Venia Legendi

Chemical Interlude

2009-02-13T14:32:00.003-05:00

If you have any interest at all in wonderfully strange and absurdly dangerous compounds, peruse this hilarious set of articles, entitled "Things I Won't Work With", by the chemist Derek Lowe

Among the lovely substances mentioned: chlorine trifluoride (hypergolic with most conventional fuels, virtually all organic compounds, and things like rock and sand); titanium tetraazide; anhydrous dichlorine heptoxide ("a liquid with a boiling point of around 80 C, and I'd like to shake the hand of whoever determined that property, assuming he has one left"); carbon diselenide (so mephitic that, when first synthesized, "the vapors [ . . . ] escaped the laboratory and forced the evacuation of a nearby village"), usw.

The glories of YouTube

2009-01-27T20:48:00.003-05:00

The Nixon tapes, 30 April 1973: Nixon, clearly drunk, telling Haldeman that he loves him. I'm not making this up.

Great news

2009-01-20T11:31:00.002-05:00

Marty Lederman, a very bright man and first-rate lawyer, has joined OLC under Obama.

What do we talk about when we talk to the CIA?

2009-01-09T14:05:00.012-05:00

For all its limitations, the Freedom of Information Act is one of the jewels of the American political system.

But I wouldn't want to be the person at the CIA charged with fielding FOIA submissions. The logs of recent requests (here, here, and doubtless many other places) make for amusing reading. Alongside serious demands for information, there are dozens of people asking for their own files, the obligatory questions about UFOs, the Kennedy assassination, and mind control, and requests for things that are already public and easily available (the CIA Factbook and the like). But that's just the tip of the iceberg. I pity the poor fellow who has to write responses to the requests summarized as:

"impact Visa card holders" (3 Jan. 2000) [recte visa holders?]

"assassination of President William McKinley or Leon Czolgosz" (12 Jan. 2000)

"clear worms" (19 Jan. 2000)

"information in connection with spontaneous human combustion" (29 Feb. 2000)

"'a copy of the U.S. and the Louisian [sic] State Constitution'" (16 Mar. 2000)

"Noah's Ark" (3 Apr. 2000)

"CIA reports from 1972 to the present" (3 May 2000)

"any data from any data file" (8 June 2000)

"research on sex pheromones" (23 Aug. 2000)

"'request a CIA agent to visit him and the complete mailing address of the CIA unit in San Diego, California'" (18 Sept. 2000)

"autographed photo of George J. Tenet" (17 Oct. 2000)

"pilots in pyjamas" (24 Oct. 2000)

"seeking location of biological father" (1 Oct. 2004)

"Agency's employment policy for ex-felons" (2 Mar. 2005)

"mind reading/control implants and who to contact if NSA intends to murder requester using such implants" (4 Mar. 2005)

"children's media showing CIA is looking to alter its public image to younger U.S. consumers under the age of 13" (29 Mar. 2005)

"all domestic individuals holding assets exceeding 10 million U.S. dollars" (11 Jan. 2006)

"James Bond" (7 Jul. 2006)

"www.nowthatsfuckedup.com" (5 Jan. 2007)

"how much money we receive back for all taxes" (26 Jan. 2007)

That was fast

2009-01-05T15:57:00.005-05:00

Eric Posner is wrong about virtually everything involving politics or the law, but the opening sentence of his analysis of this op-ed by John Bolton and John Yoo in Sunday's New York Times expresses my feelings perfectly:

It didn’t take long for conservatives to rediscover limits on executive power. You’d think something — if not philosophical consistency, then at least manners — would cause them to hold off until, say, inauguration day.

Iter

2009-01-04T12:32:00.004-05:00

(Walking in the snowy metropole.)

Helvidius: I might just give up and become a wandering iterant.

Alix: Don't you mean itinerant? I think you've been spending too much time programming. ...

Alix's recipe corner

2009-01-03T11:43:00.002-05:00

The legendary Rôti sans pareil:

Farcir une belle olive avec des câpres et des anchois ; après l’avoir fait mariner dans l’huile, l’enfermer dans un becfigue, ou tout autre oiseau dont la délicatesse est connue, pour le mettre ensuite dans un plus gros, tel qu’un ortolan ; prendre une mauviette, dont on supprimera les pates et la tête, pour entourer les deux autres, et la recouvrir d’une barde de lard très mince. Mettez la mauviette dans l’intérieur d’une grive, parée et troussée de même, la grive dans la caille, la caille dans un vanneau, celui-ci dans un pluvier, pour l’envelopper d’un perdreau ; enfermez ce perdreau dans une bécasse, celle-ci dans une sarcelle, pour passer dans un pintadeau, ensuite à un jeune canard sauvage, de là dans une poulade, arrivez au faisan que vous recouvrirez avec une oie, après quoi vous mettrez le tout dans une poule-dinde que vous enfermerez dans une outarde. Que si, par hasard, il se trouvait quelque chose de vide à remplir, vous auriez recours aux truffes, marrons et saucisses, dont vous feriez une farce. Placez le tout dans une casserole de suffisante capacité, avec des petits oignons piqués de clous de girofle, des carottes, du jambon coupé en petits morceaux, du céleri, un bouquet garni, mignonnette, quelques bardes de lard, poivre, sel, épices fines, coriandre, une ou deux gousses d’ail ; mettez cuire sur un feu doux continué pendant vingt-quatre heures, ou, mieux encore, dans un four un peu chaud ;dégraissez et servez sur un plat chaud.

Abstraction faite d’une complication aussi grande, on peut varier à l’infini, suivant les lieux et les saisons, cette manière de préparer plusieurs objets dans un seul.

Idiosyncratic annoyance #542: Ad hoc spelling alphabets

2008-12-30T14:51:00.021-05:00

Which I will not refer to as a ‘pet peeve’, because the phrase ‘pet peeve’ is one of my idiosyncratic annoyances.

Monologue dramatique, d'après d'innumerables conversations téléphoniques que j’ai eu la malchance d’écouter:

Yes. The licence plate? It’s B T P 4 5 2. B as in Boy. T as in Top. P as in Paul. Four. Five. Two. Yes. No ... no, B. B as in Boy. Yes. Yes, that’s what I said. No ... wait ... did you say Boy or Toy? No, oh, okay, sorry, I said B as in Boy, not T as in Toy. Make it B as in Ball. You’ve got it. Yes. No, no, not P as in Paul, B as in Ball. Right. Then T as in Top. What? No. Top, not Pop. T as in Top. ...

Public service announcement: we have fixed spelling alphabets that were specifically designed by linguists in order to avoid this kind of ridiculousness.

Is it really so hard to remember — to use the best-known Anglophone example, the NATO spelling alphabet — the words Alfa, Bravo, Charlie, Delta, Echo, Foxtrot, Golf, Hotel, India, Juliett, Kilo, Lima, Mike, November, Oscar, Papa, Quebec, Romeo, Sierra, Tango, Uniform, Victor, Whiskey, X-ray, Yankee, Zulu? (There are plenty of other well-designed ones if you feel that the aeronautical connotations of that alphabet are a bit much for customer service.)

Misspelling alphabets, of course, are an art in themselves. My best effort thus far (drawing on the work of others, including examples here and here): Aye, Bdellium, Cue, Dzo, Ewe, Felindre, Gneiss, Hour, Ian, Juan, Knight, Lladró, Mneme, Nxuba, Oestrogen, Ptyxis, Quay, Rzeszów, Sea, Tchotchke, Uakare, Vates, Wring, Xylem, Yves, Zollverein.

Suggestions for improvements are welcomed.

My first trackback

2008-12-29T14:37:00.006-05:00

Obama Conspiracy Theories, a site devoted to looking at "alternate views of reality and fringe ideas regarding Barack Hussein Obama II"--and very carefully critiquing them--was kind enough to link to my post about Chester Arthur (which it calls "delightful") and to "recommend it heartily".

I reciprocate the compliment unreservedly.

OCT is definitely the first place to go if you want to see just how strange some of the anti-Obama arguments get. I must also say that I admire the author's extraordinary patience and civility in trying to reason with the "truthers"--qualities which I'm not sure I'd be able to muster were I keeping up with this stuff on a daily basis.

Niemeyer

2008-12-29T14:04:00.002-05:00

I am again struck by how little I know about things I profess to love. Until today, I had never seen (or had seen and somehow forgotten) photographs of the incomparable Edificio Copan in São Paulo. My only experience with São Paulo, sadly, was a long layover in its ugly airport fifteen years ago. But now I want to return, if only to for a brief encounter with the late-modernist architectural sublime.

Query

2008-12-25T21:18:00.003-05:00

Of late this blog's diet has involved a lot of mockery directed at cranks purveying bad law and bad history in the service of xenophobia and political opportunism. Perhaps a worthwhile endeavour, perhaps not, but it's time to return to our usual, and far more pleasant, fare of academic, philosophical, literary, and bibliographical trivia.

