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Thursday, May 31, 2012

Or Could it Be to Focus Attention Away from the Pedophilia Scandal

Excellent analysis of the First Amendment scurfufal over providing reproductive services by Catholic agencies.

Quote: "The first paragraph of the Complaint states that “[t]his lawsuit is about one of America’s most cherished freedoms: the freedom to practice one’s religion without government interference.” By the end of the paragraph, the religious institutions and their attorneys have worked themselves up to making an even more grandiose claim: the claim that religious freedom is the “most fundamental of American rights.”

Historians will tell you two things about such a claim. First, the “First Amendment” is not first because the Framers believed that rights to speech and religion were more fundamental than, say, the right to a jury trial or the right to avoid unreasonable searches and seizures, which were set out in subsequent amendments. To the contrary, historical accident made “the First Amendment” first, so the notion that the right to religious exercise is most fundamental because it is in the “first” amendment needs to be set aside early in this litigation.

Second, the true innovation in the United States Bill of Rights was not contained in its protection of the free exercise of religion, as much as it was contained in the Establishment Clause, which instituted the then-novel concept of a separation between church and state. The Notre Dame complaint is part and parcel of the seemingly endless push by religious organizations and nonprofits in this era to obtain free exercise at the expense of separation."

Wednesday, May 30, 2012

Bangkok Bob and the Missing Mormon - Review

Goodreads | Eric_W Welch (Forreston, IL)'s review of Bangkok Bob And The Missing Mormon:

A charming little novel that has a mystery but no murder, no horror, lots of suspicion and possible conspiracies and lots of local color.

Bob Turtledove is a former New Orleans cop now married to a beautiful Thai woman (and she’s much smarter than he and very well connected.)  He runs an antique store but over the years he has helped numerous people with their business dealings in Thailand. Mr. and Mrs. Clare of Salt Lake City want him to find their perfect (saving himself for his wife) son with whom they have lost contact.   Bob is the antithesis of the macho cop and his investigation reveals much of how business is done in Thailand.  Patience is rewarded; a sense of humor, essential.

Stephen Leather must have a lot of knowledge of Thailand (he lives there part of the year) as the story reeks of authenticity.  One might even say that Bangkok is the major character of the novel.  It also reveals some of the cultural conflicts and mistaken seductions of those who visit the country. I hope Leather brings Bob back in several reincarnations.  

Jai yen  (Cool heart,  don’t worry,  be happy)


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Tuesday, May 29, 2012

The Supreme Court on the Social Security Rights of Posthumously Conceived Children: | Joanna L. Grossman | Verdict | Legal Analysis and Commentary from Justia

The Supreme Court on the Social Security Rights of Posthumously Conceived Children: | Joanna L. Grossman | Verdict | Legal Analysis and Commentary from Justia:

So when is a child a child. "A “child” is an applicant who meets the definition of “child,” who is either a minor or was disabled before age 22, who is unmarried, and who was dependent on the insured at the time of the insured’s death." under SSA rules.  And I wondered if they were still considered married at the time of conception since the husband was already dead.

Absolutely fascinating case.  SCOTUS  " reversed the Third Circuit’s ruling and sided with the SSA.  Thus, the final outcome in this case was that Robert Capato cannot be deemed the legal father, for Social Security purposes, of the twins who were conceived with his sperm after his death."

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Chain of Blame: An Excellent Primer on the Financial Meltdown

Goodreads | Eric_W Welch (Forreston, IL)'s review of Chain of Blame: How Wall Street Caused the Mortgage and Credit Crisis:

Truly a fascinating account of the financial meltdown. It also contains one of the clearest explanations of credit default swaps and collateralized debt obligations I have seen anywhere else. A big problem was that sub-prime mortgages had become a cash cow for Wall Street. Mortgage entities like Countrywide sought out subprime mortgages because they brought higher interest rates, could be collateralized with real estate, and then could be securitized and resold and then added to CDOs which were insured again. At each step of the process, especially as the bonds got larger and larger, the fees collected by the agents and sellers got bigger and bigger and huger and huger. And no one worried because real estate never went down, right? At least not since the great Depression, right? And they were all insured, anyway, right? And we're making so much money. Right.

It astonished me to see the effect language could have on the market which then cascaded into larger problems. When the president of Countrywide said in 2007 he didn't think we would pull out of the recession until 2009, shudders ran through Wall Street, and when he actually used the word depression, it tumbled head-over-heels. By that time Countrywide had 15% of the market for subprime mortgages and wanted 20%. They were making sooo much money. Then he opened his mouth and the slide began.

Again, there were many causes for the current crisis and some resulted from unintended consequences. For example, in 1986 Reagan and Congress pass the Tax Reform Act that eliminated the tax deduction for personal finance interest on credit cards, car loans, etc. It was a subtle kind of tax increase and was intended to raise revenue and lower the deficits. That's what happened at first until mortgage finance companies realized they could promote second liens on homes by loaning money on the increased equity of homes. All would go well assuming that houses increased in value. Some finance companies even made loans on 125% of a home's value.

The advent of loan brokers was another contributing factor. These were folks who acted as intermediaries between the borrower and the finance company (by this time finance companies had eclipsed banks and savings and loans as mortgage originators, primarily because they could charge more interest since they were not regulated the way banks were.) The problem was that brokers made money by financing and refinancing. It was in their interest to get homeowners to constantly refinance because their only source of income was generated as points on the loan. This made predicting income over the life of a loan very difficult and the securitization of the loans was based in part on expected performance of the loans, which became almost impossible and was wildly optimistic.

Ironically, in another of those unintended consequences, the closing of numerous savings and loans after the S&L crisis threw many experienced mortgage managers and brokers out looking for jobs and places like Country-Wide snapped them up. Of course, they had to start writing mortgages. Another was the California Nolan Act, passed in 1983, that permitted federally chartered S&Ls to invest 40% of their assets in non-residential real estate. Entrepreneurs and developers would purchase an S&L and then use its capital to fund their own building projects. Nolan had been a pal of many S&L executives, and his act opened the door for unscrupulous folks to channel consumer savings into all sorts of projects. S&Ls began to fall like dominoes.

All of the constituent parts of the current crisis were available to review had anyone taken the time to look at the S&L crisis: deregulation of a successful business but one seen as under-performing, interference with regulators by Congress, federal subsidization of loans, reduction of the number of regulators, media cheer-leading (CNBC was then called the Financial News Network, but the role changed little), and finally collapse and massive government bailout: $150 billion in 1980 dollars or the equivalent of about $450 billion today. (Sound familiar?)

I often hear from my conservative friends that if it weren’t for those people getting mortgages they couldn’t afford, we wouldn’t be in this mess. So let’s see. You go to a mortgage lender (bank’s were in the minority in offering mortgages,) because you’ve seen an ad on television. The lender asks how much money you want for your house. You tell him/her. They ask how much you earn. You state what you earn. And you get the loan. So who’s the idiot in this scenario? The person asking or the lender loaning? Lenders would forge appraisals to get higher values for the houses since the higher the mortgage the bigger the fee. And they certainly did not care if the mortgage was repaid since they were sold and securitized immediately.

Here’s how it worked at one company: New Century. Started by four out-of-work executives (they moved a wall so that each would have exactly the same size office since they gave each of themselves the title of President and CEO) they created a business specializing in subprime mortgages which were extremely profitable since they always carried a higher interest rate. In a time of cheap money that was crucial. They convinced Solomon Brothers to loan them $105 for each $100 in loan originated (this was unusually high since usually a loan business should be able to run on $3 per hundred.) The loans were made, usually without regard to the creditworthiness of the borrower because it didn’t matter. They would collect the fees and resell the loans to Wall Street which would then securitize the loans, sell them in packages offering high interest rates which made them very attractive to investors, and which were then further insured by companies like AIG. Everything went along fine as long as properties continued to increase in value. Borrowers would refinance every couple of years, taking out the equity, and buying more property. Inevitably, as all bubbles must, the balloon burst and when borrowers couldn’t refinance at a higher loan value and balloon mortgage came due, everything came tumbling down and you and I bailed out Wall Street which had so encouraged this kind of risky behavior.

