Property, Perspective, and the State of Nature

One of my go-to quotes is Thomas Hobbes on life in the State of Nature being “solitary, poor, nasty, brutish and short.” The context usually has to do with countering extreme libertarian notions (or at least taking those notions to their logical conclusions) about government being useless or evil. However, I’m currently reading “Sapiens: A Brief History of Humankind” by Yuval Noah Harari, and maybe Hobbes and I have it wrong. The average forager seems to have had it better than the average farmer. The agricultural revolution was a Faustian bargain with the average human working harder, for longer hours, at work that was less interesting, on a smaller patch of ground. Their diet became less varied and humans became more susceptible to plague and famine. However, it undeniably allowed humans to produce more food  in a smaller space and live together in greater densities. Before too long, there was no turning back – and, in any event, no one really remembered what the hunter gatherer lifestyle was like.

Then why didn’t humans abandon farming when the plan backfired? Partly because it took generations for the small changes to accumulate and transform society and, by then, nobody remembered that they had ever lived differently. And partly because population growth burned humanity’s boats. If the adoption of ploughing increased a village’s population from a hundred to 110, which ten people would have volunteered to starve so that the others could go back to the good old times? There was no going back. The trap snapped shut.

To support agriculture, we had to invent the idea of property (a right that, the Founders’ declaration to the contrary, is a human construct, not something that exists of necessity in nature. Also, it’s demonstrably alienable.) In fact, we had to conceive a lot of things that don’t exist in the real world.   Harari says that this ability to conceive of abstractions  preceded the Agricultural Revolution — a Cognitive Revolution that enabled homo sapiens to emerge from Africa, cover the planet, and eliminate the non-sapiens humans of the time (Neanderthals and the like). Without being able to conjure up abstractions, humans could not have organized in large numbers. Some of those abstractions are laws, nations, corporations, religions, and cultural narratives.

But those organizing abstractions can be insidious. When they are at their most effective, we have convinced ourselves that these abstractions are not artificial. Harari talks about Hammurabi, his laws, and the classes (slave, commoner, and aristocrat) that the law created and/or reinforced. The conceit in Hammurabi’s Code was that those laws were handed down by the Gods — these laws weren’t man-made, they were divine. A division between slaves, commoners, and aristocrats wasn’t artificial, it was natural. We can look back on other cultures and see the man behind the curtain. Clearly Marduk wasn’t actually whispering in Hammurabi’s ear when he declared these laws. There is nothing preordained that makes a person into a slave — that’s an accident of the culture in which the slave was born and the will of the humans surrounding him or her. Recognizing the conceits of one’s own culture is a lot tougher — By accident of having been born to parents living in 20th or 21st century North America, we don’t have divinely ordered slavery (though we are dealing with aftershocks of ancestors who did). Rather, we have self-evident truths and natural laws; not to mention the invisible hand. The Market (if left uncorrupted by humans) will distribute wealth according to merit and other morally satisfactory criteria. Once acquired, that wealth will become a person’s property — to which he or she has an inalienable right because Natural Law. (Recall: property is not the tangible stuff –  it’s not, for example, a chair or a house or a patch of ground. Rather property, properly understood, is the bundle of rights that we have or don’t have with respect to those things.)

If we look back to the beginning of the agricultural revolution, we can see how wealth was generated and acquired. Civilization was made possible by agriculture and its ability to generate a surplus. But that surplus wasn’t willingly generated and turned over to the civilized elite. Government, law, and civilization requires the use of – or at least the credible threat of – violence. Taxes have always been extracted by force where need be. Slave labor was compelled by force. Property becomes property – rather than merely stuff you are holding onto as long as you’re able – because the government will use violence on your behalf to protect your prerogatives with respect to those things. Law, at the end of the day, is potential violence wielded by the state. The Market rewards leverage, not necessarily merit (by which, in market terms, I generally mean labor, creativity, and socially beneficial risk taking). Merit can be a form of leverage that the market rewards, but it’s hardly the only form.

All of this sounds pretty negative. I understand that. But, even if you don’t agree with the entire case, I think much of it is ultimately true – and it creates a perspective that deviates from the mainstream – from the dominant cultural narrative of our times. It’s tough for me to unsee, even if I’m skeptical of pieces of this particular narrative. What’s tougher is how it affects my ability to relate to people who subscribe to the dominant cultural narratives about how property is an inalienable right commanded by natural law and necessarily acquired according to merit guided by the invisible hand of the market. I was raised in that narrative.  But, sometimes, I forget what it’s like to accept those things as natural law rather than human choice. When I’m talking to someone who hasn’t questioned that narrative (let alone rejected it), we don’t agree on the ground rules. I’m playing basketball, and they’re playing soccer. There’s going to be conflict when I use my hands.

What’s my suggestion to make a better society? Communism? Anarchy? Totalitarianism? None of those, really. Or maybe a blend of successful pieces of all of them. I’m not saying I have a better way of making things work, necessarily. But, when I (or someone like me) suggests that we could choose to handle property or allocation of wealth in a different way if we wanted to, or that the Founders weren’t infallible oracles channeling the divine and eternal truths of Natural Law, they’ll look at me like I have two heads. I think merit and wealth may often be correlated. They think there is a causal relation, and – even more problematic – they think a view to the contrary is not only wrong, but probably immoral and against nature.

Because I have been exposed to a lot of  history, despite the negativity that I may be projecting, I don’t actually see our system as all that bad. We have certainly had worse. I do, however, see the system as malleable. To the extent we choose not to make changes, that is a human choice – not mere adherence to natural law, self-evident truths, or the commands of Marduk.

Supreme Court Decides in Favor of Marriage Equality

In a 5-4 opinion, the United States Supreme Court has decided, in Obergefell v. Hodges (pdf), that prohibitions against same sex marriages violate the Equal Protection and Due Process clauses of the United States Constitution. I’m happy with the result, but, after an initial read of the opinion, I don’t think it is a great model of legal writing – more high minded rhetoric than clinical analysis of the facts and law before the court. (In my mind, Judge Posner’s opinion in Baskin v. Bogan (pdf) was much better as a legal document.) Chief Justice Roberts’ dissent has a lot to work with in that regard.

