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Friday, Jan 31, 2003

John sends this story about the world's smartest person, according to an elite IQ test.

Volokh's blog has discoverd the Prof. Dini, who refuses to write letters of recommendation for creationist students. It is amusing to see people defend this religious bigot with statements like this:
Is it possible to be a good MD and a good Creationist? I would suggest that the answer is no.

Meanwhile, Steven Pinker says the school should teach more evolutionary biology instead of foreign languages.


The Slate explainer tries to describe some of the problems with software patents, and repeats a common myth:
Until the early 1980s, the courts generally considered software to be nothing more elaborate than applied mathematics, and thus not patentable. That's why the geeks behind such pre-'80s computing wonders as the first-ever database, word processor, and spreadsheet missed the boat: ...
I reality, there were software patents in the 1970s, and the inventor of the spreadsheet program received a patent on it. It pre-dated VisiCalc.

John writes:
Roger Schlafly wrote
At 0159 PM 1/25/2003 -0500, Aschlafly@aol.com wrote We'll see if Bush handles this problem, of his own creation, by shirking the conservative agenda, such as the partial-birth abortion bill. John, are you still confident (as you stated on 12/25) that Bush/Frist will pass the bill?
Contrary to Andy's predictions, Bush reiterated his call for a PBA ban in the SOTU. Frist voted for the bill in the past (Oct. 1999), and there is every reason to expect him to put it through this year.
What is conservative about a partial-birth abortion bill? Under which of Congress's enumerated powers can Congress do this?
The proposed bill would only apply in those areas of federal jurisdiction where Congress's constitutional authority to legislate is already recognized, such as interstate commerce, federal territories, and federally funded programs.
Why pass a law that the SC has already found unconstitutional?
1. The proposed federal law is not identical to the state law that the SC rejected in 2000 by a 5-4 vote.

2. Maybe one justice can be persuaded to change his or her mind.

3. Maybe one justice will be replaced by the time a new case reaches the Supreme Court.

4. The SC decision was based on a dubious assertion of fact, namely that there could be some circumstances in which PBA is "medically necessary" (i.e. preferable to other types of abortion) to preserve the health of the woman undergoing the abortion. The proposed federal law (H.R. 4965 in the 107th Congress) contains a Congressional finding of fact, based on competent medical testimony, that the PBA procedure is *never* medically necessary to preserve a woman's health.

Roger Schlafly wrote: The Violence Against Women Act was also justified based on interstate commerce. How is this any better?
Abortion is a commercial activity, but violence against women is not.

Under New Deal precedents, Congress can regulate activities that merely "affect" interstate commerce even if the activities being regulated are not themselves interstate commerce.

But under the VAWA decision, activities that "affect" interstate commerce must at least be "commerce" even if they are not "interstate." Activities that are not "commerce" in the first place will not be deemed to "affect" interstate commerce.

I don't think that makes any difference. If someone brings a case, then someone must think that the procedure is sometimes appropriate. You want the SC to agree to a ban on something no one wants to do anyway? I just don't see what that gets you.
I didn't say no one "wants" to do it. That is not the test. Of course, some abortionists "want" to do PBAs, including Dr. Leroy Carhart of Nebraska, who brought the case involved in the SC decision.

But one doctor cannot be allowed to decide, unilaterally and arbitrarily and without evidence, that PBA is medically necessary. The standard of medical necessity requires more than just one doctor's unsubstantiated, uncorroborated wish.

There is no professional, peer-reviewed medical literature that supports PBA. No one has ever shown that any patient benefits from the use of that procedure. It is done for the doctor's convenience or other invalid reasons, not the patient's benefit.

I don't agree that the 2000 5-4 decision depended on that "fact". It was a routine application of Roe v. Wade. The decision would have been the same whatever the facts showed about medical necessity.
Roe v. Wade legalizes abortion only if and when it is medically necessary to preserve a woman's health. If the facts show that PBA is never medically necessary to preserve a woman's health, it is not within Roe.

Read Kennedy's dissenting opinion. He supports Roe but rejects PBA.

Maybe five justices are determined to protect PBA no matter what. But if the factual premise of Stenberg v. Carhart is untenable, they would have to come up with another argument.

I don't think Kennedy's dissent makes much sense. Note that only Rehnquist signed onto that opinion.

John's real gripe is with Roe v. Wade. The central holding of Roe v. Wade is that one physician can indeed be allowed to decide, unilaterally, and arbitrarily and without evidence, that late-term is medically necessary. There is no standard of medical necessity that goes beyond the abortionist's unsubstantiated, uncorroborated wish. Re-read Roe v. Wade, and don't get fooled by the dicta about trimesters.

I can see why John would disagree with Roe v. Wade, but that's the decision, and it has been repeatedly upheld for 30 years. It just does not leave any room for banning PBA.

George writes:

You are not really addressing John's argument that "Roe v. Wade legalizes abortion only if and when it is medically necessary to preserve a woman's health." He says the PBA is not necessary.
To understand that argument, you have to read the definitions. Roe defines health to include the woman's physical, emotional, and psychological health. And the medical judgment is solely in the hands of the physician who does the abortion, and he cannot be accountable to anyone for that decision. Burger's Roe concurrence says:
For my part, I would be inclined to allow a State to require the certification of two physicians to support an abortion, but the Court holds otherwise.
IOW, medical necessity is defined by one physician's unilateral opinion. As long as there is a woman who wants an abortion, and there is a physician willing to do it, then they have a iron-clad constitutional right to do it. There is just no way around it, unless Roe is reversed. Law attempting to regulate or restrict late-term or partial-birth abortions are just exercises in futility.

Thursday, Jan 30, 2003

Liza writes: "For those of you who deny any Iraqi link to al Qaeda, here is some evidence from William Safire."

John responds:

Assuming everything Safire says is true, Iraq is still a relatively minor center of al Qaeda activity. Of the major al Qaeda attacks on the United States, none originated in or were directed from Iraq, and none of the major actors were Iraqis. There's much less al Qaeda in Iraq than in Saudi Arabia or Egypt; less, perhaps, than Germany, France or Britain. Hence, the Safire column proves too much. If he is right that low-level "links" justify a U.S. war with Iraq, then, a fortiori, we should be at war with at least a dozen other countries - the entire Arab or even the entire Muslim world. A war with Iraq is estimated to cost $60 billion and absorb all U.S. military forces (including reserves and National Guard units). Winning the war means the U.S. will have to lead (and pay for) a reconstruction lasting many years in the future. I don't think we can afford it.
Liza responds:
The difference is that the Iraqi government, at least according to Safire, is actively encouraging, harboring, and financing the al Qaeda enclave in Iraq. The governments of Germany, France and Britain are certainly not doing likewise in their respective countries. As for Egypt and Saudi Arabia, I doubt there is evidence of government support, although there may be money going from individual princes and the like to al Qaeda.

Not sure if this site is for real. It claims that a company has this mission statement:
Create value for our customers by delivering innovative IP based services in a cost effective manner, that illustrates our commitment to a win-win solution and establishes a relationship based on mutual trust and satisfaction. Cultivate our relationships with our extended teams, strive for continuous improvement and offer an environment that encourages our team members to achieve their full potential while demonstrating our winning attitude.

I installed a new 17" LCD monitor, along with my CRT monitor. I can now have a desktop twice as large. It is a good setup for people who use a lot of open windows, as I do. But there are a fair number of Msft glitches. Eg, some Msft programs like to open their main window on one monitor, and often put the dialog boxes associated to the window on the other monitor. Even worse, it sometimes tries to center the dialog box in the middle of the two screen, so half is on one and half on the other. I get the impression that no one at Msft ever tested Windows2000 on a computer with 2 monitors.

John sends this Wired article about Xupiter being a malicious program. Don't get tricked into installing it.

Glad to see that the Patent Office is tightening up on the silly gene patents that it has been issuing. Boston Globe story.

Mike complains about Bush's pronunciation of nuclear and peninsula. He says, "After his speech I couldn't get my teenager to say the word correctly with any consistency."

Eisenhower, Carter, and Clinton mispronounced nuclear the same way. See Slate.