Somewhere, I read or heard the following smackdown: "A logician is a mathematician who knows the difference between use and mention." I cannot remember where, and I cannot find it on the internet. Can anyone help me?

The strange case of Chester Alan Arthur

2008-12-18T09:41:00.014-05:00

I don't really wish to return to the ludicrous Obama birth lawsuit that I blogged about earlier, because it's all become tiring, but I thought I should post here for permanent reference a comment that I made on a thread at the Volokh Conspiracy on the 1st of December (which, like most threads even incidentally related to this subject, quickly filled up with cranks) relating a little historical trouvaille that I found:

A long time ago, I wrote about this frivolous lawsuit on my blog, because I thought it symptomatic of a very depressing, and pervasive, kind of constitutional illiteracy among certain self-anointed "defenders of the Constitution".

But even a frivolous lawsuit can lead to interesting discoveries, and I later found an amusing little bit of historical trivia.

There once was a man who became President after having had dual nationality at birth through his father, which he apparently lost years before taking office. However, he was the victim of a smear campaign by some of his opponents, alleging that he had lied about his birthplace and was ineligble under the natural born citizen clause. That man's name? Chester Alan Arthur.

(1) Dual Nationality: Arthur was, as far as I've been able to find, the only President before Obama who ever held dual nationality (excluding those who lived through the Revolution). Arthur's father was born in 1796 in Dreen, Co. Antrim, Ireland, and moved to the United States in the early nineteenth century. Presumably Arthur's father was formally naturalized in the United States, but that was irrelevant as a matter of British law: until 1870, the allegiance of a subject was considered inalienable, with the exception of people residing in British territory at the time of a change in sovereignty. (*) (Those familiar with the issue of impressment before the 1812 war will remember the force of nemo potest exuere patriam in British law.) By the statutes of 4 Geo. II, c. 21, and 13 Geo. III, c. 21, this made Chester Alan Arthur, born 1829 or 1830 in Vermont, a British subject at birth according to British law.

However, in 1870, the Naturalization Act, 33 & 34 Vict. c. 14 was passed, allowing (for the first time) voluntary expatriation by British subjects (and also naturalization of foreigners without case-by-case legislation). Under s. 6 of that act, "Any British subject who has at any time before, or may at any time after the passing of this Act, when in any foreign state and not under any disability voluntarily become naturalized in such state, shall from and after the time of his so having become naturalized in such foreign state, be deemed to have ceased to be a British subject and to be regarded as an alien."

I believe that this means that, as of 1870, Arthur's father would have been deemed retroactively to have expatriated himself on becoming a naturalized American subject (before Arthur's birth), thus taking Arthur himself out of the scope of the 1730 and 1772 Nationality Acts. Thus he would have lost his status as a British subject some eleven years before becoming President.

(A quick look at an old nationality text available online seems to confirm this. 1 Sir Francis Piggott, Nationality: Including Naturalization and English Law on the High Seas and Beyond the Realm (1907) 65, 152ff. But I admit that I'm not an expert, and the Naturalization Act 1870 is anything but clearly written. So it's possible that Arthur might still have been a dual national at the time of his Presidency.)

(2) The Conspiracy Theory: In the 1880s, a man named Arthur Hinman launched a campaign to discredit Arthur, claiming that he had in fact fraudulently concealed his Canadian birth. In 1884, Hinman wrote a book, entitled How a British Subject Became President of the United States . I haven't seen the book, but here's the rough story, as provided by this website:
Hinman, a New York lawyer, brought the issue to the attention of the Brooklyn Daily Eagle in a letter early in August, 1880, while Arthur was yet a candidate for the Vice-Presidency. Arthur evidently had flip-flopped on the issue in the past. One article, dated August 13, quotes a leading Republican in a way reminiscent of more recent campaigns: "Why in —— don't the General come out and say where he was born, and put an end to all this mystery." [ ... ] The following story appeared in the New York Times of Dec. 22, 1880:

MATERIAL FOR A DEMOCRATIC LIE

ST. ALBANS, Vt., Dec. 21.—A stranger arrived here a few days ago, and registered at the American House as A. P. Hinman, of New-York. Since then he has been very busy in the adjoining town of Fairfield, ostensibly collecting materials for a biography of Vice-President-elect Arthur. He has privately stated to leading Democratic citizens, however, that he is employed by the Democratic National Committee to obtain evidence to show that Gen. Arthur is an unnaturalized foreigner. He claims to have discovered that Gen. Arthur was born in Canada, instead of Fairfield; that his name is Chester Allen instead of Chester Abell [sic]; that he was 50 years old in July instead of October, as has been stated, and generally that he is an alien and ineligible to the office of Vice-President.

[ ... ]

[Arthur biographer Thomas C.] Reeves dismisses Hinman's theory, while admitting that President Arthur lied about his age. He cites the Arthur family Bible, held at the Library of Congress, which gives the President's year of birth as 1829, and makes no mention of a child named "Chester Abell."
So what can we learn from this trip through the realm of historical minutiae? Three things, I think:

(1) The present day has no monopoly on political cranks and conspiracy theorists.

(2) Having been a dual national doesn't disbar one from being President. This should be completely obvious, but when people claim otherwise, advancing facially absurd readings of the "natural born citizen" clause, it's nice to have a precedent as well as a textual argument to throw back at them.

(3) We really should get amend the Constitution to rid of the "natural born citizen" provision, not only because it's stupid, but because it attracts deluded partisans like moths to a flame.

(*) This exception was established in the case of Doe d. Thomas v. Acklam, Barn. & Cress. 779, 795, 107 Eng. Rep. 572, 578 (K.B., 1824). It explains why James Buchanan did not hold dual nationality at birth despite his British-born father: Buchanan père emigrated to the U.S. -- just barely -- before 3 September 1783, the date of the Paris Peace Treaty, which (in British law) marks the transfer of sovereignty.

It seems that I'm not the only one to have noticed this. The filer of one of the frivolous lawsuits not only wants Obama thrown out on the grounds of dual nationality, but has filed a supplemental brief claiming both that Arthur case isn't a precedent because he "concealed" the facts of his birth (the source for this seems to be the same as for the Hinman allegations) and also that, because Arthur appointed Justice Horace Gray, who wrote the majority opinion in the Wong Kim Ark case in 1898 (twelve years after Arthur's death), the Supreme Court should revisit that precedent. (Warning: clicking on the link in the previous sentence leads one into a world occupied by--well, the kind of people who make arguments like that.)

I have to say this anti-Obama argument seems like a pretty good case for rule 11. (Although, on the question of what --if anything--actually constitutes a frivolous argument, see a hilarious essay by Stanford Levinson, 'Frivolous Cases: Do Lawyers Really Know Anything at All?', 24 Osgoode Hall Law Journal 353 (1986).)

(Incidentally, lots of people on the right, particularly anti-immigration advocates, hate Wong Kim Ark, because it definitively stated that citizenship in the United States is governed by jus soli (as constitutionalized in the Fourteenth Amendment). United States v. Wong Kim Ark, 169 U.S. 649 (1898); for the best judicial discussion of the common-law jus soli principle as it stood in the America before the Fourteenth Amendment, see Lynch v. Clarke, 1 Sand. Ch. 583 (N.Y. Ch., 1844). I have no intention of going into the argument here, but (as I once mentioned in yet another Volokh comment thread) I think Justice Gray's majority opinion an exemplary instance of sound, learned judicial craftsmanship: for a short summary of the speciousness of the pseudo-originalist anti-jus soli arguments, see James C. Ho's "Defining 'American': Birthright Citizenship and the Original Understanding of the Fourteenth Amendment", 9 Green Bag 2nd 367 (2006).)

I have nothing substantive to add to my earlier posting, except for the text of the relevant statutes under which Arthur was born a British subject, which I left out for reasons of space:

The background to the two statutes is De natis ultra mare 1351, 25 Edw. I stat. 1, 1 Stat. Realm 310, which provided

[ . . . ] q[ue] touz les enfantz heritiers, qi s[er]ront neez desore dehors la ligeance le Roi, des queux enfantz les piere & miere au temps du nestre sont et s[er]ront a la foi & de la ligeance du Roi Denglet[er]re, eient & enjoient meismes les b[ene]fice & avantage dav[er] & porter heritage deinz la dite ligeance, come les aut[ers] heritiers avantditz, en temps avenir; l[ai]ssint totes foitz q[ue] les mieres de tieux enfantz passent la meer p[ar] conge & volunte de lour barons.