That said, after all the critical noise about the deficiencies in the majority opinion, Roberts’ dissent is remarkably thin where all of these efforts to justify a same-sex marriage bans have been thin: the rational basis for such prohibitions. If you strip away his critiques of why the majority opinion is deficient, the following seems to be the sum of his explanation of why such bans are constitutionally permissible:

In any event, the marriage laws at issue here do not violate the Equal Protection Clause, because distinguishing between opposite-sex and same-sex couples is rationally related to the States’ legitimate state interest in preserving the traditional institution of marriage.

“We’ve always done it this way,” is cited as a sufficient state interest. I’d enjoy seeing John Roberts, as an attorney, argue that position to Judge Posner. I’m guessing he would not fare any better than Indiana’s Solicitor General did in front of the 7th Circuit.

In Indiana, when analyzing the state’s “defense of marriage act,” the rationale had to do with procreation. My post back in 2005 after the Indiana Court of Appeals decision:

[T]he Court of Appeals found that the legislature could enact such legislation to further its goal of encouraging procreation. And, since gay couples can’t procreate, they can be deprived of the benefits conferred on married couples. . . . The reasoning of the court seems specious. I would love to see how the Court reacted to legislation that prohibited barren or post-menopausal women from getting married or remaining married.

There is a tone of indifference in that 2005 post of mine of which I am not proud. I had more gay friends than I knew back then, and even more now. And they love as deeply as anybody. Mere tradition is an insufficient reason for barring them from forming the same sorts of legally recognized family units that society affords opposite sex couples. The rationales for maintaining such prohibitions, to the extent any are offered, so often seem like post hoc affairs — after the fact rationalizations where the real reason has more to do with habit than utility.

In any event, I’m happy about this decision on a number of levels — but especially for those gay friends of mine who were not allowed to get married yesterday but who are now free to do so.

The Confederacy Was About White Supremacy And Treason

By and large, on this blog, I have made an effort to strike a more or less reasonable tone when I disagree with something. An exception has been with respect to matters related to the Confederacy. I allow myself some intemperance on that subject. So, it’s somewhat gratifying to see the late storm of disapproval where the Confederate Battle Flag is concerned – a storm triggered by a white supremacist who murdered nine black people at church in Charleston.

It seems that a moderate tone on the subject has allowed people to remain in denial about what the Confederate heritage is about. It’s a heritage of treason, citizens of the United States taking up arms against the U.S. and killing its soldiers. They took up arms because they claimed a right to secede so that they could preserve their states’ rights to enslave other people. It’s heritage, but it’s not a proud heritage.

Tony Horwitz, who wrote a great book on the subject of present day Southern attachment to the “Lost Cause” mythology, Confederates in the Attic, has a piece at TPM on the latest controversy entitled “How the South Lost the War but Won the Narrative.”
He concludes:

I’m not very optimistic that the debate over South Carolina’s flag will bring a deeper reckoning. Furling the statehouse flag may bring temporary relief to South Carolinians, but what we truly need to bury is the gauzy fiction that the antebellum South was in any way benign, or that slavery and white supremacy weren’t the cornerstone of the Confederacy. Only then, perhaps, will we be able to say that the murdered in Charleston didn’t die in vain, and that the Lost Cause, at last, is well and truly lost.


A little over a year ago, my family conceived a plan to enjoy the fruits of American imperialism. We began to save and otherwise make arrangements for a trip to the Hawaiian islands that began on June 2 and ended on June 15.

High School graduation at the "Snake Pit"

High School graduation at the “Snake Pit”

The first order of business, however, was a brief detour for my niece’s graduation at a high school in the Dallas, Texas area which took place at the University of North Texas “Snake Pit” – a very cool facility. The proceedings were very Texas. Members of a cub scout troop or, probably, boy scout troop were called upon to “present colors.” The jarring contrast between the pretense of military solemnity and gravitas on one hand and the reality of a couple of kids carrying a flag – in light of my stereotyped notions about Texas – almost gave me the giggles. Then there were the frequent nods to the importance of Christianity – at least two official prayers plus a couple of students bearing witness to the power of Christ aiding them in getting their high school diplomas. If I were a non-Christian student, I would have felt very much like a second class citizen at this public school. Certainly there were more references to God in that ceremony than there were to education. (Perhaps aware of my less than Texan religious patriotism, my bag didn’t make it onto our plane from Chicago to Dallas, despite being checked at the same time as my wife’s bag which did make it. When it arrived at our hotel in Dallas late that night, it had an “Inspected by TSA” tag.)

But, that was Texas. On to Hawaii!

Harper and Kanani waiting happily for their Budget Rental Car in Kailua-Kona.

Harper and Kanani waiting happily for their Budget Rental Car in Kailua-Kona.

The flight is a long one. After a brief jump from Dallas to Phoenix, the flight over the Pacific took 5-6 hours from Phoenix. We flew into Kailua-Kona on the west side of the Big Island on June 2. I had been warned not to judge Hawaii by the Kona airport. It’s on a lava field and is a bit like landing on the moon. That, at least, did not catch me by surprise. What did strike me a bit was the small, open-air nature of the airport. I’d never seen an outdoor baggage claim before. No worries – the weather was nice. The weather is just about *always* pleasant in Kailua-Kona. The big mountains (Mauna Lea and Mauna Kea) to the east squeeze out most of the moisture from the prevailing winds coming out of the east over the Pacific. From the airport, a shuttle driver took us to get our rental car. The shuttle driver was a nice guy who was, no doubt, hamming up his Hawaiian schtick for the tourists to whom he was catering. His patter about Hawaii wasn’t a sham, necessarily, but he knew his clientele. The folks at Budget, where we got our rental, who weren’t working for a tip, were much more leisurely about moving the line. But, no worries, we’re in Hawaii with a long vacation ahead of us. Pictured is Harper who brought her American Girl doll, Kanani. Kanani did not fit in Harper’s already full backpack, so Harper had to expend a great deal of effort carrying the doll separately through all of the airports and whatnot. But, according to Harper, Kanani was Hawaiian, so she needed to go to Hawaii! Fair enough.