I think that the anonymous person who posted the recent Microsoft worm known as SQL Slammer did the world a favor. The worm does not do any damage to files, or anything particularly malicious. It was let loose on a Friday night, so businesses had all weekend to reboot and patch their servers. Disruption to business activities was minimal. The vast majority of the machines hit would probably have not installed the security patch otherwise, and would have left their servers open to much more malicious attacks.

The history of computer security problems is such that Microsoft and others do not act based on warnings about what might happen. It is not until there is an explicit attack threatening people that appropriate measures get taken.

Tuesday, Jan 28, 2003

Michael Fumento (or someone pretending to be him) sends this article he wrote on ADHD in The New Republic. He criticizes Phyllis Schlafly and other conservatives who are skeptical about giving ritalin to kids for behavior problems.

Fumento is one of the better journalists who tackles tough scientific issues. He attacks these so-called myths:

  • ADHD isn't a real disorder.
  • ADHD is part of a feminist conspiracy to make little boys more like little girls.
  • ADHD is part of the public school system's efforts to warehouse kids rather than to discipline and teach them.
  • Parents who give their kids anti-ADHD drugs are merely doping up problem children.
  • Ritalin is "Kiddie Cocaine."
  • Ritalin is overprescribed across the country.
  • States should pass laws that restrict schools from recommending Ritalin.

The chemical effect of cocaine and ritalin on the brain are extremely similar. A recent Slate article explained:

Both cocaine and methylphenidate, the generic name for Ritalin, are stimulants that target the dopamine system, which helps control the brain's functioning during pleasurable experiences. The two drugs block the ability of neurons to reabsorb dopamine, thus flooding the brain with a surplus of the joy-inducing neurotransmitter. According to animal studies, Ritalin and cocaine act so much alike that they even compete for the same binding sites on neurons.
A JAMA article says similar things. This is nothing new -- the DEA has known it for years and classified both as Schedule II drugs.

The question of whether ADHD is a real disorder gets bogged down into the definition of a disorder. As Fumento says, virtually all mental disorders are diagnosed without benefit of a lab test. What qualifies and doesn't qualify as a disorder to the psychiatric community would surprise the average person. But putting that question aside, it is important to understand that there is no objective test for ADHD (or ADD). Fumento mentions genes and brain scans and it sounds like hard science, but none of that is used to diagnose ADHD. According to official pediatric guidelines, the diagnosis is subjective and dependent on reports from parents and teachers on behavior during the preceding 6 months. And the symptoms are things like "Often not listening to what is being said." Even getting a second opinion may not be very useful, if the physician is relying on the same possibly-distorted reports from parents and teachers.

If stimulants have been known to be good treatments for ADHD since 1937, as Fumento says, we still need an explanation as to why ritalin usage has been going up so dramatically in the last 15 years. A recent Eagle Forum newsletter said:

MORE YOUTH RECEIVING PSYCHIATRIC DRUGS. A new study by Julie Zito of the University of Maryland in Baltimore, published and analyzed in the latest issue of the Archives of Pediatrics and Adolescent Medicine, finds that the number of American children being treated with psychiatric drugs tripled from 1987 to 1996, and shows no sign of slowing. By 1996, over 6% of American children were taking drugs such as Prozac, Ritalin and Risperdal. The researchers say the trend may partly reflect better diagnosis of mental illness in children, but they fear it indicates cost-saving techniques by insurance companies and the pharmaceutical industry. Michael Jellinek, chief of child psychiatry at Massachusetts General Hospital, who reviewed the study, says, "The medicine may help the symptoms but not address issues of self-esteem, interpersonal relationships and family relationships ..." Ms. Zito puts it this way: "Other than zonking you, we don't know that behavioral management by drug control is the way to learn to behave properly. If we are using drugs to control behavior, that doesn't change the underlying problem if someone doesn't know how to get along with their peers." Washington Post, 1-04-03.

Here is a Wired article about software code going to waste.

John sends this article about official reports that a database of gun ballistics is unworkable and impractical.

John sends this article on the California budget crisis, and how it is really caused by irresponsible spending increases in the last 3 years. It has some specific suggestions. Too bad we couldn't elect a governor with the will to carry out suggestions like these.

Johns sends this UK science article saying that Earth-like worlds circling stars in orbital zones suitable for life may be few and far between in the cosmos, according to new research. Interpretations of Drake's formula may have to be revised.

Those convicted of the NY Central Park jogger rape and beating have been released based on DNA evidence that supposedly exonerates them. Based on media reports, this is probably the biggest case of innocent people being convicted of a serious crime.

And yet the convicts are probably not innocent. They confessed, and nearly all of the reasons for the jury thinking that they were guilty are still valid. This report concludes that they were guilty as charged, and prosecuted and convicted properly.


This article explains how Title IX has been bad for men's sports, like wrestling. Title IX was intended for equal opportunities in education, but it has turned into stupid sex quotas.

Monday, Jan 27, 2003

An evolutionary theory shot down. The textbooks say that human childbirth is painful and difficult because of our large evolved brains. But apparently that theory has been shot down, and they now have goofier theories.

I happened to notice my kid watching Sesame Street or some other such show on the local PBS affiliate, and instead of the regular show, it had a pitch aimed at kids to get their parents to donate money! It was also filled with lies about PBS funding.

Sesame Street is a big moneymaker. The PBS stations got their licenses under promises of noncommercial TV. They shouldn't be showing commercials, and they shouldn't be trying to manipulate kids into pressuring their parents to send money. Do not give! Those who give are only making the problem worse.

George writes:

Why not give to your local PBS station? I happen to know that our local station is completely dependent on donations, and their pitches couldn't possibly be as bad as those for junk food like McDonald's. PBS is non-profit.
McDonald's is selling nutricious meals that I can either buy or not buy. PBS is a tax-supported broadcaster that I have to pay for whether I like it or not. The only reason that it looks like they need subscriber money is because that is how they juggle the books. The Sesame Street profits are spun off into a separate entity. The stations spend whatever money they can raise.

InstaPundit reports that the Ninth Circuit has gone back and removed citations to Michael Bellesiles. A very poorly reasoned anti-gun opinion had cited the disgraced historian. I guess the idiot judge realized that he had embarrassed himself.

Liza sends this Safire column on Iraq links to al Qaeda.

John sends this article on Why VHS was better than Betamax. I agree. VHS was better because it had essentially the same quality and twice the record time. A 2-hour tape was a whole lot more useful than a 1-hour tape. Other VHS advantages are discussed here.

The idea that Betamax was better is one of those myths that is often used to support some dubious point. Eg, it is used to show that network efforts sometimes cause an inferior product in the marketplace. Another example might be MS-DOS or the Dvorak keyboard. But these are also myths, and don't prove anything.

Sunday, Jan 26, 2003

The EFF has good comments on how the Copyright Office should grant some DMCA exceptions. These exceptions would partially restore fair use in a couple of narrow areas.

Andy writes:
USA Today just published the most accurate story on the expected Bush nomination to the Supreme Court. It describes how Gonzales is unacceptable to conservatives, and (unlike AP and NYT) mentions Emilio Garza as a candidate.

However, even the USA Today story misses Edith Jones, who should also be considered a leading candidate.

Roger says that Bush is still very popular, despite his approval rating steadily declining to 58%, and falling. Well, if Bush is both conservative and popular, then why don't we have conservative legislation? Bush isn't even pushing any socially conservative legislation, despite his control of Congress.


Here is a Wired article on The Race to Kill Kazaa. The principals are spread thru different countries. Even if the corporation is shut down the software and the P2P network is likely to live on.

Saturday, Jan 25, 2003

Here is a list of the year's worst science stories.

Here are some radical quotes from famous environmentalists. Like: "Everything we have developed over the last 100 years should be destroyed."

eMoo points to a Wash Post article explaining that once again, we have a peace movement that has been taken over by commies.

Gumma writes:
A 3-column spread on the front page of Friday's New YorkTimes confirms what Andy told us a couple of weeks ago BUSH'S STEADY DECLINE IN PUBLIC APPROVAL.
and John responds:
That's pure NYT propaganda. Here's the truth about Bush's public support, from Andy's favorite newspaper, USA Today.
Andy responds:
Roger replied, "Of course his poll numbers have dropped. ...."