[ . . . ] that all Children Inheritors, which from henceforth shall be born without the Ligeance of the King, whose Fathers and Mothers at the Time of their Birth be and shall be at the Faith and Ligeance of the King of England, shall have and enjoy the same Benefits and Advantages, to have and bear the Inheritance within the same Ligeance, as the other Inheritors aforesaid [the children of the King and some named individuals, born outside the realm, to whom the earlier parts of the statute guaranteed their inheritance on the same terms as native-born subjects] in Time to come; so always, that the Mothers of such Children do pass the Sea by the Licence and Wills of their Husbands. [Record Commission trans. at 1 Stat. Realm. 310]

This is, of course, anything but pellucid; it was long debated (and to some degree still is) whether it was declaratory or amendatory of the common law, whether it applied only to the first generation or "to all generations", as Francis Bacon argued as Attorney-General in the case of the post-nati (Calvin's Case, 2 How. St. Tr. 559, 585 (Ex. Ch., 1608)); and whether both parents would have to be English, or only one (and if so, whether the parent had to be the father). For a very lengthy discussion, see Clive Parry, British Nationality Law and the History of Naturalization (Milan, 1954).

The next important statute was the Foreign and Protestants Naturalization Act 1708, 7 Anne, c. 5, 9 Stat. Realm 63, which provided (§1) that all Protestants "born out of the Ligeance of Her Majesty Her Heires and Successors" might be naturalized by taking the Oaths of Supremacy and Allegiance and meeting a few other conditions and, (§3)

That the Children of all natural born Subjects born out of the Ligeance of Her Majesty Her Heires and Successors shall be deemed adjudged and taken to be natural born Subjects of this Kingdom to all Intents Constructions and Purposes whatsoever

In 1711, §1 was repealed, but §3 remained in force (10 Anne, c. 9 [c. 5 in other editions], 9 Stat. Realm 557).

(In British Nationality Law, p. 77, Clive Parry notes an interesting sidenote: by expressing allegiance as the status of one who is a subject of the Kingdom, rather than a subject of the King, the 1711 act seems to deny the doctrine of Calvin's Case that allegiance is due to the King in his natural rather than politic capacity. For more on this distinction, see--it more or less goes without saying--Kantorowicz's magisterial The King's Two Bodies.)

The act relevant in Arthur's case, the British Nationality Act 1730, 4 Geo. II, c. 21, did not profess to be setting down new law, but instead styled itself "An Act to explain a Clause in an Act made in the seventh Year of the Reign of her late Majesty Queen Anne, For Naturalizing foreign Protestants, which relates to the Children of the natural-born Subjects of the Crown of England, or of Great Britain". The first section provides:

Whereas by an Act of Parliament made in the seventh Year of the Reign of her late Majesty Queen Anne, intituled, An Act for naturalizing of foreign Protestants, it is, amongst other Things, enacted, That the Children of all natural-born Subjects, born out of the Ligeance of her said late Majesty, her Heirs and Successors, should be deemed, adjudged and taken to be natural-born Subjects of this Kingdom to all Intents, Constructions and Purposes whatsoever: And whereas in the tenth year of her said late Majesty's reign another Act was made and passed to repeal the said Act (except what related to the Children of her Majesty's natural-born Subjects, born out of her Majesty's Allegiance): And whereas some Doubts have arisen upon the Construction of the said recited Clause in the said Act of the seventh Year of her late Majesty's Reign: Now for the explaining the said recited Clause in the said Act, relating to Children of natural-born Subjects, and to prevent any Disputes touching the true Intent and Meaning thereof, May it please your most Excellent Majesty that it may be declared and enacted, and be it declared and enacted by the King's most excellent Majesty, by and with the Advice and Consent of the Lords Spiritual and Temporal, and the Commons, in this present Parliament assembled, and by the Authority of the same, That all Children born out of the Ligeance of the Crown of England, or of Great Britain, or which shall hereafter be born out of such Ligeance, whose Fathers were or shall be natural-born Subjects of the Crown of England, or of Great Britain, at the Time of the Birth of such Children respectively, shall and may, by virtue of the said recited Clause in the said Act of the seventh Year of the Reign of her said late Majesty, and of this present Act, be adjuged and taken to be, and all such Children are hereby declared to be natural-born Subjects of the Crown of Great Britain, to all Intents, Constructions and Purposes whatsoever.

5 Stat. at Large (Ruffhead and Runnington's edn.) 573.

It might still be thought unclear whether this clause applied only to the first generation, or ad infinitum, but a negative answer by implication was given with the British Nationality Act 1773, 13 Geo. III, c. 21, §1 ("An Act to extend the Provisions of [4 Geo. II, c. 21] [ . . . ] which relates to the Children of the natural-born Subjects of the Crown of England, or of Great Britain, to the Children of such Children"):

Whereas [ . . . ] no Provision hath hitherto been made to extend farther than to the Children born out of the Ligeance of His Majesty [ . . . ] be it enacted [ . . . ] That all Persons born, or who hereafter shall be born, out of the ligeance of the Crown of England, or of Great Britain, whose Fathers were or shall be, by virtue of [4 Geo. II, c. 21] [ . . . ], shall and may be adjudged and taken to be, and are hereby declared and enacted to be, natural-born subjects of the Crown of Great Britain, to all Intents, Constructions, and Purposes whatsoever, as if he and they had been and were born in this Kingdom [ . . . ]

In Doe d. Duroure v. Jones, 4 T.R. 300, 100 Eng. Rep. 1031 (K.B., 1791), the Court, without ruling explicitly on De natis ultra mare, held that if jus sanguinis citizenship for the children born abroad of English mothers and foreign fathers had ever existed, it was extinguished by the 1730 and 1773 Acts. A similar result with respect to the 'infinite generations' problem was reached in De Geer v. Stone, 22 Ch.D. 243 (1882).

Everything I know about the endgame I learned from Reuben Fine

2008-12-16T17:32:00.002-05:00

Caveant lectores: I don't know much about the endgame. But, for what it's worth, here are "Fifteen Rules for the Endgame" from Reuben Fine, Basic Chess Endings (New York: McKay, 1941), p. 573:

1. Doubled, isolated and blockaded Pawns are weak: Avoid them!

2. Passed Pawns should be advanced as rapidly as possible.

3. If you are one or two Pawns ahead, exchange pieces but not Pawns.

4. If you are one or two Pawns behind, exchange Pawns but not pieces.

5. If you have an advantage do not leave all the Pawns on one side.

6. If you are one Pawn ahead, in 99 cases out of 100 the game is drawn if there are Pawns on only one side of the board.

7. The easiest endings to win are pure Pawn endings.

8. The easiest endings to draw are those with Bishops of opposite colors.

9. The King is a strong piece: Use it!

10. Do not place your Pawns on the color of your Bishop.

11. Bishops are better than Knights in all except blocked Pawn positions.

12. Two Bishops vs. Bishop and Knight constitute a tangible advantage.

13. Passed Pawns should be blockaded by the King; the only piece which is not harmed by watching a Pawn is the Knight.

14. A Rook on the seventh rank is sufficient compensation for a Pawn.

15. Rooks belong behind passed Pawns.

Hat tip

2008-12-15T10:52:00.005-05:00

It seems that I'm not the only one left who takes inordinate pleasure from perverse retroversion: Sasha Volokh at the Volokh Conspiracy has written and posted two Latin versions of "Rudolph the Red-Nosed Reindeer". I'm so jealous.

Thomas Tamm and the TSP, Part I: Why the TSP was illegal

2008-12-15T05:30:00.032-05:00

This week, Newsweek features an interview with Thomas Tamm, a former Bush Department of Justice official who now confesses to being the leaker responsible for informing the New York Times’ James Risen and Eric Lichtblau about the so-called “Terrorist Surveillance Program” (TSP).

Tamm will doubtless be pilloried by right-wing editorialists, but in my view, his actions were courageous and highly commendable. Not only do I think that the TSP was illegal, I think it was obviously illegal--indeed, I think that its legality simply cannot be defended on any reasonable view of the American constitutional structure. My reasons for holding this opinion, however, are somewhat different from those usually propounded, and I’ve been meaning to blog about them for a long time, so I shall use this recent development as an excuse to address the issue. I’ve broken my discussion into three posts: this one sets out the basic argument for FISA’s illegality, the second responds to the two objections that might initially seem serious, and the third explains how this relates to Tamm’s actions.

To my mind, The only way in which the illegality of the programme can be made to seem at all questionable is by misconceiving the fundamental issues involved. I think that the best-known arguments against the legality of the TSP, set out in three letters sent to the House and Senate Intelligence Committees in 2006 by a group of eminent constitutional law scholars (here, here, and here), fall into this trap to some degree: although the letters make a number of good points, by framing the problem incorrectly they give the impression that the constitutional questions involved are much more complicated and contestable than is truly the case. The letters focus primarily on the allocation of war powers between Congress and the President; but there is really no need to enter into this question at all to show that the TSP was illegal. The war power, in fact, has practically nothing to do with the issue.

