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Journal Archive 2005, from Geo's Place (Return to home page.)
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Tuesday, December 27, 2005 Christmas has been a relaxing holiday, at least, once I got caught up with end-of-the-year work (about mid-day on Christmas Eve). A nice dinner with friends and then on Christmas day visits to other pals, followed by nice, long chats with my family back in the States (using Skype, which made the phone calls essentially free). RE loot, I got one of my favorite Christmas gifts - chocolate - in great profusion (woo!) and in a couple of days expect to receive my other favorite, a box of books from Amazon! We had planned to go see Carcassonne today, but given the continuing remodel job on the kitchen, we've been delayed. The hope of pouring the new concrete floor was stymied when, at 2 a.m., the water in the hose was frozen and prevented the mixing of more cement! It's just as well, though, since now I can be home to receive my books. Oh, and I'm not going to be stalking the fortifications of a walled city in sub-40-degree weather. I'll try to make it over there this coming spring when it likely will be a far more enjoyable trip. Prowling around Dachau and Flossenburg on a bitterly cold, drizzling December day somehow seems perfectly appropriate (cf. 2002). But if I'm going to be exploring a Cathar stronghold in the south of France, it's more fitting (and pleasant) to do so beneath the blue canopy of a bright, fresh sky. As for the anticipated Amazon delivery, it will contain a baker's dozen books on my to-read list that will constitute my nightstand reading for the next six months, until I head back to the US in late July. Most of them are legal/politics works, with a few history and historical fiction. I'm especially looking forward to reading Justice Breyer's Active Democracy, but they are all items of interest, so I'm anticipating a particularly good reading season coming up. Right now, I'm making my way through Paul Theroux's "Pillars of Hercules" and we've just made it to Barcelona together. It's interesting following him on his travels through places I'm quite familiar with now and surely know much better than him in many cases. But I always learn something new in his treatment, whether it's some historical perspective, something relevant from literature or from an experience he has with one of the locals, perhaps in a social domain with which I'm less familiar. On the movie front, I watched the DVDs of the 10-hour miniseries of the "10th Kingdom" last week and two nights ago watched the DVD of "Big Fish". Both were entertaining, while the latter was also thought-provoking. The idea of living archetypally, as a legend in one's own mind, and thereby revealing truth and achieving the height of human existence, is a compelling theme. I truly believe we each ought to be the protagonist of our own epic story and there is much of mythology and legend that can inspire a good life. Speaking of my own epic, I've been ruminating quite seriously on what my next steps will be when I return to the US. In June I'll step down as Regional Director and possibly take over a role as Director of Strategic Planning to help my successor with a number of key strategic projects. Then head back to the US in July and continue to work for my current employer for another year to help them with the transition. After a year in that capacity, I will need to have some decisions made - well in advance, actually, so I can begin making preparations for continuing education, if appropriate. In this regard, I'm giving serious thought to taking a few courses in public policy and perhaps nonprofit management and law. I'd dearly love to study political science and law more formally - they are deep interests of mine - but I'm not sure they would be the most applicable to what I'd like to do with the rest of my life. The first six months back in the US will be critical to put the final brush strokes on a career plan for the next 20 years and plan my studies accordingly. The attraction to polysci and law is very compelling. Speaking of law and political science, I was extremely happy to see the 4th Circuit's decision on Padilla. It appears that we might have a SCOTUS review on Executive-authorized indefinite detention of US citizens, after all, which pleases me greatly. In other news, I've been very concerned at the apparent violation of FISA constituted by the President's evident authorization of warrantless NSA wiretaps on US citizens. I've been discussing this a lot online this past week, about FISA, the AUMF and Article II. In doing so, I've read and studied more about Title 50, Chapter 36 of the U.S. Code than I ever imagined I would, and I've enjoyed it, too. Indeed, I've found myself educating formally trained lawyers on the wording, history and application of FISA. This has really whetted my appetite to formally study law, I admit.
Without going into the depth of the discussions and arguments and counter-arguments, I'll say that I pretty much agree completely with the outstanding analysis here by Suzanne E. Spaulding. As Balkinization reported on Christmas Day: If You're Going to Read Only One Thing About the NSA Spying Program it probably ought to be this piece by Suzanne Spaulding, former assistant general counsel at the CIA, general counsel for the Senate and House Intelligence committees, and executive director of the National Terrorism Commission (1999-2000). In addition to a superb overview, Spaulding quotes Justice O'Connor on the Hamdi case, reminding me anew why I so appreciate O'Connor's jurisprudence: Justice Sandra Day O'Connor rejected the administration's claim of unchecked power in the 2004 Hamdi case, in which the government argued that the courts could not review the legality of enemy combatant detentions. She wrote, "We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the Nation's citizens. . . . Whatever power the United States Constitution envisions for the Executive in its exchanges with . . . enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake."
Monday, December 19, 2005 In a discussion with a friend of mine recently, the issue of federally mandated welfare and its concomitant support via taxation came up. We are both conservatves, but this is an area in which we disagree somewhat. In online discussions, the topic also arose today, in that case focusing on universal health care. It struck me that this is a good time to journal my thoughts on the topic, since I've been ruminating about this a while, now. As it happens, I am in favor of universal health care coverage for all citizens. It seems only right that a civilized nation, one of the wealthiest in the world, in the 21st Century, would provide for the basic health needs of all it's citizens. This is one of a few classically liberal positions that I embrace and it often strikes my fellow conservatives as being disconnected with my other expressed preference for free market dynamics. As I've mentioned before, though, my view of free markets, while generally positive, is not completely undiluted with caveats, so this perhaps comes as no surprise to those who know me. It wasn't always so. In fact, my views on the need and appropriateness of universal health care began to change dramatically only a few years ago when a close friend of mine passed away. Greg had been unemployed for two years, struggling diligently to find a job. He could not afford health insurance. One night when he awoke with profuse sweating and numbness in his tongue, he was concerned that it could be something more serious than a panic attack or a nightmare. But because he was uninsured, he didn't feel he could afford an ER trip or a doctor's visit. Six weeks later, he died in his bed of a massive coronary. Greg was 40. It was shortly after that I began to reconsider my opposition to universal health care and determined that, if Greg's scenario was being played out thousands of times over in our country, I realized, then there's a serious hole in our country's health care system that a lot of people were falling through, and it needed to be fixed. Libertarians and strong conservatives often suggest that universal health care is a sign of a "nanny state" and that being uninsured (of which there are about 40 million in the US at any given time, according to recent studies by the Congressional Budget Office) are often conflated with a lack of personal responsibility. But while they argue AGAINST the protective "nanny" state, it often sounds as if what they are arguing FOR basically amounts to a disinterested "absentee father" state. The problem I see with Cato's general approach to welfare, which is the same problem with most strong conservatives' views on the subject: they often invoke concepts of personal responsibility and free-market philosophy, suggesting that people should basically pull themselves up by their own bootstraps and that if the "invisible hand" of a free economy were allowed to act unfettered, it would take care of everything. People would take personal responsibility for themselves, competition would lead to efficiency and voila! A kinder, gentler society would result. The problem with this view is that being uninsured is a