In completely other news,
Sweetie, Mommy's Heard Of Gil Scott-Heron".
Another of those times when the Onion gets it
call dot com.
Just because. (Apologies to readers who follow that link
after it's become a pornsite; it (probably) isn't
one right now. Exactly.)
And just to make sure that we've frightened away anyone
who was lured here by the last few days of Serious
Discussions, we offer our
puzzling popup ad of the day.
Is Sheraton actually offering, as an option in their
Personalized Wakeup Service, topless four-year-old
Is that even legal?
A few followups on our Scalia notes yesterday.
unofficial transcript of the talk (I haven't read it yet except to
refresh my memory; I want to listen to the whole thing
before reading it).
During the talk Scalia misnames
two cases; one is "Romer v. Colorado" (by which
of course he means Romer v. Evans), and the other
is "BMW v. Bush".
Amusingly, the actual name of that one is
Scalia cites BMW v. Gore as an example of how modern
courts are sinfully non-originalist.
The case is about the damages in a lawsuit;
someone sued BMW because the car they bought
turned out to have been scratched in shipment
and the paint patched at the dealership,
and the dealer didn't tell them.
They got four thousand dollars in damages,
and BMW was fined a further four million
dollars in punitive damages.
The Supremes found that fine was so excessively high
as to constitute denial of due process, and kicked the
case back to the Alabama Supreme Court to either retry
it or figure out a more reasonable fine.
Scalia thinks this is a bad thing, referring
cuttingly to "I assume, the Excessive Damages
Clause of the Bill of Rights".
Those nasty modern judges, making up stuff;
this wouldn't have happened in the Good
Unfortunately for Scalia's story, the doctrine
that the Court relied on in BMW, that sufficiently
ridiculous ("grossly excessive") fines
can constitute a violation of
Due Process, seems to come from
v Alliance (1993), which is turn refers back to
Oil v. Texas (1909), in which we read:
The fixing of punishment for crime or penalties for unlawful
acts against its laws is within the police power of the state.
We can only interfere with such legislation and judicial action
of the states enforcing it if the fines imposed are so grossly
excessive as to amount to a deprivation of property without due
process of law.
So apparently the rot started as far back as 1909.
As I noted yesterday, Scalia says in his speech that
back in 1920 "the American people... looked at the
Equal Protection Clause and said... it clearly doesn't
mean that you can't discriminate in the franchise."
It turns out that this is a bit of an oversimplification
(i.e. not true).
In fact significant numbers of people did
think that the Equal Protection Clause said exactly
that, and they thought it long before 1920.
For instance in Minor
v. Happersett, way back in 1874, the question
actually reached the Supreme Court.
Now of course Minor lost, and women didn't get the
vote then; but clearly Scalia is being disingenuous when he
suggests that it would never
even have occurred to "the American people" in the
Good Old Days that the 14th amendment meant that women
should be able to vote.
In the 1872
presidential election, hundreds of women across the United States
went to the polls and attempted to vote. They based their right to vote
not on state law, which uniformly denied women the right to vote, but
on the "privileges and immunities" clause of the 14th Amendment.
If only those women had been properly taught Originalism,
they wouldn't have made that embarassing mistake, eh?
Oh, but wait! Since the fourteenth amendment was
adopted in 1868, those women's opinions must be
part of what we have to consider even if we think
it's "the original meaning" of the words that matters.
From Scotus blog,
we find two
on similar distortions of history in "originalist" arguments.
So apparently I'm not the first one to notice a flaw there.
On originalism (denotationism) in general,
it occurs to me that we can pin a certain kind of
moral relativism on Scalia.
His position seems to be that words like
"equal protection" and "due process" don't
have any actual correct meaning; there are
lots of different meanings, depending on what
year it is and who you ask (and, by the way, the
important meaning is the one that was popular
when the words were voted into law).
So in Scalia's view there isn't a fact of the matter
about what "equal protection" means, that we might
hope to get closer and closer to as we get smarter.
There's only a sort of amorphous cloud of different
meanings, none more accurate than any other, and
we have to choose one on procedural (rather than
How squishy and post-modern!
(Fun as this is to accuse Scalia of, it's probably
only a very limited form of moral or legal or
political relativism, confined to questions of
interpreting legal words.
I'm sure that in general Scalia thinks that
there are facts in the world, and that
we can hope to get a more accurate idea of them
Maybe he'll eventually come to see the law
that way also!)
In other SCOTUS news, see the Wine Case,
v. Heald, discussed at
It hinges on how the implied "the States can't interfere too
much with Interstate Commerce" part of the Commerce Clause
(Article 1, Section 8, Clause 3) relates to the
"the States are allowed to control booze" part of
the 21st Amendment (Section 2).
My first reaction was "Ooh, the Supreme Court has
noticed the Commerce Clause?".