The crucial point to understand is that legislative regulation of telecommunications has been undertaken for more than a century in virtue of Congress’s power to regulate commerce, and it has been sustained at every juncture by the Supreme Court. It is settled law that that the means of telecommunication are instruments of commerce--a term which, as John Marshall remarked in the famous case of Gibbons v. Ogden, 9 Wheat. 1, 189-90 (1824), bears its full sense of “intercourse”, extending well beyond the mere exchange of goods. This principle underlies all the later cases concerning the channels of telegraph, telephone, and radio communication: Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U.S. 1, 9 (1878); Western Union Telegraph Co. v. Texas, 105 U.S. 460, 464 (1881) (“A telegraph company occupies the same relation to commerce as a carrier of messages that a railroad company does as a carrier of goods. Both companies are instruments of commerce, and their business is commerce itself.”); Federal Radio Comm’n v. Nelson Bros. Bond & Mortgage Co., 289 U.S. 266, 279 (1933); Fisher’s Blend Station v. State Tax Comm’n, 297 U.S. 650, 654-5 (1936) (citing Gibbons explicitly) (“Whether the transmission is effected by the aid of wires or through a perhaps less well understood medium, ‘the ether,’ is immaterial in the light of those practical considerations which have dictated the conclusion that the transmission of information interstate is a form of ‘intercourse,’ which is commerce.”); United States v. South-Eastern Underwriters Ass’n, 322 U.S. 533, 549-50 (1944) (“transactions may be commerce [ . . . ] though they do not use common carriers or concern the flow of anything more tangible than electrons and information”). To reject the doctrine of these cases would require striking down as unconstitutional a vast swath of regulation: not only FISA, but the Federal Communications Act, the Communications Satellite Act, the Interstate Wire Act, and so on--a position which neither the Bush White House nor any of its apologists advanced.

But if telecommunications is commerce, then FISA--which, as it stood at the time of the TSP, protected the privacy of international telecommunications against the executive branch unless the executive complied with certain procedures--is in its essence a regulation of foreign commerce.

And the Constitution is quite explicit about the separation of powers as it affects the regulation of foreign commerce: here Congress has all the power, and the executive has none. Article I, §8, cl. 3, allots the authority in express terms. In the case of the war power, article II, §2, cl. 1’s designation of the President as “Commander in Chief of the Army and Navy of the United States” might be thought to give him some independent authority; here, however, the President does not even have a vague implication to raise against Congress's explicit grant of power. The executive branch cannot levy a tariff or prohibit any type of import or export on his sole authority. (In some of these cases, a treaty made by the President with the consent of the Senate can serve as well as a statute, but this is because treaties are themselves part of “the supreme Law of the Land”, art. VI, cl. 2; acting alone, however, the President cannot make law; as Justice Black remarked in the Steel Seizure Case, 343 U.S. 579, 587 (1952), “In the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute.”) It is easy to forget this fact, because in the twentieth century Congress has, for pragmatic reasons, delegated heavily to the executive in the spheres of trade policy, particularly when military goods are involved: but all these delegations exist at the suffrance of Congress, and cannot prevail over an express statutory command on a particular issue falling under the foreign commerce power.

It does not matter in the least whether (as defenders of the President maintened during the TSP controversy) following the dictates of FISA might interfere with the President’s military goals--even if those goals are appropriate ones, and even if, under Article II, the President can do some things not involving the regulation of foreign commerce in furtherance of those goals regardless of Congress’s objections. For where Congress has an exclusive power, it is under absolutely no obligation to exercise that power in the manner most convenient for the President’s goals or most likely to support him in the exercise of his own powers. It is as gross a constitutional error to say that Congress must regulate foreign commerce in such a way as not to impede the purposes of the President, qua supreme general, as it is to say that the President must use his pardoning power in such a way as not to impede the purposes of Congress, qua definer of federal crimes. It might not be wise for the President to pardon everyone convicted under a criminal statute, even if he thinks the statute iniquitous, but there is no legal question as to his authority to do so. Similarly, it might not be wise for Congress to regulate foreign commerce in a way that makes it difficult for him to effectively fight a war, even if it thinks other goals more important; but there is no legal question as to its authority to do so.

I spoke too soon ...

2008-11-11T20:51:00.009-05:00

Perhaps my last comment was a bit too flush with optimism for "the worst form of Government except all those other forms that have been tried from time to time" and for the progress of the American South.

At least, I'm tempted to think so upon reading the comments of Paul Broun, Republican Congressman from Georgia's 10th district, just reelected with 60.7% of the vote:

"It may sound a bit crazy and off base, but the thing is, he's the one who proposed this national security force," Rep. Paul Broun said of Obama in an interview Monday with The Associated Press. "I'm just trying to bring attention to the fact that we may — may not, I hope not — but we may have a problem with that type of philosophy of radical socialism or Marxism."

Broun cited a July speech by Obama that has circulated on the Internet in which the then-Democratic presidential candidate called for a civilian force to take some of the national security burden off the military.

"That's exactly what Hitler did in Nazi Germany and it's exactly what the Soviet Union did," Broun said. "When he's proposing to have a national security force that's answering to him, that is as strong as the U.S. military, he's showing me signs of being Marxist."

[ . . . ]

"We can't be lulled into complacency," Broun said. "You have to remember that Adolf Hitler was elected in a democratic Germany. I'm not comparing him to Adolf Hitler. What I'm saying is there is the potential."

If an increase of a few percentage points in the top tax rate is "radical socialism or Marxism" and some sort of neo-Peace Corps is the functional equivalent of the Sturmabteilung, what in God's name would the Honourable Mr Broun have made of FDR?

A post on Obama

2008-11-05T22:04:00.005-05:00

I strongly supported Barack Obama for President, although he was not originally my first choice for the Democratic nomination (John Edwards was), and I am very pleased about his victory. His concrete policy suggestions seem to me sounder and more practical than those of any recent candidate; he numbers among his advisors several people for whom I have immense respect (Samantha Power, Cass Sunstein, and Bill Richardson, among others); and his academic credentials are a refreshing change from the dominant anti-intellectualism of American politics.

During the election, however, I was so focused on the policy differences between him and Senator McCain -- and the importance of drawing a line under the Bush administration's war on the Constitution -- that the sociological importance of his election didn't really sink in until I read a post written by an Obama opponent, David Bernstein, at the Volokh Conspiracy: "The End of White Supremacy":

What was unique about American post-slavery prejudice against African Americans, as opposed to the prejudice against other groups, was that it manifested itself in a system of white supremacy that dictated that blacks always be placed in an inferior position to whites. In the South, this was formalized under the law by Jim Crow statutes, and also enforced by lynchings and "whitecapping" against "uppity" black business owners and others who "didn't know their place."

Obama's victory tells us that in case anyone had any doubt, the ideology of white supremacy is over and done with, kaput. Again, while blacks still face a fair amount of prejudice, there's a big difference between prejudice and a widespread ideology among the majority population that members of a particular group must be kept in "their place," by custom, law, and violence. "Their place," in effect, is now all the same positions whites occupy, up to and including the most powerful office in the land.

I should not want to say, as Bernstein does, that "the ideology of white supremacy is over and done with". I am by no means that sanguine about the state of organized racism in America.

But, after reading his article, and after Obama's triumph in Virginia and narrow victory in North Carolina, I keep thinking about a fact so obvious that it never even occurred to me to remark upon it explicitly during the campaign: that it would have been simply inconceivable for a black man to carry any statewide presidential ballot in the South I grew up in, in the 1980s. That was the South of Jesse Helms and Strom Thurmond -- living monuments to Jim Crow who survived the end of segregation with trivial ease simply by exchanging overt racial demagoguery for coded attacks so obvious that any child could figure them out.

No, Obama's victory certainly does not signal the end of racism, nor even the end of explicit racism (if you don't believe me, you need only google "Philip Berg" -- a nutcase whom I mentioned in an earlier post -- and have a look at the sort of venomous nativism and Bull Connor fantasies on offer on a few thousand comment boards).

But it is still an extraordinary moment, one I should not have believed possible even fifteen years ago, and it makes me, malgré tout, hopeful for the future of the country.

Addendum on presidential eligibility

2008-09-20T14:01:00.003-04:00

Somehow, until yesterday, I had never come across the wonderful, hilarious article "Taking Text and Structure Really Seriously: Constitutional Interpretation and the Crisis of Presidential Eligibility" by Jordan Steiker, Sanford Levinson, and Jack Balkin (74 Texas Law Review 237 (1995)). In addition to explaining why the U.S. hasn't had a legitimate President since Zachary Taylor, it works in references to Naming and Necessity, Studies in the Way of Words, and Hustler magazine.

1. e4 e5 2. Nf3 Nf6

2008-09-14T02:25:00.006-04:00

(Helvidius scowls.)

Alix: I'm not trying to draw, really. I have genuine affection for the Petroff.

Helvidius: That's impossible. No one can have genuine affection for the Petroff.

Alix: I do.

Helvidius: Why?

Alix: Because I lose with everything else.

It seems that you don’t need to know much about the law to be a Deputy Attorney General of Pennsylvania.

