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::: posted by Nicholas Provenzo
at 4:38 PM | link
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'From His Cold, Dead Hands'
Actor Charlton Heston stepped down today after five years as president of the National Rifle Association. Heston, recently diagnosed with symptoms of Alzheimer's disease, was strong enough to raise an 1866 Winchester rifle over his head and deliver his trademark line, "From my cold, dead hands."
Heston was a great champion for the NRA and he gave the group a gravitas it could not have enjoyed without him. While philosophically there are several things I would like to see change in how the NRA presents its arguments, I would never deny the important victories it has won in defense of the Second Amendment under Heston's leadership.
And never mind the Michael Moore interview. Moore took advantage of a man clearly past his prime and used him as grist for his propaganda mill. I think Heston's legacy as an advocate for civil rights and the Second Amendment will easily stand the test of time.
::: posted by Nicholas Provenzo
at 4:18 PM | link
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::: posted by Nicholas Provenzo
at 4:04 PM | link
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Concerned Women for "Federalism"
Earlier, I discussed Concerned Women for America’s Robert Knight. CWA’s president, Sandy Rios, is now defending Rick Santorum and his anti-individual rights view of the Constitution. In a letter to the Washington Times, Rios replies to Santorum critic David Lampo, an official with the Log Cabin Republican Club of Virginia:
Now let's consider Mr. Lampo's truly distorted view of the Constitution.
Mr. Lampo contends that Sen. Rick Santorum, Pennsylvania Republican, erred by noting that the Constitution does not define any right to privacy, which it doesn't. Then Mr. Lampo concedes that "the Constitution doesn't say anything about sex at all." Yes, the framers left such matters largely to the states, which is why it would be a colossal act of judicial tyranny if the Supreme Court strikes down the Texas sodomy law.
Then Mr. Lampo says the Constitution was "meant to restrict government power." He neglects to note that the Constitution was designed to restrict federal power, leaving most matters to the states. If states decide that discouraging sodomy is good public policy based on public health and moral concerns, then it is no business of the federal government to usurp that power.
Rios’ view of the Constitution may have been valid in the antebellum era, but classic federalism was effectively abolished with the ratification of the Fourteenth Amendment in 1868. That amendment expanded the principles of limited, constitutional government to the states. Since that time, the mantra of “state’s rights” is invoked mostly by those seeking an excuse to subvert individual rights. Segregation, anti-abortion laws, and voting rights restrictions are just some of the more infamous abuses of state authority.
Furthermore, Rios’ constitutionalism completely ignores the Ninth Amendment’s protection of “unenumerated” rights. The Founders never intended the people to fight every question of individual rights out through amending the Constitution itself. It was presumed that reason would govern society’s definition of individual rights. Instead, rightists like Rios seek to narrow the government’s protection of rights to those practices which only she personally sanctions. In contrast, I doubt the Log Cabin Republicans would use the law to ban heterosexual sodomy if given the opportunity, despite their presumed aversion to the practice.
Nor does invoking the cry of “judicial tyranny” save Rios’ argument. It is not tyrannical for a court to enforce the Constitution over the unreasonable acts of a state legislature. Texas has no right to ban private, consensual sexual acts, and such a ban is factually unconstitutional regardless of a minority’s “moral concerns.” While it would be nice if the Texas legislature repealed the sodomy statute on its own accord, their failure to do so necessitates the intervention of the courts, which were designed to serve as the last line of defense against the tyranny of the government’s elected branches.
::: posted by Skip Oliva
at 2:38 PM | link
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Overcoming adversity is one of our great desires and one of our great sources of pride. But it is something that our anointed deep thinkers strive to eliminate from our lives, through everything from grade inflation to the welfare state.
The anointed want to eliminate stress, challenge, striving, and competition. They want the necessities of life to be supplied as "rights" -- which is to say, at the taxpayers expense, without anyone's being forced to work for those necessities, except of course the taxpayers.
Nothing is to be earned. "Self-esteem" is to be dispensed to the children as largess from the teacher. Adults are to have their medical care and other necessities dispensed as largess from the government. People are to be mixed and matched by race and sex and whatever else the anointed want to take into account, in order to present whatever kind of picture the anointed think should be presented.
This is a vision of human beings as livestock to be fed by the government and herded and tended by the anointed. All the things that make us human beings are to be removed from our lives and we are to live as denatured creatures controlled and directed by our betters.
Those things that help human beings be independent and self-reliant -- whether automobiles, guns, the free market, or vouchers -- provoke instant hostility from the anointed.
* * *
The welfare state is not really about the welfare of the masses. It is about the egos of the elites.
One of the most dangerous things about the welfare state is that it breaks the connection between what people have produced and what they consume, at least in many people's minds. For the society as a whole, that connection remains as fixed as ever, but the welfare state makes it possible for individuals to think of money or goods as just arbitrary dispensations.
This is the philosophy which most federal bureaucracies—such as the Federal Trade Commission—operate under. The FTC believes consumers possess unlimited rights to demand from producers, while producers enjoy not even basic property or liberty rights. In almost every FTC case, the producer is found to "injure" consumers by taking actions to raise prices or reduce output. The fact that the producer is engaging in wholly voluntary trade is irrelevant to the FTC. If a consumer is inconvenienced or unhappy, the FTC immediately accuses the producer of committing a crime, regardless of the facts (or the law.)
::: posted by Skip Oliva
at 2:21 PM | link
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A draft everyone can support
The NFL Draft is taking place today in New York. Approximately 220 recent college football players will be assigned to the NFL’s 32 franchises over the next two days. Many will become instant millionaires, while others will find themselves working to earn a roster spot come training camp. Hundreds of undrafted players, meanwhile, will either give up their NFL dream or seek to get signed as a free agent with a club.
I’ve often heard criticism that the draft is “socialist” because a selected player is prevented from negotiating with any team other than the one which selected him. Superficially, this is an appealing argument, but it ultimately misses the point. Far from being socialist, the NFL Draft showcases the capitalist system at its finest.
