But, though we had plenty of money, there was nothing our money could buy,
And the Gods of the Copybook Headings said: "If you don't work you die."

Then the Gods of the Market tumbled, and their smooth-tongued wizards
And the hearts of the meanest were humbled and began to believe it was true
That All is not Gold that Glitters, and Two and Two make Four
And the Gods of the Copybook Headings limped up to explain it once more.

As it will be in the future, it was at the birth of Man
There are only four things certain since Social Progress began.
That the Dog returns to his Vomit and the Sow returns to her Mire,
And the burnt Fool's bandaged finger goes wabbling back to the Fire;

And that after this is accomplished, and the brave new world begins
When all men are paid for existing and no man must pay for his sins,
As surely as Water will wet us, as surely as Fire will bum,
The Gods of the Copybook Headings with terror and slaughter return.

Unregulated Surgery

I'm shocked and appalled that the Feds are not protecting us from rogue surgeons.  From a New York Times feature on how to develop a new surgical procedure:

Surgeons who want to try something new have a great deal of leeway, because new operations, unlike new drugs, are not regulated by the government. As a result, many surgical techniques have simply been brought into practice by doctors who invented them, started using them and then taught them to colleagues.

Thursday, July 24, 2003

Government Services

As an inveterate reader of the popular press, I understand that many
people approach public institutions and request services. I find this
hard to believe.

I approach public institutions rarely and resent most of those few
contacts which are forced in some fashion.

I suppose the Post Office is the only public institution I regularly

Every four years, I apply for a driver's license (whether I need one or

Every year I register my vehicles (whether they need it or not).

When I cross international borders, I chat with La Migra and Customs.

Every 10 years I renew my passport.

I drive on "public streets and roads" when that it the only way to get

I consciously avoid seeking out the services of peace officers, fire
fighters, and public hospitals.

I would no more send my child to a government school than I would mail
that child to California via Parcel Post.

That's about it.

So why do others feel the need to approach government with their begging
bowls out? I don't get it.


The Book

The Movie

The PBS Documentary

The Race (Seabiscuit vs War Admiral in Real Audio)

The Story of Seabiscuit, 1949 (starring Shirley Temple)

New Legal Argument

Since the Supremes have spoken on the topic of Sodomy, they have birthed a brand new legal argument.

In future conflicts over public policy, whether practical or theoretical, anyone who cares to will be able to say:

Well the Supremes have elevated [insert Anglo-Saxon phrase for anal intercourse here] to the status of a Constitutional right; so how can you possibly tell me that I can't do X?

Very convenient! The opposition will have to argue that X is more worthy of regulation than [insert Anglo-Saxon phrase for anal intercourse here]. Public interactions will become livlier.

Tuesday, July 22, 2003

Preview of The Order

Saw a preview of The Order last night.  Usual Vatican-centered conspiracy of rogue priests seeking world domination plot.  Behind the disguise of good hides the soul of evil.  Seen it all before.  I've got a hot plot idea for Hollywood.  How about a conspiracy  of Marxists to achieve world domination under the guise of helping the downtrodden.  Seems unlikely but stranger things have happened.

At that the preview was better than the feature The League of Extraordinary Gentlemen.  Never see a film "based on the graphic novel by ...".  And when even the hoity toity Hollywood Reporter observes that the League "includes no gentlemen and one questionable lady" you know you've got trouble.

I don't like SF or Fantasy sans logic, plot, and respect for just a few physical laws.

Tuesday, July 15, 2003

DIA Beacon

The Volokh Conspiracy's Tyler Cowen on the new DIA museum in Beacon, New York.

Let's not argue about the art, the point is simpler than that. If a large number of intelligent viewers (listeners, etc.) find that the stuff moves them, in a deep and lasting way, doesn't it have to be good? If not objectively good (whatever that means), at least 'pluralistically or relativistically good enough not to be knocked down in objective terms' good.

Esthetics is, of course, a branch of philosophy.  There are a host of other philosophies out there.  One would not generally say, for example:

"Let's not argue about the politics, the point is simpler than that. If a large number of intelligent people find that Marxism moves them, in a deep and lasting way, doesn't it have to be good? If not objectively good (whatever that means), at least "pluralistically or relativistically good enough not to be knocked down in objective terms" good."

One still has to defend one's philosophical or esthetic choices straight up rather than simply counting noses.

I listened to the WNYC piece on the new museum and I thought that I might preder the aritechture to the art inside.  I'll have to see.


Wired News: Gaming the Safeway Club Card

Libertarians who have been concerned about those who provide false information to obtain shopper's discount cards (or swap the cards or barcodes after obtaining them) can relax.  At least as far as Safeway is concerned, there's no contractual breach.  A spokesman with apparent authority to bind the Corporation has informed us that Safeway doesn't mind how creative its card users get:,1294,59589,00.html

For its part, Safeway isn't concerned about Cockerham's project and shrugs off any Big Brother accusations. "It's an odd sort of prank with not any significant impact at all on the operation of our card business," says Safeway spokesman Brian Dowling. "We work hard to protect the privacy of our customers, and don't believe there is any sound rationale behind what (Cockerham's) doing. But he can do whatever he wants."

One can assume (in the absence of contrary evidence) that other companies share the same attitude towards their customers.  So I don't want to hear any more lectures about how we have to provide truthful info on card applications or forgo the discounts.

Tuesday, June 17, 2003

Airlines use Soundex to match passengers with terrorists

The SF Chronicle reports that airline res systems use an ancient name indexing system that guarantees masses of false positives.

No-fly list ensnares innocent travelers


Many airlines rely on name-searching software derived from "Soundex," a 120- year-old indexing system first used in the 1880 U.S. census. It was designed to help census clerks quickly index and retrieve sound-alike surnames with different spellings -- like "Rogers" and "Rodgers" or "Somers" and "Summers" -- that would be scattered in an alphabetical list.

Soundex gives each name a key using its first letter and dropping the vowels and giving number codes to similar-sounding vowels (like "S" and "C"). The system gives the same code, L350, for "Laden" and all similar-sounding names: Lydon, Lawton, and Leedham."

Soundex is well known these days to genealogical hobbyists. Here is an article laying out the Soundex coding scheme:

"Every soundex code consists of a letter and three numbers, such as W-252. The letter is always the first letter of the surname. "

The Soundex code for my last name is F-624.

Here is an automatic Soundex calculator.

It was a great system when one had to index long lists of names by hand. It was designed to group large sets of names together to reduce workload. It's madness to use it in a modern computer system to check for matches with the names of terrorists.

Friday, June 13, 2003

Public Employee Productivity

Star Search
But JDAMs weren't the brainchild of crack scientists toiling in some defense contractor's generously funded skunk works. The person most responsible for their development was a 57-year-old Department of Defense program manager named Terry Little. ..Smart bombs, it turns out, require smart people.

Course if the Feds would let all of us play with explosives, maybe we too could come up with more efficient ways to kill people. For free. Open Source munitions anyone?

