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June 29, 2005: Some Thoughts On The Separation Of Church And State On Monday, the Supreme Court of The United States decided two companion cases involving the placement of the Ten Commandments on government property. In one case, someone challenged the display of The Ten Commandments inside some courthouses, while in the other, a challenge was brought against the display of a 6-foot-high monolith on the grounds of the Texas State Capitol. Both challenges contended that the displays violated the “Establishment Clause” of The First Amendment. The Establishment Clause provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." In theory, the Establishment Clause provides for the separation of church and state. In theory. In practice, the results prove otherwise. For example, the Supreme Court has approved government-funded school vouchers for religious schools, allowed the display of a menorah outside a county building, and upheld legislative prayer sessions. Oftentimes, the Court’s opinions result in a divided court, and, of course, Monday’s decisions proved no exception. In each case, Justice Breyer cast the deciding “swing” vote. In his view, the six-foot monolith of the Ten Commandments didn’t violate the Establishment Clause, but the display of them inside some courthouses did. Justice Breyer’s reasoning for allowing the display outside resulted from its unchallenged presence on the Texas Capitol’s grounds for over forty years. Or, in other words, the failure of anyone to contest the display over several decades indicated to Justice Breyer that its presence was neither intimidating, nor coercive. Unlike Justice Breyer, Justice Scalia had no difficulty concluding that both displays were proper. He wrote a short concurrence in the case upholding the outside display, and penned one of his typical, lengthy, and harsh dissents in the case disallowing the inside display of the commandments. As Justice Scalia reasoned, religion (especially Judeo-Christian practices) have influenced our history, government and traditions, and nothing in the Establishment Clause prevents a State from acknowledging or honoring God in either case. Although I disagree with both Justice Breyer’s and Scalia’s conclusions, I have more difficulty accepting Justice Breyer’s vote to sustain the outside display. Everyone familiar with these cases knew Justice Scalia would sustain both displays. He’s made his opinion clear in Establishment Cases, which revealed itself in his remarks and questions during the oral argument of the Texas case. But I’m wondering why Justice Breyer thinks that the failure of anyone to object to the outside display for forty years basically estops the first person to challenge the display from arguing that the display is coercive or intimidating. As I see it, maybe the failure of anyone to raise a challenge to the display on the Texas Capitol grounds resulted from the initimidation of the community that would arise in reaction to the challenge. After all, Justice Scalia tells us that most of us believe in a monotheistic God. What do you think would have happened to someone in the 1960s if he or she had decided to file a civil rights action against Texas challenging the Ten Commandments display there? Look. It’s easy for anyone to sit here and criticize the decisions. But I don’t think this was a tough one. Justice Breyer’s basically saying, “Hey, it’s no big whoop because nobody’s complained about this before, and if it were so divisive, someone would have complained by now. And if I find this display in violation it’s going to upset people and produce more divisiveness.” But that begs the question of the case, doesn’t it? And it discounts the reality that people don’t always speak out against things they find offensive.
June 28, 2005: Kelo Dissent T-Shirts And Mugs Here’s Justice Thomas’. And here’s Justice O’Connor’s. They’ll go great with your purchase of your collector’s copy of The Bench Bunch dvd set. [Tip o’cap to Randy Barnett at The Volokh Conspiracy for the links.] DISCLAIMER: The Bench Bunch dvd set is not included with any purchase(s) of the above t-shirts and/or mugs because, um, I only imagined it. As if that weren’t obvious to anyone.
June 27, 2005: One Of My Favorite Literary Passages The end of the Supreme Court’s term calls to mind this favorite literary passage of mine: `I don't know what you mean by "glory,"' Alice said. Poor Humpty. He really was a man ahead of his time.
