CHICAGO – Cale Makar is humble.
He’s an explosive offensive force, to the tune of 75 points in 54 games last season with the Brooks Bandits of Canadian Jr. A. He calls his game a mix of Erik Karlsson and Shayne Gostisbehere – not exactly a bad pair of role models, if lofty comparisons.
There are some scouts that believe the defenseman could end up being the best player in the 2017 NHL Draft, despite having gone fourth overall to the Colorado Avalanche.
“It’s just a prediction, I guess,” he said. “The way I see this draft, it doesn’t matter where you get picked. They’re going to look at what you do after the draft. They don’t care what you did before. That’s how I’m looking at it.”
Then there was that ESPN.com story. Oh man, that story. While the rest of the hockey world was waiting to see if centers Nolan Patrick or Nico Hischier were going to go first overall, insider Corey Pronman had the New Jersey Devils taking Makar at No. 1.
“In the past few weeks, it has been indicated to me from several NHL sources that the Devils are leaning toward selecting Makar first overall. Moreover, GM Ray Shero has been following Makar around to get a closer look during the final weeks of his season,” he wrote.
Did anyone send that article to Makar?
“Quite a few. I’m not a guy who goes out and tries to find that stuff, but all my buddies told me about it,” he said.
He didn’t go No. 1, but there’s no question that the Avalanche got an extraordinary talent. And, asking around at the draft, an extraordinary person off the ice.
Cale Makar is loyal.
In 2015, he committed to UMass, bringing his talents to a struggling NCAA program. “At the time, I didn’t have those big, big options, but I had options from other schools. It was just a feeling that I had. The personal touch of UMass. I went to the campus and I really liked it there. And you know what you’re going to get there. With some of the bigger schools, you kind of get suck in the lineup. With UMass, my goal is to be a No. 1 defenseman there,” he said.
Except something fairly significant changed for him in 2016: UMass fired coach John Micheletto, the guy who recruited him to the school.
Yet Makar remained committed to being a Minuteman. He made his choice, He was sticking with it.
“Yeah, 100 percent. That’s my plan for next year, and I couldn’t be more excited to do that,” he said. “I think they brought in the new coaches with [Greg] Carvel, [Jared] DeMichiel and [Ben] Barr there, and they’re going to be exceptional. I think we’re bringing in pretty much 11 new freshmen, and it’s going to be a whole new culture there, and I’m just excited for the challenge and to get started with something new.”
Carvel, in particular, was a lure. He was an assistant coach with the Ottawa Senators, coaching defensemen the likes of Zdeno Chara … and Erik Karlsson. Makar’s ready to learn from him, and ready to be patient about it.
“Yeah, it’s going to obviously depend on how I develop. My intention is to play in the NHL when I’m ready, and whenever I feel I’m ready and whenever the organization feels I’m ready. Hopefully I can make that jump,” he said.
Cale Makar is honored.
While he didn’t end up going first overall, he was still a lofty draft pick. And thanks to the advice of some friends, he remembered to cherish the moment.
“I was told by guys like Tyson Jost and Jake Bean and others to just take it all in,” he said. “That you’re not going to get a chance to experience this ever again.”
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CHICAGO – No matter how Cody Glass’s NHL career plays out, he’ll be forever known as the answer to a Vegas sports trivia question.
The Vegas Golden Knights used the sixth overall pick in the 2017 NHL draft, their first-ever selection, on Glass, a 6-foot-2 forward from the Portland Winterhawks of the Western Hockey League.
“It’s an honor and I think they believe in me a lot,” he said. “That’s something that I appreciate. For me, I just want to really prove them right with their pick.”
When Glass heads to development camp next week it won’t serve as his first trip to Vegas. When he was 10, his youth team played in a tournament in Sin City. This was around 2009, many years before the idea of an NHL team in the city was close to reality. While his team finished second, it was the bright lights of the strip that’s stuck with him to this day.
“Don’t get too much of that in Winnipeg,” he joked.
