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

Thursday, November 27, 2014

Tuesday, November 25, 2014

Odds and Ends

I saw these "Mixis" dolls praised by a biracial tweeter, noting her niece loved them.  They don't only honor interracial individuals but try to be a more accurate "non-Barbie" representation of actual dimensions. Price also seems reasonable.

Facing the Music: I am reading Jennifer Knapp -- known for her Christian music background and coming out as a lesbian -- now. I'm not to the latter part, but just her early struggles with a broken home, alcoholism, a personal religious path and starting in the music business are handled very eloquently. No co-author is cited and am very impressed with her writing.  Clearly, she can write more than songs! 

ETA: Somewhat germane, and just because it's such a good read (e.g., the author repeatedly speaks of himself as "the undersigned"). The federal judge SSM train comes to Mississippi. It just arrived in Arkansas too, but this effort is of special note, including a series of questions such as "can gays and lesbians love." See more here.

IUDs and Religion: A new Slate article jumping into the Christmas display wars again already flags a 1980s research article finding IUDs are not an abortifacient (it flags Stevens' citation otherwise, but not the pro-choice advocate doing so). The point is useful, since "abortion" is such a scare word, but it doesn't matter on some level for a Hobby Lobby claim -- see, e.g., the religious beliefs of Catholics.  Suffice to say though the one article wasn't some sign of the debate being over -- at least, past research suggests even certain Planned Parenthood fact sheets didn't get the memo.  This is so even if it is basically deemed a scientific fact per today's knowledge that IUDs act as a contraceptive under "life begins at conception" terms.  The point again is somewhat moot since "abortion" is  not usually understood this way, and for many for which it is, contraceptives would violate God's law too.  

The article itself does bring to mind a concern I flagged back when Slate had a fray -- treating religious speech as basically speech is problematic when governmental action is involved. There are religious liberty issues too here and "speech" can neutralize them.  It -- as is sometimes the case -- can do so by cheapening religion in part by suggesting certain claims don't really matter. So, e.g., Scalia is okay with Ten Commandment displays, hand-waving that there are doctrinal differences between various versions. Eh. Trivial difference!  Then again, the separatist wing of the religion is great but render to Caesar only what he is warranted caucus is an uncomfortable one for some.  

Secular Humanism: Also flagged is a recent prisoner's right case that treated secular humanism as a religion.  On some level it's besides the point: 
“I really don’t care if Humanism is called a religion or not,” Greg Epstein, Humanist Chaplain at Harvard University and author of Good Without God: What a Billion Nonreligious People Do Believe [flagged a little while back on this blog], told ThinkProgress. “But if you’re going to give special rights to religions, then you have to give them to Humanism as well, and I think that’s what this case was about.”
Basically, don't call it a religion, you cannot favor other beliefs of a "religious" nature without running into Establishment Clause problems. And, this isn't a "gotcha" for the Right -- the individual here is actually practicing a certain belief structure, one that is not done by the state, e.g., when it separates church and state (which again many deists support) or teach things like evolution. If secular humanism is in effect treated like your personal "religion," there is a "free exercise" right at issue here.

Thanksgiving: Let me prematurely break for the week by saying a few words about the holiday. (1) It's a proper means to give thanks, be with family, celebrate football and so on. (2) Pardoning turkeys, even without Obama's record as to humans here being a problem, is moronic. (3) Thanksgiving has and had some religious aspects, but again isn't just of that nature. In both respects, however, it often was honored as a time warranting fasting and repentance. A full history here is a bit different than, let's say something you'd get from a Spencer Tracy movie


As a liberal sort, I'm a bit wary about the talk that "probable cause" is so easy to meet, grand juries always indict etc., since in most cases, the defendant isn't some police officer who killed a black teenager. Still, the cynicism is at least somewhat warranted in that most grand juries aren't handled like this. This has the look of a public relations gambit, which results in certain "special" defendants getting extra protections outside a normal public trial.

Ferguson Ruling

Grand juries basically (somewhat more than I thought) always bring true bills; an example of a categorical exception was seen last night. It also was atypical as to how long and drawn out the grand jury proceedings were. And, white or black, police shootings rarely are prosecuted. I'm unsure really if this was so very atypical here (some argue prosecutor did a bad job), but that's how cause célèbres often arise -- not just unique events, but ones that somehow are made into one. While I'm safe in my cocoon, some serious blowback is going on.

