One wacky case - Marbury v. Madison

I feel like talking about the most famous and probably the most important constitutional law case in U.S. history, Marbury v. Madison, decided in 1803. Even political oriented people who are not lawyers or political scientists may have heard of this case, such is its importance.
But, if you have heard of it, or you are even a lawyer who suffered through it in law school, you might not know that it was not only one crazy case, but involved some of the most important people of our history.

Here’s the question. If the government makes a law and the President signs it, and then challenges the law as unconstitutional, what makes the Courts able to make a decision, against the intent of the two other constitutional powers – the congress and the executive? It doesn’t say anywhere in the Constitution that the Court has the power to do this. This is what we call “judicial review".

And the case with which it (mostly) begins is the decision of the United States Supreme Court in 1803, some fourteen years after the constitution is ratified. That’s Marbury. It is the possibly the most important case in our history. It is usually the first case law students learn about in constitutional law classes.

Ironically, despite Marbury’s fame, it is not the first case in which the issue was discussed. Although ignored even by some scholars, Hylton v. U.S. was decided in 1796 when the chief judge was Oliver Ellsworth. It probably did not achieve Marbury’s fame because the court determined that the law was constitutional and also because the judges at that time did not tend to write one opinion – per curium, by the court, but seriatum, in a series. At the time Hylton was argued and heard though, it was considered quite important as it was argued for the United States by Alexander Hamilton, if not the greatest lawyer of his day, certainly among the greatest. Arguably, his legal influence impacts us to this day (not to mention a lot of other stuff he did). One of the judges wrote about Hamilton thus:

“Mr. Hamilton spoke in our Court, attended by the most crowded audience I ever saw there, both Houses of Congress being almost deserted on the occasion. Though he was in very ill health, he spoke with astonishing ability, and in a most pleasing manner, and was listened to with the profoundest attention. His speech lasted about three hours."

Law schools tend to teach the case in a legal manner, not a historical one. My belief is that understanding what was going on historically at the time makes the case so much clearer and when I briefly taught con law, that’s the way I approached it.

It starts in 1801 with two former best buddies, President John Adams, in the closing days of his presidency, and Thomas Jefferson, the vice president, who ruthlessly defeated Adams and also Aaron Burr, who was still a popular politician and perhaps Hamilton’s rival as an attorney. Their friendship had developed when they were diplomats after the Revolutionary War was over, but once they became political rivals – Adams a moderate Federalist (federal power and pro-British) and Jefferson a Democrat-Republican (state power and pro-French), their dislike became palpable. No Jefferson lover, I lay the blame squarely on him, as he did his best to sabotage Adams in every way he could. But, I will not go off on this tangent. Years later, they became close friends again as old men, but through now celebrated correspondence only over the course of about 14 years.

President and Vice President were almost certain to be political enemies back then as the system for electing them was different. They did not run together as a team. They competed for the top spot and number two was vp.

Adams had a bad presidency by most estimates at the time and he did not enjoy himself, spending as much time in Massachusetts as he could. He didn’t even finish second as Burr and Jefferson tied in electoral votes

Adams has to leave in March (back then it wasn’t January) but in the beginning of that year he nominated his secretary of state, John Marshall, a very important American I can’t even begin to go into much here, but earlier he was a war hero, then the hero of the XYZ affair (look it up), for the chief Justice slot on the Supreme Court. He was confirmed just before the House of Representatives chooses Jefferson over Burr. But, I’m not going off on that tangent either. It’s a fascinating story where Burr, not for the only time, shows himself more honorable than either the celebrated Hamilton or Jefferson, who, although usually political enemies, worked together so Jefferson would be president.

Although Chief Justice, Marshall continues on as secretary of state under Adams. He swore in Jefferson as president in his capacity as chief justice. In fact, though the two were cousins, Jefferson and Marshall can’t tolerate each other, Marshall, a minor war hero who had been close with George Washington believed the older Jefferson a shirker and liar (and I agree). Marshall’s mother in law was in fact Jefferson’s first love and he is used to hearing him badmouthed by her. But, they both tried to calm the partisanship about and at Jefferson’s request, he even agrees to stay on briefly as secretary of state until Madison replaced him.

Just about on the eve of Jefferson being sworn in with the new Republican congress, outgoing majority federalist congress passed a circuit court act, where Supreme Court judges which made some changes unimportant here and new judges and justices of the peace (more important then than now) are appointed. They were, of course, federalists. In fact, at the time Jefferson comes to office most judges are Federalists. This really pisses off the Democrat-Republicans b/c they are already angry that the judge’s have been unfairly prosecuting them through the unpopular Alien and Sedition Acts.

William Marbury is among one the appointed on March 2d. He was a Federalist who supported Adams. The nominees are confirmed by the Senate and, super-duper ironically, it is the chief justice/secretary of state, John Marshall, who affixes the seals the next day.

Here’s the rub. In all the commotion, after affixing the seals, Marshall never sends them out. Two weeks later he writes: “I should . . . have sent out the commissions which had been signed and sealed but for the extreme hurry of the time.”

Ironically, Jefferson later finds the commissions lying on a table top in Marshall’s office. He does not deliver them.

In any event, Jefferson and Madison come in to power and refuse to allow the appointments. Jefferson actually wanted to turn down the partisanship more and made a very conciliatory inaugural speech. The Democrat-Republicans then changed the changed the circuit court act and abolished two Supreme Court terms, so that only the February term remained, and that had already passed that year. Actually, years later, Marshall himself said the new act was a great improvement. Under the new act he can determine how many Justices are appointed and he reduces the number, but keeps some of those Adams appointed. Not Marbury.

Nine months later Charles Lee, who was Washington and Adams attorney general, brings a petition in the Supreme Court for Marbury and a few others, asking the court for an order directing the Secretary of State, James Madison, to deliver the commission to him. The technical name for this is a writ of mandamus – the court ordering a government official to do something. They based the request on a rule found in the Judiciary Act of 1789, passed in the first congress.

Ready for it to get weird? Marshall, the former secretary of state who didn’t have the commissions delivered is the chief judge who will preside over the trial. Perhaps it wasn’t so odd in those days, but Levi Lincoln (distantly related to President Lincoln, still unborn), who is the new attorney general, is also there, although nothing much is going on, and Marshall asks him what he thinks about it. Lincoln has no instructions as to what to do and he leaves it to the ct. After a discussion, Marshall gives an order that the current secretary of state, James Madison, must show cause before the court why he doesn’t have to do deliver the commissions. They set it down for the next term, in 1802. There is nothing in the Jefferson’s or Madison’s letters indicating that they were concerned about this.

So, Marshall, who should be the chief witness, is the judge of a trial (and, if you are confused, the Supreme Court no longer does trials, but it did back then). Madison has not even put in papers. But, Marbury’s attorney, Lee, is directed to prove that the commissions were signed and sealed. Of course, no one knows this better than Marshall, who did it, but he’s the judge.

How does Lee prove his case? The senate had refused to turn over its journals proving that the commissions had been made. Lee calls a couple of State department clerks who indicate that maybe some commissions had been signed.

It gets crazier, at least by our standards. Next Lee calls Levi Lincoln, the attorney general, as a witness. He does that because Lincoln was an interim secretary of state before Madison was confirmed. Lincoln thought he doesn’t have to testify because of what we now call executive privilege. He requests that he can answer in writing. Marshall agreed and 4 questions were given to him. As a side note, it is interesting that Marshall respected the notion of executive privilege and that Lincoln deferred to the court’s authority. Both could have gone otherwise. Lincoln answered in writing that he knew they were made and sealed, but doesn’t know if one was made out for Marbury. He apparently couldn’t answer what happened to the commissions afterwards because he didn’t know if Madison had them. If you can stand one more strange thing, James Marshall, John’s brother, put in an affidavit stating that he went to deliver them for his brother “but finding that he could not conveniently carry the whole” he returned “several of them” to his brother’s office.