circumstance which even personally responsible people find themselves in, too. I know, as I've been there myself. And honestly, I know of no one more diligently responsibile than Greg. To trumpet personal responsibility in this way -- as the salve to cure an ailing soiety -- then becomes a means by which some, more fortunate in their circumstances, can look down their nose at the less fortunate and impute to them personal culpability for their misfortune. This then enables a willing acceptance of what amounts basically to social darwinism - if they're in bad financial shape, they somehow deserve their condition, hence, we have no community responsibility to help them out. I reject this. As for appealing to a sense of free market economics, it is important to remember that though the invisible hand of Adam Smith is a powerful force on a macroeconomic scale, it is also an essentially discompassionate one when it comes to addressing each individual person in the economy. It doesn't care, really, if some one individual in Chandler, Arizona is stuck without access to health care and has to make life-compromising decisions because of it. The invisible hand of free market economy only really cares if there is some profit-generating utility to insuring them. If there is not, then that person (or tens of millions of persons) will fall through the cracks. So the idea of appealing to personal responsibility and a free market approach in addressing social welfare is basically to say that we are more interested in supporting a system that provides for MOST people, than for a system that provides for EACH person. And that, to me, is social darwinism and something my sense of morality and community simply won't let me support. Furthermore, the idea that Cato and others would propose personal health savings accounts as a solution to universal health care is pretty laughable, really. If folks could afford to be saving sufficient money to create a meaningful nest egg for such an account, to weather significant illness, they could probably afford a modicum of insurance to begin with. And if someone has significant health problems, they simply will not be profitable to insure unless their insurance premiums are enormous. And if you're poor, that's impossible to manage. So, you can get royally back-slapped (if not simply brushed aside) by the invisible hand that Cato likes to kiss so often. Don't get me wrong - as I've said before, I'm generally in favor of free market dynamics. But I think it's just common sense to realize that they have to be tempered to make sure that those regions of the economy (or society) that you want to preserve and protect are not neglected (or worse, exploited) by a dispassionate market dynamic. Hence, to "promote the general welfare" as stipulated in the preamble of our Constitution requires to be mandated some social programs which -- though they may not accord with a purist's view of free markets -- will effect certain desired, socially imperative outcomes, so they are not simply left up to social darwinist experiments in "the dismal science".
Monday, December 19, 2005 While we're on the topic of Executive Privilege, I think it's important to note the very dangerous waters I think our President is wading around in, lately, on the issue of warrant-less wiretaps on US citizens. The law clearly appears to not be on his side. I would draw attention to the pertinent portion of the Foreign Intelligence Surveillance Act (FISA), which specifically allows for wiretaps without a warrant. Namely, Title 50, Chapter 36, subchapter I, section 1802 This section clearly states that wiretaps under FISA may NOT be conducted without warrant if there is any likelihood of gaining access to communications of US Citizens. The point of this exemption is to allow foreign agents to be tapped under extraordinary circumstances, but to safeguard US citizens from having their right to privacy overridden by this exemption. The FISA therefore dictates a persistent need to secure a warrant when wiretapping US citizens. To wit:
(a)Hence, FISA makes clear provisions for when a wiretap may be conducted without a warrant in extreme circumstances, but stipulates, among other things, that even under those provisions, wiretaps may STILL NOT be conducted on US citizens, unless a warrant is secured. Note that these criteria are inclusive: the case for a warrant-less wiretap must meet all of these criteria to be allowed under FISA. Hence, If the Attorney General represented to Congress that their wiretaps met this criteria under FISA, but we are now learning that US citizens were targeted without warrants, then it seems that the US Attorney General (Ashcroft and Gonzales) may have been in clear violation of subsection a.1.B, above, at the very least, and that could be legally actionable. As this debate has grown, President Bush has recently come out and stated that he believes, based on the Bybee and Yoo memos, to have an "unenumerated" Executive Privilege to approve such warrant-less wiretaps on US citizens, NOTWITHSTANDING the clear wording of FISA, due to the war powers accorded a President at wartime. But the Yoo/Bybee positions are farcical on their face. The idea that the Executive EVER possesses completely unenumerated power to suspend of ignore the law of the land (including the Constitution) is outrageous. The implication would be that as long as we have troops engaged in any military conflict overseas, it could be called a war by the Executive, which would give the President supreme power to ignore any laws. The President could decide to dissolve Congress, jail judges, imprison people based on their race/ethnicity, with total impunity for the law. Sure, the SCOTUS ruled that the President could do exactly that, 6-to-3, in Korematsu v. US, 1944. But Congress subsequently specifically rejected this view of war powers and stipulated their legislative intent that such completely "unenumerated" executive privilege did not exist in wartime (see Personal Justice Denied, 1983). (Fred Korematsu's case, by the way, is an instructive example, I think. The gentleman also just passed away this spring.) Similarly, the President could maintain a position of perpetual, "legalized" autocracy simply by keeping our armies engaged overseas at "war". If the "War on Terror" is a perpetual war (as it appears to be formulated), then the President is suggesting that we will forever be in a context where he could suspend the US Constitution at any time based on his personal evaluation that such was required for national security. There's no way that this is a fair interpretation of war powers. That high-pitched whine you're hearing is the Founding Fathers spinning in their graves at the very idea. As I say, outrageous. Speaking of which, this is breach of law that far outweighs Clinton's perjury or Nixon's illegal acts, in my opinion. Those were illegal and wrong (to varying degrees, depending upon whom you ask, granted). But the idea that our President launched a pre-emptive war, based on false intelligence and is using the state of war to imbue his Presidency with supreme power over the nation (all three of which factors he now admits) is deadly serious business. And the result -- rolling back Constitutional rights to due process and privacy, including habeas corpus, protection from torture and protection from warrant-less government surveillance -- is a direct attack on our foundational Constitutional rights. That this is being done, putatively, for our own "security" is all the more pernicious. We are treading very close to the line of autocracy, here. Indeed, it is the very definition of autocracy for the Executive to gather to himself supreme power to suspend the law of the land. Even Bush supporters have to open their eyes and realize the dangers spread out before us on this path and how the President's argument violates the sense of everything our country stands for and stands upon. The idea that because there are dangerous terrorists in the world, the President of the United States may now arbitrarily surveil US citizens without a warrant, may detain US citizens without a warrant, may deprive US citizens of the right to be charged with a crime in a timely manner upon detention, may prevent US citizens from ever receiving legal counsel, may obstruct a jury trial for those US citizens being accused of a crime, may torture foreign citizens for testimony if desired, and then may use any testimony so gained later against them in a court of law...it's...simply ghastly. Yet those are the very powers President Bush's administration is claiming recently! Re-read that last two sentences again; if it doesn't give you goosebumps, then you're just not paying attention! In any event, the FISA breach sounds like a pretty clear cut case of a crime, cannot be justified by Executive Privilege and the attempt to do so is part of a tapestry of developing trend by the Administration that threatens the very fabric of our country. It clearly deserves hearings, and I'm glad Sen. Specter has gone on the record calling this wrong and promising to stage hearings early next year. Based on the hearings, if the Dems win the House in '06, it is conceivable that we will see impeachment proceedings begin shortly thereafter.
