At the Thanksgiving Dinner Café...

... you can eat anything you want. (That's what I ate last night.)

"We wish the people of Wisconsin would take care of their own business and leave us, and [Big Mountain Jesus], totally alone."

A 50-year-old statue in Montana, put up by the local Knights of Columbus to honor soldiers who had seen statues like this while serving in Italy in World War II, is attacked as unconstitutional by the Freedom From Religion Foundation of Madison, Wisconsin.

The monument is also a local landmark:

“People say, ‘Meet at Jesus at 11.’ Skiers take pictures with him, wrap him up in clothing and put Mardi Gras beads on him.”

Annie Laurie Gaylor, co-president of the Freedom From Religion Foundation says: “It’s terribly important that the religious right not be allowed to manipulate this situation.” (But her organization picked the fight!)

Here's the  “Save Big Mountain Jesus Statue” Facebook page, which links to this article that pre-dates the current controversy:

“I was out on the mountain, kind of exploring,” [Dan Graves] recalled, taking a break from work last week to recount his first encounter with the statue. “Of course, through the fog and the haze, I saw Christ, with his outstretched hands.”

“It was a little surreal,” Graves added.

Anyone who skis or hikes or bikes along Big Mountain’s slopes has likely had a similarly jarring encounter: coming around a bend near the top of Chair 2 to find the life-like concrete rendering of Jesus Christ, gazing out over Whitefish Lake and the Flathead Valley beyond, from a perch above where the trail splits into Ed’s Run, Hibernation and Hellroaring.

So the placement in the landscape heightens the spirituality of the encounter with the religious symbol, but I think removing the statue is not necessary to comply with the Establishment Clause. I go back to what Justice Breyer wrote in one of the 10 Commandments cases that the Supreme Court decided in 2005. Breyer — it's important to note — was the only member of the Court in the majority in both cases.

Justice Breyer quoted the 1963 school prayer opinion written by Justice Goldberg: "[U]ntutored devotion to the concept of neutrality can lead to invocation or approval of results which partake not simply of that noninterference and noninvolvement with the religious which the Constitution commands, but of a brooding and pervasive devotion to the secular and a passive, or even active, hostility to the religious."

And Breyer concluded that taking down the old stone monument in Texas would "exhibit a hostility toward religion that has no place in our Establishment Clause traditions" and "encourage disputes concerning the removal of longstanding depictions of the Ten Commandments from public buildings across the Nation," which would "create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid."

Big Mountain Jesus is a 50-year-old part of the landscape, so it's probably a good idea to take Justice Breyer's advice seriously and ski clear of divisiveness and a brooding and pervasive devotion to the secular. 

Green Bay Packers, still undefeated.

That's Aaron Rodgers, just now, doing his "Justice Prosser" imitation.

"If you're guilty of a crime, you get more support from the state when you're released than if you're innocent."

"They have no authority over people whose conviction is overturned... There is nothing crafted to deal with this kind of situation."

Says Keith Findley, commenting on the case of a man who was freed 2 years ago (with help from the Wisconsin Innocence Project, which Findley direct), and who is now back in jail.

Justice Stevens writes of his "extreme distaste for debates about campaign financing."

That's from his new book "Five Chiefs: A Supreme Court Memoir," and it refers to his experience immediately upon his ascent to the Supreme Court in 1976, when the Justices were deciding Buckley v. Valeo. He goes on:

That distaste never abated, and I have felt ever since that the Court would be best served by inserting itself into campaign finance debates with less frequency. 

The Court would be best served, eh? The questions have to do with what the Constitution says about  freedom of speech, so one must wonder why he'd think in terms of what serves the Court best as opposed to what the Constitution means or at least what serves the people best.

That view may have had an impact on the unusually long dissent that I wrote during my last term on the Court against the Court’s overreaching in the Citizens United case...

In addition to my overriding hostile reaction to the subjects discussed in Buckley, I also recall puzzlement about why the Court failed to endorse the position expressed by Justice White in his dissent. He effectively explained why the distinction between limitations on contributions (which the Court upheld) and the limitations on expenditures (which the Court invalidated) did not make much sense, and why the Court should have respected the congressional judgment that effective campaigns could be conducted within the limits established by the statute. Time has vindicated his prediction that without “limits on total expenditures, campaign costs will inevitably and endlessly escalate.” He thought it quite proper for Congress to limit the amount of money that a candidate or his family could spend on a campaign in order “to discourage any notion that the outcome of elections is primarily a function of money.”

