District of Columbia vs Heller: The Truth Will Out

Okay, I may be wrong about which case most clearly demonstrates the idea that Supreme Court decisions, when a major social issue is at stake, for all their protestations, simply reflect the prejudices of the justices. 

That is, the justices have a gut reaction which is, "We've got to keep the rabble down," and then they set about contorting themselves to squeeze through the eye of a needle to get to the conclusion you knew all along they were trying to get to.

I thought the most obvious example was the Bong Hits for Jesus decision,  but my own offspring have convinced me this is a case which is not as clean an example as I have asserted. The problem with Bong Hits is that Chief Justice Roberts was able to slip and slide, insisting the case was not about drugs or free speech but it was about the issue of whether or not a government employee can be held liable for her actions when she is trying to exercise her authority, as she sees her responsibility demands, as part of her job as a public employee.

The student was suing the principal for infringing  his right to free speech, i.e. by tearing down his poster and suspending him from school. After seeing their arguments about the poster undermining the schools anti drug policies go down in flames, after dispensing with the issue of the student not being on school property (after all, students are still under school authority on field trips) the court comes round to saying well, it wasn't really about any of that; it's about protecting public servants from the consequences of their actions when they are bringing the heavy wood to bear on those over whom they are supposed to be exerting control.

So there's some sneak around the criticism of being a court which simply always sides with those in power; you can say they were simply trying to protect those in power from the fear of being sued every time they discipline a child.

But in the case of District of Columbia vs. Heller you see Justice Scalia's capacity for verbal contortion which should make him the envy of Circe De Soleil. The machinations of verbosity here are something to behold.

He makes that famous line, "It depends what the definition of is, is," seem very reasonable.

Scalia's problem, and the problem for every right to gun fanatic who says the right for individuals to own and use guns was handed down engraved in stone tablets from  the Mount, and reaffirmed in black and white in the Second Amendment of the Constitution, is that very Second Amendment is about as clear as anything in writing ever gets, especially anything writtne in the eighteenth century.  The Amendment begins with an explanatory clause, "The right to bear arms being necessary to the maintenance of a militia," and then goes on to what they call the "Operative clause," the right to bear arms shall not be infringed." 


So the right to own a gun, to bear arms, that is one can only imagine, to keep a gun in your house, has to do with the importance to society and to the state of sustaining a group of armed men called a militia. 

Watch Scalia twist and turn and try to get to the point where he says the right to bear arms derives from the need for individual members of a militia to keep their guns at home, but and this is the big but, the right also derives from other imperatives, not mentioned in the Amendment but implied somehow, somewhere else in the Constitution or found in a careful and learned analysis of history to show that this is what these eighteenth century gentlemen had in mind when they used phrases like the right to bear arms. He's gonna get there, somehow, and it's a pretty lame and pathetic dance he does.

    Three provisions of the Constitution refer to “the people” in a context other than “rights”—the famous preamble (“We the people”), §2 of Article I (providing that “the people” will choose members of the House), and the Tenth Amendment (providing that those powers not given the Federal Government remain with “the States” or “the people”). Those provisions arguably refer to “the people” acting collectively—but they deal with the exercise or reservation of powers, not rights. Nowhere else in the Constitution does a “right” attributed to “the people” refer to anything other than an individual right.⁶

^{GOT THAT?  SEE THE ONLY RIGHTS IN THE CONSTITUTION ARE INDIVIDUAL RIGHTS? SO THE FACT THESE INDIVIDUALS DERIVE THEIR RIGHT TO OWN GUNS COMES FROM THE FACT THEY ARE IN A STATE MILITIA HAS NOTHING TO DO WITH ANYTHING.}

 

    What is more, in all six other provisions of the Constitution that mention “the people,” the term unambiguously refers to all members of the political community, not an unspecified subset. As we said in United States v. Verdugo-Urquidez, 494 U. S. 259, 265 (1990) :

“ ‘[T]he people’ seems to have been a term of art employed in select parts of the Constitution… . [Its uses] sugges[t] that ‘the people’ protected by the Fourth Amendment , and by the First and Second Amendment s, and to whom rights and powers are reserved in the Ninth and Tenth Amendment s, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.”

GOT THAT?  CONVINCED YET?

This contrasts markedly with the phrase “the militia” in the prefatory clause. As we will describe below, the “militia” in colonial America consisted of a subset of “the people”—those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to “keep and bear Arms” in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as “the people.”

SO NOW WE DON'T LIKE THE FOUNDERS SO MUCH. THEY LEAVE US ALL CONFUSED.

    We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.

THERE WE START WITH THE "STRONG PRESUMPTION" BECAUSE WHY? BECAUSE WE WANT TO PRESUME THIS RIGHT DOES NOT JUST APPLY TO THE SUBSET OF THE POPULATION WHO ARE IN THE MILITIA BECAUSE IF WE DON'T PRESUME THIS OUR WHOLE ARGUMENT FALLS APART.

AND NOW WE GOT TO TRY TO REALLY CONFUSE A PRETTY OBVIOUS PHRASE: TO KEEP AND BEAR ARMS. CAN YOU REALLY NOT GET THIS?

    b. “Keep and bear Arms.” We move now from the holder of the right—“the people”—to the substance of the right: “to keep and bear Arms.”

    Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined “arms” as “weapons of offence, or armour of defence.” 1 Dictionary of the English Language 107 (4th ed.) (hereinafter Johnson). Timothy Cunningham’s important 1771 legal dictionary defined “arms” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” 1 A New and Complete Law Dictionary (1771); see also N. Webster, American Dictionary of the English Language (1828) (reprinted 1989) (hereinafter Webster) (similar).

HEY WE NEEDED A LEGAL DICTIONARY TO UNDERSTAND WHAT "ARMS" MEANS. IS THAT DEPENDING ON WHAT IS MEANS TOO?

    The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity. For instance, Cunningham’s legal dictionary gave as an example of usage: “Servants and labourers shall use bows and arrows on Sundays, &c. and not bear other arms.” See also, e.g., An Act for the trial of Negroes, 1797 Del. Laws ch. XLIII, §6, p. 104, in 1 First Laws of the State of Delaware 102, 104 (J. Cushing ed. 1981 (pt. 1)); see generally State v. Duke, 42Tex. 455, 458 (1874) (citing decisions of state courts construing “arms”). Although one founding-era thesaurus limited “arms” (as opposed to “weapons”) to “instruments of offence generally made use of in war,” even that source stated that all firearms constituted “arms.” 1 J. Trusler, The Distinction Between Words Esteemed Synonymous in the English Language37 (1794) (emphasis added).