Thursday, June 05, 2003

Tuesday, June 03, 2003

Thinking about the liquidity trap

Worried about that old Devil Liquidity Trap? Want to stimulate the economy without cutting taxes, increasing spending, or cutting interest rates? There is a 4th way. And best of all it's free.

Radical Derugulation. If you want more economic activity, just stop outlawing it. Every reg from NYCs rent control, to every town's taxi monopoly, to land use controls acts to outlaw some economic activities. With the regs in place, some economic activity that would otherwise have happened won't. You want more economic activity -- then legaliz it.

Thursday, May 29, 2003

Sins of Freedom

Is there no limit to the crimes for which globalisation must be held to account? Not only does it oppress the consumers of the rich West, undermine the welfare state, emasculate democracy, despoil the environment, and entrench poverty in the third world; we knew all that already. In addition, we now find, it is a utopian scheme for global ideological conquest—like Stalinism, minus the compassion. Truly, the idea that people should be left free to trade with each other in peace must be the most wicked and dangerous doctrine ever devised.
--The Case for Globalization from the Leader to the Economist's Survey of Globalization published September 29, 2001.

Tuesday, May 27, 2003

Religious vs Secular Expression in Schools

Religious vs Secular Expression in Schools
[Eugene Volokh, 8:50 AM]
O'REILLY FACTOR: If all goes as planned -- and in the news biz, it's impossible to predict -- I should be the O'Reilly Factor today, defending the Fourth Circuit's decision holding that the Virginia Military Institute supper prayer violated the Establishment Clause.

Saw Eugene's performance and it was good in spite of difficulties getting O'Reilly to understand the difference between official and unofficial prayer. I'll have to read the case because I wondered how they handled the age question. I thought prayer restrictions only applied in secondary and primary schools and not tertiary schools (college). After all Congress is allowed to do it.

I also thought I'd take the opportunity to complain once again about the jurisprudence of the issue. The courts in these case are saying that official prayers are banned but anything else goes. This means that state schools are perfectly free to have their students sing Internationale, the Horst Wessel Song, the Earth Scout's Induction Oath to Mother Earth, etc. So government schools are free to form Hitler Youth brigades but can't say so much as "2003 A.D." This doesn't seem to make a great deal of sense.

Not that I think anyone should send their kids to government schools so it's a moot point.

Vast Sunni Conspiracy

You can learn something from (or while) watching cable tv.

Two weekends ago, I was watching an interview with a foreign policy wonk from Brookings on Fox News. He mentioned the problems the Iranians were having with Taliban refugees hiding out with the Baluchs in north-eastern Iran. They were hiding out there because they were all Sunnis.

It then hit me -- our true Islamic foes are all Sunnis. The Taliban, Osama, The Saudis, various Egyptians, and Saddamm, are all Sunni. So maybe we should form a strange alliance with our Shiite friends against the Sunnis.

A Dip in the Manperson Pool

Many years ago during the flowering of the Women's Movement, a notice of some sort was posted on my law school bulletin board.

I forget what it was about but it contained a fascinating word construct -- manperson pool.

I'm assuming that the author meant to create the word personpower, instead, to avoid the sexist horrors of the word manpower.

Failure was no doubt caused by lack of contemplation. A common failure of the coiners of new words (other than words like technoptimist, of course).

Monday, May 26, 2003

Important anniversary today!

Many will fail to remember that today is the second anniversary of George Bush's replacement of Bill Clinton at the Arlington Tomb of the Unkowns wreath-laying ceremony after eight horrific years of having to watch him.

Thursday, May 22, 2003

Ministry of Truth at the PO

I love these little historical lies we are always being told.

USPS Notice 107, December 1998

Title - Some Things Were Never Meant to be Mailed

Included on the list -- ammunition.

And yet tons of ammunition was mailed over the years with perfect legality via the PO. What they really mean is that their current employees are unable to safely handle such cargoes so they can't accept it any more. But they need the security of a false historical claim to mask their contemporary incompetence.

Tuesday, May 20, 2003

Judicial Theology

It's been a while since I read the major Conscription/Conscientious Objector case from the Supremes -- UNITED STATES v. SEEGER. I had forgotten the Court's use of then modern liberal theology to decide that conscientious objectors to military service didn't have to believe in God but could get away with meeting the following test: "[D]oes the claimed belief occupy the same place in the life of the objector as an orthodox belief in God holds in the life of one clearly qualified for exemption?"

From Justice Clark's opinion:

4. Moreover, we believe this construction embraces the ever-broadening understanding of the modern religious community. The eminent Protestant theologian, Dr. Paul Tillich, whose views the Government concedes would come within the statute, identifies God not as a projection "out there" or beyond the skies but as the ground of our very being. The Court of Appeals stated in No. 51 that Jakobson's views "parallel [those of] this eminent theologian rather strikingly." 325 F.2d, at 415-416. In his book, Systematic Theology, Dr. Tillich says:
"I have written of the God above the God of theism . . . . In such a state [of self-affirmation] the God of both religious and theological language disappears. But something remains, namely, the seriousness of that doubt in which meaning within meaninglessness is affirmed. The source of this affirmation of meaning within meaninglessness, of certitude within doubt, is not the God of traditional theism but the `God above God,' the power of being, which works through those who have no name for it, not even the name God." II Systematic Theology 12 (1957). [380 U.S. 163, 181]
Another eminent cleric, the Bishop of Woolwich, John A. T. Robinson, in his book, Honest To God (1963), states:
"The Bible speaks of a God `up there.' No doubt its picture of a three-decker universe, of `the heaven above, the earth beneath and the waters under the earth,' was once taken quite literally. . . . ." At 11. "[Later] in place of a God who is literally or physically `up there' we have accepted, as part of our mental furniture, a God who is spiritually or metaphysically `out there.' . . . But now it seems there is no room for him, not merely in the inn, but in the entire universe: for there are no vacant places left. In reality, of course, our new view of the universe has made not the slightest difference. . . ." At 13-14.

"But the idea of a God spiritually or metaphysically `out there' dies very much harder. Indeed, most people would be seriously disturbed by the thought that it should need to die at all. For it is their God, and they have nothing to put in its place. . . . Every one of us lives with some mental picture of a God `out there,' a God who `exists' above and beyond the world he made, a God `to' whom we pray and to whom we `go' when we die." At 14.

"But the signs are that we are reaching the point at which the whole conception of a God `out there,' which has served us so well since the collapse of the three-decker universe, is itself becoming more of a hindrance than a help." At 15-16. (Emphasis in original.)

The Schema of the recent Ecumenical Council included a most significant declaration on religion: 4 [380 U.S. 163, 182]

"The community of all peoples is one. One is their origin, for God made the entire human race live on all the face of the earth. One, too, is their ultimate end, God. Men expect from the various religions answers to the riddles of the human condition: What is man? What is the meaning and purpose of our lives? What is the moral good and what is sin? What are death, judgment, and retribution after death?

. . . . .

