Happy Birthday, Dear Darwin

This year marks significant anniversaries of two of the most important events in the history of science. February 12 is the two hundredth anniversary of the birth of the English naturalist Charles Robert Darwin; November 24 is the one hundred and fiftieth anniversary of the publication of his most famous work, On the Origin of Species, in which he outlines his theory of evolution through natural selection. On the Origin of Species is among the most important works in the history of science, ranking with such works as De Revolutionibus, by Copernicus; the Principia Mathematica, by Isaac Newton; and The Discourse on Method, by René Descartes. Each of these works caused a fundamental and irreversible shift in the way people thought about the world, and the consequences of each are still very much with us.

Darwin's theory of evolution by natural selection is, in a very simplified form, that organisms have a common ancestry; that they change (evolve) over time; and that favorable inherited traits become more common in successive generations of a population of reproducing organisms, while unfavorable inherited traits become less common. Natural selection is the process which describes the way that favorable traits are passed on to successive generations, essentially because favorable traits tend to make organism who possess them survive long enough to breed more often than competing organisms with less favorable traits do. It is, to paraphrase Herbert Spencer, survival of those fit enough to survive.

The theory of evolution through natural selection is one of the most basic elements of modern biology, which cannot be taught without reference to evolution through natural selection any more than physics can be taught without mention of gravity. Despite this, it is not accepted by as true by a surprisingly large percentage of Americans. A 2006 study by Michigan State professor John D. Miller showed that about one in every three Americans do not believe in evolution. The study surveyed twenty countries, mostly Western European, but also including Japan, Turkey, and the United States. The percentage of Americans who accept evolutionary theory was lower than all of the surveyed countries except Turkey. The study also showed that, since 1985, the percentage of Americans who accept evolution has declined by 5% (45% to 40%), the percentage who reject it has declined by 9% (48% to 39%), and the percentage who identify themselves as unsure had risen by 14% (7% to 21%).

The relative disrepute of evolutionary theory in the United States is partly caused by the perception by certain religious denominations that it is in conflict with their faith. It is also partly caused by the failure of the scientists in the field that Darwin founded, evolutionary biology, to properly educate the public. This purpose of this article is not primarily to summarize the evidence in favor of evolutionary theory, though the evidence is overwhelming, but rather to clear up some of the misconceptions that have arisen in part because of the lack of public education, and in part because of disinformation spread by its opponents.

First, we will start with one of the hoariest and least informed objections to evolutionary theory, “Why aren't the apes turning into people now?” This is because neither Darwin nor any other evolutionary biologist has ever proposed that human beings descended from modern apes such as chimpanzees, gibbons, or gorillas. What is universally accepted by evolutionary biologists is that humans and modern apes share a common ancestor, and that at some point the two groups diverged into separate lines of descent and went their own ways. While it is true that some proto humans looked more like modern chimpanzees than modern humans, these proto humans were not the same as modern chimpanzees.

Next, “Evolution is only a theory.” This is, in a sense, true, but it is also usually meant in a misleading way. Every dictionary gives several meanings for the word “theory.” One meaning is the way it is used in the ordinary conversational sense: a theory is a conjecture or a guess. In science, however, a theory is a set of principles devised to explain a group of facts or phenomena, especially one that has been repeatedly tested or is widely accepted and can be used to make predictions about natural phenomena. Examples of scientific theories include the heliocentric theory of Copernicus (that the earth orbits the sun, and not vice-versa), and the germ theory of disease (that infectious diseases are caused by the activity of microorganisms within the body). No scientist, and hardly any minimally educated person, doubts either either the heliocentric theory or the germ theory, or believes that they will soon be overthrown by competing theories. Evolution by natural selection, as a scientific theory, has a level of plausibilitycomparable to that of the heliocentric theory or the germ theory. In fact, although there are disputes among evolutionary biologists as to the mechanism by which changes in organisms occur, there is no scientific theory which competes with the theory of evolution through natural selection. The so-called “intelligent design theory,” which received a great deal of press a few years ago, has repeatedly been demonstrated to have none of the characteristics of a scientific theory. A good summation of this can be found in the opinion of the court in the case of Kitzmiller v. Dover, which can be found here:  http://www.pamd.uscourts.gov/kitzmiller/kitzmiller_342.pdf.

