Zombie Cockroaches!

Wasn't Vampira in the original?

Black v. Blue

I don't do much sports here but tonight is the happy occasion of the renewal of a cross town rivalry between UWM and Marquette in men's college basketball. Maybe I should say that it is (with luck) the beginning of one since the old series wasn't much of a rivalry. UWM never won.

Although my day job is now at Marquette, I graduated from Milwaukee. Those loyalties stick. I am perfectly fine with ringing out ahoya on most days, but not tonight. A few years ago, UWM, now with a Division I program, started agitating for a game with MU and there were about three years (2003-04, 20045-05, and 2005-06) when we almost certainly would have won.

But not this year. I've seen our team and I doubt that they will stay within 20. Still it's good to see the two schools play.

My outrage is selective? Your outrage is selective...

Political bloggers love to play pin the tail on the hypocrite. I do it too. I admit it. Nothing pleases us more than to be able to say that someone we disagree with has fed the goose but starved the gander. Given that there are very few human beings who can be absolutely consistent, there are always opportunities.

It's not a bad thing. Taking a principle and asking whether it applies to a different situation is a perfectly good way to clarify it.

But it does have this tendency to degenerate into a game of gotcha. Recently, I played the game to point out that there seem to be some rather serious legal questions surrounding Jennifer Morales proposing and voting on the extension of health benefits to the domestic partners of MPS employees. I looked at the state ethics code and the interpretations of the code by the ethics board. My point was not so much to accuse Morales of selling out the public for her own private benefit (I suspect that she'd favor domestic partner benefits even if she wasn't living with an MPS teacher) as to point out that there are apparently some problems with her acting on the proposal. I can see an argument in her favor (the city attorney has supposedly made it) and we know that legislators and public board members have to set their own salaries but, yet, there seems to be a rather substantial argument that she shouldn't act on this. And, even if she has a legal out, it certainly doesn't look good.

To the extent anyone has responded to this point, it has generally been to say that domestic partner benefits are a good thing. But that's no response just as it was no response to say that the cases that Annette Ziegler should have recused herself on but did not were decided correctly.

So I - and other people who raised the issue - were playing the game.

Anne Quimby Mathias has taken the game to a new level. She is playing a meta-version of the game, trying to pin the tail on the tail on the one who pinned the tail on the hypocrite. (If that's hard to follow, think of a dog.)Charlie Sykes raised the point about Morales' conflict. She is now accusing Charlie of inconsistency for never raising the fact that there are other board members who are married to MPS employees and who presumably act on employee compensation matters.

The domestic situation of those board members wasn't implicated by the domestic partner proposal. But I think the proper response to this is to double down.

Of course, the same issue applies to them. In fact, doesn't it seem a little cozy to have MPS board members married to MPS employees? If we are concerned with high ethical standards and avoiding even the appearance of impropriety, shouldn't these board members (or their spouses) resign? I know that Pundit Nation is concerned about integrity in public office because it has repeatedly weighed in on the Ziegler issue.

The tail, Ms. Mathias, is to you.

Be careful what you wish for

Political use of ethics charges seem to me to be the last refuge of scoundrels. (Note to the sensitive: that is a figure of speech, I am not calling any individual a scoundrel.)

The controversy is over the need for Justice Ziegler to recuse herself in a tax case being argued today. WMC is not a party to that case, but is participating as amicus curiae ("friend of the court") and has filed a brief supporting the position taken by the Menasha Corporation which, as you might imagine given WMC's policy preferences, would, if sucessful, tend to reduce business taxes. It apparently has also contributed to the expenses of the case.

WMC made a substantial independent expenditures in support of Ziegler's candidacy. Nothing in the judicial code of ethics requires a judge to either disclose these things to litigants (they are public in any event) or to recuse herself in cases where parties or their attorneys or amici have contributed to or otherwise supported her campaign. The code does, however, remind judges to keep in mind their obligations to act in an impartial manner when soliciting (to they extent they may be involved) or accepting campaign contributions. (Of course, she did not "accept" WMC's expenditures. They were independent.)

There is some consternation on the left over her decision to stay on the case. I don't find it all that persuasive. WMC did spend a great deal of money, but it is an advocacy group. It doesn't seek special favors as much as it tries to identify candidates who it believes will support it's position. It isn't even a party to the case. It simply supports a particular outcome.

I think my colleague Janine Geske had it right when she said that, if we require justices who have received campaign contributions to recuse themselves in cases where parties have contributed, we won't have a court. I think that recusals are particularly problematic on the Supreme Court which is a collegial court of last resort resolving important questions of law. There ought to be a presumption against recusal.

The left is proposing a standard that it can't possibly mean to consistently follow. Imagine that Justice Butler is reelected this spring. Assume (as I suspect will be the case) that WEAC makes independent expenditures on his behalf or PAC contributions to his campaign. Suppose (as I also think will eventually happen) a case comes before the court challenging Wisconsin's system of school financing. WEAC will certainly support that challenge. Do they want Justice Butler to recuse himself?

But we don't have to use a hypothetical. The Journal Sentinel reports that Justice Butler says that one of the lawyers for Menasha Corporation is my former partner Maureen McGinnity who contributed to Justice Butler's campaign and sits on his finance committee. Mo is very connected and wildly energetic. I am sure that her support is very important to Justice Butler.

(He apparently was late in reporting this. I suspect that was a glitch and not intentional given that the information is so readily available to anyone.)

Should he recuse? Only he knows but the fact that he will not strikes me as quite reasonable. I don't presume that he would sell his soul for campaign support. (Incidentally, there is nothing sinister about Mo supporting Justice Butler. Given her views on these matters, it is what I would expect.)

A friendly question

My Backstory friend Jim Rowen is concerned about political and social dialogue in our community. So am I. It's one of the reasons that I continue this blog which, to date, has resulted in neither fame nor fortune. Jim was concerned that Charlie Sykes characterized one of his posts about the blogosphere's Coexistential crisis as "hating" conservatives. He wrote:

And let me point out that I get along fine with any number of conservatives, including my "Backstory" (WMCS-AM 1130) roundtable colleague Rick Esenberg, the conservative blogger and Marquette Law School teacher.

Have we disagreed about many things? Of course. That's part of the reason Eric Von had us as regulars (I have fallen away: Rick is more reliable). But do I hate Rick?

Of course not. And I'd be shocked if he said he thought I do.

No need for JIm to be shocked. I am relatively sure that he doesn't hate or even dislike me, although I do recall a crack about my shirt and tie combination that wounded deeply.

