April 24, 2005
Come writers and critics who prophesize with your pen...
Several new books out on Dylaniana, including Greil Marcus on Like A Rolling Stone - here's the Nation on all of 'em.
Posted by mnoferi at 06:17 AM | Comments (109)
April 23, 2005
Return from Exile
Imagine that the interpretation of the Constitution was frozen in 1937. Imagine a country in which Social Security, job-safety laws and environmental protections were unconstitutional. Imagine judges longing for that. Imagine one of them as the next Supreme Court nominee.
Welcome to the Constitution in Exile movement.
One of the reasons I started this blog, way back when, was to post articles that get talked about quite a bit in the legal academy, genuinely matter, but don't make it out to the mainstream press, mostly because they involve lots of legal technicalities and Latin phrases. Well, here you go. (Nice post explaining this here.)
This is, at heart, what the fight over judicial nominations is about, not abortion. Janice Rogers Brown, who went up to the full Senate yesterday, once called the New Deal "the triumph of the socialist revolution." These folks aren't kidding - they're talking about wiping out the EPA with the stroke of a pen. Judicial activism, indeed.
Posted by mnoferi at 06:40 AM | Comments (108)
John Brown's Body
Excellent, and troubling, review in the New Yorker of a new book on John Brown.
"He was also, as even an admiring historian cannot deny, a man of violence and, by almost any definition, what we would now call a terrorist—a man who believed that the government of the United States should be met with violence because it supported and perpetuated oppression... He is the man who made Lincoln possible, and the acknowledged spiritual patron of Timothy McVeigh."
Posted by mnoferi at 06:36 AM | Comments (97)
April 11, 2005
Woody Guthrie
I was lucky enough to win tickets to see Steve Earle at a private gig the local radio station sponsored out here. He played a song called "Christmas in Washington," plaintive, sad and haunting, written after Bill Clinton's second election. The chorus goes like this:
So come back Woody Guthrie
Come back to us now
Tear your eyes from paradise
And rise again somehow
If you run into Jesus
Maybe he can help you out
Come back Woody Guthrie to us now
So apropos of nothing, here's a short essay on Woody Guthrie that Earle wrote a couple years back. Cheers.
Posted by mnoferi at 01:50 AM | Comments (104)
April 09, 2005
Nuclear Proliferation
This pretty much sums up my feelings on threatening judges:
The rational side of my brain suspects that cooler heads ultimately will prevail... But the emotional side of my brain... hopes that DeLay & Company will step even further over the line. My subconscious mind says: Go ahead, Rep. Sensenbrenner, try to impeach the federal judges who simply followed the law in the Schiavo case (like the Chief Justice of the United States, William Rehnquist, and all those conservative judges on the 11th U.S. Circuit Court of Appeals). Go ahead and then see what the poll numbers show. It would be raucous. It would be fascinating. It would be a great teaching tool about the Constitution and its promise of co-equal branches. It would take our minds off Michael Jackson. And the good guys would win in the end.
Update: A prominent conservative commentator articulates his "bottom line" for dealing with the Supreme Court by quoting Stalin: "Death solves all problems: no man, no problem." In case the crowd missed it, he repeated it twice. "It worked very well for him, whenever he ran into difficulty." Yikes.
Posted by mnoferi at 08:23 AM | Comments (97)
The World Is Not Enough
Nice read about the early days of Rupert Murdoch's New York Post and how he used the Summer of Sam to catapult his paper to success.
Posted by mnoferi at 08:05 AM | Comments (86)
Shake It to the Left
Came across a couple of good articles ruminating about the future of the American left. Michael Walzer thinks the left should rally around "equality." Meanwhile, William Galston says that "fairness" never was all that popular with Americans, and the left should rally around "freedom" - except maybe in the FDR sense of freedom from want and freedom from fear.
Posted by mnoferi at 07:59 AM | Comments (150)
March 09, 2005
Pictures of Your Mama
Turns out the HP ad for color printers featuring the Kinks' "Picture Book" won an award for ad campaign of the year.
Posted by mnoferi at 03:35 AM | Comments (98)
March 06, 2005
Farewell, Jimmy Smith
Jimmy Smith, master of the Hammond organ, died last week, and this brings up some memories for me. (More knowledgable people than I eulogized him, here and here for example. If you're looking for a good album to listen to, start with Back at the Chicken Shack, or any of his Blue Note albums for that matter... a good recent one is the appropriately titled "Damn!")
Anyway, here's my Jimmy Smith memory. When I lived in Washington DC a few years back, my friend Reggie and I made a habit out of catching jazz shows - especially the greats who we knew might not be around forever. We saw that Jimmy was playing at the grand opening of Bohemian Caverns, a new place down on U Street, a rapidly gentrifying neighborhood of DC.
