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

Friday, March 16, 2018

Ethnic Weekend (March 17-19)

St. Pats (Irish), St. JP (Irish/Italian mutts), St. Joseph's (Italian)

Thursday, March 15, 2018

Film Quickies

Online reading leads me to various writings (enough!) and video. The Cats Of Mirikitani (good vignette) and Hiroshima mon amour (overall good with interesting DVD interviews but the flashback to me went on too long/laid on a tad thick) being two recent ones. My foreign film at a small theater pick this time was The Insult, which was good too, but a bit unbalanced (each being a victim/in the wrong adds much to the point) between the two main characters. The courtroom battle of small battle reflecting bigger ones has a familiar feel.

Tinker tinker: Nitrogen Gas

Some, including Justice Sotomayor in her Glossip dissent, have voiced the idea that the firing squad might be the best approach for executions. Now that lethal injection for various reasons is problematic, nitrogen gas is offered too. As noted in the article and comments there, this leaves something to be desired. But, maybe THIS method will be okay!

Tuesday, March 13, 2018

Yick Wo v. Hopkins

Their motives, considered as the moral inducements for their votes, will vary with the different members of the legislative body. The diverse character of such motives, and the impossibility of penetrating into the hearts of men and ascertaining the truth, precludes all such inquiries as impracticable and futile. And in the present case, even if the motives of the supervisors were as alleged, the ordinance would not be thereby changed from a legitimate police regulation, unless in its enforcement it is made to operate only against the class mentioned; and of this there is no pretense.

 -- SOON HING v. CROWLEY (1885)
This was a unanimous opinion written by Justice Field, who was the most suspicious of property regulations, only a year before the subject of this week's episode.  This case is of some importance both as a moment in time [the win was something of a positive in a sea of inequity] and for various principles that later had more bite, but one that many probably knows less about than most of the others in the two series. The two guests, including an Asian woman professor and Josh Blackman as the conservative leaning representative, provided a good discussion.
Class legislation, discriminating against some and favoring others, is prohibited, but legislation which, in carrying out a public purpose, is limited in its application if, within the sphere of its operation, it affects alike all persons similarly situated, is not within the amendment.
The Supreme Court unanimously held for Lee Yick ("Yick Wo" was the name of the business) and its language provides various interesting sentiments with potential broad reach if desired.  A basic problem is that there is not a neutral rule that is applied to all. The policy in place gives supervisors general power to allow or disallow use to wooden buildings, which invites and in practice was found to involve discriminatory treatment.  The Fourteenth Amendment protects "persons" against that, which includes aliens, especially Chinese ones protected under treaty.
Though not regarded strictly as a natural right, but as a privilege merely conceded by society according to its will under certain conditions, nevertheless it is regarded as a fundamental political right, because preservative of all rights.
The opinion, basically the one thing we remember Justice Matthews for (he did write Hurtado v. California, an important opinion regarding the Due Process Clause), reminds us that there are limits to government, "fundamental rights to life, liberty, and the pursuit of happiness, considered as individual possessions." The quoted passage later was significant in voting rights cases though even this one cited a state case that struck down a regulation deemed overly restrictive of voting rights.  The opinion did not do so, but the fact aliens (in fact those by federal law at one point not able to become citizens) are involved without recourse to voting might provide a greater grounds for court action.  See, the famous "Footnote Four."

The "Lochner Era" was not quite upon us but there was already starting to be a basic flaw -- regulations had to be "reasonable." This case was a well chosen one to show that this had to have at least some bite. The petitioners and two hundred others (Chinese subjects) were denied licenses while white owned laundries (eighty) were not.  Thus, even though the letter of the law was not discriminatory, it was applied with an "evil eye and an unequal hand."  The principle holds in other cases too including (to quote one of the guest's work) those treated like "alien citizens," that is, American citizens denied equal protection. 