Opponents of evolutionary theory will often point out that “Darwin was wrong.” This is partly true, but largely irrelevant. This also stems from a lack of understanding as to the nature and magnitude of Darwin's accomplishment. Darwin did not, for example, originate the idea that organisms evolve; his own grandfather Erasmus Darwin had speculated about it, and nine years before Darwin's birth Jean-Baptiste Lamarck had published an extensive, although ultimately incorrect, account of his own views about the mechanism by which evolution worked. Darwin's idea of what caused changes in organisms, natural variation and inheritance of acquried characteristics, is now accepted by almost no one. But his failure to work out that evolution is caused by mutation in the genetic material of organisms is easily explainable by the fact that the science of genetics had yet to be invented in his lifetime. What Darwin got spectacularly right was the idea that the evolution of organisms occurs by means of natural selection. The philosopher Daniel Dennett calls this, “The best idea anyone has ever had.” Even in this insight Darwin was not alone. Darwin's Origin of Species was presented to the British Royal Society simultaneously with a short essay by Alfred Russell Wallace in which Wallace arrives at a very similar theory. But Darwin's fame outshines that of the admirable Wallace because the mountain of evidence Darwin had accumulated in the twenty years that he worked on the Origin of Species was persuasive in a way that Wallace's intuitions could never have been.

It is worth noting that other originators of still-accepted scientific theories got parts of them wrong. Copernicus, for example, was right about the planets orbiting the sun, but also believed that the planets had circular orbits. As this didn't fit the observable data, Copernicus posited that the planets moved in circular epicycles, the centers of which moved in circular orbits around the sun. He was wrong. Eventually this was sorted out by Johannes Kepler, who showed that the planets had elliptical orbits. But this does not diminish the accomplishment of Copernicus. Any scientific theory is subject to revision by later scientists in light of the accumulation of new data.

“Evolution is atheistic.” Evolution is an explanation of a natural process. It does not employ God as a component of its explanatory process, but neither does, for example, an explanation of how an internal combustion engine works. Although the evolutionary biologist Richard Dawkins claims that Darwin made it possible to be an intellectually fulfilled atheist, this was clearly not one of Darwin's goals. Darwin was a baptized Anglican and trained for a while to become a minister. He delayed publication of The Origin of Species for years out of concern for the sensibilities of his devout wife. He denied that he was an atheist. Later in life he was clearly a religious skeptic, although his writings suggest that this might have been more as a result of the deaths of two of his children in childhood rather than his scientific work.

The theory of evolution does pose problems for those who believe in the literal truth of scripturally-based creation accounts, be they Christians, Jews, or Muslims. A Gallup poll in May of 2007 reported that 31% of Americans believe in the literal truth of the Bible. However, a great many religious denominations have no problem accepting evolution, although they usually interpret it as a process guided by God. The Roman Catholic church has accepted evolutionary theory at least as far back as the Papal encyclical Humani Generis, published by Pius XII in 1950, and endorsed in 1996 by John Paul II in an address to the Pontifical Academy of Sciences. The Orthodox Rabbinical Counsel of America has stated that evolution is not incompatible with the belief in a divine creator. Many Protestant denominations hold that evolutionary theory is compatible with their theology. It is also worth noting that the theory of evolution by natural selection propounded by Darwin had nothing to say about the origins of life, merely its development. Thus, acceptance of evolutionary theory in no way requires a particular belief about the existence of a diety.

One of the biggest barriers to understanding what evolution by natural selection really means is to envision it as a guided process. It is not by its own terms, although it does not preclude someone from believing that it is guided by something divine. It is simply an explanation of something that happens naturally. Think of erosion. Erosion can wear away rocks or take down mountains, but no one describes erosion as having a purpose. It is simply what happens. Natural selection is the same way. Species are not perfected by it; either they survive long enough to propagate and maintain a breeding population, or they become extinct. Changes in the environment, such as climate changes, alter what traits are favorable in an organism and what traits are not. And it's happening right now, before our eyes. A New York Times weblog, Wild Side, by Olivia Judson, has recently given two examples. One is that an insect called an apple maggot appears to be splitting into two species because there are two groups that find two different types of fruit to be congenial habitats. Another is the marsupial mammal called the Tasmanian Devil. It has become subject to an infectious and fatal form of facial cancer. As a result, female Tasmanian Devils are now reaching sexual maturity almost twice as fast as they used to, because females who do so propagate more often than females who don't.

