Atomized junior- The Web log

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Atomized junior- The Web log

Tuesday, 31 May, 2005

I got a bone to pick with WFMU. Admittedly I'm a sucker for all manner of artsy nonsense, but last Thursday - I think 1. I listened to nearly a half hour of New York city area weather forecasts - a years, possibly several years worth strung together in some infernal loop. All this due of course to the advanced miracle that is internet radio. Since WFMU doesn't do weather I knew it was some bodies project right off, but I listen anyway - expected some kind of payoff, some kind of punchline, if I put up with it long enough. Minutemen songs had punchlines. I always expect art to accomplish something, I don't know why, I don't know what. It was kind of hypnotizing: the snow flurries are getting thicker, no they're getting thinner, and temperatures are rising, tomorrow mornings commute will have to deal with violent hail... I'm weak; I eventually switched off before finding out who did it or if the dj had any decent segue lined up. Of Course they are the only radio station I know that plays Shari Elf.

1. Wednesday. I suspect that I was listening to this.
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Sunday, 29 May, 2005
We want the airwaves

Last Monday my friend Robert passed on something from one of the listserves he's on. I avoid listserves when I can. It was an invitation to join an online petition from a sub group of civil rights org. Twenty Million Americans Demand a Seat at the Table When Congress Makes New Telecomm Policy Press Release, May 9, 2005 : Media and Democracy Coalition. The petition itself would sign one on to the Bill of Media Rights. This document makes three essential requests from the FCC:

  • Media That Provide "An Uninhibited Marketplace of Ideas"
  • Media That Use The Public's Airwaves To Serve The Public Interest
  • Media That Reflect And Respond To Their Local Communities
By public interest they mean: "Meaningful participation in government media policy, including disclosure of the ways broadcasters comply with their public interest obligations, ascertain their community[base ']s needs, and create programming to serve those needs." By response to local communities: " Public broadcasting insulated from political and commercial interests that is well-funded and especially serves communities under served by privately-owned broadcasters."
It seems that it's time for congress to review the FCC's chartering legislation. I am a little confused by this petition; though. It seems to only be asking for persons who can pledge an organization to sign it. It's not a public petition. Maybe Robert can talk the Dean into signing on behalf of UMCP libraries. I see the United Church of Christ (Congregationalists - my church) has already signed.

There is also an accompanying document; a 24 page report written by the advocacy group Common Cause "Fallout from the telecommunications act of 1996 : Unintended consequences and lessons learned". A three page executive summary (much of what was also in the body of the press release) at the beginning hits the high lights. It gives bulleted points against two headings: who the industry players are and what they want out of the legislation, and the legacy of the Telecommunications act of 1996. In between there are tables that list campaign donations and lobbying expenditures by these industry players. I recommend this much highly even to the casual reader. The FCC oversees a big chunk of the media and the media is American life. The impact of consolidation of media on news reporting and the political marketplace of idea's is what led me to read through the whole document. The body of the report examines the FCC's mandate by its main areas of oversight with sections on radio, cable television, broadcast television, digital broadcast, and telephony. I'm vaguely aware that the 1996 Telecommunications act was the culmination of a 25 year long de-regulation effort and this document revisits some of the sweeping claims that were made on its behalf. These do not appear to have materialized. In words from the report:

Over ten years, the legislation was supposed to save consumers $550 billion, including $333 billion in lower long-distance rates, $32 billion in lower local phone rates, and $78 billion in lower cable bills.11 But most of those savings never materialized. Indeed, Sen. John McCain (R AZ), who opposed the legislation, noted in 2003: "From January 1996 to the present, the consumer price index has risen 17.4 percent ... Cable rates are up 47.2 percent. Local phone rates are up 23.2 percent."12
The rosy predictions that passage of the Telecom Act would create 1.4 million jobs and increase the nation[not equal]'s Gross Domestic Product by as much as $2 trillion also proved false.13

It's easy to look at this counterfactual documentation as refuting de-regulations claims, but the concept of de-regulation is so ingrained and internal to conservative views of the free market that as a practical matter they don't. There are always reasons to explain apparent failure and the cure inevitably is more de-regulation. The market has not just an invisible hand, it has invisible benefits to go with it. Part of this difficulty is in mistaking the cheerleaders of the market for genuine adherents - they make such convincing and stalwart champions it is easy to overlook that actual rigorous open markets is the last thing any of them want. They want their markets to be regarded as a private matter, of concern only among themselves.This they see as the existing set of players and any new entity willing to barter or bargain (but never break) into the game.

