ACC out of Pearland?

Outgoing Texas Rep Mike O'Day wants ACC to yield to SanJac and allow them to offer community college classes in the city. Beneath the conflict lies a reluctance of Pearland to vote itself into the taxing district of any community college system. And beneath that lies ongoing conflict between the two towns.

After being frustrated by attempts to increase the number of courses for college credit at a Pearland campus, a Texas legislator asked the Alvin Community College board of regents to give up its stake in the city.

State Rep. Mike O’Day,R-Pearland, told regents during a meeting Thursday night he would like to see the San Jacinto College District take over Pearland ISD’s “service area” to provide community college needs.Alvin Community College board members said though classes and enrollment have dropped at the Pearland location, they have crafted a new plan to bring Pearland ISD students back.

After O’Day spoke Thursday night to the regents, they did agree to appoint two board members and one administration official in the future to talk with O’Day and the newly created Northern Brazoria County Education Alliance to find a solution.

Stay tuned.

Campaigning: About McCain Going Negative

Here's a chunk of text from Slate's Today's Papers about McCain's decision to go negative on Obama:

. . . Obama's efforts to "portray himself as presidential … run the risk of appearing arrogant or presumptuous," says the LAT. That's exactly what the McCain campaign is hoping for as it released an advertisement yesterday that compares—"and not in a good way," the NYT helpfully specifies—Obama to celebrities like Britney Spears by showing pictures of his speech in Berlin last week. "Right now, both campaigns have to do the same thing, which is establish who Barack Obama is," a Republican pollster tells the LAT. "That's the real battle going on."

Something the LAT fails to mention but the NYT points out in its off-lead is that McCain's tactic comes straight out of the President George Bush playbook that seeks "to make campaigns referendums on its opponents." The WP goes one step further and directly states that McCain is "adopting the aggressive, take-no-prisoners style of Karl Rove." Everyone says that even some Republicans have been taken aback by the recent aggressiveness of McCain's attacks. Espousing such a persistent negative message about his opponent could easily evaporate one of the main aspects working in McCain's favor—his image as a politician who doesn't play by the normal rules of Washington. Still, it's clear that since much of the public is trying to make up its mind about Obama, McCain has a great opportunity to plant doubts about the Democrat that could persist until Election Day.

That is assuming he can stick to the message. In a front-page piece that almost (but not quite) implies that McCain's aides are thrusting this aggressive style on the candidate against his will, the Post notes that the senator from Arizona is unpredictable and dislikes parroting talking points over and over again. As a result, McCain's "advisers cringe" when he "keeps talking" and subsequently dilutes what could have been a good sound bite. McCain's campaign has been criticized for lacking a consistent message, but to some Republicans that failure has more to do with the candidate's shortcomings rather than the campaign's failures. And the NYT points out that there are those who believe that trying to "apply the Bush model" to McCain simply won't work. "It could be the Coca-Cola strategy of marketing that they're trying to apply to Dr Pepper," a former McCain strategist said.

In the Post's op-ed page, David Ignatius flat-out suggests that what we're seeing now isn't the real McCain. In a fawning piece that goes through McCain's biography, Ignatius says the presumptive Republican nominee needs to stop listening to advisers and start being himself. "What's damaging the McCain campaign now, I suspect, is that this fiercely independent man is trying to please other people," writes Ignatius. "He should give that up and be the person whose voice shines through the pages of his life story."

Not everyone agrees. In a piece that is bluntly (disrespectfully?) titled "Is John McCain Stupid?" the WSJ's Daniel Henninger writes that McCain is constantly making things harder for himself on the campaign trail by talking too much and failing to make things simple. "Someone in the McCain circle had better do some straight talking to the candidate," writes Henninger, who suggests that, essentially, the presumptive Republican nominee needs to be saved from himself. Instead of playing to win, McCain is "competing as if he expects the other side to lose it for him."

In the LAT, Jonathan Chait also essentially says that Obama needs to let go of his instincts, but in the other direction. Instead of just presenting himself as the better candidate, Obama must tell voters why they shouldn't vote for McCain. Just like McCain seems to be following Bush's playbook, Chait says Obama appears to have picked up John Kerry's strategy that worked so well in 2004. Now, instead of relying on his usual "weak-tea replies" that "express 'disappointment' with McCain," Obama needs to go on the offensive and start attacking. "Obama doesn't need to engage in character assassination and baseless charges, as his opponent has done," writes Chait. "All he needs to do is stop letting McCain paint a wildly distorted self-portrait."

Executive Order: Bush Overhauls Intelligence Agencies

From the Wall Street Journal:

The White House is expected Thursday to unveil the largest overhaul of intelligence powers in a generation, spelling out the responsibilities of each intelligence agency in the wake of several reforms following the 2001 terrorist attacks, according to government officials familiar with the plans.President George W. Bush signed the executive order updating spy powers Wednesday, the officials said. Designed to bolster the power of the director of national intelligence, the revision has been a source of significant turf battles among intelligence agencies, which fear the rewrite of spy powers is coming at their expense.

Congress created the intelligence director's post as part of a series of intelligence reforms in 2004, but the extent of his authority has been a constant source of debate among intelligence officials and lawmakers.

The overhaul gives the intelligence director a greater role in hiring and firing agency heads, authority to remove barriers to intelligence sharing, and the responsibility for overseeing the acquisition of expensive programs such as new spy satellites, according to documents reviewed by The Wall Street Journal. It also hands the intelligence director more power to direct midlevel intelligence officers.

The executive order can be found on the White House website.

Justice and Education

Federal Judge William Wayne Justice has ruled that the state of Texas is not complying with the requirement, under the Equal Opportunity Act, that they adequately educate students with limited english proficiency:

Justice noted that the eighth-grade achievement gap for reading never got better than 48 percentage points between limited English proficient students and all students from 2003 to 2006. The 10th-grade achievement gap for mathematics never got better than 31 percentage points during that same time period. And the 11th-grade achievement gap for science never got better than 30 percentage points.

Justice's ruling noted the testimony from former State Board of Education member Joe Bernal of San Antonio, who called the test scores "horribly bad," and also from former Education Commissioner Shirley Neely who said: "There's not anybody in their right mind that would say these are good scores."

The court ruling is significant because "140,000-plus English language learners at the secondary level will not be forgotten, and they will not be pushed aside by the state as a matter of convenience," said David Hinojosa, San Antonio-based staff attorney for the Mexican American Legal Defense and Educational Fund, which helped develop the case on behalf of the League of United Latin American Citizens and the American GI Forum.

"The opportunities and the expectations for those students will not be forgotten if the state lives up to its responsibilities," Hinojosa said.

The Texas Education Agency disagrees and has asked the Texas Attorney General to appeal the ruling, which they are mulling over apparently.

Here's a book about the judge.

SIgn of the Times?

Let's hope not:

The Massachusetts Educational Financing Authority, which secured more than $500 million in educational loans last year, announced Monday that it would not offer loans for the coming academic year.

The self-financing state authority, known as MEFA, was unable to secure financing for the 40,000 students it services, said Tom Graf, the authority’s executive director, in a statement. The authority offers fixed-rate loans to students who live in Massachusetts or attend school there.

This is just as students are about to head to school for the fall semester. No word yet on how many may decide not to go. This is more fallout from the mortgage crisis.

Ouch.

