November 30, 2003


The National Education Association, which is the somewhat misleading name for one of the two large teacher's unions, is finally being audited for its political contributions. If you want to be a teacher in a public school where the NEA holds sway, you have to pay NEA dues. By the 1980s it became obvious that the NEA was spending a large portion of its dues on non-teacher related political issues. In Communication Workers of America v. Beck the Supreme Court ruled that employees forced to pay union dues under the National Labor Relations Act (NLRA) do not have to contribute to a union's partisan political activities. In 1992 Bush I made an executive order which mandated union disclosure of Beck rights, and required accountings of political expenditures. Unions have typically resisted this. The NEA has resisted compliance by consistently denying that they spend union funds on partisan issues. A contention that I find laughable, but after the audit I guess we won't have to guess.

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November 29, 2003

Visting my Japanese Granparents, with a sidenote on family

I had an interesting (to me) Thanksgiving which centered around visiting my Japanese Granparents, Grandma Kimi and Grandpa Yosh. It is a long story, and might not be interesting to you, so I have placed it behind the extended entry. Three of my grandparents are connected to interesting Japanese stories, but they don't have much of the political/legal content which this site normally centers on, so you have been warned.

Grandma Marie Holsclaw was my father's mother. She had a good friend who was Nisi--a US born child of Japanese American immigrants. This friend's name has been lost with my grandmother's Alzheimer's and later death. None of the members of our family remember her name. There was apparently a great deal of familial strife between the Nisi children in the US and the family in Japan. This caused a great deal of pain to the first generation parents of my grandmother's friend. Eventually it was decided that her friend would go to Japan to make peace with her family. Unfortunately she arrived in Japan only a month or so before the attack on Pearl Harbor.

Apparently my grandmother had to travel from Auburn, California to San Francisco a number of times in order to assure US authorities that her friend was really a US citizen. The rest of the story is lost to me, though there are rumors of letters that may still exist on the topic somewhere in our family.

But as you might guess, Grandma Kimi and Grandpa Yosh have much more to say about being Japanese in the US.

Grandma Kimi is in a rest home in Davis, two hours by car from my parents and about ten hours by car from me. About 13 years ago she had a stroke and was expected to die. She took about 5 years recovering from that and eventually got to the point where she could do many daily activities, and could speak almost normally, though at a very slow pace. Two years ago she had another stroke, and she is not recovering. She was always my closest grandparent, so I visit her whenever I can. It nearly broke my heart to see her a month ago on the way to my Grandpa Holsclaw's 90th birthday party. Her mind still works, you can see it in her eyes and in her frustration as she tries to react to my presence. But her body doesn't play along. She can barely twitch the arm which used to sew hundreds of little trinkets for sale at craft shows and her mouth won't allow her to say more than one word at a time. Even then she often can't make us understand the word she says. She was clearly slipping in to death, so I decided to make a point of seeing her again this Thanksgiving.

On Thanksgiving Day my parents and I drove up to see her again, and to eat with Grandpa Yosh. My dad foolishly asked her if she was doing well and she glared at him while shaking her head. She seems much better, but that is a relative scale which is really just differentiating between levels of awful.

We went out to Baker's Square with Grandpa Yosh, and it is becoming clear that he is doing what he can to take care of Grandma Kimi but that what he can do isn't so much anymore. Then we went back to see her for dinner, and found that she pretty much just sips milk, has a bite or two of mashed potato and then refuses to eat any more. I don't blame her for avoiding the mushy green stuff. It looks and smells awful.

Grandma Kimi was born in California, and went to college before being sent to the Poston internment camp. Her mother died in the camps and told Kimi: "Don't blame the government for my death because it is time to meet my friend Jesus." She always told us that quote with mixed emotions. I think she wanted to follow her mother's advice, but couldn't. She evetually became a seamstress at UC Davis Medical Center and invented an evacuation gown which nurses could wear to flee with multiple babies. She eventually sold sewn knick-knacks at craft shows and was wonderful at playing the marimba.

All of these things weren't that important early in my life. To me she was far greater than those things--she was my favorite grandmother. I would spend time at her house, play with her puzzle toys, and I'm sure generally make a nuisance of myself. Grandma Kimi and Grandpa Yosh took me and a friend to the Expo '86 Vancouver World Fair. I still remember that whole trip very fondly. More than the actual fair, I remember playing with the chemistry model sets which Kimi brought along. Matthew and I made some of the most interesting molecules in the back seat of her car.

To look at me you wouldn't expect me to have a Japanese grandmother. Kimi married at 35 which in 1951 was quite late to start a family. She had eight miscarriages, and her doctor told her to stop trying and adopt. She adopted a Japanese street urchin, who by height and weight was thought to be three. She may have actually been as old as six, and she had already learned habits which she could not break in her stay with the Nakadas. She eventually vanished, not to reappear for many years. Kimi couldn't have children, her attempt to adopt had turned quite bad, and she was a Japanese woman with no hope for grandchildren. She met my parents in a church in Davis and adopted their children as her own granchildren. I hope you won't begrudge the fact that I waited so long to reveal that fact--I didn't find out myself for many years. I didn't understand race well enough to think that having two white parents might exclude you from having Japanese grandparents.

As I look back on it now, I see that Grandma Kimi really is my closest grandparent. The grandparents on my mother's side were nice, but didn't develop a close bond with me when I was young. The grandmother on my father's side was somewhat close, but fairly early she began her descent into what we now know was Alzheimers, and she had been deeply scarred by her realtionship with Grandpa Holsclaw. Grandpa Holsclaw I have only seen three times, he planned a divorce from Grandma Holsclaw for 15 years while waiting for no-fault divorce to become the law of the land. He divorced my whole family along with her.

In the last 3 years I have spent some time with all of my grandparents in different ways. Before her second stroke it was very easy to spend time and talk with Kimi and Yosh. I had a bond with them that made small talk easy, and deeper talk possible. My mother's parents now live near my parents, so I see grandparents and parents at the same time. I can talk to them, and enjoy them, but I have to make an effort that was never a problem with Kimi. My Grandpa Holsclaw I saw at his 90th birthday. But a half an hour of close contact with the man who so wounded by Grandma Holsclaw was much tougher than a half an hour spent with Kimi in her rest home bed, even though she couldn't talk and could barely register my presence.

It isn't a new discovery, but there are ties stronger than blood.

I give thanks for Grandma Kimi. I can't imagine a more wonderful grandmother. I know that the small comfort I give her at her bedside can't come close to repaying her for her gifts to me, especially when she catches me crying. But it is all I have.

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November 28, 2003

Bush Speech

Nice speech .

I especially like:

You're engaged in a difficult mission. Those who attack our coalition forces and kill innocent Iraqis are testing our will. They hope we will run. We did not charge hundreds of miles into the heart of Iraq, pay a bitter cost in casualties, defeat a brutal dictator and liberate 25 million people only to retreat before a band of thugs and assassins.

I think the factual proposition in the beginning is absolutely correct. Our enemies in Iraq are testing our will and they do hope we will run. I hope that Bush's resolve as outlined in the next sentence is true both for him and for the country.

I also like:

I have a message for the Iraqi people: You have an opportunity to seize the moment and rebuild your great country, based on human dignity and freedom. The regime of Saddam Hussein is gone forever.

The United States and our coalition will help you, help you build a peaceful country so that your children can have a bright future. We'll help you find and bring to justice the people who terrorized you for years and are still killing innocent Iraqis. We will stay until the job is done. I'm confident we will succeed, because you, the Iraqi people, will show the world that you're not only courageous, but that you can govern yourself wisely and justly.

This is a vision of the future. I hope it is a true vision.

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November 27, 2003

Happy Thanksgiving

Have a good thanksgiving.

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The comments on my previous post make it seem like judicial interpretation is whatever judges want it to be.

There are some terms which people use to cut off further debate. One of the classics is to say something along the lines of 'I am just interpreting that differently than you'. This is typically seen as another way of saying that the thing in question is just a matter of opinion. The problem is that this is often a way of treating factual questions as if they were opinion questions.

If I recite the words to Othello, my contention that this is an interpretation of Macbeth would be flatly wrong. There could be differing opinions about whether a particular piece of art was disturbing or soothing, but if I said that I interpreted a green and blue painting as a red couch I would merely be wrong. In fact it wouldn't really be an interpretation. That statement would show that I was either confused about the what redness and couchness were, or that I was trying to mislead.

If someone claims to 'interpret' the Constitution as mandating the establishment of the Anglican Church as the state religion, they would be wrong. This statement would still be true, even if the person in question was a judge on the Supreme Court and even if this judge was part of a 5-4 majority on the issue.

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November 26, 2003

Judicial Legislation

In my Power the Preserves post I touch upon why I think judicial legislation is an improper use of judicial power. In the comments there was some consternation about what I mean by 'judicial legislation'. This En Banc article reminded me of my least favorite example of the genre. Nope this is not about abortion, it is about the wild world of Supreme Court death penalty jursiprudence. One of its major stars is liberal judicial exemplar Justice Brennan.

From the textualist point of view, it is very clear that the US Constitution contemplates and allows for the death penalty. The Fifth Amendment states:

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury...." Capital crimes are crimes where the death penalty is a potential punishment.

The 14th Amendment says: "nor shall any State deprive any person of life, liberty, or property, without due process of law" clearly allowing for the State's abillity to deprive a person of life.

Nevertheless in Furman v. Georgia the Supreme Court a majority of the Supreme Court found that death penalty as applied was unconstitutional. And a number of those (it is tough to tell exactly how many relied mainly on the argument) found that the death penalty was not allowed because of the 8th amendments prohibition against 'cruel and unusual punishment'.

Brennan writes:

The only explanation for the uniqueness of death is its extreme severity. Death is today an unusually severe punishment, unusual in its pain, in its finality, and in its enormity. No other existing punishment is comparable to death in terms of physical and mental suffering. Although our information is not conclusive, it appears that there is no method available that guarantees an immediate and painless death.

