It really galls me that a judicial nominee must submit to the advice and consent of a senate that is populated by people who just are not very bright. I offer two examples from Tuesday's (13 September 2005) proceedings.

Senator Leahy asked Judge Roberts about the disposition of matters if Congress passed a law requiring the removal all U.S. troops from a foreign country, etc. Judge Roberts decline to answer the question on the grounds that it would be improper to declare how he might rule in a case that could come before the court. Senator Leahy: "Isn't this Horn Book law? I don't know of any case on its way to the Supreme Court." Roberts replied that it was at least possible because there were cases which arose during the Vietnam conflict and came before the Court. Now, to give Senator Leahy his due, he did make an important distinction: the cases which came before the court during the Vietnam conflict did not involve a law passed by Congress--over a presidential veto--requiring the removal of troops. But even so, look at Senator Leahy's logic: a case such as he describes is not on its way to the Supreme Court; therefore it would be permissible to Roberts to answer. But Roberts did not say that he declined to answer questions about cases which were on their way to the Court; he declined to answer questions regarding cases which could come before the court. Leahy's logic is this: A has not happened, or is not happening, therefore it will not happen. This is like saying, "I am not presently dying: therefore I will never die--or at least not during your lifetime."

Then there is Senator Joe Biden, who wanted to address the refusal to answer such questions--known as The Ginsberg Rule. He asked Roberts, rhetorically, whether Ginsberg followed her own rule. Well, according to Biden, she did not, because when she was asked if she agreed with a decision made recently by the court (i.e., just before she was nominated) she said she did. So Biden wanted to use Ginsberg's failure--or refusal--to abide by her own rule as some sort of precedent. There are two problems with this attempt by Biden here. First, note Biden's logic: She broke a rule; therefore Roberts should break the same rule. This is the sort of poor logic that teenagers offer their parents: "But Johnny drives without a license!" (And Democrats insist that they are intellectually sharper than Republicans.) Second, as I understood the exchange, Biden wanted Roberts to answer questions about hypothetical cases--cases which had not yet come before the Court. But the question which Justice Ginsberg chose to answer was about a case that had already been decided by the court. So she was not being asked to pre-judge a case. That Biden could not distinguish the two cases indicates to me that he is not qualified to advise or consent with respect to judicial nominees.

Now, my friend Lee, over at Two-Edged Sword, probably has not been very happy. He had hoped that Roberts would answer the Senators' questions. I certainly hope that, upon reflection, Lee will recognize that telling us how he would decide certain cases, in order to get senate confirmation is tantamount to running for office. (Did anyone notice Shumer's exhortations to Roberts, "...if you want to get my vote..."?) And, as Roberts himself put it (in response to Senator Biden's assertion that if senator's did not declare their positions they could not get elected): Judges don't stand for election.

I for one was satisfied by the only real answer Roberts could give on the question of his judicial philosophy. When asked if we would be for the little guy of the big guy, Roberts replied, "If the Constitution says that the little wins, then the little guy wins. If the Constitution says that the big guy wins, then the big guy wins."

Too many questions have focused on Roberts beliefs about matters other than the law and his approach to it. (And asking how he will/would decide specific cases hardly counts.) It makes no difference what he thinks about Civil Rights, any more than it makes a difference what a baseball umpire thinks about the size of the strike zone!

This will be a short blog. It will also, I think, be my last on anything related to Hurricance Katrina.

It is a singular irony, is it not? The same people (i.e., Democrats) who hounded President Bush to admit at least one mistake regarding the war in Iraq--and criticized him vehemently when he would not--will not breathe a hint of any wrong-doing with respect to the disaster in New Orleans. Nothing about any of this is any Democrat's fault. When a major heatwave killed over 700 in Chicago back in 1995, I just don't recall Republicans claiming that President Clinton was responsible. I don't even recall whether anyone claimed that Mayor Daly was responsible. Incredible.

Now, I agree with Charles Krauthamer: there really is plenty of blame to go around. But to listen to Democrats, everything about this is Republicans' fault; it is just a matter of figuring out how. And nothing in the way of any blame is to be laid at the feet of Mayor Nagin (who, if he had any sense of honor, would fall on his sword) and Governor Blanco. One would think that FEMA is an interstate first-responder; it isn't. Local and state organizations--in that order--are the first responders.

What troubles me further is the number of Republicans who have jumped on the big, bad Blame-Bush Bandwagon. I am with Laura Ingraham: I would like to see more backbone on the part of Republicans on all this.

As I stated in a previous post, there are issues regarding federalism that are raised by the disaster--and the Democratic response to it. It is time to start paying attention to the nomination hearings on Judge Roberts.

Victor Davis Hanson, Our Perfect Storms, Jewish World Review, 8 September 2005

Drs. Michael A. Glueck & Robert J. Cihak, 'Population Bomb' Bombs With the Birth Dearth, Jewish World Review, Jewish World Review, 9 September 2005

By Rich Lowry, Bureaucracy at work, Jewish World Review, 9 September 2005

ATTENTION ALL WHINERS!!!

At least one lesson from New Orleans is this: No bureaucracy can protect you or save you. Oftentimes it is true that If you want something done right you've got to do it yourself. From that it sometimes follows that if we want our asses saved we've got to save our own asses. (Yes, it's all right for a Christian to believe that, while he cannot save himself from the judgment that follows death, there are still many things from which he can--and even should--save himself. After all, it was, apparently, all right for Jacob to save himself and his family from a famine by purchasing grain in Egypt. It was all right for Paul to save himself from an unfair trial by appealing to Caesar. If my house gets broken into by violent men, I fully intend to use either my .45 or my .357--depending on my mood--to protect my wife...and anyone or anything else. And I make no apologies.)

Of course, we all need help from time to time. So--and here's a novel idea--we can sometimes band together as a group and help each other. We saw some of that on TV going on in New Orleans. A few people decided not to wait for others to come to their rescue. All it takes is a willingness to work together, a little bit of energy, and some time.

All the time that those looters were waiting to be "saved," waiting for their government to stop "abandoning" them, was time that could have been spent banding together and helping. (I saw one woman had an inflatable raft, which she was using to carry off her booty. I suppose she could think of no other purpose for such an apparatus.)

All those looters certainly had plenty of energy and time. Many of them seemed willing enough to band together in order to rape, murder, and pillage.

They could have helpful. But they were so much less.

That, of course, raises the question: Why the looting?

Thomas Sowell (Rebuilding New Orleans -- and America, Real Clear Politics, 6 September 2005) and Robert Tracinski, An Unnatural Disaster: A Hurricane Exposes the Man-Made Disaster of the Welfare State, The Intellectual Activist, 2 September 2005) have written two fine essays offering reasons for, or causes of, the looting we witnessed on the news in New Orleans. Their explanations, as you might imagine, differ from those offered by Harry Connick, Jr., Celine Dion, Oprah Winfrey, and others.

I understand that, "Save your own ass!" doesn't sound very compassionate, not very Christian, but let's think about this. Say that it's three hundred years ago and you and a handful of people are all by yourselves in that area. A hurricane comes along and the entire area floods. Who's going to save you and your friends? No one, that's who. You must save yourself.

"Yes," you say, "but James, we have a government now. And it is government's responsibility to save us."

Well, there are in fact three governments. There are local (i.e., city and county) governments, state governments, and then the federal government. The constituents of the federal government are the states. (Gosh! I feel like I've said something like this before.) In a federal system, the governments which have primary responsibility for saving your ass are the local and state, in that order. Why? Because you, personally, are a constituent of those governments--not the federal government.

Besides, if the government has a duty to save your ass, that means that I have that duty. How do you come to have a right against me, that I should save you...from anything.

My old seminary-mate, Lee Johnson, finds fault with a post by another old seminary-mate of mine, Matt Powell. A recent post at Matt's blog contains a brief defense of Bush's response to Hurricane Katrina--which Lee characterizes as "slow".

Now, while Lee does make some fine points about the contraversy, I wonder if Lee missed something in Matt's blog. Lee says that it points out some things that Bush did right. But then he compares the alacrity with which Bush became involved in Florida (which I have actually criticized) with his slowness in getting involved in New Orleans. I wonder if Lee has not thought that perhaps the difference is not in Bush, but in the respective state governments: How much sooner did Governor Jeb Bush ask for federal aid than Governor Blanco? Also: when we talk about when Bush got involved in La., are we talking about when he got publicly and visibly involved? Or do we include any phone conversations he had with Gov. Blanco and/or Mayor Nagin while he was on his so-called vacation? (I have heard, though not yet confirmed, that Bush asked either Blanco or Nagin to order a mandatory evacuation, or request federal assistance, days before it was actually ordered, or requested.) It is interesting to note that the Mission Statement for the New Orleans Office of Emergency Preparedness contains this very interesting passage:

"We coordinate all city departments and allied state and federal agencies which respond to city-wide disasters and emergencies through the development and constant updating of an integrated multi-hazard plan. All requests for federal disaster assistance and federal funding subsequent to disaster declarations are also made through this office" (emphases mine).

That same document (i.e., "Emergency Guide for Citizens") also contains this provision (with respect to all those poor people who could not evacuate):

During the Recommended Phase of Evacuation:
1. The City of New Orleans Emergency Operating Center (EOC) is staffed for 24-hour operation.
2. Local transportation will be mobilized to assist persons who lack transportation.
3. Bus routes and locations of staging areas for those needing transportation to shelters in or out of the Parish, will be announced via radio and television.
4. Relatives and neighbors should help family and friends who need transportation and other assistance.