2008-08-28T22:13:00.017-04:00

A 9/11 conspiracy theorist named Philip J. Berg has filed suit in federal court in Philadelphia, seeking an injunction to prevent Barack Obama from continuing his candidacy on grounds of Constitutional ineligibility. In itself, this isn’t very surprising: cranks file frivolous lawsuits all the time. What is remarkable is that Berg was apparently a Deputy Attorney General of Pennsylvania for five years. If one keeps that fact in mind, the complaint that he submitted makes for rather astounding reading. That the factual claims are crazy is to be expected; but that anyone who graduated from law school, let alone served as a former deputy state attorney general, could seriously advance the legal arguments that Berg makes in this text—couched in syntax that is barbaric even by the standards of Internet mountebanks—is shocking. The complaint does not make reference to a single relevant court case, and blandly asserts straightforwardly false propositions of law without any argument at all. Here are a few of the most egregious examples (the grammatical errors stand as printed in the original):

Obama is a representative of the Democratic People. However, the Obama must meet the Qualifications specified for the United States Office of the President, which is he must be a “natural born” citizen. Unfortunately, Obama is not a “natural born” citizen. Just to name one of the problems, Obama lost his U.S. citizenship when his mother married an Indonesian citizen and relocated herself and Obama to Indonesia wherein Obama’s mother naturalized in Indonesia and Obama followed her naturalization, as he was a minor and in the custody of his mother. Obama failed to take the oath of allegiance when he turned eighteen (18) years to regain his United States Citizenship status. [¶3]

The Nationality Act of 1940 provided for the loss of citizenship when the person became naturalized upon the naturalization of his or her parent having custody of such person. Obama’s mother expatriated her U.S. Citizenship when she married Lolo Soetoro, a citizen of Indonesia and relocated her and her son (Obama) to Indonesia. [¶27]

An native-born American citizen cannot lose his citizenship except by explicit voluntary renunciation, as the Supreme Court decided in Afroyim v. Rusk, 387 U.S. 253 (1967). The provisions of the Nationality Act of 1940 that say otherwise are simply unconstitutional; this has been settled law for forty years.

Since the beginning of the United States Constitution, in order to run for Office of President, you must be a “natural born citizen” and you may not hold dual citizenship or multiple citizenships with foreign countries. U. S. Constitution, Article II, Section 1. [¶14]

The “since the beginning” construction was apparently inserted just for rhetorical effect, but even there Berg gets his facts wrong. At the “beginning of the United States Constitution”, it was not necessary to be a natural-born citizen: as Article II, §1, cl. 5 states,

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been Fourteen Years a Resident within the United States.

Presumably the last person able to profit from the alternative ground for eligibility died in the 1880s or 1890s.

As far as the claim that one may not become President if one is a dual national, this is simple fantasy. Article II, §1, cl. 5 means just what it says: the only eligibility requirement for the Presidency, other than age and residency, is being a natural-born citizen.

A dual national is not, as is occasionally assumed, a half-citizen of each of two nations. Rather, someone who, in common parlance, has ‘dual citizenship of states A and B’ is just a person who, according to the legal system of state A, is a citizen of A and who, according to the legal system of state B, is a citizen of B. If Barack Obama is a Kenyan, Indonesian, or Ruritanian citizen according to Kenyan, Indonesian, or Ruritanian law, that is a matter of utter irrelevance to his status under the American Constitution; as long as he is a citizen of the United States according to American law, and as long as his citizenship was acquired as of right at birth, then he is patently a “natural born Citizen” under the only criteria that count with respect to his eligibility for the Presidency. If he was born in the United States and “subject to the jurisdiction thereof”—that is to say, not the child of foreign ambassadors or invading enemies—then, according to the Fourteenth Amendment, then he is indeed a citizen and did acquire that citizenship as of right at birth. Nothing else matters.

In fact, it seems that Berg doesn’t think that Obama was genuinely born in Hawaii. He thinks that his birth certificate is a forgery, and that “[t]here are questions as to where Obama was actually born” (¶15). His evidence for these propositions? “Upon investigation into the birth of Barack Hussein Obama in Honolulu, Hawaii, Obama’s birth is reported as occurring at two (2) separate hospitals, Kapiolani Hospital and Queens Hospital. Wikipedia English Version under the subject 'Barack Obama' states Obama was born at Kapiolani Hospital. Wikipedia Italian Version under the subject 'Queens Hospital' states Barack Obama was born in Queens Hospital” (¶18); “There are further references circulating on the internet claiming examination of the hospital’s records in Hawaii show no birthing records for Stanley Ann Dunham (Obama) [ . . . ] ” (¶19); “After many attempts of the public to obtain Obama’s Certificate of Birth, a Hawaiian Certificate of Live Birth (COLB) was placed on Obama’s campaign website. However, as posted all over the internet, three (3) independent Document Forensic Experts performed extensive Forensic testing on the Certificate of Live Birth posted on Obama’s campaign website” (¶35, emphasis added). However, perhaps realizing what might charitably be called the tenuous status of these speculations, Berg is quite willing to argue in the alternative: even if Obama was born in the United States, the complaint argues, he is still ineligible to be President—and it is in formulating this claim that Berg's legal lunacy reaches full stride.

Berg’s errors are not terribly interesting in themselves; I have written about them for two reasons. First of all, they offer the chance to offer a few brief notes about the notion of ‘natural-born citizenship’ and its legal history. This is an interesting topic, and one on which a number of people seem to be profoundly confused. This appendix is not quite finished, so I shall add it as a supplementary post. Second, they afford a striking new example of a phenomenon which I have always found particularly dismaying: spectacular ignorance of constitutional law on the part of many of those who most vociferously define themselves politically as ‘defenders of the Constitution’.

Trawling by search engine through political blogs (a tedious habit to which I return again and again, like Svevo’s Zeno enkindling la sua ultima sigaretta—always promising myself, in semi-demi-conscious bad faith, to quit after just one more) makes me worry that this phenomenon is growing. In fact, a Google search of blogs for ‘Obama’ and ‘dual citizenship’ yields more than 1,300 results. The story has even been picked up by (using the term loosely) a national newspaper.

A canting translation of Villon

2008-08-28T18:13:00.005-04:00

Watching a video of Ricky Jay and his Fifty-two Assistants (directed by David Mamet), I came across this extraordinary translation of Villon's ballad "De bonne doctrine à ceux de mauvaise vie" into nineteenth-century canting slang. The original (text from the Oxford Book of French Verse):

Car ou soies porteur de bulles,
Pipeur ou hasardeur de dez,
Tailleur de faulx coings, tu te brusles,
Comme ceulx qui sont eschaudez,
Traistres parjurs, de foy vuydez;
Soies larron, ravis ou pilles:
Où en va l’acquest, que cuidez?
Tout aux tavernes et aux filles.

Ryme, raille, cymballe, luttes,
Comme fol, fainctif, eshontez;
Farce, broulle, joue des fleustes;
Fais, es villes et es citez,
Farces, jeux et moralitez;
Gaigne au berlanc, au glic, aux quilles.
Aussi bien va—or escoutez—
Tout aux tavernes et aux filles.

De telz ordures te reculles;
Laboure, fauche champs et prez;
Sers et pense chevaulx et mulles;
S’aucunement tu n’es lettrez;
Assez auras, se prens en grez.
Mais se chanvre broyes ou tilles,
Ne tens ton labour qu’as ouvrez
Tout aux tavernes et aux filles.

ENVOI

Chausses, pourpoins esguilletez,
Robes, et toutes voz drappilles,
Ains que vous fassiez pis, portez
Tout aux tavernes et aux filles.

The translation, by William Ernest Henley, the minor poet and slang lexicographer:

I

Suppose you screeve, or go cheap-jack?
Or fake the broads? or fig a nag?
Or thimble-rig? or knap a yack?
Or pitch a snide? or smash a rag?
Suppose you duff? or nose and lag?
Or get the straight, and land your pot?
How do you melt the multy swag?
Booze and the blowens cop the lot.

II

Fiddle, or fence, or mace, or mack;
Or moskeneer, or flash the drag;
Dead-lurk a crib, or do a crack;
Pad with a slang, or chuck a fag;
Bonnet, or tout, or mump and gag;
Rattle the tats, or mark the spot
You cannot bank a single stag:
Booze and the blowens cop the lot.

III

Suppose you try a different tack,
And on the square you flash your flag?
At penny-a-lining make your whack,
Or with the mummers mug and gag?
For nix, for nix the dibbs you bag
At any graft, no matter what!
Your merry goblins soon stravag:
Booze and the blowens cop the lot.

The Moral.

It’s up-the-spout and Charley-Wag
With wipes and tickers and what not!
Until the squeezer nips your scrag,
Booze and the blowens cop the lot.

(See this link for annotations.)

Pierre Menard does Berlitz

2008-07-15T18:31:00.002-04:00

"The best method of acquiring the Spanish language is to establish oneself in a good casa de pupilos, to avoid English society and conversation, to read Don Quixote through and aloud before a master of a morning, and to be schooled by female tongues of an evening."

-- Richard Ford, A Handbook for Travellers in Spain, 3rd edn. (1855), part 1, p. 67.