First, the draft rewards superior achievement and ability. Higher picks get more money, simple as that. In a socialist system, pay is never based on merit, but rather on an arbitrary factor tied to some egalitarian principle. Take a public school teacher’s union, for example. Teacher unions expect to be compensated solely on the basis of seniority—a largely irrelevant characteristic—and merit is almost never permitted to affect actual compensation. Despite the fact a new teacher can choose which school district to work for, her actual salary will depend on factors outside her control, whereas an NFL player can refuse to sign a contract with the team that drafts him if he does not approve of the compensation terms. Rookie “holdouts” are in fact common in the NFL. A teacher which tried such a tactic would fail, since the union’s interests in paying everyone the same overrules the individual’s needs or abilities.
Second, the draft helps the NFL remain profitable by containing overall labor costs. All player contracts, including that of drafted rookies, must fit with the NFL’s salary cap. The cap is another practice sometimes labeled “socialist.” Again, this is incorrect. The salary cap is nothing more than a budget for player costs. The cap is tied to general league revenues to ensure labor costs don’t outpace teams’ ability to pay. The draft helps this process by preventing teams from overbidding for talented, yet unproven rookies. If every rookie was subject to an open auction, a number of franchises would wreck their cap by “hoarding” college talent at a cost far above actual value. This would be bad for players as well as franchises, since the hoarding teams would likely cut more overpriced rookies after a year or so in order to restore room under the salary cap. The result would be far less labor stability, which in turn drives down salaries while raising overall costs. The draft, thus, prevents labor anarchy while still preserving a merit-based system for allocating rookie players.
(Indeed, the advent of free agency for veteran players proves this hypothesis, as franchises which hoard free agents tend to do so at above-market rates, resulting in a breakdown of the salary cap after a year or two. The Washington Redskins are an ideal example of this practice.)
Finally, the draft itself is a wonderful spectacle. It’s hard not to enjoy the pride on the faces of newly drafted rookies as NFL Commissioner Paul Tagliabue announces their names and the team which selected them. The whole event has the look and feel of a college graduation ceremony, which in many ways the draft is. And unlike most liberal arts graduates, these players know they will have an opportunity (if not a guarantee) of post-college employment where they’ll be rewarded for their achievement.
::: posted by Skip Oliva
at 2:10 PM | link
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Campaign finance hijinks
Despite the fact lawyers enjoy a monopoly on the practice of law, some of them apparently don’t know basic campaign finance laws:
A lawyer for Tab Turner, the head of a Little Rock law firm under investigation by the U.S. Department of Justice, suggested Thursday that his client had not been aware of an election law that prevents him from reimbursing employees who contribute to U.S. Sen. John Edwards' presidential campaign.
"Mr. Turner learned about the campaign rules due to the media's calls to his office," said Ed Dowd of St. Louis. "Since then, he has been doing all he can to set this matter straight, and he will cooperate with the Federal Election Commission or other officials."
Turner and four legal assistants from his firm collectively gave $10,000 to Edwards' campaign during the first quarter of the year. One employee who gave $2,000 reportedly told The Washington Post last week that Turner said they would be reimbursed.
The Edwards campaign returned the money as a "precautionary" step.
I’m no aficionado of campaign finance laws, but even I knew you can’t “reimburse” an employee for a political contribution. John Edwards, himself a successful trial lawyer, probably knew this too. Mr. Turner had to know that as well. After all, why offer to reimburse your employees instead of just giving Edwards $10,000 outright? Obviously Turner knew there was a limit on individual contributions.
::: posted by Skip Oliva
at 12:01 AM | link
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Friday, April 25, 2003 :::
Games cartels play
OPEC is nervous about the impending return of Iraqi oil to the world marketplace. On Thursday, OPEC leaders (i.e. government oil ministers) decided to cut production by 2 million barrels per day. This move comes as oil prices have fallen to around $25 a barrel, down from a high of about $40 just two months ago. Not everyone thinks OPEC’s move will accomplish much:
"It's not enough to stop a supply glut," said Michael Rose, director of trading for Angus Jackson Inc. He said prices may fall well below OPEC's $25 target, depending on how fast Iraqi exports return.
Given the profits oil producers have raked in this year as the result of high prices, many analysts question whether the cartel will be disciplined enough to stick to its self-imposed limits.
"OPEC often says one thing and does another," Mr. Rose said. "I think they will have a hard time getting all members to actually cut. They have a history of cheating."
Cartels are notoriously unreliable, especially when they consist of government-run oil companies. This is a good lesson for antitrust enforcers: Cartel arrangements may cause consumers a temporary inconvenience via price increases, but ultimately selfish market incentives will lead the cartel to undermine itself.
::: posted by Skip Oliva
at 11:43 PM | link
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The "Unborn Victims of Violence Act"
The anti-abortionists are at it again, and this time they are using public outrage over the murder of Laci Peterson in an attempt to federalize the killing of an unborn fetus. According to the AP, today the White House urged Congress to pass the "Unborn Victims of Violence Act," which would amend the federal criminal code to create a separate offense if a defendant causes the death of, or bodily injury to an "unborn child" during the commission of a federal crime. The punishment for the separate offense would be the same as if the defendant had caused the death of, or injury to, the woman herself.
This is an dangerous proposal. Never mind that the Bush administration sees the need to federalize crimes that the states are more than capable of addressing. According to the Center for Reproductive Rights
By treating the "unborn child" as a separate and distinct victim of crime, the legislation would, for the first time, consider a fetus--and even a fertilized egg--an independent victim for purposes of federal law.
If a fetus, or a so-called "unborn child, at an earlier state of pregnancy, were later deemed entitled to the same legal protections as the woman, it would be impossible for a woman to obtain an abortion without violating the fetus's rights.
If a fetus, embryo, or other so-called "unborn child" is recognized as a "person" under the law, not only would the reproductive rights of women be eviscerated but a fetus--or even a zygote--could seek federal benefits, bring lawsuits, and otherwise claim civil rights.