It would appear that items 2 and 3 were not done. Did you see the aerial photographs of all those school buses underwater?

For my money, if people are going to say that they are responsible to do something and then fail to do it, the issue of culpability has been resolved. The City of New Orleans had a plan; the plan was not followed. Mayor Nagin is a disgrace; so is Governor Blanco. (And yes, as a matter of fact, I do think I'd have done a better job. Governor Blanco still had more than two-thirds of her Guard available for deployment. As of 23 May 2005, Louisiana's Army and Air Guard numbered approximately 11,500 (Source: GlobalSecurity.org, of which 3,000 (i.e., 26 percent) are in Iraq, leaving 8,500 (i.e., 74 percent) which could have been deployed. Why weren't they? How many more than that 8,500 would Blanco have needed? Now that Guard units from three other states have been deployed there, how many are there now?)

I don't really care about defending Bush. That is because I do not think he needs defending. I am a federalist. Much of the vitriol over all this stems from a deplorable ignorance of what federalism is all about--and how it works. And it concerns me because I know that there are those who will attempt to parley this into yet another increase in the power of the increasingly-not-so-federal government, giving to it police powers--which is does not have, depite--apparently--much belief to the contrary. (This belief is evidenced by the number of people who will assert simply that the government "abandoned" the people of New Orleans. By this they apparently mean the federal government. The governments of the City of New Orleans and the State of Louisiana get no mention; they are irrelevant; they do not exist. Only someone who believes that the federal government has extensive police powers could do this.)

Hugh Hewitt has a blog (you'll have to scoll down a bit) on, among other things, what it is, or would be, for the federal government to have police powers. I suppose there will be those--there always are--who will assert that abstract principles such as federalism ought not take precedence over human life. But you just let the federal government acquire the power to define and then assert a "state of emergency" and who knows the circumstances under which we will see federal troops deployed to enforce law. As illustrated beautifully by George Lucas, in "Revenge of the Sith", (but even more beautifully in the histories of actual tyrannies) tyrannies can comfortably begin when a government is granted broad police powers to deal with a "state of emergency". And "human life" won't mean spit after that.

Following Saint Benedict's exhortation (47), I keep death constantly before my eyes; I have accepted it. But I'm not dead yet. And as long as I am alive I prefer to live free, so I'll take my chances against Nature: she is much less tyrannical than any government, and so is her God.

You can always count on superficial, and therefore stupid, Christians to give yet another reason for smart people not to consider Christ.

Apparently, according to the sort of superficial Christians I'm talking about (source: a caller to Dennis Prager, 1st Hour, KNUS-AM 2 September 2005), what has happened to New Orleans is a judgment of God because of all of the homosexuality and pornography and so forth in that city. When people speak this way, they are tacitly claiming to be prophets; to say that some event constitutes a judgment of God is to claim to be a prophet.

Most non-Christians who come into contact with stupid Christians probably think that the stupidity of stupid Christians is the result of spending too much time reading the Bible. This was my experience when I was a non-Christian. In actual point of fact, this sort of stupidity is really due to not spending enough time studying the Bible. Had stupid Christians spent time studying the Bible instead of trying to prophesy they might know that Jesus taught that not every bad thing that happens is a judgment of God:

Now there were some present at that time who told Jesus about the Galileans whose blood Pilate had mixed with their sacrifices. Jesus answered, "Do you think that these Galileans were worse sinners than all the other Galileans because they suffered this way? I tell you, no! But unless you repent, you too will all perish. Or those eighteen who died when the tower in Siloam fell on them do you think they were more guilty than all the others living in Jerusalem? I tell you, no! But unless you repent, you too will all perish." (Luke 13:1-5)

How could real, Bible-reading Christians have missed such a passage?

Oh yeah. One more thing. When a Christian says that an event is a judgment of God, he had better not be speculating; he better be right. The reason is simple: the person who says that such and such is a judgment of God is, as I mentioned above, acting the part of a prophet. And the Scriptures provide both a two-fold test and a stiff penalty for false prophets. (And here we come to another evidence that stupid Christians are stupid Christians because they do not know the Scriptures.) The two-fold test is this: (1) the so-called prophet makes a declaration, regarding the future (not the past) which comes to pass; and (2) does not, on the basis of his accurate declaration, attempt to lead people away from the worship of the God of Abraham, Isaac and Jacob. (See Deuteronomy 13:1-5) Note that we cannot test what these pretended prophets prophesy: the event about which they offer an interpretation (i.e., prophetic word) comes before they speak. Unless one can find some passage of Scripture which asserts that every natural disaster is a judgment of God upon the people upon whom said disaster falls, one simply has no warrant for the assertion that this or that disaster was a judgment. And the logic of such a position would look something like this:

1. According to the Bible every natural disaster is an act of judgment upon the people who live in that area (cite said passage here).
2. A natural disaster occured in New Orleans (and no where else, apparently).
3. Therefore, the disaster was a judgment of God.

The problem with this sort of argument is that propositions 1 and 2 are false. The Bible makes no such assertion about disasters. And New Orleans was not the only place touched by disaster. Indeed, once the economic implications of all this are truly felt, we shall see that this disaster will affect even those against whom God cannot possibly have intended any judgment.

Silly Christians, prophecy is for prophets!

...at your expense, of course.

Dennis Hastert is in trouble for asking a reasonable question: Should New Orleans be re-built? The fact that he is in trouble for merely asking the question is indicative to me of just how much the American people, or at least a certain segment, just cannot and will not abide rationality.

"Why should the question be asked?" you may wonder. The question should be asked because, as I mentioned in a previous post, New Orleans has been sinking for a long, long, long, long, time. It is now 5 feet below sea level; when it was founded it was not below sea level. If and when New Orleans is re-built, it will continue to sink. (Who knows? It may then be ready for a new nickname. Instead of the Big Easy, maybe we will take to calling it the Low Down.) That is just one problem. The other problem is that the Mighty Mississippi will continue to dump silt, which means that the levees will be continually be in need of shoring up. This means that, however long it takes, another disaster such as we have seen this week will happen again. Is it smart to build a city on a patch of real estate everyone knows is sinking? Would you buy, or build, a house on a piece of real estate that you knew was sinking when you purchased it? Would you even purchase it? Would you think you were being smart if you did so? If a friend of yours did so, would you think he was being intelligent in doing so? (More importantly: How would you feel if he insisted on doing so with some of your money?)

"Where is your Christian compassion?" you may ask. New Orleans is where these people live. Their homes are there. Well, I am a Christian; I do feel--A LOT!!!--for these people. I can't think about all this for very long without crying. (And I am not easily moved to tears.) But, that being said, I am a Calvinist and that means that I believe in the application of wisdom to life, the right application of knowledge. So I am also, as a good Calvinist, committed to science, without driving an artificial wedge between "faith" and "science" as if there is no element of faith in any science (but that's a subject for a different post, on another day).

The application of the results of scientific research must lead one to the conclusion that, with all that we know now about the site on which the city was built, re-building the city there just would not be wise. Let us say that there was no city there right now. No responsible person would propose founding a city on that site. So why should the city be "refounded"? (In fact, I have heard, though not yet confirmed, that the local native Americans warned the French not to build a city there because, well, it floods. That was 300 hundred years ago .)

The only people who could support re-building New Oleans are people who like to allow sentimentality trump rationality. Frankly, I would like to see much less sentimentality about this and a lot more honest rationality. But I'm sure I won't see that.

But what about people who built in earthquake zones, or hurricane zones? Fine. But we are not talking about a city built in a hurricane zone. We are talking about re-building a sinking city! (On second thought maybe the Big Easy will be called the Big Money Pit.)

I suppose someone could say that, as a believer in liberty, I must be committed to the view that people can live wherever they want. And so I am. But then, I'll just have to say that I don't believe that anyone but you should pay for where you live. If the citizens of New Orleans truly want to rebuilt the Low Down fine by me, as long as they aren't going to demand federal dollars to do so. And it is only the fact that the site is sinking that motivates me to say this. All other things being equal, I wouldn't be saying this at all.

I don't understand why those who think that the city should be rebuilt can't just say so without demanding an apology from Hastert for asking an intelligent question. The responses to his asking the question are nothing more than a whole lot of emoting. I would like to see--and hear--less emoting, and more thinking.

...well, in his White House, actually.

Listening to Dan Kaplis and Craig Silverman (KHOW-AM, Denver, Co. 31 August 2005) wondering whether or not the President dropped the ball on the hurricane. Apparently, there is something that the President needed to do, that he could not do while on "vacation". He just had to get back to the White House; or maybe he was supposed to go to New Orleans. (Who knows? Perhaps he could have stood in the Big Easy and said to the storm, "Peace! Be still!") Because, according to Silverman, his primary concern is the welfare and safety of the people. Wow. And what, pray tell, is the primary concern of, Oh, I don't know, a state governor, or a city mayor? I happen to believe that the President's primary concern is the welfare and safety of the union by executing the laws of the union (i.e., federal laws). The people live in states; the President should not have to worry about a single U.S. city--not even in a hurricane. And when and if states need federal aid they can just ask. We have a Federal Emergency Management Administration. Federal response should be already defined by law, needing nothing more then automatic execution. And if that is not the case, then it is a legislative problem. The President's personal involvement would only be eye-wash, and--if I were a state governor--offensive to the highest degree. The president is the commander-in-chief of our armed forces; he is not the Governor-in-Chief of each and every state!

