This is a First

khwan.gifFrom time to time I sell a bunch of DVDs on eBay or half.com, usually movies I thought I'd watch more often than I actually do. Now that I've become so infatuated with Netflix, it makes more sense for me to just upgrade to a bigger monthly plan and sell the movies I don't watch more than once every few months. Often they are movies I received through a Columbia House membership, through which I get DVDs at ~$8 each. So even though I am selling them used, I usually make a small profit. Sometimes I just turn around and spend it on other DVDs; this time it is going to pay off the credit card bill for the couple dozen boxes of books I ordered last month.

Anyhow, today, for the first time, I sold a DVD to a Thai supermodel. A Pearl Jam concert DVD no less. Tis a truly bizarre world.

New Design

So I've just done another site re-design, though this one is entirely cosmetic. Much of the last redesign was oriented towards learning new tricks (e.g. the hide/show menus on the right), adding new sections (e.g. Photos, Zen) and not quite as much thought was given to the actual appearance. I decided I missed the white space that I enjoyed on the first incarnation (as well as on En Banc). The masthead was inspired by Samizdata, though I left my CZ-75B out of the picture.

It'll take me a couple hours to get the rest of the site fixed, so please excuse the mess. And please let me know if you have any thoughts or suggestions.

UPDATE: OK, I think everything should be working, except for the music section which I'm still constructing. The only marginally non-cosmetic change that I've made is to remove the "date header" which would appear in between posts to delineate a new day. I have never figured out a nice way to incorporate that feature (I think it looks particularly silly when there are a string of days with only one post per day), and until I do I think I'll just add a month/day/year tag to the footer of each post.

Day of Mindfulness

Each Saturday I make an effort to devote the day to mindfulness. As part of that effort, I will largely refrain from blogging on Saturdays. I will, however, provide a weekly update to the section of this website on Zen.

This week's offering is Thich Nhat Hanh's commentary on the Second Precept: Generosity.

Is This Legal?

Just saw this listing while looking for a summer sublet in DC:

$625/month includes utilities. I am a female grad student living in a 2-bedroom apartment but my roommate is leaving for summer. Need to sublet approximately May 15- Aug 15. Hoping to find a Christian roommate. Great deal for summer interns. Also option to continue lease in August if you like the place.

I could not tell you for sure, but I have a suspicion that is not an acceptable criterion.

Gay Marriage Uproar

I have to confess to genuine surprise at the uproar all across the blogosphere at yesterday's announcement by President Bush that he supports the proposed constitutional amendment banning gay marriage. It's not that I thought it would get much praise, it's just that I didn't think it would come as such a shock to anyone. Perhaps I've had my head in the sand and did not see that there was actual uncertainty about President Bush's likely public position on the amendment, but I had thought it a foregone conclusion. When I saw that it was breaking news, and that the blogosphere was in an uproar, I had to scratch my head.

That it was left out of the State of the Union was to me a sign merely that he knows it is red meat for the conservative base, not for mainstream consumption. It may also reflect, as I suggested his support for the Assault Weapons Ban might, a recognition that the position has essentially zero chance of becoming law. As such, the conservative base can be satisfied by his public support, but the moderates mollified when it doesn't even make the floor of the House or Senate.

Either way, I see this decision as par for the course with this administration. Thus I'm genuinely surprised that the announcement has created such a stir in the opposition, and perhaps even pushed more people into that opposition.

Assault Weapons Ban

I was just thinking that we haven't heard a whole lot about the fact that the Assault Weapons Ban is set to expire this September. Lo and behold, the Democrats are already making it an issue:

A Republican-led bill to immunize gun makers from wrongful-death claims is expected to hit the floor tomorrow, but Democrats and liberal Republicans will propose an amendment to extend the federal assault-weapons ban, possibly setting up a showdown with the House.

Exciting, exciting stuff. President Bush has explicitly endorsed both of these proposals, favoring immunity and an extension of the AWB. Many have suspected that his support for the latter was likely conditioned on knowledge that House Republicans vigorously oppose it, thus leaving him a way to publicly endorse it without the hostility that would be aroused in his conservative base if it were actually passed. It looks like this issue is really headed for a showdown, and the timeline suggests it will occur right in the spotlight of the presidential election campaign.

This will be one to watch.

Reading Bernard Shaw

shaw.gifI zipped through Halberstam's Summer of '49 last night in about 6 hours. It was, after all, a book about baseball, and about good old-fashioned baseball in particular. Just the kind of thing I can't put down. I can not say I was blown away by the book, nor did it hold any particularly striking insights. But Halberstam is a great writer, and if nostalgia over long-lost eras of baseball is your thing (as it is mine), it's a good, quick read.

I am now beginning one of the most exciting parts of my Great Literature Project: Bernard Shaw. During my junior year of high school, the Academic Decathlon competition's English selections were Shakespeare's Julius Caesar and Shaw's Pygmalion. I read each ~15 times, and came to love them dearly. Since then, I have not read anything else by either playwright, a tremendous gap in my reading that I'm looking to fill. It does not take long to learn that Shaw was quite a personality. As the author of The New Lifetime Reading Plan (clearly a big fan of Shaw) puts it:

A man who lived to be ninety-four; who probably began thinking in his cradle if not in the womb; who left behind him, in addition to a vast library of correspondence, thirty-three massive volumes of plays, prefaces, novels, economic treatises, pamphlets, literary criticism, dramatic criticism, musical criticism, and miscellaneous journalism dealing with every major preoccupation of his time and many trivial ones; and who, like all his favorite supermen, lived forward, as it were, toward an unguessable future--such a man reduces to no formula.

Of immediate interest to me, the Shaw reader, is his habit of writing tremendous introductions to his plays:

always read the prefaces that usually accompany the plays. As prose they are masterly. As arguments they are often more comprehensive and persuasive than the plays--see, for example, the astounding Preface to Androcles and the Lion on the prospects of Christianity.

See the preface? How could one miss it? In my 158-page volume of Androcles and the Lion, the preface starts on page 9, and the play on page 111. Anyhow, the Plan lists 11 of his plays in chronological order. I was able to pick up 8 of them on remainder, and plan on reading them all over the next few weeks.

Comanche Scrapped

comanche.gifIt looks like those of us who cut our computer gaming teeth on Novalogic's Comanche series got a lot closer to flying the helicopter than the Army's real pilots will. Less than 2 years after cancelling the Crusader artillery project, the Army has scrapped the Comanche:

With about $8 billion already invested in the program, and the production line not yet started, the cancellation is one of the largest in the history of the Army. It follows the Pentagon's decision in 2002 to cancel the Crusader artillery program -- against the wishes of Army leaders.

"The Bush administration has now killed the two biggest Army weapons programs it inherited from the Clinton administration," Thompson said, referring to the Crusader and Comanche.

The program for the Comanche was begun in 1983, but even preliminary production was not slated to begin for another couple years. Sad to see so much time and money come to naught, but any program started that deep in the Cold War ought to raise a lot of questions about its suitability as a tool in modern conflicts. The helicopter continues to be both the lynchpin and the Achilles' Heel of Army operations. Excellent for recon and quick insertions, but vulnerable to shoulder-fired missiles and RPGs, as well as the wide array of inherent dangers in rotor wing aircraft flight.

Backwards Flag?

flagright.gifI get asked this question a lot, and so apparently do other members of the military: "Why does the Army wear the flag backwards?"

As with many things in the Army, there is a simple, but arcane answer:

When worn on the right sleeve, it is considered proper to reverse the design so that the union is at the observer�s right to suggest that the flag is flying in the breeze as the wearer moves forward.

Thus, observers from the soldier's right, looking at his right shoulder, see the canton to the right with the stripes streaming leftward. Having it the other way would give the image of a flag moving away from battle, retreating, and we certainly can't have that. And unlike in previous years, when only deployed soldiers wore the flag, it is now a universal requirement.

Swedish Apple Pie

My girlfriend and her friends are having a big get-together to celebrate/mourn the final episode of Sex and the City. Not having much use for that show in its last few seasons (or the prospects of watching it with a dozen women), I won't be joining her. I did, however, contribute to the night's culinary attractions. Though labelled a Swedish Apple Pie, this dessert does not have a crust underneath and is thus more akin to a cobbler than a traditional apple pie. It is, either way, absolutely delicious. I doubled the recipe and cooked it in a 9x13 dish:

swedish_apple.jpg

DiMaggio and Hemingway

hemingway.gifGreat little anecdote from David Halberstam's Summer of '49, which I've just begun (having sadly reached the end of my second reading of The Lord of the Rings):

Soon after he retired as a player, [DiMaggio] returned with a group of friends to the Stadium to watch a prize fight. He was with Edward Bennett Williams, the famed trial lawyer, Toots Short, the saloon-keeper, Averell Harriman, the politician-diplomat, and Ernest and Mary Hemingway. Suddenly an immense mob gathered. Hundreds of kids, a giant crowd within a crowd, descended on DiMaggio demanding autographs. One kid took a look at Hemingway, whose distinctive face had graced countless magaizne covers. "Hey," the kid said, "you're somebody too, right?" Hemingway said without pause, "Yeah, I'm his doctor."

Classic. What a group, though! I'd love to know what Ernest Hemingway and Edward Bennett Williams had to say to each other. Hard to believe they existed in the same world, let alone the same world as Joe DiMaggio.

Nader in Iran?

nader.gifDemocrats across America are up in arms at Ralph Nader's announcement that he's going to mount another unsuccessful run for the White House. Foreign policy analysts and Middle East reformers are up in arms over the results of Iran's parliamentary elections.