Monday, November 24, 2014

Coughlin Should Just Resign / What's The Point Any More?

Snow delayed the NYJ game to tonight, which is no longer going to be played in Buffalo (outer edges of playoff race), but the NYG had a chance to play spoiler last night. After a remarkable scoring catch they decided to replay about 10x (sorry, might have only been seven or so) and an eleven point lead, interception Manning showed up, which was the start of the end. It took a Dallas scoring drive after they went up again though to underline the futility.

SNL Obama Executive Order Skit

Though they didn't actually explain how it was wrong, some ridiculed a 'fact check' of the skit, which could have added that the executive order isn't based on air. It is based on existing law and is restrained by it. Satire is open to criticism -- it can be a powerful means of commentary, but also wrong-minded. It is childish, as are many Obama critics, to ignore this.

Saturday, November 22, 2014

Pinups for Pitbulls

You can click the picture for the website; I checked out the book.  The idea is to use pin-ups (the author comes from a modeling background) to help promote the cause of this maligned breed. ASPCA says this:
The reality is that dogs of many breeds can be selectively bred or trained to develop aggressive traits.  Therefore the responsible ownership of any dog requires a commitment to proper socialization, humane training and conscientious supervision. Despite our best efforts, there will always be dogs of various breeds that are simply too dangerous to live safely in society. We can effectively address the danger posed by these dogs by supporting the passage and  vigorous  enforcement of laws that focus, not on breed, but on people’s responsibility for their dogs’ behavior, including measures that hold owners of all breeds accountable for properly housing, supervising and controlling their dogs.  Breed neutral “dangerous dog” laws, “leash laws” that prohibit dogs from running loose off their owners’ property, and “anti chaining” laws can control the behavior of individual dogs and individual owners and thereby help reduce the risk of harm to people and other animals.

Laws that ban particular breeds of dogs do not achieve these aims and instead create the illusion, but not the reality, of enhanced public safety.  Notably, there are no statewide laws that discriminate based on dog breed, and 18 states have taken the proactive step of expressly banning laws that single out particular breeds for disparate legal treatment.  Even the White House has weighed in against laws that target specific breeds. In a a statement issued in 2013, President Obama said “[w]e don’t support breed-specific legislation—research shows that bans on certain types of dogs are largely ineffective and often a waste of public resources. And the simple fact is that dogs of any breed can become dangerous when they’re intentionally or unintentionally raised to be aggressive.”
The non-discrimination sentiment might confuse some readers of the pit bull Wikipedia page  that suggests a certain level of special dangerousness here.  The page also can give you more on the background of the breed, which the book could have did more to discuss. The book is basically a place to find pics of a range of sexy looking women with dogs, provide the author's entry into the pro-pit bull movement, provide examples of precious pit-bulls (more than one thanks, in a matter of speaking to the current QB of the Jets) and some supportive comments.

It's a nice looking table top sort of book that will help promote and fund the efforts of its backers, who have not only posed and looked sexy, but adopted injured dogs, help train therapy dogs, dealt with Hurricane Katrina's animal needs and overall did saintly work honoring "man's best friend" in a variety of ways.

More On Previous Subject

Note: I edited the two posts some over the last few days to add a few details such as an interesting law article by the same person cited by Griswold as writing a previous one on the subject. 

One thing it noted is that rights don't develop simply by a sort of "magic" like miasma was thought to spontaneously develop out of bad air.  They develop over time, often as a result of specific problems that are seen as requiring some sort of solution. This might turn some off, but life is annoying like that at times.  Such was the nature of the "right of privacy" here, which I should note wasn't simply announced by the USSC in the mid-1960s.  This is how some accounts treat the whole thing.

As with the famous law article a few generations before, it was the result of something already in the air, "privacy" particularly various aspects of it, already repeatedly cited in past cases and as generally recognized as existing by society overall. The ruling was a sort of recognition that a "tipping point" arrived, a time to firmly label what was already there. 

A few more words on the last topic. 

Read an interesting article on Douglas' privacy jurisprudence, "Toward a Constitutional Theory of Individuality" that was written in 1978 but retains value. It notes, e.g., that some have argued that Douglas in Griswold narrowed his more "natural law" thoughts as to privacy in part to get a Court to sign on.  Dissents and concurrences can be more open-ended, but as I noted, five justices signed on to concurrences that viewed things in a more open-ended way anyway.  They supported a type of "substantive due process" that honored various unenumerated rights (voting, family life, travel, equality as applied to the federal government).  I don't think Justice Clark's vote -- a person who later wrote an influential article on the right to abortion and even one suggesting in passing personal marijuana use was protected here, both without implying some concern about substantive due process -- required it either. And, the "penumbra" approach, for good or ill,  also didn't really have staying power as seen by Roe's simple citation of due process.