We vacationed with some friends of ours from West Lafayette, a family of six. The ten of us:



So, we rented a house that could accommodate the 10 of us. And we found a great one. (“We” — who am I kidding? My role in the planning was minimal. I had more of a role in the financial support end of things. The wives in the two families did the heavy lifting.)

Harper, Cole, and Madda  on the lanai.

Harper, Cole, and Madda on the lanai.

The house was nice, comfortable, and well-furnished generally, but the in my mind, the best part was the lanai. It faced the Pacific and had a great view. It had a comfortable set of couches with a coffee table on one end and a big dinner table that sat our whole crew on the other. The temperature was pleasant at all hours out there. I was occasionally struck by the difference in temperature between the court yard with the pool versus the lanai. The former could be hot and a little stifling while the latter never was. The breeze, which is pretty dependable, really makes a difference.

The families at dinner

The families at dinner

The dinner table was no small selling point. Having a table that accommodates 10 people is good. Having one that lets you see the sun set over the Pacific every night is terrific! And, not for nothing, eating at “home” was a bonus. We weren’t trying to be stingy and do enjoy eating out, but the logistics and expense of feeding 10 people at Hawaiian restaurants can get a little daunting. So, about half the nights, we stocked up on groceries (I became partial to the KTA), and I put my mastery of poolside grills to work.

Other things that became staples of our visit:

Fresh fruit – My friend Jason, in particular, was diligent in making sure we had a never ending supply of pineapple, mango, and papaya cut up and ready to go. He got a good bit of that fruit from the local farmer’s market.

Hawaiian Radio – Both families, without discussing the matter, defaulted to radio stations featuring Hawaiian music. In particular, I liked Native FM, and have apparently become a fan of the Mauna Kea protest song genre. (See, e.g., Sudden Rush “We are (Mauna Kea)” and “Rise Up” by Ryan Hiraoka featuring Keala Kawaauhau). There was also a pretty great Hawaiian-style remake of David Lindley’s “She Took Off My Romeos” by Ho’aikane.

Local microbrews – While we were on the Kona side of the island, the Kona Brewing Company supplied our beer. (Of note to my fellow Hoosiers – I was able to buy cold beer at a gas station on Sunday. Paradise!) I became partial to the Fire Rock Pale Ale. While the beer was good, I have to say that our dinner at the Kona Brewing Co. was probably the most disappointing meal on the island. The server was impatient, and the menu had a TGI Chotchkies feel to it.

Dad and Cole at the Farmer's Market

Dad and Cole at the Farmer’s Market

One of the few itinerary items I imposed on the group was to go see the Captain Cook monument on the north shore of Kealakekua Bay where Cook first encountered the Hawaiians and was later killed by them. The original plan was to hike there. The monument is not accessible by road, and the hike involves getting to the bottom of (then climbing back up) a 1,500 foot cliff that descends to the bay. Given that our group included some younger kids, we abandoned that plan and, instead, signed up for a kayak/snorkeling tour. This was a great decision. We ended up arranging kayaking through the Aloha Kayak Co. on short notice, mainly because they were set up for on-line booking. The owner and central office are a little disorganized and sketchy, but the guide and experience were outstanding. When we showed up, the guy who was there seemed a little unsure of himself. The owner showed up a little later. He wasn’t unsure of himself but was one of these hyperactive, keyed up, over confident, ADHD and/or meth-addled types. Prior to the tour, he gave us a history lesson about Cook and Hawaii that was, in a few instances, historically accurate. But, mainly the lesson took every opportunity to use scraps of history and pseudo-history in ways that minimized or demonized Cook. (For example, the kayak company owner had the Spanish regularly visiting Hawaii for centuries prior to Cook’s arrival as part of the Spanish route between the Philippines and Central America – there is, at best, speculation that the Spanish may have stumbled across the islands at some point.)

Once we got underway, however, and met our tour guide, John, the expedition was outstanding. Kealekekua Bay is simply one of the most beautiful places on the planet. We probably saw a dozen spinner dolphins up close and personal as we kayaked the mile or so across the bay. We stopped and looked briefly at the Cook memorial, but the monument itself is pretty obviously a disfavored place among the locals — at least those we encountered. The kids and I had fun joking about how we were also going to Great Britain, since the chained off parts of the memorial were apparently deeded to Great Britain in 1877. The main feature became the snorkeling. It was my first time snorkeling, and it was incredible. My daughter, Harper, was the first one in, popped her head in the water for about five seconds, then popped up, proclaiming, “This is awesome!” The rest of us hurried to get in there with her. And it was, in fact, awesome. The amount and variety of the sea life under there was pretty incredible. Before that, I had heard friends rave about snorkeling but didn’t really understand the point of the gear. Just stick your face in the water. Now I get it. The ability to see and float – aided by being flat on your face – is magnified to a great extent with the gear, and in places like that Bay, there is a tremendous amount to see.

Approving Jason approves of Tacos 2 Day

Approving Jason approves of Tacos 2 Day

Getting out of the landing spot near the monument and into the Bay was tricky due to the weather conditions. The tide made it necessary to time the waves a little bit in order to clear the rocks safely. It seemed a little dicey to us, but chatting with our guide, John, it sounds like the weather conditions had changed enough to where we were glad to be ignorant about the difficulties John had to consider when getting us out of there. We left our phones behind on the advice of the tour company to avoid damaging them in the water. So, I don’t really have any pictures of that expedition. However, pictured to the left is Tacos 2 Day which was absolutely the best thing for our crew, ravenous after a day on the water.

Tacos 2 Day is open on Fridays and Saturdays, and is basically a grill under a roof with some card tables for those who want to dine there. I’m told it is operated as a fundraiser for a local church. In any event, Jason and I went and fetched piles of tacos (chicken, asada, and chorizo) which the family annihilated in short order. They were good, and the family was hungry. Thumbs up! Another good, no frills dining option we enjoyed was Ultimate Burger.  Some members of our group wanted very good burgers or decent burgers. No dice. Ultimate Burger is *not* messing around. Those grass fed, ultimate burgers were pricey but delicious.

Jason and I did make one expedition without the family and kids. We drove down to South Point (Ka Lae) and then hiked over to Papakolea Beach which is one of four beaches on the planet with green sand.