I have a solution to both problems: Nader should run for the office of President of Iran.

iran_elections.gifAfter all, the people there, like Nader, appear to have some pretty strange ways of telling reformers that they haven't gone far enough: they elect hardliners. Check out this explanation of the hardliner's massive victory:

They lost a good deal of credibility with the Iranian public because they failed to initiate many of the reforms they had promised. One could argue that in parliament their efforts to legislate reformist bills were blocked at every turn by the hardline Guardian Council. And there is plenty of evidence to back that argument.

But at the end of the day, they failed to deliver on important issues. And in some cases when many people expected them to stand up to the hardliners' excesses outside parliament, they proved feeble. I met a lot of people in the past few days who said to me that even if thousands of reformists had not been barred from standing in the elections, they still would not have voted for them.

So the hardliners prevented true reform, and the reformers failed to really stand up to them. What does the public do? Blames the reformers and gives a massive victory to the hardliners. After all, there's no real differences between them, right? Make perfect sense, in Naderland.

National Security Deference

detainee.gifThe upcoming "enemy combatant" cases represent one of the most interesting tests thus far of the present Supreme Court, and I think the outcomes could provide much needed insight into how contemporary jurisprudence will respond to difficult legal issues that have, in retrospect, led prior courts astray. Legal Times has an article detailing the potential tension in these cases between the Rehnquist Court's committment to traditional deference to the executive on national security matters, and their demonstrated unwillingness to be resigned to a passive judicial role:

For the last half-decade Dellinger and others have, with a touch of amazement, described the current Court as the least deferential Supreme Court in history. On issues ranging from Miranda warnings to federalism, the Court has repeatedly reminded the other branches of government that it, and no one else, is the final arbiter of constitutional rights and statutory meaning.

The imponderable in the coming terrorism cases is whether the Court can set its assertive self-image aside in the name of war and national security. Not likely, say administration critics, especially because the cases relate so closely to the role of the courts -- the issue closest to the justices' hearts.

I for one can't wait to see these decisions. I took a class last semester on "Foreign Relations Law" and the perceived unwillingness or incapacity of the court to get involved in national security matters was a recurring theme. Even in my current "Constitutional History" course, we've discussed the question of whether it makes any sense for the Supreme Court to even pretend it is offering some sort of oversight when they will never overrule the executive/legislative action, or whether a mea culpa ala Justice Jackson in Korematsu would be better. The latter, it is argued, would at least ensure that more resources were expended at the political level, since recourse to the courts would no longer provide much hope.

One of the keys to these detention cases, I think, is the timing. This is something Chief Justice Rehnquist noted in his book on civil liberties in wartime:

Rehnquist's 1998 book, "All the Laws But One," notes that the Court usually defers to the executive branch while a war is on, but resumes its vigilance over civil liberties after the war is over.

I think this is essentially correct, but the War on Terror presents a new paradigm of analysis. It is obviously much more difficult to delineate the time when war is "on" and war is "over." In some ways, whether justified or not, we are already in a "post-war" state of mind. You'd have never had this kind of support for the detainees in late 2001 or early 2002. Even the ACLU kept its mouth shut for the first month or so after 9/11. But it's now 2004, and sensibilities have changed. We did not have a series of 9/11-type attacks, and for better or worse, the mundanities of normal life have largely resumed. As such, people are willing to give much stricter scrutiny to these detentions, to the Patriot Act, to the justifications for war in Iraq, etc. I think the court will also recognize this shift, and it could lead to some interesting results.

Day of Mindfulness

Each Saturday I make an effort to devote the day to mindfulness. As part of that effort, I will largely refrain from blogging on Saturdays. I will, however, provide a weekly update to the section of this website on Zen.

This week's offering is a poem by Thich Nhat Hanh from his collection, Call Me By My True Names, entitled "The Old Mendicant".

Will I Go to Iraq?

iraq1.gifHere's the scenario: I manage to pass my 3L classes and graduate law school in May 2005. I take the Virginia bar exam in July, and with luck, receive a passing score when they are released in November. I get slotted for a JAG School Basic Course starting in January 2006, learn everything I need to know to be a brilliantly successful military lawyer, and graduate in late March/early April. Could I then be deployed to Iraq? Apparently I'll be cutting it close:

American officials say U.S. forces will be needed in Iraq long after a sovereign government is restored this summer, but they have yet to work out the terms of a continued presence.

The U.S. administrator in Iraq, Paul Bremer, has also urged Italy and other countries to keep their troops in the country at least until December 2005, an Italian newspaper reported on Friday.

"It is necessary that coalition troops, including Italians, remain in Iraq at least until December 2005," Bremer told the Corriere della Sera newspaper in an interview.

Obviously it is almost impossible to predict what the future holds for our involvement in Iraq. As the story notes, some argue that any freely elected Iraqi government would likely be quite hostile to our continued presence, and it would be difficult to stay under such conditions:

Anthony Cordesman, a close observer of the Iraq situation as a strategist at the Center for Strategic and International Studies, said that if political control was turned over on July 1 to an Iraqi body that is not elected, it likely would align itself with U.S. objectives and therefore welcome a continued U.S. military presence. But once elections were held, the U.S. role would be in doubt, he said.

If the new Iraqi government decided it wanted American forces to leave, "We would certainly be obligated to leave, under international law," Cordesman said.

And yet there is not even a plan for how such elections would take place. The "caucus plan" has been canceled, and the possibility of any elections before the planned June 30 transition are in serious doubt:

In Washington, a senior U.S. official said Wednesday that the Bush administration was prepared to drop the caucus plan and hand over power to an expanded Governing Council until elections can be held.

Even should a more friendly government arise, there are unknowns on the homefront as well. We might have a change in the Oval Office, or a new outlook from the current administration once a second term has been secured. Public opinion is increasingly unhappy with the status quo. Something is going to have to give. I'm beginning to wonder if I'll be in Iraq when it does.

More on Barnett

My disgust at the situation at CU has increased every day this week. The jackass does not deserve any more attention than he's been given, but I have to second this editorial about Gary Barnett in today's Washington Post (link via my girlfriend):

[A] portrait is emerging of Barnett as a coach so out of touch that he firmly disciplined lateness or dressing out of uniform but failed to report an alleged rape to authorities. In a 2001 police report filed by yet another woman who said she was assaulted by a football player, Barnett is quoted as saying that if she pursued rape charges he "would back his player 100 percent."

It's not inherently wrong, sexist, or even old-fashioned to say that football can make a better man. In fact, the game, like all games, can be a great teacher of manhood. The problem lies in the definition of what is manly. At the end of the 19th century, social historian Joseph Kett observed, "The word 'manliness' itself changed meaning, coming to signify less the opposite of childishness than the opposite of femininity."

Ideally, modern manliness should not be about sexuality, or about men performing with women watching them, or about girls and boys, in Barnett's kind of parlance. Too many coaches and athletes continue to confuse manliness with virility. What they wind up with is a drunken puerile definition, a stumbling, slurring, hulking, and even assaulting cartoon of manhood. What a good modern football coach ought to be interested in creating is not a virile man, but simply a grown man, an adult who is in command of himself and his impulses.

Clearly, Gary Barnett is not the man for that job.

Amen. Fire him.

Scary on Purpose?

cheney.gifJust as soon as we've decided that Dick Cheney is not evil, Dick Meyer at CBS steps forward with a new question:

Is Dick Cheney Scary On Purpose?

Quite a headline, and surprisingly it is posed in an interesting way. Rather than simply list all the ways that he thinks Cheney is a frightening man, Meyer is wondering how Cheney's popular image has become so transformed in the years since he became Vice President, and whether the transformation is intentional:

As a congressman and Defense Secretary, Cheney was actually a pretty fun guy. He was open with the press, relatively spin-free for his peer group and popular for the deadpan wisecracks issued from his famously curled mouth. He was a Republican that Democrats liked. Republicans did too.

As the choice for veep in 2000, he was the opposite of scary; he was seen as a soothing selection: wise, unflappable, hardboiled, heavy. It was Bush who suffered in comparison to the uber-competent Cheney. The joke was that Papa Bush�s cronies sent Cheney in to watch over Junior, mentor him and mind the till. Now he�s the bogeyman.

The "Cheney question" is one of the more intriguing and unpredictable elements of this administration and this coming election. Kevin Drum has long been a fan of an explicit anti-Cheney strategy for Democrats, but I've been more skeptical that they'd really gain much from it. Yet Meyer does list a series of recent Cheney-related stories that have probably been taking a toll on the administration's popularity: public statements on Iraq and WMD, Iraq and al-Qaeda, the energy task force, his Halliburton connections, the Valerie Plame leak, and the Scalia duck hunting trip.

In the end, however, I still think Cheney is not that big a liability. I think he'll be able to recapture much of his 2000 campaign image when he squares off against the as-yet-unknown Democratic VP candidate, though an articulate combatant like John Edwards might give him some trouble. The real question will be not whether Cheney is a liability, but whether he offers any value-added in a potentially tight re-election race. I think he does, and think we're probably better off with him in the VP office than most of the alternatives, but a Bush campaign machine might see an even greater upside in having, say, Condoleeza Rice in the VP slot come November. And I think it'd be hard to argue with that.

