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2151  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Re: Media Issues on: January 04, 2011, 09:54:03 AM
BD, There was humor intended that did not come through.  My timing was lousy because of reading along without having the time to post.  I'm sorry for making things worse.  I was sincere in saying I appreciated the original post. - Doug

Rereading your post, there is humor and it does come through.  My sincere apologies, DMG. 
2152  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Re: Media Issues on: January 04, 2011, 06:41:25 AM
This is an interesting article.  I agree that there are many important events that somehow fail become stories.  Here is another list of underreported news in 2010.,28804,2035319_2035317,00.html

I am stunned at how much my post has generated, for a few reasons.  1, I genuinely found the original aricle posted by GM to be interesting.  I then posted another article with a different list of underreported stories.  I acknowledged the interest I had in GM's post, and thought there might be other stories of interest.  Instead, the interest was that I used TIME MAGAZINE.  Holy ape sh!+, Batman.  

2, Guro Crafty has asked for a cease and desist.  Something about a dead horse... keep kicking it, I'll let you, but I will no longer be brought into the session.  

3, DougMacG, while I appreciate your interest (and I mean that sincerely), I'm not sure how my posting a single article from TIME MAGAZINE is like taking acid.  As I have said earlier, I post stories because I find them to be interesting.  I found the Scalia interview to be interesting, but not because of a browbeating.  

4, I attempt to convey a general appreciation for the materials presented /shared in this forum, even when I do not agree with them, but that is not the norm, it would seem.  If I don't agree with them, I will certainly acknowledge that, but it doesn't mean that I don't appreciate the fact that the person found the story worth sharing.  Let me repeat, I don't always post stories I agree with.  I post those I find interesting.  If the articles, etc. that I post don't interest you, don't read them.  But to have 3 day discussion about TIME MAGAZINE, and not the story is pointless.    See 2 above, and the rule about remaining "friends at the end of the day."
2153  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Re: Media Issues on: January 03, 2011, 09:06:32 PM

As a scholar, if you were writing a history of jihad terrorism in the US, would you treat a 9/11 "truther" site as just another source? What would your vetting process be for information sources?

That would depend, I guess.  What is the audience, and the purpose of the piece?  For example, if I was attempting to write about the public's reaction to 9/11 then it would be another source. 
2154  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Scalia interview on: January 03, 2011, 08:02:34 PM
Scalia interview:
2155  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Re: Media Issues on: January 03, 2011, 07:56:52 PM
BD, I agree that with your mindset you can get useful starting points from JournoLists, indeed very JKD of you to do so  wink but FWIW for myself I think there are other sources more that give more value for my time. For example see CCP's post of the interview with Khosla on January 1 with regard to energy and environmental predictions on the Stock Market thread of our "S,C, &H" forum.

Anyway, I suspect we are near to confusing a horse with a cat-- the cat may have 9 lives, but this horse is probably dead by now from the beating we have given him  cheesy  Last word yours smiley

I think part of the issue is that we come at this from different starting points.  Unlike most people, I don't look at news just to be informed.  I look at news that can be digested, is informative, has a different tack, and lots of other reasons and purposes.  While I certainly read for myself, and increasingly for this forum, I also use the materials professionally.  While you (plural) may not find Time, NYT, or other publications to be worth your while, in the end they are not less trustworthy, biased, useful, important, etc. than most other sources. 

Media are designed to make money, and increasingly news has become "softer" no matter the medium.  My favorite recent example was a (seemingly serious) discussion about the way that President Obama walked his dog.  To blame Time for having biases is silly.  They attempt to reach their audience.  Fox News does the same thing. 

This is why I suggest that any news source can provide an intro to a story.  NO news outlet can, will, or should provide a comprehensive look at any story.  They just can't.  There are contradictory book length treatments of much of the world's problems. 

I have written a 2-3 page article and used 30 sources.  Not all of them were "expert", "right", "mainstream", or some other adjective.  However, all of them provided a small lens into the story I was telling.   

Simply dismissing a story because Time, or similar, tells it is too simple.  A professor of mine once asked the question of a bureaucrat who was creating an advisory board.  In general, the board should be comprised of experts who are more right than wrong.  If, however, there was one person who was only right 10% of the time, but was right when everyone else was wrong, wouldn't you want him on the board? 

It seems to me that we, at least as martial artists, do this same thing (a head nod to the JKD in me).  If I go to a BJJ seminar with some hotshot, trim, young,black belt and he teaches me only one thing in 2 days that I feel like I make mine, I don't dismiss his expertise.  I am glad I went to the seminar. 

After all that, I feel really bad for the horse.  Sorry, Mr. Ed.
2156  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Re: Media Issues on: January 03, 2011, 03:44:18 PM
GM, every source will have inherent biases.  The purpose of using a minimum of three is a sort of "cross reference."  A blind man can be a good source; and even a liar provides information. 
2157  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Re: Media Issues on: January 03, 2011, 01:58:00 PM

Yes, any media entity could potentially introduce a story not being covered by other media entities. Given the corruption demonstrated by Time and other MSM entities involved in JournoList, do you trust them?

GM, I don't trust much about any news source, mainstream or otherwise.  That is why I suggested that if one source can introduce me to a story, it can provide the impetus to do expanded research on my own.  My trust of Time is not higher or lower than New York Times, Fox News, The Economist, Commentary.  
2158  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Re: Political Rants & interesting thought pieces on: January 03, 2011, 06:44:14 AM
I figured that was your take on FDR.  Could you please read the entire article, though?  Again, interesting ideas are introduced and discussed.
2159  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Re: Media Issues on: January 03, 2011, 06:40:16 AM
Both the compliment to you and the attendant insult to Time are intended  cheesy


Good article GM.  I still stand by my contention that Time, or other outlets, can introduce stories that have not been covered by other outlets, though. 
2160  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Re: Political Rants & interesting thought pieces on: January 02, 2011, 08:32:48 PM

20 predictions for the next 25 years
From the web to wildlife, the economy to nanotechnology, politics to sport, the Observer's team of experts prophesy how the world will change – for good or bad – in the next quarter of a century

1 Geopolitics: 'Rivals will take greater risks against the US'

No balance of power lasts forever. Just a century ago, London was the centre of the world. Britain bestrode the world like a colossus and only those with strong nerves (or weak judgment) dared challenge the Pax Britannica.

That, of course, is all history, but the Pax Americana that has taken shape since 1989 is just as vulnerable to historical change. In the 1910s, the rising power and wealth of Germany and America splintered the Pax Britannica; in the 2010s, east Asia will do the same to the Pax Americana.

The 21st century will see technological change on an astonishing scale. It may even transform what it means to be human. But in the short term – the next 20 years – the world will still be dominated by the doings of nation-states and the central issue will be the rise of the east.