"Ever since primordial days, numerous peoples have had a certain perception of that hidden power which hovers over the course of things and over the events that make up the lives of men; some have even come to know of a Supreme Being and Father. Religions in an advanced culture have been able to use more refined concepts and a more developed language in their struggle for an answer to man's religious questions.

. . . . .

"Nothing that is true and holy in these religions is scorned by the Catholic Church. Ceaselessly the Church proclaims Christ, `the Way, the Truth, and the Life,' in whom God reconciled all things to Himself. The Church regards with sincere reverence those ways of action and of life, precepts and teachings which, although they differ from the ones she sets forth, reflect nonetheless a ray of that Truth which enlightens all men."

Dr. David Saville Muzzey, a leader in the Ethical Culture Movement, states in his book, Ethics As a Religion (1951), that "[e]verybody except the avowed atheists (and they are comparatively few) believes in some kind of God," and that "The proper question to ask, therefore, is [380 U.S. 163, 183] not the futile one, Do you believe in God? but rather, What kind of God do you believe in?" Id., at 86-87. Dr. Muzzey attempts to answer that question:

"Instead of positing a personal God, whose existence man can neither prove nor disprove, the ethical concept is founded on human experience. It is anthropocentric, not theocentric. Religion, for all the various definitions that have been given of it, must surely mean the devotion of man to the highest ideal that he can conceive. And that ideal is a community of spirits in which the latent moral potentialities of men shall have been elicited by their reciprocal endeavors to cultivate the best in their fellow men. What ultimate reality is we do not know; but we have the faith that it expresses itself in the human world as the power which inspires in men moral purpose." At 95.

"Thus the `God' that we love is not the figure on the great white throne, but the perfect pattern, envisioned by faith, of humanity as it should be, purged of the evil elements which retard its progress toward `the knowledge, love and practice of the right.'" At 98.

These are but a few of the views that comprise the broad spectrum of religious beliefs found among us. But they demonstrate very clearly the diverse manners in which beliefs, equally paramount in the lives of their possessors, may be articulated. They further reveal the difficulties inherent in placing too narrow a construction on the provisions of 6 (j) and thereby lend conclusive support to the construction which we today find that Congress intended.

5. We recognize the difficulties that have always faced the trier of fact in these cases. We hope that the test that we lay down proves less onerous. The examiner is furnished [380 U.S. 163, 184] a standard that permits consideration of criteria with which he has had considerable experience. While the applicant's words may differ, the test is simple of application. It is essentially an objective one, namely, does the claimed belief occupy the same place in the life of the objector as an orthodox belief in God holds in the life of one clearly qualified for exemption?

I guess it will be OK then to quote Robert P. George when arguing future cases on gay marriage.

Thursday, May 15, 2003

Wireless Internet Cri de Coeur

Way back in 2000, I had a (circa) 128kbps wireless internet connection for an all-you-can-eat price of about $70 a month. It was the late, lamented, Ricochet service which is back in operation in a few cities after being bought for a pittance after Metricom's bankruptcy (August 8, 2001). One would think that after three years I would easily be able to buy an even faster, more widely spread, and more convenient wireless internet service -- but one would be wrong.

Every time I've checked since August 8, 2001, my Ricochet modem shows 3 or 4 poletop radios still going strong. Still sucking juice. Someone could easily have made $1470 from me since then just by enabling my connection and charging me $70/month (I had two accounts). I still look at the poletop units around my office and at the end of the street where I live. But I can't use them.

Current services from the major wireless voice companies are expensive, slow, and inflexible. They expect you to use them on your phone. All of the wireless modems are PC Card devices. The thought that you might like to use your desktop machine with a wireless internet service hasn't occurred to anyone. (Ricochet had USB modems available.) The companies don't promote these services and you have to dig deeply even to figure out what they are called. One has to hunt around on web sites (usually on the pages targeted at business users) to find anything.

Why can't anyone supply a wireless network that's:

- widespread,
- fast enough (128kbps+),
- cheap enough (>$50/month flat rate),
- easy to use (multiple connection PC card, USB, or Ethernet),
- usable with handheld, laptop, and desktop computers, and
- actually marketed (so people know about it)?

For the benefit of the 2 readers of this blog, and to give me an easy place to click, here are the current names, urls, prices, and speeds(ha!) of the major services. I'm ignoring equipment costs and only listing the monthly cost of the plan that lets you send and receive the most data.

Mobile Internet
$99.99/month for 100MB ($0.0010/KB thereafter) - $49.99/month Unlimited for their Blackberry service

Express Network
$79.99/month Unlimited
Speed - 40kbps -140kbps

T-Mobile Internet
$99.99/month for 200MB ($2.00/MB thereafter)

PCS Vision (PCS Vision for Laptops and PDAs)
$80.00/month Unlimited
Note: You actually have to look at the bottom of this page to get a hint that Sprint offers genuine mobile internet service.

Monday, May 12, 2003

Free Those Vectors!

Re Jacob Levy's latest on the topic:

[John Derbyshire] may not advocate sodomy laws, but his obsessive denigration of gay folks surely rivals that of the most devoted Leviticus-thumper. But still.

Then along comes a clear reminder that there are people it's simply indecent to even be in a broad-tent coalition with, that even in 2003 the most unreconstructed kind of southern racism is still out there. There are bounds of decency to be observed in every political direction; and everyone who hopes to be effective in politics has to engage in complicated and probably-unsatisfactory balancing acts.

Jacob Levy seems to spend a lot of time criticizing people as homophobic or racist. Is this useful politically? Since neither of those views is inconsistent with libertarianism (in the absence of the initiation of force), wouldn't it make more sense to criticize the views of people who believe in things like government schools, taxation, or even vector control districts? Those ideas are inconsistent with human liberty and more dangerous than racism, sexism, bigotry, homophobia, ageism, ad infinitum.

And Prof. Levy replies in a nice long juicy Volokh Conspiracy post:

... [F]irst of all, I don't measure my writing against the standard of whether it's useful politically in some general way. (Useful to whom?)

Second of all, I do think that it *matters* for political effectiveness that one draw some boundaries. ...

Third: extended argument about the rights and wrongs of one or another kind of state action require, well, extended argument. ...

The mainstream conservative movement learned this a long time ago; William Buckley knew that conservatism couldn't be effective without drawing clear lines between itself and, say, the John Birch Society. ...

[P]reserving some bit of shared common ground about decent public discourse has some priority. For similar reasons, procedural norms have a priority in politics that they don't have simply morally. Everyone in politics has an obligation to monitor their own side as well as the other side for rulebreakers, violators of procedures, those who pose some threat to the stability of democratic institutions or to the rule of law, and to take action against such rulebreakers-- ...

Read the whole thing it's worth it.

In the course of quoting my original note, Prof. Levy queried my use of the phrase vector control districts [?? JTL].

I can't tell if the question was "What's a VCD?" or "Why put VCDs on a list with taxes and government schools?"

It was on the list for humorous juxtaposition.

As libertarians, it's important to note the exact design of our chains. A VCD is a local agency that controls disease vectors (rats, skeeters, etc.). It's one of those classic public goods that people are always beating up libertarians about not supplying in their social non-designs.