Sunday, December 18, 2005 Much is being said about the McCain antitorture bill, lately (and with good reason). While the McCain bill has some glaring loopholes that allow the government to materially undermine the intent of the legislation, I believe it is still a good step forward in defining the values and expectations of our society. Some have been arguing the need for latitude in torture, citing the possibility of the imminent bomb threat, for example. However, I've never thought an exception for such dire situations needs to be inserted into the law. As I explained on the blog Balkinization today, in response to a similar view expressed by Jack Balkin: Basically, when the need for breaking a law is so extreme in one's estimation that it warrants doing so, one goes ahead and does it and accepts the consequences of that afterward. If I must break into someone's home to save them from a fire, I don't worry about the illegality of breaking and entering. I don't worry about destroying their front door, breaking their window, pulling their frightened child out of the burning house without permission. I trust, however, that the system of justice we have in a civilized society can take the context into consideration when determining whether to charge me for a crime or, if so, on what kind of punishment I deserve. We don't need a set of exceptions to the law against breaking and entering to factor in the possibiity of saving lives from a fire. So with torture. Make a total ban, with the understanding that, if there is such a compelling reason to break the law, it is always within the realm of possibility. But that the one who does it will have to answer to the law afterward as to whether it was truly an overriding, compelling need that drove the breach.
Monday, December 12, 2005 I am a Republican. I, like most of my family, have been Republican all of my life. Indeed, among my very first spoken words - other than childish echolalia - were "Dit Nitson". This, because my Dad worked on Nixon's campaign and we had a portrait of the President in our dining room (I kid you not) right across from my highchair. I was stunned when I heard "Family Ties" character Alex (played by Michael J. Fox), a quintessential Republican teenager, claim the same first words spoken. In fact, I am strongly tempted to believe that somehow my story got around and made it into the show's screenplay. Nevertheless, suffice it to say that being a Republican has been a part of my identity for probably longer than I was ever really aware of politics. Indeed, until recently, I have been pretty happy with that, too. I was a Reagan supporter and, with most Republicans, castigated Clinton when he was in office for any number of things. I've been a strong advocate of fiscal conservatism, a proponent of free trade, small federal government and states' rights. It would be fair for me to say that I've been a moderate or centrist Republican, however, since I generally temper my views with a healthy dose of real-world common sense. I also believe pretty strongly in a more libertarian view of civil rights and personal privacy (which today, strangely, accords more with the Democrats' platform than the Republicans). And I've always respected and appreciated President Carter's faith, dignity and integrity -- I don't think Republicans ever gave him a fair shake and to blame him for the Iran hostage situation, inflation and gas shortage issues is hardly reasonable. In fact, the very idea that I think it's unwise to immediately despise or reject Democrats' ideas just because they happen to be from Democrats is, itself, probably an indicator of a degree of moderation and centrism. I would prefer to say it's simple common sense, except for the fact that it doesn't appear to be all that common. At least, consensus-building and collaborative approaches which I value so much certainly seem to be pretty uncommon among the more vocal elements of both parties. The trend among more radical elements of any political party toward vitriolic partisanship is seriously destructive. Lately, though, I have been exceedingly frustrated with my own party. And it goes beyond issues of civil rights and personal privacy. It doesn't take a genius to see that free trade without fair trade regulation is just economic anarchism. It's a kind of social darwinism that asks society to stand by while grotesque abuses are perpetrated on more fragile elements of the economy. It also asks us to believe that somehow, the best economic scenarios will naturally occur if people are left to self-regulate. As a former businessman and a lifelong entrepreneur, I know the arguments for completely free trade basically ask one to ignore simple corrupt human nature and the profit-driven amorality of "coporations as persons". In my experience and opinion, you have to have a balance of free markets with enough regulation to provide a level playing field, protection from monopolistic abuse and at least a straightforward opportunity for the small businessman to enter and thrive in the market. Similarly, it is not oppressive to hold citizens accountable for contributing to the commonweal via taxation. I appreciate the arguments about where to draw that line. But the fact that we are one of the richest countries in the world, and surely the most technologically advanced, yet we do not have a universal surety of timely access to health care for all of our citizens is strangely dissonant with our sense of what our country means. One could well argue (as this article, written by an evangelical University of Alabama professor of Law, eloquently does) that certain aspects of recent Republican tax cuts are not only socially irresponsible, but even conceivably unChristian. Jesus, himself, exhorted us to "render unto Caesar what is Caesar's". A community-driven purpose of raising everyone up to at least some threshhold of health care, security, education and economic opportunity seems the very least that a society -- one that considers itself civilized in the 21st century, anyway -- should be about. It's not only in the Bible...it's also in the Preamble of our Constitution. Indeed, it is the very purpose for which our Constitution was drafted: "We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."Furthermore, as a passionate defender of fiscal responsibility, the idea that we would have huge tax cuts without predicating them on commensurate spending reductions strikes me as a fantastic abdication of responsibility in our elected officials. And the idea that perceptions of a growing economy are trumpeted loudly in completely willful obtuseness about the constant deficits and growing national debt is just outrageous and borders on the insulting, too. I'm reminded about what Vice Presidential candidate Lloyd Bentsen once said: "If you let me write $200 billion a year in hot checks, I'll give you an illusion of prosperity too," That was a Democrat Senator speaking what should be the mantra of any fiscal conservative today. Yet the politics of identity (or perhaps tribalism) prevents many Republicans from acknowledging the urgency of this issue and holding their representatives accountable on it. And I won't even get into the antiBurkean, neoconservative interventionism in Iraq which is in opposition to nearly every tenet of classical conservatism. Finally, as someone for whom personal integrity is a core issue, the recent scandals among the Republican party are especially upsetting. As noted on the MyDD blog today: Within the past three months, two sitting GOP Congressmen -- Tom DeLay and Randy "Duke" Cunningham -- have been indicted, as have two high-ranking officials in the Bush administration (Cheney chief of staff Scooter Libby and top procurement official David Safavian). Even three of President Bush's top campaign contributors -- "pioneers" Brent Wilkes, Tom Noe and Jack Abramoff -- are either under investigation and/or are expected to be indicted in the near future. This, of course, leaves out the many leading Republicans who might eventually get tied up in the investigation into Abramoff's lobbying activities.The author goes on to note that, in addition, Senator Frist is still under investigation for possible insider stock trading. At first glance, most of these scandals appear to have some basis in truth. I'm frankly tired of this nonsense. Republicans -- and the American people overall -- are worth better than this kind of shameful rejection of classical conservative values. There's a lot of good about the conservative agenda, and it's worth having good proponents to champion it. But the way it's being damaged by those who are supposed to be its greatest champions is painful to endure. Fortunately, we have a number of good elected officials in the US, both Republican and Democrat (including some in Arizona), that are sound proponents of classical, compassionate conservatism and integrity in politics. So there is hope for our country. But for that hope to actually blossom into reality for the Republican party, it's going to take some serious revival and reaffirmation of the party's core values across the board. I only hope that my fellow Republicans have the courage to hold their representatives accountable for this. Otherwise, the Republican party -- and the country -- are in for even worse, I fear.
