Well, we had to invade somebody

Dennis Miller, former comedian (as his angry white man persona has come to the fore, he's gotten distinctly less funny), former sportscaster, and soon to be talking head, offered perhaps the most inane justification I've yet heard for the war: "I wish there was a country called al-Qaedia that we could have invaded, but there wasn't. (Saddam was) the only one who had a home address." That might make sense if there was any demonstrable link between the Baathist regime and al Qaeda, but there isn't one I've seen. Miller himself opines on the link: "They both think we're Satan. How about that as a nice point of departure for them car-pooling?" That's something short of convincing. I'm willing to bet there's a stronger link between Iran and al Qaeda, and between Saudi Arabia and al Qaeda, than ever existed between Saddam and al Qaeda. Anyway, this little bit of "reasoning" by Miller (together with Miller's endorsement of gay marriage) has earned him an endorsement from no less an intellectual than Andrew Sullivan, who calls Miller "my man Dennis." Sully, you can have him. A much better justification for the war (the best short one I've read) is this oldie but goodie from Dan Savage. Notwithstanding its credulity at the "detailed plan" the administration was allegedly developing for post-war Iraq, it remains a cogent analysis of why this war was on balance probably a good thing, and why it may not be the last such war we'll have to fight.

A Tale of Two Posts

Andrew Sullivan objects on Monday that Joe Wilson lacked class for calling members of the adminstration "f***ing a**holes and thugs". A fair critique, actually. While I'm guilty of some ad hominem invective myself in this blog, it's not effective argument, and I won't defend it as such. But then Tuesday, Sully's hawking t-shirts with a similar expletive. Granted, the t-shirts are tongue-in-cheek. But that doesn't render them classy. Perhaps in Sully's view, the expletives lack class only when they're directed at Beloved Leader.

Self-Defense and Probable Cause

Last week, Volokh posited that where a homicide is committed in self-defense, there is no probable cause to arrest. I responded here that self-defense being an affirmative defense, it ought not to figure in the probable cause determination. Volokh responded to that assertion, hewing to his original premise. He brought one case from the Northern District of Ohio in support of his theory. But there is contrary authority in the state courts. In Louisiana, for example, the Court of Appeals has held that

The police need not investigate all possible defenses or negate every explanation in determining whether probable cause to arrest exists.

Jenkins v. Baldwin, 801 So. 2d 485, 496 (La. Ct. App. 2001). The Washington courts have held the same. See State v. Mull, ___ P.3d __ (Wash. Ct. App. 2001); McBride v. Walla Walla County, 95 Wash. App. 33, 40, review den. 138 Wash. 2d 1013 (1999).

I think Volokh's authority and those cited here are not in conflict. The Ohio case he cites finds fault with the arrest because the police had actual knowledge that there was a valid affirmative defense. The Louisiana and Washington cases hold that an officer is not obliged to investigate those possible defenses to a fare thee well. Obviously, there are many, many cases where actual knowledge of a defense and its validity won't be available to the police. I think the "actual knowledge of a valid defense" cases will be rare, but I'll concede that in a case where the officers have such knowledge, probable cause may be lacking. I certainly think the Texas case with which Volokh began this discussion is not one such. The officers can't have known the chain of events immediately preceding the killing, much less the dead man's history with the woman. I think (based on the reported facts) that the arrest there survives any motion to quash.

One more point. In my original post, I made a categorical assertion that we don't want police officers making these factual determinations in the field. While I think that it is a fundamentally sound view, not all policy makers agree. Maryland law, for example provides that in cases of domestic violence where there is mutual battery of spouses, the police officer "shall consider" whether one of the spouses was acting in self-defense in determining whether to arrest both. See Md. Crim Pro. s. 2-204(b). So there are some cases where the officer ought to be able to bring her experience and expertise to bear in deciding probable cause where a defense may exist. Homicides, however, ought not to be among them.

Please pass the crow

Last week, I accused Dubya of being dense in his handling of the Iraqi debt forgiveness/reconstruction contracts issues. Comes yesterday's announcement that France and Germany have agreed, in principle, to a Paris Club restructuring of Iraqi debt, and he's looking not quite as dense. Of course, there's a quid pro quo, as the article reveals that the decision on reconstruction contracts is open for discussion, as is the exact extent of the debt forgiveness. In other words, nothing new under the sun: There's a deal to be done, and Jim Baker is nothing if not a master deal maker.