Kill all the Liberals

Apparently that's one of the things that motivated Jim David Adkisson to fire a shotgun into a Tennessee church. This is one way to deal with the problem of factions (not Madison's but he's dead and gone).

According to the affidavit requesting to search Adkisson's home, the suspect told investigators liberals should be killed because they were ruining the country. Adkisson also blamed Democrats for the country's decline, according to the affidavit.

"He felt that the Democrats had tied his country's hands in the war on terror and they had ruined every institution in America with the aid of major media outlets," the affidavit said. "Because he could not get to the leaders of the liberal movement ... he would then target those that had voted them into office."

The church he fired into, the Unitarian-Universalist Church, tends to swing to the left, and had declared itself to be "gay friendly" in its advertisements. CNN states that this may be prosecuted as a hate crime, but news sources seem to suggest Adkisson was just angry guy.

Now questions will be raised about whether his behavior has somehow been fueled by overheated ideological rhetoric. If so, it might be interesting to speculate about how culpable sources of this rhetoric might be for these actions. We just covered the concept of fighting words in 2301 and toyed with where the line might be drawn between speech that merely conveys a belief and speech that sets action in motion.

In the short term I can see introspection about whether the low quality of political speech in this country is to blame and ought to be modified, but the unworkability of any solution, along with the sheer enjoyment and ease of spewing hate will likely win out in the end. This is human nature after all.

This post from belief.net points out that the format of the internet itself--anonymous, brief, superficial--lends itself to childish superficiality. Perhaps technology is to blame.

Oversight: The politicized Judiciary

The Department of Justice Inspector General issued a report today alleging that the Bush administration deliberately used political and ideological leanings to determine whom to hire and fire. The House Judiciary issued a commentary on the report:

"Today's report describes ‘systematic’ violations of federal law by several former leaders of the Department of Justice," said Conyers. "Apparently, the political screening was so pervasive that even qualified Republican applicants were rejected from Department positions because they were ‘not Republican enough’ for Monica Goodling and others. The report also makes clear that the cost to our nation of these apparent crimes was severe, as qualified individuals were rejected for key positions in the fight against terrorism and other critical Department jobs for no reason other than political whim. The Report also indicates that Monica Goodling, Kyle Sampson, and Alberto Gonzales may have lied to the Congress about these matters. I have directed my staff to closely review this matter and to consider whether a criminal referral for perjury is needed."

Here is a link to the full report.

The Hill reports that Judiciary Committee Chair John Conyers may seek action against Alberto Gonzalez.

Freedom of the Press in Iraq

Apparently there is no such thing.

The Marines have successfully kicked out a photographer who has posted images of American war dead on his blog. There has been a long term effort to not duplicate the impact of the media on public opinion in Vietnam due to unlimited access to battle sites. Minimizing media access to the imagery of war is seen necessary to this effort.

Journalists say it is now harder, or harder than in the earlier years, to accompany troops in Iraq on combat missions. Even memorial services for killed soldiers, once routinely open, are increasingly off limits. Detainees were widely photographed in the early years of the war, but the Department of Defense, citing prisoners’ rights, has recently stopped that practice as well.

And while publishing photos of American dead is not barred under the “embed” rules in which journalists travel with military units, the Miller case underscores what is apparently one reality of the Iraq war: that doing so, even under the rules, can result in expulsion from covering the war with the military.

“It is absolutely censorship,” Mr. Miller said. “I took pictures of something they didn’t like, and they removed me. Deciding what I can and cannot document, I don’t see a clearer definition of censorship.”

The Marine Corps denied it was trying to place limits on the news media and said Mr. Miller broke embed regulations. Security is the issue, officials said.

“Specifically, Mr. Miller provided our enemy with an after-action report on the effectiveness of their attack and on the response procedures of U.S. and Iraqi forces,” said Lt. Col. Chris Hughes, a Marine spokesman.

Harris County Votes?

Does Harris County do a good enough job of registering voters? That seems to be the underlying question in the top story in today's Chron:

Harris County's roll of registered voters will hit 2 million for the Nov. 4 election, according to the voter registrar — a record high that should surpass the total for all of Iowa and at least 22 other states during an exciting presidential campaign.

But the local list also has triggered controversy, surprises and skepticism about who registers and how aggressively the county recruits, and rejects, potential new voters. Even the forecast of 2 million — made by voter registrar Paul Bettencourt, a Republican seeking re-election as tax assessor-collector — is in dispute.

For starters, 2 million citizens older than 17, in a county of roughly 4 million people, would represent only meager growth from the last presidential election here. The 2004 roll fell only 60,000 shy of 2 million.

On the other hand, the roll dropped to 1.8 million a year ago, due in part to Bettencourt's groundbreaking efforts under state and federal law to remove outmoded or improper registrations.

Now, consider what the voter roll shows about the record-shattering voter turnout for the county's March 4 presidential primaries. Those elections were preceded by several voter registration drives as Barack Obama and Hillary Rodham Clinton fought for the Democratic nomination and John McCain emerged as the GOP favorite.

But of the 407,102 voters in the Democratic contest, only 9,850 had never registered to vote in Harris County before this year, according to statistics developed for the Houston Chronicle by Bettencourt's staff. And of the 169,448 people who voted in the Republican primary, a mere 2,454 had never registered here.

The story suggests that the county aggressively removes voters from rolls, which leads to obvious questions about bias. High turnout tends to favor Democrats, county offices are dominated by Republicans. Are these factors related? Recall that one of the goals of the Progressives was to minimize the ability of transients and the poor to vote by making the process more difficult. This wouldn't be unusual.

Culberson and NASA

John Culberson, who represents U.S. House District 7, has harsh words for NASA:

"We need revolutionary change, a complete restructuring," Culberson told the Houston Chronicle. "NASA needs complete freedom to hire and fire based on performance, it needs to be driven by the scientists and the engineers, and it needs to be free of politics as much as possible."

The fourth-term lawmaker said he was "kicking around" a proposal designed to make NASA more like the National Science Foundation, an independent federal agency led by a director and a 24-member board appointed by the president.

Culberson, a member of the House Appropriations Committee, said that despite spending $156.5 billion over the past decade, NASA had surrendered "a 40-year advantage" in space exploration. He said the agency continues to rely on liquid-fueled rockets with technology dating back to "Robert Goddard-era rockets" in the 1920s.

"I have always been a zealous advocate for the space program," said Culberson, who dates his interest in the subject to a childhood telescope. "But the setbacks are inexcusable and maddening — all because the magnificent men and women scientists and engineers have been frustrated by the bureaucracy, waste and duplication at headquarters."

Nick Lampson, whose district contains NASA, came to its defense, as did a supporter who pointed back at Congress:

John M. Logsdon, director of the Space Policy Institute at George Washington University, challenged Culberson's claim that the nation had little to show for NASA's efforts over the past 50 years, adding that NASA had fulfilled what the White House and Congress requested and financed for decades.

"It's easy to beat up on them because they're at the end of the shuttle program and they've been given inadequate funding by the administration and Congress to move forward with the new program for manned space flight," Logsdon said.

Culberson's comments apparently were inspired by previous statements by Newt Gingrich such as the following:

I am for a dramatic increase in our efforts to reach out into space, but I am for doing virtually all of it outside of NASA through prizes and tax incentives. NASA is an aging, unimaginative, bureaucracy committed to over-engineering and risk-avoidance which is actually diverting resources from the achievements we need and stifling the entrepreneurial and risk-taking spirit necessary to lead in space exploration.

