Scalia’s Uncanny Powers: Originalism Exposed

The U.S. Supreme Court was faced this term with the question of whether the Feds can hang a global positioning unit on a criminal suspect’s car for a month without a warrant, and then use the satellite tracking information they acquired to convict the suspect. The answer was an emphatic “No,” which WC believes is entirely the right result. But the majority opinion was written by Justice Antonin Scalia, and that opinion exposes Justice Scalia’s theories of constitutional interpretation for the legal and logical absurdity that it is.

Justice Scalia is an “originalist.” He believes the U.S. Constitution should be interpreted  as the Founding Fathers meant it. The most widely cited form of originalism, “original meaning,” emphasizes how the text would have been understood by a reasonable person in the historical period during which the Constitution was proposed, ratified, and first implemented.

Wait a moment, you say. The Founding Fathers didn’t know about GPS. Or electricity, integrated circuits, orbital mechanics, relativity, radio waves or a thousand other kinds of technology that make GPS work. For that matter, they didn’t know about the automobile to which the GPS unit was attached, the interstate freeway on which the automobile was driven, the cocaine that was allegedly sold, cell phones used to set up dales or the paper money used for the purchases. Justice Scalia’s reasonable person might think it is absurd to try and guess how a figure from the late 18th Century would understand and apply the Fourth Amendment to technology that would have been indistinguishable from magic.

But WC will show you how Justice Scalia pulled the trick off. Warning: don’t blink or you’ll miss it.

We have no doubt that such a physical intrusion would have been considered a “search” within the meaning of the Fourth Amendment when it was adopted.

United States v. Jones, p. 4

That’s right: Justice Scalia concludes that, say, James Madison, the guy who, you know, wrote the Fourth Amendment, would have extended that amendment to GPS devices. Because Justice Scalia has the uncanny ability to get his head inside the mind of a man living in 1790. Justice Scalia can magically grasp the world view of a man who lived 220 years earlier and intuit the application of that man’s words to a 21st Century set of facts.

Justice Scalia’s supernatural skill – which the Jones decision makes clear is “beyond doubt” – is the heart or originalism.

Poppycock.

What he’s really doing is mystically concluding Madison would have thought this involved the tort of trespass. Bizarre.

Even if you believe in originalism, it is useless as  precedent. What makes cases useful is that they provide guidance in other cases with similar facts. But if a decision turns on mystic foofraw it’s useless as guidance in another case. Which makes Jones worthless in deciding other issues involving other 21st Century technologies: cell phone call records, world wide web searches, text message records. How can we deduce what the court would do with those technologies? Wait for Justice Scalia to exercise his mystic powers to know what James Madison would have done?

And speaking of precedent, Justice Scalia’s magic also allowed him to ignore 40 years of precedent and a well-developed body of law on the reasonable expectation of privacy. He just ignored it. Because after all, he knows what Madison would have done.

Justice Thomas is even worse. But don’t get WC started on “strict constructionism,” which is even more absurd.

Hello? U.S. Supreme Court? You’re falling further and further behind. Pretending you can deduce what Madison would do is intellectually dishonest, lends itself to purposiveness and is ultimately futile. You can pretend you know what Madison or Jay or Jefferson would have thought about Twitter. But you are pretending.

The irony is, you think you are being conservative. The truth is, you’ve got it exactly backwards.

It Can’t Happen Here: The Costa Concordia

Satellite Image, Costa Concordia, by DigitalGlobe

The Costa Concordia still lies on her side off the Tuscan coast, with 16 confirmed dead and many still missing. Alaskans know, to their sorrow, that not all ship’s captains are scrupulously careful, not all crew members fully qualified and not all accidents truly accidents.

A Dutch salvage company is struggling to off load the half million gallons of fuel still on the ship, before something fails and another of the world’s pristine marine environments falls victim to industrialization. In this case, industrial tourism.

But as sad as the Costa Concordia’s story is, as tragic as the grounding has already been for the families of the dead and the injured, WC  can’t help but imagine the consequences of a similar accident in southeast Alaska, in Prince William Sound, or in Kachemak Bay. Imagine a Carnival Cruise ship laying on her side at the head of Muir Inlet, sunk in a too-close approach to the glacier to give the passengers a thrill. Imagine a ship this size going down in Dangerous Passage on the west side of Prince William Sound because someone mis-read a tide table.

Don’t say it can’t happen. It has. It will again.

Even if the technology were perfect – and it isn’t – human error, whether it drunkenness, showboating or plain incompetence  can overcome any fail safes. The problem with making things foolproof is that fools are so ingenious.

As industrial tourism, with its 4,000 passenger ships, penetrates the arctic and cruises through the northwest passage become more routine, the problems will only become more acute.

Sure, there are damage control plans, contingency plans and drills. But you will forgive WC his skepticism. There were plans for oil spills before the Exxon Valdez, and they were worse than useless. The Costa Concordia struck that rock on January 15; as of this date, she still lies there. This shipwreck is in the heavily trafficked, well-developed Mediterranean; can you imagine the chaos if this was in the Beaufort Sea? Thousands of miles from the nearest help, in a much more hostile – and fragile – environment?

Alaska has a … difficult … relationship with the cruise ship industry as it is. But the incontrovertible lesson of the Costa Concordia is that it will happen again, and Alaska once again will be nearly helpless to respond.

Now That’s a Screed: Anonymous Commentary on Mitch Daniels

Andrew Sullivan in his blog, The Dish, had nice things to say about Indiana Governor Mitch Daniels‘ response to President Obama’s State of the Union address. One of Sullivan’s readers was unimpressed, and launched this rebuttal, which gets WC’s Screed Award:

You wrote about the SOTU response that “It was what a sane Republican critique of this presidency would be.” I strongly disagree. This speech was heavily laced with the usual canards Republicans use to raise doubts about this president. For example, he faulted the president on energy policy for resisting domestic oil development. As you well know, the president has opened vast areas of previously protected land for oil development, a policy he announced an expansion of tonight. He made a valid point about the Keystone XL pipeline. However, there were serious concerns about this project, which was under review by the administration. Congressional Republicans forced his hand before the review could run its course. Of course he decided against it. I would place more blame on the House of Representatives than the White House for the death of that project.

Daniels also pressed the lie that the president has made no serious efforts to reduce the deficit. Democrats and Republicans may disagree on the best way to reduce the deficit, however President Obama has put forward some of the most ambitious proposals to reduce the deficit to receive any significant support. During the debt limit debate, he was willing to go farther on spending alone than the Republicans were requesting. Never mind their unwillingness to raise taxes on anyone besides the average worker.

Then Daniels has the absolute nerve to blame the divisiveness of modern politics on our president. Our president, whom is routinely called a socialist, a communist, a Kenyan anti-colonialist, is the cause of the division. Our president, who has consistently tried to find common ground on taxes, on energy, on healthcare, and on any number of other issues, only to watch the opposition walk away from their previous positions, is the cause of the division. Our president, whose main role in the ongoing class war has been to point out how the unscrupulous among the rich have been waging this war for decades and winning, is the cause of the division.