Counterpossibles in popular culture

2008-07-13T00:50:00.002-04:00

Jimi Hendrix's "If 6 Was 9" comes to mind. Any others?

A very sharp, and funny, review

2008-06-05T05:39:00.002-04:00

Norman Kretzmann on Alexander Broadie's Introduction to Medieval Logic (Journal of Symbolic Logic 55 [1990]: 1320-22):

The sort of thing Broadie does in these chapters could have been very valuable, I think, as an exercise for advanced students who had learned some medieval and some contemporary logic and were set the task of assimilating some bits of the former to corresponding bits of the latter; but it cannot count as "a sketch of logic during the fourteenth century", or as an introduction to medieval logic. A better title for the book might be Fantasia and Variations on Familiar Themes Drawn From Medieval and Post-Medieval Scholastic Logic.

Gettier cases

2008-05-19T02:58:00.005-04:00

Blindingly obvious once it's pointed out, but I never thought of it until I found this comment on a blog: The Importance of Being Earnest is a Gettier case.

Amusing discovery

2008-05-17T19:41:00.003-04:00

The Columbia University formal ontologist Achille Varzi, co-author (with Roberto Casati) of Parts and Places and Holes and Other Superficialities, shares a name with (and, according to Wikipedia, is related to) the (seemingly rather famous) Italian racing driver Achille Varzi, winner of the 1933 Monaco Grand Prix, whose death during practice in 1948 led to the imposition of mandatory crash helmets in automobile racing.

Information-age idioms

2008-05-11T20:47:00.003-04:00

A remarkable phrase encountered in Wikipedia: 'Turing porn farm'.

The hydra game

2008-05-11T08:40:00.004-04:00

Andrej Bauer has a superb page on the hydra game, including a Java applet allowing you to play it. The hydra game is extraordinarily simple: the rules can be stated in a few sentences. A hydra is a finite tree: the object of the game is to cut off all of its nodes ("heads"). If you cut off a node at level 1, it does not grow back. If you cut off a node at level n > 1, the hydra grows new branches from the node two levels down -- duplicates of the subtree growing out of level n-1, the direct parent node, after the level-n node has been removed. The proof, in set theory, that every hydra can be killed, is beautiful and almost as short as this description -- the game is just Goodstein's theorem (1948) differently, and much more elegantly, phrased.

But that's not the remarkable thing. The remarkable thing, demonstrated in 1982 by Kirby and Paris, is that any proof of Goodstein's theorem requires transfinite induction up to epsilon-zero or its equivalent -- which is the consistency strength of Peano Arithmetic. So, by Gödel's second incompleteness theorem, it is impossible to prove in PA that the hydra game is always winnable.

I am astounded that a "mathematically natural" statement independent of PA (as opposed to a Gödel sentence tricked up for the purpose of proving incompleteness) is capable of such an exquisitely simple, intuitively appealing formulation.

Found

2008-04-29T03:35:00.002-04:00

"Jacques Herbrand aurait détesté Bourbaki."
--Claude Chevalley

A note

2008-04-29T03:26:00.002-04:00

Somewhere in the Platonic heaven of unwritten doggerel, there is a poem rhyming venia legendi with venial effendi. I learned of it, as Mr Humbert learned of genuflection lubricity, from a sign sleeping by the road.

Tree diagrams

2008-03-16T23:27:00.002-04:00

Does anyone know of a simple programme for producing tree diagrams (analogous to those used by linguists, although frequently with more complex labels on the nodes, including labels involving multiple lines and logical or mathematical formulae) ? I'm currently using phpSyntaxTree, which is better than trying to draw the trees in Word, but not great.

An Interesting Article in the Times

2008-03-09T06:45:00.005-04:00

Somehow I missed this when it came out, in November.

Apparently there's been serious debate in the U.S. State and Defense Departments over whether the U.S. should share permissive action link (PAL) technology with Pakistan.

For background on PALs, see here and here.

It seems that this would be a good step towards improving Pakistan's nuclear security. The U.S. itself has not always been exemplary in this area: for a very long time, weapons on Navy submarines did not have PALs.

An update

2008-01-19T01:28:00.000-05:00

A remarkable proof-game puzzle is to be found on Tim Krabbé's webpage (no. 373).

Scenes from a cocktail party

2007-09-18T07:52:00.000-04:00

Annoying guest: So what are you planning on going to graduate school for?

Ardith: Sanskrit.

Annoying guest: Wow. Is there a big market for that in the world today?

Ardith: Well, no. I mean, it leads to an academic career.

Annoying guest: I had no idea that you could study something so ... specialized. So you’ll teach people to write in this ... Sanskrit’s an old kind of writing, isn’t it?

Ardith: No, Sanskrit is the most important ancient language of India. You’re thinking of the script it’s usually written in, which is Devanagari.

Annoying guest: So, do you need to learn Indian? I mean, when you read it, do you translate in your head into Indian or English?

(long pause)

Ardith: India’s a very linguistically diverse country, sir.

More on the sturdy barons

2007-09-18T07:42:00.000-04:00

Blackstone, 3 Comm. 278 (1st edn., 1768):

The first return in every term is, properly speaking, the first day in that term [ . . . ]. And the court sits to take essoigns, or excuses for such as do not appear according to the summons of the writ: wherefore this is usually called the essoign day of the term. But the person summoned has three days of grace, beyond the return of the writ, in which to make his appearance; and if he appears on the fourth day inclusive, the quarto die post, it is sufficient. For our sturdy ancestors held it beneath the condition of a freeman to be obliged to appear, or do any other act, at the precise time appointed or required.

An enimently civilized attitude to tardiness.

Radio play, act 3, scene 5

2007-09-13T02:17:00.001-04:00

A: What's that in the sky? Is that because of the Empire State Building?
B: It seems like it.
A: It's awful. It looks like yellow toxic industrial smoke.
B: Oh, like in . . . um . . . what am I thinking of? . . .
A: New Jersey?
B: No, the Antonioni movie.
A: Oh, Red Desert.

Ma non troppo

2007-08-28T18:15:00.000-04:00

“You really don’t like men in uniform?”
“Well, I like men in vestments. Does that count?”

(Conversation reported by a friend in the metropole.)

The Church of Saint Paul the Disseisor

2007-08-28T18:02:00.000-04:00

Another wonderful linguistic trouvaille in Maitland and Pollock (I:499-500, nonessential footnotes omitted):

At least for the purposes of popular thought and speech, God and the saints became the subjects of legal rights, if not of legal duties. [ . . . ] In the old land-books the notion is put before us in many striking phrases. In the oldest of them the newly converted Æthelbert says, ‘To thee Saint Andrew and to thy church at Rochester where Justus the Bishop presides I do give a portion of my land.’ The saint is the owner; his church at this place or that is mentioned because it is necessary to show of which of his many estates the gift is to form part. [ . . . ] Gradually (if we may so speak) the saint retires behind his churches; the church rather than the saint is thought of as the holder of lands and chattels. When it comes to precise legal thinking, the saint is an impracticable person, for if we ascribe rightful we may also have to ascribe wrongful possession to him, and from this we shrink, though Domesday Book courageously charges St Paul with an ‘invasion’ of land that is not his own*.

*D.B. ii. 13: ‘Aliam Nessetocham tenuit Turstinus Ruffus ... modo Sanctus Paulus invasit.’ We might compare this to those phrases current at Oxford and Cambridge which tell how Magdalen has won a cricket match and the like; but there is less of conscious abbreviation in the one case than in the other.

A remarkable Scrabble word

2007-08-28T18:00:00.000-04:00

Yex, v. To hiccough. OED illustrates with, inter alia, a quotation from Urquhart's Rabelais: "He ... yawned, spitted, coughed, yexed."

Overheard in the Atlantic conurbation (2)

2007-08-25T19:33:00.001-04:00

“She thinks that Jesus is a hug. She actually said that to me.”
“Well, my mother thinks that Jesus is an ice-cream social, but she wouldn’t say it.”

“Most of my views on causation developed as a reaction against the Reagan administration.”

Prose composition project

2007-08-25T19:14:00.001-04:00

Inspired by a joke I made up for a friend yesterday, when I wrote some dog-Greek referring to ‘brain in a vat’ as

:

Write a parody Platonic dialogue setting out Frank Jackson’s well-known knowledge argument against physicalism, in the best Attic you can. Unlike the other challenges I’ve posted so far, I’ll have a go at this one myself, when I get time. Unfortunately that may be a while.

Vifgage

2007-08-25T09:51:00.000-04:00

There are many reasons to read Pollock and Maitland’s masterpiece, The History of English Law before the Time of Edward I (Cambridge: CUP, 1895, 1898²), but surely the wonderful words that one learns are high on the list. Example: vifgage (vivum vadium), in contrast to mortgage (mortuum vadium) (II.119): in a vifgage, the amount of the debt is progressively reduced by the profits that the creditor takes from the land given to him as a gage; in a mortgage, it is not. Further, if somewhat fanciful, etymological speculations in Glanvill x, 8, and Littleton § 332, according to the footnote.