OH, AND LET'S SET UP A PAPER TIGER SO WE CAN TRY TO  MAKE OUR OPPONENTS LOOK SILLY.

    Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment . We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997) , and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001) , the Second Amendment extends, prima facie,to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

HEY, NOBODY'S WORRIED ABOUT 18TH CENTURY MUSKETS. DC VS HELLER WAS NOT ABOUT MUSKETS. THE DC COPS ARE WORRIED ABOUT GETTING SHOT WITH MORE UP TO DATE GUNS, OR "ARMS." LIKE AK47'S, UZI'S AND OTHER LETHAL STUFF.

    We turn to the phrases “keep arms” and “bear arms.” Johnson defined “keep” as, most relevantly, “[t]o retain; not to lose,” and “[t]o have in custody.” Johnson 1095. Webster defined it as “[t]o hold; to retain in one’s power or possession.” No party has apprised us of an idiomatic meaning of “keep Arms.” Thus, the most natural reading of “keep Arms” in the Second Amendment is to “have weapons.”

    

LET US NOW OBSFUCATE, BIG TIME:

At the time of the founding, as now, to “bear” meant to “carry.” See Johnson 161; Webster; T. Sheridan, A Complete Dictionary of the English Language (1796); 2 Oxford English Dictionary 20 (2d ed. 1989) (hereinafter Oxford). When used with “arms,” however, the term has a meaning that refers to carrying for a particular purpose—confrontation. In Muscarello v. United States, 524 U. S. 125 (1998) , in the course of analyzing the meaning of “carries a firearm” in a federal criminal statute, Justice Ginsburg wrote that “[s]urely a most familiar meaning is, as the Constitution’s Second Amendment … indicate[s]: ‘wear, bear, or carry … upon the person or in the clothing or in a pocket, for the purpose … of being armed and ready for offensive or defensive action in a case of conflict with another person.’ ” Id., at 143 (dissenting opinion) (quoting Black’s Law Dictionary 214 (6th ed. 1998)). We think that Justice Ginsburg accurately captured the natural meaning of “bear arms.” Although the phrase implies that the carrying of the weapon is for the purpose of “offensive or defensive action,” it in no way connotes participation in a structured military organization.

AND NOW A LEAP OF FAITH: WE REFER TO "HISTORY" AND SOME UN CITED, MYSTERIOUS MEANING OF TO KEEP AND BEAR ARMS AS MEANING " OWNING GUNS UNRELATED TO MEMBERSHIP IN A MILITIA:

    From our review of founding-era sources, we conclude that this natural meaning was also the meaning that “bear arms” had in the 18th century. In numerous instances, “bear arms” was unambiguously used to refer to the carrying of weapons outside of an organized militia. 

Now, I realize this may all seem tedious. But that's the game. Justice Scalia thinks if he can make his argument tedious enough, if he can obsfucate enough, you'll just cave.

Thing is, he's a snake oil salesman, and the price of liberty is eternal vigilance. If you swallow his opinion, well then, you're no patriot. You've given up doing the hard thing, which is not to bear arms in thsi case, and charge up the hill. The hard thing here demanded of the citizen is to wade all through this and say, in the end. The guy is full of bull and the Second Amendment is not what Rush Limbaugh and Glenn Beck and Antonin Scalia wish it would be but it is was it is. 

That is, if you know what is means.

Bong Hits For Jesus

With the Supreme Court poised to nullify the Health Care Law, we face the greatest thwarting of one branch by another since the New Deal.

In last Sunday's New York Times, we were reassured it's not a given the Court will act to undo the law, because predicting how justices will vote is "Dicey."

I beg to differ. 

It is not a dicey matter to predict how Fox News will react to anything President Obama says, even if it's, "God Bless the United States of America."


There is a very simple lens through which one can peer at the current Supreme Court and this lens has the power of a crystal ball: Look through it and you can know exactly how four of the justices (Scalia/Thomas/Alito/Roberts) will vote on any given issue with social content: These apocalyptic four horsemen will always vote for the powerful over the powerless, for money over the poor and, had they been voting in another era, for the slaveowner over the slave. There is no doubt these four would have voted Dred Scott could not sue in the Supreme Court because, as a slave, being the property of the master, he had no standing to sue.

The Constitution, written in the eighteenth century by men who not only owned slaves but enthusiastically kept them in bondage, was written before the human voice could be amplified, before radio or television could given the stage to one voice and, effectively deny it to others, before big money had become institutionalized in our body politic.

And yet, Scalia and Thomas and Alito and Roberts call themselves "Originalists," men who look only to this sacred text for all the answers, because otherwise, they might be in danger of thinking for themselves and creating law rather than simply applying it.

The judge who sentences a man for selling marijuana, even thought the judge does not believe the sale of marijuana should be illegal, is apply law rather than creating it. The judge who says a corporation is entitled to the protection of the First Amendment just as an individual human being, is creating new law.

But the clearest recent insight about this Court, at least for my money is contained in the justices's opinions on Morse vs Frederick, or the Bong Hits for Jesus case.

It is here the prejudices of the justices are at their most naked, despite their customary attempts to clothe them in arguments about tangential issues.

Justice Roberts spends much time denying the argument the student (Frederick) was unjustly treated by the principal who ran across the street and tore down his sign, "Bong Hits for Jesus" because the student had taken pains to leave school grounds and set up camp outside of the school's territory, making him free to express an opinion beyond the control of the school administration. 

Much time is spent by the justices writing for the majority explaining why students are not entitled to free speech the way adults are entitled to free speech, at least as long as the students are enrolled in public schools, paid for by the government. Private schools, presumably can expell students whenever they want and for whatever reason. 


But the real truth outs in Justice Thomas's opinion. What really disturbs Thomas is the student's "impertinence."  Being an originalist, he takes us back to the first public schools, which he admits did not exist when the original constitution was written but he says the First Amendment really didn't apply to the states until the Fourteenth Amendment was ratified, which was in the nineteenth century, when public schools did exist, so we can all breathe a sigh of relief that looking at what schools were like and the complete control teachers and administrators had over the students in those days is now a relevant consideration. 

School masters, or simply Masters, as Thomas calls them, ruled the students with an iron hand--Thomas tells us approvingly. Teachers spoke and students listened, Thomas tells us, and that is the way things ought to be. Masters could whip or cane their students. They could beat to a pulp any student who tried to belittle them or act insubordinately.  

Thomas is deeply offended by Tinker and other decisions which suggested the teacher should be limited in his ability to control the speech of the student--he is offended by any limitation, like the restriction the student's speech has to  be disruptive to educational goals or the safety of the school Teachers ought to have complete control period, in Thomas's view.

