Wesley Clark Goes off the Rails

Retired general, and former presidential candidate, Wesley Clark needs to publicly apologize to John McCain, and then stuff his fist in his mouth so he doesn't put his foot in it again.

Clark, a Democrat, said John McCain is "untested and untried."

"But he hasn't held executive responsibility," said Clark, a former NATO commander...He hasn't been there and ordered the bombs to fall. He hasn't seen what it's like when diplomats come in and say, 'I don't know whether we're going to be able to get this point through or not,' "

Admittedly, that's accurate. But it's also a wild red herring. Name one presidential candidate who wasn't a general or a former president who has that experience. Surely Clark isn't arguing that only generals are fit to be president?

And the whole thing smacks of criticizing a person's service record, as a smokescreen for criticizing their patriotism. Perhaps that's not what Clark meant, but following the Republicans' attack on the service record and patriotism of Purple Heart winner John Kerry, and of Representative Max Cleland, a man who lost both legs and part of one arm in in Vietnam (reportedly by a grenade dropped by another soldier), his comments have an unmistakeable odor of political bullshit. I've despised Republicans for most of my adult life for playing that dirty, "they ain't real ammuricans" game, and it sickens me to see a Democrat, and a man I once supported for president, treading on the boundaries of the same vile game.

Clark is a supporter of Obama, a man with far less experience than McCain. If military experience matters, Obama has no experience with the hell that war can be, while McCain knows all too well. If political experience is what matters, then McCain has far more experience in the Senate than Obama. If executive experience is what matters--having listened to the diplomats and ordered the bombs to be dropped--then maybe we should cancel the election and just draft General Clark back into the service of his country.

The Media Sucks, part 97

A report on the startup of the large hadron collider at CERN (in France/Switzerland) provides a great example of how to spew nonsense with numbers. In response to critics who believe the supercollider may create a black hole that swallows the earth, one physicist puts the odds at 1 in 50 million. The reporter's analysis?

long odds, to be sure, but about the same as winning some lotteries.

Hey! We all know how those odds work out in lotteries--there's always a payout eventually! Shit, better start writing your will, except...there'll be nobody left to leave your money to.

Of course millions, sometimes tens of millions, of people play the lottery, so of course those long odds are still going to pay off eventually. But choose any one person who plays the lottery every week, and track them for the rest of their life, and I'd place a large wager that they will never win the big pot.

If we had a million supercolliders in the world, perhaps I'd be nervous. But with less than a handful in the world, the odds of them ever "winning" the blackhole lottery are, well, about 1 in 50 million. I think I'll sleep well tonight.

Journalism schools should have required classes in probability--it seems to be one of the most common logical errors made by journalists.

Are you Sure It's a Gay Bar?

From The Onion, America's finest news source.

Name Of Gay Bar Should Have Been Clearer

CHICAGO—After accidentally walking into a gay bar Monday, Jeff Pierce, 23, said the name of the establishment failed to clearly telegraph its orientation. "I can see how Rods sounds gay," Pierce said, "but it's just not as crystal-clear as it could be." Pierce urged the bar's owner to consider changing the name, suggesting The Manhole or Big Throbbing Homo Cocks.

And why did this make me laugh my ass off? Because when I lived in San Francisco there was a gay bar called "The White Swallow." Izzat clear enough?

Congress's Best and Brightest, Rep. Steve King

Iowa Republican Steve King is incensed that Democrat Bill Delahunt sent a personal letter to Osama bin Laden asking him to kill David Addington. Oh, wait, that's not quite right. Here's how it all went down.

In Addington's appearance before the House, Delahunt asked Addington whethe waterboarding was discussed in White House meetings he attended. Addington's asinine reply, he couldn't discuss that because "al Qaeda may watch C-SPAN." Right, and somehow, al Qaeda having confirmation that waterboarding was discussed in the White House, rather than just being certain that it was, like the rest of us, will cause them to....? Or will reveal some kind of national security secret making us more vulnerable to....? Oh, who the fuck knows. Addison wasn't even trying to cleverly dodge questions, he was giving replies that were as transparently ridiculous as he could make them so that Congress wouldn't have any doubt about how much he disdained them.

Delahunt's reply? "Right. Well, I'm sure they are watching, and I'm glad they finally have the chance to see you, Mr. Addington." Can't you just hear the sarcasm, even in plain text? Perhaps it was a stupid, childish reply. But who would have thought that someone would take it seriously?

