Baby's Home!

Not everything is perfect, but he's finally here. More about it tomorrow.

Surgery Day

Today the baby had surgery to receive a stomach tube, which we'll use to feed him until he learns how to eat properly. Thankfully the surgery went very well, and the baby is currently sleeping off the anesthesia. I was glad to see that the actual tube is quite thin and small, and shouldn't be bothersome to the baby. He's on a breathing tube once again, so we can't hold him right now, but hopefully the tube will be removed later tonight or by tomorrow morning.
The baby will also need another echo to determine if the blood clot is going away/gone by now, so we're waiting on that as well. He'll remain on blood thinners until we know for certain.
We certainly wish that the baby can come home this week for Shabbos, and I guess we'll see how the week plays out.

Friday Baby Update

Being able to hold the baby certainly makes this whole experience a lot easier to deal with, but we're not out of the woods yet. We had a small scare from the cardiac team this week, who found what may be a clot in a vein near the baby's heart from the surgery. They're treating him with blood thinners, monitoring his progress and hopefully he'll be fine. The baby will be on blood thinners for 1-2 weeks, and hopefully it'll be closer to a week.
He's also been seen daily by a feeding specialist, Dolores. With each session, he's taking more and more milk by bottle, which is great, but Dolores says that due to his little chin, it's difficult for him to take sufficient milk on his own, and the feeding tube is still necessary.
OMF surgeons (Oral Maxillofacial) confirmed this with their evaluation yesterday. They're convinced that the baby will need surgery to enlarge his jaw and have ordered a CT scan to obtain measurements. The surgery is not going to take place for another month, though, and the baby will B"H be able to come home for a bit in the meantime! Hopefully, the clot issue will be resolved soon, and we can bring him home for a few weeks (with the feeding tube).
So, at least we have a bit of a timetable now, which is comforting, though I hate the thought of putting our baby through more surgery, even though I know it's for the best. It's been really tough, but we try to take the situation day by day.

Thank you all very much for the your supportive messages, emails, and voicemails. It's difficult to return calls, but we do appreciate them all very much.

Holding The Baby

I think Baby is happier since they removed all the contraptions that covered his face. With only a feeding tube remaining, we can finally see what Baby really looks like. He's a real cutie.

Today we just spent the vast majority of the day holding him. He fell asleep, woke up, and ate in our arms. It's just nice to be able to hold our child after almost two weeks of tests and a major surgery. As one would expect, Baby really likes being held. He just looks at us, and we look at him. It's sad to leave him behind when we go home, and even sadder for me since I won't get a chance to see him until late tomorrow, but we're hopeful that he'll come home soon and then we'll hold him as much as we want.

More Baby News

Updated Again (Friday, August 15, 5:30 pm)

Updated

It looks like the respirator is coming out tomorrow morning. The nurses have been decreasing his morphine dose and today he was very active and awake (he likes it when we hold his hand). He was even making eye contact with us (or so we think).

After they take out the respirator, we'll finally be able to hold him. I'm really, really excited to hold him. It's sad that it's been a week already and he's never been held, but I'm sure Shifra and I will make it up to him. :-) We'll keep you guys informed.

Update (August 13, 10 pm): They took the respirator out tonight. We almost got a chance to hold him before going home, but he was all swaddled up and sleeping and no one wants to wake up a sleeping baby. So it looks like tomorrow is the big day. The doctor told us that he might be ready to go home by Sunday or Monday. We can't wait.

Update (August 15, 5:30 pm): We were allowed to hold the baby yesterday for the first time. He's still very hoarse because of the respirator, so his cries are really low. But he can still make himself heard.

His heart is doing very well, but he has to learn how to eat, and that's what will keep him in the hospital for the next few days. We're hoping he'll be home by next Shabbos, but it's still too early to be sure.

Baby Update

Updated Again

Updated

We don't have much to add to what I wrote Friday. The surgery is still scheduled for tomorrow morning, but we don't know what time. The baby is ready to go and is doing quite well.

