VodkaPundit tells of taking his check dive in 61 degree water. HAH! What a wuss. Us northeastern he-man types take our check dives in a quarry in Pennsylvania. In April. In a snowstorm (well, alright, snow flurry). The water temp was 42 degrees. Not knowing what she was in for, my wife had not paid particularly close attention to how well her rented wet suit fit (she is quite small and often had problems with equipment such as BC vests, etc., that were too large). The wet suit hood that she grabbed apparently allowed water to circulate on the back of her neck. To say the least, she was unable to complete the dive.

And of course, we were doing this for the purpose of being certified, so that we could go diving (which we did in the Caribbean, after a stop in the Keys to complete Rose's check dive). One dive in the Carribbean and I was way too spoiled to go diving in the Atlantic off New Jersey. A comparison:

Good day for diving in the Atlantic:

Visibility 10 feet
Water temp 65

Bad day in the Caribbean

Visibility 75 feet
Water temp 75

Since I can't commute to the Caribbean, I don't get much diving in.

 
According to AP, the who sued on behalf of his daughter in California to have the Pledge of Allegiance declared unconsititutional does not have custody of his daughter.

"Banning never married Michael Newdow, the third-grader's father and the atheist behind the pledge lawsuit. She has full custody of the girl, which Newdow is challenging in court." (Via Best of the Web)

If that's the case, then where does he get the authority to file suit on her behalf? Doesn't he lack standing or something like that? Seems to me that this would be a perfect excuse for the Ninth Circuit to use to backtrack, should they desire to do so.

 
I’ve got mail!

Phillipe Richards wins the prize (of little or no monetary value to be determined) for being the VERY FIRST person to mail a comment to me. I would treasure his letter for that reason, alone, but it gets better. In response to my humble mea culpa in connection with the Supremacy Clause, he says I was too quick to concede, and for taking that position, his prize will be increased many fold.

He points out a very interesting Supreme Court opinion authored by one of our most famous jurists, Oliver Wendell Holmes. The case involved a statute passed in 1918 by the Congress. It seems that in 1916, the US and Britain (then the sovereign of Canada) signed the Migratory Bird Treaty concerning, surprise, migratory birds which traversed parts of Canada and the US. The two countries agreed pursuant to the treaty that there would be specified closed seasons on hunting certain species of birds and to promulgate laws to carry out the treaty. When the US did so by enacting the aptly titled Migratory Bird Treaty Act of July 3, 1918, Missouri sued to have the statute declared unconstitutional.

It turns out that it had previously been established that “ownership” of wild animals resided with the states, and that Congress could not regulate hunting migratory birds because (a) that was not one of the enumerated powers granted to the federal government and (b) the power was reserved to the several States by the Tenth Amendment. Thus, Missouri argued, what the US could not accomplish directly, it cannot get done via the back door of a treaty. Holmes first implied that he did not agree with the prior decisions, but said that, regardless of whether those decisions were correct, they were not wholly dispositive of the issue before the Court. He wrote:

“Acts of Congress are the supreme law of the land only when made in pursuance of the Constitution, while treaties are declared to be so when made under the authority of the United States. It is open to question whether the authority of the United States means more than the formal acts prescribed to make the convention."

In other words, "under the authority of the United States" may mean something closer to "under the aegis of the US" than "pursuant to authority granted by the people to the US in the Constitution". Holmes continues:

"We do not mean to imply that there are no qualifications to the treaty-making power; but they must be ascertained in a different way. It is obvious that there may be matters of the sharpest exigency for the national well being that an act of Congress could not deal with but that a treaty followed by such an act could, and it is not lightly to be assumed that, in matters requiring national action, ‘a power which must belong to and somewhere reside in every civilized government’ is not to be found.”

Holmes then goes on to make an argument that sounds suspiciously like those advanced in cases about laws and regulations made under the authority of the Commerce Clause: the birds in question are only in any one state on a transitory basis, and relying on the states to protect them is futile, since the benefits of protection are widely disbursed and the burdens (such as the absence of a new landfill) are very local. This last is a variation on what I recall from my Stone Age course on game theory as Arrow’s Theorem (and others on the web have called the tragedy of the commons): a series of rational decisions can lead to an irrational outcome.

The final outcome in Holland was that the law made pursuant to the treaty was valid, when a similar law made prior to the treaty, had previously been declared invalid. I suspect that the treaty (and therefore the statute) would pass constitutional muster today under the power of Congress to regulate interstate commerce, which authority is much more broadly construed today than it was in the 1920s, when Holland was decided.

Both Justice Holmes and Mr. Richards take care to note that they do not believe that the federal government could repeal the Bill of Rights simply by entering into a treaty with another country, but assert that the language used in the Supremacy Clause differentiates between laws enacted by the US “pursuant to the Constitution” and treaties entered into “under the authority of the United States”, and that the difference must have some significance.

