Essential Mark Steyn (via the Corner).

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If you want to learn more about the Ninth Amendment, Tim Sandefur has been typing like mad on the subject for the past couple of days, carrying on a running discussion with the bloggers at Southern Appeal about the history, interpretation, and modern application of one of the least-understood amendments in the Bill of Rights.

He even scored a complimentary link from con-law guru Randy Barnett, who finds that Tim has been doing a good job defending the original meaning of the amendment.

I tend to side with Tim on this, at least in this part:

"We must not allow ourselves to be spooked into thinking that the end of good government is for the judiciary to defer. History reveals that the worst abuses of Americans have proceeded from a combination of the legislature and the executive, and that judicial restraint has far more often been a license for these oppressors than a protection for our freedom. Of course we don't want unelected judges running everything. But we do not want elected legislators running everything, either. The reason we have a constitution is to stop the legislature from governing certain things. The Ninth Amendment tells us that those 'certain things' are not limited to the things specifically mentioned in the Bill of Rights -- there are other things. What are they? Well, there you must consult history, law, political philosophy, and so forth. That is what the Ninth Amendment means. That is what the privileges or immunities clause means. Any other interpretation would tend toward legislative absolutism and to rendering the Ninth Amendment a nullity, and must therefore be a flawed interpretation."

Click over and keep scrolling down.

Posted by: JohnL at 09:20 PM | No Comments | Add Comment
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To Rob the Llama Butcher, sorry about the "blowback."

You didn't touch the nerve too badly, and what you say is right. I typically have no problems with very specialized outside counsel (say, our patent lawyers or employment counsel). The key to being a successful in-house lawyer is knowing when to stop being a jack-of-all-trades, and to defer to the expertise of competent outside counsel. Lord knows I have been saved more than once by a good lawyer on the outside (much more often than I have had to argue about a junior lawyer missing the point or padding a bill).

Posted by: JohnL at 09:03 PM | No Comments | Add Comment
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Unsolicited advice from Rob the Llama Butcher:

"If you want a memo on a particular point of law to present
to some government agency, don't write one yourself and send it to your
outside counsel for fixing up. Instead, just let them write it from the
ground up.

"Buh-lieve me, you'll save yourself a lot of time and money."

Unsolicited response from in-house counsel (me):

Only if you promise not to stick some first-year associate trained in law school to spot problems instead of answers on the project!

I've noticed that much of the work product outside lawyers prepare for me is wordier and covers far more ground than required by the scope of the project. Of course we're tossing around generalizations here, but. . .

<rant mode>Outside lawyers seem to focus more on problems than solutions. When you have a limited budget, you get pretty frustrated that a ham-handed rookie with no business sense is anally citing and shepardizing the basic principles of law known to all of us in perfect Bluebook fashion, but forgetting to answer the question we asked, all the while charging us close to $200 an hour!</rant mode>

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Jan Cydzik survived the Nazis. Then, he suffered the Soviets. He got a $1500 reparations check from the German government and bought a grandfather clock to commemorate the three years of slave labor he performed for the Germans. The Russians haven't paid him anything. Not that he's complaining.

Read the whole thing (minimal registration required to access).

(Hat tip: Catallarchy).

Posted by: JohnL at 08:42 PM | No Comments | Add Comment
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Heh. Now I'm part of the Vast Right Wing Conspiracy.

As a libertarian, I don't see myself as "right wing" in much of anything, but I appreciate the recognition. On the really big issues (especially regarding limits of federal power), libertarians and conservatives tend to share quite a bit of common ground.

I guess the link resulted from Tim Sandefur's mention of our postings on the Supreme Court Canon.

Looking at Tim's list, it's obvious that I haven't done much to keep up with Con Law since my graduation from law school in 1994.

Posted by: JohnL at 09:07 PM | No Comments | Add Comment
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I'm just a commercial lawyer. I almost never have to think of Constitutional Law, unlike the esteemed Tim Sandefur, who makes his living as a real life Constitutional litigator for the Pacific Legal Foundation.

So it's hard for me to even think of ten Supreme Court opinions, much less the ten that every American ought to read.

But here are the "top five" I would nominate:

1. Wickard v. Filburn. Ordinary people should understand just how radically the Court stretched the commerce clause during the New Deal ("What? You mean I can't grow corn on my own land for my own consumption???"). I remember being outraged at federal overreach when I read this case in law school. I would hope ordinary people would be equally outraged today.

2. Miranda v. Arizona. We all know the warnings from cop shows. We should read the original case to find out where they came from. Then, read the fourth and fifth amendments and decide where the court found the rule.