This got a laugh at lunch, but actually I was
The Supreme Court is entirely too fond of the
Commerce Clause, and uses the power to regulate
interstate commerce as a hook to regulate everything
else ("well, if California legalizes weed that might
depress the street price of weed and change
the amount that crosses state lines, so it's
an interstate commerce thing so the Feds get
to meddle in it").
One of the cool things that
Audible does is make
certain 'public interest' type audio programs available for
I don't know if they do this out the goodness of their heart
or their ad budget, or if someone pays them to do it, but
it's cool anyway.
One of the free things they have is a talk that Supreme Court
Justice Antonin Scalia gave on the subject of Constitutional
Interpretation, at the Woodrow Wilson International Center
for Scholars last March.
(Due to Audible's bizarre site design I can't figure out
how to give you a pointer to it that will work, but
if you search on "Scalia" you'll probably find it.
Although it's free, I dunno if you can get it if you
don't have an Audible account.)
I'm a bit more than halfway through it, and it's interesting.
expressed the opinion that J. Scalia is a fascist theocratic
loon, and I've teased him
for his defense of state laws against
masturbation in his Lawrence dissent;
what I've heard so far doesn't make me any more
comfortable having him on the high court, but
it does give me some additional insight into
his character and legal thinking.
Scalia doesn't like to be called a "strict constructionist";
he prefers "originalist".
His idea is that the words of the Constitution meant something
when they were adopted, and that it's that meaning that we
must follow today.
And when he says "meaning" he isn't thinking of the general
meaning or connotation of the words; he's thinking of
the very specific denotation of the words: the exact
specifics of what they were thought to mean at the time.
So since when the 14th Amendment was adopted in
1868 no one thought that "equal protection" included
the right of women to vote, it required a further
amendment to give them that right.
Scalia says (quite plausibly) that nowadays we would
have done it on 14th amendment grounds instead, and
he clearly thinks that that's a bad thing.
Since "originalist" doesn't strike me as a neutral
term (when was the last time you saw "unoriginal"
used as a compliment?), let me refer to Scalia's
position as "denotationist";
the words of the Constitution (or any other law)
must be interpreted as having the same denotation,
as picking out the same parts of the world, as
they had when adopted.
(At the extreme denotationist position, if the
Constitution had said that the number of Justices on
the Supreme Court should be equal to the number of
planets around the Sun, then the proper number of
Justices would be seven, since that's what people
thought the words denoted at the time.
I'm not suggesting that Scalia would actually
carry the idea this far, although it wouldn't
surprise me if he did.)
So what's the alternative to denotationalism?
In this lecture Scalia claims that the only alternative
is to consider the Constitution not a legal document at
all, but just sort of an "exhortation".
He claims that he's asked all sorts of people at
law schools what principle they propose in place
of his, and none have had an answer.
This strikes me as baffling, since the answer is
Rather than interpreting the words of the Constitution
according to what they meant when adopted, we should
interpret them according to what they mean now.
If we've discovered since 1789 that there are really
nine planets, or since 1868 that equal protection does
mean the ability to vote regardless of gender, then
that's what the Constitution should be read
(Jim points out a possible circularity here, so let
me say explicitly that the view I'm outlining here isn't
the tautological "the Constitution means today whatever
it means today"; I mean something more like "the words
in the Constitution mean today whatever the same
words mean outside the Constitution today".
Modulo politically irrelevant typographical
shifts and so on.)
I'd like to call this alternate view "connotational",
in contrast to Scalia's denotationalism.
And it seems to me highly unlikely that no one has
ever suggested it to Scalia, or that he wouldn't have
thought of it himself for that matter.
Scalia seems to have an enormous blind spot where
differing opinions are concerned; not only does
he disagree with non-denotational views of
Constitutional interpretation, he doesn't even
see those views.
At one point in the speech he says that he would
have decided a certain case in a certain way based
on the original meaning ("meaning") of some words
in the Constitution, whereas the court actually
decided the other way, "based on -- well, I don't
He's obviously a smart guy, but apparently there's
a filter between the part of his mind that is sharp
enough to understand arguments on both sides of an issue and the
part that consciously notices those arguments.
(Jim points out that Scalia wouldn't be
the only one with this problem.)
Another possibility is that Scalia is simply a
propagandist, and that pretending that the other side
has no argument at all is just a rhetorical device that he likes
That'd be a pity.
The denotationist view says that when the Constitution
uses phrases like "due process" or "equal protection"
or "freedom of speech", we should consider those phrases
to be convenient shorthands for whatever set of things
people thought they meant when the words were adopted.
If it wouldn't make the Constitution implausibly long,
we could replace each one with a list of all the things
that people at that time thought the words referred to.