Out of this certain pernicious effects seem to have materialized, again from the report:
"Obeisance to the bottom line has meant that local TV stations, increasingly owned by out-of-town corporations, are producing less local news or none at all...The law extended the terms of broadcasters[not equal]'' TV licenses, and made it much more difficult for those licenses to be revoked"

Cable companies vertically assemble and produce more of their own content, less to little or no programming comes from new sources of entry into media-casting. The giveaway of the digital broadcast spectrum is an especially egregious instance. Broadcasters won the right of being given HDTV spectrum free for putting it in place, but now envision using much less of it for digital broadcast, carving the rest up for secondary revenue streams and seem bent on keeping their current analog spectrum the return of which to the FCC was part of the original trade.the baby bells did not live up to their bargains and even aggressively went against them using the courts and legislature to change the terms of agreements made. SBC's campaign to buy ATT fits here. More broadly the authors quote a Clinton Administration official: "But the lesson we learned was that you have to lean more on the side of the public interest because the companies will push back after the law is passed in the courts and in Congress".

One of the last things I want to pull out of this report is where it notes: "Equally important, the law directed the FCC to re-evaluate its telecommunications regulations every two years, and to[not equal] "determine whether regulation is no longer necessary in the public interest" If the FCC makes that determination, it must streamline or eliminate the regulation in question.70" From the onset of the 1996 act and certainly under the current administration the FCC has followed a policy that the only correct route to the 'public interest' is through the market. The market those who it regulates ask for. The Telecommunication of 1996 and every iteration previous to its founding relied on FCC to be watchdog regulatory body. What rulings it has issued show tendency to see organized public interest bodies as mere special interests, but not corporate bodies. The only notable exceptions lay entirely among the organized social conservative groups that impact vote totals for republican candidates. The Public Interest as named and desired by Media Bill of Rights simply does not exist to the current FCC. They have vacated their trust and need to be told this.

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Wednesday, 25 May, 2005
Sweet Home New England

Something from a few weeks ago I wanted to share was this "what kind of American English do you speak." web survey thing. I saw it on Mir's site (DSD) (I hope Mir continues to write in her weblog so I can continue to read it) followed the answered the questions and got this result. Which I then placed into a stickey and after I turned stickies off proceeded to forget about, until I turned them back on today and -- there it was. Stickeys; its a Mac thing, don't worry about it. More trouble then they're worth. One of the questions didn't sit right with me though whether I called them drinking fountains or water fountains. I don't called them either - they're bubblers, who doesn't call them that.

Your Linguistic Profile:

40% General American English
40% Yankee
15% Upper Midwestern
5% Dixie
0% Midwestern

I think last time I spoke too blithely about being over this cold. I'm not.

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Monday, 23 May, 2005

I got an Email the other day from a guy named Kent Dotson . It was more like two weeks ago, but I'm just now shaking this cold and getting around to old business. Kent Dotson was one of the people I knew in the Navy, This was a long time ago. He was Mark Edmunds roommate (along with Joe Smithy) in the first BEQ can't remember about the second, after the cruise. If anyone read any of the sketches I wrote about Mark last year, Kent was around for all that too. He was from Decatur Georgia, If I remember. I think that's near Atlanta. He was a rigger, that is a parachute rigger. These guys were good to know - they could make stuff. Custom designed duffle bags with zippers pockets and double stitching. Kent should remember his fellow rigger Andy Levering. Andy used to pick me up and throw me 10 feet across a room into cement walls. I am somewhat short and lightly built, you see - 5'2" and about 115 lbs. This leads a certain class of person to regard me as some kind of paper airplane.