Justice Douglas from time to time continued a concern about substantive due process while finding ways to rule broadly in some other fashion. For instance, his separate concurrence in the lesser known abortion ruling (Doe v. Bolton) insisted Justice Stewart was wrong to call the right to privacy an aspect of "substantive due process," which to Douglas seemed in effect to be a sort of "Lochner-like" red flag.  But, Douglas still managed to draw out a broad view of the "right to privacy" with the constitutional hook ala Griswold something of a hand-wave at some point. Another example would be the Moreno case, which relied on what is now seen as "animus" while Douglas relied on a broad right to association or another where he relied on equal protection over due process with ironic "restraint" concerns.

As the article notes, Douglas comes off as somewhat inconsistent, since his style favors broad strokes, not fully honest admitting of interest balances. See, e.g., this case.  This comes up in general conversation on various issues too -- a favorite example, at times raised as if novel, is the apparent confusion of how lines can be drawn at same sex marriage and not incest or polygamy. Or, how a "right to privacy" is not the same as some open-ended libertarian regime that results in drug legalization or something.  Fact is lines are drawn, in part a result of what is currently seen as appropriate. Many realize this ("I don't mean that!") and law recognizes it, even when written opinions don't necessarily show as much work as let's say a law review article. Thus, no, I'm not going to go along with Kennedy bashing because his Windsor opinion etc. is at times not totally clear on how to apply the rules as much as having a general tendency.  Reasoned criticism is appropriate though that would be true for many a justice's opinion.

Anyway, Griswold, particularly as helped by the concurrences, continues to be valuable. Note, e.g., White's recognition of various cases that protected family life (which he later wrongly failed to see could include homosexuals in his abrupt dismissal in Bowers v. Hardwick, even though he accepted the precedent effect of cases that applied to unmarried sexual relations in general) and how in practice the anti-contraceptive law was applied unequally.  The "penumbra and emanations" language was expressed shortly before in a concurrence joined by three justices:
the protection of the Bill of Rights goes beyond the specific guarantees to protect from congressional [or state] abridgment those equally fundamental personal rights necessary to make the express guarantees fully meaningful.
Since some accounts have Justice Brennan counsel Douglas to expand on his draft opinion, I wonder if he flagged this language.  As noted, Douglas spoke of the general principle with some usage of the word "penumbra" or "emanation" before this, but that phrasing sounds ... to be blunt ... less funny. People ridicule Douglas' phrasing, even though the concept behind it is perfectly mundane. (How far you can go with it is another question.) This shows however that judicial craft matters though again the average person still doesn't care much -- Griswold unlike Roe is safe even from the criticism of many conservatives, though Scalia and Thomas might dissent.

As noted above, when applying the law, current practices will influence the results. This is the case whatever the issue and "liberty," "privacy," "due process," "equal protection" or some other open-ended term is not unique in this regard.  So, in 1986, though Justice Powell originally by accounts I read was willing to vote the other way (and a few years later said he probably should have), an attempt to fit same sex relations in broader rights held  "deeply rooted in this Nation's history and tradition" or "implicit in the concept of ordered liberty" (citing two tests) was deemed "at best, facetious." Putting aside the opinion below, the dissent and others (including then Judge Kennedy) seeing it differently. Others either treated homosexuals differently [see, e.g., this article] or even a range of non-marital behaviors though this was destined to be somewhat short lived, even in some cases conservatives coming around to such things as same sex marriages.

Times change. Laurence Tribe in his oral argument (see Oyez.com) had to deal with dicta in concurring opinions in Griswold that suggested homosexual relations could be treated differently. But, that opinion was before Stonewall, taking homosexuality off the formal list of mental orders and so forth.  By the late 1970s, Justice Powell warned* that open-ended protection of marriage as a component of the right to privacy left open the overruling of barriers based on sexual orientation.  And, the opinion below recognized same sex couples had the general criteria warranting protection.  It took time for more to fight against habit and other assumptions to concur. 