I can understand the desire to find a sane voice among the officials of the Republican party. I’m a registered independent and share that desire. I agree with you about Ron Paul’s contributions to the debate; disagree with Jon Hunstman on policy, while I recognize that he tries to craft sane policy that accomplishes worthy goals, merely questioning his priorities; and I lament Gary Johnson’s having been excluded from the Republican presidential race. I was hopeful before this speech to hear what you evidently believed you heard, but I did not.

The problem with the modern Republican party is not merely a matter of tone. Chris Christie has convincingly challenged many Republican orthodoxies while maintaining the fiery tone that so appeals to many Republicans. He has done this by dealing firmly with the reality of the policies he deals with, instead of the insane otherworldly echo-chamber that defines mainstream Republican thought. He consistently impresses me in a way that Mitch Daniels, at least tonight, did not.

WC would like to give credit for this excellent, cogent response, but Sullivan didn’t respond to WC’s request for attribution. If a reader has a clue, pass it along.

WC’s Epic Fails: First Cubs Game

WC attended law school in Chicago, Illinois in the waning days of Boss Daley. In fact, the first thing WC saw on arrival at the law school campus was a cop taking a bribe on a parking violation. WC arrived on August 25, 1972. The morning of August 26, 1972 was given over to “orientation,” where they utterly failed to tell us the important stuff. (Don’t walk west of State Street after dark. Beware of dunes of dead fish washing up on the lakeshore. Pedestrians never have the right of way. Cops are never your friend.)

Fergie Jenkins of the Chicago Cubs pitches in a game at Wrigley Field in Chicago, Illinois. (Photo by: Jonathan Daniel/Getty Images)

But in the afternoon, a few of us headed north on the State Street ‘L’ (which is actually underground and not elevated at Chicago Avenue) to attend a Cubs baseball game. WC’s first Cubs game, ever. First ‘L’ train ride, ever. After settling in the bleachers ($2.00 tickets for the front tier of seats), WC watched the Cubs play the San Francisco Giants in the warm afternoon sunlight, with Fergie Jenkins on the mound for the Cubs and, eventually, Randy Moffitt (Billy Jean King’s brother) pitching for the Giants. At that point in WC’s life, he was sort of a Giants fan, the Giants then being the MLB team closest to Fairbanks. WC was the only Giants fan in the bleachers that afternoon.

WC also had his first Falstaff beer that afternoon. It was awful. Hog piss and soap suds. WC had attended undergraduate school in the Pacific Northwest, where the cheap beer was much better. But WC was a country mouse, so he kept his opinions to himself. The beer went largely undrunk. WC’s new roommate, John Freechak, was less restrained. John was from St. Louis, was an anti-fan of the Cubs, and freely shared with the rest of the crowd in the bleachers his strong, loud, largely obscene opinions on the quality of the beer, the quality of the Cubs and the quality of Cubs fans. He succeeded in annoying all of the true Cubs fans around him.

It was a very good game, with the lead changing hands several times. The wind was blowing out, which meant that a routine fly ball would get a wind assist out of the park and onto Waveland Avenue. There were at least 30 hits. And at least 8 home runs; Billy Williams and Ron Santo each had two. After 9 innings of play, the score was tied, 9-9. So in failing early evening light, we went into extras.

The Giants were retired without scoring in the top of the 10th inning, on a nifty double play line drive to the pitcher and a quick toss to first base. In the bottom of the 10th, Jose Cardenal singled. Billy Williams moved Cardenal to third base on a single. Rick Monday then struck out with runners on first and third. Ron Santo came up to bat, and the Giants chose to walk him. So the bases were loaded when Joe Pepitone came to the plate. Moffitt’s first pitch maybe – maybe – brushed Pepitone’s uniform. The umpire called it as a hit batsman, and Pepitone, without lifting the bat off his shoulder, “drove” in the winning run and the game ended with a Cubs win, 10-9.

Freechak was furious, and loudly protested what he saw as an unjust ending. It was too much for the Cubs loyalists around us, who dumped at least three half-full plastic glasses of Falstaff beer over Freechak’s head, soaking him and splashing WC pretty badly. That was annoying enough that WC threw his largely untouched beer on the folks he thought had soaked Freech and splashed WC.

One thing led to another, and before very long Freech, another new law student and WC wound up in the holding pen under the left field stands, cooling our heels, and stinking of bad beer, under the baleful eye of three security guys. Readers will note the guys who threw the first beer didn’t get detained. Eventually, the stadium manager turned up, chewed us out for a while, and banned us from Cubs games for three weeks. Ordinarily that wouldn’t count as punishment. You know, it’s the the Cubs. But the Cubs mounted a 12-4 record over that period, and then finished the season on the road. So we rode home on the ‘L’ in the dark, stinking of beer and looking like something the cat had dragged in.

WC learned later from Prof. Paul Slater that if he had offered $20 to the stadium manager to “pay the laundry bill,” the ban probably would have been lifted. But WC was still a country mouse at that point, and didn’t yet understand how Chicago worked.

But somehow WC started following the Cubs from that point forward, and sank into his 39 year addiction to a hopeless, hapless ball team.

Did you know it’s only 71 days to Opening Day?

An Open Letter to Commissioner Sullivan

Dan Sullivan, Commissioner
Department of Natural Resources
550 W. 7th Ave, Suite 1260
Anchorage, AK 99501-3557

Re: Department of Natural Resources Mission Statement

Dear Commissioner Sullivan:

The Anchorage Daily News reports that your Department of Natural Resources has recently revised its Mission Statement. WC is doubly annoyed.

First, to a very considerable extent, a mission statement is time-wasting twaddle for a government agency like DNR. You have a mission statement already: the Alaska Constitution. WC regards it as an ill-conceived waste of DNR’s resources, and an inappropriate activity for appointed officials, to be second-guessing, you know, elected officials.

Second, and more importantly, you got it seriously wrong. Here’s a side-by-side comparison of the old and new

Old Mission Statement (1987)	New Mission Statement (2012)
To develop, conserve and enhance natural resources for present and future Alaskans	To responsibly develop Alaska’s resources by making them available for maximum use and benefit consistent with the public interest.

WC note’s that “conserve” and “future Alaskans” dropped out of DNR’s new mission statement. “Sustainability,” another pretty important concept embedded in the Alaska Constitution, never made the cut. What the Constitution actually says?

Article VIII, Section 2: The legislature shall provide for the utilization, development, and conservation of all natural resources belonging to the State, including land and waters, for the maximum benefit of its people.

Article VIII, Section 4: Fish, forests, wildlife, grasslands, and all other replenishable resources belonging to the State shall be utilized, developed, and maintained on the sustained yield principle, subject to preferences among beneficial uses.

(WC has tried to help by placing the overlooked critical bits in red.) To the extent that a mission statement is even necessary, shouldn’t it reflect, you know, the Constitution? Unless you just want to be a lapdog for our scofflaw governor, why not describe as your mission something other than the immediate gratification of whoever is defining “the public interest.” Sure, those fine, upstanding corporations, recently anointed as “people,” want the public interest to coincide with their maximum profits, but that’s not what the folks writing Alaska’s Constitution had in mind.

