"Clause" not "laws." Transcripts of Thursday's debate get a word wrong in a key spot that seems to be making some people think John Kerry flip-flopped in his opinion about whether the Defense of Marriage Act is unconstitutional. Zachary Roth at CJR Campaign Desk calls attention to the place in the debate where Ron Brownstein of the LA Times questioned Kerry:

Brownstein, asked: "... if the Defense of Marriage Act is unconstitutional, isn't President Bush right, that the only way to guarantee that no state has to recognize a gay marriage performed in any other state is a federal constitutional amendment?"

Kerry answered, "... I think, under the full faith and credit laws, that I was incorrect in that statement. I think, in fact, that no state has to recognize something that is against their public policy."

Roth accuses AP writer Nedra Pickler of misunderstanding Kerry. Pickler wrote:

[Rothstein] asked the senator why he had opposed legislation in 1996 that would have allowed states to deny such recognition.

Directly contradicting a claim made by Bush, Kerry and Edwards both said the Constitution does not require states to recognize gay marriage licenses granted elsewhere in the country.

Roth's criticism goes like this:

Kerry did say that, but not in response to a question about his 1996 vote on DOMA. In fact, that answer came in response to Brownstein's subsequent question, which was: "If the Defense of Marriage Act is unconstitutional, isn't President Bush right, that the only way to guarantee that no state has to recognize a gay marriage performed in any other state is a federal constitutional amendment?"

A reader of Pickler's piece would come away with the impression that Kerry answered Brownstein with a complete non sequitur. In fact, Kerry's responses were confusing, but did ultimately make logical sense, if you accept his admission that he now considers DOMA constitutional.

Really, I think that Roth is the one who's confused here, though it's completely understandable, because Kerry was being murkily concise, there was no decent follow-up question, there's a perplexing reference to an "incorrect ... statement," and the printed transcripts contain a mistake. Let me explain.

First, Kerry did not say "I think, under the full faith and credit laws, that I was incorrect in that statement." He said "I think, under the Full Faith and Credit Clause, that I was incorrect in that statement." I can verify that with utter certainty, thanks to TiVo.

The Full Faith and Credit Clause is part of the Constitution, the part that would be used to argue that the state was obligated to recognize marriages of other states. If, as many people believe, the Full Faith and Credit Clause in fact allows states to disregard marriages that offend their public policy, then the states already have the power that the proposed Federal Marriage Amendment purports to give them. DOMA is then superfluous, and so is the proposed amendment.

This means that Kerry could still have the position that DOMA is unconstitutional, and could coherently (though too briefly) be answering Rothstein's question about why the proposed amendment isn't needed. In this interpretation, Kerry's answer was responsive, and he hasn't flip-flopped, but he was not given the time to explain what he was talking about. And the incorrect transcript sure doesn't help!

In any case, the issue is far too complex to explain in a debate setting. (I once based a Constitutional Law exam on it.) If Kerry had actually tried to explain the law here, everyone would have complained that he was insufferably pedantic.

Reactionary animals. From "The Life of Pi," from a passage defending zoos:

If a man, boldest and most intelligent of creatures, won't wander from place to place, a stranger to all, beholden to none, why would an animal, which is by temperament far more conservative? For that is what animals are, conservative, one might even say reactionary. The smallest changes can upset them.They want things to be just so, day after day, month after month.

From the old Simon & Garfunkel song "At the Zoo":

Ourang-outangs are skeptical
Of changes in their cages ...
Zebras are reactionaries ...

Son of a post office worker. John Edwards never tires of saying that he is the son of a mill worker. Why not vary the theme occasionally and say that he's the son of a post office worker? Does the job your father did make you who you are, while the job your mother did is either a side note or the bare fact that you had a working mother? And of course, "working mother" still reads as deprivation, quite the opposite of "working father."

Edwards' official website, by the way, highlights his mother in terms of pie. No, not apple pie, as in the politician's favorite "mom-and-apple-pie." It's peanut butter pie. In fact, they'll send you one for $50.

Kerry's wrong about DNA and the death penalty. Asked in the California debate about his position on the death penalty, John Kerry served up this factoid:

[W]e have 111 people who have been now released from death row -- death row, let alone the rest of the prison system -- because of DNA evidence that showed they didn't commit the crime of which they were convicted.

The number 111 is (about) the number of death sentences overturned since 1973. But it's certainly not the number of persons shown by DNA evidence not to have committed the crime. According to the ACLU's website:

Although there has been much attention surrounding the use of DNA testing, only 13 death row inmates of 112 have been exonerated by use of DNA.

Here's what really happened (again according to the ACLU, which opposes the death penalty):

The vast majority of those exonerated were found innocent because someone came forward to confess committing the crime; key witness testimony was found to be illegitimate; or new evidence was found to support innocence.

Why are journalists, like Noam Sheiber at TNR, just repeating Kerry's factoid without checking its accuracy? Sheiber really should have taken two minutes to check the fact, because it played a big part in his comparison of Kerry to Edwards:

[O]n the death penalty, an issue that should have given Edwards an opportunity to highlight his cultural moderation, he got bogged down in vaguaries [sic] like "making our court system work" while Kerry cited the more than 100 people released from death row thanks to DNA evidence proving their innocence.

Finally, even when a conviction is overturned using DNA evidence, the DNA evidence doesn't necessarily "show[] they didn't commit the crime." It could very well simply be that without the DNA evidence that the prosecution relied on, there isn't sufficient evidence to convict. (Thus, the ACLU's use of words like "innocent" and "exonerated" are not accurate.)

UPDATE: Instapundit and CJR Campaign Desk are linking to this post. Still no word from Sheiber, though I've emailed him. Getting linked by Instapundit brought more visits to this blog in half a day than in the entire previous existence of this blog (that is, since January 14).

NOTE ADDED 5/24/07: I'm going back, rereading all my old posts to add labels. I just wanted to note that this is the first post of mine that got an Instapundit link.

Would Shakespeare really blow the new SAT? Some Princeton Review people talk about what it takes to ace the new essay section of the SAT.

To receive a high score a student should write a long essay of three or more paragraphs, with each paragraph containing topic and concluding sentences and at least one sentence that includes the words "for example." Whenever possible the student should use polysyllabic words where shorter, clearer words would suffice. The SAT essay will not be a place to take rhetorical chances. Flair will win no points; the highest-scoring essays will be earnest, long-winded, and predictable.

They then proceed to analyze writing samples by Hemingway, Shakespeare, Gertrude Stein (who does particularly badly), and the Unabomber. Of course, the Unabomber's writing style is what the "holistic" graders at the SAT will be looking for. Very amusing, but should we worry that something is terribly wrong with the test?

Some high school teachers will pick up extra pay doing this grading, which is nice for them. Should we see them as dreary drudges, blind to the creativity of the Shakespeares and Hemingways who are taking the test? Please. If there is really a Shakespeare/Hemingway in the mix, he's sharp enough to find and absorb the Princeton Review's advice on how to maximize your writing score and sane and focused enough to easily crank out the requisite material. Anyone who wrote out an "essay" like that Shakespeare speech or that Gertrude Stein passage on the SAT test would be incompetent. Shakespeare and Stein weren't crazy--they knew where they were and what they were doing at any given time. I think they'd notice--perhaps with the sublime awareness of the true artist--that they were taking the SAT.

UPDATE: Sorry about the bad link that was here earlier. It should work now.

The truly principled.

Nice going, Cliff.

UPDATE: Play suspended due to inclement weather--in Tucson! I wonder what that's like. Anyway, Cliff is 7 under par and tied for 15th, 14 holes into the second round. Good luck!

Women's Army Corps Song Book. I've written about this book before and said I wanted to scan the pictures, but here's a website where someone has done that. You can get a sense of how charming the line drawings are, though they are reduced in size here and don't look as crisp as in the actual book. My copy, which was my mother's, is in better condition that the one scanned here. There's only a 17 on that page's hitometer, so go over and hit that page, please. You can click on the links and get to song lyrics, like this from the WAC version of "We're In the Army Now":

We'll stand Reveille scantilly clad,
Wearing cotton is the latest fad,
We don't care, we'll show them how
We're in the Army now.

Who would have thought the words "scantilly clad" (misspelling in original) would appear in an official government military song? And to think that wearing cotton could have been perceived as a hardship!

"Vile and vicious and hateful." Rosie O'Donnell gives this reason for going to San Francisco to marry her female partner:

"We were both just trying to come here after the sitting president said the vile and vicious and hateful comments he did on Tuesday and inspired myself and my brand-new wife to fly here this morning."

