Wednesday, May 19, 2004

Is This The New Lie About 9/11?

My sister, who is a devoted Michael Moore fan, sent me an email with this amazing claim:
"Where was our Air Force on Sept 11, 2001?"

Normally deployed whenever any private or commercial plane goes off course or is not responding, there will typically be a half dozen US Air Force fighter jets escorting an errant plane in less than 5 minutes. Yet none even left the ground in the 40 minutes between the two airliners flew into the twin towers, and still none in the many long minutes before the 3rd plane hit the pentagon and the 4th went down in PA.

Make you wonder?
Typically the government sends airplanes out for suspected drug smugglers, unidentified planes, or planes that are off course. Unfortunately, none of these planes were unidentified, and there was nothing about the behavior of the planes until they turned off their transponders to make them suspicious. Where do you get this claim that there will be fighters escorting an errant plane in less than five minutes? Remember that unlike the Cold War, we didn't keep a big chunk of the fleet airborne. It takes five minutes for a pilot to get his helmet on, into his plane, engines started, and off the runway. Even with afterburners on, a fighter plane covers about 30 miles a minute. Even if a plane was already in the air when it was ordered to intercept, a five minute intercept means that you have to be within 150 miles of the target to get there.

The first collision into the WTC was at first believed to be an accident (there have been similar accidents in New York City in the past--a bomber flew into the Empire State Building during World War II). It was not until the second plane collided that it became apparent that this was no accident. Between 9:03 AM (when the second plane collision confirmed that this was no accident), and 10:10 AM (when the last plane crashed), is one hour and seven minutes. During this time, it was unclear how widespread the problem was.

If you are suggesting that the Bush Administration intentionally allowed this to take place, I am just flabbergasted. This would have been CLEARLY not in his interests. The economic destruction 9/11 caused ($27.2 billion dollars in direct costs, and tens of billions in medium-term indirect costs), and the loss of 2.5 million jobs that came from it, meant that until quite recently, it was still up in the air whether Bush would be able to get re-elected or not. The cost of the war has been a major drag on economic growth, and caused enormous problems for the Bush Administration's foreign policy--which before 9/11, was to disengage as much as possible from foreign military intervention. At the beginning of 2001, Bush had managed to upset a lot of Europeans because he had expressed considerable skepticism that the U.S. needed to be involved in the problems of Africa, and the Balkans. (The Balkans and Somalia interventions had been expensive in lives and money.) The events following upon 9/11 forced a complete reversal of his foreign policy. Even on Iraq, Bush and Blair had been discussing replacing the broad economic sanctions against Iraq with "targeted" sanctions, partly because it was clearly not working.

There are some questions as to whether Bush and his team had adequately prepared for al-Qaeda attacks. It appears that like the Clinton Administration, they perceived al-Qaeda as primarily a hazard to U.S. interests overseas. This is not as silly as it sounds. I can remember reading serious work about 15 years ago about terrorists that made the point that the U.S. had been safe from most of the Middle Eastern problems because of something called the 12 hour rule. Apparently, psychologists studying the behavior of terrorists had noticed that nearly all terrorist acts took place within 12 hours travel time from home to target. Apparently, the more the terrorist's familiar environment changed, the more likely he was to chicken out of an attack that might get him killed. (There is some reason to suspect that Iraqi involvement in the WTC bombings of 1993 may have been ignored because it made it simpler to prove a criminal conspiracy against the participants:
What incentive would the US government have had to overlook these changes, stipulate that Abdul Basit and Yousef were the same person, and turn away from any suggestion that Saddam was behind the first WTC attack? One can only speculate.

But by arguing that the 1993 WTC bombing and a separate, FBI-thwarted plot to bomb New York tunnels and buildings were connected as parts of a common conspiracy, prosecutors made convicting the participants, under the very broad seditious conspiracy law, far simpler. As for the Clinton administration itself, there would be less need to confront Saddam and perhaps less need to make hard choices, if it didn't finger him as being behind the WTC bombing.
A number of other factors certainly played a part in this tragedy. There was an existing FAA rule that prohibited airlines from searching more than two Arab passengers per flight. It might not have done any good, because Logan Airport security was so lax, but there were may failures that compounded on this.