According to Caplis: The president was two steps behind on two levels: (1) Verbal leadership, and (2) The actual supply of aid.

First, verbal leadership, as I've already mentioned, should have been wholly unnecessary. Louisiana has a governor. Was she providing no verbal leadeship? She wasn't on vacation, was she? I saw quite a bit of her on TV, so I am pretty certain she was providing at least verbal leadership. Mayor Nagin was pretty visible also.

With respect to the supply of aid. Caplis says it should have been in place ahead of time. It was too late, really, when the president finally got around to offering it. Let's say this is true. Why does all this have to await a personal order from the President? If the provision of federal aid must await a golden invitation from the President of the United States, does that not connote a weakness in our federal emergency management system?

Both Caplis and Silverman agreed in that one of the things for which Bush is blame-worthy is the amount of time he had to respond to this. He knew--as we all did--for days how bad this would be. He (personally, of course, because everyone is just waiting for him to tell them what to do) should have had everything in place ahead of time. George Bush--personally, like a micro-manager--should have seen to all of this. Well, if possessing prior knowledge is what makes one culpable for something then Caplis and Silverman should have a look at some internet resources which will give them a better idea of who should have responded and had everything in place ahead of time. They can start with this Wikipedia article; and they might find Jim Wilson's 2001 article, New Orleans is Sinking, (Popular Mechanics, 11 September 2001 [accessed 31 August 2005]), also enlightening. New Orleans has been sinking for more than just decades, including the years during which Bill Clinton was President. Could not Bill Clinton have done something about that? Why has no Louisiana governor or New Orleans mayor been on top of this? If Caplis and Silverman want to talk about who should have done what due to the amount of warning, they may very well do so. The list is long and distinguished; and it need not include the present executive office holder. Dropped the ball? Please.

And I am not saying all this just to defend Bush. His predecessor was all over the place in emergencies and I objected to his ubiquitousness for the same reasons. I found it offensive that he thought he needed to be some place where something bad had happened--as if no one can possibly have a clue what to do unless and until the President, God Manifest in the Flesh, shows up to direct them. Suddenly, by his mere physical presence, everything is all right.

One more thing. Caplis and Silverman made a bit of the fact that when the President was campaigning last, he went down to Florida after the devastation there. If he had been campaigning this year, he would surely have gone to Louisiana, they claim. Now, on this one I agree. However, I must sadly agree because the only reason anyone would have for visiting a disaster is really that people are superficial. Nothing about any disaster changes just because a president--or any politician campaigning for office--shows up. (I for one was not a bit impressed by his going to Florida.) And if you want to say that, yes, but his being there can be of comfort to people. I can only respond that there is only one person who can show up and give me comfort in a disaster area. And he has never sought my vote.

A caller to the Laura Ingraham Show (KNUS-AM, Denver, Co., 31 August 2005), discussing the disaster in the wake of Katrina, asks why other countries never help us when we have disasters, when we are frequently helping other nations with theirs. The answer is quite simple. We comprise a small fraction of the world's population and we consume the largest fraction of the world's resources. With these resources we cause global warming, which creates all those natural disasters. When it happens to them we ought to help them because it is our fault anyway; we cause those disasters to happen to them. When it happens to us, we're on our own, since it's our way of life coming home to haunt us; we deserve it. Or, other nations simply don't have the resources to help us because we have them all. How was it Ward Churchill put it? Oh, yes: Chickens come home to roost--or something like that. (See, e.g., Robert F. Kennedy, Jr., For They That Sow the Wind Shall Reap the Whirlwind,HuffingtonPost, 29 August 2005 [accessed 31 August 2005].)

Well, that's probably what they tell themselves, anyway. You know, to ease their consciences. (See, e.g., Patrick Goodenough, German Minister Links Katrina to Global Warming, Bush Policies, CNSNews.com,
31 August 2005 [accessed 31 August 2005].) Of course, no one who actually knows anything about weather cycles, especially hurricane cycles, could say such things (see, e.g., Lindsey Sherrill, 14 named storms predicted, The Atmore Advance, 9 June 2004, which includes this interesting sentence: "According to...estimates, the south Alabama area is more than 100 years overdue for a Category 4 or 5 storm." [accessed 31 August 2005], emphasis mine). But politicians these can't be expected actually to know anything about much--except, apparently, how to get and use power. And their mouths.

It's just like a leftist, isn't it? To kick a rightist when he's down. (This pussilanimous behavior is one of the reasons that leftist intellectuals are, rightly (so to speak), some of the first people to be liquidated after successful Marxist military coups. When you're done with the butter, you no longer need the container.) This sort of whimpy behavior is one of the reasons I...uh...left the Left--that and a growing conviction that (1) there might be a God, and (2) it might be wrong to take one guy's money just because he has it and give it to another guy just because he doesn't (while keeping a pretty sizeable portion for the distributor's self, of course).

P.S. I have heard that Japan has offered to open up its petroleum reserves to help us out here. But I have been unable to confirm the rumor. (If so: Thank you, Japan, for the offer.)

Because of my family's (hispanic) heritage, we talk alot about immigration, especially illegal immigration. In general, I'm probably the most conservative about the matter. I think we can--and should--be as stringent in protecting our border with Mexico as as we possibly can.

The influx of illegal immigrants from Mexico is not likely to let up any time soon, and certainly not without stronger enforcement measures on our part. The reason? It's the economy--the Mexican economy, that is. And this problem is not going to be solved merely by closing the border as some conservatives have suggested. Oh, I suppose we could and it would work, but before we get too enamored of that idea consider that the unemployment rate in Mexico is roughly equivalent to that of the U.S. during the Great Depression. This article ("Mexican Magnet" published 17 August 2005
) would be well worth the time spent reading it.

Now, in all honesty, while I am certainly no fan of illegal immigration, I must wonder what I would do had--putting shoes on another foot--I been alive during the depression and all I had to do to support my family was smuggle myself into Mexico. I have always found it difficult to fault people simply for trying to make a living (though I do greatly fault people who do so and demand the privileges and immunities of citizenship, such as free education, in-state college tuition, drivers' licenses, etc).

Having said that, let me say that I find none of the arguments defending illegal immigrants very persuasive. My least favorite is the argument that illegals only take jobs that we are unwilling to take. The real truth is that they take jobs that most of us don't have to take. Frankly, most of us can take other jobs; we have other options. After all, why should someone give up a job that pays tens of thousands of dollars per year for one that doesn't pay much more than ten thousand--if even that much? The others of us don't take those jobs because one of the privileges and immunities of U.S. citizenship is that those members of the ranks of the unemployed who don't want "those jobs that no one wants" and, consequently, do not work, are able to live off of those who do work. We could try ending welfare and then see if there are any takers for those jobs "no one" wants.

But, for all that, it remains the case that the real problem is Mexico's economy. There is virtually no middle class in Mexico. And with an unemployment rate roughly that of our Great Depression, the average Mexican lives in the midst of what we would call a disaster area. And it isn't much different in South America either (especially in Guatemala). Our approach to the problem (and I don't claim to have a clue) must deal intelligently with that fact that many illegals are refugees. And it would be easier to feel like treating them like refugees if they would simply act like refugees. And many of them don't.

Take for example a certain rancher I heard of, though I have not been able to confirm this yet. He has been cautioned by his local government not do travers his property to check on the condition of his cattle. Why? Because it's dangerous. You see, his cattle are being rustled, not by cattle thieves who are going to take the rustled cattle to market, but by illegals. They take this man's cattle, slaughter them, then barbecue them--right on his property! This same man's parents, I have heard, were essentially held prisoners in their own homes by a group of illegals who came in and took over while they were trying to get away from someone who was after them. Imagine it.

In short, many people would find it easier to respond compassionately to theses refugees if more of them would act like refugees instead of invaders. You have to really know your Roman history to get the full import of this (and if you don't know your Roman history you won't understand it the way that you think you do): what is presently happening is a "barbarian" invasion. (Michelle Malkin has used her column to report on this invasion, which includes invasions by dangerous and violent gangs--in some cases machete-wielding gangs. See. e.g., her "The gangstas in my neighborhood" 31 August 2005 (accessed 31 August 2005).)

P.S.
It should be noted that many people coming into the U.S. are not Mexicans; they are South Americans.

Also, since 911 the United States have asked Mexico to beef up security along its border with Guatemala. Apparently, the idea is that many of those coming into the US from South America via Mexico may be potential terrorists. Fine. But I don't know about the advisability of passing part of our security problem down to Mexico when, as I've just said, they really have their own set of very real problems to work on. They have a Depression to put an end to.

I have finally been able to see "Revenge of the Sith." While I did not note all of the politicization that my friends told me the movie contained, I did enjoy the line, "Only the Sith deal in absolutes." (Of course, I happen to believe that the derivation of "Sith" is "Seth," as in the godly line of the descendants of Adam.)

Of course, that line received some well deserved attention--especially since it itself is an absolute. But some friends of mine decided rather than offer a philsophical argument taking that line to task they would just go with it and have some fun. They gave each other Sith names.