For anyone wishing to know more about Darwin and his theories, I recommend “Darwin's Legacy,” a ten-part lecture series posted by Stanford University which can be downloaded from iTunes U. Also, The Origin of Species itself remains perfectly readable for the general reader. PBS has an excellent series entitled “Evolution,” which is available on DVD. The BBC recently aired two specials, “The Genius of Charles Darwin,” hosted by Richard Dawkins, and “Darwin and the Tree of Life,” hosted by Sir David Attenborough, that will likely be aired on US television in the near future. In the meantime, on February 12, feel free to hoist a glass of your favorite beverage in honor of Charles Robert Darwin for his revolutionary theories, and to your own ancestors in honor of their passing the rigorous test of natural selection.

A Review of My Boy Jack

On April 20th, WTJX aired My Boy Jack, a film in the PBS Masterpiece series. The film is a fictionalized account of events in the life of the British author Rudyard Kipling starting at the outbreak of the First World War in 1914. Kipling, who received the 1907 Nobel Prize in literature, was a major force in British letters. By 1914 he had already written most of the works for which he is best known, the novels Kim and Captains Courageous, the story collections The Jungle Book and Just So Stories, the novelette The Man Who Would be King, and poems such as Gunga Din and The Ballad of East and West.

Kipling spent much of his early life in India, at the time called the Jewel in the Crown of the British Empire. Kipling's writings are permeated by the theme of Empire. In a 1942 essay George Orwell called him “The Prophet of British Imperialism in its expansionist phase.” In a poem of the same name, Kipling embodied the notion, much in vogue in the 19th century, of the civilizing mission of the Western countries in the phrase “The White Man's Burden.” Ironically, the poem was written not about the British Empire, but about the conquest of the Phillipines by the United States.

The film opens with Kipling in a jingoistic near frenzy in support of a declaration of war by Britain against Germany. War indeed is ultimately declared. The film shows efforts by Jack Kipling to enlist in various branches of the service, all of which are unsuccessful because of his severe myopia. Jack's mother and sister seemed quietly relieved by this but Jack, with his father's support, persists. Ultimately Kipling's influence secures Jack a commission in the Irish Guard, and, at the age of eighteen, he ships off to the Western Front. Three weeks later, in September of 1915, he is reported missing and presumed wounded during the Loos-Artois Offensive. The film then shows the Kipling family's efforts to maintain a sense of hope about Jack, yielding gradually to the realization that he is dead, and the effect his death has on each of them. In real life, Jack Kipling was declared dead two years after he was reported missing. His gravesite is still not known with certainty. In Epitaphs of the War 1914-1918, Kipling later wrote lines which many interpret as an expression of his guilt in procuring Jack's military commission:

If any question why we died,
Tell them, because our fathers lied.

Kipling's work demonstrates that he was a thoroughgoing imperialist. However, he was a complex writer, and his work also demonstrates a grasp of the paradoxes and moral ambiguities of imperialism. It also displays a genuine respect for the peoples whom the Brits warred with and conquered. In the poem Gunga Din, for example, line after line of racist slurs culminates with the narrator's admission that, “You're a better man than I am, Gunga Din.” Similarly, The Ballad of East and West shows an understanding of that which transcends ethnic origin:

But there is neither East nor West, Border, nor Breed, nor Birth,
When two strong men stand face to face, tho’ they come from the ends of the earth!

In 1916 Kipling published the elegiac poem Have You News of My Boy Jack? The poem uses the metaphors of wind and tide, and is full of the gentle sadness of a father looking back on the death of his son. One line, however, is discordant:

Except he didn't shame his kind

It is the old imperialism lifting its head for a moment, like a weary lion. But Kipling, beneath the weight of grief, cannot sustain the moment, just as the empire he loved could not sustain itself in the new century. The sadness of the poem is not lifted, it ends with no sense of redemption.

Orwell, as he did with so many others, got Kipling right. He wrote, “During five literary generations every enlightened person has despised him, and at the end of that time nine-tenths of those enlightened persons are forgotten and Kipling is in some sense still there.”

My Boy Jack is available on DVD and will undoubtedly be aired again by PBS in the not-to-distant future. I recommend it highly.

