The data previously discussed about the conservatism of the Robert’s Supreme Court being the most conservative since the 1930s has been studied and documented in terms of actual decisions and ideological bent of the justices. Anyone that would doubt this should address their concerns to the studies and we can debate them but not to me personally as I am simply conveying the facts.

I think one important problem that comes into play in this discussion concerns the question, what is a conservative? The only way to really address this is to clarify our terms from a historical perspective. In particular, the words ‘conservative’ and ‘liberal’ have undergone some rather substantial modifications in recent times. When the Supreme Court rules on cases it codifies not only constitutional concerns but also historical, hermeneutic concerns we call precedence. In other words, the court must inevitably interpret and codify the founding documents of the country from these considerations:

1. the changing, historical challenge which results from shifting vernacular semantics
2. the need for further detail
3. the need address issues never explicitly formulated by the Country’s founders as illustrated by Amendments to the Constitution and their ramifications

The Supreme Court does not act in a hermeneutic and historical vacuum. In order to understand what a conservative Supreme Court would be, it is important to get some historical perspective on conservatism and liberalism. This discussion makes no attempt to discuss what ‘liberal’ or ‘conservative’ mean for the studies themselves, that is already defined in the perspective studies, but only historical considerations which should come into play when contemplating these concepts.

The Liberal and Conservative Tradition

Traditionally, the liberal tradition since the democracy of Athens was a liberation from oppressive and entrenched social, religious and governmental power structures. This is not to suggest that ancient Greece got this right from a modern perspective, only that the beginnings of these historical notions can be found from these early sources. The word ‘liberal’ comes from an ancient Greek word eliferos. It means to free or liberate. From this root we get the words liberty, liberal, liberate, liberation, liberator, liberally, liberality, liberalist, liberalize, libertinism, libertine, libertarian.¹ Liberation and freedom assume liberation from something or a freedom to something. Traditionally, this came to be thought as liberation from oppressive forms of government, ethnocentrism, misogyny, slavery, and economics. It was also thought in terms of human nature as liberation from vice, sin and selfishness. However, even in this case, socially organized, centralized power structures such as religion or secular law were typically already set up and present with the reckoned plight of the inflicted individual. Thus, in this case, liberation from an individual’s human nature was generally already entangled in a centralized secular or religious hierarchy which historically did encroach on individual liberties or freedoms (i.e., according to the Reformation’s critique of Catholicism). A historical notion that emerged from liberalism is the idea of equality. In the Declaration of Independence Thomas Jefferson in his immortal declaration declared:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed

What and how this equality gets worked out remains controversial to this day. However, from Jefferson’s explicit admonition we can say without reserve that this was an ontological claim. The claim is made on our origin, our beginning and thus, our being. In view of the aristocracies and monarchies of Jefferson’s day this was a radical and liberal statement. Jefferson, as many liberals before him, could not find a way to justify individuality on any basis other than equality. If preference is given by a state, a religion or social mores of one individual over another it is a form of untruth. Liberalism opposes favoritism and calls for impartial justice for all individuals; for not conserving the status quo of traditional power structures.

Individualism in liberalism has historically evolved into what philosophers call a metaphysic. A metaphysic operates as an axiom of truth which cannot be proven; at least from what modernity would think as a law of physics. A metaphysic addresses us at the level of being or ontology. The metaphysical axiom operates at a pre-conscious level. We always, already act as if it was a simple given. Even when we disagree with the axiom, we are still compelled by the axiom to disagree. For example, some may want to claim some sort of racial eugenics which goes radically against equality and individuality but they continually have to fight an uphill battle to do so once the absolute metaphysic of individualism and equality has been historically established. A metaphysic has gone to the level of unquestioned truth by most and is deeply rooted in historical consciousness. It can be opposed but even in vehement opposition it assumes a struggle with a deeply rooted adversary.

Once an absolute metaphysic of the individual is maintained, the question comes into play, how and should individuals be given preference in such an ideology? Historically, this question has been answered in various ways such as natural rights, meritocracy, libertarian, Keynesian, social safety net and civil rights. The limits of liberalism seem to be on one hand at conservatism and on the other hand at collective ideologies, which understand the individual in terms of a group and tend towards centralized organizational structures, such as various forms of socialism and communism. However, it is interesting to note that whether conservatism is on the right or the far left, both agree on a form of statism, a central governing power structure which requires conservation not liberation.

From the ancient Greeks throughout history there were always those who interests were protected by social, political and religious structures. These folks wanted to preserve the status quo and suppress tendencies for liberation. The word, conservative, was not used until recent times but it accurately describes those that wanted to resist changes to the norm, the established order. Moral judgments such as good conservatism or bad liberalism were always relative to each group. However, historically, liberators stood for freedom from tyranny. Historically, conservatives stood for persevering what was tried and true, in their opinion. Nonetheless, problematic issues have shown themselves from the conservative/liberal dialectic.

A historical transition from the new liberators to the old oppressors has been a constant criticism of the conservatives in order to invalidate the initial impetus for freedom. In spite of this, there has never been a shortage of liberation seeking folks as there has never been a utopia which did not necessitate liberals. Conservatives have maintained the charge that ‘the new boss may be worse than the old boss’ so to speak. As long as social doubt remains about change, the conservatives have historically won the day. However, when conditions become severe enough to necessitate change, liberals or revolutionaries have prevailed. Liberals have also been accused of enabling conservatism in the form of the bourgeoisie. The conflict between liberalism and conservatism illustrates a fundamental conflict in how humans understand being. At its roots, being has elements of individualism and collectivism. This archetypal conflict was encoded in the U.S. Constitution with the struggles of Thomas Jefferson and John Adams. After the federalism of George Washington, John Adams and Alexander Hamilton, the liberal ideology of James Madison and Thomas Jefferson won out in American politics from the 1790s to the 1820s. At that time the Jeffersonians were called the Democratic-Republicans or simply the republicans for short but they were very different from the modern Republican Party.

Jefferson wrote in 1798:

Two political Sects have arisen within the U. S. the one believing that the executive is the branch of our government which the most needs support; the other that like the analogous branch in the English Government, it is already too strong for the republican parts of the Constitution; and therefore in equivocal cases they incline to the legislative powers: the former of these are called federalists, sometimes aristocrats or monocrats, and sometimes tories, after the corresponding sect in the English Government of exactly the same definition: the latter are stiled republicans, whigs, jacobins, anarchists, disorganizers, etc. these terms are in familiar use with most persons.²

However, near the end of the 1820s the Democratic-Republican Party split into the Republicans with John Quincy Adams and the Democrats with Andrew Jackson. John Adams believed in a strong central government while Jackson opposed central banks. In those days, typically, liberals were skeptical of established, centralized forms of government and defended individual freedoms. Conservatives championed federalist causes and central banking. The traditional ideas of liberal and conservative have undergone even more mutations in more recent times but these mutations may be more of a modern confusion than a real challenge to these observed categories of human behavior.

As mentioned, conservatives did not want change existing power structures. They wanted to guard established orders and traditions which organized society both religiously and politically. Liberalism can be traced throughout history in the writings of Aristotle, Machiavelli, Hobbes, Spinoza, Locke, Adam Smith, Kant and Thomas Jefferson. For Aristotle liberation was from personal vices and selfishness to the highest virtues. Aristotle wrote that “Of all the varieties of virtues, liberalism is the most beloved”. Others thought of liberalism as a kind of interventional development out from pure self-interest which emerges as virtuous from nature, reason, social contract either validating or invalidating government or efficient, laissez-faire capitalism. In more recent times, the notion of virtue with regard to liberalism, the esteem of individualism over protectionist institutions, has either been dismissed as yet another strategy of the state or as a metaphysically assumed, absolute individual which has no essential relation to social structures external to itself. These developments have muddled the traditional approach to liberalism and conservatism. One such example of these mutations can be thought from the perspective changes of the ‘old right’ and the ‘new right’ in the United States.