The progressive decline in, and the current rarity of, the infliction of death demonstrate that our society seriously questions the appropriateness of this punishment today. The States point out that many legislatures authorize death as the punishment for certain crimes and that substantial segments of the public, as reflected in opinion polls and referendum votes, continue to support it. Yet the availability of this punishment through statutory authorization, as well as the polls and referenda, which amount simply to approval of that authorization, simply underscores the extent to which our society has in fact rejected this punishment. When an unusually severe punishment is authorized for wide-scale application but not, because of society's refusal, inflicted save in a few instances, the inference is compelling that there is a deep-seated reluctance to inflict it. Indeed, the likelihood is great that the punishment is tolerated only because of its disuse.

These would be excellent arguments in a legislative debate about the death penalty. The branch which is supposed to bring change to laws, the legislature, could certainly take into account declining use of the death penalty in order to change the authorization laws. This is inappropriate for the courts.

But in the Furman case, at least some of the judges who voted against the death penalty suggested that they did so out of a concern about an arbitrary lack of process--a judicial concern. In Coker v. Georgia the Court goes much further.

In Coker the Court held that as punishment for rape, the death penalty "is grossly disproportionate and excessive punishment, and is therefore forbidden by the Eighth Amendment as cruel and unusual punishment."

Justice White writes for the Court:

"Rape is without doubt deserving of serious punishment; but in terms of moral depravity and of the injury to the person and to the public, it does not compare with murder, which does involve the unjustified taking of human life. Although it may be accompanied by another crime, rape, by definition, does not include the death of or even the serious injury to another person. [n13] The murderer kills; the rapist, if no more than that, does not. Life is over for the victim of the murderer; for the rape victim, life may not be nearly so happy as it was, but it is not over, and normally is not beyond repair. We have the abiding conviction that the death penalty, which "is unique in its severity and irrevocability," Gregg v. Georgia, 428 U.S. at 187 , is an excessive penalty for the rapist who, as such, does not take human life."

This is not a judicial argument applying Constitutional law. This is an argument about general policy, an argument that should be resolved in the legislature. Rape had been punishable by death in different jurisdictions of the US for more than 150 years. This wasn't unconstitutional when ratified, and there were no amendments to later make it unconstitutional. Sometimes when there are unforseen circumstances, the Court has to figure out how to apply the Constitution to the unforseen circumstance. This is not such a case. This is a case of finding unconstitutional a practice which was allowed by the Constitution and which has not been changed by an amendment to the Constitution. Legislatures are vested with the power to make policy changes. Courts are vested with the power to enforce the limitations of the Constitution. As Justice Burger wrote in this case, they are not allowed to substitute their own policy judgments in the place of the judgments of the legislature. When a court does that, it is legislating from the bench. If we want to have a well balanced government we should not allow it.

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November 24, 2003

European roundup

Lots going on in Europe (and I mean other than synagogue bombings). First thing up, is that the leaders of many Eastern European countries seem to think that strong ties with the United States remained crucial for security in Europe .

Leaders of 17 east and central European states said on Friday that strong ties with the United States remained crucial for security in Europe as militants intensify their attacks across the world.


"Transatlantic ties...constitute the foundation of security and stability in Europe, contributing also to removing old division lines," they said in a declaration at a summit of the Central European Initiative (CEI), a loose political grouping.

This is a nice reminder that peace in Europe has been greatly facilitated by the willingness of the United States to do the heavy lifting in the military arena. Now I'm not saying that we did this soley out of the goodness of our own hearts. But it is very nice to see someone acknowledge that the recent peace in Europe was made possible by American military power.

Meanwhile the French, unilateralist in the EU where they are actually a large an important power, when they aren't busy shredding the economic stability pact that they punished Spain with, are finding that threats of a 'political union' with Germany won't remind the Eastern European nations that they ought not miss a good opportunity to shut up. Of course when Germany decides it is really not excited with a close political union with France that tends to put a damper on things.

I really don't understand where people get the idea that the French are good at diplomacy. In the context of the EU, where they aren't a third rate power, they act far more imperious than the US does at the UN. Their heads of state constantly condescend to the Eastern European countries. Can you imagine even Bush saying that a number of countries "missed a great opportunity to shut up."? Their dealings with Spain and Italy are obnoxious especially considering the threats made under the Economic Stability Pact which the French now feel free to violate. They even managed to piss off Denmark enough for them to reject the euro despite the concerted effort of almost the whole Danish political establishment.

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Mill, John Stuart Mill

If I understand the Mill's critique of capitalism properly, it suggests a falling rate of profit as capitalism spreads, caused by a decreased differential in the efficiency rate of workers and methods. This leads to virtually non-existant profit rates leading to a steady-state economy which he supposes ought to be pretty much socialistic.

Now doesn't this posit a lack of difference in people's desire to work, and a lack of difference in ability? Or is the steady state a static sorting of people by ability and desire?

Isn't this critique only valid in a non-expanding economic sphere. It doesn't seem valid if you allow for technological advances, or is it trying to posit that technological advances will follow the same pattern. Also doesn't more recent (and misnamed) Chaos mathematics suggest that what might really happen would be a stable but non-steady state based on feedback loops?

(As always if my premised 'understanding' of the theory is flawed, I'm sure my 'conclusions' are likely to be. So feel free to further explain the Mill's critique if you think I have it wrong.)

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November 23, 2003

Feelings on the Protests

Reading about the Bush protests in the UK, which seem surprisingly small, has been quite depressing. Maybe I spend too much time on the liberal web-sites, but I am amazed by the things that people are willing to commit to writing. I have seen Bush labeled 'the most dangerous man in the world' I have seen the US blamed for terrorist bombings by the same people who insist that the war in Iraq was unconnected to the War on Terror. I have seen vapid protest defended on the grounds that 'we protest where we think we can do some good, why protest Al-Qaeda, they don't listen anyway.

This post from Harry's Place (in England I believe) pretty much covers what I feel:

So why was there no significant statement on the Istanbul atrocities at last week's protest? Why on the February 15 march was it easy to spot anti-Blair, anti-Bush and anti-Sharon placards but one had to search hard to find those who felt Saddam Hussein was also worth of condemnation? Why on Thursday was it hard to see any indication of opposition to a terrorist atrocity that had taken place that day?

The arguments presented in the comments boxes on this site include: I think in answer to why there are no protests against Al Qaeda terrorism is simply that it would be an extremely odd thing to do. For at whom would it be directed? Does Osama Bin Laden gauge the strength of public opinion in Britain before making his next move?

Of course he doesn't, although one might ask whether he and his supporters would be encouraged or discouraged by a demonstration which made no reference to their atrocities whilst labelling George Bush "the world's number one terrorist"?

The point though is that a demonstration aims to send out a political message and is a self-description of the protestors. This message is not only received by the target of protest (in this case Bush and Blair) but by the public - not just in the UK but globally.

The message last week was this: we are against George Bush and we have nothing to add about terrorism or about the current situation in Iraq other than "end the occupation".

We have nothing to add about terrorism other than 'end the occupation'. The frustrating thing is that 9-11 happened BEFORE we invaded Iraq. The funny thing is that Arab terrorists are so angry that we are so engaged in the Middle East, even though the Middle East had never been our major focus until they forced the issue. We are constantly told that we must 'understand the terrorists' yet when I try to find out what is meant by that the only replys are along the lines of 'you can't make generalizations about the different terrorists', or 'backing someone into a wall makes them dangerous'. So what am I too understand? There are people all over the world in worse positions than Middle Eastern terrorists, but they don't engage in mass murder of civilians. What lesson am I to learn from the protestors other than 'We hate Bush and have no practical opinions on terrorism?'

I honestly don't know how to be clearer. What do you believe motivates the terrorists? Can this motivation be leveraged in a non-violent way into a resolution? You clearly don't buy the 'They hate us for our freedoms and strength' tact, but you won't explain what motivates an attack on two civilian buildings which aimed to kill 30,000 people. You won't explain what motivation exists that could cause that, yet will be satisfied instead of needing destruction.

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November 22, 2003

EU and Anti-Semitism

On the unlikely chance that I have any readers who don't also check Roger L. Simon regularly, I wanted to point out that according to the Financial Times : "The European Union's racism watchdog has shelved a report on anti-semitism because the study concluded Muslims and pro-Palestinian groups were behind many of the incidents it examined."

When the researchers submitted their work in October last year, however, the centre's senior staff and management board objected to their definition of anti-semitism, which included some anti-Israel acts. The focus on Muslim and pro-Palestinian perpetrators, meanwhile, was judged inflammatory.


Ole Espersen, law professor at Copenhagen University and board member for Denmark, said the study was "unsatisfactory" and that some members had felt anti-Islamic sentiment should be addressed too.

The EUMC, which was set in 1998, has published three reports on anti-Islamic attitudes in Europe since the September 11 attacks in the US.

Beate Winkler, a director, said the report had been rejected because the initial time scale included in the brief - covering the period between May and June 2002 - was later judged to be unrepresentative. "There was a problem with the definition [of anti-semitism] too. It was too complicated," she said.

Time scale too brief? How have they been able to get out 3 reports on anti-Islamisc sentiment in barely two years then? Furthermore who cares how brief the time period is. Looking at the numerous attacks in that period and identifying why they took place can't be a bad thing can it? It is looking to me like rhetoric about finding out the 'reasons' for attacks against us is just rhetoric. Or more precisely it seems that if we find out that the reasons are unpalatable to a certain sensibility of expressing compassion for the terrorists (while of course deploring their acts), then we must ignore the reasons we find.

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You Are On One Side, I Am On the Other. Are we Divided?

As hard as it may be to believe there are some important issues that I don't have strong opinions about. It is odd that I don't have stronger feeling about the issue, but there you have it. However Armed Liberal has come up with an excellent post on the subject that captures my general thoughts on the issue. There are some issues where I believe that someone can be understandably wrong about. I think many liberals feel a truly laudable compassion in certain situations which lead them act in ways that end up being counterproductive. I disagree with them on these issues, but understand what they are doing and why they are doing it.

