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There is a great deal to be debated over the PRISM program, the morality of Edward Snowden's leaks, and proper balance between privacy and security, but one thing ought to be clear: This whole thing started when Barack Obama was merely a state senator from Illinois, and if you're mad about this, supported the Patriot Act, and made your bread attacking Democrats for opposing the Patriot Act, then you're full of crap.

The last blog post made here was one year ago tomorrow. The site was technically out of commission for much of the past year because the log file wasn't configured very well and the database grew too large. I've got that fixed for now. Me, I started a new job a year ago (same employer, different office and job), and my wife is having a baby some time in the next week or so!

Anyway, I noticed that the anniversary of the last post was coming up, and I didn't want it to be a full entire year between posts, so here's this one. I don't know that Stubborn Facts will get resurrected, but I've been reading through some old posts recently and am reminded of the wonderful debates we supported here. Thanks to Simon, Tully, Rafique, and all of our guest posters and regular commenters for the fun we had in our little corner of the internet.

Yes, three quarters of the country can be wrong; the meanings of legal texts aren't decided by polls. But which texts are law can often be decided by polls, and if the President hoped to make a cause celebre of a decision by the court to strike down Obamacare, that door would appear to have been closed by the fact that even a New York Times poll says that three quarters of the country—so read four fifths, correcting for bias—would agree with the court.

Unions hardest-hit. I liked this line, from Politico's coverage: "Vince Lombardi, the man who taught [Wisconsinites] to think with clarity about the severe consequences of victory and defeat, once offered this gem about life: 'Show me a good loser, and I’ll show you a loser.'” Somehow one gets a sense of what Lombardi would have made of John McCain's 2008 autorotation of a campaign.

Yeah, someone really should have. Geez-a-whiz.

"It’s the most cynical thing imaginable. And yet within the moral discourse of the liberal West, the Israeli side looks like it’s the most egregiously insensitive to the cost of the conflict."

From Sam Harris. Something to think about.

HT: Sully, for the link to the original article.

Only four in ten Americans will admit to being pro-choice; half identify themselves as pro-life. But, remember, WE'RE the kooky extremists who are waging a war on women, right?

As I've pointed out before, the problem with majoritarian rhetoric is that if you slip into the minority, you're in trouble.

Predictably, liberal feminists like Shakesville's Melissa McEwan are spinning furiously, but Melissa's argument just doesn't work. She says that a different graph, finding 52% of Americans want abortion to be “[l]egal under certain [circumstances],” proves that “77% of USians still favor keeping abortion legal in some form” (presumably the abominable neologism “USians” is cod political correctness), a number that she obtains by aggregating the 52% with the 25% who think it should be legal under any circumstances. But why count the 52% with the 25% instead of the 20% who think it should be illegal in all circumstances? The claim that 77% of Americans wouldn’t ban abortion under all circumstances is weak tea for someone in Melissa’s position, and the same graph also proves, no less correctly and considerably more apropos, that 72% of Americans favor tighter restrictions on abortion than can exist under Roe-Casey, which means that 72% of Americans would tighten abortion law from the abortion-on-demand status quo, and, if they were consistent and it was explained to them properly, favor the overruling of Roe and its poisonous progeny.

Sean King, a second-grader at a Colorado school decided to dress up as his favorite historic figure for a class project. He chose Dr. Martin Luther King, and wore black makeup as a part of the costume. Pop quiz: Did the faculty understand the context, and praise him for his efforts, or freak out, and force the kid to take off the makeup or be sent home?

You only need one guess.

Here's the thing: As a black man, I am sensitive to the obvious racial context of blackface. You needn't be black to be offended by blackface, or racism of any kind. The thing is, this isn't blackface, at least not the Al Jolson, minstrel-show kind most people think of. Precious context is required here: Shouldn't praise young Sean King for having such admiration for Dr. King, rather than crying racism, where it's reasonably clear none exists?

Context is everything, and this reeks of a political correctness that really ought to be fought tooth and nail...

HT: Althouse

I have made it quite clear over the years, that I don't think that the so-called "delegates" should be speaking in any House hearings, except perhaps as a witness, so my immediate thought on seeing the headline " D.C. Delegate Norton silenced at abortion bill hearing" was not sympathetic. But it was as a witness that Ms. Norton sought to appear! While I disagree with the House's sufferance of her as an ersatz member, and while I suspect that I would disagree with her testimony, my inclination is to see the refusal as churlish and unreasonable. This is not like the Sandra Fluke business. Insofar as Congress is proposing to legislate in its capacity as overlord of D.C. and she is an elected representative of the D.C. community (whether she ought to be or not), the committee would be as well-advised to hear from her as to hear from, say, the mayor of the district. And insofar as since Ms. Norton is in fact a member of the Congressional community (whether she ought to be or not)—no more or less than the Clerk of the House, the Secretary of the Senate, and so forth—while the committee would have been within its rights to decline to invite her testimony, to refuse to her permission to do so, sought in good faith, would be exceedingly ill-mannered.

