Dan Miller's Blog

Merry Christmas!

2010-12-25T05:17:00.000-08:00

This is a photo from a few years ago of our pup Shadow wishing our foal Sugar a Merry Christmas.

Not wishing to exclude our Islamic friends, here is a video of the beautiful song, Jihad Bells.

Further Decision Released on ObamaCare

2010-12-12T11:52:00.000-08:00

Another good step toward the demise of ObamaCare

In a decision released on December 13^th, Judge Hudson of the United States District Court for the Eastern District of Virginia held that the requirement of ObamaCare that a minimum level of medical insurance coverage be purchased by individuals and imposing penalties for not making such purchases exceed federal authority under the Commerce, General Welfare and taxing provisions of the Constitution.

He had previously refused on February 2^nd to dismiss a challenge by the Commonwealth of Virginia to the mandatory medical insurance provisions of ObamaCare, observing that [START BLOCKQUOTE]

While this case raises a host of complex constitutional issues, all seem to distill to the single question of whether or not Congress has the power to regulate — and tax — a citizen’s decision not to participate in interstate commerce. Neither the U.S. Supreme Court nor any circuit court of appeals has squarely addressed this issue. No reported case from any federal appellate court has extended the Commerce Clause or Tax Clause to include the regulation of a person’s decision not to purchase a product, notwithstanding its effect on interstate commerce. Given the presence of some authority arguably supporting the theory underlying each side’s position, this Court cannot conclude at that stage that the Complaint fails to state a cause of action. [END BLOCKQUOTE]

He then questioned Federal arguments that even if ObamaCare exceeds the limitations of the Commerce Clause, it could be salvaged by reliance on the federal government's taxing powers.

His decision released on December 13^th found no material facts in issue and also found that ObamaCare is unprecedented. He cited the paragraph from his earlier decision quoted above and stated that the question presented was whether an act of Congress can require that anyone purchase health insurance; such a requirement touches everyone who is required to file a Federal income tax return.

Based on legal arguments presented following (and pretty much before as well) his February 2^nd decision, he found that the Commonwealth of Virginia had made the required showing of unconstitutionality, entitling her to judgment as a matter of law. As he noted in the current decision, to come within the permissible limits of the Commerce Clause, economic "activity" must, indeed, include some activity -- an action, transaction or deed placed in motion by an individual or legal entity; not a difficult concept to grasp. By requiring the purchase of a good or service, the Congress does not itself create an economic activity. A decision not to make such a purchase is therefore beyond the reach of the Commerce Clause.

Since the individual mandate itself is outside the scope of the Commerce Clause, it is also outside the General Welfare and Taxation clauses, despite the extreme breath of the latter. The legislative history shows that the "tax" is in fact a penalty; indeed, the Congress did not use the word "tax" in connection with the mandatory purchase provision in the final legislation, even though earlier versions had used the more "politically toxic" word tax rather than penalty. In seeking popular approval before and after passage, ObamaCare proponents refrained from using the word "tax." "Tax" and "penalty" are not interchangeable.

Having found the mandatory health insurance provision and the companion penalty unconstitutional, Judge Hudson determined that some sections could stand as severable from those. In view of the extreme haste with which ObamaCare had been "rushed to the floor for a Christmas Eve vote," he found it impossible to determine whether the various other provisions would have been passed without the mandatory health insurance provision and associated penalty. He therefore severed those other provisions and allowed them to stand.

Since it was obvious that the case would proceed to appellate review, he declined to stay the effectiveness of any of the ObamaCare provisions but expressed a hope that the Executive Branch would abide by his ruling as to constitutionality, noting that a "declaratory ruling is the functional equivalent of an injunction" and sufficient to stay the Executive's hand during the pendency of an appeal.

Accordingly, Judge Hudson granted the Commonwealth's motion for summary judgment, held the various other provisions severable from the health purchase mandate and penalty, and denied the request for an injunction pending appeal.

The reactions of the usual suspects were, of course, predictable. Those who like ObamaCare claimed that Judge Hudson is a radically unwholesome "activist judge" whose decision is wrong and will be overturned on appeal. Those who dislike ObamaCare praised his constitutional scholarship and claimed that his decision will be affirmed. I think implementation of ObamaCare would be a disaster produced by a very lengthy statute generally unread prior to its very hasty passage and likely harmful not only to medical care in the United States but also bad for the economy. I hope the decision is upheld on appeal, but much can happen between now and a Supreme Court decision. The statute may be modified by the new Congress, the Supreme Court may in the interim decide another case construing the Commerce Clause differently, and/or one or more Supreme Court justices may retire to be replaced by Zeus knows whom. It's just too far away to guess. After the briefs have been submitted and oral arguments have been held it should be possible to make an informed prediction; not now.

The case will almost certainly now proceed on appeal to the Fourth Circuit Court of Appeals in Richmond Virginia or, conceivably as requested by incoming House majority leader Eric Cantor (R., Va.), directly to the Supreme Court where it will ultimately go in any event. He stated,

“To ensure an expedited process moving forward, I call on President Obama and Attorney General Holder to join Attorney General Cuccinelli in requesting that this case be sent directly to the U.S. Supreme Court. In this challenging environment, we must not burden our states, employers, and families with the costs and uncertainty created by this unconstitutional law, and we must take all steps to resolve this issue immediately.

Well, maybe.

The Past is Prologue.

2010-11-28T15:31:00.000-08:00

So it is with China, Russia and Korea.

The events leading up to the North Korean invasion of South Korea sixty years ago are, of course, now ancient history, dull and little considered in evaluating current events. Stalin, Mao and Kim il-Sung are dead. Unfortunately, their spirits survive and continue to haunt us.

Many documents became available during the "global warming" of relations among the United States, the Soviet Union and China. Many if not most have been translated and studied by scholars, and they show that North Korea's Kim il-Sung had wanted to reunify the Korean Peninsula through force since 1948 but that Stalin had resisted until he became convinced that it would work. He then provided substantial military assistance. China's Mao was not generally consulted during the period leading up to the invasion of the South in June of 1950. He eventually was and agreed to an invasion despite his greater interest in invading Taiwan, which Stalin had pragmatically discouraged. In the end, China bore the brunt of the Korean Conflict, principally during and following her massive invasion across the Yalu River and into occupied North Korea.

Part I -- Way Back Then

During the two years leading up to the North Korean invasion of the South, Kim il-Sung spent much time in the Soviet Union attempting to persuade Stalin of the benefits of invading the South. It has been claimed that in 1949 Stalin began to have substantial concerns about an attack on North Korea from the South. Still,

while Stalin tried to prevent a war in Korea in 1949, the North Korean leadership increasingly put pressure on the Kremlin, demanding permission to liberate the South. On 7 March 1949, while talking to Stalin in Moscow, Kim il-Sung said: "We believe that the situation makes it necessary and possible to liberate the whole country through military means." The Soviet leader disagreed, citing the military weakness of the North, the USSR-USA agreement on the 38th parallel and the possibility of American intervention.

Stalin added that only if the adversary attacked Pyongyang, North Korea could they try military unification by launching a counter attack." Then the Kremlin chief explained, "your move will be understood and supported by everyone.(emphasis in original)

Circumstances changed and it was soon agreed that a claimed invasion by the South would serve as a useful pretext for invasion by the North.

In January of 1950, Stalin caved in to Kim's pleas for permission to attack but insisted on thorough preparation. Contemporaneously, there were exchanges of cables between Moscow and Beijing. They did not mention that Stalin had given his approval to the invasion. Stalin viewed the largely urban Communist situation in the USSR as different from and superior to the more rural Communist situation in China and had no particular desire for China to butt in. Although Kim visited Beijing about a month before the June 25 invasion, it was more to inform Mao of what was about to happen than to solicit assistance. Mao had Taiwan to worry about and war in Korea was already inevitable. Mao gave his blessing, for what it might be worth.

Other factors were also in play:

Stalin . . . wanted to work out the plans for the Korean war himself without Chinese interference and objections and then present Beijing with a fait accompli when Mao would have no choice but to agree with the invasion and assist it. While in Moscow Mao insisted on the liberation of Taiwan. Stalin was negative to the idea. It would be hard for Stalin to convince Mao in Moscow to help the Koreans before the Chinese had completed the reunification of their own country.

It also seems that Stalin considered any improvement in U.S. - China relations as very dangerous for Russia, potentially ruining his strategic calculations. A take over of the South by the North would further establish a distance between the East and the West as well as perpetuate China's dependence on the USSR. It would also be of use to the Soviet Union in the event of World War III. Nevertheless, Stalin remained to be persuaded that the North could win a quick victory and that there would be no U.S. involvement. When Kim il-Sung secretly visited Moscow between March 30 and April 25, he assured Stalin that his attack would succeed in three days: there would be an uprising by some two hundred thousand party members and he was convinced that the United States would not intervene. Secretary of State Dean Acheson's January 12, 1950 speech was persuasive evidence. There, Secretary Acheson had omitted South Korea from a list of nations which the United States would defend if attacked. Stalin gave the go-ahead.

Mao's role then was not very significant. Stalin's was.

Stalin's decisive backing for Kim was shown in two ways. First, as soon as Kim returned from Moscow, Soviet weapons "in huge numbers" began arriving at the North Korean port of Chongyin, barely a day's sailing from Vladivostok. Second, and at about the same time a new team of Soviet military advisors, including at least three major-generals with combat experience, arrived in Pyongyang to oversee the preparations for war. Pyongyang's military manpower problems had already been solved for, early in 1950, Mao had arranged for the transfer to North Korea of some fifteen thousand ethnic, battle-hardened Koreans who had fought in the Chinese People's Liberation Army. These troops followed two earlier divisions of Koreans sent from China in 1949.

....

The draft operational plan was written by the Soviet advisors and termed a "counterattack plan" using the tension along the 38th Parallel as a pretext for war. The nomenclature of a counterattack plan, according to one former senior North Korean general, was "a fake, disinformation to cover ourselves." The Soviet advisors evidently accepted Kim's belief in a southern uprising, for formal military operations were only expected to last three or four days with the capture of Seoul. Total victory was then expected in less than a month. Kim personally set the timing for the invasion at 0400 hours on Sunday, June 25, 1950 but his Soviet advisors were closely involved in this aspect of the planning as well.

The decision to attack had come between March and April of 1950 and the attack came on June 25. Seoul fell within three days as Kim il-Sung had anticipated; however, the popular uprisings did not occur and the United States intervened.

Mao, who had been marginalized in the final decision-making, quickly realized the implications of [the unanticipated] American intervention. As early as July 7, two days after the first clash between American and North Korean forces at Osan, Premier Zhou Enlai called a special meeting of the Chinese Central Military Commission to assess Chinese options in the conflict. So began the process through which China, not the Soviet Union, paid the major price for Kim and Stalin's decision to launch the war.

When the invasion came on June 25, the United States had little difficulty in persuading the U.N. Security Council to condemn it and to urge that the U.S. be assisted by at least minimal numbers of international forces, which happened. Russia could easily have vetoed this but did not; it was too busy boycotting the Security Council on account of its refusal to seat mainland China in place of Taiwan (that did not happen until October of 1971). Might this have been a ploy to make sure that China would be kept busy with Korea and in line with Stalin's world game plan? I have not seen this suggested, but it does not seem excessively far-fetched. Stalin was a clever rascal; he could have given lessons to Machiavelli.

In August of 1951, a year and two months after the invasion and about one year after the Chinese push into North Korea from the Yalu had begun,

General Ridgway's headquarters in Tokyo put out a statement designed to show a cleavage between Moscow and Peking. Russia, said the statement, had inveigled the Chinese into the Korean war in order "to slash the strength of China . . . because a strong China on Russia's southern frontier is the Kremlin's nightmare . . . China fought and bled while Russia looked on. To Mao Tse-tung this could hardly look like bosom comradeship ... It may mean China eventually goes the way of Yugoslavia . . . The Reds have been so busy looking for cracks in the structure of the democracies they have not noticed the perch they are sitting on is swaying and slowly crumbling . . . They cannot survive."

General Ridgway had replaced General MacArthur in April of 1951. This may have been little more than wishful thinking. On the other hand, it is apparent that Stalin was pleased to let Mao be "The Vice President in Charge of Asia," provided that he didn't attempt to start his own business – something Stalin did not think Mao was currently able to do because China and Mao were too dependent upon Russia.

The massive Chinese intervention did not come until November 1, 1950, following General MacArthur's enormously successful September 15 invasion of Inchon and the rapid march of South Korean and United States forces into North Korea and up to the border with China.

As the victorious UN forces pursued the fleeing NKPA, President Truman authorized General MacArthur to go north of 38th Parallel but cautioned alertness for indications of the entry of China or Russia into the war. Korea was seen as part of the fight against world Communism and as possibly the first skirmish in a World War III. MacArthur's troops promptly moved north. The Eighth Army headed up the west coast to the Yalu River while the X Corps made amphibious landings at Wonson and Iwon and proceeded up the east coast to the border with China. The war seemed to be nearly over. It was not.

There had been signals from China that she would send troops should any forces other than South Korean cross the 38th Parallel. However, China was being isolated politically and a warning relayed through Indian diplomatic channels was ignored. General MacArthur disregarded the risks and plunged ahead.

The best time for intervention was past, they said, and even if the Chinese decided to intervene, allied air power and firepower would cripple their ability to move or resupply their forces. The opinion of many military observers, some of whom had helped train the Chinese to fight against the Japanese in World War II, was that the huge infantry forces that could be put in the field would be poorly equipped, poorly led, and abysmally supplied. These "experts" failed to give full due to the revolutionary zeal and military experience of many of the Chinese soldiers that had been redeployed to the Korean border area. Many of the soldiers were confident veterans of the successful civil war against the Nationalist Chinese forces. Although these forces were indeed poorly supplied, they were highly motivated, battle hardened, and led by officers who were veterans, in some cases, of twenty years of nearly constant war.

Then,

they came out of the hills near Unsan, North Korea, blowing bugles in the dying light of day on 1 November 1950, throwing grenades and firing their "burp" guns at the surprised American soldiers of the 8th Cavalry Regiment, 1st Cavalry Division. Those who survived the initial assaults reported how shaken the spectacle of massed Chinese infantry had left them. Thousands of Chinese had attacked from the north, northwest, and west against scattered U.S. and South Korean (Republic of Korea or ROK) units moving deep into North Korea. The Chinese seemed to come out of nowhere as they swarmed around the flanks and over the defensive positions of the surprised United Nations (UN) troops. Within hours the ROK 15th Regiment on the 8th Cavalry's right flank collapsed, while the 1st and 2d Battalions of the 8th Cavalry fell back in disarray into the city of Unsan. By morning, with their positions being overrun and their guns falling silent, the men of the 8th Cavalry tried to withdraw, but a Chinese roadblock to their rear forced them to abandon their artillery, and the men took to the hills in small groups. Only a few scattered survivors made it back to tell their story. The remaining battalion of the 8th Cavalry, the 3d, was hit early in the morning of 2 November with the same "human wave" assaults of bugle-blowing Chinese. In the confusion, one company-size Chinese element was mistaken for South Koreans and allowed to pass a critical bridge near the battalion command post (CP). Once over the bridge, the enemy commander blew his bugle, and the Chinese, throwing satchel charges and grenades, overran the CP.

Neither the United States nor the USSR, China nor North Korea had crystal balls and all had ideologies to consider. The fog of war limited the vision of all, something quite common. The problems went beyond that.

Although General MacArthur was indisputably a military genius, as most recently demonstrated by his very chancy but highly successful Inchon invasion which had generally been opposed by the military establishment in Washington. However, he had an unfortunate tendency to rely heavily on staff officers (the "Bataan Gang") who told him what he wanted to hear and reinforced his sometimes faulty views. General Charles Andrew Willoughby, General MacArthur's G2 (head of intelligence) was among them. He tended to tell General MacArthur things and, when General MacArthur accepted them, to provide no contradictory information. While often comforting, "yes men" are less valuable than officers who provide new information inconsistent with what they had previously provided. The same is true with presidents.

There was apparently also a focus on expecting the USSR, China and North Korea to behave "rationally" and a tendency to neglect aspects of their ideology and culture. What seems reasonable to the leader of a free people is often very different from what seems reasonable to a dictator far more interested in preserving and enhancing his own position. These factors must be kept constantly in mind in an incipient Korean Conflict.

Part II -- Now

North Korea is not our friend, and neither are China and Russia. They tend to look out exclusively for their own peculiar interests as they perceive them and will do whatever it takes to advance them. If the Obama Administration fails to recognize these things, and to act on the basis of them, we, South Korea, and many others as well are in for very substantial problems. Indeed, they are upon us with the recent provocative attacks by North Korea on the South.

In many respects, things are even more complicated and less fully understood now than during the lead up to the 1950 Korean Conflict. Then, we had few insights into what might be happening in the "Hermit Kingdom" of North Korea; that remains the case. Then, many seemed to recognize clearly that North Korea, China and Russia were our enemies; fewer now seem to have that clear a perception as to Russia and China. Additionally, China has developed quite dramatically as a world economic power, transcending Russia; she is a, if not the, principal banker to the United States. She also supplies much of the "cheap stuff" desired by American consumers and many others. In consequence, the United States has become far more subservient to her than ever before.

As other things have changed, North Korea has become an increasing threat internationally with her trade in offensive military material with Iran and others.

Part III -- Now and the Future

The naval exercise off Korea's western coast ran from November 28 through November 30 and nothing untoward happened.

A [U.S.] supercarrier sent jets into overcast skies Tuesday in U.S.-South Korean military drills that North Korea warned could spark war, but signs of diplomacy emerged alongside the tensions over last week's deadly North Korean attack.

. . . .

Cmdr. Pete Walczak said the ship's combat direction center was closely monitoring any signs of ships, aircraft of any other activity and that nothing unusual was detected from North Korea.

"Absolutely nothing," Walczak said. "A lot of saber-rattling, fist-shaking, but once our presence is here, reality says that it's really nothing."

It could be that North Korea, like any school yard bully, weak in ability but strong in shouting, simply backed off in the face of obviously greater power. Or, it may have decided to wait until after November 30 when the exercises ended and the USS George Washington departed. No big rush and doing something really stupid would not help to play the China card. Will North Korea attack again? My guess is You Betcha.

In what she may perceive as statesman like efforts to avoid a hot war, China has called for six party talks on the Korean situation. A United States State Department spokesman has stated,

The six-party talks cannot substitute for action by North Korea to comply with its obligations . . . . We have called on China to urge the DPRK [North Korea] to restrain its provocations and responsibly act in the interests of peace and stability.

Japan and Korea have also declined to participate. Japanese Foreign Minister Seiji Maehara stated,

It's unacceptable for us to hold six-party talks only because North Korea has gone amok . . . . We must first see some kind of sincere effort from North Korea on its uranium enrichment program and the latest incident.

Mr. Maehara's remarks suggest the difficulty the international community may face in trying to resolve the conflict on the Korean Peninsula through coordinated effort.

The proposal from China, Pyongyang's close ally, came as major naval drills by the U.S. and South Korea appeared to fuel tensions. South Korean President Lee Myung-bak, however, told Beijing now was not the "right time" for the six-party talks.

Perhaps irrelevant, the U.S. and Japanese positions on six-party talks followed the South Korean rejection. South Korean and Japanese foreign ministers are traveling to Washington on December 6 to meet with Secretary Clinton to discuss Korea and other matters. Former President Carter stopped by the White House and discussed "the international work of the Carter Center and several foreign policy issues." On November 30, he had expressed a hope for good faith negotiations with North Korea.

Some WikiLeak documents suggest that relations between China and North Korea have soured.

One senior Chinese diplomat is said to have told an American ambassador that younger generation Communist party leaders no longer regarded North Korea as a useful or reliable ally.
Furthermore, Beijing anticipates the regime will collapse after the death of current leader Kim Jong-Il.
"This is Chinese officials talking to American diplomats, describing North Korea - a close ally that the Chinese have been supporting for decades and supported in a war with the UN - as a 'spoilt child'.

"They also refer to North Korea's nuclear capability as potentially destabilising to world peace.

"This effectively puts the Chinese very much in the American camp in terms of their analysis, at least.

"It is an enormous shift from China's public position, which has supported North Korea, to their private position in talks with American officials."

It has also been noted that

Chun [South Korea's then-vice foreign minister] predicts the government in Pyongyang would last no more than three years following the death of ailing leader Kim Jong Il, who is seeking to transfer power to his youngest son Kim Jong Un, a political ingenue in his 20s.

Chun also dismisses the possibility of Chinese military intervention if North Korea descended into chaos.

Despite that, China is preparing to handle any outbreaks of unrest along the border that could follow a collapse of the regime. Chinese officials say they could deal with up to 300,000 refugees, but might have to seal the border to maintain order, the memos say, citing an unidentified representative of an international aid group.

At least some of the WikiLeaks concerning the relationship between China and North Korea have been confirmed by Chinese diplomats based in Europe. For example,

The officials admitted to a sense of frustration in Beijing over North Korea's recent actions, including its nuclear and missile tests – which China opposed – and last week's lethal artillery bombardment of a South Korean island.

A general discussion was continuing about the direction of North Korea policy, another official said. North Korea produced strong feelings among the Chinese leadership and public, and China had to be careful. Beijing wanted to maintain its friendship with Pyongyang. But it did not want to be led by the nose.

. . . .

The officials said the Chinese government was talking to the North on a regular basis; there were many channels that could be used. But the North was a proud nation and China could not ultimately control it, they said. Beijing told the North's leaders what it thought – but sometimes they behaved irrationally.

. . . .

"We do not have an effective way to influence them. Sometimes when we try it only makes things worse," a senior Chinese diplomat said.

Are Chun's predictions worth considering? Is the other information from the WikiLeaks true or false? Somewhere in between? A disinformation campaign? We may never know for sure. What would an abandoned North Korea do? Try to go out in glory? What would China do about it? Take over the country? Nothing? Something else?

Implosion of the North Korean regime, with insufficient spoils to be shared among Kim Jong-il, his sister and her husband, much less among the other ruling elites, would indeed be interesting to watch. "[T]here is always the chance that other powerful blocs, particularly within the military, [will] try to make a power grab." This could be followed by chaos and later reunification more or less on the South's terms.

Leaving aside the Kims, the estimated cost to South Korea would be about one trillion dollars.

South Korean President Lee Myung-bak has proposed a new tax to help fund the eventual bill for reunification, but the suggestion met a lukewarm response, especially from younger South Koreans, many of whom would resent having to make sacrifices for the sake of their impoverished northern neighbors . . . .

Meanwhile, South Korea has canceled or postponed military drills on the island the November 23 attack on which precipitated the current crisis.

Officials at the Joint Chiefs of Staff told The Associated Press on Monday that the latest drills were postponed after the marine unit on the island mistakenly announced them without getting final approval from higher military authorities. The cancellation had nothing to do with North Korea, and the drills will take place later, one official said. The officials spoke on condition of anonymity, citing agency rules.

. . . .

Military trucks carrying what appeared to be multiple rocket launchers were seen heading to a marine base on the island Monday.

It is unclear whether the rocket launcher movements preceded or followed the announcement that the exercise had been postponed. It does seem clear, however, that the "cancellation" had much, rather than nothing, to do with North Korea. Right now, most everything that happens in South Korea, including even bowel movements, is in reaction to North Korea.

South Korea is giving serious consideration to establishing military bases on Baengynyeong Island and others nearby, very close to North Korea, useful for retaliation should North Korea again attack but also easily subject to North Korean attack.

This editorial in the South Korean JoongAng Daily on December 1 may well express public sentiment:

We have grown accustomed to sporadic provocations from North Korea over the last six decades, but never has the possibility of another war felt so real. We feel betrayed and insecure to discover that our frontline forces cannot even respond to artillery fire despite dutiful public spending. We tried to understand that the sinking of the Cheonan warship might have been unavoidable despite our state-of-the-art equipment because of the murkiness and the fast currents of the Yellow Sea.

But how are we supposed to acknowledge that our military’s capacity only amounts to a few dozen artillery shells fired in response to the hundreds of shells that rained down on populated land in broad daylight? The disbelief from the sudden loss of a son, husband or father and the awe of watching the country in a fluster over a security disaster unleash a gush of uncontrollable outrage.

The people cannot understand how a country with one of the world’s most fortified borders and largest armies with hundreds of military experts, hundreds of generals, and thousands of retired generals has been protecting its frontline archipelago with just a dozen howitzers. After all the skirmishes and provocations, the country should have had a contingency plan - a rudimentary strategy of supplementing military power with naval and air forces - to defend the Northern Limit Line, the disputed sea border.

All the war games proved ineffective in real-life conflict. Any military conflict gives priority to protecting populated areas, and an armed forces that cannot deter an unruly enemy firing ruthlessly against innocent people amounts to no more than a paper tiger. The Navy and Air Force that circle around the battlefield doing nothing are no more than a showcase. What was instead revealed on Yeonpyeong Island was defective artillery, a lax war scenario and soldiers ducking away from real combat.

Much depends, unfortunately, on China and our increasing subservience to her. If North Korea initiates a real war -- perhaps by directing missile attacks against Seoul and her millions of residents -- the likely response of China is unknown and perhaps even unpredictable, beyond that she will do whatever she sees as in her own best interests, defined as the interests of her rulers. Her response cannot be assumed to be what we would consider rational because China's response will be a function of (a) how she perceives the precipitating events and of even greater importance (b) what the Chinese leaders consider their own best interests. I have very attenuated confidence that the folks at the State Department and elsewhere who are supposed to be watching the situation have many useful clues as to that sort of thing.

Looking back a century, Britain and France had substantial ties with Germany and insights into her intentions during the years leading up to World War I. Barbara Tuchman's Guns of August delves neatly into this. Yet neither fully accepted the probability of a German attack violating Belgian neutrality.

Our ties with North Korea are essentially non-existent. Kim the Younger, now North Korea's fading dictator, seems hardly capable of putting substantial pressure on China as his more illustrious father did with Russia sixty years before. Might he have an obsession with living up to his father's example? We don't know what might happen if he does.

Our ties with and insights into China's intentions are far less than were those of Britain and France with Germany. If China perceived events and interests as we do, it would be far easier to make rational predictions about her responses. As I see rational behavior, China probably would like to weaken the United States further to make her even more subservient, but without substantially eroding her highly lucrative market for Chinese manufactures. Would China apply unprecedented economic pressures on the United States to keep her out of the war? Failing that, would she herself enter such a war on behalf of North Korea? Or might she just leap in ways we would think irrational?

To help pass the time as we await further developments, here is a very frightening scenario; fiction to be sure but frightening none the less. Were a world war to occur, from which Russia would likely refrain, there would be only one winner -- Russia. And like it or not, Russia has not shown herself to be our friend.

This on the other hand, unfortunately is not fiction.

The Korean Situation is Highly Complex and Difficult

2010-11-24T15:35:00.001-08:00

It's not your grandfather's world.

In 1910 Korea, long under Japanese military occupation, was formally annexed by Japan. North and South Korea have been divided more or less along the 38th parallel since 1948. This flowed from the 1945 surrender of Japan and the decision that the United States would have trusteeship of Korea to the south of the parallel and Russia to the north. It was also decided that the United States would accept the surrender of Japanese armaments south of the 38th parallel, Russia of those to the north. Russia was North Korea's principal supporter, a role later to shift in great measure to Mainland China. The United States was and remains South Korea's.

The Korean Conflict began on June 25, 1950 with an attack on the Onjin peninsula, part of South Korea but accessible by land only through North Korea. At first assumed to be merely a provocative feint as had happened before, it wasn't. The conflict was not anticipated by the United States; it should have been. Dean Acheson, the Secretary of State, had only months previously delivered a speech listing the countries which the United States would defend if attacked; South Korea was not on his list. The United States had only a minuscule contingent of military advisers stationed in Korea and her forces in Japan were principally non-combat garrison forces, ill trained and ill equipped to go to war.

Troops from the North invaded in great numbers, crossing the parallel at numerous points with troops, tanks and aircraft. The equipment was principally of Soviet origin. They quickly took Seoul and points far to the south; there was little defensive capability, in part because the United States had declined to arm the South Korean military with adequate weaponry lest the South attack the North. The United States military was also in poor shape. Following World War II, the United States had cut her own defense spending "to the bone and through the bone." Military preparedness was low.

The few United States forces in Korea, augmented slightly by garrison troops stationed in Japan, retreated to form a southern defensive perimeter at the southern port city of Pusan. Massive efforts to reinforce the United States' troops there were made, including the calling up of reserves to fill billets vacant due to the staffing of military units in the United States at below even normal peacetime levels. Nevertheless, only three months after the North Korean invasion, General MacArthur's highly chancy but incredibly successful September 15, 1950 Inchon naval invasion was made.

The Inchon invasion was followed by United States attacks involving the land movement of troops from the Pusan perimeter, naval landings on the east coast and incursions well into North Korea from both the east and west. North Korean forces were routed. These attacks were swift and quite successful until China entered the fray en masse. She did this when United States and South Korean forces approached and then reached the border with China. The Chinese troops had massed north of the border with unmatched secrecy, traveling south only at night and hiding during the day. It has been said that Chinese troops who moved during the day were shot by their officers. United States military intelligence officers considered an invasion from China hardly worth considering, saw no signs of it approaching, and didn't think much about it until after it had come. Contrary to optimistic predictions, the United States forces were not "home by Christmas."

It is worth remembering today that China did not enter the conflict in force until her own border was approached. Her own interests were paramount and remain so. The deadly winter retreat of the United States and South Korean forces over and through harsh mountain terrain from the Yalu River back to the 38th parallel followed. The history of the Korean Conflict is well known and in the end an armistice was reached. North and South Korea remain in a technical state of war and a new conflict has been brewing intermittently ever since.

For about two and one half years during two tours of duty between 1967 and 1970, I was stationed in Seoul as an Army JAG officer. There were then approximately fifty thousand members of the U.S. military in South Korea. Now, there are almost twenty-nine thousand. The Pueblo crisis of 1968 occurred while I was there and a Korean airlines flight was hijacked in 1969. I recall being on a Korean Airlines flight from Seoul south to Taegu a few days after the hijacking when, shortly after takeoff, the aircraft made a sharp turn back to the north. There were lots of very relieved passengers when the pilot announced that we were returning to Seoul's Kimpo airport due to an engine problem. During this same period, North Korean aircraft frequently made passes at the border, sometimes briefly penetrating South Korean airspace but more often turning back before doing so. The obvious purpose was to desensitize South Korean and United States defenses to an eventual air attack. Seoul, the capital city of South Korea, is approximately twenty-five miles south of the border. Pyongyang, the North Korean capital city, is approximately 85 miles north of the border. It takes little time for a fast aircraft to fly twenty-five miles from the border down to Seoul and less for missiles. Then as now, there would be insufficient time for effective defensive counter measures to be taken against a surprise attack. These things are relevant to the present confrontations because they suggest that the current mess will probably continue and that there is little we can do about it; there is even less that we will likely do, in part because we increasingly rely financially on North Korea's principal supporter, China; China still acts based on her own perceived interests and beyond that is not likely to do much to help anyone.

Over the past forty years since I was there, and indeed since 1950, some things have changed -- Kim Il-sung died in 1994 and was replaced by his son, Kim Jong-il, who is ill and is being displaced by his son, Kim Jong-un, the twenty-seven year old "young (four star) general." The brilliant young general is not among the very brightest. Still, the charade goes on. China remains a big but somewhat worried supporter and the North Korean masses remain impoverished. Due to the Japanese occupation from before 1910 until the end of World War II, the division of Korea following the war and then the Korean Conflict, there are very few if any still living in North Korea with even memories of better times. They remain subjugated and few have more than scant hopes -- or possibly even wishes -- for better. The hereditary ruling civilian and military classes live in luxury. South Korea, in stark contrast, has become a thriving and relatively democratic country.

There have been various recent North Korean acts of aggression.

In March of this year, a North Korean submarine sunk a South Korean navy ship. North Korea denied any involvement in the incident, yet a UN commission of inquiry ruled that Pyongyang was indeed responsible, prompting the US to impose further sanctions. In response, North Korea announced that nobody could guarantee this would not have grave implications for peace and stability in the region. . . .

. . . .

At the same time, North Korea constantly continues, with active Chinese diplomatic assistance, to invite the US to resume the talks on Pyongyang's nuclear and missile program, in exchange for economic benefits and lifting of the sanctions. It's easy to see what the North Korean leadership aims to achieve via this belligerent brinkmanship. The main target is to create a situation whereby the sanctions are lifted and Pyongyang receives an immediate and significant supply of food and fuel, before Pyongyang ever commits to curbing its military nuclear program, and before International Atomic Energy Agency inspectors are ever allowed to return to North Korea.

Although Secretary Clinton announced that the sinking of the South Korean ship would have consequences, they seem not to have had much effect. The South Korean island shelled by North Korean forces on November 23, 2010 had more than five hundred residents.
The island is located just south of the 38th parallel. A statement carried by North Korean state media said Pyongyang “will wage second and even third rounds of attacks without any hesitation, if warmongers in South Korea make reckless military provocations again.” North Korea has become "the UN's problem from Hell." It has also become the "problem from Hell" for the residents of the island. The elderly women interviewed in the video below said that she was very angry. "North and South Korea are the same country!" Why, she asked, would they attack?
A surprise missile attack on Seoul, with approximately ten million residents, would be far more dramatic and devastating; it could certainly occur. North Korea has lots of missiles and certainly knows how to use them. Some are thought to have chemical warheads.

The United States dispatched the aircraft carrier George Washington and its accompanying flotilla, scheduled to arrive on November 28.

The participation of the aircraft carrier strike group, which includes 75 aircraft and 6,000 sailors, was agreed upon by U.S. and South Korean leaders, according to the presidential offices in both countries.

They are to participate in drills until December 1 off the western shore of North Korea – "the scene of the North’s barrage on a South Korean island. But this is also an area that Beijing vigorously claims as its own watery turf."

By sending in the USS George Washington carrier to conduct joint exercises with South Korea, Mr. Obama is risking an eyeball-to-eyeball confrontation with China. In recent months, top Chinese military officials have warned the United States not to send ships or planes into the Yellow Sea. They have even promised financial retribution.

China “won’t stand” for such US naval provocation, wrote Maj. Gen. Luo Yuan of the People’s Liberation Army in an August editorial. “Imagine what the consequences will be if China’s biggest debtor nation [the US] challenges its creditor nation,” he stated.

. . . .

China feels even stronger now as the US economy remains dormant with American consumers less dominant as buyers of other nations’ exports. The Chinese economy recently surpassed Japan’s and is second in size to America’s. And it watches with anticipation as Obama tries to cut the US military budget.

Will those cuts occur as scheduled? China has become the bank increasingly relied upon by the United States, but it is not a friendly local bank; it's officers are not members of the local Lions Club. Foreclose on the mortgage? Demand cuts in military spending? That would not be nice. Still, President Obama wants China to do something.