Better Things

The last time I saw Dar Williams in concert, she described this Ray Davies song as "the song your dog would bring you if he thought you were sad." Sounds about right to me. It's upbeat, it's optimistic, but it's not claiming that all of life is just ease and joy. It's not even about overcoming adversity so much as enjoying the time after adversity, getting back on track. Of course this song appeals to my optimism, but it also appeals to my sense that the way to make the future a wonderful place is to enjoy the present moment.

Here's wishing you the bluest sky
And hoping something better comes tomorrow
Hoping all the verses rhyme
And the very best of choruses to
Follow all the doubt and sadness
I know that better things are on the way.

Here's hoping all the days ahead
Won't be as bitter as the ones behind you
Be an optimist instead,
And somehow happiness will find you.
Forget what happened yesterday,
I know that better things are on their way.

It's really good to see you rocking out
And having fun,
Living like you just begun.
Accept your life and what it brings.
I hope tomorrow you find better things.
I know tomorrow you'll find better things.

Here's wishing you the bluest sky
And hoping something better comes tomorrow
Hoping all the verses rhyme
And the very best of choruses to
Follow all the drudge and sadness
I know that better things are on the way.

I know you've got a lot of good things happening up ahead.
The past is gone, it's all been said.
So here's to what the future brings,
I know tomorrow you'll find better things.

Israel's Wall

israel_wall.gifJust yesterday I was discussing with a friend how amazing it is that so little coverage has been given to the new wall Israel is building to shield itself from Palestinian terrorists. This is one of the biggest developments in that region in many years, and it's being overshadowed by Democratic primaries and our engagement in Iraq.

The fact that the administration has not taken an active public role has also kept the spotlight elsewhere. It goes to show just how much control the administration can wield over the news cycle by focusing its own attention on particular issues. Now the "wall question" is receiving some coverage because the International Court of Justice is going to hear the case:

The hearings begin on Monday and militant Palestinian groups have reportedly been warned by the Palestinian Authority to lay off the bombs, not to give any opportunity for Israel to say "We told you so -- we need the fence to stop the bombs."

The U.N. General Assembly decided in December to ask the court for an advisory opinion after Israel ignored a resolution demanding the barrier be taken down.

Israel has challenged the judges� authority in the case, saying it is a political matter, and will not attend the hearings.

The U.S. has officially supported Israel's position on the inappropriateness of an ICJ hearing, but has not taken a position publicly on the wall itself. The Red Cross has condemned the barrier. The Palestinian Prime Minister may be under investigation by his own Parliament on charges the family cement firm has provided building materials for the barrier (it appears certain that at least some Palestinian companies have done so). It's a whole little news world of it's own, and I've heard and seen little original reporting about it from the major American news sources (or blogs for that matter).

It's a momentous event, and yet we all remain in quiet ignorance. I have not been able to form a coherent position on the issue, so it is not that I'm urging advocacy for either side. I'd just like to see greater discussion of it.

Fire Him

barnett.gifI say fire him. That's right, toss him out on his ass. No, not just for these horrible remarks about an alleged rape victim, though that should be enough. No, not just because under his watch the football program has descended into a redlight sideshow of sex and money, those that is certainly enough. No, I'd fire him for one reason: lack of accountability.

From the first second this scandal began to emerge, Barnett has disclaimed all knowledge of the sex-filled recruiting parties, and now claims he was never aware of any harassment suffered by this young woman who entered the lion's den with no support or protection from her coach. Has anyone seen Coach Barnett stand up and admit that even in the implausible scenario in which his recruits go to parties with strippers and escorts, his one female player gets harassed and taunted, and it all occurs without his knowledge, at the end of the day it was his leadership and his discipline that failed? This is not a matter of political correctness, or scapegoating. This is called accountability, or responsibility. It it his failure. Period. Fire him. The athletic director too. Maybe the president of CU. And that is in the rosy scenario giving Coach Barnett and other administrators the benefit of the doubt on their ignorance. Count me as a skeptic there too.

And I'll tell you what. If I were on the Board of Regents of CU, there'd be some long, hard discussions about whether keeping a football program at all was for the greater good of the school. In fact, were I on the board of any university, there'd be a long, hard discussion about that.

War on Terror, War on Drugs

poppy.gifWe've been seeing comparisons between the War on Terror and the War on Drugs from opponents of the administration since the first weeks after 9/11. It'll invade our civil liberties, it'll create more problems than it will solve, it's an unwinnable war against uncertain foes with no endgame, etc. Particularly amusing to many were the "Drugs & Terrorism" ads that were cancelled after providing much humor but little anti-drug effect. Yet even those most critical of the administration's drug policy admit that "There is a real link between drugs and terrorism." And from today's Christian Science Monitor comes a story detailing the convergence between U.S. anti-narcotic and anti-terrorism operations:

The stepped-up military efforts come as US officials warn that Al Qaeda, the Taliban, and Hizb-i Islami militants are financing terrorist attacks with profits reaped from Afghanistan's estimated $2 billion annual drug trade. As the world's biggest opium supplier, Afghanistan saw production spread rampantly across the country last year, doubling to 2,865 metric tons. Tackling "narcoterrorism" in Afghanistan is urgent to prevent nascent links between drug-trafficking and terrorist groups from "tightening and hardening," as they have in countries such as Colombia, says Robert Charles, Assistant Secretary of State for International Narcotics and Law Enforcement.

Once again the focus is on Afghanistan. One natural reaction, of course, is to wonder whether the thousands of soldiers and billions of soldiers spent in Iraq might have been better offer really finishing the job in Afghanistan after all. Particularly in light of the failure to find WMD in Iraq, an ex post look at the dangers posed by each country might suggest Aghanistan did and does pose the greater threat. Of course, some critics of the administration have an entirely different solution:

[I]t is the drug war itself that creates the drug-terror link, not visa-versa. Just as liquor bootleggers waged deadly turf battles during alcohol prohibition, drug gangs wage deadly turf battles under today's drug prohibition. Afghanistan�s Taliban profited from the opium trade because of drug prohibition, not in spite of it. Prohibition forces drugs into an underground, unregulated market which creates a highly lucrative source of funding and personnel in the armed and violent actions against civilians and governments around the world.

These are hard questions that lack easy answers. The Drug Policy Alliance's Alternatives to Prohibition are embarassingly vague and amount to little more than further criticisms of the current legal enforcement regime. Yet much of that criticism rings true. And with the war on terror and war on narcotics becoming more intertwined, it is unclear that the traditional methods of prohibition and police/military enforcement will be sufficient to solve an increasingly critical problem.

The Ninth Amendment

The boys at Southern Appeal have gotten themselves into a long but fascinating debate about the Ninth Amendment. I don't have anything interesting to add, but I wanted to provide some service by summarizing and linking the whole debate, since it is worth following. It is not often you get to see an internal debate within conservative circles on the Ninth Amendment. For those not familiar with it (no real reason you should be, considering the disfavor it has fallen into), here it is:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Well that's interesting. Depending on your perspective, this might be taken either as confirmation that there are unenumerated rights which ought to be protected, or as a meaningless inkblot (the position taken by Robert Bork). This debate resurfaces every so often, and back when Instapundit was worth reading everyday (pre-Iraq war) he weighed in here, providing links to his previous writings as well as some posts by other bloggers.

From what I gather, Steve Dillard at Southern Appeal staked out a moderate position in between that of "Judge Bork's, which renders the amendment meaningless, [and] Randy Barnett's, who seeks to use the amendment to support a radical form of individualism never envisioned by the framers." Owen Couregges responded with a post arguing that the 9th Amendment was not and should not be considered incorporated by the 14th Amendment. Steve answered that incorporation is not required for his theory. Owen then claimed that the amendment is best understood not as a grant of power to the federal judiciary to provide oversight of unenumerated rights, but as a futher restriction on federal power.

At this point, Tim Sandefur weighed in to suggest that Owen's argument was merely channeling Bork, and that it was "demonstrably wrong," particularly in the assumption that federal judiciary enforcement of individual rights is an expansion of federal power: "The onus is on those who would govern, not on those who would be free." Owen responded by claiming his views are not drawn from Bork, and re-asserting his view that it is merely a restriction on federal power and is not incorporated by the 14th Amendment. Most recently, Steve argued that the Bill of Rights did not merely split sovereignty into two parts (federal and state) but also carved out a domain of people's sovereignty, which we call individual liberties:

I have become increasingly skeptical of the notion that the framers or those participating in the ratification process held the view that the enumerated and unenumerated rights referenced by the federal constitution are dependent upon the States' willingness to recognize and honor them in the future.

It should be noted that Steve's advocacy of unenumerated rights is limited to those well-established at the time of ratification. It is thus a far cry from the expansive interpretation advocated by Randy Barnett.

The Battle For the Sierra Club

sierraclub.gifI've been a member of the Sierra Club for quite a long time, from the earliest days of my political awareness. Though I'm quite liberal on most environmental issues, I've often been turned off or appalled by the more extreme tactics and positions of some environmental organizations (from the stupid ads of PETA to the abhorrent eco-terrorism of Animal Liberation Front). The Sierra Club always struck me as one of the more reasonable environmental groups, and they got my money on a pretty regular basis. Now I see a battle is brewing over who will control the Sierra Club:

A growing faction in the nation's most influential environmental group has urged a stronger stance against immigration, calling the growing U.S. population and its consumption of natural resources the biggest threat to the environment.

Past and present Sierra Club leaders say the anti-immigrant faction has teamed up with animal-rights activists in an attempt to hijack the 112-year-old organization and its $100 million annual budget.

