Alterman: Putzy is as putzy does.

Eric Alterman has a book in the market which argues for the non-existence of liberal bias in the media. Although the argument about liberal bias tends to turn into point-counterpoint examples based upon specific instances of bias, I think the existence of mainstream liberal bias can be demonstrated empirically by the explosive growth of conservative talk radio in the 1980's. As indicate two posts down, economic theory would argue that such growth is persuasive evidence of an unmet demand for conservative perspective in media. [Likewise, the fact that the blog phenomena is largely conservative is further evidence that liberals get fed elsewhere, and that elsewhere simply has to be the mainstream media.]

Alterman's thesis may be arguable, but some of his recent performances seemed pretty childish. Last week NRO provided a forum for a debate on Alterman's theory. I initially read the debate with some interest. If Alterman has an argument, I would like to hear it.

The "debate," however, rapidly proved disappointing with Alterman appearing to play the role of smirking court jester in order to run up his book sales. David Frum's synopsis accurately summarizes the "debate:"

I am sure I am not the only reader who thought that Brent Bozell wiped the floor with Eric Alterman in last week’s three-round NRO debate over media bias. In fact, Alterman’s argument was so amazingly feeble that it leads one to question why he bothered with it at all. To sum up the six posts:

1) Alterman praises his own book and then quotes a couple of conservatives denying that they think liberal media bias is real or important.

2) Bozell points out that there is abundant empirical evidence of bias and presents a couple of damning examples.

3) Alterman praises himself some more and then accuses Bozell of prejudice against homosexuals.

4) Bozell presents more empirical evidence of media bias.

5) Alterman at last offers one solitary concrete argument for his contention that conservatives exercise immense media power: In October 2001, ABC News President David Westin told a Columbia Journalism School class that he had “no opinion” whether the Pentagon was a legitimate target for attack by America’s enemies. Many people objected to this remark, and Westin apologized. Alterman says he found this "capitulation" "dispiriting."

6) Bozell refrained from scoring the obvious debater’s point here: “Do you, Eric Alterman, truly mean to concede that it is ‘conservative’ to be anti-terrorist and ‘liberal’ to be agnostic about terrorism? Maybe you and Anne Coulter have more in common than you think.” Instead, Bozell calmly concluded that he had offered evidence to prove his point and Alterman had offered none. Game, set, and match to Bozell - and a pretty convincing demonstration to those of us who have not yet read Alterman’s book that we need not bother.

It turns out that my feeling that Alterman was treating NRO, NRO's readers and Bozell with sneering contempt was justified. In his column which takes a Salon columnist, Jack Shafer, to task, Alterman writes:

I suppose I’m just asking for more trouble here, but Slate press critic Jack Shafer gives no evidence of having done so. Here, he attacks my work on the basis of just 1,500 words I used to make fun of Brent Bozell in National Review Online — ignoring the more than 158,000 words in the rest of the book where these things are discussed with a bit more nuance and detail.

That is an amazing statement. I have debated. I have tried cases to judges and juries. I have never set out to make fun of an adversary. The idea is always to address issues, not demean the adversary. You can't elevate yourself by tearing the other person down. The fact that Alterman believes that a legitimate object of debate is to "make fun" of someone says something about the way that he was mentored in his craft.

I take it that the invitation extended to him by NRO was not a gag. I take it that if Alterman had said anything interesting in his 1,500, he might have notched up a few sales. Instead he chose to tweak noses and act like an immature seventh grader. He didn't demean Bozell; he demeaned himself. Moreover, the unwillingness to come to grips with his adversary - to "clash" in debate parlance - is strongly indicative that he was afraid that he would lose if he had treated the proceedings as a serious affair. In short, Alterman comes off from this exchange as craven.

The OmbudsGod, who is no slouch at history, sets the record straight on the French debt to America, and vice versa.

The Market Place of Ideas does not respect counterfeits and knock-offs

Here is a
New York Times article on "Liberal Radio Is Planned by Rich Group of Democrats." Hannity & Colmes had Gloria Allred on arguing that a Liberal Radio Network is necessary because of the refusal by someone to allow Liberal Talk Shows an even break. The counterpoint that the Liberals have a radio network, NPR, and its publicly funded was ignored but its a pretty reasonable point.

Nobel Prize Winner George Stigler once argued that since media reflects popular demand, if the media was liberal, then that showed the overwhelming demand for liberal programming. As a libertarian, I couldn't argue with the free-market reasoning underlying this proposition, although it suggested a much more liberal culture than I thought existed. When Rush Limbaugh and others took off it showed that there was a pent up demand for conservative media which was not being supplied.

The suggestion here is that NPR will defeat any attempt to create a liberal talk show option. If I want to hear about "Haitian Aids Activists teach Mozart to Inner City Students" I - and everyone else - can turn on NPR. If I want to get my fix on ideological stories showing that we live in a racist society, such as occurred last week with an incredibly lengthy story that was on earlier this week about a minor, unimportant racist psuedo-religion which I had to turn off because I didn't want to expose my children to racist language, I can always dial in NPR. This means that the problem is not as indicated in this paragraph from the story:

The failure of Mr. Hightower's show supported the notion of many in radio that liberal hosts do not have what it takes to become successful and entertaining hosts: the fire-and-brimstone manner and a ready-made audience alienated by the mainstream news media it perceives to be full of liberal bias.

The problem is not that Hightower was competing with Limbaugh; the problem was that he was competing with NPR, and KVPR, and ABC, and the Today Show, and the New York Times, and so on.

More Anti-War Pro-Dictatorship Protest News
I am obviously off the Spartacist League listserv. I had no idea that the local protest was part of a world-wide hive-like display by the "progressives." Jeane D'arc at the gauchista-blog Body and Soul found the whole thing existentially exhilerating and life-affirming:

If you want something to feel good about this morning, run your cursor over the front pages around the world, and check out these numbers:

500,000 - New York, United States
100,000 - Seattle, United States
30,000 - Los Angeles, United States
3,000 - Chicago, United States.

Based on D'arc's site, it appears that Fresno's 1,500 protesters were three times those that showed up in Prague. Which shows you what 50 years of actual experience with "liberals in a hurry" can do.

You have to wonder what the heck there is for a gauchista to feel good about. Bad spelling? A chance to display signs that have the same currency as the playing of the Horst Wessel song? Sententious moral posturing? Not protesting the maintenance of Sadam in power for the last 12 years while he perfected WMD on human experimental subjects? Check out Right-Thinking from the Left Coast for photos from the San Francisco Anti-War Pro-Dictatorship Protest. The intrepid Anna has photos from the Washington DC protest.

It looks like Fresno had more participants at the Eco-Terrorism Summit.

Update: D'arc is in for a let-down. Protest organizers invariably and dramatically overestimate their turn-out. A good rule of thumb seems to be to divide the official number by ten.

Local News

Its been a goofy week in California's version of Western Oklahoma.

Local Politics

In Louisiana, it is said, the only way that the party's selection can lose an election is to be caught in bed with a dead girl or a live boy.[fn.1] In Fresno, apparently two prostitution solicitations arrests will get the same result. Molly has largely staked out the Samuelian story[fn.2] - which involves the Fresno assemblyman who was recently arrested for loitering with intent for a second time. The first time was prior to the 2002 election. [Disclaimer: I voted for the other guy because I am tired of young punk legislative aids without an ounce of experience in the marketplace making decisions about what I should pay in taxes.]

Anyhow last week, various Republican leaders called for Samuelian's resignation. At that point I suspected that the truth might be that in the small circle of those who really count, Samuelian might not be well-loved among his peers. Here's the Fresno Bee article proving that insight.

It also proves Bradley's Second Rule of Engagement: "You can be vicious, or you can be stupid, but you can't be both at the same time."

Local Pro-Sadam Politics

Fresno also hosted its largest Anti-War Pro-Dictatorship demonstration since the Viet Nam War. The Bee article says that 1500 people urged the maintenance of Sadam's brutal dictatorship in Iraq. The article actually says a lot about my thesis that an anti-American tradition has become institutionalized in a discrete portion of the population. The people who showed up are not new converts to "peace in our time." They are the invariable opponents of American action in support of American interests. [ well, at least if such actions occur during Republican administrations; these people were noticeably silent during the various displays of martial vigor in which Clinton would periodically engage when impeachment was in the wind.]

When I say the "same people," I mean the same people. If you read the article you will see that Vincent Lavery is identified as a spokesman. [You may remember Lavery for his organization that brought Catholic and Protestant children to America to promote understanding, or from the movie about the organization; I remember him as a High School substitute teacher.] For as long as I can remember, Lavery has routinely been the sacrificial lamb for the far left in various runs for public office. I also have a vague recollection of reading a letter to the editor in which Lavery was laudatory of Castro's regime in Cuba for all the usual reasons.

