I’m throwing out S.3929 which can be found via search of Thomas. Citizens should read this sort of thing and learn how to read legislation, in my opinion. But we need better disentanglers. The bill is made for hypertext and is almost impossible to read on paper because links are literalized. No habeas corpus here.
Category Archives: Rhetoric
Streets
The streets in the neighborhood aren’t very wide. I’m not sure even if street is the right word. Maybe road.
A friend of mine many years ago told me stories about moving from Toledo to the southwest where the big travel roads are called freeways. Where she came from they were called highways. These aren’t the same things. A freeway is about freedom of movement. A highway, on the other hand, is about elevated travel, moving high. She talked about trying to get from one end of town to the other and having trouble finding directions.
“How do I get onto the highway from here?”
“What’s a highway?”
So she had to use the new term to get where she wanted to go.
The notion of a freeway and a highway demonstrate different ways of describing, differentiating, and codifying travel and space. But they also mean different things in different places. My friend and I would talk about this, ask questions: “Why do they call them highways?”
“Why do you call yours freeways?”
Do road, street, freeway and highway imply more than tags or everyday terminology? We know that roads mean more than asphalt. Remember information “superhighway”? “Superfreeway” doesn’t sound right, but we know what the string was meant to do for the listener. We also know now that “superhighway” was the incorrect metaphor.
In linguistic history, street has structural, formal, and administrative meaning: an official road, made road, something built with a purpose beyond the simple directional path, which was simply the way people went. Road has random texture, a “we go this way, usually,” whereas street is direct manipulation. In Latin a street (strata) is a paved road. Thus in the Connecticut suburb, paved surfaces will be called roads not streets because the suburb is meant as country, a pastoral expression. In the suburb there are no street lights. Why? Because there are no streets.
We interact with freeways and highways. Both imply an expression of what people value. On the freeway, we are expressing a value for movement; on the highway, we express our ability to travel above ground.
Typically, a street is a thing over which people we don’t know travel. The road, a more intimate object, is used by the neighbors. The surfaces that help us get to farther places faster are denoted by abstracted, yet value-rich terms: free and high. State and position, being and technical accomplishment.
Con Jobs
“The officers made a good faith, but mistaken, effort to enforce an old unwritten interpretation of the prohibitions about demonstrating in the Capitol. The policy and procedures were too vague,” Gainer said. “The failure to adequately prepare the officers is mine.”
This is a con and a misuse of the language, just like the latest state of the union load, whose use of words fails to point to things that are real in the world. Again, the opposite of poetry.
Dylan as Hero
In the recent issue of Time magazine, Richard Corliss clumsily frames Bob Dylan as classic and mythical hero.
But it was his gift for synthesizing that sent him into the depths of the forest and allowed him to bring it all back home in teeming poetry set to ancient lays.
New London woes
Today the Supreme Court ruled on the pressing New London eminent domain case in support of the Connecticut Supreme Court, a decision that I find misguided and dangerous. I can’t say that I like agreeing with either Justice Thomas or O’Connor, who dissented, but in this case their arguments are to my mind reasonable and sane. From my point of view, the court continues its hands-off decisions, assenting to too much authority in the hands of the state over the individual. What follow are some snippets that I find interesting from the case. Links are in original and italics are mine for emphasis. Justice Stevens in his opinion writes this
Those who govern the City were not confronted with the need to remove blight in the Fort Trumbull area, but their determination that the area was sufficiently distressed to justify a program of economic rejuvenation is entitled to our deference. The City has carefully formulated an economic development plan that it believes will provide appreciable benefits to the community, including–but by no means limited to–new jobs and increased tax revenue. As with other exercises in urban planning and development,12 the City is endeavoring to coordinate a variety of commercial, residential, and recreational uses of land, with the hope that they will form a whole greater than the sum of its parts. To effectuate this plan, the City has invoked a state statute that specifically authorizes the use of eminent domain to promote economic development. Given the comprehensive character of the plan, the thorough deliberation that preceded its adoption, and the limited scope of our review, it is appropriate for us, as it was in Berman, to resolve the challenges of the individual owners, not on a piecemeal basis, but rather in light of the entire plan. Because that plan unquestionably serves a public purpose, the takings challenged here satisfy the public use requirement of the Fifth Amendment.