In 1803 the court issued its decision which would make the Supreme Court almost, if not quite as powerful as the other two branches. This was not what had been predicted by Alexander Hamilton, who stated in the Federalist Papers that it was the weakest branch.

The opinion was per curium, as most were for the some 34 years Marshall was chief justice. The court’s decision was not only ground breaking, as it found a congressional act unconstitutional, but it was a brilliant piece of work by Marshall, who couldn’t be sure that Jefferson, who disliked him, and also disliked the federalist judiciary, would comply with any order the court issued.

Marshall and the court ruled that the petitioners had a right to the commission as it was consented to by the senate and was signed and sealed by the secretary of state (who, of course, was the guy writing the decision). Delivery of the commission was determined to be merely a convenience.

Then the court made a ruling which was of quintessential importance to the notion of civil rights. If a person has a right under the law and that right has been violated, has a right to a remedy.

So, problem solved, right? No. Here’s how Marshall got around the problem of whether Jefferson would obey the court’s order and at the same time establishing the power of the court to declare what’s constitutional.

The Supreme Court was given certain powers under the constitution including to be the court of original jurisdiction (in other words the trial court) in case between states or ambassadors. The law in question provides that the Supreme Court can issue the writ of mandamus being sought by Marbury. However, since the law provides for something that is not allowed in the constitution, it is unconstitutional.

That seems so obvious to us today because we have had it that way for over 200 years. It is taken for granted in the law now. Even Justice Scalia who now sits on the court, and believes Marbury was in error, stated firmly in his senate confirmation hearing that he would never overrule it.

And, there is some background for it. Hamilton, who was Marshall’s legal mentor (Marshall considered himself a child in comparison to Hamilton legally) even though they were about the same age – Hamilton’s year of birth is uncertain - wrote in Federalist no. 78: “The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It, therefore, belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.”

But, because the law was unconstitutional, then Marbury, through no fault of his own, had brought the case in the wrong court. He lost on a technicality and Marshall never had to worry whether Jefferson would obey a Supreme Court order if he directed Madison to deliver the commissions.

And Marbury? He never brought the action elsewhere and disappeared to some degree into history. My investigation into what happened to him ran into some walls. There isn’t a lot out there. But, the best I can find indicates that he died a wealthy banker years later. So, don’t feel so bad for him.

Marshall lived a long time and was the force behind many other cases which extended the power of both the judiciary and the congress. He died in 1835. Of the important figures in the tale, Madison outlived him by about a year.

What a story, huh? Adams, Jefferson, Hamilton, Madison, Marshall and even Aaron Burr. The judge being the one who should have been the witness. His own brother and even the attorney general testifying through affidavits. These are conflicts of law that would curl the hair of a law professor today.

Now, who says law is boring?

The Story of Will Durant

So, there I was, 20 years old, working in a picking and packing warehouse in Plainview, New York. I had gotten married, dropped out of college after my sophomore year and intended to work for a year until we were sure my wife could support us. That never happened. The separation came sometime after a year (actually, we had a lot of fun too, but that’s not what this post is about). Work was not so good. I was one of the youngest ones there, and the few my age, were friendly enough, but not people I would have been friends with normally and the older men there did not like that I was a “college boy” and didn’t seem real crazy about my Jewish roots (it is the only time in my life as an adult I ever experienced prejudice. I was so bored at this job that I decided to start educating myself during lunch breaks. I had always loved history and picked Herodotus’ Histories, the story of the Greco-Persian Wars and what led to them. I never looked back and have been studying history for the last 31 years.

Sometime after I became a lawyer, but probably in '84, I was in a bookstore when an old black hard covered book caught my eye. I took a closer look. It was the second volume of Will Durant’s The Story of Civilization, The life of Greece. Perhaps it was fate that the first volume I found was about Greece, which I had loved since a child. I bought it and devoured it. Sometime in the next few years I was able to purchase the entire collection of eleven volumes for $1 by joining a book club. I read the first ten over the course of the next few years, somehow never reading the eleventh volume - The Age of Napoleon fully. Some day.

Will Durant was an astonishing scholar. His breath of historical knowledge may have been unparalleled as he covered the entire history of much of the world up to and through Napoleon, reluctantly leaving out America due to his age. His wife, Ariel, helped him and therefore must get some credit, but no one doubts it was his writing and scholarship that made it the success it was. If they had been immortal, the next two books would have been The Age of Darwin (Durant also wrote on evolution) and The Age of Einstein.

Incidentally, Will Durant was 13 years Ariel’s senior, and she was his student when they met. She was 15 when they married and they stayed together about 80 more years until they died within weeks of each other, her first, because she stopped eating when he was hospitalized, and he when he learned she had died on the television. Of course, today he would be arrested, stigmatized as a pedophile and they never would have been together. But, don’t start me on our arbitrary age restrictions when it comes to sex. It makes me very unpopular.

The Story of Civilization was made possible by an earlier book of his, published in 1927, called The Story of Philosophy. It was a one volume history of philosophy, covering most of the biggees in philosophy and a couple you might not have known about. I have read it cover to cover twice and parts numerous times. It is astonishing how much information he covers in a relatively short book (compared to, for example, Bertrand Russell’s more mammoth effort, which is more comprehensive and also wonderful, but not as easy to read and understand as Durant). Making philosophers like Kant understandable in a chapter is an astonishing feat. I have recommended to college students on occasion that they do not need to take any philosophy classes if they read this little book (well, logic is a good idea, but you know what I mean).

The Durants did not intend to discover anything new; they wanted to tell a synthetic story of how we got here – hence the title. But, it is not only the breadth of knowledge which is startling, it is the writing. Perhaps there are other historians who write as well. I don’t think there have been, but, that is subjective. But, I certainly don’t believe I’ve come across anyone who has approached the level of aesthetically pleasing writing and depth of knowledge as has Will Durant. Below are just some examples of his writing that thrilled me, one from each book. There is no attempt at a pattern here, just to celebrate the beauty and scope of his writing. If it just happens to interest a reader or so in him, all the better. I’ll try to keep them short.

Vol 1: Our Oriental Heritage

Hindu philosophy begins where European philosophy ends – with an inquiry into the nature of knowledge and the limitations of reason; it starts not with the physics of Thales and Democritus, but with the epistemology of Locke and Kant; it takes mind as that which is most immediately known, and therefore refuses to resolve it into a matter known only mediately and through mind. It accepts an external world, but does not believe that our senses can ever know it as it is. All science is a charted ignorance, and belongs to Maya; it formulates, in ever changing concepts and phrases, the rationale of a world in which reason is but a part—one shifting current in an interminable sea. Even the person that reason is Maya, illusion; what is he but a temporary conjunction of events, a passing node in the curves of matter and mind through space and time?—and what are his acts or his thoughts but the fulfillment of forces far antedating his birth? Nothing is real but Brahman, that vast ocean of Being in which every form is a moment’s wave, or a fleck of froth on the wave. Virtue is not the quiet heroism of good works, nor any pious ecstasy; it is simply the recognition of the identity of the self with every other self in Brahman; morality is such living as comes from a sense of union with all things.* “He who discerns all creatures in his Self, and his Self in all creatures, has no disquiet thence. What delusion, what grief can he with him?”

*Cf. Spinoza: “The greatest good is the knowledge of the union which the mind has with the whole of nature.” “The intellectual love of God” is a summary of Hindu philosophy.

There Durant summarizes Western and Indian philosophy and counterposes them in a mere paragraph and even sneaks in a little Spinoza (an important philosopher to Durant). Honestly, I have trouble keeping my emails that short.