The message is that if you want something done in the region, talk to China. Washington’s utility has been reduced to a spokesman of the delegation to China. But the real gears turn in the Middle Kingdom. Therefore, it would not be surprising if one day the allies simply recognized that the US Secretary of State was an unnecessary and superfluous intermediary between themselves and the real audience. Logically the next step is to deal directly with the Chinese leadership in Beijing. The US has been dealing itself out its global commitments. Whether that is good depends on your point of view. One thing that is undeniable, however, is that an American retreat will have consequences, ones that will not be easily reversed.

According to Jasper Tsang, president of the Hong Kong Legislative Council, China wants to do something:

"China wants to see peace, cooperation and dialogue on the Korean Peninsula." Mr. Tsang also thinks that China may someday and to some extent emulate Hong Kong's form of democracy."Let me put it this way. We are still in a stage of transition. We are still debating on what the eventual, ultimate system should look like. Therefore, the coming 10 years or so will be a challenging period for us," he said.

At the invitation of South Korean Foreign Minister Kim Sung-hwan, Tsang will begin a five-day visit to South Korea later on Thursday [November 25]. While in South Korea, Tsang will visit the National Assembly and meet with Park Hee-tae, speaker of South Korea's National Assembly.

Hong Kong is moving towards a democratic government system. I believe there is much we can learn from South Korea in that aspect," he said.

Despite the successes in Hong Kong, I rather doubt that China has much present desire to move the mainland very far toward any form of democracy, but most anything is possible.

Despite whatever may be China's desires, it has been suggested that

recently, the [North Korean] military appears to be increasingly asserting itself on policy matters. In the past two years, military organs such as the Supreme Command of the KPA [the "People's Army"] and the National Defense Commission have been issuing policy statements directed toward the outside world -- something that was mostly done by the foreign ministry in the past.
More frightening is that there are reasons to believe that the military has become so emboldened and powerful that Kim Jong-il may no longer be the absolute leader who calls the shots in Pyongyang. For one, the Dear Leader’s physical and mental capacity has been declining—he reportedly suffered a stroke in 2008 and has grown frail since then. His third son and heir apparent, Kim Jong-un, lacks military credentials (although he recently and arbitrarily was elevated to the rank of general), and has to prove to the military that he has what it takes to be the next dictator-in-chief. That may explain why the Kims recently toured the base from which the shelling took place, to rubber-stamp the attack.

According to this report, the Kims toured the base just hours before the attack. The Young General may have issued the formal order.

In any event, the Obama Administration has thus far seemed to limit whatever options it may have. Its

policy of “strategic patience” with North Korea is having little impact on the regime, which is focused on the transition of power from Kim Jong-il to his son, Kim Jong-un.

Pyongyang’s provocative moves are clearly designed to force the U.S. back to the negotiating table, where North Korea hopes to obtain food aid for its starving population as well as security commitments, experts say.

The masses are indeed starving, but that is likely irrelevant as far as the North Korean oligarchic regime is concerned except as it can conveniently point to them and demand humanitarian aid.

During an address to the West Point graduating class in May, President

Obama outlined for the cadets his vision of a new international order organized around bodies such as the United Nations. In Obama’s future, American military force will give way to American diplomacy joined together with new multilateral partnerships, while “stronger international standards and institutions” will replace unilateral assertion of national interests — including our own. Obama told West Point’s Class of 2010 that he sees them not battling our enemies but “combating a changing climate and sustaining global growth, [and] helping countries feed themselves” even as their citizens achieve their “universal rights.”

These may be worthy objectives for a Peace Corps; to focus on them for the military ignores its basic historic function -- to kill people and to break things. Yet that is what President Obama does, and a weak president with an excessively rosy world view is an invitation to those who don't share his views to do monstrous things. They can probably get away with it, so why not? Rules of engagement? Ours are quite different from those of many others.

Former President Carter, renowned (by whom I don't know) for his diplomatic sagacity and strategic competence, has argued that problems involving nuclear enrichment and North Korean attacks can be resolved with direct U.S. - North Korea negotiations. He wrote,

Pyongyang has sent a consistent message that during direct talks with the United States, it is ready to conclude an agreement to end its nuclear programs, put them all under IAEA inspection and conclude a permanent peace treaty to replace the "temporary" cease-fire of 1953. We should consider responding to this offer. The unfortunate alternative is for North Koreans to take whatever actions they consider necessary to defend themselves from what they claim to fear most: a military attack supported by the United States, along with efforts to change the political regime.

Various aid proposals have been made. Any of them would work as well as others did in the past; not at all. North Korea is a heavily militarized state with the fifth largest population under arms. They seem fit and able to fight; the huddled masses don't much matter beyond providing for the military and for the leaders.

Can they fight as well as they have been trained to march? I hope South Korea, and we, don't find out but that may happen.

We have not got it right for a very long time and have succeeded consistently in little more than self delusion, inadequate intelligence and unfounded hopes that things will change for the better.

There is plenty of blame to go around for the current sorry state of affairs regarding North Korea’s nuclear program. But moving forward necessitates that the Obama administration once and for all abandon the longstanding myth that the Kim regime can be persuaded to relinquish North Korea’s nuclear weapons in exchange for the appropriate package of incentives. This will not come easily to an administration predisposed to “negotiations.” Moreover, such truthfulness will require the accompanying political will on the part of the United States to undertake the risks associated with refusing to acquiesce to Pyongyang’s provocations. This is a decision that no U.S. political administration has been thus far willing to undertake to thwart North Korea’s nuclear program.

Thus far, North Korea has been quite successful in pushing us around. It was suggested here that the United States need a radical shift in strategy and should

pull American troops out of South Korea. American military power is no longer needed in South Korea, at least not in the purely balance of power sense. In fact, the American military presence along the DMZ with North Korea only serves to constrain our initiative. Instead of doing what’s best for U.S. national security, acting to dismantle the North Korean nuclear weapons program, we are hobbled by our alliance with the South into not doing anything that might provoke the North.

Maybe, but I don't think it's a great idea right now. True, our troops seem to serve little useful purpose other than as hostages to North Korean whims. There is not much they could do to prevent a sudden attack, and Seoul with some ten million people could easily be reduced to rubble by air attack or even missiles -- without nuclear weapons. North Korea would likely be destroyed in retaliation. That sort of war is probably not in the cards.

The South Korean troops are far better trained and equipped than in 1950; they are pretty tough and were quite effective in Vietnam.

Most of the operations never exceeded battalion-size, but they also conducted divisional size operations. Before conducting missions, the South Korean marines laid out their plans much more carefully than their allies, with greater fire discipline, effective use of fire support, and better coordination of sub-units. They also had to their favor the distinguished combat leadership of the company and platoon commanders. During village searches, ROK soldiers would subject the settlement to a series of detailed sweeps while interrogating subjects on the spot. By comparison, American units tended to favor a single sweep followed by a removal of all civilians for screening. Such a painstaking approach certainly paid dividends in terms of weapons seizures and reduced VC activity in ROK areas. Koreans quickly learned pidgin Vietnamese language; for fear that most Vietnamese translators were spies for Vietcong and NVA. Koreans also had better field intelligence than their American counterparts. Koreans conducted counterinsurgency operations so well that American commanders felt that the Korean TAOR (Tactical Area of Responsibility) was the safest. This was further supported when Vietcong documents captured after the Tet Offensive warned their compatriots to never engage Koreans until full victory was certain. In fact, it was often [said] that the NVA and Vietcong were ambushed by Koreans and not vice versa.

On November 25 South Korea announced substantial augmentations of forces in the currently apparent danger areas.

At an emergency meeting in Seoul on Thursday, Mr. Lee [the president] ordered reinforcements for about 4,000 troops on tense Yellow Sea islands, top-level weaponry and upgraded rules of engagement that would create a new category of response when civilian areas are targeted.

Still, our troops in Korea probably provide some useful reassurances to South Korea and other allies (if we still have some) and that's important. Right now is probably not the best time to withdraw.

It is a mistake to focus primarily on the nuclear threat North Korea poses to the South; she could do horrific damage there without them and would have little reason to waste them; they are more useful to barter with other hostile countries, such as Iran. It does not seem credible that the United States would respond with nuclear weapons to a non-nuclear attack.

The far more important danger lies in Iran, which is arming other hostile countries including even Venezuela. China and Russia are both establishing and strengthening military ties with Venezuela.

[T]he combination of crazy leadership, nuclear weapons and missile capability inevitably makes people nervous. Which raises, once again, the question why the Obama administration apparently views the acquisition of nuclear weapons by Iran with equanimity.
. . . . The acquisition of nuclear weapons by Iran is much more ominous than North Korea's development of a nuclear arsenal. As I've argued for years, North Korea is essentially a status quo power, albeit a somewhat erratic one. The regime isn't out to change the world; it just wants to survive and enrich itself.

Iran, by contrast, is a revolutionary power that seeks to transform its region and to eradicate at least one of the states in the area. That state happens to be a traditionally close ally of the U.S.

It now seems highly likely that North Korea has been selling missiles to Iran "potentially giving the Islamic nation the capability of attacking Moscow and cities in Western Europe." It also appears that China has been complicit in the North Korea - Iran trade. Who woulda guessed?

It's up to the United States to plot a course to navigate in her own interest among the shoals of China, North Korea, Iran and their friends rather than seek to rely on China to do it. China's interests are very different from those of the United States and the Obama Administration really does need to recognize those differences and their extent. In large measure, "it's the economy, stupid," in international relations as well as domestically.

It is unrealistic to expect China to continue indefinitely to bail out the United States. China profits, far more than financially, from our subservience. We will continue to be in a muddle no less perplexing for the foreseeable future until we recognize these facts and proceed in accordance with our own best interests -- something we seem only rarely to do.

UN Seeks Global Taxes; Obama Administration Says Bend Over.

2010-11-15T18:15:00.000-08:00

It seems as though the United States needs more problems.

There has been a demand for a global tax to fund the heroic battle against the horrors of ~~global warming~~ ~~climate change~~ species endangerment.

The demand comes from the Secretary-General's High-level Advisory Group on Climate Change Financing, which was organized following last year's UN Climate Change Conference in Copenhagen. Among the panelists recommending global taxes are George Soros, the financier of socialist change, and Larry Summers, President Obama9;s [sic] economic advisor.

The suggested amount of the global tax would only be 100 billion dollars when implemented (the amount "pledged at last year's Copenhagen Summit to help poor countries cope with the effects of climate change"), small change perhaps to some, but it would increase substantially thereafter mainly through carbon and transactions taxes. Obviously, according to this splendid article in Salon, we must put ~~Al Gore~~ science back into the political process, lest we be barbaric. Prime Minister Zapatero of Spain has asked that we all help to create green jobs in Spain and elsewhere "as a way out of the current economic crisis;" apparently the theory is that since the market won't create enough of them, they are the way to economic prosperity.

As Madrid economics professor Dr. Gabriel Calzada exposed, the “green” industry in Spain saw their only hope in the U.S. (Uncle Sucker?) coming to the rescue, keeping the bubble filled with transferred billions. Calzada was decried as “unpatriotic” by Spain’s renewables industry and communist-affiliated trade union — not for being wrong, but for letting the cat out of the bag.

Implementation of this "science friendly" idea would create all sorts of opportunities for the slippery slope effect to click in for more of the same as well as for other purposes. At the G20 summit in Korea, a global "Robin Hood" tax was proposed so that "rich" nations could help "poor" nations, doubtless "scientifically." The World Health Organization recently urged a similar objective. Not to be outdone in efforts to spend other folk's money,

French, German and British leaders have each endorsed one or more ideas for international taxation, including a global financial transaction tax or "Tobin Tax" as it is more commonly known. The G-8 and the International Monetary Fund, not wanting to be left out of the global tax game, are writing proposals of their own. With Summers, we can now add to that list a high ranking Obama administration official.

International taxation is "no longer merely an option," says French Foreign Minister Bernard Kouchner. He argues it's only a matter of time before the UN implements a tax system.

Unless the U.S. Constitution has recently been tossed or substantially rewritten, there is no way for the U.N. or other international bodies to impose that sort of thing on the United States directly. This does not mean that we are immune. Unfortunately, there are some ways for it to be done indirectly. Some would require the complicity of the President and the Congress and only a few would not. As noted here, there is presently very little chance of any significant global tax scheme being accepted by the United States due to constitutional restrictions, the economic situation and political realities.

While it may be a flight of fancy now, global taxation has been strongly and consistently advocated by the UN, the WHO, several European countries and others. President Obama has supported the concept and in 2008 sponsored the Global Poverty Act (S 2433) to require U.S. compliance with the Millennium Development Goals. Vice President Biden, then chairman of the Senate Foreign Relations Committee, tried to get it passed but failed. More recently, in December of 2009, soon-to-be-no-longer Speaker of the House Nancy Pelosi endorsed the idea of a global tax on stock trades to provide funding for additional stimulus packages.

It seemed almost a matter of pride for some in the Are you Serious Congress to ignore the Constitution when dealing with legislation, under the assumption that the federal government can do whatever it pleases. We saw that, for example, when ObamaCare was before the Congress; yet it passed. The mandatory health insurance provisions are now being litigated and I would be quite surprised were they not eventually to fall -- but not before creating substantial business uncertainty and consequent economic difficulties.

Over time, resistance to a global tax scheme may diminish to the point that just a small and economically benign tax gets by. Precedent having been established, it would become increasingly difficult to prevent the process from reproducing itself for increasingly harmful taxes. Legislative expansions of the Commerce Clause, not terribly significant in themselves at first, have over the past seventy-five years distended it rather grossly.

Articles I, Section 7 of the Constitution provides,

All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

Article I, Section 8 provides,

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.

Article I, Section 9 provides,"No Tax or Duty shall be laid on Articles exported from any State." Its purpose has been said to be

To prohibit discrimination against any states or regions, Congress cannot tax goods exported from a state to foreign countries or those that move between states. (emphasis added)

Further, under the same Article and Section,

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

The Sixteenth amendment authorized an income tax:

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

And that's about it.

Hence, no United States taxes can be imposed on goods exported to any foreign country, no non-uniform taxes can be imposed on any state other than via income taxes and all legislation to raise such revenues must originate in the House of Representatives, soon to be under the control of a reasonably conservative or at least Republican majority. New excise taxes on fuel, electricity, etc? Not with the new Congress, unless some individual states impose them on their own residents which seems equally unlikely. It seems likely that future appropriations for funding by the United States of the U.N. may already be in trouble, and to increase them would be very difficult. Ditto funds appropriated to federal agencies and departments, and ways exist narrowly to restrict such appropriations. True, under Article II, Section 2, the President has the power,

by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur. . . .

Were the President to present to the Senate which convenes in January a treaty authorizing the collection of such revenues it probably would not receive the consent of the requisite numbers of senators; even if it did, it is very questionable whether it would be compliant with Article I and the Sixteenth Amendment quoted above. Senate Resolution 461, introduced by recently re-elected Senator David Vitter, R. La., on March 10, 2010, would put the Senate on record against any global tax scheme. It was referred to committee and has not yet progressed; maybe that sort of resolution should be looked into by the new Senate come January.

However, there are still ways the global tax envisioned by Secretary-General Ban Ki-moon's United Nations and others might be implemented. The U.N. Advisory Group offers some options

for governments to get the required $100 billion. "Governments may prefer to increase budget contributions," its authors helpfully suggest, until such time as new domestic or international taxes can be imposed and collected. It goes on to recommend a "carbon export optimization tax," and levies on international aviation and shipping including taxes on jet fuel and passenger tickets for international flights.

Other possibilities include royalties from fossil fuel extraction, and taxes on the use of electricity. Finally, there is the need, according to the UN, for a "global financial transaction tax," that would require "international coordination" and "international implementation." This is UN-speak for a global tax collecting agency.

Beyond these nifty ideas, which could easily discriminate against some states, foreign governments could increase their own taxes imposed on imported goods, many of which still come from the United States; this would have to be done very carefully if trade wars were to be avoided. The added funds so collected could be diverted to the U.N. They could also impose additional taxes on U.S. entities doing business in foreign countries, although if high enough that could cause some United States companies to rethink outsourcing and other ways of operating outside the United States; that might well be a good thing for the U.S. economy.

The United States has done more than her "fair share" of aiding less fortunate countries, and far from thereby winning the minds and hearts of their populations has increasingly been disparaged. She has maintained forces abroad, making it easier for some countries to have massive social programs based on the funding they would otherwise have had to spend on self defense. In some ways, she has done them ill by promoting an entitlements culture which, once started is almost impossible to stop. See Greece, France (and increasingly California and other states where that culture has gone berserk).

Rather than chase the fading ghosts of global warming and other phantoms, the new Congress should say "whoa" and reconsider the funding on which the country already splurges; to do otherwise would be pernicious. It would be no less so to let even a minimal global tax sneak under the radar. I facetiously suggested here that the United Nations be relocated to Luputa, Haiti or Somalia but that probably wouldn't work, despite the benefits thereby provided to the poor. In any event, the new Congress should give careful and detailed consideration to whether even the present (high) level of United Nations and foreign aid funding provided by the United States should continue. To do otherwise would be, the extent such a thing is possible, even more inconsistent with United States interests than is the present Obama Administration itself.

Liberalism May be Dead but Librulism is Not

2010-11-10T09:19:00.000-08:00

Classical liberalism needs resuscitation.

Following the recent elections, Roger L. Simon recently opined that Liberalism is Dead. He referred, of course, to modern liberalism rather than to classical liberalism. He is more confident than I am about the demise; the death of modern liberalism may be approaching and I hope it will come. However senile and ineffective it may appear or we may wish it to be, it and its proponents remain forces about which to be concerned. Unfortunately, modern liberalism a.k.a. Librulism may even now be more alive than classical liberalism.

Words have transitory meanings. The word "gentleman" once meant a man privy to the person of the king. It eventually came to mean a person of sufficient inherited wealth to live well without "hard earned" money; mere tradespeople were not "gentlemen," no matter how sophisticated and polite they might have been. The word "gentlemen" now adorns the entrance to the restroom (another interesting word, that; I have never seen one with furniture really appropriate for a rest) used by males. Over time, "liberal" has morphed in similar fashion.

Thomas Jefferson considered himself a liberal but would, most likely, find little in common with those who appropriate the term today. Lock Mr. Jefferson (of Virginia) in a room with any one of the many so called liberals of today, and they would possibly come to blows, the event being at least forestalled because Mr. Jefferson was a “gentleman” in the eighteenth century sense of the word. Query, how many people who nowadays call themselves liberals believe that their views on life, the universe and everything reflect those of Mr. Jefferson. After all, he was a “liberal,” and so are they.

. . . .

I elect to use the word “liberal” to connote an open but not empty mind, a tendency to encourage the expression of opposing views, to listen attentively to them, and to desire to become familiar with them regardless of whether they are agreeable. It suggests a rational rather than a dogmatic approach to reality. A “liberal” in this sense can also be conservative; a conservative can, by the same token, be a "liberal;" there is no contradiction in terms.

Librul is the antithesis of liberal yet we persistently confuse the two. John Morton Blum, a very popular teacher of American history, was a liberal and a Democrat (he campaigned for George McGovern in 1972) but not a Librul. He is among those who made the difference live. His class was one of the largest and therefore had to be held in the law school auditorium. He spoke and wrote with enthusiasm about FDR and also about The Republican Roosevelt, Theodore. Mr. Blum was very happy to reminiscence extemporaneously the day after Eleanor Roosevelt died in November of 1962 about his conversations with her at Hyde Park concerning FDR; he had spent much time there going over President Roosevelt's papers and talking with her as he wrote a book (The Morgenthau Diaries) about the FDR years; we were captivated. Mr. Blum was no less pleased to introduce Senator Barry Goldwater, considered a leader of the conservative Republicans, to the class during the lead up to the presidential nominating campaign preceding the 1964 presidential elections; the senator got lots of applause and no boos as he and Mr. Blum entered the auditorium.

Mr. Blum made no attempt to indoctrinate, he merely told us about history factually, knowledgeably and as impartially but interestingly as anyone could have. I understand that the Librul disease has now infected many institutions of higher learning and find that extremely unfortunate; thus is the disease spread. I do not think that was generally the case nearly half a century ago.

Libruls do and say strange things which liberals generally do not. Libruls are fond of the word "racist" and conflate it with opposition to Librul positions. In Librulspeak, it is "racist" not to consider race in hiring and promoting employees and for other purposes; some but not all consideration of race is called "affirmative action" and "affirmative" presumably connotes something good. Republicans, unlike Democrats, are racist. So are those fool conservative T.E.A. groups which supported LTC Allen West who, due to a clear victory in a heavily White district, will in January become the first Black Republican congressman from Florida since Reconstruction; they just gotta be racist. So must Republican Hispanics Marco Rubio and David Rivera in Florida as well as Susana Martinez in New Mexico and Brian Sandoval in Nevada; ditto their supporters. There is no depth of depravity to which those Uncle Tom racists and their enablers will not descend.

Through some odd mutation, "race" has come to encompass both sex and ethnicity, although neither has any necessary connection to race. "Hispanic" has come to suggest a race, even though it legitimately refers to ethnic ancestry or surname. Mr. Gonzalez is Hispanic, even though he may be a Caucasian. I seem to recall reading many years ago that a Mr. Jones had secured a judicial name change to Mr. Gonzalez so that he could qualify for governmental Hispanic preferences. The federal Office of Personnel Management is holding its Third Annual Federal Hispanic Career Advancement Summit on November 29 and 30 of this year. I suppose that Sally Ortega, née Jones, would be among those whose careers are to be advanced.

Much of Europe is in the midst of a Librul crisis; Greece, France, anyone? To a lesser but still growing and festering extent so is the United States; yet President Obama apparently wants to emulate them; we must become more Librul and thwart the Party of No.

I suggest that the crisis has been propelled in no small way by the politically correct misuse of language. Political correctness is a symbiotic encrustation on Librulism; I don't know which is a cause and which is an effect, but neither could probably exist without the other. ~~Global Warming~~ ~~Climate Change~~ Species Endangerment? It's getting worse by the minute and it's all our fault. Praise Gaia, it is ~~a crisis~~ an opportunity not to be wasted; deniers are wicked. Charity? What's that; we have entitlements. Poverty? Even some folks living in the United States who own a couple of cars, a house, a couple of television sets and spend lots of their time getting fat at McDonald's live in poverty; they learn that they need and therefore demand our help because they are entitled to it; it ain't charity which would make them lose any vestiges of self respect. Besides, ~~slaves~~ the poor can be made continuously dependent on the system -- for many generations; that is good, rich is bad. Government spending? That's cool; it's just ~~ObamaMoney~~ government money. Inflation? That's just what happens to tires and balloons. ~~Illegal Aliens~~ Undocumented immigrants? What's illegal about not having some idiotic scrap of paper? Racism? That's something white folks do; just ask the Reverend Messrs Jackson and Sharpton, and don't forget the Honorable Mr. Rangel. Sexism? That's something people who don't disparage politically active females principally because they are attractive do. Helen Thomas, the recent runner up in a Ms. Congeniality contest (meh), would probably be a great president. Hate crimes? Don't yap about what the term means. Voter disenfranchisement? The Department of Justice is doing a bang up job. The Constitution? Don't worry about it; it's just a silly old document reciting irrelevant and out of date notions held long ago by some dead white males. Dead is good.

It is politically incorrect to refer to an "Afro American" – presumably even one living in Africa who has never been to any part of the American continent – as Colored (the NAACP still uses that quaint adjective), as a Negro or probably even as Black (the Congressional Black Caucus does and only admits Afro Americans, but that's not racist; a Congressional Caucasian Caucus would obvious be). Should I refer to a Caucasian citizen of South Africa as a "Dutch, English (or whatever) African?" Islamic terrorist? That shows an abysmal ignorance of the Religion of Peace. Conservative Christians? Stupid people who don't know any better than to cling to their guns and bibles. Jews in Israel – they should properly be referred to as Hebrew Palestinians. Unions = good; corporations = bad. Community organizers? They become miraculously good Presidents and receive anticipatory Nobel Peace Prizes. Attractive female governors? Don't be silly; elections are not beauty contests and we need experienced people.

Once upon a time, joyful people were referred to as "gay." Somehow, the meaning of "gay" has changed and no longer has much to do with a state of current happiness. A conservative liberal (I do at least try), I am not gay about the way the United States had been heading at least until recently. Negroes, poor people, women, foreigners living in the United States legally, the involuntarily unemployed and underemployed and others have been getting the shaft to a far greater extent under the rule of Libruls than they would with liberals. On November 2^nd the country made some progress away from Librulism toward liberalism. Such progress is good, but it needs to continue and not be wiped away by apathy now that the elections have been held. One thing to do would be to refrain from political correctism. Saying No to it would be a good start to restoring a bit of pride in our country.

The October 14 Federal Court Decision in Florida is a Big Setback for ObamaCare

2010-10-15T18:16:00.000-07:00

Alice in Wonderland notwithstanding, Congress must say what it means and mean what it says.

In an order released on October 14 in State of Florida, et al v. Dept. of Health and Human Services, et al , Judge Vinson of the U.S. District Court for the Northern District of Florida, Pensacola Division, permitted an action by twenty states challenging the mandatory health insurance provisions of ObamaCare to go forward. As noted here,

In his ruling, Vinson criticized Democrats for seeking to have it both ways when it comes to defending the mandate to buy insurance. During the legislative debate, Republicans chastised the proposal as a new tax on the middle class. Obama defended the payment as a penalty and not a tax, but the Justice Department has argued that legally, it’s a tax.

Beyond Judge Vinson's apt characterization of the government's approach as an "'Alice in Wonderland' tack" (see below) the most interesting part of the decision deals with the difference between between a tax and a penalty and why it matters. The Congress knows how to impose a tax when that is what it intends. Judge Vinson observed that since the mandatory insurance provisions were not referred to in the legislation as a "tax" but as a "penalty," as well as for additional reasons (including, for one example, the tanning facility tax, clearly intended as a tax and labeled as such), it is "manifestly clear" that the Congress intended to impose a penalty rather than a tax.

This distinction is crucial, because rather than purport to rely on its rather broad taxing power under the Constitution, the Congress relied exclusively upon its somewhat less broad Constitutional power to regulate interstate commerce among the several states in enacting the mandatory health insurance provisions of ObamaCare.

Perhaps most significantly, the Act does not mention any revenue generating purpose that is to be served by the individual mandate penalty, even though such a purpose is required. . . . Nowhere in the statute is the penalty provision identified or even mentioned as raising revenue and offsetting the Act's costs.

* * * * *

Reviewing courts cannot cannot look beyond a statute and inquire whether meant something different than what it said. . . . .

I have no choice but to find that the penalty is not a tax.

Judge Vinson continued, noting that by declaring the provision a penalty rather than a tax the Congress reaped a political advantage

Congress should not be permitted to secure and cast politically difficult votes on controversial legislation by deliberately calling something one thing, after which the defenders of that legislation take an "Alice in Wonderland" tack and argue in court that the Congress really meant something else entirely, thereby circumventing the safeguard that exists to keep their broad powers in check.

Amen.

Judge Vinson then disposed of questions of ripeness and standing in favor of the Plaintiffs but rejected the plaintiffs' contentions that requiring employers, including state governments, to provide health insurance for their employees and requiring states either to provide health insurance exchanges or have the Federal Government "develop and implement" such exchanges for them unduly infringed upon state sovereignty. However, he found that the states had presented plausible arguments as to compulsion under certain funding provisions for Medicaid (which he characterized as a close question).

Judge Vinson then proceeded with a preliminary analysis of the legitimacy of the mandatory health provision under the Commerce clause, the essential part of the decision. Noting that the Federal Government had never before sought to regulate economic inactivity by requiring people residing in the United States to buy something, he observed:

[T]he Commerce Clause and Necessary and Proper Clause have never been applied in such a manner before. The power that the individual mandate seeks to harness is simply without prior precedent. The Congressional Research Service (a non-partisan legal "think tank" that works exclusively for Congress and provides analysis on the constitutionality of pending legislation) advised Congress on July 24, 2009, long before the Act was passed into law, that "it is unclear whether the [Commerce Clause] would provide a solid Constitutional foundation for legislation containing a requirement to have health insurance." The analysis goes on to state that the individual mandate presents "the most challenging question . . . as it is a novel issue whether Congress may use this clause to require an individual to purchase a good or service." [In Supreme Court cases involving accommodating Blacks in motels and growing wheat] [a]ll Congress was doing was saying that if you choose to engage in the activity of operating a motel or growing wheat, you are engaged in interstate commerce and subject to federal authority.

But in this case we are dealing with something very different. The individual mandate applies across the board. People have no choice and there is no way to avoid it. People who fall under the individual mandate either comply with it, or they are penalized. It is not based on any activity that they make the choice to undertake. Rather, it is solely based on citizenship and being alive. . . .

Of course, to say that something is "novel" or "unusual" does not mean that it is "unconstitutional" or "improper." There may be a first time for anything. But, at this stage of the case, the plaintiffs have most definitely stated a plausible claim with respect to this cause of action. (emphasis in original)

Judge Vinson thus permitted the case to go forward for trial on December 16^th and quite possibly motions for summary judgment.

Judge Vinson's remarks in his Conclusion quote these words from the Supreme Court:

Some truths are so basic, like the air around us, they are easily overlooked. Much of the Constitution is concerned with setting forth the form of our government, and the courts have traditionally invalidated measures deviating from that form. The result may appear "formalistic" in a given case to partisans of the measure at issue, because such measures are typically the product of the era's perceived necessity. But the Constitutions protects us from our own best intentions; it divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.

Despite the displeasure noted by the White House, the case will thus proceed, and it rather clearly suggests that the outcome may be very different from that recently where U.S. District Judge George Steeh in Thomas Moore Law Center v. Obama on October 7^th rejected claims that the individual mandate exceeds Constitutional authority under the Commerce clause. Judge Vinson's decision appears to be the better reasoned of the two and it seems likely that in Judge Vinson's court the government will have a tough roe to hoe in convincing him that the individual mandate meets Constitutional standards.

I also find very encouraging the judicial reaffirmation that when the Congress expressly states its Constitutional authority in enacting legislation, it should be bound by it and not wander off into other possible (but rather improbable) realms to justify the legislation before the courts. ObamaCare was passed, not as justified by the taxing authority but as authorized under the Commerce clause. If it is is not permitted under the Commerce Clause, as it probably is not, it must fall.

Also published at Opinion Forum.

Swarm Theory and Politics

2010-10-08T11:45:00.000-07:00

First published at Opinion Forum.

Can analogies be drawn between insect swarms and human political activity?

Stink bugs have been swarming in Washington, D.C. where, unlike CongressCritters, "they really cause no harm. . . . just a nuisance." Fortunately, the Congress has adjourned.

The swarming addressed here can be more than just a nuisance. Sometimes the results can be seen as good or bad depending on what one wants. Swarming (as distinguished from smarming, a human social and political tactic) is a natural phenomenon permitting essentially brainless creatures -- ants, bees, other insects and some fish -- to thrive through apparently instinctive collective reactions to external stimuli. Maybe swarming also illuminates some species of political behavior.

Ants and bees construct truly ingenious structures in which to live and breed and which they protect when endangered. If a bee hive is destroyed the surviving queen leaves, followed by a swarm, and they get busy building a new hive -- without the help of FEMA, federal grants or other financial stimuli. Ants do much the same with great industry. The nests of some ant colonies extend for many miles underground.

In Europe, one vast colony of Argentine ants is thought to stretch for 6,000km (3,700 miles) along the Mediterranean coast, while another in the US, known as the "Californian large," extends over 900km (560 miles) along the coast of California. A third huge colony exists on the west coast of Japan.

As with bees, ant colonies are marvels of architectural sophistication. Highly unintelligent creatures, apparently lacking even a sense of their own existence or that of their fellows, acting collectively and instinctively in swarms, they can do some things as least as well as can individual humans and can exhibit collectively something resembling individual human intelligence and activity. As a point of at least minor interest, humans are thought to have a biomass of approximately 335 million metric tons and ants of between 900 and 9,000 million metric tons. Bee biomass is thought to be declining, but I couldn't find any numbers.

When an ant leaves its nest to forage for food it takes an apparently random path. When it finds food, it carries it back to the nest leaving a trail of chemical signals called pheromones. Other ants also go out looking for food and when they find it they do the same things. There being no welfare system, when the first ant returns with food others follow its pheromone trail back to the food source and return by the same path, leaving additional pheromones. The pheromones are short lived, so once a food source is exhausted and unsuccessful ants have abandoned it and gone looking for other sources, the old trails evaporate. When new sources of food are found the ants returning to the nest with food leave new pheromone trails to be followed by others until they in turn evaporate. There is a lot more to it than that and there is a mountain of literature on the subject of swarming; a bit of it is available here.

Computer programs based on ant behavior abound and parcel delivery services use them daily to determine the most efficient routes for their trucks. Much of the traffic on the internet is routed using similar ant-based algorithms. Some suggest that the human brain itself involves swarm theory, "even complex cognitive functions, such as abstract reasoning and consciousness." Maybe our brains resemble bee hives, although in some cases that might be an insult to the bees.

In 2002, Michael Chichton (1942 - 2008) wrote Prey about a nanoparticle project gone very wrong. Nanoparticles are microscopically small, dust like things. The idea was to use swarms of nanoparticles, some with visual, some with aural and some with other capabilities, to conduct military surveillance and for other purposes. However, they inexplicably "evolved" very quickly -- a generation was of about three hours duration -- and began to reproduce as well as to swarm in unforeseen ways. The novel leaves unanswered the question of whether the human race survived. Scary and far fetched, but not as far fetched as one might think. The United States military have been looking seriously at swarm behavior since before 2000. Murphy's law, that whatever can go wrong will at the most inopportune time, is similar to the concept of the fog of war, where ambiguity, chance and chaos, with all of their non-linear recursive complexities, continue to play important roles despite (or perhaps because of) advances in command and control equipment and procedures leading to information overload. Small events can have large consequences. Multiple articles are collected here. The military apparently envision using large numbers of inexpensive, highly expendable and essentially autonomous robotic devices to accomplish various missions. These are not the remotely controlled unmanned drone aircraft currently in the news.

[C]urrent UAVs require at least one operator per UAV, despite technological advances that make it possible to deploy hundred (if not thousands) of inexpensive [UAVs]. This requirement not only increases expense, but makes coordination among UAVs more difficult.

Recently swarm technology has been suggested as a possible solution to automatically control and coordinate multiple UAVs. Swarms consist of a large number of distributed, parallel-acting individual entities coupled with primitive communication mechanisms such as chemical markers. The idea behind a swarm is that simple local rules that govern the behavior of individual entities can lead to complex emergent [self-taught] behavior of the system as a whole. For example, it might be possible to conduct a search and destroy operation. Rules include ideas such as “avoid areas already searched” or “avoid UAVs within a certain radius.”