 I once found a cigarette lighter. A nice one, a chrome Zippo. I liked it, I didn't even smoke. It took a couple of months before I figured out that it was Kent's. It had DKD engraved on it. Didn't ring any bells, but Kent is actually his middle name. I think its David Kent.

While I'm at this. I am going to put up the last of the Ra5c pictures I have scanned already. Which may be the last for a while, because the ancient OS 8.6 iMac my scanner is attached to is becoming undependable, which is to say it crashes most times I try to do anything with it. For the lack of better information I'm going to credit this one to Mark Ramsey as wellA picture named Ra5c_rvh7_wire_sm.jpeg.

I was looking through the Ranger cruise book for the westpac we were on (its like a yearbook, same general idea) for a picture of Kent. Finally found one on page 155; make ups and late arrivals. Its a better picture than any of the rest of us got by showing up at the official time. Flipping through the book I note that two of the pictures of Ra5c I've put up here are in that book. This explains why I have multiple copies of those prints, mine appear to be test prints for the one our photo-mates gave to the book project. When I get back to scanning I'll try to find ones not likely to have been in print before.

One other thing I remember about Dotson is that before he joined the Navy he worked in the family business which was a company that made carpets on a large industrial loom and used a pattern printing technique which as he explained it struck me as being rather high tech. I was an impressionable youth. I remembered this because my best friend in high school, George, his father was a mechanical engineer who designed - high speed industrial looms.

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Saturday, 21 May, 2005
Get Darby, or Lobel Libel for lowball

I see an article here from the Boston Globe that Darby Conley, The writer-illustrator of the Get Fuzzy comic strip is being sued by a local sportscaster named Bob Lobel. This for intimating in his 13 May strip that Lobel sometimes did his sportscast with a little help from branches of the distilling industry. That's last Friday's paper. I don't think I bought last Fridays paper, and its already been peeled off the web. I can't imagine that any thing of Conley's could be construed as willfully malicious, it just isn't his style - which tends more towards a benign exasperation.

This will be sad news for my niece Nicole who was the first to introduce me to Get Fuzzy and was a fan of the strip for the better part of a year before the Washington Post started carrying it. I'm not sure how that came about, but possibly it involved her aunt - my other sister Ellen. Get Fuzzy has slowly grown on me, I like it now, This serves as an exemplar counterpoint to how I feel about Prickly City.

If this Bob Lobel has been on the air as long as the article suggests I should remember him from growing up in (the) Boston (broadcast area), but I can't. The only sportscaster I seem to be able to picture in my mind is an unnerving strange and uncanny blend of George Michael and Frank Herzog. But hey it's not as though there haven't been times when it didn't seem one of those two hadn't gotten too close to the Teac's.

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Thursday, 19 May, 2005

 I've caught some horrible spring cold, which, after a week of just being nettlesome and draining, finally has got me to the point where I not only don't feel like writing,  i don't feel like reading either. I  expect the Senate's China Syndrome act won't take on any new and unpredictable forms if I don't pay attention for a few days. I feel confident they will still be cheerfully calling each other names on Monday. I started reading Waugh's Scoop A occasionally funny but weak novel, about journalism.  I started half a year ago, never finished it, I will now. Paper is a miracle device - reflects enough light from a lamp to read a page by, but not too much - can't see why that stuff hasn't been patented.  

  Listening to the Decemberist's song My Mother was a Chinese Trapeze Artist as I write this. Every time I listen to that song, I think the same thought: I once knew a girl who's mother, Diep,  was a motorcycle daredevil for a circus in South Vietnam in the early 1960's (she had a picture). Peculiar thing when you think about it. That's not the thought; though, it's just an introduction to the thought.  But already now  iTunes has slid on to the next song on its list:  "I'm a legionnaire.  Camel in dis-repair. Hoping for a Frigidare to come passing by..."

