Saturday, July 02, 2005

Constitution in Exile Debate

Faithful (and generally adversarial) commenter James Elliott has claimed the problem with conservative nominees to the Supreme Court will have to do with their adherence to the Constitution in Exile. I had not heard the term before, perhaps because I followed up law school with a lot of study of religion, so I went looking.

Pioneering legal blog The Volokh Conspiracy has an excellent post by Randy Barnett (a significant legal scholar) all about the Constitution in Exile and whether or not it's a load of crap. You'll have to read to find out.

Hint: There's a good chance that it's cr_p.

When Artificial Sweeteners Go Too Far . . .

My family has a particular recipe for tuna salad that I have loved my entire life. The perfect blend contains tuna packed in water, boiled eggs, apples, mayonnaise, and sweet pickles. I assembled the elements a few days ago and lamented a lack of sweet pickles. The wife went to the store and brought some home. I added them to the mix. Something was terribly wrong. I examined the pickle jar. My sweet pickles had been "sweetened" with Splenda. Completely unacceptable. The low carb diet has damaged our culinary dignity.

On a side note, I am a world class consumer of Diet Coke. I think it is the finest beverage known to man. Forgive me, winos. I recently tried a version of Diet Coke made with Splenda. Disaster. For some things, good old aspartame is better. In no case, however, would I like to see pickles sweetened with aspartame, either.

Friday, July 01, 2005

Great Interview with Christian Movie Producer

Ralph Winter is the producer of both X-Men films and the upcoming Fantastic Four. He is also a Christian.

Christianity Today has a great interview where you can get to know him.

Something that really impressed me is how well Winter sizes up the film American Beauty and the oft-wrongheaded Christian opposition to that movie.

As the original super blogger Instapundit likes to say, "Read the whole thing."

The O'Connor Replacement Issue

1. Compromise -- By my count, Reagan had two nominees that turned out not be very conservative at all. Nixon had one who became the king of abortion rights advocates. Ford had ultra-lib John Paul Stevens. Bush had another total lefty with Souter. I think we can stop the compromise and just appoint one who thinks the right way, judicially speaking.

When Clinton appointed the former chief counsel of the ACLU, we didn't complain much, did we? She sailed on through with nary a remark about extreme leftists.

2. Bill Kristol is CONNECTED -- He told us a week ago that O'Connor would be the one retiring. He's looking pretty potent right about now.

3. The decline of gender politics. Since a bevy of Bush minority and women candidates have been knocked around for ideological reasons, you don't see anybody talking about how the Pres. must appoint a woman. The Dems are far more concerned they get another Souter instead of a conservative African-American lady. The liberal plantation is alive and well.

4. The EXCEPTION: Being Hispanic still matters a lot because of the explosion that demographic. I predict Judge Gonzales is coming on board.

5. If I had my pick, I'd go with Michael McConnell or Alex Kozinski. Heavy duty intellects both and pleasantly non-left (though Kosinzki is more libertarian if I recall).

It Begins

The long-anticipated resignation of Supreme Court Justice Sandra Day O'Connor begins what will surely be a time of great delight for the American press. O'Connor, known as a moderate conservative, was seen as the "swing vote" on the court on issues such as abortion, the death penalty, and church-state separation. In the case of abortion, this description is decidedly inaccurate given that the Court has been 6-3 in favor of retaining Rowe v. Wade since the Clinton-era changes in membership. Nonetheless, it is clear that the Senate confirmation process will in no way resemble the collegial, reasoned debate for which President Bush called in his speech this morning. The characterization of O'Connor as a swing vote ensures that the fight over the nature of her successor will be furious and venemous, barring some miracle.

President Bush has long promised that he will fill federal court and Supreme Court vacancies with judges who "strictly and faithfully interpret the law," and he is certainly not one to shy away from a fight. He will get one, all right.

One interesting angle I should like to point out is that Justice O'Connor's resignation letter states that her retirement is to be "effective upon the nomination and confirmation of my successor." That means that if the Senate receives a nominee from the President and does not vote on the nomination before the Court's next session begins on the first Monday in October, O'Connor will likely return to the bench, prevented by senatorial inaction from retiring and taking care of her ailing husband.

At that point, strong pressure will be on the Senate to bring the matter to a vote, given that Justice O'Connor will have given the President and Senate an entire summer to find a successor. For the pressure to be on the Senate, however, the President will have to nominate someone within the next couple of weeks, and if that person is not confirmed quickly, he or she will be a very public pinata throughout August, a month when nothing else usually happens in Washington, D.C.

That will be a delight for the press, which thrives on controversy, and misery for everybody else.

Also important are racial, ethnic, and gender factors, which have become an increasing consideration in these decisions.