3. Marbury v. Madison. Why does the Supreme Court get the last word?

4. Roe v. Wade. Most people with an opinion on abortion talk about this case as though they understand what it means. Have they even read it?

5. Dred Scott v. Sandford. When the talking heads were running around three years ago yammering about the Court losing its "legitimacy" in the wake of Bush v. Gore, they evidently had no sense of history. This is arguably the lowest point in the Court's history, and one that gravely undermined the Court's (and much of the early Republic's) legitimacy.

Posted by: JohnL at 09:55 PM | No Comments | Add Comment
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Readers of Jerry Pournelle's weblog know that he believes the USA is well on its way to becoming an empire.

One of his readers sent him a link to this article, which reviews a six-part series on BBC on the subject of American empire.

Even if there is disagreement about whether America actually is an empire, there is agreement that America doesn't want to be an empire.

Read the whole thing.

Posted by: JohnL at 09:18 PM | No Comments | Add Comment
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In looking for his comments on the DC-X, I ran across some written testimony that Jerry Pournelle presented to the House Subcommittee on Space in 1995 posing this critical question.

Of course, a cynic might answer that we have NASA in order to employ some 18,000 government employees in space centers distributed throughout many powerful congresscritters' districts.

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I'm not sure Tim Sandefur's guest blogger Eric Anderson has this right:

In the United States, one may only employ lethal force in the defense of life, and only when the ability, opportunity, and intent of the adversary to inflict serious bodily injury are simultaneously present. I think Texas was among the last of the states to keep legal the use of force in defending one's property, though it too has caved in to the times.

According to the Texas Penal Code, a person may use deadly force:

(1) if he would be justified in using force against the other under [the section of the code covering self-defense];

(2) if a reasonable person in the actor's situation would not have retreated; and

(3) when and to the degree he reasonably believes the deadly force is immediately necessary: (A) to protect himself against the other's use or attempted use of unlawful deadly force; or (B) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

If the person uses deadly force against a person who is in the process of breaking into the person's home, then the reasonableness standard of subsection (2) doesn't apply. See Texas Penal Code sec. 9.32. This is much like Colorado's "Make My Day" law which allows an occupant of a home to use "any degree of physical force, including deadly physical force" against an intruder when the occupant reasonably believes that the intruder "has committed a crime in the dwelling in
addition to the uninvited entry, or is committing or intends to commit a crime against a person or property in addition to the uninvited entry, and when the occupant reasonably believes that such other person might use any physical force, no matter how slight, against any occupant." See Colorado Revised Statutes sec. 18-1-704.5.

I haven't researched any other western states' laws, but at least these two states don't require much justification for a homeowner to waste an intruder. Disclaimer: Although I am an attorney and am licensed to practice law in Texas, I am not a criminal lawyer, and more importantly, I am not your lawyer. So don't do anything in reliance on this off-the-cuff assessment of these statutes.

Update: We see now why I'm not a criminal defense lawyer. . . Both commenter Michael Parker and the Curmudgeonly Clerk correct Eric and point to the more relevant "Make My Day" provisions (9.41-9.44) in the Texas Penal Code.

Posted by: JohnL at 09:11 PM | Comments (1) | Add Comment
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Not much blogging tonight, as I'm reading the speech.

My immediate reaction is somewhat negative, beginning with the setting. First, the President is at NASA and is addressing NASA employees, not the American people: "This will be a great and unifying mission for NASA, and we know that you'll achieve it. I have directed Administrator O'Keefe to review all of NASA's current space flight and exploration activities and direct them toward the goals I have outlined."

I don't want to watch superhuman astronauts exploring on my nickel. I want to do exploring for myself. And what's up with this? -- "We'll invite other nations to share the challenges and opportunities of this new era of discovery. The vision I outline today is a journey, not a race, and I call on other nations to join us on this journey, in a spirit of cooperation and friendship." Just what we need. Another feel-good international boondoggle like the ISS. I am afraid that these
steps will turn outer space into an Antarctica -- another preserve for PhDs and noone else.

Rand Simberg has some preliminary thoughts on this. Check out Jerry Pournelle, too. His prize proposal, and his favoring a higher-profile military role both parallel my thoughts on federal government involvement in space.

I would actually like to see several "dreamer fithp" (read this, if you don't get the reference) on the President's commission -- Jerry Pournelle, Larry Niven, Burt Rutan.

Most other space policy bloggers are getting in on the action:

Rocket Man.

Fred Kiesche, who should put up a tipjar on his site.

Jay Manifold, who is promising more details real soon.

Still waiting to read Chris Hall's assessment of the speech.

Coming soon: my opinion of why we need to go (prompted by Anne Applebaum's execrable spew), and some thoughts on how I think we ought to go.

