A CALIFORNIA COURT’S DECISION DEFINING BUMBLE BEES AS “FISH” IS A LOSS — FOR CALIFORNIA COURTS

Last week, the California Supreme Court decided to let stand a lower appellate court decision holding that bumble bees are “fish” under the state Endangered Species Act. Chief Justice Tani Cantil-Sakauye, anticipated (quite correctly!) that her ruling would puzzle the public. She wrote:

…[O]ur decision not to order review will be misconstrued by some as an affirmative determination by this court that under the law, bumble bees are fish. A better-informed observer might ask: How can the court pass up this opportunity to review the Court of Appeal’s interpretation of the Fish and Game Code, which seems so contrary to common knowledge that bumble bees are not a type of fish? Doesn’t this clear disconnect necessarily amount to “an important question of law” … warranting this court’s intervention, because the Legislature could not possibly have intended such a result?

Were things always that simple.

Well, as a matter of fact, some things are always that simple. It is, and always has been, a simple fact that bumble bees are not fish. Pretending that the law provides otherwise – even while acknowledging that “the Legislature could not possibly have intended such a result” – is worse than judicial error. It is a self-inflicted wound on the credibility of that beleaguered branch of government. Polls show that in recent years the public has already been losing confidence in our judicial system. Little wonder.

How did this happen?

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OUR FIRST LIBERTARIAN PRESIDENT?

For many ordinary Americans, politics has become an unpalatable pastime, too distasteful to digest or follow. It seems incredible that in a country of 330 million, the foremost political leaders are Joe Biden and Donald Trump, two men of low character and of lower, if any, principles.

That may explain why Troy Senik’s biography of Grover Cleveland, A Man of Iron, arrives as such an unalloyed joy. Turning from cable news to Senik’s work is like emerging from a fetid swamp to find oneself alongside a pristine brook.

Many see in Cleveland our first  and perhaps only outright libertarian president. He was a firm exponent of laissez faire economics, federalism, the gold standard, and anti-imperialism. Granted, to describe him as a libertarian runs the risk of over-simplification. His politics were more nuanced than that. For example, years before Teddy Roosevelt made conservation popular, Cleveland was setting aside forest land in Wyoming’s Grand Tetons, Washington’s Olympic Peninsula, and South Dakota’s Black Hills.

Still, the libertarian label is more accurate than not.

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CRITIQUING LAND ACKNOWLEDGMENTS

Unless you are a hermit, you have probably listened to a “land acknowledgment.” These are short statements uttered before social gatherings, acknowledging the prior possession of the land on which the events are taking place by indigenous peoples. Originating in Australia, New Zealand, and Canada, they have become popular in the United States, and are now regular features in theaters, sports arenas, academic conferences, college commencement ceremonies – and even private family gatherings.

Land acknowledgment details may differ depending upon the event and the attendees, but certain characteristics apply more or less consistently. The statement is delivered in solemn and serious tones. The Indian tribe or tribes identified in the statement are portrayed as innocent victims, and their land described as “ancestral” or “unceded,” thus implying that the non-Indian attendees are trespassing. For the most part, the statements are gentle. Few go as far as the Northern California ACLU, whose website advises readers that land acknowledgment statements help us “confront our own complicity in genocide.”

These statements do carry educational value. They remind us that the conquest of the North American continent by settlers of European heritage was accompanied by massive, often monstrous mistreatment of the native peoples. And learning about the people who earlier inhabited one’s place of birth or residence is always a laudable undertaking.

Yet at the same time that land acknowledgments have proliferated, so have criticisms.

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A HISTORY OF JUDICIAL VIOLENCE

Are we witnessing an upsurge of violence against government officials?

Congress is holding hearings on the January 6 riot, during which the physical safety of the Vice President was threatened by a mob chanting “Hang Mike Pence.” Nicholas John Roske was arrested at 1 am outside the home of Justice Kavanaugh, while carrying a suitcase containing a Glock 17 pistol, a tactical knife, ammunition, hammer, crow bar, and other equipment useful for breaking into a home and murdering its inhabitants,

America has experienced a long history of political violence. Four American presidents – Abraham Lincoln, James Garfield, William McKinley, and John Kennedy – have been assassinated. Six others have survived assassination attempts: Franklin Roosevelt, days before he took office; Andrew Jackson, Harry Truman, Ronald Reagan, and Gerald Ford (twice) while in office; and Theodore Roosevelt, after he left office while campaigning for another term.