By 2030, the world will be more complicated, divided between a broad American sphere of influence in Europe, the Middle East and south Asia, and a Chinese sphere in east Asia and Africa. Even within its own sphere, the US will face new challenges from former peripheries. The large, educated populations of Poland, Turkey, Brazil and their neighbours will come into their own and Russia will continue its revival.

Nevertheless, America will probably remain the world's major power. The critics who wrote off the US during the depression of the 1930s and the stagflation of the 1970s lived to see it bounce back to defeat the Nazis in the 1940s and the Soviets in the 1980s. America's financial problems will surely deepen through the 2010s, but the 2020s could bring another Roosevelt or Reagan.
2161  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Re: Media Issues on: January 02, 2011, 08:30:32 PM
Thanks for the (backhanded) compliment.  I think. 
2162  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Re: Media Issues on: January 02, 2011, 07:22:45 PM
I got your email, and will read it in the AM.  I take your point, but I still see merit in the Time piece.  It is silly, I think, to assume that a single news outlet will provide the whole story.  Bias will persist whether political, geographical, gender etc.  What the stories can do is bring them to our attention and then allow us to research the background stories.  A little research never hurt anyone! 

Thanks for the story. 
2163  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Education on: January 02, 2011, 06:35:29 AM
FIRE is, in my opinion, a very good organization.  In my adult life, I have dealt with public and private colleges and universities in several states and in varying capacities.  I can tell you first hand that many are becoming more controlling of speech than they were even 10-12 years ago (and even then there were control issues).  I can also tell you from first hand experience that several have begun to relinquish some of that control.  There has been some backlash from faculty and students that have led to this.  Organization such as FIRE are also an intrical part of this movement, again in my opinion. 

There are some good media reactions to speech control on campuses as well.  Two of my favorite:

1.  PCU, a very funny, low budget film from the mid-1990's starring Jeremy Piven, Jon Favreau, and David Spade.  See below for a trailer that fails to fully illustrate or even hint at the depth at the attack on PC. 

2.  "Free Speech for me but not for Thee" by Nat Hentoff (who has written several books on the subject of free speech).  This book includes several examples of censorship on campuses.
2164  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Re: Media Issues on: January 02, 2011, 06:13:58 AM

When I saw it was Time magazine I pretty much stopped right there.   My disrespect for this publication is such that I cannot be bothered to say why.  Its like when someone asked Louie Armstrong what jazz was, he is said to have answered "If you have to ask, I can't tell you."  cheesy

I will say that I seethe quite a bit that the same folks here in the US who did their very best to sabotage and undercut our efforts there complain that it did not go well.   This is not to say that there was not a loyal opposition; it is only to say that there was a very disloyal one too and that the damage it did was incalculable.

That's too bad.  Several of the stories were ones that I found interesting.  Jihadists in Somalia and unrest among the Irani powers that be, for instance. 
2165  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Re: Media Issues on: January 01, 2011, 06:39:29 PM
This is an interesting article.  I agree that there are many important events that somehow fail become stories.  Here is another list of underreported news in 2010.,28804,2035319_2035317,00.html
2166  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Education on: December 30, 2010, 11:24:33 AM
I thought the crux of the article was the lack of philosophy in the class room.  In particular, the lack of teaching critical thinking, according to the author, has led to a perilous situation in the American educational system. 

GM (and others), I post articles that I think are interesting, thought provoking, worthwhile reading, or worthy of discussion.  I don't necessarily agree with any, or all, of the author's contentions, ideas, or viewpoints.  Not everything is a personal attack, an attack, personal, or worth getting bent of shape about
2167  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Education on: December 30, 2010, 11:11:48 AM

"Some trumpet as solutions the usual neoliberal bromides — charter schools and for-profit private schools at all education levels. But, according to numerous studies, these schools rarely live up to the hype."

**Do you agree with this?

Very few things live up to the hype. 
2168  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Education on: December 30, 2010, 09:13:23 AM
GM, I am not sure why you are asking me that question based on the article I posted. 
2169  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Education on: December 30, 2010, 07:09:40 AM

Education Rediscovered

The reasons why public education is suddenly an issue despite years of neglect by politicians and the media are straightforward. In this depressed economy credentials seem to have lost their advantage. Many parents and politicians claim schools have failed to deliver what students need. There is a widespread perception that illiteracy is rising, meaning, for one, that fewer people can read complex texts. And the results of No Child Left Behind with its draconian high-stakes standardized testing have been disappointing, to say the least.

Mainstream educators and commentators warn that the United States, once a leader among advanced capitalist societies in graduation rates, has fallen to 12th place and is still tumbling. Many are concerned that education has become a national security issue. Others point out that the engines of the global economy are math and science and this country is turning out fewer trained physicists, chemists, biologists, mathematicians and computer scientists.

Some trumpet as solutions the usual neoliberal bromides — charter schools and for-profit private schools at all education levels. But, according to numerous studies, these schools rarely live up to the hype. Others have rejected the long American experiment with progressive education, in which students are the subjects of schooling, not just its object. In the 1980s, school authorities decided that kids needed more discipline, more time in school and more homework. The latest brilliant policy concept is to reward or punish teachers for their students’ performance.

Teachers unions have soundly rejected this particular “solution,” calling it a blatant attack on teacher professionalism and living standards. In a time of severe cuts in school funding, however, many locals of both major national teacher unions have meekly accepted layoffs, increased class sizes and performance criteria. Above all, neither the unions nor educational authorities have offered serious alternatives to the conservative-led drive toward neoliberal privatization. And the left seems content to roll out the usual proposals: more money for schools, wider access for poor and working-class students of color to higher education and an end to privatization.

While these reforms are necessary, they are hardly sufficient. The right wants to keep kids’ noses to the grindstone by testing them into submission, hand off schools to the for-profit sector and throw unworthy, disruptive kids out of school or at least relegate them to “special education,” the only thriving sector in K–12.

Most liberals lack a similarly direct and powerful program. They may praise the centrality of critical thinking, a legacy of the progressive era, but they mainly offer band-aids. That’s because liberals have accepted the dominant framework that education, or more accurately, schooling should serve the economy by training students to take their respective places in the world of work.

Not true. What radicals should offer handwringing liberals is what radicals do best: go to the root of things. Education should be a preparation for life, especially helping kids become active in determining the conditions that most affect them.

........ (there is more in the link)
2170  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Issues in the American Creed (Constitutional Law and related matters) on: December 30, 2010, 06:56:45 AM

Humanoid Rights
The ACLU looks to science fiction to prepare for future threats to civil liberties

A few months ago I watched Moon, a 2009 indie science-fiction film, with a friend who works on public relations for the American Civil Liberties Union. The movie centers on Sam Bell, a solitary laborer who spends his days extracting helium from moon rocks and drawing comfort from correspondence with his pregnant wife on Earth. That is, until he discovers he's actually one of a series of short-lived and expendable human clones bred for the dangerous, repetitive work of moon mining. After Bell outsmarts the automated systems and escapes on a vessel bound for Earth, a tangle of audio broadcasts lets us know that the mining company's stock is crashing due to charges of crimes against humanity.

