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Sunday, Feb 29, 2004

The NY Times describes pro-evolution groups who fight creationist and other evolution skeptics:
Eugenie Scott, executive director of the center, said it was fair to compare the swift formation and seemingly spontaneous organization of many of those groups to the young, Internet-driven base of support that drove the presidential candidacy of Howard Dean — with one difference. "The Dean supporters are messianic in their zeal to change the world," she said. "We aren't. There's no salvation in evolution."
I guess both sides can agree on that last sentence.

Bob writes:

What puzzles me is what the sides are. The evolution side is clear. What is the other side?
According to the article, the pro-evolutionists were organized in opposition to groups like the Discovery Institute. Looking at its web site, you might wonder at first what it all has to do with evolution. But look at this current press release:
Earlier this week the Ohio Academy of Sciences (OAS) cited Florida State University law professor Steven Gey as the authority for its claim that the "Critical Analysis of Evolution" lesson plan being considered by the Ohio State Board of Education is "illegal." On Thursday, Gey will be the featured speaker at an event sponsored by opponents of the lesson.

"The choice of Gey merely underscores how weak the evolutionists' legal argument is," says Dr. John West, Associate Director of Discovery Institute's Center for Science and Culture. "Gey has a track record of promoting legal views that can only be called far-out." For example:

  • Gey argues that nude sunbathing should be given "constitutional protection."
  • Gey claims that "moral relativism" is a "constitutional command," and judges should "require every government action to have a primarily amoral purpose and effect."
  • Gey believes it is unconstitutional for the government to restrict even hardcore pornography, contrary to current legal precedents. He justifies this by claiming that Darwinian evolution has established the need for moral skepticism.
  • Gey insists that the current Pledge of Allegiance is unconstitutional.
According to Gey, the "Critical Analysis of Evolution" lesson plan violates the Establishment Clause of the First Amendment because it promotes intelligent design, which he claims is religious.
The resistance to the teaching of evolution is mainly to all the baggage that comes with it. Those who are aggressively pro-evolution almost invariably believe that evolution should be a tool to promote abortion, cloning, secular humanism, animal rights, gay marriage, and an assortment of other liberal causes.

Bob writes:

Yes, there are wackos who are aggressively pro-evolution. Most people who are pro-evolution are primarily concerned with improving the miserable state of K-12 science education. Here is the primary site pro-evolution site.

You will not find there promotion of abortion, cloning, secular humanism (does that mean Jefferson and the Declaration of Independence, or what?), animal rights, gay marriage, or any other liberal causes.

Your argument is There are liberals who promote evolution, therefore evolution is a liberal plot. I was hoping you could point to anti-evolution people who aren't wackos. Bring them on. Or, as an optimist, I can quote Ronald Reagan, "There must be a pony in there somewhere."

Ok, I looked at your pro-evolution site. This page complains that a draft science standard in Georgia that replaced "evolution" with "changes over time". But that is how the common science textbooks define the term. Evolution is defined as change over time, and biological evolution is defined as change in the genetic composition of a population over time. Stellar evolution is defined as the change in stars over time.

Next, there is a statement by Missouri scientists to attack a proposal "to mandate the teaching of 'intelligent design' creationism alongside Darwinian evolution in public school science classes." But the proposal actually says:

If scientific theory concerning biological origin is taught, biological evolution and biological intelligent design shall be taught and given equal treatment.
It appears that the proposal not so much concerned with Darwinian evolution, as with the origin of life on Earth. Darwin had no opinion about the origin of life, and the term Darwinian evolution refers mainly to the changes in animal and plant populations over time. Even today, theories about the origin of life on Earth are highly speculative.

The Missouri scientists have 3 objections to the proposal:

  • the proposal appears to be motivated by "wedge" politics.
  • it may not pass legal criteria for what may be taught as science.
  • Intelligent Design ideas have not been useful in generating new scientific research papers.

    These arguments are lame. If the scientists wanted to be useful, they could have clarified some scientific issues in the proposal. It is annoying to see scientists quoted as authorities on political and legal issues. The only way to make sense out of the scientists position is that they want to teach that:

    The first simple life was developed from basic elements and simple molecules through the mechanisms of random combinations, naturally occurring molecular structures, other naturalistic means, and millions of years. [quoted from Missouri proposal]
    and they don't want any criticism or alternative ideas allowed.

    Bob replies:

    The standard textbook "The Molecular Biology of the Gene" by Watson et al says "But by the end of the nineteenth century, the scientific argument was almost complete; both the current geographic distribution of plants and animals and their selective occurrence in the fossil records of the geologic past were explainable only by postulating that continuously evolving groups of organisms had descended from a common ancestor. Today, evolution is an accepted fact for everyone but a fundamentalist minority, whose objections are based not on reasoning but on doctrinaire adherence to religious principles." That says it clearly enough for a normal 7th grader to get it. ...

    Evolution suffices. What would non Darwinian evolution be? The primary objective here is to oppose evolution as described by Watson above. Intelligent Design (ID) was constructed to conflict with evolution. ID says there is "irreducible complexity" in biological organisms and systems. In other words "I can't figure out how this evolved, therefore it is impossible that it evolved." This is an old logical fallacy first brought up in the 19th century about the eye. It is now well understood how the previously irreducibly complexity of the eye evolved from light sensitive molecules found in bacteria.

    You misquoted the scientists. The scientists did not say the proposal was motivated by "wedge politics". They quoted the inventor of ID, Phillip Johnson, as saying that it was a "wedge" to get religion into the public schools.

    It isn't science, it's religion, just like creationism, then "creation science", both not teachable in public schools.

    It would be remarkable if a law professor came up with something that generated new scientific papers.

    This is how some politicians in Missouri define evolution. Why do you suppose reputable scientists would want to teach that?

    Here is another quote from the Missouri politicians:

    Theory philosophically demands only naturalistic causes and denies the operation of any intelligence, supernatural event, God or theistic figure in the initial or subsequent development of life;
    I have never heard a reputable scientist make this argument. Even Richard Dawkins, an extreme example of an atheist evolutionary scientist, does not deny "the operation of any intelligence, supernatural event, God or theistic figure in the initial or subsequent development of life".
    Darwinian evolution would be Darwin's version of the theory. The theory has been refined and corrected since Darwin's day, but I would not include the single common ancestor theory as being part of Darwinian evolution. I think think that Darwin ever stated that hypothesis, and probably didn't even believe it.

    The Watson textbook illustrates what annoys the anti-evolutionists. Apparently Bob thinks that it is perfectly acceptable for a school biology textbook to include derogatory remarks about the religious beliefs of others, but not okay to mention any religious beliefs in any positive manner. He wants 7th grade science classes to teach that religion is wrong.

    The point of the Missouri proposal is that science classes should either stick to established science. If the classes teach highly speculative theories, then it should also mention alternative theories.

    Bob responds:

    I hope we can all agree that the current theory of evolution should be taught. Darwin (and Wallace) are part of the history of science which is no substitute for science. If you are trying to make it sound like scientists believe in Saint Darwin, give it up.

    It is a great American tradition to point out that religion is wrong when religion makes bogus scientific claims. When people with misguided religious views attack science, there is nothing wrong with scientists pointing out the facts. Do you claim that Watson is wrong on the facts? As to mentioning religious beliefs in a positive manner I wouldn't object to mention of the exemplary position of the Catholic Church on the issue of evolution.

    There is nothing speculative about evolution as described by Watson. That is what scientists agree should be taught. Theories of the how life on earth got started are currently speculative. I believe there is a scientific consensus on this.

    It was the statement of the Missouri evolutionist scientists who used the term "Darwinian evolution". Complain to them if you don't like it.

    Watson is not expressing facts; he is an atheist expressing an anti-religion opinion. He says that the single common ancestor postulate is the only explanation for the origin of life on Earth, and that only irrational religious fundamentalists disagree. The first part is inaccurate, and the second is just a gratuitous attack on religion. If that postulate were really a proven scientific fact, then where is the research paper proving it?

    Here is a typical evolutionist page promoting the single common ancestor postulate, and discussing the search for the Last Universal Common Ancestor. As you can see, there is some interesting science involved, but the whole idea is thrown into doubt by horizontal gene transfer. Watson acts like this was all understood 100 years ago, but it is not even understood today.

    Bob demonstrates the attitude of the evolutionists. They think that school science classes can be used for anti-religion propaganda, but they get all indignant at the mere suggestion that those with an alternative point of view have their views represented accurately.

    Bob responds:

    Watson says "...continuously evolving groups of organisms had descended from a common ancestor." He does not say only one ancestor. It is reasonable to interpret Watson as meaning at least one common ancestor. Watson's statement does not rule out horizontal gene transfer. The first part is accurate despite the fact that it was written before the evidence for horizontal gene transfer was available. Read the latest edition of Watson's text for references to papers and a summary of the experimental evidence for his statement. The second part is an attack on specific religions which attack evolution. Fair and square.

    Exactly what is the alternative point view you keep talking about? If you mean ID or another religious doctrine, say so. If you mean a scientific theory, what is it?

    Yes, Watson does say one common ancestor. If he had meant several ancestors, he would have used the plural.

    Bob is admitting to the evolutionist agenda: use science books to attack religion, and use legalistic arguments to prevent any religious criticism of the standard evolutionist dogma.

    If those Missouri scientists are so concerned about the accuracy of biology textbooks, then why don't they complain about all the textbooks that say that the "Lucy" fossil is a human ancestor? The Science channel regularly has shows that imply that it is a universally accepted fact that Lucy is our ancestor. The whole Lucy theory was shot down 3 years ago when another fossil was found. Now Lucy is just a bonobo chimp.

    As for alternatives to the common ancestor theory, I think that the horizontal gene transfer theory is more likely. Under that theory, two animals could share some genes without ever having had a common ancestor.

    There are also those who believe that the origin of life on Earth is best explained by God creating hundreds of distinct species. While this explanation is not particularly scientific, science does not have much else to offer. No one has any idea what those first life forms were like, or how they came into being. Some people even think that they came from Mars! If the textbooks are going to give some wildly speculative theory for the origin of life on Earth, then it ought to give some alternatives.

    Bob responds:

    Again, Watson is factually correct "Today, evolution is an accepted fact for everyone but a fundamentalist minority, whose objections are based not on reasoning but on doctrinaire adherence to religious principles." Science is based on logical argument and evidence. "Religious criticism" of science is not based on logical argument and evidence. What scientific response to "religions criticism" is possible other than to point out that the religious criticism is scientifically wrong? There is nothing legalistic about objecting to teaching religion as science. It is legalistic when a law professor constructs a religious argument disguised as a science in order to "wedge" religion into public schools. Other cultures have gone down the path of constraining science to conform to religion and the results are societies with medieval economies and militaries. The Soviet Union required the teaching of evolution to conform the the Lamarkian principle of the Marxist religion and set Soviet biology back 40 years.

    If there were a political movement passing laws to require teaching of the Science channel in K-12, scientists would object. Neither entertainment nor religion should be taught as science. Don't complain to scientists about TV, complain to Hollywood. Maybe Nova will take on the Lucy issue sometime. Try writing the producers.

    Depends on what you mean by ancestor. Bacterial sex isn't like sex on TV or in the movies. Since we have common ancestors with bacteria, a useful definition of ancestor is necessarily broad.

    Not only is the creation theory not scientific, it is contradicted by the proverbial mountain of evidence. The fact that a story isn't scientific doesn't make it a bad story. There is no scientific objection to free exercise of religion (or entertainment) until religion is taught as science.

    How life on earth began is not well understood. The objection is to giving alternatives which are not scientific and claiming that it is science. Religious alternatives should not be taught as science.