My hunch is that both Culberson and Lampson are buttering up separate constituencies. Lampson's is the existing bureaucratic constituency across I-45 in Clear Lake (and a total of 20,000 related workers in the Houston area), Culberson's is a potential private sector constituency who could take advantage of funding that would be redirected to the private sector. Typical ideological politics, nothing new to see.

The Chron story concludes with a statement that attests to NASA's ability to broaden its appeal across Congress:

Culberson emphasized that his proposal to revamp NASA's structure had not been drafted into legislation and that he had not yet solicited co-sponsors.

But prospects for passage of such a measure would difficult, given wide bipartisan support in Congress for NASA and a jam-packed election year congressional calendar.

Who Can Serve on a Grand Jury?

Grits for Breakfast has such a great post today I'm going to steal it completely. It has to do with which historical figures would not be able to serve on a Harris County Grand Jury--he says Jesus. Moses and the Apostle Paul:

Houston criminal defense attorney Mark Bennett says one question Harris County prosecutors are particularly fond of asking prospective jurors during voir dire is:

If we only present one witness, but based on that witness’s testimony you believe beyond a reasonable doubt that the defendant is guilty, can you convict him?After which, "The prosecutors then gleefully challenge, for cause, all of the jurors who say 'no.'

”In the comments I pointed out that the Bible, Old Testament and New, says no one should be convicted for any crime except on the testimony of “two or three” witnesses. Moses (Deut. 19:15), Jesus (Matt. 18:15-16), and the Apostle Paul (2 Corinthians 13:1) were the ones who laid down the “two or three” witnesses rule, so none of them could serve on a Harris County jury if they were alive today and honestly answered that question! The same goes for modern religious folk who believe as those men did. Further, I argued:

Even for those unaware of the biblical precedent, ... jurors know that anybody can make an error and that the decision before them is a serious one, while the ADA is engaging in gamesmanship at the expense of a fair jury.

Bottom line: The jurors struck are concerned about the possibility of convicting an innocent person. The prosecutors who ask the question are not.

A prosecutor in the comments took umbrage at Bennett's criticism, insisting that "just because it works and you don’t like it doesn’t make it unfair." What is meant, though, by "it works"?

Apparently that the question keeps people with values similar to Moses, Jesus, and St. Paul from ever participating on a Harris County jury. Heaven knows where that kind of thing could lead!

Aside from the point about the fairness of the justice system in Harris County it helps understand what parts of the justice system are--or in this case are not--based on biblical principles.

Policy Evaluation: Is the TAKS Test Making us Stupid?

That seems to be the implicit question asked in the following story from the Dallas Morning News.

Despite high TAKS test scores, students do poorly when asked to read a story and write three short response questions. Fewer then half of Dallas area students can do this adequately even though large percentages pass the TAKS test.

The reason may be that the TAKS is a multiple choice test test that does not measure comprehensive knowledge nor the ability to translate that knowledge logically and sensibly.

Some point blame at the current technological environment with its emphasis on short brief communication and the short attention spans it breeds. But given that school commonly teach to the test, are we under severe financial pressure to demonstrate performance, we might just as well look at the instruction that this environment creates. Don't we now reward short term attention spans and thereby encourage it?

Some educators and testing experts say the low scores reveal a troubling lack of critical thinking and communication skills.

"Can your kids identify and state a main idea? If not, you need to teach them strategies to think through the text," said Patricia Mathes, director of Southern Methodist University's Institute for Reading Research in Dallas. "The real issue is not waiting until high school to teach these skills. If we teach our kids well, they will do well on these tests."

But some classroom teachers are frustrated, saying they teach the material the way they've been trained. Scoring on that section is too tough, they say, and doesn't truly measure what students know.

"The methods we've been told to use fail when it comes to the short-answer test," Rockwall High School English teacher Melissa Nelson said. "We feel like we're banging our heads against the wall."

The teachers are doing what they should be doing given the testing regime in place. If you want to better result, change the tests. If the nature of testing matters, and I thin it does, the shift to longer answers is welcomed, but it comes --literally--with a price. These tests take more time to grade, and time means money. Multiple choice tests can be quickly graded with machines, ask me I know. As with so many things involving education, are we as a society willing to put the time and money into doing what must be done to adequately teach our youth?

Texas Bible Classes

Texas is in the process of figuring out how exactly to implement a law passed last legislative session that allowed school districts to offer an elective focusing on the Bible. The problem of course is doing so without violating the 1st Amendment.

People are free to exercise their religious beliefs as they choose--save for human sacrifices or other similar practices--but government cannot establish a church. This creates tension. People like the idea that they can use their public schools as venues for religious expression, but the classroom has historically been a place where governments establish, or impose, religious beliefs.
The bill was modified as it passed through the legislature in order to ensure that it focused on historical aspects of the document and steered clear of preaching. That's been the objective of the Texas Education Agency and the Attorney General's office as they determine how the bill can be converted into specific rules. Aside from the constitutional issues associated with the case, its a great case study of how laws get implemented.

Let's walk through the history, via available Houston Chronicle stories.

- The bill is introduced by Warren Chisum and considered in the House Education Committee.
- The bill passes the Texas Senate and is sent to the governor for a signature.
- The State Board of Education requests clarification about the bills language.
- The Attorney General states that the course passes Constitutional muster.
- The Chron editorializes that the standards are too loose, preaching may well result.

Here is a document from the Texas Education Agency site outlining hearings and providing links to other documents related to the establishment of a Bible based curriculum.

About FISA

Was Congress' decision to pass amendments to the Foreign Intelligence Surveillance Act, which gave telecom companies immunity from any laws they may have violated while carrying out requests by the Bush Administration, a further erosion of individual liberties or a necessary way to ensure our nation's security? Of course it could be both. The question is whether this erosion is reasonable, or if its a simple power grab on the part of an ambitious executive branch.

In essence the bill stops any court proceedings underway to punish the telecom companies for their actions, so consider this a legislative and executive check on the judiciary.

A key problems faced by republics is how to balance the maximum extent of liberty while also providing for security, which is the central task of any government. Republics have to continually wrestle with this dilemma, and this is what we are currently doing.

I have no answers, but we may wish to cover this issue in class. Here's some background:

- The bill summary from Thomas.
- Bill overview by GovTrack.
- Bill overview by OpenCongress.

The ACLU plans a lawsuit and lists the problems it sees with the bill. Here is a key complaint: [FISA] permits only minimal court oversight. The Foreign Intelligence Surveillance Court (FISA Court) only reviews general procedures for targeting and minimizing the use of information that is collected. The court may not know who, what or where will actually be tapped.

This is a 4th Amendment issue. The ability of the people to control the investigatory powers of government by ensuring that searches are limited by a warrant issued by the judiciary is seemingly negated when the president wants it to be negated. Is this an appropriate way to address a new kind of threat or the typical way that executives grab power? The irony is that this legislation was originally passed in the wake of abuses by the Nixon Administration when domestic spying focused on political organizations. The system was designed to allow for the secrecy necessary to investigate national security matters, but not domestic politics. The question asked is how do we know this restriction is still in place?

