Wednesday, March 25, 2009

Oh Lord, it's hard to be humble

I watched the post press conference analysis last night, and no one seemed to pick up on what I noticed. Namely, we've got a president--and an administration--that really needs to learn a little humility. Saying "When Gordon Brown came to visit me" instead of "When Gordon Brown paid our country a visit" I can pass over, especially since it was in response to a question.

But in his prepared remarks--his prepared remarks that one presumes Rahm Emanuel and several others looked at, for Pete's sakes--President Obama said this:

"And in this budget, we have -- we have to make the tough choices necessary to cut our deficit in half by the end of my first term, even under the most pessimistic estimates."

Why on earth did he have to say "by the end of my first term"? Don't he and his people have any notion how presumptuous this sounds? Where was somebody pouring over the speech, crossing out that phrase, and replacing it with "by 2013"?

One of my favorite stories about a President is when Thomas Jefferson neared the end of his life, he insisted that his epitaph list three and only three accomplishments: his authorship of the Virginia Statute for Religious Freedom, his writing the Declaration of Independence, and his founding of the University of Virginia. When asked what about being Governor of Virginia, Ambassador to France, Secretary of State, Vice-President, and ultimately a two term President, Jefferson responded that those distinctions didn't belong on his gravestone because they were things the people did for him and he wished only to be remembered for things he did for the people.

That anecdote needs to be told at the White House.

Addendum: Hey, by saying "by the end of my first term" didn't Obama basically announce he plans on a second? How come no reporter picked up on that and inquired, "Mr. President, have you given us a scoop? You said 'by the end of my first term;' can we take this to mean you've announced your candidacy for 2012?"

Wednesday, March 18, 2009

The only appointment Obama can make is to see the dentist

Okay, I'm nitpicking a little. But can you find the error in this report in the Washington Post?

"President Obama yesterday made his first judicial appointment, naming U.S. District Judge David F. Hamilton to the federal appeals court, a choice excoriated by some conservatives even as the White House touted him as the type of moderate who could cool the nation's long-simmering judicial battles."

The President does not make judicial appointments; he makes nominations. Here's the relevant text from Article II, Section 2:

"(The President) shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States..."

Appointment implies that it's something Obama can do without consulting anybody, except maybe Michelle; the Constitution makes it clear that the Senate has to give its okay.

On second thought, maybe I'm not nitpicking. This is the main newspaper in the nation's capital, for goodness sakes; they should get that right. I checked the home town paper; and it's correct there. It damn well better be; the name is the Atlanta Journal-CONSTITUTION, after all. Actually, the AJC had noting to do with it; notice they just reprinted the Associated Press piece on the NOMINATION. But that further begs the question: if the AP can get it right why can't the Washington Post ?

Tuesday, March 17, 2009

Domesticated man

Because I work at petting zoo, I've read a little bit about animal domestication. I also try to read a little bit about everything, so once in a while I encounter information relevant to my sheep, goats, and pigs in books that by and large have noting to do with animals.

Such was the case when I read Physics and Politics, published in 1872 by my favorite Victorian nonfiction writer, Walter Bagehot. (My friends will tell you that's the problem with me, that I actually have a favorite Victorian nonfiction writer, but never mind.)

In chapter 2, Bagehot, building on the work of a more famous Victorian, discusses the process of natural selection as it occurs when humans domesticate animals:

"The taming of animals as it now goes on among savage nations, and as travelers who have seen it describe it, is a kind of selection. The most wild are killed when food is wanted, and the most tame and easy to manage kept, because they are more agreeable to human indolence, and so the keeper likes them best."

He begins the next paragraph:

"Man, being the strongest of all animals, differs from the rest; he was obliged to be his own domesticator; he had to tame himself."

And this caused me to reflect on how the "domestication of man" has occurred in fits and starts. There have been some beautiful milestones. Think of the words of Jesus in Luke 6:31: "And as ye would that men should do to you, do ye also to them likewise." Or ponder what Thomas Jefferson wrote in the Declaration of Independence: "We hold these truths to be self-evident:
That all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness." Helping to correct a blind spot Jefferson had, in 1965 President Lyndon Johnson thundered, "The time of justice has now come. I tell you that I believe sincerely that no force can hold it back. It is right in the eyes of man and God that it should come. And when it does, I think that day will brighten the lives of every American." Congress listened and passed the Voting Rights Act.

Yes, there has also been a great deal of backsliding. But when I read words such as those I've quoted above, I feel eternally hopeful. Man has a lot of domesticating still to do, but I think as a species we're a lot closer to a sunny farmyard than to a foggy wilderness.