As the credits rolled, my friend said to me, "I'd like to think that when that guy got to Earth, the ACLU would have taken his case."

The idea of the ACLU battling a private corporation over whether clones are human beings or pieces of property may seem far-fetched. But almost a decade ago, the organization started thinking about how to do it.

2171  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Issues in the American Creed (Constitutional Law and related matters) on: December 21, 2010, 06:13:18 AM
Sandy Levinson is an extremely influential constitutional scholar.  Some of his more interesting work deals with what he calls "constitutional stupidities."  Here is one of his articles:
2172  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Legal issues on: December 17, 2010, 09:31:12 AM

Assembling the Global Baby


In a hospital room on the Greek island of Crete with views of a sapphire sea lapping at ancient fortress walls, a Bulgarian woman plans to deliver a baby whose biological mother is an anonymous European egg donor, whose father is Italian, and whose birth is being orchestrated from Los Angeles.

She won't be keeping the child. The parents-to-be—an infertile Italian woman and her husband (who provided the sperm)—will take custody of the baby this summer, on the day of birth.

The birth mother is Katia Antonova, a surrogate. She emigrated to Greece from Bulgaria and is a waitress with a husband and three children of her own. She will use the money from her surrogacy to send at least one of her own children to university.
2173  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Re: Legal Issues created by the War with Islamic Fascism on: December 16, 2010, 02:05:02 PM

Italian court increases sentences for 23 CIA agents

ROME (AFP) – An Italian court upped the sentences for 23 CIA agents convicted in absentia of abducting an Egyptian imam in one of the biggest cases against the US "extraordinary rendition" programme.

The 23 CIA agents, originally sentenced in November 2009 to five to eight years in prison, had their sentences increased to seven to nine years on appeal in what one of the defence lawyers described as a "shocking blow" for the US.

2174  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Issues in the American Creed (Constitutional Law and related matters) on: December 16, 2010, 05:18:19 AM
"Instead of this crucial question being decided by one conservative judge in Virginia, it will likely be decided by one bizarre, unpredictable judge in Washington, Anthony Kennedy." From DougMacG, in a different thread

There has been a recent fascination with Justice Kennedy, no doubt spurred by Justice SDO retiring in 2006.  Her retirement left Kennedy as the "swing" justice.  As a result of this, there has been a fair amount of research done by political scientists, journalists, and law professor types.  Most of them conclude that Kennedy is not as unpredicatable as is popularly understood.  

Some examples:

Linda Greenhouse's "Is the 'Kennedy Court' Over?" which can be found here:

Frank Colucci's Justice Kennedy's Jurisprudence: The Full and Necessary Meaning of Liberty reviewed here:

Helen Knowles' The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty reviewed here:

Vol. 19 No. 5 (May, 2009) pp.347-350
THE TIE GOES TO FREEDOM: JUSTICE ANTHONY M. KENNEDY ON LIBERTY, by Helen J. Knowles.  Lanham, Maryland: Rowman & Littlefield, 2009.  312pp.  Hardback. $44.95/£30.00/€44.50.  ISBN: 9780742562578. 


Reviewed by Tobias T. Gibson, Department of Political Science, Monmouth College.  Tgibson [at]


With the recent announcement that Justice David Souter is retiring from the United States Supreme Court, there has been a great amount of wordage from journalists and judicial scholars about the type of justice that President Barack Obama will nominate to fill Souter’s seat.  There is much discussion about the strength of decisions that the new justice will pen, especially given Souter’s reserved judicial demeanor.  However, many court watchers believe that junior justices, like children in days past, are to be seen but not heard.  Helen J. Knowles, in her excellent book, offers some insight into how a junior justice can have profound impact on the Supreme Court.  Knowles suggests that Kennedy, as a junior justice, made significant jurisprudential arguments when still a junior justice on the Court, and continues to do so today.


Knowles chronicles Justice Anthony Kennedy’s career and jurisprudential views, especially as they relate to three important areas of civil liberties: privacy, race and speech.


Knowles uses the Introduction of the book to suggest that Kennedy’s reputation of writing opinions which are “doctrinally weak” does not do justice to the Justice.  Instead, the purpose of this book is “to try to identify some of the most prominent and important philosophical and legal threads that are woven into the cloth from which Justice Kennedy’s jurisprudence is cut” (p.2).  Knowles starts from the assertion that Kennedy is a “moderate libertarian.”  This assertion stems from Kennedy’s avoidance of radical legal positions, coupled with his belief in diverse views and protection of human dignity. 

Importantly, Knowles approaches this study from a perspective related to neo-institutionalism and the strategic model of judicial decision making.  Knowles views this as a key element in the book, because like the adherents of these models, she is “interested in asking why justices vote the way they do and how they are constrained and/or influenced by the broad political, historical, and cultural contexts within which they work” (pp.9-10).


In Chapter 1, Knowles begins to attack her overall hypothesis by defining libertarianism, with the assistance of such luminaries and Robert Nozick, Jeremy Bentham, John Locke and John Stuart Mill (whose ON LIBERTY is purposefully part of the title of the current book).  Following the definition, the challenge is to see Kennedy’s application of libertarianism.  Knowles uses interviews and speeches to convince the reader that Kennedy is a moderate libertarian who believes in tenets of libertarianism, such as toleration and personal responsibility.  More importantly, in direct contrast to [*348] Justice Antonin Scalia and failed Supreme Court nominee Judge Robert Bork, Knowles notes that during his confirmation, Kennedy testified to the Senate about his broad understanding of rights that are not specifically enumerated in the Constitution.


The second chapter begins the heart of the book and focuses on Justice Kennedy’s views on the freedom of speech, which, for Kennedy, is particularly sacred because he sees speech as the “beginning of thought.”  Knowles introduces this chapter with a quote from Justice Kennedy in INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS v. LEE (1992): “The First Amendment is often inconvenient.  But that is beside the point.  Inconvenience does not absolve the government of its obligation to tolerate speech” (p.53).  This is an important belief for Kennedy and can be seen throughout his defense of speech.  Knowles predictably, and correctly, also utilizes Kennedy’s famous concurring opinion in TEXAS v. JOHNSON (1989).  The most interesting portion of this chapter, however, is the discussion about Kennedy’s views about the use of “strict scrutiny,” which was first made public in SIMON & SCHUSTER v. CRIME VICTIMS BD. (1991).  Kennedy makes the argument, again in a concurrence, that the strict scrutiny test, applied in the opinion of the court, is unnecessary.  Kennedy feels this way because he believes that the strict scrutiny test “has no real or legitimate place when the Court considers the straightforward question whether the state may enact a burdensome restriction of speech based on content only” (p.69).  Knowles acknowledges that Kennedy’s position toward the freedom of speech is not absolute, but carefully notes also that even when his view is “tempered by the realities of the different cases he has confronted” (p.87), he remains true to his root belief that government should not try to control the thoughts or expression of its citizens. 


