Wednesday, July 31, 2002

Hate Organization Alert

According to the July 30, 2002 San Francisco Daily Journal - a lawyer's rag - a federal judge has ruled that the state of Connecticut did not violate the rights of the Boy Scouts when it dropped the BSA from the list of charities that state employes contribute to through a payroll deduction plan. In the grand tradition of liberal tolerance for diversity, State Comptroller Nancy Wayman said, "It just basically states that the state of Connecticut does not, and cannot by law do business with organizations that discriminate." The attorney for the Boy Scouts indicated that they would appeal since, after all, the BSA was being discriminated against on the basis of its viewpoints, beliefs and other such like normally important values to liberals. On the other hand, look around and we see high rates of juvenile delinquincy, high teenage pregancy rates, families falling apart in incredibly high numbers, politicians and business leaders who feel that there is nothing wrong with a little lying and adultery, and these idiots think the Boy Scouts are the problem. [Notice that I got through that list without mentioning "a trusted institution that sheltered men who had an alarmingly high propensity for using their position of trust to have sexual relations with boys."] I say we boycott Connecticut and San Francisco.

Postscript: The San Francisco Daily Journal does not have an internet news site. Here is an article covering the story.
Quick, a Government Program is needed to combat the effects of Interstellar Cosmic Rays on Global Warming, and how did these guys get a grant to study this anyhow?

According to ScienceDaily Magazine some scientists may have an explanation for the anomalous temperature data supporting findings of global warming, which may prove discomforting to supporters of the Kyoto Accords:

Researchers studying global warming have often been confounded by the differences between observed increases in surface-level temperatures and unchanging low-atmosphere temperatures. Because of this discrepancy, some have argued that global warming is unproven, suggesting instead that true warming should show uniformly elevated temperatures from the surface through the atmosphere. Researchers have proposed a theory that changes in cloud cover could help explain the puzzling phenomenon, but none-until now-have come up with an argument that could account for the varying heat profiles.
A study in the July 2002 issue of Journal of Geophysical Research-Space Physics, published by the American Geophysical Union, proposes for the first time that interstellar cosmic rays could be the missing link between the discordant temperatures observed during the last two decades (since recorded satellite records began in 1979). The report, by Fangqun Yu of the State University of New York-Albany, proposes that the rays, tiny charged particles that bombard all planets with varying frequency depending on solar wind intensity, may have height-dependent effects on our planet's cloudiness. Previous research has proposed a link between cosmic rays and cloud cover, has not suggested the altitude dependence of the current study.

I remember the arguments for global warming during the 1980s required evidence that low level atmospheric temperature had increased, which evidence was missing. Then, after the Clinton administration took office, scientists helpfully found ground temperature increases, but no low atmosphere increases. In short, this anomaly has been known for about a decade. Fortunately, it appears that there are scientists still looking at the data.
Ritual Purity Alert

To me it seems that Blogville is basically a right-wing enterprise. Most of the sites that I read are libertarian or conservative. I don't think that I am deliberately steering away from liberal sites, but there doesn't seem to be many out there. Any how via TalkLeft, I eventually linked my way to The Hamster: The Best of the Progressive Web. At the Hamster I found this delightful screed condemning Alan Colmes as being a straw-man and shill for the Man on Hannity and Colmes and for being out-thought and out-classed by Sean Hannity. Amazingly, Alan Colmes - who just may need to get a life - actually responded to the criticism.

A couple of points. First, Colmes does a fine job of providing a liberal counterpoint to Hannity, who is not exactly St. Thomas Aquinas in his ability to do logic in public. Second, if any of the Left's attention is directed to the subject of why they don’t have complete dominance over every show on every network, then that may be strong evidence of the intellectual vacuum that has enveloped the Left since Podhoretz and Kristol became neoconservatives. Third, what a delightfully weird view of the world they have over there at the Hamster, where, for example, the mainstream media like Dan Rather and others, including Alan Colmes, are merely stalking horses for their plutocratic masters and true “progressive” thoughts are forbidden, presumably on pain of FBI repression, from ever being heard outside of some bookstore in Madison, Wisconsin. Check it out.

Tuesday, July 30, 2002

Time to say something nice about the Boss. Bruce Springsteen is getting some good reviews for his latest project, The Rising. According to relapsed catholic Springsteen has taken a surprisingly pro-American stand [for an entertainment guy] on the action in Afghanistan. Personally, I recently purchased [note "purchased," not copied] the Ghost of Tom Joad. I enjoyed the haunting melodies, the clever lyrics, the references to towns in my neck of the woods - the Central Valley - and the fact that the essence of the gritty sun-parched reality of life in the Central Valley - complete with meth labs in abandoned chicken ranches - was captured by a dude from New Jersey.
More criminal law news: the Stayner trial

According to the Fresno Bee:

Cary Stayner suffers from a bundle of mental disorders including pedophilia, voyeurism and compulsive hair pulling, a court-appointed psychiatrist testified this morning in Santa Clara County.
The defense today began constructing its case that Stayner was legally insane when he killed three Yosemite tourists in February 1999. Its first expert witness is Dr. Jose Arturo Silva, a forensic psychiatrist who has spent 21 hours with Stayner and reviewed a two-foot stack of related records.

None of which would seem to go to his ability to distinguish right from wrong.

Monday, July 29, 2002

Gerard Manley Hopkins Alert

"Nominal Catholic"unbillable hours has this reminder:

Sunday was the anniversary of the birth date of woefully underrated poet, Gerard Manley Hopkins, S.J. I suspect that it was a combination of his ability to predict the modernist style, combined with the influence of his religion on his life, that made Hopkins so underrated. Check out some of his poems on Bartleby.

I had the good fortune of being introduced to Hopkins earlier this year, and for no apparent reason I developed a fondness for "In honour of St. Alphonsus Rodriguez" and this final stanza in particular:

Yet, he that hews out mountain, continent,
Earth, all, at last; who, with fine increment
Trickling, veins violets and tall trees makes more
Could crowd career with conquest while there went
Those years and years by of world without event
That in Majorca Alfonso watched the door."

The day after first reading that poem, I heard a program on EWTN where for the first time I heard about St. Alphonsus Rodriguez. After his family died, St. Alphonsus suffered a depression. He became the Hall porter of a Jesuit college. After a time, by applying himself to his duty, he became recognized for his holiness. Apparently, he would treat every knock at the door as if might be Jesus himself knocking.[According to the commentator, he would call out to the person knocking at the door, "Coming, Jesus."] Neat story, nice poem about day to day devotion, and a weird coincidence to learn about St. Alphonsus twice in two days from two independent sources. [One more such coincidence that week and I would have found my vocation as a Hall porter.]
A lawyer's nightmare, but then maybe, just maybe his client was innocent

I think I caught the tail end of this on the O'Reilly Factor tonight. O'Reilly was reading readers comments regarding miscarriages of justice and at least one person thanked O'Reilly for reminding her why she had decided not to go to law school.O'Reilly seemed to be in full throat mode and exhibited a rare lack of interest for subtle the nuances of ethical issues. According to this Fresno Bee article the previous molestation trial for the accused murderer of Samantha Runnion now being second-guessed. According to the Bee:

The attorney who won an acquittal for the man accused of abducting and killing a 5-year-old girl said Monday he was heartbroken when he learned police had arrested his former client for Samantha Runnion's murder.

Since Avila's arrest, Pozza [Avila's former attorney] said, his office has been inundated with calls and he has received threats.

He told King he never asked Avila if he was guilty of molesting the girls, but said he believes his former client was acquitted based on the lack of credible evidence presented at trial, including the girls' testimony.

"At the time, I cannot say whether or not I believed his guilt or innocence," Pozza said. "I am not the finder of fact, so I tried to remove myself from that and basically present the best defense I can for my client. That's what I do for every client."

Samantha's mother, Erin Runnion, spoke with King on Thursday, telling him she held the Riverside jurors responsible for her daughter's death. She was particularly offended that they did not believe the testimony of the 9-year-old girls.

"I blame every juror who let him go," she said. "These are kids. They don't lie about this sort of thing."

I am very happy that I don't do criminal law. I wouldn't want to feel the responsibility that I am sure Mr. Pozza is feeling. It's too pat - and inhuman - to shake off that feeling of responsibility with a nice little sermon about the right of all accused to a defense. It's true, but it doesn't, and shouldn't, make you feel better when something like this tragedy happens. Once upon a time, I had a client who the employer thought was suicidal. I successfully asserted my client's privacy rights so that the psychological examination was limited and the results were limited to whether my client could perform her job duties. Two months later, my client locked herself in her garage with her car runnning. Law is a human enterprise. I don't know what Mr. Pozza might have done if he had believed that Mr. Avilla was a child molester. I suspect, though, that he might have put his thumb on the scales of justice. And, that could ultimately be the worst thing imaginable; for all anyone knows Mr. Avilla really was innocent of that earlier crime.