Quite aside from how it sounds to cite hostility to President Bush as your reason to marry or, more specifically, whether the gay marriage cause is helped by presenting it as a political protest, is it really necessary to tar supporters of the Federal Marriage Amendment this way? It was only two years ago that O'Donnell first publicly said that she was gay. How fast can you expect social progress to take place? Only last summer, the Supreme Court withdrew the power to make homosexual sodomy a crime, and now, already, we are asked to think people are "vile and vicious and hateful" because they want to restrict marriage to different sex couples? It was only a couple months ago that Howard Dean was being praised for instituting civil unions in Vermont, while specifically reserving marriage for heterosexual couples.

The President Bush's statement this week takes a similiar approach to Dean's (albeit by constitutional amendment):

The amendment should fully protect marriage, while leaving the state legislatures free to make their own choices in defining legal arrangements other than marriage.

America's a free society which limits the role of government in the lives of our citizens. This commitment of freedom, however, does not require the redefinition of one of our most basic social institutions.

Our government should respect every person and protect the institution of marriage. There is no contradiction between these responsibilities.

We should also conduct this difficult debate in a matter worthy of our country, without bitterness or anger.

In all that lies ahead, let us match strong convictions with kindness and good will and decency.

Now that is portrayed as "vile and vicious and hateful"? Supporters of gay marriage would do well to show some understanding for the feelings and beliefs of the people they are trying to persuade. The sense of alarm about the proposed amendment is understandable, though unwarranted, but it is counterproductive to become overheated and engage in this kind of inflammatory rhetoric. The light of reason is on your side: why act as if you don't think it is?

Hair on water, indivisibility, and Amy as the winner. Prof. Yin has a nice post on last night's The Apprentice. He doesn't like the idea of drinking from a bottle that has Trump-hair on it. Yeah, come to think about it, hair and drinking water are a horrible combination. And a picture of Trump is inherently (in-hair-ently) a picture that draws attention to hair. And hair in its most loathsome form, I might add.

Prof. Yin also notes that "Kwame was non-existent in the episode." Maybe he's just being edited out, but Kwame thus far has been a completely flying-under-the-radar type. That can only work so long. Speaking of invisibility, did you notice that in the boardroom, Bill complained about feeling "indivisible"? Maybe Bill has liberty and justice for all.

I note that Entertainment Weekly is certain that the ultimate winner will be Amy. (This link might not work if you're not fool enough to subscribe to EW, as I am.) Here's the reasoning:

Amy will win. Period. End of discussion. Case closed. ... You see, unlike self-absorbed Omarosa, she doesn't stir up controversy by feigning headaches or by flapping her trap at inappropriate times. Unlike Ereka and Nick, she never stresses, never shows emotion, and never flails under pressure. And in case you missed it, unlike the rest of her loft-mates, Amy has completely avoided the boardroom. ...

[E]ven if Amy were on the losing side for once, I seriously doubt that any of her teammates would have strong enough reason to have her face the dreaded Donald. In fact, hey, while I'm at it, I am willing to place yet another bet -- that the Protégés would keep Amy around even she completely sucked at a task (ha, like that will ever happen!).

Why, you ask? Well, because of her wonderfully smooth patience when dealing with Omarosa. ...

Amy is quite beautiful too. She reminds me of Sharon Stone.

The height of informercialism. The Apprentice reached a new summit in loathsome informercialism last night as the entire show served to introduce the entirely ridiculous product Trump Ice. It's just water, but somehow it's ice, even though it's not frozen, because ice is at least a type of water, though not the type found in the bottle, and ice is a slang term for diamonds, and, you know, diamonds are expensive and Trump is very rich, so it all makes some kind of sense, doesn't it? Who wants to drink water from a bottle with a picture of Donald Trump on it? His face doesn't exactly convey the idea of clean and refreshing.

But aside from that, it was a pretty good show last night. I marvel at the photography and the editing. I used TiVo to go back and study the key scenes of the two characters who were in the running for getting fired and these were beautifully done, with the chess pieces looming in the foreground in front of the calculating Nick and the People Mural suggesting the emotionalism of Ereka. Carefully watch the segment of the show where the contestants are performing the task. The editors know who the bottom three will be and who will lose and will craftily present key scenes to demonstrate the problem Trump will ultimately base his decision on. It will not jump out at you on first viewing, but if you go back, knowing who's going to be fired, you will see all the information was right there in the edit. So, watching the show is like reading a mystery novel.

The King of the Offbeat Interruption. Larry King brought his distinctive style to the debate last night. I found this one-two interruption especially amusing:

KUCINICH: I agree with my friend John Edwards about we need to do something about poverty. And that's why I'd like you to join me in this proposal to have a universal single-payer, not-for-profit health care system, because that would lift tens of millions of Americans out of poverty. And, Larry...



KING: By the way, Harry Truman proposed that in 1948.



KUCINICH: Well, and you know what? John Conyers and I introduced the bill in this Congress. And that would provide all coverage for everyone, all medically necessary procedures, plus vision care, dental care, mental health care...



KING: In other words, socialism?



KUCINICH: ... long-term care. Wait a minute. You know what? What we have now, Larry, what we have now, what we have now, Larry, is predatory capitalism which makes of the American people a cash crop for the insurance companies and the pharmaceutical companies.

Did Kucinich say "Larry" enough? It seems that Larry is always there ready to pounce--possible tiger influence noted--with one of his Larry-isms and needs to be fended off with consistent acknowledgement.



I was also amused by the way camera shots of Kerry and Edwards often included the outstretched, wizened hand of Larry King. King rules!

Sleep, lifeboat, buzzwords. Limping through the last days of my (horrors!) cold, I felt overwhelmed by fatigue at 7:30 pm last night. Knowing I'd never be able to sleep through the night, I went to bed anyway. I was listening to the final disc of "The Life of Pi," and fell asleep, only to wake, predictably, at 10 pm. I listened to the disc again, the fabulous ending to the story. I can't think of a novel I've enjoyed more, even though I know I've missed slices of it, by sleeping through the middle and ends of each of the nine discs, then haphazardly trying to skip ahead to the missed parts. I was captivated enough by the story to keep moving to the next disc, even though I knew I'd hadn't heard every word of its predecessor. What I need now is a nice car trip, so I can listen to all nine discs straight through. Anyway, that is surely a book to reread (to relisten to).

What could I do at 11 pm but get up and watch TV? I went downstairs, and one of my sons was in the middle of watching the big Democratic candidates debate, so I started watching, but not with my mind in the usual place where it would be if I had been awake all day, planning to watch the debate, and watching it from the beginning. Jumping in in the middle and fresh from sleeping and picturing tigers and lifeboats, I couldn't engage with the debate normally. I just noticed the buzzwords like "jobs" and "outsourcing" floating in a sea of verbiage. I couldn't help thinking, they don't really have any plans or solutions. Most of these words are just there to make a place to put the key words that are said not because the candidates really have anything they can do but because they think that these are the words that, implanted in the minds of voters, tend to make them feel like voting for a Democrat.

Vogue word: robust. Today, while sitting through a paper presentation, complete with comments from the audience, I noticed how often lawprofs use the word "robust." We're always looking for a "robust" version of rights and speculating about what the "robust" enforcement of some notion would be like or what a court would do if it genuinely wanted the "robust" protection of something. Where did that come from?

If you look at law journals, from the entire year of 1983, you'll find only 74 articles using that word (typical usage: "robust debate" as a First Amendment value). Ten years later, for 1993, it's up to 277 ("robust debate" is joined by "robust markets" and assorted other uses). Last year, it was 1241 (now we see "robust judicial federalism," "robust democracy," "robust conclusions"). I wonder what caused "robust" to take hold. I'm thinking the term migrated from the computer world, where there is talk of "robust software."

Ordinary words that could be used to avoid the overusing this vogue word are: strong, sound, healthy, vigorous, sturdy. Another alternative might be to become more aware of the impulse to lard your speech and writing with adjectives. Look inside yourself: what is this inner need that is making you want to tuck assertions about strength and vigor into your every statement?

Oh, here it is nearly 2 pm and I haven't blogged yet. What, am I supposed to have something to say to the entire world every day now? What a strange, distorted sense of responsibility blogging inspires! You start a blog, and by that action, you express a confidence that you will have something to say to everyone every day. Somehow, something will rise to the surface of your consciousness that will be, recognizably, bloggable. And day after day, there are such things, but why should there continue to be such things? I think a trick is to have some little thing early each day, just to break the ice, and then more things will flow, like small talk at the beginning of a conversation.

Strictly Madison. I walked up State Street in the late afternoon today and saw two notable things:

1. An aging folksinger guy strumming an old guitar. He was standing on the sidewalk and singing, "I hate war/I hate war/I hate war/I hate war."