Committees don't have to agree with what they hear from witnesses. To be sure, committees shouldn't be soapboxes, either for members or witnesses—I would lock the cameras out of the committee rooms as well as from the Capitol, and see no reason why the commmittee would have to provide a public platform for Norton's comments. But out of professional courtesy if nothing else, the committee should throw out the cameras, and (given what I know of Ms. Norton's views), listen politely to her, thank her for her time, and then ignore her.

but you cannot be both. It's impossible.

The question isn't whether anyone should give Obama credit for admitting it but rather why so few are willing to fault him for lying about it.

One of those people is liberal Muslim freedom fighter Irshad Manji, who was attacked by Islamists in Indonesia, for promoting reform within Islam.

For all the talk about the "war on women," the idiotic base politics of foolish Republicans may be worthy of scorn, but let's put things in perspective, folks--actual fascists are waging a full-scale war on women, which is a part of a larger war on free thought. If you mad about a ban on contraception, but not about Irshad Manji being attacked with iron bars, then you're not serious...

HT: Michael Totten

Greg Stohr at Bloomberg, with my emphases and comments:

In January, Supreme Court Justice Antonin Scalia accused the U.S. Environmental Protection Agency of “high-handedness.” He was just getting warmed up. [So was the court; the agency lost that case--Sackett v. EPA--nine to nothing.]

. . . .

Scalia’s tone this year, particularly in cases involving the Obama administration, is raising new criticism ... [that he] is crossing the line that separates tough scrutiny from advocacy. ¶ “His questions have been increasingly confrontational,” said Charles Fried, a Harvard Law School professor who served as Reagan’s top Supreme Court advocate. While the justice has always asked “pointed” questions, in the health-care case “he came across much more like an advocate.” [Prof. Fried has made clear in a number of appearences and interviews that he regards the challenges as risible. It's thus unsurprising that his perception would be skewed.]

. . . .

The justice has never shied away from controversy. ... In 2009, he told a college student she had posed a “nasty, impolite question” when she asked whether book tours by the justices undermined their case for banning camera coverage of arguments. [I've spent a fair amount of time trying to track down sourcing for this, and while there are ample sources giving the quote from Scalia, I have yet to find any source that records the wording of the question, and it's beyond cavil that a query that might be substantively reasonable can always be framed in a nasty, impolite manner. Without the text of the question, the criticism of Scalia's response falls flat.] ...

. . . .

Of late, Scalia’s most pointed remarks have come at the Obama administration’s expense. [Is that so? I'd like to know how you'd quantify that.]

In January, [in Sackett,] he directed his fire at Malcolm Stewart, a Justice Department attorney. Stewart was defending the EPA’s use of administrative compliance orders that demand an end to alleged environmental violations, in many cases insisting that recipients restore their land to its previous state ... [and] Scalia made his contempt clear after Stewart said that people and companies could seek to change any “infeasible” requirements. ¶ “Well, that’s very nice,” the justice said. “That’s very nice when you’ve received something called a compliance order, which says you’re subject to penalties” of $32,500 per day. [What Stewart actually said was that "every version of the compliance order said to the Sacketts [that] if you think that there are things ... in here that are wrong or compliance measures that you regard as infeasible, you're welcome to tell us." Tr. 34 ff. And as Scalia was pointing out, a right to ask an agency to reconsider an order that may be ruinous is cold comfort indeed if the agency is charging you ruinous sums of money for every day that you don't comply, including the time taken for your request to be processed. Scalia was right. Even Stewart conceded shortly thereafter that the EPA had put the Sacketts "an unattractive position." Id., at 37.] ¶ When Stewart said the EPA had modified the order at issue, dropping a requirement that an Idaho couple replant vegetation on their property, Scalia scoffed again. “It shows the high- handedness of the agency, it seems to me, putting in there stuff that is simply not required,” he said. [See ibid. "[W]hen litigation was threatened or actually brought," Scalia had noted, "the EPA modified its order: Oh, you don't have to plant the trees. Does it do this as a matter of practice, issue compliance orders that go well beyond what the what the [Environmental Protection Act] would -- would demand?" Does it not show high-handedness for an agency to issue compliance orders that go well beyond what the enabling statute demands, if that is indeed what happened?] ¶ The court unanimously ruled against the EPA in March, giving landowners more power to challenge compliance orders in court. [So clearly Scalia was way off-base, right? The EPA's position was so reasonable that it attracted support from... um... not a single justice. That's... nice.]

. . . .

