Archives for March, 2007

Presidents and Younger Women

Even though it’s dorky, I like to say that one of my favorite presidents was that loveable overweight, draft-dodging Democrat elected in ’92:…. Grover Cleveland.

Ha ha, thanksimhereallweek.

With nearly 10 years distance, I’m now kind of embarassed at how badly I wanted Clinton impeached. It does seem close to the ultimate in federal absurdity to have had a multimillion dollar operation devoted to unearthing perjury about a guy playing grabass with the help. On the other hand: oh those footnotes! I don’t think I ever got more laughs per tax dollar. I don’t think I ever wanted him impeached for sex exactly. It was more that I hated him to begin with, and I wanted him impeached for hypocrisy (who was he to complain about being grilled about his sexual history?). Then when he started bombing stuff left and right–particularly the eve-of-impeachment Iraq bombing, it became clear that the guy really was a moral monster and it had nothing to do with blowjobs.

Anyway, Grover Cleveland was what I wanted to talk about. Imagine if instead of a little thong-snapping with the intern, that Clinton was a bachelor (I’m sure he likes to imagine that himself). And while in the White House, he decides to marry a gal 27 years younger than him. And it turns out it’s his (late) best friend and law partner’s daughter. And not only did he–being practically part of the family–watch the little girl grow up–he’s actually the guy who bought her her first baby carriage, for God’s sake. I think the consensus for impeachment would have been quite a bit broader and more bipartisan in that case. And yet the Cleveland wedding, 100 years and change before the Clinton impeachment, was a national charmer. It’s almost as if everyone got together to make the Woody Allen/Soon Yi Previn nuptuals the social event of the season. The past is another country where they have different sexual mores.

Posted on Mar 28, 2007 in Uncategorized | Comments Off


…for the title suggestions. Some good stuff in there.

In other news, a civilization that creates something like Dancing with the Stars can’t be all bad. That must be one state of the art prosthesis Sir Paul bought her, cause Heather Mills sure is putting some stress on that leg.

Go Clavin.

Posted on Mar 27, 2007 in Uncategorized | Comments Off

Oh, Stop.

Tyler Cowen playing shock-the-libertarian yet again:

Some societies, such as in East Asia, use the family to pick up a greater share of income and health risks. I doubt if the highly mobile United States could do the same, but even so this option is costly. Most of all, the welfare state liberates the productive and the creative from their sometimes burdensome family ties. The welfare state is the Randian’s secret dream, and that is what clinches the case for a government safety net. [Emphasis his]

Shorter: “I don’t wanna take care of my mom. Let’s tax you, and I’ll start a dot-com.” Hey, it rhymes.

Posted on Mar 26, 2007 in Uncategorized | 2 Comments

Title Bleg

So as some of you may know and some of you may care, I’m writing a book. What’s it about? It’s about the presidency. I’m against it.

That’s what I tell people, for kicks. It’s a smartass answer, but there’s a grain of truth to it. The book started out as a treatment of the growth of executive power after 9/11, but I didn’t really get going on it until I figured out that it was really about how America’s view of what the presidency is for changed over the course of the 20th century. What I’m against, what the book takes aim at, is the notion of the president as father-protector, responsible for everything from bad weather to global liberty to spiritual malaise. The notion behind the book is that that expansive vision of the presidency is incompatible with self-government and feeds the growth of executive power. It’s the reverse of the Spiderman credo: with great responsibility comes great power.

So, titles. It started out as

Executive Unbound: The Imperial Presidency and the War on Terror

But that sucked and it’s no longer what the book is about. I turned to:

Maximum Leader: America’s Bipartisan Romance with the Imperial Presidency

I don’t care for the subtitle, but I really like “Maximum Leader.” It’s a term people use to deride this president and others, behavior that the book means to encourage, it has connotations of banana republicanism, and it fits well with the president’s transformation in the public mind from constitutional officer to an amalgam of national talk-show host, life coach, global social worker and Supreme Warlord of the Earth.