Vol 2: The Life of Greece

As we enter the fairest of all waters, leaving behind us the Atlantic and Gibraltar, we pass at once in to the arena of Greek history. “Like frogs around a pond,” said Plato, “we have settled down upon the shores of this sea.” Even on these distant coasts the Greeks founded precarious, barbarian-bound colonies many centuries before Christ: at Hemeroscopium and Ampurias in Spain, at Marseilles and Nice in France, and almost everywhere in southern Italy and Sicily. Greek colonists established prosperous towns at Cyrene in northern Africa, and at Naucratis in the delta of the Nile; their restless enterprise stirred the islands of the Aegean and the coasts of Asia Minor then as in our century; all along the Dardanelles and the Sea of Marmora and the Black Sea they built towns and cities for their far-venturing trade. Mainland Greece was but a small part of the the ancient Greek world.

* * *

In these propitious waters the acquisitive Phoenicians and the amphibious Greeks develop the art and science of navigation. Here they built ships for the most part larger or faster, and yet more easily handled, than any that had yet sailed the Mediterranean. Slowly, despite pirates and harassing uncertainties, the water routes from Europe and Africa into Asia—through Cyprus, Sidon, and Tyre, or through the Aegean and the Black Sea—became cheaper than the long land routes, arduous and perilous, that had carried so much of the commerce of Egypt and the Near Eaast. Trade took new lines, multiplied new populations, and created new wealth. Egypt, then Mesopotamia, then Persia withered; Phoenicia deposited an empire of cities along the African coast, in sicily, and in Spain; and Greece blossomed like a watered rose.

“ - and Greece blossomed like a watered rose.” Not only beautiful, but true, as Greece, deserving of a thousand thousand volumes, advanced civilization in a burst of energy like from a super-nova.

Vol 3: Caesar and Christ

Suddenly Nero’s spies brought him word of a widespread conspiracy to put Calpurnius Piso on the throne (65). His agents seized some minor personages in the plot, and by torture or threat drew from them confessions implicating, among others, Lucan the poet and Senca. Bit by bit the whole plan was laid bare. Nero’s revenge was so savage that Rome credited the rumor that he had vowed to wipe out the whole Senatorial class. When Seneca received the command to kill himself he argued for a while and then complied; Lucan likewise opened his veins and died reciting his poetry. Tigellinus, jealous of Petronius’ popularity with Nero, bribed one of the epicure’s slaves to testify against his master, and induced Nero to order Petronius’ death. Petronius died leisurely, opening his veins and then closing them, conversing in his usual light manner with his friends and reading poetry to them; after a walk and a nap he opened his veins again and passed away quietly. Thrasea Paetus, the leading exponent of the Stoic philosophy in the Senate, was condemned not for taking part in the plot, but on the general ground of deficient enthusiasm for the Emperor, for not enoying Nero’s singing, and for composing a laudatory life of Cato. His son-in-law Helvidius Priscus was merely banished, but two others were put to death for writing in their praise. Musonius Rufus, Stoic philosopher, and Cassius Longinus, a great jurist, were exiled; two brothers of Seneca—Annaeus Mela,father of Lucan, and Annaeus Novatus, the Gallio who in Corinth had freed Saint Paul—were ordered to commit suicide.

This is one reason I have always preferred Greece to Rome. There was a vicious sickening aspect to the Roman culture that did not permeate Greece.

Vol 4: The Age of Faith

Every cultural flowering finds root and nourishment in an expansion of commerce and industry. Moslem seizure of eastern and southern Mediterranean ports and trade, Moslem, Viking, and Magyar raids, political disorder under the successors of Charlemagne, had driven European economic and mental life to nadir in the ninth and tenth centuries. The feudal protection and reorganization of agriculture, the taming of Norse priates into Norman peasants and merchants, the repulse and conversion of the Huns, the recapture of the Mediterranean by Italian trade, the reopening of the Levant by the Crusades, and the awakening contact of the West with the more advanced civilizations of Islam and Byzantium, provided in the twelfth century the opportunity and stimulus for the recovery of Europe, and supplied the material means for the cultural blossoming of the twelfth century and the medieval meridian of the thirteenth. For society, as well as for an individual, primum est edere, deinde philosophari—eating must come before philosophy, wealth before art.

Read the first sentence again alone. Then the rest of the paragraph. Topic sentence. Topic sentence! Whatever happened to them. Durant knew how to start with a beaut that summed the whole shebang up and filled the rest in as if gleaming words poured right out of his pen.

Vol 5: The Renaissance

All in all, Giotto’s work was a revolution. We feel his faults because we know of the painting skills that were developed by the movement that he began. His drawing, modeling, perspective, and anatomy are painfully inadequate; art, like the medical science of Giotto’s time, was just beginning to dissect the human body, to learn the place, structure, and function of each muscle, bone, tendon, nerve; men like Mantegna and Masaccio would master these elements, and Michelangelo would perfect them, almost make a fetish of them; but in Giotto’s day it was still unusual to study, scandalous to represent, the nude. What is it, then, that makes the work of Giotto in Padua and Assisi a landmark in the history of art? It is the rhythmic composition, drawing the eye from every angle to the center of interest; the dignity of quiet motion, the soft and luminous coloring, the majestic flow of the narrative, the restraint of expression even in deep feeling, the grandeur of the calm that bathes these troubled scenes; and, now and then, the naturalistic portraiture of men, women, and children not as studied in past art but as seen and felt in the movement of life. These were the components of Giotto’s triumph over Byzantine rigidity and gloom, these were the secrets of his enduring influence. For a century after him Florentine art lived on his example and his inspiration.

Maybe that seemed like just a boring narrative about a painter you don’t know and don’t care about. He tells why we don’t appreciate him enough and then explains why we should. When you look at Giotto’s work, and you read Durant's description, you how he zeroed in on Giotto's importance and limitations without using superlative words like beautiful and amazing and the like. It’s as if he could describe a color to a blind women.

In this next paragraph, Durant surveys the man of the renaissance in his many forms and finishes with a sentence that expresses the renaissance in a way that perfectly counterposes it with the preceding epoch.

But, again, he was only one of many kinds of Renaissance man. How different was the idealistic Pico, with his belief in the moral perfectibility of mankind—or the grim Savonarola, blind to beauty and absorbed in righteousness—or the gentle gracious Raphael, scattering beauty about him with an open hand—or the demonic Michelangelo, haunted with the Last Judgment long before he painted it—or the melodious Politian, who thought there would be pity even in hell—or the honest Vittorino da Feltre, so successfully binding Zeno to Christ—or the second Giuliano de’ Medici, so kindly ust that his brother the Pope considered unfit for government! We perceive, after every effort to abbreviate and formulate, that there was no “man of the Renaissance.” There were men, agreeing only in one thing: that life had never been lived so intensely before. The Middle Ages had said—or had pretended to say—No to life; the Renaissance, with all its heart and soul and might, said Yes.

Vol 6: The Reformation

He was now thirty-eight, thin and ungainly, homely and melancholy, with distrustful eyes and far-reaching nose. He looked like a peasant, dressed like an impoverished pilgrim in a rough gray gown and shabby felt hat, prayed like a saint, and ruled as if he had read The Prince before Machiavelli was born. He scorned the pomp of feudalism, laughed at traditions and formalities, questioned his own legitimacy, and shocked all thrones with his simplicity. He lived in the gloomy palace Des Tornelles in Paris, or in the chateau of Plessis-les-Tours near Tours, usually like a bachelor, though a second time married; penurius though possessing France; keeping only the few attendants he had in his exile, and eating such food as any peasant might afford. He looked not an iota, but would be every inch, a king.

Chances are pretty good you have never read about Louis XI of France, unless you studied the history of France, because he’s not someone who pops up in history books a lot. I never heard of him before I read this volume. Immediately I was delighted with the description and it stuck in my mind. And, when I saw a picture of him later on, I knew him immediately (only he wasn’t wearing a gray cloak). This Louis made a country out of the France you know today way before Louis XIV was even thought about.