The Supreme Court strikes down Ten Commandments displays in courthouses. Justice Souter wrote the majority opinion; Justice I am pleased with the Court’s ruling involving displays in courthouses, which surprised me. With this decision, Justice O’Connor moves up some notches in my personal rankings of Supreme Court Justices. (She has a ways to go, however, to pass even Justice Souter in my rankings.) Here’s the link to Justice Souter’s opinion. For anyone that cares, I will post my thoughts on separation of church/state issues later today or tomorrow.
While we continue our debate below on property rights, our Congress continues its movement to adopt an amendment to the Constitution that would ban desecration of the American flag. I had planned to devote my second “legal rant” to this issue--until I read WabiSabi’s post on the First Amendment this evening. I couldn’t have said it any better, Jim.
June 26, 2005: HELP!
Jim at WabiSabi has solved the mystery of my wife’s missing lilies. Cynic that I am, I suppose I should have seen this happening sooner or later, and now that I know the truth, I no longer harbor any ill will or resentment over the incident. Phew! I’m too happy and exhausted now to post my second legal rant!
To anyone out there in internet land who decries the outcome of yesterday’s ruling in Kelo v. New London, here’s my message for you: GET OVER IT. And, no, I don’t like the case’s result, which allows the City of New London, Connecticut to bulldoze people’s homes to make way for a waterfront hotel at the center of a new “small urban village.” But, folks, this ain’t nothin’ new. It’s been goin’ on for decades in every city, village and town across our nation. Everytime I pass Corridor G near my home in West Virginia, it’s not like I see a Wal*Mart parking lot with only a couple cars or empty bags blowin’ in the wind like in American Beauty. If you want continued access to your dvds, toasters, frozen waffles, aspirin, diapers, designer jeans, plastic coffee mugs, greeting cards, petroleum jelly, or steel-belted radial tires, then you’d better accept that corporations dominate the landscape of America and that this phenomenon results from the evolution of our industrial culture. You want to stop your local government from condemning your property to build that arts center that you so despise? Then I suggest that you learn to live without all those luxuries to which you’ve grown accustomed. Go back to nature, sow those seeds for your fruits and vegetables, and, if you’re into eating animals like I am, purchase yourself some chickens and cows. And, of course, get several million other folks to follow your example. Maybe then the corporations won’t take your land because they won’t have all that money that you and your buddies willingly gave them when you just had to have the latest copy of that U2 album or that sparkplug for your used 1999 Camry. I don’t see any of you “blawgers” complaining about your notebook computers, your finely-crafted three-piece suits or your cellphones that you need when you’re busy making arguments for your clients, many of whom buy Pfizer’s health care products. I don’t see you decrying your municipal fire, police, or trash services, or picketing shopping malls today, either. And, of course, I don’t hear any of you suggesting an anarchy. An anarchy wouldn’t involve any government or its exercise of eminent domain when it wanted to take your property to build that bodacious shopping mall--that’s assuming, of course, that your bigger, badder and nastier neighbor didn’t beat you to a pulp (or worse) and take it from you when he exercised his “freedom.” So, for you “blawgers” who think that yesterday’s decision signals the end of property rights in America, I suggest you think again about what it means to be governed by rules that determine your property rights and what an industrialized society’s progress may often entail. And I lovingly dedicate today’s rant to you. Stay tuned for Legal Rant II.