And I disagree with Charlie's characterization of his post but still there is something about Jim's comments on the question of dialogue that lead to some questions. In a more recent post, he has this to say about Bumper Battle:

This nasty little Internet and media outburst in Milwaukee could lead to something genuinely useful, even uplifting: a productive moment in the community's history - - if powerful media owners and personalities that have decided, for now, to side with intolerance can make the break and shift towards dialogue, and then genuine community-building in Milwaukee.

This is a theme in Jim's writing on the topic. Talk radio, he says, "stirs the pot" and results in divisiveness.

Here's my problem. First, I draw a distinction between Belling and the rest of the conservative talkers. Whether by virtue of his chosen schtick or his personality, I think that he sometimes does cross the bound of reasoned and civil discourse. Only yesterday, for example, in discussing the effort to censor Walid Shoebat, I think he made some remarks about American Muslims that were irresponsible. But I could say the same about a number of commentators on the left.

But I don't hear that from Sykes, Harris and Wagner. I didn't hear it from McBride. They are, of course, entertainers and the need to draw an audience is going to cause them, from time to time, to oversimplify and even to take cheap shots. Given that they are out there every day, I am sure that you can find examples of times in which they were less than reasonable as I am sure that you could if you scoured this blog. I am probably a bit more careful about what I say but I am doing a different thing and my readers are measured in the hundreds and not the thousands.

Mostly what I hear on TMJ (I can't speak to Weber and McKenna because I don't hear them enough) is fairly mainstream conservatism. This is also what I read from Patrick McIlheran. I think that's what you get here. The uncomfortable feeling that I get from Jim is that he thinks that constitutes "stirring the pot" in some way that is harmful and ought to be abjured by responsible people.

So why I am fairly certain that Jim doesn't hate me (and I like Jim), I have a hard time seeing why, by his lights, I am not "stirring the pot" as well.

Does it stir the pot to say that taxes are hight and, if at all possible, should not be raised and even lowered?

Does it stir the part to notice the obvious facts that crime in certain parts of Milwaukee have gotten out of hand and that this seems to be related to a cultural breakdown that is unlikely to be remedied by summer jobs and midnight basketball?

Does it stir the pot to believe that changing the way that virtually everyone in virtually every place and virtually every time have understood marriage until about last Wednesday may result in unintended consequences?

Does it stir the pot to recognize the rather obvious fact that there is a virulent form of radical Islam that has taken over enough national governments and is followed by enough folks around the world to become a rather large problem?

Does it stir the pot to demand that light rail and other forms of transit be, you know, economically justified?

I doubt that Jim wants to say this, although I suspect that some would. But that seems a passing strange way to achieve dialogue and strive for inclusion.

I am not Panther proud tonight

I am not so happy with my alma mater just now. The University of Wisconsin-Milwaukee proposes to charge the Conservative Union, a student organization, $ 2500.00 for security costs in connection with an appearance of Walid Shoebat, a reformed PLO terrorist who speaks against jihad.

I know little about Shoebat. I understand that certain groups accuse him of being an "Islamophobe" and an evangelical Christian "extremist." For all I know, he may be both. It is clear that he thinks that virulent forms of Islam are dangerous and widespread. But that's not the point.

You never know how accurate a news report is, but it seems that the amount of the fee may have been set based upon the anticipated reaction to Shoebat's views. As a general matter, this is unconstitutional. The government has the right to charge for the cost of policing an event, but, in general, it can't set that fee based upon an assessment of the speaker's views and the likely reaction to it.

The paper notes that other universities have banned or restricted Shoebat speeches, but they are private institutions. UWM is a public university and, while it may impose reasonable time, place and manner regulation, it does not get to engage in viewpoint discrimination. Basing the amount of a fee upon what a speaker will say and how others may react to it does that.

Apart from its constitutional obligations, there may be an educational opportunity here. Mohamed Elsayed, President of the Muslim Student Organization, wants to know "[w]here is the boundary between freedom of speech and hate speech?" I can tell him. With the exception of a few very narrow categories (e.g., speech that will incite imminent violence)that aren't remotely implicated here, there isn't one. I wish that my school would have stood up for that. Bad timing for end of the year fundraising.

Dime store political psychology on Bumpergate

I know that I said I was done with Bumpergate but there is a residual point that are banging around my head and I need to it out of there so I can spend the rest of the preparing for next semester's Civil Procedure class and reading theology in connection with some scholarship that I am working on. Both require a mind freed of distractions.

Why was this the source of so much bloggy excitement? I posted twice about it even though I said that I wouldn't put the original sticker or the parody on my car. (The only thing on my car is a Marquette parking sticker and they made me put that there.)

There are cynical explanations. One is that the thing started with Charlie Sykes who serves as both a foil and a leader in Wisconsin's Blog World. Another is that it gave an opportunity for both sides to put on the silk of moral high dudgeon and that feels so good against the skin.

But I also think it touched on some of the fundamental differences that we have. My view is that the difference between liberals and conservatives is the emphasis they place on competing goods. We believe, at core, in much the same things but we assign them different values, often because of different assessments of empirical matters.

What follows is blog-abbreviated and thus oversimplified. Still I think that it is instructive.

One of the goods that left liberals place a high value on is the need to be solicitous of certain (but not all) minorities who they believe that the mainstream culture has treated or is likely to treat unfairly. They saw McMahon's parody as offending that value.

It's not that conservatives don't value that good, but they generally don't think that, in our time and place, it is quite as salient as a guiding principle for public action as their friends on the left. They are more interested in active (and personal) virtues (by this I mean something other than tolerance or voting for what are perceived to be morally superior social policies). They are more likely to see these virtues as rooted in distinctive faith and cultural traditions and more likely to see external threats to the culture in which they are rooted as something that must opposed rather than accommodated. Liberals don't reject these active virtues as much as they see them as less salient in resolving public controversies. That some of them seem to revolve around sex and marriage underscores their perception of conservatives as hostile to the "other."

Knowing all of this, conservatives were more likely to see the original bumper sticker as denying the existence of these transcendent values and as tolerating the intolerable. They were more likely to see the parody as an attack on the original bumper sticker than as a general indictment of Islam.

I think this is one of the reasons that people were drawn to the controversy. One might have thought that an appropriate reaction was to pronounce a pox on both the sticker and the parody. The sticker is hopelessly devoid of content (so much so that it needed a footnote) and the parody had too much (and, therefore, also needed a footnote that it wasn't saying that all Muslims are like Nazis). But we all got past that because the issue seemed to be saying something about a difference that we feel is important.

kumbaya is not enough

Mike Plaisted says that I am in my mode of defending the indefensible. As he well knows, that is what we are trained to do so here's my final word on Bumpergate.

I think that those who are criticizing the parody are weakening their point by making an argument that it somehow offends Jews by placing a swastika where the Star of David was in the original. That's just silly. No one could reasonably interpret the parody to be conflating the two.