Vol 7: The Age of Reason Begins

The best work of this age in physics, chemistry, and biology was done on the Continent; in England, however, Sir Kenelm Digby discovered the necessity of oxygen to plant life, and Robert Fludd, mystic and medico, advocated vaccination 150 years before Jenner. Medical prescriptions continued to rely on their repulsiveness for their effect; the official London pharmacopoeia of 1618 recommended bile, blood, claws, cockscomb, fur, sweat, saliva, scorpions, snakeskin, wood lice, and spider web as medicaments; and bloodletting was a first resort. Nevertheless this period boasts of Thomas Parr (“old Parr”), who was presented to Charles I in 1635 as still in good health at the alleged age of 152. Parr did not profess to know his exact age, but his parish authorities dated his birth in 1483; he claimed to have joined the army in 1500, and he recalled in detail the dissolution of the monasteries by Henry VIII (1536). “You have lived longer than other men,” said Charles I. “What have you done more than they?” Parr replied that he had fertilized a wench when he was over a hundred years old and had done public penance for it. He had subsisted almost entirely on potatoes, greens, coarse bread, and buttermilk, with rarely a taste of meat. For a while he became a lion in London parlors and pubs, and he was handsomely feasted that he died with a year of meeting the King. Sir William Harvey performed a post-mortem on him, found him free of arteriosclerosis, and diagnosed his death as due to change of air and food.

It doesn't matter the subject - science,  politics, philosophy, math, art, and ad infinitum, Durant understands it and can explain it much better than you can learn it yourself. Parr may not have been a big player in history, but the countless little tidbits from Durant are almost as inexhaustible as Old Parr was.

Vol VIII: The Age of Louis XIV

Charles XII was now fifteen. As the map of Europe was being remade by blood and iron, he had been trained above all for war. All his sports prepared him for martial deeds; he learned mathematics as a branch of military science; and he read enough Latin to derive from Qintus Curtius’ biography of Alexander the ambition to excel in arms., if not to conquer the world. Tall, handsome, strong, with no surplus ounce of flesh to burden him, he enjoyed a soldier’s life, bore its privations stoically, laughed, laughed at danger and death, and demanded the same hardihood of his troops. He cared little for women, and though often courted, he never married. He hunted bears with no other weapon than a heavy wooden fork; rode his horses at reckless speed, swam in waters that were half covered with ice, and relished sham battles in which, time and again, he and his friends were nearly killed. Along with fanatical bravery and physical stamina went certain qualities of character and intellect: a candor scorning the tricks of diplomacy; a sense of honor blemished by exceptional moments of wild cruelty a mind clear to see the point of a matter at once, but impatient of indirect approaches in thought or strategy; a taciturn pride that never forgot his royal birth and never acknowledged defeat. At his coronation he crowned himself, Napoleonwise he took no oath limiting his power; and when a clergyman questioned the wisdom of conferring absolute authority upon a youth of fifteen, Charles at first condemned him to death, then commuted the sentence to life imprisonment.

He hunted bear with a heavy wooden fork? Don't try this at home, folks. I’ve written before on this remarkable man of the 17th century on 6/27/08 simply entitled XII, a post worth reading if you love cavalier swashbucklers without fear.

Vol IX: The Age of Voltaire

Morals in this age were generally more wholesome in Germany than in France, except where imitation of France passed from language to lechery. In the middle classes family life was subject to an almost fanatical discipline; fathers habitually whipped their daughters, sometimes their wives. Frederick William I kept the court of Berlin in fearsome order, but his daughter described the Saxon court at Dresden as quite up to that of Louis XV in adultery. Augustus the Strong, we are assured on dubious authority, had 354 “natural” children, some of whom forgot their common parentage in incestuous beds. Augustus himself was alleged to have taken, as one of his mistresses, his bastard daughter Countess Orczelska, who later taught the ars amoris to Frederick the Great. In the early eighteenth century the faculty of law at the University of Halle issued a pronouncement defending princely concubinage.

Does this man know everything – from the ancients to the family morals of 18th century French and Germans, and confidently enough to compare the two? The truly amazing thing about Durant is that these are just a handful of paragraphs I present here. Each of the thousands of pages he wrote sparkles with great writing and more information than it seems possible for one man to know.

Vol X: Rousseau and Revolution

Geography, race, religion, and politics were the natural enemies of Poland. The country was as large as France, extending in 1715 from the Oder in the west almost to Smolensk and Kiev in the east; but it had no natural boundary—no mountains or broad river—on either front to protect it from invasion; it was named from pole, a plain. It had only one outlet to the sea—at Danzig; and the Vistula that found its exit there was no defence against adjacent Prussia. That nation had no ethnic unity: the Polish majority of its 6,500,000 souls (1715) was an intermittent strife with German, Jewish, Lithuanian, and Russian minorities; here the Teutons and the Slavs came face to face in spontaneous hostility. There was no religious unity: the Roman Catholic janority ruled and oppressed the “Dissidents”—themselves contentiously divided between Protestants, Greek Orthodox, and Jews. There was no political unity, for the jealously sovereign power lay in a Sejm, or Diet, composed exclusively of nobles each of whom had, through the liberum veto, the authority to nullify any proposal of all the rest, and at will bring any session, andy elected Diet, to an end. The king was chosen by the Diet, and was subject to “convention” signed by him as a condition of his election; he could pursue no long-term policy with any assurance of transmitting his crown or receiving steady support. The nobles demanded such limitless power over legislation because each wished to be completely free in ruling his land and his serfs. But limitation is the essence of liberty, for as soon as liberty is complete it dies in anarchy. The history of Poland after Jan Sobieski was a chronicle of anarchy.


Sure, maybe you aren’t particularly interested in Poland, but maybe a little more after he wraps it up for us. But, that paragraph was magnificent. Consider the alternative – here's how Wikipedia's Poland article starts: "Poland /ˈpəʊlənd/ (help·info) (Polish: Polska), officially the Republic of Poland (Rzeczpospolita Polska), is a country in Central Europe [5][6] bordered by Germany to the west; the Czech Republic and Slovakia to the south; Ukraine, Belarus and Lithuania to the east; and the Baltic Sea and Kaliningrad Oblast, a Russian exclave, to the north. The total area of Poland is 312,679 square kilometres (120,726 sq mi),[2] making it the 69th largest country in the world and the 9th largest in Europe. Poland has a population of over 38 million people,[2] which makes it the 34th most populous country in the world[7] and the sixth most populous member of the European Union, being its most populous Slavic member.

You can barely get through that. Look what Durant does instead – he starts by summarizing the national problem – the facts about the boundaries are fit within that context; he describes the make up of the country in terms of its tensions. He doesn’t just tell us what type of government they had, as an almanac might do, he weaves it into the tale, and finishes with a pithy little mini-monograph on freedom, and ties it to Poland again at the end. The second to last sentence on freedom could be a lens on all countries and civilizations.

Of course, the one caveat about reading Durant is that you have to love history. According to Wikipedia, The Story of Civilization it is about 4,000,000 words and nearly 10,000 pages, of which I can subtract most of the last volume. He actually wrote much more but had to leave some things out. I'm not sure I could edit 9-10,000 pages in a lifetime, never mind research and write it with stunning accuracy and insight. But, you can’t even sit down and read that much unless you love it. But, if you didn’t like history, you probably would not have gotten to this place in the post. If you do love history, and have not read him, pick which ever time period you want and go for it.

Look, it's their opinion - Snyder v. Phelps

Few parties in a Supreme Court case will bear the enmity and hatred that the defendants in Snyder v. Phelps do. Even murderers. In fact, in my own experience, regular folks discussing the defendants suggest that they be horse-whipped, beaten up and even killed. The case was argued before the court this past Wednesday. Yet, the defendants have not committed a crime and are not even accused of doing so. They have merely held up signs stating their opinions down the road from a military funeral. These opinions aren’t very popular.