The new right is a term used to describe a change in conservative politics starting around 1955. The previous form of conservatism, called the old right, started around 1933. They old right was for a small decentralized federal government. They opposed the federal, New Deal domestic programs started by FDR during the Great Depression. The old right was non-interventionist. They opposed entry in to World War 1 and 2. As Murray Rothbard put it:

The Old Right experienced one big sea change. Originally, its focus was purely domestic, since that was the concentration of the early New Deal. But as the Roosevelt administration moved toward world war in the late 1930s, the Old Right added intense opposition to the New Deal’s war policies to its systemic opposition to the domestic New Deal revolution. For they realized that, as the libertarian Randolph Bourne had put it in opposing America’s entry into World War I, “War is the health of the State” and that entry into large-scale war, especially for global and not national concerns, would plunge America into a permanent garrison state that would wreck American liberty and constitutional limits at home even as it extended the American imperium abroad.³

The old right mostly believed in laissez-faire, classic, liberalist economics such as articulated by Adam Smith. The old right was pro-business and anti-union as echoed by Robert Taft. The old right was for individualism and anti-statist or anti-federalists. As such, they resisted any intrusion of government into religion or morality. They had more of a stoic and silent opposition to legislating morality. Jeff Riggenbach claimed that before 1933 the predecessors of the old right was considered as classic liberals and claimed to be part of the older, Jeffersonian left.⁴ However, Jeff Riggenbach quoting Clyde Wilson, South Carolina historian Clyde Wilson, claims that the Republican predecessors of the old right departed from the company of the Jeffersonian Democratic-Republican Party:

As Wilson tells it, “[t]he very name of the Republican party is a lie. The name was chosen when the party formed in the 1850s to suggest a likeness to the Jeffersonian Republicans of earlier history. This had a very slender plausibility.” The first problem was that “the Northern Republicans were totally committed to a mercantilist agenda, every plank of which Jeffersonians had defined themselves by being against. The Republicans of the 1850s exactly represented those parts of the country and those interests that had been the most rabid opponents of Jefferson and his Republicans.”⁵

Mercantilism occurred in Europe from around 1,500 AD to 1,700AD from the collapse of the feudal system to the establishment of national states. It is generally understood as:

The underlying principles of mercantilism included (1) the belief that the amount of wealth in the world was relatively static; (2) the belief that a country’s wealth could best be judged by the amount of precious metals or bullion it possessed; (3) the need to encourage exports over imports as a means for obtaining a favorable balance of foreign trade that would yield such metals; (4) the value of a large population as a key to self-sufficiency and state power; and (5) the belief that the crown or state should exercise a dominant role in assisting and directing the national and international economies to these ends.[link]

While the old right was pro-business, they were also anti-mercantilist. The anti-mercantilist agenda was a reaction to the conspiratorial, monopolizing tendency of manufacturers and merchants with the government against consumers. Adam Smith and David Hume were major critics of mercantilism. Adam Smith wrote a very influential critique of mercantilism in 1776 called An Inquiry into the Nature and Causes of the Wealth of Nations. Adam Smith stated in this work:

MERCHANTS AND MANUFACTURERS are not contented with the monopoly of the home market, but desire likewise the most extensive foreign sale for their goods. Their country has no jurisdiction in foreign nations, and therefore can seldom procure them any monopoly there. They are generally obliged, therefore, to content themselves with petitioning for certain encouragements to exportation.⁶

This same sentiment can be found all the way to Aristotle. In Aristotle’s Politics he states this:

There are two sorts of wealth-getting, as I have said; one is a part of household management, the other is retail trade: the former necessary and honorable, while that which consists in exchange is justly censured; for it is unnatural, and a mode by which men gain from one another. The most hated sort, and with the greatest reason, is usury, which makes a gain out of money itself, and not from the natural object of it. For money was intended to be used in exchange, but not to increase at interest. And this term interest, which means the birth of money from money, is applied to the breeding of money because the offspring resembles the parent. Wherefore of all modes of getting wealth this is the most unnatural.⁷

Today, we might think of this as monopolizing market manipulation and corporatism. The old right did not think highly of the “Eastern Establishment-Big Banker-Rockefeller” wing of the Republican Party. The old right thought of the Rockefeller Republicans as statists which stood for big business and New Deal policies. The Rockefeller Republicans were subsequently referred to as RINOs (Republicans in name only). When big business in the early days of Standard Oil squashed competition through the use of government sponsored regulation, the old right saw this as a new form of mercantilism.

The old right began to diminish with Eisenhower’s expansion into Vietnam and McCarthy’s ‘red scare’ of the 50s. The threat of worldwide communism was enough to shift the Republican Party from the old right’s disdain for centralized government to justification for a newly found conservative emphasis on justifying stronger Federalism for defense, or more accurately offensive, purposes. The new right rose with the presidential campaign of Barry Goldwater and Bill Buckley’s publication, The National Review. Writing of the fading old right and the rise of the new right, Murray Rothbard writes of one last stand by Ron Hamowy of the old right against the new right here:

Ron Hamowy, however, managed to publish in NIR a blistering critique of the New Right, of National Review, its conservatism and its warmongering, in a debate with Bill Buckley. Hamowy, for the first time in print, pinpointed the betrayal of the Old Right at the hands of Buckley and National Review. Hamowy summed up his critique of National Review doctrines:

They may be summed up as: (1) a belligerent foreign policy likely to result in war; (2) a suppression of civil liberties at home; (3) a devotion to imperialism and to a polite form of white supremacy; (4) a tendency towards the union of Church and State; (5) the conviction that the community is superior to the individual and that historic tradition is a far better guide than reason; and (6) a rather lukewarm support of the free economy. They wish, in gist, to substitute one group of masters (themselves) for another. They do not desire so much to limit the State as to control it. One would tend to describe this devotion to a hierarchical, warlike statism and this fundamental opposition to human reason and individual liberty as a species of corporativism suggestive of Mussolini or Franco, but let us be content with calling it “old-time conservatism,” the conservatism not of the heroic band of libertarians who founded the anti-New Deal Right, but the traditional conservatism that has always been the enemy of true liberalism, the conservatism of Pharonic Egypt, of Medieval Europe, of Metternich and the Tsar, of James II, and the Inquisition; and Louis XVI, of the rack, the thumbscrew, the whip, and the firing squad. I, for one, do not very much mind that a philosophy which has for centuries dedicated itself to trampling upon the rights of the individual and glorifying the State should have its old name back.⁸

The new right increasingly gained influence in conservative politics through Ronald Reagan and Newt Gingrich. The consolidation of fundamentalist Christians and federally sanctioned morality in such issues as anti-abortion and gay marriage has continued through the present day. Jeffersonian individualism which came out of classic liberalism was wrongly co-opted partly by the new right’s mercantilism, its big business agenda, but ultimately by the statist merger of religion and the state in terms of politically sanctified issues like the moral majority, anti-abortion and gay marriage.

When the Supreme Court rules on issues such as civil rights, gay marriage and abortion, it appears confusing to modern conservatives who have deviated from their old right roots and liberals which have moved more towards Federalist policies. However, the Supreme Court is not a modern institution only. It has a history and a precedence to preserve which does not lend itself too quickly changing ideologies. In the future I would like to look at some recent issues which have angered liberals and conservatives with a historical perspective in mind to try to understand how some of these confusions have come about not from a changing Supreme Court but more from changing historical notions of conservative and liberal ideologies.

_________________

¹ See Link

² letter to John Wise in Francis N. Thorpe, ed “A Letter from Jefferson on the Political Parties, 1798,” American Historical Review v.3#3 (April 1898) pp 488-89 in JSTOR

³ See Link

⁴ Riggenbach, Jeff. “The Mighty Flynn,” Liberty January 2006 p. 34; Also, WHY AMERICAN HISTORY IS NOT WHAT THEY SAY: AN INTRODUCTION TO REVISIONISM, Riggenbach, Jeff, page 130, Link

⁵ WHY AMERICAN HISTORY IS NOT WHAT THEY SAY: AN INTRODUCTION TO REVISIONISM, Riggenbach, Jeff, page 131, Link

⁶ See An Inquiry into the Nature and Causes of the Wealth of Nations, page 400

⁷ Aristotle, Politics, Part X, Link

⁸ THE BETRAYAL OF THE AMERICAN RIGHT, MURRAY N. ROTHBARD, page 176-177, Link

I have compiled some research data, with links, below to illustrate some history and facts about the Supreme Court. I will make comments about this data on a later post as this post will be quite lengthy. For now, let the data speak for itself:

Here are the current justices:

Alito, nominated by George Bush gave the Supreme Court a conservative majority. Conservatives were elated in the mid 2000s about their historic 5 to 4 majority.

The same blogs that registered extreme opposition to the nomination of Harriet Miers for the Supreme Court are overjoyed by President Bush’s selection of Samuel A. Alito Jr. to replace Justice Sandra Day O’Connor.

Manuel Miranda, chair of the Third Branch Conference, who along with former Bush speechwriter David Frum was among the first to openly criticize Miers, calls Alito “immensely well qualified” and “a constitutionalist who has weathered one of the more liberal federal circuit courts in the country.” Miranda likened the nomination to that of now Chief Justice John Roberts, calling the Alito selection “a grand slam.”

