June 29, 2011

Eesh: PPP Poll Says Perry Ain't So Great, Either
— Ace

Then again, it's PPP, and it's one poll. I'd like to see someone else confirm this hard-to-believe finding, that Obama wins Texas (yeah) over Texas' governor.

Posted by: Ace at 11:23 AM | Comments (136)
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Sixth Circuit: Why, Of Course The Constitution Authorizes The Government To Compel You To Buy Things You Don't Want; It's Right There In Article [Inaudible] Clause [Inaudible]
— Ace

Let's look at the dissent first. Remember, dissent. This position lost.

As it obviously should have. It's so poorly grounded!

If the exercise of power is allowed and the mandate upheld, it is difficult to see what the limits on Congress’s Commerce Clause authority would be. What aspect of human activity would escape federal power? The ultimate issue in this case is this: Does the notion of federalism still have vitality? To approve the exercise of power would arm Congress with the authority to force individuals to do whatever it sees fit (within boundaries like the First Amendment and Due Process Clause), as long as the regulation concerns an activity or decision that, when aggregated, can be said to have some loose, but-for type of economic connection, which nearly all human activity does. See Lopez, 514 U.S. at 565 (“[D]epending on the level of generality, any activity can be looked upon as commercial.”). Such a power feels very much like the general police power that the Tenth Amendment reserves to the States and the people. A structural shift of that magnitude can be accomplished legitimately only through constitutional amendment.

Poppycock and crazytalk, obviously.

Let's look at the holding of the court, excerpted at Hot Air.

Congress had a rational basis for concluding that, in the aggregate, the practice of self-insuring for the cost of health care substantially affects interstate commerce. Furthermore, Congress had a rational basis for concluding that the minimum coverage provision is essential to the Affordable Care Act’s larger reforms to the national markets in health care delivery and health insurance. Finally, the provision regulates active
participation in the health care market, and in any case, the Constitution imposes no categorical bar on regulating inactivity. Thus, the minimum coverage provision is a valid exercise of Congress’s authority under the Commerce Clause, and the decision of the district court is AFFIRMED.

There's more there. That's just the actual conclusion.

Before the 11th Circuit, a lawyer representing the states suing to rubbish ObamaCare made a good point.

Obama and, it seems, many courts, would like to pretend that while the Constitution generally speaks of enumerated and limited powers -- all other powers, such a the police power, reserved for the people and the states -- that the Commerce Clause generally is a "Take-Back" clause that essentially calls bullshit on everything else in the Constitution.

That is, everything else in the Constitution is about establishing particular powers of the federal government, and, expressly, reserving those not named (or "necessary and proper" to undertake a named power) to the states.

But this new claim is that really there is only one clause that matters in the Constitution, and that is the Commerce Clause, and this one brief clause renders all 4400 other words in the Constitution null and void, because the Commerce Clause says, it is contended, that the federal government may do anything so long as, in the aggregate, it "affects interstate commerce," which, as is often pointed out, applies to everything.

Having sex with your wife? This affects interstate commerce, as you might wind up creating the ultimate economic effect -- a child; a future one-man army of economic activity, labor, investment, and consumption -- and even if you don't, your choice to have sex is a choice not to sample the fruits of interstate commerce, which is affected, then, by your choice to not enter the stream of paid entertainments.

Can we mandate that people have more children? Seems to me we could fix some of the demographic problems with SS and MediCare if only people had more children.

Oh, it's probably much too late for that; but could we have mandated this 20 years ago? Probably, this new ruling says.

At any rate, the anti-ObamaCare lawyer had a simple question:

If the framers of the Constitution meant for this one clause to have such omnipotent power, trumping everything else, establishing well-nigh plenary power of the federal government over every aspect of human existence --

Why did no one seem to think it necessary to add even the most gentle limitation on such a far-reaching power?

In other words, if this Clause means what it is, apparently straight-faced, contended to mean, and therefore is the only real clause in the Constitution at all -- why did no one think to elaborate upon it?