June 23, 2005: Donutbuzz v. Doe Someone cut several blooms of the lilies my wife planted in our front yard. My wife loves to plant things, but she seldom has time to tend to gardening. This cruel trespass against her flowers upset her greatly, and you can read about it here. When my wife first mentioned the matter to me on Tuesday afternoon, it enraged me for a couple reasons. Based on my initial impression, I assumed that someone cut the flowers during broad daylight that day. This is because as I remembered the morning’s events, I recalled having seen all the blooms on the lilies when I left for work. Also, I should mention that my wife planted the lillies directly beneath the picture window in our front room--and the thought that someone would be brazen enough to engage in this cruel behavior in such close proximity to us troubled me. Later that morning, I mentioned the matter to some friends. One suggested that a deer could account for the damage to the lilies. As a city boy and a husband still enraged over someone’s cutting his wife’s flowers, however, I scoffed at such a notion. I refused to believe that a deer would wander into our neighborhood, pass several other houses whose lawns rival anything displayed on the cover of a Better Homes and Gardens magazine, and chomp on the few meager lillies and hostas in our yard. I also could not fathom a deer surviving the trek from the new deforestation zone around Yeager Airport, crossing the interstate--where several deer carcasses on the roadsides often greet me on my daily drive to work these days--and bounding over the hills without encountering some disaster. No offense to anyone who has had deer destroy their gardens, but I found the “deer notion” ludicrous. But yesterday evening, before American Electric Power ruined the first post I created on this, my wife prompted me to reconsider my opinion on who--or what--destroyed her flowers: My Wife: When you left for work yesterday morning, did you see the blooms on the lillies? Me, The Husband: Yes. My Wife: I can’t remember for certain if I saw them that morning. Are you certain you saw them? Me, The Husband: I’m pretty sure that they were there. But, you know, I cannot be 100% certain of this, either. My Wife: So a deer might have eaten the blooms before you left for work? Me, The Husband: Anything’s possible--but I don’t think a deer did this. My Wife: Do you have any picture or other physical evidence to suggest that my lilies were intact when you left for work on Tuesday morning? Me, The Husband, Realizing That He’s Lost This Case: Uh. . .No. My Wife: Then other than your opinion, you have no evidence to refute the scenario that a deer ate my flowers, isn’t that correct? Me, The Husband, Who Slightly Embellished His Wife’s Last Couple Questions For Poetice License Purposes: No, I don’t. So, for all of you who suggested that a deer ate my wife’s flowers, please accept my heartfelt apology. A wise person noted that politics is about the art of the possible, and I have changed my mind on this matter. But I just think it’s a shame that I’m the lawyer in the family.
June 22, 2005: West Virginia Powerless The actual post I wanted to share with you tonight will have to wait thanks to yet, another power Thanks, guys!
June 21, 2005: A Modest Proposal, West Virginia Style We have an important vote in a few days that will decide the funding of West Virginia’s public pension debts. Governor Manchin wants us to approve the issuance of $5.5 billion dollars in bonds, the proceeds of which the state will then invest in the stock market. Area mogul, Don Blankenship, the head of Massey Energy Company, opposes the idea and currently sponsors his own media campaign against the bonds. (Dave Peyton offers a nice take, as usual, for the Daily Mail on this issue. And, of course, offroute--old buddy, old pal of mine--sparked some excellent debate on this last week.) I’ve discussed the bond vote with several people, and everyone I’ve spoken to still hasn’t decided how (or if) they’ll vote on Saturday. And I admit I’m one of them. A vote in favor of the bonds will avoid additional taxes in the short term. But the plan for investing the bonds’ proceeds still isn’t clear, and, even assuming the stock market returns remain consistent with past yields, any investment in the stock market still involves risk. (And yes, I am aware of the advantageous yields stocks have over every other investment in the last century. But has Governor Manchin or anyone in his administration explained what specific investments we’ll make should the voters approve the bonds? I didn’t think so--and with few days left to decide, the details of the investment plan remain vague, at best. Don’t believe me? See for yourself.) Let’s face facts: If Governor Manchin had vetoed the judicial pay raises, we probably wouldn’t be facing this Hobson’s Choice on Saturday. And whether we, the people, approve the bonds or not, the stark reality is that most of us won’t see a