We spent Shabbos at home, so we didn't get to see the baby for a long, almost 36 hour period. We had our cell phones on just in case the hospital needed to contact us in an emergency, but thankfully the call never came. The nurse informed us that the baby was very active over Shabbos and was actually awake when we came down to see him this morning. At this time, the staff is taking blood and suctioning his nose, and we decided to step out to give them some space.

We expect him to be hooked up to a number of machines tomorrow after his surgery, which is scary, but we realize the necessity of it. We'll update tomorrow once we hear the baby came out of surgery ok.

We appreciate all your offers to help, and every prayer makes a difference. Please daven for Tinok ben Shifra Yocheved tomorrow.

August 11, 11 am: The surgery is scheduled to start at around 1 pm. I'll post as soon as I have any news.

August 11, 8 pm: The surgery was completed without a hitch. Baby is back in the NICU and will start the road to recovery tonight. If everything goes well, he'll come off the respirator tomorrow night, and should be home before next Shabbos (August 23). He's not out of the woods yet, but we can see a break in the trees. Thank you for all your prayers.

The Next Few Weeks

New Update (August 8, 3:30 pm)

New Update (August 7, 11 pm)

New Update Below (August 7, 12 am):

Updates Below:

A lot has happened since I last blogged. There has been work, New Jersey CLE, etc. But most importantly a once-far off event has now become imminent.

Tomorrow night at about 7 pm, I will be accompanying Shifra to Columbia Medical Center, where her labor will be induced, although her actual due date is on Tisha Ba'av (August 10th). Her doctors want to induce since our baby has a heart defect called Transposition of the Great Arteries (TGA) and so would like specific individuals of their cardiac team to be present at the birth. Without getting into too much detail, our baby's heart is not working properly and the defect will require surgery to correct it. Although the surgery's success rate is over 90%, open heart surgery on a newborn infant always carries with it the attendant risks of any surgery. So despite our optimism, the next week will be a very trying time.

Our baby will likely spend the next two weeks or more in the neonatal intensive care unit (NICU). Columbia is the top hospital in New York for pediatric cardiology, and everyone I have spoken to speaks highly of the care at the NICU, but of course it's hard to not be worried. Thankfully we had the opportunity to tour the NICU, so we're as emotionally prepared as possible. But it must be different when the baby is one's own baby, so frankly I have no idea what it will be like.

We would like to keep everyone posted on our own and our baby's progress, and updating on this blog seems like a good opportunity. We'll do our best to write updates as they occur, and keep everyone as informed as possible.

Thank you in advance for your thoughts and prayers at this time.

August 5, 10:56 PM: Shifra gave birth to a six pound, ten ounce baby boy at approximately 3:20 PM. The labor went as well as one could imagine, and the baby was born vaginally (C Sections are common for mothers with babies with TGA). The baby was whisked away from us before we could even get a good look, but we later found out that the baby was doing as well as expected given his condition. The doctors performed a balloon procedure to help circulate oxygenated blood throughout his bloodstream, which was successful.

We were able to see the baby a little later in the day, and the experience was tough. It's one thing to see newborn babies hooked up to all types of machines, but it is entirely different when it is one's own baby in the NICU. It was a little emotional, but we got through it. Right now, we're both extremely tired, but excited to see the baby tomorrow.

August 7, 12 AM: To start, I want to thank everyone for their well-wishes in the comments and elsewhere. Know that Shifra and I read and appreciate every comment. To white shirt/working guy, I owe you a phone call. Also, Shifra is doing very well. She's obviously sore, but she's walking around well, and will be discharged later today. I'm really proud of her for how she's handled everything.

Today was a much more calm day. The baby was moved from the transitional nursery into the NICU. The NICU is a fantastic place by all accounts and the nurses and doctors there seem really on top of things.

It was a lot easier emotionally to see the baby. He's still all wired up, but we're finding it easier to see the baby and not the wires. The NICU is less crowded than the transitional nursery and we are permitted to stay there as long as we like. 24/7 access to the baby, as they call it.

The baby is doing pretty well, and the surgery is scheduled for Friday. Those few hours while the surgery takes place are going to be very difficult, and I'm dreading the moment when the doctor comes out to tell us how everything went. While the success rate is very high and the surgeon is very good, a bad outcome will be devastating.