Sunday, December 11, 2005 Today, when I read a suggestion on DailyKos by frontpage contributor Armando to have Democrats wait until next June before offering a detailed plan on Iraq, I was a little upset. The idea that you'd be seriously suggesting NOT offering constructive help on a matter of such national urgency, simply to time well for an election, seems speak to the worst instincts of political expediency. It also seems like an ignorant election strategy, as well, as far as that's concerned. While I'm not a Democrat, both the moral question of delaying and the electoral strategy of doing so were questionable. So in response, I posted the following: *** It'd be outrageous to wait until June. People are not ignoring this issue now. It's not like considering primary candidates. This is a topic on peoples' lips NOW. If the Dems wait for 7 more months before they suddenly whip out a plan to deal with Iraq three things happen: 1. The Republicans have already spent a half-year cementing in the country's mind that the Dems have no plan. The idea will have lodged in so firmly, with such inertia in the public discourse, that the revelation of a plan will not be able to dislodge it. 2. When a plan is revealed next summer, people are not generally stupid enough to not (at least on some subconscious level) realize that it's timed for the elections. The question that would be in the forefront of my brain: what took you so long, then? Why did you wait until now to propose a plan when we might have been having a dialogue about our options six months ago? Are you so guided by political expediency that you have abdicated your responsibility to provide constructive suggestions until it might redound to your electoral credit? What's wrong with you people? Simply put, the Dems will have lost any credibility for being in the game when it comes to finding a solution. When they finally decide to get in the game, it will be seen by many, I believe, as too little, too late by a bunch of political opportunists that let our men and women twist in Iraq while they positioned themselves for the election cycle. 3. Quite aside from appearances or mindshare or whatever, the very real result of not proposing a plan to deal with Iraq is one of seriously abdicating responsibility as elected officials to be actively contributing to help the country when it needs you most. Frankly, it should make all of us wince in discomfort to give any serious consideration to actually withholding possible constructive suggestions at this stage. We're at war. I frankly expect my elected official to be an active part of finding the solution and not to sit back and wait until the beginning of the next election cycle. The assertion that Dems would withhold such constructive suggestions because "they wouldn't be listened to anyway" simply doesn't hold water. Bush himself and his immediate circle may not be inclined to listen, but you can damn well bet that most of the rest of the country is listening. Hence, why Murtha's proposal - an actual, ballsy, constructive suggestion for a solution - caught fire in peoples' minds! It was a proactive solution and not one couched in the kind of byzantine chess maneuvering about scoring a few more electoral points. It's also why Murtha's suddenly one of the most respected Dems on stage right now. If you lead like that, you can win elections. If you try to lurk in the shadows with your plans for success until some opportune moment a few months before the elections, not only will you probably lose, but you probably deserve to do so.
Saturday, December 10, 2005 The USDOJ responds to the 4th Circuit on Padilla, see here on SCOTUSblog. Unsurprisingly, they trumpet the importance of the high court of not reviewing the case. Hmm! I wonder why the Department of Justice would be so concerned that the case not be reviewed by the Supremes? Seriously, and I can't say it enough, I sincerely hope that the SCOTUS, having the habeas petition before them (and the Al-Marri case pending) will want to resolve the constitutional matter of the Executive Priviledge to arbitrarily classify US citizens in such a way as to deny due process, as is being claimed here. On an unrelated topic, two somewhat humorous examples of frivolous pro se cases I've been reading about following their mention on the Volokh Conspiracy blog, here. The first is the infamous Motion to Kiss my Ass, the text of which ruling can be seen here. The second is United States ex rel. Mayo v. Satan and His Staff, which opinion can be found here. Also interesting, in the comments on the Volokh thread, the note that in one court the 9th Circuit, "close to 80% of their docket consists of either pro-se prisoner claims or pro-se employment discrimination claims". Which, if true, puts the lie to the idea that lawyers are the ones guilty of filing frivolous lawsuits. Finally, a few links to the Right Reason blog's recent three expositions of the conservative philosophy that I found interesting: 1, 2 and 3. And also the Wikipedia articles on Conservatism and American Conservatism. And the link to the wiki entry on Edmund Burke, considered to be one of the fathers of modern conservatism. I think it's safe to say that our present Administration is not populated by Burkean conservatives.
Friday, December 9, 2005 I keep harping on due process because it's so important to me and, I believe, to our country. Hence, my aggravation at the Padilla situation. Similarly, I've been increasingly dismayed by the whole song and dance by the Administration (Bush, Cheney, Rice, McLellan, etc.) on the question of torture. It's not only frustrating, it's insulting. They say "we don't torture" but define torture to allow waterboarding, cold cell and so forth? We've read the memos by Rumsfeld and Gonzales and heard Cheney say how our CIA should be given waivers from the new McCain anti-torture bill. They say "we don't torture" but then, in the same breath, Rice says they will do pretty much what they "have to do" to combat terrorism. They say "we don't torture" but leave the door open to supporting and facilitating torture conducted on behalf of the US by other countries which aren't so squeamish (via rendition). They say "we don't torture" but then indicate that, oh yes, other countries are complicit in whatever we've been doing, so they should back off of their rhetoric unless they want the whole story to come out. They say "we don't torture" but then apply that statement to the narrowest conditions: US citizens on US soil in nonfederal facilities that happen to NOT be classified as enemy combatants, on alternate Tuesdays, etc.... They use every rhetorical trick in the book to avoid accountability on this issue because, as most people already know, they sure as heck DO torture when they want.It doesn't take a genius to figure out that it's been going on for a long time and will probably continue. I'd like to see some genuine integrity from our Administration, and this is a key issue upon which integrity is particularly important. The fact that the Administration's explanations, equivocations and evasions have become so tortured themselves has simply served to damage US morale and reputation throughout the world. The US claim to being a champion of due process, freedoms and liberties, human rights, begins to look like a hollow sham to the rest of the world. Not to mention the fact that torture (and yes, I think that includes waterboarding, Alberto) is a grotesque concept of due process that is properly left in the 17th century. Due process, people. It's one of the things that made our country great. A good Slate article on this whole thing can be found here. The closing comment says it all: It's hard to see how a death sentence that's based on torture testimony adheres to American values.
