View 681 June 27 Reynolds

View Week 681 June 27, 2011 – 2

The Lochner Ness Monster

I haven’t thought about Lochner v. NY since I taught Constitutional Law at Pepperdine a very great many years ago. Of course most people have never thought about it at all, so that’s hardly astonishing, and most of those who have thought about it ,ay have done so in the wrong way and drawn the wrong conclusions. David Bernstein has a new book entitled Rehabilitating Lochner, and that wouldn’t get me thinking about it either, if Glenn Reynolds hadn’t written a review in Commentary (link). Reynolds writes not as Instapundit, but as Glenn Harlan Reynolds, Beauchamp Brogan Distinguished Professor of Law at the University of Tennessee. If all his lectures are as interesting as this review, he must be popular with the intellectually gifted among the UT law students. Grinds boning for simple answers may have a different view.

In the conventional law school wisdom, Lochner is paired with Plessy v. Ferguson (decided a decade before Lochner) as one of the cases limiting civil rights, and it is generally taught that way, but that’s not the real story – or at least it is not the story as I learned it from Professor Ken Cole at the University of Washington, and it’s not how I taught it in my Pepperdine courses for pre-law majors, possibly to their detriment when they got to law school.

Reynolds says

In my experience, law students exposed to Lochner for the first time, without being told that they’re supposed to hate it, tend to find it pretty reasonable: state passes law that impinges on individual freedom, court finds alleged purpose unpersuasive, strikes law to uphold freedom. That was pretty much the story of federal courts and the Constitution in the 20th century, and if Lochner had been at all unusual, that was only because it came so early on in the process. In methodology and approach, Lochner fits comfortably with all sorts of more celebrated cases, from Dean Milk v. Madison in 1951 (involving protectionism) to Griswold v. Connecticut in 1965 (the privacy ruling later used against Robert Bork in his ugly confirmation hearing).

Elsewhere, as Bernstein recounts, advocates for African-Americans’ and women’s rights often made use of freedom of contract as a way to strike down laws limiting those groups’ economic freedom. Freedom of contract was a powerful weapon for dissolving the legal rules that, unsurprisingly, tended to work against those excluded from legislative power. Economic freedom, far from being a tool of the big bosses, was an important way for the underdogs to gain the freedom to compete, and to undermine the legal support that was essential to making Jim Crow and related laws work.

There’s considerably more to think about in this review. I don’t expect lawyers in general, much less the general public, to read Bernstein’s book – I hope to get to it, but I have an enormous stack ahead of it – but I think any lawyer interested in law and the constitution would find it more than worth his time to find Professor Reynolds’ Commentary review of Bernstein’s book. Freedom of contract has been neglected lately. Sometimes rather obscure legal concepts can be very important in trying to recover a proper balance of individual, States, and Federal rights and powers. This is one of those legal points worth contemplating.

“The Lochner Ness Monster” a review by Glenn Reynolds. Commentary June 2011

View Week 681 Monday, June 27, 2011

View Week 681 Monday, June 27, 2011 – 1

 

ON FLAKES AND FLAKINESS

 

Is Chris Wallace a Flake?

 

Fox News reporter Chris Wallace, who is certainly no liberal, decided that he would throw Michele Bachmann a softball. He has now apologized. He needs to rethink that.

The talk show host posted the video apology after his “Fox News Sunday” interview with the Minnesota congresswoman, who formally announced her presidential bid Monday in Iowa. Wallace said on the Fox show that Bachmann had a reputation in Washington for making questionable statements and asked her: “Are you a flake?” (link)

Instead of answering the questions, Bachmann chose to take umbrage, and she has collected a pot full of it. She insists the question is insulting, that she is a serious person, that Wallace has not groveled sufficiently and his apologies are not accepted. As for me, I’m not an experienced news interviewer, but I am an experienced political campaign manager, and I don’t see why it was an insulting question: Bachmann, like every politician on Earth, has said things in public that she would have said differently if she had the chance to do it over, and here she had a great opportunity to say something to that effect. It was a gold plated Mulligan, and Bachmann must have been having a bad day not to recognize that. Even had the question been asked in a hostile news interview and intended as an insult it would have been a great opportunity for Bachmann.