I can tell you that security at many airports before 9/11 was really, really bad. I walked through Salt Lake City security in 2000 with a lockback knife in my pocket--I completely forgot it. The guard looked at it, and let me get on the plane with it! I have at least one friend in California who told me that he had passed through security a few years back with a .22 pistol in his carry-on bag--he completely forgot about it, and it wasn't caught. An additional issue may be that there is an Iraqi immigrant--a former member of the Iraqi Republican Guard--who has been of interest for his links to the Oklahoma City Bombing of 1995 (he resembles John Doe #2 that the FBI searched for briefly)--and he was working for security at Logan Airport at some point in the late 1990s. I really don't know meaningful any of this, but Senator Spector of Pennsylvania was QUITE concerned about these connections earlier this year.

The rule prohibiting the counterterrorism division of the FBI from sharing information with the criminal investigation division was also a problem. One of the members of the 9/11 Commission, Jamie Gorelick, actually wrote that rule, and was explicit that it was above and beyond what the law actually required. Certainly that rule made sense, from a civil liberties standpoint, but the consequence was that an FBI agent in Minnesota who tried to alert the Washington HQ about Zacharias Moussaoui's peculiar flight training was unable to get the information to people that might have been able to use it. An FBI agent in Phoenix who was noticing some odd patterns of Arabs taking flight training was also stymied by his efforts to raise concerns. The CIA and FBI were not communicating, a combination of a long tradition of CIA contempt for the FBI, as well as an intentionally created separation of their spheres of action based on understandable, but it turns out, destructive efforts to keep foreign intrigue "out there."

The FBI was also prohibited for a very long time from attending any political or religious group meeting--or even searching the Internet--to gather intelligence until such time as they had evidence that criminal acts were involved, or likely to be involved. This meant that for many years, there were Americans warning of fierce anti-American rhetoric being preached in some mosques in the U.S.--but they could not even go in and listen. This rule made a certain amount of sense, considering the abuses during the Vietnam War era by various state and federal law enforcement agencies, but it also meant that the FBI was pretty well blind to a lot of these threats.

One problem now with trying to understand what happened is that significant parts of the bureaucracy have an interest in protecting themselves from accusations of incompetence. This is no surprise, and it may not even been intentionally deceptive. People have a wonderful capacity for persuading themselves that the decisions that they made five years ago were right then, and right now. For example, the Czech Republic's intelligence service the day after 9/11 realized that they had seen Mohammed Atta before--in April, meeting in Prague with the Iraqi intelligence service officer assigned to the Czech capital. Additional information has come up in the last few days that seems to confirm that this was probably Mohammed Atta who had the meeting. But the FBI steadfastly denies that this could be true, because they have no record of Atta leaving the U.S. during this period. Like Atta couldn't have traveled on a passport using another name?

There are times when war is the ONLY solution to a problem. We are engaged in a deathmatch with al-Qaeda. They will not compromise or bend. The only way to them to stop is either:

1. Withdraw support from Israel; exterminate all Jews; and become Islamic--and that would be the Taliban form of Islam, with burkhas for the women; no education for women; and no divorce (except at the man's whim). They have stated that a fully Islamic world is the only alternative they consider acceptable.

2. Utterly destroy al-Qaeda.

We could, I suppose, take a third course: establish a "national security state" that would allow them to keep trying to hurt us, but making it impossible. But that would mean surveillance cameras everywhere; racial profiling; extraordinary measures at the borders to keep out WMDs and terrorists. The sarin-filled shell that exploded on Saturday, for example, is 155mm in diameter, or about 6 inches. It contained about three liters of unmixed sarin, which would weigh about three kilograms (maybe a bit more--I don't know the exact density of sarin). (It is a good thing that the terrorists didn't realize what they had--it makes you wonder how many more like it are still sitting out there, or like the mustard shell that was also found about two weeks ago in Iraq.) The 100% lethal dose of sarin is about 40 milligrams per minute per cubic meter of air. Released over a minute (say, at the intake to a public auditorium), three kilograms of sarin provides enough to make lethal 75,000 liters of air. This quantity of sarin is something that can fit in a briefcase. (However, it turns out that 75,000 liters of air isn't that big of a room.)