In fact, your new mission statement sucks up to the mining and oil industries in ways that contravene the Constitution. Not the least of which is the omission of conservation.

And, by the way, conservation goes beyond renewable resources. If the extraction of nonrenewable resources injures renewable resources, that’s a violation of the Alaska Constitution, too.

Why not scrap the whole thing? Why not tell anyone wondering if DNR has a mission statement that it’s Article VIII of the Alaska Constitution. Give them a link.

And to the extent that your boss objects, remind the Governor that he’s not the boss. The Constitution and the people it protects are in charge. To the extent that this revised mission statement may reflect what you really aim to do? Develop resources without regard to conservation, sustainability or the long term future of the resources? You are doomed to failure.

Just trying to help.

/Wickersham’s Conscience

Frank Solivan and Dirty Kitchen

Acoustic Adventures brings Frank Solivan and Dirty Kitchen at The Blue Loon

WC is not a huge fan of bluegrass music. As Frank Solivan described a jazz melody he and his band performed last night, “Earl Scruggs got ahold of it and blue grassified it.” To WC, most bluegrass music sounds like Robin and Linda Williams’ brilliant satire, “Marvin and Mavis Smiley and the Manhattan Valley Boys” doing their bogus infomercials for “Do-Tell Records.” Part of the joke – Marvin and Mavis do Broadway, Marvin and Mavis do Springsteen – is that all of the songs come out sounding exactly the same. And, candidly, all bluegrass music sounds a little flatt to WC.

But Trudy and Mase of Acoustic Adventures are diehard fans of the genre, and they’ve never steered WC wrong with a concert yet, so even though the show was at The Blue Loon, one of WC’s least favorite venues, Mrs. WC and WC headed out to Ester for the show.

Even if you don’t care for bluegrass, there’s no denying the quality of the musicianship, the sheer skill of many bluegrass players, and Frank Solivan, in the latest lineup of Dirty Kitchen, has come up with some wonderful artists, who can not only play as a group, but do some pretty impressive solos, too. These four guys can play.

Frank Solivan can set a mandolin on fire, and isn’t bad at fiddle, either. Mike Mumford is a terrific banjo player. Danny Booth is excellent on upright bass. But it was baby-faced, 21-year old Chris Luquette blew the crowd away with his guitar solos in his first show, ever, with Dirty Kitchen. The group wasn’t afraid to break away from traditional bluegrass, including a fine cover of John Stewart’s “July You’re a Woman” or topical songs like Solivan’s homelessness study from the other side, “Left Out in the Cold.”

Polished, tight and plainly enjoying themselves, there were moments when WC could almost understand why some folks like bluegrass so much.  Props to Steve Brown & the Bailers for opening (with Robin Dale Ford filling in on bass).

A fun evening. Thanks to Trudy and Mase for putting it together.

Cruisin’ the Fossil Freeway with Ray Troll

Dr. Kirk Johnson and Ray Troll at Gulliver's Books

Dr. Kirk Johnson and Ray Troll were at Gulliver’s Books in Fairbanks on Friday night, talking about their 2007 book Cruisin’ the Fossil Freeway, telling stories and autographing books. It was a hoot.

Johnson is a paleobotanist, a fossil-hunter who specializes in the fossils of plants. As he puts it, he goes time traveling with a shovel. He understands William Faulkner’s line, “The past is not dead. In fact, it is not even past.” He has a gift for telling stories, and is a science popularizer par excellence. Plus, he can find dinosaur footprints in roadcuts driving by at 65 mph.

That’s not the kind of skill you’d expect to find in the Vice President of the Denver Museum of Nature and Science, but it’s true. As well as a Ray Troll drawing.

Ray Troll is, well, he’s Ray Troll. He’s an Alaska treasure, a man comfortable with fish, evolution, puns, geology, the Amazon, puns and Truly Awful puns. His surrealistic art has anatomically correct critters. And he’s a fine public speaker, too. He gave a very nice, 45 minutes summary of the book and the adventures that led to it, complete with excellent KeyNote slides. He is, of course, a Mac user.

He can and did talk knowledgeably about the Morrison Formation, Pleiosaurs, Triceratops, Jackalopes, Ammonites and the strata of the Wind River Canyon. He can draw a vivid explanation of Natural Trap Cave – the mother lode of Holocene mammal skeletons – and make a joke at the same time: “Forty Thousand Mammals Can Be Wrong.” He sells t-shirts, but world class museums compete for his exhibitions.

Johnson wrote the book, mostly. Troll illustrated it. Johnson has a easy writing style that is comfortable explaining deep time, Troll’s penchant for cheeseburgers, the mechanisms by which fossils are made and preserved and the endless variety and availability of fossils.

Look Under Your Feet, © Ray Troll

The book is science blended with the road story of Troll’s and Johnson’s trip together and excursions into some of the pleasures of geology. A couple of WC’s heroes wander into the story, including Dr. David Love, the subject to John MacPhee’s superb Rising from the Plains [Amazon link], and how Love came to have a dinosaur named after himself. Or at least a dinosaur track; the late Cretaceous, four-toed species is known to science only from its tracks. And, as it turns out, Love once took Olaus and Marty Murie, of Alaska fame, fossil hunting. You never know what’s going to wash up when you beach comb the shores of science.

And the book is filled with amazing new characters, too. Like “Buck-a-Bug” Jimmy Corbett, who finds trilobite fossils and sells them to Fossil King Robert Harris for a dollar each. As Troll skillfully points out,  if we look under our feet, the past is all around us.

There are Christianists, religious zealots and various prigs who would deny us and our children our true heritage: billions of years of history, deep time, and tens of millions of species that were long gone before mammals even evolved. They’d force our public schools to deny the existence of The Dinosaur killer, the K-T boundary that is the dinosaurs’ epitaph and all that went before and since. Johnson was raised in the Seventh Day Adventist Church, and his story of the moment as a teenager he realized Noah’s Flood was not the default answer to every geologic problem could stand as an object lesson for all creationists.

Ray Troll was kind enough to sign a few of WC’s books, and both Troll and Johnson signed a copy of Fossil Freeway. They are fine souvenirs, and will have a place of honor on WC’s bookshelves. But the bigger take away from the evening is the hard, clever work of these two gentlemen who are working to tease a little knowledge of the past into the thick, stubborn brains of Americans.

WC is grateful for their efforts and wishes them every success.

Eastman Kodak: An Analog Company in a Digital World

When I think back
On all the crap I learned in high school
It’s a wonder
I can think at all
And though my lack of education
Hasn’t hurt me none
I can read the writing on the wall

Kodachrome
You give us those nice bright colors
You give us the greens of summers
Makes you think all the world’s a sunny day, oh yeah!

Paul Simon, “Kodachrome,” from There Goes Rhymin’ Simon, 1973

Eastman Kodak filed Chapter 11 bankruptcy Thursday. $5.1 billion in assets; $6.8 billion in liabilities. Of the $6.8 billion in red ink, about $245 million a year is pension obligations. Another group of employees is about to get stiffed on their pensions, at a time when the U.S. Pension Benefit Guaranty Corporation, the government insurer of retirement funds, is already insolvent.