The problem that surfaces here is the confounding of eminent domain, “benefits to the community,” the idea of “public purpose,” all in the context of taxes, jobs, and the justice’s “deference.” Further, he writes
Promoting economic development is a traditional and long accepted function of government. There is, moreover, no principled way of distinguishing economic development from the other public purposes that we have recognized. In our cases upholding takings that facilitated agriculture and mining, for example, we emphasized the importance of those industries to the welfare of the States in question, see, e.g., Strickley, 200 U. S. 527; in Berman, we endorsed the purpose of transforming a blighted area into a “well-balanced” community through redevelopment, 348 U. S., at 33;13 in Midkiff, we upheld the interest in breaking up a land oligopoly that “created artificial deterrents to the normal functioning of the State’s residential land market,” 467 U. S., at 242; and in Monsanto, we accepted Congress’ purpose of eliminating a “significant barrier to entry in the pesticide market,” 467 U. S., at 1014-1015. It would be incongruous to hold that the City’s interest in the economic benefits to be derived from the development of the Fort Trumbull area has less of a public character than any of those other interests. Clearly, there is no basis for exempting economic development from our traditionally broad understanding of public purpose.
I agree that one of government’s jobs is to promote economic development (by staying out of peoples’ way as much as possible, yet restraining behavior that puts the public good in danger), but in the context of the above paragraph, there’s no strong connection being made analogically between the New London case and those cited , which is what I find as the greatest weakness of the 5 to 4. How do Berman, Midkiff, and Monsanto fit; hence, how would a nay opinion be incongruous? The question isn’t whether economic development has something to do with public purpose but whether the State has proven that its needs are greater than those of the individuals in “this” case. Oligopoly and blight aren’t at issue. “No principled way,” the justice writes. Bull. The latitude being given to a principle here is astounding. If Microsoft wanted to buy West Simsbury, proving to the state house that it would generate money and jobs, which I’m sure it would, how does Steven’s standard of judgement provide a legitimate framework for consistency (which to me is a public good)? And it’s not just Microsoft, it’s anyone who has more money than I do who could claim my property.
On the other hand, here’s what O’Connor has to say. She writes
Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded–i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public–in the process. To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings “for public use” is to wash out any distinction between private and public use of property
The Fifth Amendment to the Constitution, made applicable to the States by the Fourteenth Amendment, provides that “private property [shall not] be taken for public use, without just compensation.” When interpreting the Constitution, we begin with the unremarkable presumption that every word in the document has independent meaning, “that no word was unnecessarily used, or needlessly added.” Wright v. United States, 302 U. S. 583, 588 (1938). In keeping with that presumption, we have read the Fifth Amendment’s language to impose two distinct conditions on the exercise of eminent domain: “the taking must be for a ‘public use’ and ‘just compensation’ must be paid to the owner.” Brown v. Legal Foundation of Wash., 538 U. S. 216, 231-232 (2003).
The emphasis here is going to be on the concept of public use and providing a strict standard for its definition. O’Connor comments on the relevance of Steven’s earlier examples
The Court’s holdings in Berman and Midkiff were true to the principle underlying the Public Use Clause. In both those cases, the extraordinary, precondemnation use of the targeted property inflicted affirmative harm on society–in Berman through blight resulting from extreme poverty and in Midkiff through oligopoly resulting from extreme wealth. And in both cases, the relevant legislative body had found that eliminating the existing property use was necessary to remedy the harm. Berman, supra, at 28-29; Midkiff, supra, at 232. Thus a public purpose was realized when the harmful use was eliminated. Because each taking directly achieved a public benefit, it did not matter that the property was turned over to private use. Here, in contrast, New London does not claim that Susette Kelo’s and Wilhelmina Dery’s well-maintained homes are the source of any social harm. Indeed, it could not so claim without adopting the absurd argument that any single-family home that might be razed to make way for an apartment building, or any church that might be replaced with a retail store, or any small business that might be more lucrative if it were instead part of a national franchise, is inherently harmful to society and thus within the government’s power to condemn.
Furthermore
Even if there were a practical way to isolate the motives behind a given taking, the gesture toward a purpose test is theoretically flawed. If it is true that incidental public benefits from new private use are enough to ensure the “public purpose” in a taking, why should it matter, as far as the Fifth Amendment is concerned, what inspired the taking in the first place? How much the government does or does not desire to benefit a favored private party has no bearing on whether an economic development taking will or will not generate secondary benefit for the public. And whatever the reason for a given condemnation, the effect is the same from the constitutional perspective–private property is forcibly relinquished to new private ownership.
