Film Review: Walk the Line (dir. J. Mangold, 2005)

I really liked this movie, but I'm not sure that it's really that great a movie. If you like that sort of thing, the music is great, and that makes up a lot of the running time (how much of the running time, in percentage terms, is taken up with musical performances?). Reese Witherspoon's performance as June Cash is also great, and she will probably win one more award to go with her Golden Globe and SAG Award. The one thing I find interesting about Witherspoon is that she has such a pretty face--a face that could be distracting--and that that face is, at the same time, so expressive. It's less the delivery of her lines than the expression of those lines through her face. Jaoquin Phoenix is better than one might expect as Johnny Cash, although it's hard to forget that he's not actually Jaoquin Phoenix.

The story is well-told, but it's a story you know. Dirt-poor guy makes it big in music, gets addicted to drugs, but cleans himself up after some interpersonal conflicts, and then goes on to become an institution because, well, his music speaks to people. Especially the common man, who may not have become addicted to drugs, trashed any hotel rooms while on tour, or any of that "life on the road" jazz, but has seen some rough times and some disappointment. OK.

Short post today--the in-laws are in town, and I have to teach tonight (my part-time gig). More posts toward the end of the week and over the weekend.

Eight Hundred Billion Dollars

According to this Heritage Foundation report, that's what the federal budget deficit may reach in 2015, if current spending trends continue on track. As the report points out, the deficit-projection figures that congressional leaders and administration spokespeople refer to in public (and in private?) are based on assumptions like, well, that the U.S. won't appropriate any more money than it already has for the war in Iraq, that the growth in domestic discretionary spending won't exceed the rate of inflation, and so on. So when--if--the president talks about the budget next week in his state of the union address, don't believe it.

P.S. Does "eight hundred billion dollars" sound like more than ".8 trillion dollars"?

Happy Birthday, Sam!

Link.

Btw, I'm noticing that my film reviews rarely draw any comments. Why not? Nobody out there is watching movies?

Partisanship (per se) is never a virtue

There's a good conversation going here (comments) about the state of the U.S. party system. But I just want to chime in and state that partisanship (per se) is never a virtue. Not even advocates of the party government model advocate partisanship (per se/qua partisanship). They advocate a certain model of party behavior--one that does not exist in the U.S. today, no matter how toxic the party/partisan environment. But not partisanship per se.

As a long-time advocate of the party government model, I thought I should point this out. I can (and should) say more, but it's late, and it's time for bed.

Friday Cat Blogging

More than enough cute-ness.

Serious posts will follow. I promise.

Film Review: Munich (dir. S. Spielberg, 2005)

[Spoiler alert.]

This is a great film, another Spielberg masterpiece. The film has received a lot of criticism from the right, especially the fanatically pro-Israeli right, for its "message." But I'm not sure that the message of the film is what its critics say it is. (It must be great to be able to plus almost anything into an ideological frame and find out what you think of it, without thinking.) Because like any great film or novel, this film offers different perspectives, different points of view. More on the "message" below.

I'm sure that you know the storyline--after the "Black September" Palestinian terrorist attack at the 1972 Munich Olympics, which left 11 Israeli athletes dead, the Mossad (Israeli intelligence) assembles a team to hunt down and kill the planners of the attack. (Or, at least, that's what the team is told.) The team is led by Avner (Eric Bana), a dedicated son of Israel whose father was some kind of hero of the war for independence (the father's heroism is never elaborated upon; it's a plot background point). Avner's wife is seven-months pregnant, but he answers the call of Israel and goes underground, leading a team--explosives "expert," document forger, hitman, "fixer"--in the dirty war between Israel and the Palestinians.

There's lots of suspense as the team carries out its mission, but the film's focus is the impact that the mission has on the team members. The explosives expert basically checks out. His speech on how if Jews lose their righteousness, then they lose their souls is an important one--an important perspective on the dirty war. The hitman, on the other hand, "rejoices" at the killings and cares only for "Jewish blood." The fixer is full of doubts, even about the mission--and his doubts prove well-founded, after he is murdered.

But the center of the film is Avner, a complex character. His character moves between various points in the family-loyalty to human beings-loyalty to abstractions-loyalty to the State space. Like I said, he begins the story by leaving his pregnant wife (family) to take on a dangerous and dirty mission for the State. But over time, his life becomes more complex as he develops a relationship with a mysterious French family that sells information, but not to governments. There's a great sequence--the screenplay here should win Best Adapted Screenplay (Tony Kushner was one of two writers)--where the Mossad wants to use some of the information, but Aner worries that this will blow his cover with his informant(s), and he is cross-pressured. In the end, it's interesting that his falling out with his Mossad handler (himself an interesting character, played marvellously by Geoffrey Rush) comes when the handler wants Avner to provide information about the informants, and he refuses. Avner's wife says at one point that "Israel is [Avner's] mother." Lots of playing on the family-State loyalty theme to chew on here.

There's a lot one could say about the film. I want to highlight some of the great storytelling. The Munich attack itself is presented from the perspectives of Israelis and Palestinians, which is an interesting touch. (This is probably one of the things the fanatical pro-Israeli right hates--presenting these things from both sides.) The film's narrative center is a conversation between Avner and a P.L.O. terrorist (Ali), which could just as easily be Avner's conversation with himself.

There's a great deal of cinematic realism. This is the first film I've ever seen that shows a husband having sex with his visibly pregnant wife. But here, realism means some gore. There's the assassination of the [spoiler!] beautiful Dutch hit-woman, which ends with the assassins leaving the Dutch woman naked and bleeding. Another shot I liked was the Israeli athlete shot through the cheeks.

The film looks like it was shot in the 1970s. The print is grainy, not super-digital sharp, which I liked. Great clothes, hair, and cars.

