IsThatLegal?

"Though he be a gentleman, remember, Eric Muller is also a lawyer."
-- Sparkey of "Sgt. Stryker's Daily Briefing"
"Relentlessly sensible and often important."
-- Michael Froomkin of "discourse.net"

In Wyoming, the way Lubavitcher Jews dress is not just a curiosity, it's a news item.

I spent four years as one of Wyoming's estimated 400 Jews. You might think that being in such a tiny minority would sap enthusiasm, but the effect on me was quite the opposite. Those four years were probably the four most observant years I've ever known. Something about faith in the face of adversity, I guess.

Baggage Carousel 4 turns one year old today. Stop by and wish Jenny a happy birthblog.

A month ago I noted that Wyoming Senator Mike Enzi was pushing the idea that the propellant used in model rocketry should be exempted from the licensing and background check requirements of the Homeland Security legislation.

Frank Lautenberg and Charles Schumer have stopped the bill in its tracks.

I have an interesting little problem to resolve, and would be curious to know how you would handle it.

I am a big supporter of intellectual and political balance at my law school, UNC. It's no secret, I think, that the faculty as a whole at this law school are, in their own lives, rather to the left of center; I am too, but probably a good bit closer to the center than most of my colleagues.

I am quite deliberate, in my teaching style, to conceal my own politics as much as I can, and the student feedback I get tells me that I'm usually pretty successful at it. I'm always amused to read my Criminal Procedure evaluations; invariably there are two or three students who criticize me for my outrageous pro-prosecution bias (I was a prosecutor before becoming a law teacher), and, in the same batch of evaluations, two or three students who criticize me for my outrageous pro-defense bias.

OK, so here's the problem: a student has asked me to be the faculty adviser for a new student group that is forming to advocate on one side (the "conservative" side) of a highly contentious issue of legal and public policy. The student who asked me assured me that she does not know my actual views on the issue, but knows that I'm committed to intellectual balance at the law school, and to making sure that students who are to the right of center feel like full law school citizens.

As it happens, my actual views on the issue run quite strongly against the position the group wishes to espouse. That doesn't bother me, because I'm comfortable that I can advise them without sharing their agenda. (Besides, all student groups at UNC need a faculty adviser, and I can't think of another faculty member who does share their agenda and who'd be willing to serve as their adviser.)

An appreciable number of students, and probably also some of my colleagues, will assume from my serving as faculty adviser to this group that I do share their agenda, and some--more students than faculty, I'm sure--will write me off as a right-wing nut case. Of course, they'd be wrong about that even if I did share the group's agenda; while the group's position on the issue is certainly to the right of center, most people who hold this particular view on the issue are not nuts. But while I know they'd be wrong about that, I won't be able to stop them from drawing that conclusion about me.

Would you do it? Why or why not? Leave a comment, or drop me an email. If you do email me, let me know whether I have permission to reproduce what you write (with or without attribution).

On August 2, 1903, four and one-half months before Orville and Wilbur Wright had their first successful flight at Kitty Hawk, my grandmother, Alice Muller, was born in Donaueschingen, Germany.

She turns 100 this Saturday, and we'll be there to celebrate with her.


Her short-term memory ain't so great, but her long-term memory is still astonishing.

And long-term memory is a mixed blessing for a woman who saw her entire life collapse around her in November of 1938 when the Gestapo took her husband, my grandfather, to Buchenwald. Here is a photo of recently arrived Jews at Buchenwald; it haunts me to know that my grandfather may be in that photo somewhere.

My grandfather emerged from the camp a few weeks later and he and my grandmother and their two children fled with little more than the shirts on their backs into Switzerland, due largely to my grandmother's pluck. Two and one-half years later they left Switzerland for the United States and settled on a chicken farm. Quite a change in station for the family of a professor, but they dug in and learned how to turn a profit on chicken eggs.

(Ironically, this family of German Jewish refugees became enemy aliens in the US government's eyes on December 8, 1941, when the US entered the war against Germany. FBI agents searched their New Jersey farmhouse, seized a couple of items, and imposed travel restrictions on them.)

My grandmother and grandfather put their son (my father) through college and law school, and their daughter through college. They lost family in the Holocaust. They lost their daughter at a young age to a horrible disease. They lost their farmhouse to arson. And through it all they somehow managed to live according to the maxim on the little card that still sits on my grandmother's bookcase: "Es geht mir mit jedem Tag in jeder Hinsicht immer besser und besser!" (Every day, in every way, things are going better and better!)

Happy 100th birthday to an inspiring woman!