At the Southern Edge of the U.S.

At the Southern Edge of the U.S.

The drive from Kailua-Kona to South Point is interesting. You drive from the relatively affluent city through a couple of less prosperous towns that amount to suburbs, then into the country, then to what feels like the edge of the earth. Turning off Highway 11 just after making a turn at its southwestern corner, and driving down the one-lane South Point Road starts to feel like one of those dreams where you are running in place. Something about the perspective of the wide open territory descending to the coast makes it look like you are constantly almost there. But, finally, you get to the end of the road and it feels very isolated. Set up at the cliffs above the ocean just off the edge of the road are some four wheel drive vehicles, trucks and whatnot, anchoring tarp-shelters used by locals fishing off the edge. We were there early on a Saturday morning – whether this was a weekend thing or a day-to-day occupation, I couldn’t say. We snapped our pictures and tried not to disturb them.

On the road to Papakolea

On the road to Papakolea

Back up the road just a little bit, there is a fork that takes you east about a quarter mile to the parking lot and trail head for Papakolea Beach. Because we got there so early, the parking lot did not have any activity. There were more trucks parked next to tarp-awnings at one side of the lot and then a big open space for more parking, but because there were no cars, it wasn’t entirely clear if there were “rules” about where you should park. I just picked a likely spot and parked the car. When we got back, the lot had started to fill in and the trucks turned out to be those of impromptu vendors who set up to sell drinks and four wheel rides to tourists such as myself. The “trail” wasn’t so much a trail as a sprawling network of ruts formed as vehicles cut into the extremely soft ground then had to work out new routes to the beach as the old ones became impossible to navigate.

Papakolea Beach

Papakolea Beach

The hike to the beach was a relatively easy 2.5 – 3 miles through and on these ruts. However, as it turned out, we were lucky because the wind was relatively light. When we returned, the wind (on the south edge of the island, keep in mind) was it’s normal strength out of the east, which would have made the hike somewhat more challenging. At the end, the beach is set in a sort of crescent cut out of the surrounding cliff face. It involved a bit of a scramble down the west wall of the beach, but only because we had not seen that, on the north east side of the beach, a ladder has been hooked into the cliff face running down to an easier descent. On the way down, there was a particular 4 foot drop that seemed like it was going to be tricky to get back up. I’m afraid that the color does not show up very well in the picture to the left, but the sand really is green. It’s sort of an olive color and comes from the olivine in the soil. There are apparently three other green sand beaches – one in Guam, one in the Galapagos, and one in Norway. When we got there, there were two other pairs of travelers. One was a fast-moving younger couple who overtook us at the cliffs, were not much for chit-chat, and practically flew down to the beach. I was, for some reason, gratified when they were thwarted by the cliffs going back the way we came and only discovered the ladder route after we had navigated it. The other was a friendly older couple who navigated the cliffs more slowly but seemed to be having a blast when they got there.  After about 20 minutes on the beach, we started our return trip, and there was quite a bit of traffic heading the other way. We fielded a lot of questions about “how much longer” and “is it worth the hike?” (Answers: “not too much further” and “yes it’s worth it.”) There was another group where what looked to be a son asked if what looked to be his father would be able to get to the beach. We gave equivocal answers on that because the cliff takes a bit of doing  and, frankly, the real answer was that you never know what an individual can do and, from outward appearances,  the son would have more trouble than the father. But it would have been impolitic to volunteer that observation, so we didn’t.


Follow the black a’a trail.

Our guys-only morning trip to the south side aside, most of the trip was family time. One of the excursions we made with the whole crew was a trip to Keawaiki Beach with its black sand and a lonely palm tree that (if you’re looking for it) you can spot from Highway 19, a few miles north of the Kona Airport. The hike did not begin auspiciously. There is a spot to pull off the highway with a rutted edge that you have to hit at the correct angle to avoid bottoming out your car. Our friends’ three year old got out of the van and managed to fall and cut himself on a shattered beer bottle within the first 90 seconds. Being cut on a beer bottle is remarkable mostly because there is a vastly better opportunity to cut yourself on the a’a rock that covered most of the hike. (A’a is a type of rock formed from lava flow that turns into porous and extremely jagged individual chunks of rock.) The trail starts as a lava road and then takes a turn into a path over the a’a once at the point where some private property owners threw up a barbed wire fence. (This is probably property belonging to the family of former legislator and champion golfer, Francis Brown.) I was somewhat surprised to find that my kids had never, apparently, encountered barbed wire in person before. (Seems like my childhood featured a good bit of barbed wire while I was running around farms or woods). They had it mixed up with electric fences. I am pleased to say that the kids held up very well in the heat of midday as we trudged over the shadeless lava rock. (All things told, this hike was probably about 4 miles round trip.) When we got to the beach, we threw our gear under the Lone Palm Tree and the kids got a bunch of black sand in their swim suits as they played in the surf – periodically scaring us to death as we probably worried overly much about the undertow and rocks on this wild coast.

The Great Trek

The Great Trek

From there, we hiked north along the crest of the black sand dune and eventually cut back east on a trail to the Golden Ponds of Ke-awa-iki. I’m afraid I neglected to take my own picture of the Golden Ponds, so you can see another person’s pictures here and here. The ponds are fresh water and are a little amazing inasmuch as they are an oasis of life in the middle of the lifeless a’a. The gold color comes from gold color algae that grows on the rocks underwater. After refreshing ourselves there for a little while, we finished the loop heading back to the cars. I regret that we didn’t get a chance to hike a section of the King’s Trail that crossed our path. It is an amazing looking trail cut through the rock heading north and south for what looked to be  miles. The original trail was built between 1836 and 1855 and went around most of the island.

Hang loose boogie boarders

Hang loose boogie boarders

Several of our days were spent just hanging out at the beach. My favorite was Hapuna Beach where the boogie boarding for an amateur such as myself was fantastic. Surfing is beyond me, but from this coastline boogie boarding, I got a sense of the fun involved with waiting for just the right wave, then timing it so you get a great ride. A couple of times, I misjudged it and went into the washing machine under the water. One of those involved getting thrown to the sand at an angle which – had it been an inch or two shallower – would have put my neck in a challenging position.