I could go on and on, here. Go see this film. I would be interested in what others took away as its "message." Because I think that it is a "message picture," even though that message is not the standard one you hear from the film's detractors: "Violence can't solve problems." It seems implausible that the director of Saving Private Ryan and Schindler's List could think that. But in thinking about the "message," keep in mind the film's eerie last shot. I won't spoil that. You have to see it for yourself.

In Case You Don't Read Wolcott

This post is worth a look.

What troubles me most about the present day, as discussed in a previous post, is that there is so little independent thinking going on. Republicans seem to all mouth the same talking points, and many Democrats think that Democrats need to adopt the same kind of mentality in their ongoing war against the Republicans. Every event is interpreted through the "our side versus theirs" filter.

There was a Golden Age, at least a Bronze Age, when Republicans publicly disagreed with Republicans over matters of importance. Democratic bloggers would have gone insane back in the day when there were actually conserative Democrats. But in this Iron Age . . . there is only politics as a zero-sum game.

That's why the upcoming Senate "hearings" on the NSA domestic spying scandal will be a joke. Prediction: a majority of the Judiciary committee will find, based on the most minimal of assurances, that the program was 100% legal. Probably before the hearings start.

Film-Like Substance Review: The Wedding Crashers (dir. Who Cares? 2005)

OK, so this is not a serious film. It doesn't even take itself seriously. But it is funny, at least in parts. The storyline: Vince Vaughn and Owen Wilson are two D.C.-area divorce lawyers who crash weddings to meet temporarily libidinous females and bed them, under false pretenses . . . which is as sad and pathetic as it sounds, and the upside of the storyline is that even these guys realize how pathetic this is at the end. Well, it takes quite a bit for Owen Wilson to realize this--the intervention of the Will Ferrell character, who has stooped to crashing funerals, thus proving that no matter how pathetic you are, there's always that other guy.

Both characters fall in love, they fall out with each other, and then they reconcile with each other and find true love. All that happens in the second half of the movie, which is by far the less funny part. In a very real sense, this movie violates the Seinfeld rule: "No growth, no hugs." These characters grow, and they hug.

Vince Vaughn is the star here. His "performance" is very funny. Ferrell is Ferrell, in the ten minutes of film he's in, playing that insane guy who seems sane, 80% of the time, but then there's that other 20%. Owen Wilson is the problem. Vaughn swamps him in every way, including physically (Vaughn is like 50% bigger). I've seen Wilson in things I liked him in (Zoolander), but this is not his movie. And Christopher Walken is wasted in this movie.

Not bad, but not great. If you like this kind of movie, you've already seen it, I'm sure. Any thoughts?

You Can Never Tell

Five comments, as of this writing, on an aside on Catholic schoolkids at the anti-Roe protest. Sometimes I write a lot and get no comments. This post got a comment from Lips! And Stephanie and the tenacious one agreed!

I'm still not sure whether a protest march is an appropriate school outing. As a sometime teacher, I have to say that I'd never "officiate" for my students at a protest. Moreover, in this case, the students were not adults, so these teachers were responsible for the students; if I took my (college) students, they would be responsible for themselves.

But, full disclosure . . . I have attended political events with students. Now, in context, I was the faculty adviser of the Case Democrats. So I was there in at least a semi-official capacity. But the students always organized these events; my role was merely supportive.

So, say, students at a Catholic school organized an anti-Roe group, and they wanted, on their own initiative to participate in the annual anti-Roe march. And they raise the funds to go to D.C.--let's be clear, these students were from all over the U.S., at least the eastern U.S., so this wasn't like an afternoon off, it was an overnight trip. Well, then, the students need a faculty sponsor/chaperone. And the faculty adviser(s) are the obvious candidates. That scenario I don't find particularly troubling, in the abstract.

However, if the issue were not abortion, but instead a student anti-war group, I can't imagine that school sponsorship of student participation wouldn't draw the ire of rightwing commentators--not readers of this blog, but you know who (that War on XMas guy). This was a protest march, after all.

And Sam and Lips raise the issue of student impressionability/the authority issue. I don't think anyone would defend a school imposing mandatory attendance at a protest rally; that kind of forced speech is clearly out of bounds, even if the school has a moral mission, I think. But authority figures--like nuns--may have influence over their charges that blurs the boundary between free choice and less-than-voluntary participation. I'm not saying that any of that was going on here. But I can't rule it out, either.

So, I'm not sure about this as an appropriate school outing.

TMcD raises the participation of the children of Birmingham in the protests in that city in 1963. But I'm not sure that the arrow points in the right direction here. The more I think about this, the more problematic that use of those children becomes. And a consent argument can't get one off the hook, here. Children cannot consent to the same range of acts that adults can. Maybe putting children's bodies in harm's way was an effective political strategy, but I'm not ready to embrace it as a 100% "pure" strategy. In a sense, it's a "call the other side's buff" strategy, and if the other side isn't bluffing . . . then you lose the pot. If the pot includes people, children . . . then that's on you, at least in part.

No Energy to Post

Sorry, folks. This blog will return in the next couple of days. Maybe tomorrow. I'm too tired.

I should note that Union Station was jam-packed with Catholic schoolgirls today--not in short skirts, but in pro-life sweatshirts. Because today was the anniversary of Roe v. Wade, so there was a big protest. The Catholic school kids--including thousands of teen boys concerned with the abortion issue, apparently--were accompanied by teachers, including nuns, and seemed to come from all over the eastern U.S., anyway. Is this really an appropriate "school outing"? I'm not sure. If teachers, even private school teachers, took their kids to a liberal-leaning protest, wouldn't conservatives blow their stacks?

Mr. and Mrs. Smith, D.C.-Style?