A Review of the Pistarckle Theater Production of Equus

I saw an advertisement for the play Equus, which was being staged by the Pistarckle Theater, an amateur theater troupe in St. Thomas. My birthday fell on the same day as one of the performances, so I got the idea of flying over to see it as a birthday present to myself. I flew to St. Thomas on Saturday morning, had sushi at Beni Iguana's, and checked into Frenchman's Reef. I did nothing but go to the hotel gym and laze around for the afternoon. Part of the time I was listening to my iPod with noise-canceling ear buds. Around 5 PM I took them out and noticed that the air conditioning unit in my room was making a noise that sounded like a medium sized lawnmower was running right next to the bed. I reported it to the hotel desk, showered, and left the room. Downstairs I sat on the patio bar and had a snifter of Cruzan Rum Estate Diamond, which cost exactly as much as an entire bottle of Cruzan Rum Estate Diamond does at the Sunny Isles K Mart.

I then got a cab to Tillett Gardens, home of the Pistarckle Theater ("Pistarckle" in Dutch Creole means noise or confusion. The word is thought to have derived from “spektakel,” a Dutch word of the same meaning, which obviously shares root with the English “spectacle”). The drive took about half an hour. It was a cute little amateur theater, with just a few seats all very close to the stage. In keeping with its amateur nature it offered the playgoers such delicacies as Snickers Bars and a very fine selection of white or red Sutter Home wines in bottles the size that you get on airplanes, with twist off caps. However, I arrived to bad news. The young man who played one of the two main characters was ill. I was advised that he was vomiting violently backstage. Theater personnel were emphasizing the vomiting, probably to discourage any of the patrons from making a fuss. I was advised to wait and see what would happen. About fifteen minutes after the play was scheduled to start, they announced that the show would go on! They took my ticket money and out of the lobby and into theater we filed. Shortly thereafter the stage manager announced that the show would not be going on. I told them to keep my ticket money as a donation and went back to the hotel.

When I got back the lawnmower was still running in my room. I called the desk and was told that maintenance had checked it out, and that they needed to replace it, but didn't do so because they didn't want to be in the room when I got back and disturb me. I pointed out that sleeping next to a lawnmower was disturbing. The desk clerk asked if I wanted the air conditioner changed that night or the next morning (when I was checking out). I said that I wanted a new room. She considered the thought for a moment, as though it was new to her, and agreed. I changed rooms.

Feeling hungry, I went to one of the hotel restaurants. A couple came in and sat next to me, at a table on my left. The tables were very close together. I gathered from their conversation that they were recently married. It seemed to me that the man was making every effort to be nice. Suddenly the wife said, "Did you hear yourself? We're having a conversation and what you just said to me had nothing to do with what I said to you. You weren't responding to me!" The husband apologized and asked her to repeat what she'd said so he could respond appropriately. She said, "No, we're done. It's just that I have to teach you to communicate." I was hoping she'd go to the ladies' room so I could advise the husband to leave immediately, check into another hotel, and fly to Paraguay the next morning.

Another couple sat at a table on my right. They seemed nice, and got particularly amused when the waitress brought them a plate of nachos that appeared to have a minimum of five pounds of cheese melted over it. They offered me some, but I thanked them and declined, fearing for my arteries.

Suddenly there was a burst of activity in front of me. An older couple had been sitting there. When I looked, the wife was on all fours on the floor, running her hands over it. I waiter appeared to be assisting her. Contact lens? No, they were both wearing glasses. From the woman's wailing I deduced that she'd lost a stone on an $800 bracelet that she'd bought that very afternoon. Other restaurant personnel began to assist, as did the woman of the couple with the nachos. The bereaved woman called loudly for a broom and began sweeping around the tables, including mine, occasionally eying me suspiciously as though I'd secreted the stone among my conch fritters. A woman at yet a fourth table somehow obtained the home number of the manager of the store where the $800 bracelet had been purchased, and the husband of the purchasing couple called it on his cell phone, around ten P.M. I gathered from the husband's rather loud portion of the conversation that the manager wasn't too happy to receive the call.
And then, success! A diligent waiter finally located the stone. The woman with the $800 bracelet was happy. The woman on my right returned to her calcifying nachos. The man on my left continued to say nice things to his wife, and she continued to say things to him that made me think Paraguay probably wasn't far enough away.

As I left the restaurant, I considered the possibility that Fate had arranged this improvisational dinner theater to compensate me for the canceled performance.