I have decided to do the same. Call me Darth Rhiyv (sounds like "reeve"). Having nothing to do at lunch one day I came up with the following Sith names. Pick one.

Darth Aerrogain (sounds like "AIR-again") (from "arrogant", which we Sith are--for believing that we know the absolute truth)

Darth Aebail (pronounced "Abel")

Darth Aedwairds (pronounced "Edwards")

Darth Aelius ("alias") (from "aleithia", the Greek word for truth)

Darth Aenaak (pronounced almost like "Enoch," but more like eh-KNOCK)

Darth Baansain (pronounced "Bahnsen")

Darth Baegus ("BAG-us") (from "biggot")

Darth Baen (also sounds like "bane") (from "bane," which, of course, the Sith are)

Darth Baem (rhymes with "same") (from "bomb")

Darth Bain (sounds like "ben") (also from "bane")

Darth Blaeghairt (pronounced "BLEH-girt") (from "black heart," or "black guard"--take your pick)

Darth Braeg (rhymes with "braid") (from "brag," since we Sith brag that we know the truth and no one else does)

Darth Braemstain (pronounced "BRIM-stin")

Darth Daeblain ("DABBLE-in") (from the Greek, "diabolon", "devil")

Darth Faarail (pronounced "Farel")

Darth Gaen (sounds like "gain") (from "gun," which every good right-winger possesses)

Darth Haache (pronounced "Hodge")

Darth Khaalvain (pronounced "Calvin")

Darth Kaiypair (pronounced "Kuyper")

Darth Kharkopian (from "cacophony," which we surely create at all our Sith protests, etc)

Darth Khartaen (car-TAIN) (from the Greek for "judge")

Darth Khophius (also from "cacophony")

Darth Kraitaen (from the Greek "krateo," "I seize," i.e., power, money, etc [e.g., democrat], since we Sith are enemies of democracy, which is an interesting assertion when you think about what the word democracy means [i.e., "the people sieze"]!!!)

Darth Krattis (also from "krateo")

Darth Lor (from "liar")

Darth Louthair (sounds like "Luther")

Darth Maal (rhymes with "pal") (from "malicious")

Darth Maes (pronounced "mace") (from "mess")

Darth Maintus (pronounced "MAN-tis", as in praying mantis) (from the Spanish word for "liar")

Darth Mouul (pronounced "mole")

Darth Naax (pronounced "Knox")

Darth Phaeb (rhymes with "babe") (from "-phobe" ,as in "homophobe")

Darth Praed (rhymes with "braid") (from "proud")

Darth Rhaaiytwiyng (pronounced "right-wing")

Darth Rhael (sounds like "rail") (since we Sith rail against this and rail against that)

Darth Rhaek (pronounced "rake")

Darth Rhaemus (from "ignoramus", since we Sith are uneducated and stupid)

Darth Rhaes (pronounced "race") (from "racist")

Darth Rhantis (from "ignorant")

Darth Rhait (rhymes with "wet") (from "wrath")

Darth Rhiyv (pronounced "reeve") (from the Hebrew word for a legal case)

Darth Saipraem (pronounced "sih-PRAME) (from "supremacist")

Darth Sait (pronounced "set", from "Seth")

Darth Sarpaen (sar-PAIN) (from "serpent")

Darth Scaephair (pronounced "Schaeffer")

Darth Slaet ("slate") (from "absolute")

Darth Taen (rhymes with "bane") (from "certain" since we Sith claim to have certainty about our beliefs)

Darth Taihraen ("h" is silent;sounds like "terrain") (from "tryant," since we Sith want to institute a theocratic tyranny)

Darth Taihroi (pronounced teh-ROY; rhymes with "destroy") (from "destroy")

Darth Tain (pronounced "ten") (also from "certain")

Darth Tair (pronounced "tare") (from the Spanish, "poder," "power")

Darth Traen (pronounced "train") (also from "tyrant")

Darth Tourhetain (pronounced "Turretin")

Darth Vaantael (pronounced almost like "Van Til," but more like vin-TAIL)

Darth Vairachius (ver-AH-key-us) (from "veracity")

Darth Vairatis (ve-RAH-tis) (from "veritas")

Gee, this is fun! More fun than engaging in a light-saber battle (i.e., logical rejoinder) with a "Jedi"--especially since these Jedi are in most cases...uh...unarmed, if you get my drift. Try it yourself and see what you come up with.

One difficulty in discussions about the originalist approach to the law is a failure to distinguish properly between what the law is and what the law should be, or, in other words, between law and policy.

Many people, I think, approach the work of the court as if it were the job of the court to make decisions on the basis of what the law should be. For example, Erwin Chemerinsky (dean of the Duke Universtity School of Law) criticized Justice Thomas, because Thomas believes that it is permissible under the Constitution for a state to establish a religion. Chemerinsky, rather than offering an analysis of Thomas's reasoning, offered instead as his critique that he doesn't want to live in a country where a state could establish a religion by legislative act. (Interview with Erwin Chemerinsky,Hugh Hewitt Show (2d Hour), 27 June 2005.) That's all well and good, but notice that he doesn't offer an analysis of any passage in the Constitution; there is no legal analysis. What we get is the mere assertion that he doesn't want to live in a country where a state could establish a religion. He doesn't lead off with an assertion that the Constitution actually prohibits a state from doing this. For him, the first question is not, "What is the law? What does the Constitution say?" No, the first question for him is, "What should the law be, in order to be satisfying to me?" That is a policy question, not a legal question. And it is for legislatures to answer policy questions; it is for courts to answer legal questions.

I wonder how Justice Thomas could have such a silly idea as that a state may establish a religion by legistlative act. Could it be because the Constitution says, in relevant part:

Congress shall make no law respecting an establishment of religion.... (Amendment 1)

Being an originalist, and applying the grammatico-historical method of document interpretation, Justice Thomas no doubt notes that the subject of the above sentence is Congress. It is Congress, not a state legislature, which is prohibited by the Consitution from making a law establishing a religion. Given the Tenth Amendment's asserton that

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people

Thomas clearly believes that the states, not being otherwise prohibited by the Constitution, are in fact empowered to establish relgions if they desire to do so. And only someone who believed what I regard as the silly idea that the 14th Amendment "incorporates" parts of the bill of rights (without specifying which parts, of course--the Supreme Council of Prophets will do that) could believe that the Constitution prohibits states from establishing a religion by legislative act.

Now, like Chemerinski, I also do not want to live in a country where a state could establish a religion, especially since adherents to my religion (i.e., presbyterian-reformed) are few in number. But this venue is where my opinion rightly belongs, and in the voting booth. My prefernece on this matter ought not be given the force of law simply because I am a justice of the U.S. Supreme Court and can give this preference the force of law by placing it in a legal opinion. Nine people cannot be given the power to make their personal preferences the law of the land; it's not republican. The distinction between policy preferences and the actual law must be maintained.

Another example of this confusion of law (i.e., What is the law?) and public policy (i.e.., What should be the law?) is the furor--during his confirmation hearings--over Attorney General Gonzalez's "approval of", a Justice Department memo, which supposedly authorized torture. Specifically:

The memo included the opinion that laws prohibiting torture do "not apply to the President's detention and interrogation of enemy combatants." Further, the memo puts forth the opinion that the pain caused by an interrogation must include "injury such as death, organ failure, or serious impairment of body functions in order to constitute torture." (from "Alberto Gonzales: A Record of Injustice," Center for American Progress, cited 21 July 2005)

Now, the way we heard it--or read about it--one might think that the AG, when he was Counsel to the President, was asked, "Hey, man, can we torture those guys we have at 'Gitmo'?" and said, "Of course you can." In fact, he was asked a legal question. He was asked if certain acts would violate the law. He, in turn, asked the Office of Legal Counsel to advise him.

So then, the memo in question was prepared for, not by, the AG. And it was prepared for him by the DOJ's Office of Legal Counsel at his request. (See Memo 1) The memo was an opinion on what the relevant law is with respect to torture (especially what constitutes torture under 18 U.S.C. 2340--2340A), and was written in four parts. Part I (Memo 2--12) is an examination of the statute's text and history, concluding that in order for an act to constitute torture it must inflict "pain that is difficult to endure," like the sort of pain that accompanies serious physical injury, or "extreme acts." Part II (Memo 13--22) examines the text, the ratification and negotiating history of the Torture Convention (U.N.), concluding that the treaty prohibits "only the most extreme acts by reserving criminal penalties solely for torture and declining to require such penalties for 'cruel, inhuman, or degrading treatment of punishment." Part III (Memo 22--27) examines the jurisprudence of the Torture Victims Protection Act (28 U.S.C. 1350) in order to predict the standards that a court will apply in trying to determine which acts qualify as torture for purposes of criminal prosecution. Part IV (Memo 27--31) examines international decisions regarding the use of sensory deprivation techniques, concluding that "there is a wide range of...techniques that will not rise to the level of torture." Part V (Memo 31--39) examines whether Section 2340A would actually be unconstitutional if it is applied to "interrogation undertaken of enemy combatants pursuant to the President's Commander-in-Chief powers, concluding that, in fact, prosecution under Section 2340A would be an "unconstitutional infringement of the President's authority to conduct war." (I found this Part to be particularly informative regarding the Presidents's war powers, particulary his power to capture, detain and question enemy combatants "at least for the duration of the conflict." [Memo 38]) Part VI (Memo 39--46), is a discussion of various defenses against allegations of torture under 2340A.

