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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Tuesday, May 26, 2015

Julia Stiles

So you're a New Yorker. And a Mets fan. 
I love baseball. As a teenager, I was a contrarian, and picked the underdog instead of just rooting for the Yankees. It's a hard team to root for, but there's something that always keeps me hopeful. I actually love listening to baseball. I really get into the announcers. It's almost like Valium. It totally relaxes me. I like listening to the radio more than going to the games, although I love the old stadiums, like Fenway and Wrigley Field. They're beautiful and simple -- they sell hot dogs, pretzels, beer -- that's it.

Monday, May 25, 2015

Memorial Day

Best way to honor those who served and died is promotion of peace.

Saturday, May 23, 2015

The Jefferson Rule

I'm reading the new book of the author interviewed here and below cite various people who blog there [this is an adaption of a comment there]. This entry was edited; perhaps, this can be a "Rev. Joe" entry since it involves "constitutional faith" which is in effect a form of religion.

The book starts with the creation of "the" founding vision (Jefferson won the first battle) and how antebellum times were a period of great change but a full ability to deal with it was harmed because of a connection to the past. A problem being that an honest accounting would show there was no "one" vision -- there was a conflict from the start. But, still one or the other side was sure there was clearly one vision, so much that the other side were in effect traitors to the cause.  So, John Quincy Adams tried to think big but was rejected as not loyal to the Jeffersonian vision. Jackson was an innovator of party politics and other things but also could not truly admit to being so given this "constitutional faith" to use a term of Prof. Levinson.

There was an "interregnum" while the Civil War and its aftermath seemed a time too different from the Founding Era for that time to be seen as applicable. Lincoln provided something of a bridge: he spoke (shades of Balkin?) of certain founding principles that only in time would be put in place. So, slavery was a necessary evil, but in time equality would thrive.  But, his rhetoric still tarred the opponents as traitors to the Founding Vision (sic), made only clearer once many truly became actual traitors. The return of "The Jefferson Rule" began in the 1920s with Harding using it as a way to further his "return to normalcy" with the Lincoln Memorial as important. It also was used to combat FDR but he in return used it (Gerald M. has written about this including his use of the BOR) to promote the New Deal. I have not read the rest but he later covers Reagan, the Tea Party etc.

The book is decent but as someone who read a decent amount touching upon this ground a lot of it doesn't really add much. And, since he has to cover so much ground, it adds to a feeling of "yeah okay, knew that." So, vignettes here and there are the most interesting. For instance, John Quincy Adams showing his message to Congress to his Cabinet. I, of course, agree with his overall thesis here myself and as a whole it's a useful volume, more so for those somewhat less knowledgeable of the events. Some of them (those more knowledgeable) might feel a desire to skim.

Update: Perhaps since I have read somewhat less on recent history, the sections on FDR and Reagan (1960s and 1970s particularly) were interesting.  So, e.g., FDR spoke of "economic royalists," shades of Jefferson tarring his opponents as not just wrong but in effect traitorous. I see this online a lot with being totally wrong not enough; the other side in effect has to be evil.  LBJ and Nixon were lightly touched.  

The book ends on a fairly expected mostly negative account of the Tea Party's non-reality based path and extremism.  It concludes by sensibly suggesting that we should not try to have the Founders guide us -- they were divided and we live in a different era.  As they did a long time ago.

Be the judge (or justice) ...

Someone asks how you would act given the reality of being a justice of the USSC.  Sometimes enjoying role playing games, I responded:

I would realize I am part of a large system, one of nine, having no power of the purse or army to carry out my commands, and will be influenced by many factors, including professionalism, the sense of duty arising from my place and yes personal opinions, experiences and values. ALL judges will in some fashion have such things. All federal judges have life tenure.

As to important cases. Loads of them are not. Even constitutional cases repeatedly are small. Some narrow issue of the 4A. The legitimacy of some state tax law promoting an end that could be done in some other fashion etc. A district judge has important duties too. S/he can preside over a trial and determine (with broad discretion) how much time to lock a person in a hellhole or any number of lesser things.* Many "interesting questions" are only decided by appellate judges, particularly since the USSC avoids them. GITMO has largely been overseen by the DC Court of Appeals.  [I'd add that just as lower court judges often do not have the final say, justices often really do not either or convince themselves that they don't.]

And, when the USSC decides, a large number of cases are decided by supermajority votes. Yes, there are close cases, some that are very important. And, personal factors influence this along with the weight of the office itself. But, this is the nature of the system. Life tenure, e.g., is supposed to make them more independent. I'm unsure though what change would occur if instead they had let's say a 15 year term. It might help -- Scalia seems to have gotten worse lately and Douglas got lazy. And, it would bring in new blood, especially now that modern realities result in judges able to spend much more time on the bench. But, only so much.

So, how would I act? Bottom line, I would try to honestly carry out my affirmation (I wouldn't swear an oath) to do my job. And, partially knowing I'm 1 of 9 and part of an ongoing institution, that would mean I couldn't just do what I thought best is some perfect world. Yes, my personal views would influence me. And, sometimes I would act pragmatically or by compromise, as people do, including in juries and multi-member judicial panels.