Of course, the last bit of Kodachrome film was gradually phased out between 1996 and 2009, and the last lab that processed Kodachrome closed in 2010. As a metaphor for Kodak, it’s not bad.

But Kodak was a lot more than Kodachrome film, even if Paul Simon linked it indelibly. (There’s even a Kodachrome Basin State Park in Utah.)

Kodak actually saw the digital revolution coming in photography, and after its earlier loss of market share to Polaroid – remember Polaroids? – acted preemptively and released some of the early digital cameras. But Kodak couldn’t keep up with either the improvements in sensors out of Japan or the improvements in on-camera processing software in the U.S. Kodak never really got on board the digital bus. While Kodak holds some of the early key patents in digital photography, it was never able to turn those patents into a profitable product.

WC is baffled by Kodak’s recent strategy. On the one hand, it wants to sell inkjet printers, staying in the business of making photos. On the other hand, it has turned into a patent troll, suing anyone and everyone that it thought infringed on the patents it could not use profitably itself. Kodak couldn’t seem to understand that you can’t be a patent troll and expect your inkjet printers to be viewed favorably by the photography industry or photographers.

WC has thousands of Kodak™ prints. A few have been scanned and digitized, but most sit in boxes, gathering dust. And now Eastman Kodak itself stares at a similar fate. Kodak has joined slide rule manufacturers, 8-track and cassette tapes, day timers, encyclopedias and countless other products as roadkill on the digital highway.

Mama, don’t take my Kodachrome
(Leave your boy so far from home)
Mama, don’t take my Kodachrome (away)

Farewell and good luck, Kodak.

Second Update: M/V Polar Star

Readers will recall WC was a passenger in November-December 2010 on the M/V Polar Star in the Southern Ocean. Out of a kind of morbid fascination, WC has followed the sad events since her grounding in October 2011 on an uncharted rock off the Antarctic Peninsula. Here’s WC’s first report; here’s the first update.

It’s remarkably hard to find current on-line news of the ship. For what it’s worth, this was one of the hardest blog posts to research that WC has done. But it seems very likely the Astican Shipyard’s maritime lien against her will be foreclosed by a Spanish court, and she will be sold at public auction for scrap. Here is an on-line photo of her in dry dock in the Canary Islands.

M/V Polar Star in Dry Dock, Astican Shipyard, Las Palmas, Canary Islands, July 2011; photo by CHARRN

There are unindexed Receiver’s Reports for the Karlsen Shipping receivership.  The Second Report of Receiver dated September 27, 2011 summarizes the receiver’s analysis of the financial value of the ship. Partially because her engines will have to be replaced (something the Captain told WC back in 2010) it’s very difficult to find financing. It would cost $2.5 million just to get her out of the Atiscan Shipyard. That’s before the engine refit, which would have to include conversion to diesel fuel to comply with changes in ship requirements in the arctic and antarctic scheduled for 2014. In the Second Report, the receiver concludes:

Based upon the above, the Receiver has concluded that there is little prospect of any significant return to creditors by continuing to actively pursue the sale of the Ship. The net proceeds are unlikely to exceed the amounts owed to the lien holders.

Therefore the Receiver has concluded that the Ship be abandoned to the Astican Shipyard and the Receiver shall assist the shipyard, if required, as regards any local judicial sale of the Ship.

In the Receiver’s Third Report dated October 27, the receiver simply says:

The M/V “Polar Star” remains at the Astican Shipyard in Las Palmas, Spain as reported in our Second Report. All interested parties are being directed by the Receiver to the solicitor representing the shipyard.

Readers will recall that in November Cheeseman’s Safaris had scathing criticisms of the Astican Shipyard and the receiver for their failure to protect the ship against the elements. If you look at the area behind the stack, there’s black rags? Those are the remains of the Zodiac rafts used to move passengers around. The ultraviolet in tropical sunlight is not kind to Zodiac fabrics. If the interior of the ship is in as bad a condition as the Zodiacs, Ted Cheeseman was exactly right.

But by the time Ted Cheeseman and his prospective buyer got there, the decision was already made.

A sad, sad end to a great ship.

Protect What’s Valuable: A Modest Proposal

Adelie Penguin with Egg

One lesson that seems to escape too many of WC’s buddies is the importance of protecting what is valuable to you. WC will grant you that Adelie Penguins have it a little easier than humans, let alone citizens of a republic. Protect the egg. Protect the cobbles that make the nest. Feed and protect the chick. Pretty straightforward.

The U.S. Constitution expects just a bit more from American citizens. We’re expected to exercise our right to vote, to serve on juries when required and to pay our taxes in full and on time. In return, we don’t have to take on the Antarctic Skuas of the world all on our own.

Too many of WC’s buddies think that it is okay not to vote.

In the 2010 general election, State voting records show that just one-third of registered voters bothered to vote: 33.65%. Sure, the voter rolls are a little out of date, but still. 164,000 votes in an election that involved a bare-knuckles fight for the U.S. Senate and election of a governor.

If you dig a little deeper, it’s even worse. The percentage who vote is based upon registered voters. That’s approximately 495,000 citizens. Probably 15-20% of those persons no longer live in Alaska, have died or are otherwise ineligible to vote. WC can’t find hard data. But at a guess, there are about 420,000 bona fide registered Alaska voters in the state.

According to the 2010 U.S. Census of Alaska, there are about 525,000 citizens in Alaska who are 18 years of age or older.

So there may be as many as another 100,000 citizens of Alaska who can’t be troubled to even register to vote.

Now you can argue that we don’t want participation from folks who don’t care enough to vote, or even to register to vote. But that’s not how a democracy works.

WC has seen proposals that proof of voting should be required to obtain an Alaska Permanent Fund Dividend if you are 18 years old or older. No vote, no PFD. It wouldn’t be hard to do; a computer run against two electronic databases. It shouldn’t be necessary. It smacks of extortion. But maybe it is necessary. Maybe if the PFD is placed in jeopardy, maybe if the PFD is expressly made something citizens have to protect, they’ll protect it and vote.

It’s not a new idea. WC isn’t the first to suggest it. And WC admits to reservations about the whole idea. Readers?

Druther Be Fishin’

Stop SOPA

WC is a fairly serious fly fisherman. The virulence of his affliction varies from time to time. As he reported earlier, WC spent a three month sabbatical in 1993 fly fishing in Alaska and the Pacific Northwest.

WC started fishing fairly young.

WC, 1957, Two Chum Salmon

They are just Chums – Dog Salmon in a Yu’pik town like Bethel – but they weren’t bad when carefully smoked. WC has fished pretty much ever since, including twenty-plus years of trips to the Situk River near Yakutat, chasing spring run Steelhead Trout. For those who don’t fly fish, Steelhead are salt-run Rainbow Trout, and it can take 20-30 minutes to land a big one on fly gear. This particular fish involved a fight of more than half an hour.