UPDATE: I'm told by pilots that being way off course--or even having our transponder not working--would not even get you any air traffic control attention, much less fighter intercepts.

A numer of people have pointed out to me that even governments with extraordinarily strong traditions of surveillance and control have trouble stopping terrorists. Look at Russia with the Chechens.

It turns out that the Air Force did scramble jets pretty quickly--but this ABC News coverage indicates why it didn't do any good:
"I picked up the line and identified myself to the Boston Center controller," said Air National Guard Lt. Col. Dawne Deskins, the mission crew chief for the exercise. "He said, 'Uh, we have a hijacked aircraft and I need you to get some sort of fighters out here to help us out."

Air Force Col. Robert Marr, who along with Deskins was at the National Guard's Northeast Air Defense Sector in Rome, N.Y. — also known as NEADS — got permission from Air Force Maj. Gen. Larry Arnold to scramble jets from Otis Air National Guard Base in Massachusetts, and they would be in the air headed toward New York by 8:52 a.m. ET.

But as American Airlines Flight 11 was crossing from Massachusetts to New York, it turned off its satellite transponder. That meant the 767 jet plane no longer was signaling its identity, altitude or speed, and therefore was lost amid more than 2,500 planes in the air over the Northeast.


At 9:03 a.m. ET, with television stations on the air live, a plane hit the World Trade Center's south tower.


The F-16 fighter jets that had been scrambled from Otis Air National Guard Base, whose pilots were code-named "Duff" and "Nasty," called in for an update.

"At that point, they said the second aircraft just hit the World Trade Center," Air National Guard Lt. Col. "Duff" said. "That was news to me. I thought we were still chasing American [Airlines Flight] 11.

"We're 60 miles out, and I could see the smoke from the towers," he said. "At that point, obviously, everything changed."

"When the second aircraft flew into the second tower, it was at that point that we realized that the seemingly unrelated hijackings that the FAA was dealing with were in fact a part of a coordinated terrorist attack on the United States," said Army Brig. Gen. W. Montague Winfield, who was at the National Military Command Center at the Pentagon, and alerted the top brass there.
The plane to the Pentagon was also too close by the time fighters were in the air:
"Someone came in and said, 'Mr. Vice President, there's a plane out 50 miles,'" Mineta said.

Mineta conferred with Federal Aviation Administration Deputy Chief Monte Belger.

"I said … 'Monte, what do you have?'" Mineta said. "He said, 'Well, we're watching this target on the radar, but the transponder's been turned off, so we have no identification.'"

As the plane got closer, air officials had picked up enough information to believe the unidentified plane was headed toward Washington, perhaps toward Ronald Reagan National Airport, near the Pentagon.

At 9:30 a.m. ET, at Langley Air Force Base in Virginia, F-16 fighter pilots scrambled into the air 105 miles — or 12 minutes — south of Washington.

"Our supervisor picked up our line to the White House," said Danielle O'Brien, an air traffic controller at an FAA facility near Washington's Dulles Airport, "and started relaying to them the information: 'We have an unidentified, very fast-moving aircraft inbound toward your vicinity, eight miles west, seven miles west.' And it went, '6, 5, 4.'"

"Pretty soon, he said, 'Uh oh, we just lost the bogey,' meaning the target went off the screen," Mineta said. "So I said, 'Well, where is it?' And he said, 'Well, we're not really sure.'"


High overhead, the jet fighters arrived just moments too late.

One of the pilots, Air National Guard Maj. Brad Derrig, recalled "looking down and actually seeing the Pentagon burning — you know, big black smoke billowing out of it," he said. "And I'm thinking, 'We're at war.'"


Up above, the Secret Service ordered the White House staff to evacuate.

"As soon as we were outside, Secret Service agents told us to run," said Jennifer Millerwise, press secretary to the vice president. "One of them yelled, you know, 'Women, take off your heels and run. Take off your heels and run.' And so I did."