Cheap and stupid robots are in some cases more effective than teams of intelligent soldiers with assigned specialties. Soldiers think and adapt quickly to changing conditions. The loss of even one with a critical task can cause a mission to fail. Although robots don't "think," they too can react very quickly to changing stimuli. They are homogeneous and can be numerous. The loss of some is matter of little consequence to the mission. Are nano devices being considered? So it appears.

People obviously (with few exceptions) are individually far more intelligent than are ants and human swarms are less common than with bees. Still, sometimes they occur. At a hotly contested rugby match, something similar to a swarm sometimes occurs. A sense that team A won unfairly (or simply because it was team A rather than team B) can cause a major riot of thousands of spectators. "Deprived youths" in some nascent Islamic countries swarm to offer burnt automotive sacrifices to their image-phobic god, while others, perhaps more devout, riot self-destructively to allay cartoonish offenses to theirs. A racial incident can cause similar rioting, particularly if stimulated by queen bees and lesser luminaries; great and self-destructive damage to the infrastructures of the communities from which the rioters hail is common. They "lose their minds" and become a swarm. "Damn those jerks! We'll show them. Let's burn our houses! Yeah! Let's!" The phrases "herd mentality" and "mob mentality" are commonly applied. This sort of thing occasionally happens in politics. The politically inspired race to judgment over the activities of the "elite" Duke University lacrosse team vis a vis a stripper may have been a minor example of something similar; the queen bees were very busy.

On the other hand and in a different context, some beneficial things can result from conduct resembling but not amounting to true swarm behavior.

[T]op-down management is viewed as a forced, and thus, ineffective approach. We say that the bottom-up thrust is based on the world's creatures' success with 'emergence', 'swarm theory' or 'chaos theory' a bottom-up approach used by ants, bees,birds and even trees[??]. Its basis is that small simple local decisions, if allowed to develop and follow their own path under an overall strategic guidance of process, will lead to an elegant solution - not just a better solution but a superior solution that no single individual could likely have conceived.

I don't know about the trees, but does this at least remotely suggest T.E.A. party organizations to anyone else? According to this Wall Street Journal article, individual groups called "tea parties" remain highly diverse but are coalescing in pragmatic fashion to the extent necessary to achieve their basic goals. It seems to be a bottom up, and far from top down, phenomenon.

Statism and the accompanying central (top down) planning, direction and control of human conduct are fatally flawed but might work well in an ant colony or bee hive, provided the insects were not thereby deprived of their autonomous nature. If Venezuelan el Presidente Chávez could wiggle his buttocks like a queen bee and invoke consistent and reliably productive responses by the masses, Venezuela might be a viable machine for creating stuff. He can't and it isn't because that's not the way in which humans have evolved. There are other problems:

we know that complex systems are exquisitely sensitive to initial operating conditions and that interventions can have disproportionately large or small implications depending upon timing, etc. . . .

Central planning does not, and cannot, take into account apparently insignificant changes which can have very important effects.

North Korea seems to offer the best current example of remarkably unsuccessful quasi-swarm-based human endeavor. Fortunately, elsewhere in politics there tends to be substantial diversity of opinion transcending the charisma of queen bees. Although the power of a queen bee once firmly entrenched is difficult to undermine it is possible. Senator Obama managed to displace Senator Clinton as queen bee in 2008. Now many of his swarms of worker bees are wondering what happened and may be looking for a replacement. Many who didn't like but voted for him in 2008 are also doing so. Does Governor Palin seek to be Queen Bee (at least for a day)? I don't think so and hope not.

Humans are neither ants nor bees and we don't have the same instinctive reactions. Leaders are necessary and as long as their pheromone trails lead to what we desire we follow them. Also like ants, when they don't we stop. Unlike ants and the folks in North Korea, we get to decide what we want and whether the paths directed by our leaders are likely to be fruitful. Sometimes we screw up in deciding what we want and how to achieve it, and we ultimately pay the price as we -- and the queen bees -- must. When members of the political class see the "unwashed masses" as bees ready to swarm, they sometimes are not too far off and sometimes they are. Even bees and ants respond to new external stimuli and their behavior can't always be predicted accurately; the results can be chaotic and chaos theory is very much implicated in swarm theory; maybe with an explanation by Uncle Jay it would all make more sense.

Does swarm theory have any significant relationship, at least by analogy, to political behavior or would a suggestion that it may be faddish? I don't know, but the concept is worth keeping in mind as we decided how to cast our votes next month and reflect upon the outcome.

Drunkblogging Modest Proposals

2010-10-06T13:13:00.000-07:00

We demand much more ~~Booze~~ Change because we need it.

The word is so screwed up that even our highly intelligent and resourceful President Obama can't deal with its myriad complexities. Things need to be simplified and a drunk, a lunatic or a leftist is needed. I possibly qualify on the first two counts. ~~Farcically~~ Facially radical but really simple change we can believe in offers the only possible solutions and I have them.

In an earlier article, I suggested that some of the country's many problems could be ameliorated by simply moving the Seat of Government (and all of its bursting appendixes) to Haiti. This will not only save lots of ~~taxpayer~~ government money, it will also improve both Washington and Haiti. However, we must not ignore other major problems. Heck, the slaves in the United States still need to be freed. What are we waiting for? This article offers a few additional modest proposals for true change.

The United Nations must abandon decadent New York City and relocate to some less expensive place more in keeping with its lofty humanitarian principles. As a side benefit, the UN Headquarters will become a really cool mega-mosque-community center where people of every race, ethnicity, religion, nationality and ideology can come together in peace and harmony -- as they now do so effectively at the UN. Even though not as close to Ground Zero as some desire, it will be a compromise welcomed by all.

Somalia comes immediately to mind as a new home for the UN but there are many deserving alternatives. Saudi Arabia, Yemen, Iran and the Democratic People's Republic of Korea (DPRK) are among them. The advantages would be numerous. Since Luputa exists only in fiction, it could well be even better.

For the rest of the article, go to Pajamas Media, where it was published on October 5th.

Venezuela’s Election Lunacy: Results and Consequences

2010-09-30T11:14:00.000-07:00

The opposition MUD alliance (seriously) won 52 percent of the votes, but got 37 percent of the seats. Hmm.

Christopher Hitchens observed a few weeks ago that el Presidente Chávez, whom he had visited in 2008 along with Chávez' close friend Sean Penn and whose antics he still follows, is barking mad. As Hitchens put it, [START BLOCKQUOTE]

Chávez . . . is very close to the climactic moment when he will announce that he is a poached egg and that he requires a very large piece of buttered toast so that he can lie down and take a soothing nap. [END BLOCKQUOTE]

Unfortunately, a nap is not what Chávez has in mind. [START BLOCKQUOTE]

In a televised broadcast from the Miraflores presidential palace, Chavez spoke out against opposition leaders: "They will never enter here again, the immoral ones, the mobsters, the stateless ones, the traitors. I am going to say this until the last day of my life."[END BLOCKQUOTE]

In Venezuela, where Chávez is by no means alone in his dementia and lunacy does not augur defeat, insanity is more useful as an excuse for whatever happens than as valid predictor of the future. Even trying to figure out what happened can induce insanity.

Read (much) more at Pajamas Media

Muslim Relations in Pánama

2010-09-12T14:28:00.000-07:00

Pánama has many Muslims, roughly 0.3 percent of the population or 9,600. Panama has roughly one percent of the population of the United States, so that's the equivalent of 960,000 in the United States. Here, Muslims have largely been assimilated into Panamanian society. There are some reasons for this.

1. The Arabic influence on the Spanish language has been substantial.

Modern day Spanish language (also called castellano in Spanish) first appeared in the small Christian Kingdom of Castile in Northern Spain during this period of Islamic domination over most of the Iberian Peninsula. As a result, the language was influenced by Andalusi Arabic practically from its inception. Arabic imprint on the language increased as the Kingdom of Castile expanded into Muslim lands where the Castilian language had never been spoken and as arabized Christians (Mozarabs) from Al Andalus emigrated northwards during times of sectarian violence, and particularly as a result of the Almoravid conquest in the 12th century. Although the degree to which Arabic percolated the peninsula is the subject of academic debate, it is generally agreed that Arabic was used among the local elites and local Arabic-influenced Romance dialects, known collectively as Mozarabic were more prevalent as the vernacular language. Only the kingdom of Granada, under the Nasrid dynasty was totally arabized after many centuries of Muslim rule.

2. One of the world's largest free zones is in Colon, Pánama, although rather separate and distinct from the rest of the city. Most of the merchants are Jewish or Muslim; in many cases, they are business partners. The Jews tend to live in Pánama City, about an hour's drive from Colon. The Muslims tend to live in Colon.

3. There are about ten mosques in Pánama, including at least one in David, the third largest city in the country, on the road between Boquete (now a largely upscale Gringo expat community) and David. Several years ago, there were unsubstantiated rumors that Osama ben Ladden had been sighted, but they rank right up there with Elvis sightings.

4. My wife and I rely substantially on a computer store in David, owned I think, by a (shudder) Muslim. He is both a gentleman and a damn good salesman, though not in the least pushy. When we go to his store, he offers refreshments, usually a cup of herbal tea. When we buy something of any significance, he always gives us a small gift – a cheap headset or a couple of blank DVD discs. The welcome we get encourages us to return.

Why are the relationships so good here? I don't know, but suspect that it has something to do with integration into the local culture. As far as I know, there was little news about the recent Ground Zero – threatened and actual Koran burning episodes in the United States or the resultant protests – possibly because they were of little interest. People here have other things about which to become upset, and beyond that most tend to their own affairs.

Pánama has too little world significance to become a focal point of Islamists, and that is a good thing for those of us who live here, Jews, Muslims, Christians and those of us who have no religion. Not once has anyone bothered us about my lack of religion. There is substantial tolerance for the views of others, and that's a damn good thing.

Am I a tad puzzled? Am I perhaps missing something? You betcha. But that at least seems to be the way it is here.

Flagellation for Fun and Profit.

2010-09-11T08:01:00.000-07:00

Why can't we all just be nice and love one another!

During his highly memorable but probably best forgotten Cairo speech, President Obama apologized to the world in general and Islam in particular for the grievous sins of the United States, all of which had occurred before He ascended to the presidency. Instead of intoning "mea culpa, mea culpa mea maxima culpa" he said "they have sinned, they have sinned, they have sinned most grievously." Most of the major media outlets hung on every utterance and disparaged as prejudiced, racist, bigoted Neanderthals those who disagreed. More recently, He came out four-square in favor of construction of a mosque-recreation center close to Ground Zero and then back tracked a smidgen. Even more recently, He pitted all of the power of His bully pulpit, possibly including the FBI, against the allegedly crazy and bigoted promise of a previously unknown small town fundamentalist preacher to fifty congregants to burn some Korans on September 11^th.

[T]he White House has been treating this lunatic as a greater threat to national security than Osama bin Laden.

The president himself went on TV to plead with him not to burn the books. And Gen. David Petraeus -- in a decidedly ill-advised move -- publicly warned that if Jones followed through, US troops would be put at risk.

Is the Reverend Mr. Jones a Lunatic? I don't know; it's difficult to tell these days. Is Imam Feisal Abdul Rauf, who promotes the mosque, etc. as a gesture of religious tolerance and understanding a lunatic? I don't know. Do they both foam at the mouth when they go "Wuff, Wuff" (sort of rhymes with Rauf, Rauf)? Victor Davis Hanson has it right, as usual:

We are reaching the point where the damage done to America’s image by 50 book-burners is outweighed by the damage done by hypersensitivity on the part of the United States government, which hopes to assuage the hurt feelings of those abroad who equate that tiny number with our culture at large — often in an abjectly hypocritical fashion. We know where this leads — to endless efforts to micromanage all elements of American life to protect the sensitivities of those who, by act and deed, are far more intolerant of different religions and cultures.

In any event, good marketing fellas, with special honors to the Reverend Mr. Jones.

With only a threat to burn a Koran, he became a household name across the world and never had to strike a match. He saw an effigy of himself, wrapped in an American flag, burned by rioters in Afghanistan, shouting "death to the Christians." Every newspaper, every network scrambled for face time with him.

In any event, they went hog-wild. What's the big deal with self-flagellation, or in the case of President Obama, flagellation of others? Has His rejection of American Exceptionalism done so little harm to the country that it is now necessary to eliminate or turn it upside-down?

Of course Muslims in the United States have the same freedoms of religion and of speech as do others in the United States, and much more such freedoms than do non-Muslims (and apparently Muslims) in Islamic countries. That has not been seriously questioned. Evidently however, those who think the so called Ground Zero Mosque should be built have more freedom of speech than do those who think otherwise, and those who promise to burn some Korans are viewed as demanding to exercise more freedom of speech than those who burn the United States flag to protest some real or imagined grievance. America is becoming truly exceptional, but in ways which are not encouraging. By cowering in the face of violent outrage by Islamists (I generally use this term when referring to radical Muslims), on the apparent theory that if we don't cower they will become even more antagonistic than has become customary, she is becoming exceptionally ridiculous and weak. Does anyone in his right mind think that if The Reverend Mr. Jones and the others who have promised to light their matches all actually put them away the easily offended would become less antagonistic and more tolerant? Self delusion is a poor basis for governance.

Iran's President Ahmadinejad plays the fiddle, calls it all a Zionist plot and we dance. He may, unfortunately, be correct in his final analysis.

"The Zionists and their supporters are on the path to collapse and decline and such desperate actions will not save them, but will accelerate their fall and annihilation," the president said during a meeting between Leader of the Islamic Revolution Ayatollah Seyyed Ali Khamenei and senior Iranian officials in Tehran.

Under the Constitution, freedom of speech has traditionally meant (with unfortunately increasing exceptions) that there can be no official prior restraint by the government of offensive but non-obscene speech, no matter how offensive some might find the thoughts expressed. Promising to burn, stone or lash the Koran is not "obscene," except perhaps in the view of those who find it offensive, and merely offensive is not "obscene" under any definition with which I am familiar. President Obama, officials of his administration and the media are free to condemn such speech and to praise the proposed mosque construction close to Ground Zero but should not claim to represent the United States in doing so.

There are many in the Islamist world who demand that the United States government prohibit the burning of Korans and all other public slights to their religion. They apparently think that the government has the power to do so and must exercise it in the name of human rights. The United States government has no such power and, under the Constitution, can't. The sooner they learn this the better for us all. This is doubtless a very difficult concept to grasp, particularly for those who live privileged lives under governments of substantially unlimited power and even for those who don't have that privilege but nevertheless favor the concept; for the pastor in Florida and others to cave into demands for conformity with the will of the administration as he ultimately appears to have done is not a good teaching point. Instead, it leads to this sort of nonsense:

Following the uproar over the threatened burning of the Quran by a small Florida church, a leading international Islamic body said Thursday that the United Nations should outlaw “all forms of offense against religions.”

* * * * *

“The Florida Dove World Outreach Center Church’s plan to burn copies of the Holy Quran on September 11 … requires immediate action to outlaw all acts of defamation of religions and religious sanctities,” the Morocco-based Islamic Educational, Scientific and Cultural Organization (ISESCO) said in a communique.

“It is a blot on humanity that such discriminatory attack against Islam and Islamic holy sites is continuing in the absence of deterrent legal measures, local and international.”

ISESCO, an arm of the 56-nation Organization of the Islamic Conference (OIC), called on the U.N. “to issue an international law criminalizing all forms of offense against religions under any circumstances.”

* * * * *

ISESCO’s call was an expected opening salvo in a fresh push by the OIC to use both the Quran-burning threat and the Manhattan mosque dispute to move forward its decade-old campaign to get the U.N. to outlaw what it calls “religious defamation” worldwide.

The OIC argues that legal deterrents are necessary in the light of instances of “Islamophobia” which it says have increased significantly since 9/11 [strange, that]. OIC publications use the label “Islamophobia” to cover a range of incidents and trends, from anti-Muslim graffiti to criticism of human rights abuses in Islamic states [of which there have clearly been none] to counter-terrorism profiling [some of which might be a good idea].

Why am I reminded of Al Capp's SWINE (Students Wildly Indignant about Nearly Everything)?

Even in the highly unlikely event that this prohibition would apply to Islamist practices "offensive" to Christianity, Judaism and other non-Islamist religions, it would take far better orators than President Obama and TOTUS to get such a monster ratified and a far better lawyer than Attorney General Holder to find a way to read it as compliant with the United States Constitution, under which ratified treaties are the equivalent to statutes and must therefore be compliant with the Constitution.

Me? I am ~~burning~~ barbecuing a nice pork loin. It's yummier than a musty old Koran and don't worry, our dogs will get their fair shares.

Stupidity is Constitutional.

2010-08-18T14:10:00.001-07:00

Let's have a Do Something Stupid Day to celebrate our rights!

Reading the United States Constitution would reveal no use of the words "idiotic," "stupid" or even "obdurate" and there are no laws of which I am aware prohibiting per se all conduct which a reasonable person – such as me – would consider in any of those categories. Frying bacon in the nude even in the privacy of one's kitchen is a stupid thing to do; grease splatters and can hurt. Isn't it worth a bit of discomfort to celebrate our Constitutional rights? Eating McDonalds double whopper cheeseburgers five times a day for years would, I think, be stupid. Even First Lady Obama seems to agree so I must be right (or wrong, for the same reason). Candidly, I think eating even one just occasionally is not a great idea, but that's just me. Go eat a dozen for the Constitution, like 'em or not. It's our right!

Sometimes, we lose sight of the differences between unconstitutional, unlawful and stupid. There are lots of folks who think that building a mega mosque adjacent to Ground Zero (no reference to President Obama intended, of course) would be stupid, particularly if the objective is to promote freedom of religion and tolerance in the United States. Obdurate? That too. I don't accept for a moment the thesis that promotion of freedom of religion and tolerance (ubiquitous, of course, in Islamic countries) have anything to do with the proposed construction, but let's assume for the sake of argument that that's why it is being insisted upon.

Those who view it as stupid (and I do, along with some Muslims), and prize freedom of speech (as I also do) can object. Dr. Zuhdi Jasser, president and founder of the American Islamic Forum for Democracy, said

This is not a humble Islamic statement. A mosque such as this is actually a political structure that casts a shadow over a cemetery. [The Mosque] is going to be used around the world, especially in Islamic media. From the ashes of this destruction comes the flourishing of Islam and I think that is just the wrong message. It is not good for America or for Muslims…We are Americans who happen to be Muslims, not Muslims who happen to be Americans.

From sunup to sundown Muslims are fasting and working on putting our needs tertiary to our God and our country, not what we need. They are abandoning these principles and saying, ‘Well, this is what we need and we are victims if you don’t let us do this. And we can do it, so we are going to.’ I think that is un-Islamic.

Those who think freedom of religion and tolerance should be promoted by building the mosque there doubtless support opposition to it on an analogous basis. Right? Sure they do. I guess.

An analogy can be made to burning the United States Flag to protest United States policies viewed by the burners as perverse. We have learned from the Supreme Court that doing so is a constitutional right; it's freedom of speech in action. As a young Boy Scout centuries ago, I learned that the only suitable way to dispose of a tattered and worn United States Flag ia to burn it, in a respectful manner. It would be stupid and maybe even unlawful to do that in a fireworks stand. If some idiot wants to burn a flag (for whatever reason) next to his own remote collection of fireworks, that's his problem and not mine. Would burning a United States Flag to protest the inhumane treatment of naugas when they are slaughtered for their precious hides be stupid? I think so. Would it make the people who like their Naugahyde^® covered sofas so ashamed of their dastardly ways that they would cease using them? Seems rather unlikely. It might get a bit of attention for a few "Save the Nauga" advocates and give them some self respect, but they probably have very little and need some.

In these days of world peace, prosperity, full employment and resultant boredom, we all need wholesome and meaningful recreation. Can't be bothered with a vacation in sunny Spain or Martha's Vineyard? Doing something lawful and totally stupid to promote the United States Constitution could be lots of fun. Here are some suggestions:START BLOCKQUOTE]

Have a Silly Walk Day;

Write an inane article – I just did;

Protest tornadoes and demand good weather;

Stone some manikins (your own, of course) since they would probably commit adultery if they could (Some insensitive wag wrote that in Arabia, women get stoned when they commit adultery; in the U.K., women commit adultery when they get stoned);

Comment seriously on and psychoanalyze this article – I was inspired to write it by another inane article (obviously, not here) and some of the comments associated with it.[END BLOCKQUOTE]

That's just a start; the possibilities are endless. Be creative! Do something. But, as Uncle Jay says, "only appropriate behavior."

Homosexuality, Marriage and Religion

2010-08-07T13:10:00.001-07:00

According to recent "lies, damn lies or statistics" I read somewhere, most people now wish Proposition 8 had never passed. Some of them probably think that California has more important stuff to worry about – unemployment, approaching bankruptcy and/or foreclosure, undocumented ~~democrats~~ aliens arriving by the truckload from Arizona to be fed, housed and provided medical care and the like at taxpayer expense from an eroding tax base. The gang populations of California, already substantial, may be augmented. Some folks may now view trying to keep homosexuals from marrying each other as "like, so yesterday" and had rather go play with their hula hoops, enjoy their recreational drugs and tend to the needs of their pet rocks; or whatever. It seems unlikely that Californians have suffered physical, economic or other substantial harm as a result of the homosexual marriages which have already taken place; few heterosexual marriages have likely been destroyed because of them and it seems unlikely that heterosexuals who were heretofore inclined to marry will change their minds. I think it would have been better had the federal court case never got started, because in its present posture it seems likely to end in frustration for those, like me, who think the Tenth Amendment is and should remain viable; the Proposition 8 case may leave it in an intensive care ward in some underfunded and understaffed public hospital at the mercy of ObamaCare. Battles should be chosen wisely and resources should be conserved for the most important fights; there are lots of them.

Judge Walker's August 4 decision in Perry v. Schwarzenegger has come under vigorous attack from many but not all conservatives and occasionally even stronger attack from some but hardly all on the religious right. It has been praised to the heavens by many on the left, but the reception from gay rights advocates has not been consistently favorable. For example, Michael Dorf wrote

[START BLOCKQUOTE]The prospect of a Supreme Court ruling on same-sex marriage fills members of the gay-rights advocacy community (of which I am at least a fellow traveler if not a full-fledged participant) with both hope and dread. By denying a right to same-sex marriage, the Justices could set the cause back a decade or more. And paradoxically, even by recognizing a right to same-sex marriage, the Supreme Court could harm the movement, because such a ruling could spark a backlash. [END BLOCKQUOTE]

I have a sense that the case was poorly handled by the Proposition 8 proponents; the refusal of Governor Schwarzenegger and Attorney General Brown to support Proposition 8 probably hurt the proponents' chances. If states have the authority to define marriage based on traditional values, Judge Walker could probably have received better assistance from the Proposition 8 proponents than he did.

When Judge Walker issued his August 4 decision, he imposed a temporary stay on its implementation. On August 7, the governor and attorney general asked Judge Walker to terminate the stay. The proponents of Proposition 8 asked that the stay remain in effect pending appeal. On August 12, Judge Walker ruled, keeping the stay in effect only until August 18 to give the Ninth Circuit an opportunity to rule on a stay sought there. He indicated that since the State of California had opposed its extension, the proponents of Proposition face no apparent harm from its denial and probably have no legal basis for seeking one. "Both plaintiffs and the state defendants have disavowed the harms identified by proponents." The question of a stay and other matters will be before the Ninth Circuit and whatever it says may well tip its hand as to how it will ultimately rule on the merits of the appeal. Be that as it may, there are some perhaps larger issues to consider.

In writing my August 5 article on Judge Walker's decision, I wore my attorney hat and tried to present legal analysis without advocacy. For this article, I have removed my hat.

I strongly favor states' rights and think that Article 10 of the Constitution has long been improperly curtailed. Nevertheless, states also seem occasionally to stick their noses where they do not belong and multiple county and municipal governments occasionally do the same thing. The Federal Government, while bigger and often more overbearing, has no monopoly.

Religion is generally a force for good in the United States. That I don't have any doesn't bother me and should not be a matter of concern for others either; as far as I am aware, it isn't. Those who, for religious or other reasons, want to pray, to argue that life begins at the moment of conception or that homosexual marriage is sinful have every right to do so. When advocating and voting on issues, they have every right to do so in accordance with their beliefs. My views on the rationality or irrationality of their beliefs don't matter and shouldn't; neither should the views of a judge. Freedom of religion is also good, provided that its exercise does not impinge upon my rights or those of others; I would not appreciate someone holding a prayer vigil or, for that matter, displaying an "Elvis Lives!" sign while trespassing on my front lawn or throwing holy water or anything else at me as I walk down a public sidewalk; I have experienced nothing of the sort. Freedom from religion is also good, provided that it does not impinge unduly upon the rights of those who desire to be religious. Those who don't want to celebrate Christmas need not do so but have no business preventing others. I don't object to Christmas trees, reasonably non-denominational voluntary prayer or Christmas carols in public schools, provided that nobody who does not desire to participate is pressured to do so on pain of penalty or even expressions of disapproval by teachers and other school officials. If other students want to express verbal disapproval of non-participating students, tough; it's a part of life and they had better become accustomed to that sort of thing. Kids and even alleged adults hatefully express public disapproval for all sorts of lawful things which do not harm them or others – wearing unfashionable shoes, outdated hairstyles and the like. There was lots of disgusting campaign commentary about Governor Palin. The "easily offended" on all sides of various issues are themselves generally offensive. Remember Al Cap's SWINE – Students Wildly Indignant about Nearly Everything? They have not disappeared; some of them have just aged ungracefully.

This leads back to the issue of homosexual marriage. Rather, it leads to the larger issue of government approved marriage in general. Back in the "good old days" (think old fashioned dentistry) which some other old farts may recall, when most husbands worked to provide for their families and most wives stayed at home to bake cookies, clean house and care for the kids, there were arguably valid reasons for limited government oversight of marriage. Stay-at-home wives with no independent means of support and neither job opportunities nor experience needed security; divorce proceedings or their prospect provided at least some. That beats welfare, one of the few alternatives. The situation has changed, for better or worse.

The only current basis for governmental intervention in marriage which seems to make sense is that governments provide many benefits to, and impose a few penalties on, those who are married in ways of which governments approve. The benefits, however marriage may be officially defined, may well promote marriage. However, they also promote divorce since only officially married people can obtain divorces and many of them do.

When governments have financial interests in marriage, they are likely to act according to their views of marriage or at least whatever views the politicians currently in power deem politically expedient. Governor Schwarzenegger was for Proposition 8 before he was against it. And there lies a problem. A similar problem exists in federal funding for education. To the extent that the federal government holds the purse strings, it controls what is taught and how it is taught. The Tenth Amendment is not significantly implicated in this sort of federal intervention because the states accept the money and the accompanying conditions voluntarily. As with most drugs, addiction follows.

Reverting to Judge Walker's California Proposition 8 decision, it revolved about two essential but dubious findings. First, Proposition 8 was claimed to have passed because of animosity toward homosexuals. I suspect the proponents of Proposition 8 did not do a very good job of challenging the "facts" behind this finding. The notion itself is rather strange; sociologists can from opinions on all sorts of matters and if they have appropriate credentials their opinions are treated as "expert" opinions, similar to testimony as to facts, and are entitled to some weight. Only "expert opinions" count. I may have a strong opinion about the superior intelligence of Akita pups compared to Border Collie pups. My opinion would not be admissible in court, even if highly relevant to a contested issue of relative pup intelligence, because I am not an expert in such matters. Expert opinions aside, however, actually knowing what motivates people to vote one way or another is impossible, just as it is impossible to know whether a particular person, for example a judge, is actuated by chronic constipation or particular empathy toward some group of people. Even if specific Californians testified under oath that they voted for Proposition 8 because of hatred for homosexuals, there is no apparent reason to impute their hatred to others. Even if there were, so what? Some people probably voted for Senator Obama because they hated President Bush passionately and transferred their hatred to the Republican presidential nominee. Lots of hate for Governor Palin was also evident. So? Even a conclusive showing that sufficient numbers voted for President Obama on the basis of hatred to cause his election would not be a valid basis for invalidating it. Generally, the personal motivations of voters have no bearing on the legitimacy of elections and people are free to vote as they wish. Handsome and pretty candidates (other than certain governors of Alaska) probably have an advantage over hideous candidates and, like it or not, race matters, sometimes more than substantive issues.

Second, Judge Walker found that homosexuals who are denied the "right" to marry each other are thereby stigmatized and their committed relationships lack societal respect. That may be true; however, legal recognition of homosexual marriage seems unlikely to make a difference.

If people want to consider themselves and to be considered by others "married," they have some pretty good alternative options. Years ago, my wife (a woman) and I (a man) were married twice, to each other, over a period of several months. Our first marriage was conducted with the benefit of a marriage license in Annapolis, Maryland by a delightful Anglican priest. He expressed no problem with our requested modifications to the Book of Common Prayer marriage ceremony to delete religious references. Lots of our friends, some religious and some not, attended and the ceremony was followed by a big party. My wife's family and many of her old friends live in California, so we had an unofficial second "marriage" ceremony there later – using the same modified ceremony but with no California marriage license because we were already married. A family friend who was a Protestant chaplain at Stamford University presided. It was also a great ceremony, also followed by a big party.

It seems quite likely that many clergymen and others would be willing to conduct unofficial religious, quasi-religious or non-religious ceremonies for homosexual couples, without the benefit of a marriage license, and perhaps even sneak in such words as "I now pronounce you married." ("I now pronounce you man and wife" could be a tad awkward.) I can think of no reason why homosexual couples who want them can't have such celebrations and consider themselves "married." Nor can I think of any reason why friends and colleagues who would refuse to honor their unofficial mutual commitment would honor a state approved homosexual marriage ceremony instead. Some churches would likely consider the couple to be "living in sin" in either event and refuse them various sacraments; that's an important part of religious freedom.

An unofficial ceremony would currently have no legal effect, but so what? The various legal incidents of marriage (aside from government benefits and penalties and the ability to obtain a divorce) could be taken care of by contracts and wills; any interactions between the happy couple and official busy-bodies could be dealt with, as California has done, by conferring the same rights on those in civil unions as upon those who are married. The federal tax consequences of official marriage may (or may not) be heading toward the rocks, since a federal district judge in Gill v. OPM recently found substantial constitutional problems with federal reliance on the Defense of Marriage Act which defines marriage as between one man and one woman. [START BLOCKQUOTE.

[T]his court is convinced that "there exists no fairly conceivable set of facts that could ground a rational relationship" between DOMA and a legitimate government objective. DOMA, therefore, violates core constitutional principles of equal protection.[END BLOCKQUOTE]

The same argument could be made about long term committed but unofficial homosexual and heterosexual relationships. Their recognition for tax and other governmental purposes might well create administrative chaos, but there is so much of that already that the addition would hardly be noticed. These questions may be answered, by the Congress if not by the Supreme Court, one of these fine days. Otherwise, our unelected and unaccountable "civil servants" will probably have to try to answer them -- for tax, social security, veterans' benefits ad infinitum.

The government is a bloated, intrusive and obnoxious busy-body. Even sweet, considerate and kind nannies, like Mary Poppins, aren't so intrusive. Absent very compelling reasons, governments should leave people alone to conduct their own affairs (interpret "affairs" as you will). Are these Utopian fantasies? Probably, but at least I can have and express them.

Reminiscences of a Senescent Former JAG officer

2010-07-10T15:39:00.001-07:00

When I went away to college in 1959, I joined the Army ROTC because I was concerned about the probability of being drafted and preferred to serve eventually as an officer rather than as an enlisted man. I had no particular love of the army, even though having lived for years in the Washington, D.C. suburbs had had many military officers as neighbors.

I liked and respected the officer and enlisted ROTC cadre, but hated most of the rest: close order drill, marching around and that sort of soldier stuff once a week because I could see no point to it. I undestand it now, but that's for another article preferably written by someone who understands initial military training far better than I do.

Upon graduation in 1963, I was commissioned a second lieutenant in the Army Ordnance Corps but got a postponement of call to active duty to attend law school. Three months after graduation from law school in 1966, I was called to active duty as a first lieutenant in the JAG corps (credited with three years of service for pay purposes, which was nice); since the Army was going to start bringing in new JAG officers as captains, those of us already in were promoted to captain so that we would have earlier dates of rank than the newbies.

JAG school was separated from my old law school in Charlottesville, Virginia only by a parking lot, so being there was sort of like being at home. Following JAG school, I was assigned to the Eighth U.S. Army/United Nations Command headquarters in Seoul, Korea. After a few months, I was able to prevail upon the staff judge advocate, Colonel M, reluctantly to transfer me down the hall in the same building to the Eighth Army Support Command, which exercised general court martial jurisdiction over all rear echelon troops; I wanted experience in the criminal justice area and wasn't going to get it where I was. He eventually obliged, and I was first assigned to prosecute general courts martial and, once I seemed competent, to defend. That was army policy and a very good one. I am unaware of any comparable policy in the civilian criminal system.

After several months, the Support Command deputy staff judge advocate (a major's slot, held by a senior captain) position became vacant because the deputy SJA had been caught in a compromising situation with a young Korean enlisted man in an hotel room and was sent back to the United States within a very few days. When I was told by some of my fellow officers that I was the next senior captain and very likely to succeed him, I was not happy. We all considered the SJA to be a bit of a jerk, referred to by most of us out of his hearing as a pig f****er; he and I had had no problems, and that day I became his deputy and the chief of military justice. My office was moved to another adjoining his, and the door between our offices was kept open at all times. I immediately ceased to refer to him as a pig f****er or otherwise disrespectfully even in private because that could have destabilized our short chain of command. Even as a very junior officer, I knew that much.

We got along very well even on one occasion when a captain I had earlier assigned to prosecute or defend (I don't remember which) a general court martial emerged shortly before the start of the trial from LTC M's office nearly in tears (literally), having been chewed out mercilessly for something. I told LTC M that what he had done was wrong -- sending someone still close to tears to prosecute or defend a general court martial was simply stupid -- explained why, and asked that he consult me before doing anything similar to any of the officers for whom I had responsibility. He said that had not been aware of the court martial, apologized and promised to consult me in the future. That greatly increased my respect for him and probably for the army in general.

With no memorable exception, every army officer with whom I came in official contact was a good and honorable gentleman. A full colonel, the staff judge advocate for whom I first worked during my initial assignment at Eighth Army, was one of the best. Soon after I arrived in Korea, I became aware that a pittance (maybe $30 per month) was being deducted from my pay (about $800 per month) for extra rations and service at the officers' field ration mess. We were not required to eat there, and there were several officers' clubs on post where the food was better and at which I preferred to eat. I discovered that the deductions were required by an Eighth Army regulation and, after a bit of research, decided that it was unlawfully in violation of Army regulations, which permitted such deductions only in forward areas, such as the division areas well to the north of Seoul. I presented my case to Col. F, the SJA, who had only months previously given his blessing to the Eighth Army regulation. He agreed that I was right and that his advice had been wrong. He stood up for me, and resisted a suggestion that I be transferred to one of the divisions; the regulation was changed. For a colonel, the legal advisor to the commanding general, to support a lowly captain in this situation required tremendous integrity and the respect I already had for him increased.