With health care, Scalia’s primary target was Verrilli, the administration’s top Supreme Court lawyer. Defending the law’s requirement that Americans get insurance or pay a penalty, the solicitor general argued that uninsured people often receive care, even if they can’t pay for it, because of the “social norms to which we’ve obligated ourselves.” ¶ “Well, don’t obligate yourself to that,” Scalia said. [We have to administer the death penalty because of social norms to which we've obligated ourselves. Well, who's "we" and why are they obliging us? How does that supply a font of (or obstacle to) federal power? Does a decision by a determined minority to oblige Americans to do something supply authority for the government to do that thing? Can the obligation of a treaty in which the United States government promised another nation that it would do something that it lacks Constitutional authority to do supply the power to do it? Of course not. Scalia is right.] ¶ Later, Scalia called one strand of the government’s defense -- its contention that Congress could legally enact the law as a tax -- “extraordinary.” [So what? "Extraordinary" isn't unusual Scalian vocabulary, and while I realize that that sounds odd, it's not a contradiction when his ordinary business is to deal with extraordinary cases. This term, he called the government's argument in Hosanna-Tabor extraordinary (by the by, Justice Kagan called it "amazing"); extraordinary too was Justice Kennedy's opinion for the court in Lafler. Once, Justice Thomas' opinion for the court was extraordinary. Last term, too. And in Santos. And Scalia's not the only Justice to use that word. Or the only person at the court: Sometimes, the SG tells the court that things are extraordinary; indeed, Mr. Stewart did so in Sackett, the case mentioned above. So.] ¶ The following day, he mocked an assertion by another Justice Department lawyer, Edwin Kneedler, as the court considered what would happen to the rest of the law should a key provision mandating that most Americans obtain insurance be declared unconstitutional. Kneedler said the court should look at “the structure and the text” of the 2,700-page statute. ¶ “Mr. Kneedler, what happened to the Eighth Amendment?” Scalia asked, referring to the provision of the U.S. Constitution that bars cruel and unusual punishment. “You really want us to go through these 2,700 pages? [It's a bit late for Greg to come on all humorless having observed above that "[i]n the courtroom, he is quick with one-liners, drawing laughter more frequently than any other justice...." What does Greg want, a rimshot? Even the transcript adds "(Laughter.)" Tr. 38.]

. . . .

Scalia described as “extraordinary” yet another administration position, this time when Verrilli urged the court to strike down Arizona’s illegal-immigration law. Scalia bristled when the solicitor general said “we have to have the cooperation of the Mexicans,” something Verrilli said the federal government could best secure without state interference. “So we have to enforce our laws in a manner that will please Mexico?” Scalia said. “Is that what you’re saying?” [Again, the point isn't objectionable, and I say that despite being somewhat sympathetic to Verrilli's argument. Verrilli argued, among other things, that generally, the foreign relations of the United States (indisputably a federal business) with a given country are or may be affected by how we treat illegal immigrants from that country, and in particular, our ability to enforce immigration laws depends (I think that's a little strong, myself) on the cooperation of the "donor" country, especially in Mexico's case. Thus, the argument goes, the United States has an interest in enforcing immigration law in a way that doesn't antagonize other countries. See Tr. 69 ff. Scalia's phrasing might have been unkind, but it wasn't unfair, unreasonable, or incorrect.]

. . . .

He's still grousing...

The result in Bush v. Gore was important, but the reasoning turned out to be perishable; the decision has not been cited again by the Justices

Yes, well; that's unsurprising, as I explained a few moons of Jeff's whining about the case ago.

At MP, I have a post following up on this 2009 SF post, if anyone's interested. It looks briefly at liberals and conservatives in terms of epistemological anxiety.

"...individuals acting in collaboration with others would be stripped of those rights."

The obvious consequences of a rather ill-conceived amendment to respond to Citizens United. Needless to say, unless the reading of this amendmen is incorrect, this is a really, really, really bad idea. This is the sort of misshapen monstrosity that could only cme from hasty thinking and unchecked passion. The crew at NRO have framed this in terms of a left-wing power grab in order to silence conservative dissent from the government, but I'm not prepared to lay that intent on the authors of this thing, as it is no doubt an attempt to fix a problem with a cure worse than the disease. The thing is, this would help to create that sort of arrangement, and would in fact leave all political speech subject to regulation.

I'm with NRO on this one--this is bad stuff, and most likely won't go anywhere. The commenters over there are convinced this is proof of the grand leftist conspiracy to crush American liberty. It's all straw man logic I know, but this does make it harder to dispel that fear with stuff like this coming down the pike.

The First Amendment's fine the way it is, folks. Let it be.

AND: The text:

Section 1. We the people who ordain and establish this Constitution intend the rights protected by this Constitution to be the rights of natural persons.

Section 2. People, person, or persons as used in this Constitution does not include corporations, limited liability companies or other corporate entities established by the laws of any state, the United States, or any foreign state, and such corporate entities are subject to such regulation as the people, through their elected state and federal representatives, deem reasonable and are otherwise consistent with the powers of Congress and the States under this Constitution.