At that point, dozens of fighters were buzzing in the sky, as more F-16s scrambled at Andrews Air Force Base in Maryland.

"We were told to get airborne and protect the capital," Air Force Capt. Brandon Rasmussen said. "It never in my wildest dreams occurred to me that one day I'd be orbiting over the Pentagon that had just been hit, looking for possible incoming aircraft."

‘You’re Going to Have to Shoot It Down’

In the Pentagon command center, there was a report of another hijacked plane, United Airlines Flight 93, which apparently had switched off its transponder and turned toward Washington.

"We rapidly developed some rules of engagement for what our military aircraft might do in the event another aircraft appeared to be heading into some large civilian structure or population," Rumsfeld said.

"They said if we get … another one of these, you're going to have to shoot it down," recalled a fighter pilot code-named "Nasty," who was still airborne after responding to the first report of a hijacked plane.
Concerning United Airlines Flight 93, there were fighters that were close--but they weren't armed:
The closest fighters were two F-16 jets flown by pilots on a training mission from Selfridge Air National Guard Base near Detroit.

But there was a problem.

"The real scary part is that those guys are up there on a training mission [so] they don't have any weapons on board they can use," Marr said. "The first question that came from my mission crew commander — the individual that is in charge of the operations force — [was] 'Well, sir, what are they going to do?' I said, 'We're going to put them as close to that airplane as we could in view of the cockpit and convince that guy in the airplane that he needs to land.'"

If that didn't work, Marr suggested, the pilots might have to take the commercial plane down by crashing into it.

"As a military man, there are times that you have to make sacrifices that you have to make," Marr said.

Monday, May 17, 2004

Understanding Plessy v. Ferguson (1896)

Professor Volokh blogs Paul Craig Roberts' latest defense of his counterintuitive position that laws that discriminate based on race are wrong, but that Brown v. Board of Education (1954) was wrong because it struck down laws that required racial discrimination. Roberts's response includes this amazing claim:
When the Supreme Court permitted racial segregation under Louisiana law regulating public transportation in Plessy v. Ferguson in 1896, it did so on the grounds that the state law required equal facilities and that separate accommodation was a social convention, akin to earlier "ladies' cars" on public trains, that did not apply "to nurses attending children of the other race" and did "not necessarily imply the inferiority of either race to the other."
If segregation had been a "social convention"--it would have required no legal teeth to enforce it. Segregating restrooms based on sex was, until a few years back, truly a social convention--as some local governments discovered in the late 1970s and early 1980s, with no legal prohibition on using restrooms intended for the opposite sex. (I would expect that you can find either state laws or local ordinances on the subject now.) It was precisely because racial segregation was not a social convention that Louisiana needed to pass a law segregating railroad cars by race. This law was remarkable not merely for requiring segregation, but even providing for "penalties for the refusal or neglect of the officers, directors, conductors, and employees of railway companies to comply with the act...." In short, Louisiana didn't trust the free market and its response to "social convention" to be sufficient to racially segregate railroad cars; the government's heavy hand was required.
In other words, even segregationists had to accept equality before the law as the operative de jure principle. In his famous dissent, Justice Harlan was concerned that the Louisiana law would allow class distinctions to enter the legal system in the form of race distinctions. The Louisiana law was particularly dangerous because blacks and whites were economically as well as racially distinct.
If blacks and whites had really been economically distinct, there would have been no need for such a law. Blacks could not have afforded to buy first class tickets. If whites had been following a "social convention" about segregation, and were economically distinct from blacks, they would not have been buying tickets in the lower class cars with whites.

I have been reading Edward L. Ayers, The Promise of the New South: Life After Reconstruction, and one of the points that he makes is that racial segregation of railroads came about not because of blacks and whites being economically distinct, but because they were becoming economically indistinct. An increasingly middle-class black population did not want to sit in the same cars with men who were chewing tobacco, drinking, and otherwise behaving badly. The reminder that the important distinction was not race, but class, was offensive to poor whites (who desperately needed someone to look down upon). Politicians, of course, knew full well that the way to elective office was to appeal to the worst instincts of white voters.