He has a point, because if you really had to look at the harm done by Bong Hits for Jesus, you get pretty lame pretty fast. 

As Justice Stevens notes, you'd have to be a complete idiot to be at risk for being persuaded to use drugs by reading that sign.  

It's in the back and forth between the justices you really see the truth: Souter says this sounds like a kid being cheeky; Stevens says the kid may be a knucklehead or a show off but he poses no threat the Western Civilization.  Roberts and most especially Thomas see insurrection by students as the first step to undoing society. They sound like Nixon scolding the "Bums" who demonstrated against the Viet Nam war on campuses. 

And the student protests against the war in Vietnam echo through the case law raised here, in a case of students who wore black arm bands to protest the war. Students defying their teachers, defying adult authority is the real nightmare which terrifies and enrages Thomas, Roberts, Scalia and Alito, in just about that  order. Those who are last would be first and that's what terrifies this court.

Justice Roberts knows this, it's pretty clear, because he rebukes his colleagues and others who want to claim the reason this speech has to be controlled is because it implies a disagreement with the schools "education mission" to teach that drugs are wrong. Roberts says the case is not about drugs but about money--because the student is suing the principal who tore up his sign and suspended him for violating his right to free speech.


No, what bothers Roberts is the same thing that bothers Thomas: The student has been impertinent and sassy and deserves to be slapped down. He has disagreed with the anti drug hysteria and mocks it and makes his principal and all those sanctimonious adults who travel with her look like the idiots they are.

As if suppressing the very words, "The war on drugs is a travesty," will "educate," our children.

As if "education" is simple indoctrination. 

If you are a Supreme Court justice whose first five years of education was being told what to think without the option of objecting, questioning, this might seem like education to you.

But there are those of us who grew up in America thinking education was about questioning dogma, not swallowing it unchewed.


The Supreme Court cannot see that. 

For the Supreme Court, truth is handed down, impertinence is an affront to be crushed, the masters should rule and free speech is just for the masters.

Master and Commander and The New Reality of Health Care Phantom Perspective

I had not been an intern more than three weeks when the ward nurse roused me at two A.M. because an eighty year old man was short of breath. He was more than that. He was bubbling over in pulmonary edema, literally. Froth of yellow, blood tinged stuff was spilling out of his mouth.

The nurse looked to me for orders and I told her to get the crash cart, and when she returned I ticked off each step I had been taught to do: I slapped in two large bore intravenous lines, one in each arm, gave him morphine through one and furosemide through the other. She inserted a catheter through his urethra into his bladder which she hooked up to a Foley catheter so we could see if he was responding to the furosemide by making urine. We hooked up an electrocardiogram and I ran off a twelve lead and could see the wildly elevated ST-T wave segments and knew he was well into a myocardial infarction.

We applied rotating tourniquets from the crash cart, one on each arm and leg.

All this took about fifteen minutes and he was still gasping for breath.

The nurse asked if I wanted to call the cardiac team, but to my mind the cardiac team was for cardiac arrests and he hadn’t arrested, yet. I didn’t want to sound a general alarm and wake an anesthesiologist (who would intubate him and hook him up to a respirator) a senior resident, a cardiology fellow until I had run through every step I had been taught.

I can’t say I had been drilled on any of this, but we had gone over this stuff in a session the first week of internship.

“He’s not looking so good,” the nurse said. “He’s not responding.”

I asked for the phlebotomy bottles. She wasn’t sure she knew what phlebotomy bottles were. I described them to her as they had been described to me and she remembered seeing them in a cabinet. She arrived and they were just as advertised and I plunged the business end of a large bore needle into the patient’s femoral artery and one liter of blood was sucked out of him and filled the glass bottle faster than  Jack pops out of a box.

The patient drew in a deep sigh and said, “Oh, that did it. Much better.”

We had broken his pulmonary edema.

I called the cardiac care unit and the resident, a year ahead of me in training came down and looked at the EKG and heard the story and said, “Good job.”

I was one proud intern.

The next day, on morning ward rounds the head nurse, who had been a head nurse about ten years and whose opinion mattered to me, looked at me when we arrived at the patient’s empty room—he had been trundled off to the cardiac care unit—and she said, “So I hear you do not flinch when the battle is joined.”

That made a lot of afternoons spent in malodorous organic chemistry laboratories on beautiful fall afternoons all worthwhile.

Last night I watched Master and Commander ,again. I love that movie for many reasons, but one of the most important is it is a wonderful coming of age story, and the scene where Captain Jack Aubrey continues his lesson on the use of the sextant to his midshipmen as the French cannon balls whiz around them, ignoring all that as an annoying distraction resonated with some of my own training on the wards.

But more than that, is the picture of what it is to be a man, a leader, a hero, to stand fast and not to falter and to grow and to do things which require training and heart and execution. It’s all there.

Jack Aubrey decides to pursue the dangerous foe, to take risks, to put his exhausted crew and himself through great travails because that is what it means to be a warrior, to defend his nation on the last battlefront before invasion of the homeland.

I mention all this because just this past week we had a discussion at our Clinical meeting and the new reality of medical practice became apparent.

We were talking about getting an electrocardiogram in the clinic. We are a subspecialty clinic. We take care of people with thyroid disease an diabetes. Until I arrived, I infer, none of the doctors listened to any patient’s heart with any regularity. They did “focused” physical exams, which is to say, they palpated the thyroid on thyroid patients or looked in the eyes at the retina on diabetics.

I listen to the heart on diabetics, on the grounds diabetes is a major risk factor for heart disease.

But if the patient has heart disease, my younger colleagues argued, that’s not our job. Send the patient to the cardiologist or to his primary care doctor or nurse.

But when I listen, about twice a week, I hear a rhythm disturbance called atrial fibrillation, or what might be atrial fibrillation (AF). AF causes strokes, so if the patient has new onset AF, then we should make that diagnosis and call his cardiologist and get him seen so he can be anticoagulated.

Just send him to the Emergency Room if you are worried, I was told.

But think how you’d feel, if you were the patient. You might not even need to go to the ER, if all I’m hearing is the more benign APCs or VPCs.

No, said the young woman doctor who is my colleague, she did not want to be responsible for interpreting the EKG.  She could get it wrong and get sued.

My younger male colleague, who is a very bright man and a very well trained subspecialist said, “You know the one time I did think I heard something and got you and we went over to the medical clinic and got the EKG, it put us both behind by almost an hour. And we’ve got to see fourteen patients a day. We just don’t have time to get involved like that.”