Club leaders say the anti-immigration debate has drawn in outsiders who want to promote their agenda. The Southern Poverty Law Center, a Montgomery, Ala.-based civil liberties group, has reported that extremist racist and anti-immigration groups are encouraging their members to pay $25 to join the Sierra Club and vote in the election.

This is a frighteningly real possibility because so many members (like myself) who would oppose such insanity often do not think to vote in the board elections. After all, how many times does a xenophobic faction try and take over your environmental protection organization? This means that a motivated minority that gets out the vote can assert disproportionate influence on the elections, and then possibly on the board itself. It'd be a shocking, terrible shame if the folks that have scared so many away from other environmental groups do the same to an institution with such a rich history of moderate and reasonable advocacy for our natural resources.

Closer Than Expected

edwards_wisconsin.gifWhat a delightful surprise we got in Wisconsin yesterday. After practically calling the race for Kerry before the polls opened (and claiming Edwards and Dean were going to "battle for second"), the networks almost got it wrong again. At the very least, Edwards showed we're going to have a couple of exciting weeks leading up to Super Tuesday (thank goodness this primary will make it that far!) and perhaps beyond. The Super Tuesday states are not all that friendly for him, and Kerry could potentially close out this race with a near-sweep. But if Edwards can squeak out a few wins, the week after should be like shooting fish in a barrel: a return to the South with Florida, Louisiana, Mississippi and Texas.

It'll be interesting to see what Dean does. Though I'd become very hostile to the idea of a Dean nomination, I recognized relatively early what an impressive machinery Dean had created. Whether it was just another Internet bubble fueled by an echo chamber and media speculation, it generated a lot of excitement, a lot of money, and provided a lot of lessons to be learned. Dean supporters, though fewer in number than once thought, are among the most committed to their candidate. If this can translate to committment to their party, and/or to defeating President Bush in the fall, I think they'll still be a force to be reckoned with. They, and Dean, do however have the opportunity to marginalize themselves by sitting out this election completely. If the Democratic faithful believe they can blame four more years of Bush on the lack of support from Dean and his supporters, you'd better believe they will.

50 Years of Brown v. Board of Education

For those who'll be in the area (or close enough to make an excursion), I'd like to offer an invitation to this weekend's Brown Symposium at the University of Virginia School of Law. I think it's quite a lineup:

KEYNOTE ADDRESS by Jack Greenberg, Professor of Law at Columbia University, NAACP Legal Defense and Educational Fund, 1949-1984.

BROWN AND SCHOOL INTEGRATION

* Kevin D. Brown, Professor of Law and Afro-American Studies at the University of Indiana
* Gary Orfield, Professor of Education and Social Policy at the Harvard Graduate School of Education and Director of the Harvard Project on School Desegregation, and Codirector of the Harvard Civil Rights Project
* James E. Ryan, William L. Matheson & Robert M. Morgenthau Distinguished Professor of Law at the University of Virginia
* Amy Stuart Wells, Professor of Sociology and Education at Columbia University's Teachers College

BROWN AND THE CIVIL RIGHTS MOVEMENT

* Michael J. Klarman, James Monroe Distinguished Professor of Law, Albert C. Tate Research Professor, and Professor of History at the University of Virginia
* Kara M. Turner, Assistant Dean, College of Liberal Arts at Morgan State University
* Mark Tushnet, Carmack Waterhouse Professor of Constitutional Law at Georgetown University

BROWN AND CONSTITUTIONAL THEORY

* Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment at Yale University
* John C. Harrison, David Lurton Massee, Jr., Professor of Law
Horace W. Goldsmith Research Professor
* Akhil R. Amar, Southmayd Professor of Law at Yale University

Hope to see you there if you can make it!

The Case of Captain Yee

yee.gifBack when the various Gitmo espionage cases first hit the news, I confessed to a rather shameful reaction: extrapolating the actions of a few soldiers onto all members of their faith. I was able to learn from and move past that reaction, but have been subsequently ashamed of myself for even assuming the guilt of the soldiers in question. As has become pretty clear, whatever Captain Yee did wrong, it's not what early rumors suggested:

James Yee, a Muslim chaplain in the Army, spent 76 days in a prison cell while authorities tried to build a capital espionage case against him. Now he is free, the most serious allegations replaced by lesser ones like adultery and possession of pornography, and the military justice system itself is on trial.

"Is this guy Jack the Ripper or is he not?" asked Gary Solis, a former Marine Corps judge advocate and current adjunct law professor at Georgetown University. "You have to appreciate that at the outset they thought they were onto something very serious, but they don't seem to be able to accept the evidence that in fact this was just a garden-variety screw-up."

Of course, even if that were true, it'd be nothing unusual about the military investigators and prosecutors. They are, in a real sense, simply fulfilling their duty to pursue law violators and see them punished. Is it possible they fell into a sort of tunnel-vision that left them pre-disposed toward seeing criminality even when they were left without good evidence? Yes, absolutely. It seems like a pretty likely occurrence, actually. That's a danger that faces all members of our justice system who are cast in adversarial roles, yet are also expected to serve justice and truth above all else:

"It's easy to look back on it and say, 'Why did you do this, that and the other thing?'" Costello said. "The commander takes the steps he does at the moment in time they're occurring. When you have a military chaplain who is apprehended in Jacksonville carrying documents you believe to be classified, the government would be derelict if it didn't fully investigate what's going on."

I think that is right. And as a result of that investigation, the government has apparently realized it can't make a case for the more serious charges. So the difficult question that remains is, do you still charge him with the lesser crimes, even though he likely would never have been investigated or prosecuted for those alone?

Some will see it as simple vindictiveness, or bruised egos needing to show that Yee is a criminal and their suspicions were justified. It may also be that some of the investigators and prosecutors continue to believe that Yee is guilty of higher crimes, even if they cannot prosecute him for them. As such, they feel fully justified in sending him to jail for whatever they've got him on.

There is, I think a third possibility. And that is this: though Captain Yee would never have been investigated just for the crimes he is actually being charged with, in this case he was investigated. The evidence was gathered, and illegalities have apparently been shown. With so much attention, both from the media and from superior officers, it might have been very difficult for the investigators and prosecutors to simply overlook crimes of which they had clear and convincing evidence. That sort of discretion goes on every day, I'm sure. But not under the spotlight that this case brought. As such, perhaps the discretion of the prosecutors was severely narrowed here, or at least they felt it was, and as such saw no other choice but to charge Captain Yee with the crimes they think it clear they can prove he committed.

Is that wrong? I don't think there is a clear answer. There is always something discomfiting about seeing someone punished for crimes that we overlook most of the time. Perhaps it clashes with our intuitions about notice and the rule of law. Perhaps it raises our suspicions that some ulterior motives are at work, and certainly Captain Yee's religion makes that a real possibility. And yet I take it we have these laws on the books for a reason. They are, at least in some cases, supposed to be enforced. Perhaps the best we can say is that Captain Yee was in the wrong place at the wrong time. That doesn't seem very satisfying.

Republicans Raising Taxes in VA

You see, there was a big gap in the budget. Revenues for the next year were anticipated to be $1 billion lower than planned expenditures. And in this era of Republican big government, instead of cutting programs the House and Senate Republicans have agreed to raise taxes:

Faced with the prospect of closing Virginia's $1 billion budget gap with deep cuts to popular programs, the GOP-controlled House instead voted 59 to 36 to raise $520 million by eliminating sales tax exemptions enjoyed by utility companies, the shipping industry, airlines, dry cleaners, telephone companies and other businesses. House leaders expect the bill to receive final approval Tuesday.

The plan, first put forth by Republican leaders just 80 hours before the vote, turned the Capitol's tax debate on its head. Business lobbyists, Democratic legislators and Warner administration officials gathered for their own tense, closed-door strategy sessions and wondered what to make of a GOP plan that targets the party's traditional business allies.

I say, embrace it! Democrats could never get away with this stuff, so they ought to encourage it when the budget has got the Republicans on the run. You see, it's a big victory... the Republicans were unwilling or unable to contemplate the cuts in government programs necessary to deal with this budget gap, so they raised taxes instead. Tax-and-spend Republicans.

Kerry Wins!

Or so you might think from the front page of the MSNBC website. I'm usually not particularly hostile to polling, exit-polling, and general media effects on the public; if people wanted to vote smarter or more independently, they would. No sense blaming the media just because you think the electorate are sheep. But really, does this look like a story and photo that should run at 8:30pm, after the results are in, or at 8:30am, before the polls have opened?

wisconsin_msnbc.gif

A Question of Evil

bushcheney.gifPublius at Legal Fiction has a post addressing some questions I had been contemplating myself in recent weeks: are politicians evil? In this case, Publius is taking a look at Bush and Cheney in particular:

Some people think that both Bush and Cheney are just lying evil men. I don't think that's right. I think that Bush and Cheney both think that their actions are good and will help America.

I think Publius is quite right, that Bush and Cheney are almost certainly not lying evil men. This is an argument I've had before, defending Clinton against a Chomsky acolyte who saw the entire government (and the military) through a Dr. Strangelove-like lens of paranoia and disgust. It is too easy to forget, in the end, that these are just people. They had childhoods, chicken pox, teenage romances, fears about moving away from home, etc. etc...