Postscript: Via TalkLeft comes this Boston Globe Online Opinion column which confirms the point I thought that O'Reilly was making, which was that Mr. Pozza was a virtual accomplice for the Runnion murder by defending Avilla, and reminds us of the hysteria of the 1980s during which innocent people were convicted of ludicrous "ritual abuse" charges. Let's hope that the police caught the right man so that a vicious animal has been taken off the streets. They probably did. Avilla is probably guilty, but "probably guilty" also means "maybe - just maybe - innocent."

Sunday, July 28, 2002

Fresno Weather

Check out the really nifty "Weather Pixie" feature in the lower left-hand corner of the permanent feature section. I am always on the look out for new features to maintain the high quality of this site and the all important reader satisfaction index that keeps this site as the "Most Respected Blog in North-Central Fresno County."

Postscript: Apparently the Weather Pixie's outfit changes with the weather, and it can get up to over 110 degrees here in August. [There, that should get the hit counter moving.] Also, if you link through the Pixie you can get to an international list of blogs and satisfy your curiosity about the weather in Iceland. [FYI: There's also an English language blogger in Hungary with a definite dyspeptic attitude about Americans.]
An Appreciation of Gary Wills

Former seminarian, former writer for National Review, leftist author and acolyte of the Movement, Gary Wills has come in for attack from from various Catholic sites for his recent books, including Why I am a Catholic (link through Relapsed Catholic.) I haven't read the book yet. Maybe someday I will, but until then I am sure that it is thoughtful, scholarly, well-written and completely wrong. Wills has been turning out such books for years, despite some notable successes, including Lincoln at Gettysburg: The Words That Remade America and Inventing America: Jefferson's Declaration of Independence. Wills is a master at taking an oddball insight into a subject that everyone thinks they know, and then arguing very effectively that everyone misunderstands the subject. In Inventing America, for example, Wills argues, and I believe establishes, that Jefferson's Declaration doesn't mean what you think it means because you are not an Eighteenth Century man intellectually inhabiting the Enlightenment world. Jefferson really and truly meant it when he said the "earth belongs in usufruct for the living." [Wills is also a great person to expand your vocabulary. I have him to thank for "reify" and "adumbrate."]

For me, though, one of the books that had the greatest impact was Confessions of a Conservative. Wills' Confessions is a tour de force. Modelled, I realize on mature reflection, on St. Augustine's Confessions, Wills autobiographically traces his life through Catholic boyhood, seminary, National Review and William Buckley and into radical politics. Along the way, Wills justifies his journey by reference to G.K. Chesterton and St. Augustine. The theme of Wills book is that he is the authentic conservative; capitalists who are willing to level a mountain for a parking lot, or who will uproot established communities in the name of efficiency, do not deserve to call themselves, or to be called, conservatives. Only those who embrace the project of conserving traditions, communities and resources can claim the virtues inherent in being "conservative." [I recall Wills applied Augustine's exegesis on the wheat and the weeds parables in the City of God to social dissension during the Vietnam War, which I have always thought was very insightful.]

I probably owe my long-standing interest in St. Augustine, and my having read the Confessions on multiple occasions, to Gary Wills. To a certain extent, what I know about Chestertonian Distributism also comes from Wills. I also have to thank him for helping me to clarify my philosophical positions. When I read his sections about the transformative power of capitalism, I said that sounds great! Where do I sign up? Although I acknowledge that society and the State have a legitimate role in ameliorating the dislocations inherent in progress, the fact is that progress is the teleological end of existence. Although, I have to confess that I don't think that was Will's intended result from his literary enterprise.

A personal note. Please remember to say some prayers for the soul of Marcello Salcido. I had known Mr. Salcido for approximately twenty-five years, initially as the father of my high school friend Jonny Salcido, and then through the magic of "growing up" as a friend, although even in my forties I could never bring myself to call him anything other than "Mister" Salcido. Mr. Salcido worked himself up through the union ranks to a position of power and influence, but in 1996 gave it all up in order to retire and spend time with his grandchildren. I would occasionally see Mr. Salcido walking his grandchildren down the street, and I would stop to compare my children to his grandchildren. I never really had any idea of his prominence as described in this Fresno Bee article:

In Mr. Salcido marched with United Farm Workers co-founder Cesar Chavez many times, and provided food, office space and money whenever strikes or marches were being organized, said Arturo S. Rodriguez, United Farm Worker president.
After Chavez's death in 1993, Mr. Salcido served as an honor guard with actor Martin Sheen and the Rev. Jesse Jackson during a preburial ceremony near Delano.

As a humorless fire-breathing conservative, I respect the fact that I never knew how he mingled with that group of socialists. The last time I saw him was a few months ago, when he graciously had coffee with me to discuss whether I should take a case involving an issue of union politics.

I always thought he'd be around forever.
The defense phase of the Cary Stayner trial will start Monday. Stayner was the brother of Steven Staynor of "I know my name is Steven" fame, who earned his own notoriety by killing a naturalist and three female tourists in Yosemite. Stayner has confessed to the crimes and is staking his case on an insanity plea. It looks like the defense focus will be on insanity issues, but they have lost their main expert witness.
My second post from Bill Cork's Blog. [Albeit, the first, as you read this page.] This post links to Patty Bonds autobiographical description of her conversion to Catholicism. Bonds' story gets attention on one level because she is the sister of James White who has earned a reputation for making it his mission to defend Protestant doctrine against Roman Catholic doctrines. The more important dimension of Bonds' story, though, is how she came to Catholicism after a lifetime in a virulently anti-Catholic environment and despite the web of family and community loyalties that were undermined by her conversion. The power of a commitment that would let someone turn their back on their family is something I don't really understand.[But one that Bill Cork probably does.] Bonds also describes how she learned step-by-step that the (malicious) things she had been taught about Catholicism were untrue. By my calculation, Bonds graduated High School in 1975, which makes her a few years older than me. It is frankly unfathomable to me that the anti-Catholic slanders Bonds says she uncritically accepted were still floating around in the 1970s when she came of age.
Bill Cork's Blog has a post criticizing recent lawsuits designed to insulate students from studying non-Christian religious texts, such as the Koran. He is right, of course. A strong belief requires challenges, or it will blow away the first time some novel thought intrudes. In my experience intellectual challenges reinforce faith. It is a shame, though, that the idea that we are progressively impoverishing our intellectual life wasn't obvious when the first round of this tit-for-tat process began with Christian texts forty years ago.

Friday, July 26, 2002

This is an interesting site: Daubert on the Web The Daubert decision was an attempt to do something that philosophers have had a hard time doing - deciding when something is "science" or just an occult practice. Daubert compounds the challenge by attempting to translate that philosophical project to law. Daubert doesn't get much of a work-out in the business litigation I do; it's mostly found at the frontier end of products liability law.
Everyone can relax now, the San Francisco Superior Court has cut its ties with an organization that undoubtedly has caused much of society's ills.

I saw this article in the San Francisco Daily Journal yesterday, S.F. judges cut links to Boy Scouts / Push to take change statewide because of policy on gays, lesbians which contains this introduction:

San Francisco's judges have become the first in the state to cut ties with the Boy Scouts because of the organization's refusal to admit gays and lesbians. A lawyer who sought the change said Thursday she hoped to take it statewide.

"This is a fundamental part of being a judicial officer . . . avoiding even the appearance of partiality at all times so that every litigant who appears in front of you is treated fairly and equally," said Angela Bradstreet, president of the Bar Association of San Francisco.

I have been watching this issue pop up from time to time over the last six to seven years. Every time it does, I think "Gee, divorce rates are high, children are living in poverty, killer sexually transmitted diseases is a significant health concern, we have had daily revelations of predominately homosexual molestations by priests and now CEOs and accountant have problem with telling the truth, and these idiots think that the Boy Scouts are the problem." My recommendation, for what its worth, let's all boycott San Francisco uhtil they learn up there what is meant by the treasured American values of tolerance and diversity. After all, if we don't exercise tolerance and respect people - such as the Boy Scouts - for their diversity, then the terrorists will have won.

Thursday, July 25, 2002

Cool site of the day, if you like this type of thing

Ursula K. Le Guin's Web Site

Wednesday, July 24, 2002

In Hell all rules are strictly enforced

I think TPB, esq at unbillable hours has set forth a compelling, cogent argument that will eventually surface at some time in some case for abolishing the confessional privilege. TPB's thought experiment starts with the recent federal Second Circuit ruling in Cox v. Miller which held that the Confessional Privilege did not apply to confessions made in Alcoholics Anonymous meetings. According TPB, the Cox court's rational was based on the premise that while AA may be religious, it is not spiritual, and in AA confessions are therapeutic, not spiritual. Yet, according to TPB, a Catholic confession may serve a similar therapeutic function, and as for spirituality, that requires an aesthetic judgment. [Interestingly, the Ninth Circuit has refused to extend the Psychotherapist Privilege to AA meetings.] Some people find great moments of spirituality in listening to Opera, which they find completely missing in attending Mass.