But to relay good news, the baby is fairly active for an infant on morphine. He moves around a lot, and reacts pretty strongly to discomfort (he was startled over and over by cold instruments). He opened his eyes when I spoke to him, so perhaps he recognizes my voice (they say newborn babies do that). Much of the family came by to see him and Shifra (and maybe even me too), which was nice. I'm going to work tomorrow, so I'll see him again tomorrow night. Please daven for Tinok ben Shifra Yocheved and Shifra Yocheved bas Chaim Shlomo.

August 7, 11 pm: We found out today that the baby is going to have surgery tomorrow at 730 am. Everything looks fine and his condition is stable enough for the surgery. The earlier they do the surgery, the better for the baby's recovery. We also found out that, G-d willing, he'll be ready to go home by the end of next week or the beginning of the subsequent week. That's less than two weeks in the hospital for open heart surgery! Plus, our surgeon has a 97.9% success rate, so we're really, really hopeful. Of course, it's really nerve wracking, but I'm optimistic and a lot of people are davening for him, so hopefully things should go well.

Btw, going to work was a really, really bad idea. I knew my boss lacked people skills, but I never knew he didn't have basic human emotions.

I work for a solo practitioner and am the only attorney or paralegal in the office, so I understand my boss relies on me and the workload tends to pile up. I completely get that. That's why I came into work today even though I have the vacation days in the bank and my wife really needed my help. It's also why after my boss had an incident and offered to let me and the rest of his staff go home for the day with pay, I offered to stick around and do work. I feel responsible for my work and realize he'll have to do whatever I can't finish.

But frankly if the job market was a little better, today would have been my last day. Here's how the conversation went today:

Me (walking into his office to see him for the first time since I had the baby): how's everything?
Boss: Wow you look like you need coffee.
Me: I'll be ok.
Boss: So what's the story?
Me: Story with what? My wife?
Boss: Ok this is what you have to do today.....

To be fair I did call him yesterday and he did say congratulations. Here comes the good part though:

Boss: You'll do this assignment today and tomorrow.
me: Actually the baby's surgery is tomorrow.
Boss: (loud sigh). So you want to take off right?
Me: Well, yea....
Boss: Don't surprise me like that.
Me: Surprise you? I just found about the surgery date last night.
Boss: How come you didn't tell me that Defendants' counsel in Case X filed an opposition to our motion?
Me: Uh, I didn't know about it since I haven't been here this week.
Boss: (annoyance that I didn't know about it, since I guess I was should have checking the ECF while my wife was pushing even though the ECF sends notifications to his email, not mine).

Whatever. I've told him at least three times about the surgery, including this week when I informed him that I couldn't be sure I'd come in this week after Monday. Honestly, I don't recall being this upset at someone in a long, long time. I've tried to look at this from all angles, but I can't see one that would justify this type of behavior. So I left work early, realizing that if I didn't have a chance to see my baby today and he, G-d forbid, didn't survive tomorrow, I would never forgive myself for missing this time with him to help someone whose reaction to being informed that my baby is having life threatening surgery was "why didn't you tell me about this earlier?"

Oh, and what did he tell me on the way out? "Ok you can go, but next week you really have to make an effort."

So seriously, if anyone knows of any openings for a soon-to-be admitted attorney and can get me in, I'd really appreciate it.

August 8, 3:30 pm: So it turns out the surgery didn't end up happening today. It's been rescheduled for Monday morning, either the first slot or the second. We'll post as soon as we find out. I'm not in the mood to get yelled at, so I haven't called my boss yet. I think he has a wedding tonight, so I'll call the office at around 7 to leave him a message.

Talk About Bad Advice

And from a law professor, no less. I certainly respect Professor Somin's work, but this post is just irresponsible:

As one of my law school classmates put it, every point you score above the minimum needed to pass is evidence that you spent too much time studying. I took this excellent advice to heart, and saved a lot of time and aggravation as a result (primarily by not attending any Bar/Bri lectures, and confining my preparation efforts to reading the books and taking some practice tests). If you're reasonably good at managing your time and memorizing legal rules, you can probably do the same thing.