Eventually, I rotated to a new assignment at the Government Appellate Division near Washington, D.C. and worked for another great officer, LTC R. Along with a dozen or so other JAG officers, I wrote briefs supporting the government in general courts martial appeals and argued many cases before the Board of Review (a panel of senior Army JAG officers) and also before the civilian Court of Military Appeals. This work gave me far better appellate experience than I would have had as a young attorney in civilian practice. I enjoyed it a lot.

I was directed to draft a brief seeking Supreme Court reconsideration of its then new O'Callahan decision, voiding court martial jurisdiction over military personnel in the United States for civilian type offense committed off post and while off duty. It was, in my opinion, a poorly reasoned decision (Justices Harlan, Stewart and White had dissented from the majority opinion) and, aside from its other infirmities, one which would likely subject soldiers at some bases in the United States to criminal justice systems far inferior to that of the military; this was in in 1969 and Jim Crow was not then a only device used to protect crops from crows. The decision was ultimately made the Judge Advocate General not to seek reconsideration, which I considered wrong headed but it obviously was not my decision to make.

The UCMJ was modified in 1968 to provide for special courts martial resembling to the extent possible general courts martial. When the new system began to go into effect I asked LTC R. whether he would consider an application for the new judges' course at the JAG school and subsequent assignment as a special court martial military judge. We were riding back from the Pentagon in a bus, and the conversation was quite informal. He agreed, and it happened. After completion of the rather thorough course, I was assigned as the full time special martial military judge for Japan and Korea. Shortly thereafter, LTC R (soon thereafter a full colonel, as I recall) was assigned as the SJA at I Corps, in Korea; to the extent that a captain and full colonel can be become friends, we did.

I was carried on the morning report at Department of the Army in Washington and for all practical purposes had no boss. There were also some part time special court martial military judges, who had full time assignments in other capacities.

During my one year tour of duty, I presided over more than three hundred special courts martial, all but one in Korea. Since it was necessary for me to travel throughout the entire country, I was given the transportation priority of a full colonel and whenever it was necessary, frequently, to travel a significant distance, went by chopper or fixed wing aircraft.

With the then recent modifications to the UCMJ, an accused had a choice of trial by judge alone or by a presiding judge and a panel of officers (or, in the case of an enlisted man if he requested, including some enlisted men). After the first few trials with panels, most of my cases were tried by judge alone, which meant that I had to decide on guilt or innocence and, if the former, to impose sentence. I thought it was a good and fair system; I was and remain very proud of it and to have been a part of it.

Most of the time, defense counsel were JAG officers. On rare occasions a non-JAG attorney served as defense counsel at the request of the accused. Most were competent but a very few were not. Once, I presided over a case involving a guilty plea by an enlisted man, probably a corporal (E-4) or specialist (also E-4). He had been charged with disobedience of an order from a superior non-commissioned officer to get out of bed and stand formation. As required, I questioned him to determine the provenance of his plea of guilty. He stated that he had been ordered by an Army physician to remain in bed due to a broken or fractured bone in his leg. I rejected the guilty plea and we proceeded to trial. Based on his testimony and that of the physician, I found him not guilty; it was not a question of reasonable doubt as to his guilt, he was patently innocent. I also told defense counsel what I though of his competence. That was a very rare situation, and I had no other resembling it.

A few months before my obligatory four year term of active duty ended, I found myself on the list for promotion to major. Promotions had slowed down a bit by then, but had I sought to remain on active duty and perhaps asked for a regular army commission (I was a reserve officer) I would likely have been promoted within six months or so.

I didn't and sometimes wish that I had. Looking back, a far easier process than looking forward, service in the military was probably the most professionally rewarding part of my legal career and I developed a higher regard for the military justice system than for the civilian legal system in general; it persists. Had I remained in the army, my chances of becoming a full colonel would have been pretty good; I would never have become the Judge Advocate General, then a Major General's slot but now a Lieutenant General's slot, but a brigadier general's slot would at least have been possible.

It might have turned out badly or well and I shall never know. However, I wish that more young lawyers would consider military service as a career, for at least long enough to make an informed decision on whether it suits them. Many who reject the notion out of hand without exploring it should think further; I wish they would.

Oil is not the only mess in the Gulf of Mexico

2010-06-29T23:25:00.000-07:00

Based on the various media accounts I've read it's a mess, reminiscent of Robert Heinlein's little ditty,

When in danger and in doubt
Run in circles, scream and shout!

The danger and the doubt are certainly present -- probably as much of the latter as of the former, and the screaming and shouting are abundant. It seems as though an analogy to elephant matings is appropriate: lots of stomping of feet and roaring, everything done at a high level, with results, maybe, in eleven months.

While the stomping and shouting are going on at all levels, high and low, numerous foreign offers of assistance are being "considered" and multiple bureaucracies are having red tape parties. Meanwhile, tropical depression - tropical storm - tropical depression - tropical storm and maybe moderate hurricane Alex with maximum forecast winds of up to eighty-five knots may or may not be getting ready to do mischief with the oil recovery measures; unlike responses to the oil "spill," Alex is forecast to become better organized before June 30^th. A hurricane watch has been issued for Baffin Bay, Texas, which means that storm force winds may hit there within the next forty-eight hours. Lesser winds of gale force accompanied by high seas may strike the oily areas. If that happens, or becomes likely, whatever oil recovery steps are now in progress will be seriously disrupted for up to two weeks. Predictions of events to come in more than a day or two are useful but far from perfect. The official track guidance, provided by the multiple computer models, recently shifted a bit to the north; it is thought to be of below average confidence.

Various proposals have been made, many of them fitting into a psychiatrist friend's classification of lunatics into three groups -- sad, mad and bad. Others appear to be rational and might even work were somebody actually in charge. According to U.S. Rep. Gene Taylor -- a Democrat from Mississippi,

It’s criminal what’s going on out there," Taylor said minutes later. "This doesn’t have to happen.”

A scientist onboard, Mike Carron with the Northern Gulf Institute, said with this scenario, there will be oil on the beaches of the mainland.

“There’s oil in the Sound and there was no skimming,” Carron said. “No coordinated effort.”

Taylor said it was a good thing he didn’t have a mic in the helicopter, because he might have said some things he didn’t want his children to hear.

“They’re paying all these boats to run around like headless chickens,” Taylor said, as reporters gathered to hear his assessment of the Sound.

His frustration is understandable. The Taiwanese owned oil tanker - skimmer A Whale, reported to be the world's largest, departed port in Norfolk Virginia on June 25 and should be in the area soon; maybe she will receive the authorization needed to help and a waiver of the Jones Act; or maybe but probably not. There have been many offers of assistance from other countries, and most of them remain "under consideration."

Oil skimmers are not "good enough" because they suck in very oily water, separate most but not all of the oil and discharge a very little of it back into the sea. Perfection is sometimes the worst enemy of the merely excellent.

Is all of this the fault of President Obama? Of course not. He didn't personally cause the BP oil rig to explode and sink, and apparent mismanagement by BP is largely to blame. It would have been in BP's best interest not to cut corners and thereby to create the mess. BP is paying a big price as are its stockholders and employees. BP may well face bankruptcy. Tough.

The highest price is being and will be paid by the folks living in the Gulf area and the environment in which they live and from which many of them will have great difficulty, perhaps for years, in earning a living. The psychological damage is likely also to be great.

To the extent that President Obama is to blame, it is for the abysmal lack of coordination coming from the executive branch of the Federal Government, of which he has now been the chief executive officer for seventeen months; we are now more than two months into the aftermath of the oil "spill." There needs to be coordination and the responsibility for it can't be delegated to various federal agencies with different agendas by a CEO who has little clue what's happening or what needs to be done about it. During World War II, Prime Minister Churchill and President Roosevelt were far more aware of what was happening. They both, and Prime Minister Churchill in particular, took a far more lively interest. It would not be reasonable to expect President Obama, with no executive experience and far less experience with oil "spills" than Prime Minister Churchill had with the realities of war, to come even close. Still, if President Obama is as intelligent as has been proclaimed he should bring his intellect into focus on this problem and direct his minions to lead, follow or at least to get out of the way. There are big problems and small problems, and a competent CEO should be capable of figuring out which is which and providing useful guidance in dealing with the big ones. The three most important qualities are focus, focus and focus and President Obama has thus far demonstrated not even one of them. That's a major part of the job he fought so effectively to get. Having got it, he should do it. If that helps him to keep it, so be it. Keeping it, however, should not be his principal focus.

Dogs, Horses, Humans and other Animals

2010-06-05T15:40:00.000-07:00

We currently have four dogs, six horses and one cat. Many of us have had animals as pets, yet I wonder whether and to what extent we know them. All are very different, among species, within their respective species and even within breeds. However, they neither lie nor conceal their emotions; perhaps they don't know how, and that's probably a good thing. There are plenty of people who do that exceptionally well. I have learned more from our animals than they have from me.

Temple Grandin, who has high-functioning autism, earned her Ph.D. degree in animal science at the University of Illinois. She is now a professor of animal science at Colorado State University. One of her books, Animals in Transition, makes, well I think, the point that animals are generally autistic and "can't see the forest for the trees;" they focus on detail and don't merge them into a general picture.

That's the big difference between animals and people, and also between autistic people and nonautistic people. Animals and autistic people don't see their ideas of things; they see the actual things themselves. We see the details that make up the world, while normal people blur all those details together into their general concept of the world.

Here is a video of a twenty minute talk on autism. Ms. Grandin, with the help of her own autism, has done quite a lot of work making slaughter houses more humane by such "simple" things as looking at details – shadows and beams of sunlight most of us don't notice – seeing them as cows do, and recommending fixes. In 2004, she won PETA's "Proggy" award, in the "visionary" category. Her

improvements to animal-handling systems found in slaughterhouses have decreased the amount of fear and pain that animals experience in their final hours, and she is widely considered the world's leading expert on the welfare of cattle and pigs.

Ms. Grandin's Animals in Transition is well worth reading, and I won't even try to summarize it here; rather, I'll hit only what I consider the high points. She discusses research tending to show that many animals have their own language systems; prairie dogs, for example, have been found to communicate using nouns, verbs and adjectives. A researcher found evidence that the prairie dogs are not born knowing the various calls but instead learn them from other members of their colonies; the different colonies have different dialects.

Some animals resemble "idiot savants," now more often referred to as autistic savants, who have specialties; they are geniuses in some things – card counting, spouting off lists of prime numbers, being able to tell the day on which one was born when told the date – but don't measure up in others. The things which some dogs, autistic savants in a way, can uniquely do are very helpful to humans. There are seeing eye dogs and there are even seizure alert dogs; the latter have been trained to recognize seizures and to help when they happen.

The dog might be trained to lie on top of the person so he doesn't hurt himself, or bring the person his medicine or the telephone. These are all standard helpful behaviors any dog can be trained to perform.

Some few of them however, perhaps ten percent, have learned on their own to predict seizures. How they do it is unknown, and it seems unlikely that any human can detect signs of a seizure half an hour or so in the future visually, by sounds or smells. Yet, some dogs have learned how to do it and to warn their masters of what is coming.

Ms. Grandin makes a good case for the thesis that some animals use musical language, rejecting the automatic "no way" some researchers have come up with.

It's time to start thinking about animals as capable and communicative beings. It's also time to stop making assumptions. Animal researchers take a lot for granted : "animals don't have language," "animals don't have psychological self-awareness" – you find blanket assertions like this sprinkled through the research literature. But the truth is, we don't know what animals can't do any better than than we know what they can do. It's hard to prove a negative, and proving negatives shouldn't be the focus.

Ms. Grandin also notes some research studies indicating that humans and wolves may have evolved together, developing symbiotic relationships.

Maybe the most amazing new finding is that wolves didn't just teach us a lot of useful new behaviors. Wolves probably also changed the structure of our brains. Fossil records show that that whenever a species becomes domesticated its brain gets smaller. . . . This probably happened because once humans started to take care of these animals, they no longer needed various brain functions in order to survive. I don't know what functions they lost, but I do know all domestic animals have reduced fear and anxiety compared to wild animals.

Now archaeologists have discovered that 10,000 years ago, just at the point when humans began to give their dogs formal burials, the human brain began to shrink, too. It shrank by ten percent, just like the dog's brain. And what's interesting is what part of the human brain shrank. In all of the domestic animals, the forebrain which holds the frontal lobes, and the corpus callosum, which is the connecting tissue between the two sides of the brain, shrank. But in humans it was the midbrain, which handles emotions and sensory data, and the olefactory bulbs, which handle smell, that got smaller while the corpus callosum and the forebrain stayed pretty much the same. Dog brains and human brains specialized: humans took over the planning and organizing tasks, and dogs took over the sensory tasks. Dogs and people coevolved and became even better partners, allies, and friends.

Is this all abject nonsense based on cooked data and other fantasy? I don't know, but I do know that it fits well with my own perceptions of horses and dogs.

Our dogs: Sunshine, an Akita, is the half sister of an Akita bitch whom my wife and I loved dearly, Shadow, so named because she tried to follow us everywhere. Shadow had a mind of her own and was the most intelligent dog I have ever known. She lived up to the Akita reputation.

Their devotion is unquestionable when the bonding is strong; their intelligence is remarkable, and each of you with an Akita living in your home know they have a marvelous sense of humor and fun. They are sensitive and intuitive to their families, seeming to read one's mind.

The quote provided above is from a heart-rending story about a young Akita named Kuma, whose master had died; he very much wanted to join him and finally managed to do so. The Akita beed originate in the Akita Prefecture in the mountains of northern Japan. The link provides a short history of the Akita breed, including Hachi-Ko, one of the most revered Akitas of all time.

He was born in 1923 and was owned by Professor Eizaburo Ueno of Tokyo. Professor Ueno lived near the Shibuya Train Station in a suburb of the city and commuted to work every day on the train. Hachi-Ko accompanied his master to and from the station each day.

On May 25, 1925, when the dog was 18 months old, he waited for his master's arrival on the four o'clock train. But he waited in vain; Professor Ueno had suffered a fatal stroke at work. Hachi-Ko continued to wait for his master's return. He traveled to and from the station each day for the next nine years. He allowed the professor's relatives to care for him, but he never gave up the vigil at the station for his master. His vigil became world renowned, and shortly after his death, a bronze statue was erected at the train station in his honor. Then, in 1931, The Akita was officially declared a Japanese Natural Monument.

During the Second World War, most Akitas died; there was insufficient food, and many were slaughtered for their pelts, much prized for officers' great coats. There were only a dozen or so left at the end of the war. Two of them belonged to Morie Sawataishi, who was instrumental in reviving the breed.

Nearly four years ago, Shadow managed to sneak out of our house one night, went down to a nearby creek, and was bitten on a hind leg by a fer de lance, a very aggressive and venomous pit viper; they are nocturnal hunters. Shadow came back in the morning, limping on three legs but otherwise joyful to be back with us. She deteriorated and a veterinary friend came to see what she could do, spending the night with us. Shadow died at 2:00 a.m. on December 5, 2006.

Shadow had what may have been an instinctive tendency, but I think was a unique one, to teach other animals how to play; they seemed to understand exactly what she was doing. She and some of our horses took turns chasing each other around; it was all good fun and they enjoyed it and each other. Here is a photo of Sugar, one of the foals, lying peacefully on the ground as Shadow seems to whisper in her ear. Sunshine shares many of Shadow's traits, including her devotion and sense of fun.

When another bitch, Honey, about whom more later, had pups, Shadow ignored them until they were several weeks old. Then, she tried to teach them some things. I remember looking out the window and seeing Shadow lying on the lawn, with all six young pups lined up attentively in front of her. Shadow was clearly the teacher, and she appeared to be emphasizing her points by gesticulating with her paws.

Whenever a potential conflict seemed about to arise between dogs or between dogs and horses, Shadow sensed it and would intervene – not dangerously but simply by getting between them and preventing any conflict from developing. She was the alpha, and there was no mistaking it. She knew it, other dogs knew it, and so did the horses.

When Honey adopted us, she was in pitiful shape; she appeared on our back porch, malnourished, weak and fearful of humans; it was obvious that she had been mistreated. Reluctantly, because we did not want another dog then, we put out some food for her. She kept coming back. When we finally allowed her into the house, Shadow and our "boat cat," Pumpkin, who had adopted us when we were docked at a marina in Venezuela, ganged up on her and tried to chase her away – once. Honey wouldn't leave and they made peace.

Ruff, one of Honey's sons, chose his own name. When he was only a few weeks old, I asked him what his name should be. He replied, "Ruff," and so be it. He is very sweet, gentle and not very bright.

Princess is part Akita and part "finca dog." On the morning when Shadow died, my wife and I went to cry on the shoulder of the woman who had bred her. We cried together, and she gave Princess, a then eight week old pup, to us. Sunshine came to live with us a few months later when she was about eight weeks old. Like Shadow, Princess has a mind of her own and sometimes behaves in ways I wish she wouldn't. She has lived up to her name, regal bearing and all. She doesn't have quite the sense of humor which Shadow had and Sunshine has, but her devotion is indisputable.

There is a clear chain of command. Sunshine is the alpha prima, Princess is second, Ruff is a distant third and Honey is last; however, at feeding time, Honey often mounts her son Ruff from the rear to remind him that she is his mama and to stay away from her food; he does. They undoubtedly recognize their familial relationship; the mother – son relationship is remarkable. Other positions are occasionally challenged. Not long ago, Sunshine developed a dermatological condition and it was necessary to take her to the vet. He had to anesthetize her to shave part of her fur and deal with the problem, which he did successfully. When we drove her back to our finca, she was still a bit wobbly and Ruff sensed it; he tried to challenge her, with no success. Despite her temporarily debilitated condition, she quickly put him in his place; there was no fight.

On rare occasion it has been necessary to break up dog fights, particularly when the chain of command had been challenged, often but not always in the context of food. Doing so can be dangerous. Several days ago, Sunshine managed to grab from the kitchen counter a container of chicken liver I had cooked to mix with the dogs' food. Sunshine wanted it, and that was that. Akitas are notorious for their possessiveness when food is involved. Generally, I know better than to leave that sort of thing in reach; I goofed. None of the other dogs got involved, so the potentially fatal dog fight I had feared didn't happen; they are probably smarter as to such things than I am. When I tried to get Sunshine away from the yummy liver, I couldn't. All else having failed, I kicked her, hard, and she still wouldn't relinquish the food. I finally grabbed her by the neck and she bit me on the left hand and wrist, missing an artery in my wrist by less than an inch. Within minutes, the dispute was over and Sunshine was banished for a hour from the house while my wife attended to my wound and I took a nap. It is necessary to disabuse any dog of any incipient notion that he is the alpha vis a vis his master, but I went about it the wrong way. I behaved stupidly and now know better how to deal with such a situation. Here is the best advice I have found. Next time, I hope I can do better. Ms. Grandin notes,

Dog owners must establish themselves as he alpha, period. This is the one rule you must not ignore. A dog who thinks he's the alpha in the house is dangerous, because dogs will fight any lower-ranked pack mate who challenges them. If the family dog becomes the alpha he's going to be especially dangerous around important resources like food and his resting place.

When Sunshine was allowed back in, she was very submissive --head down, ears back -- and seemed to beg forgiveness. She had behaved as her instincts had dictated, and we made up immediately. When an alpha dog attacks one of his subordinates, it is common when the argument has been settled for the alpha to initiate the peace-making process; perhaps it is a sense of guilt and perhaps it is not. The alpha does so by approaching in a non-aggressive manner and licking the face and mouth of his victim; "kissing" on the mouth is common among dogs. That does not mean that similar flareups will not recur.

Our Horses: Unlike dogs, who are predators, horses are prey animals. Their principal defense is flight, though they will stand and fight if necessary. A mare has very little time to teach her foal sufficient survival skills, including the need for flight, and while the foal remains vulnerable will place herself between the foal and the perceived source of danger. While foals are able to walk and run within a very short time of birth, there is much to teach and little time for it.

Horses will also defend their turf from other horses and establish chains of command. When dogs put their ears back flat against their heads, they are signaling submission or lack of aggressive intent, whether it be to another dog, to a horse or to a human. When horses do the same thing, they are signaling that they may attack; it is a warning. The next signal is a baring of the teeth, soon to be followed by a bite if the warning is not heeded. The warning signals and their sequence are universally recognized, respected or not, by other horses. Perhaps strangely, our horses recognize that the first signal they use to show hostility means the opposite when displayed by our dogs.

Horses and dogs are very different animals. That horses are prey animals explains why their eyes are located on the sides of their heads (similar to chickens), giving them roughly 270^o rather than 180^o vision. They can nevertheless be surprised by an approach from their blind spot, directly to the rear, which is why doing that is a bad idea likely to result in being kicked. Some are more easily frightened than others – just as people have different personalities, they all have different "horsealities." Due to their eye placement, horses have poor three dimensional vision and can't well gauge the depth of streams when asked to cross. Until they learn to have confidence in their riders, they trust their own instincts which can be frustrating to all concerned. That is why gaining their trust is the most important part of training them.

When we bought Flash, a handsome three year old jet black Colombian Paso Fino, he had never been saddled. I spent over a month grooming him, doing other things he seemed to find pleasant, getting him accustomed to the saddle pad and then to the saddle – first, showing them to him and then putting them on his back. He was frightened and that's why it took so long. He had previously been treated poorly, and that's probably part of the reason. Genetics may well have been involved as well. When Flash came to accept the saddle, I put some weight – with my hand – in the left stirrup and repeated the process until it no longer seemed to upset him. At the same time, I did lots of dismounted ground work, teaching him to yield to pressure where I would later apply it for communication: where the reins would press on his neck and where my legs would press against his body. When I finally mounted him, there was no problem. In less than six months, he became quite an enjoyable ride but remains very "spooky" and is afraid of strangers. He would be dangerous for a novice, or one unable to deal with vigorous shying, to ride.

Several years ago, we decided to have Flash gelded; as a stallion he had been very sweet and gentle, most of the time, but had started to show some undesirable stallion characteristics. Before doing so, we wanted to breed him to one of our mares, Pimienta, a paso fino – quarter horse mix. The mating ritual was beautiful. [[photo 3]]. Eleven months later, Pimienta gave birth to Sizzler, and Shadow was one of her first friends; they met within hours of Sizzler's birth. An immediate bond of trust was apparent [photo 4]. Flash recognizes his familial relationship with Sizzler, and they seem to get along as a father and his daughter should.

Teka is a paso fino – quarter horse mix, rather a dark gray gelding when we bought him but now almost white. Teka was at first a problem. He wanted to do what he wanted to do, rather than what I wanted him to do. We eventually got over that problem, and he now seems almost to read my mind. When I want to turn left, he senses the shift of weight accompanying the turn of my head in the desired direction and responds accordingly. A barely perceptible shift of my weight to the rear tells him I want him to stop. He will go from a dead stop to a full gallop with the slightest signal, a minor shift of my weight to the front and gentle leg pressure.

What does any of this have to do with human interactions? A lot, I think. Humans are predators, not prey animals. We are also to a great extent pack or herd animals, similar in that respect to dogs and horses. Perhaps as Ms. Grandin suggests, this is an evolutionary development. Humans want to have leaders who will care for and protect us -- or in any event claim to do so. Unlike other animals, human leaders sometimes lie, and we often believe them. Instinctive or not, we have long been conditioned to these things. Over time, that may be why we developed ideologies, religions, tribes and political parties. Perhaps if we didn't have them we would find ourselves adrift. That's one of the reasons I suggested here a need for an artificial god if there is not a real one.

It strikes me as unrealistic to expect us to behave any time soon much differently than we do. If it happens, it will be a very long evolutionary process and I see no clear signs that it's happening. It's all very well to wish that we would all sing kumbaya and just get along with neither hostility nor rancor. It ain't likely to happen, not with opposing packs of dogs, opposing herds of horses, or opposing packs of humans. On the other hand, . . . .

Boredom, the Curse of the Cruising Life

2010-06-05T08:50:00.000-07:00

I wrote this back sometime in 2001 or maybe 2002, and it was intended as a spoof of my fellow cruisers. Most don't have the attitudes suggested, and it's grossly unfair. Still .............

The teak sparkles with countless coats of varnish, the stainless steel glistens, and the fuel filters are new. You just changed the oil and replaced all the rusted hose clamps. The halyards and sheets are pristine. The refrigeration works perfectly, and the ice maker puts out more ice than you can possibly use. The new frambis you brought back from the States has been installed, and as soon as you figure out the instructions (translated from Japanese into Ubangi and thence into English) and determine what it is for, you will play with it. You’ve been dragged from your favorite cruiser hangout to see a few of the more interesting sights in Puerto Mujeres Feas. You’ve read Caribbean Compass cover to cover and memorized all the interesting advertisements. Nobody in the anchorage seems to want any help, except for the guy who wants someone to go up the mast and retrieve a lost halyard. You’ve been there, done that, got the T-shirt, and have no interest in repeating the experience. There isn’t a pot luck supper till next Tuesday, and you have read all of the really good books available at the book exchange. What can you do to stave off boredom? You could, of course, pull up the anchor and leave. But you are waiting for mail and it looks as though the weather might get rocky in a few days and what’s the point?

This is a problem constantly faced by cruisers, and the U.S. Government has finally created a new mental health program designed specifically to help bored cruisers cope. Unfortunately, it will remain in the beta test mode until 2005, and is currently available only in Idaho. So, for a while at least, it is up to you. Better get busy. Here are some ideas. They all involve getting out of the “cruising rut” and mixing it up a bit with the locals. You will enjoy it, and they will benefit immeasurably from the experience as well.

Learn a Foreign Language

Many of the places frequented by cruisers have quaint and colorful foreign languages. Given even a passing acquaintance with the local language, you will be able to interact with the local foreigners and discover many interesting things about their primitive cultures. You will also be able to tell the waiter that you wanted a cold beer, not the exotic mixture of fruit juice and curdled goat milk he just served. Want to have your injectors cleaned, no problema. Just ask, in the local foreign language.

This project can occupy you for days, if not weeks. There is so much to learn! Here are six simple rules, applicable to all foreign languages prevalent in the Caribbean with the exception of pigeon English:

1. Foreigners are obsessed with sex, and everything has a sexual component. The boat is male. The house is female. The dog can be either male or female, depending (strangely) on its actual sex. The fuel filter is male. The fuel itself if female. The propane bottle is bisexual. Properly, you need to use a verb, pronoun or adjective of the corresponding sexual orientation. As a cruiser trying to learn a foreign language, this is all very difficult. You are not a professional linguist, so just ignore the problem: use the same prefixes and suffixes for everything. It is not only easier that way, it is the ultimate in political correctness, like bisex auto body shops. Some particularly dense locals may experience difficulty in understanding you, but most will have no problem. They will be so happy that you are trying to communicate in their own language that they will offer you free beer at every opportunity.

2. Avoid irregular verbs. There are more than enough regular verbs to meet all of your simple requirements.

3. There are numerous tenses: present, past, future, present perfect, present imperfect, future perfect, future imperfect, past perfect, past imperfect, future really good, past not so great, etc. Don’t bother. Just use the present tense.

4. There are formal pronouns and verbs. Properly, to ask someone you have known for less that six months for a glass of water, you should use the formal forms of the pronouns and verbs. It is all very classist and connotes a less than democratic attitude. Use the informal forms with everyone. It’s friendlier that way, and you don’t want to seem to be a snob.

5. The imperative is used when telling someone to do something. It’s sort of complicated, so just use the present tense first person and speak more loudly and with more authority.

6. Often, simply adding an “o” at the end of an English word will convert it into Spanish. It’s worth a try. One minor caution: you do not want to buy “gaso” for the dinghy. It sounds a lot like gasoy, which is diesel fuel. In any event, English should be the universal language, so it is perfectly acceptable to use English words if the foreign word is too obscure. By placing English words in an easy to understand context, you will help the foreigners to learn English. They will appreciate your efforts.

Follow these simple rules, and you can learn to speak any foreign language real good.

Discover the local culture.

Now that you speak the local language, you can easily learn everything worth knowing about the foreign culture. The first thing to do, of course, is to get off the boat and head into town. Do not go to the cruiser bar, where all of the other cruisers speak at least some English and probably don’t know any more about the indigenous people than you do. You want to experience these things first hand. That’s one of the reasons you came cruising, isn’t it?

In any town of reasonable size, just going for a walk will allow you to meet many interesting foreign people. On the pretense of trying to sell you a hat, a package of chewing gum, or even some charming native handicraft, they will approach you in pitifully broken English. Surprise them! Speak their own language. You can do that, now that you have learned how. Engage them in a discussion about their culture. Ask why so many of the local people wear funny clothes and ingest strange food. Why is the “Gringo tax” so high? Why is petty theft a national pastime? Haven’t they learned to watch football on television?

Visit a local outdoor meat, fruit or vegetable market. Ask about the many colorful fruit and vegetables which are unfamiliar to you. Why do they coat the hanging goat carcasses with insects? Is it to cure the meat, or just a misguided effort to keep the flies off the customers? Go ahead. Ask. They will appreciate your interest. You might suggest that the carcasses be sprayed with DDT; that works.

Check out a local cathedral. They are all very beautiful, and most are in a state of quaint disrepair. Some cruisers feel that without the appropriate formal clothing (long pants, a clean shirt, and even shoes), going inside might seem disrespectful. Don’t worry. The religious functionaries in such places spend most of their time inside, in cool, dark places and sadly have little opportunity to meet cruisers. Anything you would feel comfortable wearing at a local cruiser bar is just fine. A cruiser knapsack can be used to cover your head, should you feel a compelling need to conform to the local custom to that extent.

Get Involved in the Local Community. Cruisers take a lot from the foreign communities they visit, and a little “give back” can go a long way to help the local foreigners. Befriend a foreign child, and teach him how to clean your hull. It is a skill that will enrich his life, and provide him a way to earn a living when he grows up. Take some little street urchins sailing, to provide an incentive to study and work hard so they can have their own sailing yachts when they grow up. Organize a pot luck dinner and raffle to benefit the local leper colony. Collect English language soap opera magazines from other cruisers and donate them to the library, so that the foreigners can learn all about American culture. Take an interest in the politics of the foreign country, and be sure to offer your helpful suggestions on ways that things could be done so much better, like we do in the States. Just keep in mind that many foreigners are very sensitive, and avoid any suggestion of superiority or of indifference to their rich and multifaceted primitive culture.

Learning the local foreign language, discovering the local culture, and helping the foreigners you meet in strange places to understand the cruising life will go a long way toward the avoidance of boredom. You will gain a newly awakened sense of satisfaction with what you have accomplished. It should all be a major part of the cruising experience.

On Memorial Day We Might Pause to Remember General Robert E. Lee

2010-05-30T11:09:00.000-07:00

There are and have been few like him.

It occurred to me as I watched this video, sent by a friend as appropriate for Memorial day, that General Lee is well worth remembering on that day.

It is said here that

Between battles, Union and Confederate troops showed little animosity toward one another. Union soldiers often traded coffee for southern-grown tobacco. From behind earthworks, bands often played concerts, including the other side's favorite songs. On occasion, Confederate and Union bands would join in concerts when camped close together. A Union band gave a concert for the troops stationed at Fredericksburg, VA. After a playing a few favorite selections of the troops, a voice called from the Confederate positions across the river, "Now give us some of ours." The band played "Dixie," a favorite of both sides, "My Maryland" and "Bonnie Blue Flag."

That sort of thing makes such a remembrance seem even more appropriate. Last year, I wrote what follows to commemorate his death on October 12, 1870.

General Robert E. Lee died one hundred and thirty-nine years ago on October 12, 1870 (now celebrated as Columbus Day) at the age of sixty-three. We, as a nation, have done with heroes and few remember him. The anniversary of his death will likely go generally unnoticed and unremarked upon. Yet he inspired a nation, or at least a fledgling nation, the Confederate States of America. Those who reminisce about him do so because of his devotion to honor, duty, integrity, for his compassion and for his wisdom. He had those now sadly rare qualities in rare abundance; although I (obviously) never knew him, I miss the likes of him today. When I read a news story dealing with our congresscritters, our president, or His administration, I scratch my balding head and wonder what happened.

The anniversary of General Lee's death having been called to my attention by an article in the Canada Free Press, I read again Rod Cragg's Robert E. Lee, General, A commitment to Valor. I could not find a link to the book on Amazon or even on Google, but somehow I had bought a copy at a used book store in rural Panamá. This article is largely based on it. This song is about General Lee's life.

General Lee's father, "Light-Horse Harry Lee," distinguished himself as a cavalry commander in the Continental Army during the American Revolution. Graduated from the U.S. Military Academy at West Point in 1829, Robert E. Lee eventually rose to the rank of Colonel as commander of the U.S. Army's Texas Department in 1860. Although he considered slavery a "moral and political evil," he declined command of U.S. forces when Virginia seceded and resigned from the U.S. Army to take command of Virginia's military forces. He felt that it was his duty to do so; his sense of honor compelled him. "I did only what my duty demanded; I could have taken no other course without dishonor." He valued honor highly, and because of it chose to fight on behalf of his home, Virginia, rather than for the Union. On April 20, 1861, he wrote to the Secretary of War:

Sir, I have the honor to tender my resignation of my command as colonel of the First Regiment of Cavalry.

Very respectfully your obedient servant,
R.E. Lee, Colonel First Cavalry

In a letter to General Winfield Scott, Commanding, United States Army, Lee wrote on 20 April 1861,

General: Since my interview with you on the 18th instant, I have felt that I ought not longer retain my commission in the army. I therefore tender my resignation, which I request you will recommend for acceptance. It would have been presented at once but for the struggle it has caused me to separate myself from a service to which I have devoted the best years of my life, and all the ability I possessed.

During the whole of that time -- more than a quarter of a century-- I have experienced nothing but kindness from my superiors, and the most cordial friendship from my comrades. To no one, General, have I been as much indebted as to yourself, for uniform kindness and consideration, and it has always been my ardent desire to merit your approbation. I shall carry to the grave the most grateful recollections of your kind consideration, and your name and fame will always be dear to me.

Save in defence of my native state, I never desire again to draw my sword. Be pleased to accept my most earnest wishes for the continuance of your happiness and prosperity, and believe me, most truly yours,

R.E. Lee.

When a substantial number of cadets at the U.S. Military Academy left to join the Confederate Army at the outbreak of the war, a special retreat ceremony was held at West Point, and Dixie is said to have been played in their honor.