Enter "The Pride of Iowa, Representative Steve King!" (R-Correctionville*), a man named one of the "best and brightest in Congress" by the American Conservative Union. The man from Ireton* is outraged! According to him, Delahunt's comment was

"an invitation to Al-Qaeda to target" Addington, and With Rep. Bill Delahunt's remarks inciting al Qaeda to violence, David Addington and his family will need protection until the war on terror is over.... I wonder if Bill Delahunt is ready to guard Mr. Addington's home and family.

Yeah, al Qaeda's going to target Addington because Delahunt said he was glad they were watching the hearing on C-SPAN. That computes exactly....how?

Well, who am I to question him? He's one of Congress's best and brightest. And if that thought doesn't send you to the whiskey bottle for a bout of heavy drinking, god knows what will.

Rep. King, in case my disagreement with the ACU doesn't come through loud and clear, I think you're one of the worst and the dimmest in Congress. This is one of the most stupid comments I've ever heard. You're either a complete fucking moron who was lobotomized at birth, or you're exactly whom Samuel Johnson was thinking of when he wrote, "Patriotism is the last refuge of a scoundrel."

David Addington, Go to Hell

Commenting on another post, my brother directed me to David Addington's testimony before Congress.

Addington's testimony is amazing. From what is reported he was snide, contemptuous, and dissembling. He should be cited for contempt of Congress. Most disturbing is his claim that "There is no reason [Congress's] opinion on [torture] would be relevant."

It's clear that he is wholly disdainful of the Founders' belief that the Congress is the centerpiece of representative government. Anyone that enamored of executive power and that disdainful of the people's representatives is an authoritarian through and through.

Since he doesn't mind torture, I suggest we take things a bit further and reinstate some medieval punishments. Impaling, that is, driving a sharpened pole deep up Addington's rectum, seems just about right.

Another Supreme Court Opinion--No Death Penalty for Child Rapists

In another controversial decision, the Court ruled 5-4 that Louisiana's law treating child rape as a capital crime is unconstitutional. Opinion author and swing voter Anthony Kennedy wrote that:

"the death penalty is not a proportional punishment for the rape of a child,"

I won't comment on the decision itself until I read the opinions, but I will confess that my gut reaction is that child rape is perhaps the most jusifiable case for the death penalty. If you've ever met someone who was raped as a child, you'll know that it's a life sentence for the victim. Every person I've known who was raped as a kid (and I've known enough to scare the shit out of me as the father of three girls) was completely screwed up--functional, but only just barely, and apt to lose it completely at any time. I wonder if the majority recognized the severity of the crime.

And while this isn't a good legal argument for the death penalty, I don't believe child molesters can change. From an evolutionary perspective, it makes perfect sense for an adult male of any age to be attracted to a sexually mature female of any post-pubescent age. That doesn't justify rape, but the point is that a man who rapes a 13 year old is a criminal, but not necessarily much further off the deep end psychologically than a man who rapes a 21 year old. Sexual attraction to a pre-pubescent, however, provides no selective advantage, so evolutionary theory doesn't explain it--these people are just wired wrong, in a way that we can't fix. And, giving the Court's majority the benefit of the doubt that execution is too severe, there's been a tendency in the U.S. to give these people minimal sentences--a three month sentence for child molestation is not unknown, and sentences of 1-3 years are not rare.

Since I generally oppose the death penalty--not on moral, but purely pragmatic grounds, as we do make mistakes, and they're non-correctable--perhaps we can all just compromise on locking up these perpetrators for life without possiblity of parole? And can somebody explain why so many state legislatures haven't done that yet? Whose re-election hopes rest on keeping child molesters out of prison?

Historic 2nd Amendment Decision

The Supreme Court today handed down a hotly anticipated ruling on the District of Columbia's restrictive gun laws, and it is of great historical significance because of the way they interpreted the 2nd Amendment.

The 2nd Amendment reads:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The curious wording of this amendment, wholly unlike any other in that it begins by stating the purpose of the amendment (much in the manner of a resolution: whereas....therefore...), has long caused debate about the relevance of the purposive language. Was the textual right to keep and bear arms restricted by the attendant language about a militia? Or, generally speaking, was this more of an absolute personal right or a limited collective right?

Conservatives, being more favorable toward gun ownership, favored the individual right interpretation, while liberals favored the more restrictive interpretation whose actual meaning was unclear, except that it meant states could limit gun ownership.