    No, Watson is not factually correct. If evolution is defined as "changes over time", as many textbooks do, then everyone accepts it. If evolution is defined to include the common ancestor theory, as Watson defines it, or to include the origin of life on Earth, as the Missouri proposal defines it, then a lot of scientists do not accept it.

    See my blog for where Watson's recent book recites an idiotic Freudian-Marxist-Gouldian misreading of science history, and then changes it in order to stroke his own ego!

    Bob seems to think that the PBS Nova shows on evolution are better than the Science channel shows, but I think the opposite. Here is a 1997 PBS Nova show that was entirely devoted to the notion that the Lucy fossil was a human ancestor. It starts:

    In the remote past, more than three million years ago, a tiny female lived by a lake on the edge of the lush forests of Africa. She was part ape, part human. She lived a brief life, but her story continues to unfold. By an extraordinary set of circumstances, she left tantalizing clues to her life and our origins. Who was she and what can we discover about this earliest of our most ancient ancestors? We know she existed because we found these, her fossilized bones, in the very spot where she died all those years ago, ...
    Yes, we know that this 3-foot-tall chimp existed, but we don't know that she was part human or a human ancestor.
    That skull tells us for certain that our earliest known ancestor was a small-brained creature, capable of walking upright, much like modern humans. It tells us that our ancestors first stood up, and only got smart later. ...

    We believe Lucy's species was the root of the human family tree. She is our earliest ancestor, the missing link between ape and human.

    No, Lucy's skull does not prove any of those things. This is like Piltdown Man all over again. I am sure that religious fundamentalists aren't the only ones pointing out the flaws in such reasoning. But if they are -- well, somebody has to do it. PBS Nova did not allow any contrasting view on its TV show.

    Bob responds:

    What text books define evolution as "changes over time"? If you want better science education, I hope we can agree to get rid of them and use text books with the best current science.

    The Missouri proposal was put together by politicians pandering to fundamentalists. Their definition is not the scientific definition of evolution. If we start letting politicians define evolution we are headed straight toward the Lysenko problem the Soviet Union had.

    No, it isn't like the Piltdown Man. The Piltdown Man was constructed out of parts of a gorilla skull and a human skull with parts filed off. No one claims the Lucy fossils are not genuine. If you disagree with the experts on the interpretation of the Lucy fossils you are free to publish. You may be turned down by some journal referees, but you can publish somewhere. If you are correct, eventually you will be vindicated. It may take a long time as with Mendel, but science will sort it out and your great grandchildren will be proud. Contrast this to astrology and religion where wrong ideas persist for millennia. This is not to say that astrology and religion should be stamped out. Entertainment and religion operate on the emotions. If they produce desirable emotional states they serve a useful purpose. Problems occur when entertainment and religion are confused with science.

    Here is a typical evolutionist definition, with discussion:
    In the broadest sense, evolution is merely change, and so is all-pervasive; galaxies, languages, and political systems all evolve. Biological evolution ... is change in the properties of populations of organisms that transcend the lifetime of a single individual.
    Evolutionists have a long history of misrepresenting the expert consensus. Piltdown Man was discovered in 1911. There were skeptics, and published contrary comments, such as this:
    One American scholar, William K. Gregory of the American Museum of Natural History, did at least suggest the possibility of a hoax. In 1914 Gregory remarked in a journal article that someone at the British Museum had confided to him that "a negro skull and a broken ape jaw" had been "artificially fossilized" and "planted in the gravel bed to fool the scientists."
    The evolutionists claimed that the jawbone couldn't be from an ape because no ape fossils had ever been found in England! Of course, no missing link fossil had been found in England either, so that was illogical.

    Nevertheless, the claim that Piltdown Man was a missing link was taught in the textbook at issue in the 1925 Scope "monkey" trial in Tennessee. The evolutionist establishment insisted that no criticism of that textbook be allowed.

    Now the textbooks are teaching that Lucy is a missing link, and supposed scientists are lobbying the legislatures to prevent any criticism.

    I agree that science will sort it out and your great grandchildren. In the meantime, I don't want the anti-religion evolutionist ideologues censoring the textbooks.

    Bob responds:

    [TalkOrigins.org site] isn't a textbook, it's an internet news group! What next, urban legends? I could point to snake handlers as representing anti-evolutionists and be more fair.

    When you can't defeat an argument, use an ad hominem attack as you did on Watson. An even weaker argument is to attack an entire group when you can't defeat their arguments. Evolutionists have cleaned house. The perpetrators and supporters of the Piltdown Man fraud have been discredited. Religion could learn from this and clean their house of people like Phillip Johnson, Michael Behe, and ID supporters.

    Scientists are lobbying legislatures to stop teaching religion as science. Show me a scientist who wants to prevent scientific criticism of Lucy as a missing link and I don't mean some twerp or K-12 teacher from an internet news group.

    I don't want any ideologues censoring textbooks. Neither do reputable scientists. The goal is merely to keep religion from being taught as science.

    The quote is actually from an evolutionary biology textbook, and then cited by some evolutionist as being an exemplary definition.

    I'll believe that evolutionists have cleaned house when PBS stops running silly and one-sided missing link shows, and the scientific establishment admits that Williams Jennings Bryan was right in the 1925 Scopes "monkey" trial.

    Andy writes:

    Roger, you're making mincemeat of the evolutionist on your blog.

    Perhaps Watson's promotion of evolution enamored him with the Nobel committee (who gave him a shared prize), but his statement is propaganda in many ways:

    (1) most people in the United States and other free countries reject evolution. I think only 35% believe in evolution in the US.
    (2) millions reject evolution for logical or scientific reasons. I think 100 scientists signed the recent letter to Ohio.
    (3) only the most hard-core evolutionists claim it is "fact". Real scientists don't even use the term "fact" to describe theories.
    (4) the "common ancestor" theory is widely rejected by evolutionists. They now claim that populations evolve without a common ancestor.
    (5) nothing about the "current geographic distribution of plants and animals" supports evolution.. E.g., explain American Indians.
    (6) the swipe at fundamentalists is particularly unworthy of a scientific textbook.

    About five years ago, I predicted that the internet would bring reform to evolution teaching within ten years. Five years into that prediction, the changes are beginning. The pace will accelerate.

  • Saturday, Feb 28, 2004
    Gore whining
    One of Al Gore's kids complains about Ralph Nader running. She recites the usual complaint that Nader cost Gore the 2000 election:
    In both Florida and New Hampshire, Mr. Nader's vote total significantly exceeded the margin by which Mr. Bush secured the electoral votes.
    The same reasoning would say that Pat Buchanan cost Bush four states -- Iowa, New Mexico, Oregon, and Wisconsin. In those states, Gore's margin over Bush was smaller than the Buchanan vote.

    Even more annoying are the claims that Gore would have somehow been better for the economy and foriegn policy. The economy tanked in Spring 2000, about 8 months before Bush took office. Gore just pretended that the crash didn't happened, and promised more of the status quo. We are still suffering from that crash, but it is important to realize that it happened in the Clinton-Gore administration.

    As for foreign policy, a lot of people assume that Gore would not have gone to war against Iraq. But the Clinton-Gore administration did bomb Iraq, and supported a policy of regime change. So it seems certain that Gore would have made various war threats against Iraq. The question is whether he'd follow thru on those threats. We don't know, but we do know that his VP pick, J. Lieberman, is even more a mideast hawk than G.W. Bush.

    Remember that the Clinton-Gore administration invaded Haiti in order to install the install the Marxist dictator J-B Aristide in power, and the country is now in chaos.

    The real problem with Nader is that he is going to be out there telling the hard-left Bush-haters what they want to hear, and John Kerry will be backpedaling on his voting record.

    Update: Bob denies that the USA invaded Haiti in 1994, because he says that Haiti surrendered before any shots were fired. Likewise, he says that we didn't invade Japan in WWII.

    I don't see that distinction in any of my dictionaries. We used military force to take over and occupy the country. I call that an invasion.

    School jealousy
    I've heard of public school advocates who complain about all sorts of crazy things, but this one has me scratching my head. A Santa Cruz public high school is doing very well, according to this article, and yet the local socialists are upset because they think that it is elitist. It is a charter school, but it also an ordinary public school that charges no tuition and accepts anyone who applies (subject to space limits). It is not a magnet school. It gets funding from the state based on how many students it has. (About $6300 per student, I think.)

    Apparently the chief complaint is that the charter school is not a real public school because it attracts good students and motivates them the learn!

    This year, the school was left with a waiting list of 291 children after the Feb. 19 admissions lottery. ``People are desperate to get their students in here,'' PCS Principal Jan Keating said.

    Thursday, Feb 26, 2004
    Naomi Wolf comes unglued
    Prominent feminist Naomi Wolf complains that 20 years ago a Yale prof flirted with her after they had both been drinking at a dinner party. It was an isolated and harmless incident, she concedes, and it was not sexual harassment.

    But after 20 years, she now publicly names the prof for the first time, and asks Yale what it is going to do about it! Yale says that the statute of limitations has expired.

    Wolf is dissatisfied because info about current Yale student complaints is not in the public record, and she is not sure that students can bring forward complaints confidentially and effectively. Furthermore, she is annoyed that under the tort law, students cannot collect damages unless they show that they have been damaged somehow.

    Wolf is nuts. If there is any wrong here, it is Wolf trying to libel someone about a 20-year-old innocuous incident.

    With all the Bush-haters clamoring for proof of WMD in Iraq, what do they say about the proof of genocide in Bosnia and Kosovo?

    Even the prosecutor has lost confidence:

    THE HAGUE -- The prosecution in Slobodan Milosevic's war crimes trial moved yesterday to rest its case two days early as the chief prosecutor conceded her team had not produced "the smoking gun" to convict the former Yugoslav president of genocide, the most serious charge against him.

    "I know that I don't have the smoking gun on the count of genocide, and we will see what the trial chamber decides," chief prosecutor Carla del Ponte said in an interview only minutes after she signed a motion to end the prosecution's two-year case.

    When the prosecution takes 2 years to present its alleged proof, then I am satisfied that there is no proof. Presenting proof would only take a couple of weeks.

    Note also that there is no jury, and a couple of other Serb officials have already been acquitted of genocide (but convicted of other charges).

    Tuesday, Feb 24, 2004

    Slate's Chatterbox columnist T. Noah accuses Bush of judicial activism, and two types of hypocrisy, in opposing gay marriage. He is persuaded by animal rights guru Peter Singer who claims that Bush's support for a marriage amendment contradicts his campaign statement:
    Larry King: So if a state were voting on gay marriage, you would suggest to that state not to approve it?
    G.W. Bush: The state can do what they want to do. Don't try to trap me in this state's [rights] issue like you're trying to get me into. … In my state of Texas, if we tried to have gay marriage, I would campaign against it.
    Notice how Noah (and perhaps Singer) dishonestly inserts the word "rights" into the quote. Bush did not say that it was a "states rights issue". He said that it was a "states issue". It is a ploy to associate Bush with Southern Democrat segregationists, because the same-sex marriage advocates think that the court should redefine marriage just like they abolished Jim Crow laws. It is dishonest, misleading, and incorrect. The transcript is online, and Bush quite correctly said that it was a states issue. It is a states issue, and not a states rights issue.

    There is no hypocrisy, and Bush's position has not changed. He is correct that states can vote on gay marriage. The current controvery is not over any state voting for gay marriage, but over courts imposing same-sex marriage over the will of the people.

    As I understand it, the animal rights community is split into two camps. There are those, like Singer, who think that animals should have rights like adults, and that people should be allowed to have sex with, and possibly marry, animals. Others, like Noah apparently, think that animals are more like children and cannot properly consent to sex with adult humans, so sex with animals is more like statutory rape.