Local Pro-Terror Politics

Fresno State hosted a conference which advocated terror as a legitimate means of political action. According to the Bee:

Fresno State's Thursday night session on revolutionary environmentalism featured speakers' calls for radical, direct action, including setting free captive animals and burning down corporate headquarters.

Speakers advocated violence. Again, according to the Bee:

Speaker Craig Rosebaugh, former spokesman for Earth Liberation Front, linked abuse and killing of animals to the deaths of 500,000 Iraqi children, which he attributed to American sanctions, since the Persian Gulf War. What connects the killing of animals and the deaths of children, he said, is the need for compassion.

When he freed caged animals, Rosebaugh said, "I walked in the footsteps of Gandhi."

Rosebaugh said the Earth Liberation Front's members will stop breaking laws, "but only if they achieve their goals." He commended $45 million in damage caused by ELF actions against "corporations that don't care."

Campus police and California Highway Patrol officers stood guard outside as speakers won applause from the audience.

Ok, First Amendment fans, what is the difference between this speech and the Nurmberg anti-abortion site? [See this post for a discussion of Planned Parenthood v. ACLA.] You get a failing grade if your answer is in any way based on the relative merits of the speaker's position or on the content of the speech.

As I predicted in an earlier post, the agricultural sector was not amused by Fresno State's involvement in this circus. The Bee relates comments from local ranchers, including John Harris, whose Harris Ranches is a client, expressing disgust with the proceedings and the refusal of the "conference" to allow agricultural intersts to have any role in the proceedings. According to the Bee:

Wood cited the agricultural and business communities' longtime support for Fresno State, and said, "Many supporters are reconsidering."

"This sore will take a long time to heal," Harris said

Good, I hope the Bulldog Boosters start paying attention to what they are funding.

Finally, as I was driving to court on Friday I heard part of a show on our local talk radio station, KMJ, where the host was playing excerpts from a speech where one of the organizers of the Fresno State conference was describing the correct way to make a "molotov cocktail" out of a plastic jug. I heard it. That's what he was saying. He also said that it was useful. Of course, he caveated the remark with the usual statement to the effect that he wasn't really making any suggestion that anyone really use this information.

Again, I ask, what is the difference between the Nuremberg site and this conference?

footnotes

1. That's actually a line of dialogue from The Badge, which I saw last night. The issue in the Badge focused on the possibility that the Governor had done both at the same time. I agree with the the review I have linked to, the movie was predictable but entertaining. On a four point scale, I'd give it 2 1/2.

2. She is also becoming a magnet for that segment of the blog population with an interest in (a) inflatable dolls (if you know what I mean) and (b) naked college coed symphony orchestras. I suspect that her site is going to go into the "odd and disturbing google hits" hall of fame.

ibidem has an article about the Pope's meeting with Tarik Aziz. The article points out that Aziz is a Chaldean Christian, which clears up some confusion I was experiencing in telling Penner a story about an old friend of mine.

I have a friend from high school and college named Armen George. Armen is part Iraqi Christian and part Armenian. His father was dispatched by the Iraqi government in the late 50s to the University of California Davis to learn agriculture, where, in 1959, Armen was born, and thus became an American citizens by that accident of natal geography. Shortly thereafter, the family returned to Iraq. The story I heard back in high school was that on his return, Mr. George got sideways with a student leader, who shopped him to the secret police on some trumped up charge. Mr. George was tossed in prison where he remained until Mrs. George went to the American Embassy demanding that they secure the release of the parent of an American citizen, the infant Armen. Mr. George was released and family left Iraq to migrage to Venezuala - which is why Armen speaks English, Armenian, Arabic and Spanish - and ultimately to the Queen of the Valley - Fresno, California.

At the time of the 1991 Gulf War, Armen confirmed the part about the incarceration being engineered by a rival student leader, although he said the embassy was not involved in the release. Frankly, I like the first version of the story.

When I was relaying this story to Penner yesterday, I was a little confused because I couldn't figure out a Christian had gotten sideways with a person who I thought was a Moslem. It didn't seem like they would have moved in the same circles.

According to the Ibidem article, the person who had my friend's father incarcerated - the leader of the rival student faction - Tariq Asiz - is an Iraqi Christian, which causes the story I heard back in the 1970's to make more sense.

Six Degrees of Separation: From you to me to Armen to his father to Tariq Aziz to Saddam Hussein in six moves.

I am parking this article - Buddhist Retreat - Why I gave up on finding my religion. By John Horgan - for future reference. The observations about Budhism's core principle including the idea that there is no "self" is interesing in light of the contrary position taken by philosopher John Searles and Pope John Paul II.

James Lileks has another persuasive article on the prospect of Gulf War II. I liked this examination of logic of the "containment agument:"

But the Containment argument - hey, if he does nuke us, we can nuke him back - isn’t MAD, it’s just crazy. It presumes we could step back, pause, sift through the intel, then kill a few million people to make a point.

We’d never do it. We’d hold televised benefits for Baltimore. We’d all remember the victims of 5/23. We’d buy the DVD compilations of news footage, archive the papers that landed on our stoops the day after. We’d find life returning to normal, eventually - but we’d never feel at ease again. The worst thing ever had happened, and to our surprise the world hadn’t ended. But the world had changed. Our better nature had prevailed - and we were certain to suffer again because of it, right up until the day we lashed out and became everything we never wanted to be.

The good news: that’s not going to happen.

The bad news: we’re going to war, to make sure it doesn’t.

Lincoln's Birthday

Lane Core reminds us that today is Lincoln's actual birthday with some Lincoln correspondence concerning prayer. I haven't reflected on this particular correspondence, and I think that Lincoln's writings deserve careful reflection. In this age of hostility to public expressions of religion consider Lincoln's reply:

Your people — the Friends — have had, and are having, a very great trial. On principle, and faith, opposed to both war and oppression, they can only practically oppose oppression by war. In this hard dilemma, some have chosen one horn and some the other. For those appealing to me on conscientious grounds, I have done, and shall do, the best I could and can, in my own conscience, under my oath to the law. That you believe this I doubt not; and believing it, I shall still receive, for our country and myself, your earnest prayers to our Father in Heaven.

What a fortunate country we are to have had a leader like Lincoln at that time. In the midst of a "great Civil War," Lincoln could still empathize with the dilemma that anti-slavery pacifists had to reconcile. In a different context, Rod Dreher writing about Ted Turner quotes the Jewish philosopher Philo of Alexandria's aphorism: "Be kind, for everyone you meet is fighting a great battle." Lincoln had that kind of ethos.

I had a great parenting moment yesterday. The middle daughter - The Widget - told me that the teacher had told her Kindergarden teacher had told the class about Lincoln that day. She heard about how Lincoln had had to learn by candlelight and was self-educated and was a lawyer. After learning about Lincoln, the Widget told me that she had raised her hands so that she could tell the teacher that her daddy was a lawyer too.

Kind of reminds me about why I went to law school.

Urban Legend Update

I got into a discussion with a long-time lefty friend. After she posited the position that Bush had inherited a strong economy from Clinton, and I had laughed that I was watching 20% of my retirement evaporate prior to the summer of 2000, I remarked that if anyone had a right to resent Clinton it was poor old Al Gore. If I had been Al Gore, I think I would blame Clinton for (a) Lewinski, (b) not being able to hold the economy together for six more months, and (c) Elian Gonzales. My point was that Clinton's mishandling of Elian guaranteed that an additional 500 conservative Cuban-American voters would turn up at the polls than would otherwise have been the case. She then floored me by parrying with the claim that African-Americans were intimidated at the Florida polls, which I thought had been thoroughly discredited.

Apparently, the legend lives.

For the record, here is the report of the DOJ Investigations into Florida which, once again, discredits this urban legend.

Here is BET.com's article which has this excerpt:

According to reports, the department acknowledged possible voting irregularities in three Florida counties, but said that the problems that did exist could not have affected the outcome of the election.
"Let me be clear, the Civil Rights Division's investigations identified only a limited number of Floridians who were unable to vote, a number that does not reasonably cast any doubt on President Bush's several hundred vote margin of victory in Florida," Assistant Attorney General Ralph F. Boyd Jr. wrote in a letter to Congress.
The department plans to file lawsuits against three Florida counties: Osceola, Orange and Miami-Dade, saying that even though polling problems were unintentional, they may have deprived some voters of their rights.
The lawsuits will allege that the counties failed to provide bilingual assistance at the polls and that some voters may have had language problems. In one county, two Haitian voters were denied language assistance, Boyd said.

Here is the CNN report on the DOJ findings. And here is a John Leo column to the effect that the claims of "disenfranchisement" boil down to statistical inferences, which is a far cry from "intimidation."

I need to find a Washington Post or New York Times corroboration to really clinch this argument. Your assistance is kindly appreciated.

Patrick Ruffini is pitching a season of the West Wing that I would actually watch.

Brothers Judd Blog provides a fascinating link to the Students Movement Coordination Committe for Democracy in Iran declaration. It seems like an influential population in Iran wants to re-orient to the West after 24 years of theocracy.