Gay marriage acts as a similar issue in my understanding of conservatives. I think they are wrong in resisting it, but growing up in a deeply spiritual and religious family helps me understand where they are coming from.

That said, I have no respect for a family that uses the lack of marriage to stick it to their child and/or his lover one last time as death approaches. The thwart the last will and testament game is inexcusable. The bar the lover from the hospital thing is an evil act.

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November 21, 2003

Terrorists With a Point

Iraq had nothing to do with the war on terrorism right?

But simultaneously lots of liberals at Calpundit are suggesting that the war in Iraq caused the Al Qaeda attacks in Istanbul. Now this isn't a direct contradiction. You could try to assert that instability in nearby Iraq helped cause it. But it seems to me that the idea that the war against Iraq caused increased terrorism but that Iraq and terrorism only became linked AFTER the war should cause at least a little bit of cognitive dissonance.

I saw this comment on tacitus, and it seems to me that it is fairly representative of a certain point of view: "Seeing terrorists as nothing more than frothing killers completely misses the real political objectives behind their actions and prevents ever coming up with an effective response against them. Understanding their motivations is not the same as condoning them. But if you think your enemy's only goal is to kill as many babies as possible, "because they hate our freedom", you are never going to get anywhere."

Will understanding the terrorists' political objectives really help us? I submit that it will only help us if we can live with their objectives. If their objectives include things like 'Convert everyone to Islam', or 'Bring sharia law to the entire Middle East' or 'destroy Israel', or 'arrange for US culture to not be tempting to our children', I'm not sure that knowing the objective will help because we can't accommadate the objectives.

So, what objectives do terrorists have, that would be useful for a conservative like me to understand? If you want to say that being poor makes you a terrorist, it would be helpful to explain why so many Saudi terrorists are middle class or rich, and explain why so many other poor countries don't have these types of terrorists. (I only mention it so I don't get an off the cuff answer that I have already heard and didn't find particularly helpful.)

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November 20, 2003

How Should We Convince Europe

One of the major sub-themes on the war against terrorism is the idea that the US hasn't done what it takes to enlist the aid of Europe--most especially France and Germany. In the same vein, there is often much talk of 'squandering the goodwill' expressed right after 9-11, or of 'failing to convince' Europeans of our methods and goals.

I have often wondered what a campaign to change the hearts and minds of Europe might look like. Bjørn Stærk reports that there is such a campaign in two of his posts: here and here.

It seems that these ads are attacking what their authors see as misperceptions about the origins of Islamist terrorism. It seems that the main European reaction has been to question the motives of the messenger, rather than bothering with the message.

If we were to try to win the hearts and minds of Europe so that they would support us in the war against terrorism, what would we do? What goals should we advocate? Even more importantly, what methods should we advocate? (I say more importantly because advocating something very abstract like 'peace on earth' isn't helpful unless you have an idea about how to get it.)

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November 19, 2003

The Power that Preserves

There are two major uses for power. First, there is the power to make change. This is what people typically think of when they think of power. There is also the power that preserves. The power to make change can be good or ill based on the changes that are made. The power to preserve can keep good things alive, or it can stifle growth. I think I probably bored most of you with my Wyrd article, but one of the points I was trying to make in it was that neither change nor continuity are good ordering principles.

The American founders had a healthy respect for both types of power. They had seen the problems of a rigid society and had broken away from the monarchy which epitomized a static concentration of power. But they weren't excited about unrestrained change--which is what they saw being the driving force of a purely democratic system. So they cut the power of the government into pieces. Each piece was to temper the others so that the overall system would have a vibrant balance.

The legislature is the branch given the power to order change. The judiciary is given the power to preserve. The administration is given the power to implement the design of the other two branches. For purposes of this post, I will focus on the judiciary and the legislature, but we should note that this gives an incomplete picture of the dynamic balance of our government. I am only ignoring the administration for the time being because to deal with it properly would make this post intolerably long.

The legislature is the most democratic of the branches of government. The founders put various checks into the legislature itself to keep it from becoming too democratic, but it is an essentially democratic body. The legislature is supposed to be most closely tied to the citizenry. As such it is given the thing which most people think of when they think of power--the power to change. The legislature is given the greatest authority to make change because it cannot stray too far from the will of the people. Within the limits set by the Constitution (also a topic for another day), the legislature can change just about anything. It could enact price controls, or abolish them. It can fund programs, and defund them. It can make common acts illegal and uncommon acts legal.

Judicial interpretation at its most basic is the applying of old laws to unforseen circumstances. It is supposed to preserve the existing law by taking new facts and fitting them in to the law's framework. The judiciary's function with respect to the Constitution is to ensure that the legislature's more recent changes are in line with the super-majority decisions on important issues as expressed in the Constitution. But this is still a function of preserving law. Judges attempt to preserve the Constitutional order as a check on the changing power of legislatures. The majority can change the Constitution, and thus change what the judges are supposed to protect. But this is intentionally a very difficult process. The institution of the judiciary is not democratic. It is in fact quite elitist. Because it is elitist, it was given the slightly less danger power to preserve instead of the more radical power to make changes.

This is why an 'activist' judiciary is so disconcerting. Instead of being a check on the power to change, an activist judge takes that power for himself. This disturbs the whole balance of the government. With an activist court, the legislature and the judiciary may attempt to actively change things in different directions. The judiciary was originally given the power to overrule the legislature on Constitutional issues as a way of slowing down changes on important issues. With an activist court, there is no institution dedicated to preservation. There are just two branches advocating potentially different changes. This change in judicial philosophy is what has made court appointments so politically charged. Instead of appointing an elite group to preserve the legislatively mandated status quo, we now appoint a life-tenured rival to Congress.

Thanks to Stephen R. Dondalson for the title to this post.


Volokh gives excellent examples of judges going further than they ought to here and here and here . In the examples he shows how judges take legislative functions, and how they sometimes go further than we would allow legislatures to go.

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November 18, 2003

Palestinian Culture

I had a tough day today, so that means more links with less commentary...

I believe that we have been forced into a war against some of the nastier parts of Arab culture. This story forced my attention to a scary confluence of honor, death, and anti-feminism in Palestinian culture. Seattle Times by way of l8r

ABU QASH, West Bank — Raped by her brothers and impregnated, Rofayda Qaoud refused to commit suicide, her mother recalls, even after she bought the 17-year-old a razor with which to slit her wrists.

So Amira Abu Hanhan Qaoud says she did what she believes any good Palestinian parent would: restored her family's "honor" through murder.

Armed with a plastic bag, razor and wooden stick, Qaoud entered her sleeping daughter's room last Jan. 27. "Tonight you die, Rofayda," she told the girl, before wrapping the bag tightly around her head.

Next, Qaoud sliced Rofayda's wrists, ignoring her muffled pleas of "No, mother, no!" After her daughter went limp, Qaoud struck her in the head with the stick.

Killing her sixth-born child took 20 minutes, Qaoud tells a visitor through a stream of tears and cigarettes that she smokes in rapid succession. "She killed me before I killed her," says the 43-year-old mother of nine. "I had to protect my children. This is the only way I could protect my family's honor."

Qaoud's confessed crime, for which she must appear before a three-judge panel Dec. 3, is one repeated almost weekly among Palestinians living in the West Bank, Gaza Strip and Israel. Female virtue and virginity define a family's reputation in Arab cultures, so it's women who are punished if that reputation is perceived as sullied.
She eases her pain by doting on her three children still living at home, especially the youngest, Fatima, 9, whom she lavishes with kisses. The children say they've forgiven Qaoud and return her affection.

"My mother did this because she does not want us to be punished by people," Fatima explains with a shy smile. "I love my mother much more now than before."

The West Bank is smaller in size than San Diego County, and not much larger in population. An honor killing almost every week? A change must come to a culture like that. And that change is not likely to come about very quickly on its own.

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Pointed Thoughts on the UK visit

Speaking of left-wing people who are tackling the important questions on the war against Islamist and Arab terrorism (though considering the format of this blog you may be reading this entry first), Norman Geras has a simultaneously serious and tongue-in-cheek bit on how the left ought to respond to Bush's visit to the UK. He is about as leftie as you get on economic issues, but he is worried enough about the long term survival of the Western world to insist on fighting against the terrorist enemies emanating from the Arab world. Blogspot has awful perma-links, but I'm talking about the Novemeber 17, 2003 article entitled: "Bush's visit: ten recommendations". I think my favorite is "'Leaflet everywhere you can: colleges, workplaces, community centres, mosques and churches, schools, your local area, etc.' > No, ponder for a moment the significance here of the couple 'mosques and churches'."

He also has an interesting article about Italian leftists actively supporting the so called Iraqi resistance, but you have probably seen the underlying story already from Andrew Sullivan.

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Amnesty International

Salon has an interesting interview with William Schulz, executive director of Amnesty International USA. Amnesty International is a group that I've always wanted to like, but the way they direct their focus has always struck me as skewed. By my way of thinking, they tend to overemphasize problems in Western countries while spending much less effort on the much greater problems found in your average tyrant-ruled country.

But Mr. Schulz really seems to be trying to get a handle on the appropriate AI response to terrorism:

Presumably the human rights community is committed to protecting Article 3 of the Universal Declaration of Human Rights, namely the guarantee of security of person -- the right to life. But there's been a failure to give the necessary attention, analysis and strategizing to the effort to counter terrorism and protect this right to security. Far more energy has gone toward offsetting the very real, damaging human rights violations committed not just by the United States, but by many governments, in the name of fighting the war on terror.

If democratic elections would bring a radical Islamist government to power in Pakistan that might distribute nuclear weapons to terrorists, should we still call for democracy there over military rule?