The problem is, if you have to explain why it’s such a kickass title, you’ve just refuted yourself, and the fact is that no one else likes it. That’s not exactly true. Three people like it, my dad, Jim Henley, and me, all people whose opinions I greatly respect. But even though what I really care about is having a cool cover, I’d also like to sell more than three books.

The proposal went out last week, and it’s now:

The Cult of the Presidency: America’s Dangerous Romance with Executive Power

Which I like okay. My question is, does anyone have an opinion on the latter two titles, or a better title? If you come up with a better one, I’ll thank you in the acknowledgements, and since what I’ve got here is a book based on a very serious, thoughtful, argument that has never been made in such detail or with such care, you’re gonna want to be a part of this.

Posted on Mar 25, 2007 in Uncategorized | 38 Comments

Catch Phrase

Jefferson had some cool phrases to demonize the Federalists. “Monocrats.” “Anglomen.” Maybe they work today. Here are your monocrats; and here are yer Anglomen.

I doubt that’ll catch on. How about this then: “Medal of Freedom” as a euphemism for getting fired or dumped? Dude, she totally gave him the Medal of Freedom.

Nah, I guess not.

This is what happens when I agree to blog more.

Posted on Mar 21, 2007 in Uncategorized | 1 Comment

Free Speech in Public Schools

There’s been a lot of press lately about the “Bong Hits 4 Jesus” case recently argued before the Supreme Court. But when it comes to high school free speech cases, for a real Beavis-esque chuckle, I prefer the speech the kid gave in Bethel School District v. Fraser (1986), excerpted below:

Respondent gave the following speech at a high school assembly in support of a candidate for student government office:

“‘I know a man who is firm — he’s firm in his pants, he’s firm in his shirt, his character is firm — but most . . . of all, his belief in you, the students of Bethel, is firm.

“‘Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he’ll take an issue and nail it to the wall. He doesn’t attack things in spurts — he drives hard, pushing and pushing until finally — he succeeds.

“‘Jeff is a man who will go to the very end — even the climax, for each and every one of you.

“‘So vote for Jeff for A. S. B. vice-president — he’ll never come between you and the best our high school can be.'”

Eh huh, huh. Huh.

Way back when, as the features editor of my high school newspaper, I helped spark a local free-speech controversy by running a photo of fellow senior Jimmy Zazzalli sitting on the can in the boys’ room–thus illustrating the fact that none of the stalls had doors. In fairness to the administration, that’s because the students kept ripping them off.

I hope the “Bong Hits” kid wins. As long as we’re going to have compulsory, monopoly public schools, administrators shouldn’t have the ability to define their “educational mission” broadly enough to suppress any kind of speech they dislike. But I can also understand the sentiment of the otherwise First-Amendment-absolutist Justice Black, who, when it came to school free-speech cases, said, in essence, “siddown, Waldo.”

Posted on Mar 21, 2007 in Uncategorized | 4 Comments

It’s All About Me

I laughed at this little anecdote in the New York Times book review a week ago Sunday. Isaac Asimov’s daughter recounts the time, years ago, when she and her father mistook the Goodyear blimp for a U.F.O. She says her father “nearly had a heart attack. He thought he saw his career going down the drain.”

Posted on Mar 19, 2007 in Uncategorized | Comments Off


Who said TV isn’t educational? That HBO show has me on a Rome kick, trying to repair my half-assed public school education. I dug out the Teaching Company discs, bought Plutarch, and have been digging through Rubicon and reading Robert Harris’s latest historical novel, Imperium, the story of Cicero, as told by his slave Tyro. At first I thought HBO’s Rome was vaguely anti-republican–a much more negative take on the heroes of the Republic than offered by Plutarch or understood by America’s Founders. Cato’s a schmuck, and Brutus a wus on the show. I also thought it was a little too sensationalistic, too full of sex, death and torture, and events that strain credulity, like Octavian having sex with his sister. I’ve come around to the take offered in this Salon piece: “Rome” shows you a starkly pre-Christian morality where even the “good” characters do things that make you sick. And the guy who plays Marc Antony is just fantastic, as are some of the lines they give him:

Antony: “You won’t turn to drink will you?”