    Singer's new book (to be released next month) is an anti-Bush rant. Like most of the other Bush-haters, he is infuriated by what he perceives to be contradictions by right-wingers:

    [Singer] asks whether an administration that emphasizes smaller government should be intervening in state right-to-die cases and whether someone so vocal about the value of individual merit should be rewarding birthright by eliminating the estate tax.
    Noah's other alleged Bush hypocrisy is that Bush is concerned that the Defense Of Marriage Act will be found unconstitutional by a court:
    If Bush really believed marriage was something to be decided legislatively, he'd wait until a judge struck down the statute before waving the white flag on its constitutionality.
    Massachusetts considered passing a constitutional amendment to defend its definition of marriage, as many other states have done, but the legislators were persuaded to wait for a court decision. When the court decision came, it ordered the legislature to allow same-sex marriage before a constitutional amendment could be passed!

    So Bush wants to be prepared for a judicial supremacist decision. For that, Noah calls him a judicial activist! Noah is nuts. I think that it is amazing how the Bush-haters will go to great lengths to try to show some alleged inconsistency in Bush's position. Bush's views are squarely within the mainstream, and the views of the Bush-haters are way out on the fringe.

    George writes:

    Why do you deny that this is a states rights issue? Bush wants a constitutional amendment that will deprive the states the right to determine their own marriage laws.
    I am denying that Bush's statement in his Larry King interview had anything to do with states rights. Bush was asked if he, as a candidate for president, would take a stand on a state vote regarding marriage. He rightly refused the bait. A state vote would be a state issue, not a federal issue, and Bush was running for president.

    But no state is voting to legalize same-sex marriage. The scenario that now concerns Bush is that Mass. courts will require same-sex marriage in Mass., a federal court will declare DOMA unconstitutional, and then all the other states as well as the federal govt will have to accept same-sex marriage. That threat is certainly a federal issue, and Bush's proposed constitutional amendment is only intended to address that threat.

    Liza writes:

    Depriving federal courts of jurisdiction to hear DOMA won't accomplish anything. A plaintiff could just bring the suit in Massachusetts court, where he/she could be sure of a sympathetic hearing.
    Yes, it would accomplish something. It would prevent Missouri and other states from being forced to recognize Mass. same-sex marriages. It defends our view of federalism.

    It is ok with me if some state changes its own marriage laws, according to the wishes of its people. It might even be a useful experiment. I just object to courts taking over the political process, and I object to one state forcing all the other states to accept something with which they strongly disagree.

    Some states allow 1st-cousin marriages, and most do not. The latter do not have to recognize any 1st cousin marriages, even if they were validly performed in another state. Apparently most people think that the status quo is constitutional, and I agree with it.

    This Amer. Spectator article points out that John Kerry once supported a constitutional amendment (ERA) to require same-sex marriage. He also voted against DOMA and supported the Mass. high court ruling (but now regrets it).

    More on legal theory
    John writes:
    I would like Andy and Roger to apply their respective arguments to Everson v. Board of Education (1947).

    That case featured a broad and sweeping opinion by Hugo Black applying the Establishment Clause to the states on the basis of Jefferson's "wall of separation" metaphor - the first case to do so.

    After expounding those principles, "dicta" as Roger says, the majority nevertheless concluded that the facts of the case did not justify forbidding the state of NJ from paying for transportation of children to attend Catholic schools.

    However, subsequent cases forbidding prayer in schools, invocations, Christmas displays, the Ten Commandments, the Pledge, etc., ultimately rest on the Hugo Black dicta in Everson.

    The Everson case was a 5-4 decision rendered before Warren and Brennan went on the court. The 4 dissenting justices would have overruled state indirect aid to parochial schools, which they said was logically required by the dicta in Black's majority opinion.

    Black remained on the court throughout Warren's tenure, during which he continued to write the majority opinions in Establishment Clause cases, but now he had the votes to implement and enforce his dicta by actually overturning state action.

    Here is the majority dicta:
    The 'establishment of religion' clause of the First Amendment means at least this Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertain- [330 U.S. 1, 16] ing or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever from they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between Church and State.' Reynolds v. United States, supra, 98 U.S. at page 164.
    I don't have any problem with this. The dicta is ambiguous, and nonbinding. The decision is reasonable, and not supremacist.

    I do have a problem with the dissent:

    The Court's opinion marshals every argument in favor of state aid and puts the case in its most favorable light, but much of its reasoning confirms my conclusions that there are no good grounds upon which to support the present legislation.
    Yes, of course the Court should put the law in its most favorable light before considering its constitutionality. It is irrelevant whether the judges think that there are good grounds for the law. That is not a question for the courts.

    Much of the dissent is based on the assumption that only Catholic schools will benefit, and the fact that kids from private for-profit schools do not benefit. The assumption is false; many other religious schools have been built since then, and some may have existed then, I don't know. Maybe the availability of busing would help other schools start.

    The private, for-profit school argument might be interesting if the plaintiff were a student at such a school, and was demanding the bus passes. But no, the plaintiff was an anti-Catholic taxpayer. The dissenters would have really been out of line if they had succeeded in invalidating the bus passes because of some for-profit school angle that wasn't even an issue in the case.

    I am not even sure the taxpayer should have any standing here. It is possible that the parochial school bus passes are saving the taxpayer money, because they are taking some kids from the public schools and alleviating the public school tax burden.

    So I say that this would have been a judicial supremacist decision if the minority had gotten another vote, but it didn't. The majority is reasonable, and appropriately deferential to the legislature.

    there is a big difference between dicta that supports a decision, and dicta that does not.

    Eg, consider hypothetical decisions:

    1. Retarded murderers should be executed. This defendant was properly convicted, and we uphold his death sentence.

    2. Retarded murderers should be executed. But this defendant did not know right from wrong, and we overturn the death sentence.

    The 1st sentence seems like over-broad dicta in both cases. But it is completely benign in case 2. In case 2, the 1st sentence is not binding, and its broadness only serves to narrow the actual outcome of the case. That is sound and logical, and I agree with using devices like this to narrow a ruling. Court rulings are supposed to be narrow.

    It is case 1 that is problematic, because it is unclear whether the 1st sentence is dicta or not.

    So I agree with the Everson majority reciting some broad dicta about separation of church and state before uphold bus passes for parochial school students. It was a device for narrowing the decision.

    Andy responds:

    Roger, the upshot of your unique view of Supreme Court (and American) history seems to be this it doesn't matter why someone does something. You downplay or completely ignore the reasoning used by a Court to reach a verdict. You act as though the final outcome is all that matters.

    Nothing could be further from the truth. Why the Court (or people) do things is more important than what they do. If a teenager declines to buy narcotics based on the reason that he didn't have enough money with him, then that teenager will eventually become a drug addict. The fact that he first declined to buy is misleading.

    One's reasoning is more telling than the outcome of a decision.

    Ditto for the Court and all intellectual activity. You can spot the style of reasoning early, and predict the result later. Utilitarians like Posner are destined for incoherence and moral bankruptcy. Holmes was ultimately headed to rule based on his personal prejudices, and did so brutally in the case of Buck v. Bell.

    C.J. Marshall told Georgia it lacked power over the Cherokee lands. President Jackson and Georgia simply defied the second ruling. A few years later, the Trail of Tears sent the Cherokees on a death march to Oklahoma, I think.

    I am saying that the dicta are nonbinding. The view is not unique -- it is what the textbooks say. The reasoning may be illuminating, but it is significant only as it relates to the outcome.

    Dissents are also illuminating, but not binding.

    Andy's example shows his logical error. You cannot predict whether that teenager will become a drug addict.

    President Jackson and Georgia certainly did not defy the second ruling. How could Jackson have defied the order? Jackson was in charge of the feds, not Georgia. Georgia lacked jurisdiction because Marshall thought that it was a federal matter. There was nothing in the ruling to limit Jackson.

    Georgia didn't defy it either. It let go the 2 white missionaries that it had prosecuted. That was in 100% conformance with the ruling.

    The Trail of Tears was 6 years later. I think that 20% or so died. Marshall didn't rule on that, and Jackson was not in office.

    Andy illustrates how he has been brainwashed in law school. I show him the facts, and he still clings to his ideas. I doubt that his homeschooled students are such judicial supremacists!

    Doing some more research, I've discovered the gap in Andy's legal education. It turns that most law schools used to teach a course in Legal Methods, but Harvard and many other law schools dropped it in the 1970s and 1980s! See this law review article, The Disappearance of Legal Method, 70 Temple L. Rev. 393 (1997), complaining about it.

    The web site has articles on what a course should teach, and sure enough, it includes explaining how to properly analyze dicta in a court decision. If only Andy had a homeschooled legal education, he might have learned something!

    John writes:

    Note the typo in the Findlaw version you quoted. The phrase "whatever from they may adopt to teach or practice religion" should be "whatever FORM they may adopt ..." The correct version is here.

    I do have a problem with the majority opinion.

    In support of the principle that the First Amendment is "made applicable to the states by the Fourteenth" amendment, the opinion cites only one case, Murdock v. Pennsylvania - but that case involved the Free Exercise clause, not the Establishment clause.

    In Hugo Black's dicta paragraph ("The 'establishment of religion' clause of the First Amendment means at least this"), at least half of his points actually implicate the Free Exercise clause.

    Black erroneously bootstraps a Free Exercise argument to support his conclusion that the federal courts have the power to enforce the Establishment clause against the states. It doesn't follow.

    Clarence Thomas, in his concurring opinion in the school voucher case, Zelman v. Simmons-Harris (2002), pointed out Black's error.

    In the era of the Warren Court, Black did get his extra vote and used it in many subsequent cases.

    John also writes:
    Roger makes an important point and the article he cites is very interesting. I did have a traditional first-year course in Legal Method (it was called "Elements of the Law" and was based on a course of that name at Columbia U. Law School, using course materials developed there by Karl Llewellyn). And, ahem, I "booked" the course.

    What you learn in that course is how to disregard what courts SAY and focus on what they DO. You learn how to construct broad and narrow rules that produce the result the court reached. Ultimately, you arrive at the "ratio decidendi" (legal rule that the case stands for).

    "Elements" and similar Legal Method courses are founded on what was called the "legal realism" school of legal study, of which Karl Llewellyn was a leading exponent, along with Oliver Wendell Holmes.

    Legal realism used to be considered somewhat progressive, but its advocates seem downright conservative compared to the Crits (critical legal studies) who now control American law schools.

    Monday, Feb 23, 2004
    Chickenpox vaccine
    The NY Times reports:
    Vaccination against chickenpox has been routine in the United States for nearly a decade.

    But outbreaks of the illness among children who have already been immunized have raised new concerns about the effectiveness of the vaccine and the age when it is given.

    Now a new study is adding to the debate. Researchers at Yale Medical School reported last week in The Journal of the American Medical Association that the effectiveness of the chickenpox vaccine fades substantially a year after it is administered. The vaccine also appears to confer less immunity to children younger than 15 months.

    The chickenpox vaccine has been approved for use in the United States since 1995. Some experts have questioned whether it should be used at all, arguing that immunizing children just pushes the disease into adulthood, when it is usually more severe.

    Many states are mandating chickenpox vaccine. It may well be better to get the disease young when it is harmless, and get lifelong immunity.
    Marriage and judicial supremacy
    John sends this Boston Globe article on gay marriage, and says that the situation raises a lot of questions concerning judicial supremacy.

    The article stress the differences between the Mass. and SF CA approaches by same-sex marriage advocates. It says:

    Whereas San Francisco officials chose to ignore -- and ultimately test -- a state law restricting marriage to heterosexuals, in Massachusetts gay rights lawyers made a strategic decision to work within the law.
    By "work within the law", they mean that want to persuade the judiciary, and then rely on judicial supremacy to override the wishes of the executive, the legislature, and the people. I do not call that working withing the law. It is lawless and undemocratic.