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Tuesday, 17 May, 2005

Tomorrow Sen, Frist (R-Tenn.) will put forward two nominee to seats in the federal judiciary kicking off what Washington Post has named the "Filibuster Fight" (that's the name of their RSS feed on this) see Democrats, GOP End Talks on Filibusters, and Frist to Begin Floor Debate on Judges Next Week. The filibuster sideshow gives the story a tight focused old-fashioned Hollywood melodrama angle, but it is a small even inconsequential part of the real story. The US Senate sets its own rules. It can change em, change em back. It is a constitutional issue only in the narrow sense that the constitution established the senate and left its affairs to it.

What makes this significant, as I see it, is the disappearing consensus on what constitutes the good. The best thing, the greatest good, the moderate - utilitarian - position, societal maximal solution, Pareto optimality. Does such a notion still exist? Are all these terms synomonous. The property rights crowd seem to champion a version of Pareto where the government can undertake no solution that does not leave everyone better off certainly not leave one property holder worse off. I thought Socrates once argued that the just will not always leave everyone better off, but the welfare of the polity was the greater concern. There is implicit begging of questions in the ways this meta question is phrased.

I beg mine: certain things need to pre-exist within a group of people before that type of question makes sense or can deliver any answer. Answer question about community first or have their answers in place. The judiciary is the continuation of politics by other means. It is class struggle, is flux, it is war. The terms of the current battle is the competition of conservatives to get a nominee of their particular persuasion to the judiciary and from there to the Bench. In this mix are Social Conservatives: Anti-abortion, anti-seperation of church and state. Advocates of a nominally theocratic state. Also Lockian upholders of Property Rights, a belief in the absolute nature of individual property rights and in a federal government limited to the strictly enumerated rights. Which, don't allow for mass holding of public property by the state. To the extent the state comes into possession of property it has an explict mandate to dispossess it to private holding. This group is also marked by a belief in the non benifice of the commons with notions of intellectual property to match.

In all this it is possible to read the reality of judical activism in our political culture and our general fondness for it. As well the unreality of states rights. One common ground between these two factions a previous propensity for states rights over federal supremacy and regulation, is weakening in the face of adesire to uniformly dictate their views comprehensively to the entire nation. The judiciary is one of the few venues in the american political process for government by fiat

When I went browsing through the UMCP libraies catalog and article databases for academic perspective and opinions on this I turned up a name I knew. No one I know, personally.  Someone my sister and brother-in-law went to law school with: Michael J. Gerhardt. He is a professor of Constitutional Law at William and Mary and has written books and many articles on the Federal appointments process. For this round at least let's see what Prof. Gerhardt has to say. In a book review . (Attitudes about attiudes. May 2003. Michigan Law review. Vol 101:1733. Michael J. Gerhardt ) of Segal and Spath's 2nd edition of their book on the Supreme Court he brings up the disparity between the way Sociologists/Political Scientists look at the courts and the way Law Theorist do. It is the point where they talk past one another. At issue is the Attitudinal Model a modern political science empirical model of judical decisions as "based on personal attitudes on social policy and not on the basis of any genuine fidelity to the Law."

In a earlier article he had brought up Norm Theory a semi institutionalist take on the appointments process it posits existence of a body of informal rules and fairness concepts which balance the appointments process alongside, and in the absence of more formal ones. It seeks to identify and describe their use with an eye to making these processes understandable and more predictable. Prof. Gerhardt notes the increasing prevelence of payback, a fairplay norm, in federal appointments. He also talks of norm ambiguity - birth of a new norms when previous norms conflict or do not produce a clear direction. This can also be seen as Norm entrepreneurship - the deliberate cashiering and replacing of one norm by another [from: NORM THEORY AND THE FUTURE OF THE FEDERAL APPOINTMENTS PROCESS. Michael J. Gerhardt Duke Law Journal April, 2001 50 Duke L.J. 1687]. Another norm worth mentioning here (brought up in a Newshour discussion Filibuster Facts last night) is the pan-legislative notion of requiring a supermajority in certain parlimentary situations potentially this may be a collateral casualty (as a norm) of killing the filibuster.