During the beach visits, our families burned through the sunscreen at a furious rate because it was pretty obvious what the tropical sun was going to do to the skin of pale northerners such as ourselves if we were not diligent. There were a couple of burn spots here and there, but by and large, we did a pretty good job of avoiding that misery. In addition to Hapuna, we went to a beach at Manini’owali in Kua Bay. This was a sandy, friendly beach we found on our first full day after an abortive attempt at a rocky death trap which is apparently not far from a good beach we simply could not reach without a four wheel drive vehicle with good clearance. Another day was spent at Kahaluu Beach Park in Kailua-Kona. The snorkeling wasn’t as good as Kealakakua Bay but there was an awful lot to see, and it was right in town with snorkel gear to rent from a truck on-site. I forget the name of the rental organization, but it seemed to be an educational outfit of some sort using the rentals to raise money for their efforts – so the people were friendly and the prices were reasonable.

Another fun outing we had was to Pu’uhonua O Honaunau National Historical Park just down the road from Kaleakakua Bay. The Hawaiian kapu system could be pretty harsh. You could be put to death for eating the wrong thing. But the system had a safety valve, the puuhonua. If you could reach one of these sanctuaries, your sins would be forgiven. The Pu’uhonua O Honaunau was attached to royal grounds on a cove offering yet another spectacular view of the sunset. As it turns out, the Big Island is full of these spectacular views.

Amy in her luau gear

Amy in her luau gear

Before leaving Kona, we attended a luau. It is clearly tourist-bait – ours was at the Sheraton –  but fun and well done nonetheless. It was the Haleo Luau put on by Island Breeze Productions. The M.C., going by the name of Auntie Tutu was fantastic. The warmth and charisma she was able to project was remarkable. More so when you consider that she has to do it repeatedly for audience after audience. But maybe that’s just the mai tais talking. They handed those out before dinner while you had the opportunity to play some island games, get some stamp “tattoos” from the performers, and get some rudimentary instruction in hula. The food was good, featuring some  traditional foods like poi, lomi lomi, and ahi poke. The poke was good, but I’m afraid I over did it and the texture of the stuff got to me after awhile. After the dinner, the show started – featuring dancers and music along with narration by Auntie Tutu about Hawaiian and Pacific Islander history. The highlight of the show was a fire dance featuring a big Hawaiian guy named Tomassi. (My buddy says, “not with all the steroids in Tippecanoe County could I look like that.”) By the end of the routine, he’s twirling a pair of batons with flaming ends. I think Purdue should ditch the Golden Girls and try to recruit him.

Masson Family is ready for the luau.


Hilo says hello

Hilo says hello

After a week in Kailua Kona, we moved east across the island to Hilo. Despite greeting us with rainbows, I’m afraid to say that Hilo didn’t really compare as a tourist’s paradise. Hilo has rain and more of a working class vibe than a tourist destination. Also contributing was that the selection of rental places suitable for a party of 10 is limited. The place we got seemed to offer what we wanted, but not mentioned in the rental information was the fact that the downstairs with a lot of beds where we anticipated putting all the kids did not have inside access to the two bedroom upstairs where we anticipated putting the adults. Instead, it was more of a separate apartment. Some of the kids were pretty young and so the idea of going outside at night, navigating the stairs and coming back inside if they needed mom or dad was pretty intimidating. As it happened, both adult couples featured one “troubled” sleeper and one person who traditionally fell asleep fast and under any circumstance. So, the good sleepers among the adults took turns shacking up with the room full of kids. It worked out, but that contributed to a feeling that Hilo was less comfortable than Kona.

Gramma's Kitchen in Honokaa.

Gramma’s Kitchen in Honokaa.

However, on the way to Kona, I had some great meals. I have, perhaps, had individual meals that were better than lunch and dinner that day, but I’ve never had back-to-back meals that compared. Lunch was in the little town of Honoka’a on the northern coast of the Big Island. The down town features historical information about the plantations that formed the backbone of its economy, its status as a destination for soldiers and sailors stationed on the island, and the devastating tsunami of 1946. I had not known that one of the waves of immigrant workers recruited to work the sugar fields had come from Portugal. Gramma’s Kitchen was opened on the site of the Paradise Restaurant on the “Long Soup Corner” by people with Portuguese roots. We did not particularly take advantage of any Portuguese offerings, but I had the best corned beef hash I’ve ever had. Corned beef hash is one of those meals that can run the spectrum in terms of quality. When this one came out, it looked like it might be over done and dry. But I was wrong. Oh so wrong. I don’t know what they did, but every bite was outstanding. This was topped off with generous amounts of egg, hash browns, toast, and Kona coffee. Amy and Jason had enormous, cake-like servings of french toast. Everybody was terribly happy with this meal.

In between meals, we went zip lining at Umaumau Falls.  The people here did a good job with the zip lining. Even those members of our crew with a fear of heights got through it with a minimum of anxiety. The views are terrific, and the staff was very friendly. My only critique is that they hit you up for a tip at the end. I don’t mind compensating people for good service, and our guides certainly did good work. But this was already kind of pricey. When you go to a restaurant, you know it’s expected and it’s fine. Not having been zip-lining before, I was caught off guard. Having already paid $200 per head, I figured the financial end of things was concluded and that if they needed more to pay their staff, they wouldn’t be shy about baking that into the price. But, overall that’s a small concern. By the end, I was hanging upside down with my arms, having a blast.

The last meal of the day was suggested by a web development client of Amy’s who lives on the Big Island and met up with us. It was in Hilo at the Hawaiian Style Cafe. Having just read about the Long Soup Corner’s tradition of serving saimin – a dish I hadn’t heard of – I went with the saimin on the menu.

Inspired by Japanese ramen, Chinese mein, and Filipino pancit, saimin was improved during Hawaii’s plantation era. It is a soup dish of soft wheat egg noodles served in hot dashi garnished with green onions. Kamaboko, char siu, sliced Spam, linguiça, and nori may be added, among other additions.

I have very little idea what variation the Hawaiian Style Cafe served up. All I know is that it was delicious. At that meal, I was also introduced to the Mahana Brewing Company with its Volcano Red Ale. Having switched sides of the island, I also switched from Kona to Mahana for my beers.