Does this mean they are normal? No. No matter what their background, be it the luxury of Bush's childhood or the poverty of Clinton's, by the time we see them in political office they've become politicians, a transformation that has a bad effect on almost everyone who undergoes it. They seem distant, self-interested, and corrupt. We're so hardened and cynical that everything looks like pandering and patronage. And some of it is. But I hold on to the belief that, at bottom, it has more to do with their office and the political game than with the flaws in character of any particular actor. Is this meant to excuse bad behavior? No, I think there should be accountability, and sometimes a politican can obviously cross the line (e.g. Nixon, Rostenkowski). But often times, as Publius points out, most of them "think that their actions are good and will help America."

That they are often wrong is a different matter, and Publius does an excellent job unpacking just how it can come to be that politicians can be so sheltered from the best interests of most Americans, even when they honestly think that is who they are helping. And of course, there are a lot of issues where there is room for reasonable people to disagree. If the people in power disagree with you all the time, it can be maddening. But it doesn't make them evil.

Nascar Dads

bush_nascar.gifAs far as over-generalized voting groups are concerned, I think Nascar dads are much cooler than soccer moms:

[S]tock-car races remain a refuge from political correctness, with cigarettes and buckets of fried chicken welcome in the stands. Beer is sold in towering 16-ounce cans known as "tall boys." Bush's motorcade was greeted by several men waving Confederate flags from atop the roofs of their pickups.

Okay, well not the Confederate flag part so much. Or the cigarettes. But the food sounds good. More seriously, this does have the makings of a pivotal group of voters, without whom it is hard to see the President easing into a second term:

Even in this conservative and largely adoring crowd, however, there were signs of trouble for Bush, whose job-approval ratings have dropped to the lowest of his presidency amid questions about the basis for war in Iraq.

Years ago, these voters were known as "Reagan Democrats," and the Republican Party has mostly held on to them over the past two decades.

But some Democratic strategists think that job losses during Bush's term, which have been concentrated among the blue-collar communities that historically have provided most of the fans for stock-car racing, offer an opening to prevent the president from sweeping the South in November.

Of course this is all moot if, like soccer moms, the Nascar dad group is such an over-generalized classification that it defies group voting behavior:

Analysts disagree over how definable a bloc is NASCAR, which claims 75 million fans and the second-largest sports audience after the National Football League. NASCAR distributes statistics showing that 40 percent of its fans are women, that 39 percent make at least $50,000 a year and that 19 percent are from the West and 20 percent from the Northeast.

Sure, sure, but that's not who we're talking about, right? We only want the poor, Southern redneck Nascar dads. Just ask Howard Dean. Anyhow, I hope this is not the last we'll hear of the Nascar dad.

Reyes' First Goals

reyes.gifGreat news from England, as Arsenal topped Chelsea 2-1 to move on in the FA Cup, and even better, Jose Reyes scored his first goals for Arsenal:

The 20-year-old's brace showcased the talents that persuaded Wenger to pay �17 million for him - a 25-yard howitzer followed by a predatory second - and turned the tie around...

I wish I could have seen it. Reyes has all the makings of a truly great player, and it's good to see him move so quickly past the often difficult barrier of the "first goal" for a new team. More details from Visible Hand.

Supreme Court Vote Aggregation

robertjackson.gifWe had a very interesting discussion in my Federal Courts class on Friday regarding the aggregation of Supreme Court votes. The question arises primarily when there is not a majority of votes for any single opinion, but instead multiple alternate (and sometimes mutually exclusive) theories which add up to a majority. The case we were discussing, and which I'll use as illustration, is National Mutual Insurance Co. v. Tidewater Transfer Co. (1949), in which the Supreme Court held that Congress could authorize federal jurisdiction over a non-federal question suit between a citizen of the District of Columbia and a citizen of a state. Article III, of course, provides for federal jurisdiction over suits "between Citizens of different States," but makes no mention of the District of Columbia. The Court of Appeals affirmed the District Court holding that the diversity statute (which purported to include D.C. citizens as citizens of a state) was unconstitutional as exceeding the jurisdictional limits of Article III.

Justice Jackson wrote an opinion for a three-person plurality crafting a clever (but I think fatally flawed) theory that Congress' Article I plenary power over the District of Columbia would allow them to create courts all over America to hear D.C.-related cases, and they might as well be able to just skip that step and simply add that power to existing Article III courts.

Another two-person plurality argued, quite implausibly, that the District of Columbia counts as a state for purposes of Article III (even thought it does not for Articles I or II), but they also went out of their way to argue that Justice Jackson's theory was pure bunk.

The other four justices would have affirmed the decision of the Court of Appeals. So there was a 7-2 majority against the idea that D.C. is a state for purposes of Article III. There was a 6-3 majority against Justice Jackson's sweeping reading of the confluence of Articles I and III. Yet because there were a total of five justices for the basic position that the Court of Appeals was reversed, we've now had D.C. included in diversity statutes for over 50 years.

Is this the proper outcome? To aggregate mutually exclusive readings of the Constitution simply because they agree on the bottom line? It sure seems strange, doesn't it?

Yet I think it is proper, if for no other reason than this: the Supreme Court does not have to publish justificatory opinions. Yes, it almost always does. And this is for good reason, and can be largely traced back to the genius of John Marshall and his ability to make questionable decisions seem purely logical. It is part of the stature of the Court, and has come to be seen as one of the primary means of communicating future guidance to the lower courts. But the focus on this role is so strong that we sometimes forget the Supreme Court is, at bottom, a court like any other: charged with the ex post role of deciding the case or controversy in front of it. As such, the bottom line is the most important thing, and should remain the primary method of aggregation, strange results notwithstanding.

Good Re-enlistment Numbers

airforce.gifQuite a few bloggers, including myself, have subscribed to the theory that one of the biggest dangers of a prolonged engagement in Iraq is the possibility that it will discourage enlistment and re-enlistment in the armed forces. It just makes sense, that as the cost of being in the military (especially the reserves) rises, for some number the benefits will not be enough to keep the military option attractive. Well I think we can take this as a legitimate sign that re-enlistment is much healthier than some of us feared. Let's hope it stays that way:

Beginning March 5, active-duty airmen will have only a three-month window during which they'll be eligible to re-enlist, instead of the current 12 months, Air Force officials announced this week.

Historically, the Air Force has expanded and contracted its re-enlistment window to match the force's retention situation, Cornelia said.

The new window may change back to 12 months "if retention is very, very poor," Cornelia said. "But right now, retention is healthy."

She's not kidding. Check out these numbers:

In fact, the Air Force is in the middle of something of a retention bonanza, with 67 percent of its first-term enlisted force re-enlisting in the first quarter of fiscal 2004, according to spokeswoman Jennifer Stephens.

That's even higher than the fiscal 2003 first-termer retention rates, which were 61 percent, Stephens said Thursday. The service's retention goal was 55 percent.

In fiscal 1999, just 49 percent of first-term airmen re-enlisted, followed by 53 percent in fiscal 2000 and 56 percent in fiscal 2001, Stephens said. (All three years had the same 55 percent goal.)

Sure, some chunk of that can be credited to a bad economy that provides fewer alternatives for young soldiers, sailors, and in this case, airmen. But we wouldn't be seeing anything near these numbers, no matter how bad the economy was, if my worst fears were realized. So this is a very good sign. It indicates either that the Iraq engagement is actually having a positive effect (excitement about deployment, chance to make a difference) or that any costs are being offset by some combination of factors (increased patriotism, a desire to be involved in the War on Terrorism generally, the economy, etc.)

Day of Mindfulness

Each Saturday I make an effort to devote the day to mindfulness. As part of that effort, I will largely refrain from blogging on Saturdays. I will, however, provide a weekly update to the section of this website on Zen.

This week's offering is one of the fundamental teachings in all schools of Buddhism, The Noble Eightfold Path.

Entrepeneurial Nutjob

Here I am, peacefully reading a very beautiful tribute to Johnny Cash in this month's Atlantic Monthly, when my eye is drawn to the edge of the page where a tiny ad has this simple message:

World events due...........
Visit now, "thirdtestament.org"
by Thomas.

Well I've got my computer open anyway, so I go ahead and visit. I could use the answers to all my questions, or at least a good laugh. Unfortunately, I got neither. Just an amateurish Lost in Space looking website with absolutely zero content. Just a little paypal button that lets me contribute $10 for God Knows What. If I had an extra $10, morbid curiosity might see me pressing the little button. Anyone want to chip in a buck? We can split the goods ten ways!

UPDATE: I can only guess that this is distinct from the Third Testament offered here, which somewhat suspiciously offers free download of the "Third Testament" only as an .exe file. I'll pass.

Repeated Ramblings on Gay Marriage

gaymarriage.gifWith gay marriage back in the news in both Massachussetts and Washington, I thought I'd reprint my previous ramblings on the issue for those who want to try and make sense of my decidedly murky views:

Though on many policy issues I'd be considered a liberal (a few exceptions being gun control, the death penalty, affirmative action), I am also strongly in favor of judicial restraint and, instinctively, states' rights (though I've not given the latter enough serious thought to articulate a particularly intelligent position).

As such, I support judicial restraint even when it upholds a policy I might disagree with (Grutter for instance, though it's awfully hard to call anything O'Connor does 'restrained'), and am uncomfortable with activism even when it enforces a policy I might support (Lawrence for instance). In this sense, I was and am uncomfortable with Goodridge.

On the one hand, I have always thought the strange intersection between religious marriage and civil marriage to be a troubling curiosity. There are good reasons for governments to license pair-bonds for various governmental purposes. There are good reasons for churches to sanction pair-bonds under the various religious doctrines. Yet what these institutions had to do with each other, I've never fully understood.

