Saturday, July 27

Not an Athlete?!

I believe that we may have found the world's stupidest sports columnist (and, given the competition, that's saying something). As Lance Armstrong closes in on his fourth consecutive Tour de France title, Boston Globe and sportswriter Ron Borges has the nerve to suggest that Armstrong is not an athlete, let alone a great athlete. "Athletes, for my money, must do more with their bodies than pump their legs up and down," Borges writes. "If that’s all it took, the Radio City Rockettes would have to be considered the greatest athletes of all time."

The column is full of such idiocy, presented in such an appallingly unenlightened manner that I have to believe Borges wrote it just to get a rise out of people, not because he actually believed anything he wrote. Rather than go line-by-line through the column, let's just focus on Borges's own definition of an athlete, to show how little attention he actually pays to the subject he's discussing:

For my money, being the greatest athlete in the world involves strength, speed, agility, hand-eye coordination, mental toughness and the ability to make your body do things that defy description. Chief among them is not pumping your legs up and down while your feet are strapped to bicycle pedals.

Element by element:

* Strength: Has Borges seenLance Armstrong's thighs? How does Borges think Armstrong manages to climb those mountains? Or does leg strength not count? If not, do we have to eliminate baseball Hall of Famer Tom Seaver, who generated much of the power for his fastball from his driving legs?

* Speed: Idiocy, utter idiocy. Armstrong is winning a race. He won today's time trial, which, in bicycling terms, was essentially a sprint. Borges dismisses this by asking how fast Armstrong would be without his bicycle. But what does Borges think powers that bicycle, a motor? Like all cyclists, Armstrong generates his speed from his legs (okay, he gets an assist from gravity on the downhills). Armstrong just generates more of it than his competitors.

* Agility: Facially, it may appear that there's not much room for agility in cycling, since the cyclist remains on the bicycle throughout the race. On the other hand, maneuvering through the peloton isn't exactly like walking alone through an open field. This also answers one of Borges's more ignorant comments: "He can pedal a bike better than anyone. He probably didn’t even need training wheels. But could he do it if someone was playing defense?" He does, Ron, he does.

* Hand-eye coordination: Note that by Borges's definition, soccer players aren't athletes (with the possible exception of goalkeepers). But, as we'll see in a bit, that actually fits with what ultimately underlies Borges's dismissal of cycling—something that has nothing to do with hands. In any event, it appears that Borges has forgotten that cycling involves more than simply moving one's legs up and down. There's also the not-so-small matter of steering.

* Mental toughness: The Tour de France requires racing day after day, often for four or five hours at a stretch, on treacherous road courses, at high speed and often in close proximity to other riders. There are no breaks, no timeouts, no halftimes. The concentration and mental toughness required to succeed in this environment is astonishing. I don't have it. Borges doesn't have it. The vast majority of those Borges would consider athletes don't have it.

* The ability to make your body do things that defy description: In the course of the Tour de France, Lance Armstrong sometimes achieves speeds in excess of 20 mph. Uphill. Climbing mountains. Based on what I see on the roads, most casual bicyclists have trouble maintaining such speeds on table-flat surfaces.

Borges seems to be laboring under the misconception that what Armstrong does is essentially a sped-up version of what ordinary people do casually on weekends. It is not. Casual bicycling bears no more resemblance to what Armstrong does than my shooting baskets in the driveway bears to what Michael Jordan did at the top of his game (and anyone who has ever seen me try to shoot baskets knows that there's no resemblance at all).

Toward the end of his column, Borges writes: "In recent years, a minority of media members in America have tried desperately to convince us that fringe sports such as cycling must be given their due." This, I think, is ultimately why Borges doesn't consider Armstrong an athlete: his sport is not popular. In America. (It certainly is popular in Europe; this is where soccer re-enters the picture). It's fine if Borges doesn't like cycling. I don't like boxing, the sport that Borges covers for the Boston Globe. But the fact that a sport isn't popular in this country does not mean that its champions are not athletes. To believe otherwise is an act of outrageous provincialism.

Update: Former competitive cyclist Armed Liberal, who knows better than I do, offers more specificity about the astounding speeds that the Tour de France cyclists achieve climbing the steep mountain roads. And in a comment to Armed Liberal's post, Kevin Raybould of Lean Left cites Borges's article as an example of "the Jim Rome-ing of sports commentary." I think Kevin's right. Jim Rome does good interviews, but too much of his commentary/schtick is calculated to rile up his listeners rather than to enlighten or inform. Borges's article is very much in that vein.

More Lawblogs

I discovered two new lawblogs (or blawgs, as Denise Howell calls them) through their links to my post yesterday on the president's proposed medical-malpractice caps. Sam Heldman works in the Washington, D.C. office of an Alabama law firm; his weblog focuses on the Alabama court of appeals, the U.S. Court of Appeals for the Eleventh Circuit (which includes Alabama), and the National Labor Relations Board. This last is of particular interest to me—before I became an academic, about half of my practice involved labor and employment law. The LitiGator is the collective effort of a Michigan law firm, with commentary on a variety of legal issues. Both of these sites are off to promising starts.

I meant to include Stuart Buck when I added sites to the blogroll yesterday. Stuart is a lawyer, too, but his weblog has a somewhat broader focus than Sam Heldman or The LitiGator, so I'll place him in the category of "interesting weblogs."

And They're Off

Meryl Yourish and Laurence Simon have begun the 24 hours of Blogathon 2002; they'll post each half-hour until tomorrow morning. Meryl is blogging for Shaare Zedek Medical Center in Jerusalem; Laurence is blogging for Magen David Adom. Please stop by and offer your support; it's not too late to pledge.