vast improvement in economic conditions in West Virginia whether this amendment passes or not. Neither the prospect of increased taxes or failed stock market investments that lead to the same strikes me as palatable. And the current obfuscation involving the use of the bond proceeds prompted my thoughts on some alternative applications for this prospective $5.5 billion. As I see it, why should we, the West Virginia people, deliver our hard-earned income to some hard-hearted out-of-state corporations and their accountants, bankers, lawyers and underpaid support staff when we can devote these billions of dollars to our very own heartless in-state companies and their minions? At the very least, keeping the money here at home assures that if only the wealthiest among us prosper from the investments that they’ll still have to employ us remaining ne’er do-wells as their Here’s my “modest proposal”: Next time our legislature wants to raise the salaries of our judges by $26,000 and we need to insure the solvency of their mammoth pensions, let’s include an actual, specific investment proposal with the bond amendment that will guarantee solid returns for several future decades. There are several excellent alternative investments in our future that should come to mind: 1. Build a NASCAR speedway. Joe, people will come, Joe. They'll come to West Virginia for reasons they can't even fathom. They'll turn up your Governor’s mansion driveway not knowing for sure why they're doing it. They'll arrive at the Robert C. Byrd NASCAR track as innocent as children, longing for the past. Of course, we won't mind if you host your tailgate party outside the new track built with part of all that $5.5 billion in proceeds from bond sales to pay our judges’, troopers’ and teachers’ pensions, you'll say. It's only $85 per person. They'll pass over the credit cards without even thinking about it: for it is credit cards they have and an official West Virginia NASCAR track that they lack. And they'll walk out to the bleachers; sit in shirtsleeves on a perfect afternoon. They'll find they have reserved seats somewhere along one of the hairpin turns, where they sat when they visited another state’s NASCAR track and cheered for Petty and Earnhardt. And they'll watch the NASCAR race and it'll be as if they dipped themselves in magic NASCAR waters. The memories will be thicker than the smoke after that accident involving Labonte and Gordon in the first lap of the 2005 Golden Corral 500. People will come, Joe. The one constant through the last fifteen years, Joe, has been NASCAR. America has rolled by like an army of steamrollers. It has been erased like a blackboard, rebuilt and erased again. But the advent of NASCAR has marked the time for over a decade. This NASCAR track, this race: it's a part of us, Joe. It reminds West Virginians of all that once was good and it could be again. Oh... people will come, Joe. People will most definitely come. . . . 2. Film an epic motion picture here. Assuming NASCAR doesn’t pass muster with the voters, there’s always movie-making. And with Jennifer Garner and Ben Affleck on Hollywood’s A-list, no time’s better than the present. Peter Jackson made the Lord of the Rings trilogy for $300 million. Five and a half billion bucks will get you at least a dozen blockbuster movies, which could include Daredevil 2, Rush Hour 3, Austin Powers 4, and another Freddy v. Jason. And with Danny Boyd in the area, we wouldn’t need to hire an out-of-state director. We make few films for about $80 to $100 million, they earn about $200 to $300 million, and, voila--instant pension returns on our money! 3. Purchase Rite Aid. At the close of business Tuesday, Rite Aid had a market capitalization of 2.39 billion dollars. I figure we’ll have to offer a little more than that if we want to stage a hostile takeover. Let’s play it safe and say $4.5 billion is what it will take. It may seem like a lot of money to devote to one stock, of course, and I know many of you probably think diversification’s the way to go. But me, I prefer Mark Twain’s approach to investing: “Put all your eggs in one basket, and WATCH THAT BASKET.” By buying Rite Aid, we can not only earn returns to pay everyone’s pension, but we can also determine the cost of prescription medications for all West Virginians. 4. Microbrewery. Duh. 5. Expand Tamarack. Why should someone in Idaho have to visit Tamarack in West Virginia to select a handmade quilt when she can visit her friendly neighborhood Tamarack in Boise? That’s my vision. If Wal*Mart can create an international merchandising juggernaut based on mostly sales of plastics and frozen food, then surely we can promote our Tamarack on a national level. And $5.5 billion should do it. Of course, there are still a couple more days to consider other investments that offer better returns than the current proposal. I’m sure you can figure several in that time. Maybe by then I’ll have my vote on this pension thing figured out, too.
