February 28, 2004

Kerry's wrong about DNA and the death penalty. Asked in the California debate about his position on the death penalty, John Kerry served up this factoid:
[W]e have 111 people who have been now released from death row -- death row, let alone the rest of the prison system -- because of DNA evidence that showed they didn't commit the crime of which they were convicted.
The number 111 is (about) the number of death sentences overturned since 1973. But it's certainly not the number of persons shown by DNA evidence not to have committed the crime. According to the ACLU's website:
Although there has been much attention surrounding the use of DNA testing, only 13 death row inmates of 112 have been exonerated by use of DNA.
Here's what really happened (again according to the ACLU, which opposes the death penalty):
The vast majority of those exonerated were found innocent because someone came forward to confess committing the crime; key witness testimony was found to be illegitimate; or new evidence was found to support innocence.
Why are journalists, like Noam Sheiber at TNR, just repeating Kerry's factoid without checking its accuracy? Sheiber really should have taken two minutes to check the fact, because it played a big part in his comparison of Kerry to Edwards:
[O]n the death penalty, an issue that should have given Edwards an opportunity to highlight his cultural moderation, he got bogged down in vaguaries [sic] like "making our court system work" while Kerry cited the more than 100 people released from death row thanks to DNA evidence proving their innocence.
Finally, even when a conviction is overturned using DNA evidence, the DNA evidence doesn't necessarily "show[] they didn't commit the crime." It could very well simply be that without the DNA evidence that the prosecution relied on, there isn't sufficient evidence to convict. (Thus, the ACLU's use of words like "innocent" and "exonerated" are not accurate.)

UPDATE: Instapundit and CJR Campaign Desk are linking to this post. Still no word from Sheiber, though I've emailed him. Getting linked by Instapundit brought more visits to this blog in half a day than in the entire previous existence of this blog (that is, since January 14).

NOTE ADDED 5/24/07: I'm going back, rereading all my old posts to add labels. I just wanted to note that this is the first post of mine that got an Instapundit link.
Would Shakespeare really blow the new SAT? Some Princeton Review people talk about what it takes to ace the new essay section of the SAT.
To receive a high score a student should write a long essay of three or more paragraphs, with each paragraph containing topic and concluding sentences and at least one sentence that includes the words "for example." Whenever possible the student should use polysyllabic words where shorter, clearer words would suffice. The SAT essay will not be a place to take rhetorical chances. Flair will win no points; the highest-scoring essays will be earnest, long-winded, and predictable.
They then proceed to analyze writing samples by Hemingway, Shakespeare, Gertrude Stein (who does particularly badly), and the Unabomber. Of course, the Unabomber's writing style is what the "holistic" graders at the SAT will be looking for. Very amusing, but should we worry that something is terribly wrong with the test?

Some high school teachers will pick up extra pay doing this grading, which is nice for them. Should we see them as dreary drudges, blind to the creativity of the Shakespeares and Hemingways who are taking the test? Please. If there is really a Shakespeare/Hemingway in the mix, he's sharp enough to find and absorb the Princeton Review's advice on how to maximize your writing score and sane and focused enough to easily crank out the requisite material. Anyone who wrote out an "essay" like that Shakespeare speech or that Gertrude Stein passage on the SAT test would be incompetent. Shakespeare and Stein weren't crazy--they knew where they were and what they were doing at any given time. I think they'd notice--perhaps with the sublime awareness of the true artist--that they were taking the SAT.

UPDATE: Sorry about the bad link that was here earlier. It should work now.
The truly principled.

February 27, 2004

Nice going, Cliff.

UPDATE: Play suspended due to inclement weather--in Tucson! I wonder what that's like. Anyway, Cliff is 7 under par and tied for 15th, 14 holes into the second round. Good luck!
Women's Army Corps Song Book. I've written about this book before and said I wanted to scan the pictures, but here's a website where someone has done that. You can get a sense of how charming the line drawings are, though they are reduced in size here and don't look as crisp as in the actual book. My copy, which was my mother's, is in better condition that the one scanned here. There's only a 17 on that page's hitometer, so go over and hit that page, please. You can click on the links and get to song lyrics, like this from the WAC version of "We're In the Army Now":
We'll stand Reveille scantilly clad,
Wearing cotton is the latest fad,
We don't care, we'll show them how
We're in the Army now.
Who would have thought the words "scantilly clad" (misspelling in original) would appear in an official government military song? And to think that wearing cotton could have been perceived as a hardship!
"Vile and vicious and hateful." Rosie O'Donnell gives this reason for going to San Francisco to marry her female partner:
"We were both just trying to come here after the sitting president said the vile and vicious and hateful comments he did on Tuesday and inspired myself and my brand-new wife to fly here this morning."
Quite aside from how it sounds to cite hostility to President Bush as your reason to marry or, more specifically, whether the gay marriage cause is helped by presenting it as a political protest, is it really necessary to tar supporters of the Federal Marriage Amendment this way? It was only two years ago that O'Donnell first publicly said that she was gay. How fast can you expect social progress to take place? Only last summer, the Supreme Court withdrew the power to make homosexual sodomy a crime, and now, already, we are asked to think people are "vile and vicious and hateful" because they want to restrict marriage to different sex couples? It was only a couple months ago that Howard Dean was being praised for instituting civil unions in Vermont, while specifically reserving marriage for heterosexual couples.