My point was that Bush's decline has been remarkably linear, suggesting that public mood has a independent momentum all its own. The NYT headline suggests the same curious characteristic, though the article was probably stuffed with propaganda, as John says.

John and Roger probably think of public approval merely as a sum of its individual parts. In fact, the data indicate a powerful trend component, akin to gravity with its independence of mass.

The lesson? Play on rooftops (e.g., very high approval ratings), then expect to land on the ground with a fatal velocity. Reagan may have instinctively realized this, as he avoided very high approval ratings and yet retired with higher approval than anyone else at departure.

We'll see if Bush handles this problem, of his own creation, by shirking the conservative agenda, such as the partial-birth abortion bill. John, are you still confident (as you stated on 12/25) that Bush/Frist will pass the bill?

John mocks USA Today, but then quotes a story that it ran on Monday, while the NYT didn't run it until the following Friday!

I am not sure if they are referring to this NY Times article, or another.

A feminist group rates TV shows. Some of their favorites are low-rated shows about women who have figured out that they can eliminate men from their lives. As expected. But they give the lowest score (F) to Fear Factor! Fear Factor is the most sexually egalitarian show on TV. Each show is a contest to do 3 scary stunts. The last episode involved standing still while being covered with thousands of honeybees, and running on stilts on a high platform. Often they also have to eat bugs or something else. The contestants are always 3 men and 3 women. The rules are carefully designed so that the men and women have an equal shot at the prize. They often involve some athletic skill, but not just raw strength. Much more important is the ability to focus on the objective without being psyched out by the scary set-up. I suppose that they could think that it is demeaning to eat bugs or to do some physical stunt, but the men and women do them equally. (Thanks to VikingPundit's Smarter Harper's Index for the link.)

A Microsoft bug is shutting down the internet this morning. The problem is:
Microsoft SQL Worm: By sending a specially-crafted request to UDP port 1434 with the first byte set to 0x04, a remote attacker could overflow a buffer and cause the SQL Server service to crash or execute arbitrary code on the system with the same privileges as the SQL Server. In addition to email, latency, isp and site outages, VoIP systems are failing now.
It even knocked out Bank of America ATM machines.

Update: Good technical descriptions are here and here. Brief advice: block ports 1433 and 1434.

Update: Some of Microsoft's own servers were down -- they didn't apply their own patches. The problem here is not that Microsoft programmers are prone to bugs, but that they have an attitude that favors insecure products.


What does this sentence mean?
This season, Rice caught 92 passes for 1,211 yards, placing him sixth in the league in receptions, ahead of scores of receivers who are almost half his age.
Usually, "almost half" means slightly less than half. But Rice is age 40, and there are no NFL players under 20.

The article mentions Rice's knee surgery. I had the same knee surgery, from the same surgeon. (But I am not playing pro football!)


Alan Nunn May died. He was a British scientist who sold US atomic secrets to the commies. He only served 6 years in jail for it.

Friday, Jan 24, 2003

Apparently some people think that network sabotage will be a legal and profitable business. This Wired story describes a company called Overpeer and its this patent application for putting deliberately degraded music into P2P networks.

Here is a wacky NY Times editorial:
The physicist Stephen Hawking warned last year that computers are improving so rapidly there is "a real danger" they will ultimately "develop intelligence and take over." He called for urgent development of technologies to link human brains with computers, thus putting computers on our side rather than against us. Let's not forget that HAL, the evil computer in "2001: A Space Odyssey," easily bested an astronaut in chess before going on to kill him and most of his shipmates. So our hopes are pinned on Mr. Kasparov to keep the enemy at bay just a little bit longer.
Watch out for those chess-playing computers, because next they'll be lip-reading and locking you out the pod doors!

Former U.N. weapons inspector Scott Ritter has turned into a war critic, and now complains about sex arrest publicity. The charge was fairly trivial, and he was not convicted, so I can understand him being annoyed. But Ritter said: "So I'm sticking to my ethical and legal obligations not to discuss this case. I wish other people had done that." How could he possibly have an obligation not to declare his innocence? Something's fishy here.

Thursday, Jan 23, 2003

An Economist editorial favors a 28-year maximum on copyrights:
Copyright was originally the grant of a temporary government-supported monopoly on copying a work, not a property right. Its sole purpose was to encourage the circulation of ideas by giving creators and publishers a short-term incentive to disseminate their work. ... Starting from scratch today, no rational, disinterested lawmaker would agree to copyrights that extend to 70 years after an author's death, now the norm in the developed world. ... The 14-year term of the original 18th-century British and American copyright laws, renewable once, might be a good place to start.

I just ran across the censored chapter (a copy is also here) to Kevin Mitnick's book. Briefly, Mitnick served 5 years in prison because the NY Times demonized him, and the reporter personally profited by a million bucks on a book and movie deal. Here is the Wired story.

An MIT survey says the top inventions are the toothbrush, the car, the personal computer, the cell phone, and the microwave.

Matt Blaze has gotten publicity for a technique for making master keys to ordinary door locks, in the case that many locks are keyed to one master key, and someone has access to a lock and a (non-master) key.

Matt's article is here. The article has a nice explanation of cylinder locks. His method was well-known to locksmiths and to those who know how master keys work.

Briefly, here is the story. Master keys are typically physically the same as regular keys, except that the cuts are higher at 2 or 3 or the pin positions. You you get some blanks, and copy a regular key except that one cut is left high. You file that position down until the key unlocks the lock. Repeat for each of the 6 or so pins. Then merge the info and cut a master key. For more details, see the paper.

Wednesday, Jan 22, 2003

Andy writes:
We were all taught that American Indians are descendants of Asians, who supposedly migrated through Alaska. This theory falls under Roger and Joe's "can't think of a better (materialistic) theory" category, I suppose. Well, our textbooks omitted the fact that American Indians have uniformly different blood type than Asians! Indians are type A and O; Asians are B. Bell Curve is a problem for the migration theory, too. Funny how textbooks omit the contra-evidence for materialistic theories.

More damage by a Bush judicial appointee district court judge John Bates just forced ISPs to turn over subscriber information. This could spell the end of the internet as we know it, and is the second bad ruling by this same judge. Earlier, he allowed the Bush administration to refuse to comply with FACA and withhold documents. I'm still awaiting any evidence that Bush's judicial appointees have been good.

Two alarming statistics about the Catholic Church. First, Catholics in California voted for Gov. Gray Davis by 53 to 39 percent. Simon actually won the non-Catholic vote by 55 to 35 percent! Second, almost half of U.S. Catholic high schools have closed since 1965.

I don't know about the blood type differences, except that materialist scientists do look at blood types as well as many other characteristics in order to help understand the history of migrations. Blood types of American Indians and other groups are discussed here and here.

PBS just broadcast a show about how DNA has been used to very precisely track human migrations. Apparently an Asian tribe has been identified as the source of the American Indians.

The oldest known human in N. American is Kennewick Man, and he was dissimilar to modern American Indians. So it may well be true that American Indians were not the first human in American, but rather they came and killed an existing population of settlers.

Tuesday, Jan 21, 2003

Andy writes:
Could the Eldred 7-2 loss have been the worst defeat in recent history for a petitioner before the Supreme Court? I searched cases last year and this year where the Supreme Court affirmed the decision below, and almost all feature four dissenting votes (presumably the four who granted cert.). One exception concerned a compelling need to resolve a blatant Circuit split, non-existent in Eldred.

Phyllis's column on Bush and the Supreme Court contained a key paragraph holding him accountable for his campaigning in the name of Thomas and Scalia. That was featured in Washington Post story several days ago, without attribution. Now all news stories are picking it up, along with the same (inaccurate) list of contenders. It's beginning to look like a campaign pledge, like "no new taxes." Is Phyllis's column the real source for this terrific development?

Charity case before the Supreme Court can states prohibit or regulate mail fundraisers that spend 75% or more of what they take in? A brief against this regulation is looking for co-signatories.