During his confirmation hearings, the AG was asked about this memo. What astounded me was the number of questions and comments, especially from Senator Kennedy, about what whether this or that act ought to be thought torturous, as if that were the issue. And it wasn't. The issue was: What is the law? Gonzalez had a DJ memo advising him on precisely that question. I never heard any part of the memo refuted by any senator. I never heard about any of them saying anything like, "The Office of Legal Counseled erred in its examination of section 2340A in such and such a manner. How could you have missed such a glaring error in legal scholarship, Mister Gonzalez?" I never read any refutation of any of the contents of the DJ memo. Maybe I looked in the wrong places. At any rate, the questioning of Gonzalez focused on what should be considered torture, not what in fact, under the law, is torture. You see the AG's mistake, don't you? I do: he sought to find out what the law is when he should have sought to find out what the law should be. And all he had to do there, apparently, was ask Ted Kennedy. And there we get to the real culprit in all this: George W. Bush. What did he do wrong? Why, he failed to make Ted Kennedy his White House counsel! How could he have been so stupid?

I truly believe that life in the republic would be immeasureably improved if everyone would bear in the mind the difference between two questions: (1) What is the law? (2) What should the law be? The first question is for courts. The second is for legislatures.

A caller to Dennis Prager's radio program today asserted that the cure for terrorist acts against the U.S. is for the U.S. to "keep its nose out of other people's business." (Dennis Prager Show, 1st Hour, 22 July 2005, KNUS 710-AM) This caller then rattles off several countries in which the U.S. has poked its nose. And last week, a caller to Michael Medved's radio program said that the cure for terrorism was for the US to stop spreading our culture around the world. We needed to repent of this, he claimed. (Forget for a moment the fact that our culture is being piped into these countries by the people who live there and purchase satellites!)

I am more than a little tired of the hand-wringing and self-recrimination that we are supposed to be engaging in this country. I am more than tired of the hand-wringing and self-recrimination that some people in this country are, in fact, engaging in.

According to one British writer (I can no longer locate the source), we are supposed to understand Muslim anger. We are suppose to understand how they can be angry with us (i.e., either the US specifically, or the West in general) for attempting to impose our culture on them. We are supposed to understand because of our involvment in attempting a conquest of Muslim lands going all the way back to the first crusade. (Never mind that this was undertaken not by "us" but by Catholic Europe.) We are supposed to understand because of our involvement in the colonization of Africa, the Middle East and India, etc. (Never mind that this was undertaken not by "us" but, again, by Europe. Ask yourself, for example, just why French is spoken in Sierra Leone, or Vietnam.)

Then there's the Mayor of London, suggesting that we must understand how Western policies, motivated by Western need for oil, are really responsible for all this. (See, Andrew Gray, "London mayor says West fueled Islamic radicalism", 20 July 2005,

We are supposed to understand that they believe we are trying to conquer them because we have military bases in their countries. And, of course, we can understand their position: Muslims, of course, have never engaged in any conquests of their own.

I think I will start feeling a little remorse--for only God Himself knows what--when the Turks rename Istanbul, Constantinople; and when they, themselves, express remorse and do some self-flagellating for taking what is now known as Turkey away from the Byzantines. Actually, I think we should ask for more here: The (Muslim) Turks ought to turn the area back into a Christian civilization.

I will start wringing my hands, when the Muslims surrender all those places that were Christian before they were Muslim, places like, say, Syria and Egypt, just for starters.

I will never feel--much less express--any guilt over the crusades, for two reasons. One: I am not a Catholic; I feel no need to apologize for anything Catholics have ever done. Two: Not only am I not Catholic, I am not European. Indeed, as a descendant of people who left Europe, if anything I am inclined to be rather anti-European in some respects. (And I will make no apologies for that until I see some apologies from some Europeans with anti-American feelings.) I feel no need to apologize for anything Europeans have ever done. (I mean seriously. On just my mothers side, I have both Viking and Scottish blood. If one were to assert that as a descendant of Europeans, I owe Muslims an apology for the crusades, then by the same logic I might owe an apology to the Scots for any harm they may have received from the Vikings, or perhaps vice-versa. Perhaps I should apologize to myself--twice. But since I am a descedant of them both, I can't see how this would work out. I also have some Spaniards in my ancestry, so, if anything, let some Muslims apologize to me for their conquest of Spain, a conquest it took Spaniards almost 700 years to undo.) Three: Inasmuch as the crusades were launched to regain the Holy Land...uh...from Muslims, I feel no need to apologize to those who took it from Christians in the first place. That area--one of many--was Christian before it was Muslim, Roman before it was Christan, and Jewish long, long before it was conquered by Rome.

Let Islamicist terrorists accuse the West of what they will. Their heroes and ancestors did it to ours first. They were in the conquest business long before there was a West, when the West was nothing more than a smattering of warring babarian tribes who had not even been "christianized" yet. One could say they taught the West all about conquest. I mean, really, which Western european (post-Rome) empire could compete with the Muslim East, especially the Ottoman Turks? And I don't see any of these terrorist types expressing any remorse for their--or their ancestors'--conquering ways. They're a bunch of hypocrites: conquest is just fine for them and theirs, but no others. All of this is academic anyway: if we (i.e., the US) wanted to conquer, we wouldn't be talking about our desire to conquer: we'd be done already.

Furthermore, we have an all-volunteer military. Two things would have to change in order for our military to be the effective means of extending an empire anywhere in the world. (1) We would have to have an equivalent to France's foreign legion, staffed with non-citizens who would be willing to extend our empire in exchange for the promise of citizenship. The average US serviceperson, while willing to serve for the protection of his country, is not interested in extending an empire: his interests are a bit too narrow. (2) We would have to cease to be a republic; for, as the Romans learned, an empire is not very effectively ruled with a republican form of government. (Which, by the way, is probably why we conservatives see democracy in the middle east as the most effective solution to the terrorist problem.)

In an earlier post I took Arlen Specter to task for not understanding what originalism means. I thought it might be handy, especially since I hope the subject won't go away for some time, to offer up an example of what originalist thinking looks like. Now the beauty of originalist thinking is that you can do this at home--with just a little help in the way of grammatico-historical analysis. In fact, I happen to think that it's so relatively easy that only a well trained lawyer can screw it up.

Let's take, for our experiment, a case similar to Roper v Simmons, a recent case, decided just a few months ago. The question in the case was whether a state law permitting the execution of a 17-year-old, convicted of murder, constituted a "cruel and unusual punishment" under the Constitution.

When turning to the text of the Constitution, we find that capital punishment is acknowledged (at least as a possibility) in Amendment 5, which states, in relevant part:

No person shall be...deprived of life...without due process of law....

Amendment 8 states: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted

.

Taken together we can readily understand that capital punishment, in and of itself, is not considered, in the Cosntitution, a "cruel and unusual" punishment.

In Roper, Simmons argued that the execution of a minor was in fact "cruel and unusual". Of course, the problem is that the constitution doesn't define, in the text, what it means by cruel and unusual. As Justice Stevens pointed out, in his concurring opinion in Roper:

If the meaning of that Amendment had been frozen when it was originally drafted, it would impose no impediment to the execution of 7-year-old children today. See Stanford v. Kentucky, 492 U. S. 361, 368 (1989).

What is a poor originalist to do? Well, the first thing to do is to acknowledge that Justice Kennedy is correct: the Constitution would not forbid the execution of a 7-year-old today. (Let's cknowledge that what the Constitution permits it does not exactly require.) Therefore, the Constitution does not forbid the execution of a minor.

Right about here is where the originalist must part company with "vitalists" (that is what I now call people who hold to something like the "living, breathing document" garbage). For vitalists want right here to invoke the notion of evolving standards of decency; so do originalists--just in a different way.

What vitalists want to say--and what they do say--is that societal standards have changed since 1789. We would no longer sentence a 7-year-old to death. The court has to apply a standard to Constitutional review such that this changed standard is taken into account.

But does the court really have to do this? As an originalist, I can easily agree with the Court that our standards have changed. This change is reflected in the fact that the State of California, while permitting the execution of a minor, does not permit the execution of a 7-year-old. There, in the legislative act, is the evolved societal standard at work (specifically, the society of the State of California).

The originalist notes the fact that punishments for crimes are specified by Congress, or the state legislatures, respectively. And it is in legislative acts that changing societal norms--what the Court wants to call "consensus"--are reflected. Judges apply the law, not their best guesses as to what the new, improved societal norm, or consensus, is. The fact that the State of California has a law permitting the execution of a minor, demonstrates that there is not a uniform consensus in the State of California against the execution of a 17 year old. And, in contrast with the Court here, an originalist does not count it relevant, in Constitutional review, that some other state, or some number of other states, have reached a uniform consensus against the execution of minors. And it certainly is irrelevant that some other nation, or group of nations, has reached such a consensus. Again: judges apply the law, not what they think is popular sentiment. As popular sentiment changes, let the people reflect those changes through their representatives in their legislatures. That is what a legislative body is for, under our system of government.