Finally, in response to a discussion in the comments regarding judges convincing themselves they will merely "decide the law" and not in some significant fashion be influenced by personal experiences and biases, well, that is just a fiction we  in some fashion promote.  The judicial nomination process, e.g., is something of a dance. But, even there, some truth leaks out. And, anyway, we can be honest among ourselves, and some judges are as well.  Justice Sotomayor, putting aside doing her part in the dance, is open now about how her experiences influences her judging. And, this still doesn't mean that is all that will matter.  This is seen by the supermajority votes in a many a case in the Supreme Court, even if the justice might given his or her druthers vote another way. 

I do welcome the discussion, as also noted, because it helps promote an honest accounting of judging and this can help when deciding how to deal with the situation.  Still, there can be some overcorrection there, like noting the problems with the Mets without needing to just stay they stink or make tiresome cheap shots or comments that are basically stupid. The overreaction, like some dubious speech, is itself educational though.

ETA: I like egarber's reply overall though the opening gambit of Federalist 78 etc.  is something of an exaggeration of much of a justice's job. The cases overall are often a matter of not restraining the legislature or executive as such but providing some order in the law as a whole.

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* A trial judge will be overseen by various layers of appellate review, including in sentencing matters, but still has broad freedom of action and this review takes time. A "be the judge" in local state proceeding here shows this pretty well. 

Thursday, May 21, 2015

Now ... Months of Waiting

Have a nice retirement, Dav-id. Let's not forget about these two!

Wednesday, May 20, 2015

Death Penalty Issues

A discussion of "necessary" in respect to the lethal injection case with a discussion (not surprising given the source) regarding eating animals. New Republic had a good article on problems with the technique. End of the death penalty in Nebraska?

Update: Added a link of background; that guy also was involved in Marsh v. Nebraska.

Follow the Stars Home

The needs of disabled children was addressed around the time this t.v. movie about a woman choosing to keep her own (with various other complications, including a girl from a troubled home) was replayed. I liked the overall movie (fairly realistic though still "Hallmark" aspects) and saw that the disabled daughter was played by two girls in a good performance. She chose to have the child, fully informed of the risks with more help than many would have.

Tuesday, May 19, 2015

Supreme Court Watch

Yesterday was a busy day at the Supreme Court with six opinions handed down though they were not really the hot button cases of which many have been keeping track. SCOTUSBlog provides a discussion of the opinions, including a potentially important case involving use of force when dealing with the mentally ill for which the broadest question avoided thus a limited result.  Scalia (with Kagan joining) was annoyed that the Court was in his view tricked to take a case to decide "x" and later found the locality didn't want the Supreme Court to decide the question. Meanwhile, the new attorney general stopped by for the usual ceremonial visit there.

The opinion that was most interest to me involved the "dormant commerce clause" issue the Scalia (though he would again provide limited stare decisis effect) and Thomas think is bogus.  Ginsburg/Kagan split from the other liberals to accept that longstanding principle (states can be found to discriminate and/or burden interstate commerce even without congressional action so holding; some argue there are other ways to address this concern), but differentiate this case from other precedents.

It is interesting to see natural partners split, on both sides here. The case has implications for education  while there clearly are various ways the overall principles (including basic concerns of equality among the states in the economic sphere, here out of state income being treated differently) deemed basic constitutional norms.  The majority (by Alito) had a bit of 'tude, not surprising given its author, including when responding to the two justices who thought the dormant commerce clause principle was bogus. The idea goes back to John Marshall and has been reaffirmed on the merits back to the late 19th Century.  The development of doctrine, not restating first principles or looking at past events in a vacuum (such as state practice back in the day) is addressed.  A sort of "living constitution" approach?
First, because of the difficulty of interstate travel, the number of individuals who earned income out of State in 1787 was surely very small. (We are unaware of records showing, for example, that it was common in 1787 for workers to commute to Manhattan from New Jersey by rowboat or from Connecticut by stagecoach.)
That is my favorite example.  It's telling.  The same overall principle should be consistently applied, including when dealing with same sex marriage. Overall concerns, application of precedent, not looking at past history without keeping in mind the vast changes that occurred since then and so forth is a matter of sound judicial practice. Note even Scalia supports stare decisis, even when as a first principle he opposes something.  At the end of the day, the past is suggestive but not the end of the question:
In any event, it is hardly surprising that these early state ventures into the taxation of income included some protectionist regimes that favored the local economy over interstate commerce. What is much more significant is that over the next century, as our Commerce Clause jurisprudence developed, the States have almost entirely abandoned that approach, perhaps in recognition of their doubtful constitutionality. Today, the near-universal state practice is to provide credits against personal income taxes for such taxes paid to other States.
As to Ginsburg's dissent, I won't try to fine tune the question here, since I'm not overly knowledgeable about such tax policy questions. It might be a factor though that her husband was a tax attorney.  The majority's approach does seem "cleaner" as a matter of judicial application by providing a broader rule to apply to all cases.  OTOH, it might be a matter of judicial restraint to give wider freedom to states to formulate its tax polices. This assumes, of course, that the constitutional concerns stated by the majority allows that sort of thing there. Again, interesting case.