You refer to State of Illinois v. Telemarketing Associates, 01-1806. The case is described here and here. This AP Story has a link to the Illinois supreme court decision being appealed. This is an attempt to reverse a bad US SC opinion: RILEY v. NATIONAL FEDERATION OF BLIND, 487 U.S. 781 (1988).

I say Don't sign. The US SC opinion is a bad one, and ought to be reversed. It essentially says that commercial, for-profit, telemarketers can lie and defraud people at will, without any fear of state action against fraudulent business practices, provided that they claim that percentage is going to charity. I am all for free speech, but why shouldn't for-profit telemarketers be subject to the same sort of anti-fraud regulation that all the other businesses have to respect?

The Brennan opinion says that if telemarketers have to tell the truth about where the money goes, "the disclosure will be the last words spoken as the donor closes the door or hangs up the phone." So this is a justification for the telemarketers to mislead the public?
I favor trying to get a reversal of this wacky opinion.


The RIAA is forcing Verizon to disclose the identity of an alleged peer-to-peer pirate.

Evolutionists say we're all descended from aardvark-like creatures.

Monday, Jan 20, 2003

The NY Times discusses keeping convicts off the internet:
The issue emerges just as Kevin Mitnick, the hacker once called by the government "the most-wanted computer criminal in U.S. history," is poised to start using the Internet again. Mr. Mitnick served five years for breaking into computer networks of major corporations and stealing software; he was released from prison in January 2000. As a condition of his probation, he has not been allowed to use the Internet — a restriction that expires today.
Of course it doesn't explain that Mitnick's crimes were actually very minor, and he only became considered such a notorious computer criminal because of grossly exaggerated stories in the NY Times.

Sunday, Jan 19, 2003

eMoo has amusing item about a film by a UC Davis art prof.

Lessig responds on his blog to criticism that he failed to argue the Eagle Forum position in the Eldred copyright extension case.

In oral argument before the Supreme Court, Lessig said: "Nothing in our Copyright Clause claim hangs upon the empirical assertion about impeding progress. Our only argument is, this is a structural limit necessary to assure that what would be an effectively perpetual term not be permitted under the copyright laws."

It sounds to me like he was abandoning the "progress" argument, and betting the farm on the "limited times" argument.

Lessig responds, on his blog:

Not quite. We did reject the argument made cogently by Eagle Forum that “progress” should be an independent substantive limitation on every copyright act. We believed (and again, about this we were right) that it was unlikely the Supreme Court would open every copyright statute up to the question — does this promote progress. So we appealed to “promote progress” as a way to interpret the scope of “limited times.” The “limited times” that the constitution permits are those that promote progress.

I went on in the very next answer to say that the empirical question of whether speech/progress was promoted was relevant under the First Amendment. But just as Lopez/Morrison made clear that the constitutional limits were categorical, not empirical, we, following Eagle Forum, argued the limits on the power over terms were categorical, not empirical.

Andy responds:
Roger circulated Lessig's defense of diluting conservative arguments in Eldred. But Lessig and his several dozen professors avoid mentioning their fatal flaw they abandoned the conservative wing the of the Court. This case was never winnable without conservative support, as demonstrated at the Court of Appeals. Yet the law professors refused to make conservative arguments in their brief or at oral argument. They sought better government (in their personal view), not limited government. They implicitly sought recognition of communal property. They even lost the support of two justices they must have had to attain certiorari!
And John responds:
I agree - but to be fair, I don't think our brief adequately dealt with the points that turned out to be insuperable stumbling blocks for the conservative justices.

John continues his debate with Andy:
Andy wrote:
John wrote, "Congress does not (and probably cannot) preclude review against a claim that a statute violates the U.S. Constitution or other federal law."

John restates and promotes the liberal view. It doesn't hold water. Congress has direct authority under the Constitution to prohibit review by federal district courts (and hence by the Supreme Court, which lacks original jurisdiction in all relevant cases). Congress has done so in the Medicare statute. Litigants cannot sue under, say, the Due Process Clause to attain review of Medicare payment issues. Congress could surely do likewise for the military.

I disagree. Congress has not (and probably cannot) preclude federal court review of the Medicare program under the DP clause or any other clause of the U.S. Constitution. The problem with such a suit is not that federal courts are precluded from hearing it, but that THERE IS NO VALID due process argument against a Medicare payment decision. Congress has virtually unlimited power under the spending clause. In creating the Medicare program, Congress set up an administrative procedure for resolving claims. That is all the "process" that is "due" so there is nothing left for a court to decide. Anyone who doesn't like how the Medicare program works is free to opt out, so there is no other constitutional issue.
John's unprecedented plan of going to state court and then to the Supreme Court to circumvent such limitation is implausible. For starters, the Supreme Court would have no way to enforce its ruling and thus probably would not risk its credibility in that manner.
John then cites a case that had nothing to do with limiting judicial review Romer v. Evans (1996). John wrote, "That lawsuit alleging that a provision in Colorado's state constitution violated the U.S. Constitution was filed in a Colorado state court and went up to the Colorado supreme court. From there it was appealed to the U.S. Supreme Court, which did not seem to think it was risking its credibility by throwing out the Colorado constitution."

The Supreme Court was not risking its credibility because Congress had not restricted federal review of this issue. The federal district courts remain available to enforce whatever the Supreme Court held in Romer.

Where federal district courts lack that power due to restriction by Congress, it's implausible that the Supreme Court would risk ordering something that cannot be enforced. John cannot cite an example to support his view.

The point of Romer v. Evans is to show that, even if the lower federal courts are abolished, all the same substantive issues will still he heard in state courts and subject to review by the U.S. Supreme Court.

I do think Congress should enact procedural restrictions on the power of lower federal courts

  • Courts should not have power to order state/local govt to pass a tax or raise taxes
  • Any order declaring that state/local law violates U.S. law should be stayed until the case is reviewed by the U.S. Supreme Court
  • All consent decrees must terminate within two years
  • Andy responds:
    So only 3/17 of those confirmed were solid conservatives? And only about 3/7 of those waiting to be confirmed are demonstrably solid conservatives? Overall, that's only 25% of Bush's appellate nominations.

    There's an entire cottage industry of conservatives claiming they were betrayed by their own judicial nominee. Earl Warren and William Brennan are two examples, as Eisenhower and many Republicans pretended to be fooled. In fact, a five minute look at the record of those nominees reveals their liberal backgrounds. Warren, for example, was the gubernatorial nominee of the Democratic Party in California in the late 1940s!


    Sound recordings are not supposed to be "works for hire", so the author gets the copyright. Lee posted this tale of how the law was changed, and then changed back.
    The RIAA did have its way, for a few months at least, when the definition of "work made for hire" in 17 USC 101 was changed to include sound recordings. Unless the work is created by an employee within the scope of his or her employment, only certain types of work can be works made for hire, no matter what an agreement says. And works made for hire are not subject to the termination right.

    After the House staffer responsible for the change left to become a vice president of the RIAA, the change was repealed. But it wasn't as simple as just dropping what was added. That would mean that sound recordings during the time the change was in effect would be works made for hire, while those before the change and after the repeal would not be. Not something desirable.

    Also, the repeal could be interpreted as Congress making it clear that sound recordings could not be works made for hire unless produced by an employee. And that was a little too definite for RIAA, so the strange wording at the end of the definition of works made for hire (starting with "In determining whether ...") was added as a lasting memorial to the RIAA and the House staffer who is now their vice president.

    Saturday, Jan 18, 2003

    Andy adds:
    Approval ratings do correlate well with electability. Torricelli was a recent example here in NJ. Likewise, Clinton's approval ratings were abysmal at the time of the Republican landslide in 1994. So I disagree with Roger's and John's pooh-poohing the significance of approval ratings. Reagan, incidentally, holds the record for the highest approval rating of a president at the time of leaving office.

    It appears that an approval rating has a momentum all its own. I.e., a rating moving in one direction is likely to continue in that direction. It was certainly true for the first President Bush, post-Iraq. His rating gradually fell, and fell, and fell, until he was routed on election day by Clinton.

