Bacon's Rebellion

This is the written ‘ government’ speech from an Act of the General Assembly passed in 1786. Written by Thomas Jefferson.

“An Act for establishing religious Freedom. Whereas, Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burthens, or by civil incapacitations tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the holy author of our religion, who being Lord, both of body and mind yet chose not to propagate it by coercions on either, as was in his Almighty power to do, that the impious presumption of legislators and rulers, civil as well as ecclesiastical, who, being themselves but fallible and uninspired men have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such endeavouring to impose them on others, hath established and maintained false religions over the greatest part of the world and through all time”

Okay, class, is the Almighty God referred to in this act any God other than the deity of the King James Bible?

So, does the reference to this author of our religion (which religion might that be?) make this an unconstitutional disestablishment of the official state church of Virginia?

Why is it that Thomas Jefferson never referred to ‘government speech’, but Sandra Day O’Connor did? Why don’t any of the Founding Fathers write or speak about ‘government’ speech?

(From Larry O’Dell, AP, July 23, 2008) “A three-judge panel of the 4th U.S. Circuit Court of Appeals unanimously rejected the Rev. Hashmel Turner’s lawsuit challenging a nonsectarian prayer policy adopted by the council in 2005.

O’Connor wrote that Turner was given the chance to pray on behalf of the government, but was not willing to do so within the government’s guidelines. She wrote that he “remains free to pray on his own behalf, in non-governmental endeavors, in the manner dictated by his conscience.””

The City Council of Fredericksburg made a discriminatory religious test in its prayer policy. But, given the First Amendment – as it was written, not as re-written by Courts – their actions weren’t unconstitutional. Just biased against Christians.

The City Council’s policy is contrary to Virginia’s Statute of Religious Freedom – “Be it enacted by General Assembly that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief, but that all men shall be free to profess, and by argument to maintain, their opinions in matters of Religion, and that the same shall in no wise diminish, enlarge or affect their civil capacities.” But, I don’t know if these words remain in the Code of Virginia.

What other deities – than Jesus – are proscribed from public prayer in Fredericksburg? Jesus is the only name that can’t be spoken? Does a Muslim prayer meet the nonsectarian standard? How so? Or a Wiccan prayer?

It’s up to the citizens of Fredericksburg to elect a city council to correct their policy.

The Court decision is a different matter. Where is ‘government speech’ defined in the Constitution?

If judges can make up a category of speech, then judges can define speech as they like. As they already have in Sandra Day O’Connor’s addled logic above. Which means they can do far worse in the future.

When did We, The People, as Sovereigns of the United States of America and the Commonwealth of Virginia, give federal judges the power to re-write free speech in the individual free exercise of religion?

The judicial branch is a co-equal political branch of government. The judiciary is semper inter pares only in their constitutional duties to adjudicate existing laws – not to make up new ones.

The issue of who prays what in public in Virginia lies squarely with the cities and counties and Commonwealth of Virginia.

It’s time to take individual freedom back from judges. The Courts seized the power to re-write the First Amendment – especially since 1962. The Legislatures and Executives need to do their constitutional duty to limit judicial excesses – abuses of authority.

The judiciary is as wrong about religion as it was about race for so many decades. Judges built up a body of legal precedents supporting slavery and segregation for over a hundred years after Dred Scott. The five decades of legislating religious prejudices from the bench is less time and no different, politically, than the racial prejudices of former judges.

So, when is it time for civil disobedience in Virginia? If a person prays a public prayer in Jesus’s name, who will arrest him? Do Federal Judges issues bench warrants? Who will prosecute? What is the crime? What is the punishment?

The Apostle Paul spent time in jail. What better reason could there be to be in jail than, “I prayed in Jesus’ name?”

Bacon’s bottom line: Kudos to VDOT. The Woodrow Wilson Bridge experiment could acclimate drivers to the paradoxical notion that driving at slower speeds can actually reduce congestion and get drivers to their destinations faster. It can also demonstrate the degree to which the operators of the Beltway HOT lanes, for which construction has recently begun, can keep tolled lanes flowing freely under dynamically changing conditions.