We were just watching Press the Meat, and once again we were struck by that political odd couple, James Carville and Mary Matalin. These two have been married for a long time now, and they generally seem to like each other. But he's a rabidly partisan Democrat, and she's a Cheney Republican; worked for Cheney, even. And then I was thinking, isn't this like the political version of the movie Mr. and Mrs. Smith? Here are these two "hired guns," married to one another. They're even hired to assassinate one another, in a sense. Anyway, just a thought.

Saw two films this weekend that must be reviewed. It would be difficult to find two more different films: The Wedding Crashers and Munich.

What Ever Became of This?

Senate 1981 roll call vote (# 115), on the Department of Defense Authorization Act: Wallop amendment authorizing $30 million additional funding for development of a space-based laser weapon. Here's how the DPC vote book describes the debate (only three senators voted nay):

Proponents argued that the laser program is a most exciting development because it is a weapon directed not at human beings or cities or industry, but against other weapons. For the first time in many decades, defensive capabilities may overtake offensive capabilities, and we may be able to protect the American people from the terrible effects of nuclear war. A primitive five-megawatt laser battle station would cost $2 to $3 billion. Four of these could destroy all Soviet bombers and many submarine launched missiles. A full deployment of 24 ten-megawatt lasers, costing $50 billion, could destroy all Soviet ICBM's. Intelligence officials estimate that the Soviets will test a laser weapon in orbit by the middle of this decade. The U.S., they insisted, must press its technological advantage to develop this truly defensive weapon before the Soviets.

I'm pretty sure we never deployed these laser battle stations, so I guess this never came to much. I think that these so-called intelligence officials were watching Moonraker rather than analyzing actual intelligence. I mean, Moonraker was released in 1979, so it's possible. Or, at least that's what my intelligence officers tell me . . . .

Who's Blogging Now?

If you're an AP Reader type, you might know these "regular" guys. (They podcast. Not even Sam does that.)

More of y'all need to start blogging. It's fun, it's easy, and look at how many readers you get. I don't think I've had a comment in a week. I know that my posts have been lame, but help me out, here, people.

A Bad Month

The last month (30-31 days) has been very bad. Not for me, personally. But for the United States of America.

Why?

The NSA story broke in the last month. Is that story really that bad? Well, the bad--worst--part there is that so many supporters of the president instantly leapt to defense of the policy, without even stopping to ask details before arguing that the policy is 100% legal. I don't know what the ultimate outcome of this story will be, but that G.O.P. forces are willing to defend, well, almost anything, sight unseen, without details, strikes me as an ominous development.

The Abramoff story is largely the same. G.O.P. identifiers and supporters are, well, not outraged. "Politics as usual." But this scandal, and all of the related scandals, suggest a much larger scandal than "politics as usual."

The key fact is not the scandal, but the completely partisan, completely polarized reaction. Today, the truth no longer matters. The law no longer matters. All that matters is which side wins, which side loses. I don't think that democracy can work under these terms.

But to continue with the bad month theme . . .

The Alito hearings were a complete disaster. I don't mean that from a partisan point of view. I think that Alito should be confirmed, and I believe that he will be. I will be surprised if there's a filibuster. Really, really surprised. But the problem was that the opposition party senators made a mockery of themselves, and most of the majority party senators asked nothing like real questions. The worst offenders on the Democratic side, Kennedy and Biden. I won't go into details--too gory. Biden is a complete ass, and Kennedy is past his prime . . . by like twenty years. Btw, I'm not a big Mike DeWine fan, but he actually asked Alito real questions. But DeWine was actually an exception among the Rubber-Stamp, er, I mean, the Republican senators. I sat in on a session today in which a reporter suggested that we should just do away with confirmation hearings, at least the hearings where the nominee testifies. Is that really the right solution?

The problem is also, of course, that the nominees don't answer any questions. But that's a whole discussion in its own right.

On Dec. 30, the president signed the Detainee Treatment Act (DTA), which the government now argues strips the federal courts of jurisdiction over even pending cases involving the rights of detainees in Guantanamo Bay, Cuba. In sum, the government's position is that the detainees have no rights, except the rights that the government wishes to give them. Now, if these guys were terrorists, maybe that wouldn't be a problem. But it's well past the time when it was possible to believe that the U.S. is only holding hard-core al-Qaeda terrorists in Gitmo.

Jurisdiction-stripping is happening. Right. Now. And. It's. Not. Even. Newsworthy.

I won't even get into the ridiculous coverage of the C.I.A. missile strike on a remote village in Pakistan. None of the readers of this blog know whether we really hit "anyone important." And none of us will ever really know, certainly not for years. The problem, again, is that the fact that the Central Intelligence Agency is carrying out military missions, apparently on its own is completely non-controversial. Is this the way that the United States of America does things?

This is not the country that we teach students about in civics classes. Not anymore, it isn't. Period.

This has been a bad month. And things aren't likely to get better soon.

Film Review: Dark Passage (dir. Delmer Daves, 1947)

This Humphrey Bogart-Lauren Bacall film noir vehicle is something of a letdown. For one thing, there's not much of a mystery. Bogart plays an innocent man convicted of killing his wife. He escapes from San Quentin and returns to San Francisco to find the true killer, O.J.-like, kinda-sorta. The problem--his face is on the front page of every newspaper, and, in a pre-tv age, that means he can't moe around in public. But he runs into a cab driver who suggests a de-licensed plastic surgeon who can change his face . . . and make him look like Humphrey Bogart. Now, I can usually suspend disbelief, but the man on the lam just happens to meet this friendly cab driver, who could turn him in for $5,000 but instead helps him by taking him to this plastic surgeon, he just happens to know? OK, OK, I know, it's noir.

