ProfessorBainbridge.com

Federalism, Establishment, and Free Exercise

The Supreme Court has unanimously upheld Section 3 of the Religious Land Use and Institutionalized Persons Act, which provides in pertinent part:

No government shall impose a substantial burden on the religious exercise of a person residing in or confined to [a penal] institution,? unless the burden furthers ?a compelling governmental interest,? and does so by ?the least restrictive means.?

Perhaps the most interesting aspect fo the opinion is Justice Thomas' concurrence, in which he explains why the Act does not offend his federalism-based understanding of the First Amendment's religion clauses. Thomas believes that the First Amendment's Establishment Clause does not erect a wall of separation between church and state, but rather was simply designed to prevent Congress from intefering in state establishments of religion. In his concurrence, Thomas explains why the Congress can nevertheless require states to show a compelling reason for restricting religious exercises by inmates:

Even when enacting laws that bind the States pursuant to valid exercises of its enumerated powers, Congress need not observe strict separation between church and state, or steer clear of the subject of religion. It need only refrain from making laws ?respecting an establishment of religion?; it must not interfere with a state establishment of religion. For example, Congress presumably could not require a State to establish a religion any more than it could preclude a State from establishing a religion.

Based on what I've read of the relevant history, I've come to believe that Thomas' interpretation of the Establishment Clause is correct. The extension of that clause into the so-called wall of separation is a modern invention foisted on us by the Court based mostly on the writings and wishes of Thomas Jefferson, who was in France during the relevant time period. Thomas' explanation of how the proper understanding of the Establishment Clause relates to the limits of Congressional power with respect to religion thus is a very important step forward in the development of a proper understanding fo the Clause as a whole.

Turley Old Vines Zinfandel (California) 2002

A big, brawny wine redolent of brambly blackberries and raspberries, with a dash of white pepper. A little too hot on the finish for my tastes, but nevertheless impressive and dramatic. Drinking nicely now and should continue to do so for a couple more years. Probably will be at its peak in fall 2006. Grade: B+

Deep Throat

Via Drudge:

The Washington Post today confirmed that W. Mark Felt, a former number-two official at the FBI, was "Deep Throat," the secretive source who provided information that helped unravel the Watergate scandal in the early 1970s and contributed to the resignation of president Richard M. Nixon.

The confirmation came from Bob Woodward and Carl Bernstein, the two Washington Post reporters who broke the Watergate story, and their former top editor, Benjamin C. Bradlee. The three spoke after Felt's family and Vanity Fair magazine identified the 91-year-old Felt, now a retiree in California, as the long-anonymous source who provided crucial guidance for some of the newspaper's groundbreaking Watergate stories.

Money quote:

Bradlee, who was the Post's executive editor during Watergate, said today, "The thing that stuns me is that the goddamn secret has lasted this long."

Supreme Court Justice Louis Brandeis once said:

Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.

I've heard investigative reporters invoke that quote to justify their jobs. So I have a question: Why doesn't that apply to journalistic sources? Why should we trust stories based on unnamed sources, when there have been so many prominent cases lately of journalists just making stuff up? Why shouldn't journalists have to name their sources?

Update: Timothy Noah points out that Felt had parochial bureacratic reasons to serve as Deep Throat:

Hoover had died. Hoover loyalists at the bureau were frantic that President Richard Nixon would get his mitts on the FBI, which Hoover had kept independent of political control through a variety of nasty methods, including blackmail. The Hooverites' bureaucratic anxieties were well-founded: After the Watergate break-in, Hoover's acting successor, a Nixon loyalist named L. Patrick Gray, routinely passed FBI files about Watergate directly to White House counsel John Dean, who was a party to (but eventually would expose) the White House's illegal coverup. In effect, the White House ended up knowing everything the FBI knew. (That's why it seemed so plausible that, if not Felt, Deep Throat might be Deputy White House Counsel Fred Fielding, a theory that, I regret to say, undermined in recent years my previous rock-solid conviction that it was Felt, or at least some other high-ranking G-man? case closed.) Felt pushed back by helping Woodward and Bernstein discover that high-level White House aides were in up to their necks in Watergate, up to and including Nixon.