I think that most murder and manslaughter laws are tough enough to punish those who murder a pregnant woman. And I think the penalty for assault is tough enough to accommodate those who cause the unwanted termination of the unborn fetus by attacking a pregnant woman. Creating special rights for fetuses separate and apart from the rights of the mother would be bad philosophy and bad law. Fetuses have no rights--rights belong only the women carrying them.
::: posted by Nicholas Provenzo
at 7:25 PM | link
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Maybe the Fed can lower ticket prices...
Edward Gramlich, a governor of the Federal Reserve, thinks Major League Baseball’s antitrust exemption should be repealed. At a Brookings Institution discussion of baseball’s business model this morning, Gramlich repeated the stock argument that repealing the exemption would not harm baseball, since, after all, antitrust laws don’t seem to harm the NFL, NBA, or NHL.
Gramlich apparently was unaware that all four professional leagues enjoy a separate antitrust exemption to jointly negotiate television rights contracts. In the absence of that exemption, the financial model for major professional sports could collapse, since television rights contracts enable low-revenue teams to remain viable.
Baseball’s peculiar exemption derives from a 1922 Supreme Court ruling holding the antitrust laws were never intended to apply to baseball. This was a sensible ruling, and one modern antitrust investigators should take to heart before expanding the antitrust laws to apply to the smallest, most economically insufficient market. The current exemption, enacted by Congress a few years ago, basically allows MLB to conduct its business free of antitrust second-guessing. True, baseball may be no more deserving of such an exemption than any other industry. But that’s precisely the point: Every industry should be exempt from the antitrust laws.
It’s not like baseball’s profiting unjustly from its antitrust exemption. MLB is doing far worse economically than the NFL and NBA, and Gramlich is correct in asserting that repealing the exemption would do little to improve or harm baseball’s financial picture.
I would add, however, that it’s humorous for a Fed governor to be complaining about monopoly. Not only does Gramlich manage a government banking monopoly, but the Fed Board of Governors itself is little more than a rubber stamp for Alan Greenspan’s presumed aura of infallibility.
::: posted by Skip Oliva
at 5:43 PM | link
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CAC pioneers new web technology
Well, not exactly, but we now have public feedback running for the Rule of Reason. Now our visitors can leave their comments for all to see.
How cool is that? Totally Cool!
::: posted by Nicholas Provenzo
at 4:31 PM | link
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Dixie Chicks Redux
Imagine my non-surprise when I saw the not all that impressive, and strictly rated-G nudity of the Dixie Chicks on the cover of Entertainment Weekly, in an apparent attempt to highlight their plight after the backlash against vocalist Natalie Maines' comments criticizing President Bush at a concert in Great Britain.
The Chicks have now reduced themselves to the level of streakers--those people who use to pull stunts like running across a baseball field 'nekked' in the middle of the seventh-inning stretch. There you are at an event where people are happy and enjoying themselves, and some clown tries to ruin it all by bearing his fat ass in front of everyone.
Why, oh why must we suffer these women?
::: posted by Nicholas Provenzo
at 11:53 AM | link
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Misogynists and homophobes first...
Robert Knight, director of the Culture & Family Institute, thinks we need to turn the moral clock back to 1912:
This week marks the 91st anniversary of the sinking of the Titanic. In the wee hours of April 15, 1912, the great ship slipped into the deep waters of the North Atlantic, sending 1,503 passengers and crewmen to a watery grave.
The vast majority of the dead were men, many of whom stood bravely as they watched lifeboats full of women and children row away from the doomed ship.
During a U.S. Senate inquiry, First Officer Charles H. Lightoller was asked, “You discriminated entirely in the interest of the passengers – first women and children – in filling those lifeboats?” Lightoller replied: “Yes, sir,” to which the senator pressed, “Why did you do that? Because of the captain’s orders, or because of the rule of the sea?”
Lightoller answered simply, “The rule of human nature.”
Another witness, Canadian Army Major Arthur Godfrey Peuchen, described the action at one of the lifeboats: “Only women were allowed in, and the second officer stood there and carried it out to the limit. He allowed no men, except sailors who were manning the boat. I did not see one single male passenger get in or attempt to get in. I never saw such perfect order. The discipline was perfect. I did not see a cowardly act by any man.”
Watching America send some of its daughters to their deaths or capture in Iraq makes one aware of how far we have drifted from the ideal epitomized by the brave men of the Titanic: Women and children first.
More women are facing actual combat because the Pentagon weakened the “risk rule,” which barred the placement of women in areas likely to come under fire. Ever adaptive, the Navy introduced a program a few years ago in which men were conditioned to endure the tortured cries of women captives. Do we really want thousands of men to be indifferent to women’s screams? That’s a recipe for domestic violence and rape.
Not all men have abandoned their role to protect. As Pfc. Jessica Lynch lay wounded, a team of men who would have been right at home on Titanic’s deck boarded choppers. They gambled their lives because an Iraqi man reported that an American woman was being tortured at an Iraqi hospital. Later, our troops freed Army Spc. Shoshana Johnson and other P.O.W.s The mother of a 2-year-old, whose haunted photo reminded us of the cost of putting a woman in the hands of enemy male soldiers, Miss Johnson was rescued and is winging home with a bullet hole in each ankle.
Sending women anywhere near combat is wrong. It is bad enough for children to lose their father, but it is utterly unnecessary for them to lose their mother.
Unlike the sanity and honor that prevailed in 1912, we are not supposed to care that wives, daughters and sisters are killed, maimed or at the mercy of enemy troops.
Women have served honorably in the U.S. military through many wars. Their sacrifices and hard work have contributed mightily. But it is barbarism, not progress, to put women deliberately in harm’s way.
What would the men of the Titanic have thought, watching women kiss their toddlers goodbye, slap on a helmet and ship off to the front? They would say we have not only lost our minds but a good deal of our hearts.
I won’t spend a great deal of time picking apart Knight’s sexist, anti-individualist philosophy, but here’s one obvious flaw in his argument: What about women who are unmarried and without children? Is it moral to send them into a combat zone, or must they too be shackled by Knight’s arbitrary morals? Knight’s argument comes very close to saying women belong barefoot and pregnant, and no other condition is socially acceptable.