In my defense, I'll say that this turn of events still leaves room for the possibility that Dubya is more Chauncey Gardner than Niccolo Machiavelli. It's possible, for example, that the Pentagon announcement was a carefully timed opening gambit in these negotiations. It's equally possible that (1) Pentagon blundered, (2) Dubya called Daddy, who told him to hire Jimmy Baker, (3) who told Dubya, look you ninny, you're going to have to open up the reconstruction contracts to the Euros if you want them to restructure debt. Which scenario is closer to the truth, I suppose, we'll learn only when the histories are written, and I'm not sure I'd put a wager down.

Volokh Channeling McKinnon/Dworkin?

Professor Volokh points to this article about a woman in Texas arrested after shooting to death her estranged husband. It appears to have been an act of self-defense, as the dead guy had broken into the woman's home the night before she was to go to court and seek a restraining order against him. Volokh thinks that this arrest violated the Fourth Amendment, because the police did not have probable cause to believe a crime had been committed. I think this argument fails, for theoretical and practical reasons. First, self-defense as a justification for homicide is an affirmative defense, on which the defendant bears the burden of proof. That, at least is the law in Illinois. See 720 ILCS 5/7-1 & 7-14. I haven't done a 50-state survey, but I'd be willing to bet that's the case most everywhere, and has been since time immemorial. In other words, homicides are presumptively crimes at the arrest stage, and a peace officer has probable cause to arrest if he has probable cause to believe there has been a homicide (as opposed, say, to an accident). If I had any free Westlaw time this month (I don't), I'm sure I could dig out a case or 6 that so hold.

And practical considerations militate against asking a peace officer to make these fact intensive determinations on the spot. Just one hypo: a gang member finds himself alone in the territory of a rival gang, and is shot dead. Police arrive, finding only members of the shooter's gang, all of whom swear up and down to the officer that the dead man was threatening and the shooting was done in self-defense. What result? Or simply take the Texas case. The dead man looks like a bad guy. But is it possible he just went there to talk? Not likely, I'll admit. But it is possible, and if it's true then the wife (BWS aside) is a murderer. He apparently has a record of beating the woman; but do we expect every cop to know such background when called to the scene of a shooting? I think the answer is obvious. I appreciate Professor Volokh's principled views on the Second Amendment (though I don't share them). I think on this question, his zeal for that cause has led him astray.

Either he's really stupid. . .

or he thinks everyone else in the world is. How else to explain announcing in the same news cycle that you're barring the anti-war nations of Europe from participating in the reconstruction, while asking them to forgive Iraq's debts? This is what Bush said:

If these countries want to participate in helping the world become more secure, by enabling Iraq to emerge as a free and peaceful country, one way to contribute is through debt restructuring.

In other words, we won't let you make a profit on the reconstruction, but we'd like you to help fund it.

I don't see anything wrong with excluding Germany, France, and Russia from the reconstruction contracts. We took all the risk in the war; we're entitled to the rewards. Not even Captain Renault could feign shock at such an outcome.

But if that's the way we're going to go with it, it seems absurd to ask these same countries to contribute cash (for that's what debt restructuring would amount to) and get nothing in return. Which just goes to show that even though it's justifiable to deny these countries participation in the reconstruction, it's not wise. Perhaps Dubya should ask himself, in matters of foreign policy, "WWCD?" Fortunately, Sir Winston left us a handy guide:

In War: Resolution
In Defeat: Defiance
In Victory: Magnanimity
In Peace: Good Will

Dubya, Dickey, Condee, Rummy and Wolfie seem to have Resolution down pat. Here's hoping they never need the Defiance. But God Almighty do they need some schoolin' on the Magnanimity and the Good Will.

298 Pages, Signifying Nothing?

McCain-Feingold is, in the main, constitutional. That summary should save you some reading. If you're still inclined to read the opinion, finish this post first.

The various opinions run to over 250 pages. The syllabus alone will consume 19 printed pages in the United States Reports. I’d be willing to wager this sets a record.