WC, Steelhead Trout, Situk River, 2002

Yes, WC released the fish after the photo was taken. The Situk River has North America’s largest purely wild Steelhead Trout fishery, with the small 20-mile long stream supporting a run of 7,500 steelhead, as well as large runs of all five salmon species. It’s a crime against nature to eat a fish that, unlike salmon, can return to salt water and spawn year after year.

The problem now, of course, is that, in Thumper’s phrase, the water is all stiff on top. Fly fishing is past impractical. So instead, WC reads about fly fishing. And there are some very, very good books on fly fishing. WC willl briefly discuss three.

The River Why, David James Duncan [Amazon Link]

First, it’s not really a book about fishing. Duncan uses fishing as one kind of bait, along with wonderful humor, beautiful writing and memorable characterization, to make a much larger, much more important set of points.

Second, the plot isn’t about fishing, or living in harmony with nature; it’s about a young man’s discovering what life really is. The Perfect Schedule – young Gus’s plan for getting in the absolute maximum number of hours a day fishing – turns out to be a horrible failure. It takes a long time for Gus to realize something is wrong, including a harrowing adventure with a drowned man and some pretty serous sickness. Now it may be – ahem – that fisherpersons are more stubborn or more stupid, but Duncan has Gus discover that there are things more important than fishing, and that those things can lead to still greater things. And that all of that can make the fishing better.

Third, while Duncan and Gus poke immense amounts of fun at it, this really is a re-casting of Izaak Walton’s The Compleat Fisherman, although Walton is nearly unreadable and Duncan writes extraordinarily well. This book is also about more or less the same thing as those “witlesses” that Ma brings to grief, although both Gus and the Witlesses would likely deny it. One of Duncan’s subtle messages is there, too.

Fourth and last, like a fish taking a fly, when you read this book you will be so dazzled by the gorgeous fly of Duncan’s humor, writing and characterization that you will miss the hook and line of his real message until, like Gus, the line of light has you and you feel that gentle tug in your heart.

Beautiful and subtle, hilarious and passionate, charming and amazing, this book is simply an astonishing piece of writing. It’s one of my ten or so favorite books, and likely will be one of yours, too.

A River Runs Through It, Norman MacLean [Amazon link]

Sure, the books has been Redford-ized, turned into a pretty movie, but if you can get the movie out of your head, this is a fine book, probably the best written of the three. MacLean can turn a phrase as well as any English writer, and when he says, near the end of the novella, “I am haunted by water,” you feel the meaning in the small hairs at the base of your neck. This is the story of a profoundly dysfunctional family, united by a love of fishing, and especially fly fishing. When MacLean tells us, at the start, that in his family there was no clear line drawn between fishing and religion, he is telling nothing less than the truth. A life framed in four steps, between ten and two.

Where The River Why is generally upbeat, MacLean’s story is a tragedy, not just because of the death of the younger brother, Paul, but because of the utter inability of the brothers to understand, let alone help, one another.

Exquisitely written ad ineffably sad, this is a wonderful story wonderfully told.

The Earth Is Enough, Harry Middleton [Amazon link]

This is the story of a young boy growing up in a military family, stationed at a staging area during the Vietnam War. When one of his friends is killed – and Harry badly injured – playing with a grenade they found in the jungle, Harry is packed off to his grandfather, a subsistence farmer in the Ozarks of Arkansas. There, with his grandfather, granduncle and the old American Indian, Elias Wonder, Harry is healed, not just of the trauma of seeing his friend disappear in a “pink mist” but healed as well of a great deal of other things he may not have known ailed him.

As Harry learns the rhythms of the land and the mysteries of Starlight Creek from his grandfather and the irascible Elias Wonder, he grows and the reader grows with him. Like David James Duncan’s The River Why, this is a book about growing up and coming of age, and flyfishing – that “hopeless addiction to trout and the push of water against your legs” – is simply the author’s narrative tool.

Harry must have been a more patient and willing teenager than I was, or perhaps time has colored over Harry’s experience, but there is nothing else to criticize. Beautifully written, exceptionally well told, full of life, sadness, humor, death and understanding.

And if flyfishing became an addiction for Harry, that was to haunt him in his later years, well, he was warned and in any event there are far worse fates.

So there you have it. Three stories to read on cold winter nights, while we all wait for the creeks to melt, the streams to clear and the fish to rise. You don’t have to like or enjoy fly fishing to enjoy any of these books; in each, fishing is the frame in which larger, more important matters are drawn. But if you do fish, it’s a bridge towards liquid water and the twitch of the fly rod in your hand as the grayling takes the fly.

Now That’s a Screed: Timothy Egan

Former New York Times columnist Timothy Egan has an opinion piece in Sunday’s Times which heats up the usually staid Grey Lady and shreds the Teabaggers. Sample quote:

Thus far, the Worst Congress Ever has done nothing but show that the United States can be a nonfunctioning democracy when it wants to, like Italy but with all-you-can-eat buffets. In a single demi-term, it nearly shut down the government, fouled a fledgling economic recovery with a pointless fight over the debt ceiling, and then threatened to withhold spending money for 160 million working Americans by raising the payroll tax. Brinkmanship is its only game.

Calling Ron Paul a “daft, grandfatherly skinflint” scores some points, too. Worth a read.

Fishin’ & Gamin’ – The Mess at ADF&G

On Friday the news broke that Division of Wildlife Conservation Director Corey Rossi had been charged with 12 counts of criminal hunting violations.

Alaskans may remember that Mr. Rossi was originally hired in January 2009 as assistant commissioner of “abundance management” – a newly invented position at Fish and Game – as a Palin family favor. Mr. Rossi’s credentials seem to consist largely of close family ties to Palin’s family. And a willingness to kill an unlimited number of wolves, of course.

In a classic instance of The Peter Principle, Governor Parnell subsequently made Mr. Rossi chief of the Alaska Department of Fish & Game Wildlife Division. That’s the agency manages that wildlife and habitat across the state. A key part of the Division’s duties involve working with the Board of Game to adopt hunting regulations. Mr. Rossi had no obvious professional qualifications for this job, either – 39 former Fish & Game supervisors and biologists signed a letter calling for Rossi to be ousted. The letter pointed out that Mr. Rossi, who does not have a college degree, lacked the education and scientific training to head the Division. Then-Commissioner Denby Lloyd defended Mr. Rossi:

I am confident that his professional experience, administrative abilities, and familiarity with wildlife issues in Alaska will ably serve the resources and the division as well as the people of Alaska.

So while Mr. Rossi is innocent until proven guilty, on the evidence, former Commissioner Lloyd was correct only for a very, very narrow definition of “ably serve.”

Of course, former Commissioner Lloyd turned out to be no prize, either. He plead guilty to DUI back in June after blowing nearly twice the legal maximum on his Breathalyzer test. And was fired retired shortly thereafter.

WC is not persuaded that Lloyd’s successor, Cora Campbell, has the chops to do the job. It’s not that she is young – as William Pitt said, when he became Prime Minister of Britain at age 24,”The atrocious crime of being young.” It’s that her limited experience is in fisheries, not game management. And it takes some very good people skills to influence a Board of Game that can’t see past next year’s moose hunt. On the evidence, Commissioner Campbell is not succeeding.