Friday, May 14, 2004

Paul Craig Roberts on Brown

I used to think quite higly of Paul Craig Roberts, some years back. I blogged some months back about his bizarre claims comparing slavery to the tax system in modern America. Roberts has now written a pretty strange piece about why Brown v. Board of Education (1954) was a bad thing.

Now, there are parts of Roberts' new essay that are certainly true--that some prominent black leaders now recognize that the focus on desegregation--rather than quality schools--may have been a mistake. I blogged a few days ago about how not only Thomas Sowell, but also Derrick Bell now have this concern--and that W.E.B. DuBois eventually shared this view in his later years.

Other parts of Roberts' essay, though, just leave me disturbed and perplexed:
Brown still matters to the left, Garrow writes, because the power the Court seized in its Brown ruling can be used to mandate homosexual marriage. The Massachusetts court has taken the lead, and on May 17 homosexuals will be able to obtain state marriage licenses. This, Garrow writes, is a fitting tribute to Brown’s constitutional vision on its 50th anniversary.

Whether one looks with favor or disfavor on homosexual marriage, Garrow is correct. Brown gave the judiciary the power to impose its morality on society, regardless of legislation or societal values.
I strongly disagree. The road to the Goodrich decision doesn't pass through Brown (which was based on a clear question of whether separate schools violated equal protection), but through Griswold v. Connecticut (1965)--a case that, as I have previously pointed out, was based on armwaving, rather than history.

Neither Brown nor Griswold was the beginning of this judicial tyranny, however. You can make as strong of a case that Lochner v. New York (1905) did this as well. It also struck down a state law based on a rather questionable interpretation of the Fourteenth Amendment. At least Brown has the advantage that the Fourteenth Amendment was clearly intended to deal with state laws that discriminated based on race. (I recognize that there is some legitimate reason to believe that Congress did not intend to strike down segregation of public schools.) If Congress intended the Fourteenth Amendment to enshrine laissez-faire into our Constitution, as Lochner seems to think, I haven't seen the evidence for this.

UPDATE: Apparently Roberts has responded to Volokh at some length, of which the most amazing claim is: "As everyone knows, Brown was not a 14th Amendment decision."

What? The decision is right here, and it is very clear:
In each of the cases, minors of the Negro race, through their legal representatives, seek the aid of the courts in obtaining admission to the public schools of their community on a nonsegregated basis. In each instance, [347 U.S. 483, 488] they had been denied admission to schools attended by white children under laws requiring or permitting segregation according to race. This segregation was alleged to deprive the plaintiffs of the equal protection of the laws under the Fourteenth Amendment.
Even the headnotes--at the first beginning--are clear on this:
Segregation of white and Negro children in the public schools of a State solely on the basis of race, pursuant to state laws permitting or requiring such segregation, denies to Negro children the equal protection of the laws guaranteed by the Fourteenth Amendment - even though the physical facilities and other "tangible" factors of white and Negro schools may be equal. Pp. 486-496.

Tuesday, May 11, 2004

The Bill of Rights & Amendment IX

Why Did We Add A Bill of Rights?

In spite of Federalist arguments that the new Constitution really didn't need a Bill of Rights, because the federal government lacked any written authority that could be used to abuse the rights of individuals, Federalists often found it expedient to agree to Antifederalist concerns. Several of the states made requests for a Bill of Rights. These were not conditions of ratification, in any legal sense, but they were a strongly worded request. In addition, during debates about ratification, letters and articles expressed some requests. Scattered throughout Elliot's Debates you can find examples of these requests. Here is a taste of Virginia's request (a little more strongly worded than some other of the others):
"That there be a declaration or bill of rights asserting, and securing from encroachment, the essential and unalienable rights of the people, in some such manner as the following:--

"1st. That there are certain natural rights, of which men, when they form a social compact, cannot deprive or divest their posterity; among which are the enjoyment of life and liberty, with the means of acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety.

"2d. That all power is naturally invested in, and consequently de, rived from, the people; that magistrates therefore are their trustees and agents, at all times amenable to them.

"3d. That government ought to be instituted for the common benefit, protection, and security of the people; and that the doctrine of non-resistance against arbitrary power and oppression is absurd, slavish, and destructive to the good and happiness of mankind.