To make a long story short, Bohemian Caverns wasn't all that. The place was set up to be like a French cellar jazz club, except the walls were made of fake stone, the drinks cost about $8/pop, and the sound system wasn't quite up to speed yet. That said, Jimmy put on a show. Maybe not as incendiary as he was in his youth, given that he was in his 70s, but his feet were working the pedals, the soul was most definitely still there, and he did a rousing acapella version of "Lift Ev'ry Voice and Sing" with the crowd singing every verse. He looked to me a man who had achieved a state of grace.
Jimmy died in his sleep last week, still touring and playing at 79, and it seemed to me a fitting end to a professional life well lived. Fare thee well.
Posted by mnoferi at 07:49 AM | Comments (176)
March 05, 2005
The Pragmatist and the Utopian
Great read in the Globe about the century-long economic debate between Milton Friedman, champion of all things free market, and John Kenneth Galbraith, economist to the New Deal. Via the Late Adopter. (I've read a bit about Galbraith lately, there's been a couple of reviews of a new book about him - he strikes me as the rare person who was able to live a public life, work in politics, and retain his intellectual integrity.)
Posted by mnoferi at 07:55 PM | Comments (119)
Kangarusskie Court
Thank God I'm not working for a Russian judge. "Judges are targeted for forced retirement or dismissal if they apply the law to acquit even everyday defendants, issue sentences that are seen as too lenient by court chairmen or fail to follow prosecution requests to send suspects to overcrowded pretrial prisons where they can languish for months, according to judges, law professors and lawyers... In 2003 and in the first nine months of 2004, two district courts in Moscow that heard a total of 4,428 criminal cases had no acquittals."
Posted by mnoferi at 07:18 PM | Comments (90)
Acadian Driftwood
Via Kevin, a fascinating article about the first ethnic genocide in North America, the Acadian relocation of 1755. (The Band wrote the song Acadian Driftwood about this.)
Posted by mnoferi at 07:15 PM | Comments (103)
More on Hunter
A few more nice eulogies about Hunter in the days after his death:
Ralph Steadman, Hunter's illustrator - "I would feel real trapped in this life if I didn't know I could commit suicide at any time," he told me many years ago, and I knew he meant it.
(By the way, if you like Steadman's work, check out the special edition of Orwell's Animal Farm he put out a few years back.)
David Halberstam - "I know one true thing -- if he decided to take his life, he knew exactly what he was doing. Hunter always knew exactly what he was doing."
Tom Wolfe - "You didn't have lunch or dinner with Hunter Thompson. You attended an event at mealtime."
James Irsay, owner of the Indianapolis Colts and frequent character in Hunter's deranged sports gambling pieces - "I always kind of thought that humor is the bridge to sanity in a world that can be quite insane."
And a retrospective from the folks at PopMatters, many of whom are amateurs in the best sense of the word - people that care enough to write for free.
UPDATE: Slate is running the original Doonesbury columns that introduced the Uncle Duke character. Funny stuff...
Posted by mnoferi at 06:44 PM | Comments (125)
February 21, 2005
R.I.P. Hunter Thompson
I keep thinking, "How would Hunter eulogize himself?" You know he must have. There was always a method to his madness, and Hunter wouldn't have embarked on something as enormous as suicide without thinking about it beforehand. So how would the man who brilliantly and acerbically summed up other people's lives articulate his own, in his last days before ending it?
Most likely, nobody but his family will ever know. I know I shouldn't be surprised about this. After all, Hunter always had an unhealthy fascination with alcohol and guns. And he had his demons. The thing I always admired about Hunter was that he confronted them up front. Wrote about them, lived them, dove into the muck to see if he could come out the other side. What does it say if Hunter gave up?
This is a depressing day.
Kevin's short eulogy about says it. "And that, I think, was the handle---that sense of inevitable victory over the forces of Old and Evil. Not in any mean or military sense; we didn't need that. Our energy would simply prevail. There was no point in fighting---on our side or theirs. We had all the momentum; we were riding the crest of a high and beautiful wave. So now, less than five years later, you can go up on a steep hill in Las Vegas and look West, and with the right kind of eyes you can almost see the high-water mark---the place where the wave finally broke and rolled back."
Quotes about Hunter from those who knew him.
Obituaries. (Nice one from ESPN.) (Here's the Aspen local paper's.)
Hunter's thoughts on the 2004 election.
Articles, interviews, etc. Plus his strange ramblings on sports gambling for ESPN.