Sunday, December 4, 2005 I've developed my website bio a bit more, expanding it to about five pages now. Which means that it has now reached the length that probably no one in the world will care to sift through it that isn't directly related to me. For those folks that are, however, there will be a test on the material... Seriously, though, it's interesting how the process of writing an autobiography has the effect of helping clarify to oneself the trends and motivations behind one's own narrative. At least, it can, if motives are discussed (and not merely events that unfolded). You begin to see yourself as a part of a larger story and seemingly unconnected aspects of your life and personality begin to show their interrelatedness. In contrast, a journal can help express and codify thoughts you may be having or things you may be experiencing at a given moment in your life, but doesn't generally provide a view of the big picture.
Saturday, December 3, 2005 In regards to Padilla, a big development in his situation this week. Following the USDOJ's attempt to reclassify Padilla as a civilian criminal, most likely to avoid having the Supreme Court review the case on whether the President has Executive Privilege to so classify people and hold them indefinitely without trial, the US 4th Circuit Court of Appeals has other ideas. They declined to hand over Padilla and, instead, asked the government to explain the shift in classification and (and this is big) whether they shouldn't vacate their September decision that agreed with the President that he has Executive Privilege to so classify and detain indefinitely without trial. If the US 4th Circuit does vacate the decision and remands Padilla, then it eliminates a judicial precedent that the President would like very much to keep. If the Circuit Court does NOT vacate their decision and refuses to remand Padilla, then he remains classified as "enemy combatant" and there is no way that the SCOTUS case can be considered moot. In either case the SCOTUS may choose to review anyway, which as I've said before, I hope they do. Possibly overturning habeas corpus by Presidential fiat is something that attacks the bedrock of our democracy and is too deep a matter to not resolve the issue definitively, in my view. The whole thing is fascinating. It's getting pretty complex with competing action taking place in three courts now: the U.S. District Court in South Carolina, the Fourth Circuit in Richmond, the U.S. District Court in Miami and an appeal pending in the SCOTUS!
1. In South Carolina, the US Magistrate judge is evaluating the factual claims behind the "enemy combatant" classification (the limited question of Executive authority to make such a classification having already been settled in the affirmative by the 4th Circuit), I don't think this is where the USDOJ really wanted to find itself with Padilla, at all. For more explanation, these two posts, here and here, from SCOTUSblog, along with the comments below each, offer very good synopses of where things stand, the timeline of develpments and the possible ramifications.
Wednesday, November 30, 2005 The whole Padilla habeas corpus thing makes me seriously discomfited. First, I despise the idea that a US citizen would commit treason or terrorism. I also despise the idea that anyone would be treated as guilty without ever getting the benefit of legal due process to determine that they actually are. Evidently, it has made the Administration pretty discomfited as well, because they have reclassified Padilla as a criminal, instead of being an enemy combatant. The conventional wisdom, which I tend to accept, is that they did this to avoid having to let the Supreme Court rule on whether they have the privilege to do what they did to Padilla in the first place (i.e., classify him as an enemy combatant and imprison him without trial). The SCOTUS may well still grant cert on the case, and I frankly hope they do. It is too big a question to leave unanswered. Consider this hypothetical case: Say a journalist writes and publishes a series of scathing article in opposition of the President's handling of the war, causing the administration great aggravation. The President, because we are at war (or warring, or acting warrishly, or whatever), claims the nation is in a crisis, allowing him to employ executive privilege to preserve the safety of the country. The President then classifies the journalist as an enemy combatant, accusing him of being involved in terrorist plots (perhaps even fabricating the accusation out of whole cloth or basing it on the flimsiest, cherry-picked evidence). The President then has the journalist sent to Gitmo for the rest of his life, without recourse to counsel or to a trial or even to communication with his family. Now...that seems implausible to me, mainly because I can't bring myself to believe it would happen in the country that I love. But as I consider that hypothetical case, isn't every step of that exactly what the President has been arguing that he has the power to do? Basically, to declare by Executive privilege that someone is an enemy combatant and then to send someone so classified into solitary confinement forever? Without even allowing them a trial in which they might contest their classification as an enemy combatant? That sounds like the privilege that's being championed here. And it doesn't sound right at all. Another thing. Regarding the distinction between citizen and non-citizen, I'm furthermore upset that many champion the idea of treating non-citizens with less access to human rights considerations than citizens. Citizens, of course, DO earn certain considerations in our society that re not afforded to non-citizens. but when it comes to basic human rights - of which due process is surely one - hedging and distinguishing between citizen and non-citizen on these issues seems a really shabby way of using our Constitution, honestly. The Constitution of the United States does not, surely, serve as Supreme Law for folks who are citizens of other countries. However, doesn't it espouse what we hold dearly as those values which are ascribed, and rightly so, to civilized Man? Isn't it NOT ONLY a foundational legal document for our country, BUT ALSO a declaration (no less than our Declaration of Independence) of what we consider to be minimal, "unalienable" rights for human beings, whether they are citizens of our country or not? Those being the rights to life, liberty and the pursuit of happiness, as elaborated by the Bill of Rights. If this is so, then it may be that one can craftily skirt around the strictly legal requirement to extend these considerations to non-citizens. But surely men and women of moral behavior who embrace the ideals upon which the Constitution was based (and which are clearly reflected therein) must also extend those considerations to people even when they are not legally required to do so. Thus, I find the distinction between citizen and non-citizen in parsing appropriate moral treatment to be rather distasteful and hypocritical. Our country's moral foundatons, just like human rights themselves, should not depend upon a piece of paper, or a law, or a jurisdiction.
Tuesday, November 29, 2005 Just added a few more pictures to my personal gallery. Also, if you'd like to see more about the village I live in right now, here it is: St. Marc Jaumegarde, just about 7 km (4 miles) to the east of Aix.
Saturday, November 26, 2005 Le Field Trip. One of the daughters of my host family, S., went on a field trip this past week. Gone to the Basque coast for five days with her school group, it's the longest that S., at 10 years old, has been away from her parents. She was understandably concerned about this, with led to a touching chat before the fire last night between her parents and the two daughters. I was privileged to sit in on this, as the parents and I had been enjoying homemade fudge and glasses of vin de noix before the crackling fire when S. broached the subject. With the immediate concern assuaged and the little ones sent off to bed, we adults settled back down to enjoying our aperitifs. I happened to read the notice that the teacher had sent home with S., to inform the parents about the trip. Under the section called "L'argent de Poche", part of it struck me as a perfect example of the kind of tactful yet intense, and therefore quaintly humorous, statement that sometimes appears in French announcements or other missives. It said: "Malgre toutes les recommandations qui sont faites, les enfants arrivent avec TROP D'ARGENT DE POCHE, ce qui entraine bien souvent des "disparitions" surprenantes et penibles qu nous deplorons.TRANSLATION: "In spite of all of the recommendations made, children arrive with TOO MUCH POCKET MONEY, which often leads to difficult and surprising "disappearances" (losses) which we deplore.From the reports we've received from S., the trip went very well, nevertheless.