"But," says someone, "putting minors to death is barbaric!" Well, I do just happen to agree--up to a point. That is, I do think that putting 7-year-olds to death is barabaric; I would even stipulate that it is barbaric to put a 14-year-old to death. But I don't think that it is barbaric to put Simmons to death--not for his crime. But this is my personal opinion; it is not the law. And the place for my personal opinion is in the voting booth--or in a blog--not, if I am an appellate judge, in an appellate opinion. (And there's no danger of that happening, I can assure you!)

"What you're saying", says someone else, "is that if enough people in a state think that it is not cruel and unusual to execute a 7-year-old, then that state may do so." That is exactly what I'm saying.

"But there has to be a limit on state power, don't you think? The Constitution was written to limit the power of government." I do indeed believe that there has to be a limit on state power; but the Constitution wasn't written to limit the power of government. It's purpose was much narrower. It created--and limited--the power of the federal government. The state governments have their own constitutions, which constitutions--ratified by their citizens--serve to limit their power. The upshot of my position here, then, is that the 8th amendment prohibits the federal government from inflicting cruel and unusual punishments--not, technically the states. So nothing in this discussion defeats my position that, in fact, the execution of Simmons is not unconstitutional.

"But wait", you say, "the 14th Amendment applies the Bill of Rights to the states." Well, I reply, not for an originalist. On an originalist view, the doctrine that the 14th amendment wraps up the Bill of Rights and applies them all against the states is really rife with problems. First: How, logically, would the 9th and 10th amendments be applied against the states?

The 9th amendment states:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Note the text. It says, in effect, that the rights identified in the Constitution are not the only rights the people have. When vitalists use this amendment against the states, they use it to find those new and unusual rights. When I have asked the vitalists I know, "Where is that right?" They invariably reply, "Well, it isn't specified in the text of the Constitution. But the 9th amendment clearly asserts that the rights in the Constitution are not the only rights the people have. And the courts have to define and protect those rights--whatever they may be--from state encroachment." But this assumes as true what has not yet been proved: that the Bill of Rights is applied to the states by the 14th amendment. What the text says is that "the enumeration in the Constitution" of rights is not to be interpreted as meaning that those rights--and only those--are all the rights that the people have.

Three things must be born in mind here. First: the Constitution, as I said above, creates and limits the federal government. It does not creat and limit any state government (except insofar as state power is limited by virtue of certain powers having been delegated to the federal government by the states). So the protection here is not a protection of rights of the people against the states wherein they reside; it is a protection against the federal government. Second: A right is a right against some entity. In this case, since we are talking about the federal constitution, these other rights, not specified are rights against the federal government. Three: the "people" in the Constitution live in states, not in limbo. The 9th amendment concerns states rights.

"Yes", someone says, "but clearly the incorporation doctrine would mean that the 9th amendment, when applied against the states, means that citizens in states do not have only those rights enumerated in their state constitutions." Perhaps. But this also assumes what has yet to be proved: that the 14th amendment does indeed apply the Bill of Rights against the states. Also: if the federal constitution is sufficient to protect the people against their federal government, a state constitution should be sufficient to protect them from their state government. And if not, then the people may take up arms to defend themselves from tyrants if need be. It's the American way.

The 10th amendment states:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

Even if I could accept vitalists' arguments for the applicability of the 9th amendment against the states, I cannot see how this amendment can be so applied. Notice that this amendment addresses "powers...delegated to the United States by the Constitution." The "United States" here refers to the federal government. The powers that the federal government has were delegated to it by the states that created the union and the federal government in the first place. How would vitalists see this amendment applied against the states? To have any meaning, the 10th amendment, applied against the states should be understood as saying that "The powers not delegated to the State by this (State) Constitution, nor prohibited by it to the counties (or cities), are reserved to the counties (or cities) respectively, or to the people." This of course would be based on the understanding that the states were created by the counties, which they weren't.

Of course, all of this assumes "full" incorporation, and what the court typically applies is a doctrine of "selective" incorporation. But the need to make this distinction tells me that incorporation of all or even part of the bill of rights was not intended by the 14th amendment. It is clear that the 9th and 10th amendments cannot be applied, so if the amendment had in view the application of all or part of the remaining eight amendments then it surely should have specified which, if not all.

The most obvious application of the 14th amendment is simply that, just as the amendment has it, all persons--regardless of color, or prior status as slaves--born or naturalized in the United States are citizens of the United States and citizens of the state wherein they reside. In other words, especially as it regarded the newly freed slaves, they were not merely alien residents, with no rights of citizenship. All persons born or naturalized in the United States are citizens and are entitled to all of the rights and privileges accorded to citizens.

The second problem with the doctrine that the 14th amendment wraps up the Bill of Rights and applies them all against the states is that nothing in the text of the amendment states this. Section 1, the relevant part of the 14th amendment, for our purposes here, states:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

It would have been a simple thing for this amendment actually to contain language to the effect that the first ten amendments (or at least the first eight) now applied to the states. But it does not do this; and I pointed out in a previous post what the Supreme Court's, intial understanding of the 14th amendment was (as expressed in Slaughterhouse). This understanding began to change in 1925 when the court started gradually incorporating the provisions of the bill of rights into the 14th Amendment's "due process" clause by declaring each of the rights fundamental to the conception of due process. And there was no real explanation of this doctrine until Gideon v. Wainwright, 372 U.S. 335 (1963)--almost one hundred years after the amendment was ratified. Justice Hugo Black, for the majority, wrote:

"This Court has looked to the fundamental nature of original Bill of Rights guarantees to decide whether the Fourteenth Amendment makes them obligatory on the States. Explicitly recognized to be of this "fundamental nature" and therefore made immune from state invasion by the Fourteenth, or some part of it, are the First Amendment's freedoms of speech, press, religion, assembly, association, and petition for redress of grievances. For the same reason, though not always in precisely the same terminology, the Court has made obligatory on the States the Fifth Amendment's command that private property shall not be taken for public use without just compensation, the Fourth Amendment's prohibition of unreasonable searches and seizures, and the Eighth's ban on cruel and unusual punishment." (Gideon, 372 U.S. at 341-42.)(Emphasis mine).

First, the court decided that certain parts of the 14th amendment applied to the states, never mind the actual amendment that the states thought they were ratifying! The court decides what sort of legal burden to place us all under, then later explains it to us. And if we disagree...?

Even so, the fact that the court decided to incorporate the bill of rights is to me proof that the amendment was not written and ratified with the idea of incorporating the bill of rights. Furthermore, the court later discussed incoporation as a philosophy. Writing in Pointer v. Texas, Justice Harlan said:

"The philosophy of 'incorporation,'...subordinates...state differences to the particular requirements of the Federal Bill of Rights...and increasingly subjects state legal processes to enveloping federal judicial authority." (Pointer, 380 U.S. at 409.)

It is clear to me that this "philosophy of incorporation" is nothing more than a power grab by a prehensile court. And that fact raises a good question, I think: if the court can willy-nilly decide to incorporate the bill of rights, can it not just as well--and more properly--decide to unincorporate the bill of rights? Another way of asking the question is: if the court engages in a power grab, can it not relinquish that illegitimate usurpation? I think not only can it do so, but that it ought to do so.

Now some want to say that originalists should accept the notion of incorporation because Senator John Bingham said it was their intent to apply "the sacred Bill of Rights" against the states, and originalists are supposedly all about "original intent". Frankly, I don't find the history of the debates conclusive here. But more than that, given the effect of such a move as Bingham and his ilk intended, this language certainly should have been in the amendment--at least on the assumption (which I think reasonable) that when you are signing away some of your rights, those surrendered rights ought to be explicit! The expression of Bingham's desire took place during the senate debates (1866) on the subject (i.e., the 14th Amendment). This hardly means that this was the purpose that other senators had in mind. And it certainly does not mean that the states understood the amendment as having this effect upon them. (Besides, by "intent" most of us mean "meaning," as arrived at by application of the grammatico-historical method, or interpretation by use of regular rules of grammar and the facts of history. Utilizing this method of interpretation, one takes into account the historical settings and situations in which a text is written, in an effort to draw out the intended meaning which grammar cannot do alone. To know something of the life and times during which a text was written greatly enhances understanding of the text by placing what we read within its historical context. The grammatico-historical method seeks to interpret the words of a text in light of what the words meant when the document was written.)

The application of the Bill of Rights against the states has been nothing short of a "cold" revolution, a revolution in the relation of the states to the federal government, a revolution in the powers of both federal and state governments. This is exactly what the court said in Slaughterhouse (see my aforementioned post).

Given the fact that the incorporation doctrine radically alters the form of government created by the Constitution, it is not too much to require that the language in the amendment should make this radical alteration more explicit.

The third problem with the doctrine that the 14th amendment wraps up the Bill of Rights and applies them all against the states is that it is not at all clear that the states understood themselves to be ratifying an amendment which would do this. It surely is not right that states ratified an amendment, only to find out later that, by ratifying said amendment, they had surrendered as much power as the incorporation doctrine asserts they surrendered.

Now, I understand that some very bad 14th amendment jurisprudence took place, like, for example Justice Waite's opinion in U.S. v. Reese, 92 US 214 (1876), which effectively deprived blacks of what the 14th amendment provided. But I believe this bad jurisprudence could have been corrected without applying the notion that the 14th amendment applies the bill of rights against the states. As it is said: abusus non tollit usum ("prior abuse is no argument against proper use"). In other words, it is no argument against the position I take on the 14th amendment that this position was formerly and regularly abused by the Supreme Court. (This is especially the case if you think, as I do, that the position of the court in cases like Reese was not reached on the basis of originalism!)