2. A woman twenty feet up in a cherry picker hanging individual green leaf-shaped fabric scraps on a tree. She had gotten about halfway through attaching the leaves all over the branches, right where the real leaves will come out in a few months. Near to her in the concrete speaker's pulpit, which rises about fifteen feet above the square was a guy with a notebook, presumably a reporter, interviewing her, yelling out questions like, "How did you get the idea? Where did you get the scraps?"

Only one slope is slippery. Justice Breyer was concerned at oral argument, in Locke v. Davey, about the implications of deciding in favor of the college student who asserted a Free Exercise Right. (See previous post.) But what are the implications of deciding to permit the state to discriminate based on religion as it doles out various benefits?

Justice Scalia ends his opinion with this set of concerns:

Today’s holding is limited to training the clergy, but its logic is readily extendible, and there are plenty of directions to go. What next? Will we deny priests and nuns their prescription-drug benefits on the ground that taxpayers’ freedom of conscience forbids medicating the clergy at public expense? This may seem fanciful, but recall that France has proposed banning religious attire from schools, invoking interests in secularism no less benign than those the Court embraces today. See Sciolino, Chirac Backs Law To Keep Signs of Faith Out of School, N. Y. Times, Dec. 18, 2003, p. A17. When the public’s freedom of conscience is invoked to justify denial of equal treatment, benevolent motives shade into indifference and ultimately into repression.

I'm sure some people will find that odd, coming from Justice Scalia, because he wrote the opinion for the Court in Smith, the case that decided that generally applicable laws are constitutional even if they burden religion. Under that test, a school could have a general rule against wearing any head coverings without violating the Free Exercise Clause. But Scalia advocates neutrality toward religion. The proposed French law he cites is not a neutral law, but a law that targets religion. According to the cited NYT article, Chirac described his law as a frank discrimination against religious expression:

"In all conscience, I believe that the wearing of dress or symbols that conspicuously show religious affiliation should be banned in schools ... The Islamic veil — whatever name we give it — the yarmulke and a cross that is of plainly excessive dimensions: these have no place inside public schools. State schools will remain secular. For that a law is necessary."

So I would let Scalia off the hook about that point. More important is that the majority, by taking a more flexible approach to the Religion Clauses, preserves more ability to decide future cases pragmatically. Scalia's neutrality test is offered as a hard rule, and a hard rule will dictate outcomes, so deciding one case in a particular way will demand that other cases be decided in lock step. Sorry, but the slope is only slippery on one side. Criticize them all you want for being unprincipled, but the majority can stop its descent down the discrimination slope whenever it wants.

What motivated the Court in Locke v. Davey? I said two posts ago that the Court's opinion today did not reveal the real pressure that I think led the Court to reject a clear rule barring discriminating based on religion. Here's the truly revealing passage in the oral argument. Questioning Solicitor General Ted Olson, Justice Breyer asked:

What is your response to the following concern that's been brought up a few times but I'd like you to address it directly. This case is perhaps a small matter of a distinction that doesn't make all that much sense, but makes some. But the implications of this case are breathtaking, that it would mean if your side wins, that every program, not just educational programs, but nursing programs, hospital programs, social welfare programs, contracting programs throughout the governments would go over, you'd have to go over each of them and there'd be a claim in each instance that they cannot be purely secular, that they must fund all religions who want to do the same thing, and that those religions, by the way, though it may be an excellent principle, may get into fights with each other about billions and billions of dollars, so -- which is something about which I have written about, which you know. All right. So, I'd like you to address that.

Olson's answer was insufficient. All it did was emphasize the Court was only being asked to take the next step on the path of precedent. Breyer burst back in, asking if Olson's position would commit the Court to deciding that a school voucher program not only may include religious schools (as the Court decided two years ago) but must include them. Olson could only flounder about the possibility of coming up with some sort of distinction and try to scramble back to the humble topic of one college student's scholarship. Breyer broke in again:

What are the practical implications? ... Just want a sentence on the practical implication. Is it as far-reaching as my tone of voice suggested?

Relax, Rejoice. Inspired by Nina's meditations on Ralph Nader's "Relax, rejoice" advice--"I urge the liberal establishment to relax and rejoice"--I Googled "relax rejoice" just to see how far down the list of results I would need to go before I got to something that wasn't about Ralph Nader. The man has securely claimed that word combination, because it took me to the third page of results. Fascinatingly, the first nonNader result was to Imagine Nation®:

The "Relax! Rejoice! Rejuvenate!" Women's Retreat is held in Sedona, Arizona. This exhilarating and refreshing weekend getaway is a wonderful opportunity to break from the hectic pace of your everyday life and just breathe!

What the hell is Imagine Nation®? you may ask. Or you may say, Imagine Nation® sounds like a good name for the country Nader pictures himself presiding over. But according to the website: "Nancy Nordstrom’s Imagine Nation® Method of Dream Realization utilizes a fundamental foundation of three basic components. This is a solid, realistic approach that enables you to achieve the outcome you most desire." How intriguingly Nader-esque!

The next nonNader return takes you to Relax and Rejoice/Marriage Manual--Vol. 1. ("Venus Kriyas (yoga exercises for couples) and meditations for women and men for the renewal of love, trust, open communication, sexual sharing and much more.") I'm really not picturing Ralph Nader now. Or maybe, yes, a bit, metaphorically ... Enjoy the relationship, liberal establishment!

Principle and flexibility. The room left for state experimentation, which the Chief Justice called the “play in the joints” between the two constitutional clauses, looked quite different to Justice Scalia. From his dissent:

The Court does not dispute that the Free Exercise Clause places some constraints on public benefits programs, but finds none here, based on a principle of “ ‘play in the joints.’ ” I use the term “principle” loosely, for that is not so much a legal principle as a refusal to apply any principle when faced with competing constitutional directives. There is nothing anomalous about constitutional commands that abut. A municipality hiring public contractors may not discriminate against blacks or in favor of them; it cannot discriminate a little bit each way and then plead “play in the joints” when haled into court. If the Religion Clauses demand neutrality, we must enforce them, in hard cases as well as easy ones.

The reference to race discrimination is telling: Justice Scalia rejects affirmative action. The flexible approach to rights, for him, is just unprincipled. He had been pushing for a pure neutrality resolution of the longterm conflict between the two Religion Clauses. Why not just say government may not favor or disfavor religion? That would be a crisp solution, for sure.

In my Religion and the Constitution class, I often say, "Neutrality is the argument to beat." Neutrality is a great, comprehensible, clear, principled resolution. What motivates the Court to choose anything other than neutrality here? Perhaps the Court is wrong to think it has found a better answer than neutrality, but I would note that since it is difficult to beat the neutrality argument, when the Court goes for an alternate approach, it found a very compelling reason to do so. I don't know that the Chief Justice's opinion reveals the true motivations for deciding the case this way. I think better information is available in the briefs and in the oral arguments. The Court was concerned about what it would mean, not just in this case, but in many other settings, if it deprived government of the power to treat religion differently.

Separation of church and state prevails over the Free Exercise Clause in today's Supreme Court case, Locke v. Davey. And really, federalism won out over nationalizing rights, because this was a case where a state, in its own constitutional law, had embraced a stronger vision of separation of church and state than is required by the Establishment Clause of the U.S. Constitution. That is, the courts of the state of Washington had interpreted the state law version of the Establishment Clause to mean something more like what a minority of the U.S. Supreme Court would say the Establishment Clause means. Clearly, the state court can interpret the state constitution independently, but the problem here is that there's another federal right, the Free Exercise Clause, which could have been used to deprive the state of the ability to adhere to a more strongly separationist position than the federal Constitution requires.

In the case, the state denied a scholarship to a college student because he chose to study to become a minister.

Chief Justice Rehnquist looked to the history of separation of church and state. Even though he hasn't voted with the Justices who read that history to mean that the Establishment Clause requires excluding religion from government benefits, he read that history to justify the state's vigorous approach to separation. The state can discriminate against religion in spending its money on scholarships, because it wasn't discriminating out of a hostility toward religion but out of a respectable belief in the importance of separating church and state.

[W]e find neither in the history or text of ... the Washington Constitution, nor in the operation of the Promise Scholarship Program, anything that suggests animus towards religion. Given the historic and substantial state interest at issue, we therefore cannot conclude that the denial of funding for vocational religious instruction alone is inherently constitutionally suspect.

It is possible to interpret the Free Exercise Clause and the Establishment Clause so that everything that is permitted is also required. To do that removes all legislative options and denies the state room to express its own values about the relationship between government and religion. The Court rejected that option. Though strong proponents of Free Exercise will be unhappy with today's decision, it should not be seen merely as a victory for church-state separationists. It is also a victory for federalism, which leaves more room for varying definitions of rights within state law.