Fifteen members of Congress have been killed while in office, and an additional thirteen have been seriously wounded.

But this history of violence has involved the executive and legislative branches. Only one Supreme Court member has ever been the victim of actual violence.

The event occurred on August 14, 1889 and involved Supreme Court Justice Stephen Field. The assailant was a lawyer and former judge, David S. Terry. The characters and the circumstances are worth recounting, as they provide some perspective for the current turbulence.

Stephen Field
David Terry (Source: U.S. Marshals Service)

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HARVARD’S LEGACY OF SLAVERY

Thirty two years ago, a San Jose State University English professor named Shelby Steele published a short book entitled The Content of Our Character: A New Vision of Race in America. Steele perceived an unholy bargain between white and black Americans. Under its terms, whites, burdened with guilt for their history of discrimination, would exercise the power to bestow preferential treatment on blacks, and in return blacks, commanding the asset of innocence, would exercise the power to bestow absolution on whites.

Steele deemed the bargain harmful for both sides, but especially so for blacks:

I think the reason there has been more entitlement than development is … the unacknowledged white need for redemption – not true redemption, which would have focused policy on black development, but the appearance of redemption which requires only that society, in the name of development, seem to be paying back its former victims with preferences. One of the effects of entitlements, I believe, has been to encourage in blacks a dependency both on the entitlements and on the white guilt that generates them.

Last month, in a letter to the “Members of the Harvard Community,” President Lawrence Bacow announced the release of a 134-page report documenting the history of Harvard’s “extensive entanglements” with slavery. At the same time, President Bacow  announced a $100 million commitment to implement the authors’ recommendations on “how we as a community can redress – through teaching, research, and service – our legacies with slavery.”

Is this an exercise in true redemption? Or is it an engagement in the kind of superficial trade-off that Shelby Steele analyzed three decades ago?

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WHAT DO MEN WANT?

Sigmund Freud, pop psychologists, and even Mel Gibson have pondered: What do women want? This post explores a different but equally important question: What do men want?

Conventional wisdom holds that men want sex — and plenty of it. Also wealth. And fame. And power. And then more sex, please.

Of course, men want those things. But there is something else they want even more. Something less physical, less palpable, but prized all the more for its ethereal value. Every man wants to see reflected upon his beloved’s face a look of pure adoration. Men want to see what we may call the “Ilsa Face.”

This is the face that Ingrid Bergman, as Ilsa Lund, casts upon Paul Heinreid, as Victor Laszlo, in Casablanca.

To discover the Ilsa Face, one must turn to the 40-second La Marseillaise” scene. Here is a link to it.  Readers may wish to take the time to watch before we move on to explore what men want.

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AFTER RUSSIA LOSES

Wars are unpredictable affairs. Experts can evaluate troop strength and weaponry. But morale and courage do not lend themselves to quantifiable analysis. Nor does leadership. No one can predict when a former KGB agent will become psychotic, or when a former comic will mutate from a Charlie Chaplin to a Winston Churchill.

But allowing for the uncertainty, it now appears likely that Russia will lose its war against Ukraine.

Russian forces are running out of supplies. There are reports of hungry Russian soldiers looting supermarkets and gas stations, desperately seeking food and fuel. Russian rations have been found bearing 2002 expiration dates, evidence of corruption within Russia’s military bureaucracy. That 40-mile convoy of armored vehicles, the subject of much speculation, has been stalled outside the capital for days, apparently unable to move. The reason may relate, again, to corruption. Reportedly, government officials bought cheap Chinese imitations of the Michelin XZL military tire, and the shoddy merchandise is failing, as counterfeits are wont to do.

Cable television maps show expanding Russian penetration into the country. But appearances are deceiving. Ukraine is very large, and the Ukrainian defense forces are trading territory for time. The further the Russians advance, the longer and more vulnerable their supply lines become. So while they may occupy more space, they are unable to capture many cities.

Moreover, it is not clear whether capturing cities represents any kind of victory. Russians troops may blast their way in, but once in, they lack the manpower to control. In the southern city of Kherson, military units were greeted by defiant crowds, jeering and calling them “fascists.” In one video, a local resident can be seen climbing up on a Russian armored personnel carrier, triumphantly waving the Ukrainian flag while local citizens cheer. From the video, it is hard to tell who has conquered whom.