Having reached that level of aesthetic relativity - a relativity that I think is inherent in Supreme Court decisions - TPB then asks whether it is right to or fair to privilege conventional religious forms at the expense of other forms of spirituality. The next step in the process, I believe would be to argue that Consitutional jurisprudence requires a "High Wall of Separation" between Church and State, and that the State can no more privilege a belief in God in a legal system, such as by a Confessional Privilege, than it can keep the words "under God" in the Pledge of Allegiance.

TPB further developed his thesis in this subsequent post. In it TPB makes the argument that direct regulation of religious practices is constitutionally obnoxious, but that rules of general application, such as not massacring Calvinists on December 26 [as if there were enough of them around for a good massacre] can be prohibited.

It is interesting to me that not only is this Constitutional law - Neutral rules of general application may legitimately regulate religious practices - but it is almost a pure expression of the position advocated by Enlightenment Philosopher John Locke in A Letter Concerning Toleration, as part of which Locke argued that the Magistrate had no business in saving souls and therefore should adopt a position of toleration with respect to religious differences. Concerning the issue of annual Calvinist massacres, Locke wrote:

You will say, by this rule, if some congregations should have a mind to sacrifice infants, or (as the primitive Christians were falsely accused) lustfully pollute themselves in promiscuous uncleanness, or practise any other such heinous enormities, is the magistrate obliged to tolerate them, because they are committed in a religious assembly? I answer: No. These things are not lawful in the ordinary course of life, nor in any private house; and therefore neither are they so in the worship of God, or in any religious meeting. But, indeed, if any people congregated upon account of religion should be desirous to sacrifice a calf, I deny that that ought to be prohibited by a law. Meliboeus, whose calf it is, may lawfully kill his calf at home, and burn any part of it that he thinks fit. For no injury is thereby done to any one, no prejudice to another man's goods. And for the same reason he may kill his calf also in a religious meeting. Whether the doing so be well-pleasing to God or no, it is their part to consider that do it.

Ironically, this case - actually involving chickens - was decided by the Supreme Court in the Lukumi decision. So, for Locke, neutral laws could regulate religious practices - no polygamy - but laws directed at religous practice were proscribed - no anti-sacrifice rules. [In the Letter, Locke counselled in favor of toleration to all people of all religious viewpoints, except two - Athiests and Catholics - which different factions of Blogville should find emotionally appealing for different reasons.]

Locke's analysis seem entirely unobjectionable, except when it gets run through the 'religious neutrality' grinder. In the case of confessional privacy, the free exercise of religion requires a variance. Confessional secrecy is not viewed by Catholics as a dispensible option. Under Canon Law, Canon 983:

The sacramental seal is inviolable. Accordingly, it is absolutely wrong for a confessor in any way to betray the penitent, for any reason whatsoever, whether by word or in any other fashion.

Penalties for violating the seal of the confessional ought to seem intimidating: See Canon Law.

Can. 1388 §1 A confessor who directly violates the sacramental seal, incurs a latae sententiae excommunication reserved to the Apostolic See; he who does so only indirectly is to be punished according to the gravity of the offence.

So, there are two ways that a repeal of the Confessional Privilege would infringe on free exercise. It would deter members from participating in the Confessional rite and it would result in law abiding priests being excommunicated. Neither of these results seem particularly in line with the idea that the First Amendment was intended to protect religion from the State, not the other way around.

It seems, though, that this result is almost compelled by currently existing Constitutional principles. No judge is going to give individuals the ability to circumvent various laws - against pot smoking or polygamy, for example - by citing a religious principle. And no judge is going to get in the business of identifying good religious practices - Confession - from bad religious practices - smoking dope.

I think this is where the neutrality project falls apart. John Locke, who did more to form our Constitutional polity than any other philosopher, wrote his Letter in the context of a believing culture. It would have been inconceivable for him to imagine the scrubbing of religious reference from the Government as has been required in America in the name of neutrality. The reason he excluded Athiests from his recommendation of tolerance was that he thought it was obvious that athiests couldn't be trusted, they couldn't swear oaths:

Lastly, those are not at all to be tolerated who deny the being of a God. Promises, covenants, and oaths, which are the bonds of human society, can have no hold upon an atheist. The taking away of God, though but even in thought, dissolves all; besides also, those that by their atheism undermine and destroy all religion, can have no pretence of religion whereupon to challenge the privilege of a toleration.John Locke: A Letter Concerning Toleration

Locke's position here is not mine, obviously, but it does underscore the idea that a toleration of different religious viewpoints was never intended to be transformed into a tool of hostility against religion.

There are several interesting kinds of cultural war happening in the Bible Belt neighborhoods of Blogville. On one front Joshua Claybourn kicked off a war against the cultural wreckers with a post describing the lyrics of the Number One and Number Two songs in America. Mr. Claybourn sets out the lyrics in full to support the thesis that the songs and their composers "[adhere] to a philosophy of lethargy, selfishness and degradation." Before quoting the lyrics, Mr. Claybourn gave due warning that the lyrics would be offensive and were rated "R." He clearly opposes the cultural pollution these songs represent.

In my opinion, Mr. Claybourn scores points against the popular culture. Read the lyrics, and realize that there is some non-trivial part of the population whose view of females would make the Visigoths look like the Board of Directors of NOW. Mr. Claybourn's use of the lyrics seems necessary to establish his thesis, a bowdlerized version would water down the point he wanted to make. [Further, I am kind of appreciative of Mr. Claybourn. I had never been exposed to the lyrics. I think seeing dots or cute words wouldn't have had the same emotional impact as seeing the lyrics in toto. Rest assured that this father of future teenage girls will proscribe Eminem and Nell in his household.]

Mr. Claybourn's use of lyrics kicked off the second - internecine - culture war when he was taken to task by various Christian bloggers for printing the offending lyrics. While I side with Kevin Holtsberry, I admire the fact that there are people who are willing to have standards opposing the long slow trip to the bottom of the cultural cesspool. Those people may be our best hope against the seemingly inevitable social decline.

I have seen this phenomena before. About six years ago, I was defending a sexual harassment case where the female employee claimed that the free and unfettered use of a certain idiom created a hostile environment. The idiom was not necessarily sexual. In our culture, while the term has roots in old Anglo-saxon and implicates sexual congress, we use the idiom to impart a meaning of definiteness or imperative. Hence, the phrase "get those trucks over here" does not refer to anything the trucks are doing, rather the speaker is implying that he has strong feelings about the trucks and their situation. [See what a prude I am. But in this context the exact language is not important, and social norms imply a bowdlerized vernacular.]

Anyhow, I ran the facts of the case in front of a sample group to determine what kind of jurors I might want to select. I assumed that certain older panel members as conservative business people would be defense oriented inasmuch as they could clearly see what a crock the Plaintiff's claim consisted of. Certainly, I felt, they wouldn't countenance this young lady using the legal system to coerce money from another business because of mere incivility.

I was therefore surprised to find that the Plaintiff's strongest supporters were the older conservative Christian business owners who didn't allow foul language to be used in their work place and couldn't understand why anyone else should allow foul language in their workplaces. We decided to settle the case after that.

There is no moral to this story, just an observation about another set of philosophical differences that make our culture such an interesting place, and jury selection about as accurate a science as phrenology.

Monday, July 22, 2002

This is not edifying or intellectual, but it may be inspirational

Showing an ability to ferret out important news like a ravenous ... well, ferret [metaphor engine seems to be shorted tonight] the marsupially named Possumblog offers this visual reminder why we all should be thankful that the Royal Marines are on our side.
Preaching to the Converted Alert

The Minneapolis Star Tribune's Editorial: Church, state, Scalia: Does God bless America? was obviously an attempt to intellectually disembowel the various philosophical positions that Justice Scalia developed in his essay in First Things entitled God’s Justice and Ours. I'm sure that in some places - for example, places where the members of the members of the Sara Jane Olson Legal Defense Fund assemble to smile for the camera as they sip their white wine and discuss the relative unimportance of a middle-aged housewife compared to that of the Movement - this editorial is an absolute killer, ensuring more mindless grins for a picture on a website that can't be copied since, after all, property is theft. Out here in the real world, though, the editorial seems unstudied.

Mark Shea has already taken the editorial for task for its blithely assuming that Catholics are not allowed to exercise reason and judgment. Shea believes that the editorial betrays an essential lack of knowledge of the Catholic tradition.

It also betrays an essential lack knowledge of the basic rules of criticism and of Constitutional law.

First, the StarTrib misconstrued what Scalia was trying to achieve with his First Things article. Scalia was clearly trying to show that the Death Penalty was not inconsistent with traditional Christian philosophy and that it was not inconsistent with the original intent of the Framers. He was emphatically not trying to justify the death penalty under the American constitutional system on the basis of Christian dogma as the editorial implies in this syllogism:

The death penalty was acceptable then, and when the Eighth Amendment was added four years later, so it must be OK now. Besides, Christian teaching upholds the concept, Scalia says, citing St. Paul's epistle to the Romans.