Some time ago I blogged about what I thought was a local news story here in North Carolina about a couple of FBI agents investigating a young man for reading something "suspicious" in a coffee shop.

I was initially suspicious about the story's accuracy, and it turned out that the story hadn't happened in North Carolina at all, but otherwise the story checked out. I wrote to the FBI's Atlanta office and asked to talk to them about the story, but they did not respond.

The young man who was investigated has published a story about the encounter, and you can find it here. The story has his picture. He doesn't look too suspicious to me. But then, I'm not an FBI agent.

Surely there must be Summer Reading material in here somewhere.

As I wandered up the main street in the little town of Corbin, Kentucky, I happened across this long-abandoned little restaurant:











I loved the inscriptions by the front door.






I'm guessing that at one time "ladies" were only "invited" so long as they were white, and that the "courteous service" for black customers was at the pickup window (now boarded up) at the side of the restaurant.


What a priceless time capsule. If you can pick up a building and put it in a museum, this little place deserves to be preserved in that way before it collapses, which it looks like it's not far from doing.

When you visit the Tweetsie Railroad, a Wild-West-themed amusement park near Blowing Rock, NC, your one low admission price gets you into all of the park's attractions--the railroad ride, the saloon shows, the old-fashioned country fair amusement rides, and the graveyard!





That's right. When the Tweetsie Railroad folks chose a site for their amusement park, they found just the right spot ... but damned if there wasn't a cemetery there already. So they just built the amusement park right around it, like a bagel around its hole. So now, when you go to visit Grandpa and Grandma, you can test your aim at the Shooting Gallery or take a spin on the Go Karts to cheer yourself up afterwards.

Well, I'm back from my trip. It was marvelous. Coming back to reality stinks.

If you're not claustrophobic, and have never gone caving, you should try it. It's really fun. But make sure you go with somebody who knows what he's doing!

Over the next day or so I'll post a couple of photos from the trip.

I just found a fun little site called "Googlism," a search engine that appears to run a set of Google searches on a given search term and then tells you what Google "thinks" of the search term. As an example, I put in (what else?) my name, and got this:

Googlism for: eric muller

eric muller is up to his old tricks again
eric muller is law professor at the university of north carolina
eric muller is an asset to the law school
eric muller is a professor of mathematics at brock university
eric muller is actually the last american freedom fighter
eric muller is
eric muller is no longer at umbc
eric muller is a law professor at the university of north carolina and the author of a book about japanese internment during world war ii called "free to die
eric muller is professor at the university of north carolina school of law
eric muller is a law professor at the university of north carolina at chapel hill
eric muller is trying to do it with common materials

Some of this is actually true! I am up to my old tricks again. I am the last American freedom fighter. I am no longer at umbc. (I don't even know what umbc is!) I am a law professor at the University of North Carolina. And I am trying to do it with common materials.

On the other hand, I'm not a professor of mathematics at brock university. And whether I am "an asset to the law school" is, I suspect, open to debate.

Go find your own googlism.

And have a nice 10 days. I'm off for a weekend of caving in Kentucky with my older daughter, and then a week in the mountains with my wife and both daughters. And, of course, Margot the puppy (pictured above).

Blogging will resume around the 21st of July. Check back.

Tschüss!

The little town of Carrboro, North Carolina, "The Paris of the Piedmont," as we locals like to call it, surely must be North Carolina's most liberal town. One of the first towns to pass a resolution protesting the PATRIOT Act. A town that declared April "French Products Month" to counter the anti-French mood in Washington during the Iraq war. A very popular and openly gay mayor. You get the picture.

Well, Carrboro doesn't get the picture.

The second-highest elected official in Carrboro ordered the removal last week of a controversial piece of artwork from a public display in town hall on the eve of Carrboro's Independence Day celebration? The piece, "Trying To Make Black and White Out of Red, White, and Blue," is an American flag with the stars arranged in the shape of a swastika. The alderman who removed the work was reportedly concerned that older people, including veterans, who would be playing bingo in the boardroom where the work was exhibited might be offended by it.

Sheesh. If you can't show a provocative piece of artwork in a public display in Carrboro, where can you show it?

A professional baseball player was arrested last night for striking a young woman as she raced by him dressed as a large Italian sausage. The woman crumpled to the ground and knocked over another young woman dressed as a hot dog.

A bratwurst and a Polish sausage were uninjured.



I know, I know. Sometimes a cigar is just a cigar.

Like many others, I found President Bush's speech at Goree Island off the coast of Senegal to be truly remarkable. It is exceedingly rare that a public figure so clearly articulates a condemning judgment of prior generations, and so clearly refutes the claim that it is unfair and anachronistic to judge past generations by today's standards:

At every turn, the struggle for equality was resisted by many of the powerful. And some have said we should not judge their failures by the standards of a later time, yet in every time there were men and women who clearly saw this sin and called it by name.