And, this process continues, and will in ways that is a few decades will likely seem as striking as same sex relationships being recognized once was and still is for some.


* There is a tendency toward making same sex marriage a bit more novel than it truly is. I put aside "Boston marriages" of a century ago and a few Baker v. Nelson like claims. Also, some other historical precedents and transsexual issues.  "Marriage" is a collection of things basically (religious, intimate, social etc. in nature) and this is seen in respect to "common law" marriage (in effect, though it no longer is widely recognized, living like man and wife = married even without a license; it is interesting to consider how this applies to same sex couples today).  And, over the years, same sex couples had such criteria.  It was just a matter of recognizing the fact.

Justice Powell's concurring opinion in that case recognizes this:
State regulation has included bans on incest, bigamy, and homosexuality, as well as various preconditions to marriage, such as blood tests. Likewise, a showing of fault on the part of one of the partners traditionally has been a prerequisite to the dissolution of an unsuccessful union. A "compelling state purpose" inquiry would cast doubt on the network of restrictions that the States have fashioned to govern marriage and divorce.
By the late 1970s, coverture already in effect was treated as a violation of equal protection (see, e.g., Reed v. Reed), something that for centuries was deemed a basic part of "traditional" marriage.  Now, it is seen as not really needed for "marriage" to exist, even by many conservatives.  I think Powell's chickens, so to speak, are about to roost here.

Friday, November 21, 2014

Griswold Half-Century

In time for the fiftieth anniversary of Griswold v. Connecticut, The Connecticut Law Review will publish the product of a recent symposium on privacy.  Some, including the author of Lawrence v. Texas (which quoted a separate dissent by Justice Stevens, not the privacy laden dissent of Justice Blackmun, for Bowers v. Hardwick), for a focus on "liberty" in general.  The latter opinion opens, however, with what might be seen as a paean to "privacy," if that word is not confused with "secrecy" or the like:
Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.
"Liberty" is an open-ended term.  "Privacy" provides some clarity on specific interests. When we say "that is private," it can mean more than one thing (a choice is yours to make, e.g., or it can be a matter of intimacy of space or self).  A somewhat obscure case that upheld regulations involving computerized record keeping of possibly sensitive drugs  recognized that the term involved various interests: 
The first is the right of the individual to be free in his private affairs from governmental surveillance and intrusion. The second is the right of an individual not to have his private affairs made public by the government. The third is the right of an individual to be free in action, thought, experience, and belief from governmental compulsion.
Prof. Allen here provides six aspects of privacy. Some accounts of Griswold fail to adequately honor its roots, putting aside that its use of "penumbra" (see, e.g., Justice Holmes' dissenting opinion in Olmstead v. U.S.) was not unique.  Douglas first firmly honored a "right to privacy" in a dissenting opinion [note how even the majority opinion at least opens up the possibility of "the privacy to which he is entitled in his own home," but however "complete his right of privacy may be at home," the case involved public transportation] over a decade before, arguing that the "liberty" protected by due process includes privacy, in fact that the "right to be let alone is indeed the beginning of all freedom." This shall we say structural claim was reaffirmed in his dissenting opinion, which was more expansive than his opinion for the court in Griswold, when the Supreme Court avoided deciding the merits of the question in Poe v. Ullman:
"Liberty" is a conception that sometimes gains content from the emanations of other specific guarantees or from experience with the requirements of a free society.
As with the majority opinion in Roe v. Wade largely only summarizing privacy rulings without doing more -- as seen as quite possible if we look at the two main concurrences -- it is unfortunate that Griswold did not spend more time to flesh out the particulars. We are left with later opinions basically summarily assuming things when some more legwork would be useful.  The material is there.  Thus, e.g., Griswold does little but raise the specter of usage barriers resulting in the violation of marital bedrooms. The overbreadth concern is valid but summarily expression. Cf. Poe:
If it can make this law, it can enforce it. And proof of its violation necessarily involves an inquiry into the relations between man and wife. That is an invasion of the privacy that is implicit in a free society.
Justice Harlan's dissenting opinion in this earlier contraceptives case is even more expansive and is a favorite source of quotation, including its discussion of the developing nature of what legal types called "substantive due process" over time.  It too points to the problem with usage bans:
Precisely what is involved here is this: the State is asserting the right to enforce its moral judgment by intruding upon the most intimate details of the marital relation with the full power of the criminal law. Potentially, this could allow the deployment of all the incidental machinery of the criminal law, arrests, searches and seizures; inevitably, it must mean at the very least the lodging of criminal charges, a public trial, and testimony as to the corpus delicti. Nor could any imaginable elaboration of presumptions, testimonial privileges, or other safeguards, alleviate the necessity for testimony as to the mode and manner of the married couples' sexual relations, or at least the opportunity for the accused to make denial of the charges. In sum, the statute allows the State to enquire into, prove and punish married people for the private use of their marital intimacy.
Griswold's brevity has its charms, however, since it provides a more open-ended possibility, particularly when it no longer is limited to its marital aspects.  The case is only specifically about marriage -- it is in that a relatively easy case -- but more broadly speaks of "privacies of life" and so forth.  Nonetheless, there is a value in providing a somewhat careful analysis of the specifics of the case.  Let's not pretend, however, that this is always done or that people in general really often care.  The average person doesn't read court opinions, more concerned about results.