The nurse manager pointed out we had no method in place to bill for EKG’s and the extra time spent would not be credited to our “Productivity Assessment.”

Later she came by and said, “You are an old dinosaur. You were trained to put the patient first. It’s not about that any more.”

And I thought of a dermatologist I saw once for a mole I wanted excised. She was perfectly well trained to do this but she didn’t want to, because, she said, she had set up her beautiful office with its section of skin care products she sold by the front desk and she had an idea of what her practice would be like and it made her uncomfortable to think if this pigmented lesion did turn out to be a melanoma then she’d have to call me with the news, which would be unpleasant for her.

This is a woman who trained at Duke and Harvard.

And I thought back to a time decades earlier, when I was a fourth year medical student and I had just finished a six week rotation in dermatology, and I had loved the surgical aspect of it and the immediacy of the diagnoses and I had a form for the Chief of Medicine to fill out recommending me for a dermatology residency and he said, “You want to be a dermatologist?”  I gulped hard. “We’ve taught you how to save lives and you want to be a dermatologist?”

I withdrew the paper and slunk out of the room.

Now dermatology residencies are great prizes. Only the top of the class. No call. No nights. No weekends. But most of all, tons of money. Move through those exam rooms fast as you can and charge lots of money for small procedures. And no stress. No worry about losing a patient bubbling over in pulmonary edema.

Jack Aubrey would puke.

President Kumbaya

Paul Krugman says it. Letters to the editor of the New York Times from all over the country echo the sentiment. 

It's not that President Obama misled us, posed as something he wasn't and transmogrified once elected.

He did not--or as we now know--could not throw a punch during the campaign, when Sarah Palin used him like the bully uses the fat, soft kid on the playground.

I still like the guy.

But the country needs a leader.

Someone has to tell John Boehner and Mitch McConnell and all those Tea Party deep enders who travel with them,  "You want tax cuts? Fine. You got 'em. But none for the millionaires. That's the line in the sand. You want to hold all tax cuts hostage to your millionaire contributors, you got it. We've got the best Congress money can buy, it's been said. You want to prove that true, dig in your heels.  

The Republican leader of the Senate says publicly his top priority in the coming two years is to be sure I am not re elected. His top priority is not rescuing the economy. His top priority is not creating jobs. His top priority is not even protecting our citizens from the relentless attacks of all those deranged and determined terrorists out there. He wants to demonize me, to bring down all those complex problems to one problem, winning the next Presidential election.

Well, that is not my first priority. And it ought not be the priority of any senator or Congressman. Mr. McConnell wears the American flag as a lapel pin, but does a true patriot look past the problems of the nation he was elected to serve, and see only one hateful goal?  And in the House of Representatives, Mr. Boehner vows to undo healthcare  reform, which he determinedly calls, 'Obamacare.' 

Well, I take that as a compliment. 

For years Mr. Boehner and all those who travel with him ignored the plight of the mothers of children who were uninsured, ignored the kids who were between college and their first jobs, ignored the abuses of insurance companies who could not see past the bottom line to the health of their customers. And now they vow to undo what Congress finally accomplished. 

Are these men really serving the nation? Or are they serving a much smaller group? 

Much has been made of this country being a "Christian nation." Some right wing nuts have insisted I am neither a Christian nor born in America. But what is more Christian than the idea of sacrificing for your neighbor? How many of Christ's homilies were about helping and loving your neighbor. The idea terrifies Mr. Boehner and Mr. McConnell because that means they might have to give up some of their wealth, some of their power.

Well, the idea that we are all in this together does not terrify me. It did not terrify the visionaries who voted in Social Security and Medicare. 

And the very people who are now intent on destroying these successful are so blinded by their fear they cannot even see it was these very programs which saved the economy and the people on whose fortunes their own fortunes depend. I have tried to be reasonable, tried to listen, but the Republican party, the party which once was home to a revolutionary from my own state of Illinois, is no longer the home of the brave. It has become the temple of thieves."

Somehow, I don't expect the President to call up the Phantom and hire him on as a speech writer.  But we all can dream.

Idea Men: The Phantom Says A Good Idea is Often Wasted

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Bill Clinton remarked when he was President, he had to be very careful about everything he said, but once out of office he had the wonderful freedom to say anything he wished--the only problem was that none of what he said mattered any more.

What he was saying, of course, was that once out of power your ideas may be irrelevant  because they do not lead to action
.

When you are in power, people are hanging on your every word, reading meanings and gravitas into them which may or may not be there--the Being There syndrome. Alan Greenspan was the classic example of this.  Markets rose and fell on his every semi colon. But, of course, as is so often  true of economists, he had no idea what he was talking about. 

When he had to admit this later, it didn't matter. Nobody was really listening. He was out of power

Paul Krugman has been speaking good sense, if not real science, for at least the past two years, but of course, it doesn't matter because nobody is listening who can actually put his thoughts into practice.


So what good are idea men?  Or more to the point, what good are ideas if the man or woman expressing them is not in power?

Well, if you're lucky, I suppose, they could lead to a job which puts you in or near power.

But ideas are like sounds in the forest with no ear to hear.


What made me think about all this was reading two recent pieces from very different perspectives,  one by Hendrick Hertzberg of the New Yorker and the other by David Frum, in the New York Times.

Hertzberg noted the enormity of Mr. Obama's defeat with cogently assembled numbers: This is the first time in sixty years the Democrats will have fewer than 200 members in the House of Representatives (which has 435). This was the result of an election in which about half as many people voted than in 2008, when he was elected. 


And what were those voters, always referred to as "The American People" thinking? 


Herztberg's wonderful analogy is to arson and those who respond to it. The arsonists of the economy were pretty clearly those who sailed with the Republicans.  Republican senators may not have lit the match, but they opened the door and looked the other way when the arsonists crept in with their incendiaries.


Only the firemen (the Democrats who had found themselves in power) were left for The American People  to wreck their fury upon.  


So the American People put the very accomplices to the arsonists back in power--the party that 1/ opposed the stimulus, the party that  2/ blocked the extension of unemployment benefits, the party that  3/ turned surpluses into deficits, the party which   4/rages against deficits but refuses to fix the deficit with a tax on the super-rich and The American People rage against inaction but reward  5/ The party of No, whose sole purpose is to prevent the re-election of Obama, and if that means the country  and its economy must tank for two more years, this party thinks that's the price we all must pay to rid the country of this Democratic President. 