    Here is a law prof articulating judicial supremacy:

    Harvard University constitutional scholar Laurence Tribe, who supports the SJC ruling, said he sees a huge difference between what San Francisco's mayor has done and what Crews proposes. The difference, he said, is that California's high court has not ruled definitively on marriage licenses for same-sex couples.

    "When the highest court has spoken, it is not appropriate for another branch of government to interpret the constitution," Tribe said. If Romney or the Legislature acted to block the SJC's ruling, Tribe said, "that would be exactly equivalent to a Southern governor saying `education is the subject of the state, and I will not comply with the Brown v. Board of Education decision' " by the US Supreme Court, which mandated school desegregation.

    I wonder whether his treatise has such nonsense.

    I think that the Mass. court is far worse than what the SF mayor has done. Mayor Newsom is just a rogue govt official who can be removed or prosecuted according to lawful procedures that exist for rogue officials who disobey the law. The Calif. governor and attorney general say that they will put a stop to what he is doing, and not recognize those marriage certificates.

    But the Mass. court action is abhorrent to our whole system of govt. There is no way a court should ever be dictating laws to a legislature.

    Saturday, Feb 21, 2004
    Ban popcorn?
    This company memo bans microwave popcorn because they cause 60% of all fire alarms in office buildings.

    I must admit that I've done this myself. Everyone was mad at me. I later learned that the company microwave oven had a software bug in which time cancelled from a previous operation gets quietly added to the time entered for the next operation. So I could put in my popcorn, set it for 4 minutes, and it would cook an extra 5 minutes if someone an hour earlier had removed his lunch with 5 minutes left on the timer.

    If my $15 toaster can figure out when my toast is done, I think that the company ought to be able to buy a $100 microwave oven that can figure out when the popcorn is done.

    Andy defends Rush
    Andy is defending Rush's medical privacy.
    Bad Einstein story
    The Si Valley has a lot of bad headlines, but this one is particularly bad. This story about cosmological dark energy has this headline in the print edition:
    Einstein's Dark Side

    Hubble supports physicists's universe-ending scenario

    The story is about how the universe is expanding in a way that no one expected 5 years ago, and some are now predicting that the mysterious dark energy will rip apart the universe in about 100B years.

    The story doesn't really have much to do with Einstein. The only connection is that back in 1920 or so, someone gave a relativistic argument for the expansion of the universe.
    Einstein didn't believe it, and introduced a fudge factor into relativity theory in order to avoid it. When it turned out that the universe really was expanding, Einstein decided that he had blundered.

    Just 5 years ago, it was discovered that not only is the universe expanding, but the expansion is accelerating in a way that is not explained by relativity theory. So some people have postulated huge amounts of "dark energy, and modeled the expansion with another fudge factor. This just doesn't have much to do with any universe-ending scenario from Einstein.

    Friday, Feb 20, 2004
    Irish Virus
    If you get this email:
    Greetings, You have just received the "IRISH VIRUS". As we don't have any programming experience, this Virus works on the honour system. Please delete all the files on your hard drive manually and forward this Virus to everyone on your mailing list. Thank you for your cooperation.
    and you are not sure what to do, refer to Symantec for instructions.
    Armageddon cuts
    If you are a California voter looking for reasons to vote against Prop. 57, here it is:
    If voters refuse to authorize the bond under Proposition 57 on the March 2 ballot, Schwarzenegger says he'll have to make "Armageddon" spending cuts ...
    You'll also want to vote against Prop. 55 (increases debt by $12B) and 56 (makes it easier to raise taxes). Prop. 57 and 58 have to both pass for either to take effect, so I guess that I'll have to vote against both.

    Thursday, Feb 19, 2004
    More bad science
    I just watched a TV show call "Evolutionary" on the Science channel. It was a rerun from 2002, and told about the discovery of the Lucy fossil from about 3M years ago. All of the scientists on the show took it to be a scientific fact that we descended from Lucy apes, and they described details of that evolution. It told about how Lucy apes diverged into humanoids and another species when some Lucy apes figured out how to use tools to eat the brains of wildebeest carcases that were abandoned by hyenas on the African savannah. Only one Lucy ape skeleton has been found because that one was carried away by an eagle.

    Of course all of this is just wild speculation. The theory that we are descended from Lucy apes is no longer even accepted, because another ape fossil that is just as human-like has been found from the same period, and everyone agrees that we cannot be descended from both.

    Meanwhile, a left-wing organization of scientists has attacked the scientific integrity of th Bush administration. The story got a lot of publicity, so I thought that I'd check the report for specifics. Picking what seemed to be one of the more specific charges in a news story, I read what it said about lead poisoning:

    There is strong documentation of a wideranging effort to manipulate the government’s scientific advisory system to prevent the appearance of advice that might run counter to the administration’s political agenda. These actions include: appointing underqualifi ed individuals to important advisory roles including childhood lead poisoning prevention and reproductive health; ...
    Sounds bad, right? We're all against lead poisoning. The report says that the CDC lead poisoning standard has been reduced over the years from 30 micrograms of lead per deciliter of blood to 10, and a scientific advisory committee was considering lowering it again. The Bush administration appointed a prominent toxicologist named Dr. William Banner to the committee. The report said:
    Banner declared that, in his view, studies had never adequately demonstrated a link between lead exposure and cognitive problems in children at any level below 70 micrograms per deciliter. .... As one medical researcher explains it, Banner’s position either ignores or willfully misreads some four decades’ worth of accumulating data on lead exposure in children.
    A footnote says that the anonymous "medical researcher" refused to identify himself.

    What am I missing here? Shouldn't we have some diversity of opinion on the committee? Shouldn't we have someone demanding cold proof of the benefits to some policy recommendation that is going to cost billions of dollars? If he is wrong, then why is it so hard to find someone who is willing to say publicly that he is wrong? Banner is attacked for being an expert witness in court cases, but shouldn't we be glad to have someone who is willing to stake his professional reputation on a scientific point, and be cross-examined under oath? How much damage can one guy do, since he can easily be outvoted by the rest of the committee if he has fringe views? Why are these folks pretending that the issues are purely scientific, when it is plain that they are largely public policy issues and are necessarily political decisions?

    I hate it when people pretend that good science requires secrecy, or avoiding contrasting views, or anything like that. I don't know how they got 20 Nobel prizewinners to sign this rubbish. Hmmm, now that I check the list, I see that there are really only 12 Nobel winners on it. What do you bet that they all voted for Al Gore in 2000?

    Bob writes:

    I completely agree that secrecy and avoiding contrasting views has no place in science. Neither do meretricious scientists. It is interesting to contrast your statement above to your following statement:
    It does says that some people have criticized Paul Offit, and then cites him as if he is a neutral observer about vaccines. He is a paid lobbyist for drug companies that sell vaccines.
    After looking into this a little, I discovered that Thompson rejected 3 scientists recommended by CDC and replaced them with 3 scientists who take money from the lead industry. If the scientists who were rejected were paid by plaintiff's lawyers they should have been rejected for the panel. Likewise scientists on the lead payroll. If the administration can't find scientists with contrasting views who aren't paid off, there probably aren't valid contrasting views.
    I think that you are mixing a couple of issues here. If the committee is doing science, then their conclusions should objectively follow from the evidence, and it shouldn't matter if anyone has a financial bias. No one should have to take their word for anything, and critics would be able to examine the evidence themselves.

    If the committee is doing policy, then it is balancing various objectives according to some sort of political process. Finding a committee is not just a matter of finding scientists with impeccable scientific qualifications. You may not agree with their objectives.

    My comment about Paul Offit was really a complaint about the WSJ. The WSJ implied that he was being intimidated into silence by his critics. That is absurd, and he is well-paid by his drug-company sponsor to keep talking.

    I was just pointing out how ludicrous it is for the WSJ to complain about the vaccine advocates are being silenced. Who is being silenced?!! Has the CDC shut down its web site? Has the AAP stopped publishing its recommendations? Have any states repealed their vaccine laws?

    The WSJ editorial is nonsense. The medical establishment is overwhelmingly pro-vaccine, and it will be for the foreseeable future. No one is being silenced!

    The vaccine advocates are not worried about being silenced. They just don't want any criticism of any kind.

    Offit has also been on the CDC vaccine advisory panel (ACIP). Maybe he still is, I don't know. One of my complaints about the ACIP is that it is completely controlled by vaccine industry lackeys like Offit. They have to issue conflict-of-interest waivers just to get a quorum. The ACIP does not even have one member who could be described as a consumer advocate or a vaccine skeptic or a libertarian or a policy expert or anyone like that, and it never has. Having Offit on the ACIP would not be so bad if there were some other points of view represented. There are not.

    My hunch is that the lead committee was loaded down with toxicologists who have staked their reputations on removing lead at any cost. They might want to shut down the whole lead industry. Maybe they are right, but that is a political issue. I'm glad that there are now a couple of scientists on the committee to keep then honest and make them justify their conclusions. It would be great if the Bush administration similar rejected some CDC nominations for the ACIP, and replaced them with consumer advocates.

    Bob writes:

    As I understand it, the role of advisory committees is to tell policy makers what the scientific consensus is when there is a consensus. Sometimes there is no scientific consensus. Ideally the committee would report that there is no consensus if this is the case. Another problem occurs when there is a scientific consensus and the committee is packed with disreputable scientists to create the impression that there is no consensus. This is what scientists are complaining about in this case.

    Advisory committees should give scientific information relevant to policy decisions, an assessment of the reliability of the scientific information, and predictions of the repercussions of various policy alternatives. Policy should be made by politicians, but it should be based on the best scientific information available.

    There is a lot of scientific work on the effects of lead.

    The legitimate scientific debate is on the effects of various concentrations of lead. It up to informed citizens and politicians to weight the costs and benefits of removing lead. It up to the scientific community to let us know when the scientific process is being politicized.

    No, these advisory committees actually make policy recommendations that are usually followed. The lead committee was considering changing the standard for acceptable lead concentrations. That is a policy position. The complaint of the Union of Concerned Scientists and the Nobelists was that they did not want anyone on the committee with arguments sympathetic to the lead industry. They are wrong. Legitimate concerns and arguments of the lead industry should be represented on this policymaking committee. The leftist scientists want a committee where only one side of the lead argument is made.

    Bob writes:

    Maybe this is the problem. I would like to see less political advisory committees. The effects of lead concentrations is a scientific question on which the Nobelists claim there is a consensus of scientific opinion. A few scientists paid by the lead industry disagree. Scientific papers on the question which the "leftists" claim reflect the consensus are listed above. Where are the papers published by the lead industry scientists?
    The advisory committee is being asked to make a political decision -- whether it is good policy the change the lead concentration limit. I think that the lead industry should be allowed to have input to that decision. The Nobelists only complained about the views of one member of a committee. If that one member is able to present legitimate views that would otherwise be ignored, so much the better. If he has no paper to support his position, then I am sure he will be outvoted.

    Here are a couple of leftist kooks who have written a column in The Nation magazine, saying that someone sympathetic to the lead industry should not be able to express his views on the committee. They call Bush's appointments, "The New Scopes Trials". Need I say more?

    Prosecute Newsom?
    SF mayor Gavin Newson might be prosecuted under either California Penal Code Section 115, which "prohibits the knowing procurement of any false or forged instrument to be filed or recorded in any public office." Or Section 359:
    Every person authorized to solemnize marriage, who willfully and knowingly solemnizes any incestuous or other marriage forbidden by law, is punishable by fine of not less than one hundred nor more than one thousand dollars, or by imprisonment in the County Jail not less than three months nor more than one year, or by both.
    Volokh points out that Newsom can argue that he did violate the law "willfully and knowingly" because he has a goofy theory that the marriage law is unconstutional, but that tax protesters, who have a theory that the tax law is unconstitional, get no sympathy from the judges.
    Scientific American magazine
    I tried to catch up on my reading of Scientific American magazine, and I had forgotten how annoyingly left-wing it is. The Jan. issue had an article about some village in Turkey that supposedly had a modern non-sexist society in 7000 BC. The evidence? There is no written record, so the only evidence was that the male and female bone were in comparable condition!