Still, details and careful analysis provides value, and well crafted opinions and legal thought involve such things.  I do wish Roe and Griswold had more of that in some respects though both -- along with other privacy cases -- deserve more respect than some give them.  For instance, a full third of Douglas' Poe dissent addresses the First Amendment aspects of the case, birth control advocacy and counseling for years a forbidden subject. The matter is not much covered in Griswold, except to the degree that the counselors here are found to have "standing to raise the constitutional rights of the married people with whom they had a professional relationship."

Anyway, note the usage of the word "emanations" above.  The specific example provided there is the right to association -- it is not expressly found in the Constitution, but it was assumed to be protected as a means to promote First Amendment principles.  There is a right to "assembly," but that is not quite the same thing. "Assembly" suggests a temporary association of people at a rally or some such. An "association," with  privacy of membership lists and so forth honored in some opinions, is a more complex animal.  The matter arose in particular at this time in respect to investigations of certain groups, including as to the breadth of the right of Congress to investigate individuals. See, e.g., Watkins v. U.S., which spoke of "the individual and personal interest in privacy." Such concerns were raised as far back as the late 19th Century (opinion of Douglas) in a similar context.

Griswold shows how enumerated rights in effect have an implicit "necessary and proper" aspect akin to a fence protecting property or some amount of personal space around an individual. Sticking a finger two inches from one's face might work as "I'm not touching you" when an annoying sibling is involved, but not in law.  As the opinion notes in respect to expression -- "right to distribute, the right to receive, the right to read and freedom of inquiry, freedom of thought, and freedom to teach" -- is involved.  Douglas cites a "penumbra" (type of shadow) of privacy being in place here. The same can be said regarding religious freedom -- the freedom of conscience is an aspect of privacy.  That is, something personal, not "public" for the government and others to invade.

Thus, the opinion argues that there is an overall constitutional right to "privacy" that is necessary to truly protect First Amendment rights.  The litigants spent more time defending an independent liberty interest in marriage (Justice White separately simply relied on such precedents), which required the state to more carefully defend the law here.  But, the majority saw this as an appeal to disfavored substantive due process cases that "touch economic problems, business affairs, or social conditions" that should be usually left to the legislature. The specter of Lochner was raised. Privacy, a sort of back-up argument, provided a way around this problem.  Justice White simply noted past cases showed that matters of family life were treated more carefully than economic matters.  And, given the breadth of a term like "social" etc., which the dissent here felt covered just this case, line-drawing could be tricky. See, e.g., later cases that involved the sale of contraceptives or zoning issues (cf. Douglas majority opinion and dissent of Marshall).  

The opinion continues down the list of the Bill of Rights, citing the Fourth Amendment, noting in a footnote that a key precedent here stated that "it is the invasion of his indefeasible right of personal security, personal liberty and private property" that is the "essence" of the protection, not merely some property interest (cf. Scalia's opinion in U.S. v. Jones). And, "privacy" was repeatedly noted as being at stake in various previous opinions of the Court here.  The Fifth Amendment is mostly merely cited here along with the Third (cited by the dissents in Poe too) and Ninth (left for a concurrence to analyze) though cases like Murphy v. Waterfront Commission could have been cited and its statement that the Self-Incrimination Clause in part honors "our respect for the inviolability of the human personality and of the right of each individual to a private enclave where he may lead a private life." 