Friday, November 25, 2005 Speaking of our Constitution, I must say that I have become EXTREMELY chagrined at our Senate's recent decision to withdraw habeas corpus for alleged terrorists. Habeas corpus is one of the stones in the very foundation of freedom, and one of our greatest claims to being a beacon of liberty to the world. The very idea that the Executive can simply imprison a citizen without EVER giving them a trial is...well...I think it's fair to call it a historic hallmark of tyranny. I appreciate the dangers that terrorism constitutes to our society. I also appreciate the dangers of unlimited executive power to detain citizens without trial. History has attested to both of these dangers well. If we allow our concerns about terrorism to cause us to overthrow habeas corpus, though, we have potentially institutionalized terrorism in our very government. It is frankly beyond belief that the Republican party - my own party - has voted to effect this law that so intentionally and directly undermines one of our classic civil liberties. One that has been a fundamental part of US (and before it, British) justice since the Acts were first passed in 1679 to limit the power of the British monarchy, at that. This has been a cornerstone of our democratic institution since before our country was born, and here we have my fellow REPUBLICANS, of all people, chipping away at the mortar! Conservative columnist Paul Craig Roberts notes a timely quote about this in his recent (and rather understandably agitated) article on the subject. Quoting the seminal British jurist and constitutional scholar Albert Venn Dicey: Dicey wrote that the Habeas Corpus Acts "declare no principle and define no rights, but they are for practical purposes worth a hundred constitutional articles guaranteeing individual liberty."I am also reminded of Goldwater's famous acceptance speech when he was named the 1964 Republican Presidential Candidate: Those who seek absolute power, even though they seek it to do what they regard as good, are simply demanding the right to enforce their own version of heaven on earth. And let me remind you, they are the very ones who always create the most hellish tyrannies. Absolute power does corrupt, and those who seek it must be suspect and must be opposed.
Friday, November 25, 2005 And speaking of Justice Breyer, here's a very interesting interview on Thanksgiving day between Larry King and Justice Breyer, discussing Justice Breyer's latest book "Active Liberty" (which just made my reading list). There is a lot worthwhile in the transcript, such as this exchange:
KING: When politicians say "I want a justice who will interpret the Constitution as it was written," don't we all interpret it as we see it?Amen, Justice Breyer.
Thursday, November 24, 2005. It's a good thing I truly enjoy eating turkey. This is the third Thanksgiving I've celebrated, this season! The Canadian Thanksgiving, which some of my colleagues and other expat friends celebrate, occurred in early October. Then we had a big joint expat celebration of Thanksgiving two Sundays back (I attended TWO dinners, due to strange logistics). Tonight, I'll be going over to have another turkey dinner with some US friends! Gobble-gobble! I'm quite thankful for a lot of things that are going on right now. As I mentioned in my last post, I have a nice new place to live, very comfy with great folks, and I was able to achieve a major life goal of visiting the MacGregor clan territory in Scotland, where my family (on my Dad's side) has roots. I'm also getting caught up on all of the work I missed when I was doing the previous things, which is encouraging. I'm also grateful for having a final decision on the time frame for my upcoming plans to head back to the US. I've greatly appreciated being able to work so deeply in this development effort, first living in Africa and now traveling from France for the past few years. I've been able to be a key person in this effort as a Regional Director and am very encouraged with all that has been accomplished (thank God) over the past 6-1/2 years that I've been overseas. Now, the final decision is made I've decided that I'll return to the US in July of 2006. I will have been overseas for 7+ years, with only short trips back to see friends and family, attend meetings or to take a short/intensive graduate course to promote this work. I'll continue to work for this organization for another 12-18 months from the US, facilitating the transition of my successor as Regional Director and helping to develop some strategic planning for our work. My Mom and StepDad (in Glendale, AZ), are not in great health and it will be important to spend more time with them and help them out in various ways. This is really the major reason for heading back to the US, but it will also be good to be in my home culture again, to reconnect with my friends and family. But leaving the field will be bittersweet - there is so much more to do! I've made it a priority to keep up to date on news in the States, too. In fact, a glance around my web site will indicate that I do more than "keep up" with it. I have to admit that I'm a law and politics nut, I guess. I stay up late watching C-SPAN, pore over appellate decisions and much of my spare time is spent reading from the political websites I have linked on this site. I was agonizing over not being involved in the election campaigns last year and am seriously looking forward to participating next Autumn. Simiarly, I'm looking forward to being able to get more involved again with my church there in Tempe, the way I had been before I went overseas. I've missed their fellowship, though we do keep in touch frequently. More importantly, though, will be the opportunity to reconnect with my family and friends. This will be the best aspect to going back home! A sense of accomplishment overseas and then returning to friends, family, church and home culture! It reminds me of the poem by Joachim du Bellay that Justice Steven Breyer recently quoted to a delegation of French lawyers visiting in the US. "Heureux qui, comme Ulysse, a fait un beau voyage." My translation: Happy is he who, like Ulysses, has gone on a beautiful voyage. However, with great respect to Justice Breyer (an outstanding gentleman), his quoting this poem was, I believe, inappropos in this case. From the context of his quote, I believe he intended to reflect on how nice it was that the French delegation were visiting, having made a great voyage to come to the US, in spite of the challenges (of jet lag, etc.). But the sense of the poem, taken in its entirety, is clearly of the sentiment that it is great to have completed a great journey. Du Bellay elaborates on this in the poem, noting how his own humble home, the place of his parents, with its local stone, simple hills and rivers, is greater than palaces of marble and great seas elsewhere. Happy is he who has undertaken such a geat adventure, AND THEN RETURNED HOME. (I suppose it's possible that Justice Breyer intended this meaning when he said it. Essentially: "you may be suffering jet lag now, but be of cheer -- you'll get to go home, soon." Somehow I doubt this, though.) My own Odyssey has been sometimes of legendary proportions, to be sure. I have been mightily privileged to be deeply involved in this great work, this beautiful voyage of seven years. My work has taken me from Sultan's court to mud hut, from Presidential palace to goat cave, from from the Pillars of Hercules to the top of Mount Sinai to the Golden Triangle. I've witnessed ancient wonders and contemporary outrages, met giants (in a sense), sat with kings and magistrates, discussed and debated issues of greatest importance with members of society from many countries and from every social strata. In my work, I've ridden camels, elephants, donkeys, tuk-tuks, klondos, ferries, planes, trains and automobiles. I've sifted through ancient manuscripts and discovered long-lost tomes. Through all of this, I've struggled with and (thanks to God) bested challenges no less archetypally magnificent than those recounted in the classics. I am so grateful for having been given this opportunity to serve God and my fellow man and grow in understanding about the world. Few people every get this kind of opportunity to not only see the world, but to help improve it. Perhaps you can never go home again, as Wolfe argued, because so much has changed (most crucially, oneself) that it isn't the same place it was that you left. But I'm convinced that what makes home truly great -- the love of loved ones, the cherished values, the purposeful connection -- those things never change. And so, as the poet said, returning is the greater happiness. Happy Thanksgiving, everyone!