I am writing an essay this summer on this very problem--how we in the present should assess the wrongdoing of prior generations--and I have concluded that the point on which President Bush focused is key: Was there, in that prior generation, a sizeable group of people who parted company with the wrongdoers and resisted, condemned, or protested it? If so, then the wrongdoers' acts look a lot more like choices, and a lot less like unreflective conformity with the unquestioned standards of a given time.

The counter to the argument for condemning the wrongdoing of past generations was eloquently stated by the nineteenth century historian and legislator Lord Macaulay, who wrote:

the very considerations which lead us to look forward with sanguine hope to the future prevent us from looking back with contempt on the past. We do not flatter ourselves with the notion that we have attained perfection, that we are wiser than our ancestors. We believe, also, that our posterity will be wiser than we. It would be gross injustice in our grandchildren to talk of us with contempt, merely because they may have surpassed us . . . . As we would have our descendants judge us, so ought we to judge our fathers. In order to form a correct estimate of their merits, we ought to place ourselves in their situation, to put out of our minds, for a time, all that knowledge which they, however eager in the pursuit of truth, could not have, and which we, however negligent we may have been, could not help having. It was not merely difficult, but absolutely impossible, for the best and greatest of men, two hundred years ago, to be what a very commonplace person in our days may easily be, and indeed must necessarily be. But it is too much that the benefactors of mankind, after having been reviled by the dunces of their own generation for going too far, should be reviled by the dunces of the next generation for not going far enough.

Yesterday the president called slaveowners criminals. ("One of the largest migrations of history," said Bush, referring to the slave trade, "was also one of the greatest crimes of history.") It would be a stunning thing for a reporter to ask the President whether he really meant that Thomas Jefferson and George Washington--and even his own great- great- great-grandfather--were criminals, "[s]mall men" who "took on the powers and airs of tyrants and masters," and practicioners of "hypocrisy" and "injustice."

(I recognize that the "crime" Bush specifically identified was the slave trade, which one might distinguish from "mere" slave ownership. But I see nothing in the speech that implies a moral distinction between trade and ownership.)

Here is something I'll never understand: how does the NY Times decide which books to review? The Thursday paper is carrying this review of (what they tell us is) a thoroughly mediocre book about Watergate published by a less-than-top-ranked university press. "[A] dry piece of work, faithful to the subject without truly extending its reach," says the review. So why devote space to the review? Surely there are hundreds of undiscovered gems in the major academic presses' spring catalogues that the Times could be bringing to a wider audience, rather than just trashing a book that few people would ever have heard of.

Last year the University of North Carolina at Chapel Hill required all of its incoming freshmen and transfer students to read and then discuss Approaching the Qu'ran, a new translation of a handful of suras from the Muslim holy book. The book's selection triggered a firestorm of protest and a lawsuit.

I learned a lot both from the book and from the freshman discussion group that I led. I'm glad I read the book and participated in the program. At the same time, I thought the University goofed in proclaiming that the book was of special relevance in the post-9/11 world. The university's chancellor explained that the selection of the book would "expos[e] the ignorance and prejudice that exists in America among people who are unable to distinguish between the basic tenets of a faith and the extremists who distort a faith into a cause for violence and terrorism." Well, that is a really important point, but nothing in the book came within a mile of addressing it. It wasn't a book about geopolitics, or regional or cultural conflict, or terrorism, or even about the enormous religious and cultural diversity with Islam and the Muslim world. It was a book about the lyrical and recitative style and structure of certain passages from the Koran. Period. The sort of text that might be one of many in an arcane Religious Studies seminar. It had nothing to do with 9/11, or, for that matter, anything after about the ninth century. And in this sense, the book was a bit of a cheat: it did not offer students any way of speaking any more intelligently about the post-9/11 world than they had before reading it, but the University spun it as a way of facilitating "dialogue" about 9/11 and terrorism. It would have been far wiser and more honest, I think, for the University to have assigned two short books on Islam--one by Bernard Lewis and one by John L. Esposito. That would have actually allowed and educated version of the discussion that the University claimed it wanted.

(I'm setting to one side here the inappropriateness, and possible illegality, of a public university's announcing what are the "accepted tenets" and what are the "distortions" of a particular religion.)