Now, getting back to the death penalty and minors: The Constitution, on a proper view (meaning, a view which applies the grammitco-historical method), does not prevent the execution of minors, specifically, in this case, a 17-old. As for the issue of evolving societal standards, these standards are held in the minds of people, who live in states whose laws are created by popularly elected representatives. The acts of these legislatures, under our Constitution, are the proper places for these evolving standards to work their will, and to make themselves known. (Interview with Robert Bork (2d hour), Laura Ingraham Show, KNUS 710-AM, Denver, Co., 15 July 2005.)

Of course, what the court said in Roper, was something akin to this. Legislative acts do reveal evolving standards; and a majority of states have outlawed such executions. Therefore, there is now a societal standard which rejects such executions, and since evoling standards must determine the meaning of terms such as "cruel" and "unusual" in the Constitution, these types of executions are now unconstitutional.

But note two things about all this. First, the states which freely created this putative new consensus, cannot now freely reach a contrary consensus later. Second, I would also like to point out, that the Court, in Reese, among other cases in which the court failed to protect the rights which the 13th and 14th amendments were intended to extend to blacks, was only doing just what the court now asserts that it may do. It simply applied its view of what the national consensus was, regarding the status of blacks in US society, as evidenced, I am sure, by the legislative acts of states. If one can accept that approach when it comes to, among others, death penalty cases, then I find it difficult to see why one cannot accept it when it comes to civil rights cases--cases like Reese and, of course, Plessy v Ferguson, 163 US 537 (1896).

According to the New York times, conservatives are attacking AG Gonzalez. It is interesting that this would make the news. After all, if any group has a demonstrated history of attacking judicial nominees (and the AG hasn't even been nominated) it is the left. From Robert Bork to Clarence Thomas and the recent Bush appellate nominees, the left has launched an artillery barrage on one "conservative" nominee after another. (And Bork, who hasn't been nominated to another court since 1987, continues to be attacked by the left. Bill Bennett played a clip of some remarks made recently by Ted Kennedy about "Bob Bork's America". [Interview with Robert Bork (3d hour), Bob Bennett's Morning in America, KZNT 1460-AM, Colorado Springs, Co., 6 July 2005.])

Besides, nothing that I have heard said about the AG comes near to what has been, is, and most likely will continue to be said about "conservative"nominees.

Not, of course, that I am surprised at hypocrisy on the left. I have quite a few friends and relatives who are liberals. (I was a liberal in my mis-guided youth. I began my slow conversion during the summer of 1980 when--as a fifteen year old--I watched both the Democrat and Republican national conventions. By I digress.) It continues to amaze me how many of these liberal friends and relatives complain about our country's past sins. One of my favorite complaints is about how we stole this country from the natives. The loudest of these complainers--a child-less couple--lives in a huge house, on land once "owned" by the natives. Another interesting fact about all this: these same people complain about how some people have too much money and buy things they don't need. Yeah. Like houses bigger than the one which housed the Brady bunch! Apparently, the only people who aren't "too rich" are rich liberals. And isn't it odd that there is such a thing as a rich liberal? You would think that if they were really as generous as they whine that they (and no one else!) are, then not a single one of them would be rich.

If I were poor and these people were determined to help me, I would go down on my knees and pray, "God deliver me from my benefactors, for they are hypocrites."

Arlen Specter again: If we followed original intent, the US Senate would still be segragated, with caucasians on one side of the chamber and blacks on the other side. The man is either an idiot, or a liar. He is an idiot if, as a lawyer, he does not--as Bork put it--understand what originalism means. He is a liar if, as I believe, he does in fact know what originalism means, but lies about it for some reason. Either way, as far as I am concerned, the man has no business having a say on who should be on any bench, not even justice o' the peace in Mayberry, RFD! (Of course, that is up to the people of the state of Pennsylvania, who keep electing him to the Senate which, of course, means that he does have a say in who sits on a federal bench. I'm just saying that the people of PA, who elect him, ought to think about whether he's really qualified. I mean, after all, the man is either a liar or an idiot.)

Furthermore, and demonstrating either his ignorance or his dishonesty (well, he is a politician, after all!), Specter is just wrong about what originalism means. Here, paraphrased, is how Scalia defines originalism: One cannot adopt a theory that the Constitution is evolving and the court will tell you what it means.

But there is another reason why Specter is wrong: the Constitution, specifically in the 14th Amendment (sec. 1) forbids discrimination:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws (emphasis mine).

Now, on an originalist view, the meaning of that amendment will never change. That is not true, on the contrary view (i.e., "living breathing document" sewage). On the contrary view, any term in the amendment could be re-defined such that--what do you know?--the Constitution really does permit states to deny equal protection of the laws. And let's be clear: there is nothing--NOTHING--that would prevent the court from re-defining any term. It already does so with impunity.

(Speaking of Bork: yesterday, he had an editorial printed in the Wall Street Journal (and available here) in which he describes the problem with what the court has become. It is a must read.)

Arlen Specter thinks that whoever Bush nominates to the Supreme Court ought to be a uniter. We don't want someone from the extreme left because that judge won't "unite" us. Neither do we want someone from the extreme right because, again, that judge won't "unite" us. Okay. Get Specter off the Judiciary Committee: he has no idea what the heck a judge does!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

What in the world does he mean by this garbage about "uniting"? There are Liberals in this republic; and there are Conservative in this republic. (There are also those other people who think they are Moderate, which only means they have not the courage to confess that they are liberals. But I digress.) What does a "uniter" do? Make liberals cease to be liberals? Make conservatives cease to be conservatives? If judges are going to be "uniters", who in the world is actually going to decide cases under the law?

Here is what is united in this country: the states who created this union. Let me say that again: the states created the union. And what unites the states is the agreement to "hang together" under terms specified in the Constitution, a Constitution which the states freely ratified.

Whatever the answer, I don't not want "uniters" on the courts. I want originalists; I want judges who know what the heck a law is, specifically in a republic. And in a republic--our republic, anyway--a law is created by act of a legistlative body, approved and carried into effect by an executive. In a republic, the courts do not pass judgment on the wisdom of the people and/or their elected representatives, deciding what the law should really be; they decide whether the law--as created by the legislature--has been followed. And in a republic, courts don't do this very well when they are allowed to declare themselves empowered to alter the definitons of words in the laws, thus changing (i.e., amending) the laws. In a republic, the only body who changes the laws is the same body that created those laws: the legislature.

And I also believe that in a republic, the citizens ought to question whether their judges ought to resolve issues by recourse to "settled" legal principle. Judicial review is "settled" principle. The "incorporation" doctrine (i.e., the 14th amendment applies the Bill of Rights against the states) is "settled" principle. And who says so? Why a handful of members of the legal community. But when did we cede to the legal community the priviledge of "settling" things for us?

According to the President's detractors, Bush "invoked the tragedy of 911 to justify our occupation of Iraq" in his speech to soldiers at Fort Bragg. This is yet another demonstration of just the sort of perversion of fact and logic to which the Left is willing to resort in doing nothing but crowing about a President they simply do not like, and who will never do anything they like--except leave office. (Read the text of the speech here.)

Let's look at each of Bush's mentions of 11 September 2001 in turn.

The troops here and across the world are fighting a global war on terror. The war reached our shores on September 11, 2001

Here, the the President makes two assertions. The first of these two assertions is that the military is at present "fighting a global war on terror." This is undeniably true. It would be true even if we were not doing any fighting at all in Iraq. The second assertion is that this war "war reached our shores on September 11, 2001." That also is true. Neither of these two propositions, clearly, is intended as a justification for our presence in Iraq.

After September the 11th, I made a commitment to the American people: This nation will not wait to be attacked again. We will defend our freedom. We will take the fight to the enemy.

Here, there are two assertions: (1) that, after--and as a consequence of--the events of 11 September 2001, the President resolved that our approach to terrorism on our soil will not be reactive, but active; and (2), as an extension of the logic of the first assertion, we will seek out terrorists and hit them before they hit us. Although, it is true that one reason we are in Iraq is the connection between Saddam Hussien and global terrorism (note that I said global terrorism, not al-Qaeda), it is also true that these propositions could be true apart from 911. Let us say that 11 September 2001 never happened. President Bush could still have decided that we must defend our freedom by taking the fight to terrorists. He might have made this policy decision for no other reason than that he thought his predecessor's approach to terrorists (i.e., to indict and try them in court) was misguided. Furthemore, on the basis of that same logic (and quite apart from 911), he could have decided that we needed to invade Iraq and get Saddam Hussein for no other reason than his persistent refusal to abide by UN resolutions.

The only way our enemies can succeed is if we forget the lessons of September the 11th, if we abandon the Iraqi people to men like Zarqawi and if we yield the future of the Middle East to men like bin Laden.