With the new terror threat roiling the globe -- which some argue has given brutal regimes freer license to crack down at home -- Amnesty may need to recast its framework for defending human rights. U.N. sanctions failed to undermine Saddam's rule throughout the 1990s, and they raise complicated humanitarian concerns, typically compounding economic pain for populations already pinned beneath the heel of dictatorship. "In the long run," Schulz admits, "it may not be wise of Amnesty to have a policy that it takes no position on military intervention."

Human rights organizations are basically set up to put pressure on governments, not on more amorphous entities like terrorist groups. The traditional tools we use are generally not going to be effective with terrorists. I doubt Osama Bin Laden is going to be moved by 50,000 members of Amnesty International writing him a letter asking him to refrain from terrorist acts. In the face of a new kind of force in the world that is detrimental to human rights, the human rights community has been slow to adapt to that new reality, in both its understanding and its tactics. There's a cultural lag at work here.

It's a serious problem. It means that human rights advocates are seen solely as harping critics. We certainly need to be that; it's a very important role. But if we fail to engage with the very real, hard decisions that governments have to make about protecting the safety of their citizens, then we'll be dismissed as charlatans, or ideologues who are out of step with reality.

I think he makes a number of crucial points here, which I will oversimplify. First people have to live if they are going to experience human rights. You have to balance some rights against each other. Many of the traditional non-war methods of trying to weaken tyrants have proven to be failures. Human rights workers need to find a way to apply pressure to non-state actors, or they risk irrelevance.

I don't agree with all his answers, but it is heartening to see someone on the left paying attention to the right questions.

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November 17, 2003


I keep oscillating between despair and rage and skepticism about this whole early pullout of Iraq thing. When I think they are talking about a real pullout I can't decide if I'm enraged at the entire US political arena which makes the idea even remotely plausible, or if I should despair that we could get to the point where a historically few casualties should cause us to run from one of the most important battlefields in the last 15 years.

The skeptical part of me thinks (perhaps in a denial reflex) that this is another one of those hopeful State Department leaks that trys to push the Administration in a direction by making one of their proposals public. There is precedent for that kind of hopeful leak (on dealing with Arafat in 2002), but I honestly can't tell if I'm clinging to that out of desperation or if it is a real possibility.

In any case, my main method of dealing with this frustration today was to ignore it. I watched two hours of Erasure videos--quite amusing watching them go from weird low budget videos to really weird high budget videos. They had a large number of truly amazing songs. Oh L'Amour, Ship of Fools, Sometimes, Chains of Love, Blue Savannah, Breath of Life, Always, Stay with Me, Fingers & Thumbs, and In My Arms are all great. Vince Clark really can create a hook.

Then, because that didn't take enough time, I watched the movie Princess Mononoke . Very interesting storytelling. Going into it more than that is going to taking some preliminary thinking on my part. So that isn't going to happen tonight.

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November 16, 2003

Martin Woollacott

I don't know if you read the Guardian, but Martin Woollacott writes things that I typically disagree with vehemently. In this article however he makes a number of points that I agree with regarding the nature of Iraqi resistance.

Part of the problem in Iraq, and arguably the main reason why violence is growing rather than diminishing, is that Iraqis have been conditioned by their modern history to move with extreme caution. Commitment has historically been dangerous, particularly beyond the boundaries of sect or tribe.

A combination of passivity and as much a defence of group interests as can be managed without too much risk made the population vulnerable in the past to the manipulations and predations of a minority ready to ruthlessly reach out for power. Now, in addition, there may be a tendency to wait out the conflict between occupiers and resisters largely as onlookers, albeit onlookers who have their preferences about which side they want to win. How to unlock Iraqi knowledge about who is doing the violence, and how to release Iraqi energies and courage so that the conflict becomes one between the Iraqi majority and the minority of wreckers is thus the main preoccupation of the coalition authorities....

The overly rapid creation of Iraqi institutions, already under way as far as security forces are concerned and clearly now being contemplated for the political side, must compromise both their efficiency and their legiti macy. The Americans and the Iraqi governing council have not helped each other, the US by failing to hand over any real powers and the council by its dilatoriness in forming a cabinet and in coming up with a programme for choosing a constitution. This latter is a critical dimension because true politics in Iraq cannot start until a framework for them is in being and in particular until the way in which the country will vote - whether for a constituent assembly or for parliaments - is decided. The hard choice is between arrangements which give different ethnic and religious groups automatic representation, thus diluting the advantage of the Shi'ite majority, and those that do not. But it has to be made and, in this case, the sooner the better.

Sometimes panicky changes in US policy have made the situation worse. The Iraqis may wish to see the back of the Americans, but not before the threats to their security have been reduced and basic political decisions have been taken. Iraqis must know that the changes in policy, whether good or bad in themselves, are driven by the need to reduce the bad news reaching the US during an election campaign. If American seriousness becomes widely questioned that will reinforce the wait-and-see attitude, which is part of the problem. The final paradox may be that the more determined the US is to stay, the sooner it may be able to leave.

He makes a few points about the Iraqi situation which I think are critical. One of the major problems in Iraq is that many Iraqis have been conditioned by years of Saddam's brutal rule, to be passive, or agressively non-engaged. This passivity creates a problem because they want the Americans to make everything ok, and then leave. Many of them don't realize that the best we can do is facilitate a situation where they can make their own lives better. It may be one of the problems of having a reputation of having huge amounts of power that people expect that power to be omnipotent.

The current questions about US commitment make the whole thing worse, becasue if the US is not commited the Iraqis will not take action. That is why I think that the recent talk of a fairly quick pull-out is disasterous. It undermines the Iraqi will to become involved in the drastic changes which will be neccessary for Iraq to succeed.

If I had one major political wish, right now I would wish that both sides could come together and really focus on making Iraq a better place. Both through military action, and political foundation-building. Iraq cannot be seen as just another political weapon to be used by one side against another. It seems that many Republicans are just trying to put it behind them--do a quick mop up and get out. It is unacceptable to leave Iraq in a state of disarray and counterproductive to the overall War on Terrorism. Many Democrats seem to want to obstruct administration efforts in Iraq without providing alternatives. Using mistakes in Iraq as political weapons is acceptable, but stopping there is not acceptable. Treating Iraq as merely a means to the end of ridding the US of a Bush administration is a great way to ensure that Iraq will be a mess and that the War on Terrorism will be a long series of losing battles.

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November 15, 2003

Iraq/Al-Qaeda Connection

Everybody and their mother is talking about this article in the weeklystandard partially disclosing a leaked memo on the Iraq/Al-Qaeda connection. It is being discussed rather prominently at Matthew Yglesias and at Calpudit.

I'm not going to try a point by point, that is being done quite well elsewhere. I do have a few comments about the shape of the discussion however.

First, looking primarily at Al-Qaeda is far too narrow of a focus. The problem is both Islamist fundamentalist and Arab secularist terrorism. Saddam was intimately connected with Arab secularist terrorism. He trained terrorists and he harboured terrorists who attempted to flee Western justice. He harboured Abu Abbas, the Achille Lauro terrorist who had American wheelchair-bound Klinghoffer thrown off the ship to his death. He harboured a 1993 WTC bombing suspect. Terrorists would flee to Iraq because they knew that he was friendly to them. I would not be surprised at all to find that most of the allegations in that memo are true. But even if Saddam had not been intimately tied to Al-Qaeda, he was deeply involved with terrorist activity.

Second, there is some complaining that many of the ties are from Al-Qaeda's Sudan years. The suggestion seems to be that if we don't have post-1998 proof, something is wrong with the connection information. In 1998 Saddam was clamping down on UN inspectors with whining about spying. Our information coming from inside Iraq goes much darker at that point, making confirmation of Iraqis meeting with Al-Qaeda much more difficult. In 1998 bin Laden moved from Sudan to Afghanistan. He moved from a country which was carefully tracking his movements into a country which let him do what he pleased. That makes tracking people who met with him much more difficult after 1998. Lastly, Al-Qaeda was becoming a more mature organization. It not only had a better opportunity to hide its contacts, it also had more experience in hiding its contacts.

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Weekend Plugging

Since my fellow Watchblog writer Dustin Frelich has entered the TruthLaidBear new blogger contest, I figured this would be a good time to point you to his short post reminding us that the Patriot act wasn't quite a bipartisan effort.

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We’re all Americans now

There is an interesting post on europundits entitled "More About European Anti-Americanism". (I don't have a direct link to the article because blogspot permalinks are notoriously messed up. The article is on Nov. 13 2003)

In this piece, Nelson Ascher suggests that the famous Le Monde quote after 9-11, "We're all Americans now", ought to be interpreted as relief that finally Americans could be expected to act like Europeans because America had finally been taught its lesson. I'm not sure that is a fair reading of that particular quote, but I would be unsurprised if part of the current anti-American rhetoric in Europe is fueled by the shock that we 9-11 did not teach us to passively accept the fact that we are a target.

Ascher offers two theories about European anti-Americanism. First, that it has always been present in large amounts, but that it did find full expression until after 9-11. Second, that 9-11 and our reaction to it has fueled anti-Americanism. Interesting that a pro-war European like Ascher would believe the second theory, while I suspect that most US conservatives would believe the first. Any thought on which theory, if either, is correct?

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November 14, 2003

Time to Panic?

Last year I would never have thought to vote for a Democrat for President. Last week I wouldn't have thought of it. But today I have been pushed to the brink.

I just got back from a work trip to San Francisco and I read an article which worried me. Like an idiot, I left the paper on the plane and I can't find the article on-line, but it is very similar to this one . The gist of the article I read, which is not so strongly echoed in the LA Times article, is that Bush is looking a way to transfer power very quickly to an Iraqi government. This strikes me as a disasterous possibility, especially if it is used as a pretext for a substantial withdrawal from Iraq. This would be awful for a bunch of reasons.