Here are the barest facts. The plaintiff, Albert Snyder, is the father of a marine, Matthew Snyder, who died in Iraq in a Humvee wreck back in 2006. The funeral was held a week later in Maryland where the young corporal was raised.

The defendants are the Westboro Baptist Church of Topeka which is run by Pastor Fred Phelps (whose daughter, Margie, one of several lawyers in the family, argued the case at the Supreme Court) and which mainly consists of the Phelps family. The church takes the position that America has become immoral and they need to speak out so we all repent before it is too late. Almost 20 years ago the church began a practice of picketing public events, which occasionally draws public attention. In 2005, they started to picket funerals. They argue they are merely emulating Christ throwing the moneychangers out of the temple, and other prophets, and, I guess they are if you take what they say seriously. They actually don’t seem to care that much about moneychangers but focus on gays, adultery – and that includes someone who remarries - and other social ills from their point of view. Arguably, if you contest what they did, you also contest the prophets in the Bible who accused Israel of sinning. At least, that is a reasonable proposition.

Thus, the Snyders and the Phelps came together when the church picketed Matthew’s funeral. You might not be surprised if the Snyders are a little upset about signs that said things like “God hates fags” and “Priests rape children”. The Phelps were apparently upset that the Snyders were divorced and Catholic, so . . . . Moreover, they believed Matthew had died because of our collective sins, as nutty as that sounds to some (most?) of us. They didn’t stop at the funeral but went on in the same vein on their website where they claimed that Matthew’s parents had raised him for the devil, taught him to defy God and that he was a liar. You know, religious stuff that sounds a lot like the kooky mother in Carrie. As an aside, their website kind of makes me wonder, if Hitler was alive, would he have a facebook page?

The Phelps, in most people’s opinions, in even religious people’s opinions, are nuts, if not monsters. I don’t need an opinion poll on this one. I’ve yet to hear from one person who sympathizes with them or doesn’t feel sorry for the Snyders, including on various blog cites where you get almost every opinion. Some of that though is based on a misunderstanding of what really happened. I heard Margie Phelps speak years ago on the radio, and although I think she is frightening when it comes to religion, I also think she is bright, courageous and very articulate.

The Snyders sued on five grounds (I’ll ignore the conspiracy though) – defamation of character, publicity given to private life, intrusion upon seclusion and intentional infliction of emotional distress. Two were dismissed before trial – defamation and publicity given to private life, leaving the emotional distress claim and intrusion claims (plus conspiracy to commit same). After trial, the jury came back with a verdict of 2.9 mill. in damages and another 8 mill in punitive damages in the Snyders’ favor. The judge decided 8 mill. was too much and lowered it to 2.1 million.

On appeal though, the federal court of appeals, after saying how “utterly distasteful” the words were, acknowledged they were covered by the first amendment. Moreover, it wasn’t libel. They weren’t stating facts about Matthew. They were using hyperbole to express their opinions. In fact, they were just expressing opinions about matters which are frequently a matter of public concern. If you care, the court based its decision, in part, on the famous New York Times v. Sullivan case (where the rule was made that if you said false things about a public figure, you have to prove malice – that is, knowing falsity or reckless disregard for it) and Hustler Magazine v. Fallwell, where the court permitted on first amendment grounds to allow a sexual satire of Jerry Fallwell (leader of the Moral Majority, if you didn’t remember).

The issues for the Supreme Court may be a little esoteric. I’ll state the plaintiff (who lost on appeals) points very briefly and give my non-legalese response.

1) The speech used by the Phelps was not protected by the first amendment because the people involved were all private citizens (as opposed to public figures like Jerry Fallwell) and the statements were about private matters. Sure, the law applies slightly different legal principles if someone is a private citizen as opposed to a public figure, but I don’t see it making any difference here because I don’t really see any real facts stated, just hyperbolic opinion (even the Semper Fi fags does not mean they are falsely suggesting Matthew was gay). They didn’t really state anything that could be mistaken for an untrue fact about Matthew – stating that he died for our sins is not a fact that can be proven one way or the other and certainly doesn’t libel him. The Phelps claim they were not referring to the deceased, but everyone else in America. I believe them. As ridiculous as I find their beliefs, they certainly have the courage of their convictions, voluntarily open themselves up to every form of contempt and seem to go out of their way not to violate the law. In addition, the Phelps claim that the Snyders made their son a public figure by publicizing his death and complaining about the war. However, whether he is or not, they believe they are entitled to their opinion. The issues concerned are certainly publicly discussed - homosexuality, adultery, religion and so on. I can’t see it any differently.

2) If the Phelps have first amendment protection, the Snyders also have first amendment rights to practice their religion in peace and privacy. Of course they can practice their religion in peace. And they did. The Phelps were too far away to bother them - 1000 feet. That’s almost 3 football fields away including the end zones. Not only that – they left when the funeral started. The people at the funeral did not even know they were there and learned about it later

Right of privacy? Certainly not a constitutional right (there is no general all purpose privacy right in the constitution, although I imagine there are judges who would like to find one). But, that doesn’t mean that Maryland cannot prohibit it as long as it is not too vague. Would I have a problem with the Phelps coming into the church or screaming 100 feet away from them and interfering with the funeral. You bet I would. But they were a 1000 feet away! Meanwhile, other people expressing opinions, positive ones, were right at the church and certainly no one complains about them. How private is that? It seems not at all.

3) The family at the funeral was a “captive audience” which is protected in the law from suffering the slings and arrows of outrageous insults? Again, the Snyders weren’t even an audience. Mr. Snyder learned about the picketing on television afterwards and later still of the website. The popular image of the Phelps interrupting the funeral just doesn’t exist.

Those are my general responses. I’m not going to analyze the law further here. I’ll wait to the Supreme Court rules if I want to do it then, particularly if they come out against the Phelps and reinstate the judgment. At the end of the day, the court could completely agree with the appeals court and affirm the dismissal entirely or agree that the trial court erred in allowing the jury to determine matters of law and send it back down to determine any claims they still might exist (I think most likely, the emotional distress claim based on the website, if anything).

But, as reluctantly as all those who find the first amendment triumphant in this case are to support speakers they find detestable, this one seems easy case to me under the indisputable facts, never mind the law. In fact, as “sexy” as this case is, I really don’t know why the Supreme Court took it. Perhaps, they were as outraged as the rest of us at the content of the Phelps’ speech, and were hoping for a reason to reverse. Perhaps it was the many U.S. Senators who came in on the Snyders’ side. I hope the court does not treat it lightly or politically because this is an important issue. We can’t water down the first amendment just because someone’s viewpoint is offensive to others. However, if there is a weakness to the Phelps’ defense, it is the website, which made statements which arguably, could be said to be factual – like, they taught Matthew to hate the creator and that God is a liar. The appeals court found that this was hyperbole, and not actionable, and I agree.

But, loving to point out hypocrisy, both parties here have something to offer. The Phelps find our country immoral to the point that he who they believe created all are killing our soldiers, but they run to hide behind our most appreciated achievement - our constitution. That's not unusual, of course. Even critics of some modern constitutional rights hide behind them. As for Mr. Snyder, he claims that his privacy has been invaded, although the Phelps did not come near the funeral in the ordinary sense of the word - yet he does to them the most invasive thing he can think of - he sues them. Few legal acts are so personal. However, on his side, there is much evidence of actual emotional damage, unless he's just a great actor, and no one seems to think so. However, he forgets the old saying - never wrestle a pig in the mud; you both get muddy and the pig loves it.

I was stunned by the questions of the Justices at the oral argument as they seem to want to ignore the fact that the Phelps were so far from the funeral and did not interfere with service. That worries me a little.

One of the arguments I hear from those who feel that there were privacy interests here that trump free speech is that this was “hate speech” and therefore not covered.