June 19, 2005: Father’s Day 2005
June 19, 2005: How To Sell To Me Let me make a suggestion to any salespersons who might read this: Don’t nag me. The more you nag me, the less I like your sales technique. And the less I like your technique, the greater the chance that I will not buy something you want to sell me. Please don’t take this as an insult. I know you mean well because my gut instinct never fails me. But if I were to buy something from you based on your innate goodness that I sense, I’m actually doing you a disservice, and you’ll never learn how to sell to someone not blessed with a sixth sense about these things. So when you ask me if I’m looking for something particular the first time, and I tell you “I’m just browsing, thank you,” please, please, PLEASE, do not mistake my response for an invitation to approach me again in the next aisle of books eight minutes later and ask me more questions about my book selection process. That really pesters me. When you first approach me to deliver your sales pitch, I also urge that you don’t deliver it in Yiddish, either. I do not wear a yarmulke, and I have no idea why anyone would assume I speak Yiddish. But, believe it or not, I have had this happen to me on at least one occasion before when I was browsing for a new pair of shoes in New Orleans. And I’m not taking any chances anymore. Should you happen to spot me in your store and notice that I do, indeed, sport a yarmulke over the ever-increasing bald spot on the top of my head, that would constitute the lone exception to the previous rule, and you may initiate a conversation with me in Yiddish. I won’t comprehend anything you say, of course. But you will greatly amuse me and your unintentional humor will encourage me to purchase more things that I do not really need from your store. I don’t mind the occasional appeal to my vanity, either. But please be realistic and sincere. Both you and I know that I do not resemble Brad Pitt, George Clooney, or the pre-1990 Harrison Ford. And simply telling me how handsome I look in that green-checkered tweed jacket won’t guarantee your sale. This is especially true if your store only sells books. And, finally, if you see my wife while she’s watching the kids in the children’s section of your store, by all means, do NOT suggest she purchase anything NASCAR-related for me. Because she has no idea about the passion I have for this sport or my secret life as a successful, professional, Yiddish-speaking NASCAR driver.
As an eternal optimist, Dad wouldn’t want me to dwell on the sadness of his passing, and, believe me, I try to avoid doing so. But every Father’s Day (and February 20th), I remember the times we shared celebrating his fatherhood or his birthday, and I get melancholy. Shortly after his death, I found the picture on the right, framed it, and placed it on my office desk. I didn’t want to remember him as the frail, ailing man in the intensive care unit who days before had trouble drinking an ounce of soup from the spoon I held to his lips. I wanted to remember him as the young, vibrant father who carried me upstairs after I fell asleep on the couch in our den or who crushed tennis balls past me on the public courts in Charleston. It’s 1961. My Dad’s twenty-four. He had returned from his travels overseas. He wouldn’t meet my mother for another year. He wouldn’t father me for another six years. And this picture and the story about his travels is featured in his local paper in Portsmouth, Virginia. But now, I’m the father. And when I showed Seth the picture of his Granddad Fred, he stumbled over the words: “Ba-Ba Fred.” “Yes,” I said, “Grandpa Fred.” “Go see, Ba-Ba Fred,” Seth said. “Go see.” I guess Father’s Day will always be bittersweet for me.
June 13, 2005: Where Do You Want To And all after Larry and Sergei told us this--My human rights lovin’ ass.
June 12, 2005: Sometimes I Dream In Color And It’s About An Imaginary DVD I Reviewed For Amazon
June 9, 2005: Another Admission You Won’t Hear Me Make In Court I find Cokie Roberts very pleasing to my eyes.
June 8, 2005: An Admission You Won’t Hear Me Make In Court Sometimes when I’m sitting at the computer, I wish I were like Samantha Stevens and I could conjure a carton of donuts simply by twitching my nose. Then I remember that I can’t twitch my nose and I get sad.