Friday, July 26

Here and There

I'm rearranging the blogroll a bit, moving a few sites from "daily reads" to "interesting weblogs" and adding a few new ones. The blogs that I'm moving remain good blogs, and I still visit them regularly, but I no longer find myself reading them every day. In one instance, it's because the blog in question isn't being updated regularly—Asparagirl is in the midst of an unexplained absence. As for the others, well, I do have a job, and there are only so many weblogs I can read every day. And besides, I keep finding other interesting sites.

Diane E. at Letter from Gotham has had a great week, demonstrating Andrew Sullivan's blatant hypocrisy and opportunism and wonderfully capturing where we are in post-9/11 America in post titled "Reasons for Hope."

My old World Cup buddy Jessica, of The Blog of Chloe and Pete, was lucky enough to see a Brooklyn Cyclones game at Keyspan Park in Coney Island. As Jessica notes, short-season Single-A baseball isn't necessarily of the highest quality (I learned this by watching the Vermont Expos), but her post reinforces everything wonderful I've heard about Keyspan Park. As a keen observer of New York City baseball, I'm eager to see a Cyclones game, although given the Noah-imposed restrictions on my travel for the next few years it will almost certainly be awhile. Jessica also has an interesting post about the ongoing battle within the American novelist community about what constitutes good fiction. Jessica's weblog covers a different set of topics than most of the weblogs I read, but it's well-written and contains a number of keen observations. So into the blogroll she goes.

Via Ted Barlow, I discovered PostPolitics, a thoughtfully-written group blog with a libertarian orientation. Its authors are interested in discussing ideas rather than calling their political opponents names. I haven't added a conservative weblog to the blogroll in awhile; this one seems worthy.

More to Ignore

Tom Tomorrow has an excellent post about the latest in intrusive advertising (CNN plugs on Bank of America ATMs), suggesting that the more advertisers try to gain our attention, the more we will ignore them.


I was contemplating writing about Paul Krugman's column today, addressing the president's fixation on Social Security privatization, but Ted Barlow beat me to it.

The Expos' Fate

With the nation's capital ready and eager to play host to a Major League Baseball team, and with the Expos on their last legs in Montreal, it would seem natural to move the Expos to Washington, D.C. next season. But Eric McErlain offers a persuasive explanation (other than the ineptness of baseball's owners) why it won't happen.

False Federalists

The president's speech yesterday, urging Congress to pass national caps on medical malpractice damage awards, offered further evidence that, for many Republicans, support for federalism is a matter of politics rather than principle. For all their rhetoric in opposition to intrusive federal laws and in support of local control, many Republicans are perfectly willing to intrude into areas of traditional state law where doing so would achieve a policy aim they favor.

Few areas are so traditionally within the province of state law as tort law, yet state tort law has been under constant pressure from Republicans at the national level for more than a decade. Tort reform was a central plank of Newt Gingrich's Contract With America, focusing principally on products liability law. Now, there's actually a decent argument to be made for national standards in products liability law (a subject I've taught in the past): the makers and marketers of nationally-available products currently face a crazy-quilt of different liability standards across the country, which certainly complicates the conduct of their business. This doesn't mean that I support the particular standards that congressional Republicans proposed in 1995, but at least the argument for federalizing the applicable law makes sense.

It's harder to make the same argument for medical malpractice. Unlike the producers of products, the number of doctors who practice in multiple jurisdictions is more limited. What's more, the problem that the president proposes to address is not so much liability standards as damage amounts. The complication of having to alter one's conduct based on different liability standards in different jurisdictions is less evident when the focus is shifted to damage awards. The reduction in complexity here would benefit insurance companies more than doctors. Insurance, however, is another area that traditionally has been the subject of state, not federal, law, and the argument in favor of nationalizing medical malpractice law to assist the insurance companies would also support nationalizing most if not all forms of tort law, since insurance companies are involved in the majority of tort lawsuits. This would, of course, represent an enormous intrusion on state law.

Not coincidentally, the president's proposal represents an effort to strike a blow against trial lawyers, a reliable source of financial support for the Democrats. Now, individual trial lawyers sometimes do some truly stupid things. Jeff Goldstein nicely illustrates this today in his post about the newly-filed class action lawsuit against fast-food proprietors. But as a lobbying force, trial lawyers are sometimes a useful proxy for the population at large. As my mentor and former boss Guido Calabresi has observed, we, individually, tend not to think of ourselves as potential tort victims—we recognizes that some people may be injured by defective products, or negligent doctors, or whatever, but we don't think it will happen to us. Thus, until we're actually injured, most of us don't have a tremendous interest in the status of the law, and the number of injured at any one time is not sufficiently large to form an effective lobby. Insurance companies, professional associations like the AMA, and business groups (representatives of potential defendants, in other words) have a constant interest in the state of the law and thus form effective lobbying entities. The trial lawyers, as representatives of potential tort victims, serve as a useful counterweight. That's not to say that the trial lawyers engage in their lobbying selflessly—of course they don't. But their lobbying efforts generally are no more offensive than those of other organized groups.

A number of states already have caps on non-economic damages (damages for pain and suffering) in medical malpractice cases. I personally think that the caps in many jurisdictions are rather low—the purpose of tort damages is to make the injured party as close to whole as is possible, and $250,000 doesn't seem like adequate compensation for a lifetime of incurable pain brought on by a doctor's malpractice, as sometimes happens. But, again, this is a policy debate. And if Republicans want to have this policy debate, fine—that's where the state caps came from in the first place. But, given the president's effort to nationalize this issue (together with the attorney general's failed effort to block Oregon's assisted-suicide law, among other things), I am really uninterested in continuing to hear Republicans portray themselves as defenders of the principle of federalism.