Overheard in the Atlantic conurbation

2007-08-20T15:44:00.000-04:00

“----- is wonderful. It’s like being friends with a soap opera. Or several.”

“I thought you said that you only drank in class once.”
“No, I meant I only drank in one class.”

“There are many ways you can react to a six-foot tall painting of a vulva, but sneering isn’t really one of them.” (In reference to the nightclub Berghain, in Berlin.)

The abominable fancy

2007-08-20T15:00:00.000-04:00

Nietzsche, Zur Genealogie der Moral, I, § 15, KSA 5:284:

Denn was ist die Seligkeit jedes Paradieses? ... Wir würden es vielleicht schon errathen; aber besser ist es, dass es uns eine in solchen Dingen nicht zu unterschätzende Autorität ausdrücklich bezeugt, Thomas von Aquino, der grosse Lehrer und Heilige. „Beati in regno coelesti“, sagt er sanft wie ein Lamm, „videbunt poenas damnatorum, ut beatitudo illis magis complaceat.“ Oder will man es in einer stärkeren Tonart hören, etwa aus dem Munde eines triumphirenden Kirchenvaters, der seinen Christen die grausame Wollüste der öffentlichen Schauspiele wiederrieth — warum doch? „Der Glaube bietet uns ja viel mehr — sagt er, de spectac. c. 29 ss. — viel Stärkeres; Dank der Erlösung stehen uns ja ganz andre Freuden zu Gebote; an Stelle der Athleten haben wir unsre Märtyrer; wollen wir Blut, nun, so haben wir das Blut Christi ... Aber was erwartet uns erst am Tage seiner Wiederkunft, seines Triumphes!“ — und nun fährt er fort, der entzückte Visionär: [ . . . ]

And then follows a quotation from De spectaculis too long to transcribe. I was asked some time ago for the technical name of the doctrine to which the quotations of Tertullian and Thomas allude. There was, as far as I can tell, no specific term for this at the time when it was propounded as doctrinal orthodoxy; but the nineteenth-century phrase is ‘the abominable fancy’, due to one Dean F.W. Farrar, in a sermon preached in 1877 at Westminster Abbey. This is, at least, the source given by D.P. Walker in his useful The Decline of Hell: Seventeenth-Century Discussions of Eternal Torment (Chicago: University of Chicago Press, 1964), p. 31. Walker also gives an interesting quotation from Bayle, demonstrating (on his reading) a view of the doctrine midway between the unqualified endorsement of Tertullian and the revulsion of Farrar:

Il y a même je ne sai quoi qui choque notre raison dans l’hypothese que les Saints du Paradis tirent en partie leur félicité de ce qu’ils savent que d’autres hommes sont tourmentez & le seront éternellement. [Bayle, Œuvres diverses, 3:863, quoted by Walker, p. 30]

Incidentally, I’m fairly certain that Walker (and, for that matter, Nietzsche) considerably oversimplifies the post-patristic history of the doctrine: St Thomas’ claim is that the blessed rejoice not per se but per accidens in the torments of hell, inasmuch as in observing them they observe the workings of divinely ordained justice: et sic divina justitia et sua liberatio erunt per se causa gaudii bonorum, sed poenae damnatorum per accidens (In IV Sent. d. 50 q. 2 a. 4 qc. 3 co.). This seems clearly conceptually distinct from, if not much less offensive than, the enjoyment Tertullian is describing.

Corrigendum

2007-08-20T13:18:00.000-04:00

In the post of 5 August, entitled "A Puzzle", there is a fencepost error: the calculation should read 64442 gridpoints, not 64082 (360 degrees of longitude · 179 degrees of latitude + the two poles).

Intactus, -a, -um

2007-08-20T13:05:00.000-04:00

Also in conversation with Philalethe, I rather pompously used the term intactus in reference to a male virgin. I hardly imagined that this was particularly novel, but (had I bothered to think about it) I should have thought that the term would probably not have been used with a male personal referent in the Classical period, given the Romans' disinclination (to say the least) for even verbal sexual egalitarianism. But is this so? The examples in Lewis and Short all have virgo, puella, or such as the antecedent; however, I now remember that Catullus uses integer in an essentially synonymous sense in reference both to men and women:

Dianae sumus in fide
puellae et pueri integri
Dianam pueri integri
puellaeque canamus
(34.1-4)

Learning from one's mistress

2007-08-20T12:44:00.000-04:00

(From a discussion with Philalethe, in the college bar, on the subject of undergraduates who think that it's appropriate to cite to Wikipedia in papers: as my interlocuter put it, "They need to learn that the reference room is one's wife and Wikipedia is one's mistress.")

By means of that wonderful electronic concubine, I learned today:

1) that deodands were abolished by statute, 9 & 10 Vict. c. 62, after coroner's juries began reviving them as a means of getting around the legal impunity of railway companies for fatal accidents;

2) that "A Swiss Army knife is commonly called "Macgybar Chakku" in Bangladesh, "Maekgaibeo Kal" in South Korea, and "Pisau MacGyver/Pisau Lipat MacGyver" in Indonesia/Malaysia".

There was, in fact, a reasonable path that got me from (1) to (2), but that's of no moment.

Trystero against Thurn und Taxis

2007-08-20T07:17:00.000-04:00

A few weeks ago, the online Times offered a list of the "world's strangest laws", which has been reprinted on many blogs. Many, perhaps, are genuine archaic statutes, unrepealed through inadvertence or indifference, but some have the ring of urban legends; one of them I know to be:

23. It is an act of treason to place a postage stamp bearing the British monarch upside down.

This absurd claim is demonstrably false, as can be discovered in a half a minute on Wikipedia and confirmed almost as quickly in a real source. In the main, British treason law is set by the Treason Act 1351, 25 Edw. 3 st. 5 c. 2, which says nothing about postage stamps (although it does have a number of archaic provisions, and one ("si home [...] soit adherant as enemies nostre seigneur le roy en le royalme, donant a eux eid ou confort en son royalme ou par aillours", although the text is cited variously, cf. 1 Hale P.C. 88, 3 Co. Inst. 10-11) that lies behind the oft-misquoted provision in the American Constitution). Nor are such things to be found in the other relevant statutes in force.

But, of course, the point of this post is that there are such things as treasonous postage stamps, just not in England:

"I'm not sure I understand," Oedipa said.
"Allow me." He rolled over to her a small table, and from a plastic folder lifted with tweezers, delicately, a U.S. commemorative stamp, the Pony Express issue of 1940, 3¢ henna brown. Cancelled. "Look," he said, switching on a small, intense lamp, handing her an oblong magnifying glass.
"It's the wrong side," she said, as he swabbed the stamp gently with benzine and placed it on a black tray.
"The watermark." Oedipa peered. There it was again, her WASTE symbol, showing up black, a little right of center. (95-96)

And, as the cognoscenti know, The Crying of Lot 49 only seems to be fiction. I saw the evidence myself back in the Web's younger days, but evil Thurn und Taxis henchmen brought the site down, so we are forced to rely on the Wayback machine and this tireless investigator.

Construction task (2)

2007-08-20T07:11:00.000-04:00

In English, there are a number of pairs of words differing only by one letter with more or less opposed senses. (Ignore a privative for these purposes, as it makes things too easy.) Make up a grammatical sentence, preferably true, using as many of these pairs as possible. A small-scale example to start: "Wilson dared to prescribe overt, but not to proscribe covert, diplomacy."

Reality show

2007-08-18T20:54:00.000-04:00

Bruited about over lunch: an idea for a reality TV show ordered around zeugmas. Contestants would be timed as they carry out various tasks which have nothing in common except being grammatical complements of the same verb. Round one: drive a golf ball, a nail, a tractor, and your partner to drink. Round two: get hired, fired, high, laid, and the measles. Round three: kill half an hour, a six-pack, and at least one of the judges. And so on.

Films

2007-08-17T05:52:00.000-04:00

Tonight, it occurs to me: if I could only take three films with me to a desert island, they would have to be Resnais' Muriel (1963), Bresson's Au hasard Balthasar (1966), and Antonioni's L'eclisse (1962). Of course, if I thought about it a week from now I might well give a different answer, but nonetheless, I'm surprised that the three films that come to mind were all made in such a short span of time.

The Iron Chancellor's drinking habits

2007-08-17T04:57:00.000-04:00

Only the cellars [of Bismarck’s house in the Wilhelmstraße] were properly stocked. When Bismarck left in 1890, 13,000 bottles of wine had to be cleared out in a couple of days. This is not surprising in view of his statement that he intended to consume 5,000 bottles of champagne in his life—and this only as light refreshment after the table wines and brandy, to say nothing of beer.

—A.J.P. Taylor, Bismarck: The Man and the Statesman (London, 1955), 112.