"Don't burlesque me." That's a quote from Ralph Nader, speaking to Chris Matthews on Hardball Monday night. When is the last time anyone used that word as a verb in normal speech (as opposed to an English literature lecture)? It was a dictionary-perfect way for Nader to defend himself against Matthew's caricaturing attack:

bur·lesque... transitive verb: To imitate mockingly or humorously: “always bringing junk . . . home, as if he were burlesquing his role as provider” (John Updike).

What possesses political candidates to use words that either can't be understood or that make people think of them as weird or out-of-touch? Howard Dean opened himself up to ridicule when he said:

In the South, people do integrate religion openly, easily into their lives, both black Southerners and white Southerners. I understand that if I'm going to campaign for the presidency of the United States, I have to be comfortable in the milieu that other Americans are comfortable.

Ah, well. Actually, I find the candidates a bit adorably nerdy when they lapse into this kind of bookish vocabulary. One likes to think they've studied a bit over the years.

Nader, on Hardball, exemplified the nerd's hostility to the popular kid when he couldn't stop remarking on George W. Bush's scholarly inadequacy. He's not well-read! I'm sure the people will rise up in outrage when that message gets out.

An interesting sidelight: Matthews said he voted for Bush in 2000! Racking my brain to think of why, I could only imagine it has something to do with Matthews oft-expressed theory that the people want the candidate they picture with the sun on his face. Of course that theory spells doom for Ralph Nader. But that doesn't matter. Nader's only in for the japery.

Making the same point, less enigmatically. Someone asked me to restate that first post today and make it clearer, so I'm going to try to put it as plainly as I can. First, eventually the constitutional amendment will be defeated. It's only a question of when. President Bush has no role in the amendment process, other than to give an opinion, and he's done that, presumably with the hope of going on to other issues, issues of his choosing. The process is now in Congress, and chances are it will never get out of Congress, because a two-thirds vote of both houses is needed and because, I'm guessing, few members of Congress really want all the heat that it will generate. Maybe it will emerge from Congress, and then it will go on to the state legislatures where it will inevitably, eventually, die. (I note that the Musgrave proposal in Congress does not have a deadline for ratification, so conceivably it could remain on life support indefinitely, but in any case, it will never become an amendment to the Constitution.)

So the real question is what effect will the amendment process have on the political issue. The futile amendment process will go on, and meanwhile the political debate will continue, but the nature of that debate will be affected by the fact that an effort is taking place to amend the Constitution to add a provision that will, for the first time in American history, diminish the aspirations for equality of a particular group. That effort will be a new thing to talk about, and gay rights advocates will portray that effort as mean-spirited and out of keeping with the rest of the Constitution. Thus, even though the amendment is designed to deprive gay rights proponents of something they seek, the amendment effort provides them with new opportunities to portray the opposition in a negative light. I think Americans who have not taken sides or who may feel a bit shocked by what is happening in San Francisco will balk at the idea of an exclusionary amendment in the Constitution. The all-powerful moderate Americans will be affected by the argument that it's wrong to actively exclude the underdog and it's wrong to put something negative in the Constitution.

I realize proponents will say they are doing something positive: protecting marriage. But they are having a heck of a time trying to express how marriage is being attacked. The institution of marriage they are purporting to protect is an abstraction. It is turning out to be very hard to explain that idea to people who don't already agree with them.

Finally, what did I mean by predicting that that there would be a simultaneous "departure of arguments about overreaching activist judges thwarting democratic choice"? Admittedly, this is the most enigmatic part of the post. What I meant to say is that so far the spotlight has been on a few bold judges (and a mayor), who seem to be taking things into their own hands, and the arguments have been about whether they properly have the power to do what they are doing or whether more democratic processes should govern. But if the spotlight shifts to the constitutional amendment, what people will start talking about is whether there should be a permanent, uniform national rule defining marriage. Judges announcing a right to gay marriage may be getting ahead of the political process, and that has provoked a lot of outrage and criticism. But the amendment goes to the other extreme, denying states the opportunity to experiment and to govern matters of marriage as they traditionally have. And by making the national law a matter of constitutional law, and not merely statutory law, the new amendment even deprives Congress of the ability to respond over time to the changing preferences of the people. These new issues having to do with the amendment will overshadow the arguments about activist judges, which, so far, have been the best arguments the opponents of gay marriage have had.

Is fighting off the amendment an added burden for gay rights proponents? You may respond to my previous post by saying that the fight against the amendment is only adding to the burden of those who are fighing for gay marriage in the courts and in the political sphere. But I think fighting off the amendment will put the gay rights movement in a more positive light, fending off an attack that will be made to look mean-spirited. Public opinion will be shaped in a new context, in which the majority is rising up against an underdog group--and marring the Constitution in the process.

The arrival of a new set of arguments about gay marriage. President Bush is asking Congress to go forward with a constitutional amendment banning gay marriage. What should we make of this? How upset should those who accept or approve of gay marriage actually be? Is the cause better off fighting in the courts or fending off a constitutional amendment? Arguably, it is better to be in the position of fending off a constitutional amendment. The amendment will surely, eventually, be defeated, because of the difficulty of amending the constitution. (All that is needed is the opposition of one house of the legislature in thirteen states.)

Meanwhile, proponents of gay marriage will be able to talk about the importance of refraining from adding a statement of exclusion toward a discriminated-against group our to our revered Constitution, which thus far has been amended only to increase equality. The arrival of this new set of arguments will coincide with the departure of arguments about overreaching activist judges thwarting democratic choice.

Very creative, Ralph. I'm at home this afternoon, nursing my cold, trying to stave off laryngitis, and I'm reading things on the internet, thinking I should add a little something to the blog today, and as I wait for my slow home connection to load another website, I watch the TiVo'd Meet the Press from yesterday. Each time a webpage loads up, I pause the TiVo and go back to reading. Every single time, I catch Ralph with his right eye shut and his left eye open.

"Iraqis will be ruled by Iraqis," says Nader. "They will be ruled, under fair elections, by Iraqis. They're very creative people. ..."

John mimics a kindergarten teacher: "You're very creative!"

The SAG Awards, Get to Know Your Rabbit. The SAG Awards were awfully dull. One big surprise--Johnny Depp won the best male actor award--but then he wasn't there, so the moment fizzled. The best thing about the SAG Awards is that they give awards for entire ensembles. So they give the TV one to Sex and the City, but Sarah Jessica Parker is a no-show, and then they give the movie one to Lord of the Rings, and a huge group of lesser actors assembles on stage and mills about, while Sean Astin babbles boringly about something Guild-ish, until the hulkish John Rhys-Davies shoves him aside, seemingly for being tedious.

Lately, Rhys-Davies has been having some troubles. As he puts it: "I'm burying my career so substantially ... that it's painful."

It was only through Astin's speech last night that I realized he was Patty Duke's son. He didn't name her but mentioned that his mother had been president of the Screen Actor's Guild, and I put two and two together. John Astin is not his natural father, but adopted him after he married Patty Duke.

So let me just take this opportunity to say how much I love John Astin. And I don't just mean that I love him as Gomez on The Addams Family. I love him as Harry Dickens on I'm Dickens, He's Fenster, And I love him as Turnbull in Get to Know Your Rabbit.

I saw Get to Know Your Rabbit when it was shown, pre-release, in 1971, to a test audience in Ann Arbor, Michigan. I and it seemed like everyone else in that theater experienced it as the funniest movie we had ever seen. Somehow, even though it was directed by Brian De Palma and has Orson Welles in its cast, it fell into oblivion. I still have never come close to laughing as much at a movie as I did that night. I finally found a videotape of it, watched it again, and couldn't recapture the original feeling, maybe because I knew all the surprises. But Astin stands out as especially funny, especially, for some reason, while trying to keep pencils from rolling off his desk. For those in the know: "Pass your hand through the flame!"

Another Sunday. It started out sunny and warmish, but now it's all gray and there's a light snow falling. I'm finally about to leave the office, with my editing job done at last, and set out in search of a FedEx drop off. I took a break at 1 to walk down State Street, something I haven't done in weeks, because I've decided to hide from winter this year. I wanted to try out the new cafe, Fair Exchange, and finish the Times crossword puzzle. (The sublime acrostic was consumed long ago.) I ran into one of my sons, so we sat down at the cafe and chatted, and the undone puzzle survives. The new cafe is fine. Lots of sandwiches, which they grill up nicely for you.

What's that? Lettuce in a sandwich you're going to grill?

It's spinach.

Very clever.

So a lovely grilled chicken sandwich and a large latte in a large room with ochre walls, a high ceiling (painted maroon), and lots of heavily impastoed ochre-and-green paintings. There are never enough lunch spots and cafes on State Street, and I'm saying Fair Exchange counts in both categories. Now, time to do the assorted errands and put in some time at Borders. This evening: why, the SAG Awards, of course! With any luck, a drunken Jack Nicholson will rant and rave about Diane Keaton.