Why all that wasted time on Amendments and specific powers of Congress, the President, and the Courts, when the only real grant of power in the Constitution is the Commerce Clause?

Answers? Take your choice:

1. Because the Founders wanted to disguise an unlimited grant of power to the federal government in a six or seven word clause and so hid Supreme Unchecked Federal Power amid a 4400 word smoke-and-mirrors deception.

2. Um, they never intended it to mean anything like this, but only what it was taken to mean for 150 years, that is, as federal rules-making regarding tariffs and other state-created impediments to unfettered trade of goods across state boundaries.

Your choice.

You know what the Brain Trust at Time Magazine thinks.

Posted by: Ace at 10:24 AM | Comments (224)
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Imagine There's No Double-Taxation of Corporate Income: John Lennon Swung Right Late In Life?
— rdbrewer

Closet conservative and Reagan fan?

John Lennon was a closet Republican, who felt a little embarrassed by his former radicalism, at the time of his death - according to the tragic Beatles star's last personal assistant.

Fred Seaman worked alongside the music legend from 1979 to Lennon's death at the end of 1980 and he reveals the star was a Ronald Reagan fan who enjoyed arguing with left-wing radicals who reminded him of his former self.

In new documentary Beatles Stories, Seaman tells filmmaker Seth Swirsky Lennon wasn't the peace-loving militant fans thought he was while he was his assistant.

Interesting. As much as I've heard and read about Lennon's life, I don't recall anything from the late 70's. I was just a kid, but it seemed like he was out of the high-profile, professional radical business by then. On the other hand, being a Republican at that time would have been the radical thing, especially in his social circle.
more...

Posted by: rdbrewer at 08:35 AM | Comments (240)
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Honest Question, Seeking Answers
— Ace

I've been wondering about this, but before I write a post postulating "This is what I think is going on," I thought I'd ask for input.

Because it doesn't matter to Andrew Breitbart what I say, after all. He skips to the comments.

Here's the question, with a preamble. There is a lot of anger at the Establishment, and, as a first matter then, at the idea of credentialism.

I've attacked the idea of credentialism myself. But I think there are two different strains of anti-credentialism, which I'll term Weak Form and Strong Form.

The Weak Form of the anti-credentialist impulse says that just because you have relevant training or experience, or some degree, doesn't necessarily mean anything. Perhaps you know what you're talking about. Perhaps you don't. But the credentials you carry are but most weak circumstantial evidence that you know what you're talking about.

The Strong Form of the anti-credentialist impulse says that typical credentials are not only not necessarily evidence of competency, but in fact positive evidence against competency. That is, where the Weak Form would say a credential is at most weak evidence you're the right sort of person for a task, the Strong Form would call it evidence, but in the opposite direction, that your credential makes it less likely that you are qualified for the task.

I'm curious about this because things I've generally considered good credentials for high executive office -- such as experience in high executive office on the state level -- seem to not only be largely diminshed in terms of relevancy, but almost taken as relevant in the wrong sort of way, that is, as affirmative evidence of the taint of corruption and Establishmentitis and the rest of it.

Is this the current tension in the Republican Party? Between Weak Form anti-credentialists and Strong Form anti-credentialists?

Note this implicates an almost exactly parallel argument about "elitism," as credentialism and elitism are inextricably intertwined.

Posted by: Ace at 07:36 AM | Comments (682)
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Review of "Undefeated," Plus Video of Palin Addressing Crowd At Premiere
— Ace

Seems to be a Palin supporter, but that's the target audience, of course.

"The movie's not about me. It's about America's values."

Couple of quotes that leave her decision, as ever, up in the air:

"We're gonna go down fighting!"

Suggests a run.

But, on the other hand, she immediately says "You don't need a title, or a position, to make a difference."

Suggests continued agitation as a private citizen.


And not putting this up to bait, but just because it doesn't deserve it's own post-- Perry narrowly leads field of Romney, Bachmann, and Palin among Tea Partiers.