The Virginia State Rail Plan is a dangerous document. The Kaine administration report, prepared by the Virginia Department of Rail and Public Transportation, lays out an intellectual justification for aggressive expansion of state planning and funding not only for commuter rail, as one might expect, but for freight rail.

The plan is dangerous because, if acted upon, it would transform Virginia’s private railroad companies – Norfolk Southern, CSX Corp., and any short lines that may do business here – into supplicants of the state. The politicization of Virginia’s freight rail system would encourage yet another special interest to raise PAC money to sway legislators, hire lobbyists to roam the halls of the state capital, and form business coalitions to persuade Virginians to part with hard-earned tax dollars to support another mendicant industry.

Some elements of the rail plan are worthwhile. It contains a cornucopia of data for public policy junkies, and it makes some worthwhile recommendations, such as acting to preserve abandoned rail corridors for possible future use. Even the emphasis on the critical importance of the privately operated freight rail is not entirely misplaced. Diverting more freight from trucks to railroads serves the laudable purpose of taking traffic off of Virginia’s increasingly congested Interstate highways.

But the report leaps from that last, uncontroversial observation to the unfortunate conclusion that it is the state’s role to accelerate that shift – implicitly assuming that market forces in the form of rising energy and congestion costs are not sufficient to induce the change. Arguing that railroads can help alleviate congestion on state Interstates, a goal that has widespread public support, the rail report proceeds to spell out how the state can help make it happen.

Here are key objectives spelled out in the report, listed under the goals of “Economic Competitiveness and Quality of Life” and “Virginia DRPT Public-Private Partnership Efforts and Program Delivery.”

Objective: Provide incentives for businesses to ship by rail whenever this is the most effective method available.
Future Strategy – Virginia DRPT should continue to connect businesses to rail and work to improve the overall freight rail system to improve its competitiveness and value against other modes. Virginia DRPT should track progress toward this objective by accounting for the value of freight traffic shifted to rail following the implementation of industrial connections and/or the improvement of main line corridors.
(Bacon: If shipping by rail is the “most effective method available,” why are incentives required?)

Objective: Promote continued dialog and cooperation between Virginia DRPT and the freight railroads to maximize system efficiency and investments.
Status – In addition to the support provided to Virginia’s short line railroads, Virginia DRPT is actively leading major investment studies involving public-private partnerships.
Future Strategy – Virginia DRPT should continue maintaining an open dialog with the private railroads and shippers to promote a unified vision of an efficient and competitive rail network for the Commonwealth.
(Bacon: In theory, public-private partnerships are a tool to induce railroads to make private investments with public benefits they might not otherwise make. But almost any project can be justified on the basis of public benefits– and you can be sure that railroad companies, once trained to seek state funds, will start identifying public benefits in everything they do.)

Objective: Secure stable and sufficient funding for a program of rail investment that will include funding for operating, constructing, and maintaining the rail network.
Status – Virginia DRPT administers several programs with generally continuous funding and advocates for additional funding for important strategic initiatives, including interstate corridor projects.
Future Strategy – Virginia DRPT should continue to advocate for increased and continuous investment in rail. Virginia DRPT should track its progress in securing funding by assigning a probability of funding to future projects.
(Bacon: Aaaargh!)

I will give the rail study credit for one recommendation not always heard in public policy circles: It advocates measuring “cost effectiveness of investments” in terms of air pollution reduced, traffic congestion ameliorated, etc. Unfortunately, such objective considerations are routinely ignored when a project has been turned over to the tender mercies of lobbyists and politicians.

To this point, the big rail companies have shown little interest in plundering the state purse. Once they are persuaded that it is easier and cheaper to financing their capital spending programs by hiring lobbyists and organizing PACs than taking their case to Wall Street, citizens and taxpayers will be the inevitable losers.

So much to blog about and so little time… Unfortunately, my wife suffered a death in the family, and we have to travel to South Carolina today to attend the funeral. I will have no time to blog today.

If I did, I would dearly like to turn my attention to Gov. Timothy M. Kaine’s announcement of budget cuts — and the Republican response to the effect that, “We told you so.” (Readers of Bacon’s Rebellion may recall that we blogged this spring about those very concerns.)