In the absence of adult supervision, the Board of Game is running amuck, killing any predator that might kill a moose. Never mind that there is no competent science to support this kind of game mismanagement.The Board of Game is seriously entertaining the use of bear snares, such an indiscriminate killing device that even former Governor Tony Knowles is outraged. There’s talk of aerial hunting of both black and brown bears. All this in the absence of any data that bear populations are elevated, or somehow suddenly constitute a greater risk to moose populations.

In the meantime, according to WC’s contacts at ADF&G, morale among the staff is at an all-time low. Sound principles of biology are being ignored; big game is being mis-managed for short-term gains.

The Alaska Constitution requires game be managed for sustainability. It doesn’t say, for example, “Moose, nothing but the moose, so help me, God.” The science is difficult enough without politics entering into it. And when the politically-appointed leadership at ADF&G can’t even obey the laws of Alaska, there’s little hope for predator species in Alaska.

The Lies We Tell Ourselves: The Myth of Upward Mobility

It’s a cherished belief: Americans who work hard can succeed and reach a higher point on the economic ladder than their parents. Anyone can be a Ben Franklin or a Henry Ford and rise from abject poverty to the very highest economic success. It’s a big part of America being “exceptional.” “Only in America, land of opportunity.” As Julia Issacs, of the Brookings Institution put it,

For most Americans, seeing that one’s children are better off than oneself is the essence of living the American Dream. Indeed, much of the American spirit is grounded in the belief that with determination and hard work, one can rise from humble beginnings and achieve a comfortable, middle-class life, if not great wealth.

In fact, among the wealthy countries, the United States has the lowest rates of upward mobility. One well-regarded German study found,

The main driver of the difference in the pattern of male intergenerational mobility in the U.S. from that of each of the other countries in our study is the low mobility out of the lowest quintile group in the United States. Indeed, it is very noticeable that while for all of the other countries persistence is particularly high in the upper tails of the distribution, in the U.S. this is reversed – with a particularly high likelihood that sons of the poorest fathers in the U.S. will remain in the lowest earnings quintile. We view this as a challenge to the popular notion of an “American exceptionalism” in economic mobility. Indeed, the combination of a high proba- bility of American sons of the poorest fifth of fathers remaining in the lowest quintile group, the lower probability of “rags-to-riches” (poorest to richest) and slightly lower probability of “riches-to-rags” (richest to poorest), places the notion of American exceptionalism in a new light. The U.S., or at least the population of young U.S. men, seems to be distinguished from other countries by having greater low-income persistence, rather than less, having fewer very large positional changes across generations, rather than more, and possibly having a greater persistence of high income, rather than less.

Congressional Budget Office data support the German conclusion:

Income inequality in the United States

If you are born poor in America, in the bottom 20% of the economy, the odds are heavily against your ever doing better. Partly that’s because the poor in America are in worse shape than the poor in other nations. Nutrition, health and educational opportunities are all lower. At the physiological level, it’s not only hard to learn when you are hungry; it’s impossible to learn if you are malnourished. The extraordinarily high incarceration rates among the poor, usually resulting in single parent households, further contributes to the problem.

As Paul Krugman put it,

Think about it: someone who really wanted equal opportunity would be very concerned about the inequality of our current system. He would support more nutritional aid for low-income mothers-to-be and young children. He would try to improve the quality of public schools. He would support aid to low-income college students. And he would support what every other advanced country has, a universal health care system, so that nobody need worry about untreated illness or crushing medical bills.

Mitt Romney doesn’t support any of these solutions. He thinks we should discuss class inequality, if at all, in “quiet rooms.” None of declining number of Non-Mitts support these things; most are vehemently against them. Ron Paul positively froths at the mouth at the idea. Congress, composed mostly the top 20%, seems much more interested in looking after their kids than looking after America’s kids. So the gap between rich and poor will continue to widen.

Martin Luther King, whose day this is, utterly rejected the idea of discussions in quiet rooms. That was where racial inequality was discussed – and preserved – for decades. When a Republican tells you we can’t afford school lunch programs, or can’t afford better schools, or can’t afford health care? They’re telling you we can’t afford the American Dream. When a billionaire like Mitt Romney tells you that it is inflammatory or class warfare to discuss the issue in public, he is repudiating the American Dream. President Obama, if re-elected, cannot by himself restore the goal of equal opportunity. Especially with the current Congress. But the odds are immensely higher than with a newly-elected plutocrat like Romney.

Small, Mean and Petty: Joe Miller’s Lawsuit

Failed U.S. Senate candidate and multiply-failed litigant Joe Miller is at it again. He continues to demonstrate he is unfit for any office, let alone any position of public trust. He is vigorously prosecuting his lawsuit against the Fairbanks North Star Borough and former Mayor Jim Whitaker. He remains furious that evidence of his criminal activities while employed at the Borough leaked out. His campaign for the U.S. Senate was premised on hiding the truth from the voters. His lawsuit is kind of weird inversion of a slander claim: he’s suing because someone told the truth, rather than lying about him.

Readers will recall that Miller tried to hide his crimes behind a claim that the Borough’s employment records were confidential. One of the lawsuits Miller has has lost determined that the public interest outweighed any claim to privacy. Judge Winston Burbank ordered that the Borough records be made public. So Miller’s beef is that someone at the Borough leaked his personnel file early, before Judge Burbank ordered that it be made public. He can’t argue it shouldn’t be public. He can’t argue that they are properly of public interest. He can only argue that it shouldn’t have been public so soon. His crimes shouldn’t have been outed so early. Someone at the Borough, Miller is claiming, should pay for reporting that Miller had committed crimes and was lying about it.

Now normally WC supports the general idea of enriching lawyers, and a glance at the docket for this turkey will demonstrate riches are being spent. But there’s a point where even the most jaded lawyer has to ask what this is really about.

WC has been involved in the legal system for more than three decades. But this is the stupidest, most bone-headed, self-destructive lawsuit WC has encountered. What is Miller’s motivation? Cripes, what is his upside? This is delusional behavior. If nothing else, Miller is violating Jack Coghill‘s Second Rule of Politics: “When you find you are in a hole, stop digging.”

Nor will WC bother to debate these issues with Miller or his supporters. That would violate Jack Coghill’s First Rule of Politics: “Never get in a pissing contest with a skunk.”

The Real Problems With Romney: The Lies

Presidential Wannabe Mitt Romney famously said, “I like being able to fire people.” And it is perfectly clear that the quote was taken out of context:

I want individuals to have their own insurance. That means the insurance company will have an incentive to keep people healthy. It also means if you don’t like what they do, you can fire them. I like being able to fire people who provide services to me. If someone doesn’t give me the good service I need, I’m going to go get somebody else to provide that service to me.

But if the media would look a little more closely at Romney’s comment, they’d see an unholy mix of lies, deception and half-truths in the full quote. As well as a glimpse to Romney’s mind-set at this point in the campaign. WC will undertake his own examination.