Posted by mnoferi at 11:00 PM | Comments (94)
February 10, 2005
Send In the Ads
Rating the Super Bowl ads... and a more cynical take from my DC friend Seth Stevenson, who does this sort of thing for a living. My favorites: GoDaddy, Xzibit's Pepsi party van, and the monkeys.
Posted by mnoferi at 07:32 AM | Comments (180)
Deconstructing Torture
Nice article here on the semantic gymnastics involved in the torture memos. Also, Dahlia Lithwick wrote awhile back on Gonzales' ducking the tough questions at his hearing - and she's right, although the issues may not be as complicated as the memos make it, they're not that simple, either.
Posted by mnoferi at 07:14 AM | Comments (112)
February 07, 2005
Clearing Out the Desk Drawers of the Mind
Back at school, and catching up on some articles I had bookmarked but hadn't had a chance to post...
- The Times had a few nice postmortems for those who passed in 2004, including Brando, Spaulding Gray (by Chuck Klosterman), Rick James and Russ Meyer.
- Nice Globe piece on the life of Theo Epstein.
- Here's one about Larry Lessig, Stanford Law prof and leader of the "free culture" movement (or as the article puts it, the "Cult of Lessig.") In case you're wondering what's this about, if you've ever downloaded something off of Napster, you're in the cult. (Also, another one by Lessig about Wilco and their fan-friendly ways.)
- Republicans are propagating faster than Democrats...
- Interesting book on the Crusades and the theory of "positive violence."
Posted by mnoferi at 05:40 AM | Comments (82)
December 04, 2004
A Whiter Shade of Purple
Harvard Law professor William Stuntz argues that evangelical churches and elite law schools really aren't that different.
He argues that both are passionately interested in ideas - and although churches could use more critical thinking, and academics could use more humility, there really does exist a meeting in the middle, a "latent pro-redistribution evangelical vote ready to get behind the first politician to tap into it."
Way optimistic, but worth a read...
Posted by mnoferi at 02:59 AM | Comments (106)
The A&R Man Said "I Don't Hear a Single..."
Rolling Stone anoints "Like a Rolling Stone" as the #1 song of all time. Neat story about how Columbia almost didn't put the record out...
(BTW, Waterloo Sunset made #42.)
Posted by mnoferi at 12:00 AM | Comments (94)
December 03, 2004
Loyal, To a Fault
Alberto Gonzales is up for nomination as Attorney General... and unsurprisingly, his quality most prominently mentioned is "loyalty." Not intelligence, or character, or experience, but loyalty. As President Bush said in his introductory press conference, "I am very grateful he keeps saying, 'Yes.'"
So, is this a bad thing? We all want people who work for us to be loyal to us, and not running off to the Washington Post behind our back every time we order them around, right?
Well...
This begins to be a problem when the President's top lawyer is so eager to please that he becomes a little, ahem, intellectually flexible. Like when he argues that the President can unilaterally nullify laws, international and domestic. Or when he argued that the state of Texas isn't bound by US treaties, since it never personally signed them.
But, you ask, aren't lawyers supposed to defend their clients as aggressively as possible? Sure - but here's the catch. As the President's top lawyer, Gonzales' client isn't the President - but the US government (and ultimately, the Constitution). This is the difference between say, representing Clinton in his personal legal troubles and being White House Counsel.
This is the most fundamentally wrong thing about the torture memos Gonzales presided over. That although there's plenty of talk about whether torture is legal or not, there's none about the consequences to the client, the US government. Nothing saying "hey, if we torture people, other countries will do it to our guys." Nothing about turning the citizens of the countries we're occupying against us. Nothing about losing whatever moral high ground we had in the war, and allies along with it.
Gonzales, in presiding over these memos, was a "lawyer" in the narrowest, worst sense of the word, and did a great disservice to the men he advised. (I'm leaving out the fact that if a real estate lawyer can become Attorney General... hey, I'm available.)
Posted by mnoferi at 07:55 PM | Comments (17)
November 29, 2004
Red Sox Recap
Roger Angell sums up the postseason for the New Yorker, as he does eloquently every year.
Posted by mnoferi at 08:29 PM | Comments (86)
November 16, 2004
God Save the Kinks
Nice article on the Ten Greatest Subversive Humorist Rockers, featuring the Kinks. Want a great synopsis of my favorite band? Here you go.
Posted by mnoferi at 11:15 PM | Comments (89)
November 07, 2004
Where Did It All Go Wrong?
If this gang of criminals get in once more, we will be in the position of a family who have sent the Hell's Angels written invitations to their Thanksgiving party.