As a state legislator, I would vote to give gay couples the same privilege of civil marriage/union/whatever, and wouldn't call it anything different from what heterosexuals have. If we choose to change all marriage licenses to "civil union" licenses, that's fine. But gay couples would get the same thing as heterosexual couples under my preferred system.

As a member of a church governing body (however these manifest themselves), I can say that I would vote the same way. But this is a silly counter-factual. So many things about my belief system would have to change for me to be a member of a church governing body (I'm an always struggling Buddhist) that it's silly for me to presume to know how I'd feel about gay marriage in that situation. From looking at most church leaders' reactions, it seems pretty likely that I'd be opposed to gay marriages in my church, if not in society generally. And I respect the right of those churches to place such a limit on which ceremonies they'll sanction. As such, it is important to me that any changes made in the civil code (either by my preferred legislative route, or through less attractive judicial means) respect that right. I'd be very upset to see Goodridge type rulings somehow used against churches. That's a slippery slope fear, and I usually try to avoid them. But it's something I've been thinking and wanted to say. It is very important to me that the First Amendment continue to protect churches' right not to sanction gay marriages, or interracial marriages, or any other kind of marriage, no matter how much I might disagree with such a policy. (I should stop to make clear something that ought to go without saying, which is that by church I mean to cast a wide net over religious groups, not just Christian groups).

With all of that said, I'm left in a very strange position. Where should I go from here? I'd like to see the state legislatures doing the work on this issue. Of course, I'd like to have seen the same thing with school desegregation, and maybe that attitude would mean blacks were still excluded from my law school. Nonetheless, I tend to agree with the view that, unlike the issue in Lawrence, the prohibition on gay marriage "is simply not oppressive in the same sense as is criminalizing gay sexual intimacy." So I'm a bit more willing to wait for the younger generations and their norms to take control of the state legislatures and change the laws.

I am not, however, sufficiently upset at the possibility of judicially-imposed gay marriage that I would favor amending our Constitution to prevent it. I have several reasons for this:

1. The Full Faith and Credit Clause would seem to work the same way whether a state legislature passed the law or the judiciary did so. So if, instead of Goodridge, we instead had the Massachussetts legislature change their laws to allow gay marriage, the FFC would seem to require other states to recognize that (this assumes, as has been argued, that the Defense of Marriage Act will be ruled unconstitutional, thus the need for a constitutional amendment). As such, though it is upsetting to me that a court has created the right in this case, the broader federalism "problem" is not really caused by the court's involvement, but by the Full Faith and Credit Clause in the Constitution itself.

2. As hesitant as I am to have activist judges, I'm even more hesitant to amend our fundamental legal document. The idea of inserting an amendment on marriage (of all things!) seems like a tremendous overreaction and would degrade the document itself. On some issues (let's take abortion for example), I can see why those upset by judicial activism might be SO upset as to want to amend the Constitution. In their view, there are millions of lives at stake. In the case of gay marriage, I just don't see the worst case scenario (judicially mandated gay marriage in every state) being so horrible even to those who oppose it on policy grounds (e.g. not the procedural judicial restraint grounds I've endorsed above) that it would justify changing the Constitution. Amend it to abolish slavery, yes. Amend it to abolish abortion if you think abortion is murder, fine. But to prevent gays from being able to get marriage licenses, file joint tax returns, buy homes in tenancy by the entirety? That's worth changing the Constitution over?

3. It restricts future legislation on the issue. This gets tricky. As I've said, my first choice would be for courts to restrain themselves, and for every legislature in America to pass gay marriage laws. But let's assume that's impossible. Before that could happen, we'll have one of two scenarios. Either: a) the courts find a constitutional right to gay marriage, and this prevents legislatures from banning gay marriage; or b) a constitutional amendment is passed banning gay marriage, and this prevents legislatures from legalizing gay marriage.

Now I know there are lots of interpretations of the various proposals for the language of an amendment, and many are intended/claimed to respect the legislatures' right to legalize gay "civil unions" (but not marriages), while preventing judicial activism. Nonetheless, I've also seen interpretations (here is Jack Balkin's) that suggest the amendment would really go so far as to prevent government officials (judges, administrators, executive officals, legislatures, etc.) from really giving "civil union" partners the "legal incidents" of marriage that are embodied in family law, property law, etc.

So to a large extent, I see the judicial activism vs. Amendment process as a wash in terms of upholding legislative supremacy and states' rights. One route prevents legislatures from banning gay marriage, one route prevents them from legalizing it. I can't favor either.

If you've gotten this far, I apologize for not being able to sum this all up to some neat philosophy or normative prescription. I'm as lost as these remarks probably make me seem.

Mass. Legislature Rejects Compromise

I'd love to know just what the machinations behind these votes are (e.g. are opponents of any ban voting against the compromise only because they think they can defeat the total ban, or would they do it either way?):

Massachusetts lawmakers narrowly rejected a compromise proposal Wednesday that sought to legalize civil unions but ban gay marriage, leaving the outcome of the historic debate in flux.

The defeat of the amendment left open the possibility of either an outright ban on gay marriage or letting the state's constitution remain intact.

The bipartisan proposal was crafted by Senate leaders who wished to overturn a high court decision legalizing gay marriage while still extending equal benefits to gay couples. It was rejected by a 104-94 margin at the joint House and Senate session.

Having just spent several weeks studying the debates in Congress over the 13th, 14th, and 15th Amendments, I have to admit to being genuinely intrigued about the motivations and purposes of the individual legislators, the parties, and the party leaders. I'd rather they passed a state constitutional amendment forever securing equal marriage rights for gays, but that doesn't appear to be on the table.

Even More Strange

Eugene Volokh thinks that this argument from Dahlia Lithwick's article on Bush and the FMA is strange:

The political reality is even more compelling: A Defense of Marriage Amendment would enshrine, for the first time, language of intolerance and exclusion in a document that was intended to set forth basic rights. Does President Bush really want to be remembered as the guy who first used the Constitution to codify bigotry?

Professor Volokh thinks it is strange because President Bush obviously doesn't think of it as bigotry. I think it is strange for another reason. Lithwick seems to have forgotten a couple of passages that went like this:

Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other Persons.
The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.

Little thing called slavery. Some would call that "language of intolerance and exclusion in a document that was intended to set forth basic rights." I'm not disagreeing with the spirit of Lithwick's argument (at least not in this post), just the hyperbole.

UPDATE: Speaking of hyperbole, look at her first sentence:

[T]he fight over gay marriage will polarize this nation in ways that will make the abortion rights battle fade to a happy memory...

Uh huh. Don't mean to pile on Lithwick, she gets a lot of flak. But that is really dumb.

Democratic Primary Prisoner's Dilemma

primary.gifAlright, I'm pretty sure it's not actually a bonafide prisoner's dilemma situation. But looking closely at the current primary situation, I think everyone can agree that if Dean, Edwards, and Clark all stay in the race, Kerry will coast to easy victory. Even if there was a coalescence around one of the three, I still think Kerry would easily win at this point, but lets leave that aside. Instead, let's assume that if two of the three dropped out, the remaining candidate could mount a viable challenge.

So all the Dean supporters are saying "the other two need to drop out and support our guy," and the Edwards and Clark supporters are saying the same. It's a stand-off.

Clark raised enough money and positioned himself as a national candidate, but all he's really done is draw 10-15% all over the map. Edwards positioned himself as a southern candidate, and he's done just well enough here to stay in, but not well enough to challenge Kerry. Plus we move out of the South after today. Dean is... well, Dean. High expectations, stubborness, optimism, denial, take your pick. Each one has enough support that he can make a pitch for being the "non-Kerry" candidate, thinks if he holds out long enough he can outlast the other two, and thus none of them see why he should be one of the two to drop out.

So none of them will drop out, or at least not soon enough (today might have been the day, if Clark and Dean could have swung their VA and TN votes to Edwards). They'll continue to split the non-Kerry vote, and Kerry will win. Classic.

UPDATE: Looks like Clark is out. Yeah, that 9% in Virginia must have hurt.

The Solomon Amendment

rumsfeld.gifThe UVa Law Veterans group has been debating whether or not to get involved, potentially by joining an amicus brief, in the lawsuit challenging the Solomon Amendment. For those who aren't aware, the Solomon Amendment is a federal statute that witholds federal funds from any university if they exclude military recruiters from campus. The flashpoint of contention is the "Don't Ask, Don't Tell" policy, which many universities see as conflicting with their policies prohibiting employers who engage in discriminatory hiring practices. From what I understand, all of the top law schools have acquiesced in allowing JAG recruiters to interview at their law schools, but several have responded by filing suit challenging the Solomon Amendment as interfering with First Amendment rights of association and speech.

I'm not particularly interested nor qualified to express any opinion on the legal merits of either side of the case (though I find David Bernstein's charge of duplicity very persuasive). I would, however, like to register my continued discontent with the hypocritical policy of these schools that desire to take the federal government's money but refuse to allow its military recruiters on campus. If a university wants to take a principled stand and refuse these recruiters, let them bear the consequences of the action. But to want it both ways, to be able to exclude the recruiters, put up roadblocks preventing students from seeking military service, all while taking money from the same Congress responsible for "Don't Ask, Don't Tell"? That I cannot accept.

I am not an advocate for exclusion of gays. Were I a congressman, I would vote for full inclusion. If I were a general on the Joint Chiefs of Staff, I would urge the same. But I cannot support the policies of universities that place the entire cost of the policy on the students who are interested in serving their country by becoming officers in the military.

