A couple years ago, the Descendants soundtrack introduced me to the “slack key” guitar style native to Hawai‘i. A lot of my friends are unfamiliar with this beautiful, beguiling, unique musical style, so I thought I’d share a few of my favorites.
The story is that the guitar was introduced to Hawai‘i by Spanish and Portugese sailors in the 19th century. But the Hawaiians being very creative musical types started fiddling with the tunings and the finger-picking style they’d picked up from the Flamenco players, and adapting to it the styles of the hula and other influences. The result was a characteristically Hawaiian melting pot style, that can be as fun and lively as an American folk tune, or as mournful as a European ballad, all with a distinctively Hawaiian flavor.
I joined our friends on the Armstrong & Getty Show this morning to talk about PLF's recent victories in the Utah prairie dog case and the SDS Family Trust case against the Coastal Commission, as well as our ongoing challenges to Obamacare. If you missed it, you can listen to the podcast here.
I was on The Indepenents tonight discussing some of the spooky Hallowe'en-themed law out there. I mentioned the case of Stambovsky v. Ackley, the 1991 decision from New York's Appellate Division which held a house sale invalid because the seller did not disclose that the house was "haunted." The house had a reputation in the neighborhood for being haunted, and the court, in an opinion full of wry humor, held that since the seller had long claimed the house was haunted, she was not allowed to claim now that it was not. She was, in the legal terminology, "estopped" from denying it was haunted. That meant, as the court concluded, "as a matter of law, the house is haunted." You can read the decision here.
I also mentioned cases involving the free speech rights of psychics. In Spiritual Psychic Science Church v. City of Azusa (1985), the California Supreme Court struck down an ordinance that prohibited fortune-telling, on the grounds that it violated the First Amendment. The court specifically held that it was not "commercial speech," and that although the government can prohibit fraud, it could not just impose a blanket ban against fortune telling. But in Nike v. Kasky (2002), the California Supreme Court expanded the definition of commmercial speech so broadly, that fortune telling is now arguably commercial speech, and might be subject to censorship. I don't think that would or should fly, and in fact the Eighth Circuit held in Argello v. City of Lincoln that fortune telling is fully protected free speech. But that's just why that Kasky decision is so awful.
A friend recently asked what we God-damned atheists think or do at the thought of impending death. I answered, as master Epicurus teaches us, that death is nothing to us. But this video from the British Humanist Association answers the question more beautifully.
Today’s Google Doodle celebrates Jonas Salk, who developed the first vaccine for polio in 1954, and helped essentially eradicate the disease in the civilized world. Salk’s vaccine is not the one most commonly used today; that was developed by Salk’s great rival, Albert Sabin. The difference between the two is that while Sabin’s vaccine is a “weakened virus” vaccine, Salk’s was a “killed virus” vaccine—one in which the virus has been rendered completely inert. Vaccines work by prepping the human immune system to create antibodies; thus one takes a little bit of the disease, or something like it but less virulent, to make the body resist the full blown version. Edward Jenner gave his patients cowpox to make them immune to smallpox, for example. And most vaccines today are weakened virus vaccines—ones in which the virus is crippled, but still alive, when introduced into the patient.
In Salk’s eyes, the advantage to a killed virus vaccine is that it won’t transmit the disease itself, whereas a certain fraction of people given a weakened virus will come down with it. But there are a number of disadvantages. As Jane Smith explains in her masterful book, Patenting The Sun, killed virus vaccines are often less effective, and require booster shots. And in one tragic early incident, a batch of the Salk vaccine was prepared incorrectly, and the virus was not completely killed before being given to patients. Worse yet, the original Salk vaccine was not effective against one type of polio (although this was later fixed). And people given the Salk vaccine can still transmit the disease.