It's not often that a professor tells students to spend less time studying. But when it comes to the bar exam, for many students it's the best pedagogical advice I can give.

I've gone on the record about how people overstudy for the bar exam. But not attending BarBri classes? Reading the books and taking "some" practice exams? That's a really, really bad idea. The costs of failing the exam far outweigh the costs of any extra studying. Go to class, do a lot of questions, read the outlines a number of times, and do some essays.

Taking The Bar?

It's that time again; the time when all the recent law school grads start on the two month path toward the bar exam. The trek involves 3-4 hours a day bar review courses and supplemental studying. But you know what? It's much, much better than actually working full-time. But that's a subject for another time.

I recommend reading LWY's post on the topic. For the most part, I agree with his thoughts. There's no reason to go crazy in May. In fact there's no reason to go crazy in June. I don't think everyone needs to follow the paced program, but if you want to do so, knock yourself out. What's important is to realize that you have no chance of remembering anything you learned in May by the time Contracts or Property rolls around. It's just too much material right now. You'll learn everything in July, when you read the outlines over and over again.

So take it easy for the first month of so. By the time you take the simulated MBE, you'll probably know half of what you'll need to know for the bar. And the reality is, you'll spend the next month studying the material and doing all the PMBR and Barbri questions anyway, and that's when the real studying starts.

Been Very Busy

It's been a while since I wrote my last post, and that's not because I'm bored of blogging or out of ideas. On the contrary, I have a lot to write about, but I just don't have the time to actually sit down and write about it.

When I was looking for a job, I had all the time in the world. Now that I'm working and taking New Jersey CLE courses, I have almost no free time and when I do, I'm too tired to even read blogs, so forget about writing or commenting. Tomorrow will be my first non-Yom Tov day off in over a month.

I hope once these classes end in a few weeks, I'll have time to get into a schedule and find time for blogging.

Heller And The Incorporation Doctrine

Until now, I haven't written anything on the Heller/2nd Amendment issue for two reasons: I don't really have a strong opinion on the political question of gun control, and more importantly, since I don't care enough about gun control to do serious research, I've remained ignorant about the constitutional issues involved in this case.

But while reading a debate about Living Constitutionalism and Judicial Restraint (here, here, here, here and more), I came across a post about the Second Amendment and fundamental rights. Deborah N. Pearlstein, whose webpage brands her a constitutional law expert, penned a post on the new Slate legal blog, Convictions. She didn't take a position on the 2nd Amendment question, but was bewildered that everyone talks about the right to bear arms as a fundamental right. Pearlstein correctly pointed out that not all rights protected by the Court are fundamental:

"When I was in law school (and even since), there was an obscure but nonetheless real distinction made between constitutional rights that were "fundamental" and those that were, well, not. Some rights were "principles of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental" and "implicit in the concept of ordered liberty." Palko v. Connecticut. Other rights were "new." Teague v. Lane."

This argument struck me as odd and misplaced. The cases Pearlstein alludes to deal with applying the Bill of Rights to the states under the Court's incorporation doctrine. Throughout the last hundred years the Court used the 14th Amendment's Due Process Clause to "incorporate" certain rights in the Bill of Rights into the Due Process Clause, making them applicable to the states (the Bill of Rights originally only applied to the federal government). While the incorporation doctrine has a long and twisted history, the Court incorporated specific rights and deemed them fundamental only when they were "so rooted in the traditions and conscience of our people as to be ranked as fundamental."

So when deciding whether to apply specific rights to the states, the Court used the above test. However, Heller does not involve the doctrine of incorporation. The Constitution clearly grants Congress "exclusive Legislation" over the District in Article I, Section 8, Clause 17. The District of Columbia is a federal entity. The Court has applied specific rights in the Bill of Rights directly to the District without making use of the incorporation doctrine (see Pernell v. Southall Realty applying the 7th Amendment directly).

The District's Brief also made a similar, and very strange, argument in a footnote (Page 38, footnote 9):

"Although this case does not present the question of incorporation, there is no reason to think that a right to possess guns for personal use is a "principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental" and "implicit in the concept of ordered liberty." Palko v. Connecticut, 302 U.S. 319, 325 (1937)."

The District admits that incorporation does not apply in this case, and yet it expects the Court to apply the incorporation test! Why should the Court do that rather than treat the District as a federal entity?

There are a number of pertinent and debatable question in this case. Does the 2nd Amendment contain an individual right? If it does, does that right only apply to people living in states (the 2nd Amendment's preamble starts "A well regulated Militia, being necessary to the security of a free State....") and not those living in the District? If it does, what standard of review should the Court apply to laws infringing on that right?

Reasonable people can disagree on all these questions (and more). But if an individual right exists, then it is no less fundamental than the right to free speech or the right to be protected from double jeopardy. If the Amendment only protects a collective right, then there is no individual right at all. The right is either fundamental or it does not exist. There is no middle ground like there is by the rights created by the incorporation doctrine.

For Anyone Who Thought It Couldn't Get Any Worse....

The UN, as we all know, is not exactly Israel's friend. And its Human Rights Counsel makes most UN bodies seem like Micronesia. But today they got even worse.

For the last seven years the Human Rights Counsel has had a special position for an investigator of Israel's conduct in the territories. John Dugard, a South African international law scholar, filled that position for the past seven years and was consistently pro-Palestinian.

But he's stepping down and now the UNHRC decided to appoint the unquestionably anti-Israel Richard Falk. If anyone thought this body had any relevance, this appointment should dispel that notion.

Should We Always Learn Torah? The Lesson of Mordechai

See this post by mevaseretzion. He argues that one can increase his own spirituality illicitly by not doing the right thing at the time. Even if another mitzva has more "value" and would push the person to a higher spiritual value, sometimes that person must forgo the added spirituality by doing something else which is necessary. This is one lesson of Mordechai's political tenure.

I agree with mevaseretzion. The truth is mevaseretzion's distinction is similar to the obligation to do mitzvos despite the fact that Torah is of greater importance.

There is a mitzva to shake a Lulav. But if Talmud Torah has the greatest value, then why should we pause Torah learning to fulfill the mitzva of Lulav? Isn't the most reasonable course of action to do the mitzva that is the most valuable? I'm sure there are all types of answers to this question, but the most obvious point is that we sometimes are required to act in ways that run contrary to our obligation to do the most valuable mitzva. Even though by learning Torah instead of shaking Lulav we would be making the best use of our time (by doing the more valuable mitzva), G-d does not want us to do what is most valuable, but rather to do what he commanded.

This logic applied to Mordechai. Rather than learn Torah full-time, he became part of the government, which was imperative to the well-being of the Jewish people. The most valuable mitzva would have been to learn Torah, so he did not maximize his time if we look at the situation purely based on the value of the mitzvos. But our obligation to follow G-d's command and not determine our own value calculus. He makes that decision, not us.

Why Facts Don't Matter

A poll published in today's NY Times states that 84% of Palestinians support the Mercaz massacre. 64% support shooting rockets at towns and cities in the Negev.

That is a very scary number. But the number itself won't affect how people will view the Palestinians. The Left will just use this poll as evidence that we need a political solution and the longer we wait, the more angrier the Palestinians will get and the chances of an Intifada breaking out will only get higher. The Right will point to this poll as a reason to suspend negotiations, because how can we negotiate with people who overwhelmingly support mass murder of civilians?

All data regarding to the Israeli-Palestinian conflict are processed through these frameworks. One side believes that the Palestinians are essentially like us and would cease violence if they saw a real light at the end of the tunnel. They only support violence because they are helpless and feel as if they have no other choice. Give them a state and freedom and the majority will live in peace with Israel. The other side denies that the Palestinians are basically like us westerners and claim there is no evidence the Palestinians will ever want peace. The Palestinian refusal to make real peace could be based on genetics, the nature of Islam, or just some nationalistic ideology that promotes irredentism.

Obviously the policy preferences of these groups reflect these assumptions. The first group supports the peace process no matter what and will never allow violence to stop peace talks. That is because peace talks are the antidote to violence. While some groups in Palestinian society benefit from the status quo, they will be marginalized once the peace process is completed because majority of Palestinians will no longer support their cause. The other side sees negotiations as futile at best and suicidal at worst. The Palestinian ideology does not allow for peace and the peace process will only facilitate their ultimate goal, which is the destruction of Israel.

This poll will only strengthen the beliefs of both sides. the first group will argue that we need to push the process faster, because once we have something in place in the West Bank, the Palestinians in Gaza will reject Hamas. The other side claims that negotiations with a people who support murder is idiotic.

Either way new facts aren't going to change anyone's views.

As an aside, the pollster Khalil Shikaki was almost killed a few years ago by Palestinians for reporting his findings that the vast majority of Palestinians would not choose to return to Israel if they had a right of return.

Even Gedolim Fall Prey To The Availability Heuristic

The Availability Heuristic is psychological phenomenon in which people base their opinions on certain events that are fresh in their minds, while ignoring other events that offer contradictory evidence against their beliefs. For example, many baseball fans believe that certain players are clutch hitters, guys who come up big when it counts. In reality, such players are non-existent.

A good example is Mark Lemke. Anyone who grew up watching baseball in the mid-90s knows exactly who I am talking about. Lemke was the second baseman on the Braves dynasty teams that won pretty much all the NL East division titles in the 90s. Lemke's career numbers were well below average, according to conventional and advanced metrics. His career OPS+ was 71 and his EQA was .230. His career batting average and OPS were .246 and .641 respectively.

But Lemke was known as a clutch postseason player. Even Hall of Fame greats are drinking the koolaid:

"Chicago Cubs right-hander Greg Maddux says Lemke is the best clutch hitter he's seen, and Giants outfielder Barry Bonds says Lemke turned into Babe Ruth during October."

Babe Ruth? That's high praise coming from a guy who actually hit like Babe Ruth in one postseason. I'd expect Lemke's post-season numbers to be substantially better than his career stats.

But they aren't. While Lemke's postseason OPS was .688 (a solid 47 points higher than his career OPS) the real Babe Ruth's playoff SLG was .744 almost 60 points higher than Lemke's OPS. Even the greatest choker in the history of the world has a playoff OPS of .844, which is more than 150 points higher than Lemke. Something tells me there were tougher outs in the postseason than Mark Lemke.

So why does everyone think Lemke was so great in the postseason? Because he had a number of big games:

"[I]t's the 1991 World Series against the Twins that's stamped in everyone's mind.
Lemke's RBI single won Game 3 for the Braves, and he scored the game-winning run in Game 4. Then he hit two triples in Game 5 and finished with a .417 average, even though he started the series 1-for-7."

Lemke had a big series and suddenly everyone think he was a dominant postseason force. They remember the series when he hit .417, but not the two series when he batted .167. They can recall his dominant 1996 NLCS in which he slugged .630, but not his awful 1995 NLCS when he slugged only .167. It's human nature to have certain events stand out and to forget the other less memorable events.

This cognitive flaw manifests itself in a number of other instances. For example, a lot of parents asked their children not to take buses while spending their year in Yeshiva or Seminary in Israel. These parents were influenced by the endless news reports of suicide bombings in Israel during the Intifada. Surely suicide bombings created a real risk, but the risk was greatly overexaggerated. Buses made literally dozens of runs a day and hundreds a week. What were the odds that a person's child would be on the specific bus that was targeted? There was probably a greater risk taking a cab and being killed in a car accident.

It seems even the Gedolim are not immune from these heuristics. Rav Chaim Kanievsky, one the biggest Gedolim in Israel, recently prohibited using Arab labor in Yeshivos. His argument is that we are at war with them and employing them poses a grave risk to Jewish life (he also argued that jobs should be categorically given to Jews over non-Jews if financial feasible).

But does that risk really exist? Surely there is a greater risk in hiring Arabs over Jews in almost all situations, but there is also a greater risk in driving than walking. There is a cost-benefit analysis that must be undertaken here. Is there a serious risk in hiring Arabs, one that is not offset by the benefits?

Israeli Arabs, even the ones in East Jerusalem, have been relatively benign since the start of the Intifada. Sure, there were the riots when the Intifada broke out and there was a terrorist attack carried out by an Israeli-Arab, but overall they have been on the sidelines since the 2000. The Merkaz massacre was committed by an Arab from East Jerusalem, and there have been other instances of terror from his village (and see this article about the favorable response to the murders in his village). But when hiring an Arab living in Israel, the odds are strongly against the employee being a terrorist. There are thousands of Arabs working in Yeshivos and universities who have never been implicated in a terrorist attack (or the planning of such attack), which is the overwhelming majority. Again, it wouldn't shock me if I found out that the students had a better chance of being killed when going on tiyulim.

Decisions need to be made after doing proper research. It doesn't seem like that was done here.

Randy Barnett On The Living Constitution

I've been busy the last few days, so I haven't had much time to blog. Check out Randy Barnett's response to Michael Dorf's essay on Living Constitutionalism. Here's a preview:

"In his article, Dorf is careful to allow some role for precedent to be deemed mistakenly in conflict with the text when such conflicts are "clear." But, as typically practiced, the (selective) use of and adherence to precedent to "trump" an inconvenient original meaning of the text works precisely to substitute the judges meaning for that which was originally enacted. As practiced, therefore, this is "living constitutionalism" in its bad sense.

But Balkin's reconciliation of original meaning and living constitutionalism subtly alters the term "living constitution" to one that should be acceptable to originalists. So too has former Attorney General Ed Meese who initiated the modern debate over originalism with a series of speeches in the 1980s. I once heard Meese say something like this: Only a constitution that is still followed is still alive. A constitution whose terms are ignored because times have changed is a dead constitution."

Also see Lawrence Solum's take on Dorf's article.

Good Point

I haven't written about the concert ban, partly because there is nothing really to say that hasn't been said already.

But this is a great comment on Hirhurim:

"Can some on explain to me why signing this ban did not constitute malbin pnei chaveiro b'rabbim?Why do child molesters get dealt with "behind the scenes" but not people who by all accounts work leshem shamayim and have not done nothing assur, even if their behavior may raise legitimate concerns among the rabbinic leadership?Something is rotten in the state of yiddishkeit."

And of course, why do people who harbor child molestors get to sign the Kol Koreh with the rest of the Gedolim? Something is rotten indeed.

Putting Things Into Perspective

My week-long debate with Chardal over transfer has yet to reach an impasse, but it led me to think about putting the rocket fire in Sderot and the Intifada in perspective. Chardal argues for transfer partly because he believes it will lead to less overall suffering than what will occur without transfer. I argued that transfer will create tremendous amounts of suffering, including for Israelis. Chardal responded,

"What the heck do you think is happening now??? at least then there will be an end in sight and not this impossible situation."

I've encountered this attitude elsewhere, and I while I sympathize, it is wrongheaded.

Let's take a look at how many Israeli civilians have died since 2000. Israel's foreign ministry has a chart that goes until 2006. 1146 Israelis were killed by Palestinian terrorists between 2000 and 2007. That's a total of around 164 Israelis a year. That's an unfortunate number, but let's be realistic.

The U.S. Department of Justice keeps homicide statistics for all the large cities in the US. Anyone who has ever lived in New York City knows that it used to have a much higher murder rate than it does today. Now it is considered one of the safest big cities in the US. So let's compare NYC and Israel.

According to the Foreign Ministry's chart, the worst year of the Intifada was 2002. That year 451 Israelis were killed by Palestinian terror. Since it is simplistic to account for only terrorism and not regular homocide, let's add up the two to determine the total number of Israeli civilians killed illicitly by others in 2002. This chart lists the total murders in Israel over time, but it does not have the numbers for 2002. Since in 03 the number was 206, let's assume 199 people were murdered in 02. That makes the total number of murders from terrorism and regular homocide 650. Moreover, 328 Israeli soldiers were killed in battle with Palestinian terrorists from 2000-05. Since I don't have more exact numbers, we can apportion roughly based on how many Israeli civilians were killed each year. So let's assume 150 soldiers were killed in 2002, 100 in 2003, and the rest in 2000, 2001, 2004 and 2005. Israel's population in 2006 was 7,116,700 but let's only use the Jewish population for this study, which is 5,394,400. Since I can't find more exact numbers for all the years, we'll use that number from the year 2000 and on.

If we use these numbers, the total number of deaths from terrorism, homicide and war per 100,000 people in Israel in 2002 was 14.8. Let's take NY in the same year. Population: 8,008,288, homicides: 587 for a homicide rate per 100,000 of 7.3. So Israel was definitely less safe than NY at the same time.

But what about other years? Let's take NYC during the Guiliani era. In 1995, a year when I took the subways from YU through Harlem and Washington Heights all the time, NYC's population was 7,332,564 and 1177 people were killed. The rate was 16.1 murdered per 100,000. So one had a greater chance of being murdered in NYC in 1995 than one did in Israel during its single worse year since Oslo.

2003 was also a bad year in Israel. About 516 people were murdered, including 210 in terror attacks, which is 9.6 per 100,000. NY had 597 murders. which is 7.5 per 100,000. So one was more likely to be murdered in Israel during the height of the Intifada than in NYC. By 2004, however, NYC was a more dangerous place, with 7.1 murders per 100,000 to 6.1 in Israel (if we assume 40 soldiers were killed that year). The numbers in Israel have gone down substantially since 04, with only 30 people killed in Palestinian terror attack in 2006. If we overestimate the number of homicides at 200, that means 230 were murdered for a rate of 4.3 per 100,000. That is substantially less than the rate in NYC right now.

Even if we take into account the second Lebanon War, and presume 200 homicides occurred in Israel in 2006, Israel's death per 100,000 is only 7.3, which is actually lower than the rate in NY in 2002 (7.32) and 2003 (7.5) and only slightly higher than NY in 2004 (7.1).

My point is not that Israelis have a great life. Surely Sderot is a horrible situation, but it is important to point out that less than 10 people have been killed by rockets there since Hamas started firing rockets at Israel in 2005. That is less than the number of people murdered in NYC in a little more than week in 2007, and less than the number of New Yorkers murdered in two days in 1990.

Israel has an obligation to stop the rockets, it is shortsighted to claim that Israel's situation is untenable. The Yom Kippur War lasted for 21 days, and 2700 soldiers lost their lives. Real wars wreak much more havoc on Israel than anything we've seen since the first Lebanon War. Ideas like transfer might decrease the number killed in terrorist attacks but they increase the chances of actual war. Let's try to remember that before calling for radical "solutions."

Woman in Saudi Arabia Has To Pay For Divorce

CNN has the story. Basically an abused woman was forced to pay her husband in order to receive a divorce.

Is this story just different in kind or different in degree from the extortion men use against their wives to give them a Get?

But That Is Minor....

Brian Leiter, who is a brilliant philosopher of law but on the crazy far-left end of the spectrum politically, links to a speech by Noam Chomsky:

"I haven't posted a link to one of Chomsky's items in awhile, but this one is particularly interesting (though he, incorrectly, describes the U.S. invasion of Afghanistan as a war of aggression, which it was not under international law--but that is minor)."

Chomsky's views about the lawful and moral use of force are not trivial when assessing whether his points on foreign policy are accurate. Perhaps Chomsky's understanding of our invasion of Afghanistan are not relevant to this particular speech, but his ideology colors his analysis on all foreign and domestic policy issues. Chomsky is a virulent foe of Israel's right to defend itself, partly because practically no use of force is ever acceptable. If someone believes that US' operations against the Taliban is a war of aggression, he is so removed from reality that I'm not sure we can take anything he says seriously. And Chomsky has a long, long list of transgressions.

I wonder if Leiter would be so forgiving if a right-wing professor so blantantly mischaracterized one of Leiter's preferred policies. I doubt it.