Although I was, at one time, in favor of gun control laws, as I studied constitutional law in grad school, I became more and more convinced of the individual rights interpretation. The language about militias is clearly explanatory, rather than regulatory. Regulatory language, as I am very loosely using the term, is such as is found in conjunction with the right of habeus corpus:

The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

Clearly the writ is an individual right, yet it can be restricted, in the specified circumstances. But the language about militias in the 2nd Amendment bears no resemblance to the language here. (Why the 2nd Amendment, alone of all the amendments, has a sort of preamble, is a bit of a mystery. Presumably it's nearly purely a historical accident. The original phrasing, as propopsed by Madison was nearly the same, although the clauses were transposed (and the final clause was excised).

The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.

Of the other amendments he proposed, in just one other he also had this kind of language:

The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.

So apparently Madison felt the need, on just two occasions, to make such emphasis about the purposes of the rights, and Congress, for whatever reason, chose to eliminate it in just one case. There may be an argument for it found in the Congressional Record of the debates, but while I did, at one time, peruse the record of those debates, I did not see any such arguments.

In recent years, even liberal scholars of the 2nd Amendment have begun to conclude that a proper historical analysis and interpretation leads to the conclusion that the words are not restrictive, and that the right to keep and bear arms is an individual right. And the argument that the Amendment refers to a state's right to keep a militia (as, for example, found in the 6th Circuit's Stevens v. U.S., United States Court of Appeals, Sixth Circuit, 1971) cannot be taken seriously, as the Amendment makes no reference at all to the states. The 10th Amendment does mention the states, so by normal standards of constitutional interpretation, the exclusion of such mention elsewhere would mean the authors intended to exclude their mention in the 2nd Amendment.

So, whether one likes it or not, it seems clear that the 2nd Amendment right was intended as an individual right. And I am of the opinion that if you dislike an constitutional amendment the only legitimate response is to try to amend it, rather than to try to legislate or interpret it away, because the implications of the latter approaches for constitutionalism are simply unacceptable. If we can simply interpret away irritating aspects of the Consitution, or wholly ignore them as we write our legislation, then there are no longer any real constitutional constraints on government, only those that don't yet have a majority opposed to them.

But the Supreme Court hasn't ruled directly on the 2nd Amendment since U.S. v. Miller (1939). In that case, the Court did adopt the position that the militia language is restrictive of the right:

The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.

Unfortunately, Justices Stevens and Breyer stick to the old, "it's a militia right, not an individual right" claim. However I have never been impressed with the scholarship of either of them. Stevens tends to be confused and unclear in his arguments, while Breyer simply has the horribly misguided idea that the Constitution was designed to create a "democratic debate." I have read his book, Active Liberty, and saw in it an interpretive method--the focus on the democratic debate--that could (a) be used to reach any conclusion he liked in any particular case, and (b) which discounted the idea of constraints on government as long as the majority approved of the government action. Anyone who thinks a simple majority should trump a constitutional constraint has no business on the Court, and the liberals who support him should shudder at the thought that a conservative might use the same approach.

Here are some excerpts from Scalia's opinion for the majority:

But apart from [its] clarifying function, a prefatory clause does not limit or expand the scope of the operative clause (cites follow)...

The first salient feature of the operative clause is that it codifies a "right of the people." The unamended Constitution and the Bill of Rights use the phrase "right of the people" two other times, in the First Amendment's Assembly-and-Petition Clause and in the Fourth Amendment's Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology...All three of these instances unambiguously refer to individual rights, not "collective" rights, or rights that may be exercised only through participation in some corporate body...

Putting all these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it "shall not be infringed." As we said in United States v. Cruikshank..."[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence...

The phrase "security of a free state," meant "security of a free policy," not security of each of the several states as the dissent [argues]...

There is, of course, much more, and although I haven't yet read it closely, I'd say Scalia has made a strong case for the individual rights interpretation.

Ultimately, I find that Stevens and Breyer make the mistake that Scalia himself too often makes--looking for plausible arguments to support government action and restrict the scope of the Bill of Rights. My own overriding belief is that while no right is absolutely unlimited, we ought to begin with the assumption that the Bill of Rights seeks to maximize the rights of individuals against the government, and, as it is a government of the people, that means maximizing the individual's right against a hostile majority. While Breyer rests his faith in majoritarian politics, I side with Madison, who clearly understood--even before the terror of the French Revolution--how tyrannical a majority could be.

But Breyer makes an additional mistake, using a policy analysis to support his legal argument:

The argument about method, however, is by far the less important argument surrounding today’s decision. Far more important are the unfortunate consequences that today’s decision is likely to spawn. Not least of these, as I have said, is the fact that the decision threatens to throw into doubt the constitutionality of gun laws throughout the United States. I can find no sound legal basis for launching the courts on so formidable and potentially dangerous a mission. In my view, there simply is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas.