But don’t mistake the opinions’ heft for weight. The most telling words are these, from the peroration of Justices Stevens’ and O’Connor’s joint opinion for the Court: “We are under no illusion that BCRA will be the last congressional statement on the matter. Money, like water, will always find an outlet.” (slip op. at 118). Indeed. The AP article on the web is posted with a schematic that explains – albeit poorly – how the powers that be have already devised ways to evade BCRA’s limitations.

BCRA’s almost certain impotence also gives the lie to Justice Scalia’s tsk-tsk’ing about what a sad day this is for freedom of speech. The CEOs of Phillip Morris, GM, ExxonMobil, and the rest will still always be able -- for better or worse -- to whisper into the ears of the powerful.

Anybody Here Seen My Old Friend John?

He was my childhood idol (I came to baseball later than normal children), and thirty years of revisionist history have done little to lessen either my admiration or my sense of loss for a man I know only from books and television. Today, on the eve of the 40th anniversary of his murder, I remember him by quoting from his speech in Houston during the 1960 Presidential campaign, when he confronted head-on the widespread anti-Catholic bias that threatened to undo his candidacy:

it is apparently necessary for me to state once again--not what kind of church I believe in, for that should be important only to me--but what kind of America I believe in.

I believe in an America where the separation of church and state is absolute--where no Catholic prelate would tell the President (should he be Catholic) how to act, and no Protestant minister would tell his parishioners for whom to vote--where no church or church school is granted any public funds or political preference--and where no man is denied public office merely because his religion differs from the President who might appoint him or the people who might elect him.

I believe in an America that is officially neither Catholic, Protestant nor Jewish--where no public official either requests or accepts instructions on public policy from the Pope, the National Council of Churches or any other ecclesiastical source--where no religious body seeks to impose its will directly or indirectly upon the general populace or the public acts of its officials--and where religious liberty is so indivisible that an act against one church is treated as an act against all.

That's a very different America from the America of George Bush and Pat Buchanan, of John Ashcroft and Roy Moore. But it's still an ideal worth fighting for.


T'hei nishmato tzirurah bitzror hachaim: May his soul be bound up in the bond of life.

Amor Vincet Omnia

Gregg Easterbrook demolishes "Christian" arguments against gay marriage. He speaks the truth, with a capital "T".

Now What?

Gregg Easterbrook thinks that we must leave Iraq immediately, having discovered that there are, in fact, none of the banned weapons that furnished our justification for invading in the first place:

Why are we in Iraq? If the reason really, truly was that we really, truly believed Saddam Hussein possessed banned weapons, then our assault on Iraq was justified, but now we must leave immediately, as no banned weapons have been found. Arguing "we're there by mistake, but are obliged to pile more mistakes atop the original mistake"--even France has recently said as much!--makes no sense.

Either the Bush aministration (sic) must admit that it was wrong about weapons of mass destruction and articulate different--possibly valid--reasons for the occupation of Iraq, or we must leave immediately.

Easterbrook gives Bush an out -- if he can articulate post-hoc rationalizations that would have justified the war had they been argued before the war, then we can also stay.

But the question whether we stay in Iraq and for how long must be divorced from the question of whether we should have gone in the first instance, because US military invasions typically have a transformative effect on the invaded country. This invasion is no exception. Having invaded Iraq, having toppled along with Saddam's tyrannical regime all the elements and institutions of civil order, it is incumbent on us to stay and fix, as best we can, the mess we've helped to create. In the long run, assuming Iraq's reconstruction is handled competently and fairly, the Iraqi people will be immeasurably better off without the Baathist regime. In some important respects, they already are. Picking up and leaving at this juncture, whether the war was justified or no, would be shortsighted, irresponsible, and immoral. We owe it to the Iraqi people to help them lay the foundations of a new order. And we owe it to ourselves to make sure that when we leave Iraq, it is to the thanks of a people freed from the yoke of an awful dictator and left with the means to build a stable, free, and prosperous society of their own. If we leave now, that won't happen.

Aside from ignoring that realpolitik rationale for staying in Iraq, Easterbrook errs logically by reducing the argument for staying in Iraq to"we're there by mistake, but are obliged to pile more mistakes atop the original mistake." It is not self-evident that by remaining we will pile more mistakes atop the original mistake. Early evidence is not encouraging, to be sure. It seems clear that advance planning for the post-war period was, to put it mildly, sub-optimal. But just because the Bushies aren't doing it well, doesn't mean it shouldn't be done.

