What? You think that the company that admitted to reporting Saddam Hussein's propaganda as news for a decade would be above rigging a debate for their chosen candidate?
Oh, and a happy Thanksgiving to all.
]]>If we repealed Marbury v. Madison, that would get rid of Roe v. Wade and Citizen's United. Cool! Your thoughts?
OK, there are actually several things buried in there that I want to talk about:
When people reference Marbury v. Madison, what they really are referring to is the power of judicial review that it established: the Supreme Court has the power to nullify laws passed by the Congress on the grounds that those laws violate the US Constitution. In other words, the Supreme Court asserted the power (a power not given in the Constitution to any office or body) to be the final arbiter of the meaning of the Constitution, and by extension of the meaning of a law. [Don't write letters; I recognize that I'm simplifying.] In the 208 years since this decision, a great many Court decisions have been predicated on it, at least in part, including the two mentioned in Edward John Gallardo's question. Because our system is theoretically based on common law (about which more later), and in particular because we use the doctrine of stare decisis to avoid continuously relitigating cases, such a decision would apply not merely in the specific case being decided, but in any matter whether or not brought before the Court, until such time as a later Court might revisit the issue. That's a huge assumption of power, and we'll deal with that later. But for now, the relevant issue is that the combination of doctrines that we use for our legal system and the assumption of power from Marbury v. Madison essentially mean that once the Court decides on the meaning of some part of the Constitution, that meaning sticks indefinitely.
So let's assume that some case were to come along based on Griswold v. Connecticut, which I believe was the first Supreme Court decision to find a constitutional right to privacy, and in deciding this case, the Supreme Court were to strike down Griswold. In that event, the right to privacy protection would be struck down as well, and then cases based on that decision, such as Roe v. Wade, would also potentially be in jeopardy. The idea there is that if the Court were to revisit the issue of abortion without Griswold's precedent to rely upon, it might reach a different decision regarding Roe. But note all the conditionals: merely having undone Griswold would not itself undo Roe, because the cases decided different issues. The right to privacy asserted in Roe and based on Griswold might still exist in Roe that are not addressed in the decision that undid Griswold. In other words, merely undoing a Supreme Court decision does not mean that all of the Court's decisions that reference the decision that was nullified would themselves be undone. Presumably, the Court would have to hear other cases that would be brought asserting the claim that this or that case was now also invalid, and over time a new jurisprudence would arise that would clarify those issues.
So no, undoing Marbury v. Madison would not ipso facto undo either Roe or Citizens United.
Part of the problem, though, is that our legal system is hopelessly muddled. We use precedent as if we were a common law country (as, indeed, the Constitution says we should be), but we give supremacy to laws passed by legislatures over common law "even against common right and reason". In fact, it was Marbury v. Madison itself that made statute law take precedence over common law in the US. We allow nullification for the Court generally nullifying laws (again, Marbury v. Madison is responsible for that, or at least for cementing in place what was prior to that a scattered practice) but not for juries nullifying laws in a particular case. We almost seem to have designed for ourselves a system that takes the worst elements of common law and the worst elements of statute law and makes that the universal practice. If we are to truly be a common law nation, then that law which governs the fewest people or the smallest area should take precedence over that law which governs the most and the widest, and Constitutions/charters should flow in the other direction. That's essentially a states' rights position, by the way. It also means though that we have to take into account human nature and a broad conception of rights granted against the powers of government, which inherently limits government and expands freedom. If, alternately, we are to be a statute law nation, then we must have all laws explicitly written, and interpreted according to the plain meaning of the words rather than inventing new meanings out of whole cloth. By trying to have it both ways, we have utterly thrown away any conception of a nation based on law, rather than man.
I should explain here that the idea of rule of law is commonly and horribly misinterpreted. Rule of law does not mean having a lot of laws, or even compelling obedience strictly to the law. Rather, it means that the laws must be knowable (few enough to learn, and clear enough for a common person to interpret, and published widely enough for anyone to access), and that all people regardless of station or position must alike be subject to the law. The alternative is the rule of man, where the arbitrary whims of those in power determine whether or not you are to be punished for any given act, and the written law (if there even is one) is no defense. The United States is not a nation of laws. If you need evidence of this, consider that recent Supreme Court decisions — settled law of the land and trumping all else — have held that non-commercial actions happening entirely within one person's domicile constitute "interstate commerce;" that the protections against the seizure of one's property by the government does not hold if the government really, really wants your property, even if it's just to give it to someone else in a corrupt land for campaign cash deal; and so on. Or consider that we are now being asked to believe that not engaging in commerce means that you are engaging in commerce, and in the process to allow Congress to dictate — and I use that word deliberately — anything at all that it wants, to compel you to do or not do as it suits them and them alone. Or consider prosecutorial discretion, which routinely holds the favored few to no account, while bringing horrific punishments on the common many. And all of this is in no small part due to the confusions introduced by Marbury v. Madison, though of course there are other factors in play as well.