Later, in a follow-up post Prof Levy discussed his correspondence on the subject:

[Jacob Levy, 9:04 AM]
"Vector control districts": Several people have written in to tell me that "vector control districts" are Californian administrative districts that have as their purpose the controlling of disease vectors, i.e. rats, mosquitoes. Some correspondents thought of them as yet another in the endlessly-proliferating number of pesky, slightly-intrusive, slightly-expensive Californian agencies and levels of government. Others thought their services obvious public goods. My original correspondent, the one who had listed them alongside taxes and state schools, writes: "It was on the list for humorous juxtaposition."

Residential Picketing

Eugene Volokh:

Cities are also constitutionally allowed to bar even peaceful residential picketing (the Supreme Court so held in Frisby v. Schultz (1989), which involved anti-abortion protesters), but to my knowledge Los Angeles doesn't have such an ordinance.

Isn't this misleading?

Doesn't Frisby v. Schultz (1989) just permit ordinances that bar "focused picketing" in front of the target's house. As long as picketers march up and down the block they can't be banned completely.

"We reject this suggestion. Our prior holdings make clear that a public street does not lose its status as a traditional public forum simply because it runs through a residential neighborhood. In Carey v. Brown - which considered a statute similar to the one at issue here, ultimately striking it down as a violation of the Equal Protection Clause because it included an exception for labor picketing - we expressly recognized that "public streets and sidewalks in residential neighborhoods," were "public for[a]." 447 U.S., at 460 -461. This rather ready identification virtually forecloses appellants' argument. See also Perry, supra, at 54-55 (noting that the "key" to Carey "was the presence of a public forum")."


"The First Amendment permits the government to prohibit offensive speech as intrusive when the "captive" audience cannot avoid the objectionable speech. The resident is figuratively, and perhaps literally, trapped within the home, and because of the unique and subtle impact of such picketing is left with no ready means of avoiding the unwanted speech. Thus, the "evil" of targeted residential picketing, "the very presence of an unwelcome visitor at the home," is "created by the medium of expression itself." Accordingly, the Brookfield ordinance's complete ban of that particular medium of expression is narrowly tailored. "

As to your comment:

"To my knowledge Los Angeles doesn't have such an ordinance."

Counter demos and armed householders are self-help options that are easier for targeted individuals to employ than obtaining protective legislation would be.

Friday, May 09, 2003

Modern Sin


I have no objection to Catholicism identifying sodomy as a sin. I'm not Catholic, and it's a mistake for an outsider to critique religious doctrines on the grounds that they insufficiently resemble the principles of a liberal democratic state. On the other hand, the religious basis for a set of political views provides no immunity against their being criticized by non-believers, and indeed invites a new line of inquiry as to whether the line between the civic and the religious is being maintained in the right place and the right way. It's not bigotry to remind a politician of the truth Eugene's been emphasizing in his Ten Commandment posts-- that it's also a mistake to treat the internal doctrines of one's religion as sufficient reason for legislation and coercion, that it's a mistake to criticize the liberal democratic state for insufficiently resembling one's own church.

Of course the "doctrine of the liberal democratic state" is also not a sufficient reason for legislation and coercion. Those who object to the imposition of religious doctrine on the heathen have a point. But they lose that point when they choose to impose their legal regime on non-believers (the faithful).

So if you want persons who hold traditional religious views on sin and proper behavior to do their own heavy lifting instead of using the State to do it for them then you can't outlaw traditional methods of religious moral expression. The Church used to be in charge of domestic relations law, blasphemy, Sabbath keeping, etc. There's no reason that the churches couldn't do it again. I think that the takeover of such areas of law by the nation state during its growth phase was very unfortunate.

But if they are to do so you can't outlaw actions by believers designed to discourage sin which don't initiate force. You can't outlaw picketing of abortion clinics. You can't outlaw positive discrimination in favor of the righteous (the Christian Yellow Pages), economic boycotts of heathens or sinners, and a patriarchal family organization.

So out go antidiscrimination laws (which are major human rights violations in any case). Believers must be free to fire heathens or sinners, refuse to hire them, refuse to rent to them, etc. Picketing can't be punished with RICO suits. Churches must be allowed to defend their buildings and communities from attacks by their enemies. Thus communists or other leftists who attack churches must be held as "outlawed" (unprotected by civil law) while they are on church property. Churches and their members must be able to recognize only marriages which meet their standards and discriminate against those not meeting those standards. Since disfellowship will be their major means of moral promotion, churches and their followers must be allowed to discriminate economically against the heathen and they must be able to forcefully exclude the heathen from their religious services and properties. An independent legal regime of sorts. That status for religious properties has a lot of traditional support.

You must also either end Public Education, or at least compulsory education, or allow believers trapped in that unfortunate system to protect their children from the godless atheistic communism of educators. They must be able to exempt their children from sex education, earth-worship, secular ethics, and much of the rest of the curriculum. Unregulated private schooling and home schooling must be explicitly legalized.

The State can't both fail to protect the rights of traditionalists to lead traditional lives and at the same time prevent them from themselves protecting their right to lead traditional lives.

Thursday, May 08, 2003

Towers' Strength Not Tested for a Fire, Inquiry Suggests

Towers' Strength Not Tested for a Fire, Inquiry Suggests
Federal investigators studying the collapse of the twin towers on Sept. 11, 2001, say they now believe that the Port Authority of New York and New Jersey, the government agency that built the towers, never performed the fundamental tests needed to determine how their innovative structures would perform in a fire.

The preliminary finding, if it holds up, will undermine decades of public assurances by the Port Authority that the twin towers met or exceeded the requirements of New York City's building code, and therefore would be structurally safe in a large fire. The codes are based on tests of each building component in furnaces that subject the structures, and the fireproofing insulation that protects them, to the harsh conditions of a major fire.

"At this point, we don't know why the tests were not done," said Dr. S. Shyam Sunder, who is leading the eight-month-old investigation at the Building and Fire Research Laboratory at the National Institute of Standards and Technology. But Dr. Sunder added, "To the best of our knowledge, they were not done."

The article spends a little time discussing whether or not full scale fire resistance tests were performed on some of the design elements. The answer to this question is "no one knows". They do mention in passing the question of whether the lack of testing contributed to the collapse.

Completely undiscussed are questions like:

- Were full-scale fire tests of building designs standard engineering practice in the 1960s when the WTC was designed?

- Are full-scale fire tests of building designs (not computer simulations) standard engineering practice today?

- If no full-scale tests were done, does that mean that the Towers did not meet NYC fire codes in effect at the time?

- If no full-scale tests were done, does that mean that the Towers' design was dangerous?

- Should the tests have been performed with the originally-specified asbestos insulation in place, with the substitute insulation used on 100% of Tower 2 and 60% of Tower 1, or with modern insulation?

- Can we borrow the Empire State Building to crash a fully-fueled 767 into it to see how a traditionally-designed skyscraper survives the experience?