::: posted by Skip Oliva
at 11:09 AM | link
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More on Santorum
This from Jonah Goldberg at TownHall.com: "I think sodomy laws may well be constitutional. Since I'm not a big believer in a "living Constitution," the fact that they've been constitutional for decades makes me think they're still constitutional."
Jim Crow laws were along for a long time, and now most people understand that it was proper to renounce those laws as unconstitutional. Yet in defending the constitutionality of the sodomy laws (he later writes that he opposes these laws, but not on constitutional grounds), Goldberg falls into the typical conservative trap--he doesn't argue from fact, he argues from tradition. Intellectually, tradition has no bearing on an issue--either a thing is true and proper by the facts, or it is not.
A fallacious argument, even if held for a long time, is still a fallacious argument.
::: posted by Nicholas Provenzo
at 12:45 AM | link
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Thursday, April 24, 2003 :::
Holding Taxol hostage
You often hear about the costs of developing pharmaceuticals to meet arbitrary FDA regulatory standards. But there’s also lesser known regulatory cost of paying antitrust ransom to manipulative state attorneys general:
[Ohio] Attorney General Jim Petro announced Thursday that Ohio and all other states have resolved an antitrust lawsuit with Bristol Myers-Squibb Co. involving the cancer-fighting drug Taxol.
Ohio, which led negotiations for the plaintiff states, will recover more than $1.5 million for state agencies and hospitals as part of a $55 million settlement to help compensate the state and consumers who overpaid for the drug, Petro said.
"This is a significant victory for Ohio because Bristol Myers-Squibb Co. has agreed to much more than just financial reparations," Petro said. "The company will also provide free quantities of Taxol to DEA-approved health care facilities, provided the recipients meet eligibility guidelines, and will abide by a strong agreement prohibiting anti-competitive conduct in the future."
While the ultimate allocation among the litigating states has not yet been determined and must be approved by the court, more than $37.5 million will be set aside to be divided for this purpose. An additional $12.5 million will be set aside to reimburse consumers for some of their out-of-pocket payments.
How does providing free Taxol remedy an antitrust violation? Shouldn’t compensating the customers who, ahem, “overpaid” for Taxol be sufficient? This settlement seems to send a bad message: If states don’t want to pay market price for drugs, they can simply bring an antitrust suit and force the company to provide the drug for free as part of a “settlement.”
::: posted by Skip Oliva
at 9:41 PM | link
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Monopoly v. Monopoly
Antitrust officials often resort to shameful tactics, but arguing that a lawful company is intentionally “harming” children by acquiring another company is a new low, even for the Justice Department. Yet that’s just what top DOJ antitrust enforcer Hewitt Pate did today in announcing his decision to try and undo an already consummated merger between two dairy companies.
Last year, the Dairy Farmers of America acquired Southern Belle Dairy. Because the acquisition didn’t meet the minimum value required by statute, the merger was not subject to advance review by the Justice Department for antitrust concerns. Congress enacted the threshold (and later raised it) to ensure the DOJ spent their time reviewing only large mergers. Since taking power, however, the Bush administration antitrust leaders decided to ignore Congress’s mandate, and instead target smaller mergers in order to make examples out of certain companies. This seems to be what led the DOJ to the DFA-Southern Belle merger.
The major harm, according to Pate, is that DFA’s acquisition leaves only one milk supplier to about 50 government school districts in Kentucky and Tennessee:
Prior to the acquisition, the competitive rivalry between these two dairies produced lower prices and higher quality service, to the benefit of schools and school children. By acquiring Southern Belle, DFA has eliminated or reduced that competition for many school districts in Kentucky and Tennessee. The [Antitrust] Division seeks to restore this competition.
Pate says DFA’s acquisition “threatens increased prices and poorer services” for these school districts. He cites no evidence in support of this theory, and we’re unlikely to see any such evidence in the future. Even if true, higher prices do not constitute a legal injury to anyone, unless a contractual arrangement is violated, which is not the case here. The DOJ is simply trying to protect school districts from the inconvenience of potentially higher prices, which is not the same thing.
There is, of course, a sick irony in this case. The DOJ claims that DFA’s “milk monopoly” will harm school children, yet nobody at the Antitrust Division thought to point out that the government’s monopoly over local schools is a problem. Nor does the DOJ see the school districts’ status as monopoly buyers to be of any particular concern. Competition, it seems, is only valuable when it comes to milk.
::: posted by Skip Oliva
at 9:33 PM | link
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The Greenspan aura lives on
President Bush will likely nominate Alan Greenspan for a fourth term as chairman of the Federal Reserve, and Greenspan will accept said renomination. This may please defenders of the status quo, but the president’s passive action here will do nothing to help the economy, either in the short term or in the long run.
The theory for renominating Greenspan is stability: Since the economy remains jittery following the Iraqi war, it’s best not to disturb the steady hand at the Fed. This is just plain nonsense. No one man is invaluable to the nation, certainly not Greenspan. We constitutionally limit presidents to two terms without problem, so it’s hard to argue that the Fed chairman must remain in office close to 16 years.
But that’s not the reason to dump Greenspan. The reason is that the chairman’s continued presence forecloses any debate over the function of the Federal Reserve itself. Few institutions have contributed more to the decline of capitalism in America than the Fed. Central banking itself is an inherently wealth-destroying mechanism, as any nation that’s ever dealt with the World Bank and IMF can attest to.
Now, obviously, simply replacing Greenspan is no guarantee of radical reform. Given President Bush’s preference for pragmatism, Greenspan’s successor might prove to be a bigger obstacle. But that said, there is no possibility of meaningful discussion over the Fed’s future while Greenspan remains in power. Washington officials have simply become too deferential to the mythical “aura of Greenspan” to seriously challenge him. It’s nothing personal, really, just the predictable effect of giving one individual too much unchecked power for too long.
Contrary to urban legend, the economy runs itself with or without the Fed’s intervention. The nation experienced plenty of economic booms (and busts) long before Greenspan came along, and it will continue to do so long after he finally is turned out of power. Best to learn that lesson now, before the Greenspan aura swallows what’s left of the current economic recovery.