The President Bush's statement this week takes a similiar approach to Dean's (albeit by constitutional amendment):
The amendment should fully protect marriage, while leaving the state legislatures free to make their own choices in defining legal arrangements other than marriage.

America's a free society which limits the role of government in the lives of our citizens. This commitment of freedom, however, does not require the redefinition of one of our most basic social institutions.

Our government should respect every person and protect the institution of marriage. There is no contradiction between these responsibilities.

We should also conduct this difficult debate in a matter worthy of our country, without bitterness or anger.

In all that lies ahead, let us match strong convictions with kindness and good will and decency.
Now that is portrayed as "vile and vicious and hateful"? Supporters of gay marriage would do well to show some understanding for the feelings and beliefs of the people they are trying to persuade. The sense of alarm about the proposed amendment is understandable, though unwarranted, but it is counterproductive to become overheated and engage in this kind of inflammatory rhetoric. The light of reason is on your side: why act as if you don't think it is?
Hair on water, indivisibility, and Amy as the winner. Prof. Yin has a nice post on last night's The Apprentice. He doesn't like the idea of drinking from a bottle that has Trump-hair on it. Yeah, come to think about it, hair and drinking water are a horrible combination. And a picture of Trump is inherently (in-hair-ently) a picture that draws attention to hair. And hair in its most loathsome form, I might add.

Prof. Yin also notes that "Kwame was non-existent in the episode." Maybe he's just being edited out, but Kwame thus far has been a completely flying-under-the-radar type. That can only work so long. Speaking of invisibility, did you notice that in the boardroom, Bill complained about feeling "indivisible"? Maybe Bill has liberty and justice for all.

I note that Entertainment Weekly is certain that the ultimate winner will be Amy. (This link might not work if you're not fool enough to subscribe to EW, as I am.) Here's the reasoning:
Amy will win. Period. End of discussion. Case closed. ... You see, unlike self-absorbed Omarosa, she doesn't stir up controversy by feigning headaches or by flapping her trap at inappropriate times. Unlike Ereka and Nick, she never stresses, never shows emotion, and never flails under pressure. And in case you missed it, unlike the rest of her loft-mates, Amy has completely avoided the boardroom. ...

[E]ven if Amy were on the losing side for once, I seriously doubt that any of her teammates would have strong enough reason to have her face the dreaded Donald. In fact, hey, while I'm at it, I am willing to place yet another bet -- that the Protégés would keep Amy around even she completely sucked at a task (ha, like that will ever happen!).

Why, you ask? Well, because of her wonderfully smooth patience when dealing with Omarosa. ...
Amy is quite beautiful too. She reminds me of Sharon Stone.
The height of informercialism. The Apprentice reached a new summit in loathsome informercialism last night as the entire show served to introduce the entirely ridiculous product Trump Ice. It's just water, but somehow it's ice, even though it's not frozen, because ice is at least a type of water, though not the type found in the bottle, and ice is a slang term for diamonds, and, you know, diamonds are expensive and Trump is very rich, so it all makes some kind of sense, doesn't it? Who wants to drink water from a bottle with a picture of Donald Trump on it? His face doesn't exactly convey the idea of clean and refreshing.

But aside from that, it was a pretty good show last night. I marvel at the photography and the editing. I used TiVo to go back and study the key scenes of the two characters who were in the running for getting fired and these were beautifully done, with the chess pieces looming in the foreground in front of the calculating Nick and the People Mural suggesting the emotionalism of Ereka. Carefully watch the segment of the show where the contestants are performing the task. The editors know who the bottom three will be and who will lose and will craftily present key scenes to demonstrate the problem Trump will ultimately base his decision on. It will not jump out at you on first viewing, but if you go back, knowing who's going to be fired, you will see all the information was right there in the edit. So, watching the show is like reading a mystery novel.
The King of the Offbeat Interruption. Larry King brought his distinctive style to the debate last night. I found this one-two interruption especially amusing:
KUCINICH: I agree with my friend John Edwards about we need to do something about poverty. And that's why I'd like you to join me in this proposal to have a universal single-payer, not-for-profit health care system, because that would lift tens of millions of Americans out of poverty. And, Larry...

KING: By the way, Harry Truman proposed that in 1948.

KUCINICH: Well, and you know what? John Conyers and I introduced the bill in this Congress. And that would provide all coverage for everyone, all medically necessary procedures, plus vision care, dental care, mental health care...