So the next question is, should Marbury be undone? The easy answer is yes, but that's a problematic answer. Fundamentally, the legitimacy of an institution or a system really comes down to whether or not people accept it as legitimate. Authority is granted by acceptance. If Americans as a rule believed the Court to be institutionally illegitimate because of their arrogation of the power to have the final say on the meaning of the Constitution, then overturning Marbury would be a no brainer. But really, people don't. In fact, I'd say that Americans as a whole likely see Court review of laws as a fundamental cornerstone of our Constitutional system. You can argue about whether they are right to do so, but that doesn't matter in the end. Legitimacy flows from acceptance, and the American people accept that the Court not only does have this power, but should have this power. And in practice, that means that the Court will have this power until we fundamentally change our system.
But at this point, I would argue that we need to fundamentally change our system. If we are to be a nation of laws, those laws have to have meaning. And the supreme law of the land is the Constitution. It is no longer possible to read the Constitution and, from that reading, understand anything other than the basic structure of the Federal government. In particular, you cannot read phrases like "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated" (4th Amendment) and actually know what it means, because if this were actually legally binding, how would no knock warrants be possible? In fact, what you can start with is the annotated Constitution (don't forget the three supplements released later), thousands of pages of text and footnotes explaining how the Court has actually interpreted the Constitution, frequently to mean the exact opposite of what is meant by the plain meaning of the words. So the real Constitution is, in a fundamental sense, unknowable to the average person, and in fact largely hidden from the average person. Moreover, because what is taught to people as the Constitution is the original, written form, people routinely see the Constitution (not to mention other laws) violated by the government and treated as being as meaningless. Contempt for the law from the government breeds contempt for the law from the people; why should anyone think about the meaning of the Constitution when the Speaker of the House, on being asked whether a proposed law granting the government sweeping new powers is constitutionally valid, responds with "Are you joking?"
If we are to be a nation of laws, and not of men, then the law — including the Constitution — must be seen to be binding, knowable, and uniformly enforced. That means that what the law is also needs to comport with the beliefs of the great majority of what the people believe the law should be. And that in turn means that the Constitution, as written, is illegitimate, because it does not conform to what the majority think it should be. There are three ways around this. The first would be to call a Constitutional Convention, and write a new Constitution that actually says what we think it should. I encounter a lot of resistance to this idea on the grounds that a Constitution written with current beliefs is unlikely to protect things like freedom of speech, or of religion, or whatever. To which my answer is this: it already does not provide any such protection in practice. The second would be to amend the Constitution to make Social Security constitutionally valid, for example, and to actually give the Supreme Court a written grant of authority to be the final arbiter of the document's meaning, and so forth. The problem with that is this: if you propose, and pass the Congress, an amendment to make Social Security valid, and then it fails to be ratified by the States, is Social Security then invalid? No, under the way that we interpret the Constitution. And so the amendments would potentially further alienate the legitimacy of the Constitution, rather than restore it. The third way is to do what we have done: consent to being ruled by the whims of men, and live in fear that our government might be ruled by people who will force their religion on us and ban abortion (on the one side), or take our guns and ban religion (on the other). Federalism and subsidiarity, the idea that we should be mostly governed locally and the Federal government should have very strictly limited powers, seems to be a dead letter in the American mind, even though it would resolve even some of the thorniest of our issues were we to practice it.
So yes, Marbury should be undone, but the only way to undo it is to fashion a new system, and that would require a very great leap of faith, and consequently a strong non-partisan or bi-partisan leadership to allow that leap of faith. I don't see it happening in practice, but in theory it's way overdue.
But let's say that we do decide to rewrite or amend the Constitution back into a meaningful document. Then should there be a final arbiter of its meaning, and if so, whom or what kind of body should that be? If it were up to me, I'd say that we should not have a final arbiter. The reason is that it actually requires more different people and groups to violate the Constitution without a final arbiter than with one.
Let me give an example. Let's say that the Court had the ability to apply judicial review only to a particular case, and not to broadly strike down laws. Then to violate the Constitution, the Congress would have to pass a law in violation of the Constitution. The President would have to enforce that law in violation of the Constitution. The Court would have to allow that enforcement to stand in each case brought before it — and each case could be brought before it because lower Courts wouldn't automatically dismiss them as unconstitutional. So if the Congress passes an unconstitutional law, the President could simply determine that the law was unconstitutional and refuse to enforce it. Judges could determine that the law was unconstitutional and refuse to try. Juries could determine that the law was unconstitutional and refuse to convict. In other words, a ton of people would have to concur that the law was constitutuionally valid in order to enforce it, while only a few people would have to concur that the law was unconstitutional in order to prevent its enforcement. This is undeniably a situation that furthers individual liberty.