Fresno State used to host a substantial number of Iranian students. While most of those students have gone home, they know what the West was like, and, as odd as it sounds, their stories about Fresno probably now sound like a fantasy story from an improbable "golden age."

Long live the Democratic Revolution.

I don't know who Robert J. Ambrogi is, but his list of blawgs and the accompanying descriptions is pretty interesting. I get described as posting "all from a Catholic and conservative point of view." I'd say that is probably true, but I am a plaintiff's attorney in employment cases. I would think that falls outside the conservative job description. Anyhow it's all about product placement and market identification. I picked up a few hits from Ambrogi, so someone must have thought that the Catholic and conservative perspective would pay dividends.

For we have no rest until we find rest in thee

I like this article about Gerard Depardieu finding faith by reflecting on St. Augustine's Confessions Check out this passage:

Gerard Depardieu, the French film star whose private life is almost as dramatic as his films, chose the country's most magnificent theatrical setting for what may be the most important performance of his life.

On Sunday afternoon, he stood before the congregation at Notre Dame Cathedral in Paris to confess how the 'sublime' writings of St Augustine have shown him the road to his personal salvation.

The 54-year-old actor - whose name translates as 'from God' - then read from Augustine's Confessions, a multi-volume work which he describes as "resembling the poetry of a man who cannot understand what he is going through".

Depardieu gets St. Augustine. The Confessions are thoroughly modern. Augustine's journey though the heresies and beliefs of his time until he finally found his destination in orthodoxy resemble nothing so much as the road so many moderns have traveled through the 1960s and 1970s. Augustine's reflection on his journey resulted in great human literature from a great saint. If you have never read The Confessions, and have any interest in the human experience, I recommend that you immediately put the Confessions on your reading list. Read it as a story about a man and you will find great existential truths - a father's base humor at his son's emerging sexuality, a friends inconsolable grief for the loss of friend, a mother's love for her son - the only thing I have never understood is why a childish prank is tantamount to an unforgivable sin.

The Law Knows No Heresy - the Legal Ramifications of Picking Sides in a Religious Controversy

As an attorney who has tried a case involving the issues of church government, religious doctrine, and the First Amendment doctrine, I was frankly astounded when I read this Washington Post article on the D.C. judge who refused to sentence homosexual activists for trespass. [I had intended to discuss this issue previously, but the Columbia tragedy intervened.] My astonishment has substantially less to do with my religion, than it has to do with my legal experience.

The Facts

To recap, according to the Washington Post three Catholic gay activists were convicted of unlawful entry by a "sympathetic judge," Judge Mildred M. Edwards, who told them that she would do something she had not done in 15 years - she would dispense with sentencing. Judge Edwards is reported as telling the convicted trespassers:

"Tremendous violence was done to you . . . when the Body of Christ was denied to you," Edwards said, referring to the contention of the three that refusal of Holy Communion had prompted their actions. "As a member of your church, I ask you to forgive the church."

The background to the conviction appears to have been that at a Mass held during the annual Conference of Catholic Bishops, the three protestors were misidentified as members of a "Rainbow Sash" movement, which had announced that its members would receive communion as a "protest." A priest decided that individuals should not receive the sacrament as a protest and had determined that members of "Rainbow Sash" would be excluded from Communion. The three protestors were in fact not "Rainbow Sash" members; they were part of the "gay activist group, Soulforce" who, according to the prosecutor, had traveled to the Bishop's conference to demand an explanation for why the had been refused Communion the day before.

Although the Soulforce activists claimed that they merely sought to "find healing among the people" who caused them to suffer, it is reasonable to conclude from their behavior that they were knowingly engaging in street theater in order to protest Church policy concerning homosexuality. According to the Washington Post:

The prosecutors said the reason for the activists' refusal to leave was irrelevant; they broke the law when, after repeated requests by police and hotel officials to move, they remained in the lobby of a private building, hands outstretched, waiting for someone to give them Communion.

The judge agreed, saying they were in a private area, had no right to be there and were given sufficient warning to leave.

Nonetheless, the judge opined that her Church was wrong and that the protestors should "go in peace," which is, of course, the parting benediction that a priest offers to his congregants in a religious ceremony.

Perspectives

Andrew Sullivan’s position is unclear. Although he seems to recognize the right of the Church to establish its own doctrine's, he doesn't seem to find Judge Edward's comments to troubling. He observes:

What the judge said merely amounted to bearing witness to what many perceive to be injustice. You may disagree and support the exclusion of openly gay Catholics from the sacraments, but it's an over-reach to describe this conscientious objection as a form of bigotry

Sullivan's comments were written in response to Rod Dreher's charges that Judge Edward's comments were examples of bigotry.

Sed Contra, in an intelligent post, made the theologically important point that the "Rainbow Sash" folks were not disbarred from communion because of their political goal, but because of their state of grace relative to the Sacrament. He concluded his post with this thought:

Finally, as to the judge herself. It's a free country with an independent judiciary. She is free to say what she wants from the bench, no matter how misguided it may be. But I am also not sure I would have imposed any sentence either. After all, its not like they desecrated the Eucharist as folks did a while back at St. Patrick's in New York or, more recently, had sex there during Mass.

My objection is to the easy way in which Judge Edward's sentencing pronouncement has been treated as a matter of "free speech." My point in this post is to explain that the prosecutors were right - the protesters' motivation was not relevant to the sentencing decision. Further, as I will explain, under established principles of constitutional jurisprudence, Judge Edwards was "not free" to say what she wanted from the bench insofar as she involved herself in matters of religious doctrine.

A quick outline of the interraction between the First Amendment and Religious Polity

My involvement in this area has involved controversies over the ownership and control of religious property. These issues can arise when a local church breaks away from the denomination. If the church is a congregational church, such as the Baptists, ownership issues are fairly straightforward; the local church keeps the property. If the Church is hierarchical, as with the Catholic church, local secession is unthinkable.

The problem arises with the churches that are neither fish nor fowl. The Methodists and Presbyterians, for example, have elements of a both congregational and a hierarchical polity. [In addition, the Methodist church tries to deny its jural existence in the Book of Discipline.] These churches typically attempt to assert control over the local church's real property through trust provisions in their organizational documents of the denomination, the real property deeds or the local church's corporate documents.

For a long period of time, constitutional law recognized an “implied trust” theory. In Watson v. Jones (1872) 80 U.S. 679, the court held that when a religious congregation or ecclesiastical body holding church property is a subordinate body of an organization in which there are superior ecclesiastical tribunals possessing general and ultimate power of control over church matters, the decisions of such tribunals control church property disputes to the exclusion of the civil courts. The hierarchical theory asserts that when a subordinate congregation of a hierarchical church secedes from the church, it had no right to retain church property held in its own name. The implied trust theory was repudiated in Presbyterian Church v. Hull Church (1969) 393 U.S. 440, where the court there ruled that under the First Amendment a civil court is not allowed to adjudicate church property disputes by interpreting religious doctrine and practice and then relying on its own interpretation of doctrine to allocate control over church property. The opinion did not attempt to prescribe specific alternative methods a court must use to resolve church property disputes, but it noted that "neutral principles of law, developed for use in all property disputes, ... can be applied without 'establishing' churches to which property is awarded." The Hull Court developed the neutral principles rule so as to disallow the “departure from doctrine” rule which had previously obtained. Prior to the Hull decision, while courts would imply a trust in hierarchical churches, they would also vitiate the trust where the denomination had “departed from doctrine.” [This rule seems to comport with reasonable expectations; church members who made their donations to the church expected their churches to remain true to doctrine.]

Here is a passage from Hull, quoting the Jones decision, which is pertinent and quotable:

In this country the full and free right to entertain any religious belief, to practice any religious principle, and to teach any religious doctrine which does not violate the laws of morality and property, and which does not infringe personal rights, is conceded to all. The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect. . . . All who unite themselves to such a body [the general church] do so with an implied consent to [its] government, and are bound to submit to it. But it would be a vain consent and would lead to the total subversion of such religious bodies, if any one aggrieved by one of their decisions could appeal to the secular courts and have them [sic] reversed. It is of the essence of these religious unions, and of their right to establish tribunals for the decision of questions arising among themselves, that those decisions should be binding in all cases of ecclesiastical cognizance, subject only to such appeals as the organism itself provides for."

Under the First Amendment, courts simply cannot be in the business of determining if a given doctrine - denying protesting homosexuals communion, for example - is heresy.

There is one area, though, where the rule of deference is automatic and absolute - schisms. If a hierarchy or denomination decides that a subordinate component of the church is in schism, the question is settled, which can have dramatic consequences on polity and property issues.

Personal experience

I was involved in a trial last year over a local Methodist church’s withdrawal from the Methodist denomination. The reason for the departure was that along with using church money for practices that the local church found obnoxious - e.g., handing out contraceptives to their children on church retreats - the local Bishop refused to answer direct questions about whether, inter alia, he believed in the Resurrection of Christ. The local church’s refusal to accept a pastoral change triggered a dispute over the property that the local church membership had painstakingly purchased over the years and which they have dedicated to performing good works in a needy area of Fresno.