This year, the University chose Nickel and Dimed by Barbara Ehrenreich. And again people are protesting. This year, however, the protest just seems silly. The book "chronicles the experiences of its author, who traveled to three U.S. cities and worked low-paid jobs as a waitress, cleaning woman, nursing home assistant and Wal-Mart employee." (That's a quote from the Charlotte observer story I just linked to.) According to the group of conservative students who are protesting the book's selection today, and who seem to have managed to talk some state Republican legislators into publicly supporting them, the book "has a liberal bias and presents a radical perspective of the U.S. economy." I haven't read the book yet, so I can't say whether this is true or not. (I certainly wouldn't be surprised if the criticism were in some ways true.) But surely the discussion leaders will encourage students to take a critical stance toward the book; that's what we've been urged to do each year, and it's certainly what I always do. And more importantly, if a student thinks that the book is unfair to Wal-Mart, she can presumably open her mouth and say so, and even back it up with some facts. Unlike, say, the Koran, Wal-Mart is something that most Americans are pretty familiar with.

The Law Guy writes about another federal judge who's resigning because he can't stand the federal sentencing guidelines.

A handful of others quit in the early '90s for similar reasons.

As an appellate lawyer at the US Attorney's Office in NJ from '90 to '94, I became only too familiar with the guidelines. I found them kind of fun to work with, in a "brain teaser" sort of way, but ultimately rather numbing.

The most eloquent condemnation of the guidelines I've ever heard came from the mouth of the federal district judge for whom I clerked. (I don't think he meant it as a condemnation.) I clerked for him in the pre-guideline era, but had lunch with him after the guidelines had been effect for a couple of years, and asked him how he liked the new system compared to the old one. He said, "I hate them, but I sleep a lot better the night before a big sentencing." That, to my way of thinking, is exactly what is wrong with the guidelines. A good sentencing system is one that has judges up at 3:00 a.m. wondering what the right thing to do is.

A sports writer for the Roswell, New Mexico Daily Record has been sacked for putting three fictitious paragraphs into a report about a local Father's Day golf tournament. The three paragraphs were based on the classic golf film "Caddyshack."

Gosh. This must be the oddest thing that has ever happened in Roswell.

On Sunday I blogged about a story in my local paper about an encounter between the FBI and a young man who had allegedly been seen reading something suspicious in a coffee shop. My concerns with the piece were two: First, the columnist had not investigated the incident to see if it happened as the interrogated man claimed. Second, the columnist used the story to make some points about the USA PATRIOT Act that were both unrelated to the story of the young man and legally inaccurate.

I've since done a bit of digging myself, with the gracious assistance of the columnist who wrote the piece, and I'm persuaded that there's ample reason to think the FBI did go after this guy because of a tip about what he was reading, coupled perhaps with a "suspicious" appearance (long hair, dark complexion, beard). I'm going to contact the relevant FBI office to see if I can find out any more about what happened and to let them know that their tactics (at least as reported) seem very heavy-handed and needlessly threatening. (Incidentally, although the piece in the local paper made it sound (to me, at least) as though the events had happened here in Chapel Hill, they did not.)

It remains true, however, that the PATRIOT Act had nothing to do with the case, and that that law does not make it legal for the FBI to "bug" somebody's computer simply for researching an unflattering article about the FBI.

If I learn anything more from my efforts to reach the FBI, I'll blog it here.

Here's an interesting little question to think about: Justices Scalia and Thomas often complain that the inquiry into whether a particular right is or is not "fundamental" results in the constitutionalization of the sensibilities and practices of the elite class to which the Court's members belong.

On June 28, a federal district judge in Wyoming held that the Constitution recognizes no fundamental right to hunt game animals. (Here it followed the clear suggestion, if not the outright holding, of the Supreme Court in the 1978 Baldwin case.)

Is this an illustration of the Scalia/Thomas point? Growing up in the Philadelphia suburbs, and I'll be honest here, I thought hunting was just barbaric and ghoulish fun for white trash. (I told you I'd be honest.) Then I spent four years in Wyoming, and while I never went hunting, I learned what an integral part of life it is (and long has been) for a significant part of the population. Perhaps the most avid hunter I knew was Debra Donahue, an ardent environmentalist faculty colleague of mine at the University of Wyoming College of Law.

So: if the Equal Protection Clause gives an unmarried person the same right to buy a contraceptive as a married person, should it also give a New Jersey resident visiting Pennsylvania the same right to shoot a deer as a Pennsylvania resident enjoys?

(For me, the answer is "no," but it's still an interesting question.)

You'd think this headline was someone's idea of a joke, but it's not:

Singapore Raffles Medical Stk Ends -9%; Iranian Twin Dies

That's right: the story here is not the death of a human being, but a nine percent drop in the hospital's share price.