But as I noted before, the idea of a final arbiter has broad legitimacy, and changing that impression — if it is at all possible — would not be easy or quick. So let's assume for the moment that we want to have some person or body with the final authority to interpret the Constitution's meaning. Whom or what should that be? What characteristics would we want to have for whomever has that power?
First, I think that we would want this to not be a single person, because (a) a single person can be corrupted, and (b) that's a lot of power to put in one person's hands. What if that person turns out to think that beheading is an appropriate punishment for shoplifting? What if he thinks that's the only appropriate punishment for shoplifting? By the nature of being a final arbiter, that power is plenary — there is no appeal. So if it's to be an organization, what kind of organization should it be?
Well, we'd want it to be fast. This rules out the first thing that comes to mind: periodic Constitutional conventions. When court cases are pending, it's not exactly conducive to a speedy trial to have to wait a decade or more for the next convention. It would be possible to do periodic conventions combined with court review in the interim periods, but that would lead to an unstable base of law (and thus essentially to an unknowable base of law) as decisions get made and then overturned and so forth. For the same reason, we'd want whatever kind of organization has this power to be permanent, at least to the point of having a common body of rules that change slowly over time, including the rules for how many people are in the body and how they are chosen.
At the same time, you wouldn't want the body to be schlerotic. It is good to have the basis of law change slowly, but it is also good to have an ability to change bad decisions without waiting decades or suffering disastrous consequences. Recall that the appeal for the Dred Scott case was the Civil War. For that reason, you want the body's membership to change over time, and you want the body to meet regularly.
So far, that gives us a permanent institution that meets regularly and changes its membership regularly. What powers should it have? I would argue that it should have exactly two powers: it should be able resolve constitutional questions posed by the courts, legislatures, executives and even common citizens; and it should be able to recommend changes to the Constitution, either to Congress as Amendments, or directly to the States as amendments or a call for a Constitutional Convention. That way, the body would have the power to say what the Constitution means, and to recommend changes where that meaning is at odds with current sentiments. I'd be willing to give it the power to amend, and take that away from Congress, depending on how the membership is chosen and a host of other details.
As far as membership, though, you'd want to have that selected by more than one means. The reason is that this body would be the governing body over the interpretation of the Constitution, and a large purpose of that document, and thus of this body, is to make sure we are all represented and all protected. So you'd want some people appointed by various legislatures or executives, but you'd also want people who were elected by various subgroups (ethnic, gender, urban/rural, by trade/profession, income level, owners/renters, etc) with diverse interests, and you'd want some people who were chosen by lot from the jury pool. The idea is to ensure that the body is both large enough and diverse enough in its interests and needs to ensure that any change to the Constitution, or any interpretation of the Constitution, protects and serves the whole society, rather than just narrow interests. (That, by the way, was the purpose of the original geographic breakdown of the House of Representatives. If we wanted to preserve that idea today, we'd probably go to partisan proportional representation.)
I don't want to go too far off topic by getting into all kinds of other features of such a body, but it's pretty clear to me that if there is to be a power vested somewhere to interpret the Constitution for everyone else, the Supreme Court is not the place to vest it. The membership changes too slowly, is too small, is too unrepresentative of the population, and is appointed in exactly one manner.
]]>You cannot restart the server once you enable the mod_dav_svn module, until you have at least one site configured to allow WebDAV (under the Options pane in the site config on Server Admin). You might also have to allow folder listing; I don't recall if that was a problem or not.
You have to edit the sites file to do more than put in the DAV and SVNParentPath directives, because the file is not written correctly.
You MUST MUST MUST comment out the ErrorDocument line in the site configuration, or you will get an error like:
Error: 2 (No such file or directory) Description: PROPFIND request failed on 'your project'
(and another that the SVN directory could not be opened)
There's a good two hours gone, almost all on that last part.