. . .
Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result.
It seems to me, despite the problems with the relevance of Midkiff et al, that the majority failed to live up to the simple test O’Connor brings up here: how far should we go in loosening the standard for defining public use as well as problematicizing the roles of individuals, private owners, and the extend to which the state should act on the behalf of either. I agree with O’Connor about the question of power here. Can we simply allow a tranfer of property from one holder to the next, even if a new holder could show “benefit”? I water, keep the lawn up, do some gardening, and pay my taxes. Certainly, though, some other owner could turn my property into a chicken farm and sell loads of fresh eggs. We could argue that neighborhoods and quality of life go hand in hand, but ultimately thats too arbitrary for the court. Here’s Thomas’ concluding statement
The Court relies almost exclusively on this Court’s prior cases to derive today’s far-reaching, and dangerous, result. See ante, at 8-12. But the principles this Court should employ to dispose of this case are found in the Public Use Clause itself, not in Justice Peckham’s high opinion of reclamation laws, see supra, at 11. When faced with a clash of constitutional principle and a line of unreasoned cases wholly divorced from the text, history, and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution’s original meaning. For the reasons I have given, and for the reasons given in Justice O’Connor’s dissent, the conflict of principle raised by this boundless use of the eminent domain power should be resolved in petitioners’ favor. I would reverse the judgment of the Connecticut Supreme Court.
I agree.
semester assessment
So all the grades have been submitted and there are a few things to note about this difficult semester, difficult for many reasons.
First semester composition in college teaches people a few things: to articulate ideas to a rational audience in Standard written English (pattern oriented), to evaluate ideas, and to assess their progress given a certain set of objectives. My students learned a lot and made good progress, but the progress was hindered by the “place” from which the students started, what they knew to begin with. It sort of like throwing people into combat without the required bootcamp or having them run a race one hundred yards behind the negociated starting block. The majority are still not ready for the basics at the start of the course and therefore where they end is not necessarily where I want them to be, ready for more content directed courses, such as Comp and Lit or Composition II or Econ.
I see this in later courses, such as Brit Lit. In that course, I require a research paper, but students still struggle with what a research paper actually is, and it’s hard to assess how much time I can actually take to explain basics, since I don’t know what they need to know. The basic reqs of a “research paper” are articulated in comp: it’s not about reporting or listing or articulating someone else’s ideas.
Issues:
1. Students coming into comp are still not familiar and comfortable with texts of multiple kinds, whether text or image-based (some would perhaps claim that our culture is image/visual oriented so students should be more learned in evaluation of images: this is nonsense). Texts are not part of their intellectual life, therefore they have a very difficult time with techniques such as documentation styles, paragraph ordering, and understanding a focus. In a way, a documentation style is an orientation, a way of picturing the phenomenon of writing and reasoning through writing. They are beginning to learn this, though.
2. Students coming into comp have a great deal of difficultly conceptualizing an audience and its needs. They have a difficult time, therefore, understanding where they fit as members of an audience other than one that is simply meant to consume goods (I must have) or survive day to day (I must work). They are learning this, though, or considering the concept.
3. Students coming into comp have a difficult time solving problems that have no predisclosed or disposed answers one or two of which may be correct. Confronted with a problem, such as a lack of data or multiple points of view or some new disclosure, they freeze or retreat into familiar answers. Here analysis is the enemy, because analysis and evaluation call for independent conclusions which could lead to failure, confusion, or ambiguity. But they are beginning to learn.
on political speeches
Just thought I’d drop this in. From George Orwell’s Politics and the English Language:
In our time it is broadly true that political writing is bad writing. Where it is not true, it will generally be found that the writer is some kind of rebel, expressing his private opinions and not a “party line.” Orthodoxy, of whatever color, seems to demand a lifeless, imitative style. The political dialects to be found in pamphlets, leading articles, manifestoes, White papers and the speeches of undersecretaries do, of course, vary from party to party, but they are all alike in that one almost never finds in them a fresh, vivid, homemade turn of speech. When one watches some tired hack on the platform mechanically repeating the familiar phrases — bestial, atrocities, iron heel, bloodstained tyranny, free peoples of the world, stand shoulder to shoulder — one often has a curious feeling that one is not watching a live human being but some kind of dummy: a feeling which suddenly becomes stronger at moments when the light catches the speaker’s spectacles and turns them into blank discs which seem to have no eyes behind them.