The question doesn’t make Chris Wallace a flake. I don’t watch a lot of political television, because I generally find that unrewarding. The ability to do political interviews and photo ops and such like is a necessary quality for holding high political office, particularly the Presidency. The office requires that one have the dignitas and gravitas to do national acts like awarding the Medal of Honor and delivering the equivalent of The King’s Speech, and that has to be shown during the campaign. The Brits have the descendents of the sons of the body of the Electress Sophia of Hannover to perform national functions, but in America that’s up to the President, and when the President lays the national wreath at Arlington on Memorial Day, we really don’t want to be reminded of the times when he paraded around in a toga during undergraduate days. Whatever else a President must not be, he – or she – cannot be a flake. Wallace could have been a bit more delicate in asking this, but he’s certainly not to be condemned for asking it.

Every political candidate is going to be asked to demonstrate that he/she is not a flake. Every former gaffe is going to be unexpectedly sprung , and at any point the candidate is going to be tasked at proving the absence of flakiness. It’s inevitable. Look at the endurance tests Sarah Palin was subjected to.

 

Is Sarah Palin a Flake?

 

Not in my judgment. She has been a Mayor, a Governor, a survivor of a national campaign, best selling author and survivor of several book signing tours – known in the trade as authors’ death marches – and a national political figure while holding her family together in a big public showroom. She has already shown that she has the dignitas to perform acts of national unity. We can argue about her other plusses and minuses, but she has already passed this test. Yes, she has said a few things she’d rephrase. I bet she’d have welcomed a chance at the Chris Wallace softball.

 

Is Michele Bachmann a Flake?

 

Until this morning I wouldn’t have given that any thought. Had I been her campaign manager (and understand that it has been a while since I was a successful campaign manager in campaigns for a Mayor and a Congressman) I would have warned her to be ready for that question – it was inevitable – and rehearsed both answers and reactions to the inevitable question. That’s the sort of thing campaign managers have either to do or to be sure someone else does. It’s a very important part of a campaign.

And that’s the problem for me: no, I don’t think Congressman Bachmann is a flake, but I do think she’s working at playing one on national TV; and I do think she was insufficiently prepared to begin a candidacy for President of the United States. She clearly chose the wrong campaign staff – any competent national campaign manager would know that she was going to be asked the question not once but many times. She clearly doesn’t yet see that Chris Wallace is not the enemy; if she thinks he was trying to insult her, wait until she gets the treatment from people who really don’t like her. Perhaps she could ask Sarah Palin what that feels like.

No, I don’t think Bachmann is a flake; but I do think she has insufficient experience in both executive office and in campaigning, and if she doesn’t grow up fast she has managed to end her campaign for President the day before it formally began.

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Note on Format

Note: I am experimenting with formats, and ways of presentation. I’m trying to get a template that works for VIEW, and a style – a way to present the day’s views as coherent thoughts, not some random string of thoughts in reverse order of their creation as this systems seems to encourage – and it’s taking me a while to evolve how to do it. I have one friend who says that if I keep this up I will manage to lose all my readers in a week. I have others who say I’m not doing so bad and it stays interesting, and a few who like the new system. Me, I’m still just trying to keep things going.

Suggestions welcome. What I need to do is stop thinking about presentation and use what’s left of my brain to think about what I’m writing, not how I am presenting it… We’ll get there. Please stay with it.

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Note on Apologies

Leroy Jethro Gibbs of NCIS is famous for saying “Never apologize. It’s a sign of weakness.” I don’t know the actual origin of that homily but Dinozo could give Gibbs a pretty good lecture on its use in movies. To the best I can tell, it originally appears as said by Captain Brittles in stories by James Warner Bellah. Brittles is the captain of a one-troop post in the Old West. He’s the hero of She Wore a Yellow Ribbon. Captain Brittles can’t be promoted; he has earned the hostility of some senior Old Army brass, and he is doomed to stay out there on the frontier as a captain until eventually he succumbs, probably on the trail of savages – like the captain in Spanish Man’s Grave, also by Bellah, and possibly the best army western ever written.

Colonel Bellah – one time World War I pilot, then an air commando with the Chindits and Stillwell – wrote many of the scripts for John Wayne westerns, and Wayne, having read the line, wanted it for himself. He was fond of using it off camera. In A Thunder of Drums Richard Boone gets to use the phrase but as a different captain with a history similar to that of Brittles. Thunder of Drums was written long after Yellow Ribbon.