By the title of his post, Easterbrook implies that staying would be the equivalent of staying in Vietnam. I rejected that comparison before the war, and I reject it now. Vietnam was a quagmire precisely because we intervened in a civil war and sought to prop up a corrupt and unpopular dictatorship. In Iraq, we deposed a corrupt and unpopular dictatorship. Iraqi resentment at the invasion and occupation -- if the occupation and transition back to Iraqi rule are handled humanely, generously, and wisely -- will cool. Sadly, though, humane, generous, and wise are not adjectives I'd use to describe George W. Bush or those to whom he's delegated responsibility for this war and its aftermath. That's not an argument for leaving -- just for voting Democratic in 2004.

Sign This Petition

There's an online petition to save Gregg Easterbrook's job at ESPN. I've signed it. So should you. Click here
UPDATE: A good friend pointed out to me that perhaps the petition goes too far, in that it calls on prospective employers not to consider negatively Easterbrook's anti-Semitic rant. Indeed, that formulation does go too far (as my own post below implies). Of course employers may, indeed should consider it. But they should consider it fairly, which means weighing it against a quarter century's work that gives the lie to any characterization of Easterbrook that could be drawn solely from the offending piece. That said, I don't regret signing the petition, because I agree with what I take to be its goal -- saving Easterbrook from consequences out of proportion to his actions. The reputational harm he has suffered I think is lasting, and I think sufficient.

Higher Standards, Chosen-ness, and All That Jazz

One blogger, the aptly named Isntapundit defended Gregg Easterbrook’s anti-semitic raving last week on the grounds that “he wants to hold Jews to a higher moral standard, which any rational person would take as a compliment.” Well, we don’t view it as a compliment, and we’re not irrational. The higher standard is a form of a hatred, plain and simple. We’re human beings, just like the rest of you. Which means we’ve a hard enough time, just like everyone else, of living up to the common standard. That should be obvious enough not to need saying. So holding us to a higher standard than everyone else is merely an excuse to bash us, because we’ll inevitably fail to meet it. Isntapundit isn’t backing down, either.

But then we Jews need to recognize too that this double standard has its roots in our own self conception. We are to God “am segulah” a treasured people. On festivals, we sanctify the day over a glass of wine, recounting in joyful song that God has chosen us from among all the peoples, exalted our language (Hebrew) from among all the languages. The concept of the Jews as a Chosen People has of course been the source of much misunderstanding over the centuries. It has consistently been misconstrued by anti-semites as a form of haughtiness, a claim to status as Uebermenschen. From the Jewish perspective, it is, of course, nothing of the kind. Herman Wouk has written the best explanation of the concept in English that I’ve ever read, in his masterful book This Is My God (which I commend to everyone who hasn’t read it, Jew and non-Jew alike, as the most concise and complete and readable explanation of Judaism ever written). He writes:

Where then is the chosen aspect of the Jews? Is it solely in their own minds? That would make them no different from the in groups all over the world, the Babbitts of Zenith, . . . blissfully sure that theirs is the best way of life, and that they are the best people. If the ”chosen people” meant no more than that, it would be part of the common folly of man, and not worth discussing. . . . What then becomes of the choice of Israel? It remains, as the Bible puts it, an election of Abraham’s family to special disciplines and duties in the service of God. . . .Jewry’s failure to measure up to its mission is the burden of Jeremiah and Isaiah, as well as of country club chatter.

. Therein lies the rub. God himself holds us to a different standard than that he applies to the rest of humanity. They are bound only by the seven Noachide laws, and faithful obedience to them ensures the Gentile a share in the World to Come (Wouk points out that Job, the example par excellence of righteousness is, in the Jewish tradition, not himself a Jew). We Jews, on the other hand, are bound by 613 commandments. It is a decidedly higher standard. We get upset when non-Jews purport to remind us of this, and I think we’re entitled to be upset. Easterbrook, after all, is not himself God, nor even Jeremiah or Isaiah (and Isntapundit isn’t even Easterbrook). He’s a human just like us, so we’ll thank him to leave it to God whether we Jews are living up to the standard He sets for us. Perhaps Easterbrook would do well, rather than upbraiding Jews for not living up to their calling, to heed the words of his own God: “Judge not, that ye be not judged.” (The Gospel According to Matthew, 7:1).