Other reactions from conservatives were similarly ecstatic. Americans for Better Justice, which opposed the Miers nomination, issued a statement that said, “Alito possesses both the brilliance and humility necessary in a Supreme Court justice.”

Unlike the Miers pick, Alito’s qualifications are beyond doubt. That means the debate will center on his judicial philosophy, which positions conservatives for the ideological fight they’ve been seeking.

That battle will be fought over two main issues: abortion and religious freedom. Liberal Democrats and some Republicans will want to know the reasoning behind Alito’s disagreement with the Third Circuit majority in Planned Parenthood v. Casey. In that ruling, as the lone dissenter, Alito voted to uphold Pennsylvania’s informed consent, parental consent and reporting and public disclosure requirements. The Supreme Court later affirmed his court’s majority decision.

In another highly charged abortion case, Alito voted in favor of spousal notification prior to an abortion. He based his decision on the “undue burden” standard articulated by O’Connor in Supreme Court cases Webster v. Reproductive Services and Hodgson v. Minnesota. The law Alito upheld fell short of giving husbands veto power over their wives decision to have an abortion.

While abortion-rights advocates are already attacking that ruling, it is important to note that spousal notification was not Alito’s idea. Pennsylvania voters enacted it with four safeguards allowing a woman to have an abortion without telling her husband: (1) if the woman believed the husband was not the father; (2) if the husband could not be found after diligent effort; (3) the pregnancy was the result of a spousal sexual assault that was reported to the authorities, and (4) the woman believed the notification was likely to result in the infliction of bodily injury to her. Alito’s role was to decide whether Pennsylvania voters had violated the Constitution by enacting such a statute.

Alito does not appear to be a judicial maverick. In an affirmation of precedent, he voted to strike down New Jersey’s ban on partial-birth abortion because of an earlier Supreme Court ruling that a similar Nebraska law was unconstitutional. He emphasized the “responsibility” of judges “to follow and apply controlling Supreme Court precedent.”

On religious freedom questions, Alito’s rulings appear to side with conservatives who favor free religious expression in public places, rather than with liberals who mostly favor a public square devoid of religious speech.

In 1990, the Senate Democrat majority unanimously approved his nomination by President George H.W. Bush to the federal Court of Appeals. He won plaudits from several liberal senators, including Frank Lautenberg of New Jersey, who said Alito is “the kind of judge the public deserves – one who is impartial, thoughtful and fair.” Sen. Bill Bradley of New Jersey backed Alito “100 percent” and said he would “make a contribution that will stand the test of time.”

Even Sen. Edward Kennedy of Massachusetts liked Alito, saying he has a “distinguished record … (w)e look forward to supporting you.” Sen. Arlen Specter, R-Pa., and now chairman of the Judiciary Committee, said Alito’s 1990 nomination to the Appeals Court deserved “clear sailing.”

Having enthusiastically backed Alito then, it will be difficult for liberal Democrats to claim he is unqualified for the Supreme Court now. But they will try with their usual claims that someone who might overturn what previous activist judges have imposed on the country is “out of the mainstream.”

Conservatives have been itching for an ideological battle over the Constitution and the direction of the court. Depending on the level of liberal opposition, they may get one. If Alito turns out the way his record and judicial philosophy indicate he might, conservatives could be thanking Bush for decades to come. [Link]

The conservatives were euphoric over the Roberts nomination.

From Fox News in 2005:

A Conservative First Choice

While many names had been floated as the possible Supreme Court pick, one certainty was that the nominee was going to be conservative.

Sen. Lindsey Graham, R-S.C., one of the so-called “Gang of 14” senators who crafted an agreement that called for the use of a judicial filibuster only in “extraordinary circumstances,” said he had met with Roberts before his nomination to the Circuit Court and he was happy to vote for him then and again now.

“He’s a well-respected lawyer, 153 lawyers in the D.C. area [were] supporting his nomination to the Court of Appeals,” Graham told FOX News, referring to a letter of support Roberts won in 2003.

Earlier in the day, Graham argued that Democrats should not be surprised by the nomination of a conservative to the bench. Graham noted that simply being conservative was “no longer an extraordinary circumstance” as defined by the “Gang of 14” agreement.

“President Bush campaigned he would pick a solid conservative, I expect for him to live up to his promise. Our goal is to make sure a solid conservative sits on the Supreme Court that is not beholden to any special interest group,” Graham said.

Judiciary Committee Chairman Arlen Specter, R-Pa., was called to the White House on Monday to discuss the timing of an announcement. Specter, who will lead the confirmation process in the Senate, has said he hoped Bush would select a jurist who will bring “balance” to the court. On Tuesday evening, however, Specter said Roberts had “extraordinary professional qualifications.

“I would say professionally, it would be hard to find someone with better credentials than Judge Roberts, but you ask a question whether it’s a safe nomination. I don’t know that anything in Washington is safe if it’s a nomination,” Specter said. “Let’s give the hearing process a chance and let’s give Roberts a hearing. I’m just a little surprised that he’s already subject to criticism, but this is America.”

Long before Monday’s meeting with Specter, Bush had been considering O’Connor’s replacement and consulting with lawmakers and aides.

Days after O’Connor announced her retirement on July 1, the president headed to Denmark to thank the Danes for their support of the war in Iraq. While traveling, the president carried a list of 11 names to review. Upon his return, Bush scheduled meetings with senators to hear their input.

Last Thursday and Friday, Bush met with five potential nominees, and on Friday invited Roberts for a tour of the residence and an hour-long visit. Aides said the purpose of the meeting was to see if Roberts’ character matched his “extraordinary resume.”

After the meeting, aides say the president considered each of the candidates and conferred with Chief of Staff Andrew Card and other advisers. On Monday, he decided on Roberts and following a meeting with Australian Prime Minister John Howard, Bush called to ask Roberts to accept the nomination.

According to aides, after the president and candidate spoke, Bush turned to the first lady and said, “I just offered the job to a great, smart lawyer who has agreed to serve on the bench.” Roberts and his wife then had dinner with the Bushes on Tuesday evening.

Finally, the president called Senate Majority Leader Bill Frist, Minority Leader Harry Reid, Specter and Leahy to tell them that Roberts was the nominee for O’Connor’s seat. In all, the president consulted with 70 senators, including three-quarters of the Democratic caucus, aides said.

Cornyn said that now that the president had made his choice for the Senate to confirm, “the nominations process should reflect the best of the American judiciary — not the worst of American politics.”

Confirmation hearings could begin in September, after Congress returns from its traditional August recess. Roberts is headed to Capitol Hill on Wednesday, where he will meet first with Frist and also has scheduled time with Leahy and other committee members.

Graham said the average time for confirmation during the Clinton era was 58 days, giving the Senate time enough to confirm Roberts before the Supreme Court opens its next session on the first Monday in October. [Link]

In support of Robert’s nomination Bush stated,

“The decisions of the Supreme Court affect the life of every American. And so a nominee to that court must be a person of superb credentials and the highest integrity, a person who will faithfully apply the Constitution and keep our founding promise of equal justice under law.

I have found such a person in Judge John Roberts. And tonight I’m honored to announce that I am nominating him to serve as Associate Justice of the Supreme Court. John Roberts currently serves on one of the most influential courts in the nation, the United States Court of Appeals for the District of Columbia Circuit.”

Gary Marx made some comments as well…

Before his position at JCN, Marx served on the 2004 Bush-Cheney campaign as the national conservative coalition director who helped organize church-sponsored voter drives in Ohio. Marx was also involved in Bush’s campaign while working at the firm Century Strategies, where his task was outreach to pro-family conservative voters during the primary and general election races. Century Strategies was founded and is led by former Christian Coalition director Ralph Reed, who advises Fortune 500 companies while heavily endorsing political candidates. Reed has worked on seven presidential campaigns and has advised on 88 campaigns for U.S. Senate, Governor and Congress in 24 states. He was the Chairman of the Georgia Republican Party in 2002, and ran unsuccessfully for Lieutenant Governor of Georgia in 2006. [Link]

Well, I think Judge Roberts is an absolute home run. He follows through on what the President promised to the American people, who is going to be a nominee who is going to interpret the Constitution as it’s clearly written and not, you know, be an activist from the bench and not legislate from the bench. You know, he’s the first nominee of the 21st century and I think America’s future is in safe hands with this guy.