KING: In other words, socialism?

KUCINICH: ... long-term care. Wait a minute. You know what? What we have now, Larry, what we have now, what we have now, Larry, is predatory capitalism which makes of the American people a cash crop for the insurance companies and the pharmaceutical companies.

Did Kucinich say "Larry" enough? It seems that Larry is always there ready to pounce--possible tiger influence noted--with one of his Larry-isms and needs to be fended off with consistent acknowledgement.

I was also amused by the way camera shots of Kerry and Edwards often included the outstretched, wizened hand of Larry King. King rules!
Sleep, lifeboat, buzzwords. Limping through the last days of my (horrors!) cold, I felt overwhelmed by fatigue at 7:30 pm last night. Knowing I'd never be able to sleep through the night, I went to bed anyway. I was listening to the final disc of "The Life of Pi," and fell asleep, only to wake, predictably, at 10 pm. I listened to the disc again, the fabulous ending to the story. I can't think of a novel I've enjoyed more, even though I know I've missed slices of it, by sleeping through the middle and ends of each of the nine discs, then haphazardly trying to skip ahead to the missed parts. I was captivated enough by the story to keep moving to the next disc, even though I knew I'd hadn't heard every word of its predecessor. What I need now is a nice car trip, so I can listen to all nine discs straight through. Anyway, that is surely a book to reread (to relisten to).

What could I do at 11 pm but get up and watch TV? I went downstairs, and one of my sons was in the middle of watching the big Democratic candidates debate, so I started watching, but not with my mind in the usual place where it would be if I had been awake all day, planning to watch the debate, and watching it from the beginning. Jumping in in the middle and fresh from sleeping and picturing tigers and lifeboats, I couldn't engage with the debate normally. I just noticed the buzzwords like "jobs" and "outsourcing" floating in a sea of verbiage. I couldn't help thinking, they don't really have any plans or solutions. Most of these words are just there to make a place to put the key words that are said not because the candidates really have anything they can do but because they think that these are the words that, implanted in the minds of voters, tend to make them feel like voting for a Democrat.

February 26, 2004

Vogue word: robust. Today, while sitting through a paper presentation, complete with comments from the audience, I noticed how often lawprofs use the word "robust." We're always looking for a "robust" version of rights and speculating about what the "robust" enforcement of some notion would be like or what a court would do if it genuinely wanted the "robust" protection of something. Where did that come from?

If you look at law journals, from the entire year of 1983, you'll find only 74 articles using that word (typical usage: "robust debate" as a First Amendment value). Ten years later, for 1993, it's up to 277 ("robust debate" is joined by "robust markets" and assorted other uses). Last year, it was 1241 (now we see "robust judicial federalism," "robust democracy," "robust conclusions"). I wonder what caused "robust" to take hold. I'm thinking the term migrated from the computer world, where there is talk of "robust software."

Ordinary words that could be used to avoid the overusing this vogue word are: strong, sound, healthy, vigorous, sturdy. Another alternative might be to become more aware of the impulse to lard your speech and writing with adjectives. Look inside yourself: what is this inner need that is making you want to tuck assertions about strength and vigor into your every statement?
Oh, here it is nearly 2 pm and I haven't blogged yet. What, am I supposed to have something to say to the entire world every day now? What a strange, distorted sense of responsibility blogging inspires! You start a blog, and by that action, you express a confidence that you will have something to say to everyone every day. Somehow, something will rise to the surface of your consciousness that will be, recognizably, bloggable. And day after day, there are such things, but why should there continue to be such things? I think a trick is to have some little thing early each day, just to break the ice, and then more things will flow, like small talk at the beginning of a conversation.

February 25, 2004

Strictly Madison. I walked up State Street in the late afternoon today and saw two notable things:

1. An aging folksinger guy strumming an old guitar. He was standing on the sidewalk and singing, "I hate war/I hate war/I hate war/I hate war."

2. A woman twenty feet up in a cherry picker hanging individual green leaf-shaped fabric scraps on a tree. She had gotten about halfway through attaching the leaves all over the branches, right where the real leaves will come out in a few months. Near to her in the concrete speaker's pulpit, which rises about fifteen feet above the square was a guy with a notebook, presumably a reporter, interviewing her, yelling out questions like, "How did you get the idea? Where did you get the scraps?"
Only one slope is slippery. Justice Breyer was concerned at oral argument, in Locke v. Davey, about the implications of deciding in favor of the college student who asserted a Free Exercise Right. (See previous post.) But what are the implications of deciding to permit the state to discriminate based on religion as it doles out various benefits?