Evil Simple-minded Pandering Nitwits

I bet Gregg Easterbrook never imagined the tempest he'd whip up when he penned his pan of Kill Bill. I've got a few thoughts on the matter. First, Sullivan and InstaPundit both minimize what Easterbrook did in posts this weekend by linking to the text of the Malaysian Prime Minister's hate-filled diatribe at the OIC this past week, and calling that "real anti-semitism." What they're saying is, if you stop short of calling for the extermination of the Jews, you're not quite an anti-Semite. I think that sets the bar for what constitutes "real anti-semitism" a mite too high (or too low). I agree with them that what Easterbrook wrote isn't in the same league as what Mahathir Mohammed said, and to suggest otherwise would border on libeling Easterbrook. But that doesn't absolve Easterbrook of the charge of anti-semitism.


Second, if Sullivan and InstaPundit underestimate the wrongfulness and the hurtfulness of what Easterbrook wrote (and it was hurtful, especially because it came from the pen -- and the mind and heart -- of one whom I'd never have suspected of harboring such awful views), then ESPN went way over the top in firing him. The blogosphere has been near unanimous in their view that ESPN's firing of Easterbrook was cowardly, sinister, and wrong-headed (InstaPundit rounds up the links here. In saying why the firing was wrong, Sully and InstaPundit do some shoddy analysis. They both think it significant that the comments for which ESPN presumably fired Easterbrook (ESPN hasn't explained its decision, or even announced it; they've just purged his stuff from the site, Soviet-like) weren't even written for ESPN, but were published elsewhere. Dan Drezner agrees To see why that's insignificant, imagine the comments were somewhat harsher and more evil than they were. Assume for the sake of argument that Easterbrook had written on his blog things along the lines of Mahathir Muhammad's speech. Any doubt that ESPN would be justified in firing him out of concern for its own reputation? I don't think so. So ESPN's firing of Easterbrook wasn't wrong because Easterbrook wrote the comments elsewhere; ESPN has the perfect right to offer its forum only to people it believes will enhance its reputation for excellence in sports journalism, and to deny space to people they think will detract from that reputation. No, their firing of Easterbrook was wrong because what Easterbrook wrote was out for character for him (can't say the same about Rush); and because Easterbrook recognized (sort of) the wrongfulness of what he wrote, and he apologized for it (can't say the same for Rush). His weekly TMQ column is the best football commentary available in any medium anywhere, and its absence from ESPN will detract heavily from the network's value to its readers. (I'm going elsewhere for sports commentary unless and until and they reinstate him. I've told ESPN as much, and you can too, here). I'll post separately my views about the substance of what Easterbrook wrote. In the meantime, check out the several posts on this subject over at Meryl's place, where Easterbrook's piece was first exposed to the light of day, and at Roger Simon's.

Sic Semper Tyrannis?

Sully, InstaPundit, and the rest of the Bush propaganda machine (no, I'm not asserting they're in the administration's employ) have been busy, ever since it became obvious that there were no weapons of mass destruction in Iraq, trying to spin the war in a way that shows it was justified after all. The tactic that seems to have had the most traction for them is "thus always to tyrants": Hussein was a horrible tyrant guilty of horrendous crimes on a massive scale against his own people. It is right to topple tyrants. Therefore it was right to go to war against Saddam. It's a neat little syllogism. (The first premise -- Saddam was evil -- is irrefutable, and many on the left have committed egregious political error (and even sin) in attempting to down play the horror that was Saddam). And it plays in Peoria. We Americans like to see ourselves as defenders of human rights around the world, and we can lay claim to a strong, albeit not unblemished, record of being just that.

But the syllogism has its problems. The most obvious one (not the real subject of this post) is that toppling a tyrant does not necessarily imply war as a strategy. The real problem with the syllogism is the second premise -- it is right to topple tyrants. First, there is no logical stopping point to it. Here's a partial list of tyrants guilty of sins at least as egregious as those of Saddam: The murderous monarchs of Saudi Arabia; The Mad Mullahs of Iran; Bashar Assad of Syria; Deng Xiaoping, Li Peng, and the rest of Mao's filthy heirs in China; Robert Mugabe of Zimbabwe; Kim Jong Il of North Korea. For a more complete list, just read State Department country reports here. That's proof enough that sic semper tyrannis, while stirring rhetoric, and lofty aspiration, is at best an incomplete rationale for policy. The current crowd of pro-war cheerleaders have admitted as much. See, for instance, if you can find among today's pro-war crowd any record of opposition to the Nixon and ReaganBush policies of the 70s, 80's and early 90's supporting murderous tyrants in Central and South America. I'll gladly print a correction to my thesis if someone can show me that Sully, Reynolds and the rest have been consistent in their anti-tyrannical ardor.