1. Romney seems to be implying that the Affordable Care Act prevents people from firing their insurer. That’s simply untrue. Romney, of all people, knows it is untrue because the Affordable Care Act is based on the Massachusetts health care plan, which was supported and signed into law by Romney. There are lots of reasons why a prudent patient might not want to fire their insurer; some of them are discussed below. But Romney is intentionally misleading voters, and he knows he is.
   

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2. Romney seems to also be implying that individuals don’t get their own insurance under the Affordable Care Act. For better or worse, a sole-provder system was never seriously considered. The Affordable Care Act specifically preserves the right of an individual to shop for insurance. Again, this is the Massachusetts plan, the plan Romney sponsored; the plan Romney signed into law. He absolutely knows the Affordable Care Act doesn’t impair patient choice. He’s lying again.
   

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3. Romney implies that the insurance market has no restrictions on entry; that is, that a patient can change insurers without running into financial or other barriers. That might be true if your income if $26 million a year. But if you have a pre-existing condition, you don’t date fire your insurer, because, until the Affordable Care Act, you wouldn’t be able to find another insurer to provide you with coverage. Let’s suppose you’ve been diagnosed with cancer and the insurer you have is screwing you around. Can you “fire” your insurer and “get somebody else to provide that service to me”? Not a chance. No insurer is going to touch you with a barge pole. Sure, if you offer them enough money they might condescend to insure you. But most of us don’t have that kind of money. Romney knows all this. But it serves his purpose to pretend it doesn’t exist; it serves his purposes to lie.
   

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4. Many of us – about 45% – as far as WC can tell – get our health insurance through our employer. We have little or no choice in who our employer  selects as our insurer. The only way we employees can “fire our insurer” is by quitting our jobs. Of course, Mitt Romney is famously unemployed, and the poor boy has to make do with annual installment payments of $26 million from Bain Capital. Mitt knows  employers select insurers, not employees. It’s deeply disingenuous, at best, for him to imply otherwise.
   

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5. Romney seems to believe that all insurance markets have as many health insurers as, say, Massachusetts. There are states with smaller populations where there are only a very few insurers. Like Alaska, where Premera/Blue Cross completely dominates the market. You can’t fire Blue Cross, because there is no one else. Sure, you can “fire” Blue Cross, but that’s a false choice because effectively there is no one else. And the Republicans’ claims that state regulators impose barriers to market entry is again, untrue. If there was money to be made, the insurers would be here. And if the Republicans are claiming that the health insurance industry needs less regulation and not more, they are dangerously delusional. And have never had to deal with an Explanation of Benefits, or, as WC prefers, a Nonexplanation of Nonpayment of No Benefits.

So when you really examine that statement giving rise to the quasi-gaffe, it turns out to be more troubling that the quasi-gaffe itself. There’s a conscious , intentional pattern of deception.

And WC won’t even go down the path of quotes taken out of context, or mention an infamous instance of Romney taking President Obama’s words out of context.

And if they’ll lie to you now, how can you trust them if they get elected?

The Real Problems with Romney: Bain Capital

Lately Republican Presidential Wannabe Mitt Romney has been trumpeting all of the jobs he created through his 15 year association with Bain Capital. It’s one of those claims that triggers a “Huh?” reaction from anyone who understands leveraged buy-outs and the track record of LBOs over the last 25 years. Some of Romney’s running mates have produced some amazingly anti-capitalism advertisements in response to Romney’s claims. After all, this is the stuff that led to classics like Barbarians at the Gates, Connie Bruck’s The Predators Ball and James Stewart’s Den of Thieves. They are stories of some of the truly reprehensible instances of capitalism and cronyism run amuck. These are Romney’s buddies.

But still, Romney’s claim to have created “tens of thousands of jobs” through his association with Bain Capital is worth closer examination.

WC will open with a reality check: Bain Capital didn’t “create” any jobs. At the very best, as a venture capital outfit it provided some of the startup capital to entrepreneurs that those entrepreneurs used to build companies that “created” jobs. Of course, in the case of Romney-funded start ups like Staples, the office products chain, the jobs were “created” by out-competing thousands of existing small, mom and pop office supply stores, and replacing those entrepreneurs with minimum wages clerks at Staples. So only in the very loosest sense of the word, yeah, Bain’s venture capital operations “created” jobs.

But Bain Capital’s primary business wasn’t venture capitalism; it was leveraged buy-outs, LBOs. And no matter how frantically you spin it, LBOs don’t create jobs. They kill jobs. Some background.

Outfits like Bain Capital will tell you they look for “underperforming” companies, buy them, make them more “efficient,” and then sell them. That’s  a dizzying spin on a much dirtier business.

What the Bain Capitals of the world look for is a company whose assets are largely debt-free, with a shareholder base who are likely to sell. Bain Capital then acquires a block of shares in the company, and then offers to buy the majority of the remaining shares at 1.5 – 4 times the current price. But they don’t spend Bain Capital’s money to buy those shares; instead, they borrow money and secure the loans in those unencumbered assets of the target company. That’s the “leveraged” in LBO. They spend the target company’s equity, its net worth, to buy the company.

So when the dust settles, Bain Capital owns or controls a majority of the shares in the target company. The target company, which once had a strong balance sheet, now has immense debt obligations. To make the target profitable again, expenses have to be reduced. Labor is the biggest, easiest target. Either directly, in the form of cutting employees, or indirectly by reducing salaries and benefits. Usually, both. Because cash is in short supply – all of that debt has to be paid – management, Bain Capital and its Romneys, are paid in shares in the target company.

And then, as quickly as possible, what’s left of the target company is sold. Bain Capital makes money on the sale of its shares, mostly on the ones that it received as compensation. Remember, Bain doesn’t have much invested; it borrowed the money used for the purchase, not on its credit, but on the target company’s, secured in the target’s assets. Most of the money Bain gets for its shares is profit. And the target company struggles to survive with the vastly altered balance sheet, significant debt service and a greatly reduced work force.

Vanity Fair reports that 38% of Bain Capital’s targeted LBOs went into bankruptcy. That doesn’t mean Bain Capital lost money on the deal; even in liquidation, LBOs pencil out pretty well for the predators like Bain. For those companies, Bain killed ALL of the jobs. For the “successful” deals, Bain only kills some of the jobs.

Careful readers will have noticed there were no jobs created in the LBO process. Zero. None. Exactly the opposite. Jobs are destroyed. And to a large extent, jobs paying a decent wage are replaced with much lower-paying jobs. Bain added no value to the target company. It simply turned balance sheet equity into huge dividends for Bain, at the expense of the target’s financial stability. According to the New York Post,

Romney’s private equity firm, Bain Capital, bought companies and often increased short-term earnings so those businesses could then borrow enormous amounts of money. That borrowed money was used to pay Bain dividends. Then those businesses needed to maintain that high level of earnings to pay their debts…

* Bain in 1988 put $5 million down to buy Stage Stores, and in the mid-’90s took it public, collecting $100 million from stock offerings. Stage filed for bankruptcy in 2000.

* Bain in 1992 bought American Pad & Paper (AMPAD), investing $5 million, and collected $100 million from dividends. The business filed for bankruptcy in 2000.

* Bain in 1993 invested $60 million when buying GS Industries, and received $65 million from dividends. GS filed for bankruptcy in 2001.