Hence, some speculation. The best course for the President, it would appear, would be to nominate an African-American, Asian, or Hispanic female with no track record on abortion and a strong individual-rights record on economic matters. Such a person would appeal to the Right while blunting some of the potential criticism from the Left. Perhaps nominating someone who has never served as a judge would be a good idea, to reduce the paper trail further. The President should thereafter continually stress that he has acted quickly and that the Senate should do so also, while performing all due diligence, in tribute to the fine public service Justice O'Connor has rendered the nation and in fairness to the nominee. Above all, the President must make clear his resolve to stand behind his nominee until the full Senate votes on confirmation. At that point, the pressure will be on the Senate to decide the matter and allow Justice O'Connor to retire from public life and enjoy her last years with her husband.

If all of this sounds rather cynical, I may perhaps be forgiven given that the federal nomination and confirmation process of the past decade has certainly given ample motivation for such cynicism.

Thursday, June 30, 2005

Alan Reynolds Attacks Capitol Drunks!

Economic blogger par excellence Alan Reynolds has another superb column up at

Here's a disturbing slice:

Ethanol already gets an indefensible tax break at the pump of 51 to 71 cents a gallon, but Congress now wants to compel everyone to add it to their tanks. But doing so would leave us with less fuel at higher prices. Why? Because there is much less energy in eight gallons of ethanol than in the seven gallons of gasoline it takes to produce it.

In his June 15 speech, President Bush said: "Ethanol comes from corn -- and we're pretty good about growing corn here in America; we've got a lot of good corn-growers. Therefore, it makes sense to promote ethanol as an alternative to foreign sources of oil. Ethanol can be mixed with gasoline to produce a clean, efficient fuel. In low concentrations, ethanol can be used in any vehicle. And with minor modifications, vehicles can run on a fuel blend that includes about 85 percent ethanol and 15 percent gasoline. Ethanol helps our farmers find new markets ..."

Efficient fuel? Check the official mileage estimates at A Dodge Stratus gets 20 miles to the gallon in city driving on gasoline, but that drops to 15 mpg on E85 (the 85 percent ethanol fuel) -- and highway mileage drops from 28 mpg to 20 mpg.

Dude, Alan, you're freaking me out man! I don't need no steenking ethanol in my tank!!!!

Wednesday, June 29, 2005

Royally Flush

Congratulations to Miss Jennifer Tilly for winning the women's World Series of Poker against six hundred top players.

Miss Tilly is an excellent actress who in recent years has not been getting major roles so, gamely enough, she keeps plugging along doing B movies. But when you have a few hours free, you might want to rent Music From Another Room, in which she plays a blind person as well as any sighted performer ever has.

She is probably the wealthiest actress in Hollywood, since she got about a twenty-percent interest in The Simpsons as part of her divorce settlement with Sam Simon, the show's creator. Sometimes I wonder whether there is some jealousy at work, keeping her away from stronger parts.

In any case, her dumb-brunette pose is only skin deep. She's a very bright, talented woman and she certainly proved that with the poker victory. Unfortunately, like too many of the high-achieving women of our generation, she has no children at age almost-47.

Fifth Amendment Ist Kaput

I strongly believe that the most siginificant and egregious Supreme Court decision in recent years was the Court's June 23 ruling that local governments may seize people's homes and businesses so that they may be destroyed and the land used by private developments that are expected to generate greater tax revenues. In the past, "eminent domain" decisions of this type had to be based on a serious public purpose, even though this limitation was often ignored. The June 23 decision, however, opens the floodgates fully. If your local government decides that it can obtain more tax money from somebody else who covets your land, that will suffice to allow the government to seize it, provided that it pays you the market price for it. Of course, if somebody wants your land and you don't want to sell it, you are out of luck. It's theirs.

The clauses of the Fifth Amendment designed to prevent governments from seizing private property for anything other than the most urgent purposes, have now been entirely cast aside. A local or state government can condemn your property and give it to another individual or group to use in some way the government prefers, typically in a manner expected to generate greater local tax revenues. This is utterly awful and is one of the most outrageous incursions on our liberties that has ever been attempted. It is a pity that very little media attention has been given to this matter, although perhaps not surprising in that U.S. media outlets are largely owned by corporations that hope and expect to benefit from this ability to use government to pave the way for the corporations' desired schemes for your land and mine.

I hope that the project to take Supreme Court Justice David Souter's home away from him will bring some much-needed attention to this issue. Read about it here, and please write your state and federal legislators to give your opinions about this matter.

Why We Need a Dead Constitution

Check out this fabulous little essay by Jonah Goldberg on the virtues of a dead Constitution.