If I had the time, I would read, absorb and report upon Virginia’s new rail plan as well.

If I can sneak away during the wee hours of the morning and tap into the Hampton Inn’s Internet connection, you may hear from me yet!

Someone has to ask the question: Has Eugene Trani stayed on too long as president of Virginia Commonwealth University?

I have enormous respect for Trani, who has done an extraordinary job building VCU as an institution and will no doubt go down in Richmond history as one of its great, visionary leaders. He has transformed VCU from a third-tier, little respected “State U” into an up-and-comer with nationally recognized programs. By emphasizing interdisciplinary programs between schools and departments that traditionally stay pigeon-holed, he has made VCU a genuinely exciting place to study and conduct research.

The VCU president has always had his critics. Some said he was too authoritarian, or that he emphasized bricks and mortar over program development. But there was no arguing with his ability to raise money from the community or squeeze more funds out of a parsimonious General Assembly.

Now those accomplishments are beginning to fray. The simultaneous eruption of the Rodney Monroe and Philip Morris controversies (see “Scandal Reaches Critical Mass at VCU”) raise the possibility that systemic problems might plague VCU’s administration.

Frankly, I have to wonder if Trani’s heart is still in the job. Trani, who turns 69 in November, originally planned to retire from the VCU presidency a few years ago, but the board of trustees apparently could not imagine a VCU without him and begged him to stay another five years. (I draw from memory — I cannot find any reference to the contract renewal on the VCU website. If someone can find it, please let me know.)

While he agreed to stay on, Trani maintained other interests. For example, he serves on three outside boards: LandAmerica Financial, a Fortune 500 title insurance company; Universal Corp., a tobacco trading company; and the SunTrust Central Virginia Bank. Directors at the first two companies (and perhaps the third) are highly compensated and entail significant commitments.

Meanwhile, Trani continues to pursue his academic interests. A historian, he has managed to juggle his administrative duties with scholarly research and writing. His official VCU biography lists an impressive number of columns, scholarly articles and even books written during his tenure as president. In 2005, he spent the summer in Oxford, England, working on a soon-to-be-published book, “Distorted Mirrors: American Images of Russia and China, 1891 – 1991,” and he was intending to spend this summer at Harvard.

Whether this workload — enough to keep two or three normal people busy — affected Trani’s health is a matter of conjecture. But there is no getting around the fact that he was admitted for emergency surgery two weeks ago for a quintuple bypass surgery. A VCU press release stated that he would spend six to eight weeks at home recuperating.

I’ve met Trani a couple of times, including once a few years ago when I interviewed him for an in-house VCU publication. He spoke enthusiastically about his research into early U.S.-Soviet relations — he was particularly interested in the U.S. expeditionary force dispatched to Archangel in 1919, as I recall. Trani also displayed a voracious appetite for information. One thing that struck me: He made a practice of Googling “Virginia Commonwealth University” every morning to see what people were saying about the institution.

Gene Trani is a remarkable man. But it’s a legitimate question to ask: Has he taken on too much? Given his multiple pursuits and responsibilities, not to mention his ill health, can he possibly stay on top of the pressing issues that consume Virginia’s largest university? Who’s calling the shots in his absence? Is the eruption of simultaneous scandals a coincidence, or a sign of a deeper malaise at VCU? I don’t know the answer. But let us hope the Board of Visitors is asking that question.

It looks like Peter beat me to the punch on the latest developments at Virginia Commonwealth University (see “A Tale of Two Outrages.”) Rather than repeat the points he made, I want to amplify his comments about the “neo-Stalinist” atmosphere at VCU. I wouldn’t choose that particular, highly loaded adjective to describe the Trani administration — nobody’s been hauled off in the middle of the night and executed — but there is big, festering problem that must be dealt with.

By way of background: I criticized Style Weekly magazine last month in R’Biz for publishing an article that gave breathless credence to fears expressed anonymously by VCU faculty members and researchers that the administration would retaliate if they openly expressed their objections to the controversial contracts with Philip Morris USA. Style noted that “senior people” at VCU had left because of the Philip Morris controversy but did not identify them. The weekly failed to present any other evidence that the dissidents’ fears were grounded in previous VCU actions.