Friday, November 18, 2005. The Beaujolais Riots of 2005. "LYON, France (Reuters) -- Festivities marking the arrival of this year's Beaujolais Nouveau turned violent in the southeastern French city of Grenoble on Friday, when more than 30 people were injured in clashes between students and police." From this article. I just read this article out loud to my host family here and we mused whether similar rioting would break out at the festivities tonight at the Mairie here in St. Marc Jaumegarde. (We're going to celebrate with the Mayor and most of the village this evening.) Our village is a sleepy, rural place in the countryside near Aix where folks really get along well. The idea that a group of middle-aged French folks would be rioting in this area over the new Beaujolais struck us all with hilarity. I could imagine the news article in the paper tomorrow: "Marseille, France (Reuters) -- Festivities marking the arrival of this year's Beaujolais Nouveau turned violent in the southeastern French city of St. Marc Jaumegarde on Friday, when more than 30 wild boars were disturbed from their evening scrounge when revelers took to the country lanes chanting "Tres content! Tres content!" and toasting the health of the Mayor with wild abandon." ... After the soiree... There was a superb jazz quartet on hand (I think they were all over 60 years old), with a rockin' octagenarian on the piano! I heard more than once how he didn't LOOK like a jazz man. Heh! Looks can be deceiving. About 250 in attendance, very few of them under 30, I'd say. I think I heard someone say that the population of the community was about 1300 people, including children, so we probably saw about a third of the adults there tonight. Sampled the new beaujolais: a little watery, maybe due to the late rains just before the harvest...dunno. It did have some gratifying blackberry, raspberry (perhaps boysenberry) and vanilla tones, but very little tannin, sadly. A bit tart and a little raw for drinking alone, but blended well with the fare on offer: taboule, cold cuts of various kinds, terrine and, of course, miscellaneous cheeses. Met the Mayor and chatted a while. He was very welcoming. We talked a bit about the region and where I was from in Arizona, which he seemed to know a fair bit about. Later, he gave a little speech and welcomed each of the folks that had moved into the community in the past year, giving them a t-shirt with a design drawn by a local artist (also in attendance). A few of the 8-10 new couples were foreign (one American, one Swedish, one South African). He then talked a little about the municipality's projects in the coming year: tree thinning to protect against wildfire and safeguarding the way of life of the community while encouraging economic development (good luck!). The Mayor is up for re-election in 2008... Chatted with some of our neighbors whom I've met only briefly at shindigs at my hosts' house before. I think I really started to connect tonight. About 10 p.m., we headed home, while most were still into their after-meal cheese. The Mairie and community hall is only about 2 minutes from our house. This would be a great community to retire in, someday. Folks are very friendly here, nice and quiet. The only bummer is that I don't get very good cell phone coverage here. And that it's not in the States. :) Oh, and there was no rioting...at least while I was there.
Tuesday, November 15, 2005. Wow. Entirely too much time since my last update. Travel, adventures, riots in France, meetings and new strategic work, planning the future...and not one single blog update in months! But I have an excuse, as I've spent about half of the past year on the road in meetings and vacation, with the other half spent trying to dig out of the massive backlog created by my absences. Two major things I'd like to record for now, though, is that I took a three week vacation in October to tour England and Scotland. I've never taken a serious vacation like this, I think, where I carved out the time in the midst of my workyear to take some time off. It was incredible on more than one level. In fact, my hope is to actually create another web page on this site to specifically present this trip (though that will have to wait a while). For now, I'll add a picture taken on a bike/hike in Scotland at the little cemetery on Portnellan "island" on Loch Katrine, where some of my clan ancestors are buried.
I have never found a more likeable atmosphere than in the little pubs I visited during my week in Scotland. Everyone I met was so welcoming and friendly and my hosts during the various stages of this trip were incredible! More on this later, when I write up the adventure. The other big news is that I've moved out of Aix into the countryside nearby (technically, in St. Marc Jaumegarde, to the east of Aix). I've taken a room at the home of some good friends and this is working out very well. It's a nice place, quiet and roomy. It's also great to be part of a family and not living alone. They have two young daughters, 10 and 8 and we get on famously. I'll live here until I return permanently to Arizona next summer. I'll try to draft something about my "Scotchtoberfest" holiday soon. But for now, back to work.
Monday, August 29, 2005. I'm reading Marco Polo's "Travels" in odd hours. It's pretty engrossing, even if part of it is clearly fictional. It's an entertaining glimpse into 13th Century geopolitics and the merchant class, not to mention intriguing descriptions of ancient and exotic places. As the narrator of "Travels" says: What more need be said? Google it yourself if you want to know more.
Sunday, August 28, 2005. I'm enjoying three weeks in Barcelona this month, mostly working my rear end off in conferences and seminars. But I did get to go do some touring last weekend. Visited Gaudi's Sagrada Familia temple, an amazing cathedral-in-progress. I've long found cathedral construction and architecture very interesting. One of my favorite courses in college was Gothic Art and Architecture. I've visited perhaps two dozen cathedrals in Europe, often just sitting dappled in the multi-colored radiance of a stained glass glow, lost in reverie about Chartres blue, or the intricacies of a particular vaulting, the proportions of the clerestory to the height of the apse, or the influences that led to a later rayonnant element in a rose window. So it was a special treat to walk through a cathedral in the midst of a two-century construction effort, much as medieval parishoners must have done as their own cathedral was being built over many, many years. Also strolled down the La Rembla promenade. A vibrant throng with many excellent examples of living statue buskers.
Wednesday, August 10, 2005. I'm a fan of just about every kind of music on the planet, I think. Country and western, techno, rock, house, rap, classical of various kinds, polka, bluegrass, rai, mbalakh, gamelan, calypso, qawwali. You get the picture. As a Cameroonian friend once told me when I told him of my helplessness trying to resist dancing to a good beat, "Quand le rhythm bouge, il faut bouger!" (When the rhythm moves, you've got to move, too!) Lately, I've especially been appreciating three CDs by Amethystium: "Odonata", "Aphelion" and "Evermind". Also, an outstanding band called "Nickel Creek" that plays some fine, fine contemporary bluegrass. You can google those and get much more info about them.
Wednesday, August 3, 2005. It looks like things are getting pretty firm for heading back to Phoenix next August.When I go home next year, I'll have been overseas for over seven years, the most recent four or so living in France. I'm trying to plan for my transition back, only 12 months away, now. It'll be the end of a major chapter of my life and I'm still wondering what my next steps will be. I've been strongly considering public administration or law, but not certain that will be the best way to achieve what I'd like to do with my life. It's an exciting time, grappling with these next steps.