Thursday, March 12, 2009

Pinky Lee Pig: right thing in the wrong place now in a better place

When visitors to my petting zoo look at our Vietnamese pot-bellied pigs, normally they ask one of three questions. The first question: "Is it true that pigs are intelligent?"

This query merits a humorous response, so I either say, "Of course! That's why pigs are the animal women compare us men to the most." Or "You bet they're intelligent! Wilbur over there is running for Congress. He promises if elected not to spend the taxpayer's money on pork."

The second question is how long they live. I respond that with proper care they can make it into their late teens, and that the one belonging to George Clooney actually lived to be nineteen. Coincidentally, nineteen is also the number of people who saw his film Confessions of a Dangerous Mind.

The third question is something I don't feel comfortable joking about. "Is it true that they make good pets?" comes the hopeful inquiry.

And I respond seriously that no, they do not make good pets, and the craze for Vietnamese pot-bellied pigs was a sad fad indeed. So many people purchased these swine and came to regret their decision that some thoughtful, concerned people have set up pig rescue sanctuaries so that there are homes for unwanted pets that the owners want to discard.

Then I think of the famous instance of someone who wanted to keep a pig, and apparently was competent in her swine husbandry, but she suffered the wrath of her neighbors. And me being me, I ponder the ironic connection this has to constitutional law.

The situation I'm describing took place in upscale Lake Forest, Illinois, where Estelle Walgreen, ex-wife of the heir to the drugstore fortune, battled her neighbors over her unusual pets. Well today I see that Pinky Lee, one of Mrs. Walgreen's three swine, died at the ripe old age of sixteen. She'd have made it to nineteen like Clooney's pig, but living in Illinois instead of Hollywood she didn't have the advantage of a tofu diet or an exercise guru.

The article I've linked touches briefly on the dispute between Walgreen and other property owners in the vicinity. When the controversy was first raging, my mother sent me every clipping she found in the Chicago Tribune reporting on these Lake Forest swine. Meaning no disrespect to the Tribune reporters, neither the linked article--nor, by my recollection, any of the earlier pieces sent to me by Mom, although I've lost them since--mentioned the little constitutional law irony I want to note here.

In 1926, the United State Supreme Court decided the landmark case of Euclid v. Ambler (272 U.S. 365). The high court ruled six to three that it was acceptable for communities to have zoning ordinances. Lots of cities and towns already had zoning in place by 1926, so if the court had gone the other way, it would have made a huge difference in how America grew in the twentieth century. Anybody interested in this is well-advised to read The Zoning of America: Euclid v. Ambler by Michael Allan Wolf (2008). It's a title in the University Press of Kansas series "Landmark Law Cases and American Society." (I have several volumes in this fine series; they're directed towards an interested popular audience rather than lawyers, so you don't need to be a Harvard Law Review contributor to get something out of them.)

Well in the course of his opinion for the court, Justice George Sutherland had cause to define, where property rights are concerned, what exactly is a nuisance. And here he goes:

"A nuisance may be merely a right thing in the wrong place, like a pig in the parlor instead of the barnyard." (Euclid at 388).

I'd love to know, frankly, if the attorneys representing the "let's keep Lake Forest pig-free" neighbors thought to put that citation in their briefs. Whether they did or didn't, I just think it's a riot that in THE case on zoning in America, the Justice tossed out a hypothetical nuisance that was exactly the circumstance of a well-publicized controversy in a ritzy Chicago suburb seventy years later. (Okay not quite exactly--the pigs were in Walgreen's garage instead of her parlor, but it's pretty damn close.)

So godspeed, Pinky Lee Pig, and if you're in pig heaven, I hope you get to eat all the goat feces you want. My pigs at the petting zoo really enjoy doing that. Gee, I'll never understand why the Old Testament says swine are unclean animals...

Monday, March 9, 2009

Sir Teddy and "obscurity"

A bit of debate has ensued over whether a sitting senator, like Ted Kennedy, can accept a foreign honor such as knighthood. Writes Amie Parnes at Politico:

"Is Sir Ted's knighthood unconstitutional? The naysayers point to Article I Section 9 of the Constitution, which says “No title of nobility shall be granted by the United States: and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.”

I agree with most of the article, which makes the point that the key words are "consent of Congress" and even the most partisan Republican is unlikely to object to Senator Kennedy being knighted. Since the honor apparently no longer requires consummation by an exhibition of jousting, everybody should be just fine with this.

There is, however, one small objection I have with Parnes's piece. That's her reference to the section of the Constitution in question as "obscure."