It's a cold world out there.

It really doesn't get much odder than this. (You probably need a fast connection to see it.)

Although it's rather like watching Muhammad Ali in the ring with Herve Villechaize, you might want to go over and read Eugene Volokh on Pat Buchanan.

The novelist A.S. Byatt has a bloated (psycho-)analysis of the Harry Potter phenomenon in today's New York times. Toward the end of the piece, the reader who has managed to make it that far will find this sentence: "Sadly, being taught literature often destroys the life of books."

It seems that writing literature does that too. Byatt's trying to understand why the Potter books appeal to adults when they lack what she calls a "compensating seriousness" to counterbalance the comfort they offer. But she misses the obvious: they're just fun to read. Nobody said that it's the great literature that sells lots of copies, and nobody said that what adults should want to read is great literature. Ms. Byatt may wish it were otherwise; this is, after all, a lament we've heard from her before. But I predict that more adult readers will make it all the way through the 870 pages of the new Harry Potter book than will make it through the 15 ponderous paragraphs of her op/ed in today's Times.

My local newspaper, the Chapel Hill News, carried this column today about an encounter that a local man had with the FBI, apparently after he was seen reading something that seemed suspicious to an onlooker in a coffee shop.

This strikes me as a better example of fear-mongering than of journalism. The column's title is "A True Story," so we are, I suppose, to accept at face value (as the columnist evidently did) the story as related to her by her source. But the columnist did not contact the FBI about the events she writes about, or, it seems, do anything else to investigate them. So how are we to know the story is true? That there isn't more (or less) to it than her source related to her?

More importantly, what is the author's support for the incredible assertion that "it's legal now" for the FBI to "bug" a journalist's computer simply because she's writing a column about one of their investigations? To be sure, there have been many significant and troubling changes to surveillance law since 9/11, but none of them would allow the FBI to seek a warrant for a reporter's computer just because she's writing something unflattering about the FBI. And the notion that a judge would sign such a warrant is just absurd.

I am eager to see many provisions of the Patriot Act repealed or, in the case of those with a sunset clause, not renewed. But I don't think that the Chicken Little routine is likely to win too many folks over.

UPDATE: Two quick things. First, in correspondence with me, the author of the column told me that she had been told this story by an official "in the state where it occurred." The column made it sound as though the events had taken place here in Chapel Hill. (Caribou Coffee, the "scene of the crime," is a popular local java spot, and the column appeared under the heading "Village Voices," which is usually a column about local matters.) I had assumed the columnist meant the Caribou Coffee here in Chapel Hill, but I see that it's a chain in DC and 8 other states. Now I have no idea where this "true story" occurred.

Second, I now realize the column's larger flaw: nothing in the story actually has anything to do with the PATRIOT Act. Here's the scenario: somebody sees a person reading something suspicious at a coffee shop. That somebody tips off the FBI, and a couple of agents track down the reader to ask him some questions. Admittedly, this is not how I'd want the FBI spending its time. But FBI agents could have done what they did just as easily before 9/11, without the PATRIOT Act, as they allegedly did after. The FBI has had the authority to follow up on a tip by approaching someone and asking him some questions since there has been an FBI.

I never thought of myself as such a fuddy-duddy about this, but I'm really troubled by the precedent that's being set by all of these media appearances by Supreme Court justices just after announcing big decisions. Can't quite put my finger on why, but I don't see the Justices helping themselves, or the Court, by becoming just another inside-the-beltway interview. I guess I'd always thought the Court could rely for its authority mostly on the strength of its reasoning, not its reasoning and a good publicist.

Why, by the way, will some of them appear on Sunday morning news programs while the Court still refuses to allow the public to watch the Court's proceedings on television?

In 1942 the federal government forced the Japanese Americans of the West Coast into inland concentration camps. In 1943 and 1944, the government came to those camps looking for soldiers. Some of the internees resisted the draft in order to protest their mistreatment (and that is what my book Free to Die for their Country is about), but some of the internees volunteered, and many more complied with the draft.

About 800 young men ultimately left the barbed-wire confines of the Heart Mountain Relocation Center to serve in the military and fight for somebody else's freedom. Fifteen were killed in action.

Today, in a moving ceremony at the site of the camp, the Heart Mountain Wyoming Foundation dedicated a replica of the Honor Roll--the board that the internees created back in 1944 to list the names of the men who were serving their country on the battlefield.

The Foundation is also building an interpretive learning center at the site of the camp, which it hopes to have open as early as 2006. Just an hour east of Yellowstone's East Entrance, and a few minutes from the town of Cody and its fabulous Buffalo Bill Historical Center, the interpretive learning center promises to be a prime attraction for tourists interested in supplementing their summer vacations with a trip back to a thought-provoking and disturbing moment in American history.