Dinozo could come up with a lot more lore about John Wayne and the James Warner Bellah novels. I was privileged to know Colonel Bellah – he invited me to call him Jim, but I never quite dared – and I was able to publish “Spanish Man’s Grave” in, of all things, a science fiction anthology called “There Will be War.” James Warner Bellah was as colorful as any of the myriad characters he created.

Colonel Bellah died of a heart attack during a visit to his friend James Francis Cardinal McIntyre, Archbishop of Los Angeles. I’m sure he thought that appropriate.

 

Chaos Manor Mail Sunday June 26, 2011

Chaos Manor Mail Sunday June 26, 2011

 

New Format

 

Jerry,

 

The new format works very well for me. Reading on my iPad in Landscape, the new format is easier for me to read because the length of the lines is shorter and easier to read by just scanning down.

 

I am looking forward to seeing how the new format looks with Chaos Manor Reviews.

 

Keep up the good work. Your Site is loaded with INFORMATION CRITIAL TO THE SURVIVAL OF OUR REPUBLIC!

 

The View From Chaos Manor and Mail should be required reading for EVERY member of Congress.

 

Bob Holmes

Sent from my iPad=

 


I will keep trying. Mail will probably undergo a lot of changes over time. Thanks for the kind words. In particular I need to work on backgrounds and colors, neither of which I find as satisfactory as I did in the old system.

 

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Suggestion for the new format

 

Message Body:

 

I think you might be better served to stop thinking of your “blog” as a “daybook”. Sticking strictly to a (nearly) everyday post of mail and views isn’t necessary.

 

Instead, just post reader mail as it comes in along with your own comment – each in a separate post. I would think this would be simpler for you, too, by eliminating the compilation step.

 

Then, just intersperse your own view posts as your feel the need. They don’t have to come every day… just when you feel motivated and have the time.

 

The other key benefits to this is: 1) readers can reference and link to a specific reader e-mail since it will be in it’s own post, 2) moving to a user comment section would be easier so that comments could focus on a single topic, 3) finding the post that you last read would be easier.

 

Here’s an example of a blog that uses this style and I think fits what you’re trying to do:

 

http://apocalypsecometh.wordpress.com/

 

Hope this helps! Thanks for all of your work!

 

Thanks for the suggestions, but in fact the present system feels right to me. I want to make it easy to determine the difference between Mail and View, and what’s my contribution and what is comment on someone else’s stuff. But I am open to suggestion and discussion here. Probably not today. Today was a bit exhausting.

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The new Mail format

 

Jerry

 

I’m sure you have many many items to work on, but I’ll add this: when a user sets the normal font size in Firefox to 24, your comments expand to a reasonable size, but the mail does not.

 

I don’t know why this is happening, but I have to change my Firefox settings when I go to this new site.

 

Ed

 

I don’t know what causes that. It’s an item to add to the list to work on. Thanks.

 

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Navy Plans to Scrap First Experimental Stealth Ship

 

Check this out; an adventurous photographer accidentally found the Sea Shadow in the Mothball Fleet. http://scotthaefner.com/beyond/mothball-fleet-ghost-ships/

 

-Jay

 

Entropy runs fast with boats…

 

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Using the front sight!

 

Jerry,

 

I just saw video on FOX news from Libya. The rebels have stopped firing into the air. While most are still firing from the hip using the spray and prey method of gun fighting, a few are actually putting the butt stock to their shoulder and may be using the sites. It is fortunate for them that I’m going under the knife for a new pacemaker Monday. They’d be up shit creek without a paddle if Someone such as myself was there with a .50 BMG Barrett with a couple dozen cases of ammo. It would be like hunting sage rats.

 

Jim Crawford

 

Possibly an explanation for why Qadafi is rumored to be seeking a negotiated way out. He wants to stay rich and out of jail. We want him out. Rich is a relative term, but given what we are spending, a week’s worth of war is a lot of money, and although it’s not oil sovereign rich, one could live on that quite well – it beats a Dutch prison.

 

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Decline

 

“In 2008, historian David McCullough http://photoncourier.blogspot.com/2008_10_01_archive.html#7108192311108519448 spoke to seminar of some twenty-five students at an Ivy League college, all seniors majoring in history, all honors students. “How many of you know who George Marshall was?” he asked. None did.”