In the first place, can any provision in the Constitution honestly be called "obscure"? It's only got seven articles and twenty-seven amendments. Akhil Amar notes that "It's full text, including amendments, runs less than eight thousand words, a half hour's read for the earnest citizen" (America's Constitution: A Biography, 2005, p. xi). My desktop copy of the document , the one published by the Cato Institute, fits in a shirt pocket and has all of the First, Second, and Third Amendments, plus the first sentence of the Fourth, on one page. I don't see a work this brief as capable of hiding an obscure provision in the manner that ponderous statute books can.

Furthermore, while the average man on the street might find certain parts of the Constitution low on the relevance scale, to us who are deeply immersed in the Constitution everything is significant. I cited above from Professor Amar's book. That volume isn't intended just to be read by a handful of scholars; he wrote it for an interested popular audience. Amar spends five pages on some problems that have resulted from the Eleventh Amendment, and I bet there isn't one person in a thousand who could even hint at what's in that provision. But again, if you are serious about the Constitution, neither that amendment nor anything else is "obscure."

But outside of these general reasons, there is a more specific argument that the clause relating to Kennedy's situation is not obscure. First, it's found not just one place in the Constitution, but two. And second, an 1810 proposed amendment that would have put this concern in yet a third place in the Constitution was essentially the Equal Rights Amendment of its time--a provision that easily passed Congress, was sent to the states, and fell short of ratification by one state.

Addressing the first point, while the Politico article cites Article 1, Section 9, which applies to the federal government, Article 1, Section 10 makes the same point regarding state governments. "No state shall..." it asserts "grant any Title of Nobility." So serious were the framers of the dangers of bills of attainder, ex post facto laws, and somebody being made a duke or an earl that they made it crystal clear that neither the federal government nor any state could do this.

Incidentally, this relates to the point that in 1833 John Marshall made in Barron v. Baltimore, holding that the Takings Clause of the Fifth Amendment--and by extension, the entire Bill of Rights--did not apply to the states. The pre-Civil War Constitution said that no titles of nobility could be granted by Congress, or by the states, but it only says that Congress can't infringe on the freedom of speech, so how could you argue that the Constitution prohibits a state from regulating speech? As a result of the Fourteenth Amendment and subsequent decisions, most of the Bill of Rights now does apply to the states, but for where this country was in 1833 Marshall's logic wasn't a stretch.

Now the second point, the early nineteenth century attempt to amend the Constitution to regulate honors or gifts from foreign sovereigns even more tightly. The proposed amendment said this:

"If any citizen of the United States shall accept, claim, receive or retain any title of nobility or honour, or shall, without the consent of Congress, accept and retain any present, pension, office or emolument of any kind whatever, from any emperor, king, prince or foreign power, such person shall cease to be a citizen of the United States, and shall be incapable of holding any office of trust or profit under them, or either
of them."

Imagine if that had been ratified. Under it, even if Ted Kennedy gave up his seat in the Senate and became a private citizen, if he accepted the knighthood without clearing it through Congress, he would actually lose his citizenship. This might just be the most draconian measure that ever came close to being a part of our Constitution, especially when you consider the "any present" language. Never mind touching his shoulder with a sword, if the Queen of England simply bought Teddy lunch he could forfeit American citizenship by accepting.

And it didn't miss out by much. David Currie points out that the vote in favor of this amendment was 26 to one in the Senate and 87 to three in the House, and that it was ratified by twelve of the seventeen states in existence in 1810 (The Constitution in Congress: The Jeffersonians, 2001, p. 334). A thirteenth state voting yea and there it would sit as our Thirteenth Amendment. (Which, of course, means the actual Thirteenth Amendment, banning slavery would have been the Fourteenth, the Fourteenth would be the Fifteenth, and so on down the line.

Currie also noted that one does not find much information from newspaper accounts, the Annals of Congress or any other source contemporary with the proposal that lets us know today exactly why so many people thought foreign gifts were such a menace that the threat of loss of citizenship had to be held over the heads of the masses. He cites another book that remarks of the speculations by historians that it could have been fears of Napoleon, or an attempt by the Federalists to embarrass President Madison, or a "powerful expression of nativist prejudice" (p. 333).

You know what's funny about this? One of the states that stood in the way of this harsh amendment coming to fruition was the same one that was the first to secede fifty years later. Said the South Carolina House of Representatives when inquired by Congress about their rejection of the proposal:

"(We) are not aware that any evil consequences have resulted from the existing provisions of the constitution, while on the other hand, (we) can but believe that the adoption of such an amendment would operate imperiously on innocent individuals, as well as the community at large". (Currie, p. 334, n. 103).

Well done, Palmetto State.

Monday, March 2, 2009

You're biased if you just report what was said

I try very hard to keep an open mind to all sides of an issue. The best reason for keeping such a personal policy was, I think, elucidated nicely by the great twentieth century federal judge Lerned Hand, who delivered a speech in which he declared: "The spirit of liberty is the spirit which is not too sure that it is right."