There's a camera trick here, which is that until the protagonist, Victor, has the plastic surgery and the bandages removed, we never see his face. Instead, much of the film is shot from his perspective, so he's looking out the camera. Maybe this was the first movie where that was used. If so, it was innovative. It struck me as gimmicky.

I'm also not sure about Bacall's character's motiation to help Bogie out, here.

But my biggest problem with the film was the end . . . spolier alert. There's no twist at the end. The film has a happy ending. Huh?

My sense here is that the studio wanted to do a Bogie-Bacall movie and just shot any old screenplay. It's still entertaining, but it's no Big Sleep.

Gonzalez v. Oregon (2006)

The Court issued its 6-3 decision and opinions in the Oregon Death With Dignity case yesterday, affirming the Ninth Circuit's decision that the Oregon doctor-assisted suicide policy can't be overridden by the attorney general issuing an "interpretive rule" that prescribing drugs for that purpose is not a "legitimate medical purpose" under the Controlled Substances Act of 1970 (CSA). In effect, the Court (in an opinion by Justice Kennedy, joined by Justices Stevens, O'Connor, Souter, Ginsburg, and Breyer) issued a strong "states' rights" opinion, but the opinions themselves focus on the attorney general's power to issue the regulation and the deference due to regulations promulgated by the executive branch. Justices Scalia and Thomas both wrote dissents, and the Chief and Thomas joined the Scalia dissent, which is pretty persuasive on the issue of deference. (This was Chief Justice Roberts's first public dissenting vote. He still hasn't published a dissenting opinion.)

The interesting point in Gonzalez v. Oregon is that, less than a year ago, the Court held that the CSA precluded California's medicinal marijuana program in the Raich case. Raich was also 6-3. In that case, Justice Stevens wrote for himself and four colleagues--Justices Kennedy, Souter, Ginsburg, and Breyer--and Justice Scalia wrote a special concurrence; the Chief Justice (Rehnquist) and Justices O'Connor and Thomas dissented.

That means that the only two Justices to hear both cases taking the "same" position with respect to both state medicinal marijuana policies and state doctor-assisted suicide policies were soon-to-depart Justice O'Connor (voting to uphold both state policies) and Justice Scalia (voting against both state policies). The other five members of the Gonzalez v. Oregon majority (other than Justice O'Connor) all flipped to the "states' rights" side. And Justice Thomas flipped to the federal power side.

I don't know what to make of that, but it's worth mentioning.

Wilding

Anyone else disturbed by the treatment that these young white men charged in Fort Lauderdale, Florida, with beating three homeless men, killing one, are getting? The news coverage is surprisingly sympathetic to these guys. Neighbors saying that they can't believe the story. Reporters, in their own voices, emphasizing how young they look. I'd bet dollars to donuts that if these "young men" were African American, they would be described, by someone on the tv, as animals. I don't see why these guys don't get the same media treatment as the monsters who beat and raped the Central Park jogger. (It's possible that Bill O'Reilly did that on his show. If so, and you were watching, let me know.)

Btw, there's talk on tv about "the lack of motive" for the beatings. Have these reporters never heard of sadism?

BBtw, will the 18-year-old charged with murder get the death penalty? Almost certainly not.

What I've Noticed Watching Football the Last Two Weeks

The last two weeks have been very strange football weeks, weather-wise. Seattle has had something like 27 straight days of rain, and you could tell watching that game last night. No one seemed able to hold onto the rock.

Last night, for the Patriots-Broncos game, in Denver, CO, on January 14, it was 54 degrees at kick-off. No swirling snow, you couldn't see the players' breath. Because it was a balmy night in the Rocky Mountains.

Last week, in Cincinnati, on January 8, it was 61 degrees at kick-off. It was so warm, for a playoff game, that the Ben-Gals wore their skimpy cheerleading uniforms.

At some point, this is more than just talkin' about the weather.

Box Office

Well, Brokeback Mountain continues to do surprisingly well at the box office, despite showing on fewer than 700 screens. On Friday, it was still in ninth place, despite showing on half as many screens as any other film in the top 14 (Casanova, at number 15, is showing on about 1100 screens, compared to Brokeback Mountain on 683.)

The most amazing stat is that Brokeback Mountain is making much more, per screen, than any other film.

What does that mean? It means that, where the film is showing, it is selling out almost all the time. If you've been to see it, you know that this is the case. Why is this important? Despite the film's critical success, there are many folks out there who will be quick to criticize this film, mostly without seeing it, as "liberal Hollywood pushing the homosexual agenda on the American people," and lack of box office success would make that criticism more powerful, because then they could argue that "the film didn't make any money, which shows that people weren't buying."

It's clear that people are buying, at least in the theaters where the film is showing.

Btw, if the film were released more widely, it would make even more money, although its per screen gross would certainly fall into the range of "mainstream" Hollywood pictures like Rumor Has It or The Family Stone.

My review.

House v. Bell Oral Arguments

I was able to get into the oral arguments in House v. Bell, a capital punishment case out of the Sixth Circuit involving a death-row inmate with at least a colorable claim of actual innocence. Despite new scientific evidence undercutting the prosecution's theory of House's motive, and evidence that the blood evidence presented at trial was badly flawed, and five witnesses willing to testify that the victim's husband has since confessed to the murder . . . House can't get a hearing on a number of constitutional claims because of a little doctrine we like to call procedural default. Ah, but actual innocence is one of the claims that opens a "gateway" around the default . . . without getting too far in the weeds, let me just say that the issue is how much of a showing of actual innocence does one have to make to get a chance at the possibility of relief?

My personal take on the case is that if House doesn't have enough to open the "gateway," then no one ever will. But a district judge and eight of fifteen judges on the Sixth Circuit en banc disagreed with that assessment.