Second, the editorial attacks Justice Scalia's position that the Constitution is enduring, or, as Scalia ironically phrases it, "dead", for the purposes of Constitutional interpretation with this argument:

First, the Constitution evolves not because of formal amendments but because, over time, free people are compelled to meliorate their lives. Slavery and women's disenfranchisement, though allowed at the Constitution's inception, were so contradictory to the nation's founding values that amendments were inevitable. Both were contrary to the Constitution's intent and spirit as far back as 1787. Abolition was only a matter of time. As for the death penalty, the new prohibition against executing the mentally retarded is, we think, additional progress.

"The Constitution evolves not because of any formal amendments." Like what happened when slavery was abolished and women were given the right to vote. [One can well imagine the heads collectively nodding in agreement at the quarterly meeting of the Sara Jane Olson Legal Defense Fund as they smile and sip their white wine.]


Amazingly, the StarTrib is arguing that Scalia is misguided because he doesn't realize that there have changes in the Constitutional polity which occurred "not because of formal amendment" by citing two examples where the text of the Constitution was actually formally amended. Don't they have a spare copy of the Constitution lying around somewhere in Minnesota, or am I mistaken in thinking it was the Thirteenth Amendment and the Nineteenth Amendment that abolished slavery and gave women the right to vote? Do the editors of the StarTrib actually believe that women were given the right to vote, and slavery was abolished, by judicial fiat? Apparently, they did. Do they know better now?

Good arguments can be made for and against Scalia's originalist method of interpretation. Good arguments can be made for and against Scalia's extremely Statist views on religion and authority.

The StarTrib, however, isn't even close to making a good argument, and helps no one by thoughtlessly serving up cliches, and deserves some kind of very special award for this editorial.
Just a suggestion

Check out Mullings: An American Cyber-column By Rich Galen for his take on what it would be like if they covered golf like politics. Then go check out the Secret Decoder Ring for the definitive insider's explanation of obscure golf terminology, including "mashie" and "niblick" and my new personal favorite, the "mashie niblick."

What are you waiting for? Go! Now!

Sunday, July 21, 2002

Speaking of someone who could get some benefit from the redemptive aspect of suffering: SLA Trial Update

I haven't heard anything on the Sacramento SLA trial, and the link to the left hasn't been updated since May, so I decided to poke around Google to see what I could find.

First, this is the official web site of the Sara Jane Olson Legal Defense Fund. A couple of interesting points. For example, you can't blog the site. Try it, and see what I mean. I take it that this group of innocents fear that something untoward might happen if their site was distributed more widely. I don't know what that might be, but look at how happy everyone is in the picture. What are they smiling about? Also, look for the "Serving Time" Cookbook. Doesn't Ms. Olson look positively giddy, the very image of radical soccer-mom chic. There she is on trial for murder because her friends, husband and confederates viewed a harmless middle aged mother as a "bourgeous pig," [See Myrna Opsahl site.] and she has a big smile and is kicking up her heels like she is being featured on a cover of a Junior League cookbook. Why is she smiling?

Second, apparently there was some kind of gag-order in place at some time and there is a new trial date in September according to the non-Bloggable Sara Jane Olson Defense Site.
Somebody offer Ruffini a job now

Solid argument plus scattershot graph to support the contention that African-American support for the Democrat Party is anything but based on rational economics.
Calvin Coolidge: the Cato of Plymouth Notch

Via Possumblog comes this quote ascribed to Calvin Coolidge:

Whether ones traces his Americanism back three centuries to the Mayflower, or three years to steerage, is not half so important as whether his Americanism of today is real and genuine. No matter by what crafts we came here, we are all now in the same boat. --Calvin Coolidge

I don't know if that really is from Coolidge, but it ought to be. It's interesting how the reputations of Coolikdge and Washington have been on the rise since the 1970's. Check out this site if you have any curiosity about the 30th President.
Knights and Barbarians

Via Goliard Blog comes this article: The Seattle Times: Local News: Colleges woo men to shrink gender gap What's interesting beyond the raw numbers, is the fact that college admnistrators don't seem to know whether they should remedy this situation. The article concludes:

But men historically have had the advantage over women in society, said Michael McKeon, dean of admissions at Seattle University, and to give them an advantage in admissions would be harder to justify.

It would create quite an ethical dilemma, he said.

As the The Goliard Blog observed with reference to the Road to Perdition, the nature of boyhood has changed. This is hardly surprising. Traditionally, informal social control mechanisms would be used to channel masculine energy. Rules of conduct, the Boy Scout Oath, the Cowboy Code, Chivalry. But those are so passe now. They are conformist. They have to be taken on faith. One can always find the 'hard case' where the rule shouldn't be applied. They are enforced by shame. But, all that's left once the internal codes enforced by shame and guilt are gone is the outside coercion of law and zero tolerance rules.

There is clearly something going on today with young men. It's something that is happening at the margins among marginal men. It may be an unintended consequence of thirty years of well meaning attempts to clear away irrational, unthinking, historical assumptions. But it appears that one set of unexamined beliefs may have replaced a prior set, and not left us healthier. In that regard, I think Justice Scalia may have said it best in United States v. Virginia et al., 518 U.S. 515 (1996).

"In an odd sort of way, it is precisely VMI's attachment to such old fashioned concepts as manly "honor" that has made it, and the system it represents, the target of those who today succeed in abolishing public single sex education. The record contains a booklet that all first year VMI students (the so called "rats") were required to keep in their possession at all times. Near the end there appears the following period piece, entitled "The Code of a Gentleman":
'Without a strict observance of the fundamental Code of Honor, no man, no matter how `polished,' can be considered a gentleman. The honor of a gentleman demands the inviolability of his word, and the incorruptibility of his principles. He is the descendant of the knight, the crusader; he is the defender of the defenseless and the champion of justice . . . or he is not a Gentleman. .....'
I do not know whether the men of VMI lived by this Code; perhaps not. But it is powerfully impressive that a public institution of higher education still in existence sought to have them do so. I do not think any of us, women included, will be better off for its destruction."

Postscript: Must be something in the air. Discriminations has a post documenting a Santa Monica elementary school principal's decision to ban the game of tag because it injures self-esteem and as lagniappe hooks into the earlier NRO story about a school's ban on dodge ball. It's good to be reminded of these things. Within weeks of reading them, I have the tendency to start thinking of these stories as "urban legend." No one can be that silly, can they?
As if my encyclopedic knowledge of science fiction wasn't enough of a clue

This result from another on-line personality test, via the Goliard Blog.

Take the What High School
Stereotype Are You?
quiz, by Angel.

I scored a couple of points on the Goth scale for paleness, but that's a genetic fluke since I'm a redhead. Gotta go. It's my turn to make a saving throw against petrification.
The Sparrow by Doria Maria Russell and the Problem of Suffering

One of the reasons to read science fiction - apart from not getting any dates in High School - is that it is a genre that allows the author to explore the great issues of the human condition in a fairly direct manner. By confronting their characters with some nonhuman civilization, science fiction authors can often talk about what makes us human, and what it means to be human. It has been this way since Gulliver’s Travels.

Based on an off-hand quote about Jesuits in science fiction, Orrin Judd [who obviously knows his s.f.] recommended the Arthur C. Clarke Award winning book The Sparrow by Doria Maria Russell. The Sparrow appears to be a “first contact”story, which pits different cultures against each other. In this case, the cultures are a group largely composed of Catholic Jesuits who travel to Alpha Centauri lured by the SETI [Search for Extraterrestrial Intelligence] reception of songs from that source. The story is set twenty and sixty years into the future, as it brackets, with due concern for time dilation caused by travel at close to the speed of light, the parties’ experience on the extraterrestrial planet of Rakhat.

Apart from one character, every other character is either a Catholic or a lapsed Catholic. The main character is Father Emilio Sandoz who as a gifted linguist is a logical selection for an expedition to an extraterrestrial planet. Sandoz himself returns maimed by the alien and an emotional wreck because of his stint in an alien brothel, the death of his exploration comrades, and his seemingly pointless murder of an alien child. The circumstances behind Sandoz’ conduct are not cleared up until the last twenty pages.

Normally, in books of this kind, the focus is on the alien culture. The culture, its worldview and limitations are developed in the context of the clash of cultures. C. J. Cherryh - is a master of this form, particularly the Faded Sun Trilogy.. Russell, though, doesn’t appear very interested in the culture of her aliens. The reader does learn some tantalizingly interesting facts - there are two sentient species on the planet, one a predator species, the other its traditional prey - but the implications of these details are not developed, and they seem to be tossed out for shock value.