So one thing I've done is to bookmark on my computer both NewsBusters, which snarls that the media is liberally biased, and Media Matters, which just as vehemently asserts that journalism is partial to conservatives. Now I've never understood why people can't just accept that Keith Olbermann is going to rant against the right and that Sean Hannity, now free of the moderation of Alan Colmes, is going to tell us Obama will take the country right down the toilet. I think everybody should simply deal with it and then just get on with their lives. Still, it's good practice to peruse both websites to read points, valid and preposterous, that are made by both outlets.

And I'll tell you the difference between NewsBusters and Media Matters where my disagreement with them is. When NewsBusters writes something I disagree with, my usual reaction is to think "That's pretty trivial."

On the other hand, when Media Matters, in my view, drops the ball, my reaction is more the order of "You can't be serious!"

About three years ago, Brent Bozell of NewsBusters wrote a column in which he decried the abundance of fart humor on Nickelodeon. (When he writes about that stuff, it's more the entertainment industry being left than journalists, but what the heck, thanks to the Bill Mahers and John Stewarts of the world the line between those occupations is blurring.) Bozell and I are of similar ages, and when I read the column I just rolled my eyes. I figure he and I turned out okay in spite of being exposed to cartoons in which Bugs Bunny caused Yosemite Sam to fall off a cliff, or Jerry dropped a piano on Tom's head. I don't think kids today are much at risk just because it's a rare moment on "The Grim Adventures of Billy and Mandy" when somebody isn't passing gas.

My objection with Media Matters, on the other hand, is perhaps best emphasized by a piece they have today concerning the manner in which President Obama's nomination of Kathleen Sebelius as secretary of the Department of Health and Human Services has been reported. The blurb summarizes its complaint:

"Reporting on President Obama's selection of Kathleen Sebelius as Health and Human Services secretary, The New York Times and the Politico propagated the baseless conservative charges that the health care reform efforts of Obama and Sebelius amount to 'socialized medicine.'"

Merriam-Webster offers several definitions of "propagated." I don't think in this context Media Matters is complaining that the New York Times and Politico are trying to reproduce; the meaning intended here must be: "a: to cause to spread out and affect a greater number or greater area : extend b: to foster growing knowledge of, familiarity with, or acceptance of (as an idea or belief) : publicize c: to transmit (as sound or light) through a medium."

So what exactly did the New York Times do to earn Media Matters' admonishment? Why, they did this nefarious thing:

"(I)n a March 1 article, the Times uncritically repeated conservatives' charges that Sebelius is 'an advocate of 'socialized medicine' -- or 'Hillarycare,' as Melvin Neufeld, who was [Kansas] House speaker at the time, put it.'"

Yes, the New York Times "caused to spread out" or "fostered growing knowledge of" or "transmitted" the charge by the Kansas House Speaker that Sebelius favors socialized medicine. See, that's what newspapers are supposed to do when reporting on a politician; it's their job to get a quote or two from that elected official's detractors.

But notice what Media Matters is objecting to: that the Times article "uncritically repeated" the difference of opinion. Apparently the Media Matters folks think the reporter should have broken in with a paragraph assuring readers that the charge was without foundation.

I would argue that the Times article presents Governor Sebelius in a very favorable light--in fact, it's just the kind of piece NewsBusters might scowl at. Just read these paragraphs:

"In that job [state insurance commissioner], Ms. Sebelius cast herself as a consumer champion by pushing to protect patients from rationed care by health maintenance organizations and rapid discharges by hospitals. She declined campaign contributions from the industry she regulated and, in her boldest move, rejected the 2002 purchase of the state’s largest insurer, Blue Cross and Blue Shield of Kansas, by Anthem Inc., based in Indianapolis.

"No other state insurance commissioner had blocked such a sale, but Ms. Sebelius argued that it would result in higher premiums for Kansans. Litigation ensued, and she ultimately was upheld by the State Supreme Court.

“'She rode that decision all the way to the governor’s office,” said Sandy Praeger, the current insurance commissioner and a Republican."

So we learn from this that Sebelius took on an insurance company, won litigation, and was elected governor as a result. Then for good measure, there is a note of acknowledgment, if not praise, from somebody on the other side of the aisle.

It certainly doesn't sound to me as though reporter Kevin Sack was unfair in his portrayal of Sebelius, and certainly he wasn't acting as a partisan hack for the right. But Media Matters takes him to task simply for reporting that Sebelius's policies have critics, which if Sack didn't do, he'd be a partisan hack for the left.

Oh well, that's the beauty of living in America and listening to as many viewpoints as you can. You always have the power to evaluate things and come to your own decision. I hope both NewBusters and Media Matters would agree.