Hmm.
missing the numbers
This post at Crooked Timber examines issues with reporting figures in the news:
To put this in some perspective, the budget deficit last year was approximately $4000 per household. If you assign that debt to each household, the median income has fallen by something like 10% since Clintons time. Now that is obviously unfair because that cant be exactly how the deficit is made up, but its clear that on any reasonable assignment of the costs of deficit financing the overall performance is much worse than the 0.6% fall that CNN/Money is prepared to run with.
Also, Kash at Angry Bear cites a more troubling set of disclosures, troubling in the sense of a pattern that insinuates back into the post at CT:
The article [sic, refers to a subscription Economist article] does not address the obvious question, however: if there has been a sudden decrease in the quality of data on imports of intermediate goods and services (and I havent seen any direct evidence to support this theory, yet), then why did this just start happening 3 years ago? And why are the errors all in one direction, so that they understate US imports (rather than overstate imports or, as we would typically expect, have errors in both directions cancel each other out)? I don’t know the answers to these questions, though I think we can probably rule out one possibility right away: if it’s a tax avoidance story one would expect US firms to overstate imports, to make their US profits look lower so that they owe fewer US taxes.
Sometimes even source-checking can fail in terms of establishing statistical veracity. If the numbers are off, then what?
various turmoils
In terms of law and politics, lots of things are going on these days. For example, this from the Washington Post:
In offering to have an expert help him, Kopf noted comments earlier this week by Rep. Steve King that activist judges were using their positions to impose their personal views on the rest of society.
King, an Iowa Republican who sat in on testimony Monday, said outside the courthouse that the nation must re-establish the separation of judicial and legislative powers.
This “separation” sounds good to me. The context is a case in which U.S. District Judge Richard Kopf has “offered to let a medical expert help him decide a case challenging the Partial-Birth Abortion Ban Act to dispel possible perceptions of bias toward the plaintiffs,” goes the lede. Such a decision comes from this problem:
In offering to have an expert help him, Kopf noted comments earlier this week by Rep. Steve King that activist judges were using their positions to impose their personal views on the rest of society.
Sounds good to me. But, here’s King’s answer to the problem of activist judges and so-called “re-establishment” of separation of legislative and judicial powers:
King, who said he opposes abortion, said Congress should consider legislation that would prohibit judges from ruling on legislation dealing with certain subjects, including abortion and same-sex marriages.
Do away with activist judges by doing away with judges. Good answer. I don’t think any of this is a problem with activist judges. On the contrary, the problem may be with activist legislators. Sometimes the just get over it crowd just can’t get over it themselves. It may be that the definition of an activist judge is any judge who decides a contentious case favoring what King disagrees with, or, for that matter, what I disagree with. So be it. But I still think Section 2 of Article 3 is easy enough to understand.
Then there’s Justice Scalia up to more tricks. And this.
“Don’t tape my speeches!” Why not? Is this activist judging?
food and law
Bill H.R. 339, short titled as the Personal Responsibility in Food Consumption Act, street named, the “Cheeseburger Bill.” (Open the link and type in the bill no. at the search field):
The major text goes:
PREVENTION OF FRIVOLOUS LAWSUITS–The manufacturer, distributor, or seller of a food or non-alcoholic beverage product intended for human consumption shall not be subject to civil liability, in Federal or State court, whether stated in terms of negligence, strict liability, absolute liability, breach of warranty, or State statutory cause of action, relating to consumption of food or non-alcoholic beverage products unless the plaintiff proves that, at the time of sale, the product was not in compliance with applicable statutory and regulatory requirements.
The serious response: Frivolous here means: cases without merit. The bill, in my reading, doesn’t prevent cases from going to court, but it does limit how one defines “liability.”
Another question though: is this an example of the law evolving? Or is it the law “reacting” or “overreacting”?
One of the concepts that the American Constitution keeps delivering is the notion of interpretability. The fact that we still fight over ammendments to the document is a good thing.
Here’s my real response to the above bill (sometimes I wish I was in Congress so that I could write up funny-sounding bills and write overtly regulated law): “PREVENTION OF FRIVOLOUS BILLS AND DUMB TITLES–no bill shall be written that presumes to dictate or determine definitions of and for any rational human being as regards personal responsibility in association with the word food . . .”
Free societies, if free they are, come with all kinds of risks. Can we legistate out all of them in life?