    The Dec. issue has a cover story on how genetics proves that there is no such thing as races among humans.

    The clincher is the obituary of Edward Teller in the Nov. issue. It cites a Nobel prizewinner as saying that the world would have been a better place without Teller! Teller was a brilliant physicist who had a long lifetime of public service. His biggest crime was that his technological optimism and anti-Communism led him to help persuade Ronald Reagan to announce research and development of a missile defense program that ultimately helped win the Cold War.

    John Kerry
    I predict that Kerry will only win about 10 states in November. His main appeal is to hard-left Bush-haters who believe that Kerry is the most electable Democratic candidate. They apparently think that some Republicans will like him because his is rich, a member of Skull And Bones, and an experienced and skilled Washington politician.

    I think that they are misjudging Kerry's voter appeal. The 3 hottest political issues of the day are the Iraq war, same-sex marriage, and free trade. Kerry is a flip-flopper on all 3 issues, and has no coherent message. All 3 issues will be net vote losers for him. The only issue that can save him is the economy, but no one is going to be interested in Kerry's proposed tax hike, when the Bush tax cuts seem to be finally working and the economy is improving.

    At least Howard Dean has some dedicated follower. John Edwards has some personality. Kucinich and Lieberman have causes that they sincerely believe in. Kerry just seems like another McGovern or a Dukakis to me.

    I didn't mention Wesley Clark, because I don't think that he is really running for president. I think that he is just trying to sabotage the Democratic party, either because he is really a Republican, or because he is doing a favor to the Clintons who are priming Hillary to run in 2008.

    Ken Starr on Msft
    John sends this Ken Starr op-ed on Msft violating its antitrust consent agreement. I was following his logic until he got to this:
    The unanimous D.C. Circuit Court of Appeals got it exactly right in 2001, when it established the accepted parameters of behavior by a monopolist. This time, the court can establish remedy guidelines that ensure that consumer choice and competition can become real.
    No, the DC Circuit gutted the case, and eliminated the possibility of any meaningful remedy. Msft can even be bolder than it was before. It is amazing how much Msft gained by losing a case. Where was Ken Starr 10 years ago? Oh yeah, he was writing a report on Vince Foster's death as part of his Whitewater investigation.

    Wednesday, Feb 18, 2004
    School budget deficit
    I just got a letter from my local school board complaining of drastic budget cuts, and telling of dramatic cuts in services unless we all donate $365 per child per year.

    Meanwhile, the teachers union is sponsoring radio ads to boycott Safeway, Ralphs, and Albertsons grocery stores. The complaint, as I understand it, is that the grocery workers no longer have completely free health coverage, but now have some sort of co-pay. The grocery workers are not striking at the local stores. (At least not in N. California where the radio ads that I heard were playing.)

    I am offended by the teachers' attitude. First, I don't think that public govt employees should even be unionized. They are adequately represented thru their elected officials.

    Second, I think that they should stick to educational and employment issues, and not issues in some completely unrelated industry.

    Third, if Safeway and its workers are agreeable to the arrangement, what business is it of anyone else to try to break that arrangement? I always thought that there were laws against secondary boycotts, and tortious interference with contracts.

    I have no sympathy with my local school district, either. They rejected my kid in the second grade. It would have been a free $6k for them, because they had a vacancy. Maybe I'll post the details another time. I ended up having to transfer the kid to another school district. I didn't think that they could legally reject a kid like that. At any rate, I figured that they must be swimming in cash that they could so casually blow off $6k like that.

    Tuesday, Feb 17, 2004
    Rogue prosecutor
    Andy writes:
    Last summer I complained about the unjustified prosecution of basketball player Chris Webber, whose main "crime" was testifying against the government in a (secret) grand jury proceeding against someone else. Webber was ultimately forced to plea to a reduced charge to end the witchhunt.

    Now the harm in allowing a rogue prosecutor to continue comes home to roost in the Bush Administration. The same prosecutor has sued Ashcroft and attempted to publicly humiliate the Bush Administration. The prosecutor should have been fired long ago to prevent this recent travesty.

    Practicing law without a license
    All states in the USA have laws against anyone practicing law without a license, and a lawyer from another state is usually treated just the same as someone with no law license at all.

    The Connecticut governor is facing impeachment, and both the prosecution and defense are using out-of-state lawyers. Here is the CT UPL law.

    Apparently even the governor and the legislature don't really believe in these laws themselves. Texas once tried to prosecute the publisher of a self-help will kit. A popular outcry caused the legislature to pass an exemption for such kits.

    Here is a study showing a possible link between mercury and autism.

    Monday, Feb 16, 2004
    Vaccines and autism
    Andy writes:
    John circulated an extraordinary editorial by the WSJ. Apparently fighting the Clintons for eight years was tame compared to how the parents of autistic children let the WSJ have it over its biased commentaries. (see below if you did not receive it from John).

    The WSJ should get lambasted again for acting as a stooge for the vaccine industry. Its unusual editorial below relies on innuendo and half-truths to defend its position. No one is trying to silence doctors who recommend immunization. The problem is the pressure placed on doctors and parents to coerce immunization, which include barring kids from public and private school over the senseless Hep B vaccine. Other flaws in its editorial below praising the NAAR without disclosing its likely biased corporate funding (Roger, do you know its funding?); decrying higher measles rates in Ireland without disclosing a likely lack of injury; and stating "that thimerosal has never been credibly linked to autism" without noting an article we published in AAPS JP&S.

    Yes, I saw it, and disregarded it. It was titled, "Autism and Vaccines -- Activists wage a nasty campaign to silence scientists." But there is no nasty campaign, and no scientists were silenced. It does says that some people have criticized Paul Offit, and then cites him as if he is a neutral observer about vaccines. He is a paid lobbyist for drug companies that sell vaccines.

    The critics of our national vaccine policy mainly want:

  • informed choice for parents
  • no conflicts of interest among policymakers
  • public disclosure of research data that is either govt-funded or used to set govt policy.

    There is nothing anti-science about this, and no one is trying to silence scientists. If anyone is silencing scientists, it is the drug companies who use trade-secret laws to suppress the detail of the vaccine studies that they cite to promote their vaccines.

    Efficient food production
    John sends this Wash Post article challenging efficiencies. Liza writes:
    This article has a scary conclusion - that we should outlaw "super-efficient technologies"!

    However, I sympathize with some of the points. Big Food is loaded with health risks. Fresh, preferably locally grown food is more healthful and tastier. Herbivores should never have been turned into carnivores. Europeans, who cling to an inefficient model of local agriculture, eat much better than most Americans. Efficiency isn't everything.

    It's also true that it's become harder to obtain a lot of little services that used to make life more pleasant - grocery store checkout, gas pumping, travel agents handling airline tickets, talking to a human being on a business phone line instead of an interminable voice mail menu, finding competent salespersons in big stores - but it's no use whining about them. They won't come back because most people don't want to pay extra for them.

    Right to be insulted
    Phyllis was recently quoted:
    Bueler was criticized for a recent club newsletter he wrote that said "Liberals welcome every Muhammad, Jamul and Jose" who enter the country illegally and strain government resources. On Saturday, Bueler said he stood by the statement. Schlafly commended Bueler for making it.

    "I think it was appropriate," Schlafly said outside the meeting room. "They don't have the right to be insulted."

    and writes:
    The reporter omitted the word NOT. I said you don't have the right NOT to be insulted.
    I guess she is used to being misquoted.
    Medical consent
    In response to a Malkin column, a pediatrician named Mark says:
    Something Ms. Malkin never clearly stated was *why* she objected to her child recieving the Hep B and the Prevnar. Maybe I missed it, but just because she says, "I object" doesn't mean she has sensible reasons to do so. If she objected for objection's sake, then I think the pediatrician was completely right to ask the family to find a new doctor. Who needs the headache of having patients/parents like that in one's practice?
    Mark is apparently aware that the HBV vaccine is unnecessary for most babies, and that parents often have rational reasons for skipping or postponing it. But unless the parent articulates such a reason and that reason is acceptable to him, then Mark wants to get rid of that patient!

    Lots of people like to make their own medical decision. They like to get recommendations from physicians, but they don't always follow those recommendations and they don't find any necessity to explain themselves to the physician. Mark has an attitude problem. I recommend avoiding physicians with his attitude.

    Chris writes:

    While it is true that many people want to make their own medical decisions they often make them for emotional or irrational reasons. Your examples are perfect illustrations of this attitude. HBV is not given to the infant for the purposes of helping the infant at that time but to provide protection for the child once they reach an age where they may be exposed to Hepatitis B, often through their own ill-considered actions. Once the person is old enough to be threatened by Hepatitis B and likely to be infected they are almost guaranteed to be beyond reach of any reasonable vaccination program.

    Another common reason for parents choosing to avoid vaccinating their child is the ‘free rider’ theorem. Simply stated the parent feels that they can avoid both the dangers of the disease and the vaccination by relying on the vast majority of parents following the recommendations of pediatricians and having their children vaccinated while their ‘special’ child is safe from the disease, because of the vaccination of others, but free from the infinitesimally small risk of the vaccination itself. Otherwise know as the ‘screw you jack, I’ve got mine’ approach to community involvement.

    Often people fail to follow physician advice because they are in denial, “my child will never suffer this disease” or “I will get better without doing anything.” The person doesn’t want to think about the possibilities and thus avoids the issue altogether. In fact often they feel a deep resentment towards the physician who is seen as the cause of the problem, “if the doctor hadn’t told me I had cancer I wouldn’t be sick.”

    A common reason is the embracing of an answer that ‘feels’ right and then casting about to justify the explanation. The parent feels that the vaccination is unnecessary and finds endless crap on the internet to justify this response. They even elevate the irrational to the explanation, high power lines cause cancer, vaccinations cause autism, and anti-depressants cause suicide. Ignore the overwhelming body of evidence that shows that we as a country are healthier then any society in history and focus on the small ambiguous bits of evidence and build it into a conspiracy against parents. Hey maybe the mafia and the CIA really did assassinate Kennedy!

    Heaven forbid that your doctor should expect you to trust their judgment when they spent the time in school, residency and then in practice with the sole goal of keeping you and your children health and alive. (Okay so money, and big money figures in their too.) Expecting something other than paranoia, denial or selfishness as a reason to avoid treatment seems like what one would want in a doctor. You and your kids might even end up healthier and happier for it.

    There is a national schedule for childhood vaccinations, set by a CDC committee. When a pediatrician gives a kid a vaccine, he is not giving his judgment. He is just following the schedule. H can't deviate from the schedule, or he'd get complaints from schools and others who require adherence to the schedule. So it is silly to either trust the pediatrician, or to argue with the pediatrician, about what is on the schedule. It is not his decision. It is like arguing with a McDonald's order taker about what is in a Big Mac or whether it is good for you.

    I posted my reasons for skipping the HBV vaccine for my kid. I guess you will think that my reasons were not good enough to outweigh the opinions of someone who has been thru medical school, and that I am a free rider. Does it matter that the vaccine has since been withdrawn from the market because its mercury content exceeded EPA guidelines? I didn't know that at the time, but I could see that the system of recommendations was broken, and it is still broken.

    The V-chip
    Thomas Hazlett says that the V-chip is a failure because no one uses it, and because it didn't stop Janet Jackson's indecency.