Well, OK. Obviously, the Supremacy Clause does have different language describing laws and treaties, and I agree that the difference should not be construed as meaningless. But Steven DenBeste’s point was that the treaties he was discussing directly violated one or more of those basic and most cherished rights held by Americans, which both Holmes and Richards assumed could not be bartered away via treaty.

So both Richards and DenBeste are still right. Does that mean I’m still wrong?

 
Ouch.

My stupidity has now been broadcast to a much wider audience. Thanks Steve.

Such is life in the Blogiverse, I guess.

Well, he spelled my name right.

 
Oz Oddity

Did someone downunder lose an asshole? He's been found. I wonder if they want him back.

MURDOCH SCRIBE FIGHTS BACK Bush-bashing leads inevitably to Dubya trouble

Bruce Wilson
July 6, 2002, Saturday
Courier Mail

ONE week ago I wrote a piece that said that much of the world was getting to terms with the fact that President George W. Bush is a fraudulently elected nitwit.

This from a guy whose country has political parties whose members decide which party to join based on who they are presently going to bed with.

You always expect some kind of reaction from statements like that.

(Snip)

By the end of the week there were more than 1000.

A handful were from Australia and the world. All the rest were from the US and for days they handed it to me as if I were the greatest threat to democracy since Joe Stalin. The hatred and invective was quite staggering.

Then I found out what had happened. I had been picked up by the Drudge Report, the website started by a right-wing zealot called Matt Drudge.

Right wing zealot. Hmmmmmmm. Someone who links to YOUR words without comment. Them right wingers are everywhere on the innernut.

(Snip)

Well, whee-hoo, as they say down on the ranch.

You have a ranch where they say that?

Drudge obviously aims at a lowest common denominator, since most of my electronic correspondents failed to catch on that I was an Australian.

Yeah, those dimwit Americans can't even tell that "Bruce Wilson" is obviously an Australian name. We even imported one to sing with the Beach Boys. Oh, sorry, that was Brian. Read your insulting little article again and show me where you said you were an Australian. Then you can complain that people thought you were British.

They saw the London dateline, and said: "OK, let's trash this limey."

Mainly I got it for being a limp-wristed nancy-boy (Bruce is thought to be a poofie name in the rednecked areas of America) whose nation (Britain) was twice saved by ever-brave American military might and GI know-how.

It couldn't possibly be a result of:

The complete absence of any knowledge on your part of the US political system, or for that matter, the US economic system.

The fact that the basic premise of your article is that half of the American electorate voted for a nitwit, which, of course, means that they were taken in by a nitwit. Now why would those stupid people take offense at that? Jeez!

The fact that you cite Tom Cruise, for God's sake, on political issues. Do people downunder take their political advice from actors? They should know that we tried that in the 1960s and 70s with Jane Fonda. Didn't work out too well.

The fact that you try to tie the present corporate scandals on Bush based on absolutely zero evidence, when the fact of the matter is that they have been going on since well before the 2000 election.

The fact that you think that democracy and free elections in the Middle East is "batty".

Could it?

You simply don't have time to read 1000 e-mails and they clog up the memory.

No worries mate, reading 1000, even 5000, emails will have absolutely no effect your memory. It's already clogged.

I took them randomly while wiping them out, reading about one in 20, and then replying if the sender was making some kind of a point or other, saying I was Australian, not British, and used to work in the US and some of my best friends were Republicans.

Wilson sounds like a 60's era racist who repeatedly says, "Some of my best friends are nig ... um ... Negroes."

Then I detected the pattern. It was clear that a network existed to organise the outraged responses.

They ran on two levels: "Come to Texas . . . and we'll show ya." And, "We saved your asses and if you keep this stuff up we won't do it again."

Some were so offensive I replied in kind. Some I tried to tell that the US came very late into World War II and Britain already had fought its two major battles without them.

Did Britain fight those battles without Lend/Lease or the "Arsenal of Democracy"? But Wilson is correct that we got into the war late. After the French surrendered in a week and Britain got its butt kicked around the entire Pacific Ocean and off the European continent.

Then, as the week went on, there came a slow and then increasing inbox of what might be described as the still, small voice of reason.

"Thanks. Nobody's saying this stuff often enough here," was the general theme.

You reason with them. The other 98% of us can't.

September 11 had created a president wearing false clothes, said one. But nobody would say so. Or if they did, not loud enough.

About 150 Americans e-mailed me -- from Seattle and Denver and Tacoma and New York and Smallsville, Ohio -- asking me not to pay attention to Matt Drudge, or the organised Right, and to keep at it.

150 Americans emailed their support. Out of, what, 100 million with access to computers? Congratulations. Do you really think its wise to let your editor know that you got 1000 "con" emails immediately and 150 "pro" emails eventually? Does he know that, in the world's largest market, you have only a handful of readers who concur with your Homeric (as in Homer Simpson) opinions scattered across the continent?

Actually, what September 11 seems to have created is two things:

A class of idiots, largely concentrated in the press, the radical left and the French government.

An idiot proof society in the US.

I will.

Looking forward to it.

bruce.wilson@newsint.co.uk