DC turf wars make the story a lot less romantic, don't they? At the very least, as Glenn Reynolds notes, "I don't mind Nixon going -- I think he was a pretty lousy President for all sorts of reasons aside from Watergate -- but it's obvious that the simplistic Woodward & Bernstein hero-tale is a bit, um, incomplete." But it also speaks to my point about anonymous sources: Might we not have evaluated Woodward and Bernstein's work with a more informed eye if we knew they were being fed stories by somebody with a bureaucratic axe to grind?

And speaking of journalists just making stuff up, Noah catches Woodward and Bernstein in what look like outright lies about Deep Throat, not just omissions:

I have a few bones to pick with Woodward and Bernstein. One is that, in All the President's Men, Deep Throat is described as a heavy smoker. But Felt quit smoking in 1943. I suppose Woodstein would call this necessary misdirection. I call it conscious fabrication, however trivial. Also, a November 1973 Woodward and Bernstein Post story sourced anonymously to "White House sources" is described in All the President's Men as being sourced to Deep Throat. Yet Felt was not a "White House source." It's conceivable that Deep Throat was an additional, unacknowledged source on the story, but it's also possible that Woodward and Bernstein were misleading readers about where they got their information. Which was it, gentlemen? Finally, why did Woodward, in a 1979 Playboy interview with J. Anthony Lukas, flatly deny that Deep Throat was anyone inside the "intelligence community"? The FBI, where Felt worked, is most definitely part of the intelligence community.

What Noah fails to consider is the possibility that those discrepancies might reveal a deeper truth: Maybe Deep Throat was really a composite character all along. We don't know because we tolerate a culture of anonymous sourcing and journalistic dissembling.

The SEC: Hoist on its own petard

As the SEC continues pressing forward with enforcement of the internal controls provisions of SOX, something very amusing has come to light in a GAO report:

In GAO's opinion, SEC's fiscal year 2004 financial statements were fairly presented in all material respects. However, because of material internal control weaknesses in the areas of recording and reporting disgorgements and penalties, preparing financial statements and related disclosures, and information security, in GAO's opinion, SEC did not maintain effective internal control over financial reporting as of September 30, 2004.

Ouch! Mayhap the SEC needs to get its own house in order first? Or, at least, consult Matthew 7:3-5? It's a serious institutional embarassment for the SEC.

It's not just about the yuck factor

Edward Feser offers some very sensible thoughts on the role of morality in law making:

Not all moral principles ought to be enforced by the power of government, but almost everything government does is based on some moral principle or other. It is fatuous, then, to hold that "we shouldn't legislate morality," if this means that controversial moral principles shouldn't guide public policy. And almost every moral principle is controversial to a significant extent: even when people agree that murder is wrong, they often disagree about what counts as murder, as the disputes over abortion, euthanasia, and even the killing of animals attest. The question, then, is not whether controversial moral principles ought to inform our laws, but rather which controversial moral principles -- liberal, conservative, libertarian, or whatever -- ought to inform them.

The McCain Myth

Over at OpinionJournal.com, Brendan Mintner exposes the " McCain Myth":

What the McCain Myth ignores is that for now a majority of voters nationwide embrace conservative principles. Talk of being a "compassionate conservative" notwithstanding, it wasn't maverick moderatism that handed President Bush victories in 2000 and 2004. Nor has the McCain Myth been responsible for padding Republican majorities in the House and Senate. Indeed, Republicans have been winning by sticking to their principles and not bucking their party's ideas on tax cuts, national defense or reforming the judiciary.

It's a must read. I object to McCain on principle (mainly because of his first amendment-violating (notwithstanding a majority of the Supreme Court to the contrary) and incumbent-protecting campaign finance laws), but also because I find him arrogant, selfish, unintelligent, and generally smarmy. If he wins the GOP nomination in '08, every Republican president from Lincoln to Reagan (possibly excepting Nixon) will be spinning in their graves.

On the Meaning of Memorial Day

Kieran Healy on Memorial Day:

For those of us in the U.S., today is Memorial Day. America has a fine tradition of military service and sacrifice. The best way to respect and honor it is to reflect on what it means to serve and perhaps die for your country, and to think about the value of the cause, the power of the reasons, and the strength of the evidence you would need before asking someone? someone like your brother, or friend, or neighbor?to take on that burden. That so many are willing to serve is a testament to the character of ordinary people in the United States. That these people have, in recent years, shouldered the burden of service for the sake of a badly planned war begun in the name of an ill-defined cause, on the thinnest of pretexts, and with the most flimsy sort of evidence, is an indictment of the country?s political class.