Wednesday, April 30, 2003

Priority of Taboo Maintenance

Yet More on Gay Marriage
Jacob Levy on Stanley Kurtz of NRO fame:
His [Stanley Kurtz's] panic at the thought of legalized gay marriage has always struck me as absurd. ... It's wrong; and it doesn't even try to make a case for the priority of taboo-maintenance over the moral concerns on the other side.

Traditional sex regulation is not absurd on its face. It was a broad based regulatory scheme that sought to control sexual behavior and channel it into heterosexual child-focussed marriage. Thus fornication, adultery, sodomy, and bigamy were outlawed as was prostitution. Because the authorities recognized that such behaviors were tough to control through the operation of the criminal law because of proof problems, they also banned lewd cohabitation (living in sin) and lascivious carriage (being in a compromising physical position with another) since these were easier to prove.

Now we as moderns may reject their desire to promote marriage and mixed-gender, monogamous-couple, child rearing but it's disingenuous to claim shock at the tradition. It's been around for a long time. Moreover, I can name hundreds (thousands) of modern regulatory inventions that are absurd on their face and represent significant violations of our traditional liberties: smoking bans, stock parking bans, outlawing discrimination against transvestites, requirements that home builders install wide bedroom doors, bans on private ownership of Kevlar vests ad infinitum.

Tuesday, April 29, 2003

Surely this statement by Orin Kerr can't be true:

The 2002 Wiretap Report is now out ... . Keep in mind that the report covers only wiretapping performed in criminal cases, and does not include wiretapping in national security cases. Those numbers are classified.

The Foreign Intelligence Surveillance Act (FISA) wiretap numbers are reported annually. Here's the latest one covering 2001. The Federation of American Scientists (FAS) has a complete set of reports on this page.

Now, wiretaps of communications outside the US aren't under FISA but those conducted in the US are supposed to be.
The Pro Market Party vs the Pro Sodomy Party

As between someone who believes that all non-heterosexual-marital sexual activity ought to be criminalized and someone who does not believe that, there's a difference in kind, one I have trouble commensurating with the tax difference [between Republicans & Democrats].

Casting the Dems as pro privacy, pro protection of intimate relations, and pro sanctity of the home is disingenuous. Any party that claims the right to design your toilets and the width of your bedroom door for you [and imprison you for disobedience] can hardly gain absolution from charges of tyranny by permitting you some forms of sexual intercourse.

Consider a list of things the Democrat Party won't let you do "in the privacy of your own home.":

* Install high-water-volume flush toilets.
* Install narrow residential doors (must be wide enough for crips in chairs).
* Eliminate smoke/CO2 detectors.
* Hire/fire/teach/trade/earn/profess (with other consenting adults) as you please.
* Possess firearms (in many cases).
* Worship with others (zoning).
* Keep your own money and keep your own financial affairs secret.

In fact, the whole panoply of state regulation and taxation extends into the home. If the Feds can design and mandate your toilets, that is certainly "government regulation of an intimate association".

But what about the Democrat Party and issues of sexual behavior. I see little evidence that their position is preferable to the Republican position -- and it's arguably worse. Republicans consist of religious conservatives, BoBos (bourgeois bohemians), and libertarians. Those groups differ in specifics but not even all religious conservatives believe that intimate relations should be controlled by the criminal law. On the other hand, the Democrat Party is pretty monolithic in believing that certain forms of intimate sexual relations should be controlled by government.

Sodomy yes -- Modesty no!

There are many forms of intimate sexual (or gender) behavior that the Dems seek to suppress. Here are a few:

* Patriarchy (note that Patriarchy is a form of gender preference that should logically be protected if other sexual and gender preferences are).
* Modesty
* Sexual Restraint
* Innocence

If you seek to pursue traditional intimate relationships, the Dems will try anything to stop you including criminal punishment. Teachers will attempt to destroy the innocence of your children (if you send them to government schools). The various "Children's Services Divisions" in the states will invade your home and arrest you if you deviate from modern approved child-rearing techniques. (I've often wondered why those who are criticized for spanking or other forms of domestic discipline don't defend themselves by referring to it as Bondage & Discipline.) The law will prevent you from controlling or even knowing about the medical treatment of your children. Massive taxation combined with massive wealth transfers will destroy the ability of a husband to support a wife and children and have the effect of replacing patriarchy with state tyranny.

Thursday, April 24, 2003


A reader writes: What perplexes center-left types like myself . . . who are often sympathetic to Libertarian attitudes on cultural questions is why most Libertarians privilege issues of tax policy and economic regulation on which they are more closely aligned with Republicans over issues of privacy (sexual and otherwise) and free expression

About 15 years ago, I heard a pretty good answer to this question, from a fellow named Charles Fuller. As I recall, he put it more or less this way, of course as a broad generalization: The Republicans want to control my sex life, and the Democrats want to control my economic life; these days -- perhaps not always, but these days -- it's much harder for the government to control my sex life than my economic life, so the Democrats are the bigger threat.

Two quotes from PJ O'Rourke can help with the analysis:

"Republican politicians are better than Democrat politicians because they don't support gun control so if you don't like them you can just shoot them."
[The following is not a quote but a restatement, I can't remember the quote.]
"Republicans want to control my sex and drugs while the Democrats want to control my money which means that they want to control my whole life." [Since money touches on all of life.]

I would also deny your correspondent's claim that the Reps are worse on Free Expressions than the Dems. The Reps have been much friendlier to Free Expression in conflicts over broadcasting deregulation, commercial speech liberalization, corporate political speech, speech on campus, campaign finance, union dues/forced political contributions, and even street picketing (abortion clinics) than have the Dems. And the Republican dominated Supremes are more liberal than the Warren Court on Free Expression.

Wednesday, April 23, 2003


More importantly, the question is not whether incest, or for that matter homosexuality, is "acceptable" to "a higher power above self," or whether one should say about it, "if it feels good, do it." Rather, the question is whether people should be sent to jail for engaging in this behavior. Even if, as a Christian, you believe that (1) being rude to your father or mother, (2) taking the Lord's name in vain, (3) engaging in premarital heterosexual sex, or (4) committing incest are immoral, there's still the further question of whether coercive secular force (as opposed to, say, moral suasion, or divine retribution) should be used to punish those who engage in this behavior. Simply saying "this is immoral" or "this violates the Biblical rules" by itself says nothing about what civil government should do about it.

Indeed Christ, himself, in his major disquisition on Jurisprudence in Matthew 18:15-17 says what punishment should consist of:

15: Moreover if thy brother shall trespass against thee, go and tell him his fault between thee and him alone: if he shall hear thee, thou hast gained thy brother.
16: But if he will not hear thee, then take with thee one or two more, that in the mouth of two or three witnesses every word may be established.
17: And if he shall neglect to hear them, tell it unto the church: but if he neglect to hear the church, let him be unto thee as an heathen man and a publican.

Apparently, he favored disfellowship to imprisonment or execution as the ultimate punishment for transgressions. I wonder if the unbelievers (heathen) and the IRS agents (publicans) realize they are being punished.
Read Prof. Volokh on the "Santorum Scandal":

Good stuff.

