Wednesday Highlights

Woo hoo. I’m still here. Actually, weekend travel + Monday I was on site all day sans Internet, and then I’ve come down with laryngitis and between trying to work and sleep blogging has taken the hit.

  1. Circumcision and Germany, two views here and here.
  2. Magic … the interesting inclusion of “contagion” prompted me to link this … sounds kind like quantum entanglement, eh?
  3. Unimpressed by a TV mini-series.
  4. And a film review.
  5. A thank you from Mr Barnett … I’d link a thank you from the other side of the aisle but didn’t find one. Is that to be expected? Why?
  6. Big gun.
  7. Speaking of guns (and bikes!?).
  8. Economists you like.
  9. The EU and unexpected exit advice.
  10. Hunting for the honest liberal with respect to “judicial activism”?
  11. Having a bad day … nature edition.
  12. Freedom and university.
  13. Chicago and stupidity around gun laws.
  14. Modify the past to effect predictions is not warranted, …. right?
  15. First birther. Heh.
  16. Statistics of violent encounters.

14 Responses to Wednesday Highlights

  1. Does nicely summarize what seems to pass for as what counts as a valid support of an argument on the right. Let’s see, what evidence is insufficient to establish where Obama was born:
    Obama himself.
    Notice in newspaper run on the day he was born.
    Birth certificate
    Assertion of the state’s vital records dept. that certificate was valid.
    ‘Long form’ certificate.

    What counts as evidence he wasn’t born in HI?
    An internal memo by a book publisher that even the birther himself says was almost certainly not written by Obama.

    This, of course, reveals how epistomology works for some. It’s not so much that some evidence is better than other evidence in the question to find truth. It’s the truth is what you want it to be, or what works best for you, and evidence is valid if it confirms that and less valid if it doesn’t confirm that. In other words, the right has become the philosophical vanguard for extreme relativism for the first half of the 21st century.

  2. 10.Hunting for the honest liberal with respect to “judicial activism”?

    The phrase carries with it an ambiguous meaning.

    On the one hand, you can view there being a single Platonically correct way to read the Constitution. Whatever that way is, then, you should strike down laws that contradict that way, uphold ones that do not. Doing anything else is ‘judicial activism’ because you are using some other standard to judge the laws (such as which policies do you think are ‘good’….an anti-judicial activist would say that if you want to play that game you should run for office and make your views known as a legislator rather than a judge).

    Another meaning would be to say that there are multiple plausible ways to read the constitution (which is not the same as saying anything is permissible, there can be multiple right ways of reading but many, many wrong ways). Under this view the judge has two jobs. First is to get to a plausible, correct way to read the constitution. Second, if he finds more than one correct way to read the constitution, he should defer to the way that is the least disruptive to the established order. For example, he should defer to legislatures whenever possible rather than strike down laws.

    It’s an interesting irony that rhetorically the left and right seem to be on one side, but in reality is the opposite. Rhetorically conservatives like to position themselves as advocates of the first view….the judge should ‘just read the Constitution’ and shouldn’t ‘legislate from the bench’. Likewise liberals rhetorically seem to align with the 2nd view (see ‘living constitution’) but are a bit less hawkish about judicial activism. Reality tends to be the opposite, though. Much of the criticism the right has launched on liberal decisions come straight from the 2nd point of view. For example, consider the conservative refrain that Roe.v.Wade was wrong for taking abortion ‘out of the hands’ of legislators and voters and the issue should ‘be returned’ to the states. From the first point of view, this is pure nonesense. Either Roe proceeds from the Constitution or it doesn’t, if it does then no judge has a right to ‘give it to the voters or the states’ to decide. If the states and voters want that the rules say they should pass an amendment to the Constitution. Likewise many rulings concerning free speech for pornography, rights of the accused, separation of church and state, are all reasoned purely on Constitutional grounds from the left, but criticism from the right centers on ‘legislating grounds’…..it’s ‘disruptive’ to say state schools have to abolish their prayer, cops would be hampered by reading criminals their Miranda rights, it just doesn’t seem right that a criminal should go free because the cop got the evidence through an illegal search! Again a true strict constructionalist would abhor all these arguments as nothing but judicial activism. If the Constitution mandates something unworkable, then amend it according to the rules, otherwise learn to live with it!