Oral argument was more than a little strange. It was like an episode of "CSI: Supreme Court," with lots of talk about blood spattering, DNA analysis of semen, wounds, scratches caused by dragging a dead body, etc. My favorite exchange was between Justice Ginsburg and the attorney arguing for Tennessee, Ms. Smith, over whether the ground was dry on the day of the murder and, if so, where the mud on House's jeans came from. Although hearing Justice Scalia talk about "scratches on the thighs" as consistent with rape was also quite, er, odd.

I counted how many questions each justice asked the petitioner (House) and respondent (State of Tennessee). One can assume, for argument's sake, that justices ask more questions of the side they are more skeptical of, and that they vote the same way. In other words, if you ask more questions of the petitioner, House, then you vote to affirm. If you ask more questions of the State, then you vote to reverse. If that assumption holds, and that's a big "if," then the vote should be 5-3 to reverse, in House's favor. Here's my count of questions:

Chief Justice Roberts, affirm (5 questions to pet., 3 to resp.)
Justice Stevens, reverse (7 questions to resp., none to pet.)
Justice O'Connor, affirm (3 questions to pet., 1 to resp.), but her vote won't count once Judge Alito is confirmed
Justice Scalia, affirm (16 questions to pet., 5 to resp.)
Justice Kennedy, reverse (5 questions to resp., two to pet., and those two were asked at the same time)
Justice Souter, reverse (seven questions to resp., one to pet.)
Justice Thomas, affirm (although he asked no questions of either side)
Justice Ginsberg, reverse (eleven questions to resp., three to pet.)
Justice Breyer, reverse (eleven questions to resp., four to pet.)

I'm sure about everyone's vote here but Justice Kennedy's. At argument, I was sitting behind Barry Scheck. Yeah, Barry frackin' Scheck, of the O.J. Dream Team and Project Innocence. On the way out, I asked him what he thought. I was somewhat surprised that he was responsive to an inquiry from some random guy sitting in the courtroom. His companion/assistant said, "It's all up to Justice Kennedy." I agreed and pointed out that he asked more questions of the State, and she said something like "that's a good sign." (As this story demonstrates, Barry Scheck really didn't speak to me, in so many words. Although I did shake his hand.)

So it's on Justice Kennedy.

Btw, as the question count indicates, Justice Scalia appears very skeptical of House's claims of actual innocence.

BBtw, on the way to the courthouse, I walked past the Hart Senate Office Building, where the Alito confirmation hearing was going on. There was a demonstration going on--a pro-Alito demonstration. Lots of red signs reading "Confirm Alito" and lots of small children. Tweens and teenage girls holding a banner reading: "We [Heart] Alito." That, too, was a little strange. The effect, to be perfectly honest, was a combination of groupies out of Teen Scream and a "spontaneous demonstration" in support of Chairman Mao.

You Have Questions, I Have Answers

TMcD asks: We've heard a lot of conservative hand-wringing about the use of foreign and international law in interpreting the constitution. The founders would have been outraged, yada yada yada. Here's the question: wouldn't this also have to apply to English common law? Scalia uses common law all the time to explain original intent. Why isn't this offensive? Now, I know that we have a "special relationship" with the Brits and all, but that's pretty recent. At the time of the founding, they were our bitter enemies, with spies and loyalists (sleeper cells) all over the place. Why would we ever use THEIR laws to interpret our own? Damned royalists.

On the other side, if the founders themselves relied on foreign enemy laws, enemy legal theorists (Blackstone), and sometimes even the ideas of philosophical Frenchies (Montesquieu), does that mean that a genuine originalist would be REQUIRED to incorporate European understandings into our Constitution? Just curious.

The common law is different from "foreign" or "international" law in a number of significant respects. Most importantly, originalists and many others believe that the Constitution is properly interpreted as incorporating the common law, as it existed at the time of ratification. In other words, that the framers (and ratifiers) of the Constitution intended the Constitution to be consistent with their common law heritage.

I think that this approach is absolutely correct for certain constitutional provisions. ASIDE: But, interestingly, almost no one thinks that this approach is correct for other provisions. Most significantly, the common law of seditious libel would permit the criminalization of criticism of the government, even when true. I don't know of anyone still holding to that common law interpretation of the First Amendment's scope (i.e., the First Amendment only protects against prior restraints and does not protect speakers from punishment, for political speech, after-the-speech).

Thinking of the common law as the basis for many of the rules embodied in the Constitution, then, one can see why originalists and others have no problem with judges using the English common law to interpret the Constitution. (And here, it's the English common law, not "British.")

To employ a simile, the English common law is like a river that flows into the river of the American river of constitutional law. But denial is a river in Egypt--and so is foreign law.

I would actually go a little further, though. One has to remember what the common law is/was/has always been. The common law is judge-made law. But when judges make law, they make it by [pretending that they are only] finding universal principles of justice and fair play. (Thus, judges don't actually make law, according to the theory.)

Thus, referring to the common law can also be understood as referring to universal principles of justice. And who is going to complain about that?

But "foreign" law is a completely different kettle of fish. First of all, foreign law is not judge-made law, for the most part. Although there are exceptions, most international law is made by legislatures, parliaments, or embodied in international treaties and conventions. All explicitly man-made.

To cut to the chase: the common-law is closer to a natural-law approach to the law's sources, foreign/international law closer to the positivistic/legislation model. Critics of the use of foreign law tend to be more comfortable with a natural law approach. To the extent that they are positivists, they reject the idea that another sovereign's law can bind the sovereign American people, in any way.

Finally, "conservative" critics of the use of foreign law in interpreting U.S. law tend to prefer the policy embodied in eighteenth-century common law much more than the policies embodied in present-day European law. Thinking only of the death penalty, here, eighteenth-century common law would place few limits on capital punishment, but present-day European law would, well, prohibit capital punishment.