But I wonder what the numbers would be if Palin weren't included -- would most of her support go to Bachmann?

more...

Posted by: Ace at 07:05 AM | Comments (128)
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Obama Press Conference
— DrewM

Topics that might be covered:

-Afghanistan

-How much Republicans want to kill old people

-Debt negotiation

-How much Republicans want to kick children out of schools and force them into working in mines

-Unemployment

-Bush and his responsibility for all that is wrong in America

-Repeated demands that people unnamed allow him to be clear for God's sake

Just guessing, that's all.

This was supposed to start at 11:30 EDT but it's now 11:37 and no sign of Obama.

Posted by: DrewM at 06:26 AM | Comments (474)
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Gallup Poll: Vast Majority Of Americans Favor Obama's Afghanistan Withdrawal Plan
— DrewM

Via Allah.

72% of all adults (not registered voters) and that includes 50% of self-identified Republicans.

That 72% number is for the entire plan but the second questions they ask, "What is your view of withdrawing 30,000 U.S. troops from Afghanistan over the next 15 months -- do you think that number is too high, about right, or too low?"

The overall "about right" number was 43%, (57% for Democrats, 40% for Independents and only 35% for Republicans). 19% think it's too high and 29% say too low

(Update: As Allah pointed out to me on Twitter, the 29% want a faster pull out than the 20K next year so that gets you back to the 72% for question 1.)

Well, that 30,000 number is part of the overall number that 72% were pretty excited about in question 1.

Clearly Americans are looking for a way out of Afghanistan and are happy to see the process start but still seem unready to simply walk away (which, even with Obama's hyper accelerated drawdown plan, isn't on the table.).

The real question is, where will people be in a year when the drawdown is being highlighted by Obama as part of his reelection campaign? If I had to bet, I'd guess the 20k number will be more popular. Either the situation will be stable which will make people think it's ok to keep pulling out or it will be a mess and people will want to wash their hands of it. That's probably Obama's political calculation, either way his pullback is popular.

Meanwhile back in Kaubl, the attack on the Intercontinental Hotel killed at least 9 people.

Posted by: DrewM at 05:20 AM | Comments (141)
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Legacy Media Sings Huntsman's Praises; His Favorability Plummets Among GOP Voters
— Gabriel Malor

Last week, the MBM went crazy with stories about how Jon Huntsman would be an ideal candidate to run against Obama. Could it be that the full-court press on Huntsman's behalf actually backfired among Republican voters? Looks like it:

Although former Utah Gov. and former Ambassador to China Huntsman received considerable news coverage last week with the formal announcement of his candidacy, his image among Republicans is getting worse, not better. . . . More significantly, Huntsman's Positive Intensity Score is down to 2 from 5 a week ago. Earlier this year it had been as high as 15.

It's almost as if Republicans aren't buying the shit the media is shoveling.

Gallup notes that, excepting Michele Bachmann and Herman Cain, the other declared candidates (Gingrich, Pawlenty, Paul, Johnson) have also seen drops in support since they got in the race. Their drops took much longer to accomplish, though, and did not include a week's worth of puff-pieces from the legacy media.

Posted by: Gabriel Malor at 02:23 AM | Comments (198)
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Top Headline Comments 6-29-11
— Gabriel Malor

The wrong of unshapely things is a wrong too great to be told.

Posted by: Gabriel Malor at 01:51 AM | Comments (156)
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June 28, 2011

Overnight Open Thread
— Ace

Hmm. I don't know what I'm doing. This looks so easy when Maet and CDMR CDR M [Smart Military Blog™ edit] do it.

So, I'm pimping Doctor Who lately. I hear this video a David Tenant parodying actors is pretty funny.

Old and Busted: Trashy iPhone Mirror Pictures
New Hotness: Trashy iPad Mirror Pictures

1, due to budget cut-backs, zoos are pressed for money.

2, people like to have sex, except they get bored of sex, and then need to have sex in odd places.

Conclusion: Zoos should allow sleepover guests so people can have sex next to the tigers.