Justice Scalia ends his opinion with this set of concerns:
Today’s holding is limited to training the clergy, but its logic is readily extendible, and there are plenty of directions to go. What next? Will we deny priests and nuns their prescription-drug benefits on the ground that taxpayers’ freedom of conscience forbids medicating the clergy at public expense? This may seem fanciful, but recall that France has proposed banning religious attire from schools, invoking interests in secularism no less benign than those the Court embraces today. See Sciolino, Chirac Backs Law To Keep Signs of Faith Out of School, N. Y. Times, Dec. 18, 2003, p. A17. When the public’s freedom of conscience is invoked to justify denial of equal treatment, benevolent motives shade into indifference and ultimately into repression.
I'm sure some people will find that odd, coming from Justice Scalia, because he wrote the opinion for the Court in Smith, the case that decided that generally applicable laws are constitutional even if they burden religion. Under that test, a school could have a general rule against wearing any head coverings without violating the Free Exercise Clause. But Scalia advocates neutrality toward religion. The proposed French law he cites is not a neutral law, but a law that targets religion. According to the cited NYT article, Chirac described his law as a frank discrimination against religious expression:
"In all conscience, I believe that the wearing of dress or symbols that conspicuously show religious affiliation should be banned in schools ... The Islamic veil — whatever name we give it — the yarmulke and a cross that is of plainly excessive dimensions: these have no place inside public schools. State schools will remain secular. For that a law is necessary."
So I would let Scalia off the hook about that point. More important is that the majority, by taking a more flexible approach to the Religion Clauses, preserves more ability to decide future cases pragmatically. Scalia's neutrality test is offered as a hard rule, and a hard rule will dictate outcomes, so deciding one case in a particular way will demand that other cases be decided in lock step. Sorry, but the slope is only slippery on one side. Criticize them all you want for being unprincipled, but the majority can stop its descent down the discrimination slope whenever it wants.
What motivated the Court in Locke v. Davey? I said two posts ago that the Court's opinion today did not reveal the real pressure that I think led the Court to reject a clear rule barring discriminating based on religion. Here's the truly revealing passage in the oral argument. Questioning Solicitor General Ted Olson, Justice Breyer asked:
What is your response to the following concern that's been brought up a few times but I'd like you to address it directly. This case is perhaps a small matter of a distinction that doesn't make all that much sense, but makes some. But the implications of this case are breathtaking, that it would mean if your side wins, that every program, not just educational programs, but nursing programs, hospital programs, social welfare programs, contracting programs throughout the governments would go over, you'd have to go over each of them and there'd be a claim in each instance that they cannot be purely secular, that they must fund all religions who want to do the same thing, and that those religions, by the way, though it may be an excellent principle, may get into fights with each other about billions and billions of dollars, so -- which is something about which I have written about, which you know. All right. So, I'd like you to address that.
Olson's answer was insufficient. All it did was emphasize the Court was only being asked to take the next step on the path of precedent. Breyer burst back in, asking if Olson's position would commit the Court to deciding that a school voucher program not only may include religious schools (as the Court decided two years ago) but must include them. Olson could only flounder about the possibility of coming up with some sort of distinction and try to scramble back to the humble topic of one college student's scholarship. Breyer broke in again:
What are the practical implications? ... Just want a sentence on the practical implication. Is it as far-reaching as my tone of voice suggested?
Relax, Rejoice. Inspired by Nina's meditations on Ralph Nader's "Relax, rejoice" advice--"I urge the liberal establishment to relax and rejoice"--I Googled "relax rejoice" just to see how far down the list of results I would need to go before I got to something that wasn't about Ralph Nader. The man has securely claimed that word combination, because it took me to the third page of results. Fascinatingly, the first nonNader result was to Imagine Nation®:
The "Relax! Rejoice! Rejuvenate!" Women's Retreat is held in Sedona, Arizona. This exhilarating and refreshing weekend getaway is a wonderful opportunity to break from the hectic pace of your everyday life and just breathe!
What the hell is Imagine Nation®? you may ask. Or you may say, Imagine Nation® sounds like a good name for the country Nader pictures himself presiding over. But according to the website: "Nancy Nordstrom’s Imagine Nation® Method of Dream Realization utilizes a fundamental foundation of three basic components. This is a solid, realistic approach that enables you to achieve the outcome you most desire." How intriguingly Nader-esque!

The next nonNader return takes you to Relax and Rejoice/Marriage Manual--Vol. 1. ("Venus Kriyas (yoga exercises for couples) and meditations for women and men for the renewal of love, trust, open communication, sexual sharing and much more.") I'm really not picturing Ralph Nader now. Or maybe, yes, a bit, metaphorically ... Enjoy the relationship, liberal establishment!
Principle and flexibility. The room left for state experimentation, which the Chief Justice called the “play in the joints” between the two constitutional clauses, looked quite different to Justice Scalia. From his dissent:
The Court does not dispute that the Free Exercise Clause places some constraints on public benefits programs, but finds none here, based on a principle of “ ‘play in the joints.’ ” I use the term “principle” loosely, for that is not so much a legal principle as a refusal to apply any principle when faced with competing constitutional directives. There is nothing anomalous about constitutional commands that abut. A municipality hiring public contractors may not discriminate against blacks or in favor of them; it cannot discriminate a little bit each way and then plead “play in the joints” when haled into court. If the Religion Clauses demand neutrality, we must enforce them, in hard cases as well as easy ones.
The reference to race discrimination is telling: Justice Scalia rejects affirmative action. The flexible approach to rights, for him, is just unprincipled. He had been pushing for a pure neutrality resolution of the longterm conflict between the two Religion Clauses. Why not just say government may not favor or disfavor religion? That would be a crisp solution, for sure.