Finally-finally, I think that it's a mistake to focus on the British in the 1780s as "the Enemy." That's not how the Framers would have defined things. For the most part, they were proud of their English heritage, and up until the Revolutionary war itself, they would hae described themselves as Englishmen or "British." Indeed, they often tended to perceive themselves as the "true" English, in the sense that they were more faithful to the "ancient constitution" than the corrupt court of the late eighteenth century. So this isn't a matter of the Framers depending on the law of the "Other." It was their law, the law that they had been trained in, if they had legal training.

Friday Catblogging

Computers Don't Get Irony

I guess I have to be more cautious re: linking so freely to articles in the Washington Post. I got picked up in Technorati's sweep of the blogs for my most recent post on Marion Barry's failed drug test. (I posted the text below, but it probably won't look that great.) I probably got more visits today than ever before . . . but that isn't altogether a good thing.

Btw, Technorati summarized my post as "Barry got set up again." Like the Man said, computers don't get irony. Isn't that how Logan beat the computer in Logan's Run? How Captain Kirk beat some super-computer some time or another? How Odysseus defeated the Cyclops?

But this is different. There's no defeating this Technorati juggernaut.

Who's Blogging: Blogs About This washingtonpost.com Article

7 Posts Link to:
News Elicits Sadness, Not Shock
The news that D.C. Council member Marion Barry failed a court-ordered drug test in the fall drew sighs, prayers and a call for him to take a leave from his council seat. But at his old haunts and among his constituents, what was missing yesterday was a sense of surprise.
–
Eric M. Weiss and Robert E. Pierre
Narcissistic views on News/Politics
... Politics: At this point it is just a sad spectacle. Let the man get help and away from public office. The news that D.C. Council member Marion Barry failed a court-ordered drug test in the fall drew sighs, prayers and a call for him to take a leave from his council seat. But at his old haunts and among his constituents, what was missing ...
Freedom from Blog
... Barry got set up again ...
Delusional Duck
... failed a court-ordered drug test ...
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"Bitch Set Me up."

That is, of course, what Marion Barry said after his 1990 arrest for crack cocaine possession. You remember that. Don't you?

Well, Barry got set up again. I guess that the same beeyatch who spiked his oatmeal with cocaine also failed to file his income taxes for the last six years.

"You Can't Handle the Truth!"

Remember the scene in A Few Good Men where, er, that crazy guy is playing a Navy lawyer defending Gitmo-based Marines, and he calls the base commander, Colonel Nathan Jessup, played by, er, that other crazy guy, to testify? And where Jessup insists on answering a question, even after the judge informs him that he need not?

Well, my friends, that was what we call fiction. Real military officers called to testify in military proceedings take the Fifth.

We All Do It

Don't we all eat at our desks? The Washington Post has a hard-hitting article today. Best paragraph:

Disease-causing germs are another problem. The typical desk has 100 times as much bacteria as the typical kitchen table, according to a study by University of Arizona researchers. Keyboards and telephones tend to be even dirtier than desks. "You have to clean these surfaces regularly," says Taub-Dix. "You wouldn't eat lunch at a restaurant that didn't wash its tablecloths, would you?"

That really makes me think. I know that my desk blotter is filthy. (Of course, I'd never eat directly off the blotter.) But I liked this, too:

Blame it on the difficulty of juggling work and family, the speeded-up business cycle, the unintended consequence of technology or pervasive economic anxiety. Whatever the reason, lunch routinely eaten with colleagues or friends outside the office has gone the way of defined benefit pensions and other workplace dinosaurs. Few have the time. In America, says University of Pennsylvania psychologist Paul Rozin, lunch is not a meal. "It's a fueling."

Lunch outside the office. How Jurrasic.

Worst. Answer. Ever.

This was my favorite exchange of the day, yesterday. In case you missed it.

KOHL: Last question.

Judge Alito, I understand that you're reluctant to comment on cases that you would likely have coming before you in the future, but I'd like to ask you about a case that the Supreme Court certainly will never see again: 2000 presidential election contest between President Bush, Vice President Gore.

KOHL: Many commentators see the Bush v. Gore decision as an example of judicial activism, an example of the judiciary improperly injecting itself into a political dispute.

Indeed it appears to many of us who've looked at your record that Bush v. Gore seems contrary to so many of the principles that you stand for, that the president has said you stand for when making your nomination: talking about judicial restraint, not legislating from the bench and, of course, respecting the rights of the states.

So, Judge Alito, I'd like to ask you: Was the Supreme Court correct to take this case in the first place?

ALITO: Well, Senator, I think you're probably right, and I hope you're right, that, that sort of issue doesn't come before the Supreme Court again.

Some of the equal protection ground that the majority relied on in Bush v. Gore does involve principles that could come up in future elections and in future cases.

As to that particular case, my answer has to be, I really don't know. I have not studied it in the way I would study a case that comes before me as a judge. And I would have to go through the whole judicial process.

KOHL: That was a huge, huge case.

And I would like to hope and I would bet that you thought about it an awful lot, because you are who you are. And I would like for you to give an opinion from the convictions of your heart.

KOHL: As a person who's very restrained with respect to judicial activism, this being a case of extreme judicial activism, were they correct in taking this case, in your opinion?

ALITO: Well, there's the issue of whether they should take it and the issue of how it should be decided.

And, Senator, my honest answer is I have not studied it in the way that I would study the issue if it were to come before me as a judge.

And that would require putting out of my mind any personal thoughts that I had on the matter and listening to all of the arguments and reading the briefs and thinking about it in the way that I do when I decide legal issues that are before me as a judge.

And that's the best answer I can give you to that question.