Here's a nice bit:

We’ve all heard about how great living constitutions are. The most extreme, but essentially representative, version of this “philosophy” can be found from the likes of Mary Frances Berry or the Los Angeles Times’s Robert Scheer. They matter-of-factly claim that without a “living” constitution, slavery and other such evils would still be constitutional. This is what leading constitutional legal theorists call “stupid.” The constitutionality of slavery, women’s suffrage and the like were decided by these things called the 13th, 14th and 15th Amendments. Also, contra feminists, women got the vote not through a living constitution but by the mere expansion of the dead one — via the 19th Amendment.

Tuesday, June 28, 2005

George Will and the Big Ten (Commandments)

Back during the period when the death penalty was regularly in play with the Supremes, Thurgood Marshall and William Brennan published standard dissents in which they very briefly proclaimed the death penalty to be at odds with the constitution.

George Will has a similar idea for what he thinks should be majority opinions in religious display cases. It's a gem:

"Because the display on public grounds does not do what the establishment clause was written to prevent -- does not impose a state-sponsored creed or significantly advantage or disadvantage one sect or sects -- the display is constitutional."

When you're right, you're right.

Homnick and Reagan

Jay Homnick has delivered a superb piece on speechwriting for the American Spectator today. I once had a conversation with him in which I tried to get him to tell me some of the people for whom he had done some ghostwriting. He politely refused. I was disappointed, but I get it now.

Reagan is the hook in Homnick's piece and it hits particularly hard with me because I am one of those speechwriters who has too often been willing to acknowledge that I wrote remarks of public personalities. I take Mr. Homnick's piece as a well-deserved rebuke. The writer may write, but the speaker puts their reputation and position on the line.

My experience has been that the speeches are much more powerful if one can have a discussion with the speaker to get at his/her true heart. Make that investment and the speech will truly belong to the speaker. Homnick is right that we writers for public figures are merely ciphers trying to submerge ourselves in a persona. I suspect that was particularly easy with Mr. Reagan.

Shucking The Awe

The Ten Commandments are the subject of the day, with the omniscient Supreme Court deigning to distinguish between the Moral Ten and the Ethical Ten, the Universal Ten and the Parochial Ten, the Societal Ten and the Religious Ten. If you ask me, God still wins on points, 10-9.

I'll be honest with you. I'm not ready yet to ponder the legal question. I just can't imagine making a decision to have the Ten Commandments taken down from any place at any time. Where is the respect? Where is the awe?

Yes, my friends. AWE.

Monday, June 27, 2005

Ross Douthat Is My Ideological Soul-Mate

I've expressed some small misgivings about the idea of Albert Gonzales as the next Supreme Court appointee because of my fear that he would be wobbly on abortion (which means almost certainly voting pro-Roe). Ross Douthat of The American Scene (which I think is the best policy/culture blog period) has written a post that sums up my feelings entirely.

Here's a bit that really struck home:

It's no good saying that it's okay to replace a squish with another squish. On abortion, and all the "social issues" for that matter, the squishes run the Court. The vote to uphold Roe would be 6-3 right now, unless Anthony Kennedy is starting to get worried about the terms of the pact he signed with the devil - um, I mean, the Georgetown dinner party circuit - in Planned Parenthood v. Casey. And the whole bloody point of having a conservative President in office for eight years is to change the Court's unfavorable balance - not to ratify it! Does anyone think that if John Kerry had been elected President, and Rehnquist was about to retire, Kerry would be even considering a nominee who didn't pass the People for the American Way litmus test on abortion?

Kennedy forthrightly said that he thought Roe was wrongly decided and then voted to save it. Gonzales is custom made for those clothes.

My first scholarly publication argued that we've come too far in our knowledge of fetal life to continue the fetus-as-personal-property style of abortion jurisprudence that has ruled the day so far. I stand by that and believe that we will some day look upon Roe as yet another of the terrible sins of the most prosperous and successful nation on earth. Jefferson said of slavery that he trembled for his country when he considered that God is just. That sentiment is fully applicable in the current debate over people treated as chattel.

Let's save Gonzales for replacing Ruth Ginsburg.

Rule Of Law

The BTK killer of Wichita, Kansas, has pleaded guilty and confessed in open court, recounting his horrific crimes in that curiously detached manner common to the psychopathic serial killer.

This serves to remind us of the ever-present danger of the monsters in our midst. In my view, everyone who has a daughter should see to it that they read at least one of Ann Rule's books. Ann is a former Seattle police officer who is our greatest true-crime writer.

By coincidence - or by God's hand - she had worked alongside Ted Bundy on a Suicide Prevention hotline, and maintained a friendship with him throughout his first trial. It was a natural for her to write the definitive book about Bundy. That launched a great career and each new book she writes is a best-seller.