We absolutely could not get into evidence any issue pertaining to the Methodist denominations putative departure from doctrine. Any reference to such issues brought the Court proceedings to an abrupt halt. A short-hand developed to refer to this subject as the “dispute.” As far as a reviewing court will be concerned, the cause of the dispute could arisen from anything ranging from inconsequential personality disputes to the hierarchy's involvement in simony or pederast orgies. Where issues of church governance are concerned, the law just doesn't care. [Don't be tempted to overstate this point for rhetorical advantage. Church leaders can be held criminally and civilly liable for their intentional or negligent malfeasance, but where church governance per se is concerned - determining who is a member, determining what doctrines are taught, determining who gets what sacrament - the law is constitutionally blind.]

Analysis

If you have followed the discussion through the applicable case law, it should be fairly obvious how Judge Edward’s comments are constitutionally offensive. First, by expressing an apology for the Church, she did recognize heresy. Through her “witness” - which was not her personal opinion - she announced that the State found the Catholic hierarchy’s position to be wrong - she apologized to the protesters for their treatment on behalf of the body of Christ. In short, she determined that certain actions were not Christian. This definition of "heresy" would have been recognized by St. Augustine in his dealings with the Donatists.

Second, Judge Edwards' announcement violated clear law. Like it or not, the First Amendment recognizes the prerogative of the denomination to determine who are the schismatics or heretics. No one is required to be Catholic, but if you want to be Catholic, you voluntarily agree to let them make such decisions. That incidentally is not Catholic dogma; it is a statement of law.

A final serious concern is that the defense of Judge Edward’s legal decision speaks volumes about the dangers of the absence of a coherent political theory. The term "civil rights" is now commonly viewed as meaning only those privileges that an individual has against the state. [See this post.] Warren court triumphalism has largely accentuated this view of "civil rights." Thus, civil rights are conventionally understood to include personal rights such as the right to an attorney, the right against arbitrary arrest, the right to due process of law before the deprivation of life, liberty or property or freedom of speech.

Civil rights, however, include something more than a zone of personal autonomy against the state. Implicit within Anglo-American jurisprudence was the idea that the government has an affirmative obligation to protect its citizenry's life, property and liberty. See, for example, Locke's Second Treatise on Government which posited the philosophical idea of the “social contract” under which the state provides protective services to its citizens in return for those citizen's surrender their primeval right of self defense. Likewise, Robert Nozick's Anarchy, State and Utopia developed Locke's social contract concept into a defense of limited government - the minimalist state. Perhaps the same zeitgeist that led to the academic view that Nozick's ideas were philosophically repugnant, also caused an amnesia as to the substantial philosophical tradition that a person’s civil rights included the protection of his life, liberty and property.

The protection of life, liberty and property is a civil right. It is in fact the first civil right. Jews in Nazi Germany and residents of New York City during the 1970s could certainly attest to the idea that without personal security other rights are meaningless.

Announcing to the world that Catholic sacraments are fair game for protest, which is what Judge Edwards did, has the effect of letting the world know that it is open season for such conduct in the District of Columbia.

This is truly serious stuff.

Feedback

unbillable hours reports in from New Jersey with the temperate observation that while Judge Edward's sentencing decision may be supportable, her sentencing pronouncement seems troubling. I agree. I think a judicial officer has to have some discretion with respect to sentencing, and if the trespass was de minimis, then a "no-sentence" sentence might have been proper. Nonetheless, her gratuitous sentencing pronouncement shows that Judge Edwards doesn't understand her constitutional obligations. The proper remedy is probably a review of her fitness by a judicial review commission. [We here in the Valley have had our experience with judicial eccentrics. Tulare County Judge Howard Broadman never got out of hot water for his "creative sentencing" of a mother of four to implantation of Norplant as a condition of parole. Although he had decent local support, he was under review until he finally took early retirement.]

The OmbudsGod picked up on the question of "who determines dogma?" Which, if you think about, is more core to the First Amendment than whether a creche is allowed to be placed in a public square.

The Blog from the Core asks the question of what the reaction of the ACLU would have been if a non-Christian religion had been involved. Interesting implications flow from such a thought experiment. Assume that a Moslem judge had publicly announced that he would not sentence Sunni protestors who had trespassed during a Shiite ceremony because the Shiites were wrong in their religious beliefs. This would be such a clear violation of the First Amendment that the Judge would be censured before the sun set. I can't see the difference between this hypothetical and Judge Edwards conduct.

Patty at Pdawwg notes that the Church-State issue is more than a parochial concern to Catholics, which seems exactly right if the hypothetical example outlined above has any traction.

Finally, you people over at www.neopoeia.com need to tell me what the heck you're talking about. I know I have been getting hits from you, but I can't link through to your site because of some restrictive registration requirement.

This Washington Post article reports on the skepticism that even the Plaintiffs' bar has over the lawsuits against McDonalds.

The skepticism is justified. Assuming that fast food restaurants are accurately reporting the contents and nutritional value of their products and are otherwise maintaining reasonable food safety precautions - which seems like a reasonable assumption - finding a theory against fast food producers seems problematic at best. Hamburgers, unlike other certain other products such as guns or cigarettes or even automobiles, are not inherently dangerous. The distinction between the concept that certain products are inherently dangerous, and therefore proof of negligence is not required, whle others are not has been missing from popular discussions of this subject. But, apparently, the distinction is alive and well within the legal system.

Too Funny

I know that Penner will get a kick out of this Curmudgeonly & Skeptical post.

Proving a Negative

I was out delivering kidlets this morning, so I caught only snippets of Powell's address on the radio. What I did hear proved the insight of Donchin v. Guerrero 34 Cal.App.4th 1832, 1839-1840, 41 Cal.Rptr.2d 192,197 (Cal.App. 2 Dist.,1995), which observes that you may conclude a positive fact from your disbelief of the other party's denial of that fact. As I noticed, the pro-Saddam position appears to be that the burden of proving Saddam has WMDs is on Bush. Bush's point is that (a) Saddam is denying the possesion of WMDs and (b) Saddam is liar and from this we can conclude (c) Saddam has WMDs. Again, I doubt that there really is any logical support for this insight, but it works like Occam's Razor, i.e., it actually works.

Powell showed this morning that the law of "False Exculpatory Denials" has a basis in the real world. Powell showed the intercepts discussing hiding the "modified vehicle," the intercepts instructing subordinates not to mention chemical weapons, the massive removal of soil around chemical facilities, the photos showing Iraq's development of long range weapons systems, its development of chemical weapons and use on condemned prisoners, the failure to explain what has happened to biological agents, the purchase of objects that can be used to develop nuclear weapons. Some might demur that this doesn't "prove" that Saddam has WMDs. Nonsense. One can prove a case through circumstantial evidence, and one can prove an affirmative fact by showing that the denial of that fact is not credible and that there is circumstantial evidence proving the affirmative fact. Powell has proven his case to all but the prejudiced.

I also heard the statement of the Spanish Ambassador, who spoke logically about the facts outlined by Powell. The Ambassador's point was that the only reasonable conclusion from the evidence was that Saddam has been violating the cease fire by maintaining and developing WMDs. The next question is what should we do, and unless the UN wants to got the way of the League of Nations, there really is one sad answer. [I have not been able to get access to Ibidem for a couple of days, but I would be interested in the "on the ground" Spanish attitude.]

It looks like Slate concurs.

Bill Cork offers selected excerpts of Powell's address.

Mark Byron has links to Powell's address and his usually sagacious observation that the address will solidify support in the Senate and bring the French on board. As to which sagacious observation, my Canadian partner made a rude suggestion about the desirability of French involvement.

The OmbudsGod links to a Tim Blair post deconstructing Australian nude anti-war activism. It's really funny, as only a logical analysis of the loony left can be. Here's a taste:

Grace believes many women feel as she does - desperate, helpless, and afraid to speak up because "they're not able to back it up with political analysis".

So they take off their clothes instead? What is this, some kind of elaborate blonde joke?

She says she's never done anything like this before, and the momentum her email has generated "thrills me but scares me as well". She's nervous about stripping off, as are most women who've agreed to come, and she asked me not to reveal the location of the protest for fear of unwanted onlookers.

It's a private protest. The most effective kind.

I'm not sure that Molly, the original "smart blond," would endorse that "hairistic" comment, but read the article for an objective look at the self-indulgent zaniness.

Iraq War Debate and a lesson in Civics

Kevin Holtsberry looks at the Iraq War debate. It's a pretty thoughtful discussion inasmuch as I don't think Kevin starts from an a priori premise. There's one observation I like in particular:

We have never satisfactorily resolved the Gulf War. Saddam refuse to live up to the agreements he signed off on in order to save his hide. Allowing him the wiggle room to escape rewards his non-cooperation and will encourage others to do so.