After WabiSabi reminded us of National Doughnut Day (see following post, I’m too busy to archive my posts for June now), I did a search for some other “donut” weblogs. I found several, but, thankfully, no other “donutbuzzes.” But I still feel it is my duty to report this. I’ll leave it to Lawbot, Offroute and Hippie Killer to address the matter as they deem fit. By the way, with our growing community of West Virginia bloggers, does anyone else believe that we should establish a “doppleganger” watch to secure and protect our blog titles? Although the prospect of anyone copying Dave Peyton or Don Surber’s weblog titles remains remote, I’m worried about the prospect of someone copying Darbi’s BearWaller Holler name.
For the second consecutive year, I missed celebrating National Doughnut Day. My thanks goes to Wabi Sabi for the catch and his nice exposition on the history of this momentous day. And I offer my apologies to anyone who relied on me for this information, and I hope my mistake will not result in loss of your friendship and/or readership. The bad news: We’ll all have to wait until next year for that free Krispy Kreme donut (spelled without the “ugh” as Raging Red knows because if and when I decide to sellout and accept those advertising bucks, I owe her some serious royalty payments for that “because you can spell ‘donut’ without using ‘ugh’” tagline I’ve used). The good news: It looks like I’m not the only donut who forgot to celebrate National Doughnut Day this year. Rest assured that I will not forget to remember to celebrate National Donut Day again. And, yes, I spelled “donut” without the “ugh.” I now offer for your enjoyment a picture of some horses:
June 6, 2005: Summer Fun Photographs I had a decision to make tonight. Do I offer my thoughts on today’s United States Supreme Court’s decision in Gonzalez v. Raich? Or do I post some more pictures of my children enjoying the beautiful day? I think we can all agree that my decision wasn’t difficult.
June 5, 2005: My Ben & Jerry’s Ice Cream Review Summer’s here and it’s time for the reviews of my favorite Ben & Jerry’s Ice Cream flavors. I’ll begin with my current indulgence: Karamel Sutra.
Look: Ben & Jerry’s packages its Karamel Sutra in its standard “one pint” container, pictured at left. Cost: Varies from $2.50 (when on sale at 2-for-1 at Washington Street Kroger’s) to $3.69 (heh heh). Fat content: Here’s a clue--It’s “encircled by chocolate and caramel ice cream and fudge chips.” Serve with: Any episode of The X-Files or Lost (or your favorite book in lieu of television and/or movies on dvd). Taste orgasm factor: No ice cream equals the wonder of an actual sexual orgasm. But tasting Karamel Sutra’s damn close. If you’re alone, forego the internet porn and enjoy this instead.
June 5, 2005: Farm Fresh Photos We’re back from our visit to the farm.
June 2, 2005: West Virginia Legal Fashion Update With the Fourth of July right around the corner, now’s a good time for an update on “what’s hot and what’s not” involving First Amendment T-shirt fashions in the greater Kanawha Valley. Let’s review, shall we:
And remember, a good patriot never forgets to use his or her sunscreen when exercising the right to bare arms. Now, if you’ll excuse me, I need to find my yarmulke.
June 1, 2005: Secret’s Out. . . W. Mark Felt has been revealed as “Deep Throat.” Now his family seeks to cash in on the fame. I guess the only questions that remain now are: 1) When can we expect the airing of “The Real World: Deep Throat Family Edition” on MTV; 2) Mr. Felt’s obligatory Dr. Phil appearance; and 3) The photo session with Paris Hilton.
Here we go again with the somewhat obligatory disclaimer crap. All content herein is copyrighted by me. My identity is obvious if you spend a few minutes navigating these pages. I hope you enjoy the content. Feel free to share any images you want as long as your definition of sharing doesn’t involve selling something I made as yours or sellling my stuff as mine but not sharing your moola with me after you’ve sold it. E-mail is also welcome. Thanks. |
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This weekend marks another Father’s Day without my 
What it is: “A Core of Soft Caramel Encircled by Chocolate & Caramel Ice Cream & Fudge Chips”
If it weren’t obvious from the banner or my 
And if it weren’t obvious from 