A must read.

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Monday, May 28, 2012

Indie Author: Dear Indie Booksellers: Please Take Your Eyes Off Your Classmate's Paper And Focus On Your Own Work

Indie Author: Dear Indie Booksellers: Please Take Your Eyes Off Your Classmate's Paper And Focus On Your Own Work:


To which I add: Excellent advice. My experience as a personal book buyer and academic librarian spending thousands on books has been that the so-called independent stores are much harder to work with than the big chains. Getting them to order books from university presses or small presses is almost impossible. I used to send students over the a local bookstore to order books until the owners said they would not order a book for a student because they didn't approve of it. My last reference for them.

My daughter, a middle-school-librarian, near Chicago has had the same experience. She recently gave a list of summer reading books to Anderson's bookstores, a three store independent in the Chicago suburbs. They flatly would not order any books except from the legacy publishers claiming they couldn't get a large enough discount from smaller presses. This was despite the possibility of 500 kids coming in to look for books for the summer. She will know send them to Amazon who carries everything. Talk about shooting yourself in the foot.

The notion that independents promote local authors and new authors is total hogwash and a myth they try to perpetuate to hide poor business practices. And when they fail they blame Amazon.'via Blog this'

Sunday, May 27, 2012

The Righteous by Michael Wallace

Goodreads | Eric_W Welch (Forreston, IL)'s review of The Righteous:


Well, I’m not quite sure what to make of this book.  It’s certainly a serviceable mystery/thriller with many religious overtones.  The author, whose bio says was raised in the desert, “raised in a small religious community in Utah,” (close to the FLDS?) has a lot of very interesting and supposedly secret details of sealing ceremonies and the inside of a splinter Mormon polygamist community.

The book does seem to go off the rails a bit with a wildly improbable plot twist that wasn’t necessary (hence three instead of four stars) and detracted from the main story.. The issues raised with regard to who and what is righteous and where does religious authority come from are interesting enough. Jacob, off at medical school, is recalled by his father, an elder in the Blister Creek Church. to return and investigate the ritualistic murder of Amanda. He, a skeptic or rationalist of sorts, refuses to be buffaloed by the mythic traditions of his church but retains allegiance to his family, a connection which would  lost should he abandon the church entirely. Had Wallace pursued these threads, I think the book would have been stronger and more interesting. He handles some of the issues quite sensitively but then goes off on this ridiculous plot twist that remains unresolved in the end, awaiting book #2 in the series, which I will probably read, if for no other reason than morbid curiosity into the religious silliness.

You do get a nice sense of what it must be like to live as an outcast constantly at war with the “evil” world and trying to determine what constitutes valid revelation from plain insanity (or silliness.)  A couple of reviewers on Amazon (one-star reviews) have suggested Wallace is, in fact, a “Lost Boy” himself; certainly not an impossibility given some of his insider knowledge (assuming it’s correct and the defensiveness of some of the Mormon readers would suggest it is.)  It’s certainly more sympathetic, I thought than they imply.


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Saturday, May 26, 2012

North Carolina Weighs Ban on Electricity, Soap « Borowitz Report

North Carolina Weighs Ban on Electricity, Soap « Borowitz Report:

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College: What it is; What it Should be

Anthony Grafton reviews College: What It Was, Is, and Should Be by Andrew Delbanco in the New York Review of Books.
What’s clear to everyone on both sides is that American higher education rests on shaky economic foundations. Since the campaign for Proposition 13 in California in the late 1970s, governors, regents, and voters in state after state have abandoned the old idea that higher education is a public good for which all should pay. Private universities flew high in the prosperity of the 1990s and 2000s—but the crash of 2008 has cut deeply into many endowments. Many trustees and administrators have lost their former confidence that future economic expansion would finance present expenses and the borrowing that sustained them. Large gifts are hard to find, though some universities continue to receive them. Big grants are becoming rare too, as government support for scientific research declines.
Delbanco’s overview, though brief, is lucid and well informed. He reviews the different stages through which higher education has passed, from the tiny colleges of the colonies and the early republic to the great knowledge factories—research universities—that came into being in the Reform Era and after. He follows the student body from its all-male and all-white beginnings to its multigendered, multiethnic, and multicultural present. He shows the curriculum evolving from the study of the classics, mathematics, and morality required for all students in the early days to the immense buffet table of electives that students sample nowadays. And he argues, reasonably and cogently, that the college has been both improved and damaged by this long and complex history.

Tyrannosaurus Sue Review

Goodreads | Eric_W Welch (Forreston, IL)'s review of Tyrannosaurus Sue: The Extraordinary Saga of the Largest, Most Fought Over T-Rex Ever Found: "Tyrannosaurus Sue: The Extraordinary Saga of the Largest, Most Fought Over T-Rex Ever Found"

Discovered by Sue Hendrickson and Peter Larson (president of the Black Hills Institute of Geological Research) in the wastelands of South Dakota, the largest T-Rex had survived millions of years, Sue’s last meal was some kind of platypus. She was also the subject of multiple lawsuits and a Sotherby’s auction. (She sold for millions and Larson could only participate from his house where remained under house arrest.) Larson wound up in prison, Sioux Indians claimed ownership, the government claimed ownership. Larson had paid the land owner on which Sue was found about $5,000. It was a mess.

Henrickson is a field paleontologist (she’s also the world’s leading procurer of amber) who was searching near Faith, South Dakota. She’s somewhat of an Indianette Jones and has a real knack for finding things. Of the six butterflies in amber in the world, she found 3 of them.

Larson’s problems began soon after the world learned of the discovery and monetary valuations were proposed, many ranging as high as $1 million. The Sioux claimed the skeleton had been stolen from their land, Williams, the land owner, insisted the $5,000 was only for the right to dig, not for anything found, Hill City, South Dakota was building its hopes for economic revival on the presence of a museum in their little town, famous mostly for a large drug store. Because the owner, Maurice Williams, had put his land into a federal trust, the feds got involved. Soon after Williams claimed ownership, the FBI showed up with a warrant to seize all the bones. (I can just imagine the care with which a couple of black shirts treated the bones.) That really pissed off Hill City, an area in which most of the federal government is treated with more than a little suspicion. 

Soon there was a battle royale among the academicians, the feds, and commercial fossil hunters. The academics argued that the commercial hunters were interested only in money, not science, should never be allowed on federal land, and didn’t know what they were doing. The commercial types pointed out that most of the great finds were found by those wanting to profit from their finds and that if it were left to the professoriate, most of the great finds of the past two hundred years would never have been retrieved. Not to mention that many well-known paleontologists lauded the fossil hunters for the care and expertise they showed in handling rare fossils. Cynics took the position that each side just wanted to retain all the rights for themselves. Throw in a D.A. who was thinking of running for office and needed the publicity and you have all the ingredients for a nasty fight.