Posted by: JohnL at 09:54 PM | No Comments | Add Comment
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Scott Burns, a financial affairs columnist for the Dallas Morning News, has an excellent piece today spelling out the true impact of the recent Medicare expansion. (Free registration required. Destined for the archives in the near future).

Scott is a member of the boomer generation, but his thinking on this issue is, refreshingly, fair and clear. He calculates the bill that our current elders are presenting to my children as $43.5 trillion. He essentially restates the libertarian nugget "TANSTAAFL." At some point benefits must be decreased or taxes increased (no!) to prevent a massive default under the system.

I hope in my lifetime to see some significant extension of the human lifespan. I expect it, actually. I am ready for the future of Bruce Sterling's Holy Fire,
even its dystopian aspects.

As a consequence, I think we need to be ready to rethink our "social obligation" to our elders. Medicare and Social Security, in my mind, are unconstitutional -- they are well beyond any reasonably necessary or proper enumerated power of the federal government. But are we ready as a society to take more personal responsibility for saving, for being ready to work in our retirements, to take care of our parents and grandparents? We need to be. Fortunately, if we do see some sort of "boosterspice" in our lifetimes, we will be young and healthy enough, even at the age of 65, 70, or even 90 to continue to be active and productive citizens and not wards of the state.

Posted by: JohnL at 09:51 PM | No Comments | Add Comment
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Scott Burns, a financial affairs columnist for the Dallas Morning News, has an excellent piece today spelling out the true impact of the recent Medicare expansion. (Free registration required. Destined for the archives in the near future).

Scott is a member of the boomer generation, but his thinking on this issue is, refreshingly, fair and clear. He calculates the bill that our current elders are presenting to my children as $43.5 trillion. He essentially restates the libertarian nugget "TANSTAAFL." At some point benefits must be decreased or taxes increased (no!) to prevent a massive default under the system.

I hope in my lifetime to see some significant extension of the human lifespan. I expect it, actually. I am ready for the future of Bruce Sterling's Holy Fire,
even its dystopian aspects.

As a consequence, I think we need to be ready to rethink our "social obligation" to our elders. Medicare and Social Security, in my mind, are unconstitutional -- they are well beyond any reasonably necessary or proper enumerated power of the federal government. But are we ready as a society to take more personal responsibility for saving, for being ready to work in our retirements, to take care of our parents and grandparents? We need to be. Fortunately, if we do see some sort of "boosterspice" in our lifetimes, we will be young and healthy enough, even at the age of 65, 70, or even 90 to continue to be active and productive citizens and not wards of the state.

Posted by: JohnL at 09:51 PM | No Comments | Add Comment
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As a lawyer, I regularly have to try to tease some meaning from the "hereinbefores," "wherefores," "shalls," and other assorted legaldegook that other lawyers (and lawyer wannabes) use in their "legal" writing. I'm sorry, but if you're a standard American English speaker, you have no business using the word "shall" in modern usage, except in flippant "what shall do now?" constructions.

And what's with the hereinaboves, hereinbelows, and wheretofores? I majored in German in college, and those constructions are very much alive there. But not in English. Ask someone to write a "legally binding" document and they for some reason start sprinkling "shalls" and "shall nots" like Shakespearean actors.

(That "someone. . . they" construction was intentional, by the way). I actually had a mild debate with another lawyer about this once, who felt that some "grandeur" in legal documents and court pleadings was a good thing. Oh, please.

One of my ongoing missions is to update all of my corporation's forms to use plain, modern English, and to do everything I can to revise other lawyers' forms for style whenever I am forced to use them. One of my key resources is a book by Bryan Garner, a noted authority on legal writing and the English language. Legal Writing in Plain English is one of my bibles (along with the Chicago Manual of Style, Lapsing into a Comma, and the invaluable Strunk and White). Even if you are not a lawyer, these are excellent resources for writers.

If you are interested in matters grammatical, Garner provides a daily usage tip here (where you can also sign up to receive his daily usage tips via email, as I have done).

Posted by: JohnL at 09:34 PM | No Comments | Add Comment
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If you're interested (I'm not), Instapundit is all over this topic today. Not that he needs any linkage from me. . .

Posted by: JohnL at 08:53 PM | No Comments | Add Comment
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I wonder if the guys at SFSignal have seen this? Via the Corner, here is a listing of the Democratic candidates for president as D&D characters.

I love the extended riff about the Zeppelin-versus-Rush-inspired-band in the Wes Clark profile. Brilliant.