Here's an amusing headline for a not-very-amusing story:

At least 16 killed in blasts at Moscow rock festival; police call it terrorism

Now that's what I call going out on a limb.

I'll be off on Friday for a weekend of caving with my older daughter in Kentucky. Poking around on the web for information about the town of Corbin, where we'll be staying, I discovered that the town is the home of none other than ... Colonel Sanders, of Kentucky Fried Chicken fame! We'll get to eat in his original restaurant, and see the kitchen where he perfected the blend of 11 herbs and spices that we all know so well today as his Original Recipe®.

(He, of course, didn't call it his Original Recipe®; he just called it finger-lickin' good. After all, how could he have known that one day Extra Crispy™ would come along?)

Those of you out there with kids may know the Raffi CD "Bananaphone. "
My kids have pretty much outgrown the bearded Canadian songster, so I don't listen to his songs that often. But for some reason today I found myself humming the song "The Changing Garden of Mr. Bell," and was reminded what an odd song it is for an album of children's music. There, in the midst of tracks such as "Shake a Toe" ("Everybody come shake a toe/From your head to your feet/In the rhythm of the come and go/Shake a toe toe toe") and, of course, "Bananaphone" ("It's a real live mama and papa-phone/A brother and sister and dog-a-phone/A grandpa-phone and a grandma-phone too/My cellular, bananular phone"), is this tear-jerking head-scratcher: (Read the lyrics carefully, along with my editorial comments; a question follows.)

The Changing Garden of Mr. Bell
(by Janice Hubbard and Michel Silversher)

Mr. Bell's from a foreign place, his family all were farmers
He arrived from across the sea, and came to be next door
And he works his land,
With a knowing hand,
Though it's very small, he makes it grow so well
In the changing garden of Mr. Bell.

[OK, so at this point, you're wondering, "gee, who is this Mr. Bell? Where did he come from?]

These are astors and edelweiss [edelweiss!!], and rows and rows of roses
Those are hives in the dogwood trees, for bees to come and go
It's a wondrous sight
In the morning light
And the earth is full, every color, every smell
In the changing garden of Mr. Bell

[hmmm.... Edelweiss? A rare European mountain flower? In a garden here?]

I once saw a photograph, upon his mantle shelf
Of a beautiful lady, a child in her arms
And the young Mr. Bell himself
I wondered out loud about them, and he answered
In the strangest way,
He just said, "Look, see how the garden grows,
It's always changing every day."

[This is where the song takes a very puzzling turn. When Mr. Bell was a young man, he had a wife and child. He somehow lost them or left them behind. Asked about their whereabouts, he refers vaguely to his garden.]

Mr. Bell has his morning tea, and I will bring his paper
See the sun through the curtain lace
Dapple his face and hands
Every day is new,
There is much to do
Life's a mystery, full of secrets that might tell
In the changing garden of Mr. Bell.

["Secrets that might tell." Indeed.]

OK, IsThatLegal readers. Who is Mr. Bell? Where is he from? What happened to his family? Is he a Holocaust survivor who cannot bear speaking about his murdered wife and child, and who grows a garden as therapy? (This theory would explain the obscure edelweiss reference.) Is he perhaps a murderer who killed his wife and child and buried them beneath his garden? (This would explain why, when asked about his wife and child, Mr. Bell points the child to the garden and hints that perhaps the wife and child are fertilizing the flowers and vegetables.)

Your theory on this vexing and important problem?

Korean restaurant confesses to discrimination in dispensing dessert.

The town of Rocky Mount, NC, recently spent $55,800 (or $55,775 too much) for this statue of a famous person:



Can you guess who it is? (Some of the town's residents, it seems, couldn't. Neither could I.)

Click here for the answer!

Courtesy of my friend John Barrett, I offer you the following never-before-published Independence Day address delivered by Attorney General Robert Jackson on July 5, 1941, just a week before joining the United States Supreme Court.

Barrett is the leading scholar on Justice Jackson's life and jurisprudence. You will soon be hearing a great deal about a book that Barrett is bringing out: "That Man," a memoir of Franklin Delano Roosevelt that Robert Jackson wrote but never published. Barrett discovered the manuscript in Jackson's archives and has devoted enormous care to preparing it for publication. It is nothing short of extraordinary for a contemporaneous memoir of FDR to appear sixty years after his death, and from the pen of as masterful an author as Robert Jackson. The book promises to be a blockbuster.