Orin Kerr correctly calls it a post "that seems designed to get lots of people hopping mad." And predicts: "It no doubt will succeed." Orin goes on to opine:

It seems to me that this exactly what Memorial Day doesn't mean. Memorial Day is about honoring the sacrifice of those who gave up their lives fighting in the name of the United States. It is about the living honoring the dead, recognizing their passing and reaffirming our memory and appreciation for what they did. It is about the troops, the grunts, the front-line soldiers who left home and did not return. Memorial Day is not a time to separate out which of the dead served and died for good reasons or bad; to second-guess which decisions to declare war, launch a campaign or charge a hill were justified or not; or to test your ability to invent a populist voice to make cheap shots against an Administration you despise. I'm sure there are good times for that, but Memorial Day isn't one of them.

I'm very much with Orin on this one. Not perhaps for the same reasons. Certainly not because I'm an enthusiast for the Iraq war, which I've never been. But because of something Russell Kirk taught:

... the body social is a kind of spiritual corporation, comparable to the church; it may even be called a community of souls. Human society is no machine, to be treated mechanically. The continuity, the life-blood, of a society must not be interrupted.

And because of something John Paul II taught:

In praying for the dead, the Church above all contemplates the mystery of the Resurrection of Christ, who obtains salvation and eternal life for us through his Cross. ...

... the Mystical Body of Christ is waiting to be reunited at the end of history, when all its members will be in perfect beatitude and God will be all in all (cf. Origen, Homilies on Leviticus, n. 7). ...

... Joined to the merits of the saints, our fraternal prayer comes to the aid of those who await the beatific vision. Intercession for the dead, just as the life of those living according to the divine commandments, obtains the merits that serve the full attainment of salvation. It is an expression of the fraternal charity of the one family of God, by which "we are faithful to the Church's deepest vocation" (Lumen gentium, n. 51): "to save souls who will love God eternally" (Th�r�se of Lisieux, Prayers, 6; cf. Manuscript A 77r�).

And so, indeed, Memorial Day is "about the living honoring the dead, recognizing their passing and reaffirming our memory and appreciation for what they did." In doing so, we recognize and affirm that we are part of a community of souls that exists across both space and time. On Memorial Day, we honor their memory and intercede on their behalf. There are, it seems to me, a surfeit of other days on which to "indict[] ... the country?s political class."

Ridge Dynamite Hill Petite Sirah (Spring Mountain) 1999

An uncomplicated and unsophisticated rustic red. Plenty of chocolate covered cherries and blackberries. Not as big as I expected; indeed, perhaps a trifle thin for Petite Sirah. Ridge suggests 5-12 years of bottle age (2007-2014). The outer figure strikes me as a bit of a stretch. Good BBQ wine right now and for the next few years, though. Grade: B-

Beringer Chenin Blanc (California) 2004

The attack is citrus and an oddly Sauvignon Blanc-like grass note. The mid-palate and finish is pear and honeydew melon. A nice, light apertif wine. Good value at around $6. Grade: B-/B

Finally ... sort of

George RR Martin's on-going effort to catch up the Robert Jordan as the King of Bloated Fantasy takes a giant leap forward with the quasi- completion of A Feast for Crows. From Martin's announcement:

... my publishers and I, after much discussion and weighing of alternatives, have decided to split the narrative into two books .... The first plan was simply to lop the text in half. In that scenario, I would finish the last few chapters in as short a length (and time) as possible. That would have produced a story of maybe 1650 to 1700 pages in manuscript, which we would simply have broken into two chunks of roughly equal length and published as A FEAST FOR CROWS, Part One and A FEAST FOR CROWS, Part Two.

We decided not to do that. It was my feeling -- and I pushed hard for this, so if you don't like the solution, blame me, not my publishers -- that we were better off telling all the story for half the characters, rather than half the story for all the characters. Cutting the novel in half would have produced two half-novels; our approach will produce two novels taking place simultaneously, but set hundreds or even thousands of miles apart, and involving different casts of characters (with some overlap).