Varenius: “No.”

Antony: “You stoic types often do, when disappointed.”

The show also inspired me to rent the old BBC series “I, Claudius,” which I’m enjoying so far. The first show starts with some shocking (and thankfully, non-English) nudity. Roman imperial families seem to ape the sociology of the Jerry Springer show. I keep having to go to Wikipedia to keep it straight. But in the third episode, Augustus says something that reminds me very much of the dilemma of the modern presidency:

“The Senate voted today to make me a god in Palmyra. There will be a little statue to me in the temple and people will bring offerings to me, ask me to bring rain or cure their father’s gout. Tell me, Livia. If I’m a god, even in Palymra, how do I cure gout?”

Posted on Mar 16, 2007 in Uncategorized | Comments Off


Here’s a movie I enjoyed recently: Hombre, a 1967 Western starring Paul Newman in the angry-whiteboy-raised-by-Apaches role. Newman does the Hemingway Code Hero thing admirably. As the Wire’s Omar puts it, “a man got to have a code.” In fact, there’s one scene where Newman’s character is asked to reveal his emotions about something and he says something to the effect of “it’s against the code.” Plenty of good hard-guy lines. To a reluctant barkeep he’s given the role of sniper: “Try not to puke. You may have to lay in it a while.”

There’s always that scene in such movies where the code hero realizes he has to act for a cause larger than him and his. Often it comes off as too damned noble: Bogie giving up Ingrid Bergman to the Czech dissident, Gary Cooper leaving his honeymoon with Grace Kelly to go fight for the undeserving townspeople in High Noon. In this case, at least, Newman’s character does it grudgingly.

Posted on Mar 16, 2007 in Uncategorized | Comments Off

Shipping up to Boston

The more I think about it, the more the Departed reminds me of the adult version of those plays that the kid Max put on in Rushmore. A whole bunch of cool, violent ridiculous stuff with vague artistic pretensions, this time with a sentimental Irish working-class schlock overlay–green-beer Springsteen.

But I’ll say one good thing for the movie on this St. Patrick Day’s week. That Dropkick Murphys song just makes me want to smash a beer bottle over my head, and I mean that in the best possible way.

Posted on Mar 13, 2007 in Uncategorized | 2 Comments

The Inanity of Hope

I suppose I look at presidential races differently than most people. A process involving over two years of nonstop gladhanding, spouting platitudes and spending three or four hours a day on the phone raising money will tend to preselect for people unfit to have access to nuclear weapons (not that anyone’s fit for that). So however much I’d like to have a dog in the fight, I look at as a matter of trying to predict who’s likely to be less dangerous.

Let’s look at the GOP today. I’m going to leave Ron Paul and Chuck Hamlet aside and focus on the three front-runners. I’ve already said my piece on McCain. Moving from idolizing Napoleon to idolizing Teddy Roosevelt is an improvement, to be sure, but not one that instills much comfort.

How about Rudy? Steve Chapman said it well:

What the enchantment with Rudy suggests is that the GOP has morphed from a party that reveres limited government to a party that is girlishly infatuated with executive authority.

In 1964, presidential nominee Barry Goldwater declared it “the cause of Republicanism to resist concentrations of power.” George W. Bush, by contrast, has done everything possible to create a concentration of power in the White House, while circumventing the checks traditionally provided by Congress and the courts.

Giuliani would not be one to reverse that development.

The man who pioneered creative RICO prosecutions and perp-walks for white-collar crime doesn’t have a libertarian bone in his body. He’d be a nightmare as president.