- Hunter S. Thompson
(Sigh.)
Guess I might as well add a rambling two cents to the existential crisis sweeping the American left - hell, the American center - and being discussed and debated over email all across the country.
- There seem to be three knee-jerk reactions to the election - 1) It's Kerry's fault, 2) It's the campaign's fault, 3) It's the Democratic Party's fault.
The answer's probably a combination of all three. I'm not inclined to blame Kerry - hey, he is who he is, a patrician guy from the Northeast. But by the end of the campaign, I thought better of him - as a principled, decent, intelligent man who would have inherited a terrible mess and given it his best. He looked great in the debates, he inspired a lot of hope over his campaign (whether pro-Kerry or anti-Bush), and he certainly was better than anyone else who was running.
The campaign... well, aside from the inexplicable, Dukakis-like decision not to attack the Swifties, they basically got their message out there to the folks who were listening. (It angers me that Kerry actually wanted to go after them and his campaign told him no.) The Democratic Party... well, people aren't voting their rational self-interest, so it's not like adopting an issue will swing people over. Besides, becoming Republican Lite is not the way to go.
Anyway, here's some random thoughts.
1. Truman. Perhaps the president who's election is most analogous to Bush's.
Strange, huh? But I think the parallels are there. Both drew their support from the heartland. Both had lower approval ratings than anything seen before. Both ran against elitist Northeasterners who seemed to run not to lose rather than to win (although I think Kerry woke up in mid-summer). Both inspired this emotional attachment in people, where people just felt in their hearts that their President was a good, decent man, and although the polls had them down on election day, people turned out unexpectedly and narrowly voted them in.
Anyway, although the reasons for their elections might be similar, this article aside, as people, they couldn't be more different. Truman was poorly educated but smart; Bush is well-educated but stupid. Truman came from nothing and worked hard all his life to make ends meet; Bush had everything handed to him, including the Presidency, and never worked a hard day in his life. Truman had character and made tough, unpopular decisions, overruling his advisers. Bush would never have had the intellectual security to fire MacArthur; with a war spinning out of control, he hasn't intimated once firing the architects. Truman supported civil rights and international humanitarianism; Bush... well, you get the point.
2. Rationality. It's pretty clear that rationality was in short supply on Nov. 2. By any measure, the country is worse off now than it was four years ago. The larger question is - do people ever vote rationally?
Garry Wills, in Reagan's America, argued persuasively that Reagan's brilliance was in running on unreality... on adopting the myths of America as his own. Thus the states who receive the most federal funding perceive themselves as American small-government individualists. America's poor vote for tax cuts for the rich. The National Guard cheer Bush for sending them to Iraq and give Kerry stony silence for telling them they should be at home.
Why? Probably because people receiving federal aid wish they weren't, people who aren't rich wish they were, and people going to war need to believe that their war has a purpose. Reality sucks, but hey, when you enter that voting booth, that's when everyone can be an idealistic dreamer for five minutes.
(While we're on the subject, did you notice that with everyone afraid of terrorism, the cities that actually got attacked by terrorists voted for Kerry by 85 and 90 percent? Or that Massachusetts, where marriage needs the most "defending" from gays, has the lowest divorce rate in the country? Anyway, I'll stop there...)
Course, Bush's folks seem to think that "since they're an empire, they create reality." Frighteningly, maybe they're right. For the short term, anyway.
3. Anti-intellectualism. This just bothers me to no end.
Most people agree that it's better to have someone who's smart running the country, right? Is there any serious debate about this?
It's pretty clear that the Bush "flip-flopping" charge was grounded in the implicit charge that Kerry was one of those "smarties" who liked to study issues, see pros and cons, and make a decision. Man, critical thinking is so weak. (Some are being politically correct in terming this the difference between the fox and hedgehog... but I'm not buying it. Somehow, that implies that Kerry's resolve would have been somewhat softer than Bush's because he could actually see a problem and address it.)
Yeah, yeah, I know the American left is taking solace in the fact that they're so much smarter than all those red states. Whatever the merits of that claim, it's pretty clear that Bush, or the Republicans in general, are aggressively denouncing intelligence as a bad thing. Don't believe me? Check out this interview of O'Reilly interviewing Bush. Some nice tidbits...
O'REILLY: Do you have any theory on why college professors, pinhead press people... why they go into the liberal realm?
BUSH: No, I really haven't...
O'REILLY: Because you went to Yale and Harvard.
BUSH: I did.
O'REILLY: And they're all pinhead liberals over there, right?
BUSH: I haven't spent a lot of time analyzing why professors feel the way they feel.