"4th. That no man or set of men are entitled to separate or exclusive public emoluments or privileges from the community, but in consideration of public services, which not being descendible, neither ought the offices of magistrate, legislator, or judge, or any other public office, to be hereditary.


"8th. That, in all criminal and capital prosecutions, a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence, and be allowed counsel in his favor, and to a fair and speedy trial by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty, (except in the government of the land and naval forces;) nor can he be compelled to give evidence against himself.

"9th. That no freeman ought to be taken, imprisoned, or disseized of his freehold, liberties, privileges, or franchises, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the law of the land.

"10th. That every freeman restrained of his liberty is entitled to a remedy, to inquire into the lawfulness thereof, and to remove the same, if unlawful, and that such remedy ought not to be denied nor delayed.

"11th. That, in controversies respecting property, and in suits between man and man, the ancient trial by jury is one of the greatest securities to the rights of the people, and to remain sacred and inviolable.


"15th. That the people have a right peaceably to assemble together to consult for the common good, or to instruct their representatives; and that every freeman has a right to petition or apply to the legislature for redress of grievances.

"16th, That the people have a right to freedom of speech, and of writing and publishing their sentiments; that the freedom of the press is one of the greatest bulwarks of liberty, and ought not to be violated.

"17th. That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power.
The first eight amendments that became the Bill of Rights contained a hodgepodge of specific guarantees, culled and refined by Madison and the Congress from the dozens of requests. If you spend much time digging through the legislative history of the Bill of Rights, you will be astonished at how little debate some parts of it received. The "right of the people to keep and bear arms" in Amendment II was barely mentioned, while debate about a clause concerning conscientious objectors was the subject of great discussion--and eventually deleted.

Amendment IX

The Bill of Rights was not considered a list of all the rights retained by the people--and indeed, this had been one of the Federalist criticisms of adding a Bill of Rights to the Constitution--what if we leave out an important one? Couldn't this be used later to argue that a right was not retained? Hence, Amendment IX:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Pretty clearly, there were some rights retained by the people, but not explicitly listed. But were these rights protected against the federal government alone, or against the states as well? I confess to being of two minds on this. Certainly, the Constitution contains protections for individual rights that restrain the states, in Art. I, sec. 10. You can find examples of state supreme courts, even after Barron v. Baltimore (1833), striking down state laws for being contrary to the Bill of Rights, such as Nunn v. State (Ga. 1846). Yet the arguments for a Bill of Rights were explicitly about the dangers of the new and more powerful federal government. The notion that Amendment IX also protected rights against the states would seem contrary to the argument Hamilton advanced in Federalist 84, which seems to indicate that a state government, unless explicitly reined in by a Bill of Rights in its own state constitution, "has the regulation of every species of personal and private concerns." This does not preclude Amendment IX limiting state authority, but it does require at least counterbalancing evidence to argue against it.

Regardless of whether the Ninth Amendment protects against the federal government alone, or both federal and state governments, the question then becomes: What rights were they? Judge Bork likened the Ninth Amendment to an inkblot, not because he was denigrating this amendment, but because in Bork's view, judges were imagining all sorts of wonderful rights under that inkblot. Liberal judges seem to have a pretty big list of rights that they can find under that inkblot--although, for some odd reason, they have trouble finding an individual right to keep and bear arms in the amendment that says, oddly enough, "the right of the people to keep and bear Arms, shall not be infringed."

Just because the Bill of Rights didn't explicitly list a right, doesn't mean that it isn't retained by the people. However: this doesn't mean that everything that some clever lawyer decides to call a right "retained by the people" is retained by Amendment IX. I would argue that to call a right protected by Amendment IX, one must demonstrate that it was recognized as a right in 1789, when Congress passed it, or 1791, when the states ratified it.