It was obviously a very important and difficult and controversial case. And in a situation like that, the obligation of a judge all the more is to be restrained and is to go through the judicial decision- making process and only at the end of that reach a conclusion about the issue.

KOHL: Thank you, Judge.

Link.

"Oh, yeah. Never really thought about that case like, you know, like I would if it came before me as a judge. Don't really have an informed opinion on it. Nope. Didn't listen to the oral arguments, like every other lawyer in the U.S. Didn't really read the opinions. Didn't watch any of the coverage on the tv, read the 'papers, the law review pieces, the journals of opinion, etc., etc. Never discussed this in chambers with my clerks. Never. See, I'm not really interested in things like the law, politics, presidential elections, even deadlocked presidential elections. I just like baseball, Senator."

OK. I never thought that anyone would top Justice Thomas's statement during his confirmation hearing that he never discussed Roe with other law students while he was in law school. But Judge Alito did it.

Brief Mentions (Capsule Reviews)

I've seen a number of films in recent weeks, but I find myself lacking the energy to write full-fledged reviews. So I thought that I'd mention a few films that I've seen, on DVD.

The Petrified Forest, a 1936 film starring Bette Davis, Leslie Howard, and, in a breakthrough performance for 1936, Humphrey Bogart as the gangster Duke Mantee. But the film is based on a play and closely follows the kind of dialogue, direction, and acting one might have seen on the stage in the 1930s. The characters Howard and Bogart play are foils for each other--ineffectual intellectual and romantic vs. animalistic id. But the Howard character basically tells you everything you could figure out for yourself. Too much exposition, by far. (Btw, I made a bunch of other people watch this, and they all hated it.)

Hostage, starring Bruce Willis. This is a thriller I watched while at my parents' house. I wouldn't recommend it, although it's not terrible. It is a mess, though--the screenplay needed one more rewrite, minimum. My biggest complaint: Major questions about the (complex) plot remain at the end, especially the identity of the bad guys. Even after they are all killed, we have no idea who they were. Plus, why does the [one character] [do what he does] at the end? I have no idea.

Osama, that 2003 film about the little girl under the Taliban who disguises herself as a boy so that she can work, is then dragged away from work to a madrassah, then discovered to be a girl, put on "trial," and . . . well, I'll stop there, in case you haven't seen it. This one is the one to watch. A really beautiful, moving film about human suffering and striving under terror and oppression.

Fatelessness

This is an autobiographical Holocaust novel by a Jewish Hungarian survivor, Imre Kertesz. It is also a new foreign film. I read the novel over the holidays, and it's a great read. It's different from the other Holocaust memoirs/novels I've read, such as Night, The Drowned and the Saved, and so on, and I'm sure that the film will differ greatly from other Holocaust films. The word that I would use to describe Kertesz's voice is existential. His writing lacks sentimentality, completely. The tone is cold, observational. The narrator ends the novel refusing to forget what happened to him in the camps, becoming even nostalgic for his time there. It's a very different kind of novel.

I recommend the novel, and I hope to see the movie soon.

Btw, Kertesz won the Nobel Prize for Literature in 2002.

Rule of Law and Equality

TMcD argues in comments that equality is a fundamental aspect of rule of law. If that's true, though, does that mean that there was no rule of law in the United States until 1954? 1964? The 1970's? (Take your pick.)

Now, of course, there may be degrees of rule of law. But that's not how it's usually used, at least not in politics. It seems to either exist, or not. (I am comfortable with degrees.)

Btw, the whole discussion of stare decisis going on in the Alito hearing is so wrong-headed that it'll make you dumber if you listen to it for too long. And this is not just the Republicans, or just the Democrats, or even Alito's fault. It's all of them. I thought that Schumer almost got there, awhile ago, when he said that judges can disagree about what stare decisis means in a particular case. But if that's so, then why are the Democrats seemingly so obsessed with stare decisis? (Oh, yeah. Roe. The single most important super-duper precedent of all time.)

Rule of Law: What Is It?

The rule of law is a term bandied about a great deal, but one rarely hears anyone even attempt to define the term/concept. Anyone out there have any ideas?

My sense is that rule of law is a question of (properly functioning) institutions. (This should not come as a surprise to those of you who know me.) The basic idea is one of a disinterested decision-maker. If one (a person, a group, an official) serves as judge in its own case, then there isn't rule of law. Somehow, one must empower decision-makers at least one remove away from the interests involved in a conflict to resolve that conflict, and then empower that decision-maker and its decisions, i.e., enforce those decisions, even when they are contrary to the interests of the powerful. To strengthen the institutions, one needs norms against interested decision-making, conflicts of interest, etc. But the norms alone aren't the end of the story. This is more than a question of personal integrity.

Now, no set of institutions will ever function perfectly. Indeed, decision-makers will sometimes act in an interested manner, even when they should not. Sometimes decision-makers will be too close to the interests involved in a dispute (I'm looking your way, Congress).

Now, I don't want to be U.S.-centric here. I don't think that rule of law requires full-blown judicial independence, as in our federal system. But it does require (1) some kind of insiulation between the resolution of disputes and the parties to those disputes; and (2) some mechanism to enforce insulated decisions.

In addition, rule of law can be a question of executive-legislative relations, even of bicameralism. It need not involve the courts at all. Thus, no interest should legislate in its own interests, directly.

I'm not sure that rule of law is essentially a question of equality before the law, as the good judge Alito offered up today at the hearing. I mean, if the law itself is unequal, then application of the same law to different persons might not result in equality, but the judges involved would still have applied the law. For example, if the law said that blacks can't attend the same schools as whites, as it once did, then equality before the law would simply require the denial of attendance of white schools to all blacks, regardless of their social position. But I think that it would be hard to call that "rule of law." Even if the judges applying the law were doing their utmost to avoid their own personal views. This seems to suggest that rule of law is more than a formal, equality constraint. It has substantive content, too. But what is that content?