Justice Harlan in Poe covered this same ground, again with more meat -- when dealing with "liberty" under the Due Process Clause, mere property interests in a home weren't the only thing at issue.  Family life was as well and again various opinions recognized this. Douglas here cited one -- Skinner -- though there is no suggestion there some "penumbra" of the Bill of Rights is involved. Harlan is correct to note that appeal to the enumerations of the BOR only takes us so far, since "liberty" means more, but Douglas does provide value in showing how "privacy" can be see as necessary to truly honor the rights specified. But, as spelled out by Justice Goldberg (with an assist from his law clerk, Stephen Breyer), merely because a right is not enumerated should not mean we should disparage it.  And, again, Douglas didn't limit himself to specific enumerated rights previously either -- ironically, Griswold attempts to be more restraining.

The opinion as noted above also is somewhat strangely -- Douglas' slipshod nature and laziness in opinion writing is not too surprising overall -- slim in nature given he could have simply flesh things out based on what he wrote in Poe v. Ullman or even past off court writings.  Two law articles were cited.  [A later exploration of the issue by the author of one of them can be found here with various insights, such as the way rights develop -- see, e.g., FN8 and surrounding text.] For some reason, though he honored it elsewhere as did the Court itself for this purpose, he didn't cite Brandeis' famous Olmstead dissent defense of privacy.  In Poe, he cited Warren and Brandeis' famous privacy article, to help show the development of the idea of a right to privacy.  Again, the Harlan dissent in Poe shows more material was out there too among various cases honoring a right of privacy.**

Since it is a sensible principle not to go further than one needs to, showing how privacy can often be seen as necessary to uphold specific enumerated liberties such as speech, religion or the private areas specified by the Fourth Amendment has its value. Again, one might want him to do more to flesh out such discussion.  But, especially if we look at the concurring opinions (covering five justices) and later opinions, the "liberty" here goes further. It also, citing an opinion Douglas includes, covers not only personal rights but a means to authorize governmental power:
All declare for liberty and proceed to disagree among themselves as to its true meaning. There is equal unanimity that opportunists, for private gain, cannot be permitted to arm themselves with an acceptable principle, such as that of a right to work, a privilege to engage in interstate commerce, or a free press, and proceed to use it as an iron standard to smooth their path by crushing the living rights of others to privacy and repose. This case calls for an adjustment of constitutional rights in the light of the particular living conditions of the time and place. Everyone cannot have his own way and each must yield something to the reasonable satisfaction of the needs of all.
At issue there was the regulation of door-to-door salesman, but the same can arise with "do not call" registries and the like.  Privacy is an interest that can be protected against from non-governmental invasion as seen in tort law, which in large part is where the "right to privacy" first developed. A tricky case here would be libel law -- in Time v. Hill, e.g., the liberals split, the dissent arguing that it was proper in that case to regulate the press in such a way to protect the privacy of the family involved.  Stricter rules are in place to prove libels when public figures or matters of public concern are involved. Regulation of sound trucks and the like already by that time also recognized a right to privacy that justified regulations even with speech.

Douglas was more correct the first time -- liberty at times can be defined by specific provisions but also other ways.  The current same sex marriage debate is in part based on the freedom to marry, something that is not simply an emanation of the First Amendment or something, though the rights there clearly factor in here.  Thus, you can -- as the usual account says Douglas did before expanding his Griswold opinion a bit (given its brevity, hard to imagine how shorter it was originally) -- see this as a matter of intimate association arising out of the First Amendment.  But, marriage was seen as time honored "liberty" (see, e.g., Meyer v. Nebraska in the 1920s) that went beyond that.  All the same, even here, specific guarantees highlight particular concerns (e.g., religious upbringing of children).

I look forward to reading the symposium's results -- there is so much here, such richness of material to cover and contemplate.  After all, the Heller opinion even suggested the right to keep and bear arms is particularly strong in the home and to defend oneself.  Douglas was no fan (dissenting opinion) of this view of the right, but the Second Amendment could have been included -- see, e.g., the dissenting opinion in this ruling.


* Douglas does return to the matter in a later case, which he separately would have also treated as a First Amendment case though the majority treated it as an equal protection matter regarding birth control and the unmarried. The case involved a birth control advocate handing out contraceptives at a speech, which raises interesting questions regarding speech and action that the  majority ignored.

The majority also is an example of use of precedent to expand privacy rights -- birth control is no longer only for the married or the bedroom -- with a few sentences and quotations. It is somewhat striking how few times an in depth discussion is provided with that largely left to concurring and dissenting opinions.  Again, to avoid assumptions, not saying this is unique necessarily in this context, but as an observer, it is still a bit striking and rather unfortunate.