Part of why I am not impressed with liberal use of the Ninth Amendment is that they engage in armwaving rather than historical argument. A good example is Griswold v. Connecticut (1965), which struck down a state law prohibiting married couples from receiving contraceptives. (My, how Connecticut has changed in fifty years.) Justice Goldberg's concurring opinion spends several pages proving that the Ninth Amendment protects something (a point that no one would argue), but the extent of his historical evidence that it protects the right of married people to obtain contraceptives, regardless of state law, is this lame little statement:
The fact that no particular provision of the Constitution explicitly forbids the State from disrupting the traditional relation of the family - a relation as old and as fundamental as our entire civilization - surely does not show that the Government was meant to have the power to do so. Rather, as the Ninth Amendment expressly recognizes, there are fundamental personal rights such as this one, which are protected from abridgment by the Government though not specifically mentioned in the Constitution.
It might well be that there were no laws in 1791, when the Ninth Amendment was ratified, that prohibited married couples from having and using contraceptives. (Such laws seem to be nineteenth century in origin.) But Goldberg relies on "surely" rather than any evidence. More importantly, I can't seem to find any place where Goldberg explains why the Ninth Amendment is binding on the states. I certainly find such a claim plausible, but a bare claim without evidence, especially because the text provides less than perfect certainty about which governments it restrains, isn't persuasive.

I would argue that the correct method of determining what rights were protected by the inkblot amendment is to see what rights were actually retained in 1791. If you argue that the Ninth Amendment protects against the states as well as the federal government, then look at what laws the states had in 1791. If some action was universally a criminal act in 1791, it's a fair bet that Congress and the states who ratified the inkblot did not intend that action to be a "retained right." If there were no laws prohibiting that action in 1791, and there are no explicit statement denying that this was a right, I think it is a fair assumption that this was a "retained right."

What about the cases in the middle, where some states criminalized an action, but others did not? I think it is hard to claim that this is a "retained right" if some states criminalized it, and apparently saw no need to repeal their law.

Of course, if the Ninth Amendment protects only against the federal government, then the state laws provide us some hints as to what rights were retained against federal action. For example, that every state had sodomy laws would suggest that this was not a retained right against the federal government, and Congress would have authority to pass such laws in those places where it has exclusive jurisdiction (terrorities, military bases).

Next: The Fourteenth Amendment

Friday, May 7, 2004

Here's My Chance To Offend A Lot Of Other Bloggers

I don't know if the statistical claims for the improvement at Angola State Prison are accurate, or meaningful--there's not much real data here. It's still an encouraging story to read--and remember why they were originally called a "penitentiary"--they were a place to be penitent. Pennsylvania locked you up in a cell with a Bible. The rest was up to you:
The Louisiana State Penitentiary, known as Angola, is the largest prison in the United States. Louisiana's most-hardened inmates end up at Angola. Most will die there. Angola is home to the state's death row and the most restrictive cell blocks. It's also where every man serving a life sentence in the state waits out his days. In Louisiana, life means life. No parole. No reduction of sentence. Nothing short of a pardon—or death—will release a lifer.

Until the 1970s inmates served as guards, and killing an escaping prisoner could earn one a ticket home. Prisoner-on-prisoner violence was common. Men slept with layers of newspapers and magazines under their shirts as rudimentary protection against nocturnal assaults with shivs, prison-made knives. An inmate's lawsuit in the mid-1970s forced reforms that ended much of the brutality.

Welcoming God into the prison has made even deeper changes for the 5,100 men locked up there. The faith-based programs that Warden Burl Cain has encouraged have led to genuine repentance—and to prisoners graduating from seminary and going as missionaries to other prisons. That is unique in a country of 1,850 prisons.


One day in 1997, a few years after the federal government cut off grant money that funded college educations for inmates, Cain was complaining about the lack of higher education to Baptist ministers visiting Angola. Corrections officials see college courses as a good inmate-management tool, a privilege for only the best-behaved prisoners.

The ministers talked to the New Orleans Baptist Theological Seminary about opening a program at Angola. "It just fell right into our lap," Cain says.

The prison-based school needed a library to earn accreditation, and that also seemed to fall out of the sky. "We got in touch with Oprah Winfrey's company and, sure enough, they bit like a big fish," says Cain, who has a penchant for cowboy boots and draft horses. "She did something on her show, and the books started rolling in."