Thursday, July 25


Dan Lewis has republished his piece on stupid team nicknames (which otherwise was about to become unavailable); he has some additional comments today about WNBA nicknames today. Dan notes that the nicknames of many cities' WNBA teams are related to the names of the same cities' NBA teams; thus we get the Orlando Miracle/Magic, the Charlotte Sting/Hornets (oops), the Miami Sol/Heat, and so on. Dan points out that this parallelism explains the ending of the WNBA Utah team's name: the Starzz have two z's, just like the Jazz. Idiocy, utter idiocy.

I'd like to think that, when the Utah team was being formed, its owners chose to remember the old Utah Stars, who played in the ABA from 1970 to 1975. Even if that were the case, though, the name is utterly ruined by the dumb and hideous addition of the two z's. Ugliness and stupidity do not make an appealing combination.

Unbelievable Incompetence

Jason Rylander notes that D.C. Mayor Anthony Williams, who was elected to restore competence and integrity to the notoriously corrupt and inept D.C. government, apparently has failed to submit a sufficient number of valid petition signatures to gain a spot on the Democratic primary ballot for his re-election bid. Apparently, his petitions included large numbers of forged signatures; included were purported signatures of celebrities and deceased persons. So much for competence.

A West Wing Departure

Via Ten Miles from Disneyland (one of the new Salon blogs that already seems to be having some technical problems), I learned yesterday that Rob Lowe will be leaving The West Wing next season. Lowe is dissatisfied with the money he's making—a bit more than the actors playing the other White House staffers but substantially less than Martin Sheen—and the show's producers, apparently recognizing that Lowe doesn't really add any more to the show than Bradley Whitford, Allison Janney, John Spencer, and Richard Schiff do, won't negotiate a raise. So, as of next March, Sam Seaborn will leave the White House staff.

Sorry as I'll be to see Sam go, his departure will actually make the show seem more plausible. The West Wing is about to enter its fourth season, with the White House staff still intact. That just never happens. Even the current administration, which has been unusually stable in terms of personnel, has already seen a major departure in Karen Hughes. No matter how much loyalty President Bartlett might inspire, it's just wildly unrealistic to suggest, as the show has, that he could keep his high-level staff together through his entire first term.

Back to Work!

After a heavy day of blogging on Continuation Wednesday, today will necessarily be lighter, in volume of posting and (I hope) in tone. The experience of yesterday, in which I blogged more than 3000 words and experienced very heavy traffic thanks to a pair of links from Instapundit, and not coincidentally got very little real work done, brings to mind Stuart Buck's recent observations about blog traffic patterns, which tend to peak at midday during the week and to fall off dramatically during the evenings and on weekends. Stuart based his observations on Instapundit's visit logs, but I've noticed the same thing in my own traffic (which is substantially less than Glenn's). And while my original plan for this blog was to post during the early morning and evening, I find myself blogging during the day because I know that's when people are reading. Many other bloggers seem to be doing the same thing.

What this means, of course, is that we're all wasting a lot of our employers' time. Which leads to the question: how much is blogging responsible for the current economic slump? Back to work, people!

More on the Gaza Attack

Armed Liberal captures more eloquently than I did the ambiguous feelings that he and I apparently share about the means employed in Israel's assassination of Salah Shehadeh.

Wednesday, July 24

Rage, Continued

Jeff Goldstein at Protein Wisdom takes issue with my assertion in yesterday's post that the attack on Salah Shehadeh "was undertaken with full knowledge that it would result in the death of civilians, the wounding of more, and the destruction of a number of homes." Jeff refers to a Ha'aretz article suggesting that, at the very least, Israel's political leaders (and possibly its military leaders as well) were acting on incomplete and faulty information in deciding to go ahead with the attack. Another Ha'aretz article from today provides further information about the holes in the available information. I'm not sure what to make of these articles: there's a whiff of plausible deniability and butt-covering in them that I don't quite trust. And I tend to think that, given the population density in Gaza, there was at the very least reason to suspect that dropping a one-ton bomb in a residential area would cause civilian casualties. But Jeff is right that I went too far in my assertion.

I'm still upset by the Israeli action, though. Yes, I recognize the utter hypocrisy in Palestinian complaints about civilian casualties, given that the very purpose of the Palestinians' suicide bombing attacks is to create civilian casualties. No, I don't believe for a second the Palestinian claims that the various militant groups were on the verge of agreeing to cease targeting Israeli civilians when the attack on Shehadeh occurred. And it's possible that this attack, tragic as the civilian deaths were, will ultimately produce a net saving of life (although that's far from clear at this point). Regardless, this attack, by suggesting an Israeli willingness to inflict civilian casualties, will greatly complicate Israel's effort to protect itself in the short run, both by drawing international condemnation and by further radicalizing (if that were possible) the Palestinian population. And, in the absence of all-out war (which, despite the events of the last six months, we still do not have), it is a dangerous step to accept the high likelihood of civilian casualties to obtain a military objective.

Is my thinking on this still confused? Yes. It's a confusing situation. But, yes, fair or not, I do expect better of Israel than this.

The Troublesome Ninth Amendment, Continued Once Again

Stuart Buck, recently a law clerk for a superb judge on the U.S. Court of Appeals for the D.C. Circuit, weighs in on the Ninth Amendment, responding to my post of earlier today. Stuart concedes the aptness of my criticism of Justice Scalia in that post. He goes on to suggest, however, that by stating that ""very few purported practitioners of strict constructionism are willing to adhere to their principles when it comes to the Ninth Amendment," I meant to suggest that there were none. That was not my intent; I try to avoid such categorical statements in the absence of sufficient research, and I readily concede that the degree of research I do for my weblog posts falls far short of what I do for my legal scholarship (were it not so, the weblog might have one or two posts per week, at most, and what would be the fun in that?). I do, however, find it significant that a principal proponent of what most would call strict constructionism (though he himself would not) does not adhere to the dictates of his own approach when it comes to the Ninth Amendment.