Glass spent Wednesday night watching the expansion draft knowing the possibility that he could be joining the names announced by owner Bill Foley and general manager George McPhee. Despite the Golden Knights being a new team in the league, there’s no concern about a bumpy beginning for the franchise.
“I think Vegas holds a lot of opportunity,” said Glass, who notes he patterns his game after Winnipeg Jets forward Mark Scheifele. “I know they’re going to be a great team in the future. I’m just really looking forward to getting started.”
It may be some time before Glass actually gets his chance to help improve the Golden Knights franchise. But taking a glance at his numbers with Portland this season (32-62—94, 69 GP), and there’s plenty for McPhee and head coach Gerard Gallant to look forward to down the line.
Soon, the hype of being Vegas’ first ever draft pick will die down and it’ll then be time for Glass to get to work.
“I think there’s a lot pressure to it, but then again, I know what I can do on the ice,” he said. “They believe in me, so I’m just going to prove them right. It’s going to be really awesome getting started in Vegas.”
Glass was cut from Canada’s Ivan Hlinka roster last August, and long after his grandmother passed away. It wasn’t an easy time for him, but the snub served as fuel during his outstanding junior season.
“I think that’s what made me have such a great start to the season,” he said. “I think just wanting to prove people wrong was a big thing. I just wanted to be more consistent throughout the year and I think that’s what I did.”
Glass sat in disbelief while meeting the media inside United Center after the pick. Two days ago he was watching the expansion draft as Vegas began forming its roster. Now he was wearing a Golden Knights’ hat and jersey as the newest member of the franchise.
“It’s kind of unbelievable. Sorry, words can’t describe how I feel right now,” he said. “One day I know I’m going to put on this jersey. It’s just unbelievable.”
– – – – – – –
New York University law Professor Roderick Hills has posted a thoughtful response to my post criticizing the Supreme Court’s just-issued decision in <em>Murr v. Wisconsin. Rick makes two interesting arguments. Neither persuades me that Murr was rightly decided.
Rick’s first point is that, if local governments were not allowed to treat contiguous parcels owned by the same person as a single unit for takings purposes, they could try to impose high fees on attempts to subdivide lots, thereby forcing owners to buy a kind of “takings insurance.” It is far from clear that anything like this would ever happen. The imposition of such fees would annoy powerful interest groups in most communities, such as politically influential developers, who depend on subdivision to run their businesses. But if it did, the obvious solution would be for courts to rule that such extortion itself qualifies as a taking. When the government attempts to use exactions and fines to undermine constitutional rights in other contexts, courts usually don’t hesitate to step in. For example, the government cannot circumvent First Amendment rights by imposing high fees on speakers, or circumvent abortion rights by imposing high taxes on abortion providers. In Rick’s scenario, the government would effectively be using a monetary exaction to avoid having to pay compensation for takings.
The Supreme Court has already curbed the use of monetary exactions to circumvent the Takings Clause in the 2013 Koontz decision (another case Rick and I have debated). And Koontz was a considerably less egregious attempt to circumvent the Takings Clause than Rick’s scenario.
More generally, government officials can potentially use fines and exactions to try to circumvent virtually any constitutional right. If the courts ban regulations that directly attack the right, it is always possible to try to repress it by imposing fines on those who exercise it, imposing indirect regulatory obstacles on them, and so on. There is no perfect remedy for such shenanigans. But the judiciary has kept them under control in many other contexts. There is no reason to believe that they are any less capable of protecting property rights against them, than any other constitutional rights. If courts are serious about protecting the right in question, they will be alert to attempts to gut it indirectly, as well as frontal attacks on it.
Rick’s second point is that victories in Murr and other recent regulatory takings cases brought by property rights advocates won’t do much to undermine restrictive zoning, which he considers to be the “greatest attack on property rights” in the United States. He urges us to abandon litigation and instead focus on combating zoning in the political process at the state level.