In the third chapter, Knowles then turns to individual dignity, rather than “membership” in a group, based on race, sexuality or other particular characteristics.  Knowles again does a convincing job of illustrating Kennedy’s dedication to libertarian ideals in this chapter.  She effectively draws upon ROMER v. EVANS (1996) and LAWRENCE v. TEXAS (2003) to make the point that in this area of law, Kennedy views too much governmental intrusion to be at odds with individual freedom.  At issue in ROMER was a Colorado state constitutional amendment that prevented discrimination on the basis of sexual orientation.  Kennedy wrote that the amendment was “so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects” (p.110).  Similarly, in LAWRENCE, Kennedy takes the Court’s decision in BOWERS v. HARDWICK to task by writing “Bowers was not correct when it was decided, and it is not correct today” (p.116).  His reasoning for this is that “Liberty protects the person from unwarranted government intrusions into a dwelling or other private place. . . . And, there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence.  Freedom extends beyond spatial boundaries” (p.121). [*349]


In the following chapter, Knowles extends the discussion of Kennedy’s aversion to group based characterization of the individual.  Here, the focus turns to race.  The case at the heart of the discussion in this chapter is METRO BROADCASTING v. FEDERAL COMMUNICATIONS COMMISSION (1990), in which preferential treatment for minority owned communications companies was given in issuing federal communications licenses.  Kennedy dissented from the majority opinion which upheld these preferences in support of diversity.  Kennedy voiced his preference for strict scrutiny here, which was at odds with the less exacting test employed by Brennan.  Kennedy, in writing what one commentator described as an “apocalyptic” dissent, compares the majority opinion to the infamous PLESSY and KOREMATSU decisions.  He elaborates on this by stating “[p]erhaps the Court can succeed in its assumed role of case-by-case arbiter of when it is desirable and benign for the Government to disfavor some citizens and favor others based on the color of their skin.  Perhaps the tolerance and decency to which our people aspire will let the disfavored rise above hostility and the favored to escape condescension” (p.137).  Knowles presents an impressive discussion of several cases here to make the point that Kennedy’s real concern is that, by focusing on group characteristics, the individual’s freedom is jeopardized because the individual cannot have all of the characteristics of the group.


The fifth chapter focuses on abortion cases, with a particular nod to PLANNED PARENTHOOD v. CASEY (1992) in which Kennedy coauthored the opinion of the Court with Justices O’Connor and Souter.  Because Kennedy’s view is that there is no clear boundary of where individual liberties lie with regard to abortion, Knowles makes the argument that Kennedy’s understanding of abortion rights is based on the “relationships between (1) libertarianism and abortion and (2) libertarianism and personal responsibility” (p.163).  Knowles supports this, observing that, while Kennedy and the other authors note the importance of the woman’s liberty to have an abortion, the decision is not “isolated in privacy.”  This observation allows Knowles to come full circle from the first chapter, where she defines and describes Kennedy’s limited libertarian view.


The conclusion serves to reiterate the points made in the prior chapters.  Knowles also uses this opportunity to note the political importance of understanding Kennedy’s views.  For example, in the first term since John Roberts and Samuel Alito took their seats on the bench, Knowles reports that Kennedy was the sole justice to be in the majority in all 5-4 decisions.  Perhaps the best indication of Knowles’ view of Kennedy on the current Court is the title of the concluding chapter: “It all Depends on Justice Kennedy.”


In THE TIE GOES TO FREEDOM, Knowles utilizes several sources.  The primary sources come from Justice Kennedy’s opinions written during his tenure on the High Bench.  Additionally, Knowles uses material from Kennedy’s speeches and written articles, and interviews he has given.  Another strength of this work is Knowles’ ability to buttress her arguments between and among chapters.  Although the chapters [*350] facially are unique, there are clear connections through the book.  Additionally, Knowles does a wonderful job of displaying that Kennedy is not inconsistent with his jurisprudence or that he falls victim to the “Greenhouse Effect” by trying to please the reporters on the Supreme Court beat.


This book serves an important purpose.  While Knowles focuses on Justice Kennedy, because of his position on the Supreme Court as the median justice, THE TIE GOES TO FREEDOM is also suggestive of the policies we are likely to see coming from the Court for years to come.  Knowles’ work packs a punch and could be considered required reading for any number of undergraduate and graduate courses, including the typical constitutional law and jurisprudence classes, but also those related to the institution of the Supreme Court.  This book is one of the more interesting and well written books that I have read in recent years.



BOWERS v. HARDWICK, 478 U.S. 186 (1986).




KOREMATSU v. US, 323 U.S. 214 (1944).


LAWRENCE AND GARNER v. TEXAS, 539 U.S. 558 (2003).




PLESSY v. FERGUSON, 163 U.S. 537 (1896).


PLANNED PARENTHOOD v. CASEY, 505 U.S. 833 (1992).


ROMER v. EVANS, 517 U.S. 620 (1996).




TEXAS v. JOHNSON, 491 U.S. 397 (1989).


© Copyright 2009 by the author, Tobias T. Gibson.

2175  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Issues in the American Creed (Constitutional Law and related matters) on: December 16, 2010, 05:01:39 AM
Health Suits Stir Concerns on Court Partisanship

Representative Pete Stark, a California Democrat who leads the Ways and Means subcommittee on health, added, “Apparently Republicans are now for judicial activism after they were against it.”
2176  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Re: The Politics of Health Care on: December 13, 2010, 01:40:28 PM
A copy of the memo opinion from Judge Hudson:
2177  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Legal issues on: December 09, 2010, 09:40:20 AM
Despite being recommened to me by a social scientist (and we know how those people can be), here is an interesting blog related to the states legal challenges to the Health Care Bill.
2178  DBMA Martial Arts Forum / Martial Arts Topics / Re: Feb 4-6: Guro Crafty in Chicago on: December 03, 2010, 11:30:19 AM
I'll see you there, sir. 
2179  DBMA Martial Arts Forum / Martial Arts Topics / Re: WHERE IS THE FOOTWORK!?! on: December 02, 2010, 09:48:32 PM
I am a bigger fighter than most, and my footwork is still evolving.  That said, I would second what Guro says above.  I would also make a point training the footwork from any number of the DVDs that are on the website, including the FW DVD from RCSF series 1 and the Combining Stick and Footwork from series 2.  And repeat.  And repeat again.  Perfect practice makes perfect. 