Is this really an "invocation of...911"? (What in the world does it mean to "invoke" a tragedy, anyway?) Here, we do get close to reliance upon the events of 11 September 2001, as a justification for our presence in Iraq. But so what? One of the things that the left likes to forget is that the President asked for, and received, a declaration of war against terrorism, not a declaration of war against al-Qaeda. Even if we grant the left the premise that there is no connection between Saddam and al-Qaeda, there can be no intelligent dispute that there is a connection between Saddam and terrorism. And it was, again, terrorism against which war was declared. (Bye the way, on the connection between Saddam Hussein and al-Qaeda, see SoCalPundit's resume here. )

They are trying to shake our will in Iraq, just as they tried to shake our will on September 11, 2001. They will fail.

Still no use here of 911 as a justification for our presence in Iraq. All we have here is a description of what the enemy, in Iraq, is attempting to do to us, in Iraq. It does just happen to be the same thing they were trying to do on 11 September 2001. If 911 is being "invoked" here, it is being invoked as a reminder of what the global war--only a part of which is being fought out in Iraq--is about: terrorism. It may be that there is no connection between 11 September and Saddam Hussein, but there is one between terrorism and Saddam Hussein. We went into Iraq to get Saddam as a consequence of the global war on terrorism. This global war on terrorism was declared by Congress. We are still in Iraq, not because of 911, but because of the terrorists who went in there because we went in for Hussein. We are not occupying Iraq because of 911, but because of the terrorists. Saddam Hussein, a supporter and comforter of terrorists, had supporters. It's their fault we are still in Iraq.

After September 11, 2001, I told the American people that the road ahead would be difficult and that we would prevail. Well, it has been difficult and we are prevailing

Keeping in mind that the tragedy of 11 September marked the beginning of participation in the global war on terrorism, this "invocation" of said tragedy, has nothing to do with our presence in Iraq. This same "invocation" would be appropriate in any speech, at any point in a global war on terrorism.

A speech given to those who are fighting a war, with no mention of the event--or events--which precipitated that war would be rather strange. Imagine a speech given to soldiers in WWII in which no mention was ever made of 7 December 1941. I can imagine a speech, given by General Patton, in which he reminds his men that "these Germans are allied with the sons o' bitches that attacked Pearl Harbor. Go get 'em. Go through their ranks like crap through a goose. Grease your tanks with their ****ing guts! And if you find yourselves getting squeamish about it, remember Pearl Harbor." What Bush did,though not as "colorful" as Patton's style, wasn't very much different.

Some observations on Kelo v. City of New London

So, the Supreme Court has decided that your local government can condemn your private property, and turn it over to another private entity. (You can read or download the opinion at the Institute for Justice website, right here.) Of course, the justification for this is that according to the Constitution, government can take private property for public use if there is just compensation. Additionally, the Supreme Court, in a long line of cases, has decreed that since "public use" entails "public benefit" the inverse is also true: "public benefit" entails "public use." Therefore, the "use" doesn't actually have to be public as long as the "benefit" is. And this "benefit" can be nothing more than increased tax revenue. So then, if a developer can transform your property into something that increases the value of your property, and thus the amount of tax revenue the property will generate, then your local government can take your property, give you what it calls just compensation (which will not be based on the increased value of the property after the developer gets finished with it!), and give it to said developer. So then, a government which was formerly charged with protection of private property rights is now transformed into something that protects government tax revenue rights.

Now, as Irwin Chemerinski noted (Hugh Hewitt Show, 2d Hour, 27 June 2005) the court only applied a chain of reasoning it has followed for a long time. Right. That's the problem with it. The Court could have looked at this and seen that this is just where you get when you confuse the concepts of "use" and "benefit". The assumption underlying this confusion of concepts is that the Court can define the terms in the Constitution as it sees fit. And who says that the Court can do this? Why, the Court! Boy that sure is democratic republicanism at work. As I said in a previous blog: if the court can give whatever meaning it desires to the terms in the document then the document stipulates NOTHING that can ever be counted on, and we have no rights. Think of it. We supposedly have the right to petition our government for redress of grievances. Those grievances will by and large be redressed by our making a claim that our government has violated some provision of the Constitution. But now wait a moment. If a branch of that same government, beyond which there is no appeal, can simply define the terms in the Constitiution, then it can define the terms such that no grievance has actually arisen. At present, the only thing that can be done every time the court defines--or re-defines--a term is to amend the Constitution. Think about how many times that would be necessary.

(The court could also have looked more closely as the silliness of the proposition that the public benefits merely by adding to local government's coffers. That's why those who asserted that conservatives should be pleased with this decision because it benefits business are wrong. Conservatism isn't about business first, then private property. The reason that conservatism is about business at all is that one of conservatism's principles is precisely that of the private ownership of property. You must first believe in the right of private ownership, before you can believe in business, which results from private ownership of property.)

Think about this for a moment: "use" means "benefit". If you benefit from something, then, according to the court's logic, that is the same as using it. By extension, if someone, whether or not they are trying to benefit you, shoots someone with a pistol and kills him, and if you are an heir, then you have benefited from the pistol. And if "benefit" qualifies as "use", then you have "used" the pistol. Logically, you ought to be held just as responsible as if you had pulled the trigger yourself. (Why, that's just silly, you want to say. No one thinks like that. But don't they? Are there not people in our society who have claimed, in court no less, that Smith and Wesson--among others--ought to be held criminally responsible for every crime commited with a Smith and Wesson? Indeed there are. And what is the reasoning? When boiled down, it amounts to this: Smith and Wesson benefits from the purchase weapons. "Benefit" equals "use".) Now, of course, someone may want to say that the two cases aren't relevantly similar. But look, once you can define terms like "use" any way you want, you can also define terms such as "relevantly similar" any way you want. So, it makes no practical difference.

We will not truly be in a democratic republic again until two things happen: (1) the Court must be denied the power (a power it arrogated to itself in Marbury v Madison) of judicial review; (2) Congress should be given the power to correct decisions of the Court by a two-thirds majority in both houses. No this won't be perfect, or fail safe. But it will at least be DEMOCRATIC!!!. I want a democratic republic, not an oligarchy! (In fact, I think we might all be better off if we let six farmers who know how to read just replace the six pin-headed intellectuals who think the reader's job is to assign meaning to the text.)

Now that much of the initial furor over the verdict in the Michael Jackson trial is over, I offer my opinion in the matter:

One of the jurors (I believe it was Juror Number 1) explained it correctly. The question in the trial was not, Is Michael Jackson guilty of child molesting? but, Is Michael Jackson guilty of molesting this particular child?

Many of those who are angry about the Jackson verdict, seem to be convinced that the evidence that Jackson is a child molester is incontrovertible. I tend to agree: I doubt that Michael Jackson is not a child molester. But that wasn't the question. The State had to prove beyond a shadow of a doubt that Jackson molested this child, not that he molested children. Jackson, on the other hand, had no burden to prove anything.

Many people--too many, I think--seem to believe that our system is designed to do two things: (1) make sure that the guilty are punished; and (2) make sure that the innocent go free. It isn't. It's designed to ensure that the innocent go free. If you accept, as I do, that our nation's laws are based on the Judeo-Christian system (and, more specifically, Calvinism), then it stands to reason that many of our laws are based on that system. Our rule--"Innocent until proven guilty"--is, despite what secular humanists would have us believe, quite biblical. When a person stands accused of a crime, the biblical law does not require that the accused demonstrate his innocence; it requires that those making the accusation prove it. And if you think about it, the standard of proof is really quite high: the facts against the accused must be attested by two or three witnesses examined separately. If you think about that, reflection should make it obvious that protection of the innocent, and not getting the guilty, is the purpose of this standard of proof. Two or three witnesses--it is not very easy to get two or three people to agree on a lot. And this assumes unanimity on what "agreement" is in the first place.

Are you a Christian? If so, then surely you believe that the gospels are true, that their testimony agrees together. But how many angels were in the tomb when Mary looked in? One or three? Look at the variety in the accounts. Is this the sort of agreement we are talking about? If so then maybe it is not all that difficult to get witness agreement. But on the other hand, maybe the precise question the witnesses are called to answer is more relevant. So, although there does seem to be some variety concerning the number of angels at the tomb on resurrection morning, the gospel witnesses are unanimous on the question: Whoever was in the tomb that morning, Jesus was not among them.

So, getting back to my topic, the witnesses are very important--especially their reliability, which certainly is a function of their integrity. This jury simply did not trust one or more of the witnesses against Michael Jackson. And, while they are fairly certain that Jackson is a child molester (which is to say that the evidence against him leads one to believe that he probably has molested at least one child), they were not convinced that much of this same evidence demonstrated that he molested this child. And that was the question.

Let's think for a moment about something I just said: the evidence against him leads one to believe that he probably has molested at least one child. While it is true that his molesting a single child is enough to characterize him as a child molester, it is not true that it's not being possible that he is not a child molester is the same as its being true that he molested this child.

So when someone like Micheal Gallagher is angry because this jury let a child molester go free, I just don't think he gets it quite right. Yes, a child molester did go free. But his being a child molester is not the same as his being the molester of this child; and that was the question. I'm sorry Micheal, but "not possibly innocent of wrong-doing" is not the same as "guilty." Nor has there been a travesty of justice. In our country--at least for now--justice can only protect the innocent; justice cannot guarantee that the guilty never go free. There is only one way to do that: As we used to say when I was in the Army, "Kill them all. Let God sort them out." That's the only way to make sure that the gulty always pay. Of course, it doesn't do much for the innocent and wrongly-accused, I'm afraid.