1. You need to start what you finish. Even if invading Iraq was a stupid idea (and I don't think it was a stupid idea) you can't invade a country, topple a ruler, and then leave the pieces behind. If you screw something up you should fix it. I never bought the argument that supporting Iraq in the Iran-Iraq war barred us from fixing our mistake later. I always thought that gave us an affirmative moral responsibility to deal with Saddam since we supported him earlier. The same is true now. Even if we made a mistake in the invasion, we invaded and must now deal with it.

2. Leaving in the face of terrorist attacks is will reaffirm the Arab idea that we are giants with a glass jaw. This is horribly dangerous as I have talked about previously here, here, and here. If we show people that terrorism is effective in getting us to change our policies, we are encouraging them to engage in terrorism to change our policies. That is not a good feedback loop to get involved in.

3. Related to my second point, even if you didn't believe Iraq was a part of the war on terror, it will be seen as a loss in the war on terror if we withdraw. This kind of loss will embolden our enemies.

4. For those who understand that the war in Iraq was a part of the war on terror, a withdrawal is a huge setback in reshaping the culture of the Middle East. We lose our leverage regarding Syria, Saudi Arabia, and Iran.

5. Worse it will be a waste. If we wanted to hand victories away, we could have done it much cheaper by pretending that the UN cared about security and by pretending that leaving the Middle East in its current 'stability' was good. We would have been wrong, but we wouldn't have had our soldiers killed and billions spent to be wrong.

Perhaps it is too early for me to panic. Maybe this is another case of hopeful leaking from those who disagree with Bush inside the administration. But if we turn over power to the Iraqi government next year without serious safeguards in place, if we withdraw most of our troops, if we give the terrorists reason to celebrate a victory in Iraq, I will vote against Bush. I won't abstain. I will vote against him. Because if you are willing to start something as serious as this and abandon it in the middle you should not be president.

I hope to wake up to better news in the morning. In a case like this, follow through is everything.

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November 13, 2003

Ranting Rationalist

You may remember him from his old-time blogging. You may recognize him for other peoples' comments (You down with OPC?). He rants a bit more than me, but he may also be more rational. In any case check out The Ranting Rationalist .

Posted by Sebastian Holsclaw at 11:55 PM | Comments (517) | TrackBack

If You're Perfect

My basic thought process involves lots of tangents if I'm lucky, and orthogonals if I'm not. Two blogs triggered the thoughts led to this post. One of them is in some of the comments here. Unfortunately I have not been able to find the more direct trigger, because I didn't realize it was important to me until I read the MY comments. So if you recognize the basic thought from a blog in the last two days, please e-mail me so I can give proper credit.

There is a certain type of complaint from liberals (actually it may apply to everyone and I just haven't noticed it when done by fellow conservatives). An example of this type of complaint is found when Amnesty International dramatically and repeatedly focuses on the cruelty of our treatment of death penalty prisoners while paying less attention (not none, just less) to things that we would more typically think of as torture in other countries. The comment which triggered this whole thought on MY involved conservatives trying to 'stifle discourse' or 'stifle dissent'. The idea that dissent is being suppressed in America is kind of silly. Michael Moore got his Emmy, the Dixie Chicks are making millions, and no one is locking Kevin up for posting at Calpundit. Meanwhile there are reporters and playwrights rotting in Cuban jails, people are murdered for saying anything about the North Korean regime, and Saddam's thugs kill people who speak out about the possibility of democratic freedom in Iraq. There has also been an uproar about the idea that reporters or members of the left might be playing into the terrorists hand's by being super-gloomy about the prospect of democracy in Iraq.

I don't however want to fall into the trap of discouraging people from pointing out flaws in the administrations strategy and execution of its ideas, but until now I couldn't find a good explanation of the difference.

The difference is the same as the difference between the parents who correct their kids, and those hyper-perfectionist parents for whom nothing is good enough. You all have seen the type. I am talking about those parents who have a star kid on the baseball team, but viciously berate him for only scoring one home run. These are the people whose middle school kid gets 999 questions out of 1000 right on a college level exam, and gets screamed at for missing that one question. For whatever reason, these parents are unable to see good, because their kids aren't living up to the ideal. In the long run, these kids end up incredibly fucked up, because they waste time making something perfect when their marginal energy could be spent elsewhere, or they end up unable to try anything because they know they won't get it exactly right the first time. These are the parents that Alanis Morrissette was singing about in the line: "We'll love you just the way you are.... If you're perfect...."

There is a qualitative difference between the way those kind of parents and truly supportive parents treat their kids. Don't get me wrong, truly supportive parents still tell you when you aren't doing things right. But their criticism is grounded in a a different desire than that of the perfectionist parents.

I sometimes feel like these people who talk about stifling dissent are like the perfectionist parents. They aren't giving helpful criticism, they are dealing with something else, something distasteful. In doing so they are becoming disconnected from the reality of the situation. They see a small thing that makes them uncomfortable, and mistake it for the stifling of dissent.

I believe in constructive dissent. I try to engage in constructive dissent on liberal blogs. (I am ashamed to admit that I am not always successful in being constructive). This is absolutely not an attack on all leftists or liberals. I guess this was just my long way of saying: "The perfect is the enemy of the good."

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November 12, 2003

Reasons for Abortions

Now I know some of you would rather pluck an eye out than read an NRO article so I'll summarize the point I find interesting for the purposes of this post. Shifflet tells of a CNN report about the discovery of a new prenatal test for Down's Syndrome. It also reported that one of the primary benefits of this test is to allow mothers to abort children with Down's Syndrome. Ian Danielsen, one of Shifflet's liberal friends and the father of a Down's Syndrome child, was unhappy with this focus of coverage. Apparently the idea of such eugenics did not thrill him. Shifflet focuses on media slant/bias in the rest of this piece, but that doesn't really interest me.

What interests me is: why would a pro-choice liberal care about such an issue?

I also hear pro-choice liberals complain about sex-selctive abortions in India and China, where a mother will have abortions until she gets a son. From the pro-choice perspective why is that a problem?

I understand why a pro-life advocate such as myself finds such things atrocious. It is because I believe that the fetus is a human being and therefore we ought not kill human beings based on their sex or intelligence. But why does a pro-choice advocate worry about it? Their argument is based either on the lack of personhood of the fetus, or the primacy of the mother's choice (often they argue both). If the fetus is not a person, why do we care that more girls than boys are being aborted in India, or that Down's Syndrome babies are being aborted? If the mother can choose to abort a fetus for any reason at all, why should any pro-choice liberal be worried that she exercises her choice in a eugenic fashion? I like to think that they worry about such things because they don't really believe their own logic. But maybe I'm just being overly hopeful.

UPDATE: Perhaps I was too matter of fact, but comments suggest that I didn't communicate my intent with this post. I know that there are pro-choice people who want to make abortions rare. I just don't know why they want to make them rare. I understand the difference between morality and legality, I just don't understand why you would think that there is something morally problematic (even on a sub-legal level) with abortions such that you would bother saying they ought to be rare, if you don't believe in the personhood of the fetus or if you believe that the personal choices of the mother trump all other concerns. Likewise I don't understand the problem with an Indian woman selecting the sex of her child, with a similar set of beliefs. I want to understand this underlying moral sense, because it might make the possibility of abortion law compromises more possible. I am not accusing Danielsen of being pro-eugenics. It should be quite clear that he is not. I am attempting to tease out the moral distinctions that allow someone to be pro-choice, but want to make abortions rare. My question is, if the fetus is not a person or even something to be protected as much as a pet, why would you say something like "abortions should be rare and legal". Why rare? What is it about them that ought to be rare form the pro-choice point of view?

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November 11, 2003

US gives up on dealing with North Korea?

I've been reading incestuousamplification for some time for excellent information from inside Korea. That is why I was very irritated to read this post . Since at least 1998, I have thought that our approach to dealing with North Korea was deeply flawed. We need to set up a situation where if we pay them to do something, we can actually verify that they are doing it. If Mr. amplification's read of the situation is correct, it seems that Bush may be going back to an Agreed Framework style situation where we pay the North Koreans, and they get to ignore their part of the bargain so long as they aren't too obvious about it. Every time we have done that in the past they have used the time to build banned weapons systems and put us in a worse negotiating position when they decide to fly off the handle. If Bush decides to go this route, I will be VERY angry because one of the main reasons I support Bush is his willingness not to play along very far with damaging diplomatic farces.

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Why not the Saudis?

All evening I was planning on writing my explanation of why we hadn't attacked the Saudis despite their obvious place in the war against Islamist Fundamentalist terrorists. I had worked it through my mind, and had just about solidified my thoughts. Then, just as I sit down to write it, I see that Steven Den Beste has already written an excellent, and as is his wont, very comprehensive explanation. Since it has a depth I wouldn't be able to duplicate and since I agree with it in almost every particular, I think I will have to resort to just referring to it.

One very important factor which Steven does not mention is the fact that the kingdom of Saudi Arabia acts as the guardians of Mecca and Medina, the two most holy cities in Islam. Despite rhetoric to the contrary, we are not at all interested in having a clash of civilizations between the West and all of Islam. We know that Saudi Arabia is a problem. Unlike other predictions of the Arab street rising against us, I can easily forsee that attacking the guardians of Mecca and Medina with our military would rally against us an enormous number of non-aligned Muslims. The fact combined with the fact that a dramatic interruption in the oil production of Saudi Arabia would cause a world-wide recession, means that we have to tread very very carefully in forcing the Saudi Arabian government to choose sides in the war on terror. Fortunately the Islamists seem to want to help us get the Saudis on our side.

UPDATE: Yikes I seem to be gettin a lot of traffic from USS Clueless. Thanks for coming. Since this might be my one chance with some of you, if you are interested I have some posts on our reasons for going to war further down on this page, and I have some posts on abortion politics which stirred up a fun fight here and here.

Posted by Sebastian Holsclaw at 12:22 AM | Comments (375) | TrackBack

November 10, 2003

Worst of Both Worlds

Now this is the worst of both worlds.