Larson was eventually convicted of custom’s violations (on the intake form the charge is formally listed as -- “failing to fill out forms” -- and served two years in federal prison in what has to be one of the great travesties and wastage of money. The trial itself was the longest in South Dakota history. Williams was awarded ownership (screwing the Indians again) and he sold Sue to the Field Museum in Chicago for $8.5 million. One interesting, if perhaps depressing element, of the trial was that according to a Supreme Court decision, judges could use evidence presented at trial in sentencingeven if the defendant had been acquitted on charges related to that evidenceThat’s spooky. So Larson was convicted only on failing to report travelers’ checks in excess of $10,000 when he returned from Peru into the United States, a misdemeanor. But because the judge was able to use all the evidence presented, he decided that Larson was part of a largely criminal conspiracy to steal fossils and therefore could be subject to much harsher sentencing. **

Feiffer relates a substantial number of stories and events related to the history of palaeontology. Including some famous hoaxes. I particularly enjoyed reading about the Cardiff Giant. Feiffer identifies the culprit as an agnostic farmer (the Wikipaedia says it was George Hull, a NY atheist tobacconist) who was infuriated by local Methodist revivals claiming giants once walked the earth as noted in Genesis. He build a giant man, let it age for a year, then had it buried on his cousin’s farm and later arranged to have it “discovered” while digging a well. He set up an exhibit and started charging admission. Christian preachers declared its validity and a validation of the Bible. Most scholars declared it a fake but that did not detract from its curiosity and Hull sold his interest in the statue for $23,000. P.T. Barnum wanted in on it and offered the new owners $50,000, a huge sum at the time. They turned him down so he created a replica and declared it the “real” Cardiff Giant. Soon Barnum and the Cardiff syndicate accused each other of having fakes. Hull revealed his hoax and a judge ruled that each could not be sued for calling a fake a fake. The two fakes are now in small town museums, each accusing the other of having the wrong (fake?) fake. Priceless.

**I believe the case referred to but not cited is United States v Watts: “the Court held that a jury's verdict of acquittal does not prevent a sentencing court from considering a defendant's conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence. Justices Antonin Scalia and Stephen G. Breyer concurred. Dissenting, Justice John Paul Stevens argued that the additional offense should have been required to have been proved beyond a reasonable doubt for sentencing purposes, where a defendant's sentence was lengthened. Justice Anthony M. Kennedy, also dissenting, expressed the view that the cases should have been set for full briefing and consideration.” (seehttp://www.oyez.org/cases/1990-1999/1...)

This, of course, gives a great deal of power to the judge, but I suspect we wold all have applauded such power if used to reverse jury acquittal verdicts in lynching cases decades ago.

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Friday, May 25, 2012

The descent of Edward Wilson

Dawkins takes on Wilson leaving the rest of us flummoxed.

"Nobody doubts that some groups survive better than others. What is controversial is the idea that differential group survival drives evolution, as differential individual survival does. The American grey squirrel is driving our native red squirrel to extinction, no doubt because it happens to have certain advantages. That’s differential group survival. But you’d never say of any part of a squirrel that it evolved to promote the welfare of the grey squirrel over the red. Wilson wouldn’t say anything so silly about squirrels. He doesn’t realise that what he does say, if you examine it carefully, is as implausible and as unsupported by evidence."

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This juxtaposition says it all. Great photograph.

UCSF enacts policy mandating open-access research, and a related complaint from me « Why Evolution Is True

UCSF enacts policy mandating open-access research, and a related complaint from me « Why Evolution Is True:

"It has always galled me that although the taxpayers (whose hard-earned dollars are distributed to scientists largely through the National Science Foundation and the National Institutes of Health) fund our work, scientific journals can nevertheless make taxpayers cough up large sums to view the results of that research. That’s unconscionable by anyone’s lights."

Bravo.  Take that Elsevier.

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Wednesday, May 23, 2012

Tuesday, May 22, 2012

JURIST - Paper Chase: Supreme Court declines to hear appeal of $675,000 damage award for music sharing

This is such a travesty and, one hopes, will only come back to haunt Sony et al. Personally, I resolved several years ago after the Rootkit incident never to buy a Sony product.  This lawsuit of theirs only reinforces my view. One can only hope the trial court will have the good sense to reduce the damages. This award goes way beyond punitive into the stratosphere of punishment. I suspect actual damages were probably only $300 if that.  The damages awarded were 200 times that.

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Goodreads | Eric_W Welch (Forreston, IL)'s review of Henry McGee Is Not Dead

I went back and downgraded a [book:Burning the Apostle|1559602] review , part of Granger’s November Man series because this one is just so much better.

Devereaux, his code name is “November,” wants nothing more than to continue playing the IF game with members of Section R, one of those elusive agencies hiding within the intelligence bureaucracy that is used often to accomplish tasks that border on the illegal (the ethics of such a system we won’t debate here.)  He has a nice relationship with Rita, who hates the agency.

The R Section offices were in parts of two Department of Agriculture buildings:  The intelligence section had been first funded under subparagraph R of a funding bill for all agriculture. The funds that established R section were vaguely labeled as money for “agricultural crop estimates and international grain reportage,” clumps of words intended to make legislative eyes glaze over.” No doubt a very accurate portrayal of how agencies get hidden and buried within the larger bureaucracy.  I just wonder how many of them are there and no one knows what they do nor to whom they might be accountable.

Devereaux is persuaded he must trek off to Alaska in search of Henry McGee, an elusive spy who was supposed to be dead, but now seems to be sending a signal that he is not.  A trapper by that name has been found shot in the wilderness. Of course, that wasn’t his real name, so when his prints find their way to Washington, Section R becomes concerned and Devereaux, their senior agent is charged with finding out what’s going on.

Mix in a couple of former Soviet agents being hidden in the Witness Protection Service, a rogue double-agent who wants to leave the business and gains funds to do so by blackmailing a former and current Senator by threatening the oil pipeline in Alaska with total destruction (does he or does he not have a suitcase atomic weapon?) and a very bright Civil Service employee who actually takes her job seriously, and you have all the elements of a very nice espionage novel.


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A Federal Judge Draws the Right Line in Interpreting a Utah Law Regarding Web Content That Is Deemed Harmful to Minors

"With respect to the issue of content-labeling, Judge Benson held that website operators are not liable under Section 1233 for posting content that may be deemed harmful to minors, as long as the words or images can be detected by commercially-available software. Put another way, under the ruling, websites do not have to monitor and rate their content and label it.

Moreover, under Judge Benson’s order, no one can be prosecuted for posting content that is constitutionally protected for adults on generally accessible websites, nor is anyone required by law to label such content. In addition, Judge Benson’s order expressly forbids any prosecution under the Utah law from occurring, except when someone sends inappropriate images or language directly to a child through email, text, or instant messaging.

“This declaratory judgment makes clear that adult-to-adult communications on the Internet, and through other electronic means, cannot be restricted simply because minors also access the Internet and other electronic communications,” said David Horowitz, the Executive Director of Media Coalition, an organization that represents the trade associations of booksellers, publishers, graphic novels and comic books, and librarians.

Judge Benson’s ruling stands for the proposition that Utah’s law was a violation of the U.S. Constitution’s First Amendment insofar as the statutes required website operators to tag words or images that might be considered harmful to minors. Judge Benson also ruled that Utah must pay the legal fees of the organizations that successfully challenged the law."

Link to Original Article

Monday, May 21, 2012

Goodreads | Eric_W Welch (Forreston, IL)'s review of DeKok and Murder by Melody

What is it that makes the DeKok, Maigret, Nero Wolfe, Morse, Carella and others so sympathetic? I think it's a nostalgia for a past -- perhaps a past that never existed, except in our minds. Nevertheless, it's real and very appealing. DeKok work out of the old Warmoes police station with the traditional nice chairs for the public, a watch commander who's approachable behind a nice wooden desk as opposed to the new police stations where the police are ensconced behind bullet-proof plastic and you have to speak through holes drilled in the plastic and rarely is there a place to sit. DeKok knows everyone in his district and is known by everyone else. He loves their idiosyncratic behaviors, revels in them perhaps. Maigret is similar even if his methods seem to be plodding , punctuated by moments of clarity and insight.

Called to the scene of a strangulation of a known heroin addict, Inspector DeKok and Vledder, his assistant, find something odd: a mostly used pad of graph paper, but no evidence of any work requiring graphs. They consider it an isolated case until they are called to one of the canals where another strangulation has occurred. Both victims appeared to have kicked the habit. There follows the murder of an old friend, the landlady of the two murdered ex-addicts.

Apparently, Baantjer was a detective inspector with the Amsterdam police which provides considerable credibility. He’s written dozens of DeKok stories and one wonders where he finds the time, but also that many more will be translated. Three stars rather than my usual four as I don’t this this is one of his better stories.