Following many military successes and some defeats, Lee was promoted to General-in-Chief of all Confederate armies in 1865. Colonel Ives, an officer who served on General Lee's staff, wrote "His name might be audacity. He will take more desperate chances, and take them quicker than any other general in this country, North or South." Another wrote, "His soldiers reverenced him and had unbounded confidence in him, for he shared all their privations."

General Lee was compelled to surrender to General Grant at Appomattox Virginia on April 9, 1865. A Northern officer who observed him at Appomattox wrote, "In manner, [Lee was] grave and dignified. . . which gave him the air of a man who kept his pride to the last." A private soldier who had served with General Lee throughout the war wrote,

As Lee came riding alone into Richmond [after his surrender], his old followers immediately recognized him and followed him to his home where, with uncovered heads, they saw him to his door. Then they silently dispersed.

Later that year, he wrote to an English correspondent who had offered a place to escape the destruction of Virginia following the war. He said, "I cannot desert my native state in the hour of her adversity. I must abide by her fortunes, and share her fate."

There are many quotations from General Lee. Here is one of my favorites: "Never do a wrong thing to make a friend or to keep one; the man who requires you to do is dearly purchased at a sacrifice."

Here is the text of General Orders No. 9, HQ, Army of Northern Virginia, Appomattox Courthouse, April 10, 1865:

After four years' arduous service, marked by unsurpassed courage and fortitude, the Army of Northern Virginia has been compelled to yield to overwhelming numbers and resources.

I need not tell the survivors of so many hard fought battles who have remained steadfast to the last, that I have consented to this result from no distrust of them, but feeling that valor and devotion could accomplish nothing that could compensate for the loss which would have attended the continuation of the contest, I have determined to avoid the useless sacrifice of those whose past services have endeared them to their countrymen. You will take with you the satisfaction that proceeds from the consciousness of duty faithfully performed, and I earnestly pray that a merciful God may extend to you His blessing and protection. With an increasing admiration of your constancy and devotion to your country, and a grateful remembrance of your kind and generous consideration of myself, I bid you an affectionate farewell.

Robert E. Lee, General

To compare General Lee with any living person of note would be an exercise in futility. He was a man perhaps unique to his time, no politician, and the world in which General Lee lived was vastly different from the world in which we now live. Any comparison would be as pointless as it would be futile. Still, General Lee's sense of honor and its necessary adjunct, integrity, stand out as remarkable, and both qualities are sadly missing from many of those who now strut on the world stage. We should perhaps spend a moment to reflect on the character of General Lee in evaluating those who now have become our leaders; I am afraid that nearly all of them would suffer from the comparison.

A Modest Proposal to Pomote Domestic Tranquility

2010-05-21T12:16:00.000-07:00

Published on Opinion Forum on May 20, 2010

Huff and Puff and down fall the houses of falsehood

Here is a truly fascinating article from Huffington Post by Jim Taylor, PhD in psychology and lecturer at the University of San Francisco, a well known bastion of unbiased intellectual thought. Mr.^* Taylor complains that the sources of information nowadays are too many, too prolific and too motivated by politics and/or ideology, and that we lack the resources, intellectual and otherwise, to distinguish "facts" from "falsehoods" and from opinion. President Obama recently said much the same. They are, of course, ~~right~~ correct.

Mr. Taylor directs his message not to those whose "facts" are incongruent with his.

The reality is that, for these extremists, when ideology comes face to face with the facts, facts are the victim. You need look no further than the birthers, truthers, death panelists, and Sarah Palin devotees to see the profound disconnect from fact for those who hold extreme ideologies.

Rather, his message is directed toward the reasonable folk who agree with him.

This post is directed toward to [sic] everyone else, those who, whether a Republican or Democrat, Christian, Jew, Muslim, or atheist, environmentalist or industrialist, socialist or capitalist, are reasonable people who believe that truth should trump ideology, who are interested in separating fact from fiction, and want to know both sides of an issue before forming thoughtful and well-supported opinions. Just look at the health-care legislation. Decent people can disagree about what is the best health care system for America, but that determination should be based on facts, such as how many people will be covered and what will the costs be, not ideology or prostituting to special interests.

Truth is good; untruths are bad; distortions, spins and misinformation are bad. Gosh Darn! We agree.

However, Mr. Taylor's prescription (in this context, perhaps I should accord him the honorific "Doctor") is as follows:

The federal government should create a Department of Information whose responsibility it is to determine the facts behind any decision that confronts our country. I know what you're thinking: This sounds like something that belongs in a totalitarian regime. But the reality is that someone has to decide on what is factual and what is not. So who can we trust to give us the most accurate information available? Big Business? Traditional media? The blogosphere? I certainly wouldn't trust any of them.

Though our government is far from perfect, it does exist, at least in theory, to serve the best interests of the American people. That's more than can be said for any other influences in our society; everyone else has a self-serving agenda. And our government already decides what is factual in many areas, whether the Office of Management and Budget deciding how much the health-care legislation will cost, the Federal Reserve describing the state of our economy, or even the decisions handed down by Supreme Court (though, interestingly, they are called opinions not facts). I know, budget estimates are often wrong, the Fed has made glaring economic-policy mistakes, and the Supreme Court has made some lousy decisions, but those mistakes may be more a reflection of the complexities of life and honest disagreement on ambiguous issues rather on than intentional misinformation.

Here's the next part of my proposal. Anytime there is a factual dispute, the Department of Information would render a decision on what the facts are. Those parties who come out on the short end of those decisions would not be allowed to use their "facts" any longer (just like having potentially dangerous drugs or products taken off the shelf). If they do, there would be fines levied to punish the transgressors. This system would not only make clear what the facts are and empower those who want the facts to be known, but it would also discredit the lunatic fringe and reduce the influence of their views on the majority of people.

Now that's a stupendous idea, despite that ratty old Constitution written by a bunch of long dead obscenely rich white male jerks (please excuse the redundancy) obviously cursed with an overabundance of Neanderthal genes! It should be tossed into an (ecologically sound) trash bin. Should it fly (and Mr. Taylor acknowledges that it might not -- but then, scientists were once said to know that a bumblebee couldn't fly), anyone who advocates that 2 + 2 = 6, that the Germans and Japanese were the bad guys and the United States and Great Britain were the good guys during the Second World War, that Arizona's ~~Jim Crow~~ immigration law is reasonable and constitutional or that under the Health Control Law costs are likely to rise, medical care to suffer and/or that the old farts might get the short end of the stick – being in all cases clearly misguided, politically and/or ideologically ~~suspect~~ wrong – would have to shut up or be punished by fines. Big fines, I hope. Perhaps Huff and Puff and Daily It's So Kos I Say So should get some of the fine proceeds. That will show those damn Fascist ideologues on the right. If only King George Bush II the Perverse or Prince Cheney the Unspeakable had thought of this and implemented it! But then President Bush's faith-based initiatives were bad and President Obama's faith-based initiatives are good. Maybe there is an ideological difference. Or maybe President Obama is the physical embodiment of faith.

What are facts, anyway? Obviously, it a true fact that man made global warming is happening and that the consequences will be draconian unless we cease spewing toxic CO₂ into the atmosphere – now, Damnit! Saint Al the Gored is correct, there is no legitimate scientific dispute and civilization as we know it will fall into oblivion if he can't buy another mansion or jet aircraft out of the (non) profits from cap and trade transactions. Once upon a time, more physicians preferred camels to any other, well, I suppose, cigarette.

Back when the Health Control Law was passed and signed, and only some of Santa Claus' elves (and maybe Rudolph) at the North Pole had read and understood it, there were no "facts;" only opinions based, quite likely, on the same reliable sources as those upon which Attorney General Holder relied in criticizing the new Arizona immigration statute – television and newspaper reports by folks who hadn't bothered to read it either and who, I might suggest, were among the ideologically blessed. Responsible officials can't be bothered with the trash spouted by those of impure ideology or worse. Get thee behind me, Satan, Fox, Beck, Palin, Rush et al! Make way for The New York Times and MSNBC! Quick! Before they die.

Still, if there were to be an official governmental arbitrator of what is fact and what is falsehood, it would greatly simplify life. The entire problem of separating the wheat from the chaff would be pushed off on someone else and hidden behind one of Douglas Adams' SEP (Somebody Else's Problem) fields where nobody could see it. The SEP field theory was noted in the second (or was it the third?) of Adams' five book Hitchhiker's Guide to the Galaxy trilogy. I have read that "Adams had a keen interest in the effects of drinking on intelligent people, and discovered that you can get past writers block by drinking vast amounts of alcohol, blacking out, and waking up in a cow field." I don't believe it for a moment and hence it is not a real fact.

Nevertheless, despite the fact that alcohol is inexpensive and there are plenty of cow pastures here, I have implemented a remotely similar strategy at home. We have four dogs. Two of them are too puppy-like and carefree to worry, and I don't like doing it myself. So, I have delegated all responsibility for worry to the two pups who seem best fitted to the task. Getting a lobotomy might serve the same purpose, but might not be covered by my health insurance: it might be covered under the new Health Control Law, but I don't know and need a Department of Information to tell me. Regardless of that, the pup delegation costs absolutely nothing. I have denied them internet access, imbuing them with a degree of purity generally lacking in others. Now, I can be happy and carefree. Something similar would, in my carefree state of mind, be superior to Mr. (Dr.) Taylor's offering, and might also encourage the adoption of unwanted puppies otherwise doomed to execution. That, at least, seems worthwhile.

________________________
^*When I was in undergraduate school eons ago, people with medical degrees were referred to as Doctor. It was considered snobbish for a PhD to refer to himself as "Doctor" because all of his peers also had that degree. Even lowly instructors and the post-doc teaching assistants who handled small seminars for the Big Man had them. Students absorbed this perception, and Professor Doctor Smith was referred to simply as Mr. Smith. Alas, that was then and this is now, but I still adhere to the notion.

If There is No Real God, How About an Artificial One?

2010-05-04T09:16:00.000-07:00

First Published at Blog Critics on May 4, 2010

We need at least to conduct ourselves as though there were one.

Judeo-Christian religion in the United States is far from dead, but other religions are increasingly viable. In addition to Radical Islam ("eighty percent of the prisoners who 'find faith' in prison convert to Islam," generally of the radical kind), Leftism, Multiculturalism, Progressivism and the like seem pervasive. Even the Church of Global Warming, while modestly weakened, remains sufficiently vibrant that absolution may yet be had by buying dispensations. Mere ideologies perhaps, aside from Radical Islam, but their adherents bring religious passion to their dogmas and consider it churlish, if not criminal, to question them. While the Judeo-Christian religions remain vibrant, the others seem not only indignant but overtly hostile; there is at least a chance that they will prevail, if not soon then eventually. As suggested below, that would be unfortunate.

Douglas Adams, author of Hitchhiker's Guide to the Galaxy and other neat stuff, died in 2001. Although his memorial service was held at the Anglican St. Martin in the Fields Church, he had described himself as a "radical atheist" in order not to be confused with mere Agnostics. Adams did not "believe" in God, nor did he "believe" that there is no God. He was "convinced" that there is no God, and that is rather different. Like Adams, I don't "believe" one way or the other; unlike Adams, I am not "convinced" that there is no God and consider myself an Agnostic rather than an Atheist. I am also partially color blind and can't distinguish various color shades. I understand that most others can do so and I act on the assumption that the various shades exist. I accept that my sensory perceptions as to such matters may be inferior to theirs and also that there is no cure; stuck is stuck. Somewhat analogously, other people may have superior ability to sense the divine than I do; so be it There is nothing I can do about that either; again, stuck is stuck. Although in some ways I behave as though they may be right, just "going along to get along" wouldn't work because belief cannot be faked; there is also the problem that there are very many divergent perceptions of the divine. It seems unlikely that all of them are right but it is quite possible that all of them are wrong.

In a 1998 speech, Adams propounded a fascinating question, "Is There an Artificial God?" He suggested that there is and cited an example from Bali.

Now, rice is an incredibly efficient food and you can grow an awful lot in a relatively small space, but it's hugely labour intensive and requires a lot of very, very precise co-operation amongst the people there, particularly when you have a large population on a small island needing to bring its harvest in. People now looking at the way in which rice agriculture works in Bali are rather puzzled by it because it is intensely religious. The society of Bali is such that religion permeates every single aspect of it and everybody in that culture is very, very carefully defined in terms of who they are, what their status is and what their role in life is. It's all defined by the church; they have very peculiar calendars and a very peculiar set of customs and rituals, which are precisely defined and, oddly enough, they are fantastically good at being very, very productive with their rice harvest. In the 70s, people came in and noticed that the rice harvest was determined by the temple calendar. It seemed to be totally nonsensical, so they said, 'Get rid of all this, we can help you make your rice harvest much, much more productive than even you're, very successfully, doing at the moment. Use these pesticides, use this calendar, do this, that and the other'. So they started and for two or three years the rice production went up enormously, but the whole predator/prey/pest balance went completely out of kilter. Very shortly, the rice harvest plummeted again and the Balinese said, 'Screw it, we're going back to the temple calendar!' and they reinstated what was there before and it all worked again absolutely perfectly. It's all very well to say that basing the rice harvest on something as irrational and meaningless as a religion is stupid - they should be able to work it out more logically than that, but they might just as well say to us, 'Your culture and society works on the basis of money and that's a fiction, so why don't you get rid of it and just co-operate with each other' - we know it's not going to work!

So, there is a sense in which we build meta-systems above ourselves to fill in the space that we previously populated with an entity that was supposed to be the intentional designer. . . and create one and then allow ourselves to behave as if there was one, all sorts of things begin to happen that otherwise wouldn't happen.

Let's assume for purposes of argument that Adams was correct. Then comes the tricky bit: what sort of artificial God should there be and how should we go about behaving as though He exists and cares about what we do and don't do? Egocentric to raise such questions? Perhaps, but if an actual God made us and is "good," He surely included a healthy dose of ego as well as lots of less desirable attributes. If He exists, I hope that he will not be much offended by the process.

For devout Christians and Jews, these questions probably needn't be answered; their beliefs suffice. Adherents to Radical Islam, the "religion of peace," probably don't need to answer them either, but it might be useful for all of us if, while taking qat breaks from suicide bombings, honor killings and beheadings, they were to give some thought to the matter.

Since Christians long ago ceased burning witches and heretics at the stake and now generally abjure the killing of Jews for having crucified Jesus and thereby kick-starting Christianity, the God of the New Testament might be a good model for an artificial God. The United States, like the rice farmers in Bali, did pretty well until He was shoved to the side by multiculturalism and became decreasingly relevant to the behavior of modern American society. Multiculturalism is not a very propitious God.

Here is what I make of it all. We should act on the assumption that the United States' Judeo-Christian heritage is good rather than bad, that it merits our determined defense and that there are objective standards of right and wrong. Like the rice farmers in Bali, some of us may not know exactly where the standards came from or why, and there is less than unanimous agreement at the periphery as to what they are. Still, I think we can agree that the basics do exist, that they work and that we ignore them at our national peril. It strikes me as plausible that the basic moral teachings of traditional religions which succeeded over the centuries did so because their basic principles worked and were grounded in the nature of man. A variation on a principal teaching of Christianity, the Golden Rule, was articulated by Socrates and many others long before Jesus came on the scene, and if generally observed, it works. The concept of individual charity toward those less fortunate has roots at least as deep, and it would be a good thing if there were enough of it for the government to curtail its own politically directed, profligate and often socially disastrous efforts. My frame of reference, lest there be any doubt, is countries which, like the United States, have their roots in the Judeo-Christian religion but don't enforce an official state religion. Other countries might fare better than at present under such an Artificial God, but I lack sufficient familiarity with them to offer even remotely useful suggestions.

There must be tolerance toward those who disagree, within limits: those who wish to celebrate Saturnalia, or nothing at all, rather than Christmas, for example. That seems very unlikely to harm others and they should be free to do as they wish; that tolerance must be reciprocated if it is to persist. For example, those who wish their non-belief to be tolerated must learn to tolerate such things as Christmas trees, Easter bunnies and the public display of the Ten Commandments. I understand that in some communities, Jews work overtime during Christian holidays so that Christians can be free of secular obligations; I also understand that in some communities this kindness is reciprocated. Those who consider abortion an abomination per se should act in accordance with their views; however, they should not force others, on pain of criminal prosecution or private violence, to adhere to those views; neither should they be required to support, financially or otherwise, abortion or those who advocate abortion.

Kipling's In the Neolithic Age offers some useful insights.There, he essentially channeled a tribal singer from the Neolithic age, who recounted how he had murdered a rival who didn't approve of his songs and a "mammothistic etcher" whose art he didn't care for, because he knew his own work was right and theirs was wrong. His totem saw the shame, and in a vision of the night appeared to him, commenting that "there are nine and sixty ways of constructing tribal lays, and every single one of them is right." Then, the silence closed upon him and he awoke in a modern age, once again a poet.

Still the world is wondrous large,--seven seas from marge to marge,--
And it holds a vast of various kinds of man;
And the wildest dreams of Kew are the facts of Khatmandhu,
And the crimes of Clapham chaste in Martaban.

Here's my wisdom for your use, as I learned it when the moose
And the reindeer roamed where Paris roars to-night: —
There are nine and sixty ways of constructing tribal lays,
And — every — single — one — of — them — is — right!

We are in danger of forfeiting much that heretofore made the United States what many of us wish she still were. If the descent is to be halted or possibly even reversed, we had better be careful. Mark Steyn recently wrote,

Every time I retail the latest indignity imposed upon the "citizen" by some or other Continental apparatchik, I receive e-mails from the heartland pointing out, with much reference to the Second Amendment, that it couldn’t happen here because Americans aren’t Euro-weenies. But nor were Euro-weenies once upon a time. Hayek . . . wrote with an immigrant’s eye on the Britain of 1944:
the virtues which are held less and less in esteem and which consequently become rarer are precisely those on which the British people justly prided themselves and in which they were generally agreed to excel. The virtues . . . were independence and self-reliance, individual initiative and local responsibility, the successful reliance on voluntary activity, noninterference with one’s neighbor and tolerance of the different and queer, respect for custom and tradition, and a healthy suspicion of power and authority.
Two-thirds of a century on, almost every item on the list has been abandoned. . . [T]he reflex response now to almost any passing inconvenience is to demand the government "do something," the cost to individual liberty be damned. . . As Europe demonstrates, a determined state can change the character of a people in the space of a generation or two. Look at what the Great Society did to the black family and imagine it applied to the general population: That’s what happened in Britain.

Regardless of whether there is an actual God and regardless of our views on the matter, we should behave as though there were one of the sort on whom our fundamental national character has long been based. Failure to do so has already led the United States down the road toward oblivion, and this process must be reversed. Whether that can or will happen remains to be seen, but with the resurgence of popular support for the basic principles upon which the nation was founded, there is reason for optimism.

Lunatics, Once Objects of Derision, Now Govern.

2010-04-11T12:57:00.000-07:00

Our ~~souls~~ soles are now free to soar, but we must love and understand all critters great and small.

Many years ago, in a less enlightened age, some people entertained themselves by visiting lunatic asylums in Washington, D.C. and making fun of the inmates. It was a cruel and inhumane exercise. Things have changed dramatically for the better as we have evolved and lunatics are no longer confined. As a modest form of reparation, they govern us -- not from padded cells but from well appointed offices where they are accorded the great respect which, as the previously oppressed, is their due. Turn about, as even small children know, is fair play.

This article should greatly encourage all who recognize that even lunatics now need love and understanding.

SCOTLAND YARD has bowed to Islamic sensitivities and accepted that Muslims are entitled to throw shoes in ritual protest — which could have the unintended consequence of politicians or the police being hit.

* * *

The concession has already been taken up enthusiastically by Muslim demonstrators, who pelted Downing Street with shoes in protest at the Israeli bombing of Gaza last year.

Dozens of ski-boots and clogs were also hurled at the US consulate in Edinburgh in a related protest, in which three policemen sustained minor injuries.

Shoes, and soles in particular, are considered unclean. Although the point has not been clarified by the authorities, it is likely that pork chops may now be hurled peacefully in response.

Unintended consequences? Indisputably. In any civilized nation, there must be a presumption that people who hurl shoes and other projectiles in the direction of other people make heroic efforts to avoid hitting them, just as suicide bombers merely wish to express their political views and don't intend to harm others. Unintended adverse consequences certainly are not properly to be anticipated. That is true in many other contexts. For example, I myself from time stick my fingers deep into an operating food processor to unclog a mess and routinely experience the unintended consequences of having them mutilated. Boy, have I been surprised, as I well should be; every time I do it, I experience the same surprise at the consequences, which I certainly do not intend. To expect unintended bad things to happen whenever one tries to prepare a meal would be paranoid, and there is no rational basis for assuming irrational behavior of any type from an otherwise tame food processor.

Confederate soldiers during the U.S. Civil War (known to reprobates as the War of Northern Aggression), such as General Robert E. Lee, were clearly terrorists, just as it is clearly true that Islamic terrorism and Jihad don't exist. In this glorious age of enlightenment, all things must be considered within their proper and socially acceptable frames of reference. Otherwise, some really nice folks may be offended. Unfortunately, some seem not to have understood the memo and continue to view al-Qaeda as an enemy! Even President Obama, probably in an eminently forgettable Biden Moment, recently expressed fears that "nuclear terrorism poses a graver danger than the risk of war between nuclear nations." He specifically referenced al-Qaeda in this context, as did his Secretary of State, Ms. Clinton. On the other hand, perhaps the leaders of al-Qaeda and other so called terrorist/extremist groups have secretly converted to Methodism, in which case it is right and proper to refer to them as terrorists. If true, that would go far to explain current U.S. policy in the national security arena. In any event, feeble attempts such as this to revise history may slow but will not stop progress.

A few of the less perceptive ape-descended carbon based life forms here on Gaia may unfortunately disagree. However, I am confident that we can all cherish and adopt these great new principles befitting our post-modern age if only we reach an appropriate state of post-modern enlightenment.

When the new age of enlightenment dawns, and dawn in all glory it will, I fervently hope to see not only adherents of the Religion of Peace but all others evolve to new and higher plains from which we will all be permitted to hurl projectiles at each other in the peaceful exercise of free speech. All, and not just the favored few, must be given maximum latitude in acting out their heart-felt beliefs and animosities.

And this brings me to the real thrust of today's homily. There are many Neanderthals who want the United States and other imperialist international powers to force Iran to abandon the development of peaceful nuclear weapons with which to make a clear statement of her opinion of Israel, a highly reactionary and illegitimate state. Demonstrating the correctness of Iran's view, Israeli Prime Minister Binyamin Netanyahu recently demonized these peaceful efforts as an attempt to create "weapons of mass destruction!" He also manifested his continuing paranoia by again referencing the holocaust, a non-event. His drooling hatred was not hidden:

“The historical failure of the free world in facing the Nazi beast was in not confronting it when it could still be stopped," Netanyahu said, "today we witness the fire of the old-new hate, the hate of the Jews being spread by the regimes and organizations of radical Islam, spearheaded by Iran and its cohorts."

These fading and senile Neanderthals, and indeed the failed and failing nations they dominate, refuse to recognize that Iran has legitimate grievances against the rest of the world. She has suffered bravely through years of wicked oppression, and it is only right for her now to be allowed all of the freedom of expression she wishes.

Some are strangely prejudiced against the legitimate government of Iran and want her to just shut up. They are misguided and have been misled by the wicked imperialist efforts of the United States and her captive fascist media to foment rebellion so that imperialist countries can steal her patrimony. Iran rightly echoes the persuasive argument, "No Oil for Blood!" Despite the most oppressive efforts of the rulers of the world and their lackeys, the book is closing on the oppression of the Religion of Peace. It is high time for their soles to soar!

Court Orders FCC to Cease Exceeding its Statutory Authority

2010-04-08T17:50:00.000-07:00

The decision may upset some big plans the FCC has for us

On April 6, 2010, a three judge panel of the Federal Court of Appeals for the District of Columbia Circuit held unanimously in Comcast Corporation v. FCC that the Federal Communications Commission (FCC) had over-stepped its statutory authority by attempting to regulate aspects of cable internet service not contemplated by statute. It has been suggested by an article in Cnet News that

Tuesday's decision could doom one of the signature initiatives of FCC Chairman Julius Genachowski, a Democrat. Last October, Genachowski announced plans to begin drafting a formal set of Net neutrality rules--even though Congress has not given the agency permission to begin.

It has also been suggested here that

The decision also has serious implications for the massive national broadband plan released by the FCC last month. The FCC needs clear authority to regulate broadband in order to push ahead with some its key recommendations, including a proposal to expand broadband by tapping the federal fund that subsidizes telephone service in poor and rural communities.

Probably so. Others have speculated that there may be additional impacts on communications, which is of course possible. On April 8^th the FCC nevertheless announced that it plans to move ahead on its broadband initiative "soon."

The FCC laid out its 2010 "broadband action agenda" without indicating how it will proceed in light of the court ruling. But the agency says it will ensure it has the legal authority it needs for its sweeping plan to increase broadband usage and Internet speeds.

Be that as it may, the Comcast decision itself will probably have little direct immediate impact on most of us any time soon, although it has some neat procedural twists and turns of the sort likely to tickle the fancies of attorneys. It also portends trouble for other currently hyperactive administrative agencies

A bit of background on the communications industry may be in order. As an attorney in private practice in Washington, D.C. from 1972 till 1996, I represented television stations across the country in their battles with the cable industry from the early 1970's until the Congress in 1984 essentially deregulated cable and left it up to local governments to regulate the rates charged cable customers. The full blown notion of net neutrality had not emerged while I was practicing law, so this article merely addresses some of the history of FCC regulation. Others are in a better position to speak of net neutrality and its potential impact on nearly all of us. Here is one such analysis, which I think makes well the point that regulation has its good and bad points; it is difficult to have one without the other.

When the industry was in its infancy, before I was born, there were radio stations which broadcast AM signals (FM came later) capable of being received at no charge by anyone with an appropriate receiver. Such radio stations were not common carriers, and had very different obligations than those imposed on common carriers, telephone companies, which made their services available by physical wires to customers who paid for the service. The various telephone companies were interconnected, also generally by physical wires, making long distance calls possible. The Communications Act of 1934 created the FCC, which was intended to deal with these quite different beasts.

Over the years, technology changed dramatically and the Communications Act was amended from time to time to take into account some but not all of the important changes. However, in some cases the technology changed too rapidly for statutory changes to keep pace. Consequently, the FCC tried to use its existing regulatory power to fill the void. Sometimes it did so wisely and sometimes not.

Although the first cable television systems were started in the 1940's, the industry advanced slowly until the 1970's, principally at first in places where over-the-air reception of television stations was difficult or impossible. Community Antenna Television Service (CATV) operators used more sophisticated and expensive receiving equipment than was feasible for individual households and delivered otherwise unavailable or marginal TV signals by wire to their subscribers. Although subscribers paid the CATV systems for this service, the CATV systems did not pay television stations for the "piracy" of their programming. As CATV became widespread, many broadcasters began to consider CATV an enemy and sought to have it regulated by the FCC. The catch phrase of the period was

it has long been known to thieves that if you can get something for nothing and then sell it, you can make a neat profit.

This may have been somewhat unfair, since CATV operators had their own costs of operation; however, it also made sense because when a CATV operator imported unlimited distant TV stations instead of or in addition to local stations, and/or substituted its own commercials for those broadcast by local TV stations, the audiences of the local stations were fragmented. Advertisers did not get the expected value for their money and the revenues of local stations dropped. Since the FCC had a statutory responsibility to foster local broadcasting, and since broadcast stations were required to broadcast some generally non-remunerative programming ("public affairs," which with the demise of the Fairness Doctrine morphed into profitable talk radio and its television counterpart) and otherwise to operate in the public interest, it was feared that the FCC could not meet its statutory responsibility and that public interest would thereby suffer. The FCC ultimately agreed and adopted "must carry" rules, "network non-duplication" rules and rules limiting the numbers of distant stations CATV operators could make available and the conditions under which they could do so.

In United States v. Southwestern Cable Co., 392 U.S. 157 (1968), as relied upon in many subsequent cases, the Supreme Court held that despite the absence of any specific statutory authority to regulate the CATV industry, the regulations in question were within the ancillary authority of the FCC because the FCC (a) had statutory authority to regulate television stations and (b) had demonstrated that the limited regulations imposed on the CATV industry were necessary in furtherance of its obligation to keep broadcast stations healthy so that it could regulate them "in the public interest." The FCC was required to meet both parts (a) and (b) of the test. As time marched on, CATV mutated into its present form, making substantial non-broadcast content available to subscribers, often at premium prices. The CATV industry was largely deregulated by the Congress in 1984, leaving rate regulation to be undertaken locally.

Under the Communications Act, the Court of Appeals for the D.C. Circuit has exclusive jurisdiction to entertain appeals from most FCC decisions as well as the decisions of most other federal administrative agencies. The process obviates intermediate proceedings at the Federal District Court level and decisions by the D.C. Circuit are appealed to the Supreme Court. Nearly always, acceptance of such appeals is discretionary with the Supreme Court through the certiorari process. Very few petitions for grant of a writ of certiorari are granted.

In Comcast Corporation v. FCC, decided on April 6, 2010, the D.C. Circuit held that the FCC had gone too far in attempting to regulate the cable internet services provided by Comcast. It rejected the FCC's argument that statements of Congressional policy as expressed in the Communications Act and elsewhere, in and of themselves, granted far reaching regulatory authority. That

policy statements alone cannot provide the basis for the Commission’s exercise of ancillary authority derives from the “axiomatic” principle that “administrative agencies may [act] only pursuant to authority delegated to them by Congress.” . . . Policy statements are just that—statements of policy. They are not delegations of regulatory authority. To be sure, statements of congressional policy can help delineate the contours of statutory authority. . . . When exercising its Title II authority to set “just and reasonable” rates for phone service, . . . , or its Title III authority to grant broadcasting licenses in the “public convenience, interest, or necessity,” . . . , or its Title VI authority to prohibit “unfair methods of competition” by cable operators that limit consumer access to certain types of television programming, . . . , the Commission must bear in mind section 1’s objective of “Nation-wide . . . wire and radio communication service . . . at reasonable charges,”. . . . In all three examples, section 1’s policy goal undoubtedly illuminates the scope of the “authority delegated to [the Commission] by Congress,” . . . — though it is Titles II, III, and VI that do the delegating. So too with respect to the Commission’s section 4(i) ancillary authority. Although policy statements may illuminate that authority, it is Title II, III, or VI to which the authority must ultimately be ancillary. (internal citations omitted)

As the court observed, the FCC did not argue

that its regulation of an activity over which it concededly has no express statutory authority (here Comcast’s Internet management practices) is necessary to further its regulation of activities over which it does have express statutory authority (here, for example, Comcast’s management of its Title VI cable services). (emphasis added)

Rather, the FCC argued that it had all the authority it needed by virtue of Congressional expressions of policy. The D.C. Circuit disagreed, stating that the FCC's position was not only inconsistent with judicial precedent but that "if accepted it would virtually free the Commission from its congressional tether," opening the door for the FCC to do pretty much anything that pleased it.

The final paragraph of the decision should give the FCC and other now hyperactive administrative agencies some pause:

It is true that “Congress gave the [Commission] broad and adaptable jurisdiction so that it can keep pace with rapidly evolving communications technologies.” . . . . It is also true that “[t]he Internet is such a technology,” indeed, “arguably the most important innovation in communications in a generation,” Yet notwithstanding the “difficult regulatory problem of rapid technological change” posed by the communications industry, “the allowance of wide latitude in the exercise of delegated powers is not the equivalent of untrammeled freedom to regulate activities over which the statute fails to confer . . . Commission authority.” Because the Commission has failed to tie its assertion of ancillary authority over Comcast’s Internet service to any “statutorily mandated responsibility,” we grant the petition for review and vacate the Order.

The caution against impermissible agency intrusions to deal with rapid technological advances which the Congress has not got around to regulating should apply with even greater emphasis to impermissible agency intrusions into areas into which the Congress has been pressed by the current administration to intrude but has thus far declined the invitation.

Translated Text of Honduras Accord

2009-10-31T15:07:00.000-07:00

This is a Google translation of the Honduras Accord, signed on 30 October 2009

PREAMBLE

We Honduran citizens, men and women convinced of the need to strengthen the rule of law under our Constitution and laws of our Republic, deepen democracy and ensure a climate of peace and tranquility to our people, we had a strong and frank political dialogue process to find a peaceful and negotiated solution to the crisis our country has been plunged in recent months.

As a result of this dialogue that sanity has prevailed, tolerance and the patriotic spirit of all its participants, we drafted a political settlement that will restore the peaceful coexistence of citizens and ensure a climate conducive to democratic governance in our country. This agreement, we are sure, will mark the path to peace, reconciliation and democracy, urgent demands of Honduran society.

The conclusion of this agreement demonstrates once again that the Hondurans are able to successfully practice dialogue and thank him and through it, achieve the lofty goals that society demands and the nation requires of us.

Under this, we have agreed to the following agreements.

1 .- ON THE GOVERNMENT OF NATIONAL UNITY AND RECONCILIATION
To achieve reconciliation and strengthen democracy under a Government of Unity and National Reconciliation, composed of representatives of various political parties and social organizations, recognized for their ability, honesty, competence and willingness to talk, who will occupy the various secretaries and deputy secretaries, and other state agencies in accordance with article 246 and following of the Constitution of the Republic of Honduras.

Given that prior to the June 28, the executive branch had sent to Congress the draft National General Budget of Revenue and Expenditures, in accordance with the provisions of Article 205, paragraph 32 of the Constitution of the Republic of Honduras, the government of national unity and reconciliation, respect and operate on the basis of the general budget, recently approved by Congress for fiscal year 2009.

2 - ON THE WAIVER to convene a National Constituent Assembly Amend the Constitution AS unreformable.

Fundamental. To achieve reconciliation and strengthen democracy, we reiterate our respect for the Constitution and laws of our country, refraining from making appeals to the convocation of a Constituent National Assembly, directly or indirectly and also giving to promote or support any referendum with the aim of reforming the constitution to allow presidential reelection, modify the form of government or contravene any of the articles of our Constitution irrevocable.

In particular, we will not make public statements or exert any influence inconsistent with Articles 5, 239; 373 and 373 of the Constitution of the Republic of Honduras, and strongly reject any expression contrary to the spirit of such items and special law regulates the referendum and the plebiscite.

3 - ON THE GENERAL ELECTION AND THE TRANSFER OF GOVERNMENT

To achieve reconciliation and strengthen democracy, we reiterate that, in accordance with Articles 44 and 51 of the Constitution of the Republic of Honduras, the vote is universal, compulsory, equal, direct, free and secret, and for the Supreme Electoral Tribunal with full autonomy and independence, control and implement all related to the acts and election processes.