That is, he favors limiting speech so that people don't get the wrong idea (the wrong idea being that money affects elections). Under the system we have, as the majority of the Supreme Court has interpreted the Constitution, candidates can spend all the money they want trying to get elected and people are free to get the "notion" that money affects the outcome of elections.

Justice Stevens continues:

The majority’s response to Justice White relied on the rhetorical flourish that “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.” The assumption underlying that colorful argument...

Colorful?

... is that limitations on the quantity of speech in public debates are just as obnoxious as limitations on the content of what a speaker has to say. 

That is to say, it's not really so bad for the government to tell a candidate: We think you've said enough.

But there is nothing even arguably unfair about evenhanded rules that limit the amount of speech that can be voiced in certain times or places or by certain means, such as sound trucks. If we view an election as a species of debate between two adversaries, equalizing the amount of time (or money) that each can spend in an attempt to persuade the decision-makers is fully consistent with the First Amendment. Otherwise, appellate court rules limiting the time that the adversaries spend in oral arguments would be invalid because they limit the speech of one adversary in order to enhance the relative voice of his or her opponent.

He's equating the formal conditions within the confines of the appellate courtroom to the speech that takes place in the entirety of all of the forums in which a candidate might speak: all of the city squares and auditoriums, all of the TV and radio channels, all of the print media, and the entirety of the internet!

There's very little mention of Citizens United in Stevens's book, perhaps because the opinion wasn't written by the Chief Justice, and the subject of the book is Chief Justices. But he does mention it, musing that, based on Roberts opinion in Snyder v. Phelps, "perhaps I should give him a passing grade in First Amendment law."

But for reasons that it took me ninety pages to explain in my dissent in the Citizens United campaign finance case, his decision to join the majority in that case prevents me from doing so.

That's it. He doesn't even attempt to explain Citizen United to the general reader, who's expected to accept that the Court got it wrong but it would take 90 pages to explain why. Citizens United — which we covered in my conlaw class yesterday — is indeed damned pesky to absorb, and there's something disturbing about a case that purports to tell us something fundamental about political speech in our democracy, but that cannot be talked about in straightforward terms. If he's so right and the other side is so wrong, he should be able to say why in a clear, readable few pages. Instead, what we get is either way overcomplicated, so you'll have to go read 90 pages, or it's insultingly oversimplified: John Roberts flunks!

Here's the 90-page dissenting opinion, in case you're up for reading it. As we say on the limitless internet: Read the whole thing. I'll bet very few people have read the whole thing. Justice Stevens delves into the history of Americans' attitudes about corporations. (In Citizens United, the majority emphasized free speech, not the source of the speech, while the dissenters made a distinction between individuals and corporations and would have accepted limits on speech when it comes from corporations.) Stevens wrote about the fear of corporations in early American history. He quotes Lawrence Friedman's "A History of American Law": “The word ‘soulless’ constantly recurs in debates over corporations… . Corporations, it was feared, could concentrate the worst urges of whole groups of men”). Later in his opinion, Stevens augments that anxiety about corporations with his own words: "corporations have no consciences, no beliefs, no feelings, no thoughts, no desires."

Here's the whole "soulless" paragraph from Professor Friedman's book:

The word “soulless” constantly recurs in debates over corporations. Everyone knew that corporations were really run by human beings. Yet, the word was not completely inappropriate. Corporations did not die, and there was no real limit to their size, or their greed. Corporations might aggregate the worst urges of whole groups of men. No considerations of family, friendship, or morality, would temper their powers. People hated and distrusted corporations, the way some people came to fear the soulless computer—machines that can join together the wit, skill, power, and malevolence of infinite numbers of minds.

Thank God my computer is soulless! I'm using it to write this post, and I wouldn't like it to insert any morality, beliefs, feelings, thoughts, and desires, between me and you, as I invite you to aggregate your possibly evil urges here in the comments. With the power of the soulless computer we can join together the wit, skill, power, and malevolence of infinite numbers of minds.

How scary is that?

The pepper-spray cop's "dissonantly casual body language in the context of violence brings to mind the photos from Abu Ghraib..."

"... Lynndie England smiling and giving the camera a thumbs-up in front of tortured prisoners. And, in a fit of macabre recursion, some of the casually pepper-spraying cop meme images reference those very photos from Abu Ghraib. Lynndie and [John] Pike, two 'bad apples' taking the fall for systemic problems with the institutions each represent."