Russell is a gifted writer. Her characters were interesting and largely sympathetic. She also seemed sympathetic to the Jesuits. But the intent of her book was unclear until the end. I had thought it was about first contact. It wasn’t. In fact, the book was about the meaning of meaningless suffering. This is clear at two places. The first is when a party member simply dies. The agnostic doctor asks why God gets the credit for good things that happen, but not the blame for the end.

The second place is the end of the book when we learn that Sandoz’ spiritual collapse - he clearly blames God for treating him as a cosmic joke - is due to the fact that all of his friends on the exploration team are dead, he has been brutalized, and he has killed an innocent, and to his way of thinking there was no meaning for any of it. The author interview at the end makes it clear that Russell’s intent was to communicate that message. Russell herself is a convert from Catholicism to Judaism and she explains that in selecting Judaism one knows two things: first, being Jewish can get you killed, and, second, God won’t rescue you. She also describes Sandoz’ experience as a kind of holocaust. One may therefore assume that she views suffering as a meaningless experience, explained in some way by a story told by one of her Jesuit characters about a Jewish story that in order to make creation God had to remove himself from that part of the universe, so something other than himself could exist. Sandoz felt abandoned by God on Rakhat because he was.

It is here that I have my criticism of the Sparrow. Russell’s avowed intent was to write a Black Robe among the stars. The Jesuits who suffered in the New World didn’t share Sandoz’ view. They felt that their sufferings had some meaning. There has been some discussion among various blogs about the problem of suffering. As John DaFiesole at Disputations points out the Catholic tradition ascribes evil to an absence of goodness, or an attraction to that which is not good, and that God may be the author of suffering that is intended to punish. The New Gasparian notes the tradition of suffering as causing growth by learning not to be attached to the temporal. Heart, Mind & Strength - Blog Admin Panel emphasizes the disciplinary function of suffering; suffering is like a leg brace. These answers all seem to be in line with the traditional understanding of the significance of suffering set forth in Salvifici Doloris aka The Christian Meaning of Human Suffering. In Savifici Doloris, Pope John Paul II acknowledges suffering as a mystery with dimensions in justice, growth, love and charity. On that last, he writes:

The parable of the Good Samaritan belongs to the Gospel of suffering. For it indicates what the relationship of each of us must be towards our suffering neighbor. We are not allowed to "pass by on the other side" indifferently; we must "stop" beside him. Everyone who stops beside the suffering of another person, whatever form it may take, is a Good Samaritan. This stopping does not mean curiosity but availability.

Religion is important because we are all going to suffer. Even if we never suffer material or psychological deprivation, we suffer when we contemplate our finite existence in this world. Religion offers a meaning for that existence, and thereby lessens that suffering. Father Sandoz’ had a deep tradition to understand his suffering. He could have viewed his suffering as punishment for the sin of pride - heading out four light years, then landing on an alien planet without reconnoitering at the very least implicates the sin of pride, if not stupidity. He could have viewed his suffering as a form of love and sacrifice. He could have looked at it as charity in bringing Christ to an alien planet. However he viewed the experience, viewing himself as abandoned was not part of that tradition. Even if Sandoz reached a point of nihilistic desperation, it seems that he should have known something about this rich understanding of the meaning of suffering.

And that’s the criticism. If Russell wanted to write a book where the main character was a Jesuit, it just seems reasonable for her to acknowledge the philosophy which that group shares. It seems that she was as uninterested in developing the Jesuit culture as she was in developing the Rhakat culture.

Saturday, July 20, 2002

From the Center for the Study of Science Fiction comes these suggestions on How to Be a Good Critiquer. The Center recommends asking the following the questions:

1. What did the author intend to do?
2. How well did he or she do it?
3. (last and least important) Was it a good thing to do?

Which seems to be pretty good advice for any kind of criticism.
I was driving out of Orange County last week when I heard that Samantha Runnion had been abducted by a stranger. Since my four and five year old daughters were in the back seat after a visit to Knott's Berry Farm, the story hit home in a way that can only happen when you have children the same as age as that of the victim. As parents, we all have to be vigilant, and I can only begin to imagine the suffering of the Runnion family, but it is useful to keep in mind that cases like that of Samantha Runnion are extremely rare. Notwithstanding the hysteria about kidnapped children in the 1980's, according to the the Fresno Bee about 200 to 300 stranger abductions of children occur each year. They can occur any time and any place. The last one in Fresno occurred in 1996, and remains unsolved.

Friday, July 19, 2002

Interactive News: The Pledge Decision

I don't think I appreciated the procedural position that the Newdow decision was in when it reached the Ninth Circuit. The defendants had prevailed on a Motion to Dismiss. This is roughly the federal equivalent of a demurrer challenging the legal sufficiency of the complaint. At that stage of the game, there is no discovery, such as depositions where Miss Newdow or her father could be asked questions under oath about legal custody or Miss Newdow’s true feelings about the Pledge. Generally, the allegations of the complaint are taken as true. This explains then why the surprising news that Mom: Girl Has No Problem With Pledge ( was not known to the defendants. I just spoke to the attorney handling the case on behalf of one of the defendants, and he expressed an interest in the news reports describing Mr. Newdow's lack of standing. Accordingly, he is getting a free ticket to How Appealing. [I'm going to be a little cagy here about names since I don't want to be served with a deposition subpena, and I want to leave my partner's friend room for plausible denial.]

Accordingly, because the decision came at an early stage of the litigation, the record will not contain evidentiary material about who had custody or Miss Newdow’s real religious beliefs. This raises the somewhat interesting question of how to get that information before the Court. Anyone have any ideas? Attach the news articles to the Petition for Rehearing and ask for judicial notice? While that may not be playing according to Hoyle, it may be effective.

I think that most of us practitioners made the assumption that this case was later in the litigation process than it really was. That's not surprising since typically judicial opinions, and orders for compliance, come after a trial and judgment. However, in fact, what should have happened was a remand back to the District Court in order to allow discovery to occur. According to my informant, the final paragraph of the Newdow decision seems ambiguous. Did the Newdow panel intend it's decision to be final, or to allow the case to proceed through discovery to trial?

Interesting inside game stuff. At oral argument, the Nixon appointee, Judge Goodwin, appeared to be solidly in favor of defendants' position. However, when the decision came out, the brief that Judge Goodwin wrote appeared to mirror the arguments advanced by Judge Reinhardt at the oral argument. Since Judge Reinhardt is a well-known judicial liberal, and -I assume because of that philosophy - has one of the highest reversal rates, it appears that Judge Reinhardt may have given up the pride of authorship in return for a decision that might not get reversed as readily by an en banc panel. This scenario may also explain some of the statements that have been made by Judges Reinhardt and Goodwin about the process by which the decision was stayed, and why Judge Goodwin may have been willing to grant the stay.

Also interesting, many of the arguments raised in Blogville were made in oral argument. The argument that the Pledge does not "establish" a religion was made. [See William Sulik’s fine essay.] The argument that Ms. Newdow would be compelled to practice a religion by being forced to listen to the words "under God" was countered by a question as to whether there was compelled religious expression every time Miss Newdow was required to reach into her pocket to take out a quarter bearing the slogan"In God We Trust." Also, the thrust of the oral argument was obviously that the words "under God" in the Pledge had a secular meaning. Your humble reporter was pleased to hear that the fact that the Supreme Court begins its sessions with the phrase ”God Save this Honorable Court” was not lost at oral argument.

A final point, following up on Howard Bashman's accurate summary of the en banc process. Apparently, there are approximately twenty four Ninth Circut Judges, the majority of whom are Democrat, and the majority of those are former Clinton appointees. Will that demographic breakdown affect the decision to grant a Petition for Rehearing? I guess it depends on how political those appointees are, and whether they want to see a Republican tide sweep the mid-term elections.

Wednesday, July 17, 2002

Theoblawg Alert

From Bag and Baggage [link to the left there] comes this blawg called News for Christians. Looks like a new cell in the Reformed wing of the Catacombs.
Shameless NRO Rip-off

From the Corner at NRO [links everywhere] comes this posting from the Roman Catholic Diocese of Wheeling-Charleston asking about whether there is any problem with a Witch marrying a Catholic in a Catholic marriage. Read the answer for yourself. I hyperventilated and passed out while reading it, so I am still somewhat unclear about the response. My question, though, is whether this marriage would be automatic grounds for annullment under the Pauline Privilege?
Important Technical Tip - Spread the Word

If you get the 503 Error - Unable to load Template - Message. First, save your Template without making any changes. Second, save your Archive Template without making changes. That seems to fix the problem. [Ask me how I know all of this.] It appears that the Gremlins have been out in force for the last week.
Socrates was not Belgian

From the Office of Research into Parallel Universes ["ORPU"] comes this post from Brothers Judd Blog regarding the well-known psuedo-fact that J.Edgar Hoover was a cross-dresser ["not that there's anything wrong with that."]