Also make an appeal to the Honduran people to participate peacefully in the next general election and avoid all demonstrations to oppose the election or its outcome, or promoting the insurrection, unlawful conduct, civil disobedience or other acts that could produce violent confrontations or breaches of the law.

In order to demonstrate the transparency and legitimacy of the electoral process, we urge the Supreme Electoral Tribunal which authorizes and certifies the presence of international missions from now until the declaration of the result of general elections and the hand over to take place in accordance with Article 237 of the Constitution of the Republic, 27 January 2010.

4 - ON THE ARMED FORCES AND NATIONAL POLICE

To achieve reconciliation and strengthen democracy, we reaffirm our willingness to abide in all respects Article 272 of the Constitution of the Republic of Honduras, in accordance with which the Armed Forces, are available to the Supreme Electoral Tribunal from a month before the general elections, in order to guarantee the free exercise of suffrage, custody, transparent and monitoring of election materials and other aspects of process safety. We reaffirm the professional, apolitical, obedient and not deliberating the Honduran Armed Forces. Similarly, we agree that the national police must adhere strictly to what is prescribed special legislation.

5 - THE EXECUTIVE

To achieve reconciliation and strengthening democracy in the spirit of the themes of the proposed San Jose Accord, both negotiating committees have decided, respectfully, that the National Congress as an institutional expression of popular sovereignty, using its powers, in consultation with relevant bodies to consider as the Supreme Court and in accordance with law, resolve as appropriate in respect of "to roll back the ownership of the executive branch to its status prior to 28 June until the end of the current governmental period on 27 January 2010.

The decision to accept the Congress should provide the basis for achieving social peace, political peace and governance demanded by society and the country needs.

6 .- VERIFICATION ON THE COMMISSION AND THE COMMISSION ON THE TRUTH

To achieve reconciliation and strengthen democracy, we have the creation of a Credentials Committee of the commitments made in this Agreement, and those derived from it, coordinated by the Organization of American States (OAS).The commission shall consist of two members of the international community and two members of the national community, the latter shall be chosen one by each of the parties.

The Credentials Committee will be responsible for attesting to the strict compliance with all points of this agreement and will receive for it the full cooperation of the Honduran public institutions.

Violation of any of the commitments contained in this Agreement, established and declared by the Credentials Committee, will produce the activation of measures developed by the Commission to the offender or offenders.

To clarify the events before and after 28 June 2009, it will also establish a Truth Commission to identify the actions that led to the current situation and to provide the people of Honduras elements to prevent these acts were repeated in the future.
This Dialogue Commission recommends that the next government, as part of a national consensus, constitutes the Truth Commission in the first half of 2010.

7. ON NORMALIZATION OF RELATIONS OF THE REPUBLIC OF HONDURAS TO THE INTERNATIONAL COMMUNITY

By committing to faithfully fulfill their commitments in this Agreement, we respectfully request the immediate revocation of those measures or sanctions taken bilaterally or multilaterally, that somehow affect reintegration and full participation of the Republic of Honduras in the international community and access to all forms of cooperation. We call upon the international community to relaunch as soon as possible the current projects of cooperation with the Republic of Honduras and continue with the negotiation of future. In particular, we urge that, at the request of the competent authority becomes effective international cooperation that is necessary and timely for the Verification Commission and the Truth Commission in the future to ensure the faithful implementation and monitoring of the commitments made in this Agreement.

8. FINAL PROVISIONS

Any differences in interpretation or application of this Agreement will be submitted to the Credentials Committee, shall determine, in keeping with the provisions of the Constitution of the Republic of Honduras and current legislation and by an authentic interpretation of this Agreement, the solution appropriate.
Taking into account this Agreement is the product of understanding and brotherhood among Hondurans, strongly request the international community to respect the sovereignty of the Republic of Honduras, and fully observe the principle enshrined in the Charter of the United Nations not interference in the internal affairs of other States.

9 .- SCHEDULE OF COMPLIANCE AGREEMENTS

Given the entry into force immediately after this agreement after your subscription date, and in order to clarify the time of implementation and monitoring of commitments made to achieve national reconciliation, agree to the following schedule of compliance.

* October 30, 2009
1 .- Subscription and entry into force of the agreement.
2 .- formal delivery of the agreements to Congress for the purpose of Section 5, the "Executive".
November 2, 2009
1 .- Establishment of the Credentials Committee.
* From the signing of this Agreement and no later than November 5.
1 .- Formation and installation of the Government of Unity and National Reconciliation.
* January 27, 2010
1 .- Celebrating hand over of government.
* First half of 2010
1 .- Establishment of a Truth Commission.

10 .- FINAL DECLARATION

In the name of reconciliation and the patriotic spirit that has brought us together at the negotiating table, we undertake to comply in good faith under this Agreement and what you as a result.

The world is witness to this demonstration of unity and peace, which commits us our civic duty, and patriotic devotion. Together, we shall demonstrate our courage and resolve to strengthen the rule of law and build a tolerant, pluralist and democratic.
We signed this Agreement in Tegucigalpa, Honduras, on 30 October 2009.

11 .- THANKS

We take this opportunity to thank the support and the good offices of the international community, especially the Organization of American States and its Secretary General Jose Miguel Insulza, the Missions of Foreign Ministers of the Hemisphere, the president of Costa Rica, Oscar Arias Sanchez, the final government of the United States, its President Barack Obama and his Secretary of State Hillary Clinton.

12 .- ON THE ENTRY INTO FORCE OF THE AGREEMENT TEGUCIGALPA / SAN JOSE
For internal purposes, the agreement takes full effect after its signing.
For purposes of protocol and ceremonial, will be held a public subscription on 2 November 2009.

Tegucigalpa Central District Municipality, 30 October 2009.

The Yale University Press and a Book about Cartoons

2009-10-20T08:47:00.000-07:00

First published on Blog Critics on 19 October 2009

Refusal to reprint dastardly cartoons offensive to Islam was a giant step forward for free speech.

The Yale University Press is dedicated to principles of independence, academic freedom and scholarship; it adheres steadfastly to those principles without fear or favor; without regard to whether its actions cause anger, adverse comment or praise. Its honorable decision to publish The Cartoons That Shook the World minus a reproduction of the actual cartoons demonstrates YUP's fearless adherence to its principles.

YUP is to be commended for its willingness to court popular criticism. Few publishers of significance would be willing to risk outrage of the sort engendered by publication of only a bowdlerized version of The cartoons book. In an August 14, 2009 press release announcing its decision, YUP modestly declined to acknowledge that its courageous goal was to stimulate such criticism and thereby to encourage the sort of freedom of expression it well knew would be directed against it. Instead, it took the much disputed position that its decision was made to promote public safety.

After careful consideration, the Press has declined to reproduce the September 30, 2005, Jyllands-Posten newspaper page that included the cartoons, as well as other depictions of the Prophet Muhammad that the author proposed to include.

The original publication in 2005 of the cartoons depicting the Prophet Muhammad led to a series of violent incidents, and repeated violent acts have followed republication as recently as June 2008, when a car bomb exploded outside the Danish embassy in Islamabad, Pakistan, killing eight people and injuring at least thirty. The next day Al-Qaeda claimed responsibility for the bombing, calling it revenge for the "insulting drawings."

Republication of the cartoons—not just the original printing of them in Denmark—has repeatedly resulted in violence around the world. More than two hundred lives have been lost, and hundreds more have been injured. It is noteworthy that, at the time of the initial crisis over the cartoons in 2005–2006, the New York Times, Washington Post, and Boston Globe declined to print them, as did every major newspaper in the United Kingdom.

Despite this self-effacing explanation, it should be obvious that YUP's motivation had nothing to do with public safety; the chances of violent attacks against YUP or even Yale University as a whole resulting from publication of the already widely seen three year old cartoons in a scholarly volume, likely to be read by few, are laughably remote. Any suggestion that the copious free publicity for YUP certain to result from its decision was a motivating factor must also be rejected. YUP does not need publicity, good or bad. It is already one of the top thousand or so academic book publishing companies in the United States and would be shocked at the prospect of massive demand for one of its learned books. YUP fears the publication of a best seller as the gods fear Sarah Palin. Even more ludicrous is the mean-spirited charge that Yale University was motivated by a desire for financial assistance from such Moslem countries as Saudi Arabia. YUP doubtless has plenty of money, and the thought that Yale University might stoop to such mercenary thoughts is unthinkable.

These nonsensical theses must be put aside. YUP was merely following cherished Yale University Guidelines, known to and respected by all members of the university community.

[T]he history of intellectual growth and discovery clearly demonstrates the need for unfettered freedom, the right to think the unthinkable, discuss the unmentionable, and challenge the unchallengeable.

YUP courageously desired to subject itself to violent criticism from the proponents of free speech precisely to encourage such attacks. And vehement attacks there have been. Here is an article reporting and elaborating upon some of them.

Cary Nelson, the President of American Association of University Professors (AAUP), quickly responded on August 13 with a biting letter, "We do not negotiate with terrorists. We just accede to their anticipated demands." Yale's action struck the AAUP as creating much more harm. Yale violated "an author's academic freedom and [damaged] the reputation of the press and the university." These actions would impact "other university presses and publication venues" and "[had] the potential to encourage broader censorship of speech by faculty members or other authors."

It goes on and on, as do many other such articles; indeed, they continue to this day, more than two months after the initial announcement.

How better to encourage "unfettered freedom," thoughts of the "unthinkable", mention of the "unmentionable," and challenges to the "unchallengeable?" Indeed, how better to boldly go where no man had dared to boldly go before? By actively promoting a heretofore unthinkable freedom to suggest that YUP may have had some ulterior motive or, indeed, even that it was strangely misguided, was a truly courageous and brilliant exercise in generous self sacrifice of a type, magnitude and generosity rarely seen. Sadly, "the Yale faculty has mostly yawned."

It is, nevertheless regrettable that some even within the enlightened Yale Community were taken in by YUP's heroic ~~hoax~~ decision, and blamed it on cowardice. One undergraduate commendably proclaimed in the Yalie Daily that there are legitimate limits to freedom of speech.

While most of us would defend the free-speech rights of "birthers" or Klansmen or fraternity misogynists, we defend those rights in a manner that makes clear we don’t want to see those rights exercised in violation of our sensibilities and beliefs. Some ideas are not welcome at Yale, nor should they be.(emphasis added)

I cannot agree with that too much! Indeed, it warms the very cockles of my heart and sole (sic) to learn that Yale is a far better and more liberal place than when I floundered around intellectually there as an undergraduate more than forty years ago, and that only the right to exercise freedoms which do not offend is now desired.

Despite this entirely reasonable statement of principle, doubtless taught by the illustrious academics at Yale, the author attributed the YUP decision to fear, and expressed the odd view that

I would be prouder to belong to a university whose officials censored a book because of what they believed in, and not because of what they feared.

But, as demonstrated above, fear had nothing to do with YUP's selfless and productive decision. Voluntarily going into harm's way, by encouraging attacks on one's adherence to noble principle is not inspired by fear. It is inspired by courage and willingness to suffer the adverse consequences of one's actions. ~~Lux et Vomitus~~ Lux et Veritas! -- a motto now engraved on the hearts of all Yalies in Latin, Arabic, and also for the moment in Hebrew.

Robert E. Lee -- A Remembrance

2009-10-11T14:48:00.000-07:00

There are and have been few like him.

General Robert E. Lee died one hundred and thirty-nine years ago on October 12, 1870 (now celebrated as Columbus Day) at the age of sixty-three. We, as a nation, have done with heroes and few remember him. The anniversary of his death will likely go generally unnoticed and unremarked upon. Yet he inspired a nation, or at least a fledgling nation, the Confederate States of America. Those who reminisce about him do so because of his devotion to honor, duty, integrity, for his compassion and for his wisdom. He had those now sadly rare qualities in rare abundance; although I (obviously) never knew him, I miss the likes of him today. When I read a news story dealing with our congresscritters, our president, or His administration, I scratch my balding head and wonder what happened.

The anniversary of General Lee's death having been called to my attention by an article in the Canada Free Press, I read again Rod Cragg's Robert E. Lee, General, A commitment to Valor. I could not find a link to the book on Amazon or even on Google, but somehow I had bought a copy at a used book store in rural Panamá. This article is largely based on it. This song is about General Lee's life.

General Lee's father, "Light-Horse Harry Lee," distinguished himself as a cavalry commander in the Continental Army during the American Revolution. Graduated from the U.S. Military Academy at West Point in 1829, Robert E. Lee eventually rose to the rank of Colonel as commander of the U.S. Army's Texas Department in 1860. Although he considered slavery a "moral and political evil," he declined command of U.S. forces when Virginia seceded and resigned from the U.S. Army to take command of Virginia's military forces. He felt that it was his duty to do so; his sense of honor compelled him. "I did only what my duty demanded; I could have taken no other course without dishonor." He valued honor highly, and because of it chose to fight on behalf of his home, Virginia, rather than for the Union. On April 20, 1861, he wrote to the Secretary of War:

Sir, I have the honor to tender my resignation of my command as colonel of the First Regiment of Cavalry.

Very respectfully your obedient servant,
R.E. Lee, Colonel First Cavalry

In a letter to General Winfield Scott, Commanding, United States Army, Lee wrote on 20 April 1861,

General: Since my interview with you on the 18th instant, I have felt that I ought not longer retain my commission in the army. I therefore tender my resignation, which I request you will recommend for acceptance. It would have been presented at once but for the struggle it has caused me to separate myself from a service to which I have devoted the best years of my life, and all the ability I possessed.

During the whole of that time -- more than a quarter of a century-- I have experienced nothing but kindness from my superiors, and the most cordial friendship from my comrades. To no one, General, have I been as much indebted as to yourself, for uniform kindness and consideration, and it has always been my ardent desire to merit your approbation. I shall carry to the grave the most grateful recollections of your kind consideration, and your name and fame will always be dear to me.

Save in defence of my native state, I never desire again to draw my sword. Be pleased to accept my most earnest wishes for the continuance of your happiness and prosperity, and believe me, most truly yours,

R.E. Lee.

As Lee came riding alone into Richmond [after his surrender], his old followers immediately recognized him and followed him to his home where, with uncovered heads, they saw him to his door. Then they silently dispersed.

After four years' arduous service, marked by unsurpassed courage and fortitude, the Army of Northern Virginia has been compelled to yield to overwhelming numbers and resources.

I need not tell the survivors of so many hard fought battles who have remained steadfast to the last, that I have consented to this result from no distrust of them, but feeling that valor and devotion could accomplish nothing that could compensate for the loss which would have attended the continuation of the contest, I have determined to avoid the useless sacrifice of those whose past services have endeared them to their countrymen. You will take with you the satisfaction that proceeds from the consciousness of duty faithfully performed, and I earnestly pray that a merciful God may extend to you His blessing and protection. With an increasing admiration of your constancy and devotion to your country, and a grateful remembrance of your kind and generous consideration of myself, I bid you an affectionate farewell.

Robert E. Lee, General

What's With the Birthers?

2009-08-10T08:22:00.000-07:00

First published by BlogCritics on 7 August 2009

Even if President Obama was born in Kenya, it's too late to do much about it.

According to a 2 August "breaking news" item from WorldNetDaily, a purported copy of President Obama's 1961 Kenyan birth certificate, certified by a Kenyan official in February 1964, has been found. The linked article reproduces a copy. As the article properly notes, a few weeks ago a different Kenyan "birth certificate" had been discovered by someone else and attempted to be marketed on e-bay; it was determined to be a fraud. It seems likely that this one may also be a fraud; it has been so claimed, and the some of the claims at first glance make some sense. On 4 August, an article published in Australasia seemed to claim that the Kenyan "birth certificate" was a forgery based on an Australian birth certificate issued to an Australian. Oh well. Maybe the Birthers are just as nuts as the Truthers, an apparently more reputable bunch who believe that 9-11 was a put up job by President Bush. Then there are those who think that President Obama's policies are increasing the national debt. How could seventy-one percent of the voters believe in such heresy? Still, "88% of Republicans blame the president’s policies, compared to 52% of Democrats. But 79% of voters not affiliated with either party agree." Tsk Tsk! And, as all good people know, those who oppose President Obama's magnificent health care reforms are part of a wicked Republican cabal, mendaciously spreading falsehoods. President Obama and his friends have told us so. We're going to get Obamacare, like it or not; we need it! We had better like it.

I have no absolutely no idea where President Obama was born. However, in view of the recurrent discussion about birth certificates, it seems worthwhile to suspend disbelief briefly and to explore what could likely happen were a bona fide Kenyan birth certificate for President Obama to appear. Such an appearance would raise the important constitutional and practical question of --- "So What?"

As most everyone is by now well aware, Article II, Section 1 of the United States Constitution provides:

No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.

It seems clear on the face of things that if President Obama was born in Kenya, he is not a "natural born Citizen" of the United States and is therefore constitutionally unqualified to be the President. The practical and legal problems revolve around the fact that he was elected to the office, sworn in as president, and in the intervening more than six months has signed into law several major pieces of legislation.

The only constitutional process for removing a sitting president is impeachment by the House of Representatives and conviction by the Senate under Article II, Section 4 for "Treason, Bribery, or other high Crimes and Misdemeanors." Under Article III, Section 3, treason

against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. (emphasis added)

Anything may be possible, but it would be a big stretch to characterize presidential lack of constitutional qualification as "treason" as defined in the Constitution. No element of bribery has thus far surfaced, and it seems unlikely that any will. That leaves "high crimes and misdemeanors," the meanings of which are more ambiguous.

If President Obama took office knowing that he was not a natural born citizen of the United States, that might possibly constitute a high crime or misdemeanor. However, this is unclear because there generally must be a law prohibiting specific conduct to make it a crime. There is no federal statute making it a crime to become the president knowing that one does not possess the requisite constitutional qualifications. There probably should be, but there isn't. Until recently, there had been no apparent need for one.

If these hurdles could be got over, there would be others. What is meant by "knowing?" No one actually has personal knowledge as to when or where he was born. I "know" that I was born in Washington, D.C. on 17 June 1941, not only because my parents later told me and I trust them, but also because I have seen the original of my birth certificate which so states. But I have no first hand, personal knowledge. Even had I been fully aware of my immediate surroundings at the moment of birth, a state of awareness which no other infant has ever experienced, there is no way that I could then have differentiated between a maternity hospital room in Washington, D.C. and one in Kenya. Despite my lack of actual personal knowledge, I have many times claimed to have been born on that date and at that place, in official documents executed subject to penalties for perjury.

If Obama falsely and knowingly swore in an official document that he was born in Hawaii, he could perhaps be impeached and convicted on the basis of perjury. There is no evidence of which I am aware of his having taken an oath to that effect; if such evidence exists, and should it be proved that he was not born in Hawaii, perjury would probably be an impeachable offense.

In any event, for impeachment and conviction of "high crimes and misdemeanors," on the basis of perjury or (improbably) without a criminal statute, it would be necessary for President Obama to have had some clear knowledge that he was not a "natural born Citizen" when he assumed office. Where might evidence of such knowledge be found?

If Candidate Obama actually believed that he had not been born in the United States, but knowingly claimed falsely that he had been, evidence of that would certainly be relevant to his state of mind. Proving what someone "believes" is never an easy task, unless the believer has written or spoken of his beliefs. President Obama has probably never expressed, publicly at least, a belief that he is not a "natural born" citizen. It has been claimed (probably correctly) that President Obama's Hawaiian birth certificate is not probative of his birth in Hawaii, even though copies of it were posted on his campaign web site. It seems reasonable to presume that Candidate Obama was aware of the posting. Whether he believed that the Hawaiian birth certificate was spurious is a different question, and a big one.

If President Obama, as a youth, travelled on a passport issued by a foreign country, that could be probative that he was then a citizen of another country. There are two possibilities here:

1. Obama was a United States citizen but obtained and used a foreign passport. If he did not thereby intend to renounce United States citizenship, then he did not forfeit it.

2. Obama was not then in fact a United States citizen, and therefore used a foreign passport. This would be very good evidence that he knew that he was not constitutionally qualified as "natural born" when he sought and accepted the presidency.

There are many questions and few answers. In any event, it seems very unlikely that the present House of Representatives would impeach President Obama even if a newly discovered and clearly valid Kenyan birth certificate proved beyond question that he was born in Kenya; it also seems unlikely that the present Senate would convict. In practice, an impeachable offense boils down to what the House and the Senate say is it is. Former President Ford said substantially the same thing. Currently, the Democrats control both houses of the Congress, and President Obama seems to control the Democrats -- if not completely, then still sufficiently to ward off a successful impeachment. The very first impeachment and conviction in United States history of a (Democratic) president seem so unlikely to occur while there is a Democratic Party majority that the subject may not even be worth discussing.

Impeached and convicted or not, the constitutional crisis would be draconian in the extreme. One possible solution would be for President Obama to resign in order to spare the country lots of turmoil. Then, or if President Obama were removed by the impeachment process, Vice President Biden would become the president, making Speaker Pelosi next in line. This might well be even worse than having President Obama remain in office. Alternatively, President Obama might simply remain in office, a much weakened "lame duck" president, quite probably facing an opposition Congress following the 2010 elections. That might well be the best possible outcome.

There is at least one other possibility, although it holds at best modest facial appeal. All of the laws enacted since 20 January might be attacked as invalid because signed by a spurious president. Aside from the fact that these attacks would take a long time to make their tortured ways through the courts, they would if successful cause a big mess. What about appropriations bills? The Government needs funding. We joke that it would be neat if the Government simply stopped, but realistically that would have some pretty undesirable consequences: the military needs to pay troops and even to feed and arm some of them. Could troops remain active in Iraq and elsewhere? Could they even be brought home? Perhaps they could hitchhike. Like it or not, the Government needs to function, and this requires such mundane things as electricity, salaries, aircraft fuel, and lots more, all of which costs money.

No matter what happens, President Obama will most likely remain in office at least until 20 January 2013. There is a useful teaching point in all of this, however. The "forth estate," the press, let the country down very badly during the primaries and general election campaigns. Rather than pursue even tepidly the question of Candidate Obama's constitutional qualifications, the press grossly disparaged anyone who raised such questions and made sick jokes of the whole thing. That spectacle continues. If a valid Kenyan birth certificate were to surface, it might wake up the press; if that were not to do so, then nothing would.

There are a few things which might be done to avoid similar crises in the future. The states could require proof of constitutional qualification before any candidacy is certified. There are constitutional qualifications for all federal elected officials, and the constitutions of many states likely also specify qualifications for office. There is a move afoot to push for a federal law so providing. The political parties could impose requirements that prior to primaries, candidates make reasonable showings, under oath, of their constitutional qualifications. The Congress might some day pass legislation criminalizing the assumption of the presidency knowing that one is not constitutionally qualified. Maybe some day, another president might sign such legislation, making it the law of the land. Until now, these have been pipe dreams. Now, in the probably unlikely event that a valid Kenyan birth surfaces, there may be sufficient impetus.

Strange Events May Be Brewing and Honduras is Their Focus.

2009-07-09T10:29:00.000-07:00

First published at BlogCritics on 9 July 2009

Mediation of the Honduran Situation by President Arias May Well be a Good thing.

The selection of Costa Rican President Arias to mediate the dispute between former Honduran President Zelaya and the Government of interim President Micheletti appears to have been a wise one. It may be useful to speculate a bit about why and by whom President Arias was selected, as well as about the likely impact of these things on the power of Venezuelan President Chávez in Latin America.

The possible role of President Arias as a mediator was suggested to Zelaya during his 7 July Washington meeting with Secretary Clinton, and Zelaya agreed to it. Secretary Clinton promptly telephoned President Arias to ask for his help and he agreed. However, her's was not the only contact with President Arias regarding the Honduran situation: he had been asked the day before by Honduran interim President Micheletti to consider playing such a role. I am unaware of any reports indicating that Chávez had sought Arias' selection, and the United States Government has said nothing to indicate that it has been in discussions with the interim Government of Honduras; it seems not to have been.

Zelaya and Micheletti went to Costa Rica as contemplated, and are to meet separately with Arias. Their positions, at least for now, are unchanged: Zelaya says he must be reinstated and Micheletti says that's out of the question. As I suggested in the linked article, this may prevent, or at least postpone, a military confrontation between the Honduran military and forces from other countries, principally Chávez ally, Nicaragua.

During the 1980s, President Arias played a substantial role in efforts to decrease the influence of the United States over much of Latin America and to bring some measure of stability to the region. He received a Nobel Peace Prize in 1987 for doing so. However, President Arias is not very chummy with Chávez. During his barely successful campaign for reelection as President of Costa Rica in 2006, Arias' principal opponent was Ottón Solis, much favored by Chávez.

Things seem to be happening behind—but not all that far behind—the curtain. On 7 July, the same day that she met with Zelaya and telephoned President Arias, Secretary Clinton submitted to an interview by Globovisión. The interview was at the State Department in Washington. Globovisión, one of the very few broadcast outlets in Venezuela still able to criticize the Chávez government, has been under vigorous attack by that Government, and may soon be closed; its principals are under criminal charges. Here are comments by a blogger in Venezuela, who does not much care for Chávez:

Questions were standard and Hillary responses standard . . . Still, she made it clear that things in Venezuela are not kosher and that she is aware of it.
***
No matter what, the interview does not solve anything, does not protect Globovisión from being closed though it makes very clear that the price Chavez will have to pay for it will be very high. Interestingly, the Honduras part . . . revealed how irrelevant Venezuela will become as negotiations keep going.
***
As soon as the interview was over I switched to VTV to watch La Hojilla reaction. I was not disappointed as Mario Silva was livid, as furious as I ever saw him. . . . Proving that the interview hit a raw nerve. The top was Silva belching "who named Arias?" betraying his resentment at 1) his boss not being on the forefront anymore and 2) that Arias did the most to block a commie takeover of Central America 20 years ago.

According to Alberto Federico Ravell, head of Globovisión, interviewed on 8 July in Miami as he returned to Venezuela from Washington, he is convinced that

Clinton supports Globovisión's efforts to speak out against Hugo Chávez's government. . . .In every thing she said I was seeing a red beret . . . .It was incredible that the same day she met with ousted Honduran President Zelaya, she also met with representatives from a television channel that is seen by Chávez as part of the opposition.

I think that the full transcript of the Clinton interview confirms that she was, indeed, talking about Chávez, whose media censorship continues unabated. A somewhat different take on the interview is provided here. If, as claimed in that article, Secretary Clinton wanted to "to lower the temperature" in the United States' relations with Venezuela, neither her Globovisión appearance itself, nor statements such as these may have been the best way to go about it:

Clinton said that what the White House hopes to see "over the next months in Venezuela is a recognition that you can be a very strong leader and have very strong opinions without trying to take on too much power and trying to silence all your critics."

"So I think there are ways that the current government in Venezuela could maintain a very strong presence without, in any way, raising questions about the commitment to democracy," the secretary said.

A reminder to viewers of the television station which Chávez is about to close that he shouldn't silence all his critics could hardly have been warmly received by Chávez.

Zelaya's attempt to amend the Honduran Constitution to eliminate the presidential term limit, and later his attempt to return to Honduras, had been vigorously supported by Chávez, who had supplied the aircraft in which he attempted to return to Honduras. It has been reported that Chávez was simultaneously on the telephone with Zelaya, Ortega of Nicaragua and Fidel Castro of Cuba during Zelaya's aborted flight to Honduras. It seems obvious that Chávez's standing in Latin America would have been enhanced by a spectacularly bloody reception of the former President on 6 July, and that it has been diminished by the failure of Zelaya's return and by the selection of President Arias as a mediator.

Despite Chávez's apparent earlier successes in helping to create the Constitutional crisis in Honduras and in pushing the UN, the OAS and ALBA to make it worse, things were not going entirely as he might have wished.

* Shortly before Zelaya's attempted return, several members of the OAS—an organization dominated by Chávez and his allies-- apparently tried to dissuade Zelaya from making the attempt.

* Argentine President Kirchner was one of the dignitaries who flew to El Salvador and thence to Nicaragua to be with Zelaya following his attempt to enter Honduras. Her Peronista party had lost very badly in Argentina's 28 June congressional elections, and her husband resigned as the head of the Peronista party on 30 June; Chávez had been among the principal supporters of their party.

* The current President of Panama in June won a decisive victory with more than sixty percent of the vote over his opponent, a big Chávez supporter. During his inauguration address he announced, "As president, I will do everything within my reach to advance the ideals of a free economy, challenging the different ideological pendulum that Latin America has."

Nor are things going well for Chávez domestically. Here is a link to an article I wrote about that just over a month ago.

Hope perhaps springs eternal, and I may have too much of it. Still, during the days immediately after the "coup" in Honduras, Secretary Clinton's State Department seemed to be at least marginally less supportive of Zelaya's position than was President Obama. At a 30 June State Department briefing, it was stated that "it’s not up to us to determine what’s in line with the [Honduran] constitution." President Obama was quoted, at about the same time, as saying that the weekend ouster of Zelaya was a "not legal" coup and that Zelaya remains the country's president. These statements can be read to suggest a difference of opinion.

According to an article in Power Line by an author with whom I frequently agree, and with whom I very much agree on the nature of the Honduran "coup,"

Obama's position on Honduras is part of an emerging, and very sad, pattern. His bogus catchphrases may vary ("meddling," "illegal," or whatever), but the result always seems to be the same. Whether the venue is Honduras, Russia, or Iran, Obama instinctively sides, in the first instance, with the enemies of freedom and the rule of law. And it doesn't hurt at all if that party is also hostile towards the U.S.

I don't know whether Secretary Clinton's interview on Globovisión was cleared by President Obama. However, her appearance on a Venezuelan television station sufficiently at odds with Chávez that it is likely to be thrown off the air soon, and in the course of the interview to appear to challenge Chávez's silencing of his critics—was certainly a major step. It was one which I suspect would ordinarily have had to be approved by the President. Might these things at least hint that President Obama may yet see that Chávez et al are not the sort of friends he or the United States want? Or might they indicate that Secretary Clinton is looking for a graceful exit from the Obama administration ostensibly over foreign policy? She is a crafty person whom I don't much like, but it will be quite interesting to see what happens over the next few months.

Presidents Chávez, Obama et al Are Meddling Egregiously with Honduras.

2009-06-30T14:50:00.000-07:00

First published by BlogCritics on 30 June 2009

The United States gave the lawfully deposed President of Honduras full support, after giving meager support to the Iranian protesters.

Over the weekend, Honduras was about to have a referendum on whether its Constitutional prohibition against a sitting president running for a second term should be modified. This referendum was proposed by President Zelaya, whose term in office expires next year; an election is to be held in November.

The Constitution expressly states that its provisions concerning the presidential term of office and prohibiting reelection are among the very few provisions not subject to change.

Title VII, with two chapters, outlines the process of amending the constitution and sets forth the principle of constitutional inviolability. The constitution may be amended by the National Congress after a two-thirds vote of all its members in two consecutive regular annual sessions. However, several constitutional provisions may not be amended. These consist of the amendment process itself, as well as provisions covering the form of government, national territory, and several articles covering the presidency, including term of office and prohibition from reelection.

The text, in Spanish, of Article VII is provided in a footnote. Despite a ruling by the Honduran Supreme Court that he could not constitutionally do so, President Zelaya determined to go forward with the referendum.

The news reports on what happened next are often unclear and frequently contradictory; to some extent, the massive media coverage of Michael Jackson's death may have displaced them. Here, however, is my best effort at offering a summary distilled from multiple sources: Sometime earlier this year, President Zelaya decided that the Constitution should be amended to permit him to run for another term. The Congress -- controlled by the party of which President Zelaya is a member -- refused to go along. The Bolivarian Republic of Venezuela provided the necessary ballots, and President Zelaya ordered the military to distribute them for a referendum to be held on 28 June. The Supreme Court determined that the referendum was violative of the Constitution, and ordered the top military commander, Gen. Romeo Vásquez Velásquez, neither to distribute the ballots nor in any other way to carry out the logistics of the vote as the military would normally do in elections. General Vásquez Velásquez so advised President Zelaya, who promptly fired him. The Supreme Court ordered him reinstated, and President Zelaya refused. On 28 June, President Zelaya led a group of his followers to the military installation where the ballots were being stored, took them, and had his followers distribute them. The Congress voted unanimously to appoint a committee to analyze the situation and investigate President Zelaya for his refusal to respect the Constitution and the orders issued by other branches of government. He nevertheless carried on with his preparations, and offered only a cosmetic change to the referendum: on Saturday night (27 June), he verbally stated that the referendum would not be binding, but confirmed that it would go ahead as planned the next day. A few hours before the opening of the polling stations, the Supreme Court ordered the president’s arrest and removal from office. The army carried out the order, arrested Mr. Zelaya and transported him to Costa Rica. A reason for doing so was to avoid a bloodbath in the face of the threat of other governments interfering in Honduras’ internal affairs, among them Venezuela and Nicaragua. The likelihood of substantial popular protests over the ouster of Mr. Zelaya seemed small, since Mr. Zelaya had low support -- polls showed around 30 percent before his ouster -- "as many Hondurans were uncomfortable with his tilt to the left in a country with a long conservative, pro-Washington position." As indicated below, that bloodbath now seems quite possible, largely due to outside interference from Washington, Caracas and elsewhere. The referendum was not held, and the Legislature, in emergency session, unanimously selected its president as the interim President of Honduras as provided by Honduran law, and stated that a presidential election would be held in November, as scheduled. The interim President is of the same political party as former President Zelaya.

The ouster of President Zelaya has frequently been termed a "coup." That seems, to me at least, to stretch the word well beyond its commonly understood meaning. The Honduran military acted to execute the lawful orders of the Supreme Court and with the blessing of the "democratically elected" legislature; I have seen no indication that the military instigated the ouster. Nor is Honduras under military control; it has an interim civilian president, properly selected by unanimous vote of the legislature in compliance with the laws of presidential succession.

The United States Government was very active during the days leading up the exile of Mr. Zelaya. According to an article in the New York Times,

American officials did not believe that Mr. Zelaya’s plans for the referendum were in line with the Constitution, and were worried that it would further inflame tensions with the military and other political factions, administration officials said.

Even so, one administration official said that while the United States thought the referendum was a bad idea, it did not justify a coup.

I do not understand that it is the proper business of the United States Government to dictate to a foreign government on such matters; the decision whether another country should ignore its Constitution in order to maintain tranquility and thereby please the United States Government is not for the United States Government to make. This is particularly the case here, since the United States Government recognized that the proposed referendum was not "in line with the Constitution" and was a "bad idea."