It was suggested that this was really a property rights' case though we saw in the beginning that property regulations were given a broad breadth. Discrimination of Asians -- particularly immigration laws, this era one where the power was more and more found in the federal government -- was also generally upheld though there were exceptions. Wong Kim Ark protected birthright citizenship, even if the parents could not be naturalized under the laws in place.  A California case also at the very least provided a right to an education though soon it was of the segregated kind.

Such cases suggest that even if an era deemed today to have not honored personal rights provided certain limits. The Fourteenth Amendment still had some teeth.  Plus, the basic principles protected, that recognition of a certain floor, provided a germ for more. This case was specifically a race case but the ban on arbitrary class legislation was set forth more generally. The arbitrariness here was rather obvious but again the principle could hold for somewhat closer cases.  For instance, homosexuals can gain protection against open-ended power to regulate morals that in practice is done in an arbitrary way against certain groups. 

And, the importance of voting rights holds true, even if some "right to vote" is not expressly found in the federal Constitution. Thus, e.g., when being concerned with "liberty," limits on voting in particular would be of fundamental importance since it is necessary to protect rights in general. Nonetheless, there is some floor for "persons" even without the vote.

Sunday, March 11, 2018

Trump's Second Pardon: Less Asshole, Still FOX News Fodder Trolling

The "pleased" comment here to me is near trolling though I respect the person overall. I discuss the case some in comments; basically military personnel got caught (apparently not for nefarious reasons) with classified photos via an abandoned phone and then tried to cover it up. Got a year (he has been out for months) and supervised release. Not exactly a rank injustice or something. Oh, allowed Trump et. al. to do Hillary trolling. Minor if notable Trump use of power that is getting the expected "kudos" from usual suspects.

Saturday, March 10, 2018

Florida Passes Gun Regulation Law

The sweeping and bipartisan law is named after Marjory Stoneman Douglas High School in Parkland, Fla., where a former student, Nikolas Cruz, was charged with launching the massacre on Feb. 14. The law imposes new restrictions on firearm purchases and the possession of “bump stocks,” funds more school police officers and mental health services, broadens law enforcement’s power to seize weapons, and allows certain staff members to carry guns in schools.
Another school shooting has this time brought some sense of a movement from the kids (teens) themselves and Florida (Dave Barry is not alone in talking about how libertarian their gun policies are) actually did pass a significant package of gun regulations that should not be lost in other news. With talk of a possible meeting of Trump with the leader of North Korea (how about confirming a South Korean ambassador) and Stormy Daniels NDA news, there is obviously a lot to keep our attention elsewhere.

To add to the summary, the last link provides more details such as that potential gun purchasers "would have to wait three days, or until a background check is completed, whichever is longer" and a 21 year age limit for purchases.  The most controversial provision is likely the limited funding of a program that would voluntarily allow non-teachers (aka librarians, coaches and the like) to be armed.  The most unfortunate was probably the failure to improve the background process. Failure to ban high-capacity magazines or specific types of weapons (even for a short period of time) is probably sadly predictable.  This is Florida.

The NRA has already challenged the latter barrier and litigation also has been started pursuant to state age anti-discrimination laws regarding certain stores announcing a similar policy.  To the extent a state has a broad anti-discrimination provision explicitly based on age, seems like a slam dunk. As to the constitutional argument, I think it is fairly strong.  Eighteen has been the line drawn in a range of contexts, including the Eighth Amendment area regarding capital punishment and LWOP.  And, constitutional rights include a right to purchase. See, e.g., birth control.

This is likely to be a tricky matter.  The lower courts have (in part following Heller's lead) accepted a range of regulations, including bans on certain types of weapons, limits on carry outside the home and regulations involving sales.  Nonetheless, this is a broad ban on law-abiding adults. Voting before the amendment giving this group the right to vote was specifically addressed by the second section of the Fourteenth Amendment.  Was the line for marriage ever drawn at 21?  The federal government limits sales to this group only as to handguns, which given the result in Heller actually seems a bit dubious. A complete ban? Worse.