I very much share Rick’s concerns about zoning. It is is indeed a grave menace, particularly to the poor and lower middle class. But even if regulatory takings litigation cannot do much to curb it, that does not mean we should not use it to attack other violations of constitutional property rights. The best should not be the enemy of the good.
Moreover, for reasons I recently outlined here, takings litigation does in fact have some potential for curbing abusive zoning. The more the Takings Clause is enforced against other infringements on property rights, the more it can potentially be used against zoning regulations that undermine those rights in much the same way. It is doubtful that litigation will enable us to curb all or even most abusive zoning any time soon. But it can help take down some of the more egregious practices. As with past efforts to expand protection for constitutional rights and liberties, the best strategy is usually one that combines litigation with political action, rather than relying on either exclusively. That’s the lesson of the civil rights movement, the feminist movement, the struggle over same-sex marriage, efforts to expand gun rights, and past efforts to strengthen protection for constitutional property rights.
Here, as elsewhere, we should avoid falling prey to the all or nothing fallacy, under which judicial review must be abjured unless it provides 100% ironclad protection for the right in question, without any exceptions or limitations. Regulatory takings litigation cannot and will not provide perfect protection for property owners. Nor can it forestall all possible efforts at circumvention. But it can do a great deal of good nonetheless.
Rick Hills and I have been debating the value of judicial protection for property rights for a long time now. In this 2011 article, I criticized his and other scholars’ claims that federal courts should avoid most efforts to protect property rights, out of respect for federalism.
NOTE: I coauthored an amicus brief in Murr supporting the property owners, on behalf of nine state governments led by the state of Nevada. As with other posts about Murr, what I write here represents solely my own views, not those of the state governments I helped write the amicus brief for. The brief is a pro bono project, and I have no financial interest in the case.
As for me, I was off to Heathrow, though I did get to see the solstice sun rise in Wiltshire, admittedly over the M4 rather than the heel stone:
The journey all went very smoothly. After some hairy experiences at Schiphol two years ago I'd been worried by the fact that I only had an hour to make my connection at Frankfurt, especially as it involved two different airlines (Lufthansa and All Nippon Airways), but the combination of German efficiency and, er, Japanese efficiency, meant that I needn't have worried.
On the plane from Frankfurt to Tokyo I found myself sitting between two middle-aged Japanese women, both of whom spent much of the next 11 hours in face masks, but who were to play a significant role in my journey.
I'd secretly been a little annoyed by the woman sitting to my right, because she closed the window just before take-off, depriving me of a view I always enjoy. Also, I remembered that you're meant to leave the windows open on take-off and landing, for the grisly reason that it helps recovery workers count the bodies in the event of a crash. I composed a Japanese sentence to this effect in my head, but hesitated to speak it, considering that it would be kind of snotty, however perfect the grammar, and that we were after all destined to be companions for quite a while.
She rose considerably in my estimation when I woke from a nap to find her absent from her seat. How had she escaped without waking me or my equally slumberous companion to the left? A minute later I had my answer, when she returned, removed her shoes, and clambered over both arm rests with the considerate dexterity of a service-industry ninja.
Then, about half hour from arrival, she became a friend for life by positively shaking me to point out a beautiful view of Mount Fuji.
Apart from one very distant blurry sighting from a Tokyo high-rise last year, it was my first Fuji sighting, and it looked marvellous in the clear early-morning sun (for it was now 6am the next day, thanks to the magic of time zones), brown with an icing-sugar sprinkle of snow. Of course, I tried to take a picture with my crappy mobile phone, but captured nothing but a blur. Then I remembered that I'd bought a camera especially for the trip, and dug that out. Unfortunately I hadn't yet taught myself to use it, and my attempts were really no better than before. Eventually my kind companion suggested I photograph the picture she'd just taken with her iPhone. So here it is, my photograph of the next-door passenger's iPhone's photograph of Mount Fuji:
Just like being there, isn't it? Hokusai would be proud.