We have many exceptions to the first amendment – defamation (libel or slander), certain breaches of the peace such as causing a panic such as the quintessential screaming “fire” in a theatre or fighting words, obscenity (and even indecency in certain circumstances), inciting someone else to commit a crime or to sedition, speech which constitutes involvement in a crime (e.g., bribery is essentially a crime of expression), intentional infliction of emotional distress and expression which is otherwise constitutionally prohibited (e.g., language deemed a violation of establishment of religion). It’s not a complete list. So, why not hate speech?

For one thing, there really is no such thing as unlawful hate speech in general. While there are hate speech statutes in many states, it does not exist in the air, and some of them are unconstitutional.

In a 1992 case, R.A.V v. The City of St. Paul, the court determined that a statute which made unlawful certain activities “which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender,” including putting a Nazi swastika or burning cross on private or public property.

The reason the court gave for turning it down was not because a government can not make hate speech illegal (thereby making certain thought illegal), but because if it proscribes a certain type of speech (hateful), it cannot then pick certain types of that speech to be okay and other types illegal. Judge Scalia’s opinion, in my estimation, was illogical, and even if it is logical, it’s really hard to understand. However, one example he gives helps a little. The government can proscribe certain categories of speech (like obscenity or defamation), but cannot determine that certain obscenity is okay and other not based on content. You can make it illegal to burn a flag under fire laws, but not burning a flag to dishonor it. You can make defamation illegal, but not just defamation which is critical of government.

That’s Justice Scalia’s argument, not mine. I see it as a word game – defining sets within sets that don’t really even exist. Take obscenity. In order to find something obscene, constitutionally there must be a specific statute which specifically describes the obscene behavior. In other words, some activities which are sexual are not obscene and others are. Plus, only those acts which have no other redeeming value are obscene. Of course that is proscribing content, but Justice Scalia and the court don’t see it. You could apply R.A.V. to that rule and all of a sudden what is needed to make obscenity constitutional under the Miller Test (which I just described) because it discriminates, would make it unconstitutional under the R.A.V. test for the same reason. We do the same thing with defamation. All defamation is not treated the same. Those statements concerning which are vaguely deemed public matters gets the speaker more constitutional protection and persons who are so called public figures get less. That’s discriminating according to content either way you look at it.

I would have preferred a more straight forward rule that the government cannot ban speech just because it is deemed hateful by some. There is room to still ban acts of terror such as burning crosses on someone’s lawn or public property with intent to intimidate as the court found in Virginia v. Black (2003), although they struck the statute there because the burning was deemed prima facie evidence of intent. But, if you want to do it on your own property or have a swastika clock in your house, you should not be prohibited in my view.

The next year the court decided Wisconsin v. Mitchell, which somehow I had either missed or forgotten about until I was arguing with ubiquitous commenter Don one day about hate speech (admittedly, I can forget where I put a piece of paper which I am holding in my hand, but I don’t usually forget the stuff of arguments) when I googled it up on his ancient computer which I had to start with a hand crank. Don’s assertion that the Court had affirmatively found hate speech legislation constitutional was correct – marking, of course, the first and last time he has ever bested me in any argument. But everyone should get credit for their incredibly unimportant, meager, petty little victories, and I'm happy to give it.

In Mitchell the court allowed hate speech to be a reason to increase a criminal penalty. It didn’t really outlaw the speech itself, which the court stressed, but did permit it to be a factor in the court’s sentencing. Justice Rehnquist’s reasoning was that motive had always been a factor in the court’s determination. Of course, the court often finds that history trumps the constitution (except, usually, Justice Thomas), that is, until they don’t. I find the reasoning mere rhetoric. Whether expression permits a government to sentence to jail someone for terrifying someone with it or increasing the penalty for another crime because of it – it is still punishing based upon the content speech.

The other comment I frequently hear or see mentioned is that the Phelps’ signs and websites constituted fighting words. Fighting words can be constitutionally prescribed. The phrase was made famous in an old case, Chaplinsky v. New Hampshire (1942), where, almost laughably by today’s standards, was charged with using offensive words directed at another person in a public place. The words – “damned fascist” and “racketeer”. I get called worse all the time, and that’s just by family and friends. In fact, I am called a liberal and a conservative frequently, and I know that they are often meant as dire insults.

But, although the fighting words doctrine is still valid, it is less frequently used and I seriously doubt the original case would have passed constitutional muster either (then again, Chaplinsky was decided during WWII (when several bad decisions were made) and fascist was a very charged word. But, again, it must be remembered that the Phelps do not interact with the mourners at funerals. The Phelps never said anything to Mr. Snyder’s face and weren’t near him.

Without going through the history of cases in the past century which have greatly expanded free speech rights, increasingly the court has gone from punishing the speaker to protecting the speaker, with the exception of the anomalous case of Feiner v. New York, in which young Irving Feiner was arrested for making a black rights speech (he was white) in public, and the conviction was upheld by the Supreme Court (1951) not because of the content of the speech, but because it was all right for the police to arrest him in order to curtail his speech which they believed might cause a riot. Actually, it was one man who threatened to punch him and he was not near even Feiner and had his wife and kids with him. That’s what the official record says anyway. Mr. Feiner just died last year and was a feisty one right up until his death, even having a public feud with one of the Baldwin brothers over the right of an adult bookstore to open in their hometown just a few years ago. According to Mr. Feiner, there was nothing like the threat of a riot at all in his case, but that his message was very unpopular with the authorities in town as he was calling for support for some accused blacks.

Feiner is one of my favorite cases, not because it was rightly decided, but because of Mr. Feiner, who has frequently told his side for free to audiences right up into his 80s, and is charming in that old man way, but also because of Justice Hugo Black’s dissent (which were often beautifully written, even if you disagree). Justice Black correctly stated that it is the speaker who needs to be protected by the police but also wrote these words, which I fear we are in danger now of reversing:

“A man making a lawful address is certainly not required to be silent merely because an officer directs it. Petitioner was entitled to know why he should cease doing a lawful act. Not once was he told. I understand that people in authoritarian countries must follow arbitrary orders. I had hoped there was no such duty in the United States.”

The Feiner case and those like it concern what is known as “the heckler’s veto,” wherein those who don’t want to hear or see speech get the call as to whether it is permissible. If the judgment against the Phelps is upheld, I am afraid that we have seen the return of the heckler’s veto and an era where unpopular speech is thwarted by the thinnest and most unconstitutional of excuses for the real reason – someone didn’t like it.

Political update for October, 2010

It was a dark and stormy night

How’s this for a murder mystery plotline? A legendary senator is convicted for failing to report gifts, which causes him to lose his last election. An FBI agent files an affidavit claiming the prosecutors failed to turn over evidence which would have exculpated him. A judge overturns the conviction finding overwhelming evidence of prosecutorial abuse. The next year the senator dies in a mysterious plane crash. The year after that, soon before the report of abuse is released, one of the prosecutors, a young man, commits suicide. Or was he helped?

I don’t know the answer to that question, but everything I just told you is true and applies to the case of Ted Stevens, the most famous and popular politician in Alaska’s history (voted the man of the century and having an airport named after him), and its senator for over 40 years. Stevens was convicted of taking about a quarter of a million dollars in gifts (itself not a crime), mostly to refurbish a home, without reporting them as required (the crime). The case was hard fought and always in doubt. His lawyer was Brendan Sullivan, possibly the most respected defense lawyer in D.C. You may remember him as Colonel North’s attorney when he testified before congress. Sullivan famously told a questioning senator who asked him not to interfere with the hearing ing that he was not a potted plant. Defending Senator Stevens, he complained that an important witness was sent back to Alaska by the U.S. attorneys and they also withheld critical information, a prior affidavit of a star witness that would have undercut his testimony. According to constitutional law, he was entitled to know (defendant are entitled to what’s called Brady material - anything that might exculpate them).