Obviously, the parody can be understood as an attack on Islam. I read it as a criticism of the type of naive liberalism that will stand up for nothing if it can be interpreted as an attack on the "other," but reasonable people might have a different interpretation and that's why I would never put the parody on my car either. (Actually, I don't do bumper stickers but that's another story.)

So why talk about the Star of David? Do the critics think that is a more sympathetic argument? Maybe it helps avoid an uncomfortable conversation.


The point of the parody is that there are some preconditions to coexistence. There are people with whom we cannot get along - at least not unless they change. The Interfaith Council knows that. John McAdams links to the program of a conference that they sponsor called Common Ground. My own reaction to the program is that it sounds like the type of divisive racial scapegoating that makes actually finding a common ground so difficult. It seems to me to be aimed at opening wounds rather than healing them.

But I suppose the IC folks involved with the conference would tell me that they believe that reconciliation is possible only after we confront what they see as the truth and bring about change that they believe to be needed. I don't see the conference as accomplishing that, but I see the point that coexistence is not simply a matter of tolerance. There are values that must be shared like not hanging nooses in my front yard or not blowing yourself up on the bus.

Of course not all Muslims are jihadis or believe in Sharia law. From what I can tell, the overwhelming majority of Muslims in the United States are not and do not. we have Saudi Arabia and Iran but we also have Turkey and Indonesia. Still, the sad fact is that, around the world, there are enough jihadis and adherents to Sharia that it's become rather a huge problem. It's not clear that this problem can be countered by the expression of even a noble sentiment.

Responding to the threat of Islamic terror is difficult. European countries who must reckon with the presence of large populations within their borders who do not share many of the values of the majority face some very hard questions. The desire to coexist is the right instinct, but it alone won't get us very far.

Santorum's challenge

The biggest tragedy of the 2006 elections was that Rick Santorum lost. He is now a Senior Fellow at the Center for Ethics and Public Policy. He recently tried to organize a bipartisan debate of the presidential candidates on the role of faith in fighting poverty. It was cancelled because apparently Hillary Clinton was the only one who agreed to show.

In this op-ed, he lays out what I think is the biggest challenge for Christian conservatives. We believe in limited government and we know that a free market and restrained taxation results in the greatest level of prosperity for all. But we also know that poverty persists and our faith is quite clear that we may not be indifferent to this.

My own view is that anti-poverty programs must follow the Catholic principle of subsidiarity. They must be of limited duration and, in the United States, must focus on changing the culture of poverty. But then they ought to be generous.

The Democrats are still too much the party of government and too committed to their own racial strategy. While they are not so hot on laissez faire in economics, they just love it when it comes to personal life. They will never accomplish much on poverty.

But we Republicans aren't talking about it. Santorum is. It's too bad that he's not doing it in the Senate.

H/T: Rick Garnett at Mirror of Justice.

November 22 1963-2007

Yesterday was Thanksgiving, but it was also the 44th anniversary of the assassination of President Kennedy. Local blogger Jim Bouman, who has apparently returned from from Canossa, remembers where he was and what he thinks of the larger significance of the assassination. More on the latter later.

For boomers (although he's on a tad pre-boom and I'm in the latter half of it) talking about where we were on November 22, 1963 is just something we love to do. I was in second grade at Holy Family school in Whitefish Bay. The nuns told us the President had been shot and we prayed. I remember thinking that the President was in Washington and that Washington was up near Alaska and Alaska was near Russia. Maybe he went across enemy lines and got clipped. Later on I remember feeling chastened by how adult the whole thing was. Of course, I thought. The world was so much duller than I wanted it to be.

In any event, the nuns told us a bit later that the President was dead and that we were going home. After another prayer, I walked home down Hampton to my house on Oakland. I still remember stopping to cry under a birch tree on the corner of Cumberland and Hampton. If I can be permitted, my parents got divorced the next month and, for me, the tragedy of the assassination has always been bound up with that personal tragedy. Maybe for that reason, I've always been fascinated by the assassination.

So, as has often been the case, I've been reading a couple of books on the topic. One is When the News Went Live; Dallas 1963, a memoir of those few days by some Dallas journalists. That book, along with some historic material on John McAdams excellent assassination website and the rebroadcast of NBC's coverage a few years back, underscore how quickly it became obvious that day that Oswald was the shooter. If that doesn't convince you, this guy and this one have destroyed the conspiracy theories.

Here's where Jim Bouman's reaction to the assassination comes in. He is apparently not a conspiracy theorist. But one of the reasons that conspiracy theories have persisted in the face of such overwhelming evidence to the contrary is that the assassination narrative flew in the face of the reigning liberal consensus that political violence was all on the right and that the Cold War had to be called off.

Yet Kennedy was shot by a communist. The other book I am reading is Camelot and the Cultural Revolution: How the Assassination of John F. Kennedy Shattered American Liberalism by James Pierson. The fact of a violent act by a leftist didn't fit the story that left-liberals wanted to tell. Recall Jackie Kennedy's reaction: "He didn't even have the satisfaction of being killed for civil rights. it had to be some silly little Communist."

So, the assassination had to be spun, not as a political slaying, but as a symptom of a country gone wrong. It wasn't so much Oswald that killed Kennedy but a violent America. Mr. Bouman states the correlation - if not the assertion of cause and effect:

From there, this benighted nation spiraled downward, through a decade of assassinations and escalations and cities-in-flames and profound alienation, then went on to decades of self-indulgent, self-congratulatory excess and hubris, arriving finally at today's sorry state of the American nation, it's leadership and its prospects.

In the standard liberal narrative, the assassination, in this view, becomes just another symptom of a sick culture rather than the act of a sick man consumed by ideology. Maybe that's what Bouman means. Or maybe he means that an act of political violence caused us to go off the rails.

But Pierson argues that it is not the death of JFK, but the recasting of the liberal narrative encouraged (although not entirely caused) by the reaction to the assassination that contributed to a societal sickness. Pierson argues (but I doubt Bouman would agree) that liberalism has paid a price for this reaction to the slaying, losing its confidence and its roots in commonly held American values.

I suppose there is a sense in which that lead to the leadership that we have now in that America has generally rejected the antinomian left (although I think we also needed to shed industrial age liberal economics as we moved into a post-industrial age.) Of course, Pierson and I might characterize that leadership (and America's prospects) much differently than Bouman, but look for agreement where you can find it.

Happy Thanksgiving

Continuing a tradition (actually I did it last year) here at the old blogspot, I reproduce my 2005 Thanksgiving column from the Milwaukee Journal Sentinel.

The virtue of gratitude
By Rick Esenberg

Posted: Nov. 23, 2005
Abit over five years ago while shopping with my wife at Bayshore Mall, I suddenly felt as if I couldn't breathe. My face lost significant color. For someone as white as I am, that is no mean feat. It must have been hard to tell.