No, in order to prevent the anti-tyranny argument from leading to perpetual war, there must be some constraints. No war should be fought against a tyrant unless there is something more than tyranny alone to justify it. Alternatively, tyranny can be excused, or condoned, if there is some greater policy goal served by excusing or condoning it. Thus, Sully et al. would surely argue that condoning (or even supporting) the awful tyrants of South and Central America was necessary in the 70s, 80s and early 90s because those tyrants were bulwarks against Communism, which represented even a greater evil. For the sake of this argument, I'll accept that explanation at face value (although strong arguments can be made, and probably carry the day, that, for example, Pinochet was not necessary to stop Chile, which had a long history of stable democracy, from going Communist under Allende.)

But is not Islamofascism today's Communism? Sully consistently, and rightly, makes exactly that argument. So if Saddam's tyrannical regime were one that was a key support for Islamofascism, then the war was surely right -- the combination of Saddam's tyranny and his support for Islamofascist movements outside Iraq would make this war a slam dunk. But the supposed link between Saddam and al Qaeda or any other terrorist movement remains as ethereal as his WMD program. His famous payments of blood money to the families of Palestinian suicide bombers don't cut it. That was great propaganda for Saddam in the Arab world, and cost him next to nothing. Compared to the overall cost of the Islamofascist assault on the West, those payments were but a raindrop on the ocean. They hardly justify a war. The pro-Bush forces have yet, in my view, to establish a solid case for the "something else" that turns tyranny simpliciter into a cause for war.

The three or four of you who read this blog will no doubt notice that this post is a sea change in my views compared to what I was writing before the war. What can I say? I believed the WMD claims. Had they been true, I still think this war would have been justified (I'm still a BIG fan of Israel's bombing of the Osirak reactor twenty years ago). They weren't true. I was lied to -- regardless of the spin Sully and the rest are trying to put on it now -- and I fell for it. "Speak what you think now in hard words, and tomorrow speak what tomorrow thinks
in hard words again, though it contradict every thing you said today." -- Ralph Waldo Emerson.

Arafat's Demise

Yesterday, Meryl Yourish channeled Janis Joplin on the subject of Arafat's death:

Oh Lord, won't you give us an Arafat death?

We've waited for decades, so please stop his breath

Prayed hard for this deed, and fasted, no less

So Lord, won't you kill him, and settle this mess?

I have two problems with the ditty. I raised one of them directly with Meryl, and she published my view and a thoughtful response of her own here. There's some daylight between Meryl's view on the matter and my own, but not a lot. So I'll leave that one where it stands.

Here's my second problem: I don't think Arafat's death settles a whole lot. His policies are wildly popular, and the cult of death he has created will outlive him in Palestinian society. Indeed, I think it not unlikely that those hungry to claim Arafat's mantle might seek to outdo one another in Jew killing as a way of proving themselves "worthy" successors in the eyes of their death-crazed people. Settle this mess? I don't think so. (I realize that in song parody, one must sometimes sacrifice accuracy and nuance for the sake of meter, and I actually found Meryl's version quite clever; heaven knows my own meager writing ability is confined to prose. But since the parody came without a disclaimer, I thought it worth raising these issues).

Limited Imagination

Susan Ager, a columnist for the Detroit Free Press, "can't imagine who would disagree" with her assertion that Jack Kevorkian should be released from prison.

Well, I do, for one. And I doubt I'm alone. Ager submits that incarcerating Kevorkian any longer serves no purpose because (1) he's been punished enough and (2) he poses no danger to anyone. Wrong on both counts. Kevorkian was sentenced to 10 to 25 years imprisonment for second degree murder. I'm not sure whether the Michigan Truth-in-Sentencing provision was in force at the time of Kevorkian's crime, although it was at the time of his sentencing. That provision would require that Kevorkian serve at least the 10 year minimum sentence that Judge Cooper courageously imposed on him. Since he's only served 4 1/2 years, he's not even close.