In my Religion and the Constitution class, I often say, "Neutrality is the argument to beat." Neutrality is a great, comprehensible, clear, principled resolution. What motivates the Court to choose anything other than neutrality here? Perhaps the Court is wrong to think it has found a better answer than neutrality, but I would note that since it is difficult to beat the neutrality argument, when the Court goes for an alternate approach, it found a very compelling reason to do so. I don't know that the Chief Justice's opinion reveals the true motivations for deciding the case this way. I think better information is available in the briefs and in the oral arguments. The Court was concerned about what it would mean, not just in this case, but in many other settings, if it deprived government of the power to treat religion differently.
Separation of church and state prevails over the Free Exercise Clause in today's Supreme Court case, Locke v. Davey. And really, federalism won out over nationalizing rights, because this was a case where a state, in its own constitutional law, had embraced a stronger vision of separation of church and state than is required by the Establishment Clause of the U.S. Constitution. That is, the courts of the state of Washington had interpreted the state law version of the Establishment Clause to mean something more like what a minority of the U.S. Supreme Court would say the Establishment Clause means. Clearly, the state court can interpret the state constitution independently, but the problem here is that there's another federal right, the Free Exercise Clause, which could have been used to deprive the state of the ability to adhere to a more strongly separationist position than the federal Constitution requires.

In the case, the state denied a scholarship to a college student because he chose to study to become a minister.

Chief Justice Rehnquist looked to the history of separation of church and state. Even though he hasn't voted with the Justices who read that history to mean that the Establishment Clause requires excluding religion from government benefits, he read that history to justify the state's vigorous approach to separation. The state can discriminate against religion in spending its money on scholarships, because it wasn't discriminating out of a hostility toward religion but out of a respectable belief in the importance of separating church and state.
[W]e find neither in the history or text of ... the Washington Constitution, nor in the operation of the Promise Scholarship Program, anything that suggests animus towards religion. Given the historic and substantial state interest at issue, we therefore cannot conclude that the denial of funding for vocational religious instruction alone is inherently constitutionally suspect.
It is possible to interpret the Free Exercise Clause and the Establishment Clause so that everything that is permitted is also required. To do that removes all legislative options and denies the state room to express its own values about the relationship between government and religion. The Court rejected that option. Though strong proponents of Free Exercise will be unhappy with today's decision, it should not be seen merely as a victory for church-state separationists. It is also a victory for federalism, which leaves more room for varying definitions of rights within state law.
"Don't burlesque me." That's a quote from Ralph Nader, speaking to Chris Matthews on Hardball Monday night. When is the last time anyone used that word as a verb in normal speech (as opposed to an English literature lecture)? It was a dictionary-perfect way for Nader to defend himself against Matthew's caricaturing attack:
bur·lesque... transitive verb: To imitate mockingly or humorously: “always bringing junk . . . home, as if he were burlesquing his role as provider” (John Updike).
What possesses political candidates to use words that either can't be understood or that make people think of them as weird or out-of-touch? Howard Dean opened himself up to ridicule when he said:
In the South, people do integrate religion openly, easily into their lives, both black Southerners and white Southerners. I understand that if I'm going to campaign for the presidency of the United States, I have to be comfortable in the milieu that other Americans are comfortable.
Ah, well. Actually, I find the candidates a bit adorably nerdy when they lapse into this kind of bookish vocabulary. One likes to think they've studied a bit over the years.

Nader, on Hardball, exemplified the nerd's hostility to the popular kid when he couldn't stop remarking on George W. Bush's scholarly inadequacy. He's not well-read! I'm sure the people will rise up in outrage when that message gets out.

An interesting sidelight: Matthews said he voted for Bush in 2000! Racking my brain to think of why, I could only imagine it has something to do with Matthews oft-expressed theory that the people want the candidate they picture with the sun on his face. Of course that theory spells doom for Ralph Nader. But that doesn't matter. Nader's only in for the japery.