Reeves, Van Dyke Win Lifetime Achievement Awards

The Academy of Motion Picture Arts and Sciences has announced that it will present special lifetime achievement awards to American actors Dick Van Dyke and Keanu Reeves in the category of “Worst British Accents in Motion Picture History.” Van Dyke is being honored for his work as Bert, the beloved chimney sweep in Walt Disney’s 1964 classic Mary Poppins, and Reeves for his role as Jonathan Harker in the 1992 production of Bram Stoker’s Dracula. “Never have two actors made such an unholy hash of the same accent,” said the Academy’s press release announcing the awards. “It was almost enough to make the British forget that we Americans pulled their chestnuts out of the fire in two World Wars.”

Critics believe that the greater achievement is that of Reeves. “We must consider that Van Dyke appeared an immortal family film that is constantly being rediscovered by new generations,” said one knowledgeable observer, “While Reeves won because he appeared in a stink bomb that dropped mercifully out of sight almost immediately after its release. Reeves’ efforts at a British accent must have been particularly inept to make such a lingering impression in the minds of the members of the Academy.” Another critic commented on what might be called Reeves’ monumental acting style. “Talk about wooden,” he said. “If Reeves went into the woods and enacted the death scene from Hamlet, birds would make a nest on his head. The role Reeves was born to play is that of Pinocchio, though I doubt he has the depth to handle the transition to Real Boy.”

The Academy also made mention of others deserving honorable mention in the area of Bad Foreign Accents. Among them were:

Gary Oldman as the Count in Bram Stoker’s Dracula. “We don’t know what a sixteenth century Wallachian Count would sound like after centuries of being Undead,” said the Academy, “but if he sounded like Oldman, he must have undied from embarrassment. The worst attempt at an Eastern European accent since Boris Badenov.”

Martin Sheen as Robert E. Lee in Gettysburg. “If Lee really sounded like that, no wonder they called it ‘The Lost Cause.’”

Keanu Reeves’ attempt at a Southern accent in The Devil’s Advocate. “It’s really bad, but mercifully he seems to forget to use it about half of the time."

The Academy is expected to announce further lifetime achievement awards in a similar vein, such as “Worst Performance by a White Man Playing an Asian” (Sidney Toler as Charlie Chan, Boris Karloff as Fu Manchu), and “Worst Transgender Performance” (Dustin Hoffman in Tootsie, and Pal, the male dog who played the heroic collie Lassie).

From the 4.19.04 Virgin Islands Daily News

This week Attorney General John Ashcroft appeared before the National Commission on Terrorist Attacks Upon the United States and revealed, to an astonished America, that the 9/11 attacks were the fault of (gasp!) Bill Clinton.

In doing so, Ashcroft was adhering to the most sacred organizing principle of the Bush Administration, which can best be phrased as, "The Buck Stops Back There." Blaming Bill Clinton has supplanted baseball as the national pastime among certain groups of conservative politicians. There is no end to it. One Republican legislator actually made a public statement suggesting that the Enron scandal occurred as a result of the failure of moral leadership from the White House. This prompted The New Republic to comment on the ludicrousness of the notion that a major corporation was looted by its management because Bill Clinton was the recipient of extra-marital fellatio.

Clinton has not actually been blamed for Original Sin or the attack on Pearl Harbor, but Republican strategists are reportedly working to develop plausible scenarios. Ashcroft seems to be banking on the notion that the public will believe that a man who had an affair and lied about it must necessarily be responsible for the overall decline of Western Civilization. Perhaps he is unaware of the adage that holds that you can't fool all of the people all of the time.

Listening to Ashcroft, I was struck by the confluence of circumstances that allowed him to become attorney general of the United States. Many do not remember that he was only available for the job because he lost a Missouri senatorial election to Mel Carnahan, who had actually died in a plane crash two weeks before the election. The voters of Missouri are to be congratulated on their discernment.

It is also worth recalling some of the major accomplishments of Ashcroft's tenure as attorney general. He has presided over his department's bumbling prosecution of Zaccarias Moussaoui, whom they seem unable to handle even though a great part of the time he is not represented by a lawyer. There was his announcement of the arrest of "Dirty Bomber" Jose Padilla, despite Padilla's conspicuous lack of the technology or materials to build a dirty bomb. There is the subsequent detention of Padilla, a U. S. citizen arrested on U.S. soil, for over a year without being charged or having access to counsel. There was the successful prosecution of a "terror cell" in the Pacific Northwest, whose members tried to go to fight in Afghanistan, but were unable to actually find Afghanistan. I suggest that a better alternative to prosecution would have been to take them to Afghanistan and leave them there.