Monday, May 18, 2015

"To Have and to Hold: Reproduction, marriage, and the Constitution"

Jill Lepore has an interesting discussion of Griswold and the concern of using privacy instead of equal protection arguments, something that Ruth Bader Ginsburg has discussed. Lepore, as is her wont, finds some interesting historical perspectives and connections. One of the mostly forgotten litigants in the contraceptive cases (numerous cases arose, most stillborn) had a child who later took advantage of the right of same sex marriage in NY.  Mildred Loving supported same sex marriage too.
The Constitution never mentions sex, marriage, or reproduction. This is because the political order that the Constitution established was a fraternity of free men who, believing themselves to have been created equal, consented to be governed. Women did not and could not give their consent: they were neither free nor equal. Rule over women lay entirely outside a Lockean social contract in a relationship not of liberty and equality but of confinement and subjugation. As Mary Astell wondered, in 1706, “If all Men are born free, how is it that all Women are born Slaves?”

Essentially, the Constitution is inadequate. It speaks directly only to the sort of people who were enfranchised in 1787; the rest of us are left to make arguments by amendment and, failing that, by indirection.

The article goes too far for my tastes and I will quote a few sections to touch upon my concerns.  It is quite possible that the fact that men governed at the time was a factor here, but such questions were at the time largely matters of state law. The federal Constitution was largely concerned with the national government.  State laws dealt with these questions.  And, to the degree the Constitution speaks of things, "men" and "women" -- except by use of standard general pronouns -- do not come to play. "Persons" or "the people" have rights.  Women, e.g., can associate together to petition the government for redress of grievances.  And did.
People who want to make arguments against laws that discriminate against women tend to reach for awkward and imperfect analogies: sex discrimination is like racial discrimination; women are to men as blacks are to whites.
Various things in the Constitution factor into reproduction, marriage and related subjects. Religious freedom, for instance, is an important matter here given its power over marriage and morals over history. Criminal protections applied to "persons" and due process of law too factor in here as well.  Interstate relations affected marriage and divorce.  And, so forth.  The Thirteenth Amendment, which the article could have handled better given it has a special domestic component given the evils of slavery, is particularly important. Likewise, the analogy here is imperfect, but "sex" and "race" has various connections. Ruth Bader Ginsburg argued as such.
In the opinion issued by the Court in June, Douglas, citing Harlan’s dissent in Poe, insisted that although a “right to privacy” is not mentioned either in the Constitution or in the Bill of Rights, it is nevertheless there, not in words but in the shadow cast by words. He wrote, mystically, that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” No one mentioned the Nineteenth Amendment, or the idea of equal rights for men and women.
The article quotes someone saying “a right of privacy older than the Bill of Rights” was the language of fiction.  It is argued that it is really a Victorian right, one that benefited men.  But, women spoke in this language in that era too. Their ability to control their lives, including to escape cruel marriages, was a major concern. This "privacy" is therefore not just something for men.  Like rights generally, it was in various cases used to favor certain groups.  But, equal protection alone is not ideal either. Equal protection of what?  Privacy provides an important frame here.
“A right to privacy looks like an injury got up as a gift,” the feminist legal theorist Catharine MacKinnon argued in 1983, since “privacy doctrine reaffirms and reinforces what the feminist critique of sexuality criticizes: the public/private split.” In 1984, Ruth Bader Ginsburg, then on the U.S. Court of Appeals in the District of Columbia, regretted that the Supreme Court had “treated reproductive autonomy under a substantive due process/personal autonomy headline not expressly linked to discrimination against women.” Ginsburg found the Court’s opinion in Roe wanting for a number of reasons; among them was its failure to pay any attention to discrimination against women, or to a woman’s “ability to stand in relation to man, society, and the state as an independent, self-sustaining, equal citizen.”
Feminists still support a strong right to control their own lives based on what individual girls and women deem necessary for their own happiness. Abortion rights has particular important to women and Roe spoke to their needs in particular.  Women were the ones burdened. As gender equality developed as a legal construct, a more complete approach was present as shown in the Casey decision. Incomplete, however, is not the same as denigrating half of the argument.  And, "liberty" is a basic concern here, not just "equality," which again raises the question - "of what?"

The usage of privacy can favor certain groups -- e.g., some who are well off vote Republican, since their social rights are protected by their position, so they can vote by their pocketbook or such things like foreign policy.  It also can result in denial of benefits since you still have the right to choose though the rejoinder there is that to have such a right requires some basic floor of resources. And, in the current day, the Constitution very well might be incomplete.  It is a 18th Century document that is not that updated (e.g., to deal with agencies or real world foreign policy) in various ways.  And, one issue there very well might be some basic needs or domestic concerns that are only covered by broad provisions not directly touching upon them.

The history is useful, but incomplete, and somewhat unfair.