This formal equality conceptualization ("all are equal before the law") seems to be everywhere in the present day. Rule of law must be more than application of the law, per se. But when it comes down to it, it's hard to pin down . . . . These are some preliminary thoughts. I've just been hearing so much about rule of law, and I always get frustrated by the vacuity of the rhetoric. What is it? Let's discuss.

Film Review: Brokeback Mountain (dir. Ang Lee (no relation), 2005)

I saw this film last weekend, and I've been thinking about it all week. It's really a great film. Partly it's great because it's a great story, about star-crossed lovers and the damage that their ill fortune (i.e., they are both men) does to them and the people around them--especially Ennis's wife, Alma, played by Michelle Williams in a performance deserving a nomination, minimum. (Btw, all four "leads" do nudity in this film, including Anne Hathaway of Princess Diaries fame. Which is queer in its own way.) But the damage to Ennis (Heath Ledger, in a performance deserving more than an Oscar) is the greatest, perhaps, although Jack does get killed . . . as Ennis says, Jack Twist (Jake Gyllenhaal) ruined his life. If he hadn't fallen in love with Jack, he would have married Alma and had been satisfied. But his relationship with Jack was both the romance of his life, in many ways the best thing, the true-est thing that ever happened to him, but also the worst. It cast him as an outsider, as someone always distant, even for a cowboy, from those he should have been close to. Here the film cheats a little, giving us a brief moment of reconciliation with his older daughter and signs, at the end of the film, that he may close that distance that has been imposed between him and, well, the world.

That ambiguity--that the love between Ennis and Jack is both the greatest and the worst thing that ever happened to Ennis--is what makes the story great. This is not a "love conquers all" story. Love, frankly, cannot conquer all. It can't conquer social prejudice.

Partly it's great because of the performances. That must be mostly Ang Lee (again, no relation). Ledger and Michelle Williams give the performances of their lives, and Gyllenhaal is great, as well.

Partly it's great because of the natural beauty of the setting, in Wyoming.

If you haven't seen this film yet, and it's playing where you live, you should go see it. It will also see a wider release next week. Despite playing on fewer than 500 screens, the film has grossed more than $ 22 million and is number nine on the box office chart.

Sam and Rebecca agree. Rebecca complains that this not a gay movie because that term refers to a particular subculture, which didn't exist until after the main part of this story had happened and which, frankly, Ennis and Jack are not part of. I'm not an expert here, but I'm sure that that is the way the term is used in technical discourses. But that means that this can't be the gay cowboy movie. It has to be the homosexual cowboy movie. OK, I can live with that. (A little bird reminds me that Ennis and Jack aren't tending cows, but sheep. But "the homosexual shepherd movie" really doesn't work for me.)

Thoughts on King Kong

Rebecca says that King Kong is the worst movie of the year. Worse than Stealth? But seriously, I think that she makes some good points, despite my praise of the film's special effects.

I agree with Rebecca, for example, that Jackson's King Kong is, at a fundamental level, racist. The better half has suggested that Jackson's New Zealand background makes him less sensitive to the issue of race than an American director would be. I don't know enough about New Zealand (and the Maoris) to say. My point on this would be that, if you think about it, the King Kong story is fundamentally a racist one. King Kong is a giant, black gorilla who lives on a tropical island, where savages worship him and practice some form of human sacrifice to him. The savages, dark-skinned, seize a blond white woman and offer her up to the ape; the ape falls for the white woman, and that's, in the end, his downfall. In the process, the black ape is captured and, er, enslaved. But his brute, physical strength makes it impossible to keep him in chains. In the end, he must be destroyed.

One need not be Black Panther Eldrige Cleaver in Soul on Ice to find this narrative problematic.

If you want to tell the story, it seems to me that you can't avoid that racist baggage. I can't imagine what form the story would take to avoid the black-white issues (where the ape represents a racist image of the black man) and the modern-primitive/savage issues. Ann Darrow as a black woman? The ape is white? The Skull Islanders are Vikings?

So, one wouldn't really need to see King Kong to criticize the film as racist. At least, that's my view.

The film is also too long, and it is rather self-indulgent. But, as I hope to make clear in a future post, we live in The Age of Self-Indulgence. So the film is a product of it's time . . . .

Btw, I liked Spielberg's War of the Worlds. Link.

Organ Pipe Cactus National Monument

Dry Country

So I was in Arizona (on business) the last few days, but I did have a little time to get away and do some hiking/jogging/driving around/sightseeing. (I will post some pictures later.) Now, many of you will know that I am a big fan of the desert Southwest. But my impression every visit is that . . . there's no water there. This time I went hiking in the Organ Pipe Cactus National Monument, which covers part of the driest desert in the U.S. Not only is that area dry, all the time, but the region as a whole is in a ten-year drought. Now, if you're like me, you think, you can have a drought in a desert? But looking at the plants, mostly succulents, even they looked dessicated. Withered.

Then in yesterday's Arizona Republic, there was a front-page article on the lack of snowfall at Flagstaff; this year, there's been no measurable snowfall in Flagstaff, yet, the latest that that has ever happened there. And it was sixty and sunny there yesterday. Now the article focused on the business implications of this story (for the ski industry), but clearly a combination of drought conditions (no precipitation at all in Flagstaff for more than two month) and warmer conditions (record high temperatures for January in Arizona this week) is a major story for people living in a frackin' desert. Because there's no water there, and now there's even less.

More thoughts on climate change to come.

New Posts Coming Soon

Sorry for the long holiday hiatus. I'm away the next couple of days, but then Freedom from Blog returns, in all its glory, my friends.

Happy New Year!