I found myself, some 30 minutes later, in the emergency room. My wife (a registered nurse) and her brother (a radiologist) stood together, reading my EKG and looking as if Brett Favre had announced his retirement.

They tried to tell me everything was OK.

Obviously lying. I made a mental note that someday I would get each of them into a game of high-stakes poker.

I was having, as they say, "The Big One." It turns out that I needed a quadruple bypass, a procedure that had to be done so urgently that I bumped an 89-year-old from the operating room because he was "more stable" than I was. That added insult to injury.

I came closer than most 44-year-olds to buying the farm, yet I remember one overriding thought during the ordeal.

It was "thank you."

This is not exactly the emotion I would have expected. I am generally not the type of guy who sees the glass as half full. Those who know me would be quick to tell you that I am decidedly not Mr. Sunshine.

So why "thank you"?

We think of gratitude as a debt we owe for favors received. It is the currency by which we compensate others - or, if we are so inclined, God - for whatever has been done for us. Giving thanks is simply honoring our end of a bargain.

We are thankful - or not - to the extent that we feel we have been - or have not been - blessed. Even those who urge us to be more thankful than we are argue that the key is to recognize that we are better off than we know.

This is, I think, incomplete. Gratitude is just as important when we are in life's troughs as when we are astride its peaks. The Roman orator Cicero thought gratitude to be not only the greatest of virtues but the parent of all the others. It is not simply what we owe but the way in which we should live.

Living in a spirit of gratitude requires an acknowledgment that we are dependent, something that certainly comes hard to me and runs counter to a culture that has turned the "me decade" of the 1970s into the "me millennium" of forever.

But we are dependent on others - those who are with us today, those we never meet and those who have lived before us. I believe we are, whether we acknowledge it or not, dependent on God.

It may have taken a heart attack to teach me that.

My wife and I attend a church in downtown Milwaukee. We joke that our pastor says "thank you" more than any person on the face of the Earth. If you can do it, Pastor Amy can thank you for it. That she also seems to be happier than just about anyone else we know is not a coincidence.

I think she knows, and I learned the hard way, that to acknowledge the ways in which we are incomplete and in which we need something and someone outside ourselves frees us from the burden of needing to be perfect. Once we acknowledge that we cannot control all that happens to us and that we cannot create a perfect life, we are freed to do what we can do.

It may have taken a heart attack for me to learn that to be grateful for whatever gifts I have is far more important than to yearn after those I do not.

So take a moment today, between football and feasting (a nice Gewürtztraminer, by the way, goes wonderfully with turkey), to cultivate a habit of gratitude. Not just today but every day. Not just when things go well but when they don't.

The Christian mystic Meister Eckhardt once said that if the only prayer that you say in your whole life is "thank you," it will be enough.

It will certainly be a good start.

Rick Esenberg of Mequon is an attorney and junior warden at St. Paul's Episcopal Church in Milwaukee. His e-mail address is resenberg@wi.rr.com

Where are the goo-goos on Morales?

I am playing with the idea that the notion of "appearance of impropriety" in the law of attorney and government ethics is a fount of abuse. We use it or don't use it depending on whose ox is being gored.

Here's a case study. Locally, we have folks(think One Wisconsin and the Wisconsin Democracy campaign) practically ready to waterboard Justice Annette Ziegler for acting on mostly uncontested matters in which she may have had an extremely attenuated financial interest. As I have written in the past, she was wrong to violate a rule that is essentially designed to avoid the appearance of impropriety (that's why I call it a prophylactic rule)and I think that some type of reprimand is in order. It's not an adequate defense to say that she decided the cases properly, i.e., that the underlying decision was right.

Where will One Wisconsin and the Wisconsin Democracy Campaign be on Jennifer Morales' conflict of interest on the proposal to grant MPS employees domestic partner benefits? Morales is the domestic partner of an MPS teacher.

It may be that Morales can lawfully vote on the proposal and I haven't thoroughly researched the issue, but she may have a real problem here.

The state's ethics code for local elected officials , found in section 19.59 of the statutes, prohibits local officials from taking action on any matter in which she or her family has a substantial interest. There is an exception for taking actions "concerning the lawful payment" of employee salaries and employee benefits (or acting on a proposed change in a municipal or county ordinance). Maybe you could interpret that exception to apply to actions that set the level of these lawful benefits (although that's not very clearly communicated by an exception that is limited to "payment"), but the state ethics board doesn't appear to do so. The ethics board, for example, has opined that a school board member whose spouse is employed by the district as a teacher should not participate in discussions, negotiations or votes on the teachers' contract. More recently, the board has advised school board members who are retirees of the district not to vote on matters that may affect their health benefits.

The school board's own ethics code has a similar provision. In fact, MPS' position is arguably broader because it doesn't contain the "lawful payment" exception.

We know that local bodies, including MPS, vote on their own salaries. The constitution (for state legislators) and state statute (for municipal officials)addresses that problem by providing that the elected official face the voters again before collecting increased compensation. There appears to no comparable provision governing MPS so perhaps by virtue of the time honored maxim generalia specialibus non derogant, it may be that the statute governing the board's power to set its salary controls.

But that doesn't help us here. This isn't a vote on board compensation. The City Attorney has apparently opined that a Board member may vote on teachers contracts notwithstanding being married to a teacher. Perhaps he relies on the "lawful payment" exception and argues that the state ethics board got it wrong. Maybe that works, but, then again, the Board's ethics code does not have this exception.

And even if the exception gets her off the legal hook, how is Morales' position here any different than Ziegler's? If it looks bad for Ziegler to rule on cases presenting no substantial contested issues because it may theoretically add a neutrino's worth of value to some stock she owns, then why doesn't it look just as bad for Morales to push and vote upon a benefit that is offered in only four other districts and that may be worth close to $ 20,000/yr for (potentially) the rest of her life?

Maybe there is a way to justify her participation. The response of the board, at least as reported in the paper, sounds a lot like the response that was deemed inadequate for Justice Ziegler. It amounts to an assertion that the proposal is "right," so we can apparently overlook Morales' conflict. But whether it is right or not (or whether Morales sincerely believes that partner benefits are good policy which I assume she does) is not the point. The point is the conflict.

If they were truly interested in ethics, you'd think that Mike McCabe and Cory Liebman would be all over this. I am not surprised that they are silent.

Can't we all just get along?

What are we supposed to make of the spoof of the COEXIST bumper stickler by Tom McMahon?

To review the bidding, here's Tom's parody:






of the original bumper sticker:






Local blogger Anne Quimby Mathias has criticized the parody. Marcus White of the Interfaith Conference wrote to WTMJ demanding that the parody be removed from TMJ's website.