O'REILLY: You just want to get out of the class. I was the same way. I don't care what you think.
Good Lord. When did it become a good thing not to listen to your teachers in class? Course, Bush's teachers from HBS all think he's destroying the economy, so no wonder why he's denigrating them...
It kills me when Bush refers to Harvard Law School as "liberal." This is a school that sends two-thirds of its graduating class on to represent corporate America. No, they're not liberal, they're just smarter...
You get the sense the country is now being run by, and for, folks who weren't that bright in school, got really frustrated when all the big words confused them and they were a step behind, and really just wanted to yell at all those smarties and give 'em what-for. Except they couldn't in class, because there's all those annoying rules about supporting your arguments with evidence and whatnot. If you're Bush in b-school, you accuse people who challenge you intellectually of having drinking problems behind their back. If you're voting for him, you feel empowered when Hannity and O'Reilly yell and bully the smarties, and you feel empowered when you step into the voting booth and repudiate all those smarties' ideas about how to run the country like "fiscal responsibility" and "constitutional rights" and "international diplomacy" you never understood much anyway.
4. Religion. It's oft-quoted that this election was about "moral values." (Leaving aside the statistical proof that it wasn't.) But for those who voted on "moral values," is that really what's motivating them? All those moral values seem to be negative moral values - against abortion, against gay marriage. Really, fear seems to be the guiding principle, whether fear of terrorism or fear of different viewpoints. So basically, 51% of America voted for "fear" on Donnie Darko's "fear-love" spectrum."
Of course, this negativist mixing of religion and state has been in our country since its founding. The Puritans had a strongly communitarian view of their morality. (As John Winthrop put it on the Mayflower, "We must be knit together in this work as one man... our Community as members of the same body. But if our hearts shall turn away... shall be seduced... we shall surely perish.")
In the first Americans' eyes, they reached heaven or hell as a community, and anyone who tempted them towards sin needed to be cast out. Thus when Thomas Morton landed and began dancing around the Maypole with Indians, it wasn't enough to avert their eyes - they were compelled to raise an army and send him back to England, lest their hearts be "seduced." Thus too today, I think, with gay marriage in Massachusetts. I think this is why Kerry's (somewhat disingenuous) "states' rights" argument didn't help him one bit. The point, for religious voters, is not that North Carolina can prevent gays from marrying. The point is that Massachusetts can allow it, and it represents temptation in our midst.
My feeling is that churches have become for Republicans what ward bosses were to urban Democrats in the first half of this century. Quietly, churches have become the primary political organizing tool used today. And where the ward bosses enforced allegiance to one party through force, churches enforce through social peer pressure and spiritual legitimacy.
The question, for Democrats is whether they want to play the same game. For those Democrats who believe strongly in the separation of church and state, it's a real soul-searcher.
All that being said, Christians are working towards incorporating the more positive values of Christianity into the political debate. Will it stick? As the above article mentions, for 20 percent, maybe not, but for the religious middle, perhaps.
5. Ignorance. Oops, I said it...
But let's be real here. When most Bush voters believe that the 9/11 report said Iraq did it, there are some big facts being ignored here... which is usually called "ignorance."
This is, perhaps, why there's a significant part of the country that won't be swayed by a "positive Christian candidate." Christianity isn't the core issue for those folks. It's "unteachable ignorance."
So, as idealists are starting to realize lately, people who win elections in democracies often pander to the ignorant. Back when the Democrats were racking up huge majorities, we were the ones locking up the Japanese and standing in the schoolhouse doors. Somewhere along the line, the Democrats became the "rule of law" party, the "Constitution" party, the "civil liberties" party. But of course civil liberties have never been popular. That's why they need protecting from the majority. Nobody's going to be winning elections on civil liberties... and they just might be losing them, sadly enough.
So how do Democrats keep their ideals and still win elections? Or is it that intellectuals were always riding the coattails of the Democratic Party, and the real Democratic Party represented populism in all its good and bad forms? And that the intellectuals may have to start compromising their ideals like most people do in politics (and frankly, like Christian conservatives have in hitching their wagon to the Republicans but laying low at national conventions) just to have a seat at the table?
I wish I had answers, anyway.
Posted by mnoferi at 01:46 AM | Comments (179)
October 18, 2004
Kerry for President
The New York Times endorses Kerry for President. Nice read.
Posted by mnoferi at 06:17 PM | Comments (21)
The Faith-Based Presidency
Ron Suskind takes a fascinating look at the faith-based presidency. A couple tidbits...
"Just in the past few months, I think a light has gone off for people who've spent time up close to Bush: that this instinct he's always talking about is this sort of weird, Messianic idea of what he thinks God has told him to do."