    The second view does have an argument for it. Judicial power is largely imaginary. People obey judges because they just do. Judges do not have direct command of police or armed forces at their disposal. Hence if judges have a choice between two different readings, they should opt for the one that limits the power of the judge to overrule all the other branches because, ironically, this enhances judicial power in the long run. From this point of view an ‘activist judge’ is bad not because he isn’t reasoning from the Constitution, he is bad in the sense that a mafia don who likes to be pictured by the tabloids every week wearing trendy outfits is bad…he will attract attention to the organization and threaten its power in the long run even though he may achieve limited short term fame and power for himself.

  3. Boonton,

    First is to get to a plausible, correct way to read the constitution. Second, if he finds more than one correct way to read the constitution, he should defer to the way that is the least disruptive to the established order. For example, he should defer to legislatures whenever possible rather than strike down laws.

    Those sentences don’t follow. From “least disruptive” it does not follow to defer to legislature (especially for legislation passed with questionable tactics, marginal support in Congress, and which is very unpopular).

    Likewise many rulings concerning free speech for pornography, rights of the accused, separation of church and state, are all reasoned purely on Constitutional grounds from the left

    You need to refer back to the assertions made in th e prior paragraph, that there are many correct reasonable exigesis of meaning from the Constitution. Oddly enough those opposing those thing supported from the left can also be opposed on Constitutional grounds via plausible readings of said text.

    So … you seem to paint picture that all activist judging is bad. Put that in the context of judicial rulings during the civil rights era. You oppose judicial activism in that case? Would that have been a better example for those libs, who anticipating an Obamacare overturn, have started their speaking out against judicial activism?

  4. Boonton,
    Let’s see, first off, this wasn’t a memo, it was a book press release, which Obama certainly vetted and approved. I’m not sure what this has to do with “arguments” on the right. I’m not making any argument at all. I’m just citing Obama as an early birther. Apparently he didn’t get the memo for correct epistemology/logic that needs to follow to establish birth. Y’all should let him know.

    Perhaps the reason that fiction sufficed for the autobiography is that so much in the book was fiction that this birth notice being fictional as well was deemed appropriately.

    Let me know why you think a work of fiction sold as an autobiography might be defensible as a practice?

  5. Boonton,
    A book of relevance to judicial hermeneutics from an unusual source, it’s by Jaroslav Pelikan (and I’m certain I got it for a lot less … but perhaps through a library?)

  6. Those sentences don’t follow. From “least disruptive” it does not follow to defer to legislature (especially for legislation passed with questionable tactics, marginal support in Congress, and which is very unpopular).

    None of this is of any concern to a judge unless, maybe, you can show that Senators were being required to vote with knives to their throats or a swath of ‘no’ votes were purposefully not counted. Legislatures are rough places, it wasn’t that long ago a Senator was almost beaten to death on the floor of the Senate in the debate over slavery.

    Regardless, a judge is nobody to measure a law’s popularity. 50 Senators and hundreds of Reps face elections on both local and statewide level, judges do not. Marginal support? Did it pass with a majority of Congress or did it not? Again unless you have have an honest case of the actual vote tallies being in dispute this is not something for a judge to bother with. Questionable tactics? Please you’re making my argument for me. If judges tried ruling like this they’d end up being run out of town by lynch mobs.

    Oddly enough those opposing those thing supported from the left can also be opposed on Constitutional grounds via plausible readings of said text.

    True, but here is where rhetoric diverts from reality. Conservatives don’t usually criticize by saying something like “yes, a right to sexual privacy can be read into the Constitution…however we should opt for a reading that doesn’t least we end up striking down a lot of laws people support and end up alienating them from the judicial branch”. They claim liberal judges are just making rulings based on the laws they would personally want to enact if they were legislators.

    So … you seem to paint picture that all activist judging is bad. Put that in the context of judicial rulings during the civil rights era.