Central to this dispute is the role of the Foreign Intelligence Surveillance Court. This report prepared by the Congressional Research Service helps outline the court.

Conservatism: Crisis or Opportuntity?

For some time now conservatives have been bemoaning the state of their movement, but they also have an opportunity to rethink the movement and reorient it for the future. Much of this is happening within the walls of the American Enterprise Institute, which has been the source of conservative ideas since the movement achieved dominance three or so decades ago.

They are still in the process of figuring out what in fact happened to derail the movement:

“Now there’s the sense that the Republican Party is clearly on the defensive, and potentially heading for a disastrous election,” said Norman Ornstein, a longtime scholar at A.E.I. who specializes in legislative issues. “Even if John McCain wins, it’s not at all clear what that means in terms of ideas that conservatives have promoted. There is a division on what role we play in the world, what a smaller government means.”

For some on the right, the conservative decline is simply the result of veering away from the golden age of Ronald Reagan. Jonathan Rauch, a writer and a guest scholar at another Washington research organization, the Brookings Institution, said that many conservatives still believe that “Reagan got it right and the party has strayed too far.” He noted that the Heritage Foundation runs a feature on its Web site titled “What Would Reagan Do?”

For others, however, the nub of the problem is not deviance from the 1980s agenda but worshipful adherence to it. Mr. Frum is one of those who has undergone a conversion (or two). His book “Dead Right,” published in 1994, was a brisk catalog of Reagan’s failures (especially his failure to reduce the size of government). Then, after writing speeches for President Bush, Mr. Frum wrote “The Right Man,” in which he characterized President Bush’s leadership as “nothing short of superb.” But in his newest book, “Comeback: Conservatism That Can Win Again,” Mr. Frum confesses that his former boss has “led his party to the brink of disaster.”

This'll be interesting to watch. Conservatism has been an ongoing force in American politics since it's inception--they are the people who brought you the Constitution in its original form--so they are not going away, but they will be woodshedding for a while.

More on Habeas Corpus

The New York Times editorializes on an appellate court decision that may drastically expand the president;s ability to indefinitely curtail individuals detained on American soil.

The Bush administration has been a waging a fierce battle for the power to lock people up indefinitely simply on the president’s say-so. It scored a disturbing victory last week when a federal appeals court ruled that it could continue to detain Ali al-Marri, who has been held for more than five years as an enemy combatant. The decision gives the president sweeping power to deprive anyone — citizens as well as noncitizens — of their freedom. The Supreme Court should reverse this terrible ruling.

Mr. Marri, a citizen of Qatar legally residing in the United States, was initially arrested in his home in Peoria, Ill., on ordinary criminal charges, then seized and imprisoned by military authorities. The government, which says he has ties to Al Qaeda, designated him an enemy combatant, even though it never alleged that he was in an army or carried arms on a battlefield. He was held on the basis of extremely thin hearsay evidence.

Last year, a three-judge panel of the United States Court of Appeals for the Fourth Circuit, based in Richmond, Va., declared that the government could not hold Mr. Marri, or any other civilian, simply on the president’s orders. If it wanted to prosecute him, the court ruled, it could do so in the civilian court system.

But this decision was overturned in a complex decision in the 4th Circuit Court of Appeals. The question is whether a president's decision--or whims--may override the legal system.

. . . the full Fourth Circuit reversed the decision, and with a tangle of difficult-to-decipher opinions, upheld the government’s right to hold Mr. Marri indefinitely. The court ruled that Mr. Marri must be given greater rights to challenge his detention. But this part of the decision is weak, and he is unlikely to get the sort of procedural protections necessary to ensure that justice is done.

The implications are breathtaking. The designation “enemy combatant,” which should apply only to people captured on a battlefield, can now be applied to people detained inside the United States. Even though Mr. Marri is not an American citizen, the court’s reasoning appears to apply equally to citizens.

“Our colleagues hold that the president can order the military to seize from his home and indefinitely detain anyone in this country — including an American citizen — even though he has never affiliated with an enemy nation, fought alongside any nation’s armed forces, or borne arms against the United States anywhere in the world,” wrote Judge Diana Gribbon Motz.

At the moment this seems to be a marginal case, but how easy would it be for a president to declare anyone he chooses an enemy combatant and lock them up indefinitely? Think about what might happen following a 9/11 type episode. Is this the leading edge of a wedge expanding further the president's detention policies or a reasonable and limited response to an isolated incident?

Here's a link to the decisions: Al-Marri v Pucciarelli

A Liberal Scalia?

The Washington Post tells us this morning that this is the dream of liberal activists:

Ask some activists on the left the kind of Supreme Court justice they would like to see a President Obama appoint, and the name you hear most is the same justice they most often denounce.

They want their own Antonin Scalia. Or rather, an anti-Scalia, an individual who can easily articulate a liberal interpretation of the Constitution, offer a quick sound bite and be prepared to mix it up with conservative activists beyond the marble and red velvet of the Supreme Court.

We are accustomed to think of the Supreme Court as a bastion of liberalism, which was certainly the case in decades past, but concerted efforts by conservatives to reshape the court have largely been effective, only Democrats have nominated three justices in the past 40 years, and only two of the current groups. And each of the current justices, with the exception of Ruth Bader Ginsburg, was more conservative than the one they replaced and the results are now being felt in decisions that are pro-business and anti-civil rights. In fact, we are told, there are no real liberals along the lines of Warren, Blackmun and Marshall on the court at the moment. Only centrists who vote to the left and write marginally liberal decisions.

Liberal groups are hoping to replicate conservative efforts to turn the Supreme Court composition into an election issue. The two oldest justices are the two most liberal: 88 year old John Paul Stevens and 75 year old Ginsburg. Given the tight balance between the two sides, the next president has the chance to drastically transform the court.

The article suggests that the next president might break with recent tradition and shy away from nominating a reclusive judge to a more outgoing politician. This would not be a first:

There is a substantial list of justices who once held political office. Most famously, President Dwight D. Eisenhower made good on his promise of an appointment to his onetime rival, California governor Earl Warren.

But the jobs could hardly be more different -- the somewhat solitary pursuits of a justice versus the glad-handing and collaborative responsibilities of a politician. But someone who has been tested by campaigns for public office might be more comfortable in the public arena, argued Dawn Johnsen, a former Clinton administration official who now teaches law at Indiana University, who said there "is a desire to have justices talking to the American people beyond their opinions."

Racial Divide in Opinion Persists

A New York Times poll confirms that black and white America see the world in substantively different ways. This isn't news, but it does suggest that attitudes change very slowly. Unless of course the two populations have substantive reasons to see the world in different ways. That's a good topic for debate.

Nearly 60 percent of black respondents said race relations were generally bad, compared with 34 percent of whites. Four in 10 blacks say that there has been no progress in recent years in eliminating racial discrimination; fewer than 2 in 10 whites say the same thing. And about one-quarter of white respondents said they thought that too much had been made of racial barriers facing black people, while one-half of black respondents said not enough had been made of racial impediments faced by blacks.

The survey suggests that even as the nation crosses a racial threshold when it comes to politics — Mr. Obama, a Democrat, is the son of a black father from Kenya and a white mother from Kansas — many of the racial patterns in society remain unchanged in recent years.

Indeed, the poll showed markedly little change in the racial components of people’s daily lives since 2000, when The Times examined race relations in an extensive series of articles called “How Race Is Lived in America.”