I've said before that Bush tries his hardest to project this image to America that God is on his side, and faith alone will carry him through. But the more people find out about what happens inside the White House, the more it appears he really believes it, too.
This starts to be a problem when he ignores facts. Another tidbit:
Open dialogue, based on facts, is not seen as something of inherent value. It may, in fact, create doubt, which undercuts faith.
"'I don't know why you're talking about Sweden,' Bush said. 'They're the neutral one. They don't have an army..." Lantos paused, a little shocked, and offered a gentlemanly reply: ''Mr. President, you may have thought that I said Switzerland. Bush held to his view. ''No, no, it's Sweden that has no army.''
The room went silent, until someone changed the subject.
* * *
This is nothing new. If you haven't read Salon's article on Bush's b-school days, here you go - it talks about how back in school, Bush simply refused to listen to people who disagreed with him. Probably, most of that is intellectual insecurity. But add a religious-inspired arrogance and moral certainty to that mix, and you've got a dangerous combination.
Kerry has been talking more about religion these days - in the debate, he quoted James in saying that "faith without works is dead." It's a wonderful, and honest, comeback that communicates the teachings of the church and distinguishes his life of public service to America from Bush's, who "got religion" after his hard-partying youth. Of course, the America that reads Left Behind will disagree, but they're not voting for Kerry anyway.
Kerry's statements notwithstanding, apparently Catholic bishops are now openly campaigning for Bush. This really saddens me. For one, these bishops only focus on abortion and same-sex marriage, and neglect the Church's broader social justice agenda. More fundamentally, though, the Church should serve as a moral and spiritual guide to people. Practically, when priests insert themselves into political life, they necessarily alienate some of their flock that might draw on them for support. Spiritually, it undercuts their legitimacy. Allowing men of God to support politicians on earth is a dicey proposition - politics is all about compromise, and one's moral background shouldn't be. Personally, I've always liked Mark 12:17 - "Give to Caesar what is Caesar's and to God's what is God's."
Posted by mnoferi at 05:30 PM | Comments (109)
October 17, 2004
Iraq and the Law
Interesting article by an Iraqi-American lawyer who practiced law in both countries. His main point is that, Saddam's dictatorial subversion of the legal system aside, Iraq already had a well-developed civil law tradition, and Americans would be wiser to work within it rather than starting anew.
Posted by mnoferi at 08:26 PM | Comments (22)
October 14, 2004
The Highest Court in the Land
California is arguing to the Supreme Court that medical marijuana should be legal, claiming "states' rights." This is fun, because the Justices who are down with states' rights aren't real down with the stoning.
Quick explanation: The central tenet of "states' rights," ironically sometimes called "federalism," is that the Constitution prohibits the federal government from meddling in state matters. The Commerce Clause gives Congress the power to regulate interstate commerce - but the 10th Amendment says that any power not given to the federal government goes back to the states.
So, in recent years the Supreme Court has started striking down Congressional laws on domestic violence, gun control, and gun-free school zones because they have nothing to do with interstate commerce. Conservatives, generally, have been pretty happy about this. (Nice explanation from Slate here.)
But these things cut both ways. Funny enough, California is claiming that federal drug laws have nothing to do with interstate commerce... since AIDS patients getting medical pot might pick it, pack it, and fire it up, but they don't sell it and don't transport it. The conservatives now running the federal government are apopleptic... and it forces Rehnquist and Scalia to swallow a large dose of Cypress Hill with their preferred theory of law. (Then again, Scalia did come out in favor of orgies lately.)
The larger lesson, of course, is to be extremely wary of "theories of law" in the legal field. More often than not, they're a front for political motivation. States' rights gained support as a governing philosophy when the South wanted to keep slavery before the Civil War. It returned when Democrats controlled Congress for 50 years... and funny enough, those same conservatives who railed against the power of the federal government are now using it to ensure pot stays illegal and marriage stays heterosexual.
Call me a cynic. Or a "legal realist," I guess, although I'm still thinking about that.
Posted by mnoferi at 07:14 PM | Comments (339)
October 12, 2004
Bush Against Slavery? Here's the Real Story...
In case you were wondering why Bush decided to take that stand against slavery 150 years too late in the debate the other night, here's the real story - Dred Scott is code for being against Roe v. Wade.
Posted by mnoferi at 07:48 AM | Comments (99)
October 08, 2004
If You Don't Like the Rules, Change 'Em...
The House, as part of their not-so-quiet strategy to undermine the federal judiciary, democratic principles, and the Constitution, votes to break up the Ninth Circuit.