    Again depends on which meaning of activist we are talking about. If its the first meaning then activist judging simply means deviating from the Constitution. To someone who is following a single Platonic reading the civil rights era judges were simply properly applying the Constitution that had been misapplied by a series of Reconstruction rulings that ignored the 14th amendment.

    The second reading gets much more complicated, though. As a judge you need to find at *least* two plausible ways to read the Constitution then have to decide which one should be applied. But a lessor judge may not be able to come up with anything but a single reading. He will likely think he has ‘found’ the ‘One True Meaning’ and act the role of the Platonist. When you consider that not only must a judge work on reading the Constitution but also read it with major precedents intact, finding multiple readings to choose from is not as easy as it sounds in theory. A sensible rule of thumb here is to play it using a small-c conservative principle. Make rulings that fit in with both the constitution and all major precedents that seem to apply taking care not to radically overturn settled law without a really pressing cause. Civil rights were probably one area where such ‘activism’ might have been morally justified (esp. since many of the major cases involved not overturning law but defending law enacted by legislators like the Civil Rights Bill).

    Let’s see, first off, this wasn’t a memo, it was a book press release, which Obama certainly vetted and approved.

    Certainly vetted and approved? You seem to think authors have exceptional control over their publisher’s marketing departments. Possibly for well established famous authors with a proven track record but somehow I suspect with first time authors the author is lucky to get to even approve the book cover let alone personally sign off on press releases.

    More importantly it wasn’t a press release. It was a booklet sent by the agency to publishers showcasing writers they were representing, they were representing 90 writers in total so it would hardly be shocking that the poor schlub assigned to write four paragraphs on each guy mangled some facts or leaped to a wrong conclusion.

    More importantly though, look at the weighing of evidence here. Hastily written booklette for internal promotion trumps the official documents of a sovereign state’s department of vital statistics? Only when you choose your truth first then figure out which evidence helps or hurts that truth.

  7. Boonton,

    None of this is of any concern to a judge unless…

    It was your argument not mine. And “don’t overturn because it is popular” was a liberal argument as well.

    You seem to think authors have exceptional control over their publisher’s marketing departments.

    Numerous authors all have noted that all of the book cover material was presented to them prior to publishing.

    Hastily written booklette for internal promotion trumps the official documents of a sovereign state’s department of vital statistics?

    That’s your impression. Nobody here is making that case, only claiming that Mr Obama has a history of being a birther himself or certainly having no objection to it. Nobody here is arguing it trumps or means anything like what you claim.

  8. Boonton,

    True, but here is where rhetoric diverts from reality.

    Well, that’s a common thing. Y’all do it too. “SSM arguments are all based on homophobia” … I’ve heard that how many times? Although gleaning right to privacy = right to kill a fetus as derived not from exterior notions but from Constitutional text (and didn’t on a recent case one of the liberal judges cite European ethical standards). Let me know the Constitutional argument for Roe/Wade when you have time.

  9. It was your argument not mine. And “don’t overturn because it is popular” was a liberal argument as well.

    Exactly how does one determine what’s popular? Consider the Constitution was written before random sampling was ‘perfected’ as a mathematical science. Also consider even with a survey, what people say and what they really mean are two different things. We have one branch, though, that is directly elected and another branch that is indirectly elected so together they are probably a better measure of what is or isn’t popular than the one branch that absolutely is NOT elected.

    Numerous authors all have noted that all of the book cover material was presented to them prior to publishing.

    Really? All 80 of those authors have come forward to testify that they remember being asked to proof this promotional material? A more likely case was a few staff people were assigned the task of writing up bios of the company’s authors. Whoever got Obama might have quickly perused a draft of a manuscript and might have confused Barak Obama who was born in Kenya (his father, Obama Sr.) with Barak Obama who was not.

    That’s your impression. Nobody here is making that case, only claiming that Mr Obama has a history of being a birther himself or certainly having no objection to it.