And the wisdom of the American People can only be judged by exit polls, and pre election polls--and who knows how trustworthy these are--but what they tell us is that 2/3 believed  1/ middle class taxes have gone up under Obama,  2/ that the economy has shrunk under the Democrats,  3/ the Troubled Asset Relief Program (TARP) money was lost, thrown down the toilet to the undeserving rich Wall Street men  4/ The healthcare law, Obamacare, will add to the deficit. 


None of these turn out to be true, but you can always trust that "Voters are not fools" and in the "Wisdom of the American People."


Some of the fault in the dementia afflicting The American People, is the explanations for why these things are wrong is not easy--1/ Without the bailout the Great Recession would have become the Great Depression--but try proving what didn't happen would have 2/ The health care law will only slowly gain effect and so its benefits are not yet clear 3/ The macroeconomy is different from your kitchen table checkbook--sometimes when the checkbooks of ordinary citizens are closed the government really does have to go into more debt and spend or nobody will and the economy shuts down.


Unfortunately, President Obama is no Harry Truman. He apparently thinks The American People are all as smart as he is and could see this without being told in forceful ways. Instead, The American People listened to Sean Hannity and Glenn Beck and Rush Limbaugh and that gaggle of ignorant self serving paranoid misfits.


David Frum reflects on how Republicans managed to dupe themselves into believing the Bush economy was working, that lowering taxes on the rich would pay for themselves, that even as corporate profits soar, corporate America is teetering on the brink of destruction by self righteous Democrats bent on controlling everything. 

Frum notes Republicans have confused the free market economy with "The Markets." The Markets are the financial system which is well paid people playing with other people's money and risking little or none of their own. So, little surprise, The Wall Street Journal  thinks trillions of dollars of derivatives, enough to wreck the entire economy should go unregulated.  

And, Frum adds,  the Republicans fail to understand the economy is more important than  the budget deficits. Lastly, the Republicans failed to comprehend that Social Security is better than no Social Security, even if Social Security is a socialist plot. It turns out, keeping people paying their rent, buying groceries is even good for Wall Street brokers, who would have no financial system to bilk if there were no economy.


Republicans like Sharron Angle say un employment insurance breeds laziness, removes all incentive for people to want to work ignoring there are five applications for every job. Are all those applicants really lacking incentive?


So, there you have it, idea men, with good ideas, with access to millions of readers. 


But does any of this make a difference?


Only if those in power are listening to ideas, are capable of analysis.


Lyndon Johnson, on his tapes, can be heard taking a phone call from an aide who is complaining about the farm lobby arguing over a difference of 3 cents a pound in a proposed bill. Three cents a pound, the aide complains, can you imagine digging in your heels over three cents?  Johnson, a rancher, of course understands and sets his callow aide straight. When you are talking about a 3000 pound heifer, and you've got 10,000 head on your farm, yes three cents a pound adds up to real money. No wonder they are fighting. 


But then Johnson takes a call from Richard Russell, his good friend, about Viet Nam. Johnson likes Russell. They are both good ol' boys from iway back, from the school of hard knocks. The thing is, Russell tells Johnson, the Viet Cong know we are going to go home some day. And they know we know they know it. It is clear Russell is telling Johnson this is an unwinable war. But Johnson gives up analysis in this area. He says he's not going to bend his mind about Viet Nam. He's just going to listen to the smart boys, McNamara, and all those boys who went to Groton, and Andover and Exeter and Harvard and Yale. They know about these things. 


So, like The American People, of today. Johnson decided not to try to analyze things for himself. He just put his faith in someone.  Thinking, ideas, numbers, analysis, asking hard questions, was too difficult. Faith. Having faith in someone was so much easier.


Ideas didn't matter then. Don't now. 

First Ammendment Follies: Phantom Rights

I know there's a first ammendment and freedom of speech, but why is it so many people who reach the public seem to speak complete, unadulterated garbage, when there is so much truth to be told?

I mean, given the choice between truth and phony, what is the appeal of phony?

Here's a little sampling from the Portsmouth (New Hampshire) Herald: 
"[Horowitz] said the negative effects [of fluoride] include reduced IQ, hyperactivity, increased risk of developing certain types of cancer and severe thyroid damage.
'Fluoridated water has been shown to have very serious health effects: quadrupled risk of bone cancer in teenage boys, damage to the thyroid and other organs, which could explain the explosion in hypothyroidism, which itself has been linked to heart disease, mental decline and other illnesses.'"

I read this, as someone who has studied the thyroid for years, with great interest and could only think, "Haven't I seen this movie before?"

Ah, yes.   "Do you realize that fluoridation is the most monstrously conceived and dangerous Communist plot we have ever had to face? I can no longer sit back and allow Communists infiltration, Communist indoctrination, Communist subversion and the international Communist conspiracy to slip impurities into all of our precious bodily fluids."

No, that is not Rush Limbaugh, although the rhythms sound a lot like him. It's none other than Dr. Strangelove.

Right there, a living breathing Dr. Strangelove, given a platform in the Portsmouth Herald.

Ask the Herald and what do you think they'll say in their own defense?

Likely the usual dodge, "We just report the news, we don't judge it."

Which is to say, "We want to sell papers, not pay someone to do fact checking."

To be fair, the bull detector meter is not flipping off scale in just the Portsmouth Herald. A look at Today's New York Times gets the meter jumping, although the Times has less responsibility because we are talking about the Letters to the Editor. But here's a good one, a letter from a pediatric cardiologist, no less, about how we can reign in costs of medical care:

"Permitting licensed and certified nonphysician medical personnel to form medical practices without physician oversight should significantly increase the number of medical providers and decrease medical costs by tempering the present physician monopoly of our health care."

Wow. What a great idea. It's easy to believe there would be more medical providers if we were not limited to the number of doctors medical schools can pump out yearly, but who has the studies which show all those extra providers would actually result in decreased medical costs.

In fact, the last time this was tried, increasing the number of doctors medical schools pumped out increased costs exponentially because they ordered more tests, admitted more patients to hospital and the policy makers had to admit, "Oops," and they beat a hasty retreat.

Now, you will argue, but if we have more nurse practitioners, they will be lower cost, charging less than doctors and costs will fall. But that's actually only a part of the costs of practitioners to the system--it's all the tests they order, all the admissions to hospitals. And, I would venture to guess, these practitioners tend to be less confident and, if what I have seen is any indication, they actually order more tests, and more expensive tests, than well trained doctors.

So where do these instant experts get their information?

Best I can see is it's the same phenomenon you see in the South, where people want to be "Preachers" and to "Speak in Tongues," and bring the Truth, i.e., the word of God to you and me. It gives them some sense of satisfaction, of self importance--just watch Rush Limbaugh if you want to see a study in the desperation of a personality in search of self importance--and our institutions of public address support all this, more or less indiscriminantly.