The defense team went so far as to write the U.S. Attorney General in the Bush administration (who was a former judge) to complain of ethical violations, but he ignored them. But, after an FBI whistleblower ratted on other agents and the U.S. attorneys who tried the case, revealing a conspiracy to hide the Brady material, the new U.S. attorney, Eric Holder, now under fire himself, moved to overturn the conviction and the judge complied, reading his opinion in restrained anger. The prosecution team was held in contempt and Holder removed them from their special team that investigated public corruption. The judge, who said he had “never seen mishandling and misconduct as in this case,” also named a special prosecutor to investigate the prosecutors.

Stevens lived long enough to see his reputation at least technically restored, but not his career. Sadly for him, he died in a plane crash, having survived one over 30 years earlier that killed almost everyone else in the craft, including his wife.

His death a couple of months ago did not raise any questions of foul play. The special prosecutor’s report has not yet come out, but the young prosecutor who killed himself's attorney claims that his client will be completely exonerated (and when are attorneys ever wrong?) I suspect he killed himself because he was ashamed, humiliated, and could not face the loss of his reputation and pride never mind the possibility of his own prosecution and conviction. Nothing to be suspicious about here, but, if someone was going to make a political thriller/murder mystery out of it – it has all the ingredients.

There is a point here beyond the tenuous innuendo. Even after the conviction, Stevens maintained his innocence despite the pressure of other Republican Senators who had long been his friends and he refused to resign his senate seat until he lost the election. I admit, although I wasn’t sure he’d be convicted, as best as I can recall I just presumed that he was guilty. It could have been me accused; it could be any of us.

In the late 1980s a young man accused of murdering a young female neighbor on Long Island was convicted in the press before he even had a trial. I would listen to the replay of the trial at night and was shocked at the media coverage and the paucity of evidence, including the ridiculous testimony of a so-called tooth bit expert who has since been discredited. Maybe he was guilty; I hope so, because he was convicted and is still in jail. He has always denied it, and many suspected his younger brother. I was never satisfied and maybe there are others because last year, the Nassau County, D.A., Kathleen Rice (who I once sat next to and briefly spoke with - very pretty for a D.A.) re-opened the case last year (I also believe that the family of the convicted murder finally, after 20 years, has moved off the block they shared with the victim's family).

Also about 20 years ago, I had space in a law office when a murder of a pregnant woman in a Boston cab infuriated the nation. Her husband had survived his gun shot wound and identified a young black man as the culprit. The police swept the area, literally grabbing every young black man they could find, and found a likely suspect. I argued ferociously with the people in my office who wanted him killed without a trial. How do you know, I asked? We don’t know anything but accusations. Shortly thereafter, the husband’s brother ratted him out; he had killed her himself and then gave himself a wound to make it look good. No one took back their call for a lynching.

Then, in 1992, O.J. Simpson was convicted of murder. I still believe he was guilty, but given the abortion of a job by the L.A.P.D. and the prosecution, I was less sure he’d be convicted (a tribute to commenter Don – he was sure he wouldn’t be convicted). The deck was stacked against O.J. (a boyhood hero of mine) by the ridiculous press coverage and the incompetent judge from the start. He was found innocent and probably got away with murder (although he was convicted recently of another offense when trying to recover his memorabiliaand is in jail; I believe mostly in retribution – though he is undoubtedly an idiot). His murder case was followed by a civil case which was even more unfairly handled, and a judgment was had against him. Few seemed to care how the law was ignored in both of the cases.

There are a million cases I could use, but those stand out in my mind. We make judgments and go on our experience and gut. We are often wrong, particularly when it comes to crimes.  I have, at least, become somewhat more circumspect and cynical, in convicting anyone based on what the the media reports.

Health care reform problems already?

A Washington State health insurance company, Regence BlueShield, has announced this week that it is stopping its sale of new child-only plans, a direct result of the federal health care reform acts provision preventing insurance companies from excluding children with pre-existing conditions (or, at least some).

It appears that McDonald's make end its health benefits for its 30,000 employees (though, despite a leaked memorandum to that effect, they denied).

Surprised?

My problems with the health care reform act were as follows:

It was too big. No one understands it. Even President Obama, who made an effort, showed in interviews and in the C-Span health summit with Republican leaders, didn’t understand it – it’s between 2-3000 pages and that doesn’t include regulations. Most of those who voted for it didn’t read it (and wouldn’t understand it or remember it if they did). I don’t care if you don’t vote for something like that if you haven’t read it – but I do care if you do vote for it.

It was corrupt. It was procured with trade-offs which I believe are unconstitutional at worst and bad government at best – huge promises being made to Florida, Louisiana and Nebraska for their votes. What else we don't know.

It will almost certainly cost too much (and we don't have the money for it to cost too much). The CBO says it will lower the budget eventually, but if you read their report, they have no idea. When has a huge federal government plan ever worked out? Okay, maybe the GI bill and other loans for education, but other than that? In fact, recently, Barack Obama seemed to be backtracking on that it would save money. Wait a minute! Wasn't that the whole point they tried to sell everyone on. Now, the Medicare's actuarial office says premiums will go up as a result of the plan for the next ten years. But  . . . but . . . but.  Now the president says he never claimed it would happen for free (but, if you say it will save money - yes, you did). Now, he only hopes to bring it down to the level of other inflation. Great.

My own premiums have already gone up about $100.00 per month.Yours? I don’t know if reform is why, but it doesn’t seem to have helped at all.

There are few things on the level with health care reform in importance. Looks to me like they blew it. Back in the 1990s, there were a few years I refused to vote for a Republican because of the impeachment and what I saw as political harassment of President Clinton. I thought they needed to be punished. I probably should apply the same thing to the Democrats. But, I have to admit - they are both equally bad. Who the hell am I going to vote for?

Israel and Palestine

I return to this topic again and again because it is infuriating. Whatever loathing I feel for Hamas and Hizbollah, I become more and more disenchanted with Israel, which seems to want to justify the Arabs world’s fears that it never intends to give up any land or settlements.

I was furious when the temporary halt on building in the West Bank ended and the settlers gleefully continued. Well, we know how Gaza put a stop to settlements. Is that what Israel really wants? Another war? Maybe. Only, the citizens don’t seem to happy when they occur.

I said this before, but it bears repeating (as, of course, everything else I say), Israel should unilaterally give up all settlements and get out of the West Bank the way it got out of Gaza. Then, if attacked it should defend itself like Bruce Lee in The Chinese Connection and with the same moral force it has shown in the past, make its attackers terribly sorry.

Today, reading of the administration’s efforts to bribe Israel to halt the building so the Palestinian’s do not walk from the negotiations (not that anyone had a lot of hope), I was sickened by Israel’s position. It is their leadership's duty, their responsibility, to at least remove the settlements, by force if necessary.

Doesn’t mean I will back their vicious enemies, but I won’t support them either (not that either care). But, it is also the last major policy issue on which I feel I can support the president (since he has also refuse to end Don't Ask, Don't Tell, which he could do with a pen stroke). He was right to toughen up on Israel and not let them feel whatever they did was fine, as Bush did. There will be no peace until both sides feel they must resolve it.

Bob Woodward’s book on Obama’s War

I could care that there was division in the White House over what to do about Afghanistan. Why wouldn’t there be? It’s a war. I am completely uncaring if the lead actors called each other names. Have you ever read history? Of course they will.

But, I will be upset if, with over a hundred thousand American and NATO troops in Afghanistan, his whole plan is based on political considerations. I’m not suggesting he’d be the first president to do that. Far from it. But, that doesn’t make it right.

According to Woodward, the president said we are out of there in 2011 because he didn’t want to lose the whole Democratic Party. Well, sorry, when you sign up for president, you do have to risk your whole party when it comes to critical decisions and war. Do we know he said it, for sure? Of course not. But, he hasn’t denied it, and neither has Joe Biden, who has been talking about the book. Don’t you think someone would?