As for my left-hand companion, she chatted politely with me, asking why I was coming to Japan, and so on, which was a good chance to give my Japanese a light workout. When I explained about the lectures I'd be giving in Tokyo she promised to tell her daughter, who was interested in anime - but added that her cousin (who was travelling on the same plane) happened to live in Kichijouji, near the university where I'd be staying, and would be happy to show me there when we landed.
So it was that I spent my first hour in Tokyo with left-hand companion and her cousin, the latter seeing me through the Tokyo tube in the rush-hour crush (no joke when you have two sizeable cases), all the way to the door of the university. She'd made a couple of remarks about looking forward to getting back to her Japanese life after her stay in Germany (her younger sister had married a German and even taken citizenship), so I thanked her for her "authentic Japanese hospitality" (本物の日本のおもてなし) - which I think pleased her, but was sincerely meant.
I spent the rest of that day meeting people, paying rent, registering at the library and getting online, and so on - more or less in a daze, for it was 24 hours since I'd had any sleep worth the name. I'll leave that aside for the moment - we will meet these actors again - and just give you a quick tour of my dwelling, the Foreign Faculty House, where I am sole resident. The outside I've already posted, but here it is again, in glorious colour:
So far, the rainy season has consisted of bright sunshine and 29-degree heat, and my little patch of garden is alive with butterflies and dragonflies. A murder of crows has taken up lugubrious residence in a nearby grove.
Inside, I have a spacious and comfortable apartment, though rather oddly appointed. The building, being almost 100 years old, is in any case ancient by Japanese standards, with polished wooden floors on the landings to facilitate the swish of kimonos (not that kimonos do swish, but this is the obligatory word to use with female clothing of yore) and, I suppose, the clatter of geta. There is an ominous stairwell that leads up into a void, but from which, so far, nothing has issued. Anyway, here are a few shots of the inside, to give you a feel:
Some of the facilities, though not quite coaeval with the house, have a distinctly retro vibe - but this makes me feel quite at home, my heart spending much of its time in the 1970s in any case.
Japanese error in most urgent need of correction? Why, that would be my habit of pronouncing "Toukyou Joshi Dai" (the abbreviation everyone round here uses for the name of this university) as "Toukyou Dai Joshi", which translates rather unfortunately as "Tokyo Big Girls".
This must end.
I'm sitting here brainstorming community names. Basic names like Art, Artists, Draw, Drawing, Drawings, Drawn are already taken. Anyway, this is the kind of stuff I'm coming up with:
drawpaint, drawnow, drawit, drawthis, idrewthis, idraw, drawnbyhand, drawntoart, readysetdraw, drawingskills, wedraw, groupdraw, drawingtogether, drawingroup, drawyes, drawesome, drawpaintgrow, drawyay, yaydrawing, drawn2art, drawn2fanart, 123draw, quickdraw, lovetodraw, drawsomething, drawingroom, drawmore.
I...kinda like drawmore, wedraw, or drawthis. IDK.
What are you guys partial to? Got any other suggests?
CHICAGO – There was one thing running through Nolan Patrick’s mind as he watched New Jersey Devils general manager Ray Shero announce Nico Hischier as the No. 1 overall pick Friday night.
“I hope I go second,” he said.
Patrick did, and now he’s a member of the Philadelphia Flyers.
The top two picks have formed a friendship over the last month as they traveled to various events like the NHL combine and Stanley Cup Final. Both obviously wanted to go first overall, but Patrick is fine with where he ended up.
“I wasn’t sitting there rattled,” he said. [Hischier] went. I was happy for him. He’s an awesome guy. I’m happy how things played out.”
It’s tough to rattle the 18-year-old center, who posted 20 goals and 46 points in 33 games this past season with the Brandon Wheat Kings of the Western Hockey League. The months of projections and speculation are now over and Patrick isn’t feeling any bitterness at the Devils for passing him over.
“I think me and Nico are completely different players. I think he might a little more offensively dynamic than me. I think I might be a little more defensively than him,” Patrick said. “They wanted him. It’s not like I’m sitting here mad wishing I went to Jersey. They didn’t want me, so it doesn’t matter too much to me.”