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Max Boot Reviews Donald Rumsfeld's "Known And Unknown" | The New Republic

Max Boot nails it.

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Sunday, May 20, 2012

Lost Cause and Secession

I have been fascinated reading the defensiveness of many reviewers on Amazon who insist that slavery had nothing to do with the Civil War, resurrecting the old saw regarding states' rights, etc. It seems to me a good source for refutation of this idea is the secession documents themselves.

Georgia: "The people of Georgia having dissolved their political connection with the Government of the United States of America, present to their confederates and the world the causes which have led to the separation. For the last ten years we have had numerous and serious causes of complaint against our non-slave-holding confederate States with reference to the subject of African slavery." First sentence.

Mississippi: "Our position is thoroughly identified with the institution of slavery-- the greatest material interest of the world. Its labor supplies the product which constitutes by far the largest and most important portions of commerce of the earth. These products are peculiar to the climate verging on the tropical regions, and by an imperious law of nature, none but the black race can bear exposure to the tropical sun. These products have become necessities of the world, and a blow at slavery is a blow at commerce and civilization. That blow has been long aimed at the institution, and was at the point of reaching its consummation. There was no choice left us but submission to the mandates of abolition, or a dissolution of the Union, whose principles had been subverted to work out our ruin."

South Carolina goes on at some length about how it was a free and independent state never subject to the Constitution and then complains about the federal government's failure to enforce the Fugitive Slave Laws. In other words, the federal government failed to uphold the Constitution which it said it didn't have to abide by. "The General Government, as the common agent, passed laws to carry into effect these stipulations of the States. For many years these laws were executed. But an increasing hostility on the part of the non-slaveholding States to the institution of slavery, has led to a disregard of their obligations, and the laws of the General Government have ceased to effect the objects of the Constitution. " It then goes on to talk about how the Constitution supported the institution of slavery and it was the failure of the northern states to recognize that fact which lead to South Carolina's withdrawal.

Texas::" She was received as a commonwealth holding, maintaining and protecting the institution known as negro slavery-- the servitude of the African to the white race within her limits-- a relation that had existed from the first settlement of her wilderness by the white race, and which her people intended should exist in all future time. Her institutions and geographical position established the strongest ties between her and other slave-holding States of the confederacy. Those ties have been strengthened by association. But what has been the course of the government of the United States, and of the people and authorities of the non-slave-holding States, since our connection with them?" Texas goes on to complain that the northern states were preventing the expansion of slavery.

Judging from what the southern states themselves said, at the time, it was all about slavery. I suspect it was the Lost Cause that became politically correct, not the other way around.

Source: Official secession documents found at http://sunsite.utk.edu/civil-war/reasons.html

One might, in fact, present the argument that it was the northern states like Pennsylvania and Wisconsin who should have been screaming about states' rights since it was the southern states demanding federal enforcement of the fugitive slave laws and several northern states passing laws (most deemed unconstitutional) intended to impede that enforcement, ("see Prigg, Sanford see and federal marshals' attempted enforcement of the Compromise of 1850 and many "personal liberty cases.")

We could refocus the debate over slavery by redefining the issue as one about "property." Slaves were considered property. The Constitution protected property. Supreme Court decisions through 1857 consistently considered slaves to be property. The Founders wrote in many compromises in the Constitution to protect the rights of southern plantation owners (of which they could include themselves, most of them.) David Blight (Race and Reunion) has noted that slaves by 1860 were worth about $3.5 billion, an enormous sum then and of course the southern plantation owners didn't want to give up their property. The cotton business was booming and had doubled in value every decade for four decades before 1860. Ironically, one might posit that the southern states needed a strong federal government to enforce the Fugitive Slave Acts and it was states like Wisconsin and Pennsylvania who insisted on "states' rights by passing laws making enforcement of federal Fugitive Slave laws difficult. Southern states, in their declarations of secession documents, said the reason for secession was their desire to protect slavery (see South Carolina and Georgia esp., which also makes reference to slaves as property and their constitutional right thereto). Slavery and race have sullied this country for centuries; to whitewash it is rather sickening. As Bernard Malamud wrote in The Fixer: "There's something cursed, it seems to me, about a country where men have owned men as property. The stink of that corruption never escapes the soul, and it is the stink of future evil."

Goodreads | Eric_W Welch (Forreston, IL)'s review of The Omnivore's Dilemma: A Natural History of Four Meals

Update 5/23/2010 Terrific piece by Michael Pollan in the NYRB June 10, 2010, "The Food Movement, Rising" in which he reviews five books: Everything I Want to Do Is Illegal, Terra Madre: Forging a New Global Network of Sustainable Food Communities, All You Can Eat: How Hungry is America?, The Taste for Civilization: Food, Politics, and Civil Society, Eating Animals

I am beginning to wallow and bask in the mire of food politics, subject of Pollan's piece. It's interesting to read the comments section after any article dealing with meat or vegetarianism. One can almost see the participants spitting on each other. It's like watching Mormon fundamentalists defend polygamy to the College of Cardinals. To quote Troy Duster (from Pollan's piece) "No movement is as coherent and integrated as it seems from afar, and no movement is as incoherent and fractured as it seems from up close." And as we learned from OD, food is all politics from the huge changes initiated by the Nixon administration to bring down the price of food to Michelle Obama's efforts to change the way kids eat. As long as there is government to promote the interests of one group or another, there will be these kinds of battles, but I doubt any of us would wish the total absence of regulation desired by Joel Salatin - except maybe Rand Paul.

It's an interesting communitarian movement, perhaps a throwback to the sixties, but one that appeals to both right and left: the desire to localize and remove oneself from the larger society. That is largely what I meant when I referred elsewhere to Pollan's book as a Libertarian Manifesto. In his 2006 book Crunchy Cons: How Birkenstocked Burkeans, gun-loving organic gardeners, evangelical free-range farmers, hip homeschooling mamas, right-wing nature lovers, ... America, Rod Dreher identifies a strain of libertarian conservatism, often evangelical, that regards fast food as anathema to family values, and has seized on local food as a kind of culinary counterpart to home schooling.

Major editing 5/23/2010 about half the content identical to my review of Foer's Eating Animals.

minor editing 4/16/10

Let's see, things we can't or shouldn't eat: butter, steak, meat, spinach because of the salmonella (or maybe it's only the organic spinach that gets contaminated), apples because of the alar, salt, sugar, fat, any food not bought at a farmer's market, any food bought at a non-union grocery, any food bought at a chain, any food that's not organic, any food that's labeled organic by the USDA because their standards aren't strict enough, kosher food, non-kosher, non-grass fed beef (and now we've learned that grass-fed beef is salmonella contaminated, too -

http://www.ncbi.nlm.nih.gov/pubmed/12...,) pasteurized milk, raw milk, etc. etc),

This issue seems to engender as much animosity as whether communion should be allowed to non-Catholics. Factions abound, each with a slightly different take on the issue: those who believe eating meat is immoral; those who believe eating meat from factory farms is immoral; those who believe eating meat is immoral because it's environmentally unsound; those who believe eating meat is bad for your health; those who believe eating meat is fine; those who believe eating some kinds of meat is fine; those who believe eating meat is immoral because animals are sentient beings; and those who think the issue is cultural rather than moral or environmental. How to reconcile these views and where does each of the authors take a stance. All of these views represent a moral position, i.e. a personal one in which the believer needs to persuade others of the necessity of adopting his view to the exclusion of the others and convince that not to do so will result in calamity. Up front we have to recognize that only people who have tons of food available, i.e., the rich, would even consider any of the positions.