Hoover was more familiar to Americans than most presidents. The director of the FBI simply could not have engaged in such activity at the Plaza, with a number of witnesses present, without having it leak out. The cross-dressing allegations were as credible as McCarthy's claim that there were 205 known Communists in the State Department, yet the press widely circulated the claim without further investigation. That Hoover was a cross-dresser is now largely presumed to be fact even by sophisticated people.

However, the article linked through the Brothers Judd pretty clearly shows that the whole story was fabricated as a bit of revenge by one woman with a personal complaint against Hoover. What's interesting here, of course, is the fact that the story has such provenance without historical support. Like the evolution of the claim that Pope Pius XII was "Hitler's Pope," some assertions have a life of their own. [I have spoken to many people who kind of know that the Pius never spoke out against the Nazi's, and who are then surprised to learn about the Papal Encyclical, Mit Brennender Sorge drafted in 1937 in German for Pius XI by the future Pius XII. (See PIUS XII AND THE JEWS.) Likewise, I have yet to hear an explanation for the absence of similar arguments against Roosevelt and Churchill, who did not alert the world to the Holocaust, and who - one would think - had no reason not to do so.]

My theory, for what it is worth, is that it has been a bad half-century for defenders of the establishment. Fifty years of historical revisionism and deconstruction have dismantled one Establisment hero after another. Jefferson owned slaves; Lincoln was a racist; Roosevelt had affairs; Nixon was a crook. It's gotten to the point that those of us who believe in Great Men know that there is no charge that cannot be levelled at one of our heros which we can say with epistemological certainty is not true. So, it's safer to be silent, and to let the revisionists take the field.

Tuesday, July 16, 2002

Disability Law in Action

One of the truisms that I accepted as a callow conservative youth was that governmental intervention causes social involvement to atrophy. Sociologist Robert Putnam has written a book called Bowling Alone which documents the decline of "social capital." As a Rotarian, I can contribute that there has a been a real decline in membership in the traditional service clubs over the last twenty years, which is an awful shame given the contribution those clubs make to their communities and their membership.In that same vein is this well written essay by Sand in the Gears on a little bit of private action providing a 'reasonable accommodation' on an ad hoc basis.

Yet, since I practice Disability Discrimination law, I have to acknowledge the flip side, such as where 42 year olds with controllable diabetes are fired from their jobs of twenty years because some bean counter is afraid that workers compensation premiums will increse if the disease gets out of control on their watch, or where fifty year old men with bad hearts are not given two days in a row to rest so that they can lower their chance of stroke because of over-fastidious attention to rules. People want to do the right thing. Sometimes we create perverse incentives that keep them from doing the right thing. In some cases, disability laws may cause decision-makers to treat human beings like human beings.
Wishing You a Belated Happy Bastille's Day

I was out of town or I would have gotten to this Brothers Judd Blog Bastille Day post.

Saturday, July 13, 2002

Yet another interesting cultural difference between Canada and its militarily powerful southern neighbor which is armed with nuclear weapons and filled with Irish-Catholics

This NATIONAL POST article reports on the annual Orange Order of Toronto's march in celebration of the Protestant victory at the Battle of the Boyne. According to relapsed catholic "Their stupid parade ruined my morning coffee today..."

You know, Penner wished me a happy Battle of the Boyne day. I thought he was joking.
Road to Perdition

I just saw Tom Hank's new movie, The Road to Perdition. I liked it and it seems so did the U.S. Catholic Bishops - Movie Reviews who write:

“Perdition” is an intriguing character study and an involving yarn. Its intense emotion and beauty is matched by Mendes’ evocative visual tapestry. Moody lighting, inspired camera angles and rain-drenched atmospheric sets and locations drop the viewer smack in the middle of Depression-era Chicago where the name Capone is said with reverence.

The historical angle is done right. There is a real look and feel of America in the 1930's. Hanks delivers a solid performance as an essentially amoral hit man who is also a decent family man. The father/son story works. The ending is contrived, but does have an emotional impact.

The Catholic angle has gotten some attention. There is a lot of Catholic imagery - rosaries, nuns, Holy Communion, statues of the Blessed Virgin Mary etc. - but the images are simply a background element, like the recurring rainy weather. There is one oddly gratuitous swipe, though, that may reveal the sentiments of the filmmakers when Hanks warns his son not to go to the Catholic priest, but instead to go to the Methodist minister. That line probably got the biggest chuckle from the audience, in a film that admittedly was not long on humor. It was historically jarring to me. What was Hanks' character, Michael Sullivan, who was an Irish Catholic hitman doing even knowing a Methodist minister? My family had a history of mixed marriages during this period, in Brooklyn and Boston, and the tradition was to divide the kids up at the graveside between the Protestant and Catholic segments of the family. This happened to my Irish-catholic paternal grandfather, who didn't see the two sisters farmed out to the Protestants until he was well into his twenties and met them by accident. [Also, the suggestion that the Catholic priest was in the pocket of the mob itself resonated of some kind of stereotype.] [My mother, on the other hand, remembers a Methodist uncle declaring that there were guns in the cellars of the Catholic church sometime during the 1930's.]

There may have been a truly Catholic core to the movie, though. Near the end of the movie, Hanks has a meeting with his former Mob boss played by Paul Newman. Hanks, who is seeking revenge for the murder of his wife and child, is told by Newman that the only thing he can be sure of is that neither he nor Hanks will be going to Heaven. Hanks then voices a hope that his son may. That struck me as the heart of the movie. Hanks knows he is damned, and so does Newman. There will be no last minute reprieves here. Sins must be atoned, and a practiced lifetime of sin separates one from God.
The Structure of Theological Revolutions

Tenor is an important part of persuasion. I have been dipping into the “reformed” wing of the Catacombs. Mark Byron reads like well-aged Scotch Whiskey - smooth and mellow. Dave Heddle on the other hand reads like a shot of tequila - pure unadulterated Calvinism. Both write elegantly and reason cogently, but Heddle is more likely to get a visceral emotional reaction.

One area that caused this reaction was the recent posts arguing for scriptural support as to the theological doctrine of the Trinity. Mark Shea made the argument that the doctrine of the Trinity cannot be established merely by the text of biblical passages, but instead requires the consideration of traditional concepts in order to give concrete Trinitarian meaning to those texts. A blogville “game of telephone” led Mr. Heddle to write a lengthy essay establishing many, but not all, of the doctrines that make up the orthodox Athanasian doctrine of the Trinity.

For the record, Mr. Heddle’s disquisition on the Trinity is undoubtedly correct. It’s his project and tone that causes my discomfort. For example, Mr. Heddle sets forth separate sections supported by scriptural reference for the idea that there are three persons in the Trinity, that they are equal, and that they one essence. There’s no way to disagree with the orthodoxy of these conclusions or with the argument, but two obvious objections immediately came to mind: (a) if the development of orthodox Trinitarian conclusions was so logical and easy why was there the one-hundred year romance with Arianism; and (b) what about all of those disturbing passages that seemed to support Arianism? A quick google search for those passages turned up this quote:

In defense of this idea, the Arians rejected tradition and pointed to texts like "my Father is greater than I" (Jn 14:28) and "Why do you call me good? No one is good -- except God alone" (Mk 10:18). They also pointed to the form of the Trinity as found in Paul: "God, Jesus Christ, the Holy Spirit." They could come up with plausible explanations for terms and expressions which we Evangelicals thought could only point to Christ's divinity. For example, Arians said the statement, "I and my Father are one" (Jn 10:30) refers to oneness of purpose, not oneness of being. They pointed out that Scripture refers to supernatural created beings as "sons of God" (Job 38:7)

Interestingly, and entirely by coincidence, that passage is from Mark P. Shea: The Lens in My Eye. As a Catholic, it seems to me - and apparently to Mark Shea - that “words are not crystals with fixed, invariant meanings.” Rather, words require construction, and construction is most often supplied by “custom and practice.” [I do contract interpretation. I assure you that such interpretation isn’t done with just a dictionary.]

The point is that Mr. Heddle has offered a version of the Trinity. In my mind, he just doesn’t explain why it’s the right one.

The hole in Mr. Heddle’s approach seems obvious to me as an attorney and a Catholic. It seems obvious to Mr. Shea as a former evangelical. Anyone - even when acting in good faith - can read any text in any way. [My partner Doyle’s quick synopsis of this when applied to law is that “you can buy a lot of creativity at $250 per hour."] What is required in order to develop a confidence that a given textual construction has merit is a reference source outside of the text. [For example, if Jesus recited the Nicene Creed during the Sermon on the Mount, one would still have to determine what He meant by some nontextual source.] Why isn’t that obvious to Mr. Heddle as well, who is clearly very intelligent and well-read?

The answer I suggest is that Mr. Heddle is doing “normal science.”