The situation in Honduras provides an interesting comparison to the recent situation in Iran. President Chávez of Venezuela, who had expressed great solidarity with his ally, the ruling theocracy in Iran, during the recent unpleasantness there, came quickly and vigorously to the defense of one of his other allies, President Zelaya. President Chávez said on state television that if his ambassador to Honduras were killed, or if troops entered the Venezuelan Embassy, the "military junta" would be entering a de facto state of war. Although he cited no credible evidence that these things were likely to occur, he put the armed forces of Venezuela on alert. "We will bring them down, we will bring them down, I tell you," he said, while hundreds of his supporters gathered outside Venezuela's presidential palace in solidarity with Zelaya. References to the current Honduran Government as a "military junta" were certainly erroneous; that, and characterizing the transition of power as a "coup" certainly are conducive to massive unrest. They would appear to serve no any other, legitimate, purpose. Ecuadorean President Rafael Correa, an ally of President Chávez, said that he would also support military action if Ecuador's diplomats or those of its allies were threatened.

President Obama came quickly but with slightly less vigor to Mr. Zelaya's defense as well.

"I call on all political and social actors in Honduras to respect democratic norms, the rule of law and the tenets of the Inter-American Democratic Charter," Obama said. "Any existing tensions and disputes must be resolved peacefully through dialogue free from any outside interference."

Although that doesn't sound like much interference, and in fact asserts that there should be none, it omits any mention of President Zelaya's refusal to engage in dialogue, even with the active encouragement of the United States Government. Moreover, the Obama Administration inconsistently "called for Mr. Zelaya's return to office as legitimate president of Honduras. Secretary Clinton accused Honduras of violating "the precepts of the Interamerican Democratic Charter" and said it "should be condemned by all." The Governments of the United States and of Venezuela thus supported the Honduran status quo ante; both ignored President Zelaya's defiance of Honduran law, of the Honduran Constitution, of the Honduran Supreme Court and of the Honduran Legislative branch. The new Interim President of Honduras, Roberto Micheletti said, "nobody, not Barack Obama and much less Hugo Chavez, has any right to threaten this country."

President Chávez was to meet with Mr. Zelaya in Nicaragua on 29 June. Now, Argentina's president and the head of the OAS plan to accompany Mr. Zelaya as he tries to return to Honduras. The World Bank has "paused" all program lending. Mr. Zelaya plans to speak at the United Nations on 30 June. Meanwhile, President Chávez and his friends are trying their best to cause all of the confusion and violence of which they are capable.

President Chávez had rejected the recent Iranian protests and blamed them on outside interference:

"We call on the world to respect Iran because there are attempts to undermine the strength of the Iranian revolution," said Chavez on Sunday in his weekly radio and television address.

"Ahmadinejad's triumph was a triumph all the way. They are trying to stain Ahmadinejad's triumph and through that weaken the government and the Islamic revolution. I know they will not succeed," Chavez said.

The Venezuelan Foreign Ministry also issued a statement blasting "the fierce and unfounded campaign from outside [of Iran] to discredit" Iran's president.

President Obama had tried to walk a very fine line in Iran -- too fine a line, in my opinion -- so as not to appear to "meddle" in its internal affairs.

The United States Government evidently viewed expressions of support for the Iranian protesters as meddling in internal Iranian affairs, yet it saw fit to express extraordinary support for Mr. Zelaya by demanding that Honduras depose an interim president unanimously selected as provided for in the Honduran Constitution, and return to power a president who had sought to violate the Honduran Constitution and whose arrest had been ordered by the Supreme Court. Although President Obama called on Honduras to respect "democratic norms and the rule of law," he evidently did not mean the norms, Honduran laws and Honduran Constitution as interpreted by the Supreme Court of Honduras.

If it is the policy of the United States Government not to meddle in the internal affairs of other countries, there are stark differences in its treatment of the Iranian theocracy and the Government of Honduras. There are no significant differences in the treatment of the Iranian theocracy and the Government of Honduras by President Chávez of Venezuela, and I would expect none; he desires permanent and total power over Venezuela for himself, and evidently views any attempts at diminishing the power of governments sympathetic toward him as counterrevolutionary and therefore very bad. I do not think that President Obama shares such views, and certainly hope that he does not. Nevertheless, I consider the current Washington approach to the crisis in Honduras to be grossly confused. Whatever may be President Obama's motives, I think that the United States Government made a very bad mistake in trying to upset the orderly transfer of power in Honduras.

*Article VII states, in Spanish:

CAPITULO I
DE LA REFORMA DE LA CONSTITUCIÓN

ARTICULO 373.- La reforma de esta Constitución podrá decretarse por el Congreso Nacional, en sesiones ordinarias, con dos tercios de votos de la totalidad de sus miembros. El decreto señalará al efecto el artículo o artículos que hayan de reformarse, debiendo ratificarse por la subsiguiente legislatura ordinaria, por igual número de votos, para que entre en vigencia.

ARTICULO 374.- No podrán reformarse, en ningún caso, el artículo anterior, el presente artículo, los artículos constitucionales que se refieren a la forma de gobierno, al territorio nacional, al período presidencial, a la prohibición para ser nuevamente Presidente de la República, el ciudadano que lo haya desempeñado bajo cualquier título y el referente a quienes no pueden ser Presidentes de la República por el período subsiguiente.

CAPITULO II
DE LA INVIOLABILIDAD DE LA CONSTITUCIÓN

ARTICULO 375.- Esta Constitución no pierde su vigencia ni deja de cumplirse por acto de fuerza o cuando fuere supuestamente derogada o modificada por cualquier otro medio y procedimiento distintos del que ella mismo dispone. En estos casos, todo ciudadano investido o no de autoridad, tiene el deber de colaborar en el mantenimiento o restablecimiento de su afectiva vigencia.
Serán juzgados, según esta misma constitución y las leyes expedidas en conformidad con ella, los responsables de los hechos señalados en la primera parte del párrafo anterior, lo mismo que los principales funcionarios de los gobiernos que se organicen subsecuentemente, si no han contribuido a restablecer inmediatamente el imperio de esta Constitución y a las autoridades constituidas conforme a ella. El Congreso puede decretar con el voto de la mayoría absoluta de sus miembros, la incautación de todo o parte de los bienes de esas mismas personas y de quienes se hayan enriquecido al amparo de la suplantación.

The United States Government Should Not Remain Neutral During the Iranian Protests.

2009-06-24T18:04:00.000-07:00

First published at BlogCritics on 23 June 2009.

There are circumstances when neutrality is wise; neutrality in the face of outrageous human rights violations is unwise.

Corporations, in my view, have one basic obligation, and it is to those who invested money in them. That obligation, in most circumstances, is to make money for its investors -- not to promote freedom and not to ensure the well being and comfort of corporate employees, except as doing so increases their earnings. It is for those who invested in the corporation to decide whether and how to use their own resources to support worthy causes. A business corporation has no mandate to diminish the gains of its investors by using what should be their money to support what its officers and directors consider to be worthy causes.

The United States Government is, in many respects, similar to a corporation. Her primary obligation is to her citizens, which she should meet by keeping them safe and otherwise generally staying out of their way. In most circumstances, the United States Government should offer support to, or oppose, other governments only when that benefits her own citizens. On this basis, if Country A attacks Country B, and there are no pesky treaty obligations standing in the way, the United States Government should normally intervene only when it appears to be in the best interests of United States citizens for her to do so; no matter that Country B may be a democratic, freedom loving country or that Country A may be a dictatorship lusting after the resources of Country B.

The problem here, as I see it, lies in the words "in most circumstances;" those words suggest that there may be cases in which the United States Government should seriously consider doing things not likely to promote the safety of her own citizens -- directly or even indirectly. Such cases are probably uncommon. They may include providing relief to people in other countries suffering from natural disasters. They may include spending money to support literacy and medical efforts in other countries. Some would probably say that they include sending food to the people of North Korea, many of whom are starving, even though this may help North Korea to keep her armed forces well fed and better able to attack our ally South Korea. These things cost money and detract, pro tanto, from the ability of the United States Government to ensure the safety of her own citizens and otherwise to stay out of their way. Contrary to the apparent opinion of some, the United States Government's supplies of money and other resources are finite.

Most of those now protesting the Iranian election are not starving, nor are they the innocent victims of a natural disaster. Still, I think it the obligation of the United States Government to come to their aid in whatever way is within her means and is likely to assist them. There are times when even a country should strive to encourage those freedoms which she claims to hold dear -- even if it costs money and even if a consequence may be to irritate an existing, already hostile, Government such as that of Iran.

It is claimed by some that, due to her horrible record in the past, the United States Government has no moral authority now to encourage freedoms elsewhere. I don't accept that basic thesis, but even accepting it for the sake of argument, it seems very unlikely that by remaining indifferent to the situation of the Iranian protesters will help the United States Government to regain any moral authority; to the contrary, it will further erode what little she is said to have.

The United States Government is not a human being, and generally should not behave as though she were. A human being, seeing another human or a dog lying injured in the road should, I think, stop and render such assistance as he can. If a delay in getting to the grocery store or even worse results, so be it. "Good" people do that sort of thing. That human reaction is probably at the root of many of the cases in which the United States Government uses the resources of her citizens to assist those elsewhere in time of crisis.

I think that's what the United States Government should do in the present Iranian situation. Even if the United States has not done enough to support human freedom in the past, it is now high time for her to do so.

What can't and shouldn't the United States Government do? I have not heard any cries for her to send in troops, and think that to do so would be a very bad mistake. The imposition of further sanctions on the Iranian Government would not likely help, and would do far more harm to the Iranian citizens who are now opposing that Government than to the Government itself. At best, further sanctions would reiterate to the Iranian Government what she already knows -- that other countries are unhappy with her actions. That has not worked well in the past, and seems unlikely to do so now.

The United States Government should and can come down firmly on the side of the Iranian protesters by stating, clearly and not in "diplospeak," that the protesters are right to oppose their Government's actions, and that their Government is wrong in violently repressing them. President Obama has done this to a minor extent, and he continues to do a bit more, a little at a time. However, he still needs to do more; with passion and not as though he had to. He should use the office of the Presidency to emphasize the recent news coverage of the Iranian Government's highly dubious election and of the violent repression of those protesting it, as well possibly as any independent intelligence gathered by the United States Government and (with their consent) by her allies; he should say that He, personally and as the President of the United States, agrees with the voices in the United States and elsewhere damning the Iranian Government's actions. He should say that the United States Government will provide all of the moral support it can, but will not send in troops or otherwise meddle in any physical sense. He should express the strong hope that those willing to give their blood and their lives succeed in overthrowing an illegitimate Iranian Government, and the belief that if they do not give up, they will succeed. He might even consider using a minor variation on his campaign phrase, "Yes You Can!" He should extend the hand of the United States People to them, and promise that when they succeed, he will make it his priority to extend diplomatic recognition to their new Government and to provide whatever assistance it may request and which does not undermine United States treaty obligations. If, as I understand to be the case, the Iranian people seek and badly need such support, he should give it to them, unstintingly and without unnecessary reservations. Unlike a corporation looking only after its profits, or a government looking only after her own the parochial interests, the United States Government should do all within its power to assist those Iranians who want voices in a legitimate Government of their own.

President Obama has said that having such voices is a universal human right.

Democracy, rule of law, freedom of speech, freedom of religion — those are not simply principles of the West to be hoisted on these countries, but rather what I believe to be universal principles that they can embrace and affirm as part of their national identity.

Now, President Obama has a very good chance to show that he meant what he said. He should do it before it's too late.

Judge Sotomayor Belongs to a (GASP) Women's Organization!

2009-06-19T11:28:00.000-07:00

What's good for the goose is good for the gander.

First published by BlogCritics on 19 June 2009

Judge Sotomayor is catching flack for having accepted, about one year ago, an invitation to join Belizean Grove, a small, (from one hundred and fifteen to one hundred and twenty five members), apparently intimate and rather exclusive, invitation-only organization which has only female members. According to its website, Belizean Grove is

a constellation of influential women who are key decision makers in the profit, non-profit and social sectors; who build long term mutually beneficial relationships in order to both take charge of their own destinies and help others to do the same.

To this end, the organization invites

members [who] are highly accomplished leaders in a wide venue of fields, are dedicated to giving back to their communities, have a sense of humor and excitement about life and are willing to mentor and share connections. With this vision in mind, members are invited not only for their professional accomplishments but also for their generosity and compatibility.

According to the founder of the organization,

Ms. Stautberg, who founded the private club nine years ago, . . . the group is a response to the all-male clubs that have long fostered business connections and policy links for powerful men.

"I think we all need support in our lives," Ms. Stautberg said. "We need time to relax; we need time to think. We're all being nibbled at constantly all day, by e-mail." (emphasis added)

The principal legal question involved in this minor kerfuffle is whether membership in such organizations as the Belizean Grove violates Canon 2C of the Code of Judicial Conduct, which discourages judicial membership in organizations which "invidiously discriminate" on the basis of sex, race and national origin, unless they try to eliminate the discrimination. Obviously, the Belizean Grove discriminates on the basis of sex; men aren't invited and presumably can't join no matter how greatly accomplished, sharing or humorous they may be. But does it discriminate invidiously?

The adverb "invidiously" presumably is not redundant, and must therefore have some meaning; otherwise it would not be there. That's why the commentary associated with Canon 2C goes on at some length trying to explain what "invidious" means in context. This is

often a complex question to which judges should be sensitive. The answer cannot be determined from a mere examination of an organization's current membership rolls but rather depends on how the organization selects members and other relevant factors, such as that the organization is dedicated to the preservation of religious, ethnic or cultural values of legitimate common interest to its members, or that it is in fact and effect an intimate, purely private organization whose membership limitations could not be constitutionally prohibited. . . . Other relevant factors include the size and nature of the organization and the diversity of persons in the locale who might reasonably be considered potential members. Thus the mere absence of diverse membership does not by itself demonstrate a violation unless reasonable persons with knowledge of all the relevant circumstances would expect that the membership would be diverse in the absence of invidious discrimination. Absent such factors, an organization is generally said to discriminate invidiously if it arbitrarily excludes from membership on the basis of race, religion, sex, or national origin persons who would otherwise be admitted to membership. (emphasis added)

The commentary associated with Canon 2C cites for guidance by analogy several Supreme Court cases in which organizations had been found discriminatory and therefore subject to adverse action under State statutes. One case involved a popular eating establishment open only to men. Another involved Rotary Clubs International, with "19,788 Rotary Clubs in 157 countries, with a total membership of about 907,750." Membership was limited to men. Another involved the United States Jaycees, with "295,000 members in 7,400 local chapters affiliated with 51 state organizations." Full membership was restricted to young men. In each case, no Constitutional right of association was found to be sufficiently infringed to outweigh State interests in eliminating discrimination on the basis of sex. A key factor in each case was that the group involved was so large as to vitiate any suggestion that "it is in fact and effect an intimate, purely private organization . . . ."

Hence, it is apparently not in contravention of Canon 2C for a judge to belong to a very small, private and selective organization membership in which is limited to women and which is dedicated to the preservation of "religious, ethnic or cultural values of legitimate common interest to its members." Belizean Grove is very small, and it apparently invites for membership only a few women with "particular cultural values," which they presumably share. It does not appear to matter whether those values are unique to women.

There has been some discussion of the meaning of Canon 2C, as to which there is probably legitimate disagreement. For example, here a writer for the National Review seems to come to a different conclusion. Here a writer for Power Line agrees with him. Legal issues frequently produce divergent views, and that's probably a good thing; otherwise, what would lawyers do?

There are those who claim that membership in such an organization is bad, since it discriminates on the basis of sex, and that Judge Sotomayor's membership must somehow be explained away during her confirmation hearings. Based on my reading of opinions in which she joined as a judge on the Second Circuit Court of Appeals, there appears to be little in them, or in other matters, to bring her qualifications seriously into question. I hope that my fellow "conservatives" don't engage in silliness by elevating Judge Sotomayor's Belizean Grove membership to an obstacle of greater importance than, in my opinion, it warrants. It would, I think, be a bad thing were "conservative" Republicans to attack Judge Sotomayor as "liberal" Democrats attacked Judge D. Brooks Smith when he was nominated to the Third Circuit Court of Appeals in 2002, based on his then former membership in the Spruce Creek Rod and Gun Club, a men's fishing club. One basis for opposition was that the fishing club provided

important business and professional contacts . . . where business and professional men interact and bond with each other and with important political figures and judges.

The same is clearly true of Belizean Grove, the web site of which states that it is dedicated to "influential women who are key decision makers in the profit, non-profit and social sectors; who build long term mutually beneficial relationships." Judge Smith was eventually confirmed by the Senate, sixty-four to thirty-five.

The attack was beaten back to considerable degree because of an interesting fact neither Leahy nor Schumer knew. On the wall of the club was a photograph of Marine One landing at Spruce Creek. . . . The president in question was a Spruce Creek devotee -- Jimmy Carter. . . . a frequent visitor to what Leahy and Schumer were painting as a sewer of gender discrimination, he was still coming there long after his White House days were over.

That Democrats sometimes do silly things should not be an excuse for Republicans to do those same silly things; silliness begets silliness, and the selection of a Supreme Court justice is too important for that sort of nonsense. And, of course, by not acting silly, the Republicans can help to make the Democrats look silly by comparison.

I do think that some explanation of Judge Sotomayor's membership in Belizean Grove is in order, and I hope it goes beyond what she has said thus far, that men are invited to some social events and that she is unaware of any instance in which a man has sought but been denied membership. These comments do not appear to have been fully considered and, based on my understanding of the commentary associated with Canon 2C, seem inadequate.

I hope for some interesting questions and answers on other, but related, matters -- such as "reverse discrimination." The Belizean Grove matter may well be the only context in which such questions can be raised with a legitimate hope for a responsive answer. I would very much like to hear Judge Sotomayor agree with Ms. Stautberg's idea that "we all need support in our lives" (emphasis added), from members of our own genders and, I would suggest, possibly from members of our own races as well. I see no reason why women should not join similar organizations comprised solely of women; why gays or lesbians should not join similar organizations comprised solely of gays or lesbians, nor why Black or Hispanic people should not join similar organizations comprised solely of Black or Hispanic people. Consistently, I see no valid reason why they should be disparaged for doing so, and I very much hope that Judge Sotomayor holds a similar view.

Nor do I see any valid reason why Whites, males, "straights" and others who join comparable small and intimate organizations comprised solely of those who resemble them should be disparaged for doing so. And there's the rub; they are.

Gender politics have proved a minefield for male Supreme Court nominees. . . .

Justices Antonin Scalia and Anthony M. Kennedy quit all-male clubs when they were being considered for the Supreme Court in the late 1980s, and Justice Harry Blackmun resigned his membership in the exclusive Cosmos Club in 1988.

The Boy Scouts of America has been under fire for its membership policies, which preclude Agnostics, Atheists, gays and -- yes -- girls. The Girl Scouts of America have been under attack for discriminating against some people, but generally not against boys. Just as women who think that they should have an organization to respond to "the all-male clubs that have long fostered business connections and policy links for powerful men," so perhaps should men, Caucasians, "straights" and others - boys and girls included.

I would challenge neither their right to do so nor the morality of such organizations. I would, however challenge the hypocrisy of those who think it is fine for women, but not for men, fine for Blacks, Hispanics and other "minority" group members, but not for White folks, fine for gays and lesbians but not for "straights." I will be very interested to learn whether Judge Sotomayor holds a similar, or divergent, view.

Sarah Palin is an Angry White Man

2009-06-14T05:11:00.000-07:00

First published on BlogCritics on 14 June 2009.

PARODY or SATIRES I can't figure out which.

This is to honor all true patriots as they go boldly forth to silence evil voices.

The United States is distressingly full of angry white men, most of them inflamed by the vast hate media now infesting the country.

The number of angry white men in America is getting larger, said Chip Berlet, senior analyst with Political Research Associates in Somerville, Mass., a think tank that studies right-wing extremists.

In particular, the heterosexual, white, Christian men in America feel they've been pushed out of the way, Berlet said. Attacking the Holocaust Museum is a no-brainer, he said, because white supremacists blame Jews for the advancement of black people.

"The idea that blacks are put in positions of power by crafty Jews is central to their conspiracy theory," Berlet said.

Sarah Palin, previously known primarily for hunting endangered species and for her perverted penchant for expensive clothing and "makeup from Bloomingdale's to update her "slutty flight attendant look," recently called for an uprising against one of America's most beloved liberal communicators, Mr. David Letterman. Ms. Palin -- who masquerades as a woman but is only a non-woman thing in heels -- had the unmitigated gall to tell her minions that what she (and other conservative fanatics) strangely perceived as a grievous insult to her young tramp of a daughter should be met with violence against the greatly respected Mr. Letterman! Soon, there will be calls from Faux News, the Washington Slimes and the other purveyors of conservative filth for violence toward all who support President Obama's excellent and necessary reforms of the wickedness known as the United States. That wickedness, for which President Obama has had to spend most of his time in office apologizing, must not be revived.

Any conservative, but seemingly peaceful, slob could be a secret terrorist, insanely angered by the malicious reporting he so adores, and moved to strike without warning; it does not take a village, or even a well organized militia of evil doers:

"It could be anyone. It could be the guy next door, living in the basement of his mother's place, on the Internet just building himself up with hate, building himself up to a boiling point and finally using what he's learned," said John Perren, head of the counterterrorism branch at the FBI's Washington field office.

This is dreadful! They must all be put under surveillance and stopped.

When will this travesty end? Is the United States doomed by these conservative cretins? Must the sane majority sit idly by and just watch it happen? NO! We must demand that all who reject the wise guidance and mercy of our President, and of the mainstream media which quite properly support him, be banished. Then, and only then, can joyous apathy prevail.

Soon after President Obama ascended bodily to the Presidency, the Department of Homeland Security, responsibly and correctly, pointed out that those most pitiful of all creatures in the United States -- those who cling to their guns, their bibles, their religion and their patently false right wing opinions about such trash as the supremacy of the U.S. Constitution -- present a clear and present danger to the United States. Partisans on the right pretended, in their uniquely obnoxious way, to be offended, and claimed that the notion was insulting and absurd. They did so even though President Obama himself had used many of the very same words in his widely acclaimed California speech during his successful campaign for a mandate to ascend to the Presidency! They have sunk far lower than ever before; they are the national village idiot and must be stopped, now. Boy, were we wrong ever to listen to them!

For a lucid analysis of the problem, here's an opinion piece -- surprisingly, from a lamentably popular right wing rag, the New York Times. It is a "must read" for all sane people interested in saving the United States from certain death and destruction.

There is . . . one important thing that the D.H.S. report didn’t say: Today, as in the early years of the Clinton administration but to an even greater extent, right-wing extremism is being systematically fed by the conservative media and political establishment.

***

[W]hatever dividing line there was between mainstream conservatism and the black-helicopter crowd seems to have been virtually erased.

Despite the barely veiled racist reference to "black" helicopters, it is refreshing that even a far right smear sheet such as the New York Times has finally mustered the courage to abandon its ludicrous Conservative stance, at least briefly, to tell us this.

The immensely wise President of Venezuela, Hugo Chávez, may his holy name be praised, has thoughtfully provided guidance: the perpetrators of this vicious right wing treason must be deprived of all opportunity to spew their filth and disorder; they must be severely punished. Tea Parties, formerly known as necktie parties, are symptomatic of the evils which threaten Democracy as we have, albeit recently, come to know and love it in the United States; even the minds of the very few "moderate" conservatives are warped by them. Indeed, Republicans

have become embarrassing to watch. And it doesn’t feel right to make fun of crazy people. Better, perhaps, to focus on the real policy debates, which are all among Democrats.

Tea Parties -- and, truth to tell, Republicans and all other Conservatives as well -- need to be prohibited, NOW, as were their predecessor necktie parties.

We need a new and improved Fairness Doctrine, which will bring true fairness and justice to the public airwaves, as well as to the ubiquitous and very public internet. We won, we own them, and we must control them! The mere fact that conservatives, of all stripes, oppose this salutary change in which we can and must believe shows only that it is badly needed. Only when it has been restored, with greater fairness and impact than ever before, will the catatonic clamoring of the cretinous, backward (and also backwoods) far right be stopped.

After being tried, convicted and justly punished for their heinous crimes against humanity, those who oppose democracy, justice and freedom, as we have come to know and love them under President Obama, must be deported, never again to mock the name of the United States from her own shores. Yes! We Can! Even though no sanely governed country would take them, we must continue to try as best we can to rid the United States of this despicable scourge.

President Obama's Cairo Speech -- a Worthwhile Effort or an Exercise in Narcissism?

2009-06-09T22:27:00.000-07:00

President Obama's Cairo speech was full of sound and peacefulness, but signified little.

First published by Blogcritics on 9 June 2009.

President Obama delivered an historic -- some would say "masterful" -- speech in Cairo on 4 June 2009. Some have disparaged it and some have praised it to the heavens, going even so far as to suggest that President Obama is godlike.

"I mean in a way Obama’s standing above the country, above – above the world, he’s sort of God."

****

"I think the President's speech yesterday was the reason we Americans elected him. It was grand. It was positive. Hopeful...But what I liked about the President's speech in Cairo was that it showed a complete humility...The question now is whether the President we elected and spoke for us so grandly yesterday can carry out the great vision he gave us and to the world."

Hope is generally a good thing, even for obviously terminal cancer patients; change is sometimes a good thing. However, there are times when hope is delusional and change is for the worse. There are also times when delusional hope can lead to disastrous change.

Superficially, President Obama's Cairo speech appears to have been intended to demonstrate to the Islamic World that the United States should no longer be viewed as an enemy of Islam and that Islam is not and should not be an enemy of the United States. So far, so good. His speech may well appeal to some of the Islamic "moderates" who are already in full agreement with the "Islam is the religion of Peace" notion; it will probably appeal to those in the United States and elsewhere who very much want to believe that Islam is, in fact, a religion of peace, and that to avoid future problems it is only necessary that the United States recognize this and act accordingly. However, that's rather like preaching to the choir -- not a bad thing to do on occasion, but unlikely to change many minds.

What about those who seem accept the idea that "Islam is a religion of peace" only in the sense that true peace is found exclusively in death: those who cheered the obliteration of the World Trade Center in New York City, the attempted obliteration of other places in the United States and the deaths which those actions caused? What about those who send small children off bearing instruments of violent suicide in order to kill their enemies? What about those who hate the United States and the "universal principles" for which she is said to stand -- democracy, the rule of law, the rights of all, including minorities and women, freedom of speech, freedom of religion, and all that sort of thing? What about those who do not accept the notion that such treasures should be universal, as President Obama had proclaimed earlier and as he reiterated in his 4 June speech? What about those who look forward with glee to the death of Israel and of her citizens? Are their minds likely to be changed? I doubt it. Nor does it seem likely that those who view all Islamists, collectively, as their sworn enemy are likely to be persuaded to see the error of their ways; that the lion and lamb will henceforth lie down and enjoy a lasting peace with one another.

It was sad that President Obama felt it necessary to point out that the Holocaust actually happened and was evil, that Israel should be accepted as a legitimate state and that nuclear weapons should not proliferate. It was sad because many in his audience reject these notions; it seems unlikely that more than a very few of those who previously rejected these notions changed their views as a result of the Cairo speech.

President Obama went on at some length to promote his "two state solution" for Israel and her rather quarrelsome neighbors as the keystone for peace in the region. He did not mention the previous failures of similar solutions.

It seems to me that Israel is considered by many of her neighbors to be a thorn in their sides principally because she approaches democracy and the freedoms which are thought to accompany democracy to a far greater extent than does any other collection of people in the region; because she has thereby turned her previously barren lands into fertile and prosperous ones; and because she has thereby become a leader in various areas of military and commercial technology. If this is so, then the "two state" solution embraced by President Obama in his Cairo speech and elsewhere as the policy of the United States will not produce a scintilla of change -- at least not for the better. If Israel survives the two state solution, she will presumably continue to have these same pesky attributes, she will continue to be an unwelcome example to her neighbors, her neighbors will continue to lob missiles and suicide bombers at her, and she will have no choice but to try to make them stop. Should the interesting but hardly novel two state experiment fail, as seems quite likely to me, it will not be exclusively at the expense of the United States; it will be at the expense of another sovereign state, Israel, as well. It will also be at the expense of those "universal principles" which President Obama praised in Cairo and elsewhere.

Perhaps the gushing reactions of President Obama's supporters to his Cairo speech noted in paragraph one above accurately reflect President Obama's own views. If so, his narcissism knows no bounds. In any event, he clearly wants to be remembered as the Great Peace Maker. That is a worthy ambition; it would be even more worthy if his words and deeds had a realistic chance of success in actually bringing forth the blessings of peace. However, I fear, that they are little more likely of success than was the spectacular willingness of Neville Chamberlain to turn Czechoslovakia and other countries (but not, of course, England herself) over to the Nazis in 1938.

Chamberlain believed passionately in peace for many reasons . . . thinking it his job as Britain's leader to maintain stability in Europe; like many people in Britain and elsewhere, he thought that the best way to deal with Germany's belligerence was to treat it with kindness and meet its demands. He also believed that the leaders of people are essentially rational beings, and that Hitler must necessarily be rational as well. Most historians believe that Chamberlain, in holding to these views, pursued the policy of appeasement far longer than was justifiable . . . (emphasis added)

I very much wish that President Obama did indeed have at least a chance-- for the first time in recorded human history-- of producing a lasting "peace in our time." However pure may be his motives, as things now stand, I consider this very unlikely.

¡Viva el Presidente Chávez! Part II

2009-06-06T09:16:00.000-07:00

First published on BlogCritics on 7 June 2009

In the first part of this article, I tried to explain the pitiful situation in which Venezuela now finds herself under El Presidente Chávez, some ten years after he came to power. There, I could do little more than scratch the surface; things are very bad and are getting worse daily. The power of the Venezuelan Government resides, for all practical purposes, in the hands of El Presidente. It is obvious to me that El Presidente has one goal: to solidify his power totally, and to extend it until he dies. It is conceivable that a revolution may be in the offing.

It behooves us to become familiar with the works accomplished by such heads of state as El Presidente, and to ensure that the United States does not emulate countries like Venezuela, intentionally or inadvertently.

President Obama has been in office for only a few months. Nevertheless, in his short time in the Oval Office, President Obama is arguably showing the way to a "socialist paradise" to no lesser extent than did El Presidente Chávez during his first few, relatively calm, months in office. Big things take time to accomplish.

It is not surprising that El Presidente Chávez spoke warmly with President Obama and presented him with a book about the rape of Latin America as a token of his affection at their recent meeting in Trinidad. It is somewhat surprising that President Obama later remarked that

The 2008 presidential campaign proved that American voters want the president to engage with his counterparts, whether or not they are avowed friends of the U.S.

He said it "was a nice gesture to give me a book. I'm a reader." The president added that the election was a referendum of sorts on the argument that U.S. solicitude toward foreign leaders could be seen as "weakness."

This is surprising in light of President Obama's subsequent observation that

Democracy, rule of law, freedom of speech, freedom of religion — those are not simply principles of the West to be hoisted on these countries, but rather what I believe to be universal principles that they can embrace and affirm as part of their national identity.

These "universal principles" are now completely foreign to Venezuela under El Presidente.

On a different occasion, El Presidente also

invited President Barack Obama of the United Status to join Venezuela's "socialist revolution," claiming that this was the only way to get through the world economic crisis.

In a speech in which he defended his revolutionary approach and a string of recent state takeovers or "interventions" of food industry and other companies, Chávez exclaimed: "Come on, Obama, align yourself with us on the way to socialism! Come on, it’s the only way!"

It would be unseemly for the United States, or any other free country, to detract from the glories of Venezuela by emulating her. However, some contend that the U.S. has already begun the process. The new Pravda says that the United States is already well along the path. El Presidente Chávez appears to be highly pleased

Venezuela's President Hugo Chavez said on Tuesday [2 June 2009] that he and Cuban ally Fidel Castro risk being more conservative than U.S. President Barack Obama as Washington prepares to take control of General Motors Corp.

During one of Chavez's customary lectures on the "curse" of capitalism and the bonanzas of socialism, the Venezuelan leader made reference to GM's bankruptcy filing, which is expected to give the U.S. government a 60 percent stake in the 100-year-old former symbol of American might.

"Hey, Obama has just nationalized nothing more and nothing less than General Motors. Comrade Obama! Fidel, careful or we are going to end up to his right," Chavez joked on a live television broadcast.

A joke, to be sure; but jokes generally fall flat unless they embody some element of truth.

Of course, El Presidente can be a tad mercurial. He has also referred to President Obama as an ignoramus. Nevertheless, El Presidente says that he may give President Obama a copy of Lenin's book What is to be Done? when next they meet.

The right of all citizens to vote is the bedrock of a democratic society, and position advocacy is a fundamental part of that bedrock. Citizens should not only be free to vote, they should be free -- and, indeed, encouraged, to express their opinions. El Presidente Chávez has done much to enable the citizens of Venezuela to vote, and to express their opinions on how their fellow citizens should vote -- provided that they support El Presidente. The recent decision by the U.S. Department of Justice to drop all charges against members of the New Black Panther Party in connection with their emphatic expressions of views at polling places in Philadelphia, while brandishing a weapon is, perhaps, part of a grand and glorious plan to encourage freedom of expression in the United States as it has been encouraged in Venezuela; or, perhaps (and I hope) it is not. In any event, great trees from little acorns grow, particularly little acorns watered and fertilized with substantial Federal grants.

To stave off draconian consequences, President Obama has effectively nationalized both General Motors and Chrysler, in ways very likely to make his supporters rather pleased with him and thereby to enhance his powers to advance his social programs. Many of his programs, such as card check legislation and other nifty stuff for unions (or, perhaps more accurately, for union bosses), help further to solidify his own bases of power; whether the nation's economy will thereby be made better or worse is a different question. GM and Chrysler had too much economic power and were, therefore, "too big to fail;" concentrating their power in the Federal Government, rather than attempting to diminish it, seems to me to have been a mistake. The Venezuelan example suggests that this sort of mistake can be quite unfortunate.

Although President Obama claims to oppose any revival of the old "fairness doctrine," it is far from clear that even more restrictive efforts to limit speech are not being made in the name of "media diversity." The Federal Communications Commission now has a panel to consider ways to increase media diversity. It is chaired by former FCC Chairman Henry Rivera, who was an outspoken proponent of the fairness doctrine. The panel has thirty-one members, including the following:

Henry Rivera
Emma Bowen Foundation for Minority Interests in Media (Chairperson)
Raul Alarcon, Jr., Spanish Broadcasting System
Geoffrey C. Blackwell, Chickasaw Nation Industries, Inc.
Maria E. Brennan, American Women in Radio and Television
Steve Hillard, Council Tree Communications
David Honig, Minority Media and Telecommunications Council
Debra Lee, BET Holdings, Inc.
Marc H. Morial, National Urban League
Karen K. Narasaki, Asian American Justice Center
Jake Oliver, Afro-American Newspapers
Andrew Schwartzman, Media Access Project
Charles Warfield, Inner City Broadcasting
James Winston, National Association of Black Owned Broadcasters

The panel includes no member likely to favor the continuation of "conservative" talk radio, much disparaged by President Obama and his colleagues.