Chick performs Cee-Lo's "F*** you" in sign language, with a cute little dance. more...

Posted by: Ace at 04:47 PM | Comments (793)
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Obama Claimed His Aggressive Withdrawal Strategy Was One of Several Options Presented to Him By The Military; General Allen Says "No, It Was Not"
— Ace

But watch the media continue debating Winterset vs. Waterloo as John Wayne's birthplace.

So, Obama is fighting one illegal war (claiming that bombing a foreign country does not constitute "hostilities," and rejecting his AG's advice that "Oh yes it does") and so he's also lying about having his "plan" presented to him by the military brass, when in fact it was cooked up by he himself or his political strategy people.

The important thing is Paul Revere's ride and John Wayne's birthplace.

n response to questioning from Senator Lindsey Graham (R-SC), Allen testified that Obama’s decision on the pace and size of Afghanistan withdrawals was “a more aggressive option than that which was presented.”

Graham pressed him. “My question is: Was that a option?”

Allen: “It was not.”

Allen’s claim, which came under oath, contradicts the line the White House had been providing reporters over the past week—that Obama simply chose one option among several presented by General David Petraeus. In a conference call last Wednesday, June 22, a reporter asked senior Obama administration officials about those options. “Did General Petraeus specifically endorse this plan, or was it one of the options that General Petraeus gave to the president?”

The senior administration official twice claimed that the Obama decision was within the range of options the military presented to Obama.

Posted by: Ace at 04:30 PM | Comments (140)
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A Toshiba Commercial
— CAC

That burned up my TiVo today: more...

Posted by: CAC at 02:46 PM | Comments (340)
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No Flippin' Way: SEALs Who Capped UBL May Have Been Fitted With... I Can't Believe I'm About To Write This... Night Vision Contact Lenses?!?!
— Ace

For the record, no, I do not buy this.

But I also have to post it, don't I?

There is no way this could be a light-amplification technology. You'd need a battery, and you couldn't fit a battery into a lens, obviously, The only way to power such tech would be some kind of bio-energetic power, who knows, consuming the body's own sugar/ATP to power the system (far-fetched) or broadcast power (also far-fetched).

But even assuming you could power the thing, you'd have, by physical necessity, a great deal of heat as a waste product, and no one wants Hot Eyeballs Syndrome. You can't use the cornea as your heat sink.

There is some possibility that some kind of lens could force the eye open, or irritate/stimulate the eye with a protein to cause the iris to open wider than normal and hence pull in more visible light than typically possible, I guess.

I guess that's possible. (Possible and eye doctors do it to you every visit. But if your eye were doped to be hyper-sensitive to low light levels, aren't you in danger of being blinded/light-dazed by your own gun flashes?)

But I don't buy this "Night Vision Lens" stuff.

Still, gotta link it.

Thanks to JonathanE.

Powered by Blinking? So, here's the power-source work-around, it's claimed. A "rare earth metal" in gel form is applied to the eyelid, which creates a magnetic field, and the lens in the eye is presumably magnetized, and then the natural blinking of the eyelid disturbs that magnetic field, which in turn drives electrons (I suppose) and anything that drives electrons is a potential power source.

Eh... sure, I guess.

I like this more for a movie than real life.


Posted by: Ace at 01:29 PM | Comments (201)
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Leahy Extorts Three Obama Nominees For Payment For Doing His Job; ATF Head Melson Will Testify
— Ace

The good news: He'll testify.

The bad news: Leahy is agreeing that he should testify (after extorting a political concession from Charles Grassley), so Leahy probably thinks it's already been fixed.

We'll see.

Don't get your hopes up too high because Leahy wouldn't agree to this if it was going to wipe out Eric Holder.

But...

As head of the agency that conducted the controversial sting, Melson has faced calls for his resignation. But in private conversations with congressional investigators in recent days, Melson has indicated he does not believe he did anything wrong because he carried out his bosses’ wishes and is eager to testify to describe the full picture, according to sources familiar with those conversations.

