The Right Coast

Editor: Thomas A. Smith
University of San Diego
School of Law

A Member of the Law Professor Blogs Network

Friday, April 30, 2010

Another smart blogger
Tom Smith

Look at this guy.  A programmer apparently.  Knows about search.  Understands the Victorians had a civilization superiour to ours.  Into Austrian economics.  Goodness.  Writes in short, clear paragraphs. This is part of the reason I think the blogosphere is an amazing place.  I have not read enough of his blog to confirm that he is right thinking in all respects, but if he likes the Victorians he can't be all bad.

April 30, 2010 | Permalink | Comments (0) | TrackBack (0)

John Gray writes a mean review
Tom Smith

I enjoyed it thoroughly however.  It both violent and entertaining.  Via marginal revolution.

April 30, 2010 | Permalink | Comments (16) | TrackBack (0)

50 scariest movies of all time
Tom Smith

Pretty good list.

April 30, 2010 | Permalink | Comments (13) | TrackBack (0)

Shortage of suicide bombers
Tom Smith

If you kill them, they will eventually stop coming.

April 30, 2010 | Permalink | Comments (0) | TrackBack (0)

Citizens United defended
Tom Smith

Here.

April 30, 2010 | Permalink | Comments (0) | TrackBack (0)

Guy who designed famous coffee cup dies
Tom Smith

It's not the cup, it's the coffee, but good coffee often comes in this cup.

April 30, 2010 | Permalink | Comments (3) | TrackBack (0)

Greece's problem isn't really its ginormous debt
Tom Smith

It's that it can't inflate its way out of it.  Gives you an idea of what Herr Doktor Professor Krugman might suggest for America.  I anticipate the problem of other people anticipating that we might try to inflate our way out of it.

April 30, 2010 | Permalink | Comments (6) | TrackBack (0)

Arizona's Immigration Law
Mike Rappaport

I have been reading commentary from the libertarian side of the blogosphere about the new law.  Much of it is negative.  Fair enough.  If one is a strong libertarian, then one might oppose all laws that restrict immigration.  I myself hold nowhere near as strong a position.  I favor a large expansion of legal immigration, but oppose illegal immigration.

But the posts don't justify their position based on this opposition to all immigration restrictions position.  Moreover, they don't argue with the same vehemence against the federal immigration law, which has a more restrictive content (even though it does not seem to be much enforced).  I wonder why.

Based on discussions of the Arizona law, such as this one by Kris Kobach, it seem to be a relatively moderate response to the failure of the federal government to enforce the law.  I think it has some real costs -- the main one, being the discretion that it gives to the state police.  But if one is going to have restrictions on immigration, and if one does not have an effective fence, then one will need to have some type of enforcement, and this does not seem obviously mistaken or excessive.      

I think it is sad that hispanic citizens and legal aliens will sometimes be asked for their identification.  But let's be clear on the causes -- the failure of the feds to enforce the law and to build a fence as well as the corruption and problems of the Mexican government and society.  Yet, the venom of many liberals and some libertarians appears reserved for the Arizona law. 

April 30, 2010 | Permalink | Comments (3) | TrackBack (0)

Thursday, April 29, 2010

The New Yorker, yes, the New Yorker on the Constitution, history and all that
Tom Smith

[With my reactions interspersed] [Warning -- couldn't avoid letting some bad words slip out]

. . . 

[The New Yorker person writes] Patrick Humphries, a software engineer who was born in Indiana and grew up in Iowa [the sticks], was handing out pocket-size copies of the Constitution, printed by the National Center for Constitutional Studies, which was started in Utah [the source of many dangerous ideas, as we know] in 1971, to promote originalism, the idea that the original meaning of the framers is knowable and fixed and the final word. “I don’t think the Founding Fathers wanted lobbyists running around Washington,” Humphries said. [they probably didn't]

Originalism in the courts is certainly a matter for debate. Jurisprudence stands on precedent, on the stability of the laws. [oh wise, very wise] But originalism has long since reached beyond the courts. Set loose in the culture, it looks like history but it’s not. It is to history what astrology is to astronomy, what alchemy is to chemistry, what creationism is to evolution. [Actually, it's more like the New Yorker is to bullshit, that is, a very important source of it.]  The history that Tea Partiers want to go back to is as much a fiction as the Lost Cause of the Confederacy. [Except that it isn't.  We may not be able to perfectly reconstruct George Washington's mental states and know what it felt like to have wooden teeth and own slaves, but we can have a pretty good idea that the framers would have been shocked speechless at the notion that the power to regulate interstate commerce and Indian tribes meant the federal government also had the power to mandate that everybody buy health insurance.  Don't you just love these oracular pronouncements from some ultra-citified journalist dropped in the middle of a zillion word rumination in which the impressions made on her sensitive self are substitutes for actually making claims and supporting them?  Law.  Stability.  History.  Originalism.  As if she knows WTF she is talking about.  This kind of journalism is just therapy, designed to make readers feel good about the none too informed opinions they already hold.  I find it really icky.]  Humphries quoted the Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” He wants those powers. [why that uppity little worm] He feels disenfranchised. [how dare he?]  He didn’t vote for Obama (OMG!!); he doesn’t like what he’s doing. [Arrest him, before he blows up a public building! Raaaaaacist!!] To Tea Partiers, Obama’s Administration, his very Presidency, is unconstitutional. [I think she just made that part up.] Massachusetts is a foreign country. [They're mad I tell you!] The present is a foreign country. [Mad! Mad! Mad!!!]