The division has been done, and I think it works quite well. The upshot is, A FEAST FOR CROWS is now moving into production. It is still a long book, but not too long; about the same size as A GAME OF THRONES. The focus in FEAST will be on Westeros, King's Landing, the riverlands, Dorne, and the Iron Islands. More than that I won't say.

Martin's saga is already more than 4 times longer than The Lord of the Rings. His story isn't four times more complex, let alone four times better, than LotR. My advice to GRRM: Wrap it up before you jump the shark.

Update: Steven Taylor headlines his comment on the announcement: And there was much rejoicing. Hmph. My views are more along the lines of a Crooked Timber commenter:

I started A Song of Ice and Fire just after volume two was published, and I figured on a nice trilogy without too long a wait for the third volume.

Then a) the series was extened to a sexology b) Martin decided to change his production schedule to a book every five years.

Yep. It's most annoying.

Hoagland on Iraq

Jim Hoagland offers a balanced and thoughtful essay on Iraq in the WSJ($). He begins with a candid acknowledgement of the progress being made in both the war on terror and the war in Iraq:

Middle Eastern and European governments increasingly understand that they too are targets of al Qaeda or its associates and therefore provide Americans with counterterrorism help denied in the past.

There is also a spreading awareness of -- or perhaps a spreading willingness to talk about -- the disastrous global consequences that an abrupt American retreat from Iraq would bring, even as ideas of retreat become more seductive here. Islamic nations are renewing conversations among themselves about a possible peacekeeping force to help in Iraq, Arab diplomats report.

Despite the bloodshed and horror there, Iraq also records progress. Elected Kurdish and Shiite leaders practice democratic and responsible politics, and reach out to the Sunni community to join the process. U.S. forces are increasingly confident in the ability of newly formed Iraqi battalions to handle security duties, and will soon demonstrate that confidence by increasing Iraqi command responsibilities in joint Iraqi-U.S. units.

But he also cogently argues that both the troops in the field and the public at home:

... deserve a clearer, more realistic explanation from U.S. President Bush of their strategic mission and directives that show them precisely how to accomplish it.

... The White House seems to underestimate the fraying of national support that is occurring for the U.S. military presence in Iraq and, to a lesser extent, in Afghanistan. Freedom may be on the march, but Americans need to be told more specifically and causatively how U.S. and allied combat deaths abroad advance that march now, not years from now.

... The effort should start with Bush's public declarations during this year's commemoration of American valor on the battlefield. His visionary rhetoric about freedom and American values helped rally the nation during the shocks of the past four years. The reassuring approach, he can argue, has kept public anxiety to a minimum.

But the time for reassurance alone is over. It is time for details, for a sense of a blueprint, for a progress report that goes beyond listing what has happened to the top nine or 15 or 25 al Qaeda leaders. That simple, clear report should trace as well where the United States stands in fighting the Salafi extremist networks that intend to rule or to destroy Muslim lands.

Antinori Tignanello (Tuscany) 1990

Delicious. One of the greats. Fully mature, but with more than enough acidity and tannins to justify a few years additional aging. Rich, smooth, classy. Cherries, minerals, with a subtle layer of musky and earthy flavors. Grade: A

Chateau Pichon Longueville Comtesse de Lalande (Pauillac) 1990

Parker and the Wine Spectator split wildly on this wine: 79 and 95, respectively. I'm splitting the difference, but leaning towards the Spectator. Medium deep red, with a watery rim. Strong bouquet. Currants, raisins, plums, cedar, minerals, and fennel. Not much tannin left. Drink up. Grade: A--

Rodney Strong Chardonnay (Sonoma County) 2003*

A very pleasant quaffer. Not especially complex, but well-balanced fruit (apple and citrus) and moderate oak, with good acidity and no discernible residual sugar make this a very easy to enjoy wine. It made an ideal match for a spicy shrimp boil, since it had no expensive complexity to be smothered by the Old Bay spice, but plenty of fruit and acid to refreshingly slice through the spice and fat. At $15, it's a very good value, which earns it bonus points. Recommended. Grade: B/B+

Kim Crawford Sauvignon Blanc (Marlborough) 2004

Maximum Sauvignon Blanc. Very intense and tart grass, grapefruit, and gooseberry. Big nose; big flavor. Grade: B