Jackson was to have delivered this address at the Washington Monument (and over the radio nationally) on July 4th, but the weather did not permit the event to go forward. Jackson went to a studio instead and taped the speech. It was broadcast nationally on Mutual Radio's network, and played at the rescheduled Independence Day observance at the Washington Monument on July 5, 1941.

Happy 4th, everybody.




Independence Day Address

By Robert H. Jackson
Attorney General of the United States

Washington, D.C.
July 4, 1941


For nearly two years now many of us have been bewildered by the headlong course of events in Europe and not a few of us have been confused as to the course of wisdom at home. We have seen a nation which twenty years ago had been vanquished, rise up with a ferocity seldom seen in the history of mankind. We have seen vaunted armies smashed as if they were so much paper. We have seen Europe overrun and England placed in grave danger. We have seen the dictator idea spread in the world. At first its two principal proponents, communism and fascism, appeared to be mortal enemies. Then, one day, they turned up as partners. Now they battle each other.

For nearly two years Americans have been asking each other which way safety and security lie. We have pondered the problem weighing risk against risk and danger against danger. Now at last, on this Fourth of July in 1941, the truth of our situation is coming home with increasing clarity to all Americans. We are learning the overwhelming fact that now, as in 1776, our nation together with our sister Republics on this hemisphere, faces a preponderantly hostile and undemocratic world. Now, as in 1776, we can turn to the Declaration of Independence for the principles which should guide our action.

You are lifted and inspired, like generations before you, by the majestic cadence of the boldest, the noblest, and best known of all American writings. The Declaration of Independence speaks strong doctrine in plain words. It is the world’s master indictment of oppression. The fervor of its denunciation haunts and challenges dictators everywhere and in every field of life.

But the Declaration of Independence does not stop with mere denials and negations. It sets forth great affirmations as to the permissible foundations of power and political leadership among free men. It lays down a fighting faith in the rights of man — merely as man — a faith to die by if need be, or even more bravely to live by. It impresses upon all political power the high obligation of trusteeship. It established an accountability by the governing few to the governed many. That is why men abroad who wield dictatorial powers over subject peoples would silence the reading of the Declaration of Independence, would tear all mention of it from the record, and torture all recollection of it out of the minds of men. Even at home there are some who hope it will not be read too loudly.

But the masses of warm-hearted people are reared on its strong doctrines of equality and human rights. It has exceeded every other modern pronouncement in its profound influence upon our lives, our culture, and our relations to the world. When the Constitution of the United States was adopted, its foundations were laid in the democratic idealism of the Declaration. It has been the inspiration for every later recognition of broadened human rights and for the extension of justice and security to all men. We do not claim to have reached a perfect fulfillment of its high principles. But we have achieved the nearest approach among all the nations to a classless society, to equality of rights, and to a fair distribution of opportunity and prosperity. Whenever we reproach our own imperfections, as we ought often to do, we must not forget that our shortcomings are visible only when measured against our ideals, never when put beside the practical living conditions of the rest of the world. We have by Constitution, by legislation, and by judicial decision translated the Declaration out of the language of abstract philosophy into the idiom of everyday living. We have validated democratic principles by our success.

America’s position in the society of nations is unavoidably that of a champion of the freedoms. The reason is aptly stated by Carl Becker, who says:

“In the Declaration the foundation of the United States is
indissolubly associated with a theory of politics, a philosophy of
human rights, which is valid, if at all, not for Americans only, but for all
men.”

When our national success demonstrated that freedom is an attainable goal, we made it the ultimate goal of all people everywhere. The four freedoms are not local or transient incidents; they are universal and timeless principles if they are valid at all. A blow against their existence in Europe is a blow at their validity everywhere. On the other hand, the example of a great and powerful people governed by their own consent through lawmakers of their free choice is a standing incitement to overturn tyranny anywhere. Malevolent conquests by dictators are silently undermined by our confession of faith in democracy as stated in the Declaration. That carries hope to subject peoples in whom there would otherwise be a noble, but unavailing, fortitude. Overridden countries find a bid to insurrection in its assertion of the right of the people to alter or abolish an existing government that is destructive of life, liberty, and happiness. They read words of invitation in its statement of their right to “institute new Government, laying its foundations on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” No wonder the Declaration of Independence is the nightmare of conquerors.

Some will say that the decision faced by the patriots of 1776 was an easier one than ours, since they had nothing to lose but their intolerable situation. Our task, some will argue, is to protect rather than to win our freedom and that for that reason we should be cautious.