Well, we also appreciate the kind words he’s received from Joe Lieberman and Laurence Tribe and David Boies and many other liberals who understand that, you know, he’s going to be confirmed, he’s the mainstream nominee and much, you know, like the Republican majority treated Ginsburg and Breyer under Clinton, we expect to see that same kind of fair treatment from the Senate this time around.[Link]

Judge John Roberts:

The Los Angeles Times describes Roberts as “a young, conservative judge with a spotless personal record and a minimal paper trail.”

John Roberts, President Bush’s first Supreme Court nominee, addressing the nation last night. Roberts is a longtime Bush supporter who donated $1,000 to Bush’s 2000 presidential campaign. In the Reagan administration, Roberts was special assistant to the Attorney General and associate counsel to the President. Between 1989 and 1993, he was Principal Deputy Solicitor General, the government’s second highest lawyer. He’s argued more than three dozen cases before the Supreme Court.

Roberts wrote the government’s brief in 1991 — a 1991 case in which the Supreme Court held that the government could prohibit doctors and clinics that received federal funds from discussing abortion with their patients. In his brief, Roberts wrote, quote, “We continue to believe that Roe v. Wade was wrongly decided and should be overruled.” He also stated that the 1973 Court decision finds, quote, “no support in the text, structure or history of the Constitution.”

Roberts also co-authorized a brief in the Supreme Court on behalf of the government in support of the anti-choice group, Operation Rescue, and six individuals who had obstructed access to reproductive health care clinics. Pressed during his 2003 confirmation hearing for his own views on abortion, Roberts said, quote, “Roe v. Wade is the settled law of the land; there’s nothing in my personal views that would prevent me from fully and faithfully applying that precedent,” he said. According to the Boston Globe, Roberts’s wife, Jane Sullivan Roberts, is a lawyer involved with the anti-choice group Feminists for Life.

In other cases, Roberts argued the Supreme Court should invalidate a federal affirmative action program, that the Constitution permits religious ceremonies at public high school graduations, and that environmental groups lack the right to sue under the Endangered Species Act.

In other cases, Roberts argued that the Supreme Court should invalidate a federal affirmative action program; that the Constitution permits religious ceremonies at public high school graduations; and that environmental groups lacked the right to sue under the Endangered Species Act.

Roberts may also have played a key role in the disputed 2000 presidential election. While his name did not appear on any of the briefs during the Florida recount, three unidentified sources told the Washington Post Roberts gave Gov. Jeb Bush critical advice on how the Florida legislature could name George W. Bush the winner at time when Republicans feared the courts might force a different choice.

Roberts was part of a three-judge panel that handed Bush an important victory last week when it ruled that the military tribunals of detainees held at Guantanamo Bay, Cuba, could proceed. The decision also found that Bush could deny terrorism captives prisoner-of-war status as outlined by the Geneva Conventions. [Link]

There are still conservatives that believe Justice Roberts is conservative and given short shrift by the new right. Sandra Day O’Connor, a very conservative justice appointed by President Reagan, had some rather pointed remarks about conservatives that question Justice Roberts:

Former Supreme Court Justice Sandra Day O’Connor on Wednesday said that it was “unfortunate” that some Republicans had called Chief Justice John Roberts a traitor to conservatives after he voted to uphold President Barack Obama’s health care reform law.

During a Senate Judiciary Committee hearing on civics education, Chairman Patrick Leahy (D-VT) noted that attacks on judges could be a “threat to judicial independence.”

“I am concerned about some of the rhetoric about the chief justice,” Leahy told O’Connor. “He’s been called everything from a traitor to having betrayed President George W. Bush.”

“It’s unfortunate,” O’Connor agreed. “Because I think comments like that demonstrate only too well a lack of understanding that some of our citizens have about the role of the judicial branch.”

“I think the framers of our federal Constitution did a great job in understanding themselves that the judicial branch needed to be able to make independent decisions and the legitimacy — the lawfulness — of actions at the state and federal lever,” she added.[Link]

The following breakdown lists the most liberal to least liberal justices on the Supreme Court:

Ruth Bader Ginsberg: very liberal, consistently votes against the conservatives

Sonia Sotomayor: consistently votes with the progressive bloc

Elena Kagan: has consistently voted with the liberal bloc since joining the bench, but still fairly unproven

Stephen G. Breyer: usually votes with the liberal bloc, but has proven centrist in the past

Anthony Kennedy: the swing vote; considered a conservative; sometimes votes with the liberal faction

Samuel A. Alito: consistently conservative

Chief Justice John G. Roberts: consistently conservative

Antonin Scalia: extremely conservative

Clarence Thomas: extremely conservative

Here are comments and historical data on the current court’s ideological behavior:

“As the Supreme Court begins its new term Monday, its sixth with John G. Roberts Jr. as chief justice, the reality is that this is the most conservative court since the mid-1930s.”[Link]

This chart shows the most conservative justices based on actual decisions from 1937 to 2006. The most conservative starts at the top and continues to the least conservative at the bottom:

[Link]

Thomas is THE most conservative justice since 1937.

Scalia is the most conservative of 3 of 43 court justices since 1937 or in the top 7% of conservatives since 1937 based on his actual decisions.

Roberts is the most conservative of 4 of 43 court justices since 1937 or in the top 9% of conservatives since 1937 based on his actual decisions.

Alito is the most conservative of 5 of 43 court justices since 1937 or in the top 12% of conservatives since 1937 based on his actual decisions.

Kennedy is the most conservative of 10 of 43 court justices since 1937 or in the top 23% of conservatives since 1937 based on his actual decisions.

In “Rational Judicial Behavior: A Statistical Study,” Posner and Landes use a database that includes the political background and voting records of the past 70 years of Supreme Court justices—who appointed each justice and how the justices decided every case—to come up with a ranking, from most conservative to least conservative, of the 43 justices who have served on the court since 1937.

Their conclusion: Four of the five most conservative justices to serve on the Supreme Court since Franklin Roosevelt, including Roberts and Alito, are currently sitting on the bench today. Justice Anthony Kennedy, another current Republican appointee, is ranked No. 10. (The table has a full list.) Justices Ruth Bader Ginsburg and Stephen Breyer, the two current justices nominated by Democratic presidents, are among the 15 “least conservative” justices of the past 70 years. Thurgood Marshall, who became the first black Supreme Court justice when he was appointed in 1967, has the most liberal voting record on the list. Clarence Thomas, the second black justice, who was appointed to the court in 1991, is ranked the most conservative. [Link]

This chart shows that the Robert’s Supreme Court is the most conservative since 1937:

Mother Jones [Link]; See how liberal and conservative is defined here by the Supreme Court Database.

Mother Jones [Link]; See how liberal and conservative is defined here by the Supreme Court Database.

Here is another set of data illustrating the conservative history of the court relative to the Robert’s court:

[Link]

Here is more data on the ideological history of the court:

Martin-Quinn Scores [link]

More charts updated to September 25, 2012 are shown here: Link, Link

“By several measures, the court headed by Chief Justice John Roberts is the most conservative since the early 1970s, when Richard Nixon named Warren Burger to replace the famously liberal Earl Warren. Not only is its most conservative member (Clarence Thomas) nearly as conservative as the Burger court’s most conservative member (future Chief Justice William Rehnquist), its most liberal member (Ruth Bader Ginsburg) is considerably less liberal than previous justices on the left side of the spectrum.”

“Between 2005 and 2010, most of its five conservative-leaning members became more so. Additionally, liberal Justices John Paul Stevens and David Souter were replaced by Sonia Sotomayor and Elena Kagan, who may turn out to be less liberal than their predecessors.” Mother Jones [Link]

“But scholars who look at overall trends rather than individual decisions say that widely accepted political science data tell an unmistakable story about a notably conservative court.” New York Times [Link]

Mother Jones [Link]

I am happy the conservative Supreme Court ruled that DOMA is unconstitutional and the Prop 8 proponents have no legal standing thus invalidating Prop 8. I think that the ruling about legal standing is particularly interesting. This is what legal standing means:

The legal right to initiate a lawsuit. To do so, a person must be sufficiently affected by the matter at hand, and there must be a case or controversy that can be resolved by legal action. There are three requirements for Article III standing: (1) injury in fact, which means an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) a causal relationship between the injury and the challenged conduct, which means that the injury fairly can be traced to the challenged action of the defendant, and has not resulted from the independent action of some third party not before the court; and (3) a likelihood that the injury will be redressed by a favorable decision, which means that the prospect of obtaining relief from the injury as a result of a favorable ruling is not too speculative.[Link]

For me, what this signals is that a certain old line conservative ideal is STILL legally valid and in line with the Constitution. Older conservatives stood solidly on the side of individualism. In particular, they thought that an individual’s religion and morality was not something that should be thrust into law. These values were private and not a valid concern of jurisprudence. The proponents of Prop 8 were not damaged by gay marriage. Therefore, they had no constitutional or legal right to defend the law. Think about it, legal standing, the right to bring a law suit to the courts, is not valid if you have not been harmed…and this from a conservative court. This is very important when you consider other issues that the nuevo right is trying to legislate. One issue that comes to mind is abortion.