None of these complications are true of the Sabin vaccine, which is not only safe and effective, but targets the intestinal areas where polio first really develops. The Sabin vaccine requires no boosters—it’s permanently effective. Not to mention, the Sabin vaccine can be given orally, with a drop on a sugarcube, while the Salk vaccine required scary needles. Yet Salk remained all his life convinced that killed virus vaccines were preferable.
Salk was indisputably a hero. Polio epidemics regularly claimed tens of thousands of children in the United States; in 1952, there were some 58,000 cases. Today, a child in the developed world is more likely to be struck by lightning than by polio. But while Salk deserves great credit for his achievement, it’s a shame that it tends to overshadow the accomplishment of Albert Sabin, also a great scientist, whose discoveries are really the basis for polio eradication efforts today. The two men together deserve credit for saving countless lives.
This has happened to me before, in some rather amusing ways. In one case, Pacific Legal Foundation moved for attorney fees after winning a case, and the other side’s lawyer filed a brief arguing that we shouldn’t get fees because PLF is primarily supported by donations (since it doesn’t charge clients). I don’t get the logic there, but to support that claim, the lawyer cited a comment I had made on a Volokh Conspiracy post, in which I’d said that only about 1 or 2 percent of PLF’s annual budget comes from attorney fees. Like I said, I don’t get the logic.
In another case, the government’s lawyer moved to dismiss our lawsuit challenging an occupational licensing law, and mentioned in her brief that we’d filed similar lawsuits in other states—a fact she can have learned only through our blog posts. I guess she thought that proved that the case was frivolous or something…anyway, that allowed me to explain in my reply brief that, yes, we had—and all those courts had denied motions to dismiss.
But by far the best was Surrey v. True Beginnings in 2008, in which a self-proclaimed “men’s rights activist” sued a dating site for “discrimination” on the grounds that it charged women less than men. I wrote an amicus brief arguing that nobody’s harmed by this—in fact, both men and women benefit from it—and that the lawyer bringing the case was well known for predatory lawsuit abuse. In fact, he’d recently been sanctioned by a federal court for his bounty-hunter litigation. Well, he didn’t like that, and filed a hilariously angry brief responding to mine, which included such gems as
PLF attorney Timothy Sandefur is a self-proclaimed business-first advocate. For example, Mr. Sandefur refers to his car as “The Lochner-mobile,” which bears the personalized license plate “198US45”—the citation for the much-maligned U.S. Supreme Court case Lochner v. New York, 198 U.S. 45 (1905). Lochner held the “right to free contract” was implicit in the due process clause of the Fourteenth Amendment. In the Lochner era, the Supreme Court invalidated scores of federal and state statutes that sought to regulate working conditions during the Progressive Era and Great Depression…
...and cited three Freespace posts, including pictures of my car.
Hope to see some Freespace readers at some of these. If your club or campus would like to organize an event to talk about The Conscience of The Constitution or about economic liberty, private property rights, and current controversies in constitutional law, just drop me a line.
The new issue of Regulation includes my article about the big antitrust immunity case, which will be heard by the Supreme Court next week, N.C. Bd. of Dental Examiners v. FTC. I explain why the Court ought to take a stern line about allowing state governments to establish coercive monopolies--and stop exempting from prosecution the only entity that can actually create monopolies: the government.
In PLF's latest petition to the Supreme Court, we argue that the First Amendment doesn't allow states to define a person as practicing a business solely on the basis of the person's speech. Read more at PLF Liberty Blog.
Prof. John Yoo endorses the Obama Administration's argument that it already has authority to make war on ISIS. As Prof. Ilya Somin notes, there are a number of flaws with that argument. One thing I'll add: the AUMF does not authorize the President "to take action to deter and prevent acts of international terrorism against the United States." It just says that the Constitution gives the President that authority. But it does not specify what exactly such authority encompasses. This is a significant difference. If I say that a baker already is capable of making desserts, that does not mean that he has the ability to make a particular pie in a particular way. And if the Constitution does not give the President that authority, then the AUMF certainly can't give it to him. So the AUMF only reiterates (or purports to reiterate) what power the President already enjoys.