A lot of focus as draft approached was placed on a sports hernia injury that cost Patrick 35 games this season. He underwent two surgeries, and with the weight of owning the No. 2 pick the Flyers had him visit their own doctors just to get reassurance of his health.
“You never want to be injured, especially in your draft year,” Patrick said. “Obviously that was a tough year for me, but I think it makes me stronger as player and adversity at this age doesn’t hurt. I’m just going to move on from there and get ready for next season.”
Like all of the prospects drafted this weekend, Patrick’s goal this summer is to get bigger and stronger to help improve his chances of making the NHL roster training camp. He’ll get his shot to stick past the nine-game mark of the regular season which, to Patrick, will be the first step toward his ultimate goal.
“I think every hockey player wants to win a Cup. It’s my main goal is to win a Cup in my NHL career,” he said. “If I have a chance to do that that’d be unbelievable.”
– – – – – – –
When his Twitter game is running red hot, there’s certainly no mistaking Roberto Luongo. The veteran Florida Panthers goaltender has built a reputation for dropping comedy gems online at the most opportune moments.
However, during Friday night’s NHL Draft, fans could be forgiven for confusing one of the class of 2017 for, well, Luongo’s former teammate in Vancouver, Cory Schneider.
With the 10th overall pick, the Panthers selected winger Owen Tippett, and as the 18-year-old took the stage to receive his new colours, his neatly groomed bright red hair sent Luongo into nostalgia mode.
Man this panther draft pick is hitting a little too close to home ???? pic.twitter.com/zjsVPWGuuv
— Strombone (@strombone1) June 24, 2017
He tweeted a picture of a youthful Schneider alongside his doppelganger Tippett, who scored 44 goals and 75 points in 60 games with the Mississauga Steelheads this season.
Back in 2011, Luongo and Schneider combined in the Canucks net to win the William M. Jennings Trophy with a league-low 2.20 goals-against average.
But each was too good to compete with the other for a starting spot. Luongo stayed and Schneider was eventually traded to the Devils.
Now in Florida, preparing to welcome new teammate Tippett, the 38-year-old’s memory is as strong as ever.
CHICAGO – Nico Hischier didn’t know he was going to be the first player selected in the 2017 NHL Draft by the New Jersey Devils. The team didn’t inform him until they were on the stage, announcing his name, which made Friday in Chicago an exhilarating and harrowing day for the Swiss centerman.
“This morning, I was fine. Then as soon as I stepped here in the ice rink my pulse went up and stayed there,” he said. “It was a lot of emotions, from one second to the other.”
Hischier’s heart was pumping so hard as he made his way to the stage that he actually grabbed his chest. His mother was crying. His adrenaline was pumping. He could barely speak.
“I’m really speechless. I find no words. I love to hockey,” he said on NBCSN.
Maybe he should have seen this coming. There’s this old photo card, you see, of Nico Hischier as a 10-year-old hockey player in Naters, Switzerland. His hair was blonder then.
Nico Hischier was destined to be a Devil. pic.twitter.com/SEch1BesUJ
— Marc Dumont (@MarcPDumont) June 23, 2017
And he was wearing a red New Jersey Devils sweater, like the one he slipped on after they selected him first overall.
“I was really young. There’s a tournament in Switzerland, where you wear an NHL team. It was always random. That year, I wore the New Jersey Devils,” he said.
History isn’t lost on Nico Hischier. A star with the Halifax Mooseheads of the QMJHL, where he had 86 points in 57 games last season, he’s the first Swiss-born player to go first overall and, in the process, the highest-drafted Swiss player in NHL history.
“It means a lot. There a lot of guys in Switzerland supporting me in this way,” he said.
There was a time when he supported a Swiss player with the Devils: Damien Brunner, a winger he knew that played two seasons in New Jersey. Hischier joins a recent acquisition, defenseman Mirco Mueller, as the lone Swiss players on the team. (Hischier said Mueller, whose acquisition from the Sharks telegraphed this pick a bit, was friends with his older brother. Small world.)