As for the Santorum quote itself:

"And if the Supreme Court says that you have the right to consensual sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery. You have the right to anything."

I'm not that hot for incest or adultery. I'm hoping to privately practice consensual firearms ownership, teaching, practice of medicine, and the general buying and selling of goods in my home without any control by the Criminal Law.

Wednesday, April 16, 2003

The Iraqi War is officially over.

How do I know? Through yesterday BBC News 24 was streaming its full video feed through links like this.

Today all we are left with is a dumb New Headlines loop.

I want 24 hour video to my desktop. I'll even pay. I had it back in '98 from the Fox News Channel but they stopped allegedly over the streaming ad ban. Why is something I had in '98 so hard to get today?

Tuesday, April 15, 2003

Handful of Lawmakers Send Their Kids to War

WASHINGTON — For U.S. Rep. Marilyn Musgrave, R-Colo., her vote to support the troops was also a vote to support her son.

The mother of a sailor currently serving on a Navy submarine tender in the Mediterranean, Musgrave is one of a small group of congressional members who have sons currently serving in the military and possibly participating in the war with Iraq....

Though there is no comprehensive list, there are at least seven members of Congress with children in the Armed Forces — a small number, but not surprising, according to historians who say the number of congressional sons and daughters serving in the military has declined steadily since the Vietnam War era.

"My suspicion is that it's pretty rare," said Donald Zillman, a military expert and professor of law at the University of Maine. “Basically, that's not where congressmen's kids are heading off."...

Rep. Joe Wilson, R-S.C., a National Guard member and a Persian Gulf War veteran — one of at least three Gulf veterans in the House, including Rep. Steve Buyer, R-Ind., who was called to active duty in the Gulf last week — said he is heartened that his son has received such superior training.

"It gives me encouragement, knowing the training they've had," he said of his son Alan, 29, who is a first lieutenant in the Army National Guard and is likely to be activated. Alan is the oldest of three sons — the other two are a Naval Academy graduate and a cadet in the Army Reserve Officers' Training Corp. ...

During the Vietnam War, in which 58,000 American lives were lost, anti-war protesters made much of the fact that 118 out of 234 House members' and senators' sons eligible for the draft took college deferments to avoid service. ...

Today, there is no draft, and the numbers are even lower, indicating that military service is no longer a badge of honor for the political elite, or encouraged for their children, said Zillman.

So let me get this straight. Members of Congress and their children are underrepresented in the US armed forces. "At least seven members of Congress with children in the Armed Forces." That's the numerator of the equation. Where's the friggin' denominator. How many non-members of Congress have children in the Armed Forces?

Since this is a back-of-the-envelope calculation, I'll grab the 1997 World Almanac off the shelf and determine that in 1995 we had circa 1,547,000 persons on active duty and 2,045,000 in the reserves. This totals 3,592,000. I don't know if the National Guard is included. So, assume that there were about 270,000,000 Americans at the time, that gives us a figure of 1.33% of the population in the Armed Forces. We can also assume that 1.33% of fathers and 1.33% of mothers (living or dead) have a child in the Armed Forces (ignoring for simplicity's sake multiple-service families). Multiply 535 Members of Congress (House + Senate) times 1.33% and you get 7.12. So Congresscritters seem to map reasonably well with the general population.

Now I know this isn't a definitive study because we don't have real numbers for Congressional kids (and Members!) in the Military. And we haven't normed Congress to adjust for age and parenthood and numerous other factors but it's probably close.

So why do reporters make unsupported claims as above when some of them, at least, could be easily checked?

Monday, April 14, 2003

In an Instapundit piece on militia action in Saddam City, Master Reynolds writes:

"Sadly, the story doesn't really shed much light on the how-armed-are-Iraqis question,"

But in this radio piece from NPR's All Things Considered, today, the reporter says that the Shiia militiamen were so happy to play with their AK-47s because they couldn't have guns under Saddam.

Here's the Real Audio link.

Here's the money quote:

"... these Shiia men; they clearly are enjoying walking the streets with their AK-47s they're shooting them in the air at night because they could never carry these weapons under Saddam."
Armed Human Shields -- from the WSJ (Subscription Required)

From a WSJ article on Iraqi engineers, Marines, and human shields at the Sabanissan Water Treatment Project in Baghdad:

The human shields, mostly Western antiwar activists who placed themselves in harm's way to discourage the U.S. from bombing civilian sites, added to Mr. Kinany's wartime headaches. The five men and two women from the U.S., England, Japan, Norway and Australia arrived at the end of February, accompanied by Iraqi intelligence agents, and promptly set up a commune of sorts in the top managers' office suite. It fell to the engineers to provide them with food and water. "To be frank, we hated them in the beginning," Mr. Kinany said.

He got to know the group and grew to like them, especially after the invasion of Baghdad began and looters started prowling around the plant. Thursday night, Marc Eubanks, 41, an American peace activist who spent four years each in the U.S. Army and the Air Force, and another shield agreed to patrol the grounds with an AK-47 assault rifle taken from a stash the engineers kept. On Friday, Mr. Kinany and Mr. Eubanks confronted looters, with the former G.I. speaking English and leaving the impression that perhaps he was an American soldier.

"Go and tell your partners the Americans are here, and they will destroy your houses" if you don't leave, Mr. Kinany yelled at the looters in Arabic.

"It was rather an ironic situation -- first we wanted to protect them from the Americans and then from [Iraqi] looters," said Geir Angell Oygarden, a 35-year-old Norwegian shield and social scientist.

I guess human shields who pretend to be American soldiers are worth more than those who don't. But doesn't that violate some sort of Human Shield Code of Ethics or something?

Thursday, April 10, 2003

What if Iraq Had Revolted Instead?

It is generally agreed that the people of Iraq would have been justified in organizing and carrying out a revolution to overthrow the government of Saddam Hussein.

If they had revolted, and particularly if they had succeeded in overthrowing the government, the cost in material and human terms would have been high. Vast amounts of money and time would have had to have been expended. Physical damage from war fighting would have been massive. Casualties among the revolutionaries, the populace, and the government forces would have been very high.

The revolution would have taken a while. It would have been fought with relatively primitive weapons and the revolutionaries would have been unable to overawe large chunks of the government forces into running away without fighting. On top of everything else, the risk of the revolutionaries losing would have been great.

In the event, Iraq got its revolution for free with minimal damage to property and minimal loss of life on all sides. The nation is already receiving the first of what will be billions of dollars in aid. All in a war that the "Forces of Free Iraq" couldn't have lost.

As a US taxpayer, I might have a logical right to complain about our generosity to the Iraqi Revolution. But I can't see the logic of any complaints from Iraqis (or others). Anyone who thought that Saddam should have been forced out got his wish fulfilled on the cheap.

Wednesday, April 09, 2003

Cops use ID info in criminal cases

Scanning a driver's license at the local liquor store can reveal more than just age.