This brings us to a recent article JUROCRACY AND DISTRUST: RECONSIDERING THE FEDERAL JUDICIAL APPOINTMENTS PROCESS: MERIT VS. IDEOLOGY. Micael J. Gerhardt. Cardozo Law Review January, 2005 26 Cardozo L. Rev. 353. If [who is] the best judge in the land is measurable - and can be viewed objectively in some sense, as merit; why don't discussions of merit carry more weight or become part of the formal process. "It is unclear why we fail to discuss merit more than we do. It is possible that when it comes to merit, we might all agree on more than what our leaders or academics typically acknowledge." We can still imagine this ideal nominee and the non controversial qualities we would like him or her to have, the qualities among others, or as another way of seeing them, of the most admired past justices. The importance of article iii appointments (constitution appointments of life tenure to the judiciary requiring Senate advice and consent) is to claim by gaining them the mainstream - in constitutional legitimacy, in public opinion. This is not to say these battles are merely rhetorical, not transformational. The judiciary is the high ground, the strongest institutional redoubt to lay-in your concept of right. The lower judiciary specifically is the road to the US Supreme Court. Justices re-array the right and left around them, and the nation with them. This is the final goal. This simply serves to unscore that ideology exists and that it matters. Defintively pointing to it in the wild, may be problematic, but it needs to be treated like it exists, (an acknowledging of the attitudinal view of the judiciary so that the debate can be re-formed to discussion of merit. Rigid or intemperate holding of ideology would be just one factor of that debate. Where it would sit alongside other normative factors such as the political strength of sponsoring senators or the president.

The goal of rapid appointments - up or down votes - takes its place within the realm of social struggle - no one ought to pretend that there is a branch of Government somehow outside of politics. All the same idea of good government calls for compromise and arbitrated solutions, this should be understood as taking precedent over the seasonal fortunes of one or another party, or the political ambitions of any one man.

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Friday, 13 May, 2005
May Decemberists

Having brought up the Decemberists in a previous post. I want to point to the Quicktime version of the video to  16 Military Wives :: The Web Version.  Finest music video since that one the Replacements did for MTV. I recommend it for all ages.

  I had a suspicion for a while that the vw commericial for Kings of Leon's "Molly's Chambers" was done by the same person who did Ted Leo's "Me and Mia" video. It was the whole central action framed in a window, shot from across the street  thing that made me think so (do you suppose that is a motif or a trope, or some other concept the pleasure of whose acquaintance I do not yet have).  They do not appear to be from the same source; though. The Ted Leo video was done by a person using the nom d'art associates in science, who has also done a Guided by Voices video for "My kind of soldier."
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Nicole Poems

More poems written by my niece from the set she gave me. Today a short one and a longer one.

"Everything's Fine!"

The world is healthy
Gas is cheap
People care about others
We have world peace
Our president is smart
The ozone layer's stayin' strong
People have the power
Nothing is wrong
Endangered species
Coming back from the brink
It[base ']s all good here
(Wink, wink, wink)

"What will they do?"
I see my hands, folded on my desk
Tan skin and bitten nails
Veins run beneath my skin
Strange lines cross my palm
Each tells part of my life
As I look at them I wonder
What will they do?
These hands of mine
What future do they hold?
Will they write a novel
Great and moving
Paint a picture
Like the Mona Lisa
Design an invention
That will change the world?
Will they pilot a flight
To an uncharted planet
Draw a plan
To steal a priceless jewel?
Will they juggle fire,
Sculpt ice,
Or will they simply be?
Quiet and unmoving
Content in themselves
What do my hands hold for me?

Nicole C.

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Wednesday, 11 May, 2005
That's the work of all these governors

I've had this song "All these Governors" by the Evens stuck in my head now for about a week (where it shares space with the Decemberists). I've decided that's selfish, to have it stuck in my head alone. So I'm turning it over to you  NPR : A Quieter Course for Punk Pioneer Ian MacKaye.

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Monday, 9 May, 2005
As liberating as it is alienating.