She and I maintained an e-mail correspondence for awhile, and I told her that I have no doubt that she has saved the lives of many young women by alerting them to the danger signals. This is a link to her rather comprehensive website.

Perhaps U.S. journalism has no class

Samantha Henig at Columbia Journalism Review Daily chided copycat journalism in The New York Times series on "Class In America" and curiously similar Wall Street Journal version. Then she added this cranky comment about my own piece in the latter paper:

"Reynolds' critique is worth reading," she writes, "simply for the fact that it's so cranky. . . But Reynolds' contention begs a point, perhaps because he did not include the Los Angeles Times in his jeremiad: If the issue is so agenda-driven, why is the Los Angeles paper the only one of the three that comes close to putting forward an actual agenda?"

My cranky answer appears on the CJR's blog, which may be a fun place to stir things up a bit.

Public Display of SC Confusion

The U.S. Supreme Court has become truly unmatched in its ability to displease everyone, and the recent dual decisions regarding religious displays in public places are a vivid example of this phenomenon.

AP reports that the U.S. Supreme Court has decided that displays of the Ten Commandments in and around public buildings are sometimes constitutional and sometimes not. The Court declared, in two separate decisions, that such displays are not inherently unconstitutional but can sometimes go over the line into endorsement of religion. The latter, the Court ruled, is not permitted.

Clearly the Court had a very difficult time establishing that the Constitution permitted some displays, such as its own courtroom frieze and various inscriptions on the nation's currency, while forbidding others.

Justice Antonin Scalia, in a barbed dissent against the Court's decision to disallow the hanging of framed copies of the Commandments in two Kentucky courthouses, saw an egregious inconsistency: "What distinguishes the rule of law from the dictatorship of a shifting Supreme Court majority is the absolutely indispensable requirement that judicial opinions be grounded in consistently applied principle."

The central question, the Court concluded, was whether a particular display constituted an endorsement of religion. Interestingly, Justices on both sides of the issue agreed that such displays are inherently religious, not just historical, thereby rejecting the arguments of many defenders of the displays. Chief Justice Rehnquist wrote, in the majority decision in the Texas case allowing a display outside a courthouse, "Of course, the Ten Commandments are religious — they were so viewed at their inception and so remain. The monument therefore has religious significance."

In his dissent in the Texas decision, Justice John Paul Stevens concurred with Rehnquist's assessment of the religious content of the display, noting that the monument proclaims 'I AM the LORD thy God,' in large letters. Stevens interprets the meaning of the display as follows: "The sole function of the monument on the grounds of Texas' State Capitol is to display the full text of one version of the Ten Commandments." However, Stevens parts company with the Rehnquist majority by concluding, "The message transmitted by Texas' chosen display is quite plain: This state endorses the divine code of the Judeo-Christian God."

I agree with Stevens in that assessment: the displays do suggest that the government of the State of Texas accepts the Ten Commandments as a divinely inspired truth. Really, that much should be fairly obvious. Such displays do also include historical and perhaps artistic aspects, but the religious on is surely paramount. In addition, I would suggest that these displays often express a more general public commitment to the God of the Bible.

Hence, I would agree that the Court is correct to hold that some such displays do constitute an endorsement of religion, and specifically of the Judeo-Christian religious tradition.

Where the majority of the Court is wrong, in the view of many constitutional scholars and a large minority on the Court itself (and this author), is in ruling that endorsement of religion in general, or even specifically of Christianity, is unconstitutional. The Establishment Clause of the First Amendment was clearly intended solely to prevent the establishment of an official national church as was the custom in most European nations. The idea behind it was to keep religion strong in the nation by allowing and indeed encouraging free play among religious groups. Consequently, the modern notion that the Establishment Clause requires government to be neutral between religion and irreligion goes against the letter, intent, and spirit of the clause. In fact, it turns the clause on its head and uses it to push religion out of the public square, the very opposite of its intended purpose.

Justice Rehnquist came close to expressing this doctrine in the Texas decision:"Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment clause," Rehnquist wrote. I would go farther and state explicitly that even endorsing Christianity itself is entirely within the bounds of constitutionality, as the history of the nation at the time of the adoption of the Bill of Rights and afterward amply confirms.

The two religious-display decisions handed down today confirm that the current condition of Supreme Court thinking on the Establishment Clause is something of a mess. Justice Clarence Thomas alluded to this in a separate opinion on the Texas case:

"While the court correctly rejects the challenge to the Ten Commandments monument on the Texas Capitol grounds, a more fundamental rethinking of our Establishment Clause jurisprudence remains in order," Thomas wrote.

That is probably the one thing on which both sides can agree.