 

 

http://pajamasmedia.com/eddriscoll/

 

Steve Chu

 

Decline of the West. Actually, isn’t Decadence a proper term? Barzun’s Dawn to Decadence is a big book, long, not hard to read but it does take slow reading to understand. The West had a good run. We’ll see what happens.

 

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Compare and contrast

 

http://www.sfgate.com/cgi-bin/blogs/bronstein/detail?entry_id=91589

 

http://news.scotsman.com/news/Scottish-couple-thrown-in-Texas.6789097.jp

 

Steve Chu

 

Which may be illustrative of the previous point. Thanks.

 

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VIEW Sunday June 26, 2011

View June 26, 2011 0300

Corpus Christi

 

 

Second Day of New System

 

At the moment the WordPress system seems to be working but mail to jerryp@jerrypournelle.com is not getting to me. It will by the end of the day. It is very late and past my bed time. UPDATE: mail problems are fixed and all is well. Read on.

 

It is my intention to keep this open all day and add to or revise it from time to time so you should renew this if you look at it after an interval. I will have a new item for each day, but not multiple files per day. I add to the day book as needed.

 

Contempt of Cop

Coast to Coast tonight is on the contempt of cop arrest of the woman in Rochester who was videotaping the police and got arrested for it. Interesting discussions, but I am not sure much new has emerged. Any officer who thinks he can prevent people from making videos of his actions will regret thinking that if he believes that will cover up any bad procedures. Electronics are too good and too small and lenses are too good. I can understand a policeman resenting citizens making videos of their actions, but that is probably a mistake given the ubiquity of recording cameras. Police had best get in the habit of acting as if they are on stage at all times.

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And off to bed, it being very late.

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1630 Sunday After Adventures

 

We are in the process of moving to BlueHost after years of smooth and efficient service from Brian and Greg at zidane.mazin. Rick has been doing most of the work. Last night we moved the mail. This morning it was panic time. For reasons I won’t go into, essentially no mail sent to jerryp@jerrypournelle.com, my main mail address, got to me after midnight and before about 1345 this afternoon. That looked to be time for panic, particularly since there were trickles of mail to other addresses I own, one of which ought not to be getting mail. Eventually we got it all figured out, and in a good sized flood a pile came in, much of it commentary on the new site. That will make up most of today’s mail, which I will form up after I get this logbook updated and sent off.

The moral of the story is, as one might suspect, Don’t Panic. Be Logical. I used to tell my technicians and instruct the junior engineers in what I called ‘the relentless application of logic.’ That doesn’t always work in the electronics age – sometimes I think these things really do have minds of their own, and thus we are in the situation of a military commander in which no battle plan survives contact with the enemy – but in fact it almost always does work. See what works and try something beyond that. In the OR business it was the process of making as good a model as you could that would describe what you have, then take excursions from it. If those look reasonable, try physical excursions to test the model. And so forth. Bit harder to do when your model is the climate of the Earth, of course.

Anyway, mail now works. If you sent mail to me I got it. I mostly got it all at once when we solved the problem, but it wasn’t eaten, and I have reviewed most of it. I’ll get to the rest tonight or tomorrow. It’s all here.

 

The World Goes On

 

There is more happening in the world than my transition, but alas, the part of the universe I am aware of has been restricted to getting email working properly. Khaddaffi is said to be trying to negotiate a way out of Libya that doesn’t involve going to some kind of international prison forever. How much is it worth to keep him locked up? Not sure where he would go. Idi Amin fled to Libya, then the Saudis accepted him and even paid for fairly luxurious upkeep so long as he stayed out of politics. He didn’t exactly grow old gracefully, but he certainly lived better than he would have in an Dutch or Belgian jail.

Sun Tzu says that one ought to build golden bridges for one’s enemies, but Sun Tzu is concerned with strategy and victory, not morality and revenge. In any event, the question is, how much is it worth to whom, and who will pay, to get Qadafi out? I suspect that the cost of getting him out of Libya is less than we spend in a week of breaking things and killing people.

I’ll come up for air tomorrow. For today, the relief is tangible: we have View, we have Mail, and we have email. Life approaches normal again. And I’m feeling a lot better today than I did at any time last week. Time to get some work done. Thanks for the patience.

 

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