That bumper sticker will never adorn my Mini Cooper. It's not that I advocate religious war or don't think that we ought to be able to get along with folks of different world views. But appropriating the symbols of these traditions and assembling them into a command that is probably most often expressed by people who do not follow (or follow loosely) any of them strikes me as patronizing. Since, as the reaction to Tom's parody demonstrates, the bumper sticker is not directed at Islam (the one that actually has a significant contingent that opposes the idea of a coexistence), the implication is that whatever the distinctives of your faith tradition, keep themselves to yourself and buy into the notion that all faiths are equally valid or invalid.

I recognize that reaction takes a bit of social context and some assumptions about who is expressing the "coexist" message. Maybe I am reading too much into it. But the reaction to the parody seems to bolster my point.

One criticism is that, to make the parody work, he had to replace the Star of David with a swastika. Marcus White argues that this is "distasteful", "ignorant" and "always offensive." This would be the case if the message was some equivalence between Nazis and Jews. But Mr. White has to know that this in not what McMahon intended or what any reasonable person would think he intended. He needed an "x," for Siva's sake, The notion that this is "always offensive" is either intentionally obtuse or reflects a medieval belief that symbols have innate powers apart from the message they convey. It's as if the totem has been defiled and the gods will respond in wrath.

The other criticism reflects what I think is a larger problem with the bumper sticker. Marcus White writes that by publishing the parody on his website, Charlie Sykes "seems to be endorsing the notion that terrorism can be blamed on Islam as a faith. I am sure that Mr. Sykes is well-aware that Muslim leaders in Milwaukee and throughout the world have repeatedly condemned the terrorists."

I am aware of that. I am aware that many people do not interpret Islam to command violent jihad against unbelievers and those who are thought to have offended Allah. I am aware that many Muslims do not interpret their faith to require treating women like filth. It is my impression that, within the United States (but perhaps not the world), these Muslims are an overwhelming majority of adherents to Islam. It is because of these faithful and peaceful Muslims that we ought to be careful to limit our criticisms to those factions within Islam who do, with apologies to Mr. White, believe that their faith commands murder and misogyny.

But those factions exist and they are rather large. Islam has a problem and it will still be there whether or not we pretend that it isn't. As the left correctly points out, terrorism is not a cause, it's a tactic. I wish the enemy wasn't an ugly version of Islam adhered to by millions of people. But it is. I don't see how you respond to a problem by deliberately misunderstanding it. By positing an equivalence among faiths on the question of coexistence, the bumper sticker does that.

One final point. Marcus White's belief that coexistence requires that TMJ take down the parody actually reflects what has made coexistence with Islam in Europe so difficult. Coexistence in a diverse society requires understanding that other people who do not share your views will say and do things that offend you and you do not get to make them stop.

Liberal creationism?

On Slate, William Saletan is posting an interesting series on liberal "creationism." He was apparently struck,as I was, by the nature of the reaction to James Watson's comments on the distribution of innate intelligence among Africans.

If one is a materialist and believes that evolutionary biology as expressed in our genes explains much about us, how can one exclude the possibility that certain attributes, like intelligence, may be unevenly spread among groups with some greater proportion of common genetic material?

I have no idea whether there is any support for the idea that intelligence may not be evenly distributed among racial groups, but the reaction to Watson seemed decidedly faith-based. We don't want to believe such a thing because we fear the implications of its truth.

Saletan argues that one cannot dismiss the possibility and tries to dispassionately review the evidence. The key thing, it seems to me, is understanding what it means to say that something like intelligence is unevenly distributed among racial groups. This is where the popular misunderstanding of things statistical gets us in trouble.

To say that one group is more likely to exhibit high intelligence than another tells us nothing about the intelligence of any person. There will be so many counterexamples that it would make no sense to base any decisions about any person on such a claim.

As an example, I have heard it claimed that women are more likely to possess high verbal skills and men more likely to have higher spatial skills. (I suspect that sex differences present different issues than racial ones, but that doesn't undermine my use of them here.)Assuming that this is true (and I have no idea), I stand before you as a counterexample. I have high verbal skills but when it comes to understanding how things fit together, I am (and I think the Reddess will back me up here) a moron. There are a lot of guys like me and a lot of girls who defy the norm in the other direction. Averages apply to groups and not to individuals.

But we are understandably concerned that people won't understand that so we are reluctant to "follow the science" to wherever it leads. Thus, in Saletan's view, we have liberal creationism. He writes:

I wish these assurances {that Watson's statements hadn't "a scietific leg to stand on] were true. They aren't. Tests do show an IQ deficit, not just for Africans relative to Europeans, but for Europeans relative to Asians. Economic and cultural theories have failed to explain most of the pattern, and there's strong preliminary evidence that part of it is genetic. It's time to prepare for the possibility that equality of intelligence, in the sense of racial averages on tests, will turn out not to be true.

If this suggestion makes you angry—if you find the idea of genetic racial advantages outrageous, socially corrosive, and unthinkable—you're not the first to feel that way. Many Christians are going through a similar struggle over evolution. Their faith in human dignity rests on a literal belief in Genesis. To them, evolution isn't just another fact; it's a threat to their whole value system. As William Jennings Bryan put it during the Scopes trial, evolution meant elevating "supposedly superior intellects," "eliminating the weak," "paralyzing the hope of reform," jeopardizing "the doctrine of brotherhood," and undermining "the sympathetic activities of a civilized society."

Jonah Goldberg suggests that Saletan must have wanted some hate mail for Thanksgiving.

Wondering about Rudy

The Reddess and I have returned from Federalapalooza in DC. There has been some commentary in the press and on the blogs over Rudy Giuliani's speech on Friday. It was an impressive talk. Most of the sophisticated commentary has focused on what he was trying to say to conservative and libertarian lawyers. That message can be summarized as "Scalia/Thomas/Roberts/Alito." Others have remarked on his references to God, but, as Ann Althouse points out, much of that was in the context of the conference's theme of American Exceptionalism, built around Ronald Reagan's invocation of America as a shining city on a hill.

What struck me about the speech is how well delivered and calming it was. It had it's share of applause lines including a call to save the world from Islamic terrorism which, if you'll forgive me, just about blew the roof off the Mayflower Hotel. But the overall impression was one of reasoned optimism. I know that Hillary can beat this guy but I having a hard time seeing how.

But would he be a good President? I am getting close to taking the Rudy plunge. At the National Review reception later on Friday, free speech advocate Jim Bopp gently suggested to me that this was (and he used the word) crazy. My belief (and maybe it is a hope) is that Giuliani understands the need to accede to the wishes of the base on social issues. He can be "personally" pro choice and take a more liberal position on other social issues, but he can't seek to change the platform or seek to further his views through the exercise of federal power.