Does he have an athletic background?  If so, use the footwork he has developed in his prior experiences help him.  I wrestled and played OLine.  That footwork has helped me.  I would also encourage him to develop a game based on his assets.  Size does matter.  Trying to make him move like a small man will only serve to frustrate both of you, and probably harm him more than help him. 

My 2cents. 
2180  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Humor/WTF on: December 02, 2010, 09:34:34 PM
This is the "appropriate" thread for this.  I am 99.99% sure this is fake.

A 47 year old gay man was arrested at San Francisco International Airport after ejaculating while being patted down by a male TSA agent.  Percy Cummings, an interior designer from San Francisco, is being held without bail after the alleged incident, charged with sexually assaulting a Federal agent.
According to Cummings’ partner, Sergio Armani, Cummings has “multiple piercings on his manhood” which were detected during a full body scan.  As a result, Cummings was pulled aside for a pat-down.  Armani stated that the unidentified TSA agent spent “an inordinate amount of time groping” Cummings, who had apparently become sexually aroused.  Cummings, who has a history of sexual dysfunction, ejaculated while the TSA agent’s hand was feeling the piercings.  The TSA agent, according to several witnesses, promptly called for back up.  Cummings was thrown to the ground and handcuffed.

A TSA spokesperson declined to comment on this specific case, but said that anyone ejaculating during a pat-down would be subject to arrest.

2181  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Legal issues on: December 02, 2010, 01:03:26 PM
The question of elected and unelected judges is very interesting, and more complicated than that sounds.  For example, the Iowa vote was a form of impeachment by the voters.  The new justices will still be appointed and confirmed by the state executive and legislative branches respectively (as I understand it).  Urban legend here in Minnesota is that the best judges were picked by the wholly unqualified independent governor, Jesse the wrestler, because he did not have a pool of partisan, party, political paybacks to attend to and was able to select based only on merit.  That being the exception rather the rule indicates that the ordinary process of appointment-confirmation is less than perfect and objective also. 

The Des Moines register contemplates the question of how the ousters will affect the pool of potential new justices.   My feeling is that of course it has an effect but the experience of being ousted puts you in private practice with increased pay and the credential of being a former supreme court justice.  That is not all bad, so it seems to me that a good justice will still do what is right in their mind and not necessarily cling to power like a typical Washington politician.

The full faith and credit clause pointed out by bigdog is what makes these policy questions settled by such small numbers of people so huge in implication.

Regarding Stevens, thank you bigdog for conceding point 3) to me. (smiles!)  For some reason I never see that point acknowledged in death penalty discussions.  Important context of point 3) is that Stevens prefaced his 5 points with this: "To be reasonable, legislative imposition of death eligibility must be rooted in benefits for at least one of the five classes of persons affected by capital offenses."  I will settle for one out of five and rest my case. 

Clarifying my point on elitism, I only intended it as a negative when judging the benefits of the general public as per Stevens point 4).  I certainly value choosing the finest minds and highest character for the people who will review the technical arguments of constitutional and case law for interpretation, though I often disagree with them.

Unequal application is a concern.  I hadn't seen the argument before regarding elected/unelected judges.  I see it made over black vs. white convicts and don't know what to make of it.  What I see in the neighborhoods is how unfair it is that black people are disproportionately crime victims in black neighborhoods, not that the guilty are pursued or punished too harshly. 

You are a thoughtful chap, DougMacG.  Please note that only mostly conceded the point to you, and raised another potential issue.  I agree with you on the importance of the Full Faith and Credit clause.  Illinois has OK'd civil unions, in the legislature.  Interesting, given our current train of discussion. 

There is certainly no perfect method of judicial selection.  There are issues that one can find in any selection process.  I think it is a good thing that we have 51 (or more, really) judicial systems within the United States.  It allows the states to be more mindful of the needs of their residents.  And, yes, I just made a (pseudo) states rights argument.  I do like the states as "laboratories of democracy."
2182  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Legal issues on: December 02, 2010, 12:56:19 PM
     Taking a line from one of my favorite movies, "What we have here is a failure to communicate."  In the state of nature, at least as I conceive it, it is every man for himself.  This means that there are no formalized groups, no cultural mores, and no us vs. them.  It more more me vs. "all y'all".  In every instance that you described, Dutch vs. slaves, tribe vs. tribe, etc. there is one formalized group that has taken liberties with "the other."  All this is a smaller version of war.  England vs. France, US vs. Germany and the like. 

Our bipedal, prehuman ancestors were slower and weaker than most anything else, especially the predators. Only working in groups could they survive. The same is true today. No man or woman is an island. We emerge from parents, are socialized (or not) and fuction (or not) within whatever culture/tribe/nation we find ourselves. We reflect both nature and nurture. Isolated humans don't tend to do well, either physically or mentally. Prison inmates that are segrigated from othes, tend to develop serious mental illnesses, even with no history of mental illness.

Survival experts can teach you how to survive until you make to a place where other humans are. Very few can teach you how to exist long term away from any human culture. A hunter-gatherer in the Amazon rainforest or the Highlands of New Guinea are experts at surviving in those environments, they still need their fellow humans for long term survival.

I agree.  But that means that the State of Nature is a construct.  It was used by philosophers to construct the need for the constructed social contract. 
2183  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Legal issues on: December 02, 2010, 06:36:28 AM
All of that said, the chimp article is really interesting.  Thank you for sharing it.   
2184  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Legal issues on: December 02, 2010, 06:35:29 AM
     Taking a line from one of my favorite movies, "What we have here is a failure to communicate."  In the state of nature, at least as I conceive it, it is every man for himself.  This means that there are no formalized groups, no cultural mores, and no us vs. them.  It more more me vs. "all y'all".  In every instance that you described, Dutch vs. slaves, tribe vs. tribe, etc. there is one formalized group that has taken liberties with "the other."  All this is a smaller version of war.  England vs. France, US vs. Germany and the like. 
2185  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Legal issues on: December 01, 2010, 09:28:27 PM
All of your examples are societies with social contracts taking advantage of those outside of their own social contract.  I was not singling out the US slave history.  i was using it as an example.  You still haven't illustrated this horrible state of nature you claim is the basis of human interaction without government.
2186  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Legal issues on: December 01, 2010, 08:52:17 PM
"Sadistic torture for enemy captives" does not undercut the idea of a peaceful state of nature (at least not as a stand alone example).  This happens within a social contract also.  See, for example, early American history.  Slaves were born outside of a social contract, had no chance of entering the social contact, and were still abused.  That did not make the early United States a state of nature. 
2187  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Legal issues on: December 01, 2010, 04:57:29 PM
The social contract has been discussed by philosophers, they didn't invent it, just as physicists didn't invent gravity.

Nature and that includes humans are "red in tooth and claw". A quick look at how humans exist across the planet and through recorded history shows that places that lack the rule of law and/or the protection of individual freedoms are not the places most would want to live, though that tends to be the nasty, brutish reality for most humans.