First, it is true that the decision will throw into doubt the constitutionality of existing gun laws. So what Breyer implies is, if there are a whole lot of laws that are unconstitutional, let's stay out of it because it will be troublesome to agree with. Imagine this line of reasoning as applied in Brown v. Board of Education: "This decision threatens to throw into doubt the constiutionality of Jim Crow laws throughout the United States." Yeah, so the Court should just stay out of it?

Second, to the extent he would allow an individual right to gun ownership, he would limit it only to certain places, but not cities. Imagine this line of reasoning in National Socialist Party of America v. Village of Skokie: "In my view there is simply no untouchable constitutional right guaranteed by the First Amendment to shout Nazi slogans in heavily Jewish urban areas." Breyer's reasoning just doesn't extend to a general approach to constitutional interpretation--he only can rely on it because doesn't want there to be such a right. To pretend that "the right of the people" has a substantively distinct meaning in this, and only this, spot in the Constitution is a fundamental dishonesty.

What Breyer's argument boils down to, once again, is that he would let a majority vote decide our constitutional rights. Where are the most restrictive gun laws in general? In cities. Where does he believe the right shouldn't apply? In cities. The clear implication is that the only places we should have a right to keep and bear arms is where the majority supports the right, and where the majority doesn't support the right, we shouldn't have it.

As anyone who knows me well knows, I'm not a big fan of Scalia. I think he often uses is alleged originalism in a very dishonest manner. But in this case, although he makes a long historical argument, his essential argument is a textual one--analyzing the text itself in comparison to its complentary texts elsewhere in the Constituiton--and using well-established standards of interpretation.

The decision is correct, and gun opponents--who I agree have good reasons to dislike guns--need to think hard about what kind of precedent it would set to simply wish away a right listd in the Bill of Rights. Even if it is not their favorite right, do we want to start down that road?

China Lectures Syria on Economic Development

I found this on Marginal Revolution, one of the best economics blogs.

"What can we do," the Syrian Finance minister asked, "to increase Chinese investment?" "Well," the Chinese minister replied, "before we invest in Syria you most open your markets, cut your subsidies, and reduce regulation..."

I like Syria, and I hope they follow the advice. From what I saw, I think it's possible they will, although slowly.

Why Government Can't Plan the Economy

The Socialist Planning debate was resolved long ago in favor of decentralized planning in a free market system. The strongest theoretical argument against planning, in my opinion, is the lack of price mechanisms in non-market transactions. But on a personal level, I'm persistently fascinated by the market niches that develop only because market planning is so decentralized that vast numbers of different minds are looking for individual (microeconomic) opportunities, rather than a vastly more limited number of minds looking at the overall (macroeconomic) economy.

Case in point: A while back I did some Habitat for Humanity work (mostly involving drilling screws into drywall and missing the studs), and started talking with one of the other volunteers, whose company occupies a market niche that I'd never heard of before, and I'm willing to bet none of my three readers has either.

His company's niche is a mobile laser eye surgery lab. They tow the equipment around a multi-state area, setting it up in particular optometrists' offices, so that they (the optomestrists) can provide laser surgery for their patients. The guy I talked with transports the equipment, sets it up, calibrates it, and trains the optometrists.

Clearly there are many small optometry shops for whom it would make no sense to buy the equipment, but it seems just as unlikely that the costs of renting the equipment would be cost-effective. And apparently it's not, at least not directly. What I was told is that the optomestrists tend to lose money on the operation, but it allows them to retain patients, who would otherwise go elsewhere for the surgery, and perhaps not return as patients. But by providing all the services possible for their patients, the optometrists can keep them returning, which more than offsets the loss on the laser surgery itself.

And that somebody saw this obscure opportunity and filled the niche demonstrates what the planning advocates (are you listening, Barack?) never quite grasp--that the creativity of millions of minds is a better source of solutions than the creativity of a handful of experts, simply because millions of actors can see more details of the market than any few people can.

Which puts me in mind of Asimov's robotic brain in I, Robot, which solves all economic problems, but I'll save that for a post on bad economics in literature.

I'm Angry

I've been disgusted and angry at the Bush administration for years now, but just recently my anger has boiled over to where I just want to blindly lash out. I hate what they have done to my country in the name of national security, and the passivity of the media and the public in response. All anyone has to do is say the word, "terrorism," and the media pansies grow afraid to critique, while any citizen who does is called unpatriotic and unAmerican.