Well, I owe Style an apology. Peter’s subsequent reporting turned up the fact that one senior person (not “people”) at VCU — former vice president of research Marsha Torr — did depart in a controversy over Philip Morris a few years ago. And today we read in the Times-Dispatch that VCU officials made “improper threats” in an unrelated investigation into a degree improperly given then-Richmond police chief Rodney D. Monroe.

The controversy over Monroe’s degree erupted into a full-fledged uproar when two prominent VCU faculty members resigned their senior administrative positions in protest earlier this week. Robert D. Holsworth, a noted Virginia political commentator, stepped down as dean of the College of Humanities and Sciences, and Michael D. Pratt resigned as interim director of the school of government and public affairs. As Karin Kapsidelis reports for the T-D, the VCU board will take up allegations contained in letters written by two of the four senior officials — presumably Holsworth and Pratt — that “some improper interviewing” took place during the Monroe-degree investigation.

Kapsedelis quotes Dan Ream, president of the faculty senate, as saying that there were “improper threats made to potential tenure. … You don’t threaten tenure.”

Well, if VCU officials can threaten tenured professors, non-tenured professors and research staff cannot be blamed for being skittish about expressing their concerns publicly about the Philip Morris contracts. Add to this latest development the fact that the task force assigned to study the university’s research contracts and recommend new guidelines is chaired by Francis Macrina, the vp of research whose underlings negotiated the contracts, and there is every reason for outsiders to wonder about the integrity of the process.

VCU is the state’s largest, fastest-growing university, and it’s a pillar of the Richmond economy. VCU is an engine of economic development, critical to the growth of the life sciences sector in the region. Anyone who wants to build a more prosperous, livable and sustainable Richmond region needs to take an interest in what happens at VCU.

As Peter rightly asks in the context of this dual controversy, if William & Mary alumni were outraged by the culture-war antics (my word, not his) of President Gene R. Nichol, where are Richmond’s community leaders and VCU alumni? Why aren’t they expressing outrage — or at least concern — about events at VCU that go to the heart of academic and research integrity? It’s a fair question.

The drumbeat of bad news continues at Virginia Commonwealth University. The latest is that four top officials have resigned as part of the controversy over former Richmond Police Chief Rodney D. Monroe’s improperly awarded VCU undergraduate degree.

According to news accounts, one of the reasons for one of the resignations was that when VCU officials investigated the Monroe degree, threats may have been made that tenured professors might lose their tenure.

Wow, that’s pretty strong stuff that stabs at the heart of academic freedom.

But I can believe it. When I spoke with dozens folks in the VCU community for my reporting on another scandal, the erroneously secretive research contracts VCU entered into with Philip Morris USA, I constantly heard of the neo-Stalinist atmosphere at VCU. Faculty were afraid their e-mails were monitored and used their cell phones, instead of university lines, to communicate. After all the contracts that VCU’s vice president for research now says are flawed stipulated that any discussion or inquiry of the two research deals had to be reported to Philip Morris (Big Brother) immediately.

So, I keep asking myself, where’s the outrage? At least the outrage on my outrage-meter that goes as high as that involving Gene R. Nichol, the former president of another state school, William & Mary, who ran afoul of Virginia’s right wing thought police and was hounded out of office.

Nichol was a highly regarded legal scholar who had taught at law schools in Colorado and North Carolina. He also was a liberal and an activist with the American Civil Liberties Union. Nichol did a lot of good at W&M by upgrading the school’s financial aid program to reach more minority and poor students and had to deal with demands by the NCAA that W&M drop the feathers from its logo because they might offend Native Americans.

Then, Nichol really stepped in it by having a cross removed from W&M’s chapel with orders to display it when Christian-related activities were taking place in the structure. That set off howls of rage from the “Christians” in Virginia’s right wing community even though there are Jews, Muslims, Buddhists, etc., who attend the state-funded school and might find the implied religious bias of the crucifix offensive. (And please, dear readers don’t come after me for not understanding your version of “Christianity.” I am a former altar boy who had it all drilled into him by the Jesuits and whose greatly-respected uncle was a Catholic priest who spent his life working with the poor.)