That leaves Mitt Romney, the guy I currently consider the least dangerous among the GOP frontrunners. I read someone recently who called him the Republican Clinton. There’s something to that. He’s a wonderfully shameless liar and seemingly incapable of embarassment if you’ve watched him getting grilled on his flip-flops. “Governor, here in 1998 you said A. Last week you said not-A. But A is A, no?” “That’s an interesting question George…”

Like Clinton, he wants to be president because it’s there. And that’s repulsive. But the great political scientist Theodore Lowi was right when he coined his “Third Law of Politico-Dynamics of the Second Republic of the United States,” even if I’m not sure what politico-dynamics are. Lowi:

The Law of Succession:
Each president contributes to the upgrading of his predecessors.

I used to find Clinton’s slavishly poll-tested approach to governance contemptible. And so it was. But George W. Bush has made me realize that there’s something worse: the conviction that God has put you in office to work his will, even if in the end, only God, Laura, Barney and Hugh Hewitt recognize your role in implementing God’s plan. Compared to that, a president who has no principles to speak of, a president who just wants to be popular–well, it could be worse. Thus, Romney.

Of course, I’ll probably feel differently pretty soon after Romney takes office, if he does. Lowi’s third law has a corollary:

This [i.e., making his predecessor look good] is the only certain contribution each president will make.

Tomorrow: the Dems.

Posted on Mar 13, 2007 in Uncategorized | 10 Comments

Shooting from the Hip

Sometimes it’s worth doing a little Googling or even a Lexis search to find out whether what you’re saying is true. Case in point: today’s Washington Post editorial decrying the Parker decision. When you get past the obviously risible, like the contention that allowing law-abiding citizens to keep guns in their homes will make D.C. less safe, you find this statement:the “federal appeals court turned its back on nearly 70 years of Supreme Court precedent to give a new and dangerous meaning to the Second Amendment.”

“Nearly 70 years”? No kidding. This must be a reference to U.S. v. Miller, the 1939 case in which the Supreme Court held that since no evidence had been presented that sawed-off shotguns are reasonably related to the preservation or efficacy of a well-regulated militia, the Court could not say that such weapons are protected by the Second Amendment. It’s not clear how the D.C. Circuit turned its back on Miller by holding that usuable sidearms and long guns are protected.

It’s one thing for the Post’s editorialist not to read Miller. But what’s worse is that he or she seems not to have read Parker, the very case he’s decrying. Far from turning his back on Miller, Judge Silberman cites it to the benefit of the Parker plaintiffs:

On the question whether the Second Amendment protects an individual or collective right, the Court’s opinion in Miller is most notable for what it omits. The government’s first argument in its Miller brief was that “the right secured by [the Second Amendment] to the people to keep and bear arms is not one which may be utilized for private purposes but only one which exists where the arms are borne in the militia or some other military organization provided for by law and intended for the protection of the state.” Appellant’s Br. at 15, 307 U.S. 704 (No. 696). This is a version of the collective right model. Like the Fifth Circuit, we think it is significant that the Court did not decide the case on this, the government’s primary argument. Emerson, 270 F.3d at 222. Rather, the Court followed the logic of the government’s secondary position, which was that a shortbarreled shotgun was not within the scope of the term “Arms” in the Second Amendment.

If the Miller Court intended to endorse the government’s first argument, i.e., the collective right view, it would have undoubtedly pointed out that the two defendants were not affiliated with a state militia or other local military organization.

That it did not shows that it implicitly accepted the notion that the Second Amendment protects an individual right to arms quite apart from organized militia service.

Also, “70 years of precedent” is pretty misleading–though perhaps “misleading” is the wrong term since it’s pretty clear the Post’s editorialist doesn’t know enough to intentionally mislead anyone. There isn’t any Supreme Court precedent to speak of on the Second Amendment since Miller. Though what there is–dicta, not precedent–is helpful to the Parker plaintiffs and not the banners, as in 1990’s U.S. v. Verdugo-Urquidez, in which the Court seems to reaffirm Second Amendment advocates’ contention that “the right of the people” described in the Second Amendment is a personal right, as it is in the First, Fourth, and Ninth amendments. From Parker, again:

In United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), the Court looked specifically at the Constitution and Bill of Rights’ use of “people” in the course of holding that the Fourth Amendment did not protect the rights of non-citizens on foreign soil: “[T]he people” seems to have been a term of art employed in select parts of the Constitution…. The
Second Amendment protects “the right of the people to keep and bear Arms,” and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to “the people.” While this textual exegesis is by no means conclusive, it suggests that “the people” protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.