    An objective view of that data is that it was the momentum of President Bush's falling approval rating that did him in. Of course, the anti-tax groups say Bush lost because of the tax issue; the pro-lifers say he lost because of that issue; the court-watchers say he lost because of Souter. But look objectively at the data Bush really lost because he didn't manage his approval rating. Reagan, in contrast, never suffered from bad approval-rating momentum because he never let his go sky-high.

    John writes, "So the better question is Will starting the war now help or hurt the goal of (1) getting a big tax cut package enacted into law and (2) getting conservative judges confirmed to the federal courts?"

    GWB's approval rating will spike at the time he starts the war. But that timing won't affect John's issues as much as GWB's electability in 2004. He's clearly better off waiting until 2004 to invade.


    Andy sends some political comments:
    Washington Post says conservatives now have the upper hand for the imminent GWB pick for S.Ct. Article says Bush has gotten the message that Gonzales is unacceptable

    But like the AP and NYT stories, this article completely overlooks Emilio Garza, whom I consider GWB's most likely pick. Perhaps GWB's aides are deliberately keeping quiet about Garza. Let media and liberal ire focus on persons unlikely to be picked, like the 60-year-old Wilkinson and Olson.

    I just looked at an amazing graph in the Economist. GWB's popularity has been dropping in a linear manner since 9/11, losing about 2% in approval each month. He's down to only 58% now, and at this rate would become unelectable (below 50%) by summer.

    An attack on Iraq would restart the sudden-rise-linear-fall curve. But if he attacks this winter, enjoying another approval rating spike to 90%, then by the next election in 22 months he would lose 44% (22x2) points, and thereby be unelectable, which is what happened to his father.

    Surely Karl Rove sees the same data, and realizes this. Is there any reason to attack Iraq now rather than 2004? Tough to think of one. Those who dislike GWB are fine with waiting, and those who like GWB are fine with waiting.

    I don't think that those approval ratings translate into votes very well. A lot of people answer those poll a just a request for an opinion on the last thing Bush did. There are people who approve of some specific Bush action, but would never vote for Bush.

    I asked for an example of a case on whether copying an entire out-of-print book was considered fair-use under copyright law. Paul supplies: Worldwide Church of God v. Philadelphia Church of God, Inc., 227 F.3d 1110 (9th Cir. 2000). The case is a dispute between two religious factions following the death of Herbert Armstrong. Armstrong's last work was supposed to be inspired. But after distributing millions of copies, one of the factions used copyright law to try to suppress the book. You can read about the case here.

    That case is instructive because it was narrowly decided. The district court judge said that it was fair-use, and a 2-1 appellate majority said that it was not. Note that the alleged infringer was not just copying one book for himself. It was republishing 1000s of copies and distributing them to the public.

    Meanwhile, the entire text of the disputed book is readily available on the internet, and that is apparently fair-use. You can find it here.

    Lee writes:

    Remember, when "It's a Wonderful Life" entered the public domain, it seemed to drive all other programming off television around Christmas time. When they figured out that the original story and the music had not entered the public domain, because their copyright had been renewed, the public was spared having to see it on every television channel.
    Now there is a novel argument. I get 150 channels on my satellite connection, and there is some duplication. It doesn't bother me a bit.

    California courts have redefined rape. A boy and his girlfriend were having consensual sexual relations, when the girl said, "I should be going now" and "I need to go home". The boy continued for a minute and a half before stopping. The California courts say that this meets the definition of rape, and the boy was convicted.

    Think about that next time you hear a girl complain about rape. Unless you know the details, the crime may have been a minor one.

    Update: Here is a feminist law prof essay arguing that stranger rape of a virgin should be legally just the same as a wife changing her mind about her mood during the act.


    Here is an example of an unenforceable shrink-wrap software license. The NY Times says:
    New York court has ruled that Network Associates, a maker of popular antivirus and computer security software, may not require people who buy the software to get permission from the company before publishing reviews of its products. ... the company's software included an unenforceable clause that effectively violated consumers' free speech. The clause, which appeared on software products and the company's Web site, read: "The customer will not publish reviews of this product without prior consent from Network Associates Inc."
    Microsoft and Oracle also use clauses like this. The copyright extremists defend the ability of software companies to make whether license restrictions they want.

    I just heard a leftist radio host trying to explain why the Left is protesting the coming Iraq war, but did not protest the Yugoslavian wars (in Bosnia and Kosovo). He said that the Yugoslav war had the more nobel purpose of stopping an evil tyrant who was committing genocide, and it had the backing of Europe.

    I see it as just the reverse. The Yugoslav wars only had the backing of NATO, and not the UN or the US Congress. NATO was supposed to be a defensive alliance. Yugoslavia did not attack NATO. Without a declaration of war from Congress, the war was unconstitutional. We were intervening in the internal affairs of another country that had no bearing on us. The so-called genocide was grossly exaggerated.

    On the other hand, the US is defending its (oil and other) interests in Iraq, and has the endorsement of Congress and the UN. We already fought one war with Iraq when it attacked our oil supply, and now we are enforcing the terms of the cease-fire. By punishing Iraq, we protect ourselves against future attacks, and demonstrate that we are willing to follow thru to protect our interests.

    Friday, Jan 17, 2003

    Andy writes:
    Joe wrote, "There are plenty of smart people in science and economics who defend Reagan, asbestos, DDT, free enterprise and so on."

    But then Joe lists a collection of gadflies and pariahs and even an attorney. Gary Becker is listed, but he's an economist rather than a scientist. Bjorn Lomborg is listed, but he's a statistician and his book was just declared to be "scientific dishonesty" by a Denmark scientific committee, which illustrates my point.

    There is no Nobel Laureate scientist who defends Reagan, asbestos, DDT, free enterprise -- or Newtonian physics. To do so would be professional suicide, risking government and university funding on which professional scientists rely.

    Nor should anyone await an alternative before scrutinizing relativity directly. Roger and Joe rely on liberals, rather than simply addressing the assumptions and evidence for relativity itself.

    Now I am missing Andy's point. Is he complaining about the opinion of scientists on nonscientific matters? Or on scientific matters?

    Go ahead and scrutinize relativity. Lots of physicists do. But if you espouse crackpot theories, then you run the risk of people thinking that you are a crackpot.

    I took a look at some recent Scientific Americans for mentions of relativity. The Sept. 2002 issue [p.93] says that advances in clock technology have been so great that GR effects cause the clocks to give different times on different floors of the building.

    The Oct. 2002 issue has a cosmology article "The Emptiest Places" [p.56] that implicity assume GR in many places.

    The Nov. 2002 issue has an article titled "Revising Relativity" [p.27] and the Dec. 2002 issue has "Throwing Einstein for a Loop" [p.40]. The careers of the researchers looking for modifications of relativity don't seem to be suffering any.


    Lee wrote, about the copyright extension:
    As for the various constitutional arguments made by the petitioners, the Court found that they relied on "several novel readings" of the constitution that were "unpersuasive." ...
    It is unfortunate that the plaintiff relied on those novel readings, instead of the obvious textual argument that Congress only has the power to promote progress with copyright law. Ginsburg said:
    petitioners do not argue that the Clause’s preamble is an independently enforceable limit on Congress’ power. See 239 F.3d, at 378 (Petitioners acknowledge that “the preamble of the Copyright Clause is not a substantive limit on Congress’ legislative power.”
    Lee also wrote:
    While one might not agree with this practice, as Justice Ginsberg said (quoting Justice Holmes) -- "a page of history is worth a volume of logic."
    What she meant by that was that if the Sonny Bono extension is unconstitutional, then the 1976 extension and others are probably unconstitutional for the same reasons. No precedent threw out those extensions, so she is just going to let Congress extend copyrights forever. Any work created after 1925 now has a perpetual copyright. A NY Times editorial said:
    In effect, the Supreme Court's decision makes it likely that we are seeing the beginning of the end of public domain and the birth of copyright perpetuity.

    Andy writes:
    Joe asks the rhetorical question of how "hundreds of brilliant physicists, who grapple with this stuff every day, have missed" the flaws in relativity.