The prison was primed, according to Cain, for a four-year college producing trained ministers. "We had had all these religious groups come, and everybody was drinking the milk," Cain says. "They were ready for the meat. The meat was the seminary."

The first seminary class graduated in 2002. "They walked down the aisle in their rented caps and gowns, and their families cried," Cain says. "One mother came to me and said, 'I can't understand my emotions. My son came to prison and found Jesus, and he's graduated from seminary. He had to do this terrible crime to get to here.' I told her maybe the victim didn't die in vain."

One of those seminary graduates was preaching in the Main Prison chapel filled with inmates one drizzly Sunday in October.

"All men need to pray," Harold Savoy, wearing his cleanest pressed set of inmate denim, urged his congregation from the pulpit. "Pray for deliverance. Pray for doors to be opened here at Angola. Pray that we be delivered, not just from prison but from sin and death."

Alone or in pairs, they prayed, they cried. Many fell to their knees, buried their heads beneath clasped hands, and prayed. Their prayers murmured through the concrete block chapel with narrow stained-glass windows perched high on the walls, just under the roof, designed for beauty and security.

About 10 years ago, Savoy began looking at the direction of his life—to be spent entirely in Angola. When he rededicated his life to God, he had no idea he would graduate from seminary in 2002.

In the Main Prison chapel on a quiet weekday morning, as inmate workers sorted books with a bright sun lighting up the stained glass, Cain talked of sending seminary graduates out to spread the gospel.

"We had 80 graduates from the seminary, and what are we going to do with them?" he had asked himself. He had then said to himself, "Man, we need missionaries."

First they sent some seminary grads from the Main Prison to outlying block dorms. Recently Angola inmates have gone as missionaries to prisons across the state. (Prisoners can request transfers, which must be approved by the corrections department.) Leaving Angola was a big step for those inmates.

"They're leaving what's comfortable," Cain says. "This place has become their family. It's their culture, their society."

Chaplains at other camps and prisons were at first skeptical. But they came to see that these trained inmates could help them minister. Chaplains work from 9 to 5, but the inmate missionaries minister to their flocks all day, every day, Cain says. Missionaries will serve two years before returning to Angola.


Bob Downing, a longtime volunteer in inmate ministries, has also seen the atmosphere change in Angola as more Christian programs came into the prison. Downing is an appeals court judge who, while serving as a district court judge in Baton Rouge, sentenced many men to Angola.

"You can just see the joy on the inmates' faces," he says. "Rapes have gone down, and murders have all but disappeared."

Nothing helps reduce the number of ex-convicts who return to prison, he says, like participating in religious programs while inside. Earning a high school equivalency degree in prison reduces the chance of returning by 4 percent. Having a job waiting on the outside is worth another 14 percent, he says, but participating in a religious program half the time they're locked up is good for a 36 percent reduction.

"The national repeat offender rate is 67 percent—Louisiana's is down to 50," Downing says. "We must be doing something right."
UPDATE: A reader tells me:
The Angola success numbers seem reasonable especially if they have some kind of follow through with the ex-offenders when they get out. I work with a program called Texas Reachout Ministries which provide a place for an ex-offender to live in a home enviroment with other ex-offenders when they get out of prison. They help them get a job and they provide mentors from local churches, Bible studies, counseling, mandatory drug testing, love and time for them to get on their feet and save money for a car, housing, etc. The ex-offenders have to pay rent, do chores, etc. and get along with their housemates. Texas Reachout has about a 75% success rate vs. a 90% recidivism rate in Texas. Success [is] defined as the ex-offenders move on to hold jobs, live on their own and become law-abiding
citizens again. I would however give most of the credit to the Holy Spirit.

Saturday, May 1, 2004


Moon at 1/250th second, ASA 100 film, 25mm eyepiece projection. I think this is about f/28.

Moon at 1/125th second, ASA 100 film, 25mm eyepiece projection.

The longer exposure makes the crater rays look better, but washes out the maria too much, I think. A gibbous or full Moon isn't the best choice as a target, but that's all I had last night.

You will notice some odd color effects on the limb of the Moon--that's my scanner having registration problems, I think, because it's not in the picture.