    Absence of evidence = evidence of absense I suppose. Nicely fits in line with someone who thinks truth is something you choose first and then evidence is worked to fit that

    Well, that’s a common thing. Y’all do it too. “SSM arguments are all based on homophobia”

    Cite? While I can’t promise you that out of the entire population of liberals not a single one has thrown up his hands in debating SSM and declared all the arguments are just a cover for homophobia, fact is liberals have carefully taken apart all the arguments presented by anti-SSM advocates and that favor has NOT been returned.

    Although gleaning right to privacy = right to kill a fetus as derived not from exterior notions but from Constitutional text (and didn’t on a recent case one of the liberal judges cite European ethical standards).

    Let me know if you figure out what you want to discuss specifically.

    Let me know the Constitutional argument for Roe/Wade when you have time

    Right to privacy implied by the bill of rights. In other words, the Fed gov’t can’t regulate the sex lives of individual citizens which means contraception, etc. 14th amendment incorporates the essential rights of the bill of rights to apply to state and local gov’ts.

  10. Note that a judge may be reluctant to overturn a popular law but it doesn’t follow that the same judge should feel inclined to overturn an unpopular one (however one measures popularity here). A judge that upholds an unpopular law is not stopping a legislature from changing the law, he isn’t ‘getting in the way’ of the people in the same sense as when he overturns laws.

  11. Boonton,

    Cite? While I can’t promise you that out of the entire population of liberals not a single one has thrown up his hands in debating SSM and declared all the arguments are just a cover for homophobia, fact is liberals have carefully taken apart all the arguments presented by anti-SSM advocates and that favor has NOT been returned.

    I had a long long email exchange with a member of my former parish (Episcopal) over SSM. I halted any discussion when he admitted just that, i.e., all anti-SSM arguments are based on homophobia. How can you talk with a person who holds that as their rhetorical basis.

    Let me know if you figure out what you want to discuss specifically.

    What is the Constitutional basis for Roe v Wade absent exterior arguments.

    Right to privacy implied by the bill of rights.

    So? You have to go into more than that … privacy is not an absolute right. I have a right to keep my finances private? Ends taxes. Right to keep my family private, ends all sorts of child related intrusions. So privacy is already constrained.

  12. I halted any discussion when he admitted just that, i.e., all anti-SSM arguments are based on homophobia. How can you talk with a person who holds that as their rhetorical basis.

    YOu demonstrate that he is wrong, if you can.

    So? You have to go into more than that … privacy is not an absolute right. I have a right to keep my finances private? Ends taxes. Right to keep my family private, ends all sorts of child related intrusions.

    The right to control one’s body would not require an absolute right of privacy. You asked for a sketch of how Roe was reasoned and I provided it.

    What is the Constitutional basis for Roe v Wade absent exterior arguments.

    You want only interior arguments?

  13. Boonton,

    YOu demonstrate that he is wrong, if you can.

    Hack. Spit. Uhm, hello? Seriously? You prove that your disagreements with me aren’t really, you know deep down, all based on hatred toward half Norwegian physics majors. I mean prove it. The basis of (rational reasoned) conversation is not that your true motivations are off the table and based on hatred. If you assume as a unassailable premise that, there is not possibility for conversation. How can there be?

    The right to control one’s body would not require an absolute right of privacy.Genes have been copyrighted.

    You want only interior arguments?

    Right. Interior to the Constitution, i.e., textual hermenuetics.

  14. Hack. Spit. Uhm, hello? Seriously? You prove that your disagreements with me aren’t really, you know deep down, all based on hatred toward half Norwegian physics majors. I mean prove it.

    You could ask me to give my opinion on some topic before you do and you likewise will write your opinion but we will both set our blogs to publish the posts at exactly midnight thereby preventing us from knowing ahead of time what our opinions will be. If my motive is to simply prove half-Norwegian physics majors are just wrong about everything, I’ll only have a 50-50 chance of being in disagreement with you. Repeated experiments of this sort will then reveal what is mor elikely

    Right. Interior to the Constitution, i.e., textual hermenuetics.

    The tenth pretty clearly states that there are rights not enumerated in the Constitution that are reserved for the states and the people. That would seem to put you in a bit of a bind in that inside the Constitution it clearly points outside!

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