That is very true. The fact is that the world is better off with a succesful America. Democracy - generally thought of as a generally good thing - expands when America wins wars - witness post World War II and post-1989. On the other hand, the opposite is also true; dictatorships are encouraged by a weak America - think of the Carter years.

This observation is not a case for engaging in rampant imperial overstretch. On the other hand, ignoring Saddam means fostering an world environment more conducive to tyranny, not the least cause of which may be the end of United Nations' credibility.

As for me, I made a stab at talking to my nine year old about the Iraq war. She raised the subject by telling me that she had told some fellow classmates that they didn't know that Saddam was a bad man and that he was probably just like them. Now, I understand that the State of California gets my kids for six hours a day and wants to inculcate a mushy moral relativism in its charges, but my mission is to raise someone who thinks in something more than the watercolors of secular liberalism. I told her that Saddam is a bad man. I told her that there was once a man named Hitler who did very bad things when he had power, and had killed, among others, six million Jewish children, men and women, and that while he was evil, there are other equally evil people. I told her that Saddam would do the same things to the Jews in Israel if he ever got the chance, and that America wouldn't ever let that happen again. I also told her that the three important things she had to remember about herself was that she was herself, a Catholic, and an American.

Take that, California educational establishment.

It must go on.

Ut Unum Sint links to the statement of the families of the Columbia astronauts who confess their belief that space exploration must continue.

Return to SOP

I am happy to report that after hearing our first two witnesses, the defendants realized that discretion was the better part of valour. After laughing at our case for the last three years, and offering no more than $5,000 in settlement before trial, the defendants decided to part with $140,000 in order to make the case go away. I will be returning to my regular schedule tomorrow, after I take the Widget, the Wadget and Boff to Kindergarten, Day Care and 4th Grade, respectively.

Cool Archeology

Hell in a Handbasket posts on a discovery of a Bronze Age site from listening to bar talk. Check out the first site HIAH mentions. You get nekked pictures and links to developments in linguistic. Cool. Porn and linguistics. Just what I've been looking for my entire life.

Hall of Fame Sentencing

The Corner on National Review Online provides a link to the complete sentencing pronouncement in the Richard Reid case. Forget that vermin,but read the judge's comments. There is nothing in his lecture that is new or original; it's nothing that a hundred thousand Americans wouldn't say in the same circumstances. And for that reason, it's a powerful statement of American democracy. Here's a taste:

See that flag, Mr. Reid? That's the flag of the United States of America. That flag will fly there long after this is all forgotten. That flag still stands for freedom. You know it always will. Custody, Mr. Officer. Stand him down

Amen. My old man gave the most productive years of his life for that flag, which is why I operated an appliance repair business to pay my way through college. I part company with the First Amendment absolutists in part on protecting that flag. So long as it flies, even the fascists can be assured of the due process of law that they would deny others.

Canada Conta Mundum

My Canadian partner was disturbed to hear the report that a CBC commentator ascribed the Columbia disaster to American "arrogance." I told him that my feeling was that outside of the media and the intellegentsia, I believed that most Canadians were solidly pro-American. He disagreed, noting petty anti-Americanism practiced in his hometown back in the 70's. I have to defer to him, but Robert J. Sawyer's version of the event is hopefully suggestive that Canadian anti-Americanism is not widespread.

American Anti-Americanism

Check out Pdawwg's post linking to a leftist site which gives vent to the insta-theory that the Columbia disaster was engineered by the Bush administration, of whom< it appears, there is nothing that can go unsuspected or unvoiced.

Consolations


A lot of people are taking comfort from poetry and religious imagery. Claude Muncie, who is not a Bush supporter, finds the President's words that the astronauts "did not return safely to Earth, yet we can pray that all are safely home..." to be poignant.

William Sulik posts the entire passage:

In the words of the prophet Isaiah, "Lift your eyes and look to the heavens. Who created all these? He who brings out the starry hosts one by one and calls them each by name. Because of his great power and mighty strength, not one of them is missing."

Jay Manifold posts the entirety of Psalm 107 in memory of STS 107.

Polymath Orrin Judd posts a number of poems and passages, including Reagan's Speech on the Challenger Disaster and High Flight among other entries.

Victor Davis Hansen made an interesting observation at his Fig Garden Bookstore lecture a few days after 9/11/01 about the importance of literature. Hansen, who is a Classics professor, has been fighting a losing rear-guard action on behalf of Classics against the proliferation of Women's Studies, Chicano Studies and other special interest group programs that are sucking the atmosphere out of academia. His point was that Classics inculcate a knowledge of the skills of rhetoric and the substantive knowledge of human precedent which a modern leader can fashion into a meaningful message, whether to motivate warriors to fight or to console a grieving country. Without such knowledge, these important and legitimate functions of public rhetoric - often viewed as a dirty word and a dishonorable practice - won't get off the ground.

These passages show the importance of a common high culture. For that matter, the Green Hills of Earth is affecting to the extent that one shares the culture of Science Fiction and remembers the story of Rhysling, the "Blind Singer of the Spaceways," whose songs appear throughout Heinlein's Future History corpus. In Green Hills of Earth, Rhysling, who is a kind of interplanetary bum, puts the "Green Hills of Earth" into a final form while standing a last duty at a broken reactor. Themes of duty and rational sacrifice on behalf of others are quite common in Heinlein stories, which is not surprising in light of his background as an Annapolis graduate.

Sharing a common culture is important. Occasionally, we need to fight as a people and grieve as a people. Biblical references are one part of that culture. Hanson is right that we need rhetoric. The low culture of Hollywood and Television, Survivor and Married with Children, will never furnish the material for rhetoric. We would be poorer if Bush were prevented by a dogmatic First Amendment fundamentalism or a poverty of literary knowledge from fashioning Isaiah as was done yesterday.

Anthem

The Angry Clam has posted Robert Heinlein's "The Green Hills of Earth." I don't think the AC or RAH would mind my copying it to this site because long before Challenger and Columbia, Heinlein really did foresee the sacrifices that would be incurred in the conquest of space. Again, thanks to the Angry Clam here is the blind Rheisling's Terran anthem:

THE GREEN HILLS OF EARTH

Let the sweet fresh breezes heal me
As they rove around the girth
Of our lovely mother planet
Of the cool, green hills of Earth.

We rot in the moulds of Venus,
We retch at her tainted breath.
Foul are her flooded jungles,
Crawling with unclean death.

[ --- the harsh bright soil of Luna ---
--- Saturn's rainbow rings ---
--- the frozen night of Titan --- ]

We've tried each spinning space mote
And reckoned its true worth:
Take us back again to the homes of men
On the cool, green hills of Earth.

The arching sky is calling
Spacemen back to their trade.
ALL HANDS! STAND BY! FREE FALLING!
And the lights below us fade.

Out ride the sons of Terra,
Far drives the thundering jet,
Up leaps a race of Earthmen,
Out, far, and onward yet ---

We pray for one last landing
On the globe that gave us birth;
Let us rest our eyes on the friendly skies
And the cool, green hills of Earth.

- Robert A. Heinlein

Let's not quit - We are a Spacefaring Nation

I woke up this morning to the tragic news that it has happened again. The Columbia space shuttle seems to have fallen apart while descending to the Earth. Instapundit has full coverage. I am sure that I will be checking in on A Voyage to Arcturus and Rand Simberg - who are both space buffs - throughout the weekend for better analysis than you can get on the tube. I recommend that you do likewise.

I don't remember the Kennedy assassination since I was only four at the time. For me, the big "where were you when" moment was the Challenger disaster. I remember that I had been practicing law for about three years. I was in Madera Superior Court getting a receiver appointed under a Deed of Trust. I went into the Clerk's office to file the order and I was told by a clerk that the space shuttle had "blown up." I told her that that was ridiculous - shuttles just didn't "blow up." When I got back to the office, the entire firm was in the break room watching the TV showing - like today and 9/11 - loop after loop of the Challenger blowing up.

My earliest school memories are of having a TV brought into the class to watch the Gemini program launches and splash downs. It all seemed so bureaucratic, so common and conventional. It wasn't until I was at a law school Moot Court tournament which let me visit the Smithsonian and saw the Mercury capsule that I realized how brave those astronauts were. It was slightly larger than a couple of garbage cans welded together. And it was placed upon a column of explosives. I have never since discounted the courage of those astronauts - of all astronauts - after my visit to the Aerospace Museum.

The official position of NASA during the Mercury-Gemini -Apollo programs was something like Manifest Destiny. Nothing was going to go wrong. Challenger was like a kick in the gut because of that attitude.

The trial that I am in is on the Seventh Floor of the Fresno County Courthouse. Old Fresno Bee front pages are framed throughout the floor. Many of the newspaper headlines are memorable, some are obscure. For example, I hadn't known about the assassination attempt on Roosevelt in 1933, which missed Roosevelt and hit Mayor Cermak. The Fresno Bee headline for a historic day in September of 1939 shows us that even then dictators were able to use the free press for their benefit as the Bee reported on Polish forces attacking and shelling German towns.