There are problems with this hope. The first is, as Bopp points out, it may not be true. Giuliani still has work to do here. During Friday's speech, he invoked Kelo, Grutter, McCreary and the 9th Circuit's decision in Newdow as examples of judicial license. But Roe, the ur-case of judicial overreaching, was absent from that litany. While I don't think that the executive ought to be telling the judiciary how to decide cases, he's going to have to convince the base that he believes that a judge who would think Roe is good law (or believes that this error is beyond correction because of some notion of super precedent) doesn't understand what a judge ought to be doing.

But I actually believe that judicial appointments are the last thing that social conservatives have to fear from Giuliani. This guy has enough chops as a lawyer that it is easy for me to believe that his judicial appointments will not simply reflect his politics.

The larger problem is that social conservatism will lose the active support of the executive. I think that's indisputable, although I also believe that much of this is properly left to the states.

But here's the problem. When Giuliani suggests that national security and 200 federal judicial appointments are potentially overriding issues, he is right. Does the pragmatic case for Giuliani outweigh the philosophical case against him?

Is this really an "ethics" problem?

The Cap Times is after Supreme Court candidate Mike Gableman for "personally soliciting" contributions to his campaign. Gableman apparently had a personal message on the same page where one could make an on-line donation. One Wisconsin pronounces this "troubling."

The Judicial Code of Ethics prohibits candidates for judicial office from personally soliciting campaign contributions. It would pretty clearly be improper for a candidate to call and ask for a contribution or to write an individual letter seeking donations.

James Alexander of the Judicial Commission won't say that the site violated the rules but then is reported as having gone on to say that the prohibition is clear and that a personal solicitation is a personal solicitation. If the report is accurate, he is clearly signalling that he does think the rule was violated.

The rule may be uncomplicated, but whether that prohibition is violated by a message placed on a web site is quite another matter. Gableman's message was personal but was it a solicitation? Justice Butler's website also permits on-line contributions, although it, at least as of now, has a disclaimer that the request comes from "Friends of Louis Butler" and not from Justice Butler himself. That's a good lawyerly way to do it but does it really differ substantively from Gableman's site?

If the rule is designed to prevent donors from feeling pressured by a personal entreaty from a judge, is that concern implicated by a statement on a website? One can, I know, always fall back on that source of legal mischief - "the appearance of impropriety" - but that strikes me as lazy. Why does a canned statement that is directed to no one in particular and which conveys a message ("I want your support") that is implicit without it create a greater appearance of impropriety than setting up an organization that uses your name to actively solicit funds on your behalf?

Neither candidate has made a request for contributions directed to any particular individual or group. Both have allowed their name and image to be associated with a request for funds, although it's hard to imagine how anyone could raise money for a candidate without mentioning his or her name. Gableman's campaign has quite correctly modified the site to take down the message attributed to the candidate, but I think that the virtue in that is the avoidance of any technical questions rather than the avoidance of any real or apparent impropriety.

The Shark goes to Washington

The Reddess and I are in DC for the Federalist Society's Annual National Lawyer's Convention. It is a cornucopia of legal nerdiness, close to heaven for someone like me. One of the things that the Federalist Society always does is invite speakers with perspectives other than the conservative or libertarian approaches of most of its members. Yesterday afternoon, for example, I attended a discussion of whether the Establishment Clause, given it's history and purpose, is properly understood as a federalism provision. One of the panelists was Marci Hamilton, who I think is fair to characterize as a separationist scholar.

Last night, there was a black tie dinner at Union Station. The President addressed the group, followed by Justices Scalia, Thomas and Alito (the Chief is speaking today) and former Attorney General Ed Meese. Karen (who was particularly smokin' last night) and I sat with some lawyers at McCarter & English, a law firm that I work with, and Boston Globe columnist Jeff Jacoby who I suspect will get a piece or two from the proceedings.

Bush spoke about the judicial confirmation process and it certainly does seem to be broken. I do not believe that it is inappropriate for the Senate to reject nominees because of their judicial philosophy but I do wish that it would act with a lighter hand and greater candor. If you don't like Charles Pickering because he is too conservative, then oppose him on that basis. But don't pretend that he is some kind of racist.

Obviously this was a friendly crowd for all of the speakers, but Justice Thomas (who delivered some wonderful remarks about the value of courage) clearly has the heart of this group. Part of it is his own courage and the shameful way in which he was treated, but I think part of it is his own intellectual rigor. In any event, he was greeted like a rock star.

MPS is dancin' across the USA

As I prepare to head off to Washington DC for a conference, I am a bit reluctant to comment on the MPS travel issue. Local blogger and teacher Jay Bullock points out that it's a small amount of MPS' budget so why worry? I agree that there are more troubling aspects of the district's budget (we might start with fringe benefits that come far too close to salary), but his reaction is instructive in a way that gets at what bothers folks about MPS in particular and government in general.

MPS claims to be short on revenue. I was part of the senior management team in a business that was short on revenue during the economic slowdown that began in 2000.
Managers turned the budget upside down to wring out cost. There were not categories that were "too small" to matter and travel was rigorously scrutinized. It is hard to do that. It requires doing things that you would prefer not to do. We were driven to it by the lack of an alternative. What could drive MPS to do the same thing other than public scrutiny?

I don't believe that MPS never needs to send people to meetings in faraway places, even attractive ones. What is galling is that a district that pleads poverty doesn't appear to have been very careful about when and where it was necessary to do so. This not only sends a bad message, but it suggests a comparable lack of care about other larger parts of the budget.

Jay is now upset that the District's new policy on travel, adopted in response to the news report, is too rigid and it might be. He thinks that TMJ's I-team ought to be ashamed of themselves for ... what? Reporting the truth? Maybe the real blame lies with an administration that now has to overreact to a report of their own sloppiness.

Howard Dean's Papal Bull

Eugene Volokh says that Howard Dean has announced the theology of the Democratic Party. Here's what Dean said:

"This country is not a theocracy," Dean said. "There are fundamental differences between the Republican Party and the Democratic Party. The Democratic Party believes that everybody in this room ought to be comfortable being an American Jew, not just an American; that there are no bars to heaven for anybody; that we are not a one-religion nation; and that no child or member of a football team ought to be able to cringe at the last line of a prayer before going onto the field."

Professor Volokh has what we might call a jurisdictional problem with this. It is one thing for Dean to call for civic equality, but quite another for him to make an assertion about salvation. Political parties ought to support the former, but should have nothing to say about the latter.

I actually think Dean was trying to make a secular claim but he's not very good when talking about religion. Still, given the regnant view of church and state among the American left, it may be impossible for him not to make a theological statement as well.