The first full day in Kona was basically a rest day. In the morning, we went down to the small beach across the street and played in the water. The beach was small and there were a lot of rocks, so we weren’t terribly active. But, by this time, the kids were exhausted and, while they were having fun, the emotional outbursts were coming a little more often; so we thought a little rest was in order.

Don`t do what Donny Don`t does.

Don`t do what Donny Don`t does.

The second full day in Kona we went to Hawaii Volcanoes National Park which was a primary reason (along with the zip lining) for making the transition from Kona to Hilo. Back when they were little, they developed mixed feelings about Hawaii – volcanoes = bad; beaches = good. At the time, they asked if they could go to “beach Hawaii” and not go to “volcano Hawaii.” I’m happy to say that their attitude had changed and they both wanted to go to volcano Hawaii. Once again, the place is remarkable. Just the idea of seeing land that is younger than I am is a little disorienting. The park abounds with messages about just how dangerous the area is. In fact, we’re all probably idiots for even going to the park. The graphics featuring the horrific consequences of ignoring the park warnings on the sign to the left was my favorite.

Sam and Frodo just before dropping off the ring.

Sam and Frodo just before dropping off the ring.

I used to have this vague, likely cartoon-inspired idea that the caldera of a volcano was the hole that was formed when the volcano blew its lava out. But, what really happens is that the volcano erupts somewhere along its flanks and the caldera is more like a sink hole that drops down to fill the space evacuated by the contents of the eruption. We did not get to see any flowing lava on our trip (missed it by a week or so), but the summit caldera at Kiluea is still pretty impressive.


End of the road, end of the trip.

End of the road, end of the trip.

The last thing we saw at Hawaii Volcanoes NP was the sea arch. It is just kind of a cool formation where the ocean has worn away an arch into a lava outcropping. One day that arch is going to collapse, and I expect it will be spectacular to see. A sign in that area explained how the geological hot spot that formed the Hawaiian islands was off the coast about 25 miles, forming land that`s still about 3,000 feet below sea level. The graphic did a good job of showing how the Hawaiian archipelago was formed as the Pacific plate slid over the hot spot.

Cole finally finds a hat.

Cole finally finds a hat.

And then, it was time to go home.  The Hilo airport is slightly more sophisticated looking than the Kona airport, but the check in process was a little scattered. With a mix of Hawaiian Air, U.S. Air, and American Air flights ahead of us, it seemed pretty doubtful that our bags would make it to Chicago at the same time we did. There were a number of relatively minor missteps that started to wear on us as the journey went on. Google Maps took us to an industrial park behind the airport instead of to the rental return which, as it turned out, was just across the street from the terminal. Hawaiian Air inexplicably had us booked on a flight two hours later than the flight we had reserved. After consulting with the person on the counter and deciding that our nine year old did not, in fact, want to sit next to a stranger on the plane, we split the difference and took the one an hour later. Fortunately, our layover in Honolulu was originally three hours, so an hour didn’t make much of a difference. However, because we were switching airlines, we had to check in again to get seats, and had trouble finding a place to check in until a person finally showed up at the terminal gate desk. The Honolulu airport was an eye opener for a non-international traveler such as myself. You just get a sense that it’s a hub for getting to anywhere around the Pacific, and the world seems much smaller and more accessible when you’re there. Also, Cole finally found a Hawaii hat. Also, I found out that sushi out of an airport refrigerator can be surprisingly tasty.

Settling in for a long flight.

Settling in for a long flight.

Once out of Honolulu, the airtime got long and the check came due for those time zones we had picked up on the way out. We left Honolulu at 2 p.m. local and got to Phoenix at about 11 p.m. local. We left Phoenix at about midnight and got to Chicago at about 5:30 a.m. After waiting around uselessly at the baggage carousel and filing our lost luggage claim, we caught the shuttle to our car. The four wheel ruts on the way to Papakolea Beach apparently having nothing on the road between O`Hare and the Marriott. That was an insanely rough ride and made Harper car sick. We`re no strangers to her car sickness, but the lack of sleep was making everyone a lot chippier. Difficulties finding the parking documents and getting the gate to work to let us out of the parking lot did not help anything. But, finally, we made it out of Chicago and got back to Indiana at 10:30 local. From door-to-door, it took about 20 hours of travel time and 26 hours of clock time. I ended up sleeping for 11 hours, the airline delivered the bags to our house last night, and hopefully I`ll be rested and ready to return to work in the morning.

Happy Birthday, Magna Carta!

Magna Carta, the charter agreed to by King John as a concession to some rebel barons, is 800 years old today. John put his seal on the document on June 15, 1215. As a practical matter, the document seems to have been mostly ignored by John and his successors. And, in any event, it primarily protected only the rich and powerful.

Despite the somewhat unimpressive practical reality of the charter, the mythology that grew up around it has been quite influential. Based on a badly flawed view of history, English jurists came to view the document as codifying to some extent the freedoms of Englishmen prior to the invasion of William the Conqueror in 1066. The belief in these freedoms as an ancient birthright – even if their predecessors did not, in fact, enjoy their protections – contributed to a cultural narrative where those freedoms became a reality. Magna Carta also served as a tangible bulwark against claims by the Stuart Kings that their rights were divine and absolute, perhaps partially explaining why they never enjoyed the level of power amassed elsewhere during that era (Louis XIV comes to mind).

The political myth of Magna Carta and its protection of ancient personal liberties persisted after the Glorious Revolution of 1688 until well into the 19th century. It influenced the early American colonists in the Thirteen Colonies and the formation of the American Constitution in 1789, which became the supreme law of the land in the new republic of the United States. Research by Victorian historians showed that the original 1215 charter had concerned the medieval relationship between the monarch and the barons, rather than the rights of ordinary people, but the charter remained a powerful, iconic document, even after almost all of its content was repealed from the statute books in the 19th and 20th centuries. Magna Carta still forms an important symbol of liberty today, often cited by politicians and campaigners, and is held in great respect by the British and American legal communities, Lord Denning describing it as “the greatest constitutional document of all times – the foundation of the freedom of the individual against the arbitrary authority of the despot”

The document contained a great deal of discussion about various mechanisms the Crown used to extract money from the nobility, but in modern times, its most important contributions to our legal system surround the concepts of the Church’s independence from the State and the general notion that people are entitled to due process of law. Not too shabby!