There was also the headline announcing the 1967 NASA training disaster which killed three astronauts. I remember thinking when I saw it on Thursday that all in all NASA had a good record for safety. The front page showing the Challenger disaster is on the wall opposite the elevators. It was seventeen years ago this month, but it still feels like yesterday.

This hurts, again. But the lesson is not to give up. NASA still has a good safety record. We need space. It is our manifest destiny. We are not going to improve the welfare of mankind by sitting on this planet because we are frightened of risk.

If you agree with me, let yourself be heard. I fear that the space program is losing support among the young. Several years ago I sat on a panel which was part of the UCLA scholarship program. We saw the best and the brightest of Fresno County. Kids with resumes as long as your arm and 4.3 GPAs. The program consisted of asking "big think" (to plagiarize my Con Law Professor, Prof. Karst) questions. My question was "if you had to cut 3% from the budget would you cut from Medical Research, Space Exploration or Social Services, and why?" In my day, space would not have been touched.

Every one of those bright kids cut the space budget and favored increasing the budget for medical research. In their world, we would have a healthy, well fed population without any dreams.

We need to grieve. We need to pray for the souls of our poor astronauts and to support their families. President Bush - unfortunate man - will once again speak to the nation. But when the grieving end, we need a national re-commitment to NASA. Build new shuttles. Build them better. Build more of them. We need the permanent space station and the manned mision to Mars.

Ad Astra.

www.AndrewSullivan.com - Daily Dish has his comments on a judge's comments regarding protests concerning Catholic religious practices. I have tried more cases concerning the interplay between law and religion than Sullivan. I will return to this subject later this week with case authority and show why Sullivan is wrong.

Mystique et Politique has a post concerning a Canadian Bishop's decision to allow an Episcopalian pro-abortion politician to take communion. Mark Cameron's comments are correct. Catholicism is not a social club. It is not a public accommodation. The Eucharist is the core of Catholicism and Canon is relatively clear that Catholics may not partake of other faiths communions, and vice versa. This is not a question of being nice or open-minded; it is a question of core belief.

William Sulik has apparently started dealing with last Sunday.

Mark Shea has a post on the Massachusetts judge who convicted gay protestors of trespass, but refused to sentence them and apologized on behalf of the Catholic church for its purportedly narrow-minded attitude on homosexuality. This judicial conduct is entirely unjustifiable as a matter of law. I intend to post some commentary with case support after we get past the Columbia disaster. The Columbia disaster is tragically significant, but the idea that judges can extend or remove legal protections from citizens based on religious convictions may be even more significant over the long run.

Maybe so, but the Ag Students are going to kick their butts


Instapundit links to Erin O'Connor's post reporting that "in February, Fresno State will be hosting a conference entitled "Revolutionary Environmentalism: A Dialogue Between Activists and Academics." Her link to the AmericanProwler reports:

" A conference brochure laments that "tree spiking and animal rescues have received little public attention." Therefore, "faculty members at California State University-Fresno invite environmental and animal rights activists, and scholars to participate in a conference on the practical, political and spiritual aspects of 'revolutionary environmentalism.'" Roundtable discussions will cover such topics as: "The Ethics of Sabotage" and "Is Environmentalism a Spirituality?"

At times like this I despair. For two reasons. First, it proves once again my basic proposition that the only time Fresno gets national attention is when the news involves a murder or something embarrasing.

Second, have we lost the cultural wars? A pro-eco-terrorism symposium in Fresno? New York? Certainly. Berkeley? Without a doubt. But Fresno is part of "Red State" America. On the other hand, I remember a story that my father related from the time he attended Fresno State during the 60's after retiring from the Navy. During one anti-war demonstration, the protestors decided to occupy various parts of the campus. Things went well until they got to the Industrial Tech and Ag buildings and were met with a ring of IT and Ag students standing in a circle around their buildings with their arms folded and a determined expression that communicated their belief that they were not going to allow a bunch of wussy Liberal Arts students to screw with their stuff.

This could be an interesting symposium, if the Ag students get news of this.

Material Breaches, Proving a Negative and the Law of False Exculpatory Statements

To me, it seems like there is this weird disconnect on the inspections in Iraq. We hear Hans Blix castigating Iraq for not cooperating, then we hear that there is no "smoking gun." Lost in the shuffle is why Iraq has the burden of proving a negative. Since this was unclear to me I am linking to a portion of Talking Points Memo interview of the Brookings Institute's Senior Fellow Ken Pollack who comments:

And you put it to him exactly the way the president did last night. 'Saddam Hussein, you have admitted that you manufactured VX. We also have receipts that show that you purchased the following chemicals which have very limited uses, one of which is making VX. Where are those chemicals?'
The UN resolutions required that [he] account for those chemicals and for twelve years Saddam has just been looking us in the eye and saying 'I don't know what you're talking about. I refuse to answer the question.' Imagine what that would look like if this were Law and Order and if this were Jack McCoy asking that question again and again. And after each presentation of the evidence and question to Saddam, 'What have you done with those materials.' And the Iraqi response is 'We're not answering that question.' That's a pretty damning indictment.

On the issue of "proving a negative," Bush has constantly reiterated that we know that Saddam is a liar, as if that fact proved the further point that Saddam possesses Weapons of Mass Destruction. Bush's syllogism has generally been ignored, except when opponents of Iraqi intervention point out that Saddam's credibility does not prove the existence of WMDs. In point of fact, however, as a matter of law, it does.

One of my favorite cases is Donchin v. Guerrero 34 Cal.App.4th 1832, 1839-1840, 41 Cal.Rptr.2d 192,197 (Cal.App. 2 Dist.,1995), which deals with the infinitely fascinating issue of a landlord's liability for injuries caused by vicious dogs on their property. In California, a landlord can be held liable for personal injuries caused by vicious dogs if the landlord knows that the dog owned by his tenant is vicious. (I'm fairly sure that this precis of the law is correct; dog bites are really Penner's area, and surprisingly lucrative.) In Donchin, the Landlord denied that he knew that the Tenant had a dog, which statement appeared patently false. The significance of this was summarized by the Court in the following passage:

There is more than one way to prove the existence of a fact, and thus more than one way to create a triable issue about the existence of that fact. One way is to introduce affirmative evidence tending to show the fact exists--the testimony of someone who observed it or who observed something from which the existence of the fact may be inferred. Another way, however, is to introduce evidence tending to show an opponent's denial of the existence of the fact is to be disbelieved, that is, evidence challenging the credibility of his denial. For, as a matter of common sense as well as formal logic, to disbelieve the denial of the existence of a fact is to believe in the existence of that fact. (For example, a defendant's alibi defense denying he was at the scene of the crime but rather was somewhere else is proven false. The jury thus disbelieves his denial and instead believes he was at the scene.)

In Donchin, a jury could reasonably conclude that its disbelief of the Landlord's denial that he knew that his tenant had a dog entitled it to believe that (a) the Landlord knew that the Tenant had a dog and (b) the Landlord knew that the dog was vicious.

I have always wondered if this reasoning was philosophically sound, but it does seem pragmatically justified.

So, with respect to the issue of Saddam denial of the possession of WMDs, disbelieving Saddam's denials would in a court of law allow a fact finder to conclude that Saddam has the WMD's he is falsely denying.

Advantage: Bush, whose "simplistic" statements, once again, reveal hidden depths.

From the bulging Self Indulgent Celebrity file

cut on the bias has a wonderful deconstruction of Janeane Garafolo's latest whine that Hollywood celebrites are treated as whining children whose attachment to a cause instantly trivializes the cause.

SOTU Address

I missed the State of the Union, but fortunately the inimitable Patrick Ruffini live-blogged the speech. .

Miracles

I also watched that new "super" Monday line-up, which includes a show called "Miracles." I couldn't figure out what the heck was going, but I was going to chalk it up to the fact that I was also outlining deposition testimony. Well, extreme Catholic says it had plot problems and The Mighty Barrister finds a not well hidden anti-Catholic bias in the main character's Monsigneur supervisor's refusal to acknowledge the bona fide miracle which was the heart of the show. I guess it's just one of those things the Church can never get right. If the Church isn't ignorantly accepting miracles, it's cruelly suppressing the truth.

Trials and Tribulations

Thanks for stopping by. Posting will be light since Penner and I are in trial on a "fixture conversion" case.

Speaking of Sensitivity

I hadn't realized that our Catholic Governor had signed a proclamation commemorating January 22, 2003 as Roe v. Wade Anniversary Day for all Californians. Not that anyone would object or have substantial religious qualms which might be offended and as to which some sensitivity might be appropriate. Molly has the proclamation at her site.

The Irish Catholic Way of Football

A despondent Molly learns that God is on the side of the Raiders.