UPDATE: The name of the cafe is not Fair Exchange. It's Fair Trade.

Nader and the gay marriage issue. I had thought that both Kerry and Bush had plenty of motivation to try to keep the gay marriage issue from having much effect on the campaign. I thought they were both going to try to get away with saying blandly "marriage is between and man and a woman... blah blah ... leave it to the states." But Ralph Nader's entry into the Presidential race is going to undercut Kerry's ability to engage in a friendly little dance with Bush. Here's what Nader had to say in the 2000 campaign:

Saying that he is "way ahead of Al Gore" on liberal issues, Green Party presidential nominee Ralph Nader said ... that he supports civil unions and "equal rights, equal responsibilities" for homosexuals.

Nader ... said that he also supports gay adoptions. "The point is that we have to have a basic policy in this country of equal rights, equal responsibilities, regardless of race, gender, sexual preference," said Nader on NBC's "Meet The Press." "It's really interesting," added Nader.

Yes, it is "really interesting," especially for the Democrats. Kerry and Edwards had this response to Nader's announcement according to Reuters:

Both Democratic presidential contenders, front-runner John Kerry and rival John Edwards, told reporters they were not worried that a Nader candidacy would hurt them if they face Bush in November.

"I think my campaign is speaking to a lot of the issues Ralph Nader is concerned about," Kerry said. Edwards said "it will not impact my campaign" because he could attract many of the voters who might otherwise go to Nader.

Oh really? And how are the Republicans feeling today? Reuters "tried not to" editorialize in that news report:

Republicans tried not to celebrate the news. "Regardless of what Ralph Nader does, President Bush is going to be re-elected in November," Republican Party chief Ed Gillespie said.

Traditionalists, check your references. Reverend Banuchi's sandstone analogy was still nagging at me, and I realized it was because it reminds me of Psalm 118:

The stone which the builders refused

is become the head stone of the corner

Saint Peter repeats this image in his First Epistle:

4: Come to him, to that living stone, rejected by men but in God's sight chosen and precious;
5: and like living stones be yourselves built into a spiritual house, to be a holy priesthood, to offer spiritual sacrifices acceptable to God through Jesus Christ.
6: For it stands in scripture: "Behold, I am laying in Zion a stone, a cornerstone chosen and precious, and he who believes in him will not be put to shame."
7: To you therefore who believe, he is precious, but for those who do not believe, "The very stone which the builders rejected has become the head of the corner .... "

Note to Christian traditionalists relying on analogies about worthless stones: check your Scriptures first! The rejected stone in the Bible is Jesus!

That sandstone again, and "very sophisticated soot." I wrote: "If somehow people did want to buy sandstone at the price of gold, it must be because they have found some amazing quality to standstone that inspires them to buy it." Consider this, from the Washington Post:

The blue column contains a weird new furnace, of sorts, evidently the largest of its kind in the world. The furnace makes fluffy black stuff that "looks like soot," said Bob G. Gower, head of the company building the device. "But it's very sophisticated soot."

Indeed it is: Right now it sells for 39 times the price of gold. The black stuff consists of exceedingly small tubes of carbon, "the strongest thing you'll ever make out of anything in the universe," said Richard E. Smalley, the scientist who won a Nobel Prize for helping to discover similar objects.

Someday, when the price falls and the quality improves, this black stuff might be woven into a cable thinner than a human finger yet capable of carrying the world's entire supply of electricity. Or it might be used in computers hundreds of times more powerful than those now available but tiny enough to wear on a wrist. Or in impossibly thin, graceful bridges over which the heaviest trucks would roar without making a dent.

I resent that. So I sent an email to someone who had recently emailed to say he was using a new email address from now on. I realized my mistake and resent the email to the new address. Before he got the second email, he replied that I'd used the old email address, which caused me to email him and say, "I resent it."

That's absurdly open to misunderstanding! Don't you write "resent" for "re-sent" all the time without noticing it might make you seem resentful? But hyphens have a way of falling out of words. "Email" is a prime example. I see Sharp Points is trying to preserve the hyphen in email (based on the fact that the "e" is a pronounced letter, not a legitimate syllable), and maybe the French have a problem with it (because it's their word for enamel), but that hyphen is just not going to survive.

But if you drop hyphens or close up words that were once two separate words, you may end up writing something that other people will see in a different way.

I went 30 years without noticing that "Superbowl" could be read as "superb owl." When you know what's supposed to be there, you don't see the alternatives. It's probably a good mental exercise to try to see alternative images in common agglomerations. You could do conceptual art based on such things. Typical observations of this kind are that "God" is "dog" spelled backwards, or "justice" could be split into "just ice." Look for new ones. I will, and I will keep you posted.

Oh, here is one more, which occurred to me once when I was having trouble painting. (I'm the lawprof who went to art school.) The word "painting" can be broken into "pain, ting!" A "ting" is "a single light metallic sound, as of a small bell." That seemed to express something about the utter insignificance of the pain painting was causing me. Ting!

More on the gold and sandstone analogy. My son John writes:

You wrote: "Gold is, obviously, not like marriage, because people have an interest in accumulating quantities of gold, but each person can only have one other person in the marriage market."

Well, let's assume for the sake of argument that we are interested in viewing marriage in terms of possibly "devaluing marriage" in some kind of a quantitative way. (I don't agree with this quantitative way of looking at marriage, but if that's what people like Banuchi want to do, then they should be argued with on those terms.) In that case, not only you are you right that gay marriage wouldn't seem to devalue marriage very much, but couldn't we also say that divorce devalues marriage a lot more? 50% of marriages end in divorce, so I assume that the number of divorcees is much larger than the number of gay married people that there would be if gay marriage were legal. Now, let's assume for the sake of argument that divorce and gay marriage are equally severe breaches of Traditional Morality. We would then need to say that divorce threatens marriage a lot more than gay marriage would. You said that "each person can only have one other person in the marriage market"--well, this doesn't quite apply to divorce, since one person can get divorced many times. If someone gets divorced five times, then that person has chipped away at the institution of marriage five times; this is in contrast to the gay person who gets married once, thereby chipping away at marriage only once.

(Maybe gays would be more likely to get divorced, because they're radicals who want to erode traditional institutions. Or maybe they'd be less likely to get divorced: maybe they'd value marriage more, in the way that someone living in the desert for years might go on to value water more than other people do. This is an empirical question that we don't yet have the data to answer.)

...So, anyway, my point is that the true conservative who genuinely wants to speak in quantitative terms about preserving the puritanical monolith called Marriage should be focusing on the current horrors of divorce instead of the potential dangers of gay marriage. (None of this matters anyway, since marriage doesn't work like gold, for the reasons you pointed out. But the conservatives should be argued with on their own terms.)

Great points. Let me add that anyone who invoke the Traditional-Morality-Attack-On-Marriage argument has a real problem if they say it's okay to make an exception in the case of divorce but not okay to make another exception. You can't rest very solidly on a foundational principle if you tolerate exceptions for the things you and the people you identify with might want to do and then refuse to make exceptions for the things that only other people might want to do. That is the most unprincipled thing of all. Better to be completely flexible than to stand on inflexible principle only when it serves your own purposes.

What, no grinning Nader image on Drudge yet? I was expecting the revolving siren light. You can't sleep in just because it's Sunday, Matt.

What do you call ...? I like this dialect survey (recommended by Andrew Sullivan).

"What do you call the area of grass between the sidewalk and the road?" Lots of names for that, I see now, but where I come from it was called the "extension," which is apparently an even more minor term than "terrace," which they call it here in Madison.

It's too late to participate in the survey, but you can get an assessment of your regional tendency by taking a quiz here. I came out 43% Yankee on the quiz, which is probably a pretty accurate way to describe someone who started in northern Delaware (Newark and Wilmington)(and had a Delaware father), spent her teens in northern New Jersey (Wayne), lived 5 years in Michigan (and had a Michigan mother), 10 years in New York City, and, having reached the age of dialect impermeability, 20 years in Wisconsin.

Words needed. Here are two things that it would be nice to have a word for:

1. The inaccurate sense of bodily dimension caused by wearing a backpack that leads a person to think they can turn around in a space that would be adequate if they were not wearing a backpack.

2. The sense that a word is the wrong word because when you think of it you add on some other words that it is often found with in a phrase, even though you are not using that phrase. For example, I cannot stand the use of the word "Likewise" to begin a sentence. I've got to change it to "Similarly" because it causes me to think "Likewise, I'm sure"--which is a bit weird because people don't say "Likewise, I'm sure" anymore and in fact it's hard to remember why they ever did. For some reason, I picture Jean Harlow saying it.