As it was eight years ago, few Americans have regular contact with people of other races, and few say their own workplaces or their own neighborhoods are integrated. In this latest poll, over 40 percent of blacks said they believed they had been stopped by the police because of their race, the same figure as eight years ago; 7 percent of whites said the same thing.

Nearly 70 percent of blacks said they had encountered a specific instance of discrimination based on their race, compared with 62 percent in 2000; 26 percent of whites said they had been the victim of racial discrimination. (Over 50 percent of Hispanics said they had been the victim of racial discrimination.)

And when asked whether blacks or whites had a better chance of getting ahead in today’s society, 64 percent of black respondents said that whites did. That figure was slightly higher even than the 57 percent of blacks who said so in a 2000 poll by The Times. And the number of blacks who described racial conditions as generally bad in this survey was almost identical to poll responses in 2000 and 1990.

“Basically it’s the same old problem, the desire for power,” Macie Mitchell, a Pennsylvania Democrat from Erie County, who is black, said in a follow-up interview after participating in the poll. “People get so obsessed with power and don’t want to share it. There are people who are not used to blacks being on top.”

On Presidential Succession

Does our presidential succession process undermine effective governance and national security? Two members of the 9/11 commission say that it does and suggest that each party's candidate should be more closely tied into the outgoing administration and more up front about who they would appoint to their cabinets in order to streamline the transfer of power:

One of the observations of the 9/11 commission was that the deeply flawed presidential transition of 2000 and 2001 created a dangerous period of vulnerability.

As always, the crowd coming in was dismissive of the concerns of the crowd going out. There was a mismatch between the concerns of the Clinton national security team and those of the incoming Bush team. While there were briefings between the election and the swearing-in, there was no trust — and thus no effective dialogue — between the members of the two administrations.

In addition, President Bush took too long to set priorities and direction for his national-security team. This was a result partly of the prolonged battle over the 2000 election, but it also reflected a basic problem in how we populate our government agencies — we do so much too slowly. Neither nominations nor confirmations come fast enough.

The 9/11 commission worried that terrorists would take advantage of our weakness during transitions, just as Al Qaeda did when it attacked Madrid just before Spain’s elections in 2004.
The lessons learned from the Clinton-Bush transition should inform what the candidates and the president do right now. The only way for a new administration to make important decisions in a fully informed way is to organize the transition into office very differently. The campaigns of both John McCain and Barack Obama are reported to be compiling lists of potential national-security nominees to speed the confirmation process next year, but that is just the beginning of what needs to be done.

But one wonders whether narrow partisan concerns would trump the greater interest of effective policy making. It almost always does.

Rick Perry and Bo Pilgrim - Part 2

From the Chron:

Poultry producer Lonnie "Bo" Pilgrim spent more than $9,000 on airfare in June so Gov. Rick Perry could attend a news conference promoting a waiver from federal ethanol mandates that Pilgrim wants.

Perry requested the waiver from the federal Environmental Protection Agency in April after meeting with Pilgrim in March. The Houston Chronicle reported this month that six days after that March meeting, Pilgrim donated $100,000 to the Republican Governors Association, which Perry heads as chairman.

Pilgrim wants the ethanol waiver because he believes ethanol production is driving up the price of corn that he needs to feed his poultry. Pilgrim's Pride, based in Pittsburg, Texas, is the nation's largest producer of poultry products.

Perry has been an opponent of food-based ethanol production for some time, but he had not acted on requesting the waiver from federal mandates until after the meeting with Pilgrim.
Campaign finance reports released Tuesday showed Pilgrim paid the airfare for Perry and three aides to attend a June 24 news conference in Washington to promote the waiver request.

Now you know how to influence the governor. The story tells us that one of the governor's spokespeople stated that there was nothing unusual about this activity. Is that good news or bads news?

IndyMac

The failure of IndyMac (or seizure at least) the largest American bank to fail in years caused a rush on the bank as depositors sought to take their money out of the bank prior to the collapse. No word that any attempt was successful, so the next step is assistance by the FDIC (Federal Deposit Insurance Corporation) which was set up to handle such banking crises. The IndyMac website has a link to instructions for depositors from the FDIC on how to go about claiming funds.

The Federal Reserve System was set up to be a lender of last resort in the event of a financial crises that jeopardized the stability of the banking system, which were common in the 19th and early 20th centuries. Safe banks protect depositors as much as they protect the banks. But this system was not sufficient to either prevent the bank runs following the crises of 1933 nor compensate for the lost deposits. The Glass Steagell Act led to the creation of the FDIC
which provided limited protection for deposits. Now one is protected for $100,000 in deposits, and possibly more. It remains one of the primary achievements of the New Deal.

The question posed by the current crisis is whether the money set aside for reimbursements, $53 billion, is sufficient for what some predict will be as many as 150 bank failures in the coming months. The IndyMac failures will cost $4-8 billion, which must be recouped somehow.

Free Riding in Real Life

A real life example of free riding, one I've used hypothetically in class to explain why I don't assign group projects. From NYT's The Ethicist (in full--I hope it is ethical for me to do so):

A large portion of our grade for a course I am taking at a major business school is based upon group projects. One person on my team has taken an egregious free ride on the hard work of the rest of us. Most of us have already turned in our final papers, so telling the professor about this would have no practical purpose, but it might teach this guy a lesson. Rat him out? — K.F., OAKLAND, CALIF.

Rat away right away, not to teach the guy a lesson — that’s not your job — but to give your professor an honest account of how the project was accomplished. It is misleading to list this student among those who did the work if he did not. What’s more, your professor can forestall, or at least respond to, such problems only if he or she knows about them.

You should have spoken to your teacher when the problem first emerged. There may have been contingency plans for dealing with a feckless teammate. (Perhaps the plan was to let you go over to the free-rider’s apartment and swipe his stereo as compensation for your hard work.) I consulted a professor in an M.B.A. program who said, “The ground rules for dealing with free riders are also sometimes explicitly laid out — e.g., the free rider may be fired by an appropriate majority/supermajority of group members.” (He did not mention stereo-swiping.)

There is another possibility. Managers must sometimes cope with teams comprising workers and drones, the productive and the parasitic, the quick and the dead. (Deadish.) This assignment may have been conceived in part to teach you as much. That professor I spoke to concurred, saying, “One of the explicit benefits of working in groups is that it forces students to confront these and other management issues.” (Another consideration, according to my B-school expert: “The other major advantage of group projects is that it means less grading for professors.”)

UPDATE: K.F. did not go to the professor, deciding that his shiftless teammate had not harmed anyone enough to warrant it. K.F. received an A+ in the course.

Trouble to Come?

It may well be that lending isn't just tight, it's non existent:

The desperate worry over the health of huge financial institutions with country cousin names — Fannie Mae and Freddie Mac — reflects a reality that has reshaped major spheres of American life: the government has in recent months taken on an increasingly dominant role in assuring that Americans can buy a home or attend college.

Much of the private money that once surged into the mortgage industry has fled in a panicked horde, leaving most of the responsibility for financing American homes to the government-sponsored Fannie and Freddie.