If you believe that government ought to do a lot of things for people, e.g., teach their children about morality and sex, cure their chemical dependencies, enforce attitudes about homosexuality, etc. (and, to some extent, we all believe this now), then what it does will raise questions to which religious people have faith-based responses. To rule out those responses, is to imply a judgment about them, i.e., they are wrong or irrelevant. That is a theological position.

Of course, Dean's statement about Republicans is silly. The GOP does not take the position that we are a one-religion nation or that non-Christians are bound for damnation. But we pay attention to the Governor more for typology than instruction.

Facts are pesky

Why do people spend so much time trying to avoid the obvious? In a recent column in the Journal Sentinal, Patrick McIlheran points out that Milwaukee County government is burdened with legacy costs, spending three times as much on health care for retirees than it does on the parks.

This has obvious implications for county government today. But. over at the folkbum blog, a blogger known as capper wants to deny that. The health care benefit was discontinued for all employees hired after 1995. It's the fault of doctors and hospitals because capper, having apparently freed himself in Plato's cave, just knows that they charge "too much."

If you max out your credit cards, Christmas won't be very extravagant. That the credit card companies have cut you off or charge you too much interest will not be of immediate help.

I've said it before and I will say it again. County politicians and public employee unions destroyed Milwaukee county government. We will see more of this in the future with other governmental bodies as current bills for lavish pension and retirement come due. No matter how you feel about the proper role of government, this is a fact that needs to be faced.

Football weekend

The Reddess and I spent the weekend at Camp Randall and Lambeau Field. My brother-in-law and niece actually did us one better, joining us for the Badger and Packer games and squeezing in Mequon Homestead's state semi-final game against Stevens Point in Appleton.

I don't know what colors to wear today.

Why Giuliani will be embraced by the right

John Nichols thinks there is some type of hypocrisy in Pat Robertson's endorsement of Rudy Giuliani. It's always dangerous to write about people that you don't understand.

Politics is the art of possible. No one who doesn't show up when you look in the mirror is likely to be perfectly acceptable. So you must set priorities and make decsions based upon what is most likely to do the most good in the real world.

For social conservatives, the top ten considerations in a President are judicial appointments. Once you understand that, all will make sense.

The Jensen decision

The Court of Appeals' reversal of Scott Jensen's conviction doesn't end the case. He can be tried again. But it is not quite right to suggest, as at least one blogger has, that the court acted on a technicality that is unlikely to affect the outcome.

The conviction was reversed because the court of appeals concluded that the instructions to the jury amounted to a imposing a mandatory conclusive presumption on the issue of Jensen's intent to obtain a dishonest advantage. Briefly the court told the jury that using state resources to obtain would be a dishonest advantage but it did not sufficiently qualify that or otherwise make clear to the jury that it must still find that Jensen intended to obtain that disadvantage.

For this reason, the court also found that the trial court may have erred in excluding Jensen's testimony that he understood that the Democrats do the same thing. While, on remand, the trial judge is free to attempt to articulate a rationale for keeping this testimony out, it seems unlikely - given the court's ruling on intent - that he will be able to do so. Jensen's understanding of what the Democrats did, the Court of Appeals acknowledged, would seem to go to whether he intended to obtain a dishonest advantage as opposed to simply staying even.

Perhaps the court of appeals (rather belatedly in my judgment) has finally gotten at what has been wrong from the beginning with prosecuting political leaders for doing what all of them have done forever (and, yes, I include Chvala and Burke in this.)

Blogging the Military Commissions Act

I would not have voted for the Military Commissions Act in the form that it passed Congress. One of the problems with the law of the war on terror is that we can't really frame it as exactly like war or exactly like law enforcement. There are ways in which it is like both and we need to develop a hybrid legal regime in response. In attempting to do this, I think the administration has, from time to time, missed the mark.

But here in Wisconsin's political blogosphere, I have noted that a few of our friends on the left side of the virtual divide have repeated the claim that the Military Commissions Act repeals habeas for citizens and non-citizens alike.

Lots of people on the left say this, but it is untrue. In fact, it is not even arguably true. The MCA does have an extremely broad definition of "unlawful enemy combatant" that could be applied to citizens. I don't like that definition at all.

But ... the definition is adopted for the purposes of the Act and the Act provides for trial by military commission and the suspension of habeas for "alien enemy combatants." In other words, the Act limits these operative provisions to people who are both unlawful enemy combatants and aliens. The commission and habeas stripping provisions quite clearly do not apply to citizens.

Some people have argued that a President might use the definition of unlawful enemy combatant in a number of unsavory ways and I suppose that he or she might. But nothing in the Act empowers him or her to do so. The definition, while overly broad, by its terms applies only to the newly created Chapter 47A which provides for military commissions and strips habeas for alien enemy combatants.

What about the Clinton campaign is inevitable?

Whoa, Nellie and buckle your seatbelts, Fighting Ed Garvey isn't sure that the Democrats are going to win in 2008. That cow hasn't left the barn and the fat lady hasn't sung. The fat cats might use all their dirty money to get in the hen house and steal the election from folks like "us." Ed don't believe in riches, but you should see where he lives.

But hold your horses! Ed might be right on this one. At least on the Dems not winning. John Edwards attack ad on Hilary Clinton - an extraordinary montage of real and exaggerated (he is John Edwards) duplicity may have demonstrated something that most Democrats fear. It is far from certain that this woman can ever be elected President. The problem is not so much that she dissembles. Every candidate does that. It's that she seems bound and determined to do it so transparently. It is hard to think of a successful candidate as unlikeable and patently insincere since Nixon and the exposure of presidential candidates has multiplied geometrically since then.

It depends on what the GOP does and you can never count the Clintons out, but I'm having a hard time envisioning a Clinton win over Giuliani.

You were made for me

Want to HAve sex with your robot? Or, if you are more traditional, how about marriage? Some predict that you'll be able to do the latter in Massachusetts by the year 2050.

My first reaction was can I get one that looks like ...

No.

My second was to wonder what purpose of marriage would be served by making a covenant with something that can be programmed to do or not to do whatever you want? But if marriage is about sanctification of your choice, I suppose so.

My third reaction might have been that this is all so silly, but then, perusing the programs for the January meeting of the American Association of Law Schools, I saw that one of the programs available to me is a panel on the "Margins of Legal Personhood" sponsored by the Section on Jurisprudence. I expected the discussion to be about animals and fetuses and they are in there, but there's more:

This panel explores those “entities” that lie at the boundaries of legal personhood. Specifically, how should the law treat animals, artificial intelligence, fetuses, and psychopaths? And do our views about how to treat one entity commit us to similar treatment of another? For instance, do our views about the treatment of animals inform our understanding of abortion? If we would not hold artificial intelligence criminally responsible, does the same reasoning hold for psychopaths? During this panel, each speaker will discuss one of these “entities” and then the panelists will engage in a discussion of the connections between their theories.