Russia has now committed all of the personnel mobilized for the invasion. There are no remaining reserves. Russian casualties are much higher than expected. Ukrainian military officials recently claimed the figure exceeds 11,000, while Russia put the figure at a much lower 498. Both figures may be dismissed as propaganda, but the actual number doesn’t really matter. What matters is that Russia has become so desperate for manpower that it is hiring Chechens, and offering large cash payments to Syrians, to fight in Ukraine.

The bombing of civilian targets, however inhumane, is another sign of weakness, not strength. Putin and his commanders would not be unleashing this misery if they thought they were winning. Instead, they would be preparing to install a puppet government to rule a sullen and subdued populace. Bombing civilians just stiffens Ukrainian resolve. It is the military equivalent of a childish temper tantrum, and further evidence that Russia is losing.

Anything can happen. But in view of what is happening so far, it may be time to start planning for Russia’s defeat. And that planning should begin with this somewhat counter-intuitive realization: historically, Russia and the United States have been friends, not enemies.

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IN PRAISE OF MISINFORMATION

The latest justification for censorship is the need to suppress “misinformation.” The enemies of misinformation see themselves, not as censors, but as public guardians engaged in a campaign of self-defense.

Critics of Joe Rogan have justified their efforts to pressure Spotify to drop his popular podcast by accusing him of endangering the public health by hosting guests skeptical of the Covid vaccines.

In his defense, Rogan posted a 10-minute video on Instagram, in which he addressed the subject of misinformation generally. Rogan gave three examples of contentions which were once deemed “misinformation,” but which are now either accepted as true or at least considered plausible: 1) even if you are vaccinated, you can still catch and spread Covid; 2) cloth masks don’t work; and 3) Covid came from a lab leak.

Rogan, a former stand-up comedian and ultimate fighting commentator, does not fit the classical profile of an intellectual. And one might quarrel with his descriptions of these contentions (for example, while experts have long advocated the use of masks, there has never been widespread advocacy of cloth masks in particular).

But Rogan’s basic point is valid and perceptive: yesterday’s “misinformation” may become tomorrow’s accepted truth. Indeed, Rogan may have understated his case.

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WHEN TEDDY ROOSEVELT HAD WINSTON CHURCHILL TO DINNER

The lives of Theodore Roosevelt and Winston Churchill overlapped, but they met in person only once — at a dinner in the Governor’s Mansion in Albany, New York on December 10, 1900. The 42-year old Roosevelt was about to relocate to Washington DC to assume his duties as Vice President. The 26-year old Churchill, who was visiting America to shore up his finances by a lecture tour, was about to take his seat in Parliament.  

What happened at their dinner is unknown. But to the extent historians have noticed the dinner (which isn’t a large extent[i]), they have accepted the view, first attributed to Roosevelt’s daughter Alice, that the two men did not get along because they were so much alike.[ii] As Robert Pilpel, in his Churchill in America 1895 – 1961, put it: “It was a case of likes repelling.”[iii]

But was it?

We will never know for certain because the witnesses are not available for deposition. But based on the evidence, the “likes repelling” theory is unpersuasive. Something else, something deeper, was afoot.

Let’s review the record, starting with Winston Churchill’s reaction to the dinner.

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ABORTION DISTORTIONS

Truth in advertising is a legal requirement in the United States. But truth in advocacy often gets a pass. The polemics surrounding the abortion issue makes that manifest.

Abortion is in the news again, thanks to the live coverage of the Supreme Court oral argument in Dobbs v. Jackson, a case testing the constitutionality of a Mississippi statute banning most abortions after 15 weeks.

Few issues arouse as much passion as abortion. It’s not hard to see why. Depending on one’s perspective, abortion is about a woman’s right to control her own body, free of governmental interference. Or it is about an unborn child’s right to survive and to avoid physical extermination. As the late constitutional law professor John Hart Ely noted in his often-cited 1973 Yale Law Journal article on Roe v. Wade, “the moral dilemma abortion poses is so difficult as to be heartbreaking.”

This essay does not attempt to evaluate the merits of either side of that moral dilemma. Rather, it examines how each side uses language to legitimize its positions and denigrate those of its opponent. Some might excuse such textual manipulation as zealous advocacy. But it borders on dishonesty, and makes this inherently contentious issue even more inflammatory.

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