Two years ago, when commercial banks were still jostling for fatter slices of the housing market, the share of outstanding mortgages Fannie and Freddie owned and guaranteed dipped below 40 percent, according to an analysis of Federal Reserve data by Moody’s Economy.com. By the first three months of this year, Fannie and Freddie were buying more than two-thirds of all new residential mortgages.

A similar trend is playing out in the realm of student loans. As commercial banks concluded that the business of lending to college students was no longer quite so profitable, the Bush administration promised in May to buy their federally guaranteed student loans, giving the banks capital to continue lending.

In short, in a nation that holds itself up as a citadel of free enterprise, the government has transformed from a reliable guarantor into effectively the only lender for millions of Americans engaged in the largest transactions of their lives.

Emails and History

Technology may be unkind to history, or our ability to hold onto it. From an NYT editorial:

After watching wholesale lots of the Bush administration’s most important e-mails go mysteriously missing, Congress is trying to legislate against any further damage to history. The secrecy-obsessed White House is, of course, threatening a veto — one more effort to deny Americans their rightful access to the truth about how their leaders govern or misgovern.

The House approved a measure last week that would require the National Archives to issue stronger standards for preserving e-mails and to aggressively inspect whether an administration is in compliance. The Archives needs spine stiffening. Congressional investigators found that its staff backed off from inspections of e-mail storage after the Bush administration took office.

We fear we may never find out all that has gone missing in this administration, although we urge Congressional investigators to keep trying. What we do know is that the Bush gaps of missing e-mails run into hundreds of thousands during some of the most sensitive political moments. Key gaps coincide with the lead-up to the Iraq war — and the White House’s manipulation of intelligence — as well as the destruction of videotapes of C.I.A. interrogations and the outing of the C.I.A. operative Valerie Plame Wilson.

Missing e-mails include entire blank days at the offices of President Bush and Vice President Cheney. Also mysteriously wiped from the record are e-mails from Karl Rove, the president’s political guru, and dozens of other White House workers who improperly conducted government business on Republican Party e-mail accounts. The White House now claims that nothing has been lost, though officials previously acknowledged large-scale purging, claiming they were accidental.

An administration with nothing to fear from the truth would be in the forefront of protecting the historical record. The Senate must stand with the House and ensure that at least future administrations are stopped from doing wholesale damage to history.

I've always thought that one of the great unspoken tragedies of Watergate was the fact that no future president--in his or her right mind--would ever tape record what happened in the Oval Office. We know things about the internal workings of the Johnson and Nixon White House that we will never know about any other because no one wants that type of evidence on hand.

McCain as TR

In a New York Times interview, John McCain says he will model his presidency on Theodore Roosevelt's:

He said government should play an important role in areas like addressing climate change, regulating campaign finance and taking care of “those in America who cannot take care of themselves.”

“I count myself as a conservative Republican, yet I view it to a large degree in the Theodore Roosevelt mold,” Mr. McCain said, referring to Roosevelt’s reputation for reform, environmentalism and tough foreign policy.

The interview helps put McCain's effort to appeal to moderates (his swing to the center) in context:

The views expressed by Mr. McCain in the 45-minute interview here Friday illustrated the challenge the probable Republican presidential nominee faces as he tries to navigate the sensibilities of his party’s conservative base and those of the moderate and independent voters he needs to defeat Senator Barack Obama, his Democratic rival.

His responses suggested that he was basically in sync with his party’s conservative core but was not always willing to use the power of the federal government to impose those values. He also expressed a willingness to deploy government power and influence where free-market purists might hesitate to do so and to consider unleashing military force for moral reasons.

In recent weeks, Mr. McCain has left many Republicans unsettled about his ideological bearings by toggling between reliably conservative issues like support for gun owners’ rights and an emphasis on centrist messages like his willingness to tackle global warming and provide a path to citizenship for illegal immigrants.

Those tensions were apparent in the interview as well, as Mr. McCain offered a variety of answers — sometimes nuanced in their phrasing, sometimes not — about his views on social issues.

It worked for TR, but Republicans distanced themselves from him long ago. It may not work for McCain.

Albanian Blood Feuds

One of the purposes of the constitutional system, so says the Preamble, is to establish justice. Madison tells us in Fed 10 that "No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity." So a neutral third party is necessary in order to ensure that just outcomes occur whenever disputes exist in society.

Still, we like the allure of settling things ourselves. That's what we seem to like about Joe Horn. He saw a problem and did not wait for anyone to come to his assistance, he settled the issue himself. Sounds nice, but the NYT has a story on what can happen to a country, Albania to be exact, when an entire society's legal system is based on vigilantism.

Under the Kanun, an Albanian code of behavior that has been passed on for more than 500 years, “blood must be paid with blood,” with a victim’s family authorized to avenge a slaying by killing any of the killer’s male relatives. The Kanun’s influence is waning, but it served as the country’s constitution for centuries, with rules governing a variety of issues including property ownership, marriage and murder.

The National Reconciliation Committee, an Albanian nonprofit organization that works to eliminate the practice of blood feuds, estimates that 20,000 people have been ensnared by blood feuds since they resurfaced after the collapse of Communism in 1991, with 9,500 people killed and nearly 1,000 children deprived of schooling because they are locked indoors.

By tradition, any man old enough to wield a hunting rifle is considered a fair target for vengeance, making 17 male members of Christian’s family vulnerable. They, too, are stuck in their homes. The sole restriction is that the boundaries of the family home must not be breached. Women and children also have immunity, though some, like Christian, who physically matured at an early age, begin their confinement as boys. Family members of the victim are usually the avengers, though some families outsource the killing to professional contract killers.

Blood feuds have been prevalent in other societies, like mafia vendettas in southern Italy and retaliatory violence between Shiite and Sunni families in Iraq. Appalachian bootleggers in the 19th century also took up arms to defend family honor.

But the phenomenon has been particularly pronounced in Albania, a desperately poor country that is struggling to uphold the rule of law after decades of Stalinist dictatorship.

Blood feuds all but disappeared here during the 40-year rule of Enver Hoxha, Albania’s Communist dictator, who outlawed the practice, sometimes burying alive those who disobeyed in the coffins of their victims. But legal experts in Albania say the feuds erupted again after the fall of Communism ushered in a new period of lawlessness.
Nearly a thousand men involved in feuds have escaped abroad, some of them applying for asylum. But even then, dozens of people have been hunted down outside Albania and killed by avenging families.

As a consequence, all males in families marked for killing stay indoors, meaning no productivity.

Issue Celebrities

Does celebrity endorsement of a policy matter?

About that Photo

While discussing the Zimbabwe elections, and all the accompanying violence I mentioned a horrific photograph in the New York Times of an 11 month old child with her legs in a cast. Her legs had been apparently broken by government forces in order to force the mother to reveal the whereabouts of her husband who worked with the opposition.

Turns out the story was wrong.

A child with bandaged legs who appeared in a front-page New York Times photo and reportedly had them broken by violence in Zimbabwe was actually suffering from club feet, according to an editor's note published Wednesday that said his mother had lied to the paper.

The note also revealed that the Times discovered the child's true affliction when he was taken by the paper to a local medical center for help."

A front-page picture caption on June 26 describing an 11-month-old boy whose legs were in casts stated that his legs were broken and that his mother said the injuries were caused by an episode of state-sponsored violence in Zimbabwe," the note, on the correction's page, read in part. "

After the picture and an accompanying article that also described the injuries were published, The New York Times took the boy to a medical clinic in Harare for help. When the casts were removed, medical workers there discovered the boy had club feet. Doctors said on Monday that X-rays of the baby’s legs showed no evidence of bone fractures."