For those of you who aren't legal heads out there, a quick explanation: Federal appeals courts are split into 11 "Circuits," which each decide what the law is in the geographic area they represent. The Ninth Circuit, which includes California, has long been reviled by conservatives because of its reputation for liberal judges and "judical activism." (It also includes Arizona, Idaho, and Nevada, which aren't quite liberal hotbeds, last I checked the electoral map...)
Since the House doesn't like the 9th Circuit's decisions, they decide to vote for a bill splitting the 9th Circuit into three Circuits, including a new uber-conservative Circuit with Arizona, Idaho, Montana, and Nevada. Also, the proposal would create seven new spots for judges, which would be appointed by - funny enough - President Bush. The House swears that this is all to take cases off the overburdened judges' hands, although the Ninth Circuit judges don't seem to mind the work, since they're against the bill.
This comes on the heels of the House voting in July that federal courts could no longer hold the Defense of Marriage Act unconstitutional. In case you remember separation of powers from Schoolhouse Rock, no, this doesn't fly. Generally, Congress, a bunch of regular Joes taking a break from their jobs to pass laws, passes a law, and every once in awhile, (presumably) fair and impartial judges who study these things for a living decide that they went too far. Sorry, it's unconstitutional.
So basically, here, the mean kids on the playground created a triple-dog-dare rule with no takebacks. "The rules say you get to decide what's unconstitutional? Whatever. You're unconstitutional."
What bugs me about this, besides the naked partisanship, is the utter disrespect for the Constitution it shows. And this isn't just a theoretical PolySci problem - it's a massive threat to democracy and the stability of our country. The House seems to think that since the rules aren't very popular - after all, a majority of the country is against same-sex marriage - let's just change the rules! But what's popular isn't always good for the country. Look at what's happening in Russia these days, where Putin is using terrorism to make himself a dictator and it's wildly popular. What's his first step? Control the judges. (Or, look at Germany in the late 1930's, when Hitler rode a popular wave to power.)
In a democracy, someone who's nonpartisan and impartial has to enforce the rules, else we fall victim to the "tyranny of the majority" that the Federalists talked about, the "temptation given to a predominant party to trample on the rules of justice," and that Hitler and Mussolini used to rise to power.
Oh, by the way, it doesn't stop there - this is just another step in the "piecemeal solution." Not good times. Not good times for democracy at all.
Posted by mnoferi at 06:11 PM | Comments (26)
October 06, 2004
Dylan Looks Back
The New York Times reviews Chronicles Vol. 1, Dylan's first installment of his memoirs. "While this is no time for Mr. Dylan to write his own epitaph, still, he has done it: 'Some people seem to fade away but then when they are truly gone, it's like they didn't fade away at all.'"
You know, considering the self-destructive track record of so many musical superstars, we're incredibly lucky to have Dylan around... I know his words will live on far beyond him, but it's still nice to have the chance to see them sung.
Posted by mnoferi at 04:50 AM | Comments (24)
October 04, 2004
Whiz Kid
Nice article on Theo Epstein, Red Sox general manager and my write-in candidate for President. (I'm mostly kidding. He'd be a far better Chief of Staff.)
Posted by mnoferi at 04:43 AM | Comments (23)
October 01, 2004
Iraq: The Faith-Based Initiative
Watching the debate last night, there's one contrast that Bush makes resoundingly clear: He is a man of faith. Over and over again, he said, "Iraq is hard work - but if we believe, we can win." And as Frank Rich pointed out, this is a message that works resoundingly well with his base. A lot of people apply that logic to their own lives, and they find it reassuring to hear that from their President.
Kerry, on the other hand, effectively said "Faith is nice - but let's look at the facts." At one point, I thought he would say something like, "I'm a man of faith. I pray in church every week. Our troops need faith. But faith alone won't get us there. We also need a plan. I have a plan. He doesn't." He stopped, I think, because casting the argument in those terms would sound a battle cry.
There's two very different worldviews at work here - and I think, as Steven Waldman has pointed out, that candidates who disregard the former do so at their peril. Facts have always had a tenuous connection to the American consciousness. We were founded as a nation of Christian mystics, and it's very, very difficult to challenge those assumptions on the political stage. Certainly in 90 seconds.
On a sort-of related note, I saw Cornel West speak last night at Stanford after the debate, promoting his new book Democracy Matters (here's an excellent excerpt). He delivers the informed perception of an intellectual with the cadence of a preacher, and it sounds great.