Jim Crow and the Power of Law

Very interesting lecture from Michael Klarman today on the role that law played in the Jim Crow era. His thesis is essentially that even if the Supreme Court had been striking down the various segregation and discrimination laws, the power of social norms and customs, economic power, and physical power would have accomplished the same ends. As such, the law wasn't playing all that strong a role in creating the horrible racial disparities that we look back on with such regret.

Of particular note to the blogosphere, Klarman cited Volokh Conspirator David Bernstein as a leading libertarian advocate for the (paraphrased) position that law played a pivotal role, and that these positive discrimination laws AND the underlying legal complicity in the physical violence (i.e. refusal to prosecute whites for racial violence) can be blamed for the uniform discrimination and disparities. From what I gathered, the argument would be that without these laws (and with proper protection of blacks' rights of life, liberty, property, and contract) the marketplace would have worked out most of the problems itself. It would gradually become less and less economically feasible to exclude blacks (think of railroads that wouldn't have to have separate cars, or colleges that wouldn't have to have separate dorms) and the market would ensure much greater equality.

From what I gather, much of the impetus for this debate (other than pure historical interest) is based on the justifications for the positive civil rights laws of the 1960s and since. If it was merely the laws of the Jim Crow era that prevented the market from curing itself, then there should only be positive government action to the extent that it eliminates such market interference. If you buy Klarman's argument, however, that it was non-legal forces that drove Jim Crow, then you might think it insufficient just to leave the market to take care of itself, and thus favor civil rights legislation and government enforcement.

I'm not well read in this area, but I will admit to being unpersuaded by either side completely. I do think it a little hard to imagine the market necessarily taking care of itself, but I also think Klarman does not give enough weight to (though he did not acknowledge) the power of the state's complicity in the violence, fraud, and other measures that Klarman attributes so much power to. If the government had offered protection from those things, as I think any libertarian would agree it should, then it becomes much easier to see how much power "law" had in the Jim Crow era.

It sounds like, after I finish reading Klarman's book (which makes up a big chunk of our assigned reading for this class), I ought to take a look at a few of Bernstein's articles. I'm very glad to get some non-blogosphere exposure to his work.

UPDATE: Professor Bernstein has responded with some clarifications and links for further reading. Thanks Professor!

You Know You Want To

That's right, it has arrived. Mozilla Firefox. Download it. Use it. Love it.

The Future of Lawrence

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Interesting analysis from Legal Times on the future of Lawrence:

Recent lower court decisions in cases from Kansas and Florida that limit or criticize Lawrence are beginning to suggest a more complicated path ahead for gay rights advocates, with detours and reversals likely -- along with victories like the one in Massachusetts. Other cases on the horizon, involving issues like gays in the military, a ban on the sale of sexual aids in Alabama, and even anti-polygamy laws in Utah, will also give lower court judges a chance to put their spin on Lawrence.

Eventually, one or more of those cases will make it back to the Supreme Court, and some predict that the justices will feel compelled to speak again on gay rights. Depending on the Court's composition when that new test arrives, it could reinforce -- or weaken -- Lawrence.

Indeed, while I think it is still true that Lawrence was a clear cut victory for gay rights, it has become increasingly unclear just what the scope of that decision will end up being. Some, and I'm thinking particularly of Randy Barnett, saw in Lawrence signs of a new liberty-based approach that would seem to suggest a broad reach into the areas mentioned in the new cases above. Yet it is not hard to find language in Lawrence suggesting a narrower scope:

The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.

Now this of course is no guarantee that the same forces behind the Lawrence majority would not rule the same way in these other cases, but it is clear that they left it unanswered for now. It also seems that many of these judges were, like myself, less than impressed the more they read Kennedy's Lawrence opinion:

"What judges seem to be saying is that Justice Kennedy may be too rhetorically poetic for his own good," says Emory University legal historian David Garrow, who has studied the Court's privacy jurisprudence. "It may sound winsome as moral commentary, but as black-letter constitutional law, they are not impressed."

Garrow then goes on to analogize this post-Lawrence phase to the post-Brown era in which lower courts narrowly construed or even openly defied the Supreme Court. Yet I'm not so sure that it's an analogy that stands up upon closer scrutiny. First of all, the resistance to Lawrence is not nearly so clear. If Texas had continued to criminally prosecute gays for the crime of sodomy, and lower courts had upheld this (the way that courts upheld continued segregation), then I could easily foresee a Cooper v. Aaron-like smack from above.

Yet that is not really what we're seeing. Instead we're seeing debate in the gray areas that Lawrence explicitly left unanswered, so I doubt we'll see the same sort of indignation that a unanimous Supreme Court mustered when it lower courts and state/local officials openly challenged its authority after Brown.

court.gifIt's also not entirely clear how far a pair like O'Connor and Kennedy will go along this route. O'Connor wasn't even willing to buy into the majority opinion in Lawrence, and it is of course very difficult to predict what she'll do in the future. If she sticks with an equal protection approach, will she reach the same results as a privacy/liberty due process approach? Will Kennedy stick to his guns and extend Lawrence? I just don't think we can answer these questions, and that makes it hard for me to imagine the Court becoming indignant enough to slap down the lower courts. (And of course, this assumes the court make-up stays the same. A Bush re-election and an O'Connor, Stevens, or Ginsburg retirement could change the calculus completely).

I have neither the capacity nor inclination for predicting where this jurisprudence will go, but I think it unlikely we will see a Cooper v. Aaron-like clarification that would answer all the questions at once (and of course, even that decision left issues of de facto segregation, disparate impact, and affirmative action open for decades to come).

I just can not believe that Justice Kennedy or the other Lawrence-majority judges are committed to a liberty-based approach that would allow incest or polygamy, yet it remains unclear what sort of constitutional doctrine will be able to delineate between these things. As a result, I think the Supreme Court will simply not review the more difficult cases for a while; are there really 4 votes on the court to hear such cases? I suspect they will let the doctrine simmer in the lower courts for some time before they get involved in gay marriage, gay adoption, or any of the incest/polygamy line of cases. We'll just have to wait and see.

Paper and Glue

I spent a few hours this weekend updating the books section of this website. In addition to my "Great Literature Project," you'll also find a growing archive of award winners and "best of" lists, as well as my own mini-reviews of books as I finish them.

Kerry Goes Three-For-Three

kerry.gif Kerry sure is looking invincible, isn't he? I was only 12 in 1992, so this is essentially my first experience with a contested Democratic primary (sorry Bill Bradley fans), and even to me it seems pretty unusual. The candidates have not gone negative nation-wide, though it sounds like Dean/Gephardt got nasty in Iowa. The press has been hands-off now that the Dean campaign has imploded. And there is actually a broad sense of unity, which is practically anti-thetical to the Democratic Party.

The party seems to be coalescing around John Kerry so early and so quickly, which is about the last thing I would have predicted. In fact, several interviewers asked me how I thought Kerry would do, seeing as I had my internship with his office on my resume. My answer: he doesn't stand a chance. I just couldn't foresee a way that he'd rise above the pack.

There are some ways in which he'll make a very good candidate. He knows how to run a campaign, having found himself in a heated battle with Bill Weld in 1996. He's shown he has the capacity to fight, and I think he has shown the ability to sidestep a lot of the problems Al Gore ran into, particularly in the debates. If John Kerry can make Bill Weld look bad, I have a suspicion he might make President Bush look really bad. No guarantee, but at least a possibility.

Bizarre Classified Ad

While looking for a summer sublet for my stay in DC, I came across this very strange classified ad and thought it was worth a few laughs:

PLEASE: NO " PROFESSIONAL " PEOPLE. We are looking for simple people. Everywhere we look at the advertisement for people looking for rooms, all we see are people that advertise themselves as either " law students " or " professional " We do not see people advertise themselve as " poor students/interns " or " broken and lost human seeking room " Can you tell us: Why everyone advertises his or herself as a law student in order to get attention? Do you think a landlord would not rent you a room if you do not tell them that you are a "law student" or "professional"?

Anyway, we have rooms available immediately, but we want simple, low maintenance, easy living people. People that want comfortable and safe place to stay, not anything luxury. Some of you have gone to those developing countries as volunteers, Peace Corps, missionery, sleeping in mosquitoes nets in the mudhouses and bamboo shacks helping those people in those thirdword countries. You had experiences with difficult life. You are the kind of people that we want, so come to live with us. We do not want any spoiled and rich people who want only luxurious things, (we do not have that for you anyway) We want a kind of struggling, easy-living people who would not mind crashing on a very comfortable sofa and live very comfortably for FREE, you do not need to pay anything to live here. Free fast internet for you all day all night. Free telephone calls, and extremely cheap telephone calls to your countries in Europe & Russia.

Is this the return of communal living? Is Yekaterina Novosibriskareva really an ex-KGB agent trying to position herself to corrupt America's youth? Should this anti-materialist invective be welcomed on Craigslist, that bastion of free market ideals? We report, you decide.

Day of Mindfulness

Each Saturday I make an effort to devote the day to mindfulness. As part of that effort, I will largely refrain from blogging on Saturdays. I will, however, provide a weekly update to the section of this website on Zen.

This week's offering is Thich Nhat Hanh's translation of the Five Precepts. The Five Precepts of Buddha are best understood not as a rigid set of rules (like some interpret the biblical Ten Commandments or Maimonides' Mishneh Torah), but as guidelines for living ethically, enabling us to seek wisdom and enlightenment in our own practice.