Section 3. Nothing contained herein shall be construed to limit the people's rights of freedom of speech, freedom of the press, free exercise of religion, and such other rights of the people, which rights are inalienable.

At first glance, it doesn't sound menacing, but a closer look reveals a glaring problem: Clause 2 appears to cancel out Clauses 1 and 3, because if Clause 2 limits the speech of corporations in such way that lines up with the opposition to Citizens United, then Clauses 1 and 3 are negated. If this isn't so, then this whole thing collapses on itself, and renders it symbolic and toothless. It's entirely possible that they've crerate a symbolic non-measure--either way this looks to be ill-conceived out of the gate.

The rationale, after a fashion. After the argument, I was thinking along similar lines:

[H]ere's my devil's advocate argument about all this. No justice since Rehnquist has wanted to revisit the basic premise of the new deal revolution, which is essentially that Congress can do anything, but only four justices are willing to embrace that outcome, and so every time a case challenging congressional authority arrives, liberals can't believe it's serious (because they don't believe there are limits other than individual rights), and the conservative justices desperately search for a limiting principle that preserves the fiction that the new deal settlement doesn't make congress omnipotent (because they don't want to revisit the new deal settlement).

Now, I'm not sure that it's true that the new deal settlement essentially makes Congress omnipotent; certainly that is the proposition that Lopez denies. But in the absence of a limiting principle, it's hard to see how that isn't the upshot, so we are backed into the corner of accepting one of three outcomes: Accept Congressional omnipotence, impose (sometimes slightly artificial) limiting principles to reign in that power, or overrule Wickard et al.

"...That’s why we have judges and juries—to sort out disputed facts."

Read the whole thing.

In a bit of shocking news, conservative media icon Andrew Bretibart has died of natural causes, at the age of 43. Needless to say, I wasn't exactly a fan of a lot of his work, but my prayers go out to his family and friends. As for speaking ill of the dead, I think the old rules should still apply.

UPDATE: Not everyone agrees with this, obviously, but my point still stands.

UPDATE #2: I think this from Andrew Sullivan is important:

A man has died at a painfully early age. He has family and friends and colleagues. They are in grief.

Look, I 'm not in any way trying to whitewash Breitbart's record, and I remember his comments after Ted Kennedy's death, but there is something to be said for magninimity, and maybe this is because I have personal experience with the unexpected loss of a loved one, but his family and friends are in grief. We ought to honor that. Be classy, because it's the right thing to do. That's all.

With all the talk over Rick Santorum's comments attacking President Obama's theology, I am planning a longer post on these issues, including my lamentation over Franklin Graham's comments on these issues. In the meantime, I wanted to link to this from the Catholic blog Vox Nova, via Andrew Sullivan. The argument goes into Santorum's embrace of solo scriptura, and his "inner evangelical,"* but I just wanted to make a point about environmentalism and Biblical stewardship, and I think the comment I posted pretty much covers my thoughts:

First of all, I’m writing this as an Evangelical Protestant, who believes the Bible is God’s revealed Word. I am also, for all intents and purposes, a political liberal–no doubt some will see a conflict there, but let’s leave that aside. I also want to leave aside for now the climate change debate–I believe it’s real, and Santorum doesn’t, but that’s not my issue here. I just want to point out that the idea of Biblical stewardship of creation is entirely in line with Scripture, and Santorum’s theology is wrong, but it’s not because he’s more conservative evangelical than Catholic–there is a certain strain of thought among certain evangelicals and cultural conservatives that Santorum is operating out of, but the problem here as I see it is not that Santorum is appealing to Biblical authority, rather that his views on this issue are in fact, not based on the Bible.

The idea of Biblical stewardship is not to pillage or plunder God’s resources as we see fit, but to be stewards–to tend the Earth, to care for it, and to use it for God’s glory. When God gave Adam dominion over the Earth, he called Adam to tend it and care for it–the idea is not to elevate the Earth above man, but Santorum seems to elevate man above everything, including God. God told Adam to “dress the Garden, and to keep it ” (Gen. 2:15). The idea of using the Earth for whatever, without regard for limitations actually ignores human concerns and leads to waste, pollution, and plunder, as a poor steward is wont to do.

I’ll say it again–the problem isn’t Santorum’s embrace of the Biblical teaching, but rather his rejection of it, in this case.

Oh, and I should be clear--I'm not attacking Santorum's faith--I'm simply challenging his definition of stewardship, and countering his attack on Obama's faith, based on my reading of Scripture. If anyone has a different view, I'm more than willing to hear it.

*FWIW, I think there is something to the argument that Santorum seems more at home among conservative Evangelicals than a lot of Catholics--but that doesn't really concern me.

AND: Franklin Graham has apologized.