But then again, why am I writing a blog?

Libertarians and The Phantom

Having run what amounted to a small business ( a solo medical practice)  for years, I got a taste of the cold fear with which a mom and pop enterprise can regard the government. I had a  one employee and I needed to pay an accountant to do my taxes and I had to hire a sort of book keeper to help me bill Medicare without straying into the dreaded territory of "fraud and abuse," which was easy to do, even if you were trying not to. 

For example, I had to send out bills for $4.95 after Medicare and Blue Cross had paid, because if I simply wrote off that amount, I was committing fraud and abuse. The rationale was if I was willing to accept less, willing to forgo that $4.95 per patient, then my real fee was $4.95 less than I had originally billed Medicare. Stuff like that.

I could never keep up with all the new rules and regulations.

And I was always vulnerable. 

One year I got a post card telling me I had failed to file for my license to practice medicine in the state of Maryland. The license was renewed every two years and that was just enough to mean I could forget if I had renewed this year or last, but I always got that big brown envelop when the time came due. Until one year, when Maryland decided it was cheaper to make every one renew on line. Trouble was, they didn't bother to tell everyone about it.

So I wrote letters of protest to my local state legislators and the man who ran the Board of Medicine license renewal wrote me a letter telling me how hard everyone in his office worked and it was all my own fault. 

I got my license, but a month later, I got notified I was being audited to be sure I had actually got enough continuing medical education credits to maintain my license. It was a "random audit," which just happened to occur after I had created a stink for the Board of Medicine license renewal guy. A random audit, after two decades of never being audited.

It was a message from City Hall to let me know I could be sunk with a single wave of their hand, unable to practice medicine in the state if they decided to get nasty.

It was just one more reason to leave Maryland, a page right out of The Wire.  Baltimore slime in its purest form.

So I understand antipathy toward government from the perspective of the little guy, I really do.

On the other hand, when I hear these Tea Party characters carrying on about how they are going to reduce the deficit which our grandchildren will be paying for by cutting wasteful government spending, I always want to ask: but Senator elect, exactly which programs will you cut? 

And they always come up with cutting the entire Department of Education, which would make hardly a dent in the deficit or the national debt. 

Ronald Reagan, Jim DeMint, all the Tea Partiers,  want to believe there's waste out there. Undeserving Welfare Queens living high on the hog, on the backs of hard working, deserving people like you and me. Waste, fraud and abuse. Just waiting to be cut. Cut the pay of federal employees by 10%, all those overpaid government workers; sock it to them. Make them pay for their extravagant lifestyles the way we would never dream of making the Wall Street broker/banker pay. We'll balance the budget with all the savings, melt down the deficit by reduction in work force slips to government workers.

Ronald Reagan cut lots of federal government jobs and he tripled the deficit  and unbalanced our budget big time--I think those numbers are right, but being right about numbers never has seemed to matter in this discussion. 

Nobody really cares about the numbers in this numbers game. Rand Paul says by simply cutting spending, you can make everything all right. Keep those tax cuts in place for the billionaires--deficit hawks strangely never seem to see the income side of the ledger, only the outgo. The income to the government is always a moral outrage to the Rand Pauls and Jim DeMints of the world.  But nothing outrages them more than the outgo side. We should simply not spend, and then we would not need an income. Try that with the family budget.

For Rand Paul and all those who travel with him, it's not really about the money or the numbers. It's about belief which is really not founded in hard data, just bedrock faith in the idea we must be getting cheated by the government, because if the government is bad, well then, we're on our way to solving our problem.

Erection Day: What the Phantom Doesn't Know

Today the Republicans will, by every pundit's prediction, sweep back into control of Congress, on a promise of cutting taxes, getting the government off your back, reducing the deficit (while reducing taxes for billionaires) all by cutting spending, (although exactly where they will cut they are vague about--certainly not anywhere you care about) repealing Healthcare, or Obamacare as they call it, and repealing the estate tax, or the Death Tax, as they call it.

What joy. Wow, what those Republicans can do, or promise to do.

And that mythical beast, "The American People," are buying it. A neighbor told me about a friend, homosexual man she knows, who is voting Republican. How can a gay man vote Republican? Well, he hates the "Death Tax." He calls it the Death Tax, so you know who he's been listening to. He is outraged, outraged he will be taxed twice. When pressed about who he intends to leave his estate to, having no children or much in the way of family, he says, well, he really doesn't know, but he wants the government off his back, taking his hard earned estate away from him and giving it to the undeserving slackers who the Democrats always give money to.

The Democrats have been in power, (which in the case of the Democrats is a phrase to use advisedly,) for two years and apart from avoiding a Depression, passing a law to limit the power of health insurance companies, they haven't done much.

 In fact, to listen to the Democrats, you'd never know they'd done anything.

When the Democrats say they want to cut taxes for the middle class and keep the rates for the billoinaires, the Republicans huddle and come up with the phrase, "Class Warfare," and the Democrats go into a dead faint and when smelling salts revive them, they apologize for the whole idea.

If these are the Democrats, well then they do not deserve to rule. You've got to be able to come up with a phrase to parry whatever phrase the Republicans use.  Maybe something like, "It's not class warfare, it's called "Eat more, Pay more," or something like that. Think on it, maybe you'll come up with something better, but when you do get every Democrat using that phrase, just as the Republicans all use the same phrase until to becomes TRUTH, because, well, everyone's saying it and nobody's denying it, so it must be true.

The problem is, you can only feel sad. You see the Confederate States of America, fighting for slavery, economic oppression and moral smugness and winning, not because of the justness of their cause but because they have better generals, and you cannot feel anything but sad.

And so it is now--the might of the Republican Party, is not made right. They've got Carl Rove, Rush Limbaugh, John Boehner and Glenn Beck. They win because they are smarter. They are smarmier, and oh so sure. "Why is it the stupid are cocksure and the intelligent full of doubts?" I forget who said that. Some Englishman. But it sure holds true in our country.

Thus do once great nations decline.

Oh well, the English have declined for similar reasons and it's not so bad living in a second rate world power. You can still go to the pub, root for the local football team and find a mate. And in England, if you get sick, someone will take care of you.

Beware whenever you the word "Volunteer" coming out of the mouth of a government official. The two President Bushes were very enthusiastic about citizens volunteering to get things done in the community. Of course, if the citizens volunteered to collect the garbage, pave the roads, teach the school children, man the emergency rooms, hand out soup to the starving at soup kitchens, then government would not have to pay people to any of these things, and this was seen as a good thing and wonderful way to serve the people without having to pay for it.