Let me state my biases up front. I am very skeptical of any argument that proposes calamity will result if a particular position is not adopted. I am skeptical of moral arguments (not ethical ones). I believe that the most difficult decisions require choosing between grays, not black and white; that sentience as we understand it requires some form of self-awareness and we have little way to judge that in beings that we don't understand (can't communicate with) and that sentience varies tremendously across species, indeed across individuals within that species; and that pain as we understand it may be very different across animals and plants with structures. (David Foster Wallace in "Consider the Lobster" discusses scientific evidence that lobsters, because of their structure, may in fact feel a state of euphoria when being boiled rather than pain as we understand it.)

I worked on two dairy farms for several years, milking about 120 cows, both in stanchions and and parlors, dehorning calves, and shoveling shit. Contrary to Foer's claims, cows are not treated regularly with antibiotics. A test tube of milk coming out of the farmer's tank is pulled before loading on the truck, and this is tested at the plant before being mixed with the rest, and if any suspicion of antibiotic is found, the entire load is dumped and the farmer loses the value of the entire load. We were meticulous about dumping milk from any treated cow (usually for mastitis) for the required period before selling it. Those who think drinking raw milk is the answer are asking for trouble. We did, but that was probably stupid. Besides that I saw what was in the strainer sometimes. None of that milk is tested and come on folks, there's a good reason why we started pasteurizing milk. It saved a lot of lives. I don't have any experience with feedlots, but I do know that stress on animals is to be avoided at all costs as it slows the rate of growth, cuts profits, and leads to disease.

It's impossible to discuss these books in a vacuum, and I need to start out by making clear several assumptions:

1. Humans are omnivores biologically and, in fact, only very recently (say about 10,000 years ago) began to farm grains for food. Before that we were hunter/gatherers relying primarily on meat and berries.

2. Everything is interconnected. Just not eating meat will not even begin to address the issues of environmental degradation. Computers, roads, cars, pets, travel, ipods, plastics, toilet paper, etc., all have their downsides. If Foer and Pollan and Berry et all choose to emphasis one aspect of life and deliver broadsides against that particular activity that's fine as long as we understand that limiting that activity will have a minuscule effect on the environment. More effect would be had if all the hand-wringers stopped flying about the country wasting fuel and polluting the environment, just staying put. Problem is that apocalyptic thinking and lecturing is very profitable.

3. Environmental activism is very much a white, rich, western game. People who have no money and who live a hand-to-mouth existence can't afford to choose. The best way to promote conscious environmental action is by raising living standards around the world. It also reduces the rate of population growth.

4. My very strong bias is that the only practical solution to the myriad number of problems is technological. Some examples: algae oil is already being used successfully mixed with Jet-A by Continental Airlines and the results are a reduction in carbon-footprint of 60-80% and fuel efficiency of 1-2%; production of methane gas as an energy source (very clean burning) from large factory-farms, something not possible if the animals are parsed out in smaller farms where runoff occurs in large quantities, etc., etc.

5. We quite naturally tend to read and find books and data that support a preconceived opinion and avoid those that present an opposing view.

6. My other bias is that I'm very sympathetic to vegetarianism, not veganism, for I love my bread and butter and cheese way too much. I milked cows for several years, churned my own butter and would gladly have turned several fresh heifers into instant hamburger had I been able to after wiping their manure off my face. (If you've ever milked cows you know exactly what I'm talking about.)

NB: I have a problem with beliefs that are so strongly held that believers think they have to claim apocalypse will result if their beliefs aren't adopted by everyone. The Inuit diet consisted of meat alone and meat taken from what is clearly a sentient animal. To suggest they adopt a western, citified, cereal diet is wrong and ridiculous.

This is why one of my heroes is Norman Borlaug who virtually single-handedly began the green revolution that increased wheat yields spectacularly (http://nobelprize.org/nobel_prizes/pe...). He DID something, unlike the Paul Ehrlichs who just ran around making a fortune proclaiming the sky is falling. ALL of Ehrlich's predictions have been wrong because of people like Borlaug.

I find the definition of what constitutes sentience to be worse than muddled and mixing up moral issues with that and environmental concerns makes the issues even murkier. There are clearly differences in "sentienceness" from one species to another (no one would argue that a snail has the same level of consciousness as a dog) and whether that should play any part in deciding what to eat or not makes an interesting debate. Personally, I wish the discussion would leave the realm of "morality" with its concomitant religious overtones and focus on the more rational (IMHO) environmental concerns.

I very much enjoyed Pollan, much to my surprise. (I actually listened to this and while Scott Brick is one of my favorite readers, he was all wrong for this book. Way too pedantic sounding.) A very interesting book with tons of detail (which I like) displaying the symbiotic relationship we have with corn and fossil fuels, a very destructive relationship, but one that nevertheless has allowed us to feed many, many more people than would have been possible otherwise. Ultimately, something will have to change, we cannot continue to use 1.5 calories of energy to produce 1 calorie of food. Pollan emphasizes the mono-culture of corn but the same problems exist with the banana and other crops. In order to ship food to where it's needed requires products that mature at the same time, don't bruise easily, etc. He also shows that virtually all the food we eat has been genetically modified, if not at the gene level, certainly through seed selection, chosen for productivity , disease resistance, and a variety of other qualities.

I learned that in order to increase yields the nitrogen that was added was in the form of ammonium nitrate which existed as a surplus after world war two, no longer needed for explosives. That nitrogen leaches off the ground, into wells, (blue baby syndrome, too much nitrogen cause respiratory issues,) and into the water supply in other ways. (As an aside, no one around here uses much of that, preferring anhydrous ammonia injection directly into the soil with presumably much less runoff.)

I do have some issues with his very limited perspective on industrial farming, which he never defines, by the way. My neighbors, family farms all, farm thousands of acres. At what point does the size become optimum? Families run feedlots, too. My veterinarian has 40 steers in a feedlot. Is that a factory farm? They have the same conditions, the same feed, etc., as the larger feedlot a few miles away. It's almost as if Pollan had decided that farming on a grand scale was apocalyptic and then pulled together data to support his view. His data with regard to corn prices are woefully out of date. Just check commodity prices over the last five years. His choice of George Naylor must have required considerable searching in order to find someone who thought just the way he did.

The history of price supports and the switch under the Nixon administration from a "loan" program to direct payments was something I had completely forgotten and had no idea how much influence it would have on corn production. On the other hand, Butz's intent was to increase production to take the heat off Nixon following the huge increase in food prices as the price for corn had increased so dramatically.

All that being said, there's a lot of useful information, particularly with regard to government policy, and lots of fuel to support the libertarian side of the equation. There is no question that our over reliance on fossil fuels will get us into serious trouble very soon.

A final comment. All of the recent food books could only have been written by a society that doesn't have to worry about where its next meal is coming from.

The problem we have is scale. Wrigley just changed their gum wrappers from the little foil wrap to paper and thereby saved the equivalent of 60 million cans of aluminum. There's the problem in a nutshell

Fun trivia: the corn plant has 32,000 genes, more than humans. Astonishing. (Knowledge Magazine Mr/Apr 2010)
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Goodreads | Eric_W Welch (Forreston, IL)'s review of The Zen of Fish: The Story of Sushi, from Samurai to Supermarket

Forgive me if this “review” seems an agglomeration of tidbits, but I really enjoy little facts and pieces of information, and this book was riddled with them.

I don’t like fish and frankly the idea of eating it raw, no matter how trendy or gussied up it might be, roils my stomach. Be that as it may, this is a fascinating story, following the ascent (descent?) from a despised, lower class food to one prized by the elite. (Lobster made a similar journey: it was once banned as food for prisoners in jail because it was considered so unseemly and dirty.) The story follows Kate at the California Sushi Academy where, a total neophyte, she has decided to learn how to make Sushi from the masters. It has become less Japanese than international and some of the best chefs are from outside Japan. But, I mean how hard can it be to roll up some raw tuna around rice. Surprise, surprise.