Here we have a case where we get to see some of the worst of speculative capitalism in the form of trying to manipulate the market so your short selling will make a profit married with the worst of frighteningly broad tort actions which you try to employ so you can make more money of the stock price drop that you helped cause.

Argh, abuse of the court system paired with market manipulation, two ways to undermine the systemic trust which is necessary for civilization paired in one cynical act.

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November 08, 2003


One problem I have had recently when talking about Iraq is the nitpicking over what we call our enemies. If I call them 'enemies' I am accused of being too vague. If I call them 'terrorists' I get nitpicked over attacks on the US military. If I call them Islamists or Jihadists, I hear whining about the fact that Ba'athists are secularists. If I call them our Arab enemies I have to deal with the fact that they aren't all Arabs. Furthermore I am accused of implicating all Arabs, which I certainly don't intend to do. I'm not sure of the purpose of this nitpicking--it feels like a distraction in the argument because it is clear who I am talking about. Or at least it is clear to me.

I am talking about Arab and/or Islamist forces who want the US to leave the Arab or Islamic world alone so that they can set up despotic regimes in whatever image strikes their fancy. For Ba'athists or other pseudo-secular forces it is a socialist/NAZI regime, for Islamists it is a sharia based authoritarian regime. In some cases these enemies are willing to work together to get rid of the US. They are willing to put off fighting against each other until we are out of the way.

Neither group is able to challenge the US militarily. Both believe that the US is a weak-willed nation. Both believe that if they bloody us a little, we can be convinced to withdraw. Both frequently use tactics which are labeled terrorist when used against civilians. Calling them 'terrorists' doesn't seem inappropriate even though not every single act that they do over the course of their lives is a terrorist act.

We called Germany, Italy and Japan 'the Axis'. I don't know what we ought to call our enemies here, but their identities aren't such a mystery that we need to spend so much of our time fighting about the word we call them.

Posted by Sebastian Holsclaw at 12:38 AM | Comments (367) | TrackBack

The US and the World

There is an interesting article in the Economist.

Will it be better for the world if America succeeds in bringing stability, prosperity and even democracy to Iraq, or if it fails? Is it American competence that is feared, or incompetence? If America, under George Bush or a Democratic rival, were to withdraw hastily under the pressure of attacks such as the downing in Iraq on November 2nd of a military helicopter (see article), would that be an encouraging sign of humility or a devastatingly irresponsible act? Given that foreign voices were so keen to disparage America for withdrawing from Somalia in 1994, for failing for years to intervene in the Balkans, for having “allowed” the Taliban to take power in Afghanistan, and for being reluctant recently to send troops to Liberia, why should so many be hostile now to intervention in Iraq?...

By intervening in Iraq, against the majority of world opinion but with the courage of its own convictions and the support of a few allies, America showed that it was indeed a different nation from others: one prepared to shoulder responsibilities and to do what it thinks is right. Such behaviour is alarming precisely because it is bold and, by today's standards, different. It is never likely to bring forth a cascade of praise or gifts. It was done, however, in a way likely to reinforce the concern, as administration officials poured abuse on their foreign critics and, through their violations of human rights, damaged America's own moral authority. Now, though, the argument has to be won by creating facts on the ground. If the facts are of failure, America will be likely to shrink back into its shell. But success is there to be had. It will take a long, costly and painful effort. Only once it is done, however, will hope be restored and danger dispelled.

The current American occupation of Iraq offers an excellent chance for positive change. We have to find a way to be succeed because the price for failure is a worse situation than the one which caused us to go to war in the first place.

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November 07, 2003


I find it amazing that the same people who think that affirmative action is useful because it allows different races to see models of success also think that it is ridiculous to attempt the 'reverse domino' concept of trying to make Iraq a model of success for Arab countries.

On the other hand, I believe in the possibility of the reverse domino effect but I'm not a fan of affirmative action being grounded in positive modeling.


Posted by Sebastian Holsclaw at 12:39 AM | Comments (422) | TrackBack

The Reasons For the War (Part III)

Part I
Part II

One of the main arguments against the war is that Saddam had been contained for 11 years, so why invade him now. I think that there are three major responses to this objection: containment measures were falling apart, 9-11 changed the threshold for acceptable risk, and the form of our containment measures were increasing his prestige in the Arab world.

Containment Measures were failing
One of the major problems with Saddam was that containing him required a concerted effort with many of our allies. The main thing which kept Saddam contained was a combination of intrusive weapons inspections and the comprehensive sanction program set in place by the UN. With the knowledge we have now, it seems that these measures kept Saddam from obtaining many of the WMD that he desired. But this whole system was falling apart.

Saddam had designated huge complexes off limits to the inspectors, and the UN didn't force the issue. By 1998 Saddam and restricted the movements of the inspectors so much that they were effectively under house arrest. He claimed they were spys, but the only part of his military worth spying on involved his WMD programs, and that is exactly what the UN allowed the investigators to look for. In 1998 the inspectors left as Clinton bombed Iraq. The inspectors were not allowed back in until the end of 2002, under threat of war, I mean 'serious consequences', from the UN. The only reason the UN took this serious step was because Bush threatened to go to war.

This becomes obvious when you look back at French, German and Russian action in January of 2002. At that time all three countries were pushing for sanctions to be totally abandoned. They were advocating this despite the fact that Saddam had prevented weapons inspectors from performing their duties for four years. The multi-national inspection regime and sanction programs had lost support from all countries except the US and the UK. The were only maintained at all because of the unilateral insistence of the US. The UN wanted to totally normalize Iraqi relations. The only reason the inspections and sanctions continued, which is to say the only reason containment continued, was because of the US threat of war. A credible threat of war cannot be maintained indefinitely. With the containment efforts crumbling in 2001 and 2002, war became a much more necessary option.

If France, Germany and Russia had been willing to continue long-term containment, perhaps the war with Iraq could have been avoided. These countries made it clear that they would be willing to go along with containment only so long as the US was actively threatening war. That was not going to be a long term solution.

9-11 Changed the Threshold of Acceptable Risk
9-11 informed many of us that a defensive stance risked disaster. Waiting for our enemies to come to us cost us thousands of lives. The medium-term threat of nuclear weapons being used in a surprise attack against an American city was enough to convince us that pre-emptive action had to be taken. Obtaining nuclear weapons requires state action in producing them. Saddam historically had great interest in obtaining nuclear weapons. In light of the 9-11 attacks and Saddam's 11 year history with the weapons inspectors, many Americans decided that Saddam presented a risk which we could no longer afford to take. Since the containment regime which kept Saddam in check was crumbling, we had to destroy his regime before it returned to its course in persuing WMD. At the time, we thought he had programs which were much further along than they actually were. This does not change the fact that the UN had completely lost its resolve to deal with Iraq, and would only do so when the US was actively threatening war.

The Containment Measures Were Becoming a Dangerous Propaganda Tool for our Enemies

The sanctions and inspections were causing an ongoing propaganda disaster in the Arab world and were weakening Western resolve to continue Saddam's containment. See here , here, and here for a sample. Note the years: 2000, 2001, and 2002. The sanctions were used to stir up hatred against America. They were further 'proof' that the US just wanted to damage Arab civilization. The sanctions were constantly radicalizing Arabs and Muslims against us, while dropping them would allow Saddam to resume his aim of acquiring WMD. Invading Iraq allowed us to destroy Saddam's regime, and offered at least a long term hope of providing a positive model for the Arab world. This was allowing Saddam to cast himself as an Arab hero, fighting against the evil wishes of the US (the Great Satan in some circles).

Saddam's containment was not going to continue indefinitely because the UN had lost (and I'm being charitable here) its resolve. 9-11 had lowered the level of acceptable risk in the minds of many Americans. Saddam's survival after Gulf War I, the resistance he gave to the inspectors, and the sanctions needed to keep him in check combined to make his despotic regime a threat to the United States both directly by keeping our attention on him, and indirectly by radicalizing more and more of the Arab world. I believe that most Americans intuitively grasp most of this, even if they couldn't rattle off as many facts as I can. And that is why we went to war against Saddam's Iraq.

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November 06, 2003

Amusing Thought

You probably wouldn't have guessed that all of my teachers in high school liked my writing, but thought I was too brief. I think I may have overcompensated since then.....

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The Reasons For the War (Part II)

Part I here

History of American Dealings in Iraq

During the Cold War, the United States was a supporter of Iraq to counter-balance Iran, and to limit Soviet influence over the oil rich Middle East. I am loathe to engage in too much second guessing about the methods of our vital fight Communism, but I will certainly admit that we traded a good deal of credibility in the Middle East while trying to control the Soviet menace lurking nearby. I do not believe that supporting Iraq in the past bars us from dealing with it in the present. I am still not sure how some people can protest US support of dictators for decades, only to resist when the US actually goes about getting rid of them. But that is definitely a tangent for another day.

In any case, post Cold War it became apparent that Saddam's Iraq wasn't something we could afford to support any more. This became especially clear when Saddam invaded Kuwait and threatened Saudi Arabia. Make no mistake, I fully admit that the Middle East is more important to us than much of Africa because of oil. Oil is needed for the current level of civilization. There is absolutely nothing wrong with making sure that nobody gains control of the whole area so that they can threaten us. 'No blood for oil' is a catchy slogan, but reveals a lack of understanding about what oil does in a modern society. 'No blood for air' or 'No blood for electricity' or 'No blood for access to water' would all be silly slogans in much the same way. Strategic interests really are worth fighting for.