But if the patriots of 1776 risked little by action, we risk much by indifference. Today we risk the loss of a physical, cultural and spiritual heritage of freedom far beyond the most inspired visions of the leaders of ’76. And the more of the world that ceases to be democratic, the greater our risk will be. We do not need to be imprudent or foolhardy, but we should recognize that no amount of cautious behavior, no amount of polite talk will earn for us the friendship and goodwill of dictator systems. Ultimately we must come to the day when we shall face their threats and their enmity for no other reason than that we persist in living the kind of life we live.

One fact emerges clear above all others. We Americans cannot cease to be the kind of people we are, we cannot cease to live the kind of life we live. We are not the kind of people the dictators will ever want in the world. They will never have any use for our kind of life, nor we for theirs.

Every American knows now, as he knew it in 1776, that there is nothing for him in that way of life.

There are those who shrink from the risks of standing for a forthright, practical application of democracy. They point to the striking power and efficiently of foes abroad. But the enemies of American democracy today cannot begin to assemble a force so relatively powerful and so encircling as were its foes that day when the signers of the Declaration pledged their lives, their fortunes, and their sacred honor in its support. The most strategic points in our own country were then in possession of the King’s armies. Canada was a base for his operations. Florida, Cuba, Puerto Rico, and the mouth of the Mississippi were occupied by forces of Spanish monarchy — no lover of democracy. And the unsolved problem of the colonies along their whole precarious frontier was the Indian. American democracy then had no navy, only an empty treasury. Its army was composed of untrained volunteer backwoodsmen who could not get shoes, clothing, or substantial arms to fight the invading British regulars. There was no national unity. There were cabals against Washington, a fifth column of Royalists was powerful and respectable, and the states were jealous rivals who did not act, nor even think, as a unit. But in such an hour our forefathers who believed in freedom did not fear to stand alone and to become, as they continued for many years to be, the world’s only real democracy. But the American forces had power — the unseen power of the earnest individual — the individual with what Mr. Justice Holmes called "fire in his belly." Only when these fires go out need we fear the lawless forces of dictatorship. Democracy’s strength is in man-to-man measure. None other draws such initiative from its way of life, none invents, and none had so generally and fully mastered in its daily life the technique of handling modern machine transport and production. And we dwell among resources as incredible as acres of diamonds.

But there is at home and abroad an anti-democratic influence, even more cynical and sinister and dangerous than Hitler, Mussolini, and Stalin combined. I refer to those who think democracy is a fair weather ideal — to guide us in soft times — but that when the going is tough we cannot save it without losing it. This doctrine has every base quality of fascism without either its candor or courage. Let us in America never forget that liberties trampled by conquest may be regained, but liberties abandoned by an indifferent people are never recovered. Nor are they deserved.

Let us not forget the example of our forefathers. They, too, heard the argument that time of external danger was no time to advance freedoms. But their answer was to give liberty a new birth not only in the midst of a war but in the very darkest hours of that war, because they knew that what wins struggles are the last ounces of endurance and the reserves of power that come to the common run of men on fire for a cause. Such men do not count costs nor watch the clock. We must keep our freedoms, keep them in face of foreign dangers even more tenaciously and jealously than in calmer times — keep them because it is our liberty that lifts our cause above material ends and anchors our efforts in timeless things. We know that in the unfolding book of destiny, just as in the closed book of history, it is written that tyranny and oppression bring forth their own downfall and that the irresistible moral forces of the world march always on the side of resolute men when freedom is their goal. We know that the spiritual strength and the moral power of our democratic tradition, authenticated by a century and a half of progress, will not long yield the field anywhere in the world despite the temporary devastations by enemies of the fundamental philosophy of our Declaration of Independence. As Kipling has said:

“Though all we knew depart,
The Old Commandments stand: -
‘In courage keep your heart,
In strength lift up your hand.’”

This morning, driving to work here in North Carolina, I heard a white good-ol'-boy DJ on The Big Show with John Boy and Billy praise Justice Clarence Thomas for his "common sense" and then segue straight into a Lynyrd Skynyrd song.

Is this the New South they keep telling us about?

A simply extraordinary post at Silflay Hraka.

Warning: there are photos, and they are not for the faint of heart.

To anyone who is thinking of getting a dog: We've had our little bichon puppy Margot for a little over a week now, and have begun "clicker training" with her. Clicker training is just operant conditioning, for those of you who trained pigeons to peck for food in a Skinner Box in a college psych class. It's the method that's used to train dolphins to do all those awesome tricks you see them doing at aquariums.

It is working incredibly well with little Margot! It has just been a couple of days of training, and already she will peck at a bar for birdseed and jump out of a pool for fish. Now if we could just get her to pee outside...