My desire is to preserve the rule of law and public safety while balancing the rights and freedoms of the individual. Neither is absolute.

Cute.  One difference is that gravity is viewed through the same lens.  Bodies with more mass have larger gravity, etc.  There are, in contrast, several different conceptions of the social contract.  While Hobbes's created view of the state of nature is one in which people's fates are terrible, this need not be the case (see Locke).  And, how the SON is viewed plays a major role in the desired and expected powers and actions of the government which is set up to end the state of nature. 
2188  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Legal issues on: December 01, 2010, 10:31:44 AM
My view of the social contract is informed by my interactions with those involved in the various aspects of the criminal justice system, including those who have committed violent crimes seeking their own vision of justice, mostly what NPR calls "Members of the gang community". Funny enough, they don't often refer to various philosophers when relating their views on "Putting work in for my homie".

But the social contract is a creation of philosophers.  You sound like a Hobbesian, given what seems to be your view of the state of nature.  Once in the social contract, according to Hobbes, the ruler (prefered to be a strong, centralized monarch) has nearly total control of the process of goverance.  Is this something that you desire, so that we do not revert to the state of nature, in which, of course, man's experience is solitary, poor, nasty, brutish and short?
2189  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Legal issues on: December 01, 2010, 10:26:12 AM
Glad to have BD with us.

"when elected judges are more likely to execute than non-elected judges, then there is no equal protection of the laws, and that IS unconstitutional."

The inference being that electing judges is to blame?  Can we not equally say that unelected judges abusing the power which is in their hands to insert their own opinions are the unconstitutional ones?

Thank you, sir.  As I said, I believe this is one of the points that Justice Stevens is making in his book review, yes.  And your second point is one that can, indeed, be made.  As I mentioned there is a great deal of debate about the selection process of judges currently.  Again, I recommend the Bonneau and Hall book mentioned above. 
2190  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Legal issues on: December 01, 2010, 06:28:43 AM
I think this is exactly Justice Stevens' point.  For example, when elected judges are more likely to execute than non-elected judges, then there is no equal protection of the laws, and that IS unconstitutional. 

Your view of the social contract is incomplete.  First, there are many ideas about the genesis and structure of the social contract, what binds members to society, and the like.  Hobbes, Locke, Rousseau, and more recently John Rawles have very different views on the composition of the social contract.  Some might argue that the family and friends of the victim cede the state's criminal justice power period, with no guarantee that the family or friends are satisfied with the "tangible" justice the state decides on.  And, that could benefit death penaly proponents.  If the family of a murder victim did not want the death penalty, it is still within the descretion of the prosecutor and judge to seek and sentence the death penalty.  There is no reason that the state would seek the family's preferences on this.

The 5th Amendment

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

** "nor be deprived of life, liberty, or property, without due process of law". So, as long as due process of law occurs, then the deprivation of life is constitutional.**
2191  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Legal issues on: December 01, 2010, 06:20:10 AM
Thank you, DougMacG for your kind words.  Before I discuss your points, and GM's excellent offerings, I want to say that the reason that I posted the JPS piece was not because I agree with his points, but because I thought it worthy of discussion.  A book review by a former USSC justice is noteworthy, in my opinion.

That said, I AM opposed to the death penalty, so the essay worked nicely, in my opinion.  To your points 1-5:

1.  Your formulation is merely a rewording of JPS original view, placing the murdered individual or individuals' family, etc. as victims.  I disagree with this.  To discuss a different crime: I am negatively impacted by shoplifting (higher prices, etc.) but to say I am victim doesn't give the store owner his due.  Can I, or should I, file a class action suit against every shoplifter because I am impacted?  Of course not.  The store merchandise is the target, and the store owner is the victim.  Likewise, the "Butterfly Effect" should not be understood to begin beyond the murdered.  It creates a question for which there can be no answer: who is the victim of a crime?.

2.  It depends on your view of justice.  In the trailer for the new movie "Faster" there is a scene where some lady yells "I hope you kill them all."  This action is meant to be compensatory.  While this is a movie, there are plenty of people who have this feeling in American society.  But there many views of justice (see for a discussion of some of these). 

3.  I will concede point 3, at least mostly.  There are certainly instances where the threat of the death penalty can be a service to the law enforcement community.  However, there are those who fear that the death penalty threat also leads people to confess to crimes they did not committ in an effort to avoid being put to death.

4.  As a martial artist, I am sure you are familiar with the difference between feeling secure and being secure.  Does that make you an elitist?  It also relates to different forms of representation.  For example, should a member of Congress merely represent his consituents, or should he represent the best interest of the country, even if that means that his smaller constituency is effected negatively, at least in the short term?

5.  That is a digression, yes. 

My (admittedly hypothetical) view: let's say there is a gang member who done gang member things, which likely include murder, but who "sees the light" for whatever reason, and decides to make amends.  He dedicates his life to ending gang violence, and several local youth say that his actions prevented them for joining a gang and participating in gang activities, likely including murder.  Is this not redemption, or at the very least an effort to rectify his prior nuisance?
2192  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Gay marriage decision in Iowa has consequences for judges on: December 01, 2010, 05:51:27 AM
Your post opens a great many questions.  There is a fair amount of discussion about the judicial selection process at the state level these days.  Justice O'Connor has been speaking on this subject for years, with a view that elected judges, by definition, are not independent and therefore cannot make unbiased type of decisions.  In contrast, several people including Chris Bonneau and Melinda Gann Hall, in a book aptly called "In Defense of Judicial Elections," support the idea of an elected judiciary.  It is a hot topic at the moment. 

To your other point, it should be noted that there are those who feel as though same sex marriages allowed in one state should be recognized in the other states in the union.  This is because of the Full Faith and credit clause in Article IV of the Constitution which states:

 Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

New rights and more rights, that sounds good.  A state court finding a new right of free health care would be an example?  

How about changing marriage from a man and a woman becoming husband and wife into an any-gender experience - no matter what the people of the state say - and no matter what the U.S. Supreme Court would have said:

"We hold the Iowa marriage statute violates the equal protection clause of the Iowa Constitution."

Iowa voters oust justices who made same-sex marriage legal
2193  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Legal issues on: November 29, 2010, 03:33:48 PM
On the Death Sentence
December 23, 2010
John Paul Stevens 
2194  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Legal issues on: November 28, 2010, 07:10:43 PM
The idea is that if the state courts rely on the state constitution, rather than the U.S. Constitution, the SC would take a hands off approach to reviewing the decision.  It was new in 1985, in Michigan v. Long (the Court's opinion for which SDO authored), because of the prior courts decisions of the 1950's-1970's.
2195  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Legal issues on: November 27, 2010, 08:50:00 PM
This seems like a simple application of what was dubbed "New Judicial Federalism."  Justice SDO would be pleased, I suspect. 
2196  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Re: Homeland Security and American Freedom on: November 14, 2010, 07:59:30 AM
THE INFLUENCE GAME: Shippers fought cargo controls
By SHARON THEIMER, Associated Press Sharon Theimer, Associated Press
Tue Nov 9, 12:56 pm ET
.WASHINGTON – Despite knowing for decades that terrorists could sneak bombs onto planes, the U.S. government failed to close obvious security gaps amid pressure from shipping companies fearful tighter controls would cost too much and delay deliveries.