The cross thing really brought out the yahoos. One was Jim McGlothlin, an alumnus who made his zillions ripping coal out of the ground. Miffed at Nichol, he withdrew a $12 million donation.

Now back in my day, my school would have told McGlothlin where to stick it. But not W&M. They whimpered and scampered and howled. The right wing thought police went on alert and the ouster began. It wasn’t helped when Nichol, correctly pointing to academic freedom, did not force out a sex worker exhibit at the school. After all, this isn’t Liberty University or even Georgetown where one might not expect such as show.

It was enough, however, to do Nichol, in. He resigned and left, leaving W&M for the worse.

Move on over to VCU. Now there you have a far more serious situation where academic freedom seems to be getting trampled again and again. Rules were bent to allow Police Chief Monroe to win a degree in ways not permitted to your ordinary 21-year-old. But then, Monroe was tight with Richmond Mayor Doug Wilder and, by extension, with VCU President Eugene Trani. Ditto tobacco research. After weeks of dodging the issue, abetted by Richmond’s local rag of a newspaper, Trani’s junta finally admitted that the secrecy aspects the tobacco contracts were wrong.

What about this reign of fear that wafts over VCU’s two campuses? There’s an awful lot of smoke. And this is serious stuff, not some parlor debate about a crucifix in a public school. But then, Nichol had “liberal” tendencies and he had to be targeted and smeared and ousted as if it were the days of Joe McCarthy in the 1950s.

Peter Galuszka

Fluor Corporation and Transurban (USA) Inc. formally broke ground on the Capital Beltway HOT lane yesterday. Patrick Flaherty, head of Fluor’s infrastructure business, touted the project as a model for similar partnerships nationally. A press release from the P.R. firm for the project reminds readers of the benefits of the public-private partnership:

• Fourteen miles of HOT lanes – two new lanes in each direction – from the Springfield Interchange to just north of the Dulles Toll Road;

• Replacement of more than $250 million of aging infrastructure, including more than 50 bridges and overpasses;

• Upgrades to 11 key interchanges, including improved connections at I-66 and three new access points into the Tysons Corner area;

• Construction of more than 70,000 linear feet (13 miles) of new sound walls to replace current 30,000 feet of protection.

The ground-breaking appears to be stimulating closer public scrutiny than the project ever received when it was still being negotiated. Bacon’s Rebellion raised questions two weeks ago about covenants that would restrict the Virginia Department of Transportation from making improvements that might siphon toll payers away from the Beltway. (See “The Capital Beltway HOT Lane Deal: Did the Kaniacs Give Away the Store?“)

Then on Sunday, Eric Weiss with the Washington Post wrote an article focusing on financial penalties that would kick in if the percentage of carpoolers exceeded 24 percent of the traffic on the HOT lanes — a provision that could cost the Commonwealth $1 million a year.

Barbara Reese, deputy transportation secretary and a key negotiator on the deal, said the subsidy would kick in when the HOT lanes are at maximum capacity for more than 30 minutes. At that point, the state is liable for every 15 minutes that the HOT lanes are at maximum capacity for that day. Wrote Weiss: “She said the estimated $1 million-a-year liability exposure to the state seemed reasonable to state officials. She acknowledged, however, that the spike in carpooling and transit use could increase the state’s liability, but officials said they could not estimate by how much.”

Here are the higher-level questions: What performance standards are built into the contract? What levels of service must be maintained? Will the HOT lanes be optimized for providing mobility for the maximum number of people — or for generating the most toll revenue?

The project very well could become a model for the rest of the country, as Flaherty suggests. But we won’t know if it’s a model to be emulated or one to be avoided until we have more transparency regarding the deal that the state cut with the private operators.

I’m a big proponent of the private sector playing a larger role in building Virginia’s transportation infrastructure. But there is no inherent reason that VDOT couldn’t build the HOT lanes and administer them to optimize the public benefit. Indeed, the public may reject future public-private partnerships if fears persist that the deals are negotiated for the benefit of the private operators and/or the political class rather than for the benefit of the taxpayers and the public. The full contract needs to be made public.