Bob Owens games out various outcomes of the testimony.

Of course eyes will be drawn to Scenario 3...

3. Breuer isn’t the highest link in the chain: Melson implicates Attorney General Eric Holder.

Chairman Issa states that AG Holder “absolutely” knew about Gunwalker earlier than he testified that he did, and if Issa has the evidence to prove that the attorney general is part of a cover-up, then there is every reason to suspect Holder will be forced to resign, or will face impeachment.

This is a far more likely scenario than many think.

Well, we'll see. Pat Leahy is many things, but he's not stupid.

Tell a lie, he is stupid. Okay, so he's stupid. But he probably has people who aren't stupid telling him what to do.

BTW: The ATF Fired the Whistleblower Here. Sure that's a coincidence.

The Obama Administration would never fire a whistleblower, because that's illegal.

Posted by: Ace at 12:35 PM | Comments (106)
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Oh My: Political "Press Tart" Explains Getting, Giving Jobs
— Ace

Ever wonder why we have the political class we do? Given that their surface capabilities are so obviously lacking?

Yeah, well, maybe there's stuff going on you don't see.

In related news, Ari Fleischer just emailed me to say "FIRST! In before Will Folks."

Update: Would You? A commenter pointed out that I really fell down on the job here by not linking a picture.

Well, here's one.

She shopped the book in 2009 under the working title, "My Burning Bush."

Subtle.

One of the things editors do is give titles to books. I think "Life of the Party" is an editor doing a decent job.

Here's another pic:

Eh. Glamour shots are extremely unreliable evidence. And it's meh anyway.

Of course, as George Carlin observed, one sentence which has never been spoken in the history of the universe is "Stop s***ing my d*** immediately or I will call the police."


Posted by: Ace at 12:03 PM | Comments (222)
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Massive Taliban Attack on Intercontinental Hotel in Kabul
— Ace

Breaking. A swarm of vermin laden with suicide vests.

Why target the hotel? Multiple possible reasons. One: As noted by CNN, there’s a presser scheduled there tomorrow to announce a handover of security duties from NATO to the Afghan army. Preempting that by running wild in the hotel carries symbolic value. Two: It’s a soft target in Kabul, Karzai’s stronghold, not a military outpost in some far-flung eastern or southern province. That’s a message to NATO commanders that the battlefield this year might be a lot bigger than they think. And three, obviously: They want to capitalize on Obama’s withdrawal announcement to show that not only haven’t they been defeated, they’re still strong enough to wreak havoc right under NATO’s nose in a supposedly heavily guarded tourist spot. Just as I’m writing this, NBC’s claiming that three attackers have blown themselves up; no word on where the other three are or how many people in the hotel are dead. Stand by for updates.

Also, the Intercontinental chain is a brand name. They like going after things with brand names.

Posted by: Ace at 11:23 AM | Comments (114)
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Bristol Palin: My Mom's Made Her Decision (Then, A Walkback: No, She Hasn't)
— Ace

Allah gets from context that he thinks Bristol is saying Sarah Palin has made up her mind to run for office.

He gets this from Bristol's statement that she's "absolutely" supportive of a run, plus, maybe more suggestive, that since the media would be talking (nastily) about the Palin's even if they lived in a cabin in remotest Alaska, they might as well do something good.

I don't take that as Allah does. It seems to me that Bristol could just be expressing her basic supportive stance towards her mother -- I will support my mom no matter what she decides, and sure, I'm willing to be go through the media nastiness if that's what mom's decided.

Although I do think that bit about might-as-well-do-something-good-if-we're-going-to-be-treated-this-way-anyway puts the weight more on the "Run" side of the scale.

Posted by: Ace at 11:08 AM | Comments (244)
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Tina Brown's Pretty Sure She Knows How To Make Newsweek Relevant and Respected
— Ace

Mickey Kaus had a little neeneeneenee psychic vibe about Tina Brown's Newsweek:

Tina Brown’s Newsweek has a bold new business plan for reining in losses from publishing: Stop! It will skip four issues this summer. Only 48 more to go. … Why does this approach remind my of Bob Newhart’s theraputic technique … Newsweek, however, promised readers they will get an actual magazine “each and every time there is a royal wedding.” …

Hm, an actual magazine each and every time there is a royal wedding?