February 24, 2004

Making the same point, less enigmatically. Someone asked me to restate that first post today and make it clearer, so I'm going to try to put it as plainly as I can. First, eventually the constitutional amendment will be defeated. It's only a question of when. President Bush has no role in the amendment process, other than to give an opinion, and he's done that, presumably with the hope of going on to other issues, issues of his choosing. The process is now in Congress, and chances are it will never get out of Congress, because a two-thirds vote of both houses is needed and because, I'm guessing, few members of Congress really want all the heat that it will generate. Maybe it will emerge from Congress, and then it will go on to the state legislatures where it will inevitably, eventually, die. (I note that the Musgrave proposal in Congress does not have a deadline for ratification, so conceivably it could remain on life support indefinitely, but in any case, it will never become an amendment to the Constitution.)

So the real question is what effect will the amendment process have on the political issue. The futile amendment process will go on, and meanwhile the political debate will continue, but the nature of that debate will be affected by the fact that an effort is taking place to amend the Constitution to add a provision that will, for the first time in American history, diminish the aspirations for equality of a particular group. That effort will be a new thing to talk about, and gay rights advocates will portray that effort as mean-spirited and out of keeping with the rest of the Constitution. Thus, even though the amendment is designed to deprive gay rights proponents of something they seek, the amendment effort provides them with new opportunities to portray the opposition in a negative light. I think Americans who have not taken sides or who may feel a bit shocked by what is happening in San Francisco will balk at the idea of an exclusionary amendment in the Constitution. The all-powerful moderate Americans will be affected by the argument that it's wrong to actively exclude the underdog and it's wrong to put something negative in the Constitution.

I realize proponents will say they are doing something positive: protecting marriage. But they are having a heck of a time trying to express how marriage is being attacked. The institution of marriage they are purporting to protect is an abstraction. It is turning out to be very hard to explain that idea to people who don't already agree with them.

Finally, what did I mean by predicting that that there would be a simultaneous "departure of arguments about overreaching activist judges thwarting democratic choice"? Admittedly, this is the most enigmatic part of the post. What I meant to say is that so far the spotlight has been on a few bold judges (and a mayor), who seem to be taking things into their own hands, and the arguments have been about whether they properly have the power to do what they are doing or whether more democratic processes should govern. But if the spotlight shifts to the constitutional amendment, what people will start talking about is whether there should be a permanent, uniform national rule defining marriage. Judges announcing a right to gay marriage may be getting ahead of the political process, and that has provoked a lot of outrage and criticism. But the amendment goes to the other extreme, denying states the opportunity to experiment and to govern matters of marriage as they traditionally have. And by making the national law a matter of constitutional law, and not merely statutory law, the new amendment even deprives Congress of the ability to respond over time to the changing preferences of the people. These new issues having to do with the amendment will overshadow the arguments about activist judges, which, so far, have been the best arguments the opponents of gay marriage have had.
Is fighting off the amendment an added burden for gay rights proponents? You may respond to my previous post by saying that the fight against the amendment is only adding to the burden of those who are fighing for gay marriage in the courts and in the political sphere. But I think fighting off the amendment will put the gay rights movement in a more positive light, fending off an attack that will be made to look mean-spirited. Public opinion will be shaped in a new context, in which the majority is rising up against an underdog group--and marring the Constitution in the process.
The arrival of a new set of arguments about gay marriage. President Bush is asking Congress to go forward with a constitutional amendment banning gay marriage. What should we make of this? How upset should those who accept or approve of gay marriage actually be? Is the cause better off fighting in the courts or fending off a constitutional amendment? Arguably, it is better to be in the position of fending off a constitutional amendment. The amendment will surely, eventually, be defeated, because of the difficulty of amending the constitution. (All that is needed is the opposition of one house of the legislature in thirteen states.)

Meanwhile, proponents of gay marriage will be able to talk about the importance of refraining from adding a statement of exclusion toward a discriminated-against group our to our revered Constitution, which thus far has been amended only to increase equality. The arrival of this new set of arguments will coincide with the departure of arguments about overreaching activist judges thwarting democratic choice.

February 23, 2004

Very creative, Ralph. I'm at home this afternoon, nursing my cold, trying to stave off laryngitis, and I'm reading things on the internet, thinking I should add a little something to the blog today, and as I wait for my slow home connection to load another website, I watch the TiVo'd Meet the Press from yesterday. Each time a webpage loads up, I pause the TiVo and go back to reading. Every single time, I catch Ralph with his right eye shut and his left eye open.
"Iraqis will be ruled by Iraqis," says Nader. "They will be ruled, under fair elections, by Iraqis. They're very creative people. ..."
John mimics a kindergarten teacher: "You're very creative!"
The SAG Awards, Get to Know Your Rabbit. The SAG Awards were awfully dull. One big surprise--Johnny Depp won the best male actor award--but then he wasn't there, so the moment fizzled. The best thing about the SAG Awards is that they give awards for entire ensembles. So they give the TV one to Sex and the City, but Sarah Jessica Parker is a no-show, and then they give the movie one to Lord of the Rings, and a huge group of lesser actors assembles on stage and mills about, while Sean Astin babbles boringly about something Guild-ish, until the hulkish John Rhys-Davies shoves him aside, seemingly for being tedious.