** None of the opinions in the two main contraceptive cases cited here did much to talk about the Third Amendment, mostly cited as an example of where privacy is explicitly honored in the Constitution.  Douglas in Poe deems it obvious if the Constitution is going to honor privacy in that limited fashion, it must "also bar the police from investigating the intimacies of the marriage relation" without suggesting perhaps the BOR simply is concerned with particular violations of privacy here.

It would be easy, if desired, to discuss the background history here and show how the amendment did have a privacy aspect, along with a concern with the separation of the military from the civil power.  Anyway, Douglas' assumption aside, he along with Harlan felt the protection of "liberty" went beyond the enumerated restraints of the BOR anyhow.  This is as it should be, especially with the Ninth Amendment's reminder.

Thursday, November 20, 2014

Obama's Immigration Speech

I am wary about speeches but Obama's comments on his executive action on immigration tonight was reasonable mixed with an appeal to principle, including religious values. It is legal and consistent with past presidents. The reply from some, including leadership that failed to act on a bill that past the Senate, is overblown b.s. when it avoids being simply offensive and racist. Thanks Obama and you know "fu" to unhelpful hateful trolls.

The Wonderful Wizard of Oz

Don't know if I ever saw the whole movie, but finally did read the book. It is a pretty impressive effort, note it was written back in 1900, and putting aside some violent parts (e.g., killing a bunch of wolf-like creatures), stands up pretty well. It creates a special world of imagination and slyly teaches about things like true intelligence (Scarecrow, e.g., repeatedly shows he is pretty smart). My copy has a recent introduction, but the book as a whole is in public domain, if only between between 1960 and 1986 per earlier laws.

"The Gag Rule of Five?"

See here. The article highlights the "courtesy fifth" issue in stays, but has more on transparency in general. Page 320 at the "confirmation link" covers that issue. Also, there is pushback from Roberts since he was only serving as an advocate. Yeah. Serving in a presidential administration like that is sorta a flag on your true beliefs be it him or Kagan.

Wednesday, November 19, 2014

Landrieu Keystone Pipeline Bill Filibustered

Sen. Landrieu, who supported the pipeline for some time, pushed for a stand alone vote in part according to analysts to help her apparently doomed run-off election or perhaps as one final swan song that might also help her past-Senate lobbying career.  The blocked vote (by one) still might have helped her, it in part by now a symbol for both sides (pro and con, environmental or Democrats in general) far beyond its immediate effects

A transcript of Naomi Klein's segment can be found here and with it is a statement from Obama that is negative as to its value:
My government believes that we should judge this pipeline based on whether or not it accelerates climate change or whether it helps the American people with their energy costs and their gas prices. And I have to constantly push back against this idea that somehow the Keystone pipeline is either this massive jobs bill for the United States or is somehow lowering gas prices. Understand what this project is: It is providing the ability of Canada to pump their oil, send it through our land down to the Gulf, where it will be sold everywhere else. And it doesn’t have an impact on U.S. gas prices.
He has dragged out things here, even if I'm unclear if he ever gave a firm "no" on the matter. I guess we will see if he will get a chance to veto legislation in the next Congress or if a filibuster will hold there, especially since one of those votes was from a retiring lame duck due to be replaced by a Republican.  Few Democrats generally labelled conservative voted against it though Sen. Feinstein did, suggesting every vote counts and those who see little use for Landrieu might be a tad shortsighted. 

There was pushback on even having the vote from some on the left, but in hindsight it seems to work out pretty well. The message is that Landrieu is something of an outlier, helping her somewhat I guess, while the Democrats as a whole appear both loyal to a member of their caucus (though in a somewhat token way -- their campaign committee isn't much for, e.g., helping her with funds)  but still pro-environment. At least, that can be how things are framed and that is ultimately the bottom line if we go by results.  A holding action is a win the next two years.

A final word. I have, perhaps wrongly, not been that informed about this issue, partially since it never was totally immediate (the final okay) though as a general matter I would have avoided it if possible -- it's one of those things where I follow a precautionary principle and opposition is a red flag. I'm still wary about it clouding out everything else -- Obama did do some good overall in pushing for green policies -- overall I'm with the Democrats as a whole here. It looks like a bad idea.