::: posted by Skip Oliva
at 3:51 PM | link
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Press coverage on the Nike free speech case
This observation from Richard Salsman: Note how the Washington Post put 'free speech' in quotes in the headline of today's coverage of the Nike commercial free speech case.
Considering that the Washington Post Company joined 39 other media companies in support of Nike in an amicus curiae brief filed with the Supreme Court, one wonders why the Post's headline writer saw fit to put the right to economically self-interested speech in scare quotes, but the Post's lawyers did not.
UPDATE: I fired off this letter to the Post in responce:
To the Editors:
In the Washington Post Staff Writer Charles Lane’s Thursday report (“Supreme Court Considers Nike's 'Free Speech' “ Page E02), I was struck by how the Washington Post put 'free speech' in quotation in the headline of its coverage of the Nike commercial free speech case.
Apparently, the Post’s news editors consider corporate free speech to be dubious enough a topic to rate such quotation. Yet considering that the Washington Post Company joined 39 other media companies in support of Nike’s rights in an amicus curiae brief filed with the Supreme Court, one has to savor the irony that the Post saw fit to put freedom for economically self-interested speech in scare quotes in its news coverage, but not in the Supreme Court brief it supported.
Perhaps the right to economically motivated speech is more misunderstood than even a company that makes its living selling news understands.
Yours Respectfully,
Nicholas Provenzo
::: posted by Nicholas Provenzo
at 1:26 PM | link
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I think if there was one day that forever changed my view of America, it would have to be April 22nd, 2000.
::: posted by Nicholas Provenzo
at 10:02 PM | link
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The gay divide
Eugene Volokh thinks Rick Santorum's bigotry isn't that big a deal. Arthur Silber thinks it's a very big deal. I'm inclined to go with Arthur on this one.
::: posted by Skip Oliva
at 11:10 AM | link
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Tuesday, April 22, 2003 :::
Total Bureaucratic Awareness
The Federal Trade Commission has some sort of vendetta against private trade associations. Last year, they went after the National Academy of Arbitrators and the American Institute of Conservators of Historic and Artistic Works. In the past month, they’ve added the Indiana Household Movers and Warehousemen and the Institute of Store Planners to their target list. Collectively, these groups have about as much economic power as a Starbucks franchise, yet the FTC views their actions as akin to the political machinations of Tammany Hall.
Think I’m exaggerating? Here’s the FTC annual report on these trade association cases:
The FTC pursued significant investigations involving the rules of conduct for various professional associations. Agreements among professionals that limit competition among themselves, often under the guise of professional association by-laws or codes of conduct, harms consumers much like 'smoke-filled room' conspiracies.
What we’re talking about here are professional ethics codes, documents which are well publicized. In the case of the National Academy of Arbitrators, the ethics code challenged by the FTC was in force for more than 30 years. That’s hardly the product of a “smoke-filled room,” which by inference refers to a conspiracy to keep information from the public. Quite the contrary, ethics codes are designed to alert the public as to common rules adopted by a given profession. Only dangerously unqualified FTC staff lawyers could find a conspiracy in this.
And if you think the FTC staff is intelligent, consider this line from their report vowing to persecute more trade associations in the future:
The FTC is pursuing other potentially harmful restrictions imposed by professional associations, or boards, using means including sophisticated 'spider' software to search the Internet for restrictions of this kind.
Yes, kids, the FTC just said they’re using Google to seek out new antitrust cases. If this doesn’t convince you antitrust is nothing more than a government witch-hunt, nothing will.
::: posted by Skip Oliva
at 4:08 PM | link
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Today is Earth Day. . .
. . .and I don't care.
::: posted by Nicholas Provenzo
at 1:33 PM | link
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Sanctioning Santorum
Leave it to the conservatives to equate the state respecting the rights of consenting adult homosexuals to have sex to the state allowing incestuous sex with minor children.
In an AP interview published Monday, Senator Rick Santorum, R-Pa., was quoted as saying, "If the Supreme Court says that you have the right to consensual (gay) sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery. You have the right to anything."
According to the AP, Santorum spokeswoman Erica Clayton Wright said the lawmaker's comments were "were specific to the Supreme Court case," that case being Lawrence v. Texas.
Ms. Clayton Wright’s explanation doesn’t help Santorum. The Texas case that she claims his comments were focused on is a case where a state government asserts that it may criminalize activity between consenting adults in the privacy of their home for the sole reason that it believes that activity immoral.
But what is the basis of such a moral claim? Like most religious conservatives, Santorum equates the consistent protection of individual rights with pell-mell anarchy. If the state breaks from the Holy Bible’s prohibition on homosexual conduct and respects homosexual rights, it only follows that men will seek to have several wives, married couples will wantonly cheat on each other, and sex with one's own children will be an everyday occurrence. Throw in a couple lines about the End Times and one can easily see how disconcerting a pro-homosexual outcome on the Texas case would be for religious conservatives.
Yet America is not a nation governed by the Holy Bible. Each citizen is free to live by the moral code of his own choosing, but when it comes to affairs of the state, only the acceptable guide is reason. The religious faith of some citizens, however passionately held, is not a substitute for a rational legal code.
Yet the Texas law is a prime example of irrational law. It does not protect anyone from the initiation of violence or fraud, but instead seeks to impose an antiquated and mystical moral view on a portion of the population despised by people of a certain faith.
A homosexual has every right to use his or her sexual capacity as he sees fit without interference from the state. Homosexuals don’t have a right to “anything,” but they do have a right to their lives, which Santorum does not seem to respect.
Some have called for Santorum’s removal from the leadership of the Senate due to his bias against homosexuals. I call for it due to his bias against individual rights, and his unwillingness to defend simple truths or protect the innocent victims of government abuse.
::: posted by Nicholas Provenzo
at 1:23 PM | link
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The indoctrination begins early
Don Luskin points us to this article by Neal Bortz on how an Easter Egg Hunt was turned into a lesson in wealth re-distribution.