* Bain in 1997 invested $46 million when buying Details, and made $93 million from stock offerings. The company filed for bankruptcy in 2003.

Romney’s Bain invested 22 percent of the money it raised from 1987-95 in these five businesses, making a $578 million profit.

WC is a birder, so let’s put this in terms of birds and birding. Vultures are carrion-eaters. They are equipped by evolution and nature with quite good tools to eat dead and dying critters. It’s a useful niche. But WC wouldn’t expect to hear the vultures, eating a rotting carcass, boast about improving the species upon which they are dining. Or claim to be creating anything, except more vultures.

But this is politics, and mighty dirty politics. It’s unfair of WC to use real vultures to draw a comparison.

Book Review: The Magic of Reality

The Magic of Reality

The Magic of Reality, Richard Dawkins (Ill. by Dave McKean), ISBN 978-1-4391-9281-8

Richard Dawkins is one of the world’s best known evolutionary biologists. He is also one of the great popularizers of science, especially biology, and has made an international reputation as a tireless advocate of evolution and atheism. It’s safe to say he is a creationist’s nightmare: intelligent, informed and articulate, and a fearsome debater. Too often, reviews of his books turn into ad hominem attacks on Dawkins.

But in The Magic of Reality [Amazon link] he strikes a more conciliatory note, only indirectly confronting religion. Instead, Dawkins describes a series of myths from a wide array of cultures, and then offers the scientific explanation as a counterpoint. Dave McKean’s illustrations are always insightful in support of Dawkins’ writing, and sometimes simply brilliant. An example is the discussion of earthquakes. Dawkins discusses the myths – including the Biblical claim that trumpets shook down the walls of Jericho – about the origins of earthquakes. The Japanese thought that the world rode on the back of a gigantic catfish called Namazu, and when Namazu flipped his tail, there were earthquakes. The Maoris thought the earth was pregnant, and earthquakes were her the baby’s kicking. Dawkins then talks about what earthquakes really are, discussing plate tectonics and why plate movement causes ‘quakes. Dawkins marshals the scientific evidence. The contrast between the silly myths and the logical science is strong, effective and persuasive.

Using the same technique, Dawkins demolishes myths that purport to explain the diversity of life, the sun, rainbows, origin of species and miracles. McKean’s drawings, especially his drawings to illustrate the myths, are spot-on and add a lot to the pleasure of the book. It’s a nice collaboration.

WC’s only criticism of the book is to ask, who is the intended audience? It’s not precisely a children’s book, although a bright kid would appreciate it. It’s not really aimed at adults, although the concepts are challenging enough. It doesn’t seem likely to change anyone’s mind, except in the unlikely event they approach the book with an open mind. But as a tool for contrasting the supernatural magic of mythology with the magical delight of discovery, the book is unsurpassed.

Recommended.

Alaska’s Endangered Species: Spectacled Eiders

As late as 1995, no one knew where Spectacled Eiders wintered. Despite alarming declines in the Alaska populations, and considerable research, no one really knew where they went. In the summer of 1995, a few Alaska birds were fitted with satellite tracking transmitters. Telemetry from monitoring satellites showed the birds were in the frozen Bering Sea, south of St. Lawrence Island. A plane was dispatched with a couple of biologists to try and find out what was going on. What they found was something like this:

Wintering Spectacled Eiders, photo by Bill Larned, March 2009

Each of those brown dots is a Spectacled Eider. The entire world population of this species winters in a few adjoining polynyas, open leads in the Bering Sea pack ice, south of St. Lawrence Island. If you think all of the wonder is gone from the world, imagine seeing this incredible density of birds for the first time…

Most Spectacled Eiders breed in the Russian Far east, but 10-15% of the species breeds in Alaska, in two areas: the North Slope and the Yukon-Kuskokwim River Delta.

WC was lucky enough to see this species in the Yukon Delta National Wildlife Refuge.

Spectacled Eider Pairs

Spectacled Eiders are an endangered species, classified as “Threatened” under the Endangered Species Act. North American populations are about 10% of what they were in the early 1960s. The cause of the population isn’t clearly known, although lead poisoning from lead shot used by hunters is a contributing cause.

Spectacled Edier Drake

WC found them very hard to approach, even with a slow, patient stalk. It may be that they have been hunted so recently that they still have that wariness of hunted birds. Overall, that’s good. Frustrating for an avian photographer, but in the best interests of the species.

The bigger concerns for this species are that we don’t know what is depressing the population, and the effect of global warming on their winter prey is completely unknown. There are too many unknowns; the future of Spectacled Eiders is clouded. But WC has hopes that this species undeniable charisma will help save it.

Critical Moments in American Law: U.S. v. Shipp

The U.S. Supreme Court is America’s final arbiter of difficult issues. Sometimes the court gets it wrong (Plessy v. Ferguson, Dred Scott), but there are also times the court gets it right. This is one of the latter.

Sheriff Joseph F. Shipp

In 1906, two black lawyers appealed a death case to the U.S. Supreme Court. The facts were appalling; the defendant, Ed Johnson, a black, was sentenced to be hung for a crime he simply did not commit. The trial took place under threat of a lynching. The evidence of guilt was laughable. Johnson was guilty only of being a black man in Chattanooga, TN when someone had raped a white woman. Justice Harlan (a remarkable man in his own right) stayed the execution, a decision later affirmed by the full court.

A Chattanooga lynch mob took the law into its own hands. With the unspoken cooperation of County Sheriff Joe Shipp and his deputies, the mob broke into the county jail, beat and then lynched Johnson. There were at least 62 lynchings of black men in the United States in 1906. What made this one different was that it was done in defiance of an order of the U.S. Supreme Court.

The U.S. Supreme Court, for the first and only time in its history, conducted a trial for the criminal contempt of the Sheriff, several of his deputies and leaders of the mob. And found most of them guilty. In making the determination, the court not only had to judge the guilt or innocence of the defendants; it had to determine if it had jurisdiction of the defendants. Specifically, it had to decide if the 14th Amendment to the U.S. Constitution extended the Bill of Rights to criminal defendants.

Today, we take it for granted that a defendant has the right to remain silent, the right to the effective assistance of counsel, the right to trial before an impartial jury, in a state court proceeding. Today, we take it for granted that a defendant, unhappy about his treatment in state court, can appeal to the U.S. Supreme Court. Shipp is the case where those rights first arose.

There’s a remarkable book on this little-known story. Mark Curriden and Leroy Phillips, Jr., Contempt of Court: The Turn-of-the-Century Lynching that Launched a Hundred Years of Federalism (Faber & Faber, 1999) [Amazon link]. Superbly researched, well-written and a compelling read. WC strongly recommends it. It’s an unflinching look at an ugly time and place in America. And a meticulous discussion of the influences that long-ago event had on our country.

Lynching as a tool of Jim Crow intimidation of blacks began its long, agaonizingly slow decline following the court’s decision in Shipp. If there is a bright spot in the sordid legal history of Jim Crow and “separate but equal” between Plessy v. Ferguson and Brown v. Board of Education of Topeka, it is Shipp.