The Washington Post has put me on a train to Palookaville. They didn't mean to do it, perhaps, but they didn't mean not to either. The previous Sunday, several paragraphs into a long winded style section story Backfire (about a women who burnt down a student group house in North Carolina). I read this sentence: "a year after earning her degree in business administration [she] was temping as a $12hr gofer...Things were no better on the personal front." Do I even earn that much copy catologing books for the state universities library?, I thought. Yes, maybe even a fraction of a dollar more. A minor offhand statement from the Post phrased indifferently fallen from the writer to the page, passed on by whatever editors looked at that piece. A sentiment that states more permanently and irrevocably than the Washington Post's ability to explain or retract what its writers editors owners and advertisers really think of those of us, living in America at 30,000 or less a year. U.S. median income is around $31,000, but to the Post there is little point seeing difference between us and any other disturbed dying irrational thing. We are not creatures of the light. We have neither real lives nor history.

   I recall reading (probably in the Washington Post) that over on Virginias Eastern Shore - Northampton, Southampton counties enlistments in the US military run to around 1 in 4 high school graduates. To what degree do those people and their lives figure into the Post's constituency and issues. The readers, the policy makers whose first draft of history they dedicate themselves to writting. I think none. To be sure - in an abstract way - they may consider the lives of lesser unfortunate beings by turns and tones of pathos. The underweal of history. They'll never consider us like they consider themselves, or as really having an equal voice. As they sort out their routine reporting on wars and politics, it's not as if they've been called out to fight.

   The sort of person who joins the military out of high school, as I did. He or she will at least find some autonomy there. A certain freedom. I know that must seem odd to say, I don't expect everyone to understand. Perhaps though you can still see the irony - of the Abu Ghraib and adjunct prisoner abuse scandals as they die down and disappear. That with all the hierarchy of the military - layer after layer of generals and majors, Defense Department Secretaries and Deputy Directors - that responsibilty is the provence of the private and non-com alone. No one else will go to prison, or be held accountable in any real way for any of it. Not Rumsfeld, Just Lynndie England: Abu Ghraib's message for the rank and file. That's fine. Fish rot like that, from the head.

  I see these yellow ribbon magnets on cars. Well, not cars so much - SUV's mostly. I wonder; who are these for? They say "support our troops" on them. I doubt that is their true meaning. That is to say that I doubt an empty gesture can hold true meaning. What they want from you, these troops, they already know you can't give them (this is why the requisition forms merely ask for more ammo). A reason. A good reason. A reason for being used. They don't really need anything from you at all ; though. They will individually come up with their own reasons in due time. An exercise as liberating as it is alienating.

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Thursday, 5 May, 2005
Web Logs, Politics, and You

   I received an email invitation to an event the other day; the Institute For Politics Democracy & The Internet briefing on the FEC's proposed rule changes on internet communications "Will the revolution be Regulated". I am interested in what they have to say and will try to get out of work early next week to go to this. I had written a post on the FEC a little over a month ago after hearing about the draft of these proposals following the FEC's 24 Mar 05 meeting. The news reports had left me a little apprehensive. Reading over the text of the draft, it seemed to indicate they favored an intention to cut out a broad exemption in their rules regarding media, for web loggers (and similar such).

While it is clear a lot of envelope pushing activity was occurring in the last election, its not clear how much of a cure is needed. Some web loggers were engaged in co-ordinated activities with campaigns (and with each other in astro-turf campaigns), some were taking money from campaigns. Both previous generally with-out disclosing any of it. Others were raising money for campaigns. In these latter cases; though, it's not as though anyone ought to feel deceived by any perceived content bias.

The FEC seemed to recognize that web loggers survive on on their reputations - for reliable information, insight, or consistency. Little stays concealed in the internet world for long. Caveat emptor works fairly well broadly speaking. The FEC's residual concerns seemed to lie in the direction of whether well funded concerns could leverage this into either providing or denying equipment and services in attempts to influence information flow. My remaining concerns lie with the possibility that the independent internet world - read that as a slightly broadened synonym for web logging - might fall in to cycles of leveling bias charges against each other. In the face of which resourceless amateurs like myself would find themselves either shutdown or chilled in the discussion of ideas and their merits. Trying to prove a negative. I run Atomized jr here as a public discussion. I vote and I don't hide what opinions I have (I have fewer opinions than people suppose), but I don't intend to ever become a signal repeater for any political campaign.