Says Xeni Jardin in a Guardian piece that I found after I noticed (on my own) the similarity between the Pike and England iconic photographs. Jardin was thinking of the thumb's-up photo. I was thinking of the man-on-a-leash photo, which seems more apt because of the impassive expression, though, I must say, looking at England's face now, after seeing the pepper-spray cop, I'm seeing some human expression, a mournful look. Expression is relative. If we get used to completely dead faces, the subtlest tinge of humanity will pop.

(And here's the special Thanksgiving iteration of the pepper-spray meme.)

"The question is not whether but how will the student section at Camp Randall Stadium humiliate their Penn State foes?"

"I'm guessing they make a show of wearing shower caps and bath towels. Just a guess. I know that's gross and insensitive but so are those college kids, as were we at that age."

"Three American college students arrested Monday on suspicion of throwing Molotov cocktails..."

"...  during a protest in Cairo against Egypt's ruling military council were released Thursday..."

In other Molotov cocktail news: "Molotov madman who said on YouTube he would bomb Macy's is out of jail and back at Zuccotti Park."

Obama's religion-free Thanksgiving address.

"As Americans, each of us has our own list of things and people to be thankful for. But there are some blessings we all share....

But no matter how tough things are right now, we still give thanks for that most American of blessings, the chance to determine our own destiny. The problems we face didn’t develop overnight, and we won’t solve them overnight. But we will solve them. All it takes is for each of us to do our part. 

And God's help? I'm noticing the lack of religion in the address. The closest he gets is the use of the word "blessings."

With all the partisanship and gridlock here in Washington, it’s easy to wonder if such unity is really possible. But think about what’s happening at this very moment: Americans from all walks of life are coming together as one people, grateful for the blessings of family, community, and country.

If we keep that spirit alive, if we support each other, and look out for each other, and remember that we’re all in this together, then I know that we too will overcome the challenges of our time.

Again, an absence of God. We'll solve our problems by coming together as a community, not with the help of God, though you are free to conceptualize this coming together in religious terms. I'm not criticizing, just taking note.

Here's what Thomas Jefferson said about Thanksgiving:

I consider the government of the United States as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises... Certainly no power to prescribe any religious exercise, or to assume authority in religious discipline, has been delegated to the general government.... But it is only proposed that I should recommend, not prescribe a day of fasting and prayer. That is, that I should indirectly assume to the United States an authority over religious exercises, which the Constitution has directly precluded them from... civil powers alone have been given to the President of the United States and no authority to direct the religious exercises of his constituents.

"Recently, I've been taking a series of executive actions that don't require congressional approval."

"Well, here's another one. We can't wait to pardon these turkeys."



(I love the complete lack of enthusiasm from the daughters, including declining to laugh at dad's jokes.)

"Typo Leads To Wrong Candidate’s Election In Connecticut."

“I understand that mistakes are made, but this one is especially unfortunate,” said Republican Town Committee Chairman Tom Szewczyk.

He added that if the younger Butler was to be sworn in and resign to let his father take the post, it would serve as a violation of Connecticut State’s election law. “This would also be a huge disservice to our voters.”

Sting, "Girl from the North Country"... Mark Knopfler – "Restless Farewell"...

Jackson Browne, "Love Minus Zero/No Limit
"...  Bryan Ferry, "Bob Dylan’s Dream"... Carly Simon, "Just Like a Woman
"... Bad Religion, "It’s All Over Now, Baby Blue"... My Chemical Romance, "Desolation Row"... Ke$ha, "Don’t Think Twice, It’s All Right
... Taj Mahal, "Bob Dylan’s 115th Dream"... Dave Matthews Band, "All Along the Watchtower"... Kris Kristofferson, "Quinn The Eskimo"... Eric Burdon, "Gotta Serve Somebody"... Marianne Faithful, "Baby Let Me Follow You Down"... Pete Seeger, "Forever Young"...

The full list. The one I'd be most interested in hearing? Oddly enough, it's Taj Mahal doing "Bob Dylan’s 115th Dream"... which just by chance is kind of Thanksgiving-appropriate:

I was riding on the Mayflower
When I thought I spied some land...
“I think I’ll call it America”
I said as we hit land
I took a deep breath
I fell down, I could not stand

Happy Thanksgiving, everyone. Here at Meadhouse, it's pre-dawn and we're eating pancakes. (We just invented peanut butter pancakes.) I'd give you an Amazon link for that Bob Dylan cover songs album so you could buy it, but it's not available yet. Feel free to buy something else at Amazon. For example, here's Taj Mahal album I really like. Listen to the title track.