::: posted by Nicholas Provenzo
at 10:33 AM | link
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Drafting reality
There’s an interesting debate in NBA circles over who should be the top pick in June’s draft, Carmelo Anthony or LeBron James. Anthony, a freshman at Syracuse University, recently led his team (almost single-handedly) to a NCAA title. James led his private high school team to an Ohio state championship despite being technically ineligible under state amateurism rules. For almost two years, James has been hyped by various media pundits as the next basketball Messiah, a successor to Michael Jordan and Kobe Bryant if you will. Anthony’s NCAA title run, however, may complicate things.
Here’s what gets me. A number of pundits, many of them seasoned NBA beat writers, argue that the team with the #1 pick should select James even if they believe Anthony is the better player. The argument goes like this: James has more hype, so he’s more likely to sell tickets during his rookie season. This conveniently ignores the fact that few NBA players who came directly from high school ever amount to much before their third season in the league. For all the hype, there’s nothing which indicates James is any more likely to have an immediate impact than other now-greats like Bryant or Kevin Garnett, both of whom required several seasons to achieve their potential. Anthony may only have one year of college experience, but that experience showed he could lead a team against top competition. Most knowledgeable NBA scouts (who seem to have less influence than the pundits) would take Anthony over James.
Even the business argument doesn’t make much sense. James may sell out arenas early on as a curiosity, but if he’s warming the bench for a non-playoff team, a likely assumption, his effect on attendance will be temporary. Even Michael Jordan didn’t become Michael Jordan overnight. Heck, Jordan wasn’t even the top pick in his draft year.
Frankly, if I was an NBA owner, and the general manager told me “Anthony is the better player, but we have to take James or the media will rip us,” I would fire that GM on the spot. Anytime you make a decision based on something other than objective facts, you betray your obligation to act in the best interests of your business. When it comes to the NBA draft, that means you take the best player available, period. If that player doesn’t fit your immediate needs, you trade him or trade the pick. You don’t take a player based simply on hype or media acceptability. If businessmen in other fields behaved that way, they’d find themselves hauled before a federal regulatory agency of some kind.
::: posted by Skip Oliva
at 12:23 AM | link
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Proclaiming ignorance
Arizona Governor Janet Napolitano doesn't think much of home-schoolers. The governor recently refused to sign a ceremonial proclamation declaring "Home Education Week" in Arizona:
Kevin and Frances Scroggins home-schooled their youngest child, 8-year-old Michael, for two years. They sent him back to a public school this year.
And they have decided to home-school him again next year.
The governor does not agree with that decision. She has criticized programs like vouchers and home-schooling. "While I support choice, I believe choice must be accomplished within the public school system," she said last year in a candidate questionnaire.
Napolitano this year refused to sign a proclamation declaring "Home Education Week." Staff members were concerned that signing the proclamation's timing was "inappropriate," that it might offend other education "stakeholders."
Those stakeholders apparently do not include Michael Scroggins.
The proclamation was not an ideological manifesto. It was perfunctory, just recognizing the excellent job some parents have done with their children, a fact beyond dispute.
"Whereas, the State of Arizona is committed to excellence . . . and recognizes the importance of family participation and parental choice in pursuit of that excellence . . . and individualized preparation for citizenship and life work is provided by home education . . . Now, Therefore, I, Janet Napolitano, do hereby proclaim the week of February 3rd as Home Education Week in Arizona."
It's amazing a politician in this country can say, in effect, "I support choice, but only choices determined by the government," and still hold office. Yet when it comes to education, such a quasi-fascist position is not just acceptable, but mainstream, especially in the Democratic party.
For their part, home educators shouldn't take the governor's snub too seriously. In this case, they should consider it an affirmation that they are putting their children before altruist political concerns.
::: posted by Skip Oliva
at 12:04 AM | link
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In the last nine months, the New York Times has run 95 stories on Martha Burk and Augusta. So, aside from being outnumbered by police and reporters, Burk's 40 supporters were outnumbered more than two to one by New York Times stories on Burk. Every time the Times mentioned this allegedly raging furor, it attracted approximately another 0.4 of a supporter to her cause. . . .
The Times' carpet bombing of Augusta has proved a pathetic bunker-bust. This is supposed to be the most influential newspaper in America, the one whose front page all but dictates the agenda of the network news shows. And its most fiercely sustained campaign can't fill a single school bus?
Hehehe. Maybe we could turn this into a new show on Fox: "When Leftist Causes Implode."
UPDATE: Alright, I'm having more fun with this than I should. But can you just imagine that guy with the obvious cop hair helmet going, "Martha Burk and her friends at the New York Times thought they had national attention for Martha's little intimidation game, but at Augusta, they play golf, not social engineer."
::: posted by Nicholas Provenzo
at 4:18 PM | link
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Nike v. Kasky
Law.com has an article on the Nike free speech case going into oral argument before the Supreme Court on Wednesday. (CAC supporters will recall the Center filed an amicus curie brief to the Court on both the Certiorari petition and the merits stage of this case.) Although Skip Oliva has attended many oral arguments before the Supreme Court, I've never attended one, so I plan on making the pilgrimage with him this Wednesday to hear the argument.
What I'll be looking for is indications that the Court is examining this case in fundamental terms. Justice Thomas threw a bone to the defenders of businessmen's right to free speech when he wrote in his concurring opinion in 44 Liquormart v. Rhode Island. Justice Thomas wrote that he "do[es] not see a philosophical or historical basis for asserting that ‘commercial’ speech is of ‘lower value’ than ‘noncommercial’ speech.” CAC formed its amicus brief to the court on the Nike case precisely along the lines outlined by Justice Thomas.
What also will be interesting is if our challenge to Justice Scalia has an impact with the other Justices on the Court. In 44 Liquormart, Justice Scalia wrote that he wanted historical reports on the practices of the state legislatures in interpreting their own free speech guarantees before he would be willing to abandon the commercial speech doctrine. Typical Justice Scalia reasoning--he's a Supreme Court Justice who hates to think in any principle beyond what others think. In our brief, we directly attacked Scalia's view, arguing that the Ninth Amendment alone provides sufficient justification for the Court to protect the rights of businessmen to self-interest speech.