Interestingly, mold is key to Sushi rice and the particular mold strains are guarded in bank vaults or secret caves. The mold is added to rice and eats it with such tremendous speed that if not properly controlled, the heat generated would overheat the incubator. The moldy rice is then mixed with soybeans along with yeast, bacteria and salt. The mush is shoveled into tubs where it sits for months where the digestive enzymes shorten time from 78 million years to seconds and generate amino acids. It’s the enzymes that we want to create glutamate important to human growth, brain development, etc. (Bear with me, I listened to this book on audio and am trying to recreate it from memory.) Anyway, to make a long, but interesting story short, the result is Miso (for more details see http://en.wikipedia.org/wiki/Miso). It’s very nutritious and as a paste is used in soups and other dishes including, guess what, sushi. The brown liquid at the edges of the Miso is soy sauce.

Msg, monosodium glutamate, is heralded as one of the miracles of this process and an important ingredient in flavoring. Usually associated with Japanese and Chinese food, it’s ubiquitous ands manufactured by the ton, added to meats, chips, fast food, soups , and many other things (it’s hidden under the name hydrolyzed vegetable protein.)

Western scientists had always assumed that the human tongue can taste only four flavors: sweet, bitter, sour, and salty. Asian scientists insisted there was another they called “tastiness” triggered by amino acids and was represented by the amino acid glutamate (msg) . Recently scientists at UC San Diego have found specific receptors for this flavor.

Fresh water fish can be dangerous when used raw for sushi as it is more likely to contain parasites that cause tapeworm. Salmon and trout, in particular as notorious, and the only way to kill the parasites is by freezing at -31 F for 18 hours or for a week at 0 F. Farmed salmon is not as dangerous filled as it is with PCBs and antibiotics. (Farmed salmon has 5 times the levels of PCB as wild salmon. It takes 3 lbs of ground up fish meal to produce 1 lb of salmon. In the wild they eat krill which gives the flesh its pink color - much like flamingoes.) The more fatty farmed salmon has become much more popular with diners making chefs happy since it is much cheaper.

Tuna pose their own special problems, in particular the Bluefin, largest of all the tuna and unusual in that it is warm-blooded and therefore has to age longer, much like terrestrial animals before they are eaten. Another issue is mercury. Since underwater volcanoes and coal-fired energy plants emit mercury which accumulates in the top of the food chain (and Bluefin tuna which often reach 1,500 lbs. are a top predator) pregnant women are told not to eat Bluefin and everyone else is told no more than once-a-week for any kind of tuna. Some of the techniques to factory farm tuna are rather spectacular (I'll resist the temptation to reveal a spoiler but will only say they involve mackerel) and perhaps they might lessen the danger of eating mercury. Another reason to avoid fish.

The evolution of sushi is quite a story in itself, moving from rice being used to preserve fish (and smelling like the “vomit of a drunkard” and being thrown out, to a situation where the rice is more important than the fish. Sushi chefs apprentice themselves for years to learn the secrets of good sushi rice. (I have some Norwegian in my genes, but there is no way you will ever get lutefisk** - literally lye fish - past my nose.)

A major role of the sushi chef is to scope out the customers and adjust the servings and consistency and appearance to the particular customer's taste. I'll avoid a spoiler here and not reveal why it is that Americans will probably never get an authentic sushi; the kind they are served would be rejected as inedible by most Japanese.

I could go on and on. Fascinating book.

** Here’s what Garrison Keillor has to say about it:”Every Advent we entered the purgatory of lutefisk, a repulsive gelatinous fishlike dish that tasted of soap and gave off an odor that would gag a goat. We did this in honor of Norwegian ancestors, much as if survivors of a famine might celebrate their deliverance by feasting on elm bark. I always felt the cold creeps as Advent approached, knowing that this dread delicacy would be put before me and I'd be told, "Just have a little." Eating a little was like vomiting a little, just as bad as a lot.”

Goodreads | Eric_W Welch (Forreston, IL)'s review of To An Unknown God: Religious Freedom On Trial

The book is about a particularly interesting case: Employment Division v Smith. Hidden behind this seemingly innocuous name lay a conflict pitting the Establishment Clause and the Free Exercise Clauses of the First Amendment to the Constitution. Perpetually in conflict, those two clauses of the First Amendment create a tension that all feel and few understand. Just how far can the government go in controlling behavior that is in conflict with society’s mores yet which for some may be considered an essential religious practice?

For some Native American Indians tribes peyote is a sacred sacrament, a gift that embodies God, much as wine might represent the blood of Christ in Catholic religious practice. Yet peyote was also considered a dangerous drug its use to be prosecuted to the fullest extent under the War on Drugs. It pitted two very interesting men against each other in the oral arguments before the Supreme Court and the result was new legislation, the Religious Freedom Restoration Act of 1993, that would also be declared unconstitutional four years later as an unconstitutional form of legislative power in City of Boerne v. Flores as an wrong use of the 14th amendment as it applied to the states. This resulted in another congressional action, Religious Land Use and Institutionalized Persons Act, which gave special grants to religious institutions. Whew. Got that? So the RFRA was still constitutional as it applied to the federal government, but not the states. The RFRA has been used by many minority religious groups to challenge federal statutes as being onerous to their religious practice, including payment of income taxes. They have lost, in most cases because the courts have ruled the statutes had a compelling secular interest.

Ironically, the Native American Church didn’t exist before 1918 when it was formalized at the suggestion of a white man, James Mooney, as a way of insulating itself and its practices, from mainstream harassment with protection from under the free exercise clause of the Constitution. There has always been tension between the free exercise clause, which permits unfettered religious practice in theory, and the establishment clause, which is intended to prevent government from favoring one religion over another. But even Thomas Jefferson, author of the Virginia Statute for Religious Freedom made a distinction between established religions as he saw them and the practices of those “aboriginal inhabitants. . .who inculcate a a sanctimonious reverence for their ancestors.” So the struggle to reconcile peyote use with governmental efforts to ban it had long roots. **

It all got started because of the state of Oregon denying unemployment benefits to two employees because they had used peyote, an illegal drug, as part of a religious ceremony and as a method to help alcoholics. The question before the court was, “Can a state deny unemployment benefits to a worker fired for using prohibited drugs for religious purposes?” The answer, in a six-three decision written by Justice Scalia was, *SPOILER ALERT* “ Yes. Scalia observed that the Court has never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that government is free to regulate. Allowing exceptions to every state law or regulation affecting religion "would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind." Scalia cited as examples compulsory military service, payment of taxes, vaccination requirements, and child-neglect laws” What astonished Court observers was the breadth of the majority opinion which threw out the Sherbert established in Sherbert v Verner in which a Jehovah’s Witness (many landmark religious test cases have involved this sect,) a Sabbatarian who insisted on a Saturday sabbath, was fired when she refused, on religious grounds, to work on a Saturday. The Court ruled that to force her to work on her Sabbath was not “a compelling state interest” and therefore a violation of the free exercise clause and she was entitled to unemployment benefits. A similar case, also involving Jehovah’s Witnesses (Thomas v Review Board) involved a man who refused to work on tanks arguing his personal interpretation of the Bible would prevent him from helping to create instruments of war. He, too, was entitled to unemployment benefits, said the court. One difference in the Smith case was that no state could pass a law prohibiting worship on Saturday; they could, however, declare peyote an illegal drug. But again, this case involved unemployment compensation. The decision caused a whirlwind of legal activity in response to Justice Scalia’s opinion which seemed to go much further than was asked for by the Oregon AG. They essentially overturned the Sherbert test and, in the eyes of some, stripped minority religious groups of special protection under the free exercise clause.The new rule was that if the state didn’t target religion, “then minorities whose practice was destroyed were out of luck.”