“It’s great to join such an amazing team, with so much history. I’m really happy to be part of this organization,” he said.
Now comes the hard part: Refining his game, bulking up a bit, and becoming the kind of player that’s ready to make an NHL impact.
“I’m going to do everything I can,” he said.
Of course he will.
He loves to hockey.
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The theater I went to last night almost didn't let me in, though. The boy at the counter told me they had to close the screening room because the AC had gone out, and it wasn't fit to sit in, and asked if I wanted a refund. I sadly said yes, and he went and got his manager. The boy had just turned away people asking to buy tickets, also. The manager came out and apologized, and scanned my QR code on my phone to print the tickets to start the refund process, and mentioned that there were only two screens in the theater that could stream the Fathom stuff.
Wait, I said. They were still going to show the DCI? I had a student in one of the corps, and I wanted to see them perform. He said they were, but they couldn't put the audience into the second, air-conditioned theater until 8:50, because there was another film in there already. But, you're still honoring the tickets? I can still see this? Yes, if I didn't mind the inconvenience. I did not mind at all. So, got my ticket and headed to the snack line.
I'd spoken loudly enough that the people who'd been turned away and had been off to the side talking about how they'd have to call their parents (teenagers), went back to the ticket window before the manager could walk away, and managed to purchase tickets as well. And then a group of adults got into line. I'm glad I spoke up about my desire to see the performance and asked clarifying questions. The boy at the counter had not been aware of the possibility, it seemed - it's a busy theater, and I'll give him the benefit of the doubt. He probably wasn't aware of more than the basics of the situation.
The poor theater was under-staffed last night. There was only one person behind the snack counter, and he was running back and forth between the register and the back room to fill orders. He kept smiling, kept up his good humor, and everyone who was around me in line was very patient and kind with him. It's hard being the only person at a register when you can "just" stand and ring people up - the fact that he was making food, pouring drinks, checking stock, and ringing us all up? I hope the management was kind to him.
The screening room itself wasn't as bad as the ticket counter had made it seem. There was some air flow, so we weren't hot and sticky. It was a bit stuffy, but nowhere near the oven I'd been expecting. There were a ton of teenagers there, along with parents of people in the corps, band directors, etc. Most of the group was either a middle school or high school band, based on the snippets of conversation I heard. We were moved to the AC screening room between the first and second performances (I'll talk about those in a moment), which was a convenient time, because the feed itself had some issues and had stuck at that point. We all moved quickly to the new room, and everyone did the sensible thing of go as high as you can, or as far in as you can to the row you're on. There was an empty space next to a couple of teenage girls on the end of a row, and I asked if they were holding the seat. Nope! I plopped myself down just as the second corps began its performance.
As to the performances themselves, they were very fun! This is the first of the season, as I'd said before, so not everything about each program is finalized. They've been rehearsing for about a month now. My student who's in one of the corps left school as soon as seniors were done, and missed his own graduation for training. Some of the corps were in better shape than others. The cameras also had the unfortunate luck to focus in on some of the guard just as they missed catching their batons. The programs were diverse in tone and theme, and each one was a treat for both ears and eyes. I enjoyed the commentators, who, just like sports commentators, gave some background about each of the corps performing - their world class wins, their previous season's programs, changes in leadership among the adults (there's an age range for performers - I think it's 16-23, but don't quote me on that; I know there are 18 y.o. because that's how old my student is). Unlike sports commentators, they were quiet during the performances themselves, commentating on them only after the performance had finished. They spoke with directors before each corps performed, and got an "on-the-ground" perspective after from one of the corps members who was leaving the field.
In August, there's going to be another showing in the theaters, before the DCI finals. The top 15 corps' performances will be streamed to audiences, so they can see who the contenders are for the finals. The scoring is done by a panel of judges, and is kind of complicated - though the commentators kindly broke it down with overlay graphics for the movie-going audience. The corps my student is in came in 4th out of 6 - not bad for an opening volley, especially considering how tight most of the performances already are. I hope they make it to the top 15. If they do, I'll definitely go to the other showing. If not...I still might. I really enjoyed the routines I saw, and want to see how they evolve over the season.