When a patron's ID is scanned to ensure authenticity at a liquor store, the person's purchase and identification information is added to the Pennsylvania Liquor Control Board's (PLCB) electronic database in Harrisburg, PLCB spokeswoman Molly McGowan said.

Police can retrieve the information for use in criminal cases, she said.

For example, an underage man died of alcohol poisoning at a party in Bloomsburg about two years ago, McGowan said. Going back through the electronic database, authorities were able to locate where the alcohol was purchased and find the person responsible for bringing it to the party, she said. The buyer was later criminally charged for his involvement, she added.

Why are people using DLs for ID. Always use your passport. It can't be challenged and it has no useful info on it. No number anyone but State can track. No address. Nothing. I use my drivers license once every 4 years to renew my drivers license. I also use it when stopped by cops while operating a motor vehicle which happens twice a decade. Finally I use it to rent cars. No other reason.

Monday, April 07, 2003


Given my work on the Japanese American internment, I was initially skeptical of the program, but when I looked at the program carefully I learned that the interviews were voluntary (as the government said they were),...
Compared to prior wars, stretching all the way back to the war of 1812, and especially compared to the excesses of World War I and World War II, the program is positively gentle.

I certainly agree that the Post-September 11th enforcement activities have been less intrusive than WWI, WWII, and even the early 1950's. More than 200,000 were interned (Japanese and others) after Pearl Harbor.

I would quibble however with the author's (and everyone else's) comment that the Liberty Shield interviews were voluntary. All police interviews are voluntary. All government interviews are voluntary except some of those conducted in court. You never have to chat with cops or enforcement types.
The State of Michigan, of course, contends just the opposite; its position is that racial diversity is one crucial component of elite-level academic excellence. I’m inclined to agree; my own personal experience of teaching for four years at a racially homogeneous law school (the University of Wyoming) and now at a racially integrated one (UNC) tells me that racial diversity does in fact contribute importantly to full and rigorous discussion and debate in a law school classroom. So at the end of the day, I guess I disagree with Scalia.

Since racial minorities tend to have the same ideology as law school professors and law school students, isn't it arguable that a better mix could be achieved by discriminating in favor of libertarian and conservative students and professors than in favor of [some] racial minorities?

Friday, April 04, 2003

St. Louis Official Resigns Over Joke
"Public Defender in St. Louis Resigns Over Racial Joke He Told to Underlings at Work"

But in a major journalistic failure, the story doesn't tell us the joke.

Friday, March 28, 2003

Senate Approves Soviet-Style Exit Tax

The Senate voted unanimously Thursday for an old Democrat proposal -- an exit tax on those who renounce US citizenship. This is supposedly an offset for the tax reductions for service personnel contained in the Armed Forces Tax Fairness Act of 2003. This is one of those fake budget deals where a tax cut has to be offset by a tax increase or a spending cut to "pay" for the tax cut (even though a tax cut is largely costless).

The bill would declare expatriation a taxable event and assume all your property was sold on the day before expatriation. You would then owe taxes on the "sale". There is a $600K exemption and some exemptions for minors and dual-national-at-birth-non-US-residents who renounce.

The House version of the bill lacks the exit tax provision so it's off to Conference.

See my Official Taxpatriates Page for more information on this topic and a list of those who have renounced recently.

Wednesday, March 26, 2003 (a libertarian site) has been publishing misleading claims about the US supplying Saddam with chemical and biological WMDs. This is strange complaint since libertarians presumably favor free trade in chemical and biological materials and precursor technologies as well as private possession of same. The claims (which have appeared elsewhere) are misleading because tight restrictions on the distribution of such materials were not put into place until the end of the 1980s. Additionally, anyone who knows anything about Iraq's order of battle knows that he got most of his weapons from the Soviet Union.

Here is a letter to the editor from today's WSJ that is too important to hide:

From the Wall Street Journal Letters to the Editor Page 26 March 2003 [Subscription Required]

Those Iraqi Weapons Are Not U.S.-Made

In regard to Robert L. Bartley's Thinking Things Over column and the editorial-page commentary by Gary Milhollin and Kelly Motz, both published March 24, referencing U.S. exports to Iraq that were approved by the Commerce Department during the 1980s:

Before readers assume there was some hidden agenda at Commerce to promote commercial sales to Iraq at the expense of U.S. security, the following additional points not mentioned in either article ought to be considered:

• It was the explicit policy of the U.S. government from the mid-1980s until the Iraq trade embargo in August 1990 that any Commerce Department approval of a commercial export to Iraq occur only with the prior consent of the Defense Department to ensure there would be no military benefit from the sale; certain commercial sales, but no weapon sales, were approved;

• Some of the items referenced as "approved by Commerce" in the Milhollin/Motz article were in fact not approved by Commerce because they required no approval for export to Iraq or any other country for that matter -- they were not on the control list at the time. Those agencies responsible in the U.S. government for defining the technologies that have weapons uses didn't include many biotech and chemical items in their assessments until 1989. Items on the control list that were "approvable" at the time were a matter of public record;

• Although not widely publicized, Commerce withheld export approval of many items destined to Iraq even though Defense had okayed the sales and there was scant legal basis at the time to deny the transactions. The combination of technology and end users didn't pass the "I want to sleep tonight" test. In some cases, Commerce officials telephoned U.S. executives to dissuade them from shipping and encouraged them to withdraw their export applications -- which worked more often than not, even though the reasons were often classified and couldn't be revealed to the exporter;

• Commerce was (and still is) an advocate in Washington for establishing U.S. and multilateral controls by key exporting nations on sensitive chemicals, biotech products and commercial products with nuclear weapons or missile applications. U.S.-led efforts were largely successful in the late 1980s and 1990s in getting other countries to agree to common restricted lists of these items. (Cooperation on implementation has not always been uniform, however.);

• Finally, in coordination with other agencies, Commerce issued regulations in early 1991 creating the legal authority to deny any U.S. export, even pencils and paper clips, if the destination was related to weapons of mass destruction, not just in the Persian Gulf region, but also in a number of areas around the world. Moreover, this authority has been used in real time by Commerce Department officials to interdict shipments that were already in progress but had not reached their final destination.

The weapons of the Iraqi military shown now on television are not U.S.-made, and any "blame America" suggestions don't have a basis in fact.

With 20-20 hindsight, we can all wish there had been a multilateral commercial trade embargo against Iraq long before 1990, so as to remove any doubt that a U.S.-made product might even tangentially contribute to keeping Saddam in power one second longer.

We can wish that U.S. intelligence assets were targeted to a greater extent on the Persian Gulf region in addition to the Soviet Union during the 1980s, so that the U.S. and other countries might have known more and acted sooner against the Iraqi regime.

But these issues were hashed out during the first Gulf War and are largely old news.

We can also wish the lessons from pre-1990 trade with Iraq would be learned and applied by the U.S. government to other countries with dubious leadership. In fact they were, more than 10 years ago, in export regulations issued by the Department of Commerce. Somehow, this is still news.

James M. LeMunyon
Oak Hill, Va.