Penn State defense strategy: McQueary's credibility.

The Wall Street Journal reports:

The lawyers point out that they believe Mr. Paterno's testimony matches that of their clients. "All of them testified that Mr. McQueary did not tell any of them that he witnessed anal sodomy on March 1, 2002."...

The shower story "is a graphic image provided by a third-party witness," says Wesley Oliver, a professor of criminal law at Widener School of Law in Harrisburg, Pa. "Other stories [in the grand jury presentment] about touching are more ambiguous."

“What is this mac-and-cheese? Is it a black thing?"

Pat Robertson, getting up to speed on Thanksgiving and macaroni and cheese.

Mullet arrested in haircut attack.

It's not funny.

Running out of targets...

... in the assassinate-an-al-Qaeda-leader game.

The word "law" only appears once on the NYT list of "100 Notable Books of 2011."

Maybe the New York Times is missing some great law books, but this is some kind of read on something that ought to matter to legal academics and other law folk.

What's the one book? It's "Rights Gone Wrong/How Law Corrupts the Struggle for Equality," by Richard Thompson Ford. Here's the NYT review of it by Jeffrey Rosen:

In “Rights Gone Wrong,” Richard Thompson Ford, a law professor at Stanford, argues that both the progressive left and the colorblind right are guilty of the same error: defining discrimination too abstractly and condemning it too categorically, with similarly perverse results....

Ford does not offer an equivocal, cautious, middle-of-the-road critique of civil rights law....

Ford ends his stimulating polemic by arguing for a more “nuanced” approach to civil rights. He calls for the return of thoughtful, pragmatic judges who will take the time to distinguish justified from unjustified acts of discrimination, rejecting selfish or perverse claims of “rights gone wrong” while protecting people from truly invidious indignities.

Noted.

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Get some Amazon deals... using that link, please, and you'll be showing some love for the Althouse blog... without spending any more money than you're spending on that stuff you're buying.

Rasmussen: Generic Republican 46%, Obama 43%.

That's this week. Last week, Obama was up 45/44. But in the previous 18 weeks, the "generic Republican" was up. So, something happened in the last 2 weeks, perhaps. Yes, it might all be margin-of-error static, but assume something happened that caused the dip and resurgence... what was it?

"Key social conservatives secretly meet to stop Romney in Iowa."

CNN reports:

One attendee at the meeting earlier this week told CNN they wanted "to see if they could come to a consensus of who they might endorse."...

"If you want to stop Romney you're probably going to have to have some organization [and] some money," the source said. "Somebody who's at 5% or 6% in the polls, and they endorse, I don't think that does any good."...

Participants were said to have narrowed their focus down to four candidates: Minnesota Rep. Michele Bachmann, Texas Gov. Rick Perry, former House Speaker Newt Gingrich and former Pennsylvania Sen. Rick Santorum.

That leaves our Ron Paul and Herman Cain.

Social conservatives will have the best chance of success if they pick:
	Michele Bachmann
	Rick Perry
	Newt Gingrich
	Rick Santorum
pollcode.com free polls

The idea of social conservatives backing one of those 4 is:
	Good, because it's the best way to stop Romney, who is bad on social conservative issues.
	Good, because it helps stop Romney, who just isn't my favorite candidate.
	Good, because it helps stop Romney, the best GOP candidate, and I'm for Obama.
	Bad, because it might stop Romney, the GOP candidate most able to stop Obama.
	Bad, because it might stop Romney, and I'm for Romney for a number of reasons.
	Bad, because it will help the social conservatism cause, which I oppose.
pollcode.com free polls

Woody Allen's 2 super-powers.

Over the last couple days, we watched the lengthy PBS documentary about Woody Allen. I know a lot of my readers haven't been watching his movies and think of him only in terms of his sexual misdeeds. Exclude that topic for the comments on this new post. All that has been said. Noted. If you must say that again, go to the link above and put it in that comments thread. I want to say something new, based on the documentary, which is overwhelmingly about Allen's work. If you don't know his movies or don't want to talk about the ideas about writing that I'm going to raise, please don't comment in this new thread.

Woody Allen has directed a movie a year — almost precisely — every year since 1969. He's an astounding movie-making machine. It's really quite bizarre. He's a monument not so much to hard work, but to consistently cranking out work, much of it quite excellent. As a writer, he's a lot like a blogger. He just keeps going. It's what he does, quite aligned with living itself. I love that.