]]>| President | |
|---|---|
| Obama/Biden (D) | I think that Obama would be a disastrous president. He will give us a redux of Carter on foreign policy, and would be as bad as Johnson or maybe even Nixon on domestic politics. His socialist policy tendencies would be bad for the economy. His misunderstandings of the Constitution — or maybe it's just interpreting it away to get his policy preferences despite their being unconstitutional — are dangerous to Liberty. I am voting very strongly against Obama because of all of this, but mostly because of the foreign policy implications. If the Democrats had nominated Hillary, I would have been voting for her. They didn't; I'm not. |
| McCain/Palin (R) | I do not like John McCain. (I do like Palin.) McCain would be good on the war, and at least passable on foreign policy otherwise. That's it. His economic populism is likely to be quite damaging to the economy, though popular. His misunderstandings or outright contempt for the Constitution when he disagrees with it (see McCain-Feingold) are dangerous to Liberty. He would be, at most, a mediocre president. If this were not a wartime election, or I were not in a swing state, I would write in someone. But since it is a wartime election, and I am in a swing state, the reality is that my choices are between Obama (disaster all around) and McCain (disaster except on foreign policy). Sadly, that leaves me voting for McCain. |
| Baldwin/Castle (Independent Green) | Don't know anything about them, and for reasons explained above, don't care. |
| Barr/Root (L) | I like Bob Barr a lot, and if it weren't for the war, might vote for him. But the Libertarians, in reacting as if we are in the wrong for fighting terrorists (they are even against our presence in Afghanistan) have lost my vote, possibly forever, certainly as long as terrorism is a category 1 threat. |
| McKinney/Clemente (Green) | Wouldn't vote for McKinney for dog catcher. |
| Nader/Gonzalez (I) | Wouldn't vote for Nader for dog catcher. |
| My Vote | McCain/Palin (R) |
| Senate | |
| Mark Warner (D) | He wants universal health care, withdrawal from Iraq (victory optional, hard to tell if it's even preferred) and to throw more money at the teachers' unions. To cap it all, he appears to be ardently opposed to home schooling. No thanks. |
| Jim Gilmore (R) | He opposes the bailout, is strong on the 2d amendment, and his positions on issues generally seem mainstream Republican. Sadly, he's also a social conservative. |
| Glenda Parker (Independent Green) | As far as I can tell, her entire campaign boils down to "trains are good." Um, OK, but...? |
| William Redpath (L) | I like his positions on just about everything. "Just about," because the one thing on which he's disastrous is foreign policy. I'm sorry, but there's no way that withdrawing from Iraq will improve our security; there are many ways in which doing so would reduce our security. This is why the Libertarians have lost me on any national office while we are at war; they are simply unable to think clearly through their ideology to real world results. Bleah. |
| My Vote | I don't know. I always vote as if the person I vote for has a chance to win, so that really leaves me unable to vote happily for any of these guys. If I knew the people in the area (hey, I'm new here!), I'd write someone in. I guess the least unappealing generally is Redpath, but his position on the war is a deal breaker. Warner is terrible, and Parker is a cipher at best. I like Gilmore except for the social conservative thing, so I guess I'll vote for Gilmore. But I'm not happy about it. |
| Congress | |
| Judy Feder (D) | An Obama clone, judging by her campaign literature and according to the young lady who came to my door asking for my vote, I am unlikely to agree with her on any policy position. |
| Frank Wolf (R) | A long-time incumbent (which I do not like on principle) who voted for the bailout package (which is a huge strike), he does not get my vote. |
| Neeraj Nigam (I) | Seems to be a bit of an economic populist. But his positions on immigration (legal immigration should be easy, illegal immigration difficult and punished), general issues (like transportation and health care), and the necessity of protecting the Constitution are all very appealing to me. His Iraq position is basically that we shouldn't have gone in, but now that we're there, we have to finish it. |
| My Vote | Nigam (I) |
| Ballot question | |
| There is one ballot question, calling for $77 million in bonds to be issued for county and regional park expansion and maintenance. I'm generally in favor of such park projects, and have been unable to find any good information opposing the ballot question. I can't see any reason to vote against this, so I'll go with my default position on parks and vote for it. | |
What? You think that the company that admitted to reporting Saddam Hussein's propaganda as news for a decade would be above rigging a debate for their chosen candidate?
Oh, and a happy Thanksgiving to all.
]]>
I've been working on math with Connor (more on Steph's blog, where I have lessons as they come up), but am probably not going to be able to do that this week due to Lego League.
Speaking of which, the qualifying tournament for us is next Saturday. We have to finish the robot and programming this week, complete with finding out that our entire strategy is bunk: we can only use one robot, not one robot at a time. That means that our "one dropper, one pusher" plan is out, and since they were built on different platforms, we don't have time to adapt. We'll keep the pusher, which does more missions, and not finish the dropper (which is what Connor and Aidan were responsible for most of). We also have to do our presentation, which is a big deal and which we haven't completed the props for nor practiced yet. It's going to be a very, very busy week.