Well, geeze, those don't come up very often.

What about royal birthdays? What about catching up with the most popular royal of all? And seeing what she's up to, what charities she's involved in, what celebrities she might be twittering to?

Well that could be interesting.

And if the popular royal in question has been dead for ten years, no problem, we'll just do a ghouish "But maybe if she were... a zombie?" Marvel Comics What If episode.

In honor of Princess Diana’s would-be 50th birthday (if not for, you know, her death) Tina Brown wrote an article called, “Diana at 50: Chilling with the Middletons. Tweeting from Davos. And still the people’s princess. If not for that tragic night, what her life might look like now.” And yeah, that about sums it up.

...

For me, the pictures are what makes the article the creepiest. Almost every news outlet that covered the royal wedding posed the inevitable “what would it be like if Diana were here” question. But they didn’t create a hologram of her to include her in the proceedings. The cover image of Diana and Kate Middleton really is impressive photoshopping, but I almost expect Diana to have white zombie-esque eyes.

Similarly, photos of her with an iPhone are borderline disturbing. You can almost imagine the Newsweek people contemplating whether they should try to digitally age her to make the article more real. Oh, but according to Brown, Diana would have kept herself up: “Fashionwise, Diana would have gone the J.Crew and Galliano route à la Michelle Obama, always knowing how to mix the casual with the glam. There is no doubt she would have kept her chin taut with strategic Botox shots and her bare arms buff from the gym.”

That’s probably the worst part of the article, which generally speculates the direction Diana’s life would have headed in if not for the car crash. Brown thinks that Diana would have married again twice, that she would have continued her charity work and that she would have whole heartedly embraced the Middletons, although she would have been just a little bit jealous of Kate.

Tina Brown is generally created as some kind of magazine superstar. Why, she revitalized the moribund New Yorker.

Yeah, and since then, what's the score? I seem to hear about a lot of Tina Brown magazines (Talk) and TV shows (Topic A) debuting.

How can she keep debuting new things and keep on taking on new editor-in-chief positions when she's got all these other projects which are big money-makers?

Oh right, they're not, they all failed.

And Newsweek, which had been a laughingstock, is now an even worse laughingstock.

By the way, check out Kaus' disclosure of a conflict of interest in making fun of Newsweek, here.

Posted by: Ace at 10:44 AM | Comments (99)
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Time Like Totally Explains the Constitution To You Wingnutz (and Commits 13 Factual Errors In Doing So)
— Ace

I wrote about Time's embarrassing "Let us smartie-smarts explain the Constitution to you dum-dums" earlier. But I criticized it broadly, on basic misunderstanding of the document, focusing on the first four paragraphs, and I did so for three reasons:

1. I could see the basic broad-stroke error the writer was making in just the first four paragraphs.

2. Ummm... I only actually read the first four paragraphs.

3. Life is too short for stupid.

See, what I thought is that this guy was going to launch into the Standard Liberal Law Professor claim about a "living document." That's, what's the right word?, completely made up, but at least it was made up 30 years ago, so this bit of bullshit is at least graced by the decades.

How wrong I was.

Aaron Worthing did not stop there, and kept reading, discovered to his horror/to his humor (related emotions, those), that this guy, who was apparently the head of the National Constitution Center for a couple of years, knew practically nothing at all about the Constitution.

The more he read, the more flagrant errors he found. Not even the broad-strokes difference in idea about interpretation I went on about -- No, he found this "Richard Stengel" simply making errors, factual errors, about what the document says and the history of its writing, left and right.

Again: Not differences of opinion. Errors of fact.

Aaron Worthing collects up now these thirteen factual errors, and wants your help in securing a retraction/correction.