CAC argued the following:
The yearning for historical context misses the point. It should not be necessary for Nike to prove the existence of its First Amendment rights by identifying specific historical statements in support of “commercial” speech. Indeed, where would one find such “dispositive” evidence? Presumably, not every state legislature—at any given time—holds identical views regarding commercial speech, the Fourteenth Amendment, or any other identifiable topic. It has never been necessary in other First Amendment contexts for a challenged party to demonstrate positively that their expressive acts represent a “long accepted practice.” Under such a requirement, this Court would never have recognized First Amendment protections for flag burning, the distribution of adult magazines, or student expression on school grounds.
In short, a lack of historical evidence must not foreclose protection for “commercial” speech. But if evidence were needed, the Ninth Amendment provides it. The amendment provides “The enumeration, in this Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Historically, the Court has been reluctant to read much into this amendment, choosing to uphold non-enumerated rights under the Fifth and Fourteenth Amendments instead. Then, in June of 1965, the Court handed down its radical decision in Griswold v. Connecticut, wherein the Court upheld the unenumerated right of a married couple to use contraception, availing itself of the Ninth Amendment in rendering its holding. In a concurring opinion, Justice Goldberg, joined by Justice Brennan and Chief Justice Warren, wrote:
Nor am I turning somersaults with history in arguing that the Ninth Amendment is relevant in a case dealing with a State’s infringement of a fundamental right. While the Ninth Amendment—and indeed the entire Bill of Rights—originally concerned restrictions upon federal power, the subsequently enacted Fourteenth Amendment prohibits the States as well from abridging fundamental personal liberties. And, the Ninth Amendment, in indicating that not all such liberties are specifically mentioned in the first eight amendments, is surely relevant in showing the existence of other fundamental personal rights, now protected from state, as well as federal, infringement. In sum, the Ninth Amendment simply lends strong support to the view that the “liberty” protected by the Fifth and Fourteenth Amendments from infringement by the Federal Government or the States is not restricted to rights specifically mentioned in the first eight amendments. Cf. United Public Workers v. Mitchell, 330 U.S. 75. 94 – 95.
In the case now before the Court, the Ninth Amendment provides the key to understanding the scope and reach of the First Amendment.
That's right. It’s the Court's job to check the government's role in protecting individual rights and the Ninth Amendment gives them the power to do it. If the Ninth Amendment’s importance is acknowledged by the Court, CAC will have won a major victory.
::: posted by Nicholas Provenzo
at 3:55 PM | link
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Is a Fisking of Frist in the air?
With several members on Congress none too happy with Bill Frist's handling of the Bush tax cut in the Senate, it might be says Robert Novak.
::: posted by Nicholas Provenzo
at 11:59 AM | link
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Is there a secessionist tide swelling in San Francisco?
Andrew Sullivan notes G. Pascal Zachary's slightly less than tongue-in-cheek whine that their ought to be independent San Francisco in an article in yesterday's San Francisco Chronicle. Zachary notes that German computer programers who oppose the Bush administration's stance in Iraq feel plenty at home in San Francisco.
"[Yet,] the views of these Germans -- and my own views of official American power -- are heretical in America, highlighting the wide gulf between the iconoclastic Bay Area and the rest of the United States. This gulf, always present, seems more intensely felt now. There are no American flags waving on my street, or any of the streets I pass each morning when I bring my children to school.
Zachary goes on with the usual Leftist whine: no one outside of the Bay area appreciated the vomit-ins, everyone else in America is a money-grubbing capitalist, only the Europeans understand us, bla, bla, bla, bore, bore, bore. . .
But let's take Zachary seriously for a moment. The thing about a San Francisco secession movement is that there are nice parts to San Francisco that the decent people who built them shouldn't have to give up. I say the lefties should get smart and ship themselves to Europe. Why should poor Mr. Zachary have to suffer being a disaffected San Franciscan when he could easily be a disaffected Frenchman? I can't think of any reason.
I used to joke with friends about the "Go directly to North Korea" fund, a project where the deserving would be offered a one-way ticket to their dream state of a nation. But since North Korea is such a hard sell, even to budding Stalinists, why not just ship them off to France and Germany? We just want them gone, right?
Hey, it could work, ;-)
::: posted by Nicholas Provenzo
at 11:38 AM | link
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Media ethics vs. media critic ethics
Phil Mushnick, the New York Post’s sports media critic, must be gunning for a position on the Federal Trade Commission. He’s certainly mastered the art of taking a fairly trivial event and interpreting it in a wholly irrational light:
WHAT used to be known within TV networks as "standards and practices" forms, must've been turned face-down, stacked in a corner and now serve as scratch paper.
Dick Vitale, ABC and ESPN's lead college basketball analyst, recently revealed that he, along with Louisville head coach Rick Pitino, is the co-owner of a two-year-old thoroughbred, named Awesome Baby.
Of course, this creates both a per se and an outrageous conflict of interest, one that ABC and ESPN surely can't dismiss unless they choose to ignore - or trash - the most basic tenet of broadcasting ethics: You don't do business with those you cover.
But this is 2003, when the indefensible is, at best, ignored, and, at worst, given full approval.
The conflict of interest is not as self-evident—and certainly not as outrageous—as Mushnick proclaims. Pitino and Vitale make their living in college basketball, not horse racing. Vitale is also not a news reporter, but an analyst. In a given season, Vitale can be expected to cover only a handful of games coached by Pitino, whose Louisville Cardinals are hardly mainstays of national television. If there was a conflict, it could be solved by recusing Vitale from covering Louisville games. But there’s not even that much of a conflict. Since, as I just said, Vitale is an analyst, not a reporter.