For my part, I think that some of the criticism that conservatives have leveled against Bill Clinton are a little unfair. Yes, he had the personal morality of a feral cat, but he tried hard to be a good President, presided over an era of peace and prosperity. Also, in his eight years as President, he never actually led us to war over nonexistent weapons of mass destruction.

And Ashcroft's efforts to deflect the mounting criticism of the Bush Administration onto Bill Clinton make me wonder if perhaps we wouldn't be better off with someone else holding the office of Attorney General. I wonder if Mel Carnahan is available?

The Gay Marriage Amendment

The United States is faced with many challenges. It is embroiled in a difficult and expensive occupation of Iraq, which it invaded as a result of intelligence now known to be mistaken. World opinion ranks it only above rogue states like Iran, North Korea, and the Sudan. Gasoline prices are soaring, as is the Federal deficit. Its citizens struggle to balance concerns about possible terrorist attacks against concerns about diminishing civil liberties. This is a serious time with serious problems that require attention and vision to solve.

Thus it is no surprise that several Republican Senators and the Bush Administration have chosen to put their efforts into backing an amendment to the United States Constitution banning gay marriage.

The concept of legally recognized gay marriage seemed to be making progress several years ago with a decision in its favor in the New Hampshire Supreme Court and the issuance of marriage licenses to gay couples in San Francisco. However, the progress was largely an illusion. According to the New York Times, one state issues marriage licenses to gays, two others recognize civil unions, and three others have laws providing that gays can enjoy the rights generally granted by law to domestic partners. In contrast forty six states, including those who recognize civil unions, ban gay marriages by statute or by a provision in their state constitution. Two other states have no laws that touch upon the issue either way. Even the most paranoid opponent of gay marriages would have to admit that his side is winning the debate.

One might therefore ask why we need a Constitutional amendment banning gay marriage. The answer, of course, is that the American people don’t, but that politicians who want to shamelessly pander to social conservatives do. This is particularly true since such an amendment has no realistic chance of being ratified. In Congress on Wednesday, a majority of Senators voted against limiting debate on the proposed amendment, thus effectively killing it for the year.

The choice of a Constitutional amendment to advance a ban on gay marriage is particularly cynical. The United States Constitution is one of the oldest and most successful plans of government used in the world today. It has only been amended twenty seven times since it was ratified in 1789. Ten of those amendments, the Bill of Rights, were all ratified in 1791. Three were ratified in the aftermath of the Civil War. The amendments generally expand, rather than reduce, individual rights. Very few amendments can be considered to be efforts at social engineering. Those that could include the amendments outlawing slavery, prohibiting the abridgment of voting rights because of race, granting women the right to vote, and lowering the voting age to eighteen. Only one amendment as patently silly as the proposed ban on gay marriage was ever ratified: the 18th Amendment instituting Prohibition in the United States. It was repealed fourteen years later, after having little lasting effect other than fueling the growth of organized crime by providing it with the perfect illicit product upon which to grow wealthy.

When it comes to proposing Constitutional amendments of little or no practical value other than for the purpose of pandering, the Republican Party seems to have taken the lead. The gay marriage amendment was sponsored by Republicans. Republicans have proposed amendments to facilitate prayer in public schools, amendments to ban flag burning, and amendments to make English the official language of the United States. Most of these proposed amendments have been targeted to win the support of social conservatives. Though I am not a social conservative, my assumption is that their average level of intelligence is exactly equal to that of the population as a whole. Therefore I must assume that many of them share my view of the basic frivolity of these proposals. Even those who don’t share my view have probably noticed that such proposals are never pushed hard enough to actually get anywhere, and are only trotted out when, for example, an administration is facing record lows in its approval ratings and can no longer improve them simply by yelling “Terrorism!” at the top of its lungs.

In a statement to the press on June 5, President Bush said, “This week, the Senate begins debate on the Marriage Protection Amendment, and I call on the Congress to pass this amendment, send it to the states for ratification so we can take this issue out of the hands of over-reaching judges and put it back where it belongs -- in the hands of the American people.” It would have been more accurate if he said that the proposed amendment puts the issue back into the hands of cynical and opportunistic politicians who have insufficient respect for the Constitution.

Free the Mouse!

This article appeared in the Virgin Islands Daily News in November of 2002.