    The same way they miss the benefits of Ronald Reagan, asbestos, DDT, free enterprise, and so on. How many take on the environmentalists? Zip-o. Relativity took nearly 90 years to win a Nobel Prize, perhaps the longest delay of any theory, but you can bet no professional scientist will criticize it now.

    At any rate, we need not rely on the opinion of some self-described experts in assessing relativity, or any other theory. We are all capable of understanding the assumptions and evidence for a theory. Does anyone doubt that? Yet Roger and Joe seem uninterested in addressing the substance.

    Relativity is based entirely on these two implausible assumptions that the speed of light in free space never changes, and that all inertial (non-accelerating) frames of reference are indistinguishable with respect to physical laws. There is no reason why these postulates should be true, other than academic emotion.

    I listed the many empirical contraindications last time. I also find the postulates to be logically at odds with each other. A term "relativistic mass" is invented to describe the alleged increased inertia of a fast-moving particle. But does that relativistic mass then affect its surroundings? Doesn't make sense either way, and physicists seem to disagree themselves.

    Incidentally, here's another critique of academic intellectuals. Wiles supposedly proved Fermat's Last Theorem by patching together many modern math theories. People found flaws, and then he supposedly patched the holes. An elementary proof remains undiscovered.

    It's now been over five years. If Wiles' proof was indeed as good as an elementary proof (i.e., one that uses only traditional, unquestionable techniques), then why hasn't anyone reformulated Wiles' proof in elementary form? Wiles "proof" can't be converted to elementary form, apparently.

    Joe answers:
    There are plenty of smart people in science and economics who defend Reagan, asbestos, DDT, free enterprise and so on. Environmentalism -ever hear of Bjorn Lomborg, Julian Simon, Fred Singer, Richard Linzen, Peter Huber, Gary Becker? Look, there's a leftward tilt in the media (that is being challenged successfully, by the way). What I don't see is any credible physicist offering alternatives to GR that do a better job predicting things. Sure, there a doubters. Fine. Let them formulate their own theory.
    Andy is really off in wacky territory. There was no error found in Wiles' published in proof. Only in a preliminary draft. There are no questionable techniques in it. The proof could be translated into just about any axiom system.

    Andy claims that no one can criticize relativity, but then relies on relativity critics to cast doubt on the theory. Which is it?

    Those 2 relativity postulates just represent one way of deriving the properties of special relativity. It happens to be a popular derivation for historical, pedagogical, and experimental reasons. Both postulates can be tested directly, and have passed all the tests. But there are other ways of understanding special relativity. (Special relativity just means relativity without either acceleration or gravity.)

    There might not be good abstract reasons for believing those postulates, but the experimental evidence is overwhelming. That is the ultimate test, of course -- does the theory agree with experiment?

    When Andy was questioning relativity, I thought that he was referring to subtleties of general relativity. But no -- he is questioning the basics of special relativity!

    Relativity is central to most of 20th century physics. It is basic to understanding electromagnetic waves, atom bombs, quantum field theory, nuclear fission and fusion, particle accelerators, GPS, all of the cosmological models, etc. There just is no viable alternative.

    Thursday, Jan 16, 2003

    Here is the whine of an SF race-baiting columnist:
    Said Shaq, "Tell Yao Ming, 'Ching-chong-yang-wah-ah-so."
    Some people have no sense of humor.

    Juan at Volokh's blog agrees with Andy that Lessig blew the copyright extension case by eschewing the argument in the Eagle Forum amicus brief.

    SkyLink makes a universal remote garage door opener, and is being sued by Chamberlain. The gist of the complaint is that Chamberlain has a patented system of "rolling codes" to make it harder for an intruder to mimic and repeat a code, but SkyLink figured out a way for the remote to send a re-sync signal so that the same opener code can be used over and over.

    The problem here is that Chamberlain has an insecure garage door system, and is trying to use the DMCA to thwart competition. This is an example of how the DMCA is anti-consumer. I should be able to buy a replacement opener from another maker.


    I asked my 5-year-old what she learned in school yesterday. She said she learned about Martin Luther the King and how he had a dream about dark people all drinking from the same drinking fountain, and how he said the world was round while everyone else thought it was flat, and how they killed him for it, so now we have a holiday.

    The only thing I can figure is that the teacher was talking about holidays, and my kid got Columbus and King mixed up. But it is really just as silly to say that Columbus proved that the world was round to people who thought that it was flat. George writes:

    What do you mean? -- Columbus did prove that the Earth was not flat.
    No, Columbus did not prove any such thing. He did not sail around the world. All he did was to sail to some faraway island, and came back the way he went. Besides, everybody already knew the world was round.

    Andy writes:
    The complete failure of Lessig and dozens of top law professors in Eldred shows the futility of playing for the political "middle". Their entire brief was tailored for O'Connor. As in politics, this strategy caused losing the conservatives, and then losing the "middle" too.

    An MIT student saw my science test on Roger's website and asked if he could send me his answers for grading. I said yes, but he has not been able to do so yet.

    Roger, like any academic, defends relativity until the cows come home. It's contradicted by quantum mechanics, the expansion of the universe, the variation in physical constants, the overall flatness of the universe, binary pulsar data, the Economist article I referenced earlier, GPS data on a website Roger circulated a few months ago, and the logical incoherence of relativistic mass. But academics insist relativity is true, because they believe it must be true.

    All along, academics avoid discussing what relativity is two implausible assumptions about light and frames of reference. That's it, plus volumes of pure math.

    Meanwhile, more evidence from AP today that nature is more like art than machine "It all started in November when six newcomer Magellannic penguins, formerly of Sea World in Aurora, Ohio, were brought in. Since then the penguin pool at the San Francisco Zoo has been a daily frenzy of circle swimming by all of the 52 birds at once. The penguins start swimming in circles early in the day and rarely stop until they stagger out of the pool at dusk. The six penguins from Ohio started it all, Tollini said, apparently convincing the others to join them for the watery daily circuit. 'I can't figure out how the Aurora penguins communicated and changed the minds of the other 46,' Tollini said."

    Yes, QM contradicts GR and GR contradicts QM. Yet both theories have been experimentally verified to great accuracy. Both theories are right and wrong at the same time. No one has figured out a way to reconcile GR with QM. The situations where the theories disagree are outside the experimental domain, so we have no idea what happens there, and we may never know.

    GR is not contradicted by the variation in physical constants, the overall flatness of the universe, binary pulsar data, the Economist article I referenced earlier, GPS data on a website Roger circulated a few months ago, or the logical incoherence of relativistic mass. Andy is just spouting nonsense.

    Modifications of GR and QM get proposed all the time. But there is a set of principles and observations that are at the core of each of these theories that will be an essential part of any new theory.

    The penguin story is amusing, but not unusual. Lot's of animals travel in packs, following the leader.

    Wednesday, Jan 15, 2003

    John sends this story about a scientific dispute over the history of the Black Sea. 5 years ago, some scientists published a new theory that the Black Sea was fresh water until it was dramatically flooded with sea water 7.5k years ago. Their theory made a convincing case that the flood was the origin of the Biblical Noah flood. Now some other scientists dispute whether any such flood ever took place.

    John sends this story about a man sentenced to 3 years probation for killing a dog. The man owned the dog, and killed the dog after it bit his 2-year-old son on the nose. What's the problem? Of course the dog have been killed. If my dog bit a toddler on the nose, I'd also kill the dog. While on probation, the man cannot own a pet or drink alcohol and must complete anger management programs, undergo a mental exam and perform community service.

    With all the talk about how terrible it is that innocent people may have been scheduled to be executed, remember this: There is no example in modern USA history of an innocent man being executed. Sure, it could happen. When it does, the anti-death-penalty will raise that example in every debate. But so far, it hasn't happened.

    Bob thinks I am being unfair here. He says that once someone is executed, then no court will revisit the question of guilt or innocence, so we don't know. Well, people debated the guilt of Sacco and Vanzetti, long after their 1927 execution.


    You get spam for the the Nigerian advance fee scheme? I get so much that I am inclined to block any email that has anything to do with Africa. According to this story, the spammers have cheated people out of $85M.