UPDATE: My son John offers two more examples of the "sense that a word is wrong...":

"Presume" suggests "Dr. Livingstone, I presume"
"Surely" suggests "Surely you jest"

What do you want, a medal? Let me offer Banuchi a more apt analogy than his gold and sandstone, so it will make more sense to be concerned with how government labels something: marriage is like a medal. If the government had a medal that had previously been given only to soldiers who had been wounded in battle while saving the life of another, and it then starts giving the medal to all soldiers wounded in battle, the soldiers who met the higher standard would suffer a devaluation of their medal.

But why should government be involved in giving out medals for the quality of our personal relationships? But let's say we think that government should be giving out medals to honor people's relationships and that marriage is the highest honor to be paid. Shouldn't government have to apply a more substantive standard for handing out honors than just the sex of the proposed recipients? Government does not and cannot examine what is really deeply valuable about a relationship. That would be an outrageous intrusion. All that is left then is to honor people because of their genitalia.

So the new analogy--which I think is better than any other analogy I've seen--is also defective. The devalued medal had once designated a particularly worthy performance in battle, and now no longer communicates that the person who received the medal had that additional distinction. The label marriage, when restricted to different sex couples, isn't needed to communicate that a couple in fact has the distinction of having two kinds of genitalia. If people could marry without the two sex requirement, we'd still be able to detect which couples met the man + woman standard. What we would lose is the government's expression of the belief that higher honor is due. People need to think clearly about not just whether that belief is correct but about whether government ought to be expressing it.

For the annals of bad analogies. After the NYT wrote an editorial favoring gay marriage, the Executive Director of the New York Christian Coalition, Rev. Bill Banuchi, wrote in to offer an analogy to show how recognizing gay marriage hurts traditional marriage:

If I have an ounce of gold and the government suddenly announces that sandstone will now be called gold and valued equally, what will happen to the value of my gold? It will crash, and so will the economy.

So will it be with gay marriage. Marriage will be further devalued, and so will our entire social order.

I suspect the Times chose this letter because it is such a monumentally bad analogy. Gold is, obviously, not like marriage, because people have an interest in accumulating quantities of gold, but each person can only have one other person in the marriage market. Once you have your one, you have no interest in whether someone else also has one. You have no interest in maintaining the scarcity of marriage, because there is no less value in your relationship to another person if other people also have relationships. In fact, you're better off if other people are also securely paired off, because then rivals for your spouse are less likely to interfere with your relationship. Preserving the scarcity of a traded good like gold may bolster its price, but there is no equivalent point where you "sell" your marriage.

Banuchi's attitude toward government labeling also doesn't make sense. If the government were to say "sandstone will now be called gold and valued equally," as long as I could see the two products and choose my vendor, I would still buy the real gold. Who would buy sandstone at the price of gold? In fact, people would stop buying sandstone at all if government fixed its price at the same level as gold! If somehow people did want to buy sandstone at the price of gold, it must be because they have found some amazing quality to standstone that inspires them to buy it. Thus, Banuchi may think that a gay relationship is like a worthless stone compared to gold, but if people are choosing it over heterosexual marriage when both impose the same obligations, it must be because they have found real value in it. It would not be the government labeling that caused that value to come into being, but the experiences of the people engaging in the relationship.

UPDATE: If you read this earlier, you might have seen that I had "diamonds" instead of gold at one point. That was caused by bad editing. I was going to offer Banuchi the tip that he'd have a better analogy if he used diamonds and cubic zirconium instead of gold and sandstone, because there would be some potential to mistake one for the other. That got too complicated and I'd meant to take it out. Sorry.

Gay marriage in .... Cambodia! King Norodom Sihanouk has an opinion, according to BBC news:

After watching television images of gay marriages in San Francisco, the 81-year-old monarch has decided that single sex weddings should be allowed in Cambodia too.

He expressed his views in a hand written message on his website which has proved extremely popular in Cambodia.

The king said that as a "liberal democracy", Cambodia should allow "marriage between man and man... or between woman and woman."

He said he had respect for homosexual and lesbians and said they were as they were because God loved a "wide range of tastes."

Those televised images are powerful.

How Madison Voted in the Primary. Once again I've seen something in The Isthmus (our local free tabloid) but can't link it to their website, because their website is woefully deficient. (Uh-oh, second use of the word "woefully" today! Should I be concerned about my mood or my woefully deficient vocabulary?)

The Isthmus has the city mapped by region showing how people voted. There was so much Dean-related activity through the whole campaign season, yet Dean only won the isthmus area, that is, the studenty part of town. Kerry won most of the city, so what did Edwards win? Interestingly enough, Edwards won the wealthiest neighborhoods, Shorewood and Maple Bluff! Edwards is the one who stresses his humble background and claims special connection to the least wealthy people. That resonates with the most wealthy people, which for some reason, doesn't surprise me.

Watching for the cobra. Prof. Yin has a nice analysis of last night's The Apprentice. There are lots of reasons for watching this show. As you may know, I was going to quit watching, right at the point when Trump promoted his golf course as the best golf course in NY State. But, yeah, I'm watching again, even though last night he went on about how great his "yooge" house in the suburbs is. One reason people watch, apparently, judging from Prof. Yin's comments, is to see Trump snap his fingers in the the cobra-strike motion when he says "You're fired." I think I've heard of people going about saying "You're fired" and doing the cobra gesture just for fun. That could be really annoying. Imagine if lawprofs did that to students who gave bad answers in classroom Socratic dialogues.

My comment on the competition last night is this. They spent way too much effort and, especially, time fixing up the apartments. More of a markup on the previous rental price for either apartment could have been achieved if they had just basically cleaned up the apartment on the first day and spent far more of the time drumming up prospective tenants and negotiating with them. The apartments were already quite valuable, and the teams were going to be judged on how much of a markup they achieved over the old rent. But there was no way to determine how much of the markup to attribute to improvements made. They left too little time to sell the apartment and completely reeked of desperation in the end. As usual, they were reduced to running out in the street and begging passersby to do business with them. That was a bad approach to lemonade, but even worse when trying to get people to sign a lease.

Advertising America in Arabic. The U.S. broadcasts television in Arabic in the Middle East. The NYT reports:

Between programs, Al Hurra presents unsubtle promotional spots. Heavy orchestral music surges behind images of horses running free, or men walking against the crowd, or eye after eye opening wide. "You think, you aspire, you chose, you express, you are free, Al Hurra, just the way you are," read the text on one.

I love the Mr. Rogers line at the end.

The overall tone of this, however, isn't really any sillier or more condescending than bad commercials aimed at Americans, which are really sillier in a way since they tend to assert that a car or a soda will bring us freedom and self-expression.

Mustafa B. Hamarneh, director of the Center for Strategic Studies at the University of Jordan, is critical:

"The people they have hired look modern, hip, and the beat is fast, but it won't have an impact on the perception of the United States ... I think the Americans are mistaken if they assume they can change their image in the region. ... People became anti-American because they don't like American policies."

But if that were really true, why would Americans spend so much money advertising to other Americans, about political matters as well as ordinary products? Why would we concern ourselves so much with the effect of money on political campaigns? It must be that advertising works, even on educated and sophisticated people. I can understand thinking that one is being talked down to and patronized when advertising (aka propaganda) is aimed their way, but I hope Al Hurra's target audience realizes that Americans advertise to Americans in the same way.

It's wrong to laugh at memorials, isn't it? But some of these are woefully absurd. Click on the slideshow for pictures of losing proposals for the WTC memorial. Which is worst: two jet planes, a giant question mark, a large steel globe with sprawling legs and long arms with hands that hold a smaller globe, a giant apple impaled on a 900 foot spike, the artificial heart doctor's heart-shaped box kitsch? If you go here, you can search by state or country and find proposals from individual cities. The losing entries implicitly make the argument for Maya Lin-style minimalism.

Prospects for a one-on-one debate. I wonder if Kerry will take up Edwards' challenge to have a two-man debate. I'd like to see them do it. It would be different, and so they might be able to get some new people to watch. Kerry should be able to trust Edwards to keep it sunny, since that is the Edwards' gimmick. The two are likely to end up on the same ticket, so why not take advantage of the opportunity to share the spotlight, just the two of them?

One problem, raised by Dennis Miller on his show last night:

How craggy is Kerry going to look at that point--when you got a kid at the next podium who's got a baby's bottom for a face?

It's a vast right-wing con... ... I mean ... "it's a political, you know, witch hunt...."

It's Roll-Out-the-First-Lady time again!

Forget Whole Foods, what about Pure Foods? Speaking of Atkins-ing, there's this new development:

In Southern California, two entrepreneurs (and Atkins dieters) last month opened the first two in a chain of low-carb supermarkets called Pure Foods, and individual low-carb markets are opening nationwide....