In 1998, a cartoon mouse and a Republican congressman made history of sorts.

The mouse, Mickey, had been created by Walt Disney in 1928 and was under a copyright that was about to expire, and the heirs of Walt Disney were nervous.

Sonny Bono, the congressman from California, was serving his last term in the House of Representatives. Bono, formerly part of a pop duet with his first wife Cher, entered the House in 1995 and quickly claimed the place at the intellectual vanguard of the Republican Party previously held by former Iowa Congressman Fred Grandy, who, prior to entering Congress played the role of "Gopher" on the television series Love Boat.

The combination of an animated rodent and a congressman who had regularly appeared in public in sequined jumpsuits, resulted in landmark legislation. The heirs of Walt Disney turned to Bono for help with the expiring copyright on the mouse, and he (Bono, not the mouse) introduced a bill that ultimately became the Sonny Bono Copyright Term Extension Act of 1998, which extended the duration of new copyrights and retroactively increased the duration of existing copyrights, by 20 years. It was perhaps Bono's greatest feat since his vocals on "I Got You, Babe."

Article I, Section 8, Clause 8 of the United States Constitution, the Copy-right Clause, permits Congress, "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." The first copyright statute provided for a term of 14 years. Since then, Congress has repeatedly passed legislation extending copyrights, 11 times in the last 40 years. The Sonny Bono Act extended copyright terms to, in some cases, as much as 95 to 120 years.

But all of this has not gone unchallenged. Several individuals, with the support of public interest groups, brought suit against then-Attorney General Janet Reno to ask the court to block enforcement of the Sonny Bono Act. The plaintiffs included Eric Eldred, who maintains a library of free public domain electronic books on his website; Dover Books, a publisher of inexpensive paperbacks which was forced to cancel editions of works by Kahlil Gibran and Edna St. Vincent Millay because the Sonny Bono Act prevented the works from entering the public domain; a non-profit group dedicated to the preservation of films in the public domain; a company that publishes works on the history of golf; a sheet music publisher; and the choir director of an Episcopal church.

The plaintiffs have adopted the battle cry, "Free the Mouse!" which appears on pins and bumper stickers available from their website.

Although the plaintiffs lost in both the trial court and the Court of Appeals, the United States Supreme Court, surprisingly, agreed to hear their appeal. The case, now called Eldred v. Ashcroft, was argued on Oct. 9. The plaintiffs made essentially two arguments: first, that granting extended copyrights to existing works is not within the authority given to Congress by the Copyright Clause because it does not "promote the progress of science and useful arts" by encouraging the creation of new works and, second, that Congress' repeated extensions of copyrights violate the "limited times" requirement of The Copyright Clause.

The plaintiffs further argued that the public has a First Amendment interest in the passage of works into the public domain. The government argued that an extension of copyright for all works is more equitable than extending copyrights for only new works and that it encourages the owners of extended copyrights to invest in the restoration and dissemination of the works over which they hold copyrights. The government further argued that the public has no First Amendment interest in seeing works enter the public domain.

At the oral argument, many of the judges expressed the view that the Sonny Bono Act was simply a bad law. "It is hard to understand how, if the overall purpose of the Copyright Clause is to encourage creative work, how some retroactive extension could possibly do that," said Justice Sandra Day O'Connor. "One wonders what was in the minds of the Congress." But they also expressed skepticism about their ability to do anything about it. The Supreme Court may strike down congressional legislation in only a very limited number of circumstances, most often because the legislation offends some portion of the Constitution.

The Supreme Court cannot hold the Sonny Bono Act unconstitutional simply because it is an ill-conceived piece of pure special interest legislation passed without concern for its wider consequences. If it could, there wouldn't be much legislation left. Preservation of the Mickey Mouse copyright is by no means the most trivial exercise in which Congress has ever engaged, but by way of perspective, specific constitutional grants of power have been used by Congress to do such things as end slavery, annex Alaska, declare war on Nazi Germany, and create The New Deal.

Sonny Bono has passed on, dying in a fatal 1998 skiing accident, but his legislative legacy remains. The decision of the Supreme Court is expected in the next few months. Until then Mickey, still in copyright bondage, wipes away a tear as he greets visitors at Disney World, dressed in his signature bow tie, waiting for the court or, perhaps, a Million Mouse March to free him.

(Unfortunately, the Supreme Court held against the Plaintiffs and upheld the Bono Act. Cher offered no comment)