Lately, Rhys-Davies has been having some troubles. As he puts it: "I'm burying my career so substantially ... that it's painful."

It was only through Astin's speech last night that I realized he was Patty Duke's son. He didn't name her but mentioned that his mother had been president of the Screen Actor's Guild, and I put two and two together. John Astin is not his natural father, but adopted him after he married Patty Duke.

So let me just take this opportunity to say how much I love John Astin. And I don't just mean that I love him as Gomez on The Addams Family. I love him as Harry Dickens on I'm Dickens, He's Fenster, And I love him as Turnbull in Get to Know Your Rabbit.

I saw Get to Know Your Rabbit when it was shown, pre-release, in 1971, to a test audience in Ann Arbor, Michigan. I and it seemed like everyone else in that theater experienced it as the funniest movie we had ever seen. Somehow, even though it was directed by Brian De Palma and has Orson Welles in its cast, it fell into oblivion. I still have never come close to laughing as much at a movie as I did that night. I finally found a videotape of it, watched it again, and couldn't recapture the original feeling, maybe because I knew all the surprises. But Astin stands out as especially funny, especially, for some reason, while trying to keep pencils from rolling off his desk. For those in the know: "Pass your hand through the flame!"

February 22, 2004

Another Sunday. It started out sunny and warmish, but now it's all gray and there's a light snow falling. I'm finally about to leave the office, with my editing job done at last, and set out in search of a FedEx drop off. I took a break at 1 to walk down State Street, something I haven't done in weeks, because I've decided to hide from winter this year. I wanted to try out the new cafe, Fair Exchange, and finish the Times crossword puzzle. (The sublime acrostic was consumed long ago.) I ran into one of my sons, so we sat down at the cafe and chatted, and the undone puzzle survives. The new cafe is fine. Lots of sandwiches, which they grill up nicely for you.
What's that? Lettuce in a sandwich you're going to grill?

It's spinach.

Very clever.
So a lovely grilled chicken sandwich and a large latte in a large room with ochre walls, a high ceiling (painted maroon), and lots of heavily impastoed ochre-and-green paintings. There are never enough lunch spots and cafes on State Street, and I'm saying Fair Exchange counts in both categories. Now, time to do the assorted errands and put in some time at Borders. This evening: why, the SAG Awards, of course! With any luck, a drunken Jack Nicholson will rant and rave about Diane Keaton.

UPDATE: The name of the cafe is not Fair Exchange. It's Fair Trade.
Nader and the gay marriage issue. I had thought that both Kerry and Bush had plenty of motivation to try to keep the gay marriage issue from having much effect on the campaign. I thought they were both going to try to get away with saying blandly "marriage is between and man and a woman... blah blah ... leave it to the states." But Ralph Nader's entry into the Presidential race is going to undercut Kerry's ability to engage in a friendly little dance with Bush. Here's what Nader had to say in the 2000 campaign:
Saying that he is "way ahead of Al Gore" on liberal issues, Green Party presidential nominee Ralph Nader said ... that he supports civil unions and "equal rights, equal responsibilities" for homosexuals.

Nader ... said that he also supports gay adoptions. "The point is that we have to have a basic policy in this country of equal rights, equal responsibilities, regardless of race, gender, sexual preference," said Nader on NBC's "Meet The Press." "It's really interesting," added Nader.
Yes, it is "really interesting," especially for the Democrats. Kerry and Edwards had this response to Nader's announcement according to Reuters:
Both Democratic presidential contenders, front-runner John Kerry and rival John Edwards, told reporters they were not worried that a Nader candidacy would hurt them if they face Bush in November.

"I think my campaign is speaking to a lot of the issues Ralph Nader is concerned about," Kerry said. Edwards said "it will not impact my campaign" because he could attract many of the voters who might otherwise go to Nader.
Oh really? And how are the Republicans feeling today? Reuters "tried not to" editorialize in that news report:
Republicans tried not to celebrate the news. "Regardless of what Ralph Nader does, President Bush is going to be re-elected in November," Republican Party chief Ed Gillespie said.
Traditionalists, check your references. Reverend Banuchi's sandstone analogy was still nagging at me, and I realized it was because it reminds me of Psalm 118:
The stone which the builders refused

is become the head stone of the corner
Saint Peter repeats this image in his First Epistle:
4: Come to him, to that living stone, rejected by men but in God's sight chosen and precious;
5: and like living stones be yourselves built into a spiritual house, to be a holy priesthood, to offer spiritual sacrifices acceptable to God through Jesus Christ.
6: For it stands in scripture: "Behold, I am laying in Zion a stone, a cornerstone chosen and precious, and he who believes in him will not be put to shame."
7: To you therefore who believe, he is precious, but for those who do not believe, "The very stone which the builders rejected has become the head of the corner .... "
Note to Christian traditionalists relying on analogies about worthless stones: check your Scriptures first! The rejected stone in the Bible is Jesus!
That sandstone again, and "very sophisticated soot." I wrote: "If somehow people did want to buy sandstone at the price of gold, it must be because they have found some amazing quality to standstone that inspires them to buy it." Consider this, from the Washington Post:
The blue column contains a weird new furnace, of sorts, evidently the largest of its kind in the world. The furnace makes fluffy black stuff that "looks like soot," said Bob G. Gower, head of the company building the device. "But it's very sophisticated soot."