The law in place would still allow family members to give guns to minors and so forth.  I'm not sure how much "facilitation" is allowed here and can figure (see alcohol) there would be ways around it fairly easily with the help of willing adults.  Big picture, some would say (and some Florida legislators did) the true goal should be stopping the flows of certain types of guns overall.  Sen. Marco "can't believe you re-elected this schmuck" Rubio warned such a ban could be open-ended.  Others say "duh."

And, there is some evidence (a Washington Post article covered this, for example) that a federal ban of certain types of so-called "assault weapons" (terminology is a gotcha for certain "gunsplainers") did have some effect on mass shooting.  A glance at some Rand analysis shows that proof is hard to come by, which provides a recommendation to increase gun studies.  Sounds like ending the Dickey Amendment might make sense though there is this study for those who want to read something while we wait.  BTW, the Rand site includes an analysis of various policies and research that backs them up.  There is "moderate" evidence there.  This along with the fact it is a place for common ground leads me to find it a most promising area for public policy.

I honestly am not sure about the best solutions here though a few things like background checks, safety tools [child access prevention gets high marks on the Rand research analysis page], funding and concerns over stand your ground laws appear most convincing to me. As to the last, one writer, e.g., noted how stand your ground changes the basic sense of how we should interact with each other. I'm open to some doubt on bans of certain types of weapons but on a basic level why do we need them, including high-capacity magazines? A big problem here is there are so many of them.  There is simply no easy way to get rid of them. Finally, I want to know why there was an uptick on mass shootings.

A few other things also appear worth noting. First, a major source of deaths here are suicides.  This often doesn't get the same play as shooting a lot of schoolchildren (it is not surprising or wrong that killing kids and so forth get so much attention even if they are a statistically small number of overall deaths). There is some concern with singling out "the mentally ill" (only a small submit are dangerous; the term can cover a whole lot of people) when dealing with mass shootings, but this is a separate matter.

Second, a major issue is crime in general.  So, e.g., dealing with the drug problem very well might significantly decrease the number of gun deaths, including various tragic cases. One person cited a local policy that used various strategies to keep track of the small subset of the population more likely to be violent.  Domestic violence is one area as well that is specifically covered in current laws and providing special dangers in this area. Dealing with the issue as a whole can reduce gun violence specifically.

Finally, there is things specific to our culture that matters here, not limited to the fears and so forth that inhibit sound regulation.  Reading a recent book on the film High Noon (which also was about the blacklist) highlights the place violence has in our culture, including the role of the gun there. A limited number of people have the majority of the guns (beyond let's say owning a handgun or rifle, some have many of them) in part from fears of various types and other ideological reasons and so on. 

As with cigarettes, they is likely a need for a certain cultural change in mind-set here. We need to on some level glorify guns less and have a bipartisan understanding that some limits are acceptable. One person, e.g., obtained guns from his mother, who had some sort of armory in her home. The result was she was killed as well as a bunch of school children. It is basically immoral to have so many guns in a location where there is even a small chance of misuse.  No panaceas are available here, of course.

Wednesday, March 07, 2018

A Fantastic Woman (and film)

The NYT review of this is on point including: "Marina insists on her own dignity — her basic rights to respect, safety and the pursuit of pleasure — in the face of condescension, indifference and contempt." The lead [she basically carries the film though the man she loves shines in his limited playing time] deserved a nomination herself. Nice to see Angelika again.

And Also: Housing Works shop nearby. Library too but closed early with the snow muck. Also, really liked film but perhaps small demerit as to mostly one note supporting cast -- great movies tend to have multiple very good roles. Again, she mostly carried film.

Tuesday, March 06, 2018

Civil RIghts Cases

It is true that slavery cannot exist without law, any more than property in lands and goods can exist without law, and, therefore, the Thirteenth Amendment may be regarded as nullifying all State laws which establish or uphold slavery. But it has a reflex character also, establishing and decreeing universal civil and political freedom throughout the United States, and it is assumed that the power vested in Congress to enforce the article by appropriate legislation clothes Congress with power to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States, and, upon this assumption, it is claimed that this is sufficient authority for declaring by law that all persons shall have equal accommodations and privileges in all inns, public conveyances, and places of amusement, the argument being that the denial of such equal accommodations and privileges is, in itself, a subjection to a species of servitude within the meaning of the amendment.
This week's Landmark Cases episode concerns five cases that are generally labeled the "Civil Rights Cases," which held sections of the Civil Rights Act of 1875 unconstitutional as applied to public accommodations.*  The two guests were well spoken though did not seem particularly expert on the specific question.  A tweet of mine regarding wondering what would have happened if the case went the other way and then Congress (the law controversial from the beginning) overturned the law was cited on air.