Posted on Mar 10, 2007 in Uncategorized | 5 Comments

Banning the Ban

By now, you may have heard that the D.C. Circuit has struck down [.pdf] key provisions of the District of Columbia’s gun laws. I had some involvement in the early stages of the case, Parker v. District of Columbia, as the weakest link in a team of four lawyers before dropping out to focus on my own writing projects–I had “other priorities” to borrow a line from Dick Cheney. (But I did get to write a key section of our motion for summary judgment at the district court level, which I hope survived in some form when the case went up to the D.C. Circuit). All credit is due to Bob Levy, Clark Neily and Alan Gura, the lead counsel on the case. (No credit should go to the NRA–to say that they were unhelpful in this matter is to put it mildly.) If you ever need a lawyer for a civil matter, I can’t recommend Alan highly enough. I’d known him for years but never worked with him until my 2002-03 involvement with Parker. He’s a very talented lawyer and an absolute bulldog in litigation.

Since Mayor Fenty is sure to demagogue this thing to death, let me just make a few points about what this case involved. First, it is not about concealed carry. I support concealed carry, but Parker was not a challenge to the provisions of D.C. law that forbid carrying on the street. Instead, the plaintiffs in Parker challenged the provisions of the D.C. code that make it well-nigh impossible for ordinary, law-abiding citizens to own firearms for use in home defense. Shadow representative Eleanor Holmes Norton has referred to these provisions as D.C.’s “Gun Safety Laws.” Which is cute. Here’s what those laws actually provide:

First, you can’t own an unregistered gun.

Second, you can’t register a handgun that you didn’t register prior to September 24, 1976, which is a nice Catch-22.

Maybe you’ve somehow managed to leap these two hurdles. Maybe you thought ahead and registered a handgun back when disco was king. If so, you’ve got a gun you can keep in your home. But it must be quote “unloaded and disassembled or bound by a trigger lock” endquote thus rendering it utterly useless if someone breaks into your home. What you’ve got there is an expensive paperweight.

And as hard as it is to believe, even if you own a lawfully registered pre-1976 handgun, you cannot legally carry it from room to room within your own home without a license. The penalty for carrying a pistol in your own home without a license is imprisonment for up to one year, and a fine of up to $1,000. And you can’t get a license.

If the “right of the people” to keep and bear arms means anything, it means that, at a minimum, such laws cannot stand. That’s what the D.C. Circuit held today.

Posted on Mar 9, 2007 in Uncategorized | 16 Comments

Wayback Machine

This is a fun game: looking back over March 2003 of your blog archives for “what you got wrong.” Predictably, Glenn Reynolds views himself as a hero in error at worst, one who mostly went wrong by assuming that the adminstration would see the sense in carrying the war on to Syria, Iran, or elsewhere.

He writes: “I supported the invasion of Iraq because I saw it as a move toward shaking up the entire Middle East. But as I’ve noted before, we seemed to exhaust our momentum as soon as Baghdad fell.” That is to say, the real problem with our plan to–what was it again?–deradicalize Islam by bombing, invading, and occupying Muslim countries is that we stopped too soon. The idea itself was sound.

It is, in a way, awe-inspiring to see someone make themselves this stupid through a sheer act of will.