Consider this: Most colleges hire their own broadcasters for basketball games. These broadcast teams, usually a play-by-play man and an analyst, are expected to provide objective (if somewhat partisan) coverage of games. Applying Mushnick’s logic literally, all of these college-paid broadcasters must resign as a matter of ethics, since their very employment constitutes a conflict of interest. Of course this is ridiculous. In this context, the conflict is irrelevant, since the viewing public is aware of the broadcasters’ employment status. Similarly, the publicity given the Vitale-Pitino endeavor mutes whatever minor conflict exists. It’s just not that important.
Mushnick’s explosive rhetoric further undermines his cause. To say Vitale’s action is a “per se” unethical act is irrational. In legal parlance, “per se” means guilty regardless of fact or context. It’s a favored tool of administrative agencies, like the FTC, which prefer to win their cases without having to actually prove their facts. In Mushnick’s case, it amounts to a smear—a unilateral declaration that no debate or discussion of Vitale’s conduct is permissible, since he’s been found guilty at summary judgment.
Having read Mushnick’s ravings for a few years now, I think his ethical condemnation of Vitale has little to do with any alleged conflict of interest. Consider this passage from Mushnick’s article:
Then again, perhaps ESPN's accustomed to indulging such conflicts. Vitale once had a sneaker deal with Nike, then, when his friend and Nike college basketball influence peddler, Sonny Vaccaro, left for adidas, Vitale switched to adidas, too.
But such a deal would never prevent Vitale from delivering one of his hard-hitting commentaries on the insidious role that sneaker companies and their oily reps play in the continued corruption of college basketball.
Vitale, in fact, has consistently taken the position that players should stay in college, rather than turning professional early. This position puts Vitale in opposition to the sneaker companies, which regularly attempt to influence players to enter the NBA early. Now, while I happen to share Mushnick’s disdain for the sneaker companies in this context, this has no bearing on an ethical discussion of Vitale’s business partnership with Pitino. What this sneaker example actually demonstrates, in my opinion, is Mushnick’s own biases: He’s upset with Vitale for not sharing his viewpoints on given issues, and thus he’s fair game for ethical condemnation on unrelated matters, regardless of actual context. If you ask me, that’s hardly responsible media criticism.
::: posted by Skip Oliva
at 12:42 AM | link
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Sunday, April 20, 2003 :::
Olson & Tribe, together again...
The U.S. Supreme Court will hear oral arguments on Wednesday in Nike v. Kasky, the corporate speech case which CAC joined as a “friend of the court” on Nike’s behalf. The argument will take place from approximately 11 a.m. to Noon. In an interesting twist, the case for ruling in Nike’s favor will be presented by Harvard professor Laurence Tribe and U.S. Solicitor General Theodore Olson. Tribe represents Nike, while Olson will argue for the federal government in general support of Nike’s position. The last time both men appeared before the Supreme Court together was December 2000 in Bush v. Gore, with Olson representing President Bush and Tribe representing Vice President Gore.
As detailed elsewhere on CAC’s website, this case involves Nike’s right to defend itself publicly against anti-capitalist activists who oppose the company’s labor practices. The California Supreme Court held Nike could be held to strict liability for their statements, while Nike opponents enjoyed categorical First Amendment immunity. Marc Kasky, one of the anti-Nike activists, sued the company under California’s generous definition of standing, which anoints every California resident a “private attorney general” for purposes of consumer fraud actions. Thus, Kasky is the plaintiff despite alleging no injury to himself, nor even a personal knowledge of the facts regarding the truthfulness of Nike’s statements.
Arguing Kasky’s case on Wednesday is attorney Paul Hoeber, a sole practitioner affiliated with the San Francisco firm of Bushnell, Caplan & Fielding. Hoeber is a former law clerk to the late Justice William Brennan, ironically a great champion of First Amendment liberties.
::: posted by Skip Oliva
at 7:18 PM | link
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Growth, taxes & France
The Club for Growth is running ads against Republican senators George Voinovich of Ohio and Olympia Snowe, chastising the lawmakers for opposing President Bush’s full tax cut proposal. The ads feature America’s favorite whipping boy, France:
PRESIDENT BUSH COURAGEOUSLY LED THE FORCES OF FREEDOM.
BUT SOME SO-CALLED "ALLIES" LIKE FRANCE STOOD IN THE WAY.
AT HOME, PRESIDENT BUSH HAS PROPOSED BOLD JOB-CREATING TAX CUTS TO BOOST OUR ECONOMY.
BUT SOME SO-CALLED REPUBLICANS LIKE GEORGE VOINOVICH STAND IN THE WAY.
AMERICA NEEDS STRONG ALLIES ABROAD.
AND PRESIDENT BUSH NEEDS STRONG SUPPORTERS IN THE SENATE.
HEY GEORGE VOINOVICH: JOIN PRESIDENT BUSH'S FIGHT TO CUT TAXES AND FIX THE ECONOMY.
This approach—comparing Voinovich and Snowe to Jacques Chirac—strikes me as somewhat simplistic. France, after all, engaged in duplicity, first promising to support the disarming of Saddam Hussein, then turning against the U.S.-led effort to actually do so. Snowe and Voinovich, in contrast, are politically consistent in their opposition to the president’s tax proposals. Both senators are so-called deficit “hawks” who consider substantial tax cuts too risky. While I don’t support this approach to fiscal policy, I also know that Snowe and Voinovich are not hypocritical or duplicitous in holding their views.
That said, the Club for Growth’s intent is admirable. Lower taxes is supposedly a core principle of the Republican Party, and the Snowe-Voinovich position does politically undermine the agenda of a Republican president. But Club for Growth could have formulated an ad which focused on the intellectual error of their opponent’s position—attacking the notion that lower taxes is the cause of higher deficits, for example—rather than on America’s fleeting disdain of France.
::: posted by Skip Oliva
at 5:29 PM | link
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Rumsfeld Stands Tall After Iraq Victory
Light bloging for today, but the Washington Post has an interesting article on the rise in Secretary of Defense Donald Rumsfeld.
Key paragraph:
He now is in position as never before to reshape the U.S. military along the lines he has talked about since taking office, "transforming" it into a more agile and precise force built not around firepower but around information, and willing to take risks to succeed.
Amen!
::: posted by Nicholas Provenzo
at 1:55 PM | link
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