The note went on to explain that the child's mother eventually admitted her deception, stating "she had exaggerated injuries she said had been sustained by the boy during an attack by governing party militia.

In multiple interviews, she said that youths backing President Robert Mugabe had thrown her son to the concrete floor — and she still says that event did occur."The mother, however, later told The Times that the boy had been wearing casts even at the time of the attack, as part of a treatment he had received for his club feet at a different medical facility. She said she misrepresented the boy’s injuries to generate help because she could not afford corrective surgery for the boy."

Still a tragedy, just a different wrong kind.

About Jesse Helms

Time is slowly taking away the characters who embodied the white southern shift from the Democrats to the Republican Party. Now it's Jesse Helms. His passing is being cheered by some on the left, Jeff Jacoby at the Boston Globe argues that his record was more nuanced:

Helms came to prominence as a foe of desegregation. "He battled as hard as any of them," editorialized the conservative National Review in 2001, "a shameful legacy, of which he was never ashamed." In those days Helms was a Democrat, as were most Southern segregationists. But by the time he entered Congress in 1973, he had changed both his party and his mind. Far from using his office to roll back civil rights, argued Walter Russell Mead, a noted scholar at the Council on Foreign Relations, Helms "deserves to be remembered as one of a handful of men who brought white Southern conservatives into a new era of race relations."

Mead, who grew up in the South, recalled listening as a boy to Helms's "anti-integration, anti-Martin Luther King commentaries on WRAL-TV." But once the battle was over and the civil rights laws were passed, Mead wrote years later, Helms did something "very revolutionary for Southern white populists: He accepted the laws and obeyed them." He shunned violence, hired black aides, and provided constituent services without regard to race. Instead of leading his followers into resistance, Helms "disciplined and tamed the segregationist South," prodding it "into grudging acceptance of the new racial order."

Yet rather than hail his statesmanship and acknowledge his contribution to the civil rights revolution, liberals marked his death by reaching for pejoratives. Helms's sin was not racism; it was his tenacious political incorrectness. Had he been willing to tack left on other issues, his racial wrongs would have been forgiven.

Consider, for example, the treatment meted out to Helms's senior colleague, Sam Ervin. He was beloved by the left notwithstanding his defense of segregation and his vote against elevating Thurgood Marshall to the Supreme Court. When Ervin died, The Washington Post's

Mead, who grew up in the South, recalled listening as a boy to Helms's "anti-integration, anti-Martin Luther King commentaries on WRAL-TV." But once the battle was over and the civil rights laws were passed, Mead wrote years later, Helms did something "very revolutionary for Southern white populists: He accepted the laws and obeyed them." He shunned violence, hired black aides, and provided constituent services without regard to race. Instead of leading his followers into resistance, Helms "disciplined and tamed the segregationist South," prodding it "into grudging acceptance of the new racial order."
Yet rather than hail his statesmanship and acknowledge his contribution to the civil rights revolution, liberals marked his death by reaching for pejoratives. Helms's sin was not racism; it was his tenacious political incorrectness. Had he been willing to tack left on other issues, his racial wrongs would have been forgiven.

Consider, for example, the treatment meted out to Helms's senior colleague, Sam Ervin. He was beloved by the left notwithstanding his defense of segregation and his vote against elevating Thurgood Marshall to the Supreme Court. When Ervin died, The Washington Post's front-page obituary began by saluting him as a "hero to many" for his role in the Watergate hearings. His opposition to nearly every civil-rights bill of his career wasn't mentioned until the 24th paragraph - of a 25-paragraph obituary.

The success of democracy rests on the ability of people to admit defeat and work within the framework established by the process. Focus battles elsewhere if necessary, but let your adversaries win if they do so legitimately (Here's a different take). If this analysis has merit, perhaps that is Helm's legacy. If so, it's a worthy one.

Executive Privilege: Rove Refuses to Testify Before Congress

From ABC News:

Former White House adviser Karl Rove defied a congressional subpoena and refused to testify Thursday about allegations of political pressure at the Justice Department, including whether he influenced the prosecution of a former Democratic governor of Alabama.

Rep. Linda Sanchez, chairman of a House subcommittee, ruled with backing from fellow Democrats on the panel that Rove was breaking the law by refusing to cooperate — perhaps the first step toward holding him in contempt of Congress.

The White House has cited executive privilege as a reason he and others who serve or served in the administration should not testify, arguing that internal administration communications are confidential and that Congress cannot compel officials to testify. Rove says he is bound to follow the White House's guidance, although he has offered to answer questions specifically on the Siegelman case — but only with no transcript taken and not under oath.

Click here for Sanchez's statement in response.

FM 1960 and Unregulated Growth

Houston is famous for its free market approach to growth, but a recent study by the Urban Land Institute suggests that narrow market decisions may be the reason for recent declines in property values and the general quality of life around FM 1960 north of town. From the Chron:

Thirty-five years ago it was one of the Houston area's most desirable destinations, offering spacious houses, good public schools and freedom from the noise and crowds of urban life.

But age has not been kind to the FM 1960 corridor in northwest Harris County, where vacant strip centers and declining home prices are among concerns that have prompted a community group to organize a revitalization campaign.

The problems affecting Houston's aging suburban communities drew the attention of a panel of national experts from the Urban Land Institute, a nonprofit real estate organization, who studied the Houston region's unique growth patterns earlier this year.

In a report being presented today, the experts call on local leaders to use transportation funds to guide growth into compact, interconnected urban centers, rather than isolated subdivisions sprawling across the region's dwindling open spaces.

The Houston-Galveston Area Council, which allocates billions of dollars in federal transportation funds, should support projects that reflect the vision supported by almost all local leaders the authors interviewed during their Houston visit in February, the report says.

This vision includes connecting growth centers through roads, rails and trail; promoting walkable neighborhoods where people live close to where they work and shop; and encouraging voluntary, market-based standards for high-quality developments.

The FM 1960 corridor, in contrast, reflects what happens when developers throw up subdivisions wherever they can make a deal to buy land served by a county road, said Roger Galatas, the chief executive of a real estate consulting business. Galatas is also a board member of the nonprofit Center for Houston's Future, which commissioned the Urban Land Institute report.

The area's design, common to many American suburbs, is characterized by residential neighborhoods full of dead-end streets and cul-de-sacs to discourage cut-through traffic, forcing residents to use the adjacent thoroughfare even for short trips to a shop or a restaurant.

"At one time, that was the place to move to," Galatas said. "But as more developments occurred that were not connected to each other, they built rather ugly retail centers that took advantage of the traffic and created more traffic. People started moving away, and you've got declining home values, empty retail centers and a declining tax base. The only thing still functioning is a very wide strip of concrete called FM 1960."

. . .

In addition, rising gasoline prices and growing frustration with long commutes to distant jobs is leading more developers and builders to realize that a different approach would benefit their bottom line as well as community needs, leaders of the effort said.

"I think we are beginning to see enlightened self-interest take hold in the business community," said Jason L. Stuart, executive director of the ULI's Houston chapter, in a meeting Wednesday with the Houston Chronicle editorial board.