The connotationist view, on the other hand, says that
"due process" means the processes that are due,
the proceedings that are appropriate,
and if our opinion about what is appropriate has changed
since 1798, it's our current opinions that
Similarly, "equal protection" means protection that is
equal, and if people in 1868 didn't notice that
disenfranchising half the country didn't constitute
equal protection, so much the worse for them;
our current government should be guided by our
(Now in practical terms it's nice that we have the
19th amendment there making it explicit; but I do
think that a 14th amendment case for female suffrage
should in principle have had a very good chance of success.)
So Scalia's basic theory isn't particularly
inconsistent or anything; I just strongly
disagree with it.
His inability to acknowledge the very existence of alternative
theories is a flaw, and not one that makes me
fond of him.
Scalia's theory leads him to say some odd (or at
least odd to me) things about the Constitution's
role in protecting minorities.
At one point he says that protecting minorities
from the whim of the majority is one of the most
important things that the Constitution does.
But because he's a denotationist he sees it
as protecting only those particular minorities that
the Framers would have wanted to protect
(or that the adopters of later amendments would have).
So Catholics, for instance, are protected (hem,
hem), but not people who want to make love to
people of the same gender.
(Sidenote: Scalia always refers to male-male sex as
"homosexual sodomy"; a little subliminal
reminder that the Lord has destroyed whole
cities over the issue; ref "theocratic" supra.)
The equal protection clause can't allow people
of the same gender to marry, because when the
clause was adopted people didn't think it
A connotationist can say that we've decided
since then that equal protection really does
mean that; but Scalia doesn't even consider
that as a possibility.
It's not simply wrong, it's just not on his
radar at all.
If we want to provide equal protection or
due process or freedom of speech outside the
original denotation of those terms, he says,
what we have to do is persuade our fellow
citizens to enact the appropriate legislation
or Constitutional amendments.
Which is to say, if we want to protect a
minority that wasn't popular back in 1789,
we have to persuade the majority to play nice.
Which of course seems completely wrong to me,
given the whole "Constitution protecting the
rights of minorities" thing.
The Framers were large-minded folks; I think
that when they said "due process" or "freedom
of speech", they didn't just mean the things
that those words meant in the 18th century,
but that they meant whatever those words
might turn out to mean as the species matured.
Hm, I'll bet we might even be able to find
some writing of the Framers that say that!
I wonder what Scalia would do then...
In completely other news,
a reader points out that
And it now has typekey
So now the cost of entry is a valid email address;
it'll be interesting to see what that does to the
whole Metababy Dynamic.
It is frightening to note that one of the first pages
on this round of metababy was called "/david/chess".
I'm hoping it was created by the same reader that
sent the note about the site being back up; the
thought that more than one metababy denizen might
know of our existence makes us nervous.
metababy-like site; I've never tried it myself,
but there it is.
Note that in both cases I haven't pointed to the front
page of the site, because You Never Know.)
Okay, so the geekiness is hard to stop once it gets going.
The style-chooser at the bottom of the page now sets a
cookie, and the page itself (this one and last week's,
so far) uses the cookie.
So now you can browse the modern part of the log
in your favorite style, without having to
switch every page!
Isn't that exciting?
(Code copied and pared down from
a list apart.)
What is the sound?
Secure all water-tight doors!
The Woodstock Generation writes:
If you don't remember *the sound*, then you weren't there, man,
and you can never know...
"The Sound and the Fury" is a novel written by a
depressing author known as William Faulkner, in
which people stream their consciousness whether
we like it or not.
Dunno about that.
But I've heard that there isn't much blue in
"The Red and the Black".
These make a story:
... abruptly, the sound ceased.
The Woodstock Generation again, perhaps:
don't fret, it's just the hallucinogen.
Today'a Koan: What is the sound...
of the Goddess and I hopping on one foot?
Man! You have a lot of dental work!
Hey, only about
one per tooth!
This entire universe is just a fragment of conversation,
a minor rhetorical technique.
Somewhere in a universe indescribably higher,
ontologically, than ours, two beings (where "beings"
is a completely false description, but the best
we can do) were talking (same for "talking").
One of them, wanting to make or illustrate a
subtle point, did the equivalent of sketching
a couple of lines on the back of an envelope,
or moving the cutlery ("this salt-shaker is
one node of the network, and this fork is
where we were at the time"), or even
just making a particularly expressive
The result was this cosmos, vast and
sprawling as it looks from here, and
your entire life, and mine.
Readers notice the exciting new design developments!
Hmm. In your new format, the links on the left (brown) bar are
underlined in black. That didn't use to be the case?
That was always the case in Opera, but not in IE (and
mebbe not elsewhere I dunno).
When I CSSified everything, it apparently started
doing that in IE also.
Isn't it cute?
(Note that this page and last
week's page are using the same CSS file(s) for
their layout, thus potentially saving bandwidth in that
your browser only has to load the layout once even if
you read both pages.