Saturday, July 30, 2005. The Sandra Day O'Connor Bobblehead was just sold on eBay for $345.69, to a bid made in the last two seconds. Sandy's one of my heroes. I'll miss her when she steps down from the bench. And no, I didn't buy the bobblehead (but I would proudly display it on my desk if it were given to me).
Sunday, June 5, 2005. Lots and lots and LOTS of travel in the past few months have made it impossible to update this site regularly. Six weeks in the States, a couple of weeks in Thailand and another week and a half hopping around hither and yon. Fatiguing, and very busy, but otherwise productive. I returned from the US to find that France Telecom had shut off my phone. Evidently, someone in their offices had keyed in my name incorrectly, which somehow made it onto my billing information. This, being at variance with my bank account information, resulted in their discontinuing my automatic payments, which resulted in them shutting off my phone. If you have ever dealt with the phone company on a billing matter like this, getting them to try to admit it was their mistake, and to reinstate your line and waive the fees and so forth, you have some inkling of what I went through. Multiply that by tenfold to factor in the French bureaucracy, and then square that, in consideration of the language barrier, and you'll reach some approximation of what was involved. Final results after 5 trips to the phone company's offices and 16 calls to various customer service representatives: they did not accept responsibility, I did have to pay the extra fees and I had to get a new phone number and account set up. But at least I have my phone line and DSL running again. Oh, and I found out that their typo on my billing information somehow crept onto my new account. SO I can never use automatic payments from the bank again. *sigh* *** Some of you may remember my journal entry back on June 1, 2002, detailing my trip to the beach at Cassis. (Wow, I just realized how long it's been since I've been to the beach!) The journal entry's in my archives on the sidebar. Well, I went back again yesterday, my first time to return since then, to have a beach party to celebrate our pastor's wife's birthday. This time, I wore a 3/4-length wetsuit. The water was again absolutely frigid (the result, evidently, of an underground spring that feeds the sea at Cassis). But I was able to swim quite a bit without turning purple. And the suit provided just enough buoyancy to make treading water easy (I don't have a lot of buoyant fat on me). So this time back was significant improvement. Unfortunately, they had removed the floating platform. Oh, well. *** Finally, thinking of jurisprudence and judicial activism, I read today an Associated Press article noting that Saddam Hussein will be tried on only 12 of a possible 500 charges. According to the Iraqi Prime Minister's spokesman, the judges on Saddam's case "are confidant [sic] that he will be convicted of these charges," Indeed.
Wednesday, February 9, 2005. I was just reading a superbly written opinion by The Honorable Jeffrey S. Sutton, Circuit Judge of the United States Court of Appeals for the Sixth Circuit, on the case of Blau v. Fort Thomas Public School District, et al.. The opinion rules against a First Amendment and substantive due process challenge to a Kentucky middle school's dress code. The citations provided in the opinion to support the extent of expressive-conduct cases alone make the opinion a worthwhile read. There's a direct link to the .PDF file here. I'll excerpt a portion here: The protections of the First Amendment do not generally apply to conduct in and of itself. To bring a free-speech claim regarding actions rather than words, claimants must show that their conduct "convey[s] a particularized message" and "the likelihood [is] great that the message [will] be understood by those who view[] it." Spence v. Washington, 418 U.S. 405, 411 (1974); Texas v. Johnson, 491 U.S. 397, 404 (1989). The threshold is not a difficult one, as "a narrow, succinctly articulable message is not a condition of constitutional protection." Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 569 (1995). Otherwise, the First Amendment "would never reach the unquestionably shielded painting of Jackson Pollack, music of Arnold Schoenberg, or Jabberwocky verse of Lewis Carroll." Id. As I say, I think this is extremely well written and encapsulates well the Supreme Court's position on the First Amendment's protection of behavior. However, I cannot help but come to the following questions: If I, as an adult, want to wear a blue shirt (for example, no pun intended), is this my "right" or is it a privilege allowed to me by the government? Would the government have the authority to prohibit me from wearing a blue shirt if the Executive or Legislative branches found that wearing differently colored shirts are not conducive to social cohesion, and that we should all wear the same color (pink, for example) to enhance our sense of equality and thereby promote a compelling state interest? Is it only my right to wear the color shirt I want if I'm making a specific statement about something? Or might I have the right to wear blue even if it's not "making a statement"? Applied directly to the case in question, if Amanda Blau chose to wear jeans to school specifically to protest the dress code, would that be protected expressive conduct under the First Amendment and therefore allowed? The First Amendment may not speak to these things explicitly, and jurisprudence on the question of expressive conduct is a complex issue, but somewhere in the Framers' intent to preserve individual liberties - and our own common sense, I think - lie the answers to these questions.
Wednesday, January 19, 2005. Good night, last night. I attended the ecumenical "Unity service" at the cathedral and had dinner with about sixty of the attendees afterward in the very nicely arranged cave. Following the dinner, I was able to sit in on a discussion between the Catholic priest (the Curé of the cathedral) and my Protestant pastor, translating as they fielded questions on the similarities and differences in the two faiths from about 15 others sitting in with us. It was an excellent opportunity to develop a sense of unity and mutual understanding, something I particularly like to promote. And I was able to really stretch my French, too, while translating for them. So it was a good time all around. The night before, I enjoyed a nice dinner with my pastor's family and watched some television there. They gave me some excellent Christmas presents, including a refrigerator magnet in the shape of a heart, made by their young daughter, an intricately knotted keychain fob made by their son, and from the parents, my favorite present: a Strongbad t-shirt! He also loaned me an interesting book: "A New Kind of Christian" by Brian D. McLaren. I've begun it in parallel with my other readings right now and appreciate the few chapters I've read so far.
Saturday, January 15, 2005. I was just re-reading Abraham Lincoln's First Inaugural Address (found online here), given on Monday, March 4, 1861. It is something I often forget when I think of Lincoln that, when he took office, it was under the cloud of a Southern secession that had already begun. From the Bartleby site: The national upheaval of secession was a grim reality at Abraham Lincoln's inauguration. Jefferson Davis had been inaugurated as the President of the Confederacy two weeks earlier. The former Illinois Congressman had arrived in Washington by a secret route to avoid danger, and his movements were guarded by General Winfield Scott's soldiers. Ignoring advice to the contrary, the President-elect rode with President Buchanan in an open carriage to the Capitol, where he took the oath of office on the East Portico. It is especially interesting to note that Lincoln, later to be known as "The Great Emancipator", often made comments regarding the institution of slavery similar to this one, given in that address: I do but quote from one of those [previous] speeches when I declare that: Indeed, for all his aura of simplicity and straightforwardness, Lincoln was a complex man.
Saturday, January 1, 2005. Happy New Year! Bonne année! And to kick off the new year, a new look for the web site, a clean slate for the journal and all of my journal archives updated (see sidebar). Hope you're new year is filled with joy! ***
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