Gulf War 1991
The invasion of Kuwait triggered the 'defensive' operation Desert Shield in which US troops were deployed to defend Saudi Arabia. After Saddam refused to withdraw from Kuwait, the US led a highly successful military operation to force Iraq out of Kuwait. The military operations received support from other countries, though the US did most of the crucial fighting. 2/3 of the $61 billion (1991 dollars) cost of the $61 billion (1991 dollars) war was paid by Saudi Arabia, Japan and Kuwait. This support came with a price. We were not to go into Iraq and destroy Saddam's regime. There are indications that we believed his own people would dispose of him. Many factions which hated Saddam tried to overthrow him, believing that we would support their efforts. We underestimated Saddam's ruthlessness. He slaughtered his opponents while we looked on. At the end of the war, the UN Nuclear Non-Proliferation Agency realized that Saddam was within six months of obtaining a nuclear bomb, while their pre-war estimates put him at about five years off. This failure of intelligence would figure prominently in the later debate about a war against Iraq.

Saddam's survival became highly symbolic in the certain fairly large sections of Arab culture. He was a hero to many people. He was a hero because he was an Arab who stood up the United States, and survived. The story about why the US did not invade Iraq changed in the minds of many. The US didn't invade Iraq because the US was unwilling to risk the deaths of its soldiers. The US didn't invade because it could be cowed by bold and daring men who were willing to take audacious action.


The UN imposed economic sanctions in the hope of toppling Saddam's regime. Sanctions seem like they ought to work, but in reality they often underestimate the ruthless nature of the regimes which they target. Saddam was perfectly willing to starve his people while lavishly rewarding his thugs. He ruled through terror, and was not particularly willing to change his plans just because his people were suffering. As the years went on, the sanctions became a symbol of American cruelty against Arabs. The fact that they were UN sanctions was quickly forgotten while the fact that Saddam was not being kept from access to food for his people was ignored. The hardship 'caused' by the sanctions added to the Arab myth that America was cruelly picking on them. Saddam's continued survival, year after year, confirmed that the US wasn't really willing to fight no matter how capable our weapons might be.


The advanced state of Iraq's nuclear plans immediately after the war scared quite a few people, both in the US and the UN. They decided to impose an inspection regime to try to insure against further nasty surprises. The initial idea of the inspections was that Iraq would submit to the inspections or the war against him would resume. Saddam quickly discovered that since no one really wanted the war to resume he could thwart the inspectors by putting certain sites off limits or by delaying their arrival at certain sites by a few days. His success at this game reaffirmed the idea that the US and UN were not serious about imposing restrictions on a crafty Arab leader. The impression which was given to the 'Arab Street' was Saddam could not be truly thwarted without war, and that we were unwilling to engage in war. This played into the story of strength and pride which the Arab Street wants to tell about itself. Arabs had defeated the Soviet Union in Afghanistan (US help conveniently forgotten) so there was no reason why they could not defeat the US.

Saddam's success (which in reality was little more than our choice not to act) emboldened radical and disaffected Arabs and Islamists all over the world. The twisted parts of Arab culture which can lead both to Ba'athist governments or Islamist fundamentalists Saddam's continued rule as proof that the US could easily be defeated. Bin Laden may have secretly struck against American's in their homes but Saddam openly defied America and their armies ran away from his challenge.

Tomorrow I will talk about how Saddam's symbolic challenge became more dangerous in the aftermath of 9-11, and I really will get to 'Why not the Saudis?'

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November 05, 2003

The Reasons For the War (Part I)

For a while the 'Bush lied about the War' concept was frothing around, especially regarding 'imminent threat', possession of WMD, and links to 9-11, and link to terrorism. After much debate, this seems to have been mostly replaced with the idea that Bush didn't lie so much as he juxtaposed a number of disparate elements together to create an untrue impression. He would talk about 9-11 and soon thereafter talk about Saddam Hussein. Since there is no smoking gun connecting Saddam to 9-11, those on the left charge Bush with deception in linking the two. But that is taking a very narrow view of what I'm going to call 'The War'. The varicella zoster virus causes chicken pox and shingles. The pustules which we call chicken pox do not cause shingles. Shingles definitely doesn't cause the pustules. But they are both symptoms of the same disease. To talk of them as linked is not misleading even though they typically have very different symptoms and typically show up at very different stages in a person's life. In the same way, it is not misleading to talk about stateless Islamist terrorists and psuedo-secular heads of authoritarian states as part of the same problem.

US Background in the Middle East
For decades American policy in the Middle East has been awful. Left leaning people can probably add dozens of other stupid decisions to this list, but I'll focus on a few. Carter dealt poorly with the hostages. Reagan made of fool of himself in Beruit and pursued mostly economic pressure against Lybia even though it was directly tied to an airline bombing. Bush I allowed Saddam to become the hero who could spit in the eye of the giant and survive. Clinton pretended that the 1993 WTC bombing was just a few isolated crazies, and did not follow up on the deeper foreign ties. Neither Bush II nor Clinton made any big deal of the Cole bombing. Carter and Reagan at least had the excuse of the complicated Cold War. The rest really didn't act like it was a big deal. The general impression was that America was a paper tiger. We had powerful weapons, but if you bloodied us a little we would not fight back. The cornerstone of our policy was similar to that of the our policy with the USSR--wait them out and let them destroy themselves. This twenty year history of ineffectual response led to a recent turning point in our Middle East relations: 9-11.

The 9-11 attacks destroyed two of our largest buildings and killed about 3,000 people. It should be remembered that the aim was to kill about 40,000 people. The terrorists just didn't succeed in destroying the buildings quickly enough. The Islamist terrorists had done something that the Soviets had never done. They killed thousands of people in our own cities, and they aimed to kill tens of thousands more. 9-11 was a message. It was a message that civilians were not safe in America. It was a message that this war was going to be fought against us undeclared, and through false fronts. It was a message that the old rules did not apply. And contrary to rhetoric about giving Osama what he wants in a war between Islam and the West, all indications were that he foolishly believed we would let him sit behind his pet government in Afghanistan and continue to scheme.

Two symptoms of the failure of Arab culture
Just as chicken pox and shingles are both caused by the varicella zoster virus Islamism and Ba'athism are two reactions to an underlying disease in the Arab culture.

Islamism is a militant pan-Arab group which responds to the failures of the Arab world by insisting that the failures are punishments for not maintaining faith with Allah. It suggests that Western decadance distracts from the proper method of submission to Allah's will. It wants this distraction to cease either by destroying (converting?) the West, or by forcing the West to completely withdraw from the Middle East. Because of our history in the Middle East, Islamists believe that if you bloody America, you will cause it to retreat. Hence, 9-11.

Ba'athism is a millitant pan-Arab group which responds to the failures of the Arab world by promoting authoritarian socialist rule. It is theoretically secular, though Saddam himself was willing to try to use Islamist fervor to his advantage. This is seen in his post-Gulf War establisment of mosques, and the Koran which used his blood as ink. Ba'athism wants to be a force in the Middle East, but its leaders are aware that they cannot really lead the Middle East so long as the US is around to stop Ba'athists from cowing their neighbors. Because of our history in the Middle East, Ba'athists believed that if you bloddy America, you can cause it to withdraw.

US reactions
Before 9-11, most Americans were prepared to let the failed Arab cultures stew in their own juices. After 9-11, it became apparent that we needed to do something about the Arab world, and we had to do it soon. We had to do it soon because if Al-Qaeda had a nuclear weapon they would have used it. And that would have been intolerable.

We invaded Afghanistan, because they were harbouring the actual terrorist group which committed the atrocity of 9-11. After we invoked the NATO agreements, some European countries initially attempted to keep us from attacking Afghanistan. But the wound of 9-11 was still to fresh, and the connection between Afghanistan and the terrorists was to strong. So we went into Afghanistan, and severely crippled Al Qaeda and its ability to operate within a host country. If Al Qaeda was the main thing to attack in the War, then we were well on our way to a quick completion. If the poisonous Arab culture was the problem, we had only removed the very most dangerous and immediate threat.

This post is getting long already, so I'll save 'Why Iraq?' and just as important 'Why not Saudi Arabia?' for tomorrow.

UPDATE: I omitted 'varicella zoster virus' from the section on 'Two symptoms of the failure of Arab culture'. This led the sentence to be hilarious, but not helpful to the argument. The change is in bold above.

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Balance, or the Lack Thereof

I hope you will have read the Wyld, Weaver, Wyrm before this, because if you haven't I will probably make even less sense than normal.

You don't bother to acquire a new way of looking at things without actually doing the looking. I think that this lens allows for a number of interesting insights. I'm not claiming that the insights are original, but some of the linkings look different in this framework.

Within modern Western civilization, there is a fairly noticeable split between many of the English speaking countries and the rest of the West. The entire West is less bound by tradition than most of the world. The Weaver aspect of civilization is especially de-emphasized in the Anglosphere, and especially in the United States and Australia. The American character is often described as optimistic. We are far more willing to embrace Wyld changes than many other societies. We are also not particularly afraid of breaking down old institutions, embracing the positive aspects of the Wyrm. Many Eurpoean countries have a deep history, which offers them much acquired wisdom, but can also trap them in a tight weave. They also want to bind the world together in one large unit. Many Americans see that as not Wyld enough.

If good societal relations show a balance between Wyld, Weaver, and Wyrm, it wouldn't be surprising to find that problematic societal relations show a lack of balance between these elements.

Aggressive utopians embrace the Wyld too much and don't seem to notice or care about the societal wreck they leave behind with their rapid changes. They also ignore some of civilization's acquired knowledge about human nature and interactions because they want to avoid feeling trapped by the Weaver. I would suggest that many of the more radical flower children embraced the Wyld a bit overmuch. More serious libertarians also have this kind of bent.

When people use 'conservative' as a dirty word they mean that the object of their scorn is embraces Weaver concepts too much. They lock things into place only because the past did it that way. They want to make structures so strong that Wyrm can never tear them apart, but in doing so they choke creativity and the possibility for positive change. Most ideologues have a strong Weaver aspect to their personality. It allows them to resist change (in their mind the taint of change). Politicians are almost always interested in weaving, they just can't agree on what weave would be best.