Franklin Delano Roosevelt eventually decided to go the other route, by putting citizens on the payroll to do essential jobs, and then, when there weren't enough of those to employ everyone, he dreamed up some less essential jobs, like planting trees, painting murals and doing a lot of things which still have value today, but which in his time were disdained by the wealthy as "make work" jobs. Somehow, though, the citizens elected him to 16 years of office, more than any other president before or since.  

While it took the American public eight years to catch on to the problems inherent in pleading with citizens to do the jobs which government didn't want to pay for, and to see that the Reagan mantra of "Government is not the solution; government is the problem," meant that government when run incompetently really is a problem, but when run well can offer at least some solutions, apparently the idea has floated across the Atlantic like a cloud of marijuana smoke and the current coalition government led by David Cameron has inhaled deeply.

Britain, the plan is, will become a "less selfish" place. The State will be replaced by the Community.  Instead of hiring people to guide tourists around London during the 2012 Olympics, volunteers will do the work, unpaid, intoxicated by the ad campaign: "Ten days giving directions. Ten nights with a sore throat...Have you got what it takes?"

The British government is just giddy with the prospect of all the free labor (not Labour) it will get out of its citizens. Signs which once advertised paying jobs now advertise "Opportunities," to sweep out yoga studios, for free.

Of course, if you are Lady So and So, a little slumming giving directions to the Olympics may prove invigorating, but if you are unemployed, middle class, Lady So and So is taking your job.

It really is quite astonishing, when you think about it. The rich, well supported are asking the much less wealthy, the strugglig to be a good sport and do the work for free, and this is sold as governing smart.

All of this comes as a great relief to me, as an American, because it means the Brits, after all, are at least as stupid as we are,as we have been. So many Europeans pointed to the re election of George W. as evidence the U.S. electorate was afflicted with brain worm. 

Now it appears the worm has spread.

Well, we do have globalization.


Once upon a time there were British fighter pilots who volunteered to save the Empire by flying up to smash the Luftwaffe. But you know, they were paid volunteers.  When you come right down to it, they were government employees with full benefits and pensions--if they could only live to collect them.


But the thing is, government worked for the Brits during the Battle of Britain.

A Come To Jesus Moment

Vanderbilt University is a chimera of North and South. Founded in 1973, just 8 years after the end of the Civil War, in Nashville, Tennessee, the founding Vanderbilt spoke of an institution where the youth of both sections of the country, North and South could intermingle and learn from each other. Until recently few children of the North took him up on his offer. But when Gordon Gee became head man of the university, he directed his admissions officers to seek out bright students from New York City, Washington, DC and Chicago, to bring a better mix of ideas and viewpoints to the campus.

What had been a frat boy/ sorority girl good ol' Southern campus slowly, but inexorably transformed into a campus where a sizable minority of students and a substantial majority of the faculty hailed from the North.

It is in this setting that a faculty member with an Ivy League education called on one of his students, who grew up in Dallas, and asked for an analysis of a knotty ethical/ philosophical problem presented by a passage the class had read.

"What would you do, in this situation? How would you discern the proper course of action, balancing these countervailing moral imperatives?"

The student replied, brightly, "Well, I would ask myself: What would Jesus do?"

Sitting next to this responder, a student from Washington, DC, pulled at the neck of his own Grateful Dead T shirt over his head and groaned, "That's it. I can't take any more."

And that is where this sort of exchange between sophisticated, urban people from the Northeast and their more earnest, if somewhat less rigorous countrymen from the bible belt often ends. Both parties are offended, neither can control emotions well enough to do much more than sputter.

But let's for a moment imagine you are the professor--how do you get the class by this moment?  On the one hand, you recognize the responding student had simply used what he thought would be a perfectly socially acceptable dodge to avoid having to face the thorny issue. So this sweet and commonplace response is really a lazy man's substitute for thought. And what's more aggravating to the Northerner is that simpering smile on the face of the bible thumper, who expects everyone to applaud his dodge as some sort of brilliant and commendable effort.

From the point of view of the bible thumper, his was an honest and earnest response, an attempt to ground his approach in a bedrock tradition and to move forward from there.

As the professor you might ask, "But how on earth would you know what Jesus would have done in this situation? Here you have a man who asks a surgeon to perform an operation to transform him into a woman, while the surgeon has good reason to believe the patient would  commit suicide once the deed is done and the patient now has to live with the result. And the surgeon has very solid basis for believing that  before, and even more after, the patient  would be a high suicide risk.  Now did Jesus ever confront a dilemma like this? Did anything he ever faced or said offer any guidance in such a situation?"

Or, you might say, "Well, what makes you think Jesus is such a moral authority that you would abandon all of your own individual capacity for drawing moral conclusions and simply say, 'Well, whatever Jesus says, I'll go with that. Ditto that for me,' Why would you abrogate your own individual capacity to decide the right and wrong by ceding the decision to someone else?"

And if he says, "Well, because I believe the source of all goodness is God, and Jesus is my Lord and so I go back to Him for all decisions when it comes to right or wrong."  Then what do you say?

But how do you know the mind of God?

And if he says, "From reading the Bible."

And if you ask where in the Bible is there a passage about transgender surgery, he responds there are parallel parables to inform you, and you ask which ones, then you at least get to the problem of trying to look to sources of authority for answers, whether it's a holy book or a Nobel Laureate or a parent or anyone other than yourself.

At least, you have had a substantive discussion about a process and a set of values.

Not to say all the pre packaged drivel comes from the right.

Look at Bernadine Dohrn and the Weathermen and the SDS. The Weathermen said they worked for a world in which U.S. imperialism was destroyed and a classless society would emerge.  As if there can ever be a classless society, with its implication people will be able to live without looking down on someone and up to someone else.

And, of course, when you think you can make a perfect world, that there is some imperative for you to try to make a perfect world, what sort of action do you wind up justifying?  For Bernadine Dohrn, it was saying the murder of the pregnant Sharon Tate by Charles Manson's clan, who stuck forks in Tate's belly, "Dig it!...Far out." For Bernadine, it meant placing a bomb at a non commissioned officers' dance and killing unsuspecting, defenseless people is a laudable act of revolution.

And that's where the revolutionaries of the 60's lose me. They were the jihadists of their time and these true believers were not much different than the guys on the airplanes who were interested in claiming their seven virgins in heaven. 


They were just coddled white kids who were just playing at life.