    The Slate legal columnist Lithwick has another stupid rant against conservatives. She complains that Clarence Thomas is writing a book. No, that's ok, because other Supreme Court judges have written books. She complains that the rumor is that the book "will reveal at least something of his personal and political opinions" and that his friend Rush Limbaugh is likely to quote from it on his radio program!

    Lithwick is also trashed by Volokh. He says he is a fan of Lithwick's writing, but it seems like his comments on her content are always scathingly critical, and deservedly so.

    Another blog says:

    What cheap shots. Thomas has been subjected to more unfair criticism and mudslinging than any other Justice in history (Lithwick's column, ironically, is the latest example). ... Who could blame him for wanting to avoid media venues that he knows will be highly unfriendly? One might as well sneer at someone for declining to undergo a root canal without anesthesia.
    Meanwhile, other judges write completely indefensible opinions and avoid public scrutiny altogether.

    Soon, we could all be wearing RFID tags that can be read by a radio-frequency scanner 15 feet away. It is somewhat like a bar-code, except that it contains more info and could be invisibly embedded into clothing.

    More and more kids are being put on psychoactive drugs. And it is not just ritalin -- it includes prozac and a lot of others. Here is a Pediatrics editorial and a NY Times story.

    I have resorted to writing some primitive blog software. There are lots of good and free blogging systems out there, but none are completely satisfactory for various reasons. Blogger would be ok if it weren't so flaky.

    Blogging alternatives include Blogger, GreyMatter, MoveableType, LiveJournal, bzero, Blosxum, GLUE, OutBlog, Radio UserLand and others.


    Andy writes:

    Eisenhower critics said that if we're going to have a golfer in the White House, then we might as well have a good one.  The same could now be said of GWB.  If we're going to have someone who (1) spends all his time on Iraq, (2) appoints people who think Roe v. Wade is settled law, and (3) expands government, then we might as well have a good one.  I.e., Lieberman, who outpolled GWB last time.

    Lieberman's challenge does increase the likelihood of two Supreme Court vacancies this summer:  Rehnquist and O'Connor.  That would be welcome for O'Connor to step down.  Also, I think Lieberman's challenge decreases the chances of GWB picking a lightweight crony like Gonzales, and that's also good.

    A quick follow-up on a debate I had with John over Christmas.  John said a filibuster of judicial appointments is essentially impossible in 2003, and his arguments seemed persuasive.  The renomination of Pickering tests that theory.  But apparently Priscilla Owen was not renominated!  Uh oh.  Also, no mention of the partial-birth abortion bill, which Lott promised to pass quickly.

    Other ominous signs.  Three liberal Republicans have gained enough power to force Frist/GWB to eat crow immediately on the vaccine immunity provision in the Homeland Security Bill.  GWB is now weaker due to his mistake there.  Will those liberal Republicans twist GWB's arm on judicial appointments?

    We were all told to support GWB in order to obtain conservative picks to the Supreme Court.  2 years later, there's nothing to justify that strategy.  If GWB disappoints this spring, then he becomes a lame duck president.


    Andy writes:

    Here's my final exam for my Constitution course given to 19 homeschoolers.  They will ace this exam, but I doubt top high school or college students could score 60% on it.

    Test condition: You can use any written or electronic resources, but not direct assistance by another person in answering.

    Multiple Choice and Fill in the Blank (1.5 points each, for a total of 40/100 points):

    1.  The Preamble to the Constitution does which of the following?
    (a) Grant powers.
    (b) List grievances.
    (c) State objectives.
    (d) State the procedure for the passage of bills.

    2.  Who, among the following, was NOT an author of the Federalist Papers?
    (a) John Jay
    (b) John Adams
    (c) James Madison
    (d) Alexander Hamilton

    3.  The leading opponents to ratification of the Constitution in Virginia and New York were:
    (a) William Randolph in Virginia and Aaron Burr in New York.
    (b) James Monroe in Virginia and Alexander Hamilton in New York.
    (c) Patrick Henry in Virginia and Alexander Hamilton in New York.
    (d) Patrick Henry in Virginia and George Clinton in New York.

    4.  What prominent delegate to the Constitutional Convention refused to sign it and opposed ratification because: "The augmentation of slaves weakens the States; and such a trade is diabolical in itself, and disgraceful to mankind.  Yet by this Constitution it is continued for twenty years."
    (a) Thomas Jefferson
    (b) George Mason
    (c) Charles Pinckney
    (d) Samuel Adams

    5.  Who complained that the federal judicial power under the Constitution "will swallow up all the powers of the courts in the respective states"?
    (a) Publius, pseudonym for the authors of the Federalist Papers.
    (b) John Adams.
    (c) Thomas Paine.
    (d) "Brutus", pseudonym for the author of essays in the New York Journal in 1787-88.

    6.  Rhode Island held a referendum on the Constitution in 1788 and the outcome was:
    (a) the state ratified it by a substantial majority.
    (b) the state ratified it by a narrow majority.
    (c) the state rejected it by a narrow majority.
    (d) the state rejected it by a 10:1 margin.

    7. The cloture rule in the U.S. Senate, requiring 60 votes to limit debate, is based on which provision of the Constitution:
    (a) Article I, Section III.
    (b) Article I, Section V.
    (c) Article I, Section VIII.
    (d) Article IV.

    8.  If a Congressman wants to prevent the passage of a bill, he or she can
    (a) veto it.
    (b) filibuster.
    (c) resign, thus delaying the passage of the bill.
    (d) impeach its sponsor.

    9.  The "Virginia Plan" called for, and was principally authored by:
    (a) Virginia and the other states to have one senator apiece, by Madison and Morris.
    (b) Virginia and the other states to have two senators apiece, by Madison and Randolph.
    (c) a national legislature with representation proportional to population, by Madison and Morris.
    (d) a national legislature with representation proportional to population, by Madison and Randolph.

    10.  Which of the following provides a list of the powers granted to Congress?
    (a) Article I, Section VIII
    (b) Article IV, Section I
    (c) The 24th Amendment
    (d) the Declaration of Independence

    11.  The Cabinet was created by:
    (a) The Declaration of Independence
    (b) Article IV, Section II
    (c) The wording of Article II, Section II, clause 1
    (d) The 21st Amendent

    12.  Article III of the Constitution addresses:
    (a) the executive branch of the government
    (b) the judiciary branch of the government
    (c) the legislative branch of the government
    (d) none of the above

    13.  Federalist No. 78 was
    (a) written by Hamilton, defending the plan for the judiciary branch
    (b) written by Jay, defending the plan for the judiciary branch
    (c) written by Adams, defending the plan for the legislative branch
    (d) written by Madison, defending the Bill of Rights

    14.  The smaller states failed to ratify the Articles of Confederation at first because
    (a) they thought it didn't give the federal government enough power.
    (b) they wanted states with western land claims to give up their western land claims
    (c) they thought the Articles of Confederation should give the smaller states extra land grants
    (d) they thought no new states should ever be allowed to join the Union.

    15.  William Paterson would most likely have agreed with which of the following?
    (a) Article V
    (b) Article VI
    (c) the statement "Our federal union-it must be preserved!"
    (d) Henry Hamilton

    16.  The Due Process Clause of the Fifth Amendment came to be used for which of the following?
    (a) Freedom of slaves.
    (b) Judicial review.
    (c) Oppose abolitionism.
    (d) The establishment of a strong federal government.

    17.  The 12 amendments added to the Constitution in the 1900s reflected
    (a) popular participation in government.
    (b) growing conservatism.
    (c) anarchism.
    (d) decreased popular participation in government.

    18.  The 23rd Amendment did which of the following?
    (a) Abolished the poll tax.
    (b) Limited the President to two terms.
    (c) Gave Presidential voting rights to the District of Columbia.
    (d) Repealed Prohibition.

    19.  All of the following are powers of the House of Representatives except
    (a) ratify a treaty by a 2/3 vote.
    (b) to present the President with charges of impeachment.
    (c) to originate bills of revenue.
    (d) to govern its own operations.

    20.  Montesquieu would have probably agreed most with which of the following statements?
    (a) "The sovereignty of the states must endure."
    (b) "The powers of the federal government must remain separate"
    (c) "A strong federal government is necessary to prevent anarchy."
    (d) "The Virginia Plan is necessary for equality amongst Americans."