Stuart then goes on to contrast Justice Scalia with Justice Thomas, who, he says, is more true to his principles in this respect. As evidence, Stuart points to Justice Thomas's concurrence in Troxel v. Granville, the case from which I cited Justice Scalia's dissent.

Frankly, I'm not sure what to make of Justice Thomas's very brief concurrence in Troxel. While it is true that Justice Thomas recognizes a "fundamental right of parents to direct the upbringing of their children," that recognition is based on the existence of precedent: the Court's decision in the 1925 case of Pierce v. Society of Sisters, which, based on the Court's even earlier decision in Meyer v. Nebraska (an opinion authored, like Pierce, by Justice McReynolds), placed the right within the "liberty" protected by Due Process Clause, but otherwise offered little analysis. In evaluating the strength of Justice Thomas's recognition of the right in question, it's worth taking into account the opening paragraph of his two-paragraph opinion:

I write separately to note that neither party has argued that our substantive due process cases were wrongly decided and that the original understanding of the Due Process Clause precludes judicial enforcement of unenumerated rights under that constitutional provision. As a result, I express no view on the merits of this matter, and I understand the plurality as well to leave the resolution of that issue for another day.

While Justice Thomas states that he "express[es] no view" on the matter, there is at least an implication here that, if given the chance, he would conclude that unenumerated rights are not enforceable, at least under the Due Process Clause (although there is an oblique suggestion in a footnote that they might be enforceable under the Fourteenth Amendment's Privileges and Immunities Clause). Justice Thomas's opinion says nothing whatsoever about the Ninth Amendment. While Stuart (an apparent admirer of Justice Thomas's, based on the link at the bottom of his site) may think that this opinion signals Justice Thomas's adherence to strict constructionist principles when it comes to the Ninth Amendment (which was, after all, the subject of my post), I remain unconvinced; it speaks more to me of his reluctant adherence to the principle of stare decisis.

I'm a Magic, Continued

Responding to my post on Monday about annoying, grammatically awkward trends in naming sports franchises, Ann Salisbury sent me the following email:

And let's not forget the Toronto Maple Leafs -- as opposed to "leaves." Wonder what the British wanker who wants us all to blog in the Queen's English would say about that -- especially since the Canadians belonged to the Brits at the time.

Ann makes a good point: weird, grammatically awkward names are not a creation of the late 20th century but go back much further. But while the plural in the Toronto hockey team's name may be incorrect, at least you can describe an individual player as a Maple Leaf. The same can't be said of the Boston Red Sox or the Chicago White Sox: "Roger Clemens was a Red Sox, er, a Red Sock, um, he played in Boston most of his career." It's ugly.

And yet, these names don't bother me as much. They strike me, rather, as interesting quirks from bygone days. The Minnesota Wild, by contrast, just strikes me as a failure of imagination. (And don't even get me started on the WNBA's Utah Starzz).

It's Getting Lonely, Continued

Following my post on Monday about some of the potential issues users of Movable Type face, I had a very pleasant and productive exchange with Rob Humenik of Get Donkey, whose Movable Type site was being rendered very strangely by Internet Explorer 5.2 for Mac OS X (the latest version). Rob has graciously fixed the problem (and I've added him to the blogroll—he's worth a visit). His experience, as well as that of Matthew Yglesias (a Mac user whose new Movable Type site originally had problems displaying on Internet Explorer for Windows), reinforces Charles Kuffner's point that Movable Type, for all its features, is not for the faint of heart. Unlike Blogger, it requires a fair bit of testing and fiddling to make sure that its pages render properly across platforms and across browsers.

That explains why, as I said before, I'll most likely be sticking with Blogger. Mac Thomason of reminds me, though, that I don't need to stay with Blogspot to keep using Blogger. If the problems continue with Blogspot loading slowly (and sometimes failing to load at all), I may well look into switching this site to a new host. I might even look into switching to Salon's new Radio UserLand blogs, although, given Salon's precarious financial situation, I'm reluctant to invest in a site hosted there.

Update: Wouldn't you know it? This very post, the one in which I praise Blogger for letting me avoid weird display problems, is now displaying improperly in IE 5.2 for Mac OS X (specifically, the first line of the second paragraph tends to end prematurely, depending on the size of the window). Argh!

Live Justice, Continued

Speaking of Justice Scalia….

My fellow Mets fan and political foil Eric McErlain took issue with my post yesterday about the possibility of televising the Supreme Court's announcement of its decisions. I wrote:

My response may be influenced in part by my suspicion of who would benefit most if the Court were to televise the announcement of its decisions. Justice Scalia is the Court's most forceful presence, and the disdain that suffuses many of his dissenting opinions (most recently in June's Atkins v. Virginia) is already calculated to engender disrespect for the Court's decisions with which he disagrees. Justice Scalia already commands disproportionate attention in the media because of his outsized personality and his strongly held views; the Court as a whole would not benefit by giving him a broader platform that would give him even more disproportionate attention.

Eric responded:

As for Jeff's fears about Scalia, it isn't just that he has an "outsized personality and strongly held views." Scalia, whether his enemies want to admit or not, is a formidable intellect—perhaps one without peer on today's court. If Scalia were just another right wing partisan like Bob Dornan, Jeff would have a case here. But that's simply not the situation with Scalia—a man with deeply held beliefs that are based as much in intellectual rigor as ideology.
* * *
In the end, digging in against televising Supreme Court decisions on these grounds is a disservice to honest debate. Ironically, it may be the liberal point of view that is served worst by such a decision. After all, the Democrats didn't derail the Gingrich steamroller until he began suffering from serious delusions of grandeur, opening up multiple avenues of attack for Democrats. If Scalia is the sort of legal mind that Jeff suggests that he is, all it should take is a few clever law clerks to trip him up. But if he's wrong, all the better. After all, the only way you'll be able to learn how to beat your toughest opponent, is to take him on without fear or reservation.