Go forth and ogle

2007-08-17T04:45:00.000-04:00

Law Book Exchange offers a reprint of the Opera omnia of John Selden.

Unfortunately, it’s not cheap. In fact, you can get the original for only $500 more.

The reprint of the vulgate edition of the Year Books is also something to dream about, although probably less fun than Selden.

An aphorism

2007-08-11T23:39:00.000-04:00

In the end, I am not sure that Schmitt is as original or significant a political thinker as is often claimed--although, given his importance in Weimar intellectual history, the dark fascination he holds for many on the Left (myself included) is not difficult to understand. But he does at least deserve to be remembered as a extraordinary aphorist. Here is a gem I found recently:

“Daß die Anarchisten langweilig werden, ist vielleicht das letzte Zeichen dafür, daß es mit einer Gesellschaft zu Ende ist.”

Letter to Ernst Jünger, 2 Jan. 1934, in Briefe 1930-1983, ed. Helmuth Kiesel (Stuttgart: Klett-Cotta, 1999), p. 21.

The context, strangely enough, is a comment on Céline's Voyage au bout de la nuit.

A puzzle

2007-08-05T15:43:00.000-04:00

It occurred to me that there are 64082 points on the surface of the earth whose longitude and latitude, calculated in degrees, are both integers: 360 degrees of longitude · 178 degrees of latitude (from 89ºN to 89ºS) + the two poles.

How many of these gridpoints are on land? It would be tedious to count, but probably about 18600 of them, since 71% of the earth's surface is covered in water (64082 · 0.29 = ~18583).

Now for the generalization (which can be developed in various ways): take a simple closed curve on the surface of a sphere, defined by an equation of a particular form but with parameters unspecified, subject to the constraint that the curve encloses some fraction j of the total surface area of the sphere; assuming randomly chosen (real-valued) parameters satisfying the constraint, calculate the probability distribution for the number of gridpoints lying within the curve. At least for garden-variety, well-behaved curves, one imagines that the distribution will peak at 64082j and taper off as one goes above or below that. If one allows in too many strange curves, there might be a problem even defining a probability measure on the set. I don't know exactly how one would go about beginning to solve this problem except for the simplest cases.

(Am I right, by the way, in thinking (1) that there are a total of beth-two simple closed curves on the surface of a sphere in R³ and (2) that at least some of these will enclose no well-defined area, for Vitali/Hausdorff reasons?)

(Disclaimer: I am not a mathematician. For all I know, there might be an extensive literature on this problem. )

Construction task

2007-08-05T15:24:00.000-04:00

Write a meaningful, grammatical Latin sentence, all of whose words end with the letters -t- + -vowel- + -r. Entries will be judged on length, creativity, and stylistic polish.

Leslie Stephen on the prince of burglars

2007-08-03T16:24:00.001-04:00

From Leslie Stephen, “The State Trials”, in Hours in a Library (a most unjustly forgotten jewel of Victorian minor literature), new edn. (New York and London: Putnam, 1904), iv. 281-326, quotation at pp. 293-7:

Another hero of that time, unfortunately a principal instead of a mere spectator in the recorded tragedy, is so full of exuberant vitality that we can scarcely reconcile ourselves to the belief that the poor man was hanged two centuries ago. The gallant Colonel Turner had served in the royal army, and, if we may believe his dying words, was specially valued by his Majesty. The colonel, however, got into difficulties: he made acquaintance with a rich old merchant named Tryon, and tried to get a will forged in his favour by one of Tryon’s clerks; failing in this, he decided upon speedier measures. He tied down poor old Tryon in his bed one night, and then carried off jewels to the value of 3000l. An energetic alderman suspected the colonel, clutched him a day or two afterwards, and forced him to disgorge. When put upon his defence, he could only tell one of those familiar fictions common to pickpockets; how he had accidentally collared the thief, who had transferred the stolen goods to him, and how he was thus entitled to gratitude instead of punishment. It is not surprising that the jury declined to believe him; but we are almost surprised that any judge had the courage to sentence him. For Colonel Turner is a splendid scoundrel. There is something truly heroic in his magnificent self-complacency; the fine placid glow of conscious virtue diffused over his speeches. He is a link between Dugald Dalgetty, Captain Bobadil, and the audacious promoter of some modern financiering scheme. Had he lived in days when old merchants invested their savings in shares instead of diamonds, he would have been an invaluable director of a bubble company. There is a dash of the Pecksniff about him; but he has far too much pith and courage to be dashed like that miserable creature by a single exposure. Old Chuzzlewit would never have broken loose from his bonds. It is delightful to see, in days when most criminals prostrated themselves in abject humiliation, how this splendid colonel takes the Lord Chief Justice into his confidence, verbally buttonholes “my dear lord” with a pleasant assumption that, though for form’s sake some inquiry might be necessary, every reasonable man must see the humour of an accusation directed against so innocent a patriot. The whole thing is manifestly absurd. And then the colonel gracefully slides in little compliments to his own domestic virtues. Part of his story had to be that he had sent his wife (who was accused as an accomplice) on an embassy to recover the stolen goods.
“I sent my poor wife away,” he says, "and saving your lordship’s presence, she did all bedirt herself—a thing she did not use to do, poor soul. She found this Nagshead, she sat down, being somewhat fat and weary, poor heart! I have had twenty-seven children by her, fifteen sons and twelve daughters.” “Seven or eight times this fellow did round her.” “Let me give that relation,” interrupts the wife. “You cannot,” replies the colonel, “it is as well. Prythee, sit down, dear Moll; sit thee down, good child, all will be well.”
And so the colonel proceeds with amazing volubility, and we sympathise with this admirable father of twenty-seven children under so cruel a hardship. But—not to follow the trial—the colonel culminated under the most trying circumstances. His dying speech is superb. He is honourably confessing his sins, but his natural instinct asserts itself. He cannot but admit, in common honesty, that he is a model character, and speaks under his gallows as if he were the good apprentice just arrived at the mayoralty. He admits, indeed, that he occasionally gave way to swearing, though he “hated and loathed” the sin when he observed it; but he was—it was the source of all his troubles—of a “hasty nature.” But he was brought up in an honest family in the good old times, and laments the bad times that have since come in. He has been a devoted loyalist; he has lived civilly and honestly at the upper end of Cheapside as became a freeman of the Company of Drapers; he was never known to be “disguised in drink;” a small cup of cider in the morning, and two little glasses of sack and one of claret at dinner, were enough for him; he was a constant church-goer, and of such delicate propriety of behaviour that he never “saw a man in church with his hat on but it troubled him very much” (a phrase which reminds us of Johnson’s famous friend); “there must be,” he is sure, when he thinks of all his virtues, “a thousand sorrowful souls and weeping eyes” for him this day. The attendant clergy are a little scandalised at this peculiar kind of penitence; and he is good enough to declare that he “disclaims any desert of his own”—a sentiment which we feel to be a graceful concession, but not to be too strictly interpreted. The hangman is obliged to put the rope round his neck. “Dost thou mean to choke me, fellow?” exclaims the indignant colonel. “What a simple fellow is this! how long have you been executioner that you know not how to put the knot?” He then utters some pious ejaculations, and as he is assuming the fatal cap, sees a lady at a window; he kisses his hand to her, and says, “Your servant, Mistress;” and so pulling down the cap, the brave colonel vanishes, as the reporter tells us, with a very undaunted carriage to his last breath.

Sir Thomas More with his flashes of playfulness, and Charles with his solemn “Remember,” could scarcely play their parts more gallantly than Colonel Turner, and they had the advantage of a belief in the goodness of their cause. Perhaps it is illogical to sympathise all the more with poor Colonel Turner, because we know that his courage had not the adventitious aid of a good conscience. But surely he was a very prince of burglars!

A Gibbonesque footnote in Pocock

2007-08-03T15:26:00.000-04:00

One learns many things reading J.G.A. Pocock, some more surprising than others. From the postscript to the reissue of The Ancient Constitution and the Feudal Law (Cambridge: Cambridge University Press, 1957, 1987²), pp. 376-77 and fn. 95, discussing the opposition of the country party to George III:

The king’s aristocratic opponents saw themselves playing the roles of Russell and Somers, Pym and Hampden, Simon Montfort and Stephen Langton; the Whig interpretation of history entered its third volume; and again much was heard (as it had never ceased to be) about the liberty-loving and sturdy (if uncouth) barons of Runnymede.*

*This image of the barons—as representing both sides of the “Gothic” personality—had been around for some time and had a long life before it. John Cleland's Fanny Hill on one occasion—which it is unnecessary to describe in as much detail as she does—is reminded of their ancient vigour, and their battle-axes.

Sadly, my copy of Fanny Hill is not at hand to check the reference.

Pocock’s footnote is not quite equal in coy prurience to Gibbon’s comments on Theodora (chap. XL, fn. 24, II:565 in Wormersley’s edition), but surely up to some of the quality of some of the master’s other sallies. Of course, by now Pocock is at work on volume five of Barbarism and Religion.