I wish I could say that there weren't many who embrace the Wyrm too much, but I think that would be a lie. I'm not sure that there is a specific political movement dedicated to the kind of wanton destruction that this would represent. The anarchists, always more popular in Europe, would tend to be Wyrm and Wyld oriented and very anti-Weaver. Both of the major totalitarian movements of the last century were deeply Weaver and Wyrm with the apparent goal of completely destroying a Wyld sensibility. Interestingly, I would say that the modern Islamist terrorist would tend to claim to be deeply Weaver, but has decided that if the world can't be his way it ought to be destroyed, showing a corrupted Wyrm bent.

Before you begin to think that I have just invented a new way to throw old insults, I want to show how this viewpoint can actually help in at least one situation that I can think of. Many disagreements between people who theoretically have similar aims are a result of misattributing these aspects to each other.

The 60s is still much talked about as a turning point in American society. The flower children/hippies saw themselves as agents of the Wyld. Some of them saw themselves as embracing the positive side of the Wyrm, disestablishing the old orders to allow better orders to arise. Their opposites, the straights, saw themselves as Weavers, keepers of order and civilization. On both sides there were those who embraced destruction for the pure thrill of its own sake, acting out the drives of the corrupted Wyrm.

The interesting thing is that each side focused on the negative aspect of their opponents strategy. The hippies were irritated by the rules and restrictions and webs that their opponents tried to weave. They didn't learn until later about how important the stability of Weavers can be. The straights saw their edifices and customs too quickly replaced. They worried that everything was untested and that their good structures would vanish with the bad. Their opposities were sharing in the benefit of the Weaver's labor, while thwarting it along the way. They had difficulty seeing how much positive change was still possible. In short, each side saw only the unbalanced parts of their opponents, and overlooked the important contributions that each had to offer.

Anyway, I thought the balance of inspiration, dedication, and positive destruction offered some interesting insights. Or it might just show that at a sufficient level of abstraction, even wacky ideas seem to apply.

Next, back to politics.

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November 04, 2003

Wyld, Weaver, Wyrm

"There is nothing new under the sun."

A sentiment that may very well be true. However, I experience things that are new to me all the time. I love looking at old things through new eyes. Sometimes perceptions about things are so ingrained that you can't really look at them clearly unless you call them something other than what you normally would. A few years ago I came across I set of fascinating ideas that can be used to look at societal and inter-personal behaviours. This lens uses three archetypes: Wyld, Weaver and Wyrm.

Wyld is about creative energy. It embraces new thoughts and radical change. It either switches forms constantly, or is without form. It is all things bright and beautiful.

Weaver harnesses and shapes energy. It makes useful things. Through toil and discipline it can make a great edifice, it can protect and nurture, it harnesses and domesticates. It links things together.

Wyrm is about destruction. It tears things down to make room for better things. It is about destroying threats. It guards. It forges the balance between Weaver and Wyld.

That is the positive aspect of these archetypical concepts. The negative aspect is easiest to see when thinking about ideas relating to Wyrm. Clearing away bad or useless things is positive but requires analysis of the situation to be sure you are clearing the right things. If you become too dependent on destruction it becomes a corrupting influence. In human relations, destruction for no reason (or bad reasons) becomes an awful thing to behold.

Over-reliance on weaving can cause things to become overly rigid. The interlocking web of obligation and requirement can stifle and choke. At its worst it becomes a desire to control everything--whether by perfectionism, by a domineering partner, or an authoritarian government.

Some might think that Wyld could never be bad, but if unchecked it makes stability impossible by changing at a whim and undercutting the ability to do anything long-range.

As a tool for looking at human relations, this framework can be very interesting. An ideal realationship would allow healthy doses of Wyld for growth, Weaver for stability and connection, with Wyrm to break down habits or situations which may (or may not) have been useful in the past, but are now hindering growth and not allowing a new and better weave to be created.

In reality many relationships don't have a good balance. Some people embrace the Wyld, and the often pair temporarily with Weavers who try too much to bind them. Some people learn to take things apart with a reason, but many embrace destruction for its own sake.

I think that one of the amazing things about civilization in general, and specifically Western civilization, is that it balances these forces quite well. It can embrace the new and wonderful, weave it into something of lasting power and beauty, and tear away at the bits which are no longer useful, or which can be further improved to allow the cycle to continue. Chinese civilization, by contrast, may have over-embraced the more stultifying Weaver aspects of behaviour causing a long term stasis which rarely allowed for useful growth. An interpretation of the criticism that "Americans don't know history" would be that we embrace the Wyld too much and upset the 'natural order' of things. A lack of balance between these drives is one of the things which has caused us many internal problems, and is helping fuel our foreign relations problems now. But that is a long enough topic to be saved for tomorrow.

By the way, I purposely didn't say where I found these ideas until the end. I chose to do that because many wouldn't have read to here if I did. It isn't a new religion, or an old one (don't worry mom and dad). It was part of the created myth from a role-playing game that a friend wanted to play, but that I didn't take much interest in. I never played, but interesting concepts can be found practically anywhere

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November 01, 2003

Judicial Impeachment

A recent investigation has come to my attention. I think pointing it out is going to convince (reaffirm for?) quite a few of my liberal readers that Republicans are pushing the bounds of acceptable political behaviour. I'm going to try to convince you that the investigation is actually critical to the maintenance of our political system.

Congress is investigating the Chief Judge of the Sixth U.S. Circuit Court of Appeals for charges of judicial misconduct regarding the Michigan affirmative action case. CBS Report , Washington Post report .

First I'll get the facts that make Republicans look bad out of the way. This case led to a 5-4 decision in the 6th Circuit, upholding the Michigan affirmative action plan. This led to a Supreme Court case in which the Court for the most part upheld affirmative action. So this investigation could look like some sort of payback, for a blow against the Republican agenda on affirmative action.

Nevertheless, if true, the allegations are serious enough to warrant impeachment of the judge. Here is what happened. First, District Judge Friedman tried the case and found that the Michigan admissions policy unconstitutional. The school appealed. A motion panel was to decide if the case ought to be heard by the appeals court. This panel had a vacancy. Normally a replacement would be chosen randomly. Instead of following court policy, Chief Judge Martin appointed himself to the panel to hear all motions on the case. This is already highly unusual.

Then, the parties requested for an en banc hearing (a hearing before the entire Circuit or as many judges who are willing to hear the case). This request was given to Martin on May 14, 2002. Normally such petitions are circulated nearly immediately. At the time the Circuit had eleven judges. Two of the judges were about to take senior status, which would make them ineligible to hear the case if they did so before accepting a seat on the case. It was well known that intended to take senior status in 2002. Judge Norris, a Republican appointee, chose to become a senior judge on July 1, 2001--a month and a half after Martin should have circulated the request for an en banc hearing. Considering the voting record of Judge Norris, it is very likely that if the petition had been circulated in time for him to join the court, the decision would have been 6-5 against the admissions policy. Judge Suhrheinrich took senior status on August 15, 2001--three months after Judge Martin should have circulated the request for an en banc hearing. Considering the voting record of Judge Suhrheinrich, it is very likely that even without Norris the decision would have been 5-5 which would have allowed the District Court's ruling against the admissions program to stand.

The motion for an en banc hearing was not circulated until eight days before the oral arguments. This is actually quite shocking, not only because it allowed 2 Republican justices to go into semi-retirement before hearing of the en banc petition, but also because such a practice doesn't allow enough time to prepare for the oral argument. Note that Judge Martin was in a position to delay notice of the motion to the rest of the court because of the self-appointment to the motion panel.

Democrats may want to take the position of 'no harm no foul' since the Supreme Court upheld the admissions program. I can't agree at all.

First it was not at all obvious that the Supreme Court was ever going to review this case. They had accepted no such cases in 20 years. So from the point of view of what was known at hte time, if Judge Martin was actually attempting to manipulate the makeup of the en banc panel, it seemed quite likely that his action would never have been reviewed by the Supreme Court.

Second, is the fact that ignoring the procedural rules for choosing panels is in effect judge shopping by the judge . Manipulating the makeup of supposedly random panels, and trying to change the makeup of en banc panels is a practice which is intended to illegally effect the outcome of the cases which come before the court. Other than bribery, there is very little that I can think of which could endanger the the citizenry's respect for the court. The fact that people (including myself) often suspect that the courts play politics with their own votes, instead of reading the law, is bad enough. The idea that Chief Judges might manipulate the votes by circumventing random assignments and tampering with the makeup of en banc panels, imperils the whole concept of a trustworthy judiciary. I already believe that judges have too much power in deciding what ought to be in the realm of the legislature--a topic for another day. But, I am even more sure that self-selected judge shopping is inexcusable. The Congressional investigation into this behaviour is crucial to protect the integrity of our court system.

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Since it is the weekend, and since Matthew Yglesias has been celebrating incivility, I will temporarily abandon serious discussion...

Democrat to Republican: We will accept no change in abortion laws. A child can be aborted up to 30 seconds before birth. We won't even compromise by 15 seconds.

Democrat to North Korean dictator: Will you promise to cease your long held nuclear programs and destroy any bombs you may have? Great, we will give you lots of food and oil aid so that you can focus on torturing your own people for another generation or two. (Three years later in a discussion with aides) We know they are continuing their nuclear programs, should we try increasing the amount of food and oil we give them or should we throw in something else to help them be reasonable?

Democrat to Republican: You are evil, evil, evil, evil.

Democrat about Repbulican foreign policy speech: Framing the world into good and evil just isn't helpful.

Democrat to Republicans: We don't think Social Security is a problem. You hate old people. You want them to die. Your motives are suspect.

Democrat on foreign policy: We need to reach out to other countries. We need to get their input. We need to engage them in dialogue.

Ok, I'm being a bit extreme in my hypotheticals. But Democrats stress negotiation, compromise, trying to please the other side, and a willingness to abandon all sorts of ideals when we are talking about dealing with allies or even anti-American tyrants. Let the idea of dealing with Republicans be even mentioned and all talk of compromise or dialogue goes flying our the window. My theory is that, like most people, when something is important to them, they are not so willing to negotiate.

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