In 1962, Thomas Kuhn’s very influential book, The Structure of Scientific Revolutions” was published. Kuhn proposed a model for how changes in scientific thought actually occurred. On the way to popularizing the word “paradigm,” a word we can’t get away from, Kuhn proposed that science was typically done under a shared “paradigm” among scientists in a given discipline. The paradigm was, among other things, the shared assumptions that the scientists made: Kuhn wrote:

In this essay, ‘normal science’ means research firmly based upon one or more past scientific achievements, achievements that some particular scientific community acknowledge for a time as supplying the foundation for its further practice.” [SSR p. 10.]

Normal science involves developing the rules and patterns permitted by the paradigm according to the logic of the paradigm. Most science is ‘normal science’ which Kuhn described as “puzzle solving.”

Scientific revolutions happen when the paradigm can’t explain observational anomalies. When anomalies preponderate, new paradigms may replace the older one. Einstein’s theories of relativity, for example, modified Newtonian physics.

Kuhn’s great achievement was to show that scientific revolutions are not obvious or logical. They are often resolved because of personal relationships and loyalties, or because of non-scientific beliefs.

Mr. Heddle is doing ‘normal science.’ He has a paradigm in place, and is involved in solving the puzzles that it offers. The paradigm appears to include the orthodox position on the Trinity, which was itself hammered out only after a major debate about whether there should be a major paradigm shift. The problem is that his account of analysis doesn’t explain how he got to that paradigm in the first place. In this regard, Kuhn had this interesting observation about the scientific attitude:

Historians of science often encounter this blindness in a particularly striking form. The group of students who come to them from the sciences is very often the most rewarding group they teach. But it is also usually the most frustrating at the start. Because science students “know the right answers,” it is particularly difficult to make them analyze an older science in its own terms.”

Please understand that I am not criticizing Mr. Heddle’s intelligence or good faith. Normal science works within the parameters of normal science. I am just trying to understand, whether the biblical literalist tradition acknowledges the inherent vagueness of language, and, if it does, how does it handle the resulting issues.

Friday, July 12, 2002

They laughed when I sat down to play

According to Bag and Baggage and How Appealing, my permalinks aren't working. Apparently it's system wide as suggested by this post at Oh, and I guess you can read the posts on teen sexuality while you're there. [Also It's been about 3 hours since I "published" my last post and they still haven't shown up on the site. Oh, well, it's all free.]
Six Degrees of Separation

Via How Appealing is this article which suggests that there was either no "case or controversy" with respect to the Ninth Circuit's Pledge decision, or that Mr. Newdom - the driving force behind the case - doesn't have legal custody of the plaintiff and so may lack standing to pursue the case.

In one of those weird six-degrees-of-separation moments, it turns out that I know the attorney for the school districtin the Pledge case. He and my partner Doyle were up in the Sierras last weekend on their annual "Jack Straw" camping trip. [Hmm, I wasn't invited this year. In fact, I haven't been invited since the year I got lost up there, and spent the day traveling the back roads on the San Joaquin River watershed.] Apparently there was much ribbing of him about losing the case that no one could lose. [The gentleman is in fact a superior attorney having, among other things, prevailed in a "hot pursuit" case before the United States Supreme Court a few years back.]

Initially, it seems strange that this information surfaces only now. I wonder if it's in the record that the Ninth Circuit can review. On the other hand, it is possible that no depositions were taken at all since it would seem that there would not be a great deal of factual issues to argue about. I plan to talk to the attorney in a few weeks to find out his perspective on the case. Hindsight is twenty-twenty, as they say, but this is a reminder of the truth of Crossman's Fourth Axiom: "Always challenge the obvious."

By the way welcome to those of you coming in from How Appealing. My awe of that site is boundless. It's one thing to take notice of decisions in the Federal Courts of Appeal, but to pick up on published decisions in California's Fifth District Court of Appeal before I do suggests a spooky, almost inhuman, attention to detail. I know this is probably wrong, but the mental image I have formed of Mr. Bashman is of a person permanently wired into his Internet Service Provider like Pilot on the SciFi Channel's Farscape. But that's probably wrong.

Also, I appreciate his complement that this sight is "interesting." I assume, though, that Mr. Bashman was being polite and really meant something like "unfocused topic selection" or "undisciplined content format." Just wait for my post discussing biblical exegesis through the lens of Thomas Kuhn's The Structure of Scientific Revolutions.

Thursday, July 11, 2002

I'm cancelling my subscription to the Fresno Bee

How Appealing has done it again by reporting on another decision in this hotbed of legal activity:

"...a federal district judge in Fresno, California has refused to dismiss the defamation suit that Gary Condit's wife filed against The National Enquirer, the AP reports".

Note that How Appealing had the story yesterday. It appeared in the Fresno Bee today. Print is dead.

But did he get this story?

The family of a 78-year-old man run over and killed by a garbage truck a year ago has settled a wrongful-death lawsuit against the city of Fresno for $1.95 million.

According to the San Francisco Daily Journal, the 78 year old victim was walking outside of a Fresno apartment complex when a city-owned garbage truck backed out of driveway and ran into him. The Daily Journal headline says "Unusually large win for MoFo Partner." [Despite what you may think, "MoFo" is not an insult in this context; it's slang for "Morrison and Foerster."] "Unusually large" is an understatement. It's awful that this man died, but typically wrongful death settlements are based on economic losses such as lost wages, as well as care, comfort and society. Penner - the Personal Injury guy here - says in that callous way that personal injury guys have that the decedent was past his life expectancy and work life expectancy, and it's kind of difficult to see how the numbers on this settlement were crunched.
Cool Site of the Day, if you like this kind of thing, and if you don't, I'm still posting it so I can find it later.

The Vanguard Science Fiction Report

Wednesday, July 10, 2002

One Fine Rant

Sometimes a man just gets fed up with this namby-pamby PoMo world and has to set things straight. Today is that day for Orrin Judd of the Brothers Judd Blog:

You see, at the Times, populism means getting together for group Sex in the City viewing parties and talking to all the real folks who drive your cabs or cut your lawn in the Hamptons and having a French impressionist ballet poster on your wall, just like all your friends have. But out here in America we watch NASCAR, wrestling, Baywatch, and baseball. We cut our own lawns. We drink canned beer, not wine. We have spouses and kids. We like soccer because even the girls and the spastic boys can participate, but we find the notion of grown men playing it to be troublesome. We think Jerry Lee Lewis was a rambunctious genius and Woody Allen is nothing more than an unfunny incestuous pedophile. We think O.J. did it. We think Ted Kennedy did it. We think Clinton is a criminal. We like Jesse Helms and John Ashcroft, but Barney Frank and Janet Reno scare us. We don't think our moms are descended from monkeys. We think drugs should be illegal. We're glad Columbus found America. We'd bomb Hiroshima all over again if we had to. We think Vietnam was a noble cause and that we should have stayed to finish what the liberals started. We think Reagan won the Cold War and Gorbachev lost. ...

I went through Mr. Judd's list going check, check, big check, uh, not quite on the no-evolution thing, and check's for the rest. That's not surprising though, being here in Fresno, California. You know, a few years back the California legislature was talking about turning California into three new states named Northern California, Southern California and Western Oklahoma. When you look at the map of California, everything more than 10 miles from the coast is part of that third state.
Native Son Alert

This article by native Fresnan Victor Davis has been getting a fair amount of favorable comments.

The article probably doesn't need more publicity, but because of this site's hard-earned position as the most respected blog in all of north-central Fresno County, we at Lex Communis feel it is our civic obligation to report on anything related to Fresno that does not involve corruption, silliness or a murder, which is what usually gets Fresno into national news coverage.
TheoBlawg Alert

I just made that up. I am totally getting into this internet rap.

Theoblawgs are blogs written by lawyers with a religious edge.The Culture Curve is a "Christian" blog written by lawyer David French with essay sized posts discussing the interplay between law and society. [By the way, when did the term "Christian" stop including Catholics, Episcopalians and other denominations? That's a rhetorical question; I don't expect answers containing historical or theological explanations, such as "1517" or "1536" or even - for you bomb-throwing radicals - "1563". ]

Anyhow this post here includes Mr. French's view on the Pledge decision and its possible impact on society as a moment when it becomes clear that there is a segment of society which has its own Jacobin agenda.

Tuesday, July 09, 2002

Interesting site via Libertarian Samizdata. The Church of England's Official "Church's View" on different contemporary issues. The site in some parts takes some nice mainstream middle-of-the-road positions. The problem is that taking positions on "hunting rights" and the "value added tax" makes the Church of England seem less transcendent, and more mired in the Earthly City. As Libertarian Samizdata puts it:

You can't have it both ways. Only by completely overturning what Christianity has meant for the best part of two thousand years, as the Church of England seems now to be doing by turning Christianity from a religion into a political sect, can you possibly believe that there's no argument here.