They were English majors, or political science majors, kids who never had to compete in those high stakes organic chemistry classes for a spot in medical school, kids who had time to sit around dorm rooms for all night bull sessions, talking  about life and the suppression of the underclass or the third world.  

They were sitting at tables, doing drugs, having group sex, which is fine, but not exactly difficult. 

Pre medical students,  and engineers did not have time for such games. 

Kids who were not in college at all, but who worked the third shift at the factories did not have time for these children of privilege who were so concerned about the pigs who suppressed the factory workers. 

The SDS and the Weatherman were doing  revolution from the top down, and since they really didn't have any skin in the game, because they could (and eventually did) go back through all those doors which their lawyers opened for them, the doors back to their townhouses or ranches or suburban sun lit lawns, they were just play, make believe revolutionaries. They were suburban housewives riding on the back of motorcycles pretending to be rebels.


I think it's the language which is the give away: Dig it? When you have undergraduates from the University of Chicago saying "Dig It, Far Out, " you have a phony. You have someone slumming, playing at her new identity.


Now, if you have people who say, you know, how different are we from those Germans, who knew millions were being killed just out of sight, when we can see people on TV every night, being killed by American soldiers and we do nothing to stop it?  But we can speak out. The issue is how much do you have to do to feel your conscience is clean?


I hated Lyndon Johnson and those he was a war criminal. But what I could I do? Set off a bomb at the capitol? If I were really convinced it was my responsibility to end the war or I would be complicit, would I have not been required to try to assassinate him?  And how effective would that have been? Did we not have an election which over turned the government? And the new government, under Nixon, widened the war and invaded Laos and Cambodia.


The reason the Germans were guilty was not that they did not succeed in overthrowing Hitler. The reason was they were shouting Zeig, Heil, and raising their arms to him and singing Hosanna! It was not that they remained silent; they were screaming, "RIght on!"

When did the Weathermen ever do anything really difficult?

How difficult is it for the bible thumper to smile beneficently and say, "Well, I would just ask what Jesus would do." 


I suppose that's my complaint. My Come to Jesus moment.  When you are in a position where you are in rebellion  because you have nowhere else to go, then you are a revolutionary; when you invoke Jesus, after you have considered all the options, then you are a true believer. 


Being real is almost always difficult. It usually means doing the hard thing. That's my rant, and I'm sticking to it.

Cheerios, Lies and the American Way

My Cheerios box says, "Every Box Can Help a Heart," which I do not take too literally, thinking the box can somehow help my heart, but what Cheerios meant to say is what is inside, namely the Cheerios cereal itself can help your heart, presumably by lowering your cholesterol, a claim I recall from previous Cheerios boxes and this box does say, "Free Cholesterol Screenings," so I guess Cheerios is still tying itself to happy cholesterol tydings.

Examing the box, looking for the reference to the medical journal with the article which showed the beneficial effects of Cheerios in lowering the blood cholesterol in human beings, I could find no such reference.  Not to be deterred, this being the 21st century, I popped on the internet and keyed in "Evidence Cheerios lowers cholesterol" and found nothing except a series of articles about the FDA reprimanding General Mills for making false claims about the cereal's ability to lower cholesterol, which, by the way is not exactly the same as preventing heart disease, but it's a step in the right direction, provided it lowers the LDL cholesterol, not the HDL, which is to say, we'd like to know Cheerio's is lowering the right cholesterol.

Presumably, somebody did some study Cheerios can hang its hat on, although for reasons I'm about to explain, it would be a huge surprise if Cheerios lowered blood cholesterol in any clinically significant way.

The reason dates back to Dennis Burkitt's original observations that in West Africa, where people in the bush eat a very high fiber diet, so high it makes their stools into cow pies, there is very little coronary artery disease and presumably, the natives have lower blood cholesterols. (He did not measure the natives' cholesterols--but he speculated, a wild guess he said, that maybe the fiber accelerated the movement of gut contents through the gut enough that the gut didn't have enough contact time with the cholesterol in the diet to actually be able to get the cholesterol out of the food and into the blood. Increased transit time, he called it, might result in decrease absorptive time. ) But the dietary fiber had to be high enough to change the stools, into cow pies and to increase the transit time of food through the gut. Cheerios does not do this. Kellogs Original All Bran, can do this, and it's the only cereal on the shelves of the American supermarket I'm aware of which can do this.  Presumably, General Mills does not want this getting out, that Kellogs has the better fiber cereal, the only fiber cereal actually, but Cheerios started it with the false claims. (Personally, I mix the two. All Bran is like eating cardboard. Cheerios are fun. Cheerios are fun, tasty but not any better for your health than celery, maybe less.)

But taking a conjecture and turning it into a marketing campaign is what American industry advertising  is all about. American politics, ditto.

It is a free country; there is a First Ammendment guaranteeing free speech.

But you can't cry fire in a crowded theater, and there are or ought to be limits on free speech.

The question is, can commercial speech, i.e. advertising, be held to a higher standard?

If you are making money from what you say, is it not reasonable to require you have to provide evidence of its truth, when challenged?

As for the reasoning behind fiber as a potential healthy thing, I'm attaching below a copy of a letter to the New England Journal of Medicine, which provides a little fleshing out for anyone interested.

Correspondence


Dietary Fiber and Colorectal Cancer

N Engl J Med 1999; 340:1924-1926June 17, 1999

Article

To the Editor:

The fundamental flaw in the article by Fuchs et al. (Jan. 21 issue)1 concerns the definition of what constitutes a high-fiber diet. I was lucky enough to attend one of Dr. Denis Burkitt's lectures in London in 1972 and vividly remember how he defined a high-fiber diet. It had nothing at all to do with the calculations of Southgate et al.2 or any other calculation; whether a diet was considered to be high in fiber depended on the effect the diet had on the stool.

Burkitt began his lecture with a slide showing a stool of a typical Western, “civilized” person, a sausage-shaped thing, familiar to most of us, in a toilet bowl. His next slide was of a stool of a typical rural West African, which looked like a flat cow pie. Burkitt postulated that the West African's stool moved more quickly through the colon, giving carcinogens contained on its surface less time to be in contact with the mucosa — thus less time to induce carcinogenesis.

During the question-and-answer period, many questions from the audience concerned how one determined whether or not a diet was high in fiber in the sense Burkitt meant. Burkitt shook his head at all the salads, cereals, and breads offered as sources of fiber. He showed a slide of the staple cereal eaten by West Africans, which looked, in its wooden bowl, not too different from the stool that came out the other end. The only thing the study by Fuchs et al. proves is what anyone who heard Burkitt's lecture already knew: the American public has been sold a sugar-coated misconception.