Epps argues that the case was wrongly decided as an infringement on religious freedom, yet even Thomas Jefferson made a distinction between religious belief and the action that flows therefrom. In Reynolds v US, Justice Waite (a decision surprisingly not mentioned in Epps’ book) made that point in denying the religious right to polygamy. “The court argued that if polygamy was allowed, someone might eventually argue that human sacrifice was a necessary part of their religion, and "to permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself." The Court believed the true spirit of the First Amendment was that Congress could not legislate against opinion, but could legislate against action.” But his harshest words are for Scalia, a “great and powerful judge who had seen the Smith case not as a dispute between real people but as a chance to play with the law, to take away part of our heritage of religious freedom.”

Epps does a great job of humanizing those involved in the dispute and getting us to sympathize not only with the claimants, but the state as well. Al Smith had his own alcohol related demons and Attorney General Frohnmayer was fighting to save the lives of his three daughters who had inherited a devastating anemic disease through a recessive gene from him and his wife. It’s a tragic story, and one cannot help but admire Frohnmayer and his family as they suffered one medical calamity after another. He is truly a heroic figure. This is a really good book that will make you think about the meaning of justice and whether that concept as applied by the law can be separated from the individuals and people it is supposed to protect.

N.B. There is an odd, but fascinating, chapter on Oregon’s battle with Baghwan Rajneesh and his compound and attempt to create a theocratic state within a state. A more fuller account can be found in James Gordon’s The Golden Guru: The Strange Journey of Bhagwan Shree Rajneesh (not read) and Frances Fitzgerald’s excellent lengthy reportage in Cities on a Hill: A Brilliant Exploration of Visionary Communities Remaking the American Dream and The New Yorker September 22 and 29, 1986 (which I have read.)


** Not to mention polygamy. In Reynolds v United States (1878)the Supreme Court held that religious duty was not a suitable defense to a criminal indictment (Reynolds had been criminally charged with bigamy under new Utah anti-polygamy statutes.) Justice Waite declared in the Constitution "Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of the good order."

Another case that might be of interest to those pursuing this divisive issue is LARKIN ET AL. v. GRENDEL'S DEN, INC. of 1982. The court was asked to decide whether a Massachusetts statute, which vests in the governing bodies of churches and schools the power effectively to veto applications for liquor licenses within a 500-foot radius of the church or school, violates the Establishment Clause of the First Amendment or the Due Process Clause of the Fourteenth Amendment. It ruled the statute unconstitutional under the establishment clause since it effectively gave a religious body the power to make a political decision, i.e. the granting of a liquor license. The only dissent came from Justice Rehnquist and it makes interesting reading because his rationale seems to be solely that the law makes sense. It’s also interesting to note that the Catholic Church was granted an exemption to use wine during Mass during Prohibition.

You can hear the oral arguments and opinion announcement at http://www.oyez.org/cases/1980-1989/1....


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Goodreads | Eric_W Welch (Forreston, IL)'s review of America's Constitution: A Biography

The historian HW Brands, in an article in The Atlantic, “Founder’s Chic” (September, 2003), has suggested that the reverence Americans, especially politicians, display toward the Constitution, is ill-placed. (We’re certainly seeing an over-abundance of Constitution worship on the part of the Republican candidates in 2011-2012 as I write this.) He argues the Founders, who barely agreed on anything and filled the final document with compromise after compromise, as revolutionaries, would be quite sympathetic with supporting an evolutionary document.

Amar’s book goes a long way toward developing a thorough understand of the background and historicity of the document which everyone claims to understand but few do; a document that supports both dual (states and federal government share power equally) and cooperative federalism (some powers are reserved to the states but they remain subservient to the federal powers) simultaneously.

We came perilously close to not having a constitution, and I am sure were it to be proposed in today’s climate, with today’s puny Washington minds, it would never be ratified. (Notice that even Michele Bachmann shut up about the Constitution after her little seminar with Scalia - he was probably speaking way over her head.) 

It is to the credit of the anti-Federalists, many of whom vigorously attacked the unauthorized work done by the Constitutional Convention (they were supposed to just rewrite the Articles of Confederation) that in the end they approved the Constitution, which in some states did not receive the required two-thirds vote majority, and went on to serve nobly in the new government, e.g., James Monroe.

Some have argued the Constitution was a failure. It lasted only some seventy years and that only because of numerous compromises regarding slavery that became mere band-aids over a festering wound, an issue the original framers had decided to push off for later generations. It wasn’t until the Civil War and especially the passage of the Fourteenth Amendment with its application of rights to the states (albeit later gutted by the selective incorporation dictated by the Slaughterhouse cases in 1873 which mandated selective incorporation of the Bill of Rights)* that one could argue we achieved full freedoms.

The fact remains that much of the Constitution is obscure and leaves wide latitude for interpretation. Sometimes using the words “persons”, sometimes the more populist sounding “people,” the ninth and tenth amendments have provided grist for many in the mill of public opinion. They would appear to “reserve” rights to the people and the states and imply that “nothing in the Bill of Rights should be read as conferring additional government power. . .[but] the Ninth Amendment warned readers not to draw certain types of negative inferences about constitutional rights. . . a text that explicitly expressed certain rights was not to be read to negate other constitutional rights derivable [or implied, a concept that has caused all sorts of controversy] from the document’s general structure.” (pg 327) For example, the Sixth Amendment’s right to counsel could not be interpreted to negate a person’s right to represent himself.

It’s ironic that the Federalists generally opposed a “bill of rights” because they feared that such explicit enumeration of rights would weaken generally more expansive protections of the original constitution and unintentionally reduce implicit rights. The Nionth amendment was the compromise that resulted.

I could go on and on as is my usual wont. Amar’s structure for the book is unusual but quite readable, integrating concepts broadly yet chronologically. Chapter headings, “Making Amends” which discusses the first ten amendments, and “The New Birth of Freedom” which reviews events and amendments following the Civil War give only a broad hint as to content, but there is an excellent index and over one hundred pages of notes (I actually prefer footnotes, but then I’m a queer duck.)

*Interestingly Clarence Thomas in McDonald v Chicago while concurring with the majority which used the due process clause to apply the 2nd amendment to the states, wanted to use the privileges and immunities clause which would have strengthened, IMHO, the Bill of Rights in its application to the states across the board. I think he was right.

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Goodreads | Eric_W Welch (Forreston, IL)'s review of The Amendment That Refused to Die: Equality and Justice Deferred, the History of the Fourteenth Amendment

The author makes a persuasive case that the original constitution was a failure. A mere seventy-three years after its ratification, the country stood on the brink of civil war, certainly not a more “perfect union.” “Establish Justice?” Hardly, with more than a sixth of the population being held in bondage and “domestic tranquility” on the brink of being shattered.

He suggests that the United States has experienced three revolutions: the first leaving Britain; the second, the Civil War; and the third, in the twentieth century as the 14th Amendment was seen as being applied to the states. It’s important to remember that the original Bill of Rights, the first ten amendments, applied only to federal government actions and states were free to deny or misapply those fundamental rights subject to no recourse except by state courts. 

Meyer’s technique is to show through a series of vignettes how the basic rights guaranteed under the federal constitution were not upheld at the state level. For example, in the case of Roberts v Boston, Benjamin Roberts wanted his daughter, Sarah, to attend the school closest to her residence as per the local school policy. Because she was black, however, this was not to be, so they enlisted the aid of Charles Sumner, a young lawyer who had already acquired the reputation as a radical, someone who was willing to take on unpopular causes, as he had in fighting against the Mexican War. The Massachusetts Bill of Rights proclaimed that all men born free and equal” under the law. Sumner thought it was time to hold them to their proclamations. In a premonition of Plessy v Ferguson half a century later, the opposition argued that the school Sarah could attend was indeed separate, but it was also “equal.” Sumner argued it wasn’t just blacks who were injured, but whites as well: “With the law as their monitor they are taught to regard a portion of the human family, children of God, created in his image, as a separate and degraded class....” Sarah lost her case, but Sumner’s appeal was printed and distributed as a pamphlet which so inflamed public opinion that five years later, the Massachusetts's legislature overrode the local school officials and made segregated schools illegal, paving the way for a national effort one hundred years later based on an amendment that Sumner was to support just a few years later.