I'm afraid that Eric has at least partially misunderstood my point, which means that I didn't make it very well. I didn't mean to suggest that Justice Scalia is nothing more than a blowhard or "just another right wing partisan." No one can seriously question that Justice Scalia has a powerful mind (although, as my post from earlier today suggests, I don't think he's always as consistent as he may think he is). But powerful minds are not what television values; powerful presences are. Given a choice between the forceful, assertive Justice Scalia and Justice Souter, who like Scalia is highly intelligent but whose manner is milder and whose words are more measured (even if equally persuasive on paper), television will favor Justice Scalia every time. My concern here isn't so much a possible broadcast on C-SPAN; it's the use that news directors might make of the tapes in commercial newscasts. The Supreme Court's business is not about soundbites or visual and aural cues, and the Court's work would suffer if television were to influence its processes.

Continuation Wednesday

There are a number of recent posts I want to revisit in light of some comments I've received. So I'm dubbing this "Continuation Wednesday." Here we go . . . .

The Troublesome Ninth Amendment, Continued

Glenn Reynolds took note of yesterday's post on the Ninth Amendment, commenting:

I'm a big Ninth Amendment fan. I don't agree with Cooper, though, that the Ninth Amendment poses a problem for strict constructionists. It only poses a problem for intellectually dishonest strict constructionists of the Robert Bork variety. I spelled this out at (no doubt excessive) length in a 1990 law review article entitled Sex, Lies and Jurisprudence: Robert Bork, Griswold, and the Philosophy of Original Understanding, which unfortunately isn't available on the web.

The gist was that if you believe in following the Framers' intentions, and if the Framers clearly believed in unenumerated rights, then you can't dismiss the Ninth Amendment as a mere "inkblot," as Bork did in his confirmation hearings.

Fair enough: I was overbroad in stating that the Ninth Amendment is troublesome for all strict constructionists. Glenn is a textualist (and perhaps a strict constructionist?), and he clearly takes the Ninth Amendment seriously. In Penumbral Reasoning on the Right, the University of Pennsylvania Law Review article that he references in his post, Glenn wrote:

I believe that we should read the Ninth Amendment, in part, as a command to use penumbral reasoning in the rights area since only by doing so can we avoid "denying or disparaging" rights not explicitly mentioned in the Constitution—just as we must use penumbral reasoning to avoid gutting the idea of sovereign immunity, which probably is incorporated in the Eleventh Amendment despite its absence from the text. And if the Court has already been wiling to make far-reaching use of penumbral reasoning in areas lacking such explicit constitutional guidance—such as standing and sovereign immunity—then it should certainly be willing to do so in areas where individual rights are concerned.

Much as I agree with Glenn's statement here, the central difficulty it poses (and one that he himself recognizes) is that very few purported practitioners of strict constructionism are willing to adhere to their principles when it comes to the Ninth Amendment. As I previously noted, Judge Bork is an example of what Glenn calls an "intellectually dishonest" strict constructionist. What of today's preeminent conservative jurist, Justice Scalia?

(Justice Scalia, I should note, rejects the label "strict constructionist." In his 1997 book A Matter of Interpretation: Federal Courts and the Law, Justice Scalia writes: "I am not a strict constructionist, and no one ought to be—though better that, I suppose, than a nontextualist. A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means." Justice Scalia's approach to constitutional interpretation is founded principally on the original understanding of those who were around at the time of ratification. This is slightly different than original intent: Justice Scalia notes that he will sometimes refer to Hamilton's and Madison's Federalist papers, but "I do so… not because they were framers and therefore their intent is authoritative and must be the law; but rather because their writings, like those of other intelligent and informed people of the time, display how the text of the Constitution was originally understood.")

A review of the text of the Ninth Amendment and the historical context in which it was adopted supports Glenn's conclusion that the Ninth Amendment should be read as recognizing and preserving unenumerated rights. Yet Justice Scalia rejects this conclusion. In his dissent in the 2000 case of Troxel v. Granville (which invalidated a Washington state statute permitting a court to grant visitation rights to any person if in the best interests of the child, on the grounds that the statute violated the substantive due process rights of parents), Justice Scalia wrote:

In my view, a right of parents to direct the upbringing of their children is among the "unalienable Rights" with which the Declaration of Independence proclaims "all men ... are endowed by their Creator." And in my view that right is also among the "othe[r] [rights] retained by the people" which the Ninth Amendment says the Constitution's enumeration of rights "shall not be construed to deny or disparage." The Declaration of Independence, however, is not a legal prescription conferring powers upon the courts; and the Constitution's refusal to "deny or disparage" other rights is far removed from affirming any one of them, and even further removed from authorizing judges to identify what they might be, and to enforce the judges' list against laws duly enacted by the people. Consequently, while I would think it entirely compatible with the commitment to representative democracy set forth in the founding documents to argue, in legislative chambers or in electoral campaigns, that the State has no power to interfere with parents' authority over the rearing of their children, I do not believe that the power which the Constitution confers upon me as a judge entitles me to deny legal effect to laws that (in my view) infringe upon what is (in my view) that unenumerated right.

Justice Scalia, in other words, refuses to take seriously the Ninth Amendment's recognition of unenumerated rights, and in doing so he does (in both the amendment's and Glenn's terms) "deny or disparage" those rights (to say that the rights exist but are not judicially enforceable is certainly to disparage those rights in comparison with enumerated rights). And in reaching this conclusion Justice Scalia is, in my view, unfaithful to his own proclaimed methodology.

Glenn foresaw the problem a decade ago in his University of Pennsylvania Law Review piece:

Those commentators who style themselves as "conservative" have for some time managed to have it both ways, but they cannot keep it up much longer. Either they must take strict construction seriously, or they must give up their stand as defenders of principle. My guess, given the recent shifts on the Court, is that they will do the latter."