Isn't that clever?
Funny no one thought of it before, really.)
An extremely perceptive reader writes:
You in mocha... positively delicious.
We blush with quiet pride.
Readers can now enjoy the log also in
(from Thursday's essay), and
If I find some more energy somewhere, I'll experiment with
images for decoration some more.
Otherwise, I may try to concentrate more on the content.
Speaking of content, a reader asks:
Altavista Babel Fish says: "I hold my promises, mem cells others" -- huh?
Apparently my "e" key was sticking a bit
The line should have read
"Je tiens mes promesses, meme celles des autres"
(plus perhaps some diacritical marks).
It was apparently a slogan of the Vichy government, and
it means "I keep my promises, and those of others".
Menacingly baffling, n'est-ce pas?
There's a gazillion things queued up to log (I made the mistake
of like reading stuff on the Web again).
Since I sometimes harp about Microsoft security
bugs, here are some
Firefox security bugs,
and also some
OS X ones.
ones just for good measure.
And perhaps more significantly,
story about internet extortion ("real nice gambling site you got here; pity
if something were to happen to it"), and how it happens in real life
(I didn't realize it was so common).
(All of the above thanks to
I finished and wrote up
(much of the latter review is spent ranting about how the author
got various New York locations wrong; I'm prepared to be embarassed
if in fact I got them wrong instead).
Sternberg, a couple of
pictures of people in relationships with very large insects.
Note that you shouldn't make these into desktop wallpapers.
Don't do that.
A concerned reader writes:
This Email has been sent to you because your web site has DROPPED out of the Search Engines!
But the people searching for "brazil triplets nude",
"incent sex stories", and "hack yahoo webcam" aren't really
my main target audience anyway.
(Of course we're always happy to have Iris Chacon fans
Another helpful citizen writes:
Subject: Re: Browser Based
Hi my name is Jason,
I was recently visiting
wanted to offer my services. We could
help you with your Browser Based website.
Speaks for itself, really.
The other day someone (I think it was Jim) quite
wittily coined the term "praising with faint damnation".
the first, natch, but a very useful concept.
Pointing out a few small errors in something can suggest (sometimes falsely)
that everything else about that thing A-Okay with you.
technology, the mysterious HTML o' the Day says (quite
rightly): "Never mind your political beliefs about
colorization, it is amazing what they do with a minimal amount of
user input. Photos and movies both."
Impact of Artificial
"Gummy" Fingers on Fingerprint Systems
Oh, and again from
S, heartening and/or distressing evidence that BDSM is now
Up, Tie Me Down: Pain for Pleasure:
Most couples choose a "safe word," that signals to the "top" to stop a scene
immediately. A word like "no" or "stop" may actually intensify a scene because
it's part of the submissive fantasy, so instead a color code is often established.
This from the ABC News website.
Is nothing kinky anymore?
Turns out the "individual-i" thing is
A couple of long quotes.
some good news on the "outlawing of general-purpose
court rejects "broadcast flag" rules:
Washington: Hollywood studios and television networks were dealt a
blow yesterday when a federal appeals court rejected an earlier federal
ruling that required the coming or 'next' generation of digital apparatus
like TVs, personal computers, DVD recorders to contain anti-piracy technology.
The November 2003 ruling by Federal Communications Commission (FCC)
required manufacturers of computers and TV sets to include new technology
that would stop consumers from copying and distributing programs. Yesterday,
the 3-judge panel blasted FCC for overstepping its authority when it approved
the rules. The landmark decision now rewrites the situation for intellectual
And then some noteworthy data analysis:
are simple: Democratic presidents have consistently higher economic growth and consistently
lower unemployment than Republican presidents. If you add in a time lag, you get the same
result. If you eliminate the best and worst presidents, you get the same result. If you
take a look at other economic indicators, you get the same result. There's just no way
around it: Democratic administrations are better for the economy than Republican
In other words, voters aren't necessarily ignoring economic
issues in favor of cultural issues. Rather, Republicans produce
great economic growth for all income classes in election years,
and that's all that voters remember. They really are voting their
Bartels doesn't essay an explanation for this. Do Republican presidents
deliberately try to time economic growth spurts -- and are Democratic
presidents too lame to do the same? Is it just luck? Or is the difference
somehow inherent in the different ways that Democrats and Republicans approach
the economy (with Democrats typically focusing on employment and Republicans
on inflation)? At this point, your guess is as good as anyone's.
Fwiw, as they say.
I haven't mentioned the bathroom construction again because it's
been uneventful (touch wood).
Walls are up, tiles are mostly up, fittings have arrived, we
talked to the glass guy today about the shower door.
We're tending toward a clear glass shower door, which will
What would it feel like to take a shower where
the whole bathroom can see you?