Constants

If much of the specifics of contemporary life are transitory, it seems the big picture remains relatively constant. Here is Chekhov's Toozenbach, again from Three Sisters:

After we're dead, people will fly about in balloons, the cut of their coats will be different, the sixth sense will be discovered, and possibly even developed and used, for all I know.... But I believe life itself will remain the same; it will still be difficult and full of mystery and happiness. And in a thousand years' time people will still be sighing and complaining: 'How hard this business of living is!' - and yet they'll still be scared of death and unwilling to die, just as they are now.

Interesting that this seems just as true as the quote about how much our values and understanding of the world change, often in so short a time. Can it really be just 50 years since Brown v. Board of Education? Just 50 years since the polio vaccine? How much things have changed!

Yet it's been thousands of years since the Old Testament was written and Buddha sat under the Bodhi Tree, and all that they struggled with remains to be struggled with today. How much things stay the same!

TP Is Back!

One of my favorite blogs from the early days of my blogging (almost a year!) has been resurrected. Trivial Pursuits, now hosted at the much preferred Typepad (death to Blogger!) has been redesigned in various attractive shades of blue. Daniel is a terrific blogger, so let's hope he's back for good.

Transitory Values

Having briefly pondered Chekhov's views on the transitory nature of societal values and wisdom, I thought I'd throw open the question for discussion. One hundred years ago, it was widely believed that blacks were an inferior race, that racial purity must be maintained, that all women should stay at home, and so on. They likely did not have much hope of flight, either in the air or in space. They didn't have antibiotics. We look back on these things, and most of us shake our heads, either in disgust at their values or mild amusement at their limited understanding of science. I look back on 1904 and most envy the lack of urban sprawl, and am most disgusted at their racial policies.

Yet how will we be viewed in one hundred years? Here's the game I'd like to play, if you'd all be so obliged: name the one thing about America as it is now that the America (if it exists as such) of 2104 will look back on with the most admiration/envy/nostalgia, and the one thing the America of 2104 will look back on with the most disgust/pity.

I think people will be nostalgic for the days before total information awareness eliminated privacy, and disgusted at our massive consumption of nonrenewable resources and creation of garbage and waste.

UPDATE: Micah at Crooked Timber has posted his thoughts, and his commenters have interesting things to say as well.

Transitory Values

Yet another great line from Chekhov, this spoken by Vershinin in Three Sisters:

It's strange to think that we're utterly unable to tell what will be regarded as great and important in the future and what will be thought of as just paltry and ridiculous. Didn't the great discoveries of Copernicus - or of Columbus, if you like - appear useless and unimportant to begin with? - whereas some rubbish, written up by an eccentric fool, was regarded as a revelation of great truth? It amy well be that in time to come the life we live today will seem strange and uncomfortable and stupid and not too clean, either, and perhaps even wicked...

How true! I often wonder just what aspects of contemporary America (and the world as a whole, I suppose, though that's harder to generalize about) will seem most admirable and most offensive to those of the next several generations. Tying the last post with this one, I'd like to hope that they will look back with horror at our massive consumption of nonrenewable resources and our creation of garbage and waste, yet perhaps also see in the alternative energy movement and even recycling the beginnings of a self-awareness and reconciliation with our place in nature. Beyond that, who knows? Will our resistance to gay marriage seems as offensive as our ancestors resistance to interracial marriage? Will our government seem too big or too small? Will the idea of nations seem quaint, or will they marvel that one government could control a landmass as large as ours? Will our economy seem too regulated or too laissez-faire?

I guess we'll have to wait and see.

Chekhov's Environmentalism

As a self-styled environmentalist (though I've never become quite sure what that means in terms of policy preferences), I was quite taken by the character of Dr. Astrov in Chekhov's Uncle Vania. Though a rather unhappy character (aren't they all in Chekhov's plays), he has managed to maintain a committment to nature and forestry that seems astounding for a play written at the end of the 19th-century:

The Russian forests are literally groaning under the axe, millions of trees are destroyed, the homes of animals and birds are being laid waste, the rivers are getting shallow and drying up, wonderful scenery is disappearing for ever... Anyone who can burn up all that beauty in a stove, who can destroy something that we cannot create, must be a barbarian incapable of reason. Man is endowed with reason and creative power so that he can increase what has been given him, but up to the present he's been destroying and not creating.

Of course it might not be accurate to impute these conservationist tendencies to Chekhov in toto. Yet these remarks by Astrov stand out as being far ahead of their time. I've often wondered if one of the reasons conservation has not gained even more traction than it has is that the human lifespan is simply not long enough for people to really witness the incredible changes we make to our land. Of course in the past, people simply died much younger. But even today, I imagine that one doesn't experience a formative shock at the effects on our environment until at least middle age, when there has been several decades of awareness of our surroundings. By then, who has the energy or the motivation to try and change anything? Activism is for the young, but the young think all that glitters is gold.

Hopefully there is something interesting in this rambling, but I can't claim I have much of a point. I just wanted to share what I thought an interesting passage in what I'm currently reading, a practice I ought to make more common. At least it gets me grappling with the implications of the book.

Inputs

Once every couple months I become very obsessed with reading good literature. There's never a time when I'm not interested, but usually it's just a part of my day to get through a few chapters of some good book. But every so often I get a semi-fevered desire to read all the books on my shelf (and there are a lot that need to be read) and it changes my perspective on things. It becomes much harder to blog, for one, because what can I say that hasn't been said? Is it possible to read Anton Chekhov and Bill Safire on the same day and not think the latter is hilariously mundane and trite?

As it stands, the big blog stories are retread (Bush military records or Valerie Plame), and I've reached my limit on Democratic primary coverage. Who knows if there'll even be a race by next Tuesday's Virginia primary, but if there is, and John Edwards is still in it, I'll vote for him. As I've noted before, I interned for a while in Kerry's Boston office, liked it, and wouldn't have a problem with him as a candidate. But I like to spice things up and a strong Edwards run might be nice (sure to fail if Clark/Dean stay in the race).

As for me, grades have been coming in these past two weeks and I'm very satisfied. I could have done a lot worse considering how behind I got in my reading. Now I've got a cite check this weekend editing the student note of a friend of mine, which ought to be interesting, and as always I'll be on the lookout for things to share on the blog. I try especially hard not to force myself to blog, since it would be only too easy to get frustrated and shut it down, and that would be a loss to me.

Buying Books

Just about the only thing I like better than reading books is buying them. I'll often go to a bookstore just to be among books, and can browse for hours if I don't keep track of time. Having just received a paycheck for some research I did over Christmas, I thought I'd go online and shop for bargains. Boy, did I find them. The best place I found for literary fiction is Book Closeouts, which seems to carry every title in the Penguins Classics brand, now that they've switched their covers and left a lot of remainders to be sold. For more academic writing, check out Labyrinth Books' Sales Annex. They also have an excellent selection of Eastern religious books, including The Compass of Zen, which is among my favorite books on Buddhism. Finally, for more contemporary fiction, history, and biography, check out the bargains section at Books-a-Million. They have free shipping for orders over $25, and if you're a member of the military like me, logging in through CentricMall gets you an additional 10% off.

I'm not affiliated with any of these stores and won't get anything if you shop there, but I've just spent a pretty good chunk of change and wanted to share these sites with all of you. If anyone has another site I should check out for bargain/remainder books, please do send me an e-mail.

Muffins, Brownies, Pie

Thought I'd share a couple items I baked this week, both of which met with much approval from friends (and most importantly, girlfriend):

Banana Crumb Muffins:

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Best Brownies (I added crushed up Werther's candies to the frosting to give a little extra flavor; excellent, but not necessary, as the brownies are tremendous on their own):

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I also made this Caramel Pecan Pie, but forgot to take a picture before we ate it. Absolutely incredible; make this pie!

Reyes' Debut

A fellow Arsenal fan sent along this summary of yesterday's victory over Manchester City:

Henry nearly put us ahead after 6 minutes, but slipped as he went to toe-poke Lauren's cross, ending up splayed on the ground in the splits while the ball bounced off the post, missing a wide open net. It looked for a second like Reyes would come on then, as Henry's slip looked to have tweaked his groin, but he was able to run it off. We created a couple more decent chances, while Anelka posed a constant threat on the counter--once nearly making it in but for an outstanding recovery and tackle from Kolo Toure. He has been an absolute revelation this year; apparently he's quite the crowd favorite and it's easy to see why. He is all hustle, loads of pace (apparently, after Henry and reserve left-back Gael Clichy, he's the 3rd fastest in the squad), reads the game well and is a good tackler. Most imporantly, his enthusiasm and passion are plainly evident when he's out there.

We got out first goal on a quick break, Henry curling in a low cross searching for Ljungberg, but Tarnat slid in first. Fortunately, his redirection sent the ball into the net.

Reyes came on around the 70th minute, and showed a couple of quick, classy touches, turning his mark with ease. He linked up well with Pires and Henry, who fed him in alone 1v1 with the City keeper, but David James pulled out a fantastic save to deny him a goal. Moments later, Reyes played Pires in, and that move nearly ended in a goal, but again DJames did very well to deny Henry. It was just moments later that Henry hit his 20-yard rocket into the top right corner--it was an absolute beauty. Somewhat like the goal Pires scored v Liverpool at Anfield earlier this season, but hit with a lot more power.

In all, Reyes looked quick and sharp, was full of hustle and already seemed to have a good understanding with Thierry and Bob.

Excellent news all around, with the Gunners atop the table by two points, and a rising star already contributing on his debut.