But criticizing the government, even in a time of war, is not unpatriotic. The old claim that "politics stops at the water's edge" is just another authoritarian tactic to try to diminish the public's control over its government, along with the equally dismal "my country, right or wrong." Whenever I hear that I point out that the proper ending to that phrase is, "when right to be kept right, when wrong to be set right." There is no higher patriotism than to try to set one's country right when it is wrong.

In recent days the Supreme Court has handed the administration yet another defeat in it's effort to use the war on terror as a justification for shredding the Constitution, when it ruled that the Guantanamo Bay detainees had the right to habeus corpus. The despicable John Yoo parrots the administration's lies in calling every Gitmo detainee a "captured al Qaeda terrorist." And since we've never given any of them a day in court, how do we actually know they're terrorists? Perhaps Yoo, a law professor, missed the day due process was taught at law school.

And in response to the ruling, the administration says it needs to "rewrite the evidence" they have against the detainees. In other words, the lack of any evidentiary requirements for holding detainees means they didn't bother writing up the evidence in a legally satisfactory way. What more evidence is needed to demonstrate that any time government can lock someone up without due process they're going to abuse that power and lock people up without regard for evidence? Only authoritarian governments make a practice of locking people up without due process, and going to great lengths to keep them away from the reach of the law. This administration refused to treat these alleged terrorists as either criminals or prisoners of war, because in each case legal rights attach--they created a new category, "illegal enemy combatant," a term mentioned nowhere in U.S. law or the Geneva Convention, as a way of creating a black hole the law couldn't touch. Fortunately the Supreme Court, all that is holding back a police state, has mustered a bare minority willing to stand up for the rule of law.

As if that's not bad enough, it's now come out that they hid Gitmo detainees from inspectors of the International Red Cross. If Iran, China, or Cuba did this, we would denounce them. But Bush and Cheney seem to believe that because they are good people, in a good cause, their actions are legitimate. They don't see that your inherent goodness does not imbue your actions with justness, but that your actions define whether you are good or evil--and I'm now past the point of saying Cheney and Bush are just misguided. I believe they are evil men, doing evil things, and turning my country into one of the evil monsters of the world.

They also claimed they did not need warrants to engage in wiretapping, and that as commander-in-chief, Bush had unlimited constitutional authority to prosecute an undeclared war with no oversight by the Congress, the representatives of the people.

And no indictment could be complete without mentioning their support of torture. A tactic that has been condemned by nearly every knowledgeable person as both immoral and useless. John McCain, no friend to constitutional rights but a man who personally experienced torture, denounced it, as has, just recently, an experienced marine. I remember my shock at Donald Rumsfeld's response to the reports of torture at Abu Ghraib prison, when he said he hadn't read the report. The Secretary of Defense not bothering to read a report alleging that his troops had committed war crimes!

Of course such complaining could be tossed off as just more pansy-ass left-wing bitching, except I'm not a pansy-ass left-winger. I'm more libertarian than leftist, and I think there is an appropriate time for military action, as well as opposing quick withdrawal of troops from Iraq. But why take my word for it? Numerous retired military officers have criticized this administration, a list that now includes Major General Antonio M. Taguba (USA-Ret.), who says,

[T]here is no longer any doubt as to whether the current administration has committed war crimes. The only question is whether those who ordered the use of torture will be held to account.

Slobodan Milosevic committed war crimes, and the U.S. helped put him on trial. It's time we do the same to Bush, Cheney, Rumsfeld. I do not want my country to be led by war criminals. I do want these men put on trial--and we ought to do it in the U.S., to demonstrate that we will clean up our own messes. If we do not, I hope they will be indicted by an international war crimes tribunal. Not that the U.S. would ever give them up, but it might remind our leaders that they are not above the law.

Of course every fascist-leaning right-winger, the Ann Coulters, Rush Limbaughs, Sean Hannitys, etc., would scream bloody murder. But they spout about American ideals while having no recognition of the way they and this administration are actually treating those ideals with the greatest contempt. If anyone is truly anti-American, it's anyone who would shrink constitutional protections to their minimum, instead of stretching them to their maximum. They don't truly believe in human freedom and the rule of law--they don't understand anything but pure temporal power and the desire to force everyone to follow their moral code, a moral code that condemns premarital sex, homosexuality, and smoking pot, but venerates torture.

The hell with them all, and the hell with George Bush. The moment the next President takes the oath of office, the U.S. Attorney General should indict him, and then we can give the son-of-a-bitch the benefit of very due process of law that he so despises.