On Tuesday the Washington Post ran a medium length article On Bloggers and Money covering all this. The article indicates that some election law experts are continuing to put pressure on the FEC to tighten rules. A professor of law at Loyola university points out in the article that since elections are finite events, it doesn't help if eventually a web writer's unrevealed interests are laid bare afterwards. The articles notes that congress may not leave it up to the FEC. The Senate rules committee has approved and passed out a bill [ I can't find the Senate bill that the Post refers to but the description matches H.R 1606.IH Online Freedom of speech act (introduced in the house see Thomas) ] that would prevent the FEC from promulgating more stringent rules.

IDPI's event which it bills as a legal briefing will involve a panel discussion by Ken Gross, Robert F. Bauer, and Don Simon. All campaign finance law lawyers. and will discuss the effect of the rule changes, proposed and potential, on political activists with websites and the web logging community of the politically active. The event takes place 11 May 2005 4:30 pm to 6:30 pm on The George Washington University Campus, Media and Public Affairs Building, 805 21st Street, Room B07, Washington, D.C.

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Nicole's poetry

In a previous post I came to learn that last month, April, was poetry month.
My niece has e mailed me some poems she wrote, she had showed me them over the weekend.These originaly were written for seven period english class over at Alice Deal Junior High, where she makes a living as a seventh grader. Here is the first.

"Two Places"

Silence all around
People laugh and shout
The world is waiting
Sunlight glares through the windows
The pre dawn light glitters
Paper balls fly through the air
On the gardens dew drops
In the crowded classroom
Nicole C
A picture named Cornfield_IMAGE.JPGA picture named Classrom_IMAGE.GIF

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Wednesday, 4 May, 2005
Exiled on Main Street

  Two weeks ago now the Diane Rehm show spent its first hour reviewing a little known political movement: The Judiciary and the "Constitution in Exile" Tuesday April 19, 2005 (10:00) the guests were Michael Greve, John G. Searle Scholar at the American Enterprise Institute and director of AEI's Federalism Project, and Jeffrey Rosen, author and associate professor at the George Washington University Law School and legal affairs editor of "The New Republic". The immediate antecendent for this seems to have be Rosen's article The Unregulated Offensive in the New York Times Magazine the previous Sunday. I found myself listening closely, and have thought about it a great deal since. Its the unrequited undergraduated government and politics schooling I have.  I mentioned this broadcast to my sister, Ann, the next week-end. She said that she had the Richard Epstein mentioned prominently in Jeffery Rosen's article as a professor in law school. He spent the entire semester lecturing on his notion of contracts before noting in the final week that there was a federal statute in the US Code that covered this to different effect. If they were going to actually practice law out in the 50 states they might need to know it. She added that he was one of the smartest people she has ever known. What is it about these tele-right types that strikes people as intelligent, or profound?

   On the Constitution in Exile as a movement they, well Michael Greve, claim they are not a movement all. Just a loose collection of law professors. However; the phrase was coined by Douglas Ginsburg, an advocate of the chief tenets of contract and property that mark this as a ideological movement. He has used this phrase repeatedly. In addition there is an agenda here - to advance one or more of these adherents to the Supreme Court. That can be read between the lines of even this much public conversation. If there is an agenda; there is a movement (as section iii of the Rosen article documents). There are two issues : constructuralism, and the expansion of Federal Governments use of the commerce clause, this group dogs. They circle these issues like accident lawyers at a car wreck.