Indeed it is: Right now it sells for 39 times the price of gold. The black stuff consists of exceedingly small tubes of carbon, "the strongest thing you'll ever make out of anything in the universe," said Richard E. Smalley, the scientist who won a Nobel Prize for helping to discover similar objects.

Someday, when the price falls and the quality improves, this black stuff might be woven into a cable thinner than a human finger yet capable of carrying the world's entire supply of electricity. Or it might be used in computers hundreds of times more powerful than those now available but tiny enough to wear on a wrist. Or in impossibly thin, graceful bridges over which the heaviest trucks would roar without making a dent.
I resent that. So I sent an email to someone who had recently emailed to say he was using a new email address from now on. I realized my mistake and resent the email to the new address. Before he got the second email, he replied that I'd used the old email address, which caused me to email him and say, "I resent it."

That's absurdly open to misunderstanding! Don't you write "resent" for "re-sent" all the time without noticing it might make you seem resentful? But hyphens have a way of falling out of words. "Email" is a prime example. I see Sharp Points is trying to preserve the hyphen in email (based on the fact that the "e" is a pronounced letter, not a legitimate syllable), and maybe the French have a problem with it (because it's their word for enamel), but that hyphen is just not going to survive.

But if you drop hyphens or close up words that were once two separate words, you may end up writing something that other people will see in a different way.

I went 30 years without noticing that "Superbowl" could be read as "superb owl." When you know what's supposed to be there, you don't see the alternatives. It's probably a good mental exercise to try to see alternative images in common agglomerations. You could do conceptual art based on such things. Typical observations of this kind are that "God" is "dog" spelled backwards, or "justice" could be split into "just ice." Look for new ones. I will, and I will keep you posted.

Oh, here is one more, which occurred to me once when I was having trouble painting. (I'm the lawprof who went to art school.) The word "painting" can be broken into "pain, ting!" A "ting" is "a single light metallic sound, as of a small bell." That seemed to express something about the utter insignificance of the pain painting was causing me. Ting!
More on the gold and sandstone analogy. My son John writes:
You wrote: "Gold is, obviously, not like marriage, because people have an interest in accumulating quantities of gold, but each person can only have one other person in the marriage market."

Well, let's assume for the sake of argument that we are interested in viewing marriage in terms of possibly "devaluing marriage" in some kind of a quantitative way. (I don't agree with this quantitative way of looking at marriage, but if that's what people like Banuchi want to do, then they should be argued with on those terms.) In that case, not only you are you right that gay marriage wouldn't seem to devalue marriage very much, but couldn't we also say that divorce devalues marriage a lot more? 50% of marriages end in divorce, so I assume that the number of divorcees is much larger than the number of gay married people that there would be if gay marriage were legal. Now, let's assume for the sake of argument that divorce and gay marriage are equally severe breaches of Traditional Morality. We would then need to say that divorce threatens marriage a lot more than gay marriage would. You said that "each person can only have one other person in the marriage market"--well, this doesn't quite apply to divorce, since one person can get divorced many times. If someone gets divorced five times, then that person has chipped away at the institution of marriage five times; this is in contrast to the gay person who gets married once, thereby chipping away at marriage only once.

(Maybe gays would be more likely to get divorced, because they're radicals who want to erode traditional institutions. Or maybe they'd be less likely to get divorced: maybe they'd value marriage more, in the way that someone living in the desert for years might go on to value water more than other people do. This is an empirical question that we don't yet have the data to answer.)

...So, anyway, my point is that the true conservative who genuinely wants to speak in quantitative terms about preserving the puritanical monolith called Marriage should be focusing on the current horrors of divorce instead of the potential dangers of gay marriage. (None of this matters anyway, since marriage doesn't work like gold, for the reasons you pointed out. But the conservatives should be argued with on their own terms.)
Great points. Let me add that anyone who invoke the Traditional-Morality-Attack-On-Marriage argument has a real problem if they say it's okay to make an exception in the case of divorce but not okay to make another exception. You can't rest very solidly on a foundational principle if you tolerate exceptions for the things you and the people you identify with might want to do and then refuse to make exceptions for the things that only other people might want to do. That is the most unprincipled thing of all. Better to be completely flexible than to stand on inflexible principle only when it serves your own purposes.
What, no grinning Nader image on Drudge yet? I was expecting the revolving siren light. You can't sleep in just because it's Sunday, Matt.