Not to mention Scouts, with which we are in the middle of Scouting for Food, where we collect canned goods for a local charity. We had a Halloween Hayride that went pretty well. Our November meeting will feature turkey bowling and other games, and should be a lot of fun.
But here's where the other plans get thrown out and life comes into it. I had worked out an arrangement for a contract in North Virginia. This would have been a significant money increase (enough to make up for working under my normal rates for the last 2 years, given time), and a lot of fun. More, it was with the Army, so it would have been helping out the military, a subject on which I'm quite passionate. Unfortunately, the contracting company I was working with utterly messed up when I could start, and the Army couldn't (or wouldn't) adjust its plans for when I could actually start, not even by two days. There's only so much I can do: as a contractor, my reputation for professionalism is half of my ability to make a living. (The rest is my skill set, technical and business both.) I was not going to leave my current client (much as I loathe going in to work by now) with so little notice, and without completing my currently-urgent assignments. So now I'm going to be leaving my job as of November 16, and I don't have a follow-on job. I have a bit of money in the bank, and don't expect to have a problem finding work, but it's annoying on many levels. Perhaps the worst of it is that our living arrangements are very uncertain now, with Christmas approaching. Where we'll be living in January, and whether I'll be traveling between now and then, are both quite up in the air.
Which, I need hardly say, wreaks havoc with the aforementioned activities.
Ah, well, we persevere, and thrive despite adversity.
I hope.
In the meantime, if you see a black, domestic long-hair cat in the Parkside Preserve neighborhood of Waterford, MI, let me know.
When we hadn't lived in Dallas for very long, and had just gotten our first apartment together, Stephanie and I would walk around our apartment complex at night for exercise. This young black tomcat would follow us, deigning to wrestle with us or let us pet him from time to time. Eventually, we took him in, and started posting ads for his owner. When the office staff told us he was a stray that everyone sorta kinda looked after, well, he was ours from then on.
That was 15 years ago, and Merlin was already a year or so old at that point, so it's possible his time was just up, and that he is simply dead. Merlin was a very old cat, and cats sometimes just find a place to hide and die alone when their time comes. I certainly hope that's not the case, and we'll keep looking. If he is dead, I will be — well, words fail me. Merlin was my first cat, ever. (I'm actually a dog person.) In fact, Merlin was also my first pet that was mine, rather than my father's.
Here, kitty kitty kitty.
UPDATE: After 5 days, we found our missing cat. He was at a house some 1000' away, but had gotten lost in the rain. The person who owns the house where Merlin had taken refuge (under their deck) saw our sign and called us, for which we are eternally grateful.
By the way, if you find a stray or strayed adult cat, giving it milk is a bad idea: cow milk is not (despite the popular image) actually good for cats. Though again, we are glad they at least fed Merlin something, because five days would be a long time to go without, and Merlin will hunt, but he's not used to depending on his hunting.
All right. That's it. It's not legal to shoot idiots in the street. It's arguably not even moral. So since these idiots insist on beclowning themselves in public, I propose that we follow suit. Here's the deal: if enough people (say, ten) are seriously interested in, and will commit to, showing up in Nashville, in front of the administration building, on July 2 at 4pm local time, in clown suits and carrying squirt guns, then I and my family will also show up, in clown suits and carrying squirt guns, and we will join together in soaking the front of the administration building.
The madness must stop! The idiots must be opposed! Those who insist on beclowning themselves must face the wrath of clowns!
Who's with me?
(Cross-posted at Eternity Road)
It's actually a part of a piece I've been thinking on for some time: why it is that non-IT staff produce far more projects that work for end users than IT staff can produce.
By the way, I'll be writing over at Eternity Road as well, per Fran Porretto's gracious invitation. I haven't figured out which stuff I do will go where, except that the political stuff will probably go over there, and the IT stuff will probably be here or cross-posted, depending on depth.
Wonder why so many of the news articles you read, or steam over, are lacking essential information or perspective? Wonder no longer. Knowledge and experience of the subject is only a “plus.” Would the AP advertise for a sports reporter for whom knowledge and experience with baseball, basketball, football, soccer, hockey, tennis, and so forth is only a “plus,” rather than essential and primary?So, why should the AP believe that knowledge and experience of intelligence, or medicine, or any other important and technical subject only requires a “plus”?
Maybe because the reporter was schooled in a system where subject matter expertise is not required for a teacher of a hard subject, but the ability to "[d]emonstrate[] an understanding and acceptance of diverse racial, ethnic, cultural, gender, special needs and religious groups" is?
OK, some of those might be obscure if you don't share my musical tastes, so let's try some current pop songs and some very, very well-known songs of the past. List two:
The second list: