Posted on by rjonakait

And Now for Something Completely Small (From the Spouse)

For as long as I can remember, I’ve loved miniature things. Well, we all love puppies and kittens and even human babies. But I loved miniature things, like dollhouses and the things that were inside them. Now. When I was a child in the 1950’s, a dollhouse from Sears and Roebuck was a somewhat boring affair: a metal box with a slanting roof, open on one side to reveal four cubes representing four nondescript rooms (where was the bathroom?). Still. It was small, and if you could find them in Woolworth’s and your mom would let you splurge a little, tiny pieces of plastic furniture could be housed inside. I thought that was pretty satisfying until I was 9 or so.

It was around that time that I became aware of the Colleen Moore Dollhouse at the Chicago Museum of Science and Industry. No mere house, this. It was a mansion of a million rooms (or so it seemed), each completely furnished down to the teeny rose in a teeny vase on a delicately carved mahogany table next to a velvet-covered settee carefully placed on a tiny Persian carpet. And it had electric lighting! Electrified chandeliers, electrified wall sconces. It was a revelation.

As I gawked at this magnificence, though, the pitiful contrast to my Sears and Roebuck box became far too apparent. Knowing that something so utterly amazing existed whose elegance and detail could never be duplicated (at least, not by me) quashed my interest in dollhouses for many years thereafter.

It was a bit later in life that I marveled at the historically accurate rendering of tiny rooms at the Chicago Art Institute. Conceived by Mrs. James Ward Thorne in the mid-twentieth century, the rooms were (“painstakingly” goes without saying) constructed on a scale of one inch to one foot, and there are 68 of them! It was overwhelming to the likes of me, and similarly discouraging. This was a life’s work – and an expensive one. It would take a highly dedicated Mrs. Thorne’s full-time efforts and considerable fortune to even think of duplicating a single room. Sigh.

I most certainly should have given up this interest in miniatures. But no. At Gainesville (Florida) High School I chaired the decorations committee for the senior prom. They could not have picked a more inept leader. Being a complete dufus, I envisioned an entrance to the dance floor (the gym) that would replicate – in miniature — the Gainesville main street at the turn of the century. Low-rise buildings, gas lights, cobble-stone streets. It was a complete and utter disaster! Neither I nor anyone on my committee had a clue on how even to begin. I have mostly repressed the whole affair, but I think somebody’s mother bailed me out by providing crepe paper streamers and Kleenex roses – like any sensible prom decorating committee should have done.

But I never really gave up being enamored of small things. Even my scientific career focused on things microscopic. Nothing gave more satisfaction than to examine through a microscope cells stained to show the delicate intricacies of their inner workings.

And in the meantime, I started to collect miniature tea sets. Cheap enough and still satisfyingly small. I learned that there are small tea sets (suitable for tea time with a teddy bear), smaller tea sets (not suitable for anything, really), and teensy, tiny tea sets (designed to please people like me who have a miniature fetish and a limited budget). The smallest I own came from a gift shop at The Greenbrier. The tray upon which the tea pot, sugar, creamer and two cups in saucers sits is no more than three centimeters in diameter. I love it. All of my tiniest treasures are now displayed in a shadow box that is ill-lit. No one really notices it, but I do, and when I do, it surprises and pleases.

Not knowing much about the military nor coming from a military family, I was never as intrigued by toy soldiers, but a friend, James Hillestad, has a most extraordinary collection of toy soldiers at the Toy Soldier Museum in Cresco, PA. Here are 3,000 square feet of full-scale models with 70 authentic military uniforms. You can see the battle at Vicksburg, parade scenes of Scottish bagpipers, the military review that attended Queen Victoria on a visit to India, etc. etc. In short, hundreds of toy soldiers are on breath-taking display. Definitely worth a trip to the Poconos or go to www.the-toy-soldier.com.

Well, okay, so when I retired, I decided to give my full-time effort to building a doll house. I bought a reasonably sized, reasonably priced kit to produce a Victorian house with four rooms (one is a bathroom!) and a front porch. I put wallpaper on its walls and carpets on its floors. The bathroom has “tiles.” The outside is painted dark green with white trim. It’s furnished of course, complete with a teeny, tiny copy of Scientific American on the living room coffee table. There’s a chandelier in the dining room, but it’s not electrified, and it keeps falling down. There’s a tray of wine and fruit available to guests. I decorate the outside for Christmas with battery-powered fairy lights. I love it. And…I have gotten that Moore/Thorne impulse out of my system.

I think of this topic because I recently saw what must be one of the most amazing miniaturization projects ever! The Ringling Circus Museum in Sarasota, Florida, houses a 3,800 square foot model of a circus conceived and built by one Howard C. Tibbals. It comprises (in small part) The Big Top (with 7,000 folding chairs and five rings), the Midway complete with side shows, a multitude of train cars that carry the 500 hand-carved elephants, tigers, and horses. Horses! Hundreds of horses both for work and for performing. There are clowns putting on make-up, the cooking tent and mess tent with maybe 500 people inside, each with his own tiny plate of food, a patrons’ parking lot with old-timey model cars, a wardrobe tent with tiny sequined circus costumes pouring out of tiny circus trunks. They say there are more than 42,000 individual pieces, not including railroad ties and tent poles. A separate exhibit shows the parade pageantry of the Big Top with hundreds of elephants, acrobats, and costumed beauties. Go to the Internet and put in Howard Bros. Circus. You’ll see; it is miraculous.

So, you see, there are more people than you might think who are driven to a lifetime of miniaturization. Bless ‘em! 

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The Ethical Federal Prosecutor

Santa Claus, an honest lawyer, and a disgusting, dirty, smelly drunk are on the sidewalk when they each see a leather case on the sidewalk. They rush to it and get there simultaneously. It has no lock, and after a few words, they agree to open it. The case is packed with crisp, wrapped $100 bills. The look at each other, and one asks, “What should we do it with it?” Santa Claus says, “I should get it. I will use it to get even more toys for underprivileged children.” The lawyer responds, “No. I will take it and find its rightful owner for this still belongs to someone. I will go to the police and the courts. I know how to advertise for lost property. I will work hard to return it.” The drunk slurs, “Just give it to me. No one will be happier. I will use the money to stay drunk for the rest of my days and never again have to bother others asking for cash.” Who gets the money? Of course, it is the drunk because Santa Claus and the honest lawyer are mythical creatures.

That joke fits in with the many preconceptions that lawyers are without ethics, but in fact attorneys are in a profession that has some stringent ethical codes. Recent news has highlighted that.

Just last week the Supreme Court decided a death penalty case from Oklahoma. The Oklahoma Attorney General told the Court that the defendant had, in fact, been given an unfair trial because the Oklahoma trial prosecutors had not lived up to their legal and ethical duties. “Confessions of error” are highly unusual, and the Oklahoma AG took much abuse for his ethical stand. (The Supreme Court, to the surprise of many, did actually reverse the conviction.)

More familiar is the situation of New York City Mayor Eric Adams. Last fall Adams was charged by the federal government with various corrupt acts. The case was proceeding to trial when the new Justice Department dismissed the charges indicating that Adams could more effectively carry out Trump’s immigration mandates if Adams did not have to stand trial. They dismissed the case “without prejudice,” meaning that they could bring back the charges later if they so chose. This, of course, “incentivized” Adams to do the bidding of the Trump administration. The apparent quid pro quo looked unethical to many. At least eight Justice Department attorneys did what they thought was ethically demanded of them: They resigned.

More recently, Ed Martin, the acting U.S. Attorney for the District of Columbia, demoted seven or eight experienced Assistant U.S. Attorneys who were involved in January 6 prosecutions. Martin defended the demotions by saying that each U.S. attorney “must assess the needs of the office to achieve the goals set forth by the President and the Attorney General.” Martin cited nothing to indicate that the attorneys had or were performing poorly. Instead, the demotions clearly seemed a retribution for actions taken when Trump was not president. The goal seemed to humiliate the prosecutors for performing their jobs ethically. They are now restricted to handling matters normally given to fledgling attorneys starting out in the office. It seems that the acting U.S. attorney hopes that such a demotion will cause them to quit. This action has raised questions about Ed Martin’s ethics.

These actions highlight the unusual role that attorneys and especially prosecutors have in our federal government. More than a few “distinguished” conservative commentators have said that the Attorney General and U.S. Attorneys must follow the president’s directions “because they work for the president.” That’s just not true. Neither an Attorney General nor other federal officials work for the president. He does not pay them, and no one in the government openly pledges fealty to the president. To take office, an attorney general and other federal officials must vow: “I do solemnly swear [or affirm] that I will support and defend the Constitution of the United States.” The oath is to the Constitution not to a person, not even to a president.

Even though the Attorney General, U.S. Attorneys, and other federal officials are supposed to work for all of us (we do pay their salaries after all) and not for the president alone, the lines of authority are muddled. The president does have a power akin to an employer; he can remove an attorney general, a U.S. Attorney, a Secretary of State, and other federal officers. Furthermore, in the legal area, since the president has been given the constitutional duty to “take Care that the Laws be faithfully executed. . . ,” he can set the priorities and policies for the Department of Justice and the Attorney General. Of course, if what is commanded is unconstitutional, the AG or the US. Attorneys cannot — consistent with their oath of office — carry out the command. On the other hand, even if the directive is deemed constitutional but unwise, the AG can be expected to be removed if she does not comply with presidential wishes.

The president can then seek a new attorney general, presumably after vetting the candidate on the contested issue, but that also is complicated. The Constitution does not give the president the power to appoint any Attorney General he wants. Instead, it says that the president “shall nominate” candidates to be federal officials. The Constitution goes on to say, “and by and with the Advice and Consent of the Senate, shall appoint” the Attorney General and other federal officials. The appointment power is a joint one of both president and the Senate. The Constitution does not constrain the Senate in how it should use its power. It is only a norm or a convention that the Senate gives great deference to the presidential nominations.

Thus, the Attorney General and U.S. Attorneys inhabit a strange territory filled with inconsistencies. The president can set criminal justice policies broadly or for individual cases. He can remove those who do not follow his directives. Nevertheless, they do not work for him. They serve the country and its Constitution. He does not have the sole power to replace them. Rather, he holds that authority jointly with the Senate.

Something similar can be said for other federal officials. If the Secretary of State does not carry out the president’s wishes, he can be replaced, but the situation for prosecutors is even more complicated. They are members of the bar, and the legal profession has ethical codes that lawyers are supposed to follow if they are going to continue in the profession. The bar can take their law licenses or otherwise discipline lawyers who don’t follow the ethical rules. That happened to some lawyers for unethical conduct in pushing the claims that the 2020 election was “stolen.” Some were disbarred; some had their licenses suspended.

All lawyers in addition to the duties of their job owe a duty to the justice system. For most attorneys, this boils down to zealously advocating for their clients in an honest fashion. For prosecutors, however, it is different. They do not have a client in the traditional sense and their ethical duties include, but do not stop at, being a zealous advocate. Incorporating the language of the Supreme Court, the American Bar Association has said: “The prosecutor is an administrator of justice, a zealous advocate, and an officer of the court. The prosecutor’s office should exercise sound discretion and independent judgment in the performance of the prosecution function. . . . The duty of the prosecutor is to seek justice, not merely to convict.”

Federal prosecutors are, thus, in a strange role. The president can set prosecutorial priorities. They don’t work for the president, but he can fire them. On the other hand, they are to use “independent judgment,” “seek justice,” and use “sound discretion” and not just follow orders. Their ethical path is a difficult one, and not all have followed it. What is clear, however, is that the path can’t be trod if fealty to a person is primary and working for justice with independent judgment is set aside.

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Ozempic Triumph vs. Scientific Defeat (Guest Post from the Spouse)

It has become clear in recent weeks that the “humanoid alien beings” (as a friend calls them) who run the White House have less than zero understanding of the way medical, biological, or chemical science works. It isn’t that they don’t understand scientific facts (okay, not all of us love the minutiae of alkaloid biochemistry), but they don’t understand the sociology, economics, methodology, or history of science. In particular, they don’t seem to know how scientific knowledge accumulates — tiny steps over long periods of time. As a result, the proposed layoffs and drastic funding cuts in the National Institutes of Health and the National Science Foundation threaten to bring scientific progress, particularly in medical science, to a halt.

Elon Musk may think that the design and construction of his electric car sprang full-blown from his brilliant mind. It didn’t. It was the result of incremental increases over time in the understanding of combustion engines, mechanical and electrical engineering, and so on. Similarly, most of us don’t appreciate where life-saving drugs come from, and even those of us who work or have worked in science don’t know the history of most of the drugs we take every day. I certainly didn’t. We don’t know the many, many hours of research and the many years of effort that culminate in these drugs seeing their way into the clinic. So I took a shallow dive into the history of the well-known drug Ozempic to see how it came to be.

This story goes back to research that began in the 1920’s. But, before going there, some basic human biology:

Blood sugar (glucose) levels are carefully regulated in the healthy human body. When blood sugar levels are too high, the pancreas produces insulin to encourage cells all over the body to take up that sugar and either use it or store it. When blood sugar levels are too low, the pancreas produces a different hormone, glucagon, that tells the liver that it’s time to release some of that stored glucose. It’s an important biological yin and yang. Insulin and glucagon are on two ends of a physiological seesaw, keeping sugar levels steady. If the system gets out of whack (as it does in Type 2 diabetes), too much blood sugar threatens the body with myriad catastrophes including organ failure, blindness, immune system dysfunction, etc. etc. etc. The importance of the seesaw to human health and the distressful increase in Type 2 diabetes have meant that interest in insulin and glucagon have been keen since their discovery in the 1920’s.

In the early 1980’s (more than 40 years ago and some 60 years after the discovery of insulin and glucagon) researchers at the National Institutes of Health who were interested in diabetes (already identified as a disease of the pancreas) began screening venoms for possible effects on guinea pig pancreatic cells, the insulin producers. (These days such a study would be called “a fishing expedition” and would be an unlikely candidate for funding.) It was tedious work. Nevertheless, after looking at venom from bees and wasps and snakes and such, the researchers found that venom from gila monsters (those ugly black and yellow reptiles of the US southwest) had a unique effect on pancreatic cells; the cells became enlarged and started producing lots of insulin. In short order they determined that the venom — or something in it — regulated blood sugar levels in animals. 

Around the same time, an American biologist at Massachusetts General Hospital and a Danish physiologist (working separately) were intrigued by glucagon. Reminder: Glucagon is made in the pancreas and promotes glucose release from the liver, thereby increasing blood sugar levels. However, a small piece of the glucagon molecule, which they called glucagon-like peptide-1 (GLP-1), triggered pancreatic production of insulin and…and…and seemed to suppress appetite and trigger weight loss in laboratory mice. Could this be a drug to treat diabetes and curb obesity? Side bar: the technology they used to identify this molecular “fragment” had taken its own sweet time in coming to fruition.

It was a short-ish step to determine that the substance found in gila monster venom was very like GLP-1. In the early 1990’s John Eng at the VA Center in the Bronx found a molecular look-alike to GLP-1 and named it Exendin-4. Later, a researcher at the National Institute on Aging, working with a pharmaceutical company, obtained FDA approval in 2005 for its use in Type 2 diabetes. Side bar: the technology used to purify and get the DNA sequence of this molecule had been developing on a separate track, but they couldn’t have identified the molecule without it.

But there was a problem with both GLP-1 itself and Exendin-4. They had to be injected (bad enough), but they disappeared quickly from the blood, not hanging around long enough to be very effective. Importantly, chemists at Novo-Nordisk came up with a method for changing the molecule so that it stayed active in the bloodstream. Side bar: you get the picture.

But what about obesity? This effort took a different track and gets murky in part because obesity was not yet considered a “disease” or even an eating disorder. Obesity was long considered to be the personal failure of individuals to limit their food intake and/or their refusal to exercise. Another line of research was being done leading to the realization that for many, obesity was a physiological abnormality that just might succumb to drug treatment. And so it is. In short, the same drug (semaglutide, a GLP-1 look-alike) is indicated for both Type 2 diabetes (Ozempic) and obesity (Wegovy).

People are still a bit unsure how these drugs work to increase weight loss and suppress appetite. They just know that they do. There are hints, though, that it involves direct actions in the brain. This observation, in turn, has led to the hypothesis that there could be a link between metabolic imbalance and neurodegenerative diseases such as Parkinson’s disease, Huntington’s, and/or Alzheimer’s. Clinical trials using Exendin-4 on Alzheimer’s-prone patients have begun. However, those trials and this promising line of research will be stopped when NIH research funding is stopped…as it is now.

In short, Ozempic is the result of almost 100 years of research involving incremental discoveries in physiology, chemistry, molecular biology, neuroscience, and research methodology. That’s a long time, but sometimes science takes a long time. These sorts of breakthroughs will take longer or not even occur if research funding is brought to a halt…as it is now.

Posted on by rjonakait

Snippets

I told Lisa the librarian that I thought that all librarians should be named Marian. To my surprise, she did not know the reference.

Steve Bannon on his podcast said: “A lot of MAGAs on Medicaid. . . . Medicaid is going to be a complicated one. Just can’t take a meat ax to it, although I would love to.” How revealing. Bannon, and no doubt many like him, are not concerned about our healthcare system generally, and certainly not about healthcare for those in the country’s bottom economic quarter. (Almost 25% of Americans get assistance from Medicaid.) He is only concerned because many Trump supporters get Medicaid. (If they weren’t MAGA, would he describe them as on the government dole?) Otherwise, he would only want to destroy Medicaid.

Congressman Rich McCormick, a Republican from Georgia, said that the GOP could do a better job of showing “compassion.” Is there a compassion switch? Can you “show compassion” if you don’t have it in the first place?

“All political parties die at last of swallowing their own lies.” John Arbuthnot.

The fired government workers do get compassion from many, as they should. Most government employees, like most Americans, live paycheck to paycheck, and the sudden loss of a job for them and their families is a tragedy many of us can immediately comprehend. What we don’t see is the harm down the road. What are the consequences if weather forecasts become worse, or if waiting times at VA hospitals are longer? How do you measure what is foregone from lost medical research or the increase in waste, fraud, and corruption that results from fired IRS workers?

We may not know precisely what is lost from the firings, but we know that foreseeable losses will come. On the other hand, there are always unintended consequences that are not foreseen. I was reminded of that from Troy Senik’s biography, A Man of Iron: The Turbulent Life and Improbable Presidency of Grover Cleveland. Senik writes that the Pendleton Civil Service Reform Act of 1883 sought to eliminate patronage for appointment to government jobs. Under the patronage system, those who got employment were assessed a portion of their salaries to kick back to the political parties who secured the positions. Senik says that it was estimated that up to 75% of party funding came from such assessments. With that spigot turned off, parties turned to wealthy individuals and interest groups to fund electoral politics. Thus, job appointments based on merit had the unintended consequence of providing more power to the rich.

V13: Chronicle of a Trial, a magnificent book by Emmanuel Carrère (translated from the French by John Lambert), contains compassion, but also horror, inhumanity, humanity, bewilderment, and much more. On November 13, 2015, jihadists launched attacks in Paris. Luckily, if there was anything like luck that day, suicide bombers arrived late to a packed football game and could not get in. They blew themselves up outside where the crowds were thin. Others allied with them shot randomly at restaurant terraces and cafes killing more, but the major carnage was at the Bataclan theatre, a concert venue of 1,500 hosting apparently a mediocre American rock group, Eagles of Death Metal. Nearly a hundred people were slaughtered in the hall. Six years later a trial started, which took on the name V13, for Friday (Vendredi) the Thirteenth, the day of the attack. Carrère reported on the nine-month trial for a French magazine, and those columns form the basis of the book. At times extremely hard to read (“confetti of human flesh”) but always compelling, V13 is remarkable. Reading it now, I could not help but think about October 7 and its aftermath. One of those on trial in Paris (the defendants were all second stringers since all those who did the actual killing were dead) maintained that the massacres were in response to the loss of innocent lives in Syria from French bombings and said, “Everything you say about us jihadists is like reading the last page of a book. What you should do is read the book from the start.”

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Snippets

Hey, DOGE, a suggestion for you. A news report said that Secretary of Defense Pete Hegseth has government housing. We taxpayers are on the hook for a $49,000 paint job and six figures for renovations. Why? Hegseth has a salary of $235,000, almost three times the median household income in this country. People making as much as Hegseth are responsible for their own housing. Why shouldn’t government workers be, too? DOGE, get an executive order selling off all that housing. How much could we save?

Part of the renovations are apparently for secure information facilities. What? I thought Hegseth was adamant about not working remotely. I assume that he has secure facilities at his office. Is he planning to work at home instead of the office?

Along the same lines, DOGE. How many government workers have a car and driver? We ordinary taxpayers, even if we make $235,000, have to handle our own commutes. Why are government workers better than we are? How much can be saved by jettisoning the cars and drivers? (And do those who have a car and driver pay income tax on the value of that service?)

A wise person said: “There should be a happy medium between government running private business and private business running the government.”

I assumed it was on old sign that read: “Full Service Unisex Hair Care.” Hasn’t Trump outlawed all unisex activities?

We do have savings as the administration follows Mark Twain, who said, “Truth is such a precious article let us all economize in its use.”

I could never be a birder if you have to be able to say “blue-footed booby” without suppressing a smirk or a chuckle. Or “tufted titmouse.”

With all the brouhaha over that gulf, I wonder: Do the French call it the English Channel?

Before going to sleep, I always walk slowly backwards around my bed three times. I do this because it keeps the polar bears away. I know this works because I have never had a nighttime ursine invasion. Some of Trump’s executive orders remind me of my ritual. For example, one EO forbids undocumented aliens from receiving federal benefits. However, before the recent order, the undocumented did not qualify for any such funding, and nothing indicates that the migrants have gotten anything substantial from fraud. In other words, before the order, no federal benefits for the undocumented, and after the order, no benefits for the undocumented. Even so, I expect that the success of the order will be touted. Another example: Trump flamboyantly signed an executive order to end Covid vaccine mandates in public K-12 schools. However, schools do not now have such mandates. I still expect the fanfaronade about the order’s success. And still my slow backward walk has kept the polar bears out of my bedroom. However, I am searching for a way to bring giant pandas in to snuggle up with at night.

Every year—well, three out of four years—I purge and fast on February 29, 30, and 31.

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Our Rubicon Moment?

Friends asked me to discuss the “constitutional crisis” that the media seems to think is imminent.

My starting point is to explain that the Constitution is not static. It has changed in big and small ways; scholars have identified three major constitutional transformations.

The first came before we even had a national constitution. The newly-independent states were bound together by the Articles of Confederation, which were not considered adequate for governing the emerging nation. Therefore, men got together in 1787 in Philadelphia ostensibly to reform those Articles. Instead, they drafted a new constitution which was adopted by the requisite nine states the next year. A new government came into being. Our government today depends on that eighteenth century document, and it is controlled by the constitution much as it was back then.

Early on that founding document was seen as needing changes. Some states only ratified the Constitution with the understanding that a Bill of Rights would be added. The first Congress proposed twelve amendments, ten of which were adopted and went into effect in 1791. These additions mostly announced rights people assumed they already had and did not change the structure of the government. However, a decade later a major flaw in the document was exposed by the election of Thomas Jefferson and Aaron Burr. As a result, the Twelfth Amendment was adopted modifying the electoral college. From its inception, therefore, the Constitution has been subject to change.

The first significant transformation of the Constitution, however, came from the Civil War and its aftermath. The war occurred partly because of a major flaw in the document itself. Instead of confronting the issue of slavery, the founders tried to avoid it or make feeble compromises about it. As a result, slavery was not merely a stain on the fabric of the Constitution but woven into it. Various factions pulling at the threads and cords of slavery from all directions challenged the constitution, and war came.

In the war’s aftermath, three amendments to the Constitution were passed. The Thirteenth Amendment abolished slavery. The Fifteenth Amendment granted Black males, but not women of any color, the right to vote. These two amendments were transformative, but they were only partially successful. Slave-like practices continued to exist in the country, and within a decade of the adoption of the Fifteenth Amendment, the right to vote was stripped from most Blacks.

The Fourteenth Amendment, although it has several provisions, reshaped our Constitution by commanding that no state “shall deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The original Constitution did little to constrain the states in their treatment of inhabitants. The Fourteenth Amendment, as interpreted by the Supreme Court, changed that. For example, the Court held that the amendment’s due process clause prevented a state from taking a person’s property without just compensation. In the early twentieth century it held that the state could not abridge free speech. Over time, the Court increasingly prohibited the states from interfering with rights guaranteed in the Bill of Rights. The Court, relying on the Fourteenth Amendment, also said segregated state schools were unconstitutional and that states must afford one person, one vote. The constitutional crisis of the Civil War produced a Fourteenth Amendment that transformed the relationship between courts and individuals by expanding and clarifying constitutional rights.

The next major constitutional transformation came during the Great Depression. The Supreme Court had found unconstitutional many state and federal laws regulating businesses. This crescendoed during Franklin Roosevelt’s first term when the Court deemed unconstitutional much New Deal legislation that had been passed by Congress to alleviate the harsh economic conditions. FDR responded by proposing that the Court be expanded. Critics called it “court-packing.” Although the causes are debated by historians, lo and behold, after the court-packing proposal, some justices modified their opinions and now upheld federal powers to regulate business and other activities. The Civil War transformation expanded judicial powers to protect individuals and entities from the government. The Great Depression transformation expanded the power of the federal government to regulate activities affecting “interstate commerce,” which has been broadly defined. The decisions of the New Deal Supreme Court provide the basis for much of the federal government’s regulatory power today.

So. Are we now in the midst of another constitutional crisis? Are we due for another constitutional transformation? I see not one possible scenario, but several.

Conservatives look at our government and see a bloated bureaucracy that was not contemplated by the Constitution. It is entrenched but not elected. That bureaucracy, though authorized by Congress and the president, often seems to act independently of Congress and, more importantly, the president. Although it appears to be part of the executive branch of the government, the bureaucracy often sets and follows its own guidelines and policies. Thus, conservatives see a bureaucracy that is too often resistant to the policies of the president, and they find this in violation of the constitution. This unconstitutionality in the conservative eye must be put to rights. A constitutional transformation is needed to restore the balance that our Constitution contemplates where the president sets and enforces executive branch policies. And, under Trump, conservatives maintain we are seeing the beginning of that needed constitutional transformation.

On the other hand, some, but not all, liberals see a different potential constitutional crisis. Many of Trump’s actions and orders, they claim, have been in direct conflict with specific provisions of the Constitution (e.g., birthright citizenship), have been in violation of the separation of powers, or have violated the constitutional duty of the president to “take care that the laws be faithfully executed.”  And while conservatives see a constitutional crisis in an unelected bureaucracy, liberals see a crisis in the unfettered authority exercised by an unelected Elon Musk who has not been appointed to a Senate-confirmed position the Constitution seemingly requires.

Other liberals may be concerned about the administration’s actions, but they don’t see a present constitutional crisis. They see the system working because the courts have been hearing challenges to Trump’s and Musk’s orders. This is the normal constitutional process, and Trump has said that he will follow the judicial process. Almost all the court rulings have been in the federal district courts, which are the lowest level of federal courts. Following decisions in the district courts, those findings can be appealed to the Court of Appeals. Then the losing litigant may seek to have the Supreme Court hear the matter. (There is no right to have the Supreme Court hear these cases; it is in the Court’s discretion.) Many maintain that as long as this process is being followed, there is no constitutional crisis.

Even so, liberals who don’t see a present crisis, are concerned about a future constitutional transformation. Many, probably most, constitutional scholars believe that under existing Supreme Court rulings, many of Trump’s actions violate the Constitution or existing laws. The first fear is that the current conservative Supreme Court will ignore or overturn the precedents and uphold Trump’s actions. That is, that the Supreme Court will reinterpret the Constitution and laws to give the president even more power than he now has. This will, in effect, remake the Constitution by taking away congressional authority and individual rights and make an already powerful president even more powerful. As it did with its presidential immunity decision, the Supreme Court could transform our government to make the president more kingly, more authoritarian.

The other liberal fear is not of the Supreme Court but of Trump himself. Even though he has said otherwise, the fear is that Trump will either not use the appellate process and just keep bulldozing ahead, or even if he does follow normal procedures, he will not obey Court orders that go against him. He will ignore or defy the judiciary. Of course, he said he wouldn’t do that, and he did not disobey the courts in his first term. However, those around him have suggested that he will this time if courts don’t rule his way. And just as you can find Trump statements that he will honor the judicial process, like the devil quoting the Bible, you can find other Trump pronouncements, such as his recent statement: “He who saves his Country does not violate any laws.”

Presidential defiance of the courts would be a true constitutional crisis, perhaps a fatal one. His recent statement about not committing illegalities when saving the country is ascribed to Napoleon, but precedents go back further into history. Julius Caesar broke the law and illegally marched his troops, loyal to him more than to the nation, across the Rubicon and into Rome. The fall of the Roman Republic began, and a dictatorship took its place.

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A Day for Presidents

Ulysses S. Grant liked to say that he knew two songs. One was “Yankee Doodle” and the other was not.

John Ganz in When the Clock Broke: Con Men, Conspiracists, and How America Cracked Up in the Early 1990s (2024) says that George H.W. “Bush was the representative of a class bred to govern, not to lead.”

Grover Cleveland vetoed more bills in his first term than all previous presidents combined. (Many, however, were private pension bills.)Troy Senik, A Man of Iron: The Turbulent Life and Improbable Presidency of Grover Cleveland.

Lincoln said about General Phil Sheridan, who had a distinctive body, that he was a “chunky little chap, with a long body, short legs, not enough neck to hang him, and such long arms that if his ankles itch, he can scratch them without stooping.”Scott W. Berg, The Burning of the World: The Great Chicago Fire and the War for a City’s Soul (2023).

Warren Harding, when President, privately said that his vote for World War I was a mistake. Adam Hochschild, American Midnight: The Great War, A Violent Peace, and Democracy’s Forgotten Crisis (2022).

Nicole Hemmer in Partisans: The Conservative Revolutionaries Who Remade American Politics in the 1990s summarizes President Ronald Reagan as being fueled by anticommunism, which gave him “a preference for more-open borders and higher immigration levels, for fewer tariffs and a stingier social net. Anticommunism mattered more to him than democracy or small government. He wanted a sharp increase in military spending, a more aggressive posture toward the Soviet Union, and more extensive aid to right-wing illiberal regimes in place in South and Central America and Southern Africa.”

Hemmer also reports that Reagan’s 1980 presidential race was the first with a partisan gender gap.

Jill Lepore in These Truths: A History of the United States (2018) reminded me that Reagan, in response to Black Panthers, said there is no reason why anyone should carry a loaded gun on the streets.

Joshua L. Powell writes in Inside the NRA: A Tell-All Account of Corruption, Greed, and Paranoia within the Most Powerful Political Group in America (2020) that gun owners voted for George W. Bush by 25 points over Al Gore.

Al Gore is younger than Donald Trump.

Ted Widmer in Lincoln on the Verge: Thirteen Days to Washington (2020) refers to a historian who said that to discuss Millard Fillmore was to overrate him.

One modern president who was religious believed strongly in the separation of church and state. Jonathan Alter writes in His Very Best: Jimmy Carter, A Life (2020) that when he was the Georgia governor, Carter canceled a weekly worship service for government employees because it violated separation of church and state. President Carter did not allow religious sermons in the White House because of separation of church and state.

Jill Lepore states in These Truths: A History of the United States (2018) that Lyndon Johnson had broad support among evangelicals in 1964.

Something that would not happen today: Doris Kearns Goodwin reports in An Unfinished Love Story: A Personal History of the 1960s that she thought that she would lose her position as a White House Fellow in 1967 because she had co-authored a piece in The New Republic titled “How to Remove LBJ in 1968.”

Jonathan Alter maintains that Jimmy Carter had a photographic memory for names, which reminded me of a story a former colleague told me. Ed grew up in a small Arkansas town where his parents had a modest, but successful, business. When Bill Clinton ran for state attorney general, Ed’s parents attended a fundraiser in their hometown for the candidate. Eight years later, when Clinton was out of office between his non-consecutive gubernatorial terms, Ed’s parents were in Washington, D.C. They spotted Clinton on the opposite sidewalk. They debated whether they should go up to him because of their one meeting. Before they had made a decision, Clinton strode across the Georgetown street, stuck out his hand, and greeted Ed’s parents by their first and last names.

This is not the first time we have had an administration with strange opinions about vaccinations. Jill Lepore in These Truths: A History of the United States (2018) states that Dwight Eisenhower and his Health Secretary said that the free distribution of the polio vaccine was socialized medicine.

According to Timothy Snyder in The Road to Unfreedom: Russia, Europe, America (2018), Trump in 2016 did best in counties with a public health crisis, especially where the suicide rate and opioid use was high.

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First Sentences

“Clarence Darrow, the famous labor lawyer from Chicago, had stood tall in the public’s eye for almost two decades, and even those who didn’t much like him respected his vigorous defense of what seemed to be hopeless cases.” Brenda Wineapple, Keeping the Faith: God, Democracy, and the Trial that Riveted a Nation.

“Wise guests wake early at the Royal Karnak Palace Hotel.” Christopher Bollen, Havoc.

“Picture the biggest tree you’ve ever seen, laid on its side and sliced lengthways into boards no thicker than expensive steaks.” Callum Robinson, Ingrained: The Making of a Craftsman.

“A wise man once said that next to losing its mother, there is nothing more healthy for a child than to lose its father.”  Halldór Laxness, The Fish Can Sing.

“History, as the cliché goes, is written by the winners, but this is a history of the losers: candidates who lost their elections, movements that bubbled up and fizzled out, protests that exploded and dissipated, writers who toiled at the margins of American life, figures who became briefly famous or infamous and then were forgotten.” John Ganz, When the Clock Broke: Con Men, Conspiracists, and How America Cracked Up in the Early 1990s.

“In the next town over, a man had killed his family.” Paul Murray, The Bee Sting.

“As ice gathered several inches thick on the Hudson River and the mercury plummeted below freezing, Hortense Odlum stepped from her chauffeured car onto the Fifth Avenue sidewalk.” Julie Satow, When Women Ran Fifth Avenue: Glamour and Power at the Dawn of American Fashion.

“In a moment of panic, we decided to look for a home.” Ayşegül Savaş, The Anthropologists.

“The First Federal Congress was the most momentous in American history.” Fergus M. Bordewich, The First Congress: How James Madison, George Washington, and a Group of Extraordinary Men Invented the Government.

“Terry Tice liked killing people.” John Banville, April in Spain.

“Comrades, In the summer of 2022, I returned to Howard University to teach writing.” Ta-Nehisi Coates, The Message.

“Rotating about the earth in their spacecraft they are so together, and so alone, that their thoughts, their internal mythologies, at times convene.” Samantha Harvey, Orbital.

“He stands offstage unseen before seen by millions—oh, sweet polarities!—consolidating adrenaline into twinkling brio.” Bill Zehme with Mike Thomas, Carson The Magnificent.

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Indicted for an Abortion Pill

“If men could get pregnant, abortion would be a sacrament.” Florynce Kennedy.

“I’ve noticed that everybody that is for abortion has already been born.” Ronald Regan.

Dr. Margaret Carpenter of New Paltz, New York, was indicted by a Louisiana state grand jury for prescribing and providing mifepristone, the so-called abortion pill, to a pregnant girl in Louisiana. Two-thirds of this country’s abortions involve the use of mifepristone. The abortion pill is legal in New York; it is illegal in Louisiana. (Louisiana bans all abortions at whatever stage of pregnancy and has no exceptions, even for rape or incest.) The Louisiana crime carries a sentence of imprisonment of up to five years.

The mother of the pregnant Louisiana girl ordered the abortion pill online. The mother also was indicted, and news reports indicate that she was taken into custody and released on bail.

Carpenter’s indictment appears to be the first criminal case of an out-of-state provider of abortion pills brought by a state that bans them. I have been asked by friends to answer some basic questions about the indictment, and here are my answers:

Can the girl who took the abortion pills be charged? Answer: No. The Louisiana law specifically exempts the pregnant woman from criminal charges.

Dr. Carpenter took no actions within the borders of Louisiana that could be considered illegal. Can she still be criminally charged? Answer: Yes. If I am in New York and hire someone to kill my business partner in New Jersey, and the partner is killed as a result, I have committed a murder for which New Jersey can prosecute me.

But you might say, that is different. Murder is a crime in both New York and New Jersey. The abortion pill may be illegal in Louisiana, but it is not in New York. The doctor did nothing that was illegal where she was. Can Louisiana still make it a crime to ship the abortion pill, legal in New York, to Louisiana? Answer: Yes. Imagine that New York makes an automatic firearm illegal, while it is legal to sell and possess it in North Carolina. A gun shop owner, knowing that the firearm is illegal in New York, ships it to New Paltz. He can be charged with a crime in New York.

Even if Dr. Carpenter can be charged in Louisiana for shipping a drug there that is legal in New York, will she be extradited from New York to stand trial in Louisiana? Answer: No. Extradition is the process by which one state demands the return of a criminally accused fugitive who is in another state. This is generally a routine process that is authorized by the federal constitution. The governor of the demanding state sends a signed warrant to the governor of the state where the fugitive is present. The fugitive is detained, and the demanding state sends law enforcement to transport the fugitive back to the host state to face the music.

Extradition, however, applies to “fugitives” and Carpenter is not one. The term means someone who had been present in the demanding state, (allegedly) had committed crimes there, and has now left that state. If you were not in that state when the supposed crime was committed, you are not a fugitive from that state. New York follows the normal extradition rule: If extradition is asked for someone who was not in the demanding state at the time of the crime, that person will be extradited only if the alleged conduct is criminal in both states. That, of course, is not the situation for the doctor. Her actions do not constitute a crime in New York, and she should not be extradited under New York law.

But there is another reason she won’t be extradited. New York has enacted a Telemedicine Health Shield Law. It protects New York health care providers for activities precisely of the kind Dr. Carpenter did. One provision prohibits New York government officials from cooperating with an out-of-state investigation seeking to impose liability for reproductive health care activities lawful in New York regardless of patient location. The law also says that the New York Governor may not extradite anyone for legally protected reproductive health care in New York. The law was enacted precisely to protect New York doctors prescribing abortion pills to women in states where they are banned. (In the last week, New York’s law was expanded. Now only the name and address of the medical practice, not the doctor’s name, will be necessary on the prescription sent to states that ban the medicine.)

However, even though Dr. Carpenter will not be extradited by New York, her life can still be greatly affected. Of course, she will have to eschew the New Orleans Mardi Gras, but she also has to be careful about visiting other places, especially states with abortion bans. She could, for example, be arrested in Texas, which might then extradite her to Baton Rouge. Indeed, an unscheduled airline stop in Dallas could have her in handcuffs.

Could Dr. Carpenter be tried in absentia? Answer: No. A trial in absentia is one without the presence of the accused. Such trials do happen, but constitutional and state laws require a knowing and voluntary waiver of the right to attend trial. The procedures vary around the country, but everywhere they require the trial court to warn a defendant about the consequences of not appearing for trial. In other words, Dr. Carpenter could only be tried in absentia if she at first appeared before Louisiana courts, and without extradition or a strong sense of martyrdom, that is unlikely to happen.