That Kevorkian's lawyer, the self aggrandizing publicity fetishist Geoffrey Feiger, is asking a judge to resentence the Terminator to time served implies that truth-in-sentencing does apply to him: only by vacating the old sentence and imposing a lighter one could truth-in-sentencing be avoided. I'm quite certain that it's bad public policy to set a precedent of avoiding the truth-in-sentencing law by vacating and reimposing sentences. If Kevorkian's medical condition is such that he should for reasons of compassion receive special dispensation, then the common law has long provided an avenue for such relief -- executive clemency. Jennifer Granholm (who by the way would be a smashing candidate for the Democratic presidential nomination in 2008, should the Arnold Amendment be passed) is a fair minded woman, and I think the people of Michigan would respect her judgment in the matter. Frankly, I think the relief that Feiger seeks via resentencing might well violate the Michigan constitution by usurping the Governor's exclusive right under the Constitution to grant clemency.

So keeping the felon Kevorkian exactly where he is serves at least this purpose: it reassures the people that the law means what it says.

There's another reason to continue punishing Kevorkian: he has yet to accept, much less admit, that he did anything wrong. He is a zealot. Kevorkian's fanaticism is well documented, and his "pledge" not to assist in any more suicides is hard to take at face value. Judge Cooper said as much on the record at Kevorkian's sentencing. And while Youk, the victim of whose murder Kevorkian was convicted, might well have been of sound mind and desired his own death and freely consented to Kevorkian's acts, the same cannot be said for many of his other victims.That conduct, while not charged in Kevorkian's indictment, is certainly relevant conduct that Judge Cooper was entitled to consider in sentencing the bastard. Let him rot.

Hey, Teleparasites: Don’t Call Me

When the Oklahoma judge struck down the national Do Not Call List on Tuesday, I didn’t much care. He ruled on narrow grounds of statutory construction, and whether he was right or wrong, the remedies were quick and relatively painless as Congress showed today.

Today’s decision from Denver, however, is another matter entirely. The Denver judge bought the teleparasites’ First Amendment argument – that the Do Not Call List infringes their right to free speech. I disagree. True, the FTC is a government agency, and its regulations therefore constitute “state action.” Thus, if FTC regulations suppress speech in violation of the First Amendment, then they must be struck down. The Do Not Call regulations, however, suppress no speech at all. Not one word. Any speech that is “suppressed” by the Do Not Call List is suppressed because of the private choices of over 50 million (and counting) Americans. It seems to me that Zelman v. Simmons-Harris, decided just two terms ago, teaches that when a putatively objectionable outcome results from private choices, and the government acts merely as facilitator of those choices, there is no First Amendment violation.

There are two distinctions between this case and Zelman . First, Zelman was an Establishment Clause case, and not a free speech case. Though the two clauses exist in the same amendment, they have spawned two different bodies of law. Second, the government here is more than a neutral facilitator. It threatens to fine the teleparasites should they violate the rules (as they are sure to do). I am not troubled by the first distinction. Without state action, no clause of the Amendment – indeed, no provision of the Bill of Rights – can be violated. As I read Zelman (and I may be out on a limb here, but what the heck, it’s a blog), and the cases on which the Court there relies, it holds that not only must there be state action, but also a causal link between the state action and the putative Constitutional violation, in order to find that there be a Constitutional violation. Stated thusly, Zelman’s holding has “crossover” appeal to the teleparasites’ free speech case.

The second distinction is more troubling, because by threatening to fine the teleparasites, the government really does become more than a neutral facilitator. It can be argued, rather convincingly in view of the potentially enormous fines, that it is the government’s fines, and not the people’s choices, that is suppressing the teleparasites’ speech. Here’s an easy fix: delete the fines, and have Congress create a private right of action to sue violators. A few privately filed class actions ought to do the trick of putting teeth in the list without any Constitutional violation.

Mooses on Beaches & Tuesday Morning Twist

Lord knows, the ease of blogging, lack of editors, and press of time can lead to errors in posts. Lord knows I've made a few. But Gregg Easterbrook, over at Yet-to-Be-Named has a couple of glaring ones this week. First, his assault on Chief Moose, late of the Montgomery County Sheriff's Department. Apparently, Moose settled with Marriott on a claim that he was racially harassed at a Marriott resort on Oahu, when a hotel security guard asked him for his room key as proof that he had a right to be there, solely on account of his race. Easterbrook thinks that this was "blackmail," noting that the resort's claim to fame is its "spectacular private beach," and that the hotel routinely checks ID to make sure that the uninvited aren't hanging out there.