Intelligence officials around the world narrowly thwarted an al-Qaida mail bomb plot last month, intercepting two explosive packages shipped from Yemen with UPS and FedEx.

But it was a tip from Saudi intelligence, not cargo screening, that turned up the bombs before they could take down airplanes. Company employees in Yemen were not required to X-ray the printer cartridges the explosives were hidden inside. Instead, they looked at the printers and sent them off, U.S. officials said.

The scare is prompting officials in Washington and around the world to rethink air cargo security. On Monday the Obama administration announced new cargo rules banning freight out of Yemen and Somalia. It also restricted the shipment of printer and toner cartridges weighing more than a pound on all passenger flights and some cargo flights. Overall cargo security rules were unchanged.

In Congress, the Senate Homeland Security and Governmental Affairs Committee plans a hearing Nov. 16 to look at whether changes are needed to improve air cargo security. Transportation Security Administration Administrator John Pistole has been asked to testify.

Lobbying by the multibillion-dollar freight industry has helped kill past efforts to impose tough rules.

In 2004, when the Transportation Security Administration considered requiring screening for all packages on all flights, the Cargo Airline Association downplayed a terrorist threat. It argued slowing down shipping for inspections would jeopardize the shipping industry and the world's economy.

"As a practical matter, all-cargo aircraft operators today are permitted to accept freight from all persons and entities all over the world, including unknown shippers,
precisely because of the lack of any credible threat to all-cargo aircraft," the association, whose members included FedEx, UPS and other shippers, told the agency.

The government agreed.

"TSA believes that a requirement to inspect every piece of cargo could result in an unworkable cost of more than $650 million" in the first year, the agency wrote in 2004. The government wanted security, TSA said, "without undue hardship on the affected stakeholders."

The U.S. requires all packages be screened before being loaded onto passenger flights originating in the U.S. But there's no such requirement enforced for all cargo loaded onto U.S.-bound international passenger flights or on cargo-only flights, such as UPS and FedEx planes.

Jetliner bombings in the 1970s and the explosion of Pan Am Flight 103 over Lockerbie, Scotland, in 1988 led the U.S. to examine cargo security long before the Sept. 11, 2001, attacks on New York and Washington made counterterrorism measures a top priority.

Those efforts came in fits and starts. For example, the Federal Aviation Administration and U.S. Postal Service once had such a poor relationship that neither agency carried out their part of a mail security agreement they reached in 1979 after a mail bomb blew up on an American Airlines flight, congressional investigators reported in 1994.

In 2007, a coalition of more than a dozen business groups lobbied against requiring close inspections of packages, arguing in a letter to then-Senate Commerce Committee Chairman Daniel Inouye, D-Hawaii, that applying the same rules to passenger baggage and air cargo would set "an unachievable standard."

Only in August, nine years after 9/11, did the U.S. require that all cargo be screened on U.S. passenger flights. That rule drew heavy lobbying from airlines, air cargo carriers and trade groups. They devoted at least $32 million last year and $28 million so far this year to lobbying in Washington on that and other matters.

The air transportation industry, meanwhile, donated at least $8.3 million to congressional candidates in the 2009-10 election cycle, split almost evenly between Democrats and Republicans, an analysis by the nonpartisan Center for Responsive Politics found.

The TSA, carrying out a 2007 law requiring the screening of all cargo on passenger planes within three years, decided that starting last August it would mandate the screening of cargo on passenger planes loaded in the United States. It said its rule wouldn't apply to cargo placed on U.S.-bound passenger flights overseas, or to

cargo-only flights.

In leaving cargo loaded onto passenger flights outside the U.S. from the August requirement, the agency said it would work with other countries to try to standardize screening requirements and apply "risk assessment" to cargo headed for the U.S.

That decision drew praise from the International Air Cargo Association, whose members include FedEx, UPS and other major shippers.

The industry has long contended that requiring the careful inspection of every package would cost too much and take too long. Its companies want to be able to screen items quickly and they want the government to bear as much of the cost as possible.

A wide range of businesses and organizations have a stake in cargo screening rules. Among those lobbying, the National Funeral Directors Association wants to make sure the requirements do not delay the shipping of human remains and that remains are treated with dignity. The Association of Zoos & Aquariums doesn't want screening to harm animals as they are transported to zoos and other wildlife institutions, or endanger the people inspecting them.

Monday's announcement of new cargo rules came after Homeland Security Secretary Janet Napolitano held a conference call last Wednesday with cargo industry giants FedEx, UPS, German-based shipper Deutsche Post DHL AG and Netherlands-based TNT. On the call, Napolitano "underscored her commitment to partnering with the shipping industry to strengthen cargo security," her agency said.

The air cargo industry isn't short of political connections. FedEx spent $19 million lobbying from January through September alone; its chief executive, Frederick W. Smith, raised campaign money for Republican President George W. Bush and President Barack Obama's 2008 GOP rival, Sen. John McCain, and has made the White House guest lists of at least three presidents: Obama, Bush and Bill Clinton.

FedEx and UPS have served on various federal agency advisory panels over the years, and the head of the Cargo Airline Association has been part of an aviation security advisory committee. Association lobbyist Gina Ronzello used to work for the U.S. Transportation Department's inspector general, with a focus on aviation issues, and was a congressional aide. A Bush administration Customs and Border Protection official, Michael Mullen, lobbied last year for the Express Association of America, whose members included FedEx, UPS, DHL and TNT.

2197  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Re: The Politics of Health Care on: September 14, 2010, 09:07:56 PM

Thank you for that thoughtful analysis.