He talked quite a bit about the difference between Constantinian Christianity and prophetic Christianity in America. Constantine, West's argument goes, was the Roman Emperor who legalized Christianity (the emperor after him making it the official state religion). His choice, however, had little to do with religion and much with realpolitik power. The Christian revolution was coming, either with or against the Empire, and Constantine decided to surf with the rising tide.
Prophetic Christianity, on the other hand, has been embodied in a select few men and women of ideals who have changed the world. Jesus, the original prophet, and the men who followed in his path. St. Paul. Martin Luther King. Rather than choosing Christianity because of power, they chose because of fervent belief. And, as West pointed out, nearly every social movement in American history has been founded by prophetic Christians. The abolitionist anti-slavery movement. Progressivism. The civil rights movement.
At some point in the late Sixties, West's argument goes, the corporate elite figured out that if they could join with Constantinian Christianity in America in a common alliance to keep power, they could tap into the deep-seated rhetoric of American Christianity to win elections. Thus, the modern Republican party. When Ronald Reagan met Ralph Reed, this alliance was cemented.
How does this play into the current political debate? Who are the prophets today? West wasn't sure. Bush views himself as a prophet, or at least, much of his base does, and his media team does everything they can to keep that notion alive. The question, though, is whether his Christianity is fundamentally Constantinian or prophetic in nature.
Posted by mnoferi at 05:02 PM | Comments (32)
September 28, 2004
Three Strikes at the polls
California's "Three Strikes" law comes up at the polls this November. Proposition 66 would limit the law to those whose strikes are all "serious and violent" (right now, 2 out of the 3 must be "serious or violent").
There's a fascinating personal story to this article. The law was passed after 12-year-old Polly Klaas was murdered by a repeat offender in Petaluma. Polly's father is actively campaigning against Prop 66; Polly's grandfather is actively campaigning for it.
Posted by mnoferi at 09:25 AM | Comments (174)
On the Warpath
Scalia tells Harvard Law that "the courts have strayed into a realm of judicial activism that is ultimately bad for democracy." You mean, like stepping into the election process to find equal protection violations where none had existed before? Funny, that.
Posted by mnoferi at 09:15 AM | Comments (34)
September 27, 2004
How to Operate With a Stolen Election, Part 2
Jeffrey Rosen at the New Republic takes an excellent (and detailed) look at the state of election law after the 2000 Florida recount. The great irony is that Scalia and other conservative justices who rarely find violations of civil rights found them in 2000 to stop the recount. In doing so, they opened a Pandora's Box for every election to be litigated in the courts after the fact, by each side. There's an old cliche about making your bed and lying in it...
Posted by mnoferi at 11:46 PM | Comments (72)
Fire Sale
The Bush Administration is preparing a regulatory onslaught against food safety, consumers, and the environment... to wait until after Election Day. One group calls it a "fire sale" to industry.
Posted by mnoferi at 11:19 PM | Comments (26)
September 26, 2004
Religion and the Election
There's an extremely good debate going on over the role religion is playing in the election, why Democrats are perceived to be "the secular party," (it wasn't always so), and whether that perception is grounded in reality. Alan Wolfe of Boston College talks about the historical perspective. Steven Waldman weighs in on Kerry and God.
Posted by mnoferi at 03:39 PM | Comments (22)
September 25, 2004
More People Are Voting...
...and no matter how you slice it, that's a good thing. The more people that vote, the more legitimate our government is, and the more it reflects the true wishes of the people. (I feel like a Schoolhouse Rock song.) Check out what's going on in Ohio.
Posted by mnoferi at 06:51 PM | Comments (29)
Bush and the Environment
The great lost story of the Bush Administration is the massive rollback of environmental protection taking place at EPA. NY Times and Washington Post survey the landscape. (Nice graphic here.) A friend of mine at school compared it to "kids with the keys to the house when the parents go away for the weekend, determined to wreak as much havoc as possible." Sadly, with the country focused on the war, nobody seems to be paying much attention. (Via Ghost in the Machine.)
Posted by mnoferi at 06:39 PM | Comments (121)
Lock him up and throw away... oops.
Slate's Dahlia Lithwick talks about Yaser Esam Hamdi, the Guantanamo detainee who the government recently let go without filing charges against him. Which begs the question - why was he held for three years in the first place?
Posted by mnoferi at 04:00 PM | Comments (75)
Springsteen Speaks on Speaking Out
Bruce talks in Rolling Stone about his America Coming Together concerts and the upcoming election. Maybe unsurprisingly, he's fairly astute and articulate about the political game. "For Senator Kerry, the good news is he has the facts on his side. The bad news is that often in the current climate it can feel like that doesn't matter, and he has to make it matter."
Posted by mnoferi at 03:41 PM | Comments (338)