From my perspective, it looks like they're still trying to have it both ways.

Update: TalkLeft joins the Ninth Amendment discussion.

Tuesday, July 23


Regular readers of this weblog (both of them) know that I am a firm supporter of Israel. Last month I challenged Max Sawicky when he seemed to imply moral equivalence between Palestinian suicide bombers and Israeli actions against Palestinians. Shocked as I am to find myself supporting the actions of a government led by Ariel Sharon, I have found myself doing so in the face of this spring's wave of suicide attacks within Israel. But Israel has now crossed an important line.

Up to now, when Israel has engaged in targeted killing of hardline Palestinian terrorist leaders, it has generally done so in ways that at least attempted to minimize the possibility of collateral civilian casualties. Last night's killing of Hamas military leader Salah Shehada by airborne bomb attack, however, was undertaken with full knowledge that it would result in the death of civilians, the wounding of more, and the destruction of a number of homes. Given the manner in which the attack was carried out, the IDF's statement that it did not intend to harm Shehada's family is meaningless at best and disingenuous at worst: serious collateral damage was inevitable.

Shehada was an evil man, responsible for the deaths of many, many Israelis, and the world is a better place without him. Still, in all other respects, this operation is a disaster. It has inflamed world opinion against Israel after weeks of relative quiet. It has enraged the Palestinian street, which at least for a time will now support Hamas even more strongly. It has ensured a frenzied new wave of suicide attacks. And it has cost Israel dearly in its ability to claim moral sanction for its actions.

Live Justice

Howard Bashman notes a FindLaw op-ed piece by Sanford Levinson of the University of Texas School of Law, in which Prof. Levinson argues that the Supreme Court should announce its decisions (and dissents) on television. In support of his argument, Prof. Levinson draws upon Alexander Bickel's notion of inter-institutional dialog among the Supreme Court, the Congress, and the people, suggesting that such dialog would be facilitated by televising at least this aspect of the Court's functions. Now, I'm generally an admirer of Bickel's, and I adapted some of his ideas in my own article, Passive Virtues and Casual Vices in the Federal Courts of Appeals (66 Brooklyn Law Review 685 (2001), for those with law library access and absolutely nothing else to do). But, with respect, I think Prof. Levinson has a terrible idea. Televising the announcing of decisions will ensure disproportionate coverage for the Court's most dynamic personalities who write the most appealing soundbites. That's no way for members of the general public to understand how the Court functions or to promote constructive dialog.

My response may be influenced in part by my suspicion of who would benefit most if the Court were to televise the announcement of its decisions. Justice Scalia is the Court's most forceful presence, and the disdain that suffuses many of his dissenting opinions (most recently in June's Atkins v. Virginia) is already calculated to engender disrespect for the Court's decisions with which he disagrees. Justice Scalia already commands disproportionate attention in the media because of his outsized personality and his strongly held views; the Court as a whole would not benefit by giving him a broader platform that would give him even more disproportionate attention.

Catching Up: The Troublesome Ninth Amendment

While I was away last week, Kyle Still wrote a long post locating a constitutional right to privacy in the Ninth Amendment. I've long been fascinated by the Ninth Amendment: it was my favorite constitutional provision when I was a graduate student and law student, because it so neatly captures the difference in political philosophy between the founding era and the modern one.

The Ninth Amendment states: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The amendment grew out of the debate during the Constitution's ratification over whether a bill of rights was needed. The antifederalists contended that it was necessary, as a means of protecting the people from an overreaching federal authority. The federalists had essentially two responses. First, they argued that because the federal government was to be one of limited powers, a bill of rights was unnecessary—any action by the government that would violate individual rights would certainly lie outside the government's enumerated powers and thus would be unconstitutional even in the absence of a bill of rights. Second, they argued that a bill of rights would actually serve to limit, rather than preserve, rights. Any enumeration of rights, they asserted, was bound to omit some of those rights that free men by nature possessed; yet future generations, looking to the written document rather than to natural law, would read the written document as an exclusive list, effectively eliminating those rights not explicitly mentioned. When inclusion of a bill of rights effectively became a condition of ratification, the Ninth Amendment was written as a way of avoiding the latter problem.

The concept of unenumerated but nevertheless extant rights made sense in a political culture steeped in the writings of John Locke. As we moved to a system of individual rights enforced through judicial proceedings, however, the Ninth Amendment proved troublesome. What were the rights it protected? Precision was impossible, of course, given the open-ended nature of the amendment's text. But limits also were necessary, lest the amendment become a way for judges to constitutionalize their own personal preferences.

The Ninth Amendment poses a particular problem for so-called strict constructionists. Strict constructionism generally is meant by its practitioners to be a way to limit a judge's discretion in the interpretation or implementation of a constitutional provision. By embracing the concept of unenumerated rights, the Ninth Amendment threatens to obliterate those limits. Strict constructionists therefore generally proceed as if the Ninth Amendment did not exist, as if it were, as Judge Robert Bork said in his failed 1987 confirmation hearing, nothing more than an "inkblot" on the Constitution. Such an approach is contrary to ordinary principles of construction, which hold that individual provisions of a text should not be interpreted in such a way as to be rendered meaningless. But the principle of confining judicial activity within a narrow textual reading apparently is deemed sufficiently important that it trumps the ordinary method of interpretation.

Kyle lists a number of Supreme Court cases recognizing unenumerated or penumbral rights in support of the conclusion that the Constitution recognizes a right to privacy. I doubt that a strict constructionist find the argument satisfying—most likely a strict constructionist would conclude that the listed cases were themselves wrongly decided. But of course strict constructionism is not the only possible method of constitutional interpretation, and in the case of the Ninth Amendment it is particularly ill-equipped to cope with the concepts inherent in the amendment.