Last year I published an article on the phrases “necessary and proper” and “cruel and unusual.” I argued that both phrases are best seen as instances of the figure of speech hendiadys. Hendiadys is the use of two distinct terms, separated by a conjunction, that work together as a single unit of meaning. For example, a farmer who says his cow is “nice and fat” is not saying two things — the cow has a nice disposition and also is fat — but only one thing, that the cow is nicely fat, quite fat. I won’t rehash the argument here about the two constitutional phrases. But you might wonder where the idea of hendiadys came from, especially since it is not found in most books on figures of speech. The genesis of that article was, quite literally, Genesis.
A scholar of biblical Hebrew (John Hobbins) and I have been working on a translation of the Book of Genesis, and the volume with chapters 1-11 was published Friday. You can order it from the publisher or from Amazon.
In a series of posts, I’ll be discussing the translation. For me, Genesis is not just a cultural text; it’s a religious one. But in my posts I’ll discuss points that will be of interest to everyone who cares about language and law.
Let’s start with an example. One of the most famous stories in the Book of Genesis is the Tower of Babel. Translators and translation theorists love this story (e.g., George Steiner). Maybe because it tends to justify translators’ existence. It’s short, just nine verses (11:1–9). It has a lot of punning and wordplay. One pun is absolutely central, the pun on the name of the city (Heb. babel) and the Hebrew word for mixing (Heb. balal), often used for mixing the flour and oil for a sacrifice.
The Babel story concludes this way in the New International Version, currently the best-selling Bible in the United States:
That is why it was called Babel — because there the LORD confused the language of the whole world. From there the LORD scattered them over the face of the whole earth.
Here’s how the same verse reads in our translation:
Hence her name is called Babylon, for there the LORD scrambled the tongue of all the earth and made it babble. And from there the LORD scattered them over the face of all the earth.
There are about 10 points of difference I could discuss, but let’s just focus on two.
First, the name of the great city. If the pronunciation were carried over from the Hebrew, it would be “Babel” — the traditional English translation in Genesis 11. But the city referred to is the one conventionally known in English as “Babylon.” That’s how English translations render the word outside of Genesis. The decision to vary the translation in Genesis 11 does have antecedents. In Genesis 11, an ancient Greek translation (the Septuagint) translated the name as “Confusion” instead of using the city’s Greek name (Babulon), and an ancient Latin translation (the Vulgate) mimicked the Hebrew pronunciation with Babel instead of using the city’s Latin name (Babylon). But there are costs to giving the city’s name a special rendering just in Genesis 11. “Babel” in Genesis and “Babylon” everywhere else keeps the reader from seeing the many allusions to this story in later biblical passages (e.g., Jeremiah 51:9, 53; Daniel 4:20–22[17–19]; Revelation 18:1–5). A consistent rendering lets the reader see these connections.
Second, there’s the question of how to translate the word for mixing. Until recently most English translations chose “confounded.” Then, in the 20th century, English translations switched en masse to “confused.” (Herd choices in translation is an interesting sociological phenomenon.)
“Confounded” and “confused” aren’t bad translations. But what they do is swap out the insistently physical Hebrew for an English equivalent that is more abstract. They lose the metaphor.
Our translation tries to keep the physical metaphor with “scramble.” That word has a culinary association in English that matches the original. And it even makes a nice connection across semantic domains (cooking and language), because letters get “scrambled” to make a code.
And one more twist: We give a double translation. For a single phrase in the original, we have both “scrambled the tongue” and “made it babble.” What this double translation allows us to do is keep the physical image (scrambling) and carry over into English the central pun in the story. Babylon may seem powerful, says Genesis, but it’s really just a place where they babble on.