The rise of this sort of thinking has gone, to some degree, unchallenged, (??) just as, in the nineteen-seventies, historians mocked the Bicentennial as schlock and its protests as contrived, but didn’t offer an answer, a story, to a country that needed one. (Country needs therapy; please send narrative; please find evidence 1776ers were democratic socialists) The American historical profession defines itself by its dedication to the proposition that [all men are created . . . oops sorry!] looking to the past to explain the present falls outside the realm of serious historical study. That stuff is for amateurs and cranks. [This is because anybody who does not share this fantastically counter-intuitive view of history would have a hard time getting hired, a story that itself goes back into the 1960s and beyond.  And yet, the past is exactly what explains the present.  What else would explain it?]  Hofstadter disagreed. He recognized the perils of presentism—seeing the past as nothing more than a prologue [which is not the same thing as expecting that the past does indeed explain, or is at least a necessary part of an explanation of, how we got to where we are, but don't expect philosophical sophistication from professional historians] to the present introduces evidentiary and analytical distortions and risks reducing humanistic inquiry [so that's what it's called] to shabby self-justification [shabby, middle class, untenured, unhip, fat, American, unironic, of general interest, actually important] —but he believed that scholars with something to say about the relationship between the past and the present (but not a causal one?) had an obligation to say it, as carefully as possible, by writing with method, perspective, and authority. Hofstadter died in 1970. (Which helps explain causality-wise why he is not around anymore.)  He was one of the last university professors of American history to reach readers outside the academy with sweeping interpretations of his own time. (I wonder why that is.  Oh sorry!  Sorry!  There I go, thinking there is some historical explanation for things!  I shall go and write now about the laundresses of Clairvaux as penance! But not, not in any way that suggests it has anything to tell us about the present.  Because, as we all know, that a graduate student would spend years pawing through medieval laundry receipts and trying to dream up something to say about them has nothing, nothing to do with what is going on in the present!  Those brave, those poor, those incredibly interesting if sadly almost entirely undocumented women . . . )


Read more: http://www.newyorker.com/reporting/2010/05/03/100503fa_fact_lepore?currentPage=all#ixzz0mWLpSYlZ

Well, that's as much as I can take of our enlightress's highly irritating twaddle.  I, in my amateurish, crankish way, think that history, and in particular what the words, terms, concepts and sentences of the Constitution meant when it was ratified, has everything to do with what it means today as law.  Talk about amateurs!  Legal philosophers have incredibly refined ideas of what they are talking about when they talk about original meaning.  Talk about dumb ideas seeping out into the culture and getting dumber as they go.  Here is a writer for a popular cultural journal promoting the notion that originalism is based on some silly, rootin' tootin', junior high school idealized vision of the past, and that anyway, silly, it suggests that something we did in the past is like, relevant today!  But have any of these dimwits thought about what law is?  Of course the past has everything to do with what the law is now because the past is inevitably when the law was made.  Yes, yes, originalism is controversial and many issues remain to be worked out.  But compared to the mush that passes for thinking about the relation of the past to the present among professional historians (such as I have heard anyway) originalism is the critique of f*&%ing pure reason.

More generally, allow me to opine that the Tea Partiers are on to something really important about our history, what it means, and the use that should be made of it.  They are absolutely right to grasp the Constitution in their feverish hands and think, hey, wait a minute, where does it say the federal government can regulate everything?  To which I say, where f*&%ing indeed?  What, they ask, is this "We the People" about anyway? I call that a good question. This is not something that can be giggled away by some hipster academic ironic bullshit.  Besides, it should be perfectly obvious that what is really going on is that the historical professoriate just doesn't like what is to be found in the Constitution because it is well to the right politically of what they cotton to.  But instead of saying, hey!  let's be academic socialists!, they say, oh history, it's terribly complex and not even real as you imagine it, leave that to us, go home and pay your taxes now, there are pondering professors to be paid.  But what is going on now is real history, real politics, real lives, not fodder for whatever the latest exotic historiographical pose happens to be and of which we are mercifully ignorant. The past is not a fiction.  It can't be because it has the property of being composed of facts.  Our freedoms, our rights, our liberties (oh how, how naive!, how quaint!, how [insert latest/gayest academic putdown term here]) are rooted there.  We have them because of the people who really did come before us and thought of them, discovered them, turned them into law, fought for them, wrote about them and (pay attention now) we remain committed to them.  Anyway, you get the idea.  Read your Constitution.  Screw the New Yorker.

April 29, 2010 | Permalink | Comments (12) | TrackBack (0)

Coffee is good for you
Tom Smith

It does make your teeth yellow however.

April 29, 2010 | Permalink | Comments (0) | TrackBack (0)