Thursday, June 26, 2008

Trade offs and Judges

My previous post on opinion writers was sparked by a move made by one of my favorite bloggers. He'd been writing more and more frequently, and generally very well, but I got the sense that he felt obliged to put out two posts a day, and it was showing. There's another who posts something serious about three times a year, but everybody reads him when he does.

I'd noticed that my own posting is far less frequent. I still have many "words of wisdom" on events every day, but no immediate access (I still have this little delicacy about posting from work). And at the end of the day my comment is often superfluous. Others said the same thing, and there's no prize for writing it first (or last). And sometimes, because the reporting is quick and inaccurate, my impressions were wrong.

Take the Supreme Court decision on the death penalty and rape, for example: Kennedy vs Louisiana. The early reports, for a non-Constitutional scholar like me, were pretty sketchy and suggested that the court was picking some strange interpretation of the law because some justices didn't like the death penalty.

But I'd been bitten before when jumping to conclusions based on the newspapers, so I thought I'd wait and find out what the pros had to say.

It turns out that a lot of pros think Kennedy was disingenuous in framing the core of his arguments, claiming a "national consensus" against the death penalty for rape when both polls and legislation actually point the other way.

So the court was being high-handed after all. But I wasn't in a position to say so myself, since I didn't really know the details.

Why would the court decide that some policy decisions are too important to leave to people or the legislatures? Isn't that a blow against the principle of democratic government?

I thought about it a while, and decided that "yes, it is opposed to democratic governance." And, "yes, they have some precedent for that." Written into the Constitution are amendments and compromises designed to take some policy decisions out of the hands of legislatures. Little things like the first amendment and the slavery compromise. The first amendment was meant to insure liberty by taking away the rights of legislatures and executives (and presumably judges, though I smell a conflict of interest here) to restrict citizen's freedom of speech or demand religious duties from him and so on. The slavery compromise locked in slavery--it couldn't be abolished on a national level.

I have no complaint about the amendments. I understand that the slavery compromise was required at the time, even though it merely kicked the can down the road a bit. But I notice that around the world there's a tendency to lard the constitutions with such policy decisions; taking them away from the legislatures and the people. The constitution of Brazil specifies that female convicts may keep their children with them while they are breast feeding. No doubt a noble thought, but why is this not simply a law instead of a meta-law?

The same impulse that puts policy in the Brazilian constitution moves our court to read policy out of the Constitution, whether it is there or not. They probably have good intentions: they want to keep careless legislators from trampling on the principles the court finds important.

Sometimes they are right, and the legislators are wrong: Brandenburg v. Ohio. Sometimes they were technically correct but politically dead wrong: Plessy v. Ferguson. And sometimes they were completely screwed up: Dred Scott v. Sandford, Roe v. Wade. It looks pretty plain that this is one of the times they overreached.

What can we do about this sort of policy decision from the bench?

I'm not sure. We need a brake on legislative imprudence and fashionable erosions of liberties, so we need that function of the Supreme Court (as witness today's decision about the DC handgun bad--though it was disappointingly narrow for such a no-brainer). I don't see electing judges as a solution, nor term limits. Probably our best solution is extra-judicial: reform the law schools. Since Roe v Wade is now holy scripture for one and a half political parties, pretty much all law schools, and nearly a majority of the population, judges inapt to support such overreaching aren't going to be appointed for a while, so we have to expect more such decisions for a few generations.

Wednesday, June 25, 2008


From The Pilgrim's Regress by C.S. Lewis

But I must think it one or the other!

By my father's soul, you must not--until you have some evidence. Can you not remain in doubt?

I don't know that I have ever tried.

You must learn to, if you are to come far with me. It is not hard to do it. In Eschropolis, indeed, it is impossible, for the people who live there have to give an opinion once a week or once a day, or else Mr. Mammon would soon cut off their food. But out here in the country you can walk all day and all the next day with an unanswered question in your head: you need never speak until you have made up your mind.

Every day the newspaper has commentators in the opinion section, cycling around the same ones each week. Every week each one has to write something profound, or at least provocative, that fills a specified number of column inches.

Out here in blogland, there's no editor counting words (or correcting typos), but there's a similar pressure to come up with something to say: preferably several times a day. Profundity is just as rare as in the newspapers, though.