    When the V-chip law passed in 1996, the industry lobbied hard against it, complaining that it would make TVs more expensive and support censorship of TV shows. Hazlett concedes that it did neither, but points to a survey showing that only 8% of households use the chip, and that the true percentage is probably less. So he says that the law was ineffective, and that Congress should avoid passing any such laws in the future.

    His conclusion doesn't follow. If 8% benefit from the chip and it didn't cost anyone anything, then that sounds like pure win-win to me.

    One problem with applying the chip to Janet Jackson was that the Super Bowl halftime show was not rated for nudity. If the network had been honest, and accurately rated the show, then it would have risked losing some small percentage of its viewers. Not 8%, but even if it lost 1%, that might have been enough for CBS to avoid nudity during the Super Bowl.

    So I draw a different conclusion: the FCC should make the broadcast networks label their shows more accurately. If 8% of the people use the V-chip, then the FCC could fine CBS 8% of their Super Bowl revenues. That would send a message.

    Medical privacy
    John compares Rush Limbaugh's medical privacy to that of partial birth abortionists, and add:
    There are major differences between this case and Rush Limbaugh's medical records. Ashcroft is being sued by doctors who claim that the PBAs they performed were medically necessary. So of course Ashcroft is entitled to discover whether that is true. My understanding is that his subpoenas do not require any identifying data about the women involved.

    Sunday, Feb 15, 2004
    Msft source code leak
    The news has a big story about a Msft source code leak. The leak will cause little or no damage to Msft. I am suspicious. Msft may benefit because it gives Msft the excuse it needs to cut off Mainsoft. Msft had to give Mainsoft the source code as part of an antitrust settlement, and Mainsoft is not helping Msft at all.

    Update: Someone found a buffer overflow already based on the leaked code. Msft has already fixed it, but those running MSIE 5.0 are vulnerable.

    Slanted movies
    Andy writes:
    My list of the most conservative and liberal films. Most conservative films:
  • 1. Spider-man (promotes many conservative themes and mocks liberal ones)
  • 2. Ben Hur (triumph of faith)
  • 3. Manchurian Candidate (threat of Communism, despite swipe at McCarthy)
  • 4. High Noon (Wild West at its best)
  • 5. Gods and Generals (featuring the greatest American General, Stonewall Jackson)

    Most liberal films:

  • 1. Dr. Strangelove (mocks national defense and Teller)
  • 2. 12 Angry Men (bleeding heart at its best)
  • 3. The Graduate (parents are idiots and vicious and it's all their fault)
  • 4. It's a Wonderful Life (humanism in all its glory)
  • 5. Inherit the Wind (lies about the Scopes trial to mislead millions)
  • That last film certainly did mislead millions. Today's SJMN says:
    The most famous statute was Tennessee's Butler Act, under which high school teacher John Thomas Scopes was successfully prosecuted in 1925.

    The Scopes trial was a public-relations disaster for creationism. Its champion, William Jennings Bryan, underwent a humiliating examination by Clarence Darrow about his adherence to a literal reading of the Bible. Still, the trial exerted a chilling influence on science education.

    It sounds like someone watched the movie. Scopes was not successfully prosecuted (his conviction was reversed on appeal), Bryan was not humiliated, and Bryan testified that he did not adhere to a literal reading of the Bible. The trial did not chill any science education.

    Andy writes:

    Right. All the Murky News reporter had to do was read the trial transcript. Bryan was not a literalist, and he chewed Darrow up on cross-examination. The humiliation, if any, was probably Darrow's. Afterwards, Darrow pled his client guilty in order to break his promise to take the stand himself. Reporters were astounded by the surprise ending, and (except for HL Mencken) described it accurately.

    Tennessee kept the Scopes law intact until around 1970, keep evolution bias out of its schools to this day, and Gore astoundingly lost his home state and the presidency partly as a result. People who claim that the evolutionists won a victory in the Scopes trial, PR or otherwise, are just stating their own bias.

    Anne says that Dr. Strangelove was modeled after Curtis LeMay, not Teller. I agree that Dr. Strangelove was not modeled after Teller. There is no resemblance. Why would a Hungarian Jew who fled the Nazis be giving Nazi salutes? Teller was a research scientist.
    Cooking the jury pool
    John sends this Houston Chronicle article about how voir dire is used to cook the jury pool. Here is the scam. Some ambulance-hasing lawyer files a bogus lawsuit asking for pain, suffering, mental anguish, and punitive damages. The he asks prospective jurors what they think of the lawsuit in which McDonalds was ordered to pay millions of dollars for serving hot coffee. If the prospective jurors say that they disagree with McDonalds having to pay for hot coffee, then they are bumped from the jury pool for being biased against the plaintiff. One recent case could not find 12 supposedly "impartial" jurors from a group of 93!

    Saturday, Feb 14, 2004
    Legalizing the acknowledgement of God
    Congress has introduced a bill to withdraw court jurisdiction over the acknowledgement of God. Roy Moore, the Alabama 10C judge, supports. It makes a lot of sense to me, and it is much more practical than amending the Constitution. Somebody has to tell the judges that they've usurped their authority.

    Thursday, Feb 12, 2004
    Judicial supremacy
    Bob writes:
    The best argument I can think of against judicial supremacy is based on the notions of separation of powers and checks and balances. If the judicial branch disagrees with both the executive and legislative branches and there is no popular consensus on an issue it is unwise for the judicial branch to intervene. It is risky to defy the opinion of the USSC. Public opinion is fickle. Presidents and Congressmen who defy the USSC based on popular support may find that they are out of office after such an adventure if popular opinion is swayed. If they think they can get away with it I don't see anything in the Constitution to prevent it. If the USSC is defied occasionally, it would discourage the court from some of their more high handed opinions. Some problems should be left unresolved until a consensus is reached. All of the above means that the judicial branch is not and should not be subordinate to the other branches. Healthy deadlock requires equality of the branches.

    I always wondered why Dred Scott wasn't directly overturned. Perhaps the USSC feared that pulling on that thread would unravel the judicial supremacy sleeve. Just a thought.

    Dred Scott was directly overturned by the 13th Amendment.

    The best argument is that we fought a revolution against being subordinate to the dictates of unelected and unaccountable rulers. Judicial supremacy is as foolish as royalty.

    Chris writes:

    I always spelled it Kludge as well.

    Judicial Supremacy

    It would be nice if the judiciary was omniscient but they aren’t. They are as human an institution as the legislative or executive branch and thus allowed their fair share of mistakes.

    In spite of that the power of the judiciary to overrule the legislative and executive branch is indispensable to our way of government. Without ‘judicial supremacy’ there is no check on popular legislation that directly contravenes the constitution. As you demonstrate it is possible for the legislature to overrule the courts but the process is difficult and time consuming. The founders were rightly concerned about the country being swayed by passions that would lead to unjust laws. By leaving the judiciary, and originally the Senate, above the fray they hoped that the intemperance of the moments would be balanced by more contemplative organs.

    A more important point that the founders did not expect was a legislative branch that has become hereditary. There are but a handful of competitive seats in most state and federal legislatures and this has lead to the entrenchments of a political class that does not allow the open and robust debate the founders envisioned. Without competitive seats in the Congress it is possible for the party with the most access to money to achieve control over the elective branch without actually representing the majority opinion within the country.

    Without an independent judiciary the current Congress would quite happily legislate the opposition out of existence.

    I am persuaded by this kluge dictionary entry. The reason is that the spelling kluge is older, and the word is pronounced to rhyme with huge, refuge, centrifuge, and deluge, as opposed to sludge, judge, budge, and fudge.

    Wednesday, Feb 11, 2004
    Martha Stewart
    Conventional wisdom now is that the testimony against Martha Stewart is very damaging, and that she will be found guilty. But I don't see it, and I think that she will be acquitted.

    So what if she altered a phone log? Maybe she thought that it was inaccurate or misleading. Maybe she was afraid that it would be used in a witchhunt against her. Maybe it referenced something, of which she could not remember the details. There could be a lot of reasons. The prosecution is not claiming that she has to keep full and accurate phone logs, or that her revision was inaccurate, or that the change was to cover up a crime. I guess that they are hinting that it might have been to cover up insider trading, but she is not being charged with insider trading. So why is the supposed change of any consequence?

    I think that the feds have a very weak set of charges, and it all hinges on a sleazy stockbroker who is testifying to save his own skin.

    Update: Now it turns out that the FDA has approved ImClone's cancer drug Erbitux. The brains behind the company is sitting in jail. Apparently the FDA made a mistake with its earlier rejection of the drug. Stewart invested in a drug that actually works, and now she is being prosecuted for the fallout from an FDA mistake? I don't see who was harmed by what she did.

    George writes:

    Martha Stewart lied to cover up her insider trading. That seems obvious, and she ought to be convicted of that. What difference does it make whether the ImClone drug works or if anyone was harmed?
    Martha Stewart was not an ImClone insider, and the feds cannot prove insider trading. If they cannot prove insider trading, then how can they possibly prove that she lied to cover it up?

    Even if Martha lied, she was not under oath. People only think that lying is wrong if it was under oath, or if someone got cheated, or there was some other objective harm. She was selling a good stock with a good product. People who lie to cover up illegal acts are never prosecuted for lying; they are only prosecuted for the illegal acts. So why should anyone be prosecuted for lying to cover up legal acts?

    Tuesday, Feb 10, 2004
    Dark matter
    Astrophysicists are convinced that the universe is about 95% dark matter and dark energy, but the Economist magazine is skeptical, and says:
    IT WAS beautiful, complex and wrong. In 150AD, Ptolemy of Alexandria published his theory of epicycles—the idea that the moon, the sun and the planets moved in circles which were moving in circles which were moving in circles around the Earth. This theory explained the motion of celestial objects to an astonishing degree of precision. It was, however, what computer programmers call a kludge: a dirty, inelegant solution.
    First, the word is spelled kluge, not a kludge. Second, the Ptolemaic theory was not wrong. It was the best theory around for 1400 years. No other quantitative scientific theory has done so well for so long. Even today, the motions of the planets are sometimes quantified in terms of a sum of circular motions. (Nowadays, it is called a Fourier decomposition.)
    NASA fakes photos
    NASA has admitted that it faked the red coloring of the Martian rover pictures. Yes, Mars is reddish, but NASA doctored the pictures to make Mars look much more reddish than it really is. NASA had tried to deny it, but critics found conclusive proof.

    This is very embarrassing for NASA. I know that it common uses color enhancement to liven up astronomical pictures. But artificially painting Mars red? Inexcusable.

    Monday, Feb 09, 2004
    Vaccine data
    John sends this story about the vaccine-autism debate, and writes:
    Note 2nd-to-last paragraph U.S. Rep. Dave Weldon, M.D., "is pressing the CDC to give outside researchers access to the study data"!

    Sunday, Feb 08, 2004
    Judicial supremacy
    Here is another example of outrageous judicial supremacy. Congress passed a completely innocuous law asking the Justice Dept. to make some reports on whether federal criminal sentencing is within the official guidelines. A judge has now declared the law unconstitutional because the dissemination of information might generate criticism of the judiciary! I would impeach the judge who wrote that opinion.

    Friday, Feb 06, 2004
    Judge wants corruption cases
    John sends this story, and writes:
    Public corruption and white collar crime cases could also be prosecuted in state court. The judge does not explain WHY he thinks they are more appropriate for federal court than drug and gun cases.
    Gloria Steinem
    This is from an interview published today:
    [interviewer] ... many of the right-wing media shills took aim at Howard Dean’s wife because she’s chosen to pursue her work as a physician. She’s a doctor and she wants to stay close to her patients, rather than be out on the campaign trail. And once again, the right-wing males took after her simply because she wants to pursue her professional career.

    Gloria Steinem: I think that that’s hypocritical because there are right-wing women who are pursuing their professional career and not staying home. I think they’re using it as a target of opportunity. Phyllis Schlafly doesn't stay home.