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Much of the anti-war movement seems to want to paint the Bush administration as out-of-control in its willingness to use military force overseas, and some of the wackier members even characterize the overthrow of the Hussein regime in Iraq as some sort of personal vendetta ("He tried to kill my daddy!"), unrelated to the war on terrorism. But in the days after September 11, Deputy Secretary Wolfowitz enunciated a clear strategy that he thought would be required to prevent a 9-11 from happening again. A strategy that extended beyond merely capturing the responsible parties and "bringing them to justice:"

"I think one has to say it's not just simply a matter of capturing people and holding them accountable, but removing the sanctuaries, removing the support systems, ending states who sponsor terrorism."

From the perspective of previous world wars, we are only a short way into this global war on terrorism (or, in my un-PC opinion, Islamic extremism), so it is probably a little early to gauge the overall success of this strategy.

But Libya's recent turnaround provides some preliminary support for the success of the strategy. Today's Dallas Morning News has a very forceful editorial connecting the dots between the takedown of Hussein and Libya's voluntary capitulation.

"Libyan strongman Moammar Gadhafi may be a madman, but he's no fool.

"He saw what happened to Saddam Hussein, and doesn't want to end up being dragged out of a spider hole by American soldiers. . . .

"European Commission chief Romano Prodi is hailing this a victory for
'discrete diplomacy and engagement.' Don't you believe it.

"Libya first reached out to the West in March, as American soldiers prepared to
shock and awe Saddam Hussein into collapse. Col. Gadhafi saw that when President George W. Bush said that nations were either for us or against us in the war on terror, and would be held accountable for their actions, he meant it.

"And note well that the Libyans did not approach France or Germany for help with the Americans, but Britain, the United States' staunchest ally. Col. Gadhafi knows which nations matter in the post-9-11 world.

"This development is first and foremost a ringing vindication of the Bush terror-fighting strategy, which depends on the use of force to back up diplomatic initiatives. When dealing with thugs like Col. Gadhafi, an able military and the
political will to employ it are the most useful tools of international relations. It's amazing how clarifying a few well-placed daisy cutters can be for Middle Eastern despots, and how persuasive the tender ministrations of the U.S. armed forces are to even the most obstinate potentate.

"Libya's stunning decision could prove a real intelligence coup for the United States, given that nation's role in funding international cutthroats and radical movements for decades. Additionally, the Libyan foreign minister is now saying that trade between his nation and the U.S. and Britain will improve.

"Washington and London now have a tremendous opportunity to show how no nation, no matter how outcast, is beyond rehabilitation if it will only turn from
its rogue ways. As we reward Libya for playing nice - and we should - let's not forget that what brought Col. Gadhafi around was not endless carrots offered by the European Commission, but a large stick swung hard by Mr. Bush." (emphasis added).

I think Libya remains on probation, but I am heartened by this development.

Posted by: JohnL at 12:21 PM | Comments (1) | Add Comment
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Glenn Reynolds mentions South Park Republicans again today.

I like South Park. I grok the Simpsons. I prefer the Canadian rock group Rush to the big fat idiot Rush. I've never been a big fan of Pat Boone (except for this) and do not belong or want to belong to a country club. I support gay marriage. I support the legalization of drugs. I support a woman's right to choose to have an abortion until the fetus exhibits a steady alpha-wave pattern on an EEG (the beginning of "brain life"). I am in favor of human cloning and stem cell research. I am opposed to most aspects of the PATRIOT act.

But I support very strongly the overseas war on terrorism. And I am opposed to any income taxes (one reason I live in Texas!) I would love to see the entire welfare state dismantled completely. I hope the Boomers choke on the "free" drugs they've decided to purchase with my (and my kids') money.

I should probably vote Libertarian. After all, based on the above, I am a "small-ell" libertarian. But I couldn't really be a "big-ell" Libertarian, as I prefer the Blue Man Group to blue man candidates and the other assorted nutballs that tend to run for office under the Libertarian Party banner. So how can I possibly vote? Usually, for the lesser of two evils. Which, for me, is usually the Republican candidate.

But I have to hold my nose when I do so. Thus, I propose a new term -- "clothespin" Republicans. For those of us who vote Republican, but put a clothespin on our nose when we punch the card.

What do you think?

Posted by: JohnL at 10:41 PM | No Comments | Add Comment
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Now this makes me soooo proud to be a Texan.

Good coverage of this particular case on Instapundit, Volokh, and Freespace. And be sure to check out the comments at Hit and Run, where I first learned of this particular bust.

Posted by: JohnL at 10:10 PM | No Comments | Add Comment
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No, no, no, no. . . not that picture.

This one. (Inspired by Scrappleface).

Posted by: JohnL at 11:24 PM | No Comments | Add Comment
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