The Uses of History

Recently, I have been surprised at the amount of "pro-Confederacy romanticism" that's out there. I wouldn't mind it so much if it wasn't wrapped around claims like (a) the Civil War was not fought over slavery and (b) Lincoln didn't free the slaves and (c) if the South had been permitted to seccede, it would have solved its slavery and race issues immediately and without trauma. All of which is nonsense on stilts. The North fought to prevent seccesion; the South secceeded to protect it's "peculiar institution" from a president who had been elected on a free soil platform. Read McPherson's Battle Cry of Freedom to get a flavor of the South's efforts to extend slavery into the Free States and Cuba. (Part of the opposition to the Mexican American War was the concern that the South had initiated the war in order to find new territories to expand slavery.)

Having said all that, some perspective is in order. The Confederates were American. The Confederacy was an American phenomenon. Confederate dead are American dead and deserved to be included in the tradition of commemoration on Memorial Day. Hence, recent criticisms of Bush for continuing the tradition of placing a wreath on Jefferson Davis' grave are meretricious. One such criticims was levelled by Maureen Dowd.

Here's a part of Robert Musil's thoughtful take-down of Dowd:

That tradition follows the great insights of Abraham Lincoln, who understood, in one of his most inspired strokes of graceful political genius, that after a civil war it is urgent that people set aside their vindictiveness, differences and hard feelings, no matter how justified - as much as possible. The dead Confederate soldiers should be honored despite their false cause because it is possible to honor these dead and not honor their cause. We can love and remember even those whose cause was wrong, and send wreathes to their graves, without honoring their cause. Thank God for that miracle, for it also makes our love and honor of our own parents right, even when they cleave to a false cause. We tolerate ignorance of such matters in our less insightful young. But people who do not eventually make peace with such aspects of human life become sad, permanent juveniles.

Nicely said. The Confederacy was a mistaken enterprise motivated by the worst impulse, but Southern dead are our dead and, as Lincoln knew, if we were to become one people, we had to abandon the sectional attitudes that fueled the war.

Discriminations analyzes the buried assumptions in the "affirmative action is needed to service minority communities" argument. When you're there, check out the comments for an interesting discussion of the story of Dr. Chavis, the student who was admitted instead of Bakke. [Actually, he was one of five.] There's an observation in there that minority communities don't need minority doctors, they need good doctors, which is almost the entire debate on this subject encapsulated in miniature.

Bill Cork reverses field on war with Iraq.

Self-indulgent Celebrity Watch

This is really a great post on changes in the cult of celebrity. Here's my previous effort to deconstruct Woody Harrelson.

From Blog from the Core has a breakown - with link - of Bishop Weigand's homily on the duty of Catholics to conform to Catholic teaching if they want to participate in Catholic sacraments, Gov. Davis's spokeman's advice that Bishops shouldn't "tell the faithful how to practice their faith," and the Core's letter to Gray Davis concerning freedom of religion.

Sensitivity

There was an interesting demonstration of heresthetics over at Blogs4god. Heresthetics is a term developed by William Riker and connotes the idea of structuring political arguments so that the structure of options presented determines the outcome of the issue being addressed. Riker's slim book, The Art of Political Manipulation, is worth reading for the insight it brings to various topics including the passage of the constitutional amendment allowing the popular election of Senators.

Joshua Claybourn has his typically encyclopedic treatment of the subject. Briefly, Mark Shea and Kathryn Lively presented a parody of a Planned Parenthood poster campaign lauding " abortion choice." The posters are fair parody. They actually are humorous, and if I were Planned Parenthood, I might for one moment feel shame concerning the real enterprise that lies behind amorphous words like "choice." Then, Sally posted her shock at the insensitivity of the posters, claiming special privilege as a rape victim. [Apparently, Sally has claimed this privilege before.] This resulted in a round of condemnation and a call for sensitivity.

The fascinating thing was how quickly the focus on abortion as a form of birth control was transformed as an issue of insensitivity to victims of crime. This is classic heresthetics. Abortion as birth control v. Rape victims. You pick.

Here's my demurrer. I represent sex harassment victims. Often, their medical records are demanded, and I have to protect their privacy. Not infrequently, the medical records of these upscale women discloses multiple abortions. I don't judge. It's not my job. I remind them that they have a constitutional right to privacy and that this information is really not relevant to their complaint. Now, the amazing thing is that I never hear regret or trauma. I do hear annoyance for the inconvenience - the bother - that disclosing this information might bring. I also always hear the same explanation. The child was inconvenient, and there is no regret about the choice that was made. [Note, some people do engage in subsequent moral reflection, as evidenced by a very moving story on the internet about a near decision that was never made.]

Sensitivity is the professional attitude that I present, and it's real since I care about my client's welfare. But, really, the moral content of the decisions made by these women seems to elude them completely. I might be more sensitive if I ever got the sense that the decision was difficult or resulted in any introspection concerning life's mysteries. As Michael Corleone learns in Godfather III, when you have done bad things, such as having your brother murdered, it is good that you suffer. Abortion is either morally neutral or its a bad thing. If its a morally wrong thing - a sin - then one can't expect to escape that decision without some effect. In the Catholic tradition sin has consequences. According to the Catholic Catechism:

To understand this doctrine and practice of the Church, it is necessary to understand that sin has a double consequence. Grave sin deprives us of communion with God and therefore makes us incapable of eternal life, the privation of which is called the "eternal punishment" of sin. On the other hand every sin, even venial, entails an unhealthy attachment to creatures, which must be purified either here on earth, or after death in the state called Purgatory. This purification frees one from what is called the "temporal punishment" of sin. These two punishments must not be conceived of as a kind of vengeance inflicted by God from without, but as following from the very nature of sin. A conversion which proceeds from a fervent charity can attain the complete purification of the sinner in such a way that no punishment would remain.
1473 The forgiveness of sin and restoration of communion with God entail the remission of the eternal punishment of sin, but temporal punishment of sin remains. While patiently bearing sufferings and trials of all kinds and, when the day comes, serenely facing death, the Christian must strive to accept this temporal punishment of sin as a grace. He should strive by works of mercy and charity, as well as by prayer and the various practices of penance, to put off completely the "old man" and to put on the "new man."

Obviously, this view is entirely at odds with the modernism. It is also not a statement of policy. It is a statement of natural law. Sin has consequence.

Now it is not our job to inflict punishment on our fellow sinners. It is our Christian duty to be charitable to our fellow sinners. [Also, calm discourse is always more persuasive than a self-satisfying rant.] But no one can expect to entirely avoid the results that flow from such a moral decision. "Sally" ought to be supported by her fellow sinners. She ought to work to find a way to achieve understanding and forgiveness. But, frankly, if my experience with the moral vacuum that inhabits the psyche of many people is any indication, we need less sensitivity and a lot more awareness that decisions like abortion have a terrifyingly significant moral component.

Further Notes: Via in between naps comes this column on a "simple and complicated act" which supports my anecdotal observations above. The column is written in a faux-Ellen Goodman style where there is a passive voice and no clear judgments, except that some things are inherently complex and when people choose the course of predictable self-interest that is some kind of noble vindication of self [which may actually be the gist of the philosophical principle informing the pro-choice worldview.] The column addresses a 17 year old's trip to an abortion provider. The girl knows the baby is alive. She has heard the heart beat. She has seen the ultrasound. The decision is not difficult - on a scale of 1 to 5, it rates a "2." The biggest impediment is "religion." Nonetheless, she manages to face down the philosophically chilling implications of her decision (which after all rate a "2" on a scale of 1 to 5, with 1 being less difficult than the choice between Pepsi and Coke) and make the pro-choice decision. The columnist leaves us with this gem:

The teenager knows that she has ended a life. She wants to make peace with it, to pray for it, to say goodbye to that life, and to start hers.

"The teenager knows that she has ended a life?" She wants to "pray for it?

I may be dense, but aren't non-sociopaths supposed to feel bad when they kill another human being? Even if it's an accident? Particularly, if it's their own child? Wouldn't believing that her not-yet-born baby never existed, wasn't a person, or wasn't living be psychologically healthier for this teenager? But she accepts that this is a real person. Yet, with all this, she rates the decision only a "2" on her personal scale of difficulty.

It's not that the decision is irrational or incomprehensible. It's entirely utilitarian. Reasoning like this is sanctified in the United Methodist Church's 1992 Book of Discipline at Paragraph 71:

The beginning of life and the ending of life are the God-given boundaries of human existence. While individuals have always had some degree of control over when they would die, they now have the awesome power to determine when and even whether new individuals will be born. Our belief in the sanctity of unborn human life makes us reluctant to approve abortion. But we are equally bound to respect the sacredness of the life and well-being of the mother, for whom devastating damage may result from an unacceptable pregnancy. In continuity with past Christian teaching, we recognize tragic conflicts of life with life that may justify abortion, and in such cases support the legal option of abortion under proper medical procedures.