    People criticized Mrs. Dean because she did stay home, and failed to support her husband running for the important job in the world. Being president is a very demanding job, and there is considerable doubt about whether Howard Dean is up to the task without the support of his wife.

    Phyllis Schlafly is a widow, and her youngest child is 39 years old. Why does anyone care if she travels?

    See the rest of the interview (and the rest of the web site) for more confused, hysterical, and paranoid rants.

    Hockey death
    I just came from a hockey game in San Jose where a player died. Very unusual. The cause of death was unclear. The SJMN story is here.

    Thursday, Feb 05, 2004
    John Kerry, crypto-fascist
    John Kerry voted for the USA Patriot Act, and now criticizes Attorney General John Ashcroft for enforcing it. But Ashcroft's record in favor of basic civil liberties is much better than Kerry's.

    John Kerry sponsored a bill to limit American to crypto systems with "key escrow" backdoors. His proposal was similar to proposals from the former Democratic Attorney General Janet Reno and her FBI director. Meanwhile, Kerry's fellow US Senator John Ashcroft sponsored an excellent bill to repudiate such requirements, and encourage use of crypto with no backdoors. For more info, see: here.

    John Ashcroft is the current US Attorney General. He believes that we have a fundamental right to use cryptography, and that crypto is good for society as well. Think about that when you hear Kerry attacking Bush and Ashcroft.

    Wednesday, Feb 04, 2004
    Jackson's trail of murder
    Bob writes about how Pres. Andrew Jackson defied a US Supreme Court order, and sent 4k Cherokees to their death.

    I can't find where Jackson did either. Congress passed The Indian Removal Act of 1830 to move the Cherokees.

    The USSC/Marshall upheld the Act, because the Cherokee nation claimed to be a foreign nation, and because the court shouldn't be telling legislatures what to do. It doesn't sound like Marshall believed in judicial supremacy himself.

    There was another case in 1832, but it just looks like it involved some federalism issues. It just said that a Georgia act was preempted by the feds. In connection with this, Jackson said, famously, "John Marshall has made his decision, now let him enforce it."

    But this was apparently in reference to the 1832 decision, not the 1831 decision. The 1832 was against the state of Georgia. The feds were not a party. Jackson probably thought that there was no reason to enforce it anyway, as the feds had their own plans for moving the Cherokees. Or maybe he was just applying the convential federalism of the era.

    I don't see where Jackson defied the USSC. At worst, he failed to intervene on behalf of the Indians, in their dispute with the state of Georgia. Jackson's quote may have just been a federalism statement.

    Here is Jackson on the Indian removal, and he clearly thinks that he is doing the Cherokees a favor. More quotes are here.

    The 4k deaths occurred when the Cherokees were finally forcibly moved (in the so-called Trail of Tears) from Georgia to Oklahoma during the administration of Jackson's successor, Martin Van Buren.

    So I don't agree that we have a mass murderer on our money, or that thousands died because an outlaw president refused to knuckle under to judicial supremacy.

    Kennewick Man
    John writes:
    Kennewick Man proves that American Indians are no more "native Americans" than we are.
    Glad to see that the feds will allow Kennewick Man to be studied. He was apparently here before the American Indians, and his tribe was wiped by the invading Indians who were settling in N. America from Asia. Some Indians today wanted to bury the evidence, so people will think that American Indians are the true indigenous people.
    HBV vaccine
    Michelle Malkin objected to her newborn baby getting the HBV vaccine. I had a similar experience when my kid was born. The pediatricians won't tell you the real reason for the vaccine, and may not even know themselves.

    You can get more info at the Immunization Policy FAQ home page

    Chris writes:

    It seems the simple answer to the question of receiving the HBV is answered in the by the CDC page:
    The incidence rate of hepatitis B has not dropped so dramatically yet because the infants we began vaccinating in 1991 will not be at high risk for the disease until they are at least teenagers. We therefore expect about a 15 year lag between the start of universal infant vaccination and a significant drop in disease incidence. [from section 1.]
    That prediction has not proved correct. If that were right, we wouldn't start seeing a HBV decline until 2006. Instead, the CDC says:
    During 1990--2002, the incidence of acute hepatitis B declined 67% ... the majority of this decline occurred during 1990--1998.
    Most of the USA cases are among Asian immigrants. Malkin is a first-generation Filipino-American, so maybe the pediatrician thought that she was at risk based on looking at her. I don't know.

    A JAMA letter a couple of years ago said:

    There is no scientific evidence to justify HBV vaccination before the age when those risk factors associated with the HBV transmission (sex, needles, etc) become relevant. Recent risk-benefit analyses show HBV vaccination among children carries one of the largest unjustified risks ... [JAMA.2001; 286: 535-536. -- not freely on web any more]
    In response, the vaccine policy defenders gave these alleged benefits:
    1. It is too confusing to just vaccinate those who need it.
    2. There are some (very rare) cases of young kids at risk.
    3. It gets all the kids on the vaccine schedule right away, so they'll be more likely to get the other vaccines on schedule.
    4. It is easier to get to babies than adolescents.
    Gay marriage
    The folly of judicial supremacy is illustrated in today's news about judicially-ordered same-sex marriage. The Mass. high court has given the state legislature special instructions to pass a same-sex marriage law! In particular, it advised against passing a draft civil-union law that the legislature was considering. It gave a deadline, and implied that the Ontario Canada law should be copied. There is no case or controversy in the usual sense. It is just social engineering and policymaking on the part of arrogant judges.

    It appears that the court even had to water down its code of judicial conduct in order to issue this advisory opinion.

    Meanwhile, Ohio has had to pass its own Defense of Marriage Act in order to try to head off the effects of runaway judges. (This action has been misreported as Ohio moves to prohibit gay unions and Ohio Legislature Votes to Ban Same-Sex Unions. The law does not ban any unions -- gays will continue to be free to form whatever unions they please. The law only refuses to treat such unions like married couples.)

    If the people of Mass. want to change their marriage law, then they have a political system for that. But they are living under judicial tyranny if they let judges rewrite their laws for them. This never happened before the Warren Court. Except for Dred Scott, and a terrible price was paid for that mistake.

    This Mass. news has to be bad for John Kerry. He claims that he is against gay marriage, but he voted for same-sex marriage in the federal Defense Of Marriage Act, he is a senator from Mass., and the Democratic convention will be in Mass. He will be portrayed as a wacky eastern liberal who is out of step with the people. His voting record also has other contradictions.

    Bob says:

    I don't know why anyone cares about the homosexuals anyway. Why should anyone object if they marry? The psychologists once classified homosexuality as abnormal, but that was because the people on the committee didn't even know that homosexuality occurs in nature among animals.
    I don't think that it quite accurate. The term homosexuality used to just mean same-sex sexual relations, but the more politically correct definition today is the practices of those with same-sex sexual orientation. The latter has never been observed among (non-human) animals. I would say that it is more accurate to say that bisexuality has been observed in nature.

    Bob's a big proponent of evolution, and he thinks that humans are animals, so he probably thinks that anything humans do will eventually be discovered in lower animals. Oops, he wouldn't call them "lower" animals. Ok, non-human animals. Maybe more grant money will be available for this sort of research in a John Kerry administration.

    BTW, if you want to know all the wacky things that the shrinks now think are abnormal, here is a free version of the DSM-IV. I don't know if any of that stuff has been observed in animals.

    Chris writes:

    I have to agree with Bob here. What is wrong with allowing homosexuals to enter into long term stable relationships with the same rights and responsibilities as heterosexual people?

    It never ceases to amuse me when people who are in favor of freedom from government have a conniption fit when others exercise that freedom. How exactly is society harmed by individuals entering into a marriage contract? Why is it anyone else’s concern when two men decide that to affirm their love for one another by entering into a union where the foreswear others and cleave only unto themselves?

    How is my marriage weakened or harmed by another’s actions? I would suggest that marriage is harmed far more by the pious hypocrisies of those who rail against homosexuals while practicing serial infidelity and adultery. I, however, am not going to suggest that we should make such actions illegal and go so far as to amend the constitution to do so and to call out the power of the state to prevent this activity.

    Why is it a valid political position to pass laws to enforce the religious beliefs of a subset of the American people?

    My opinion is that marriage laws should reflect a broad consensus of the American public. If that consensus includes same-sex marriage someday, then so be it. There is no such consensus today, and my concern is that we have a judiciary that is out of control. The root of the problem is judicial supremacy.

    The basis for the Mass. high court opinion is that the 4-3 majority says that it could not find a rational basis for opposite-sex marriage. This opinion is bizarre. Opposite-sex marriage law is present in virtually all cultures throughout the world, regardless of religion, and has existed for thousands of years. The burden of proof should be on those who want some other system to show that it is better. The Mass. high court is irrational, because it gives no evidence that a change would be better.

    Bob writes:

    I just heard [a talk show host] on the radio saying that the primary reason for marriage is to care for children. I agree so far. Then he said that because homosexuals can't have children with each other that they could only have children through adoption. Homosexuals have children all the time the old fashioned way, without adoption. Sometimes they are married when they have children, sometimes not. All of the issues of child rearing and custody pertain to homosexuals.

    My take on the outrageous action of the Massachusetts Supreme Court is that the people of Massachusetts had it coming. They elect people like Kerry, Kennedy, and Barney Frank which they inflict on the rest of the country. Now the complain when allies of the people they elect use their high handed, elitist, authoritarian tactics in their own state. Tough.

    We have similar kooks in California, in both elected office and as judges, and we have similar problems. Just a few months ago, we were nearly denied a chance to have an election for governor, because a couple of crooked judges on the 9C had a radical plan to redo our elections.

    It doesn't prove anything to say that homosexuals can often mimic the lives of heterosexuals. The state passes laws to encourage certain types of relationships, for good and just reasons like rearing the next generation in a stable manner. People are free to form whatever private relationships they wish -- be they polygamous, incestuous, adulterous, homosexual, bisexual or whatever -- but the state can choose not to encourage such relationships. If someone wants to start a serious reexamination of what the state should encourage in the way of personal relationships and sexual practices, then I think that is great. There are probably some changes with which I'd agree. But the gay lobby and the judicial supremicists do not want that. They want to just mandate a change based on some hokey discrimination argument, instead of looking at what people really want or what is good for society.

    The Mass. Governor is hinting that he may take a stand against judicial supremacy:

    With the Dred Scott case, decided four years before he took office, President Lincoln faced a judicial decision that he believed was terribly wrong and badly misinterpreted the U.S. Constitution. Here is what Lincoln said:
    Contrary to the court's opinion, marriage is not "an evolving paradigm." It is deeply rooted in the history, culture and tradition of civil society. It predates our Constitution and our nation by millennia. The institution of marriage was not created by government and it should not be redefined by government. ...

    "If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal."

    By its decision, the Supreme Judicial Court of Massachusetts circumvented the Legislature and the executive, and assumed to itself the power of legislating. That's wrong.
    You know the judges are left-wing kooks when they talk about "an evolving paradigm".

    Update: The NY Times has an article on homosexuality in the animal world. It describes penguins at the zoo, and says:

    Mr. Bagemihl said homosexual behavior had been documented in some 450 species. (Homosexuality, he says, refers to any of these behaviors between members of the same sex: long-term bonding, sexual contact, courtship displays or the rearing of young.
    I am not sure what to make of this. It appears that the definition of homosexuality is so broad that it would include humans with same-sex friends. The article also that while the gay lobby argues that animal homosexuality should make human homosexuality more acceptable, the political implications are really not so clear.

    The SJMN printed an edited version of the story. It omitted the definition of animal homosexuality, and it omitted these quotes:

    "Infanticide is widespread in the animal kingdom. To jump from that to say it is desirable makes no sense. We shouldn't be using animals to craft moral and social policies for the kinds of human societies we want to live in. Animals don't take care of the elderly. I don't particularly think that should be a platform for closing down nursing homes."