But hey, if Reynolds can use the exercise as an occasion for self-congratulation, why can’t I? Selections from my March ’03:

Mar 9:

If the doves are right about the terrorism-boosting effects of the war–and I dearly hope we’re wrong–we’re not going to learn the obvious lessons…

In the post linked above I worried about Iraq-inspired terrorism on the home front, a worry that–thank God–has not yet materialized. I wonder about this. On the one hand, it seems obvious that the main factor behind the lack of post 9/11 followup attacks is because there are very few, if any, AQ cells in the United States. On the other hand, Iraq has enormously increased the incidence of suicide bombing. The University of Chicago’s Robert Pape based his book Dying to Win on a comprehensive database of all suicide terrorist incidents worldwide from 1981 to 2003–some 315 incidents, if I remember correctly. Since 2003, there have been over 400 in Iraq alone. We really ripped the roof off of something hideous there, and none of us should be at all confident about where it will end.

Mar 14:

Here the bloody ritual of Ashoura Day makes me wonder about the near-term promise of a democratized Middle East. I’m not taking that one back.

Mar 19:

After our quick victory, and after the “Arab street” fails to rise, you’re going to hear a lot of self-congratulation from the hawks. But the fallout from this war is likely to be long-term, in the form of a protracted and messy occupation, and an enhanced terrorist recruitment base. (The hawks were equally self-congratulatory after Gulf War I. The blowback from that splendid little war came 10 years later on a horrible fall day that none of us will ever forget. Funny, though, it hasn’t given the hawks a moment’s pause.)

Not wrong there…

Same day:

In a strange way, Bush’s unilateralism (not a bad word, in my book) has set the stage for scrapping a lot of outdated alliances. NATO may crack, and we may finally–some 50 years after the end of the Korean war–get our troops off the Korean peninsula. Similarly, if we pull our troops out of Saudi Arabia after toppling Hussein, no one is going to suggest that we’re running away with our tail between our legs.

In fairness, I was straining hard to see a bright side.

Mar 22:

it does seem that this operation is being carried out with considerable restraint. Even the Iraqi regime as of yesterday only claimed some 200 wounded.

If initial reports are right–and again it’s too soon to tell–those who view the U.S. as a benign empire will have a lot to crow about, and with some justification. I’m impressed and gratified by the unexpected mercy. I’d almost feel proud if it was possible for me to feel proud while my country’s engaged in bombing a country that did not threaten us


Same motivation as above. With us having helped turn the country into a giant Waco, I’m no longer in much danger of feeling proud.

Mar 22, again:

it’s gratifying to see us greeted as liberators, even if, like me, you view armed evangelism in the service of liberty as the most dangerous foreign policy rationale since, well, since… ever. But I’m with Jim: the folks who think the immediate reaction of the locals betokens the success of the occupation are saps. The British forces that stepped in between the Prods and the Catholics in Derry in 1969 were initially welcomed by the latter as protectors. Remember how well that worked out.

So, no, there wasn’t a lot I got wrong in March 2003. Which is not to say I never write anything hideously embarassing on this blog–just not that month. In December 2002, however, I wrote something that makes me cringe everytime I think of it. It’s in this post.

Posted on Mar 7, 2007 in Uncategorized | 8 Comments

Why Just One World War IV? Why Not Two?

Mark Helprin in Sunday’s WaPo on the looming Chinese threat. In a future standoff over Taiwan

they might choose to — and who would venture to guarantee that they would not? — detonate half a dozen high-megatonnage nuclear charges in the mesosphere, in an electro-magnetic pulse (EMP) strike perhaps not even in American airspace, cooking almost every circuit and semiconductor, rendering the American government blind, deaf and dumber than it is already and the country unable to resist the inroads that would surely follow.

Less crazy, perhaps, than Frank Gaffney’s idea that the Chinese might just try an EMP “Pearl Harbor”–his words: hey, close enough! But if we don’t want the big blackout–or worse–maybe we should stop thinking of Taiwan as within the U.S. defense perimeter. And maybe consider whether the country that’s spending around $50 billion a year on defense is obviously the one behaving aggressively here, as opposed to the country spending half a trillion a year, more than the next 12 countries, and keeping substantial forces in close striking distance of the first country.

Posted on Mar 5, 2007 in Uncategorized | Comments Off