But Time can't retract. Their whole authority rests upon the claim that they are smarter than other people. If they retracted an entire article, by a credentialed head of the National Constitution Center, as entirely wrong in almost every claim it made, they'd look, what's the word?, pretty stupid and uneducated.

But you can still try.

Here's Richard Stengel, former head of the National Constitution Center, explaining federalism and limited powers of the federal government to you wingnuts.

No, I'm not making this up. This is the beginning of the Comedy of Errors/Social Horror of Ignorance.

If the Constitution was intended to limit the federal government, it sure doesn’t say so.

Interesting.

Yeah. Yeah. Okay. Okay.

I'm not sure where you're goin' with this, but I sure want to join you on this crazy ride. Sounds excitin'.

Why Is The Media So Dumb? I don't know. I gotta tell ya, a lot of mediocre minds are attracted to it, because the mental effort for media-work is so low.

I actually exclude the creative side of the media from this -- they may be dumb, but top-flight talent on that side has crushed a huge, huge pile of competition to get where they've gotten to. Some of that is just sleeping with the right people, but most of it isn't.

But otherwise, the media is basically like (sorry to slam, gotta make this comparison) teachers, generally considered barely one of the learned professions, and, when named as one, really it's just people being nice and inclusive.

The media's the same. Not a lot of intellectual firepower decides to go into a job which mostly consists of asking questions and doing light stenography.

But who knows, maybe there's another reason. David Carr -- he of the Nazi phrenology references -- was a crack addict, for example.

Posted by: Ace at 09:56 AM | Comments (185)
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Supreme Court to Hear Case on GPS Tracking
— rdbrewer

Washington D.C. police placed a GPS tracking device on the vehicle of suspected drug dealer. The police tracked the movements of the vehicle for a month and were able to use that information to obtain a conviction. An appeals court in Washington overturned the conviction, holding that the evidence obtained in the GPS surveillance cannot be used since there was no search warrant.

From the Washington Examiner:

Two other courts have ruled that police can use GPS monitoring without a warrant.

The Virginia Court of Appeals ruled in favor of the tactic when Fairfax County Police put a GPS device on the van of a convicted rapist suspected in a series of attacks. The court said he had no expectation of privacy on a public street.

California's 9th Circuit Court of Appeals, ruling that installing a GPS to track a suspect is no different than having an officer tail him, also authorized the use of warrantless GPS tracking.

The Supreme Court will answer two questions regarding the high-tech surveillance, said Marc Rotenberg, executive director of the Electronic Privacy Information Center: the constitutionality of installing a warrantless GPS device, and then using one to track a vehicle's movements.

Rotenberg said that allowing GPS surveillance without a warrant could have far-reaching implications.

"If the court does not establish constitutional safeguards, the police will have unrestricted authority to monitor the travels of virtually anyone they want," he said.

As most know, the Fourth Amendment prohibits unreasonable search and seizure. For a search to be lawful, a warrant must be issued. Some may not know that the only teeth the Fourth Amendment has is the exclusion of evidence obtained in violation of its provisions. This is meant to discourage law enforcement.

There are exceptions to the warrant requirement. One of those has to do with whether a person has a reasonable expectation of privacy that a certain location or activity is private. If there is no reasonable expectation of privacy, no warrant is necessary.

This is a general description. Be aware that every word in Fourth Amendment jurisprudence is a mine in a minefield, and lawyers and judges strive to be exact at all times.

The appeals court said that the government must obtain a warrant for such prolonged electronic monitoring. The government argues that placing the device on the car is no different from having an officer tail the vehicle in public. Certainly, the police can do that. But 24/7 for a whole month? It is the intensity and duration of that surveillance that is likely to push this set of facts into the unreasonable search category.

The government will also argue that this form of surveillance is very valuable to law enforcement. "Gee, we like it a whole lot" is a silly argument, though, since any form of unlimited search would grow to become valuable to law enforcement.

I think the appeals court will be upheld. more...

Posted by: rdbrewer at 09:35 AM | Comments (130)
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