Wars have done more for raising civil rights* than perhaps anything else. By 1864, the National Negro Convention was asking a question that would be hard to answer for many Americans: “Are we good enough to use bullets and not good enough to use ballots.” Northern states were little better than southern when it came to suffrage for blacks, but it was the large number of black soldiers who had fought well for the union that was beginning to change minds. Granting voting rights to blacks was critical politically because with the 3/5ths rule, the southern states were represented, assuming a population of one million blacks and one million whites, as if they had a population of 1.6 million. Without black suffrage after the war and with the elimination of the 3/5ths rule under the 13th amendment, now southern states would have a representation as if they had two million which would give them more voting power in Congress, unless blacks were given the vote.

The initial Civil Rights bill failed to override Andrew Johnson’s veto, so the solution was the 13th amendment to abolish slavery, but many were concerned that federal legislative power would be inadequate to enforce rights for blacks in the southern states after the war so the solution was the 14th amendment which applied the Bill of Rights was to provide protections to all persons within all the states.

Misapplication of the Bill of Rights caused a delay in full application to the states until the mid-20th century as conservative courts interpreted “equal rights” to mean that separate was OK, too. Some would argue they weren’t fully applied even until 2009 with McDonald v Chicago, but that’s another story.

Clearly the 14th amendment laid the groundwork for a truly national and person-wide implementation of important individual rights and thus deserves a special place in the pantheon of American history. Meyer explains the evolution of selective application through a series of short vignettes, including the Slaughterhouse Cases** (a setback for full application and requiring thirty years at least to overcome some of its damage), Plessy and many other fascinating cases that also illustrate the difference between using the immunities and privileges clause (fundamental rights of citizens) as opposed to using the due process clause of the 14th amendment. 

Ultimately, the 14th amendment gave the national government the power to “protect all its citizens within the states.” (Rep. John Broomall of Pennsylvania, 1866.) For their actions, subsequent generations of Americans owe a debt of gratitude to those who labored for the amendment. Excellent primer on the history and implementation of the 14th amendment.

*I’m thinking here of the confluence of Vietnam and the Civil Rights movement of the sixties as well as the push for more rights after WW I and II.

**In a five-four decision issued on April 14, 1873, by Justice Samuel Freeman Miller, the Court held to a narrow interpretation of the amendment and ruled that it did not restrict the police powers of the state. The Court held that the Fourteenth Amendment's Privileges or Immunities clause affected only rights of United States citizenship and not state citizenship(Wikipedia)

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Saturday, May 19, 2012

Goodreads | Eric_W Welch (Forreston, IL)'s review of The Death of an Irish Politician

If you enjoy anything Irish, you will very much like this nice little mystery. Chief Inspector McGarr, know for his innate ability to think like a criminal and thus anticipate their moves, a trait the French considered uniquely Irish (you’ll have to read the book to understand why that little section brought a smile.)

Some very nice, evocative images: “The beach of pulverized oyster shells made one color with the seafoam, driving mist, ashen skies, and cottages in Kilronan: a grey as glossy as from a tube of oil paint.  Upon this background, the beach boat, the tanned faces and wet woolen clothes of the crew, oars over their shoulders, seemed to be imposed starkly in too sharp a focus.”

Lots of references to the troubles and the relationship of the British police to the native Irish. When we visited there two years ago, a friend noted the community we intended to visit had been a hotbed of Protestant/Catholic tension and the shuttered police fortress was a reminder of the ill-feeling toward the British that existed in Northern Ireland.

I liked the Irish feel, the images, and the characters but found the plot to be a bit convoluted and excessively devious. Good read, nevertheless.  Probably 3.5 stars.First in a series.  I will read more.

Originally published in 1977, I suspect this new Kindle version has been expurgated and changed to update it to a more recent time.


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My Way News - Cardinal's presence felt at Pa. church-abuse trial

 "Yet since his death, prosecutors have learned the cardinal ordered two confidantes to destroy a 1994 list Lynn had prepared of 35 problem priests. The list warned the cardinal they had three diagnosed pedophiles, a dozen confirmed predators and at least 20 more possible abusers in their midst. Bevilacqua promptly had the list shredded, according to a memo signed by his loyal aides, current Bishop Joseph R. Cistone of Saginaw, Mich., and now-retired Bishop Edward Cullen of Allentown, Pa.

"It was all about the good of Mother Church," Assistant District Attorney Patrick Blessington argued to the trial judge Thursday. "It's not only criminal, it's outrageously criminal.""

Lest any of you think I'm picking on the Catholic Church, rest assured I'm only picking on monumental hypocrites.

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How John Roberts Orchestrated Citizens United : The New Yorker

Phenomenally interesting article about how Justice Roberts orchestrated the demise of McCain-Feingold. Sounds like the Deputy SG who argued the case for the government really stepped in it in response to Alito's probing question. Toobin believes

 "Stewart was wrong. Congress could not ban a book. McCain-Feingold was based on the pervasive influence of television advertising on electoral politics, the idea that commercials are somehow unavoidable in contemporary American life. The influence of books operates in a completely different way. Individuals have to make an affirmative choice to acquire and read a book. Congress would have no reason, and no justification, to ban a book under the First Amendment."  


And yet in the case before them one could argue that an individual had to make a conscious effort and "affirmative choice" to watch an on-demand video documentary on cable. A point that Vikram Amar also makes in his piece about the excerpt.

Read more http://www.newyorker.com/reporting/2012/05/21/120521fa_fact_toobin#ixzz1vKz3D9pW


There's a useful comment on Toobin's article at SCOTUS Blog by Tom Goldstein at

http://www.scotusblog.com/2012/05/jeff-toobin-on-citizens-united/#more-144819

All this is very interesting stuff, but  I must note that over the past year I have done a 180 on Citizens United and now take the position is was rightly decided which as an ostensible liberal makes me uncomfortable. Nevertheless. The First Amendment does makes it clear that Congress shall pass no law abridging.... As a staunch free speech absolutist (and let's not forget it was Hugo Black who invented textualism) I feel it's imperative for me to adopt the position that the First amendment means what it says and if you believe in the right of people to associate as organizations and unions those groups have a right to unfettered political speech. Let's not forget that Citizens United was about the right of a non-profit organization to promote a political video. That the Roberts Court chose to broaden the decision and apply it to corporations could be easily fixed by the legislature by simply making it plain that corporations don't have "personhood" rights. Of course the risk to that approach is in making the distinction between "good" and "bad" corporations which seems to be more driven by individual politics and the content of the corporate support rather than the character of the corporation, which I suspect is just what the Framers might have feared. So it's a conundrum that I feel generates heat because of corporate content not the nature of their being and that's a form of political speech suppression. Comments? 

Lawfare › Why Hedges v. Obama is Terribly Perplexing


Update 5/26/2012  The government must have been reading the criticisms for they filed for reconsideration explaining .... http://www.lawfareblog.com/2012/05/government-motion-for-reconsideration-in-hedges/

More on Hedges v Obama

Quote: In short, the government refused to concede at argument that it would not seek to detain individuals like the plaintiffs under section 1021(b)(2), even though such a concession would (probably) have made short work out of the plaintiffs’ injury-in-fact. As Judge Forrest recounts at pp. 33-34:
It must be said that it would have been a rather simple matter for the Government to have stated that as to these plaintiffs and the conduct as to which they would testify, that § 1021 did not and would not apply, if indeed it did or would not. That could have eliminated the standing of these plaintiffs and their claims of irreparable harm. Failure to be able to make such a representation given the prior notice of the activities at issue requires this Court to assume that, in fact, the Government takes the position that a wide swath of expressive and associational conduct is in fact encompassed by § 1021.
Put another way, the government could have made this case go away, and it didn’t. And so as perplexing as the injunction entered by Judge Forrest is, I’m even more perplexed by why the government allowed things to come to such a pass.


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