(Mr. LeMunyon was the deputy assistant secretary for export administration at the Commerce Department from 1989-1993.)

Updated March 26, 2003

Thursday, March 06, 2003

Wearing Hats at the Council of Trent

New York Times hit piece on conservative Catholics (and Mel Gibson) due Sunday. According to the NY Post's Page Six:

Mel Gibson's unholy Sunday

MEL Gibson is furious at the New York Times over a story that will depict him as a pope-hating, conspiracy-minded cultist.
It's no wonder Gibson was upset. In a story in this Sunday's Times Magazine, Noxon writes that Gibson embraces an ultra-traditional "strain of Catholicism rooted in the dictates of a 16th-century papal council and nurtured by a splinter group of conspiracy-minded Catholics, mystics, monarchists and disaffected conservatives."

The traditionalists disdain the Second Vatican Council of 1962-1965, say Mass in Latin, and fast on Fridays. Women wear hats in church.

What bizarre cult practices are next. The rosary, family prayer, kneeling? Perhaps if Mel wanted to satisfy the Times' exquisite religious sensibilities, he should have adopted more orthodox practices like latex, B&D, animal sacrifice, or yoga.

Tuesday, March 04, 2003

God Is An Anarcho-Capitalist A Heretical Hypothesis on Liberty

Both believers and unbelievers in God seem willing to continuously quote Matthew 22:21 as the basis for secular government, and wisely so in my opinion, as far as government is concerned. The verse linked, which is an answer to a question posed to Jesus about payment of taxes, and references whose portrait and inscription appears on a coin, states,

[Matthew 22:17-21 quoted for fuller understanding and translation changed to the KJV for esthetics.]
"17: Tell us therefore, What thinkest thou? Is it lawful to give tribute unto Caesar, or not?
18: But Jesus perceived their wickedness, and said, Why tempt ye me, ye hypocrites?
19: Shew me the tribute money. And they brought unto him a penny.
20: And he saith unto them, Whose is this image and superscription?
21: They say unto him, Caesar's. Then saith he unto them, Render therefore unto Caesar the things which are Caesar's; and unto God the things that are God's."

Since JC's skills as a rhetorician were unaffected by the fact that he was human, it's important to note what this remark doesn't say. He was clearly trying to be ambiguous to avoid the trap his enemies had set for him. His statement doesn't take a position on the question "Who is Caesar"? and it doesn't really supply a definitive answer to the question "What, specifically, is Caesar's"? Pretty slick -- as one would have a right to expect. For his listeners, the phrase "things which are Caesar's" could be taken either way. And in our era, the replacement of Caesar with sovereignty by "all of us" in some nations leaves open the possibility that if "we are Caesar", we can render to ourselves. Not a justification for government in any case.

Now Improved Clinch goes on to quote the excellent verses from Samuel:

"And the LORD said unto Samuel, Hearken unto the voice of the people in all that they say unto thee: for they have not rejected thee, but they have rejected me, that I should not reign over them. This will be the manner of the king that shall reign over you: He will take your sons, ... he will take your daughters, ... he will take your fields, ... he will take the tenth of your seed, ... he will take your menservants, and your maidservants, and your goodliest young men, and your asses, ... He will take the tenth of your sheep: and ye shall be his servants." -- First Book of Samuel, Chapter 8, Verses 11 to 17. [My condensation]

I guess having a King is a rejection of God.

In addition to those there are quotes like:

"In those days there was no king in Israel, but every man did that which was right in his own eyes." -- The Book of Judges, Chapter 17, Verse 6.

And King David's punishment for the major sin of conducting a census:

[1] And Satan stood up against Israel, and provoked David to number Israel.
[3} ... but, my lord the king, are they not all my lord's servants? why then doth my lord require this thing? why will he be a cause of trespass to Israel?
[7] And God was displeased with this thing; therefore he smote Israel. 1 Chronicles 21.

And then we have JC's discussion of jurisprudence from Matthew 18

Here's his idea of conflict resolution:

15: Moreover if thy brother shall trespass against thee, go and tell him his fault between thee and him alone: if he shall hear thee, thou hast gained thy brother.
16: But if he will not hear thee, then take with thee one or two more, that in the mouth of two or three witnesses every word may be established.
17: And if he shall neglect to hear them, tell it unto the church: but if he neglect to hear the church, let him be unto thee as an heathen man and a publican.

In other words -- disfellowship the ultimate punishment. A pretty anarchist idea.

A "publican" was a tax farmer BTW. For those unfamiliar with this species of insect, a tax farmer was someone who placed a bid with the central government as to how much he would pay in cash for the right to collect the taxes from a given district. He then got to tax the residents for all he could get. His profit was the difference between amount paid to the central government and the amount he managed to extract. Publicans occur throughout the gospels whenever JC or someone wants to think up the worst form of humanity they can imagine.
Gods and Generals Redux
Professor Volokh speaks about the phrase "under God" in the Pledge of Allegiance. I differ.

But I hope that our soldiers are not being asked to defend the one item that the Ninth Circuit said may not be included in the teacher-led Pledge, which is our nation's being "under God." Theologically speaking, I don't think they can defend this, since our nation is or is not under God whatever our soldiers might do. Practically speaking, I don't think it's wise for us to be fighting wars over "under God." Morally speaking, they ought not be required to defend this. We can exhort our soldiers to believe in "liberty and justice," and even demand that they do so; and we can rightly say that a soldier who doesn't believe in liberty and justice is a worse American than one who does. But we ought not exhort our soldiers to believe in God, we may not demand that they do so, and atheist, agnostic, polytheist, or pantheist soldiers are just as worthy as monotheist ones.

I'm not sure that we can or should demand that our soldiers believe in "liberty and justice" either. Wouldn't such an exhortation suffer from the same 1A problems as God apparently does. After all what about our communist soldiers, socialist soldiers, Democrat soldiers, Republican soldiers, etc. They can't all be forced to profess libertarianism.

Which raises the general question of modern Church-State law in America -- why is religion unique? Apparently a government school is free to teach socialism or psychology as "truth" but not anything officially designated "religion". Indeed, many government schools do teach these belief systems (perhaps to the detriment of their pupils). One could make a whole list -- feminism, environmentalism, pedagocracy (to coin a word), esthetics, the political and moral superiority of the oppressed, etc. -- of belief systems that can (and are) taught in government schools without constitutional problems. Conservatives claim, in fact, that the schools are teaching the "religion of secular humanism" and it may be so. They certainly inculcate strange belief systems in their children (one reason I never sent mine to such institutions).

Now in the reverse case -- privileges for religion -- the Supremes in the two major conscientious objector cases UNITED STATES v. SEEGER, 380 U.S. 163 (1965) and WELSH v. UNITED STATES, 398 U.S. 333 (1970) determined that non-religious objections to all war - even a well-developed political philosophy in Welsh - was sufficient to give rise to CO status.

Why then is religion treated differently from other philosophies in government schools? Now it would be impossible to ban teaching of all philosophies (science, for example) in school so it seems to me that one must either end government education or end the discrimination against a single form of philosophy.