Roe v. Wade is the definitive law of the land on abortion. The case made abortion legal. Subsequent rulings have supported this and Chief Justice Roberts, a conservative justice and appointed by George W. Bush, has stated that “Roe is the settled law of the land”.[link] Here is a brief background of the suit:

“Roe v. Wade (1973) ruled unconstitutional a state law that banned abortions except to save the life of the mother. The Court ruled that the states were forbidden from outlawing or regulating any aspect of abortion performed during the first trimester of pregnancy, could only enact abortion regulations reasonably related to maternal health in the second and third trimesters, and could enact abortion laws protecting the life of the fetus only in the third trimester. Even then, an exception had to be made to protect the life of the mother.”[link]

I would highly recommend that if you have never read the Roe v. Wade decision you should read it. It is a well reasoned argument and not necessarily one-sided on this issue. This is Section X of the decision:

In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake. We repeat, however, that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, whether she be a resident of the State or a nonresident who seeks medical consultation and treatment there, and that it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches [410 U.S. 113, 163] term and, at a point during pregnancy, each becomes “compelling.”

With respect to the State’s important and legitimate interest in the health of the mother, the “compelling” point, in the light of present medical knowledge, is at approximately the end of the first trimester. This is so because of the now-established medical fact, referred to above at 149, that until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth. It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health. Examples of permissible state regulation in this area are requirements as to the qualifications of the person who is to perform the abortion; as to the licensure of that person; as to the facility in which the procedure is to be performed, that is, whether it must be a hospital or may be a clinic or some other place of less-than-hospital status; as to the licensing of the facility; and the like.

This means, on the other hand, that, for the period of pregnancy prior to this “compelling” point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient’s pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State.

With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion [410 U.S. 113, 164] during that period, except when it is necessary to preserve the life or health of the mother.

Measured against these standards, Art. 1196 of the Texas Penal Code, in restricting legal abortions to those “procured or attempted by medical advice for the purpose of saving the life of the mother,” sweeps too broadly. The statute makes no distinction between abortions performed early in pregnancy and those performed later, and it limits to a single reason, “saving” the mother’s life, the legal justification for the procedure. The statute, therefore, cannot survive the constitutional attack made upon it here.

This conclusion makes it unnecessary for us to consider the additional challenge to the Texas statute asserted on grounds of vagueness. See United States v. Vuitch, 402 U.S., at 67 -72. [link]

Roe had legal standing to challenge the case that she could not have an abortion according to Texas. The court affirmed that she could make a decision to terminate her pregnancy. It also gave the state some discretion to regulate abortion clinics for acceptable health standards but not to use this to effectively ban abortion. It found that the 14^th Amendment did not apply to a fetus. It further stated that Texas’ insistence at the time that abortion could be performed to protect the life of the mother contradicted their insistence that human life begins at conception and therefore acquires protection under the 14^th Amendment. Further, the decision states:

Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer. [410 U.S. 113, 160] [link, Section IX]

It further stated that during the third trimester the state could ban abortion except in the case of saving the life of the mother. Even at this point, the mother can still trump the state and have an abortion according to the court. The court did not explicitly rule about the life of the fetus and when or if a fetus has protection under the law. However, it did state that “we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake”. Therefore, the court understood that the theory about a fetus being a human life IS a theory. It did grant the state some discretion to regulate abortion in the third trimester but it did not do so on the basis of when human life begins. This is important because anti-abortion folks would like to claim damage on behalf of the fetus on the basis that it is a human life which cannot bring the suit itself and thus attain legal standing. There is precedence to allow others to bring suit to the court with legal standing for incapacitated individuals. In any case, if the fetus was considered to be a human life at conception and therefore a citizen, the mother would have no right to terminate the pregnancy. However, even on the third trimester when the state could ban abortions, the Supreme Court and Texas would not go so far as to suggest the mother has no right to terminate the pregnancy when her life is at stake. This means the absolute right of the 14^th Amendment is not applicable at conception or any time during the pregnancy. In effect, any time during pregnancy the embryo has no legal standing. That is it; end of discussion, the matter is settled from a constitutional point of view.

The reason this is important in today’s Supreme Court decision is because the court has repeatedly affirmed the idea that people’s moralities and religious theories have no constitutional basis for imposing those views on others. The criterion for legal standing is recognized when the “the prospect of obtaining relief from the injury as a result of a favorable ruling is not too speculative”. Since Roe v. Wade legal abortion is the law of the land. When ‘life begins’ has been deemed a “theory of life”. The court made the point that Roe was certainly a human life and, as such, she could not be denied her right to decide definitively and absolutely for the first two trimesters. When the nuevo right insists on fighting a ruling that is legally decided, to ban all abortion, without legal standing they forcefully and unconstitutionally try to impose their values on the rest of us. No matter how much they insist on the validity of their cause they cannot overcome the fact that nearly 80% of Americans have consistently, since 1976, believed abortion should NOT be made illegal under any circumstances.[link] When Republicans want to re-litigate a settled issue they only alienate voters.

The Supreme Court’s decision today is another case where Republicans have only alienated possible supporters by stubbornly and insistently imposing their moral beliefs on others. These folks have no legal standing. Furthermore, when they stand in the way of immigration reform and civil rights they nail the lid shut on their political coffin. It really is their own doing as they have catered to the fundamentalist Christians, Fox News and radical right hysteria for years and now those same ones are dragging their party towards oblivion. It is finally time for them to pay the piper. They have sealed their doom by redistricting rural areas in the U.S. to guarantee the far right can obstruct and perpetually try to impose their “morality” on the rest of us without democratic repercussions. Ultimately, I think their demise will be good for them. They will eventually emerge as a party that is more respectful of diversity, moderate on social issues and skeptical of legislating their personal convictions just as the older conservatives have always been.

My rant:

One of the most frustrating obstacles I have encountered in life is academic protectionism. I refer to academic protectionism as the following:

1. Scientific or philosophical journals and publications which are not available to the general public
2. Inability to obtain sufficient educational resources which are not available to large portions of the population

In order to have access to these journals and publications you must have what is considered to be the ‘appropriate’ credentials which means you have to have an advanced degree from a properly credited academic institution. The access criteria to graduate programs are limited and appear to be reserved for young kids that plan to make their careers in a specific field. I was told at Colorado University in Boulder that I could not be accepted in the PhD philosophy program because they only had a few openings each year and they prefered to give them to younger people. Furthermore, they told me that the state requires financial assistance for each inductee and, even though I was willing to turn down assistance and personally pay for my education in full, they would have to offer it to me before I could reject it thus causing the rejection of my inductance to the program (ever hear of catch-22). I also find a bit of, shall we say, age discrimination in the expectation that kids who have more years than me would be expected to work in the field longer than me and are more likely to be accepted. Additionally, I have been told by academics that people are most intelligent in their early years, less than 30 years old, and do their greatest work in these years. It is true that there are only so many professors and they can only oversee so many student efficiently but that problem can be solved with a more well funded educational system (more professors = more students). Additionally, some folks are just smarter than others. This may mean they catch on faster, are able to remember details better and able to assimilate the information better. No doubt this is true but closing the access to those that have the motivation to learn without the best of all the aforementioned qualities could actually hurt the field (I would cite Einstein who had basic math problems in his youth). Additionally, older folks that may have certain disadvantages over youthful minds may also have certain advantages denied to youth by lack of age, experience, wisdom and not giving a damn about appearances. J I also find, for me anyway, age seems to help me focus and give attention to detail (I don’t even have a “smart phone”). As far as I can see many of the above ignoble factors are chiefly due to one reason:

1. To protect capitalistic interests of the researchers and industry

The educational system and professional climate seem to favor closure in order to maximize financial interests. There are positive and negative reasons for this:

1. Positive: Entry, access and production is controlled and therefore dues, grants and private business opportunities are accessible only to members and thereby, effectively maximize profit (i.e., the diamond industry). These factors may be solely due to meritocracy as the party line tells us but I would submit that, as Kuhn famously noted, many other factors are at work in these paradigms.
2. Negative: Litigation and loss of profit can be protected by the jurisprudence industry (perhaps the Sophists did defeat the Academy)

The issue:

I recently found that the cartilage in my medial (inside) knee is pretty much non-existent. I suppose this could have something to do with genetics and my bodybuilding and personal trainer history. In my forties I did competitive bodybuilding. I was leg pressing 1,200 to 1,400 pounds with 10 or more sets and 10 or more reps per set. I was also doing squats with multiple reps and sets in the 500 pound range. I have tried to behave more sanely in my fifties but still do more than half that poundage. Ok, enough of the origins of the problem.