Cathryn Kennedi, 42, had gone to Pure Foods in Santa Monica, Calif., to pick up low-carb bagels, pasta and cereal (made with soy protein instead of flour). Like others at the store, she said she did not think she needed to lose weight. Still, she said, "I think there's some truth to not grabbing carbs. I feel more energy when I eat low-carb.

"I've been eating healthy for a long time, but when you get home from work, the things you grab are all carbs," she said. "The easiest thing is to grab a bagel. If they can make it easy to grab one that's low-carb, it's more convenient."

Have you noticed that people don't "eat" food anymore, they "grab" it? Well, if we were only grabbing food items, we really wouldn't have this weight problem, would we?

Of course, the cutting-edge Californians who shop at Pure Foods don't even need to lose weight. They just Atkins for "health" and "energy."

"A Pleasure Palace Without the Guilt." That encounter with the evil scale caused me to go to Whole Foods and buy a lot of meat and vegetables. I see they've just gotten their first Whole Foods in New York City and they seem to be getting all weird about it. This is from the NYT (the quote above is the effusive headline):

Whole Foods subscribes to a religion that might be called moralistic hedonism. With an eye to pleasing presentation and attractive packaging, it offers a Venusberg of gustatory temptations, often rarefied, and all guaranteed to be good for you.

Oh, really? You'd think people in New York would be more jaded, but here they are, all jazzed up about Whole Foods, which is a nice but normal amenity out here in the hinterlands.

Hinterlands? Did I write that? It's only because I'm coming down with a cold and raving absurdly. I've never written "hinterlands" before in my life. I'm not even sure what makes lands "hinter," though sure the quality of hinterness (aka hintertude) is something that would make you want to go forward out of the lands in question.

Feeling groggy not bloggy today. Sorry for not posting yet today, but I seem to be getting a cold, and I haven't had a cold in over ten years, so I am a complete baby about it. I must have woken up every hour last night. I'm up to disc 3 in The Life of Pi, and it's the part with the sinking ship and the scary lifeboat doings. That was all quite interesting, but not very sleepable-to.

I would prefer at this point to go home and spend the rest of the day alternating peacefully between reading admissions files and trying to finish going over the edit of my law review article, but I have agreed to help some students with their moot court problem at 1:30. I'd also like to go home for lunch, because I'm Atkins-ing again after an unfortunate run-in with an evil doctor's scale yesterday. I let my doctor know that her scale was weighing me 20 pounds higher than my home digital scale and she said she never gets on that scale and a lot of patients refuse to be weighed. I said I didn't know you could refuse, and she made a big point of blacking out the unfair weight statistic on my chart and saying she was definitely going have that scale checked. She said that about three times. That's the kind of obliging health service we get in Madison, Wisconsin.

The effect of pictures from San Francisco on the American psyche. The cable news channels are covering the San Francisco gay marriage events and showing various film clips of people waiting in line to marry, marrying, and celebrating afterwards. They must have miles of footage, giving them great power to shape public opinion. Let's say they need five brief clips to go with their story. There are thousands of couples to choose from. They could try to increase public acceptance of gay marriage by picking five couples who look very clean-cut and friendly, who look warmly happy to marry, perhaps with sweet children at their sides. They could do the opposite by picking the five couples who most seem to be only using the occasion to demonstrate a political position and who seem most likely to threaten or disturb the average American.

Why not scream? I watched Dean's speech today. As he got toward the end, he started using that growly voice that he used in Iowa just before his fateful scream. He even ended with a big sweep of the arm that seemed like the Iowa arm move that accompanied the scream. I was kind of hoping for him to do the big scream again, just for fun and because he could have done it with impunity now. Ah well, nice concession speech anyway. It's good to go out with grace and style. I remember Al Gore giving his final concession speech in 2000, after the Supreme Court's decision. He was at his very best that day.

I don't even want to talk about last night's American Idol. I don't want to have to think about it. Each singer was worse than the one that went before. Everyone this week was worse than anyone last week. I think they deliberately group them unevenly to set up the wild card show. Bring back Jennifer Hudson.

Backward! If there is one way to give a boring speech in Wisconsin, it is to start out with the observation that the state's motto is "Forward." Senator Kerry, I'm looking at you.

"The motto of the state of Wisconsin is 'Forward'," Mr. Kerry said. "And I want to thank the state of Wisconsin for moving this cause and this campaign forward tonight here in this great state."

That motto was thought up in 1851, which is approximately the year Kerry's rhetorical style was last in fashion.

I was about to give him credit for not festooning his speech with adjectives. I was going to say it must have been hard to resist saying "the great state" of Wisconsin. But then I glanced back up there and saw he didn't resist.

I wonder, what state isn't a "great state"? Can we ever get another adjective for a state? No? That's just great.

The pundits are just loving the Edwards surge. I'm watching Hardball and the energy is bursting off the screen tonight: they had gotten tired of the story of how Kerry somehow pulled into an immense lead, leaving Dean in the dust. The new story is Edwards, Edwards, Edwards. It seems as if we are not engaged in choosing a President, but keeping the commentators excited.

Voting in a church. So what's it like voting at the First Congregational Church, my polling place, in Madison, Wisconsin? The booths are set up in a charming high-ceilinged library at the end of a long hallway, past a closed door to a chapel. Are there shelves all around, piled with Bibles and other religious books? Why, yes! Oh, but surely they wouldn't leave up a fabric wall hanging, about 4 feet wide and 6 feet high, with 5 inch letters reading:

More light shall break forth from out God's word

No, they wouldn't just leave that up right over where we're voting, would they? Why, yes they would!

And was there a sign outside on the street identifying the church as a polling place? Well, why not just put a cardboard "polling place" insert into the church's regular wooden sign holder? It doesn't matter that there's a lovely cross painted at the top of that sign, does it? How picky can you get!

It's scary. So last night I was tying up the phone line for a long time with my computer modem. (Yes, I am too lazy to go through the trouble of getting some sort of high speed access for home--not even too cheap, just purely too lazy.) I finally got off the phone and within 60 seconds it rings, which I think means it's pretty likely to be a computer-dialed call, especially since anyone who might eagerly call and recall me would know my cell phone number.

I pick up and out booms, "This is John Kerry!" I hang up immediately and say "It's Kerry," then realize I've also just said, "It's scary."

Primary day at last. My polling place is a church. I find that rather strange! Anyway, the skies are clear and the temperature is on the way up. On my short drive in to work, as I stopped at a traffic light near the Congregational church that is my polling place, there were two young women standing in place holding a large Dean sign. I also saw Dean signs stapled to lamp posts and telephone poles. No signs for anyone else.

I managed to avoid laying eyes on the candidates, even when events--like Clark endorsing Dean--were taking place just a couple blocks from my office. If the debate had been in Madison, though, I would have gone. In fact, I've watched all the debates this primary season. I just detest rallies.

Re-creating the brand of San Francisco? As travelers flood into San Francisco to take advantage of its (perhaps temporary) gay marriage policy, consider whether that policy is part of a larger local economic plan. Only last Sunday, Joan Ryan wrote in the San Francisco Chronicle about

San Francisco's growing realization that its singular charm is not enough anymore to counterbalance the high cost of workers' compensation in California, the ragged men and women slumped outside department stores and cafes, the $500,000 fixer-upper homes, the uneven public schools, the 1.5 percent payroll tax. …

"This city is no longer going to sit back and wait," [San Francisco Mayor] Newsom told a gathering of businesspeople soon after he took office last month. "San Francisco is on the move."

To that end, Newsom is establishing a marketing department in his office of economic development. … San Francisco is taking the counterintuitive tact of attracting big business not by downplaying the city's antiestablishment spirit but also by emphasizing it. …

Just as the mayor's office and the airport have ramped up their marketing, San Francisco's Convention and Visitors Bureau is about to start an ambitious campaign to lure tourists back. Officials are careful to say they are not "re-creating the brand" of San Francisco. "It's about how to re-express it in a new way," said Laurie Armstrong, the bureau's vice president of public relations.

Is Mayor Newsom like Judge Roy Moore? Rod Dreher at The Corner poses a question with an easy answer--and not the easy answer he implies is the easy answer:

What I don't get is this: why was it wrong for Judge Roy Moore of Alabama to unilaterally declare federal law wrong, and defy it by installing a Ten Commandments monument in a courthouse rotunda ... but it's okay for San Francisco Mayor Gavin Newsom to unilaterally declare state law wrong in prohibiting same-sex marriage, and defy it by issuing marriage licenses to gay couples? I mean, I know why the media was outraged by the former episode of grandstanding and not the latter, but as a legal matter, what's the difference?