Thank you to you and DougMacG for the invitation, with apologies for my inability to be a consistent participant in this forum. 
2198  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Re: The Politics of Health Care on: September 14, 2010, 03:22:12 PM
Guro Crafty, DougMacG, et al,
     The starting point of this article is sound, in that it is true that bills usually have separable ("severance") contents to them, in large part due to the understanding that bills can be overturned in part, but not necessarily in whole, by the federal courts.  (Sidenote: the Supreme Court, of course, disallowed the president, via the line item veto to do the same due to a violation of the "Presentment Clause" found in Article I.)  So, yes, in theory, the Supreme Court or lower federal court could, in fact, overturn the health care plan in whole, not just in part. 
     However, I am not sure that the author is thinking lucidly in much of the other portions of the article.  For example, he plays very loosely with the language of the Constitution in the article.  He says: "the feds must argue that it is necessary and essential to ObamaCare" and "the feds' oral arguments emphasizing the necessity and importance of the personal mandate" (emphasis mine).  That is NOT what the Constitution says, however.  The Constitution (Article I, section 8, clause 18) says "The Congress shall have power ... to make all Laws which shall be necessary and proper (emphasis mine).  This distinction may be small, but it is important.  "Proper" has historically been taken rather loosely, and expansively.  There has been some change in recent years, but on average, the federal government, even with recent conservative courts (as compared to the Warren Court), has most often sided with the national government in Commerce Clause cases. 
     I also think that he misunderstands the power that courts have.  Courts are weak, by design.  Alexander Hamilton wrote famously that the federal judicial branch lacked "the purse and the sword," powers granted to Congress and the executive branch, respectively.  There is no real enforcement mechanism that court's enjoy.  President Jackson once noted that "John Marshall has made his decision, now let's see him enforce it."  It is true that the federal bench has seen its powers increase in recent years, but that is a function of the powers of the federal government's increased powers, not really the bench vs. the elected branches (see for example Gerald Rosenberg's excellent book The Hollow Hope).  For all the talk of the threat of the judiciary, the fact is that, in some very real ways (appointment by the president ad Senate, salary increases by Congress, control over types of cases the Supreme Court can hear, possibility of impeachment, etc. etc.), the judiciary is not the spectre that many on both sides of the ideological spectrum think that it is. 
     Moreover, it takes enforcement of judicial decisions to make a decision become policy.  The executive branch is charged with that enforcement.  There is an appeals system in place.  The idea that a "single judge can end all that strife" is (very probably) false. 
     Furthermore, I have seen claims in recent news articles that the case discussed by the author and another filed by the Florida are "likely headed to the Supreme Court."  (Remember that , as the article notes, the initial challenge upheld the law.)  I would love to see the evidence for the claim rather than just it being asserted.  The federal district (trial courts) hear more than 300,000 cases a year.  About 60,000 of those cases are then appealled to the Circuit Courts.  Of those, the Supreme Court hears about 80 a year.  Statistically, that means that the case will likely NOT reach the Supreme Court, even it is appealled (the Supreme Court receives about 10,000 appeals a year).  It only takes four justices to hear a case, in what is called the "Rule of Four," so it might seem likely that the Supreme Court would hear the case.  However, assuming it came to Court having upheld the legislation, it seems unlikely that the liberal block would vote to take it.  It also seems unlikely that the conservative block would vote to hear it because they aren't necessarily sure how Kennedy would vote.  Many argue that he has moved "right" since O'Connor's retirement, but he also is a student of international law, much to the chagrin of many conservatives (see his death penalty jurisprudence, for example).  Therefore, he is probably not as concerned as his conservative colleagues about a "European" model of health care. This means that the conservatives would fear the judicial "seal of approval" on the national health care legislation. 
     Finally, there is a very real question about whether the Supreme Court would find the case to justiciable.  The Court has long held that cases which present a "political question," or one that is best decided by the elected branches, would not be heard by that court.  The most famous example of this is the Vietnam war, which had several legal challenges, none of which were ever heard by the Supreme Court.  It is very possible that even ideological sympathetic justices would not wish to hear the case due to the political nature of the question.  (Again, remember that as of now the first legal challenge to the law upheld the law.)  If the Supreme Court refuses to hear a case, the lower court decision would stand in that instance.
     I liked the article because it is interesting and thought provoking, but I think there are holes in the overall assertions made by the author. 
2199  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Issues in the American Creed (Constitutional Law and related matters) on: July 15, 2010, 03:48:41 PM
Backtracking in the thread a bit, I want to comment on some points gone by:

Bigdog wrote: "there may be a self selection problem.  Professors don't make much money, despite the arguments to the contrary.  If may be that conservatives largely take their talents to the private sector, where the pay is better."

I agree with this point.  Not for money alone, but there is an attraction for conservatives to the private sector and for liberals to academia.

"just because a professor is "liberal" (or "conservative") does not mean that they bring politics into the classroom"

In other disciplines such as climate science and economics they certainly seem to. I wonder how Nobel Laureates such as Obama or Krugman could describe the virtues of supply side economics in a classroom while they falsely characterize it publicly. I challenge anyone to find so much as a paragraph written by either of them that describes those arguments accurately or honestly.  Very few of the best political moderators can question without exposing their own view. One firsthand classroom example I experienced was studying economics under the former chief economic adviser to Presidents Kennedy and Johnson.  At the time he was positioning himself to be chief adviser to Ted Kennedy as well, advocating gas rationing and national healthcare in 1980.  He taught and tested only on his view.  He passed out reprints of his WSJ contributions, never opposing views which was the rest of the editorial page.  That may not happen as egregiously in Law but I question how many teachers with very strongly held views can be fair to the other side of an argument.

I wonder how well lecturer Obama presented opposing views on contested constitutional issues.  I question how well someone like Ruth Bader Ginsburg as a lecturer could present the arguments of Thomas on Kelo for example - or vice versa.  Suppose the other side were in attendance, I wonder how they would rate the opponent's explanation of their argument.

As a sample, I wonder how BigDog (or anyone) might frame the pro-DOMA argument (federal defense of marriage act), assuming his personal view is opposite, to give us an idea of how he would frame the argument that the federal government has full constitutional authority to define the meaning of marriage, superseding any states' rights argument...

I can only tell you that my students often try to "figure out" my politics only to say at the end of the semester that they have no idea.  

Pro-DOMA: (This is quick, so don't expect anything too high.)  In the 1960's, the federal government decided that it could mandate that states could no longer outlaw or ban interracial marriages.  Why, now, can't the federal govt. BAN same sex marriages?  

Also, professors can assign readings that cover multiple ideological POV.  

It really isn't as hard as you guys make it seem.  
2200  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Issues in the American Creed (Constitutional Law and related matters) on: July 15, 2010, 06:24:24 AM
Woof Bigdog,
 Yes they do, by restating those ideas and making arguments against them; pro or con the ideas are planted my man.

College isn't like a pre-K education where you point to a picture and say "Car.  Can you say car?  Carrrrrr."  College is a place where you go to learn how to decipher, question, apply.  How can one learn the weakness of an opposing argument without hearing it?

And your earlier point about 2+2 equaling 22 is just silly.  There are no respected mathematicians who say something like that.  There are, however, respected judges who use literalism, original intent, plain meaning of the words, foreign jurisprudence, the value of precedent and many other types of constitutional and statutory interpretation.  As an example, in a Con Law class, in which the decisions/opinions of the Supreme Court are being discussed and evaluated, you can't ignore that justices do not simply use the standard that you happen to prefer. 
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