My academic background is a bachelors’ degree in Electrical Engineering and three different graduate philosophy programs. I also worked for years in hardware and software technology.

In spite, of not having access to publications in bioengineering I have researched UKA (unicompartmental knee arthroplasty; see this) which is what my doctor recommends to ultimately fix the cartilage. I do believe, after doing some preliminary research, that the MAKOPlasty solution is the best one in the market. The chief reason for this is because it is performed and customized to each patient at the time of the surgery by computer guided tools. Moreover, my concern has been to understand how much and what kind of weight lifting I can do in the future and how to balance this with the longevity of the prosthesis. Initially, I discovered that the official weight that should be lifted is 40 pounds. Since this is much less than most people weigh and would also need to be normalized to varying body weights to make any sense, I assumed that this is merely due to the sophistry of lawyers. After reading many personal accounts of folks lifting much more than that for years I came to the conclusion that the realistic numbers are not published and not accessible to the average ‘industry-assumed, dumb ass’.

There appear to be few studies in the area I am interested in. However, I did find this study. This study is obviously funded by the cement manufacturer so that should give some perspective to the following discussion. Additionally, since clinical trials take a long time and are costly these results come from finite element analysis (FEA) which is software simulation. FEA has proved reliable in the past as a good predictor when correlated to actual clinical testing.

ADDTIONALLY, my legal disclaimer without paying a lawyer to write it is:

I am not a professional or even active in this specific field of bioengineering so I may well have it all wrong. These are simply my own ‘dumb-ass’ observations.

(I would also add, screw the industries that refuse knowledge to the general public and restrict access to knowledge…beat the doors down if you have to folks) J

Here are conclusions that this study seems to validate:

1. See the study for a longer description of tibial inlay and outlay components but in short, the tibial is the lower bone in the knee. A kind of strike plate made of plastic can either be scored into the tibial bone at the time of the surgery or placed on top the bone. Inlay seems to be better than outlay …(further reasons cited below).
2. The component has a prong that goes down further into the tibia after ‘drilling’ (not necessarily a drill, more below) a hole for it in the tibia
3. The inlay method is stronger.
4. The study recommends the brand named cement, RESTORIS because it has better penetration into the bone (up to 6mm).
5. The inlay that is scored out for the whole component appears to be better when it is deeper (3mm as opposed to 1mm) …(further reasons cited below).
6. The deeper inlay appears to have less pain over time than the shallower inlay …(further reasons cited below).
7. The deeper inlay has less chance of loosening or ‘debonding’ (coming off the tibia).
8. Bone is denser and less cancellous (matrix, as more porous, less dense, perhaps more microscopic holes in it) as the scoring gets deeper into the tibia).
9. Pain is less over time with the deeper inlay. I suppose a more porous bone can bond to scoring on the bottom of the plastic component and perhaps with functional movement acquire more microscopic breaks in the bone bonding which could result in more pain (?).
10. The plastic component can settle or sink further into the bone with a shallower inlay due to the less dense bone. This can lead to loosening of the component, dislodging of the component and decrease the strength of the bond for the inlay and the prong.
11. One drawback of deeper scoring into the tibia is that if and when revision (otherwise called redoing the implant) is performed, the “deeper cement penetration would be a slightly more complicated revision”. The tradeoff is “a good cement penetration can postpone or significantly reduce the likelihood of that revision”.
12. The study is based on the assumption that “creating thicker cement/cancellous bone interdigitation during an inlay procedure is possible through the meticulous use of a custom pulsed lavage [pulsed jet to ‘drill the hole’] technique”. Apparently, there is a specific kind of pulsed jet to ‘drill the hole’ which is better than others.
13. It is better to apply cement to the inlay itself and the resected cavity (the scored hole in the tibia). It is better to “cement[ing] the two components separately and maintaining a compressive force on the implant until the cement has cured”. Even Home Depot supports this conclusion.
14. This comment was made in the study, “A 2100N load (approximately 60% of a total joint load of 4.5 x BW through the medial compartment)”. I believe N is forced measured as newtons. If this is true then, if 2100N is 60% of the total joint load then the total joint load is 3500N. According to the conversion 3500N is 787 pounds. It is important to note that this is force applied in the inferior direction (straight on the simulated tibial joint I think). Therefore, the more sheer force that is applied to the joint this number appears to be reduced at the rate of the square root of 3 (so fairly substantial fall off as more sheer force is applied). Apparently, joint failure is measured as a von mises criterion (wonder if there is any relation to the economist?) – that number is basically when the joint has catastrophic failure (yuk). I suppose if all this is true then the joint could theoretically take 787 pounds before you would need to go the emergency room for a quickie revision. See this, this, this especially if you have a math fetish.

Here are few other observations from my research:

1. Since weight lifting is severely reduced from the poundage I would like to use after this surgery, negatives (reflexion, stretching the muscle) should be used for better muscle tearing at lower weights. See this.
2. Reduce instantaneous stresses due to fast changes (i.e., smoother lifting with slower changes from contraction to reflextion and vise-versa). Instantaneous force pulses can go really high, really quickly and over time these pulses will decrease the lifespan of the prosthesis. Even walking on the stairs can create these instantaneous force spikes. I also found this interesting.

The study also gives your surgeon these suggestions:

Recommended Tibial Inlay

Component Implantation

1. Use high pressure pulsed lavage or similar technique to remove fatty deposits from the cancellous porous structure. A right angle attachment works very well. Dry the surface with a sponge filling the cavity under firm digital pressure. The open porous structure improves cement interdigitation.

2. A wet cloth may be placed behind the tibia to catch escaping cement during impaction.

3. Immediately apply cement to the resected cavity using a cement gun. Cement should be inserted as soon as it becomes workable (not shiny and sticky).

4. Apply cement to the inlay bottom and peripheral cement channel.

5. Immediately place the inlay tibial component into the cavity and compress it evenly and forcefully using finger or flat instrument pressure (e.g. freer elevator or the inlay impactor).

6. Carefully remove all excess extruded cement.

7. If a wet cloth was used posteriorly, remove it.

8. Apply and maintain distributed pressure on the central articular surface of the inlay, which can be accomplished by direct finger compression or with the assistance of an inlay impactor. Distributed pressure is important, particularly in the anterior/posterior direction, to avoid tilting of the component in the sagittal plane within the prepared cavity during cement curing. This pressure may extrude additional cement, which should now be removed.

However, in the interest of not pissing off your surgeon I would not give him/her a pop quiz on this. In any case, you will be knocked out during the procedure so peeking is not allowed.

Questions I would have for the surgeon (if he still wants to be my surgeon after this):

1. Are we doing a 3mm inlay?
2. Are we using RESTORIS cement on the inlay and the prong?
3. Are we cementing both the inlay and the bone before setting the inlay?
4. Are we using this special ‘custom pulsed lavage’ which increases adhesion?
5. The computer assist for the surgery should be a requirement.

The unanswered question no one will touch:

What is the absolute poundage I should lift with this prosthesis? To be fair this cannot really be answered because it depends on:

1. …how long you are hoping the prosthesis will last. Remember if you weigh 300 pounds and have high body fat, you are effectively weight lifting everyday without the benefit of being in shape. If your life span is shortened because you are only lifting the prescribed 40 pounds (which could only be done while lying in bed) the lawyers will be happy but the prosthesis will do you no good if you’re dead.
2. …the type of activities you are doing. Hiking, running, bad form weight lifting will increase the pulse forces on your prosthetic and decrease its life (I think biking would be good but I only do mountain biking so that may not be so good…orthopedists like it though).
3. I suppose I could still do one, and only one, 1,400 pound leg press but it would probably not be worth it.

