Sunday, 4 November 2007


Garry Wills argues that abortion is not a religious issue. It’s clearly a moral and legal issue, though.


Here, courtesy of Bob Hessen, is a commentary by two Yale Law School professors. Key paragraph:

Progressives ought to be wary of a method of interpretation that strongly privileges the history of constitutional lawmaking over the experience of living under the Constitution. Our Constitution has emerged from the understandings of those who made and applied it over many generations. We are faithful to the Constitution when we respect this trust. The many forms of constitutional argument Americans use represent our best efforts to appreciate the meaning of this trust. They are our attempts to understand the purposes of the Constitution.

In other words, progressives ought to be wary of a method of interpretation that puts the Constitution ahead of progressive interpretations of the Constitution. The authors claim that conservatives defend originalism because it gives them the conservative results they want. This is ridiculous. Conservatives defend originalism because it’s the correct method of interpretation. That it gives conservative results shows that the Constitution itself is conservative. This, at bottom, is what progressives dislike, and why they fail to take the Constitution seriously as the supreme law of the land.

Addendum: Another way to look at the commentary is that it’s an attempt to reframe the issue. It’s clear that progressives are result-oriented. They view the Constitution as a mere means to progressive ends. It is to be relied upon when useful, but otherwise ignored. The authors want it to seem as though conservatives are as result-oriented as progressives are, so they portray originalism as the means by which conservatives produce conservative results. Think of it this way:

To a conservative, the Constitution is a conservative document and originalism is a neutral method, so an originalist interpretation of the Constitution produces conservative results.

To a progressive, the Constitution is a neutral document and originalism is biased toward conservatism, so an originalist interpretation of the Constitution produces conservative results.

The two sides agree that originalism produces conservative results; they disagree about why this is and what, if anything, to do about it. Conservatives say that it’s a function of the conservatism of the Constitution. If the American people don’t like conservative results, they should amend the Constitution. Progressives say that it’s a function of originalism, which (in their view) is biased. The remedy is to use some other method of interpretation.


Europe is reaping what it sowed. And we’re supposed to emulate these morons?


The Happy Hacker is not a happy camper. See here.

Twenty Years Ago

11-4-87 . . . During class, I jokingly referred to philosophers as the kings of the academic world—indeed, of the whole world. Philosophers, I said (speaking figuratively), sit on a glass table above everyone else. We watch them and point out confusions and inconsistencies to them. As I explained this, I walked slowly across the floor with my head down, as if looking through a glass table. One of the students, John Svob, who has a good sense of humor, asked me to repeat my walk. “Do that king walk again”, he said. I blushed and said “no”. Then, to my surprise, other students chimed in. Pretty soon the entire class of thirty-three students was clapping, urging me to perform. My face must have been beet red, but I refused. I wanted to play with them. I told them that I had done enough king-walking for one day, and that I can’t just summon up kinghood on the spur of the moment. “It has to come out naturally”, I said, “so keep watching me during the course.” This brought more laughter. I get along well with the students. The class is serious, but lighthearted. Humor is the glue that holds everything together.

All Fred, All the Time

Wouldn’t you love to see Fred Thompson debate Hillary Clinton? He’d rip her to shreds. See here for a story about Fred.


Hillary Clinton
Master triangulator
Our next president


If this isn’t the best album ever made, then Mount Everest is just a bump in the road.


Three years ago today, which was two days after the 2004 presidential election, I wrote this.

From Today’s New York Times

To the Editor:

Re “In Students’ Eyes, Look-Alike Lawyers Don’t Make the Grade,” by Adam Liptak (Sidebar column, Oct. 29):

As an alumnus of Stanford Law School, I applaud the institution’s current crop of cheeky students, who have made it their mission to grade future employers on measures like the inclusion and promotion of women, minorities and openly gay attorneys. Law firms judge students all the time, so let the students, in their flickering moment of market power, judge them right back.

Indeed, I hope they take their efforts several steps farther. Demographic diversity is but one aspect of whether working in a law firm is fulfilling. I hope they also grade firms on issues like mandatory billable hours, the amount of coaching and training provided, flextime work policies and community involvement.

Ultimately, though, no individual lawyer should expect to be saved simply by picking the right firm. The practice of law, like any other career, offers pluses and minuses. In the long run, career satisfaction is grounded in understanding one’s own values, talents and ambitions, and creating an individual plan for attaining these.

After the students get done evaluating the firms, perhaps they can start evaluating themselves.

Michael F. Melcher
New York, Oct. 29, 2007
The writer is the author of “The Creative Lawyer: A Practical Guide to Authentic Professional Satisfaction.”

Note from KBJ: Here is my advice for prospective law students.

From the Mailbag

I wonder how many others dislike the darkness of winter?

Or each night for that matter? Or each passing cloud? Just sit outside on a cumulonimbus day and see how your mood changes as the sun tracks across the sky shifting from bright sun to rain-threatening clouds and back again.

Beginnings and endings.

Will Nehs

A Year Ago


Curro Ergo Sum

Yesterday, in Fort Worth’s Gateway Park, I did my second footrace of the fall: the Viking Run 5K. The weather was gorgeous: sunny, calm, and 57º Fahrenheit. I felt good during my long warm-up through the trees, but not so good during the race. My goal was to break seven minutes. I did the first mile in 6:57 and the second in 6:57. I thought I had it in the bag. But evidently I slowed during the final 1.1 miles. I finished in 21:47.59, which is a mile pace of 7:00.85. Damn! Had I run 2.65 seconds faster, I would have achieved my goal. Then again, it was a chip start. The runners started 20 feet behind the electronic sensor. My chip time—the time between when I crossed the sensor at the start and when I crossed it again at the finish—was 21:43.6. That computes to a mile pace of 6:59.56. Yeehaa! Thank goodness for technology. Incredibly, I ran faster two months ago during the Labor Day 5K, when it was hot and humid. I hope to increase my speed as the weeks and months go by. Bicycling is almost done for the year, which means I can concentrate on running.

The good news is that I won a trophy. I finished second of 15 men in my age group (50-54), 21st of 130 males, and 23d of 241 runners overall. This is my 39th award (trophy or medal) in 116 races (not counting finisher’s medals). I win something about every third race I do.

Addendum: Here is the New York Times story about today’s New York City Marathon.

Addendum 2: According to this New York Times story of a month ago, Lance Armstrong intended to run today’s marathon. I didn’t see any mention of him in the news story. If anyone finds anything, let me know. Lance said he learned a lot from his first marathon in 2006. I think that if he trains properly, he can run a 2:40 marathon.


Has anyone besides Will Nehs had a comment rejected? Twice in the past few days, Will composed a comment, clicked the appropriate button, and promptly lost his comment. He says that when his comments are accepted, he sees them immediately. I told Will that he may have used a forbidden string of characters. Let me explain what this is. Almost every day, I get spam comments, sometimes as many as a dozen. There must be a computer program that tries to post comments on blogs. Whenever possible, I type a few characters from the spam comments into my list of forbidden characters. Since Will didn’t save his comment, I can’t check it against my list. He thinks others may be having the same problem, but aren’t anal retentive enough to notify me. Hence this post.

Safire on Language