The problem is that this position is incoherent. I don't mind a utilitarian philosopher reasoning this way. But when did religion get in the business of picking winners in the "tragic conflicts of life with life?" Where does that principle begin or end? Does this principle allow us to pick a winner if there is a "tragic conflict" between a father and 2 day old baby? How about the tragic conflict between taxpayers and the disabled, or, if you want to be really nasty, between totalitarians and pariah social groups?

The problem is that under the pro-choice world view, people are knowingly killing people. And they don't seem to care.

One more thing - check out this The Corner on National Review Online entry for one woman's take on the results of another tragic conflict of life with life - in this case personal growth or duty to family.

Fresno News and Six Degrees

Fox has been hammering the Laci Peterson story for awhile. Fox's immediate focus was on the husband, which like the dictum "the race is not always to the fleet or the fight to the strong, but that's the way to bet," is probably not irrational. Certainly, the unmasking of his Fresno girlfriend, Amber Fry, doesn't help his position. Especially, her revelation that he presented himself as an unmarried person. [Also proving once again that Fresno only gets national news attention if it involves a murder or something really, really embarrassing.]

This morning I was listening to the news and there was an attempt to to paint Scott Peterson as guilty because of his unwillingness to give interviews. Wait, I thought, what if he is just awfully shy. Wouldn't you know it that this afternoon I happened to meet a neighbor of the Petersons, who advised that he probably has heard Scott say 8 words in the last 10 months. It's a small world, I have no idea what the police is leaking to the press, Scott Peterson may be guilty of heinous conduct, but not everyone treats national media opportunities like a Fox expert.

Jay Manifold passes along the news that Virginia Heinlein - "the real-life model for many of Robert Heinlein's fictional heroines -- surely among the strongest female characters ever depicted -- his wife Virginia, passed away on Saturday the 18th". Honestly, I grew up reading about Virginia Heinlein. I feel like I have lost a member of the family. But, then, while my partner can remember where he was when he learned that Jerry Garcia died, I remember where I was when I learned that Isaac Asimov had passed away. It was a beautiful day, I was driving up to the county seat of Mariposa County. The sun was shining and the sky had never been more blue. Requiscat in Pace May the Angels carry her to heaven to meet the Dean.

The OmbudsGod debates the significance of the media's failure to delve into the Stalinist sponsorship of the Saturday's agitprop. TOG's correspondent argues:

For one thing, I suspect that many marchers, and perhaps many who did not march and would not have, probably would consider the American Nazi Party and the Klan much closer to being a clear and present danger to the public than ANSWER is or ever has been.

One could safely lay long odds that "many marchers" would consider ANSWER benign vis a vis the Nazi Party, but how is it that that value judgment informs journalistic norms? You can bet that if the American Nazi Party organized a march at which Republican politicians spoke, that fact would be front paged news. You can also bet that the fact that many participants and non-participants could accurately reason that (a) inasmuch as there are no hostile Fascist powers - the last one having been pretty much exterminated and purged - and (b) most American Nazis are semilliterate, that they are far less dangerous than a group of ideologues who do profess an ideological attachment to at least one - and prior to 1989, more than one - hostile foreign powers armed with nukes. But, hey, that kind of thinking is "McCarthyite."

This kind of journalistic disinterest has been going on for years, but this is the first time in my memory that the Stalinist sponsorship of a "peace protest" has been a subject of discussion. In fact, I heard Victor Davis Hanson discuss this issue today on local radio. Then, of course, there is this James Lilek's piece:

Nowadays, if you point out that someone’s a Communist, you might well be accused of - dum dum DUMMMM - McCarthyism. The term has morphed from its original meaning. It no longer means falsely accusing someone of being a Communist. It now includes correctly identifying someone as a Communist, or ascribing a taint to someone because they don’t reject the Communists in their midst. (I’ll admit there’s a significant difference between the two.)

But let’s leave this increasingly insupportable series of generalizations, and return to the point. Do reporters suppress the nature of ANSWER / ACTION because they don’t want to embarrass the movement? No. Do they secretly admire the ANSWER / ACTION / WWP positions on China, North Korea, and other dictatorships? Of course not. (Cuba is another story.) Are they inclined to wonder who’s behind the rallies? No. NeoNazis, Klansmen, Separatists, Militias, the Promise Keepers - these words make reporters’ antennae quiver. “Communist” does not. It’s an institutional blindspot, and if you doubt it, consider this:

A fashion designer premiers a line of clothes emblazoned with the hammer-and-sickle. The story runs in the variety section; there are quotes from fashionistas about retro iconography, the kitschy appeal of Socialist Realist art, and nostalgia for the stability of a binary, pre-terrorist world. The story would have the tone of a worldly cultured person peering through a monocle at a butterfly whose wings were amusingly deformed.

It is perplexing. There is nothing admirable about the Communists that you can't also find in Nazi ideology. Wear a swastika and you're walking leprosy; wear a red beret and it's a fashion statement. You know, I have never met a Nazi or a Klan member, but I went to law school with a card-carrying Communist. Nobody harassed him. He fit right in. But - jeez - the Gulag, the Katyn Massacre, the Ukraine famine, Stalin.....you know, that stuff. Nonetheless, you have to hope that this weekend perhaps saw the start of a healthy process which will result in consigning the Communists to the moral plague ward with the Nazis and the Klan.

I need to work on my attitude

Anna recommended this test and I only scored 92 out of 100. Although, I did outscore that wishy-washy Belligerent Bunny's score. Ha, and The OmbudsGod is a is a virtual pantywaist.

The Angry Clam speaks and - zap - the next thing you know, you're excommunicated.

Toss another burning faggot on the auto da fe - which I swear is not a reference to anyone's sexual orientation - as The Angry Clam claims credit for this.

Movie News

Catholic and Enjoying It! linked to this parody site - I can't overstress the fact that it's obviously a parody. On this note, I rented Undercover Brother this weekend. Undercover Brother chronicles the joint efforts of Undercover Brother and the Brotherhood - dedicated to Truth, Justice and the African-American Way - to frustrate the efforts of the perfidious "The Man" and his minions to eliminate funk in the African-American way of life. I found it to be pretty funny and give it a "thumbs up" recommendation. I found it more enjoyable than the latest and execrable Austin Powers flick.

I also rented Signs, having missed it when it was released into the theaters. I guess I am the kind of person who looks for signs in things. I liked the movie. Another thumbs up recommendation.

For what it's worth.

From the "Bush gets it, even if no one else does" File

Via the Angry Clam, here is Bush's commnts on the U of M admissions policy. These comments, and Bush's statement on Fox yesterday that there are other ways of achieving diverstity, show that at least Bush understands the issue, even if members of his administration don't understand.

The issue is not whether diversity is a good thing. It is. The issue is whether under a strict scrutiny review, there are ways of achieving the policy goal without utilizing the "suspect classification." Further, where the suspect classification is used, then strict scrutiny requires rigorous attention to the impact on members of the non-protected class. According to Bush, giving one group 20 points out of a hundred on the basis of race simply goes to far. Are there non-racial approaches to increase diversity? Well, obviously. How about outreach programs, or entrance policies based on geography, or private scholarship programs, or .......

The point is that under strict scrutiny the burden is on the parties proposing the use of the racial classification to show that there are no other less intrusive alternatives.

More peace protester antics?

Pdawwg - God Bless that fine upstanding Catholic Grandma - has a photo demonstrating the airodynamics of falling naked bodies. Oddly, falling naked bodies are not as attractive as you might otherwise expect. Actually, I don't really have any tie-in to anything that would redeem this post. It just falls into the "yikes, Penner, you got to look at this category. I guess after this I'm doing virtual penance in the St. Blog's doghouse.

The OmbudsGod revisits the Boston Globe's profile of Ted Kennedy and this claim made for him:

If she had lived, Mary Jo Kopechne would be 62 years old. Through his tireless work as a legislator, Edward Kennedy would have brought comfort to her in her old age."

The Globe's ombudsman responded to predictable, and understandable, expressions of shock over this insensitive statement by reassuring its readers that the writer was "misunderstood" or "unappreciated" by "some readers" and intended to be "brutally ironic" over Kennedy's contribution to the nation's welfare. Ombudsgod asks some fair questions about the moral calculations that go into such a statement. How many people? Does the calculation change depending on the person's politics? etc. Also, check out Mark Steyn's column which contains this passage:

When you reduce citizens to subjects, inevitably a little droit de seigneur gets built into the equation -- not just in the Kennedy-Clintonian sense, but in all kinds of other areas. Take Al Gore, Mister Environment, the man who inflicted Federal toilet regulation on America's bathrooms in the interests of water conservancy. Meanwhile, back at the farm at his alleged home in Tennessee, Mr. Gore's tenants the Mayberrys had asked their distinguished landlord 30 times to fix their leaking toilet. But the Eco King saw no contradiction between requiring everybody else to make do with cisterns that hold less than a supersized cup at McDonald's and forcing his own tenants to live in a septic tank for over a year.

The Raven links to this deconstruction of the Derrida.