Moore was made a party to a lawsuit, which he lost. He was ordered to remove the monument, and he defied the court order. If a court orders Newsom to stop and he continues, then he'll be like Moore. It's one thing to act upon one's own "unilateral" decision about what the law means in the first instance, quite another to defy a court order. Moore had his opportunity to defend his legal interpretation in court. Newsom is basing his actions on an interpretation of law, and his day in court has not yet occurred.

There are some similarities too, though. Both men decided to use their position of power to stage a demonstration that stirred the intense passion of a large group of supporters and made them feel deeply invested in preserving the new state of affairs. Maybe I'm not reading enough of the news stories about Newsom, but I don't think he's getting much approval from the press. The events are being covered, but Newsom isn't being hailed as a hero at this point. I think the coverage of the two men at the same stage in the events has been roughly similar. If Newsom is ordered to stop and he persists, he will undermine his own reputation the way Moore did.

UPDATE: Prof. Yin agrees with me (or "tends to agree" with me) about the Moore-Newsom distinction. He goes on to make the point, which is surely correct, that just because what Newsom is doing isn't as bad as what Moore did doesn't necessarily mean it's laudable: there were other ways to test the state law and produce a court opinion on the issue. On the other hand, as I discussed here, there is something to a big, visible demonstration that affects (in both directions) how people think about the legal issues. Eugene Volokh has some good discussion of the Moore-Newsom distinction and of the basis for Newsom's legal interpretation here.

Which Federal Rule of Civil Procedure Are You? I got this from Prof. Yin. He was Rule 11. I too am Rule 11. Ah, I bet everyone comes out Rule 11. Rule 11 is just more of a person than the other rules.

I'm still waiting for the "Which Federal Courts Doctrine Are You?" quiz, where you can be mootness or abstention or the independent and adequate state ground doctrine.

UPDATE: This blog thinks I was somehow saying or implying that people who don't come out as Rule 11 on the Civpro quiz are "inferior." How do you get that? Somehow now the term "everyone" means the superior people? Or is it the "Rule 11 is just more of a person than the other rules." That clearly means Rule 11 seems to contain more human-being-ish attributes. For a nonhuman thing to be more like a human being doesn't imply superiority. Remember "to err is human"--being human implies a whole range of qualities, good and bad.

RE-UPDATE: Craig has reinterpreted my post now, so all is forgiven. Or, I mean ... Rule 11-ishly ... sanctions will be imposed!

Speaking of good taste, the NYT ran an article yesterday about rudeness and driving, which began:

The comedian George Carlin has observed that all the other drivers on the road fall into one of two categories: idiots or lunatics. The former are the slowpokes blocking you; the latter are the leadfoots zooming past you.

"Lunatics"? That's not the way I heard it!

The return of low-tech spelling. Gawker has the Dow Jones memo outlawing the use of computer spell checking devices.

We have had too many incidents where the use of the spell-check program within our editorial production system (news station) led to our publication of errors on Dow Jones Newswires. Most typically, this has involved the inadvertent changing, based on a spell-check suggestion, of a proper name of a person or company into a non-related word.

How one longs to know the specific errors that went out over the wire! Gawker has a funny guess over there, but it's cruder than the taste level I'm enforcing for myself here. I'll just say I've often found the suggested changes in legal materials pretty funny. The computer seems so intent on calling Scalia "Scalier." It wants to call me "Alehouse."

Some idiosyncratic arrangements. It's a nice cold morning in Wisconsin. The phone rang at 11:30 last night, after I was asleep, so I ended up having the opportunity to read a few pieces in the new New Yorker last night. I read Peter Schjeldahl's article on the Barnes Foundation:

Thousands of wonderful objects fill a graceful château that was finished in 1925. Among them, hundreds of School of Paris modern paintings and a smattering of Old Masters and American moderns are massed on walls covered in warm tan burlap, labelled only with the artists’ names. The pictures are interspersed with items of skilled metalwork (hinges, lock plates, utensils). Antique furniture, African sculpture, Pennsylvania folk art, Egyptian and Greek antiquities, and Southwest Indian rugs and ceramics and jewelry cluster throughout.

The question is whether this place can be kept intact, in its idiosyncratic form, according to the terms of the donor's will or whether a court will see the financial difficulties as sufficient to justify breaking it up. Schjeldahl begs for it to be kept as it is:

The Barnes is a work of art in itself, more than the sum of its fabulous parts. The same may be said for other institutionalized private collections—New York’s Frick, Boston’s Gardner—but without equal justice. None so engages visitors in an adventure of sensibility. As you test the virtues of the collection, they test you, probing the depths and exposing the limits of your perceptive powers. You don’t view the installation so much as live it, undergoing an experience that will persist in your memory like a love affair that taught you some thrilling, and some dismaying, things about your character. If there were other places like the Barnes, dispensing with it would not be tragic. But one minus one is zero.

You'll have to buy the paper copy to see the beautiful photograph of one orange-burlapped wall, a case of African sculptures, assorted paintings by Matisse and Picasso, and other items in an arrangement constituting one sector of the grand work of art by "the strange Dr. Albert Barnes."

The paper copy of this issue is also needed to read the David Sedaris story, "The Living Dead," which I also read last night. Serious mouse lovers should beware. Driving into work this morning, I was listening to slot 4 in the CD player which was also David Sedaris, the part where his sister Lisa is expressing her excessive concern about dogs and the story of the exotic turtles and the racoon that chewed two legs off each of them leaving them looking like half-stripped Volkswagens.

I pulled my nonstripped turtle-morphic green Volkswagen into the garage at Grainger Hall and came into my office where post-Impressionist reproductions (Matisse, Gaugin, Denis, Bonnard) are idiosyncratically arrayed on taxi-yellow walls.

Undertaker: No Poo. The guru--she prefers "do-roo"--of curly hair has lots of tips, including don't use shampoo--which she prefers to call "poo." Why she hasn't washed her hair for years! And people pay her $200 a session for advice. So yeah, don't wash your hair, just rinse it out, or "wash" it with conditioner! Don't even touch it when it's drying and fingers only for combing. She's really quite serious:

"I have instructions in my will," she said. "The mortician must know you can't brush my hair, no pooing and leave the curls as they are."

"The gay studies department, whatever that is." Robert Rauschenberg answers some questions from Deborah Solomon in today's NYT:

Aren't you having another show now at Yale?

Yes. I am not happy with it. It was organized by the gay studies department, whatever that is. It's not an approach that makes sense. I refused to give them permission to reproduce the works in a catalog.

Hmmm.... a little more info would be nice! There's this description:

"Robert Rauschenberg: Gifts to Terry Van Brunt'' features about 40 pieces that Rauschenberg gave as presents to his former lover, Terry Van Brunt. ... Jonathan Katz, an associate professor at Yale who launched the gay and lesbian studies program there in 2002, organized the exhibit.

"Rauschenberg himself does not want the work talked about in a gay context,'' Katz said. "But I am not responsible to the artist's wishes. I am responsible to the work.''

The collection includes "Bob's Face With Fly,'' a self-portrait that shows a fly on Rauschenberg's face, and "Terry's Briefcase Piece,'' a briefcase that was painted and collaged. Katz believes the exhibit is important because it shows how Rauschenberg's personal life has shaped his work.

Meanwhile, back in the NYT interview, Rauschenberg is presenting himself as impersonally as possible. He speaks of painting from photographs. Asked “What sort of photographs do you prefer?,” he asserts that he “likes photographs of anything uninteresting. Maybe just two doors on a wall.” Asked “What is so great about the ordinary anyhow?, he answers, “I find the quietness in the ordinary much more satisfying." Asked if at 78, he thinks about dying, he says “No. Not at all” and tells a hackneyed anecdote about someone else. Asked why he left New York in 1970 to go live by the ocean in Florida, he alludes to a feeling of responsibility about “everybody … leaving their spouses,” then says a fortuneteller told him “it wasn't my fault but that I should go to sunshine and water” and he “was pleased with that.” He gives as the secret to happiness “enjoy[ing] something simple, like just looking at the ocean.”

John Edwards and the Coatless Girl. Edwards' use of the image of a "coatless girl" to represent the 35 million Americans who fall below the poverty line is coming in for some of the same sort of questioning aimed at Reagan's "welfare queen."

"Edwards would do better to say there's a girl somewhere in America who's cold because her family can't afford to fix the furnace," said Robert E. Rector of the Heritage Foundation, a conservative research group, who has analyzed data from the Census Bureau and other agencies on the living standards of the poor. Since the typical American family below the poverty line has a car, air-conditioning, a microwave oven, a stereo and two color televisions with cable or satellite service, Mr. Rector said, it was implausible to assume the family could not afford coats.

(Nice caricature of Ralph Nader at that link too.)