    21.  The Twelfth Amendment was enacted for all of the following reasons except
    (a) The President-VP team elected in 1796.
    (b) The President-VP team elected in 1800.
    (c) The President-VP team elected in 1804.
    (d) All of the above contributed to the enactment of the 12th Amendment.

    22.  The case that established the authority of executive decisions was
    (a) Gibbons v. Ogden
    (b) United States v. Nixon
    (c) United States v. Belmont
    (d) Marbury v. Madison

    23.  Federalists based their beliefs on
    (a) The idea that tyranny must be avoided no matter what.
    (b) The fear of anarchy as exemplified by Shays' Rebellion.
    (c) The belief that a monarchy is needed to make wise decisions.
    (d) The belief that the lower classes should have no participation in government affairs.

    24.  In the decision of West Virginia Board of Education v. Barnette (1943), the Supreme Court:
    (a) reversed itself and established a right to refuse to recite the Pledge of Allegiance.
    (b) affirmed the power to include "under God" in the Pledge of Allegiance.
    (c) affirmed its prior decision allowing mandatory recitation of the Pledge of Allegiance.
    (d) established that states, not the federal government, decide who must recite the Pledge.

    25.  The War Powers Act attempts to do which of the following:
    (a) increases presidential power to manage and deploy troops abroad.
    (b) limits the presidential power to a 60-day period for deploying troops in foreign conflicts.
    (c) ensures that the President would use all means necessary when Congress declares war.
    (d) none of the above.

    26.  Who said, "Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports."
    (a) Bill Clinton.
    (b) Abraham Lincoln in his First Inaugural Address.
    (c) George Washington in his Farewell Address.
    (d) Thomas Jefferson in his dedication of the University of Virginia.

    27.  Examples of constitutional amendments passed by Congress but not ratified by the states are:
    (a) permanent protection of slavery, signed by Abraham Lincoln.
    (b) authorization for Congress to prohibit or limit child labor.
    (c) "Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex."
    (d) all of the above.

    28.  Who declared that "if God wills that it continue, until all the wealth piled by the bond-man's two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash, shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said 'the judgments of the Lord, are true and righteous altogether.'"?
    (a) George Washington during the American Revolution.
    (b) Abraham Lincoln in his First Inaugural Address.
    (c) Abraham Lincoln in his Second Inaugural Address.
    (d) President Bush during the Gulf War in 1991.

    29.  Engel v. Vitale (1962) is one of the most significant decisions of the 20th century because it:
    (a) defended the right of free speech in public schools.
    (b) recognized that there is no "wall separating church and state" in the Constitution.
    (c) respected local control over schools.
    (d) prohibited classroom prayer in public schools nationwide.

    30.  The Due Process Clause of the Fourteenth Amendment has been interpreted for all of the following except:
    (a) invent a right to abortion.
    (b) prohibit school prayer.
    (c) prohibit public display of religious symbols.
    (d) allow all-male or all-female schools.

    31.  Roe v. Wade (1973) contradicts which of the following:
    (a) there is no constitutional right by patients to physician-assisted suicide.
    (b) there is no constitutional right by young men to avoid the draft.
    (c) there is no constitutional right by the sick to take marijuana or other drugs.
    (d) all of the above.

    32. ____________________ proposed the addition of a bill of rights to the Constitution.

    33. Justice __________ broke with his wing of the Supreme Court to write the decision in United States v. Bajakajian (1998), requiring the government under the Excessive Fines Clause to return its seizure of $357,000.

    34. The number of the amendment that outlawed slavery is ___________________.

    35. _________________ established the power of judicial review for the Supreme Court.

    36. The man who introduced the New Jersey Plan at the Constitutional Convention was named _________________.

    37. ____________________ was the first Chief Justice of the United States.

    38. The Supreme Court decision of ___________________ invalidated an unconstitutional state law.

    39. If the President and Vice President are both killed, the ____________________ becomes President.

    40. The case United States v. Nixon ruled ___________________. (Give the general decision that can be applied in many cases.

    Essay Questions (10 points each, for a total of 40/100 points):

    Write at least 50 words each in response to the questions below:

    A.  At the Constitutional Convention there were many prominent men with diverse ideas. 
    (a) Pick any three of the delegates and describe their viewpoints.
    (b) Who do you think made the most significant contribution to the convention?  Why?  

    B.  From 1787 to 1815, most Americans were either Federalists or Anti-Federalists. 
    (a) Describe the basic viewpoints each group held.
    (b) Provide controversies that helped support each argument, and the logic of each side.
    (c) Name some key Anti-Federalists and Federalists, and the arguments and views each one held.
    (d) Describe how the basic concepts of Anti-Federalism and Federalism still influence America today.

    C.  Many consider the Marshall Court to have been crucial in defining the meaning of the Constitution.  Describe what it did, explaining at least two of its specific decisions.

    D.  The Fourteenth Amendment's equal protection clause represents the long-term legal impact of the Civil War.  Briefly describe the compromise on slavery in the original Constitution, the opposition by George Mason to that compromise, and the modifications achieved by the Civil War Amendments.  In retrospect, do you think this compromise make the Civil War inevitable?

    Extra Credit (5 extra points each):

    E.  Matthew 18:20 says "For where two or three are gathered in my name, I am there among them."  How does the Constitution and its amendments use the judgment of many to minimize the potential errors of a powerful individual?  Pick and explain at least two specific examples.

    F.  The Constitution occasionally requires a super-majority, such as 2/3 or 3/4, to accomplish a goal.  Provide several examples and explain why you think the Founders insisted on more than a mere majority.  Do you agree?

    G.  Prayer, flag-burning, campaign donations, advertising, use of copyrighted material, and even medical recommendations are now considered by many to be protected free speech.  Should there be any limit?  Where, if anywhere, would you draw the line?


    John sends this story about Simson Garfinkel and Abhi Shelat buying a bunch of used computer hard disk drives, and finding a lot of personal info. Part of the problem is that it is really not easy to delete data from disk under Msft Windows and to be sure that it is gone.

    The Supreme Court upheld the copyright extension, 7-2. Bad news. Wash Post story. AP story. Lessig's blog says:
    When the Free Software Foundation, Intel, Phillis Schlafly, Milton Friedman, Ronald Coase, Kenneth Arrow, Brewster Kahle, and hundreds of creators and innovators all stand on one side saying, “this makes no sense,” then it makes no sense. Let that be enough to move people to do something about it. Our courts will not.

    So what went wrong? Lessig failed to win over the conservative camp on the SC. As I see it, the problems were that Lessig:

  • Failed to explain why the Sonny Bono extension should be invalid, but the 1976 extension allowed.
  • Failed to rebut the argument that invalidating the 1976 extension would be chaos.
  • Relied on a quid pro quo interpretation of the Copyright Clause.
  • Made unnecessary consessions. The majority opinion said: Petitioners acknowledge that "the preamble of the Copyright Clause is not a substantive limit on Congress' legislative power."

    The conservatives have voted to find a number of laws to be constitutional, but only the net impact is negligible.

    This page acknowledges that it was the Eagle Forum brief that persuaded the only lower court judge who voted against the copyright extension.

    The Tennessean quotes Phyllis Schlafly.


    The story of Phillip M. Adams shows how the courts are susceptible to crooked expert witnesses. First he makes $9.5M as a plaintiff's witness in a class action lawsuit against a computer maker claiming that floppy drives occasionally lost data. Then he flipped sides, and collected $27.5M as a consultant and witness for HP.

    The RIAA says that it has agreed not to seek mandatory DRM laws. It didn't want to face the computer companies teaming up with consumer organizations standing up for traditional consumer rights with regard to the use of recordings.

    Blogger has been buggy lately. If this page has had problems for you, it is because of software and servers outside my control. I am currently investigating switching to other blogging systems, but all the ones I've looked at so far have other problems.

    Meanwhile, I am having to replace my Microsoft mouse. Maybe I've had bad luck, but I've had problems with every Microsoft mouse I've ever used. I've never had trouble with mice made by Logitech and others.