    "In Nazi Germany, one very common interpretation of homosexuality was that it was animalistic behavior, subhuman".

    Monday, Feb 02, 2004
    California teachers are well paid
    The Si Valley paper explains:
    Teacher housing crisis a myth

    For years, Silicon Valley has taken as gospel that teachers are among those hardest hit by the region's housing crisis.

    ``Lots of teachers have to live in places like Salinas, Patterson and Modesto because they can't afford to buy homes here,'' Roccie Hill, executive director of the Housing Trust of Santa Clara County, said in January. ``It's a harrowing commute, it's a frantic lifestyle. They never get to see their own kids.''

    But a Mercury News analysis of home ownership rates has found that the overwhelming majority of teachers who work in the heart of Silicon Valley also live here -- and in homes they own. In this respect, teachers fare far better than the average Silicon Valley worker, including those with college degrees.

    The results raise fundamental questions about the true nature of teachers' economic situation and how best to improve it.

    In past years, some cities, including San Jose, have launched housing assistance programs for teachers. One local school district built a 40-unit apartment complex for those newest to the profession. And now Silicon Valley business and education leaders want to put a countywide parcel tax on the November ballot, in part, they've said, to help teachers strapped by high housing costs.

    But according to newly released census data:

  • At the peak of the boom, in 2000, 87 percent of teachers who worked in Santa Clara County lived here. An additional 9 percent lived in nearby Santa Cruz, Alameda and San Mateo counties. Less than 2 percent commuted in from Contra Costa County or the Central Valley.
  • Contrary to popular belief, about two-thirds of the teachers who lived and worked in Santa Clara County owned homes here, compared with 51 percent of the overall workforce age 21 and older living in the county and 61 percent of those with at least a bachelor's degree.
  • Teachers also owned homes at a higher rate than many other professions, including software engineers, network administrators and accountants.
  • The article goes on that average public school teacher salary is $58,000 for 9 months work, plus about 25% in benefits. That is equivalent to a gross pay of about $97k per year. Plus there are other perks like tenure, which are hard to find elsewhere.

    The myth persists that teachers are underpaid. In reality, they are overpaid.

    Andy writes:

    I don't see how the 25% could include the pension. The 25% would consist of health benefits (perhaps 10-20%), savings plans (perhaps 5-10%), vacation, matching contributions, etc. I bet Eagle Forum pays its employees 25% extra in benefits, maybe more. Most private companies do.

    The pension benefits are far greater. I think a public school teacher can work only 20 years and then retire with permanent salary for the rest of her life that exceeds her average salary while she worked.

    The 25% figure was based on a summary of the California state budget. I had a figure for teacher salaries, and a figure for teacher benefits, and I divided. I believe that it included current pension benefits, but I could be mistaken. It does not take into account the possibility that pension obligations might be greater in the future. I think that most private employees get 15% or less in benefits. If you have better figures, let me know.

    Andy writes:

    So Roger took the state's own figures as gospel. The value of teacher's pensions are surely greater than 25% of their annual salary. Perhaps the state underestimates its future liabilities by assuming teachers will quit before their pension kicks in. Ha ha ha.
    It is possible that the state is underfunding the plan.

    Chris writes:

    Interesting how you figure that a teacher who earns $58,000 actually got $97,000 that year. Most teachers have to work an additional job during the summer to make ends meet.

    Further Andy states “I think a public school teacher can work only 20 years and then retire with permanent salary for the rest of her life that exceeds her average salary while she worked.”

    Nice thought but a typically bogus conservative argument to engender ill will and to demonize the group being critisized. The truth is:

    “The basic retirement formula under the DB Program is calculated by multiplying the member’s years of credited service by his or her final compensation and an age factor based the member’s age at the time of retirement (currently 2 percent at the normal retirement age of 60). The age factor ranges from 1.1 percent at age 50 to a maximum 2.4 percent at age 63. A member may retire starting at age 50 with 30 years credited service, or starting at age 55 with at least 5 years credited service.” (Taken from http://www.faccc.org/advocacy/calstrs/pdf/strsanalysis_ab1207.pdf)
    Thus our hypothetical teacher after working for thirty years can earn a maximum of 30 * 2.3% * $58,000 or $40,200 per year in retirement which is adjusted down by the amount of Social Security that the teacher collects. Surely a princely sum.
    In California, the big teachers union has just started broadcasting radio ads urging a boycott of three grocery store chains, because of a labor dispute that has nothing to do with teachers. It sounds like the teachers union has too much money.

    Sunday, Feb 01, 2004
    Judicial supremacy
    The PBS TV show Uncommon Knowledge was on judicial supremacy today. The standard dogma among law profs is Marberry v. Madison (1803) established judicial supremacy in the USA, and that it is essential to our system of government. The law prof guest made those arguments, but they were demolished by the other guest.

    The first (and biggest case) to make an issue out of judicial supremacy was the Dred Scott decision (1858). It was a radically racist and activist decision that stripped negroes of their citizenship, even where they had lived as free citizens in the North. It declared the Missouri Compromise unconstitutional because it banned slavery in Maine and a few other places.

    Of course the law profs all like judicial supremacy, and don't want to admit that the seminal case was Dred Scott (1957). Marbury v. Madison was just a case in which the court refused to do something that it thought was unconstitutional. Not until Dred Scott did a court assert that it had the power to tell another branch of the USA how to interpret the Constitution. The idea that judicial supremacy or review came from Marbury v. Madison is just a big myth promoted by leftist law profs.

    Judicial supremacy was formally claimed by the US Supreme Court in Cooper v. Aaron (1958). That was another radical and racist decision.

    The idiot law prof claimed that judicial supremacy was needed add finality to cases like Bush v. Gore (2000). The 2000 election dispute was almost entirely a creation of judicial supremacy ideas. The Florida Secy of State was going to lawfully and properly certify the election. Trial courts rejected Gore's claims, as they did not find any evidence of wrongdoing. Then the Florida supreme court decided to rewrite the election rules, and order a goofy partial manual recount of undervotes, thereby overriding the decisions of the executive and the legislature. Such a decision would have been unthinkable before the Dred-Scott-Warren-court doctrine of judicial supremacy.

    Bob asks what would have happened in the 2000 election without judicial supremacy? As it was, he says, the Florida court got spanked for its intervention.

    The Florida supreme court never really got spanked for the worst thing it did. It decided that it could redo an election recount under its own rules, and it would be fairer and better because of judicial supremacy. There is no way an appellate court should ever be doing anything but accepting or rejected the decisions of lower courts, and there is no way a court should be telling the executive branch how to run an election.

    By and large, the liberal law profs justified the Florida court behavior on the grounds that such court exceed their authority all the time. The US supreme court reversed the Florida court, but it did so on the grounds of inequities in the proposed Florida judicial recount. Nobody questioned the authority of the courts to rewrite election rules.

    Without judicial supremacy, the Florida supreme court would never have issued such outrageous rulings. And if it did, then the Florida Secy of State would have followed her constitutional obligations and certified the election anyway, as provided by the statutes. If the Florida supreme court really thought that there was some election recount inequity, it could have kicked the cases back down to the trial courts to reconsider the evidence and look for a remedy.

    If it is hard to imagine a functioning government without judicial supremacy, then just look at the bulk of American history. We have really only had it for the Dred Scott decision, the Warren court, and a few post-Warren decisions. Dred Scott was, of course, one of the most disastrous court decisions in all of human history, as it helped trigger the US Civil War. The US Supreme Court has backed off of some of the excessive activism of the Warren Court. If it repudiates judicial supremacy and reverts to the way the courts have functioned for 100s of years before Warren, then we will all be better off.

    Bob writes:

    You are conflating several different meanings of judicial supremacy. Meaning 1 is that for each specific case adjudicated by it, the decision of the US Supreme Court is binding and final. Meaning 2 is an exception to meaning 1 when one of the parties is a branch of government coequal to the judiciary. Meaning 3 pertains to whether decisions of the USSC more general than a specific case are binding.

    The way I heard the discussion on Uncommon Knowledge, there is no controversy over meaning 1. Meaning 1 is clearly spelled out in article 3 of the Constitution. Robert George (the other, non law professor guest) believed that Marberry v. Madison could be interpreted as being restricted to meaning 1. The meaning of Marberry v. Madison was debated in the Senate, for what that's worth. Apparently not much, because neither guest cited the Senate debate beyond mentioning that it occurred. Jefferson weighed in on Marberry v. Madison saying that it would cause judicial tyranny. The last two points make it clear that judicial supremacy originated with Marberry v. Madison, not Dread Scott.

    The Constitution is silent on meaning 2. Both Jackson and Lincoln defied the USSC. History has vindicated Lincoln and condemned Jackson. Meaning 2 seems like a mixed bag at best.

    The legal principle of precedent establishes meaning 3. I would like to hear exactly how meaning 3 would change as envisioned by the opponents of judicial supremacy. An argument for meaning 3 is finality. After 32 years it remains unclear whether Roe v. Wade is final. Premature finality isn't final. In absence of consensus the history of broad USSC decisions is less than satisfactory.

    I find it remarkable that conservatives are anxious to overturn a judicial principle dating to 1803 because they don't like current USSC decisions. With few exceptions, the powers of the USSC are the power to strike down laws, not make them. Conservatives sometimes make the argument that the USSC engages in judicial activism when finds rights not explicitly stated in the Constitution. Conservatives who make this argument should be ashamed. The 9th and 10th amendments explicitly state that the fact that a right is not enumerated in the Constitution cannot be used to disparage that right. This is an invitation for the USSC to discover rights.

    A fourth meaning of judicial supremacy which was not discussed in the Uncommon Knowledge show is whether USSC decisions are binding on lower courts. We have witnessed Federal judges repeatedly defying USSC decisions with no repercussions. The lack of criticism by law professors of these lawless actions of federal judges is problematic. I do not understand how such contempt for the Constitution can be considered "good Behavior" as mentioned in Article III, Section 1.

    A related issue also not discussed in the Uncommon Knowledge show is the fact that except for "Cases affecting Ambassadors, other public Ministers and Consuls and those in which a State shall be Party", where the USSC has "original jurisdiction", Congress may regulate and make exceptions to its jurisdiction. The language is too clear to argue with and provides a clear limit to judicial supremacy. The fact that Congress has not found it possible to use this power in politically significant ways indicates the relative disrepute of Congress compared to the USSC and the wisdom of the founding fathers.

    I don't agree that history has condemned Andrew Jackson. His 1832 veto of the Bank of the US charter spells out the folly of judicial supremacy [meaning 2] pretty well:
    Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.
    I also don't think that it is correct that Jefferson said that Marberry v. Madison would cause judicial tyranny. What he said was:
    To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. [More quotes here.]
    The difference is that Jefferson did not believe that Marbury v. Madison created judicial supremacy. Marbury had sued to get a job to which he had been appointed. The USSC ruled that he was legally entitled to that job, but Jefferson did not let him have the job. If Jefferson believed that he was bound by the constitutional interpretations of the USSC, then he would have given the job to Marbury. He did not, and Marbury never got the job.

    So there really is no 1803 judicial supremacy principle. My hunch is that the supposed importance of Marbury v. Madison is a 20th century invention, created by law profs and judges who needed to cite some sort of precedent for their wacky judicial supremacy ideas, and it was just too embarrassing to cite Dred Scott.

    You wonder about the finality of Roe v. Wade (1973), but that is a common problem when judges try to make law, instead of just deciding cases as they are supposed to. Roe v. Wade is the USSC's most famous case, next to Dred Scott, and it has been repeatedly and emphatically affirmed with votes to spare, and yet you still wonder if it is final.