The Continuing Legacy of Richard Mourdock

Advance Indiana has a post about a lawsuit filed by Richard Mourdock’s former chief deputy, apparently based on a sketchy employment contract into which Mourdock attempted to lock his successor. The lawsuit is the subject of an AP story in the South Bend Tribune.

The former deputy, Jim Holden, is suing current state Treasurer Kelly Mitchell in Marion County Superior Court, alleging that Mitchell fired him upon taking office.

Holden says that in the final months of Mourdock’s term, Mourdock gave Holden a three-year, $300,000 contract as counsel for the Indiana Board for Depositories, which the treasurer’s office oversees.

That contract was to take effect on Mourdock’s last day in office and cover most of the next treasurer’s term, with an automatic extension if Holden was called up to active duty with the National Guard, WIBC-FM reported.

According to Advance Indiana, Holden is advancing claims based on breach of contract and, also, under the Uniformed Services Employment and Reemployment Rights Act (USERRA). USERRA is a law designed to protect individuals from adverse employment actions based on their military status and to secure re-employment for individuals who have left their employment to serve in the active military for up to five years. The goals of USERRA are laudable but can be onerous for employers depending on the situation.

HB 1305 – Driving Slowly in the Left Lane

A provision in HB 1305 concerning an obligation not to hang out in the left lanes has received some attention lately. I’m not sure how much coverage the actual text of the statute has received, so here it is:

FOLLOWS [EFFECTIVE JULY 1, 2015]: Sec. 9. (a) A vehicle that travels at a speed less than the established maximum shall travel in the right lanes to provide for better flow of traffic on the interstate highways.
(b) This subsection applies to the operation of a vehicle:
     (1) on a roadway that has two (2) or more lanes of traffic in each direction; and
     (2) in the left most lane, other than a lane designated for high occupancy vehicles.
Except as provided in subsection (c), a person who knows, or should reasonably know, that another vehicle is overtaking from
the rear the vehicle that the person is operating may not continue to operate the vehicle in the left most lane.
(c) Subsection (b) does not apply:
     (1) when traffic conditions or congestion make it necessary to operate a vehicle in the left most lane;
     (2) when inclement weather, obstructions, or hazards make it necessary to operate a vehicle in the left most lane;
     (3) when compliance with a law, a regulation, an ordinance, or a traffic control device makes it necessary to operate a vehicle in the left most lane;
     (4) when exiting a roadway or turning to the left;
     (5) when paying a toll or user fee at a toll collection facility;
     (6) to an authorized emergency vehicle operated in the course of duty; or
     (7) to vehicles operated or used in the course of highway maintenance or construction.
(d) A person who violates this section commits a Class C infraction.

Less remarked upon is the existing provision in IC 9-21-5-7, amended somewhat by current legislation which reads:

Sec. 7. (a) A person may not drive a motor vehicle at a slow speed that impedes or blocks the normal and reasonable movement of traffic, except when reduced speed is necessary for safe operation or in compliance with the law. A person who is driving:
     (1) on a roadway that has not more than one (1) lane of traffic in each direction; and
at a slow speed so that three (3) or more other vehicles are blocked and cannot pass on the left around the vehicle;
shall give right-of-way to the other vehicles by pulling off to the right
of the right lane at the earliest reasonable opportunity and allowing the
blocked vehicles to pass.
(b) A person who fails to give right-of-way as required by subsection (a) commits a Class C infraction.

People are having fun with the tacit accommodation of the fact that people speed, and I suppose that’s fair. But the concepts at play here aren’t that tough. Motorists aren’t responsible for enforcing speed limits. If you want to go the same speed as a motorist in the right lane, do it behind that motorist and not to their left. If you want to get in front of the person ahead of you, do it quickly.

Generally there seem to be two or three things that lead to people hanging out in the left lane – 1) Not trusting other motorists to also play by the rules, resulting in you getting trapped in the right lane; 2) Not being comfortable with your ability to use passenger’s side rear view (I speculate due to the inordinate number of mini-vans hanging out in the left lane); and maybe 3) being an oblivious jerk. This law would seem to be an attempt to address items #1 and 3 to some extent.

Also, when was the last time you saw someone pull over to the side when they had three or more cars behind them?

Seventh Circuit Upholds Highland Park Semi-Automatic Weapons Ban

In a 2-1 decision, a panel of the 7th Circuit upheld a ban on “assault weapons” by the City of Highland Park, Illinois. Judges Easterbrook and Williams upheld the ordinance. Judge Manion dissented and would have struck down the ordinance as violating the Second Amendment.

The City of Highland Park has an ordinance (§136.005 of the City Code) that prohibits possession of assault weapons or large?capacity magazines (those that can accept more than ten rounds). The ordinance defines an assault weapon as any semi?automatic gun that can accept a large?capacity magazine and has one of five other features: a pistol grip without a stock (for semiautomatic pistols, the capacity to accept a magazine outside the pistol grip); a folding, telescoping, or thumbhole stock; a grip for the non?trigger hand; a barrel shroud; or a muzzle brake or compensator.

The Seventh Circuit indicated that the Supreme Court had not indicated the level of scrutiny under which a law implicating the Second Amendment must be analyzed. It could not be mere “rational basis” scrutiny. All laws must have a rational basis and, if that were the low bar set for Second Amendment cases, the Second Amendment would not do anything. Having noted that, however, the Seventh Circuit declined to articulate a level of scrutiny and, instead, announced:

But instead of trying to decide what “level” of scrutiny applies, and how it works, inquiries that do not resolve any concrete dispute, we think it better to ask whether a regulation bans weapons that were common at the time of ratification or those that have “some reasonable relationship to the preservation or efficiency of a well regulated militia,” see Heller, 554 U.S. at 622–25; Miller, 307 U.S. at 178–79, and whether law?abiding citizens retain adequate means of self?defense.