Although Justice Goldberg rested his concurrence in Griswold v. Connecticut (the 1965 case declaring Connecticut's ban on contraceptives unconstitutional) on the Ninth Amendment, the amendment has formed the basis of few decisions since then. But I know that at least one sitting justice at least at one time believed that the constitutional basis for a right to privacy was founded in the Ninth Amendment. (I hope that I will not be revealing any confidences by relating the content of a now-decade-old conversation). In 1992, while I was completing my first judicial clerkship, I was fortunate enough to be invited by Justice Souter to interview for a clerkship with him. The interview did not go particularly well, due in part to the fact that both of us were running fevers over 100 degrees. Near the conclusion of the interview (and after I had blown it by making some ludicrous, fever-induced statements about the Fourteenth Amendment), Justice Souter invited me to ask him any question I wanted to—anything at all, he emphasized. So I asked him something I'd been pondering: did the Ninth Amendment mean anything? Justice Souter seemed surprised—he later indicated to me that no other interviewee had asked him a substantive legal question—but he proceeded to give a thoughtful, 15-minute answer in which he ultimately concluded that the amendment provided the basis for a constitutional right to privacy.

I confess that I had entered the interview with a neutral-to-negative view of Justice Souter. It was early in his tenure at the Court, and like many Democrats I viewed him as a justifiably obscure mediocrity, selected only because the absence of a controversial paper trail would ease his confirmation. I left the interview with a completely changed view, impressed by his intellect and thoughtfulness, and ultimately enormously disappointed that I did not have the chance to work with him for a year.

But I digress. Justice Bork's conclusion notwithstanding, the Ninth Amendment must mean something. It might be viewed as incorporating into the U.S. Constitution those rights that were recognized by then-existing state constitutions. As Lawrence Tribe and Michael Dorf have suggested, it might be viewed as a rule of interpretation, requiring that rights both enumerated and unenumerated be considered at relatively high levels of abstraction (this would rebut the argument, for example, that because the word "contraception" does not appear in the Constitution, the Constitution does not prevent the government from banning contraceptives). But it has to mean something, and in all likelihood Kyle is ultimately correct that among its meanings is that a constitutional right to privacy exists.

Monday, July 22

I'm a Magic

Dan Lewis has an amusing post about one of my sports pet peeves, the use of singular nouns for team nicknames. This appalling trend started nearly three decades ago in the NBA with the New Orleans Jazz and now encompasses not only the NBA (Miami Heat, Orlando Magic) but the NHL (Tampa Bay Lightning, Minnesota Wild), and most of the minor sports leagues like Major League Soccer, the Arena Football League, and minor league baseball. Dan's post focuses on the WNBA and offers a creative solution to a particularly annoying problem with these names: how do you refer to an individual member of the team. A member of the New York Mets is a Met, but what is a member of the Miami Heat?

Despite several rounds of expansion and a couple of renamings associated with franchise moves, the NFL and Major League Baseball have somehow managed to avoid these abominations. I fear, though, that it's only a matter of time.

It's Getting Lonely Around Here

Charles Kuffner joins the exodus from Blogger and Blogspot, moving his blog to Movable Type and its own domain. His post on the move explains, however, why, despite all the problems that Blogger and Blogspot have had recently, I for one will be staying put:

After two days of fooling around with Movable Type and nearly a week of having my own domain, I can definitely say that I like it but it's not for everybody. I'm an IT professional and I ran into a few bumps in the road getting everything configured. Had I not had a decent amount of tech fu in me, I'd have been sucking my thumb and crying for Mommy. If you think telnet is a long-distance plan and FTP is a brand of motor oil, take my advice: Stay on Blogspot. You can always get Blogger Pro if you want to spend a few bucks for extra bang.

I know what ftp and telnet are, but I'd rather not be bothered. Blogger allows me to organize and maintain my blog with only a minimal knowledge of html; I don't have to worry about cascading style sheets or cross-platform, cross-browser issues like those on Movable Type do (anyone with a Mac can check out Get Donkey's new site using Internet Explorer 5.x to see what I mean). I've found it sufficiently worthwhile that I was willing to support Pyra's efforts by paying for Blogger Pro. So, annoying as the loading times, archive glitches, and other bugs have been, this is where I'll be staying.

Putting the Pieces Together

On June 28, writing about the president's "trifecta" joke ("You know, when I was one time campaigning in Chicago, a reporter said, `Would you ever have a deficit?' I said, `I can't imagine it, but there would be one if we had a war, or a national emergency, or a recession.' Never did I dream we'd get the trifecta."), I connected the dishonesty at the heart of that supposed joke to the more serious dishonesty at the heart of the president's 2001 tax cut, and then suggested that the latter dishonesty showed why the emerging accounting scandals mattered politically as well as economically:

Democrats failed to make the case that the tax cut was being sold dishonestly when the package was approved last summer. So far, Democrats have also failed to explain the political significance of the series of corporate accounting scandals that once again came to a head this week. But that may be beginning to change. On yesterday's Diane Rehm Show (a RealAudio file of which can be found on this page), Tom Mann of the Brookings Institution made the connection between the Bush tax cut and the current accounting mess in the private sector:
I could make an argument that the kind of budgetary manipulation engaged in by President Bush and the Congress last year to make a big tax cut look affordable—and the games played on that were shameful—has its analogues in what we're discovering in the private sector. So sadly, this kind of gaming to hide bad news over the hurdle in order to achieve some immediate objective can be seen in government today.

The argument isn't fully formed yet. And given the general ineptitude of the current crop of Democratic spokespeople, it may never be developed properly. But the potential is there to make a powerful case that Bush's propensity for mistruth goes beyond the relatively trivial, if tasteless, joke with which he regales GOP audiences and extends to the very heart of his economic plan. We've seen what that kind of dishonesty has done to Enron, Global Crossing, Worldcom, and now Xerox. If we're not careful, it could happen to us all as taxpayers, and not simply as shareholders.