What if Dr. Carpenter were kidnapped and taken to Louisiana? Could she be tried? Answer: Yes. Certain items of evidence can be suppressed when someone is brought to court illegally, but the case itself can go on. There are many examples of this happening sometimes from state to state, often by “bounty hunters.” The public becomes more aware when someone is brought by force to the United States without authorization from the foreign government.  (Although instead of using “kidnapping” and like terms, we use euphemisms such as “extraordinary rendition.”) A famous example was Panamanian strong man Manuel Noriega, who was indicted in Miami for drug and money laundering charges. The U.S. invaded Panama, captured Noriega, and flew him to Florida, where, after trial, he received a forty-year sentence. Of course, if Carpenter were kidnapped in New Paltz and taken to Louisiana, the abductors would be committing New York and federal crimes.

A medical health professional providing abortion pills to a person in a state where they are banned prompts us to consider the legislative legacy of Anthony Comstock.

Comstock, a United States Postal Inspector and officer of the New York Society for the Suppression of Vice in the late nineteenth century, is considered the force behind the Comstock Act(s) of 1873. These laws criminalized the use of the mails and common carriers to distribute obscene, lewd, and lascivious materials, which Comstock basically defined as anything having to do with sex. It also criminalized the distribution of prohibited contraceptive devices and information. It similarly criminalized any methods or information about abortion.

The Comstock Act is still on the books, although its use has largely disappeared for several reasons. The Supreme Court granted First Amendment protection to much of what previously had been considered illegal obscene material, largely leaving only child pornography without constitutional protection. After the Supreme Court held that Americans have a constitutional right to access contraception, Congress removed the contraception ban from the Comstock Act. And after Roe v. Wade granted a constitutional right to abortion, the abortion provisions of the Act were not enforced…or at least they weren’t enforced until Roe was overturned.

Abortion opponents have maintained that we don’t need a new law against abortion because we have the Comstock Act.  Two years ago, then-Senator JD Vance joined other conservatives in demanding that the Comstock Act be applied to abortion-related materials, including abortion pills. Project 2025, disavowed by Trump on the campaign trial but implemented by him as president, advocates use of the Comstock Act to ban abortion pills.

On its face, the Comstock Act would ban abortion pills as well as any instrumentality used in an abortion nationwide. However, past interpretations of the law held that the Comstock Act could not interfere with the state regulation of medical practice. If those precedents are followed (but who trusts the courts today?) and abortion is legal in a state, the Comstock Act would not prohibit abortion pills there. The Act could only be applied to the provision of abortion pills being sent to places where they are illegal. In other words, precisely to Dr. Carpenter’s situation.

I am not saying that this is going to happen, but if Carpenter were charged under the Comstock Act, a federal law, the New York Telemedicine Shield Law would not protect her. FBI or other federal law enforcement agents (assuming that there will be any who are not tied up seeking retribution for actions Trump has considered hostile) can arrest the doctor. No interstate extradition would be required to put her on trial, and she would be tried in federal court.

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Random Thoughts

Without Any Sense of Irony

Without any sense of irony, Trump announced from Mar-a-Lago that federal workers could not work remotely.

In E Unibus Pluram: Television and U.S. Fiction (1990), the great and tragic David Foster Wallace wrote that irony is “not a rhetorical mode that wears well. . . . This is because irony, entertaining as it is, serves an almost exclusively negative function. . . . Irony is singularly unuseful when it comes to constructing anything to replace the hypocrisy it debunks.” Wallace makes reference to Third World coups overthrowing corrupt hypocritical regimes without establishing a superior governing alternative. “All U.S. irony is based on an implicit ‘I don’t really mean what I am saying.’ So what does irony as a cultural norm mean to say? That it’s impossible to mean what you say?”

Without any sense of irony, Trump blocks refugees into the United States but maintains that other countries should take in the people of Gaza. There is a lot of sparsely settled land fifty miles west of Mar-a-Lago that could easily settle a million Gazans. And if Trump thinks the Gazans would not like the Florida humidity, there is a lot of arid land in west Texas, Arizona, and Nevada where they could be settled. Of course, some of this is Native American land, but when has that ever stopped us?

Hair We Go!

We attorneys love to draw distinctions between situations. A precedent does not apply, we argue, because that situation is different from that of my client.  The spouse, although not having gone to law school, seems to have picked up the lawyerly trait. For example, when she looks at my disheveled, gray, wispy hair, and I say that the hairdo was good enough for Einstein, she draws a distinction.

Is this another reason to distrust the Bible? Proverbs 20:29 says, “The glory of young men is their strength, but the beauty of old men is their gray hair.”

The spouse did not want to go out last night, but her hair looked too good to stay home.

Super Bowl Retribution

I root against both Kansas City and the Eagles, so I may not watch the football game. Even so, I wonder if this will apply to the Super Bowl: “Philadelphia, where no good deed goes unpunished.” Steve Lopez, The Philadelphia Inquirer, January 15, 1995. Quoted in Craig Johnson, Kindness Goes Unpunished.

Trans—gression

During the election season in Pennsylvania with contested presidential, Senate, and House races, I saw ad after ad of candidates seeking votes by promising to stand up to the trans people, focusing particularly on trans girls in girls’ sports. I wondered at the time how many transgender athletes are in girl sports and asked Siri. She gave me links to news articles that said that in 2023 there were maybe 100 in college sports and five in K-12. Five.

In the picture I saw of Trump signing an executive order seeking to end transgender girls playing sports showed him, pen in hand, surrounded by a crowd of pre-teen girls. I noted to myself that those girls in the signing photo are much more likely to encounter an abusive coach than compete with or against a transgender female. Oh, wait. They were standing next to a sexual abuser.