The court then noted that the banned features were not common in 1791. And, while the court noted a potential relationship to a well-regulated militia, the court thought that, since it was up to the states to regulate their militias, it was not a violation if state authority was used to ban this sort of weapon. (The court elided the question of whether it made a difference that this was an ordinance rather than a statute by observing that Plaintiffs contend that the same law would be a constitutional violation if imposed by the state instead of local government.)

With respect to self-defense, the court engages in some petard hoisting. When plaintiffs argue that the ban will leave citizens with insufficient options for self-defense, the court looks at the plaintiff’s argument that the ban will not stop crime. Part of that argument, apparently, was that criminals would simply turn to firearms not regulated by the ban to commit crime and, therefore, the ordinance was not rationally calculated as a crime prevention mechanism. If criminals can commit their crimes with other weapons, the court reasoned, then so too could citizens protect themselves with permitted firearms.

The court concludes:

McDonald holds that the Second Amendment creates individual rights that can be asserted against state and local governments. But neither it nor Heller attempts to define the
entire scope of the Second Amendment—to take all questions about which weapons are appropriate for self?defense out of the people’s hands. Heller and McDonald set limits on
the regulation of firearms; but within those limits, they leave matters open. The best way to evaluate the relation among assault weapons, crime, and self?defense is through the political process and scholarly debate, not by parsing ambiguous passages in the Supreme Court’s opinions. The central role of representative democracy is no less part of the Constitution than is the Second Amendment: when there is no definitive constitutional rule, matters are left to the legislative process. See McCulloch v. Maryland, 17 U.S. 316, 407 (1819).

Another constitutional principle is relevant: the Constitution establishes a federal republic where local differences are cherished as elements of liberty, rather than eliminated in a
search for national uniformity. McDonald circumscribes the scope of permissible experimentation by state and local governments, but it does not foreclose all possibility of experimentation. Within the limits established by the Justices in Heller and McDonald, federalism and diversity still have a claim. Whether those limits should be extended is in the end a question for the Justices.

Judge Manion disagreed, regarding the Court’s holding as contrary to the relatively recent Supreme Court holdings in Heller and McDonald. In his view, those decisions largely read the status of weapons at the time of the 1791 ratification and consideration of militias out of Second Amendment analysis. Because the Supreme Court determined that weapon ownership was an individual right, Judge Manion regarded the self-defense analysis as the only part of the majority analysis with some relevance.

To be sure, assault rifles and large capacity magazines are dangerous. But their ability to project large amounts of force accurately is exactly why they are an attractive means of self-defense. While most persons do not require extraordinary means to defend their homes, the fact remains that some do. Ultimately, it is up to the lawful gun owner and not the government to decide these matters. To limit self-defense to only those methods acceptable to the government is to effect an enormous transfer of authority from the citizens of this country to the government—a result directly contrary to our constitution and to our political tradition. The rights contained in the Second Amendment are “fundamental” and “necessary to our system of ordered liberty.” McDonald, 561 U.S. at 778. The government recognizes these rights; it does not confer them.

In his analysis, Judge Manion engages in some parsing of which weapons are covered by the Second Amendment and which are not that strikes me as somewhat dubious. Using hand grenades as an example, he says that the question of whether a particular weapon is covered by the Second Amendment turns on whether the weapon has ever been “commonly used by law-abiding citizens.” Perhaps grenades have not been commonly used by law-abiding citizens because they have been illegal.

But, there is much more to his dissent, and it, too, is worth a read.

Legislative Acquiescence

The Indiana Law Blog has a post about a recent trial court decision determining that the Notre Dame police weren’t subject to the state public records law because they are part of the university and past legal decisions have held that the private university isn’t a public body subject to the public records law.

I think the right way to go is to find that the police force, because they are exercising public police powers, are a public agency. The trial court, in my opinion, was overly legalistic in its analysis. My take on the decision was that the trial court regarded itself as powerless to carve the police department out of the university generally as being subjected to public records laws. In part of its decision, the trial court discussed legislative acquiescence to prior decisions of public access counselors that found private universities aren’t subject to the access to public records act. (I’m not clear on whether those decisions had to do with requests for the private university police records.) In any event, the doctrine of legislative acquiescence is, frankly, dubious. Basically it means that if a court interprets legislation in a certain way and the legislature gives no sign one way or the other, courts will assume that the legislature agrees with the court decision. The more likely reality is that the legislators have no earthly idea what the courts have been up to. This is even more likely when dealing with the public access counselor and not the courts.

Sesquicentennial of Surrender

As many of you know, upon the election of Abraham Lincoln in 1860, numerous citizens in the Southern States decided to commit treason in defense of slavery rather than abide by the democratic process. The citizens purported to have the Southern States secede – but large numbers of individuals in the Southern States (notably black people) were not consulted about whether those Southern states should remain part of the United States.

In any event, despite their boastful assertions about the relative martial prowess as between northerners and southerners, the Southern rebels were to learn that war wasn’t a game but is, rather, a contest of raw power, and they had less of it. Lincoln kept the country together, Sherman made the traitors howl, and Grant ground them down. Lots of Americans died in the process. But, in the end, Hamilton won.

On April 9, 1865, Robert E. Lee surrendered to Ulysses S. Grant at Appomattox Court House.

Dressed in an immaculate uniform, Lee waited for Grant to arrive. Grant, whose headache had ended when he received Lee’s note, arrived at the courthouse in a mud-spattered uniform—a government-issue sack coat with trousers tucked into muddy boots, no sidearms, and with only his tarnished shoulder straps showing his rank.

Grant’s terms were generous. Lee’s men would not be prosecuted for treason. The southern soldiers kept their horses and the officers kept their sidearms.

I write harshly about the Southerners on this blog – to some degree because they were horribly wrong. But, a great deal of history features all nature of atrocity and, yet, I’m able to write about it without venom. What gets me going on this subject is the present day revisionism where apologists try to say that what the Southerners were doing wasn’t treason and/or that their actions were not about slavery. The latter is especially galling in light of the fact that the articles of secession written at the time were very explicit about slavery being the driving impulse. The U.S. still suffers from pathologies created by the South’s “peculiar institution.” And slapping a bandage over a festering wound is not going to do any long term good.

Today, people who love the U.S. and who recognize slavery as abominable — from both North and South — should be thankful that the North won and the South lost.