The inclusion of psychopaths gives me a start, but that's another issue. Are all robots created equal? I'll tell you in January.

H/T: David Wagner

Kunst über Arbeit

Undaunted, Whitney Gould returns to the Grohmann Art Museum at MSOE. She really doesn't like it. Why, it even has a kraut "Kaiserkopf" dome, (Actually, it looks more like R2D2 to me.)

I am interested, however, in how one treats "Nazi art." As we know from last week's proceedings,, Gould and a colleague had an front page piece of Riefenstahlian proportions in the Sunday Journal Sentinel (10/28) pointing out that one of the artists featured in a exhibit of paintings about "Men at Work" had a number of those paintings commissioned by the German Chancellery during the Third Reich.

I don't believe - and I don't understand Gould to argue - that we ought to ignore Nazi art. I can't speak on the Mercker paintings at the Grohman, but Leni Riefenstahl's films Triumph of the Will and Olympia are stunningly good (if overlong).

But, at the same time, they are odious and, in a way, that makes them interesting in a different way. How does genius get subordinated to evil ends? That it can ought to tell us something about the limits of human invention.

So I actually agree with Gould's suggestion today that the provence of the Mercker paintings ought to be made clear. I think it would improve the exhibit for viewers to know that the muscular industry portrayed by them was placed in the service of evil.

Begging the question

This interview with UW bioethicist Alta Charo averts the eyes from the elephant. I am sure that, as a bioethicist, Professor Charo understands that science does not control the moral issues surrounding technological advances. One wishes that she would have managed to say that. When asked why Republicans are "afraid" of science (there's an insightful question!), she explains that science, because it relentlessly follows the data (itself a type of faith claim), may place pressure on certain aspects of religious belief. (Of course, it may bolster others.) While that is true , it doesn't seem to get us very far with the issues that roil the area of "science and religion" today.

Social conservatives don't "fear" science. They do assert that simply because things can be done does not mean that they ought to be. They assert what former Bush speechwriter Michael Gerson calls a transcendent basis for human equality is not undermined by scientific advances that allow new manipulatons of humans. Professor Charo need not share these beliefs, but she can't claim that science has much to say about them.

Professor Charo says that she thinks it's a shame that the issue of embryo-destructive stem cell research has focused on the fact of the destruction rather than the purpose for the destruction because most of these embryos are the product of embryos discarded by IVF clinics. This argument from fait accompli has always struck me as a bit of a bait and switch. Here's a thought experiment: Would Professor Charo support a law restricting embryo-destructive research to those embryos that are discarded by IVF clinics? If she won't - or advocates of expanded embryo-destructive research would not, then don't these moral claims about destruction remain in play?

Do hard cases make bad law? Phelps and funerals

A jury in Baltimore has awarded $11 million dollars to the family of a serviceman killed in Iraq whose funeral was picketed by Fred Phelps and his "Westboro Community Baptist Church" (a group consisting largely of Phelps' extended family.) The family alleged that the picketing - which apparently took place 1000 feet from the funeral - constituted invasion of privacy and intentional infliction of emotional distress.

Fred Phelps and the fellow inmates of the Westboro Asylum are an obnoxious bunch. They picketed my church a few years back and they are both disgusting and scary in a Night of the Living Dead type of way.

But is allowing this case to go to a jury and permitting that jury to award damages constitutional? If it is, then could the family of a wounded soldier picket Code Pink protestors for demonstrating outside the Walter Reed Army Medical Center?

I think you do have to answer the question

Jay Bullock doesn't want to say how much taxation is too much. He'd rather ask how much government we need and then allow the tax thing to take care of itself.

Jay has a point in that government is presumably something that we decide to fund because it provides things that we want and what we want certainly has to be part of the equation.

But, I think, a consideration of how much taxation is too much has to be part of that calculus. Jay offers two examples. He says that a business does not set a price point before it knows what it wants to sell. That is true, but determining what you want to sell (and how much profit you want to make) does not establish the price point. There is an external restriction. I can't charge more than people are willing to pay for whatever it is that I want.

Now Jay may well respond that determining the size of government is the equivalent of someone deciding what they are willing to pay for, but there is a difference. Taxation is imposed at the barrel of a gun. While I agree that taxation is not theft, it is a mistake to treat it like it is voluntary or chosen by all those who are asked to pay it. This is particularly true where taxation is progressive. Whatever it's other merits (and it has some), progressive taxation suffers from the ills associated with asking someone else to pay for what I want.

Those ills - or, if your prefer, concerns - fall into two categories. One is fairness. How much can I ask someone to contribute to services that he neither wants not will receive. Certainly there is a limit.

Second, how will the imposition of this level of taxation affect society? The idea that one can simply tax and not effect the manner in which people behave is just as "unscientific" as young earth creationism.

Jay's other example, constructing a class curriculum, helps to illustrate the point. He thinks that upper and lower limits on "homework" don't mean much when he is putting together a syllabus. That is certainly not my experience. When I plan a course (and I'm putting together two right now), there are all sorts of external restrictions. The semester is only 14 weeks. The course is two, three or four credits. The capacity and willingness of students to absorb material is not unlimited. Students have other obligations.

So I don't think the question of "how much is too much" can be subordinated to the assembly of our wish list.

In fairness to Jay, he does acknowledge that there must be some limit. He just seems to think that it's awfully high. (Apparently 91% marginal rates don't shock his conscience even though, when they existed, few people actually paid them.)

In the end, he responds to the question that he won't answer with one of his own. Taxes he says are a means to the end of government services. I disagree in that government services are also a means to some desired result.

He wants to know what we should do about the poor performance of MPS:

If so many students are currently failing in a well-funded, well-organized, tightly-regulated school system staffed by generally very talented and compassionate teachers, what would you replace it with? What would you cut, change, rearrange, or do differently to achieve different results? If the superintendent's requests above aren't going to make a difference, what will?

If we see MPS as a means to education, the answer may well be that no additional input to MPS will do much of anything. That's certainly the impression I seem to get whenever I talk to someone who actually works there.

Driving down to Marquette this morning, I heard Gwen Moore interviewed on WMCS. She talked about child care being a "bottomless pit of need" and, based on her comments during the interview, I think she sees the entire world that way with government being the only way to meet those needs.

It struck me, though, that much of what she wants government to do for kids are things that one would normally expect their families to do. Government, in her view, ought to be a sort of surrogate family.

I can understand, in the face of substantial family breakdown, why she would feel this way. The problem, it seems to me, is that the government makes a rather poor surrogate family. Shouldn't the emphasis be on resisting, rather than accommodating, family breakdown?