Naturally, we can’t expect courageous questions from reporters, but you’d think if it wasn’t true, they’d be out there denying it as they have done with less important matters.

Plus, Bob Woodward has pretty much earned everyone’s trust. At least among the chattering classes, he has as much or more credibility as anyone. I don’t like that he doesn’t cite quotes sometimes, but he does here. Partisans can’t just say, we believe the stuff we like and not anything else (well, of course, they can, but not credibly). After all, Woodward published several books on President Bush, and I can’t recall the media or his White House denying any of that either.

I haven’t been happy with President Obama, but I have supported him when it comes to Afghanistan, as it seems like he is allowing General Petraeus to really give it a shot. But, if it is known that we are gone next year, the resilient forces against us will fight now, but bide their time until we go, or, at least mostly go. Smells like Vietnam all over again. I say this admitting that I change my mind about Iraq and Afghanistan all the time. If I could send 250,000 men to Afghanistan, I would. If we are going to have minor victories stretched out over 20 years, I don’t think it is worth it.

Of course, this isn’t going to be a major issue. We are right now engaged on a major offensive in Afghanistan (taking Kandahar) and not many people care about that either.

Please don’t argue with me

I really don’t go out of my way to argue with people about their religious beliefs. I’m happy to discuss my atheism, and debate it with anyone who wants, but you can’t convince most people of this kind of stuff and you might only succeed in upsetting them, or hurting their feelings.

But, I was admittedly happy to see an article on the results of a Pew Forum on Religion poll this week which showed a few interesting things. First, when it comes to religion, Americans, in general, are really ignorant. Second, atheists, and you have to love this, know more about religion than religious people do. Jews were next, so, in a sense, I make first and second place if you want to completely generalize. I checked out the questions. They were not difficult or esoteric. Here’s the breakdown of the percentage of correct answers (out of 32 questions).

Atheists/agnostics – 65%

Jewish - 64%

Mormon – 63%

White evangelist protestant - 55%

White Catholic - 50%

White mainline protestant – 49%

Nothing in particular - 475%

Black protestant - 42%

Hispanic protestant – 36%

Apparently, they didn’t have enough Muslims, Hindus and Buddhists to determine their knowledge level.

It’s not like they had too small a sample. They asked 3,412 people, which is a fairly large sized poll. I was especially interested that atheists/agnostics did so much better than those who were categorized as nothing in particular. An explanation pleasing to me might be that atheists were more educated or thought harder about things. But, it could be argued that those with faith don’t need to work so hard at it. Another explanation might be that those with faith know THEIR religion, but not necessarily that of others – however, the poll did not bear that out – people knew little about their own religion too. Still another explanation might be that those who have better educations are more likely to be atheists or agnostics. I’m just making these up, you understand. You could go on and on.

However, as a member of a non-group group against whom there is still much prejudice (most Americans would vote for a black or Jewish president, but only around half would vote for an atheist one), it feels good.

And what about the president's chances?

Everything I say below is qualified by the statement – of course, we cannot know what will happen.

It looks like the Republicans will be making a lot of gains in the upcoming midterm elections. It looks quite possible, some think probable, that the Republicans or those who will caucus with them (read – tea partiers) will take the house. I’m not so sure as others, but I’d certainly go with a fair degree more likely than not.

The Senate looks harder. Because of their numeric advantage, in order to take that house, the Republicans must win all of the seats they are expected to win, all of the so called toss up seats and at least a couple of the seats leaning Democrat. Possible, but not so likely.

But 2012 is different. For one thing, this is a midterm election, and gains by the opposition is common. President Obama, in his second year, is more popular than either Reagan or Clinton was (G. W. Bush had his 9/11 bump by now) was at the same time. Few thought that either would end up as popular as they did at the end of their terms and among the population. Clinton, for example, just polled as the most popular politician in the country.

We also know that President Obama is a ferocious campaigner and he doesn’t quit. It seems to me that weariness from being president comes in the lame duck term – the last two of his second, and he is also a relatively young man.

And, of course, when and if the right takes the House, then, we’ll get to see what they do. And don’t be surprised if people don’t like it. After all, despite the anti-incumbent feeling in the country, some polls have shown that Americans don’t like congress, but they like Republican congressmen a little less than the current holders of the house.

The right and the tea party are fired up, but acting with the courage of their convictions might not be so good for them. Of course, and here’s where I waffle, having a Republican congress might make Obama a better president, just like it did Clinton. I hope so.

Take out for two

Carl Paladino is a bit of a jerk in my book. I heard him on the radio once before the blowup with NY Post reporter, Fred Dicker, the other day, and he seemed to want to sound not just like a regular guy, but one who orders hits on other mobsters while eating mama's linguini with clam sauce. Tough guy.

And, there is a certain appeal if you are sick of, and who isn't, namby pamby politicians who apologize for breathing too hard at the drop of a hat if it might offend a voter, or worse, get the media hounds after them.

But, in my book, he takes it too far. His use of the expression to Mr. Dicker - "I'll take you out" was repulsive. His personal attacks on Andrew Cuomo, accusing him of having an affair (something Paladino admits doing) was equally repulsive, because he now admits he didn't have any evidence. He was hoping the press he reviles would dig something up if he suggested it. Someone you want being your governor? I don't care that he has a child out of wedlock. So do I and she's a great kid. He hid it though, which shows a greater lack of character. The fact that he told his wife after they had lost a child doesn't do it for me. You would think traditional conservatives who CLAIM that Bill Clinton's affair was unforgiveable would be bothered by this - but apparently it isn't an issue any more (how can it be after so many of them have shown to be no better?)

This isn't an Andrew Cuomo endorsement. I don't even know what either one really stands for so much, except that Mr. Paladino is a tea partier and NY's Attorney General is a prosecutor. Nothing against prosecutors, really, some of them are very decent people doing a very tough job for little reward - but, Mayor Giuliani and Governor Spitzer have sort of soured me to them as far as other political offices. That's not fair, of course, but I'm admitting a bias.

So, you might be surprised when I tell you, I think the media got it all wrong in the Paladino-Dicker fight, just as thought the judges and the sports writers got it all wrong back in the 80s when they called the first Leonard-Duran fight for Duran. It was close, but I thought Leonard won (and he proved next time around, there was really no contest between them). Sure, Mr. Paladino was angry because the Post had photographed his daughter at her house. Who wouldn't be? And he did taunt Mr. Dicker as the AG's stalking horse. But, watch the video again - the longer one. It is Mr. Dicker who is far more agressive than you'd expect from a reporter (he was right - Mr. Paladino had no evidence against Mr. Cuomo) and seemed to be on the verge of violence. It was he who one of Mr. Paladino's aides (I think that's who he was) tried to calm down first, and he who yelled let me go and went after the candidate again. I'm not sure why they then tried to restrain Mr. Paladino. He didn't seem to be doing anything to me. But, no one threw a punch, and then Mr. Paladino dropped the "take out" bomb. He was going to take the reporter out. We all know what that means. Even if that's just the way he talks, shouldn't he think about changing it?

If I scored the round, the winner being the more aggressive one who landed the most verbal punches, I would give it to Mr. Dicker just over Mr. Paladino, despite Mr. Paladino's late second rally - too little, too late. Just my opinion, but I've watched it four or five times now and that's how I see it. Alone in the world on this one, but there weren't many who thought Sugar Ray Leonard won his first fight with Roberto Duran either.

The next update I'll be able to report on the election, and, we get to start the 2012 presidential campaign. Who will announce first? The only thing I'm sure of, it won't be Hillary Clinton (ruining a conservative fantasy I rank up there with the liberal fantasy that President Bush was going to declare martial law if Senator Obama won the election).