Saturday, June 21, 2008


In the Copps parking lot we saw a convertible PT Cruiser (that cross between a VW beetle and a hearse). The top was withdrawable in two sections, of course. The style insignia said "Touring Machine," but given all the computers used in cars today perhaps they meant "Turing Machine."

Thursday, June 19, 2008


Cherries is the word I use to describe
All the berries weighing down all the branches right outside
You don't know how many bowls of pits that we have holed through
You don't know how many bags of fruit that we have sealed you
You don't know how many branches out of reach I
Had to leave for birds while we would
Settle down before your grand cherry pie.

Apologies to The Association

Monday, June 09, 2008


I'm not sure why there's such great enthusiasm for "kissing the Blarney stone." It is supposed to confer the "gift of Blarney," but isn't that something of a lie-ability?

"I don't want anybody to laugh"

The Brussels Airline jet was pushed away from the gate, and suddenly the power quit. The pilot announced that we'd have to go back and restart and engine, and then things would be OK. I noticed that his strong Spanish accent didn't preclude his using the phrase "Y'all."

We got into Brussels a bit late, but there was plenty of layover time. For some reason we had trouble getting started, but once airborne the pilot said he'd run as fast as was safe to make up the lost time--and the "trip meter" program shifted from 8 1/2 hours to 8 hours for the journey.

With an hour to go, the meter suddenly jumped from 50 minutes to an hour and a half, and the little airplane icon on the map was pointed north instead of west--and we did ellipses over Michigan for a hour and a half while a thunderstorm moved across OHare. Back to Detroit to refuel and wait while OHare let the western flights in first (they had a straight shot) and then while they tried to sort out delays.

We got our slot and flew around some wild-looking cloud banks--ragged and tall, though I didn't see anything like the traditional thunderhead. Some of the clouds stretched far higher into the sky than our 32000 feet.

Of course there was an airplane at our gate already, so we waited some more.

Then we got off and raced for Immigrations. Hurray--the line is only about 150 long, and all windows are open!

I spent something like 40 minutes in line--longer than ever before. It seems that there are new biometrics in place now, and all green card holders have to go through some fancy new fingerprint and iris and general paperwork scans. It takes about 5 minutes each. The plane before us must have been half green card holders.

I mistakenly went down the wrong lane, thinking the agents were outside the security area. They weren't, so I went to terminal 3 for the main American Airlines service desks. There were something like 1500 people in each unbudging line, so I gave up and bought my own bus ticket.

The sky was clear and bright, I had a seat on the (completely full) bus, and I was headed home. As we left the airport we passed under a set of billboards. The one on the left said "Welcome to Chicago!" The one on the right's lights spelled out "USE CAUTION."

A spot of road construction on the tollway, an odd selection of lanes at a tollbooth (doesn't the bus have Ipass?) and we noticed that we were going through suburbia instead of the tollway. I speculated with my seatmate as to how bad the construction must be if this was a better route.

The driver announced "I don't want anybody to laugh. Is there a Chicago native who can tell me how to get back on the highway?" After a forlorn attempt to turn around by backing into a side street, he headed on until major intersections (and native guides on the bus) guided him from Tooey to Harlem to the toll road again. He offered to take us to OHare as we passed it again. We had to rendezvous at Rockford to pick up some more Madison passengers.

Of course the skies opened again north of Rockford, but after the cloudburst we made good time, and after a few more hours we came to Dutch Mill park and ride, and waited in the shelter as cars came by to pick up friends and kin.

Not bad as these things go: only a 6 hour delay getting home. The man behind me had a 24-hour delay, and the fellow sitting next to me across the Atlantic has the same name as two different no-fly terrorists. And this time I had all my luggage as carry-ons. (Quite compact--I'm no space hog.)

Tuesday, June 03, 2008

Sunset over the Juras

As I left the cafeteria at about 20:00 yesterday, there were mists streaming over the Juras, and the sun was just behind them. The mists around the sun flared white and brightness sifted down the slopes--brightness tinted with a little green and brown.

The sun went behind the ridge and clouds spilled over, but to the north it shone through a pass and the rays were pearly across the farther ridge: dark green below and bright green behind the rays where the sun still lit the side of the mountain.