To me, it seems that some of the positions taken by the Church of England have the same lasting provenance as the slogan "Free Silver: sixteen to one."
Basically you qualify for the "Diversity Lottery" so long as you're not English

It has been pointed out that the guy who went "postal" at LAX was here won a visa in the "diversity lottery" which hands out visas to improve the "diversity" of the immigrant population. Rich Galen at Mullings [over to the left there} has a link to the law that lists what countries qualify for the "diversity lottery" [I just can't stop myself from putting "diversity" in quotes.] As he notes, the countries that qualify are kind of surprising. Saudi Aribia, for example, qualifies. But so does Ireland, including the Northern part. [Didn't we get enough of those people two centuries - the Twentieth and the Nineteenth - ago, and look at how well that worked out.] Oddly, it seems that really only one country doesn't make the "diversity" grade -

DV-2003 Instructions European countries not qualified for this year's diversity program: GREAT BRITAIN. GREAT BRITAIN (UNITED KINGDOM) includes the following dependent areas: ANGUILLA, BERMUDA, BRITISH VIRGIN ISLANDS, CAYMAN ISLANDS, FALKLAND ISLANDS, GIBRALTAR, MONTSERRAT, PITCAIRN, ST. HELENA, TURKS AND CAICOS ISLANDS. Note that for purposes of the diversity program only, Northern Ireland is treated separately; Northern Ireland does qualify and is listed among the qualifying areas.)

I hadn't realized that we had a glut of English speaking immigrants flooding our shores.
Harassment law chills free speech - 07/09/02 is an interesting discussion of the interplay between the First Amendment and Sexual Harassment laws. Apparently:

The Michigan Court of Appeals recently heard arguments to determine whether Michigan's sexual harassment law violates the First Amendment. The law fails the constitutional test in a number of respects.

Good luck to Michigan. In California the issue has been decided. (See Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 138, 87 Cal.Rptr.2d 132, 980 P.2d 846 [injunction prohibiting derogatory racial epithets in the workplace is not an unconstitutional prior restrain on speech, "because the order was issued only after the jury determined that defendants had engaged in employment discrimination, and the order simply precluded defendants from continuing their unlawful activity"].)

I practice plaintiff's sexual harassment law. Honestly, there really is an interest in rationalizing the workplace. There is simply no need for racist or sexist speech in a well-functioning workplace, and, in truth, such speech is the "chinese water torture" where small insults on a daily basis can have large effects. But speech alone is never the problem. The real cases - ones I might be interested in taking - involve actual injury, and the words spoken in the workplace iexplain for the motivation behind the conduct leading to the adverse employment action.

Speech in the workplace may be restricted. I know of some companies that prohibit any non-business related discussions. There are no sexual harassment cases based on repeating jokes from Seinfield episodes because no one talks about Seinfield. That's weird and inhuman, but probably permissible since it's not the government regulating the speech. However, in sexual harassment cases, it is the government that is penalizing certain kinds of speech, and that is disturbing. I reckon that I would find it harassing to have to listen to a vegan green-peacer talk trash-talk the free market on a daily basis, but would I ever have a chance of getting an injunction? Absolutely not, because the government can't be in the position of criminalizing political, theological or philosophical ideas in light of the First Amendment. That, though, is exactly what the government is doing in the area of harassment laws, and, frankly, the silence of the usual First Amendment absolutists is noteworthy.

Monday, July 08, 2002

Will Link for Beer

OK. First, the Janis Ian article comes via Ernie the Attorney. [The dude appears to be a copyright lawyer, and the last thing I want is to get into a deep-linking fracas on Bourbon Street.] He was nice enough to post something about this humble site.

Second, the Ernie the Attorney link led to Bag and Baggage which is something like lawblog central over there, and maybe due to the three hour time difference, had a link and a post to this site before the sun went over the yard arm [and the sun goes over the yard arm pretty early in these parts.]

Bottom line: No more making up legal authorities here at Lex Communis.

Third, people sure seem to like the 'contact sport' aspect of writing; thanks to nihil obstat, this site is now listed in A Catholic Blog for Lovers's Summa Theoblogica.

Thanks for helping this site to become a place where the profane meets the sublime. I remain interested in reasoning, and in understanding the way that people think, whether the subject is law, philosophy or religion. Since I have a strong interest in the written word, I welcome contributions pointing out where my reading is weak or where there is a better source of information or thought. Hey, in 4,500 years of civilization, someone somewhere has to have a better read on things than your poor correspondent.

I only read Judicial Opinions for the articles

Lawblog Bag and Baggage has this informative take on a recent California decision:

According to the California Court of Appeals, Fourth District, Division Two, topless dancers at a sports bar where alcohol was served who touched and fondled their bare breasts during dances were not engaged in constitutionally "expressive" speech. (Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Board of California, June 26, 2002,)

Beyond the prurient and salacious facts, it should be interesting to find out how the Fourth distinguished contrary Supreme Court precedent on this very subject. [I think it is contrary authority because I remember a memorable Scalia quote about 60,000 "fully consenting" Hoosiers assembled in the Hoosier dome not constituting "expressive speech" and (a) that was an image that scarred me for life and (b) Scalia doesn't write that way except in dissents.]

[Sidenote: OK, I checked it out. It was Barnes v. Glen Theatre, Inc.111 S.Ct. 2456 (U.S.Ind.,1991) and Scalia was concurring in the opinion that found that nude dancing was not expressive speech. So, I wonder why this California decision got published.]
Hah, as I suspected, Penner is part of a forward disinformation and sabotage unit


Sunday, July 07, 2002

I find this article to be scientifically interesting with possibly profound legal ramifications in the area of HMO coverage, and that is all I am going to say about it.

Yahoo! News

Augustine and the Hard-Wired Heart

There has been a ping-pong, interdenominational discussion about predestination between Mark Shea, David Heddle and Mark Byron. The subject of “Double Predestination” has come up and Mark Byron neatly summarizes the Calvinist position as follows: God knows everything. God is all powerful. God could save everyone, but he hasn’t. Therefore, God must predestine everyone either to Heaven or Hell. This is what is known as the doctrine of Double Predestination. [Just to be clear, the Catholic Church rejects this doctrine, and on good and sufficient grounds concludes that “God predestines no one to go to hell.” [Catechism, para. 1037.]

In no way am I going to get involved in a debate on predestination. Admittedly, my parochial belief in free will inclines me intellectually and emotionally in the direction of the Catechism, but this is a debate that will never be solved because it involves a problem of prioritizing assumptions about the nature of God: Is God’s power the significant factor of analysis, or is His love the key to answering the question?

Frankly, it was Mark Byron’s observation about human nature that caught my eye. Mr. Byron writes:

God created an universe that includes sin. Since we are not hard-wired to love God, we are free to not love Him unless He softens our hearts. We may choose not to love God, but He gave people the option not to. Sin didn't sneak up from out of nowhere; it is part of the universe.

The view that “we are not hard-wired to love God....” is an interesting empirical assumption. I believe it is a part of Calvinist orthodoxy. But where did it come from? St. Augustine certainly is one of the wellsprings of the doctrine of Double Predestination. He is unique for being virtually the only Church Father in either the Eastern or Western traditions to hold that God condemned people to hell without considering their merits (or rather their demerits.)
But, St. Augustine wouldn’t agree with the proposition that man is not hard wired to love God. In fact, he had a position quite to the contrary. In Book 1, Chapter 1 of The Confessions, St. Augustine writes:

And man desires to praise thee, for he is a part of thy creation; he bears his mortality about with him and carries the evidence of his sin and the proof that thou dost resist the proud. Still he desires to praise thee, this man who is only a small part of thy creation. Thou hast prompted him, that he should delight to praise thee, for thou hast made us for thyself and restless is our heart until it comes to rest in thee.(emphasis added)

Augustine’s view, based on his own experience, was that man was involved in a never-ending search for God because God made man that way. The Confessions is Augustine’s account of that experience. Elsewhere, Augustine wrote For it is even as thou hast ordained: that every inordinate affection brings on its own punishment. My preferred translation is “For you have imposed order, and so it is that the punishment of every disordered mind is its own disorder.” I think St. Augustine has nailed human psychology; I suspect most people would agree that they have felt drawn to God, even as they have rebelled against His order and suffered as a result. [Consider alcoholism and twelve-step programs, for example.]

In short, in the midst of St. Augustine’s writings - which expressly contain a doctrine that the great mass of humanity is damned without regard to conduct - is a germ of a notion that man is hard-wired to seek God. It is of some interest that recent studies of neurology seem to confirm Augustine’s psychological view that in fact man is hard-wired to seek God.(See GOD & THE BRAIN.) Although some might think this research tends to provides aid and comfort to the atheists, it may actually show the mechanism by which God has so ordained the world that we are “restless until we find rest in thee.” I suspect that this conflict between St. Augustine’s view on human psychology and his view on double predestination played some role in the Catholic Church’s subsequent rejection of the extreme position on predestination.

My second order questions then becomes, why is it important in the Calvinist view that mankind be actively hostile to God, and does it make any different to that philosophy if it turns out - scientifically or philosophically - not to be innately hostile to God’s grace?
Who links to me?