Now, as Matthew Yglesias points out, more commentators are beginning to make the connection, and drawing in the president's and vice president's own past financial dealings. In this week's New Republic, Jonathan Chait writes:

The Harken Energy and Halliburton debacles, as most people know by now, involved companies that artificially inflated their earnings and allowed Bush and Cheney to walk away with healthy personal profits before the public got wise. The budget scam works a similar way but on a vastly grander scale. First, Bush and his cronies used deceptive accounting to make it look like the federal government could afford a massive tax cut and still pay off the national debt. It couldn't. Now they're using the same dishonest accounting methods to argue that our current budget deficit will be short-lived. It almost certainly won't.

When Bush first put forward his tax cut early last year, opponents warned over and over that the surpluses with which he proposed to fund it might not materialize. "We have said all along these are nothing more than projections that could change almost immediately," cautioned Senator Tom Daschle in March 2001. And over and over, administration officials dismissed these warnings. "Well, we really can't miss," insisted Office of Management and Budget Director Mitch Daniels last year when questioned about the reliability of surplus forecasts. "We've been underestimating revenue by as much as eighty billion [dollars] a year. And we are likely to continue doing that."

Now, just as the White House says Bush didn't know his Harken stock was about to fall before he sold it, they claim he couldn't possibly have known the surplus was about to plummet. As Daniels put it last week, the surpluses of the late '90s were "more closely tied to the stock market run-up than perhaps was thought at the time," so when the stock market dropped, federal tax revenues fell far more than anticipated. "No one as far as I know really saw this coming." Actually, many economists (the primary exceptions being those employed by, or shilling for, Bush) worried it might. In Fuzzy Math, his primer on the Bush tax cut, Paul Krugman warned that "the high tax take in recent years has had a lot to do with the bull market on Wall Street ... in light of the market's plunge, [the surplus projection] does not seem like a safe, or even a reasonable, assumption." But the Bushies blithely disregarded such warnings.

And far from learning its lesson, the White House is using the same Pollyannaish forecasting today. Despite the tanking stock market and wave of business scandals, the White House assumes corporate profits will shoot up 70 percent by 2005--an estimate wildly more optimistic than most private-sector forecasts. "If you compare their projections to ours," explains Andrew Hodge, the chief U.S. economist for DRI-WEFA, the largest econometrics firm in the United States, "they have a dollar level that's close to thirty percent higher."

The reasons why the stumbling economy poses such a problem for the president are becoming clearer. In light of the accounting scandals, closer scrutiny is being given to the assumptions underlying the Bush budget—and the numbers don't add up. And as personal beneficiaries of crony capitalism, the president and vice president are ill-suited to call for reform of the very corporate governance practices that made them rich. Bush I foundered on mismanagement of the economy; it seems increasingly possible that Bush II will do so as well.

Sunday, July 21

Site Update

I'm back from my travels; normal blogging will resume tomorrow. In the meantime, I've modified the blogroll with links to a couple of sites that were kind enough to link to me.

Live Finn

At his best, Neil Finn is a superb performer, with innate charm and a command of the stage developed through a quarter-century of tours. At New York's Irving Plaza on Friday night, he and his band were in top form, ripping through a 2 1/4 hour set with energy, enthusiasm, and good humor; they seemed to be having as great a time as the audience.

Finn sometimes explains the breakup of Crowded House by saying that he wanted the chance to work with other musicians. Whatever role that desire might have had in Crowded House's demise, Finn has certainly made good on it over the years—witness his collaborations and appearances with Eddie Vedder, Sheryl Crow, Shawn Colvin, Johnny Marr, Wendy & Lisa, and others. Part of the anticipation leading up to a Neil Finn concert lies in wondering who might turn up on stage. But Friday's performance had no guest appearances, although Finn did integrate the members of opener Ed Harcourt's ensemble into his own band at various points during the evening.

More interestingly, Finn has also shown an interest in playing live with non-professional and semi-professional musicians, most especially during the 2001 "Band of Strangers" tour in the U.K., in which he threw together bands of fans who had submitted audition tapes, rehearsed for a couple of hours, then took to the stage. In New York, something similar happened: midway through the show a fan passed him a demo CD. Finn asked, "Is it good?" and sent it up to the sound booth. Later in the evening, as Finn took the stage alone with an acoustic guitar, the sound man put on the CD, and Finn proceeded to play along, singing improvised lyrics. He then invited the fan, a woman named Tina, to join him on stage to sing "Fall At Your Feet." Moments like this are fraught with peril, but this one worked—Tina's voice blended nicely with Finn's, and rather than singing the conventional harmonies she offered her own, which enriched the performance. It was a wonderful moment in an evening filled with them.

Neil Finn's style of performance is out of fashion at the moment—there's no fancy choreography, no laser-light show, no massive sets, just great musicianship from a great songwriter who clearly loves playing live. As I've said before, it's one of the great injustices of the music business that he has not found a bigger audience.

Wine of the Week
Castello Banfi Brunello di Montalcino 1995

The Tuscan estate of Castello Banfi is owned by two highly entrepreneurial brothers from Long Island who have dramatically expanded the winery's offerings over the past decade. The Brunello di Montalcino remains one of the estate's centerpiece offerings, however, and in strong vintages it is well worth seeking out. The 1995 is a brilliant ruby color. Its bouquet of black cherries, plums, and cloves leads into full flavors of cherries, raspberries, blackberries, and plums, with plenty of pepper and spice thrown in. The tannins are a bit astringent but well in check. The wine is still quite youthful and should last for some time, but seven years after the vintage this is a robust, muscular wine that's drinking wonderfully.