Now, it suddenly occurred to me that his achievement is propelled by 2 super-powers — one which he knew he had from his teenage years and another that he discovered through Diane Keaton. (I'll try to finds the specific lines in the documentary that support my theory and transcribe them for you, but I don't have time for that now).

Super-power #1: Automatically thinking of one-line jokes. It's harder for him to stop his thoughts from taking the form of jokes than to think of them (he says). As a teenager, he got a job making $20,000 a year writing jokes. He had to write 50 jokes a day. It wasn't difficult for him.

Super-power #2: As a man, taking the woman's perspective. We see this power burst forth in his fabulous movie "Annie Hall." Allen gives credit to Diane Keaton, whom he worked with in the earlier films "Sleeper" and "Love and Death," for getting him interested in taking on the feeling of being inside the woman's head and writing from there. In this position, he experienced a flow of ideas, that let him write wonderful scenes for actresses, like this one, from "Hannah and Her Sisters," which is used in the documentary as an illustration of his style of writing from the woman's perspective:



You can say that he doesn't really achieve the female perspective or that women aren't really quite like that, but that isn't the point. The point is that his sense of being inside a woman's head empowers him to produce writing that often works for the viewer, including many, many women who love and identify with scenes like that. He's a man, with male thoughts, projecting those thoughts into women's minds. What a powerful force that is, the male with something of his own that he wants to put inside the woman. It makes the urge to write like the sexual urge. That's creative flow. If you can put that force behind your writing... it's a super-power.

The media seem to have decided that what Gingrich said about immigration is the big story from last night's GOP debate.

So let's read the text:

BLITZER: Back in the '80s... you voted for legislation that had a pathway to citizenship for illegal immigrants...  Some called it amnesty then; they still call it amnesty now. What would you do if you were President of the United States, with these millions of illegal immigrants, many of whom have been in this country for a long time?

GINGRICH: Let me start and just say I think that we ought to have an H-1 visa that goes with every graduate degree in math, science and engineering so that people stay here. You know, about five blocks down the street, you'll see a statue of Einstein. Einstein came here as an immigrant. So let's be clear how much the United States has drawn upon the world to be richer, better and more inclusive.

I did vote for the Simpson-Mazzoli Act. Ronald Reagan, in his diary, says he signed it -- and we were supposed to have 300,000 people get amnesty. There were 3 million. But he signed it because we were going to get two things in return. We were going to get control of the border and we were going to get a guest worker program with employer enforcement.

We got neither. So I think you've got to deal with this as a comprehensive approach that starts with controlling the border.... I believe ultimately you have to find some system -- once you've put every piece in place, which includes the guest worker program, you need something like a World War II Selective Service Board that, frankly, reviews the people who are here.

If you're here -- if you've come here recently, you have no ties to this country, you ought to go home. period. If you've been here 25 years and you got three kids and two grandkids, you've been paying taxes and obeying the law, you belong to a local church, I don't think we're going to separate you from your family, uproot you forcefully and kick you out.

The Creeble Foundation is a very good red card program that says you get to be legal, but you don't get a pass to citizenship. And so there's a way to ultimately end up with a country where there's no more illegality, but you haven't automatically given amnesty to anyone.

Bachmann is called upon to respond. (Blitzer did a great job last night of creating mini-one-on-one debates within the debate.) She said it was amnesty and she worried about the vast numbers of people who would be able to take advantage of the program. Gingrich then got the floor again:

GINGRICH: Well, I mean, two things, first of all, in the DREAM Act, the one part that I like is the one which allows people who came here with their parents to join the U.S. military, which they could have done if they were back home, and if they serve on it with the U.S. military to acquire citizenship, which is something any foreigner can do.

And I don't see any reason to punish somebody who came here at three years of age, but who wants to serve the United States of America. I specifically did not say we'd make the 11 million people legal.

I do suggest if you go back to your district, and you find people who have been here 25 years and have two generations of family and have been paying taxes and are in a local church, as somebody who believes strongly in family, you'll have a hard time explaining why that particular subset is being broken up and forced to leave, given the fact that they've been law-abiding citizens for 25 years.

Blitzer then called on Bachmann, who, despite what Gingrich just said he "specifically did not say," says "I think the speaker just said that that would make 11 people -- 11 million people who are here illegally now legal." That one-on-one really highlighted Gingrich's superior intelligence and sophistication. Clearly, Gingrich has the ability to reach out to many Americans who feel empathy toward the people who are in the county illegally and to take a middle position that balances a large set of interests. I like that, but obviously the red-meat fans have something to complain about. He put some vegetables on their dish.