Fairness and diversity are good things; however, in my opinion, neither the old Fairness Doctrine nor prior FCC attempts to stimulate minority ownership were effective in achieving their stated and salutary purposes. I am at least modestly concerned, although (or perhaps because) it is far from clear what impact, if any, this incremental step may have on the nature of the media in the United States. I hope that the powers-that-be view Venezuela as a horrible, rather than as a good, role model.

I do not suggest that President Obama has thus far managed to change the United States into the sort of place where El Presidente Chávez would feel right at home. Nor do I suggest that President Obama clearly views El Presidente as a suitable role model. I do suggest that in the few months he has been in office, President Obama may have shown at least the beginnings of a trend in that direction, and that in light of the present situation in Venezuela, his protestations that Democracy, rule of law, freedom of speech and freedom of religion are universal principles that other countries can (and perhaps should) embrace and affirm as part of their national identity, may ring a bit hollow. Venezuela conspicuously lacks the rule of law and freedom of speech; the institutions of democracy have been almost totally destroyed, and the situation there continues to deteriorate. By the time that these "universal principles" have been noticeably diminished in the United States, it will be too late to do much about it.

I don't consider El Presidente Chávez a fictitious bogeyman, to be ignored as presaging a possible future for the United States; I very much hope that that there is no such problem. Still, as a nation, we spend a lot of time agonizing over matters as to which we are impotent and as to which we have no say. Prudence suggests that we look to the past and to the present, both in the United States and elsewhere -- including Venezuela, in attempting to augur the future. As to such matters, we still have at least a little to say; it should be heard.

¡Viva El Presidente Chávez! Part I

2009-06-06T09:14:00.000-07:00

First published on BlogCritics on 6 June 2009

Hugo Chávez became the President of Venezuela (now renamed the "Bolivarian Republic of Venezuela") in 1999. He was reelected to the post in 2002 and again in 2006. The Venezuelan Constitution was recently amended to permit him to run for an additional term of six years, in 2012.

At an improvised Cabinet meeting held outdoors in a plaza on Caracas' east side, Chavez signed the amendment that will allow him to run for another six-year term in 2012.
***
"I'm ready to continue commanding the revolution from 2009 at least until 2019, if the people want me to," the leftist president said, having promoted the amendment with the argument that only his permanence in power could guarantee the survival of the process of change that he has led since February 1999. (emphasis added)

A Constitutional amendment to permit him to run for additional terms had been defeated on 2 December 2007. Prior to the vote on a second referendum to approve an additional term, an editorial in the Washington Post noted:

In theory, advocates of democracy in Venezuela might welcome this referendum as a way to decisively stop Mr. Chávez's attempt to turn the country into a 21st-century Cuba. The problem is that elections in Venezuela are no longer free and fair. Mr. Chávez has turned national television into a state propaganda outlet, and the Miami Herald reported Sunday that the government spent tens of millions of dollars to buy votes in the recent state and local elections. The state election authority, which is controlled by Mr. Chávez's loyalists, delayed the announcement of his defeat in last year's referendum [also on Constitutional changes]; reliable sources say the president conceded only after he was told by military commanders that they would not put down protests against a falsified result. The official results, showing the margin of Mr. Chávez's loss, have not been released. (emphasis added)

El Presidente Chávez has worked ceaselessly and with exceptional vigor to bring tremendous changes to Venezuela; he may believe that his changes have been good for the country, and some other Venezuelans apparently, even now, accept that as well.

Some of the changes have involved land reform: taking land used in "socially wasteful" ways and putting it under the wise ownership and control of those (in some cases his own family members) whom he possibly believes will do better for the country than did the former owners. Recently, five large farms comprising a total of 10,305 hectares (roughly 25,000 acres) were taken, El Presidente Chávez observing that "There is no private land." The Venezuelan government has said that the seizures of large rural estates and poorly used land will continue, "in order to achieve a self-sufficient food supply." Nevertheless, such seizures in the past, involving more than 5.4 million acres of farmland, have produced few if any noticeably positive results for Venezuela.

The 32,000-acre(12,950-hectare) El Charcote Ranch in central Venezuela was meant as a showcase for President Hugo Chavez's agrarian revolution, turning a country with food shortages and runaway inflation into one that could feed itself. But since troops and peasants seized the land from a British agribusiness company four years ago, beef production has dropped from 2.6 million pounds (1.2 million kilograms) annually to zero. The ranch and many like it across the country raise the concern that the dream of a Venezuela living off its own land is just one more socialist promise heavy on rhetoric and light on results. The Chavez government says it has taken over more than 5.4 million acres (2.2 million hectares) of farmland from private owners. Yet food imports have tripled since 2004, the year before Chavez began his aggressive reform program.

Even some Chavez fans are complaining, like Luis Emiro Gomez, 53, who lives in a shack of corrugated sheets patched with Chavez campaign posters. Gomez said he lacks credit, tools and sufficient water to increase his corn harvest. While he holds a government permit for his plot, he said many others who received land are well-off and have rented it to tenant farmers for profit.

''If the idea was for parcels to be for the peasants, why are they offering them to people who aren't needy?'' Gomez asked.

El Presidente has also brought other substantial sectors of the Venezuelan economy under his control in various ways, including appropriating and attempting to appropriate businesses:

Telecommunications giant CANTV;

Electricidad de Caracas;

Power company Seneca;

Three cement producers, which together produced nearly all of the cement sold in the country;

Four heavy oil fields in the Orinoco Basin, worked by a total of 13 companies;

Steelmaker Thermium Sidor;

Sixty-four Oil field service companies, 39 of them at Lake Maracaibo;

In February this year, El Presidente ordered the military to occupy rice processing companies owned by Alimentos Polar;

Rice and pasta production plants owned by Cargill, one of the seven largest grain companies in the world; and

Ports at Maracaibo and Puerto Cabello, both of them in states under opposition control.

When El Presidente nationalized the country's oil industry, he gave as his principal reason that it was contributing insufficiently to his vast social spending programs; nationalization was seen as critical to furtherance of the social goals on the basis of which he had been elected. Oil industry infrastructure investment has been cut by almost forty percent and most of the skilled employees are no longer there. Consequently, the infrastructure is deteriorating.

El Presidente imposed price controls on many domestically produced goods, such as rice, because he said that the prices were too high. The prices are now somewhat lower, but there is very little rice and much it has to be imported; critical shortages of corn, a principal ingredient of tacos and other Venezuelan food staples as well as of cattle feed, have also been experienced. The substantial shortage of hard currency, discussed below, makes importation very difficult. The same is true of most other basic needs of the Venezuelan people.

Prices for home appliances have skyrocketed, pharmacies are reporting shortages of drugs, and General Motors is planning to stop car production here next month, as measures by the Venezuelan government to conserve dollars ripple through the weakening economy.

"Today, there's no milk, no rice, no beans, no chicken, no meat, no butter and no cooking oil," Francisco Quintero said as he shopped at a government store that sells subsidized staples for the poor.
***
The government increased the price of sugar by 35 percent last week, however, and is facing pressure to raise prices for other subsidized goods as well. A Mercal manager in a poor working neighborhood in western Caracas said that this was only the first of the increases.

"We're expecting the government to raise prices for rice, milk, meat and chicken by 40 percent," said Marlon Barragan, who manages a Mercal in Catia. He said that the prices "will still be low." The only question is whether the goods will be available.

El Presidente has devalued the Venezuelan currency which, when I was first in Venezuela in 1997, traded at about three Bolivars to the dollar. In 2008, Venezuela introduced a new currency, the "Strong Bolivar" or Bolivar Fuerte; one thousand Bolivars were exchanged for one BF. The new "strong" currency now trades at an official rate of 2.15 BF to the dollar and at an unofficial (black market) rate of 6.7 BF to the dollar. Foreign travel (by those few outside the Government who can still afford it) has become much more expensive. The problem is being attacked by making it very difficult to obtain hard currency. Venezuelan banks, in order to avoid late payment charges -- to the banks due to their own delays, rather than due to late payments by their customers -- on credit cards which they issue, have essentially ceased to honor charges to those cards in foreign currencies.

Banks are reportedly running into delays of months, with several banks -- Banesco and Banco Venezolano de Credito (BVC) most notably -- having to threaten to stop allowing the use of their credit cards abroad to force Cadivi [Commission of Foreign Exchange Administration] to loosen the purse-strings. As of May 1st, Cadivi reportedly owed BVC more than $1.3 billion to cover just that bank's credit card use abroad.

The General Motors subsidiary mentioned above has car and truck manufacturing facilities in the industrial city of Valencia. It announced that it would have to close in late June of 2009, because it could no longer obtain needed supplies due to the unavailability of hard currency, which it had not been able to obtain since November of 2008. The closure will "affect 4,000 employees at the Valencia assembly plant and another 70,000 people indirectly. "Without production, it’s difficult to comply with obligations to the workers. . . ." Production had been running about ninety thousand vehicles per year. When I visited Valencia during late 2000/early 2001, it was a relatively prosperous city, with several modern shopping malls and more under construction. The death of the GM plant there will very likely diminish Valencia's relative affluence.

Unfortunately, nationalization and El Presidente's other bold initiatives, coupled with dramatic inflation and the general unavailability of hard currency, do not seem to be helping the people of Venezuela much.

[A] consulting and polling company . . . is forecasting that consumer price inflation could come out at anything between 25% and 35% this year. On balance, that would imply little or no improvement, and perhaps a worsening, on last year – for which the comparable figure from the BCV was 30.9%, after 22.5% in 2007 and 17.5% in 2006..

Even at the lower range of this forecast, Datanálisis reckons personal consumption will fall this year by around 3%. But were inflation to hit the full 35%, the company says consumption could shrink by a shocking 13%.

Although worse than for any other country in Latin American, this is quite good -- but only compared to Zimbabwe, where inflation is said to be the worst in the world.

The once excellent medical system in Venezuela has experienced similar changes under the control of El Presidente. There are no reliable Government statistics about any impact which his changes may have had on the death rate in Venezuela. It would be very difficult to compile meaningful statistics, because the very high crime rate in Venezuela produces many deaths, which even the very best universal medical care could not prevent. According to Venezuelan Government statistics, there were 9,653 murders in Venezuela between January and September of 2008. According to a police report leaked to the press, Venezuela has an average of 10,114 a year. Venezuela has a population of approximately twenty-six million. Mexico, with a population of 109,955,400 had "over 5,500" murders. Venezuela, with about ten thousand murders annually, presents a worse picture than Mexico on an absolute basis and a dramatically worse picture on a per capita basis.

El Presidente Chávez has attempted to bring the military, including his former defense minister, completely under his dominion. This may, or may not, relate to the threat, immediately following his 2007 defeat in the Constitutional referendum mentioned above, to decline to quell popular protests should he blatantly fudge the results.

Venezuela’s former defense minister – once a close ally of leftist President Hugo Chávez – was arrested on Thursday by the DIM military intelligence unit, one of his sons told Globovisión television.

Gen. Raúl Isaías Baduel was driving with his wife near his home when his vehicle "was blocked off by officials of the DIM who, pointing firearms at them and threatening them not to make any telephone calls, shoved them into a (military) vehicle," the younger Baduel said.

Military prosecutors recently accused Baduel of alleged administrative irregularities during his tenure at the head of the Defense Ministry, a post he left in 2007 after a falling out with Chávez.

Baduel’s wife told Globovisión that both she and her husband had guns pointed at their heads by people who identified themselves as DIM agents, "but without saying where they were taking us," a situation she called "violent and irregular."

Her husband "had been presenting himself regularly every two weeks" at the military court handling his case, Mrs. Baduel said.

It has become increasingly common for leaders who fall into disfavor with el Presidente to be arrested for "corruption;" those still in favor rarely suffer similar fates. It is very unlikely that this disparity has anything to do with their relative corruptness.

El Presidente has also rendered recently elected opposition Government officials impotent by superimposing new levels of Government over them, to ensure that all political power remains in his hands. This has been relatively easy, since the national legislature is completely under his control. In addition, he has made a point of suppressing public protests in communities where the opposition is favored. Very few pro-Chávez demonstrations have been suppressed.

El Presidente, as part of his plan to silence all opposition voices, recently brought "corruption" charges against the newly elected (opposition party) Mayor of Maracaibo in oil rich Zulia province (and a 2006 candidate for the Presidency), who thereafter hid to avoid arrest and obtained political asylum in Peru. In response, Venezuela recalled its ambassador to Peru.

El Presidente Chávez recently had Ortega Díaz, the president of Globovisión arrested on criminal charges, and is in the process of terminating Globovisión itself; El Presidente had refused two years previously to renew the broadcasting license of Radio Caracas Televisión, which had been broadcasting for thirty-five years but had become an often critical voice. Since el Presidente refused to renew the broadcast license of Radio Caracas Television in 2007, Globovisión has been the only anti-government network on public airwaves in Venezuela. The demise of Globovisión now seems to be imminent. In getting Sr. Díaz charged,

Venezuelan President Hugo Chavez specifically ordered . . . the Supreme Justice Tribunal to "comply with their duty" and called on officialdom to be "agile" in acting against media organizations that were "poisoning" the population. That was what they were there for, Chavez said, and if not "they should resign so that somebody with courage takes over."

Globovisión's most recent poisoning of the population had involved reporting on an earthquake near Caracas an hour before the Government reported it. According to El Presidente,

Globovisión:

stirred panic [by] . . . reporting an earthquake before the government announced it. ''We're not going to tolerate a crazy man with a cannon shooting it at the whole world,'' Chávez said on his weekly television and radio show Sunday, referring to Alberto Ravell, the Globovisión general manager. "Enough! . . . This has to end or I'll stop calling myself Hugo Rafael Chávez Frias.''

''You are playing with fire, manipulating, inciting hate and much more. All of you: television networks, radio stations, papers,'' he said. ``Don't make a mistake with me.''

Foreign Minister Nicolas Maduro followed up Monday by charging that Ravell had terrorized Venezuelan women and children with his 5:21 a.m. report. ''Globovisión and Alberto Federico Ravell incited panic and anxiety within the population,'' Maduro said. ``We will not permit that.''

Globolvisión:

said that it had restricted its coverage in the immediate wake of the earthquake to data trawled from the United States Geological Survey. Globovisión Director Alberto Federico Ravell had appeared to call on the public for calm. This was what government ministers were doing not very much later on.

According to one of the few remaining opposition voices in Venezuela, a blog, El Presidente is also using the sorry state of the Venezuelan economy to silence Globolvisión, by imposing substantial fines and forfeitures and confiscating its assets. The blog article observed,

if you upset Chavez your property will be seized by either plain robbery or legal robbery through fines and "back" taxes. A few more months of that and Globovisión will be closed.

The United Nations and the Organization of American States have expressed worry about this and other efforts of El Presidente to destroy the vestiges of a free press in Venezuela. Venezuela has rejected these concerns; the Venezuelan ambassador to the OAS stated that foreign observers passing judgment on Venezuela are beholden "to the interests of the private media."

El Presidente Chávez has made substantial changes to the educational system in Venezuela, and has tried mightily to ensure that all students are provided an ideologically correct education. These steps have been praised by "a guy" in President Obama's Chicago neighborhood, William Ayers, who has also expressed appreciation of el Presidente Chávez's reforms in other areas.

This is my fourth visit to Venezuela, each time at the invitation of my comrade and friend Luis Bonilla, a brilliant educator and inspiring fighter for justice. Luis has taught me a great deal about the Bolivarian Revolution and about the profound educational reforms underway here in Venezuela under the leadership of President Chavez. We share the belief that education is the motor-force of revolution, and I’ve come to appreciate Luis as a major asset in both the Venezuelan and the international struggle—I look forward to seeing how he and all of you continue to overcome the failings of capitalist education as you seek to create something truly new and deeply humane. Thank you, Luis, for everything you’ve done.

Back in 1999 or 2000, when I was in Puerto Cabello, Venezuela, a Venezuelan friend observed that public education was intentionally kept woefully inadequate to teach even the basic principles of rational analysis. This appears to be a continuing process.

Takeover of universities by the Venezuelan Government now seems likely. When the salaries of public school teachers were recently increased, El Presidente's Education Minister is reported to have stated that "besides 'decent' wages, the building of 'a new country' requires . . .'a constant effort by educators,' since 'the starting point for creating socialism is education'. . . . "

El Presidente Chávez has made a highly visible and vocal place for himself on the world stage, probably more so than had any other Venezuelan leader in history; some might suggest that he is excessively narcissistic, even for a president.

He has also worked quite diligently to communicate with his people; he presents Aló Presidente -- a four hour long weekly address to the nation required to be carried by every state owned radio and television station. He recently announced that he would present a marathon four day long Aló Presidente, but due to "technical problems," managed only partially to deliver on his promise. Despite its truncation, his address was very probably longer than any known address ever given by a President of the United States; he may even have eclipsed his mentor, Fidel Castro of Cuba. He should be very proud, even though Fidel's brother Raul has said that el Presidente talks too long.

Whatever social goals El Presidente may have attempted to achieve, it is clear to me that his overriding purpose has been the accumulation of as much personal power as possible. He has succeeded to the degree that the power of the Venezuelan Government over her people has become the power of El Presidente; El Presidente and the Venezuelan Government have merged, to become the same entity.

A Venezuelan acquaintance once told me that when God created Venezuela, he gave her bountiful natural resources, great natural beauty, and industrious people. When an angel remarked that God had given Venezuela too much, God responded by giving Venezuela something more: her government.

In Part II of this article, I shall briefly explore the situation in which the United States, under President Obama, finds herself -- and may eventually find herself -- with reference to Venezuela under el Presidente Chávez

OPINION: The California Supreme Court Properly Decided the Case Involving Homosexual Marriage.

2009-05-31T15:32:00.000-07:00

First published by BlogCritics, on 2 June 2009

The recent California Decision on homosexual marriage has little to do with homosexual marriage.

One of my former law partners was fond of saying, "we can argue about it or we can look it up." That notion applies to an evaluation of the California Supreme Court decision on Proposition 8: it is quite useful, in evaluating any court decision, to read or otherwise become reasonably familiar with what the court actually said.

There has recently been lots of discussion -- ostensibly related to the California case -- about whether homosexual marriage is a good or a bad thing. For whatever, if anything, my opinion is worth, that sort of discussion serves a useful purpose, even if it has very little to do with the court case under discussion. There has been rather less discussion about California's Constitutional procedures, under which some ballot propositions may lawfully change the California Constitution and under which others may not. I think such discussion is also salutary, particularly in the context of the California case.

Here, the California Supreme Court was not faced with any questions about the goodness or badness of homosexual marriage; nor was it called upon to decide whether the procedures for Constitutional changes mandated by the California Constitution are good or bad. It had only one real question to resolve:

When Proposition 8 added Section 7.5 to the California Constitution providing that "Only marriage between a man and a woman is valid or recognized in California" did the measure, by virtue of the manner in which it was adopted, "constitute . . . a Constitutionally permissible change to the California Constitution."

The California Supreme Court did not attempt to offer opinions about whether marriage other than between a man and a woman is good or bad, socially acceptable, should be socially acceptable or anything else of that sort. Nor did the Court even remotely approach this possibly interesting question: Despite the new Constitutional provision, would California recognize a marriage between a gay man and a lesbian woman? Even if publicly and openly homosexual, they would still be a man and a woman. The issue was not presented, and there was little if any reason for the Court to consider it, if for no other reason than that the answer is obvious: such a union would be considered a marriage.

The Court said,

First, as explained in the Marriage Cases . . . our task in the present proceeding is not to determine whether the provision at issue is wise or sound as a matter of policy or whether we, as individuals, believe it should be a part of the California Constitution. Regardless of our views as individuals on this question of policy, we recognize as judges and as a court our responsibility to confine our consideration to a determination of the constitutional validity and legal effect of the measure in question. It bears emphasis in this regard that our role is limited to interpreting and applying the principles and rules embodied in the California Constitution, setting aside our own personal beliefs and values.

***

[T]he principal issue before us concerns the scope of the right of the people, under the provisions of the California Constitution, to change or alter the state Constitution itself through the initiative process so as to incorporate such a limitation as an explicit section of the state Constitution. . . . [The California Constitution] provides that once an amendment is proposed by either [of two defined] means, the amendment becomes part of the state Constitution if it is approved by a simple majority of the voters who cast votes on the measure at a statewide election. (Id., art. XVIII, § 4.)*

Previously, the California Supreme Court had invalidated a statute adopted by referendum. That statute purported to create a California statute defining marriage as only between a man and a woman; it did not purport to change the California Constitution, into which the Court had imported a right to marriage. Since the statute was inconsistent with the California Constitution as interpreted, the Court invalidated the statute. Proposition 8, unlike the earlier proposition, involved an amendment to the California Constitution. Like it or not, the difference is critical under California law; that may seem silly or perverse, but unless the procedures for amending the California Constitution are changed -- not by the Court but via the procedures provided for by the California Constitution itself -- that's where matters now stand and must stand.

All or most of the Californians who voted in favor of Proposition 8 may have been simple minded, bigoted perverts who hate homosexuals with a burning passion and were seized with an uncontrollable desire to harm them because to do so would enhance their own feelings of moral superiority. Interesting thoughts, perhaps, and arguably of some sociological significance; totally irrelevant, however, in the context in which the California Court rendered its decision.

There was no question whether an "amendment" had been properly proposed in Proposition 8. Hence, the question before the Court was whether it was actually an "amendment" as it purported to be or, instead, a "revision." Proposition 8, by virtue of the manner of its adoption, could "amend," but not "revise" the Constitution; the procedures for "revision" of the California Constitution are far more onerous than for a mere "amendment." (As noted by the Court, the California Constitution, ratified in 1879, has been amended more than five hundred times; the U.S. Constitution, ratified in 1788, has been amended only twenty-seven times. One likely reason for this is that the California Constitution is far easier to amend than is the U.S. Constitution.)

The amendment -- revision distinction, perhaps unique to California, goes far beyond mere semantics, and there was little if any valid basis for ruling other than as the Court did: that Proposition 8 involved merely an "amendment." Reviewing years of history and of judicial precedent, it was clear to the Court that an "amendment" is something which does not fundamentally change the form of Government; a "revision" is something which does. Under the Court's history and precedent-based analysis, it was clear that a definition characterizing some but fewer than all unions as "marriage" did not fundamentally change California's form of Government.

No questions of whether the California Constitution's provisions for changing it are silly or should be revised were before the Court. The Court had no authority to answer such questions, because it was bound by the California Constitution, and had no basis for considering such matters. Judges are not appointed to be philosopher kings, with the task of ruling a State or country as they wish; instead, they have quite circumscribed functions; they must not attempt to usurp the functions of the Legislative or Executive branches, or (as here) of the people, obnoxious though they may well be.

This case is significant in connection with the confirmation of Judge Sotomayor as a United States Supreme Court justice. I strongly suspect, but obviously do not know, that were Judge Sotomayor a California voter, she would have voted against Proposition 8. I also strongly suspect that, had she been a member of the California Supreme Court, she would have joined in upholding the Constitutional amendment embodied in Proposition 8, and that she would have done so regardless of her personal feelings about the rights of homosexuals. It is quite possible to to be strongly opposed to a law, as stupid or unfair, while simultaneously deeming it Constitutional. The ability of a judge to uphold a law which he finds personally obnoxious, or to strike down one even though he finds it pleasing, is highly important to our system of law. For a judge to put his personal feelings above his judicial obligations is anathema.

The California Supreme Court did not attempt to resolve any questions under the United States Constitution; such questions were not before it, and it could not have provided the ultimate answers in any event. I very strongly suspect that the U.S. Supreme Court will eventually have to decide these questions. At first glance, they probably include:

What might be the impact of the full faith and credit provisions of the U.S. Constitution, under which each State must generally give full faith and credit to the lawful actions of every other state? Is a marriage between (or among) homosexuals, recognized in Massachusetts, required to be recognized in California? Under the California Court's decision and the California Constitution as amended, it is not to be recognized.

Is any Federal right, properly applicable to actions by States under the Fourteenth Amendment, impermissibly abridged by the California Constitution as amended? This is a real bear of a question, and possibly raises the question of whether the Federal Government must itself recognize homosexual marriages for tax, social security and other purposes. Must it do so at all, or only for residents of States where homosexual marriage are recognized? Or must it do so for all homosexual unions, regardless of State recognition, to prevent an unconstitutional inequality as between its treatments of some "marriages" and others? These are questions looking for an answer.

There are probably other related questions which the U.S. Supreme Court will eventually be called upon to consider.

______________________________
*A substantial majority of the California Supreme Court agreed with the decision, each in his own words and each in his own way. Chief Justice George wrote the Court's opinion. Justices Kennard, Baxter, Chin and Corrigan filed separate concurrences, without offering any words explaining why they did so or in what respect(s) they may have disagreed with the Opinion. Justices Kennard and Werdegar filed separate concurrences disagreeing with some of the reasoning in Justice George's opinion, but agreeing with the result. Judge Moreno filed a concurring and dissenting opinion, disagreeing with most of the Court's reasoning and, except in one respect, with the result. Hence, there were six justices in the majority, and one not. In the Court's earlier marriage case, finding that the statute adopted through the referendum process violated the California Constitution as it then existed, Chief Justice George wrote the Court's opinion, in which Justices Kennard, Werdegar and Moreno concurred. Justice Baxter concurred part and dissented in part, along with Justices Chin. Justice Corrigan dissented in major respects.

Further Reflections on the Nomination of Judge Sotomayor to the U.S. Supreme Court

2009-05-28T15:33:00.000-07:00

First published by BlogCritics on 28 May 2009

I hope that were I in President Obama's position, I would not allow questions of gender or ethnicity to sway my decision on whom to nominate to the Supreme Court. Fortunately for all concerned, I am not in his position and never shall be. This is not the first, and will most likely not be the last, instance in which gender and ethnicity were or will be significant factors. That does not make it right, but that's the way it is. Nor does past practice mean that a President must consider gender or ethnicity; that is a political question, an area in which he, ultimately, is the boss. Whether the Senate confirms or rejects a nominee is also a political question, and in that area the Senate is the boss.

Something quite different is true of judicial precedents. As noted below, they demand adherence, and those established by superior courts must not be brushed off by inferior courts.

There are legitimate concerns about the nomination of Judge Sotomayor, and some which I consider ill considered. It seems unwise for those who oppose her to focus on grounds easily rejected. It would be far more useful to focus on questions of her judicial philosophy in a non-case-specific context, and on how that philosophy may affect her conduct as a Supreme Court justice.

I am particularly troubled by her unfortunate comment a few years ago that

"I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion . . . than a white male who hasn't lived that life."

I don't have any unique insight into what she may have meant, and I hope that she will be questioned during the Senate confirmation hearing until what she meant, and how it might affect her conduct as a Supreme Court justice, are clear. I doubt that she was merely saying that she hoped that a "wise Latina" would more often than not reach a better conclusion than a "white male" who had not been raised as an Hispanic on how best to prepare pollo asado. In the unlikely event that that is all she meant, her hope has been confirmed by my personal experiences; I can't prepare pollo asado worth a hoot. However, it seems very likely that Judge Sotomayor meant a lot more there and in other statements, and I hope to find out what. Depending on what what is, it may well impact unfavorably (or favorably) on whether she should be confirmed.

Beyond that La Raza speech, there has some "buzz" about two Second Circuit decisions in which she joined her two colleagues on the panels but which she did not write. One is said to suggest that she does not value freedom of speech highly, and the other that she opposes the right to bear arms. My take is rather different. Both cases, regardless of whether she was involved in writing the opinions, show a steadfast adherence to precedent, which in my view is not only acceptable but absolutely necessary for a judge. I shall attempt to support this thesis below, even though it involves unfortunately lengthy quotations from legal opinions which are, necessarily, somewhat complex.

In a per curiam (unsigned) opinion in Maloney v. Cuomo, (2d Cir. 2008) it was held that the Fourteenth Amendment to the United States Constitution could not, consistently with express Supreme Court decisions on the matter, be used to render a New York State Statute prohibiting the possession of nunchakus violative of the Second Amendment. The opinion notes,

The Second Amendment provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. Const. amend. II. The Supreme Court recently held that this confers an individual right on citizens to keep and bear arms. See District of Columbia v. Heller, 128 S. Ct. 2783, 2799 (2008). It is settled law, however, that the Second Amendment applies only to limitations the federal government seeks to impose on this right. See, e.g., Presser v. Illinois, 116 U.S. 252, 265 (1886) (stating that the Second Amendment "is a limitation only upon the power of congress and the national government, and not upon that of the state"); Bach v. Pataki, 408 F.3d 75, 84, 86 (2d Cir. 2005) (holding "that the Second Amendment's 'right to keep and bear arms' imposes a limitation on only federal, not state, legislative efforts" and noting that this outcome was compelled by Presser), cert. denied, 546 U.S. 1174 (2006).

Heller, a case involving a challenge to the District of Columbia’s general prohibition on handguns, does not invalidate this longstanding principle. See Heller, 128 S. Ct. at 2813 n.23 (noting that the case did not present the question of whether the Second Amendment applies to the states). And to the extent that Heller might be read to question the continuing validity of this principle, we "must follow Presser" because "[w]here, as here, a Supreme Court precedent 'has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to the Supreme Court the prerogative of overruling its own decisions.'" Bach, 408 F.3d at 86 (quoting Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989)) (alteration marks omitted); see also State Oil Co. v. Khan, 522 U.S. 3, 20 (1997). (emphasis added)

Hence, the Second Circuit per curiam opinion faithfully applied precedent established by an earlier Second Circuit decision as well as by the Supreme Court, properly leaving it to the Supreme Court itself to clean up whatever pig's breakfast the Supreme Court may have made of the Second - Fourteenth Amendment interaction in Heller.

Doninger v. Niehoff is a Second Circuit decision in which Judge Sotomayor participated as a member of the three judge panel. The opinion was written by another judge. There, it was held that the trial judge had acted within his discretion in refusing injunctive relief against a school district where a student had been denied an opportunity to become class secretary on account of unseemly language (referring to a school administrator as a "douchbag" and asking others to communicate on the subject with the administrator so as to "piss her off more") in a blog commenting on the actions taken by her school in delaying or canceling a concert, as well as due to other alleged misbehavior.

It has long been held that public school students have less in the way of First Amendment rights than do adults, and that their speech can be constricted where necessary or appropriate to preserve decorum and a proper learning atmosphere in those schools. Here, the trial judge decided that the student's conduct did disrupt, or could have disrupted, school activities.

Although I think the trial judge may have gone overboard, that does not mean that he abused his discretion. The Second Circuit opinion set forth the standard as follows:

We review the denial of a preliminary injunction for abuse of discretion. Id. at 24. Because Doninger seeks the vindication of First Amendment rights, however, "subject to the provision of Federal Rule of Civil Procedure 52(a) that '[f]indings of fact . . . shall not be set aside unless clearly erroneous,' we . . . make a fresh examination of crucial facts" and independently examine the record to do so.

During that process, the Second Circuit

assume[d] for the purposes of this appeal that Doninger met her burden of showing irreparable harm and proceed[ed] to address whether she also demonstrated a clear or substantial likelihood of success on the merits.

Then, the Court recited the substantive standards mandated by precedent:

[C]onstitutional rights of students in public school "are not automatically coextensive with the rights of adults in other settings," Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1986), but must instead be applied in a manner consistent with the “special characteristics of the school environment," Tinker, 393 U.S. at 506. Thus, school administrators may prohibit student expression that will "materially and substantially disrupt the work and discipline of the school." Id. at 513. Vulgar or offensive speech — speech that an adult making a political point might have a constitutional right to employ — may legitimately give rise to disciplinary action by a school, given the school’s responsibility for "teaching students the boundaries of socially appropriate behavior." Fraser, 478 U.S. at 681. Similarly, so long as their actions are "reasonably related to legitimate pedagogical concerns," educators are entitled to exercise editorial control over school-sponsored expressive activities such as school publications or theatrical productions. Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988). Such controls "assure that participants learn whatever lessons the activity is designed to teach, that readers or listeners are not exposed to material that may be inappropriate for their level of maturity, and that the views of the individual speaker are not erroneously attributed to the school." Id. at 271. Finally, given the special nature of the school environment and the “serious and palpable” dangers posed by student drug abuse, public schools may also "take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use." Morse v. Frederick, 551 U.S. —, 127 S. Ct. 2618, 2622, 2629 (2007).

However, some of the student's relevant activities were via an internet connection at her home, from which she posted the offending blog. This was somewhat troubling to the Second Circuit, but in reliance on prior cases, it decided that

Applying the framework set forth in Wisniewski, the record amply supports the district court’s conclusion that it was reasonably foreseeable that Avery’s posting would reach school
property. Indeed, the district court found that her posting, although created off-campus, "was purposely designed by Avery to come onto the campus." Doninger, 514 F. Supp. 2d at 216. The blog posting directly pertained to events at LMHS, and Avery’s intent in writing it was specifically "to encourage her fellow students to read and respond." Id. at 206. As the district court found, "Avery knew other LMHS community members were likely to read [her posting]." Id. at 217. Several . . .[did] reach school administrators. See Wisniewski, 494 F.3d at 39. The district court thus correctly determined that in these circumstances, "it was reasonably foreseeable that other LMHS students would view the blog and that school administrators would become aware of it." Doninger, 515 F. Supp. 2d at 217.

In affirming the lower court's opinion, the Second Circuit noted:

Avery, by all reports, is a respected and accomplished student at LMHS. We are sympathetic to her disappointment at being disqualified from running for Senior Class Secretary and acknowledge her belief that in this case, "the punishment did not fit the crime." Doninger, 514 F. Supp. 2d at 202 (internal quotation marks omitted). We are not called upon, however, to decide whether the school officials in this case exercised their discretion wisely. Local school authorities have the difficult task
of teaching "the shared values of a civilized social order" — values that include our veneration of free expression and civility, the importance we place on the right of dissent and on proper respect for authority. Fraser, 478 U.S. at 683. Educators will inevitably make mistakes in carrying out this delicate responsibility. Nevertheless, as the Supreme Court cautioned years ago, "[t]he system of public education that has evolved in this Nation relies necessarily upon the discretion and judgment of school administrators and school board members," and we are not authorized to intervene absent “violations of specific constitutional guarantees." Wood v. Strickland, 420 U.S. 308, 326 (1975).

The decision followed precedent, and the judges did what they had to do; they may not have been overjoyed with the result, but could not legitimately change it.

There are aspects of Judge Sotomayor's judicial persona which concern me. The beliefs which she expressed in the La Raza speech are among those concerns. However, I have thus far found no case in which she allowed her emotions, or her "empathy," to prevail over the law or the facts. It strikes me that her judicial persona, as suggested by these two Second Circuit opinions, has not been successfully diminished.