I would love to get any feedback on this but I find most folks would rather not be bothered…

After reading some of the arguments on the civil libertarian side of this debate, I came away with a sense of a loss of balance on the issue. I agree with their idea that fear has been used since the Bush administration to justify many of its policies including rationalizations for wars, expansion of surveillance and targeting of enemy combatants, detention without trial and torture. I did not like the Patriot Act and the expansion of FISA (Foreign Intelligence Surveillance Act of 1978) powers with major legislation in 2001, 2005, 2006, and 2011 (although there was legislation almost every year since 2001). However, I understood the rationale for these actions. I do believe that these laws which can potentially restrict privacy could be dangerous. However, potential is not actual. I, and I think most Americans, are more willing to risk privacy if it prevents terrorist acts.

I also know that we cannot all be arbiters of the balance between privacy and security which is why we elect politicians to make those judgment calls for us. I did not elect a 29 year old kid to make those judgments and I despise him invalidating my political decisions. When he made the statement that he “wanted the public to decide” he conveniently left out the fact that the public already decided. We decided with our vote. Snowden disagreed with our decision and illegally made his own decision which violated our decision. The way we decide in a representative democracy is with our vote for leaders that decide for us. Snowden unilaterally took my decision away by revealing classified data. His decision invalidated mine and broke the law. He may fancy himself as a liberator but the concept of representative democracy embodied in the U.S. Constitution is incompatible with anarchy. Political anarchy only recognizes the law of individuality, the power of the individual to be their own lawgiver. In a representative democracy we elect representatives to make laws. Anyone who defends Snowden’s actions should also reconcile the inconsistencies in their political loyalties between representative democracy and anarchy.

I reserve the word whistleblower for those that reveal illegal or dishonest behavior in an organization. If a whistleblower performs illegal activities they are not a whistle blower they are a criminal. My wife and I in the past have had access to secret and top secret information and we would never think about revealing that information to anyone, even to each other. Personally, I think much of the classified information I have seen does not justify any secret classification but that is NOT my decision to make. Anyone that has access to secret information has to contractually promise and sign forms NOT to disclose that information. This is a matter of personal integrity. I have no respect for those that violate their oath and head for a foreign country to avoid prosecution. I call these folks traitors.

I have to admit that I do not like being manipulated by fear. I felt this strongly in the Bush administration. I do not feel this in the Obama administration. I understand that I am a partisan, at least with regard to the nouveaux Republicans, which may totally account for this difference. If there is any legitimacy to this feeling it would have to rest on the claim that more checks and balances against unnecessary privacy invasions have been implemented in the Obama administration. There is no way to prove this except to go into the actual major legislation pertaining to privacy and security which has been adopted by our elected and politicians and has been made public. I suppose there could be an evil genius behind the scenes fooling us all but I did not believe that in the Bush administration and I do not buy it now…you can’t prove a negative but you can react emotively to it.

I think that Dr. Kisner lays out a very good argument for a real and pertinent issue with a “state of exception” styled government in this paper. I am more concerned with a continuing state of exception in government than an evil genius motif about the Federal Government. I think the evil genius idea of the Federal Government and the unbridled fear of terrorist attacks which always justify a state of exception to existing laws (and in this case privacy laws), free from checks and balances, is much more of a danger to our democracy.

If we do not enforce our laws but change or judgments willy-nilly we do not have any laws. It is not up to any one person to decide they will or will not obey a law and that the law should not apply to them. If laws mean nothing we have anarchy. It may be, as the anarchists claim, that the tribal organization of culture would result in more just and humane behavior but I think that is an unjustified ideal based on history (Afghanistan comes to mind but there are many other examples). In any case, this is not what the U.S. constitution is all about. Libertarians that go this far should not delude themselves that they are patriots.

Republicans in the House and Senate were just accusing the Obama administration on hearing about what is going on with Federal Government through the press but now that the Patriot Act and its expansions are making the news they are telling us that they are just hearing about all this through the news. I guess what is good for the goose is not good for the gander. The Republicans are telling us that they were not briefed as President Obama has claimed. They are just finding out about all this, right? There is no excuse for any politician claiming ignorance on these matters. All of these laws have been enacted over the last 11 years and are public record. Additionally, they have access to secret information we do not have access to. If they claim ignorance in light of this, they are really claiming incompetence and that is the problem of the voters that put them in office.

Additionally, if folks have an expectation of privacy on the internet they are naïve about how the internet works. All information on the internet is thrown into packet buckets accessible to anyone. There may be encoding that encrypts this data but security code can and has been broken. Cyber security is a major problem with the internet apart from any issues with the Federal Government. Also, private companies already have access to user accounts and can and do use it for whatever purposes they want including, at times, intentionally or non-intentionally, clandestine or unethical purposes. It seems to me that the potential for abuse by private companies is not different than for the Federal Government. We should hold both public and private organizations responsible to the laws and check and balances made by the politicians we elect.

It seems that a balance needs to be struck between privacy concerns and preventing terror attacks. If we do not get this right, the worst case scenario is mass murders and not privacy concerns. The abuses we have seen of government authority in the past (J Edgar Hoover and Nixon come to mind) has been when the power was concentrated narrowly in one or a few people and no real checks and balances were in place to prevent abuse.

The original Patriot Act of 2001 allowed “warrantless” wiretaps including “roving wiretaps”, of private and business records including internet and phone searches for national security purposes (called National Security Letters, NSL) without court approvals (FISA).¹ Delayed notice warrants, also called sneak and peak warrants, allowed searches and wiretaps that were essentially warrantless (this was struck down by the court in 2007). They were temporary and stipulated that no evidence could be seized. These warrants were criticized at the time as a violation of the 4^th Amendment of the U.S. Constitution. Trap and trace which allowed phone calls to be tracked was also authorized at this time. The USA PATRIOT Improvement and Reauthorization Act of 2005 and The Patriot Act Renewal of 2006 made permanent the temporary authorization of the original Patriot Act.² The FISA Sunsets Extension Act of 2011 and PATRIOT Sunsets Extension Act of 2011 vastly increased the checks and balances in these original laws. It included and attempt to outlaw NSLs which had been struck down by the courts. It also included more congressional oversight for trap and trace.

One other thing to take note of…if you are really concerned with civil liberties you will find below that the Democrats have a better voting record, in terms of no votes and percentages (see endnotes), on these issues contrary to current public opinion of many Republicans and Libertarians.

Here is the public voting record on major legislation:

Patriot Act 2001 Final Votes of House and Senate:³

House Votes

See endnote 3 for a description of this legislation.

USA PATRIOT Improvement and Reauthorization Act of 2005⁴

House Votes

See endnote 4 for a description of this legislation.

Patriot Act Renewal on March 2, 2006 Final Votes of House and Senate:⁵

House Votes

See endnote 5 for a description of this legislation.

FISA Sunsets Extension Act of 2011
Final Votes of House and Senate:⁶

House Votes

See endnote 6 for a description of this legislation.

PATRIOT Sunsets Extension Act of 2011 (On the Senate Amendment):⁷

Senate Votes

House Votes

See endnote 7 for a description of this legislation.

_________________

¹ See this, National Security Letters

² See this, USA PATRIOT Improvement and Reauthorization

Act of 2005: A Legal Analysis, Summary at the beginning of the document.

³ See this, click on Read Bill Text

House Votes:

Senate Votes

⁴ See this, click on Read Bill Text

House Votes

Senate Votes

⁵ See this, click on Read Bill Text

House Votes

Senate Votes

⁶ See this, click on Read Bill Text

House Votes

Senate Votes

⁷ See this, click on Read Bill Text

House Votes

Senate Votes

Philosophy Series Contents (to be updated with each new installment)

Philosophy Series 1 – Prelude to the Philosophy Series

Philosophy Series 2 – Introduction

Philosophy Series 3 – Appendix A, Part 1

Philosophy Series 4 – The Pre-Socratics – Hesiod

Philosophy Series 5 – A Detour of Time

Philosophy Series 6 – The Origin

Philosophy Series 7 – Eros

Philosophy Series 8 – Thales

Philosophy Series 9 – An Interlude to Anaximander

Philosophy Series 10 – On the Way to Anaximander: Language and Proximity

Philosophy Series 11 – Aristotle and Modernity: The Eternal and Science

Philosophy Series 12 – Levinas and the Problem of Metaphysics

Philosophy Series 13 – On Origin

Philosophy Series 14 – George Orwell and Emmanuel Levinas Introspective: Socialism and the Other

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Introduction

This is the first of a series that will explore philosophy from early Greek beginnings to the present. This is in no way meant as a re-affirmation of ancient Greek slavery, misogyny or cultural hegemony. Ancient Greece was not a homogenous amalgamation of virtue, reason, genius, nobility or any such modern notions solely guided by the pure or proper. Any notions of the proper or the pure are themselves the results of a multiplicity of histories that can only congeal into simple unities of understanding from heterogeneous contexts which typically remain shrouded in darkness. If thinking remains mired in the bog of mere present day semantics, every history gets appropriated into the thinker’s presence and any other externality silenced into oblivion. This is why reflecting on uniquely Greek contributions to, what has become for us, simple semantic unities that already understand or show the real, should always be thought with a sense of excess and externality. This kind of showing cannot be fully completed by our ready-to-hand or contemporaneous understandings and cognitions. There is always a gap or void, an inherent chaos (xaos, χάος), in understanding. The indeterminateness of chaos is not accounted for in terms of a ‘me’ understood as the immanent relatedness of common linguistic reductions.