(Page references to our volume: The Babel story appears on p. 36, and the notes explaining translation choices for that story are on pp. 185-190.)
Justice Clarence Thomas is well known for writing separate opinions highlighting the gap between the Supreme Court’s contemporary jurisprudence in a given area and the original constitutional understanding or original public meaning of the relevant constitutional provisions. Earlier this week, for example, Thomas suggested that the court should reconsider its qualified immunity jurisprudence.
Friday, in Murr v. Wisconsin, Thomas suggested that the court should reconsider the constitutional foundation of regulatory takings doctrine. Although he joined the dissent authored by Chief Justice John G. Roberts Jr., Thomas also wrote separately to highlight the tension between the court’s doctrine and the original meaning of the Fifth Amendment’s takings clause. He wrote:
I join THE CHIEF JUSTICE’s dissent because it correctly applies this Court’s regulatory takings precedents, which no party has asked us to reconsider. The Court, however, has never purported to ground those precedents in the Constitution as it was originally understood. In Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 415 (1922), the Court announced a “general rule” that “if regulation goes too far it will be recognized as a taking.” But we have since observed that, prior to Mahon, “it was generally thought that the Takings Clause reached only a ‘direct appropriation’ of property, Legal Tender Cases, 12 Wall. 457, 551 (1871), or the functional equivalent of a ‘practical ouster of [the owner’s] possession,’ Transportation Co. v. Chicago, 99 U. S. 635, 642 (1879).” Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1014 (1992). In my view, it would be desirable for us to take a fresh look at our regulatory takings jurisprudence, to see whether it can be grounded in the original public meaning of the Takings Clause of the Fifth Amendment or the Privileges or Immunities Clause of the Fourteenth Amendment. See generally Rappaport, Originalism and Regulatory Takings: Why the Fifth Amendment May Not Protect Against Regulatory Takings, but the Fourteenth Amendment May, 45 San Diego L. Rev. 729 (2008) (describing the debate among scholars over those questions).
The paper Thomas cites at the end of his opinion is by University of San Diego law professor Michael Rappaport, a prominent originalist scholar (and contributor to the Originalism Blog). Here is the abstract to Rappaport’s paper:
This article explores the widely disputed issue of whether Takings Clause protects against regulatory takings, offering a novel and intermediate solution. Critics of the regulatory takings doctrine have argued that the original meaning of the Fifth Amendment Takings Clause does not cover regulatory takings. They have quickly moved from this claim to the conclusion that the incorporated Takings Clause under the Fourteenth Amendment also does not cover regulatory takings.
In this article, I accept the claim that the Fifth Amendment Takings Clause does not cover regulatory takings, but then explore the possibility that the incorporated Takings Clause does cover such takings. Applying Akhil Amar’s theory of incorporation, I argue that there are strong reasons, based on history, structure, and purpose, to conclude that the Takings Clause had a different meaning under the Fourteenth Amendment. Amar argues that the Bill of Rights was dominated by republican ideas, but that the Fourteenth Amendment was founded on more liberal notions intended to protect individual rights. This would suggest that a broad reading of the Takings Clause would further the principles underlying the Fourteenth Amendment.
Moreover, that some state courts had come to apply takings principles to regulatory and other nonphysical takings in the period between the enactment of the Bill of Rights and the Fourteenth Amendment provides additional support for the possibility that the Fourteenth Amendment enactors would have understood it to apply to regulatory takings. While the paper does not attempt to prove that the Fourteenth Amendment Takings Clause applies to regulatory takings, leaving that task to others, it argues that critics of regulatory takings doctrine should no longer simply assume that the Constitution’s original meaning does not apply to state regulatory takings.
Regulatory takings is not the only context in which property rights activists may be asking the Fifth Amendment to do the constitutional work better done by the 14th Amendment (if it is to be done at all). Eminent domain may be another (for reasons I briefly sketch in this exchange).
If there is to be greater clarity about regulatory takings, it might help if the entire doctrine rested on a more secure — and constitutionally sound — foundation.