Yoo does not claim otherwise: he invokes the AUMF, not as legally binding, but as proof that Congress, at one time, agreed with his broad interpretation of Constitutional power. Still, I think it's too much to say that the phrase "take action to deter and prevent acts of international terrorism against the United States" includes a constitutional "power...to attack countries and terrorist groups to prevent them from harming the U.S., even if not with an imminent attack." Everyone believes that the President has the power to "take action to deter and prevent acts of international terrorism" at some point. Nobody thinks that he can only act after a bomb explodes. But whether this indefinite "action to deter" also includes the "power...to attack countries" that are not threatening the United States with imminent attack...well, that's a highly dubious proposition.
Does the Constitution give the President power "to attack countries" that are "not [threatening the U.S.] with an imminent attack"? That seems like a very extreme proposition, and requires extreme proof. The Constitution's authors were well versed in the history of the Stuart Monarchy, among whose crimes was waging war without Parliamentary approval. That crime was one of the leading reasons for the English Civil War and the later Glorious Revolution, two events that laid the intellectual framework for the American Revolution. The idea that the American founders meant to restore the British Monarchy in the form of the American President is simply laughable. And the idea that the AUMF's reference to "action to deter and prevent attacks" includes absolutely limitless Presidential authority is plainly contrary to every principle of American constitutionalism.
At the time Wilson was writing, it was generally believed that the more expansive understanding of British monarchical power had begun only after the Norman Conquest. This theory, today called Whig History, is largely rejected today, but Wilson believed it. He believed that "the chief difference between the Anglo-Saxon and the Anglo-Norman government" was that in the former, the power to make war had been considered legislative, while "in the latter, it was transferred to the soveriegn." Thus there was "a pleasure in reflecting on" the fact that the American Constitution was a "renovation of the ancient constitution of England.... [O]ur national government is recommended by the antiquity, as well as by the excellence, of some of its leading principles." 2 Collected Works of James Wilson 871 (K. Hall & M. Hall, eds. 2007)
Mr. Madison and Mr. Gerry moved to insert "declare," striking out "make" war; leaving the Executive the power to repel sudden attacks.
Mr. Sharman though it stood very well. The Executive shd be able to repel and not to commence war. "Make" better than "declare" the latter narrowing the power too much.
Mr. Gerry never expected to hear in a republic a motion to empower the Executive alone to declare war.
Mr. Elsworth. there is a mterial difference between the cases of making war and making peace. It shd. be more easy to get out of war, than into it. War also is a simple and overt declaration, peace attended with intricate & secret negociations.
Mr. Mason was agst. giving the power of war to the Executive because not safely to be trusted with it; or to the Senate, because not so constructed as to be entitled to it. He was for clogging rather than facilitating war; but for facilitating peace. He preferred "declare" to "make."
On the motion to insert declare--in place of make, it was agreed to.
Note that while the delegates did replace "make" with "declare," they did so for the opposite reason that Yoo claims: Madison and Gerry's motion was designed to allow the President to repel sudden attacks, and while every delegate who spoke on the question insisted that the President should not be able to start a war on his own, nobody spoke to the contrary in support of a unilateral presidential authority to commence war. There is thus no evidence that the distinction between "making" and "declaring" war was intended (by the Philadelphia delegates) for the purposes assumed by Yoo's argument.
This does not prove that the AUMF doesn't authorize attacking ISIS. In fact, as I've argued, if the President can demonstrate that ISIS is an organization that "planned, authorized, committed, or aided the terrorist attacks that occurred on September 11," or that "harbored" those who did, or that it is composed of "persons" who did any of these things, then the AUMF does indeed authorize war on ISIS.
This is my personal blog. The opinions expressed here are my own, and in no way represent those of the staff, management, or clients of the Pacific Legal Foundation, the Cato Institute, or the McGeorge School of Law.