  The idea of strict construing of the constitution is a perennial issue. Justice Scalia never tires of lecturing about it. To me it represents a 19th or even 18th century vision of reason. One untainted by any notion of psychology and unconscious bias. A non accounting of problems of exegesis: we might have knowledge of what a two hundred thirty year old document from the dawn of our nation means to us today. We cannot know what it meant to those in the room who drafted it out of their days and experience. We do not live in their world, nor they in ours. Strict constructors offer no explanation of the omnipotent understanding of the group document that is the constitution they claim, that could not be (and judging from the Federalist papers and concurrent opposing editorials was not) possessed even by those who where there. It is all a pretense on every level and carries a strong whiff of inearnestness. They see what they want to see and avoid what they don't. "It has been said that these powers ought to be construed strictly. But why ought they to be so construed? Is there one sentence in the Constitution which gives countenance to this rule?" Justice Marshall in  Gibbons v. Ogden (1824), Landmark Supreme Court Cases

  Marshall was describing The Commerce Clause power (Article 1 section 8 clause 3). In Gibbons v. Ogden Marshall is trying to answer what is commerce: is it goods trade only, or other activities including transport leading to transfer and sale.  Later notions of this debate revolved around the concepts direct and indirect impact of a commerce related activity. The Gibbons decision established that business and commercial activity in practice was commerce and could be regulated among the several states. Within a mere 113 years this led to the Constitution in Exile movement's main maladjustment: National Labor Relations Board v. Jones and Laughlin Steel Corp. (1937).  This case marked a break from the immediate past in two ways.  Congress tried to outlaw yellow dog contracts. This is a contract imposed on workers demanding no union activity in return for employment in 1898. Lochner v. New York (1905) and more specifically Adair v. United States (1908) held this void - denial of liberty of contract under the Due Process clause ""no "possible legal or logical connection...between an employee's membership in a union and the carrying on of interstate commerce". There is the notion here that the individual worker even with-out collective bargaining is somehow always on even footing with a firm of whatever size in his employment contract and terms. To not insist this is always true strikes the Constitution in Exile crowd as an illegitimate extraction of private property from the business interest.

   There was also had a series of cases notably Hammer v Dagenhart (1918) which did not expand federal powers under the commerce clause when obviously set for social policy purposes, in this latter case child labor laws. In 1934 congress strengthened the railway labor act 1926 to again outlaw yellow dog contracts. This time the principle was upheld in a series of minor cases in 1937 and comprehensively by NLRB v. Jones and Laughlin Steel  "the judicial revolution of 1937" [Cushman, Cases in Constitutional Law, 6th ed]

  The Constitution in Exile movement seeks to overturn this glorious revolution, to which in its stead they desire to bring their comedy of restoration. Bringing back the days of Yellow Dog contracts and everything else.There is no shortages of targets: ---""many decisions of the Federal Communications Commission, the Environmental Protection Agency, the Occupational Safety and Health Administration and possibly the National Labor Relations Board would be unconstitutional", independent regulatory commissions, Some applications of the Endangered Species Act and Clean Water Act would be struck down as beyond Congress's commerce power.""(Cass Sunstein as quoted by Rosen in the NYT article)

 Significantly in that same article Michael Greve is quoted "Judicial activism will have to be deployed," he said. "It's plain that the idea of judicial deference was a dead end for conservatives from the get-go." I don't recall he repeated this on the Diane Rehm show.  Also; though, from Richard A Epstein, an article titled Undue Restraint - Why judicial activism has its place. (National review. 52, no. 25, (2000): 26)

  At the end of all this for all their posturing and bluff of inalienable natural law rights to property from which nearly any government activity is a taking. [Morris Cohen in the essay Property and Sovreignity proposed that private rights - property rights inevitably lead to - become - public or political rights. Coercive power over  individuals. Any right absolutely granted becomes a portion of state power]. They  come before public opinion or more rather a subset of the public, walking a wide berth around congress to approach the bench with confidences of a Pareto-like optimality, a sweet cornucopia labeled private from which magic issues, in one hand, and a terrible vision of deprivation, the destruction of the individual in society in the other. This is a quiet shifting of essential arguments from intrinsic right to more pragmatic possessory even instrumental justifications. There is in their catspaw creep an implicit admission that the instant of social compact is every instant. Property is agreement and the Government of the people is its instrument.

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2005 Paul Bushmiller.
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