Plausible explanation, no? Here's the problem, though -- all beaches in Hawai'i are public, from the high water mark on out, and developers purchasing or leasing state land above the high water mark have to provide public access. (see Haw. Rev. St. sec. 171-42.) Of course, that's only half the problem with Easterbrook's analysis. Here's the other half. Assume, for the sake of argument, that Moose was on a part of the resort (a stretch of beach above the high water mark, with cabanas, for example) that is private, and where Marriott would be within its rights to exclude the non-paying. There's still a legitimate question of whether the hotel checks all people's id's, or just the black folk. If the latter, than Moose's claim isn't blackmail at all. Since Easterbrook isn't privy to the facts, he's jumping a little to quickly to the accusation. And as anyone who's ever known an actual black person knows, such racially discriminatory enforcement practices are not altogether uncommon. Was Moose out to make a quick a buck, or is Marriott trying to keep its beach rassenrein? Who knows? I don't. Neither does Easterbrook. So maybe he should be a little slower pulling the trigger on blackmail accusations.

Now let's talk ice cream. Seems that the Tuesday Morning Quarterback (and that's really a misnomer, since ESPN rarely has the column published in the morning EST, which is, as we know, God's time zone) doesn't understand the difference between a flavor of ice cream and a sundae. Apparently, up in Vermont, for a single day, in celebration of Governor Dean's announcement of his candidacy, Ben & Jerry's headquarters outside Burlington offered a sundae called "Maple Powered Howard." If Easterbrook had read the very story he linked to he'd have discovered that the MPH, like all sundaes, was a dish comprised of ice cream and one or more toppings -- in this case, vanilla ice cream topped with maple syrup, maple-flavored whipped cream, and walnuts. MMM, mmmm, good (except for the nuts. Love nuts, love sweets, hate nuts in sweets. But I digress). Cute story, right? Not for TMQ (and, for the record, TMQ is the best sports column written today, in any medium, on any sport. Read it.) He uses the story as a jumping off point to knock Dean and Unilever. He notes that you won't find Maple Powered Howard in B & J's on-line flavor inventory. But that's because it's not an ice cream flavor. It's a sundae. The only ice cream in the sundae is vanilla. Now to be fair to TMQ, many common B & J flavors have sundae-like elements (nuts, heath bars, caramel swirls and the like), but without a hot, gooey topping and whipped cream, they're not sundaes -- they're just really complex ice cream flavors. So Easterbrook's conclusion that the limited availability of MPH equals limited appeal for Governor Dean isn't really very sound. Indeed, it's absurd. He does get in a fair dig at B & J itself however. The stoners who founded it sold their eponymous brand to one of the world's largest conglomerates, so its vaunted social responsibility is now just an advertising slogan for one of the world's largest conglomerates. Then he offers an uninspired list of B & J flavors for the rest of the field (although I do like Hilary's Endless Fudge). All in all, not an auspicious bloggining.

If Rupert Murdoch Owned Mastercard

then Josh Marshall might be defending a law suit today. Hilarious. Trenchant. Tragic.

Silvio, Arnold. Arnold, Silvio

Already met? Great, then you'll have lots to talk about . . .Seems that Berlusconi, like Schwarzenegger, has something of a fetish for fascists. Now to be fair to Berlusconi (and Mussolini) Il Duce, as early 20th century fascist dictators go, wasn't the worst of the lot. (Indeed, Italy's Jewish community suffered the third-lowest percentage of murders in all of occupied Europe. Only Denmark, famously, and Bulgaria, somewhat paradoxically, saved a higher percentage of their Jews.) But still, Berlusconi's assertion -- that Mussolini didn't kill anyone -- is absurd. Unlike Schwarzenegger, who still supports Waldheim, Berlusconi at least had the manners to backpedal. (and for what it's worth, I don't think Arnold should bother renouncing Waldheim now. It would be such an obvious cave-in to pressure, with so obvious an ulterior motive, as to be meaningless).