Harris County Judge Ed Emmett said he sees some merit in the idea of using transportation funding to guide growth. But some decisions will always have to be reactive rather than proactive, since people decide where to live based on school quality and other factors besides just transportation, Emmett said.

Joshua Sanders, executive director of Houstonians for Responsible Growth, a real estate group formed last year to limit local regulations on development, said the Houston region's traditional approach has worked well.

"We believe that the market should determine growth with government supporting consumer demand — not the other way around," Sanders said.

The ULI report is sprinkled with favorable references to the Houston area's low cost of living and its traditional preference for market-based rather than government-imposed solutions to land-use problems.

But this approach, the authors say, has limits, and Houston's leaders can't assume that the economic conditions so favorable to its energy-based economy now will continue indefinitely.

Once again, it seems like a leading factor in a change in mentality is the pocketbook, specifically the cost of a gallon of gasoline.

Fish on Heller

Stanley Fish weighs in on DC v. Heller and states that the big winner is the doctrine of intentionalism, that is that judges and justices must look to the intent of the framers of the Constitution when determining what the text of the Constitution means. The problem is that different people can interpret that same text in different ways, so the method does nothing to resolve disputes about how to decide cases. This dispute underlies the conflict over what the framers intended the Second Amendment to mean:

What are the justices arguing about? A lot – the meaning of words, the significance of documents contemporary to the framing of the amendment, debates at constitutional conventions, regulations adopted or not adopted by various states, the Court’s own precedents – but basically the argument is about what the framers had in mind. As Justice Antonin Scalia, writing for the majority, observes, “The two sides in the case have set out very different interpretations of the amendment.”

But the two sides do not proceed from different theories of interpretation. Both agree that the task is to read the amendment in the light of the purpose the framers would have had in writing it. They disagree about what that purpose was, and the materials they cite are meant to establish a purpose so firmly that in the light of it the words of the amendment will have one and only one obvious meaning.

For Scalia, that meaning is that Americans have “an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” For Justice John Paul Stevens, the Second Amendment “was adopted to protect the right of the people of each of the several states to maintain a well-regulated militia,” and he finds no “evidence supporting the view that the amendment was intended to limit the power of Congress to regulate the civilian uses of weapons.”

The evidence that might satisfy Stevens will not be found in the amendment itself, for as the opinions amply demonstrate, the 27 words can be made to bear either interpretation. Does the first clause of the amendment govern the second, propositional, clause and constrain its meaning (it is only in relation to the desire to maintain a healthy militia that the right to bear arms is asserted)? Or does the first clause only establish a general, pre-existent condition that does not direct the application of the second?

Scalia, who holds the latter view, declares that “ a prefatory clause does not limit or expand the scope of the operative clause.” But in fact it sometimes does and it sometimes doesn’t. A formal, grammatical analysis will no more settle the matter than will a lexical analysis. Only by putting a background intention firmly in place can one stabilize a text that (like all texts) varies with the purpose assigned to it. That is why each side hears the other’s interpretation as “grotesque” or “strained.” Reading within different assumptions of the framers’ intention, they see different texts and cannot understand how anyone could miss what is to each of them so differently clear. Scalia confidently concludes that nothing in the Court’s precedents “forecloses our adoption of the original understanding of the Second Amendment,” and he is sure he knows what that understanding was.

Stevens just as strongly believes that the evidence he marshals “sheds revelatory light on the purpose of the amendment” and that he too knows what that purpose (and therefore the amendment’s meaning ) was. And yet, while the two jurists come to different interpretive conclusions, they are playing the same interpretive game, the game of trying to figure out what the authors of the amendment intended by its words.

For a large part of his separate dissenting opinion, Justice Stephen G. Breyer seems to be playing another game. He is less concerned with intention and purpose than with the problems faced by crime-ridden urban areas. His question, at least at first, is not How can we be true to the framers’ intention? but How can we read the amendment in a way that furthers our efforts to deal with a serious social problem? He wants to focus on “the practicalities, the statute’s rationale, the problems that called it into being, its relationship to those objectives – in a word, the details.” He identifies as the statute’s “basic objective” the saving of lives and he cites statistics that establish, he believes, a strong correlation between the availability of hand guns and crime. Handguns, he observes, “are involved in a majority of firearms deaths and injuries in the United States.” And they are also, he declares, “a very popular weapon among criminals.” He puts particular weight on a report from a congressional committee that found handguns “to have a particularly strong link to undesirable activities in the District’s exclusively urban environment.”

So does this conflict bode well or ill for our faith in the ability of the Supreme Court to do its job? My two cents: it is nonsense to think that a document debated over months and years and produced by multiple individuals has a single underlying meaning. The internal conflicts within the document are its key strength. The idea that one meaning, and one meaning only, exists plays into judicial arrogance: "the Constitution means what I say it means because I can determine its true meaning."

Heady--if childish--stuff.

Lurching to the Left?

First Obama now McCain.

Slate highlights a Los Angeles Times story on McCain's attempt to appeal to Latino voters, which includes muddying the waters on immigration. Is he countering Obama's move to the center with one of his own?

Although McCain spent much of the primary campaign assuring Republicans that his priority in immigration policy would center on securing the border with Mexico, he's now singing a different tune. Mindful of the growing importance of the Latino vote in swing states, as well as the fact that Barack Obama has a strong lead with that group of voters, McCain is now espousing "a message that gives equal weight to helping employers and immigrant workers and their families," says the LAT. In new ads, McCain says that dealing with the needs of immigrants is "as important" as securing the border. Although he never comes out and says he wants to create a path to citizenship for illegal immigrants, "his subtle language matches that of legalization advocates," notes the LAT.

And what of illegal immigration anyway? Has $4 gasoline pushed it off the front page?

Lurching to the Right

That's what Bob Herbert calls Obama's effort to reposition himself to the center in order to enhance his electoral prospects this November.

There's nothing new in the effort, but Herbert seems to have hoped Obama would have behaved differently:

Only an idiot would think or hope that a politician going through the crucible of a presidential campaign could hold fast to every position, steer clear of the stumbling blocks of nuance and never make a mistake. But Barack Obama went out of his way to create the impression that he was a new kind of political leader — more honest, less cynical and less relentlessly calculating than most.

You would be able to listen to him without worrying about what the meaning of “is” is.
This is why so many of Senator Obama’s strongest supporters are uneasy, upset, dismayed and even angry at the candidate who is now emerging in the bright light of summer.

One issue or another might not have made much difference. Tacking toward the center in a general election is as common as kissing babies in a campaign, and lord knows the Democrats need to expand their coalition.

But Senator Obama is not just tacking gently toward the center. He’s lurching right when it suits him, and he’s zigging with the kind of reckless abandon that’s guaranteed to cause disillusion, if not whiplash.

So there he was in Zanesville, Ohio, pandering to evangelicals by promising not just to maintain the Bush program of investing taxpayer dollars in religious-based initiatives, but to expand it. Separation of church and state? Forget about it.

And there he was, in the midst of an election campaign in which the makeup of the Supreme Court is as important as it has ever been, agreeing with Justices Antonin Scalia and Clarence Thomas that the death penalty could be imposed for crimes other than murder. What was the man thinking?

He's thinking he wants to win of course. Herbert believes Obama is taking his base for granted, but that's more a product of our electoral system than a deliberate choice Obama, or any candidate, makes.