This series will make an attempt to think as philosophers would have thought without already having the handy notions that we have such as nature, consciousness, substance, subject, object, thing, eternity, absolute, physics, matter, soul, etc. All of these words have been used to translate the ancient works of the Greek philosophers but these words are modern transformations of the original texts that make the original texts appear to be written recently. When reflecting on the Greek philosophers, it is better to be suspicious of easily thought ideas and to value reflections that require effort and a sense of mystery and unfamiliarity. It is important to remember that the exercise of thinking about something which has not been thought about before is a very different exercise than merely compiling common notions already understood. When studying ancient Greek philosophy we think back, toward an origin, an archē. However, this archē, as thought by early Greek philosophy, is not the common notion of origin. It is an early notion of origin; before there was a clear and thoroughly articulated notion of what ‘origin’ would be. The gap between our idea of origin and the first Greek thoughts of origin is over twenty seven hundred years old. A lot has transpired in that span of time that puts even more of a gap between our thinking of origin and Hesiod’s thinking of origin. However, in that span, a yawning gap is opened even wider that resonates with Hesiod’s archaic chaos. This chaos sounds uncanny to modern ears. Yet, somehow this gap, this chaos, has been made relevant to what is simply ‘known’ now, even in its forgetting and transformations. Somehow, this lost gap has come to function as a hermeneutics that organize, situate and give place to values, meanings, undertakings and ‘truths’ whether for , against, indifferent or oblivious. The intent of this series is to grapple with the aforementioned ‘somehow’ of the relevance of chaos, hermeneutics and some of what has transpired in and since that gap.

An important aspect of this philosophical exploration is giving place to externality, alterity, which may not be accounted for by common place notions, simple wholes with which we encounter and know the world. While these notions are practical, they also tend towards totalizing, entrapment in subjectivist, pre-cognitive determinations that force values and judgments towards fixation, abstract reduction and mis-appropriation of what faces and eludes us. If our singularity is lived towards closure infinitum or eternally recurrent, re-appropriation of the same, the indeterminate future is held captive to the determinate past; it is re-cast as static and known. To be sure, dynamic, movement or kinēsis (κίνησις, kinetic, motion) is not aimless. It is always conditioned by a past and a known. However, kinēsis is never completely encompassed and determined. There is always a leak, an entropy, that refuses containment and diffuses sight (Idea) in kinēsis. Kinēsis as dynamic (dunamis) is not only actualized (energeia) in the present but held back in the not-yet of potentiality (dunamis). Kinēsis is excess. It is entropy and potentiality that opens spatiality and temporality beyond containment and presence. Excess is a necessary condition of kinēsis.

Futurality, as not-yet, not-having-been, holds open a symbolic place marker of otherness which has not yet attained determinations as subject and also refused the object under the rubric of thing. The notions of subject, object and a ‘thing’ are examples of the simple unities in common place thought that pre-understand, pre-condition how we understand. These notions are pre-cognitive in that we do not have to re-think these notions in practical usage. They have been handed over to us from a history that preceded us. Heidegger thought that the most common example of such a notion was the thought of ‘Being¹‘ which was lost from the Greek thinking of Being and accordingly, taken over by the simple and already understood present-at-hand notion of ‘thing-ness’. However, these notions were precisely what the ancient Greeks were most concerned about without the historic luxury of our ‘present-at -hand’ explanations. In the work of thinking philosophy, we need to suspend these kinds of notions and allow some other, some remote unfamiliarity, to come to the fore of our apprehension such that what remains concealed in automatically² imposed assumptions, histories we have long forgotten, might re-awaken a sense of child-like wonder and curiosity and a re-evaluation of the real. Additionally, the step back from a nominal, privately understood, autonomy³ opens up avenues and vistas for futurality. In this case, futurality is not pre-determined by an already pre-understood past and congealed logic (logos, λόγος) but an otherness that is not yet gleamed, which remains open in essence. This is the direction we must traverse if we are to find a path towards the ancient Greek notion of chaos, towards that which is the possibility of the impossibility of genesis, the an-archic which must ‘be’, in order that the flight from which, inevitably becomes the measure of boundary, form and idea; the possibility for sight as presence.

From this perspective, it is important to not just translate histories but retain some of the un-translated graphemes (xaos, χάος; chaos) as an indicator of a time that was not our time and a place that was not our place, an an-archical past that in some undeterminable way opens up my possibility for presence and actuality. It is the inability of ancient philosophy to complete itself, inchoate in genesis, that denies ground and, in this very denial, produce the phantasm of ground; the concealed and incestuous accounts of history as Idea, as that which makes dialectical reductions possible. This a-genitive indeterminateness first lays open the impossibility of ontological, metaphysics and the gaping place-less-ness of otherness. The abyss, thought as chaos, is not neutral. Neutrality already arrives from history, much too late to convey the uncanny-ness of the refusal of ground (abgrund) which remains ciphered in the Greek graphemes: χάος and λόγος.

This series will also allude to more contemporaneous philosophers that will be discussed in more detail later. Much of the direction of the discussion will be drawn from the works of Martin Heidegger and Emmanuel Levinas. Jacques Derrida will also play a role in the critique. These philosophers were well versed in the history of philosophy and ancient Greek philosophy. I will also insert some of my own reflections at various points in the discussion. The reason for doing this is to keep the discussion from sounding a little too scholarly and a little more relevant to modern ears. The current plight of philosophy has much to do with rote repetition of conventional schools of thought which level off the provocative import of philosophy into a mass of ‘facts’ and what Heidegger called historiography, the mere recitation and cataloging of events, ideas and dates in the past. When philosophy becomes a dead past, the original impetus that made it important and relevant fade and more importantly, the dangers that lurk in unreflective dogma, the production of ready-to-hand notions, have often resulted in the worst of human tragedies.

Philosophy Series 3 – Appendix A, Part 1

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¹ I capitalize “Being” here to indicate the verb (to be) and “being” to indicate the noun (a being).

² See Link

³ See Link

Rural counties in northeastern Colorado want to start their own state (Weld County floats secession plan for northeastern Colorado):

The plan to carve off the northeastern corner of the state — Weld, Morgan, Logan, Sedgwick, Phillips, Washington, Yuma and Kit Carson counties — and form the state of North Colorado was hatched at a Colorado Counties Inc. conference earlier this week, Weld County spokeswoman Jennifer Finch said.

Additionally, Craig Colorado wants to require everyone to carry “sporting rifles capable of accepting high-capacity magazines”(New committee meets to discuss mandatory gun ownership in Craig).

I have a few things to say to these folks.

Craig – Many of you are against mandatory health care that your Republican Party originally proposed and implemented in Massachusetts but apparently some of you are in favor of mandatory gun carry? Do you see any issues here? Is it better to require the capacity to kill than to heal?

Let me tell you folks something: I hated it when your party was in power, started two dumb wars and crashed the economy AND you had the gall to make me pay taxes to support your absurd policies. However, it never even occurred to me to advocate seceding from the state which is effectively seceding from the Union (some in Texas want to do this too). First, even if you can secede from the state you will no longer be a part of the United States. We have a constitution that requires your dreaded Federal Government admit you to the Union – Article 4 of the Constitution. You must have someone that went to law school that can help you with that – right? Why is it that you consider yourselves patriots but you hate the government and you want to secede? When I was in churches in the Deep South it seemed like every church thought they were the true Christians and everyone else was apostate. Well, you know democracy is a different beast than that. In democracy we have this idea about the majority and voting. It was a very liberal idea when our country began but it does go back to the early Greeks. If you are not on board with that idea and would like the minority to keep sabotaging the democratic process, you are only on board with democracy when it works for you – that idea is not called democracy, it is called tyranny when implemented in a government. You can call yourselves patriots or anything you want but if you cannot support democratic government, even when it goes against you, you are patriots of tyranny. With that in mind it may be better if you got the hell out of the Union – America, love it or leave it!