One curious thing about these cases -- which to many seem badly decided** (though the Republican guest agreed with the majority) -- are basically good law.  The general idea that Congress does not have the power under the Fourteenth Amendment to regulate "private" action (even public businesses) is still good law -- e.g., U.S. v. Morrison.  The Supreme Court upheld using the Commerce Clause with a few justices agreeing with Justice Harlan's dissent and saying the Fourteenth Amendment should be used. The trick there though is that we would then need to know how much it is about "enforcement," which to some extent goes beyond what the amendment bars by its own force. So, e.g., Congress barred literary tests in various cases [and the Supreme Court upheld it] even after it was determined that literacy tests are not by unconstitutional in general. 

The majority here left open the Commerce Clause route, Congress only taking them up on it around eighty years later. Harlan noted that if there was a power to pass the regulation, why did it matter if Congress expressed it the wrong way?  This, however, is often the case -- the Supreme Court says a certain approach is wrong, but doesn't close off doing the same thing in a different way.  Anyway, I think Harlan has the better argument on the "public" nature, particularly transportation and inns, which historically had had to take all comers. The connection to interstate commerce is most apparent there. Would think there was room for compromise there, excepting places of amusement and maybe certain intrastate actions. As to places of amusements, Harlan argued:
My answer is that places of public amusement, within the meaning of the act of 1875, are such as are established and maintained under direct license of the law. The authority to establish and maintain them comes from the public. The colored race is a part of that public. The local government granting the license represents them as well as all other races within its jurisdiction.
The majority feared the congressional approach here would eat the rule, wondering where there was a limit if it went beyond mere "corrective legislation."  It was even willing to assume for sake of argument that there was a right to equally enjoy public accommodations. But, and Harlan correctly shows how artificial this formalism was, the law here covered discrimination not "sanctioned" by the state. In a couple weeks, we will see that the Supreme Court will allow that if it is "separate but equal."  And, the majority in particularly dubious passage was worried about blacks being a "special favorite of the laws" if "badges of slavery" was taken this far.  They did (see opening passage) give the Thirteenth Amendment something of a broad breadth:
Compulsory service of the slave for the benefit of the master, restraint of his movements except by the master's will, disability to hold property, to make contracts, to have a standing in court, to be a witness against a white person, and such like burdens and incapacities were the inseparable incidents of the institution. 
And, it even conceded that barring blacks from certain places might have been influenced by fear that it would allow slaves to sneak in too. But:
There were thousands of free colored people in this country before the abolition of slavery, enjoying all the essential rights of life, liberty and property the same as white citizens, yet no one at that time thought that it was any invasion of his personal status as a freeman because he was not admitted to all the privileges enjoyed by white citizens, or because he was subjected to discriminations in the enjoyment of accommodations in inns, public conveyances and places of amusement. Mere discriminations on account of race or color were not regarded as badges of slavery.
Laying things on a tad thick. What are these "essential" rights, even if we (rightly) deem Chief Justice Taney's "no right" rhetoric in Dred Scott exaggerated?  I think "some one" would deem there was said "invasion" and that such barriers were in a core fashion a result of slavery -- white and blacks were seen as in some special respect different, blacks so inferior that it was acceptable to allow many states to enslave them.  The separation of the races did not arise out of mere social distaste or something.  It grew from blacks being enslaved and this set up a range of different treatment. Regardless, the Fourteenth Amendment was in place to provide a wider source of power to protect civil rights.

Again, there has been some staying power here -- the Rehnquist and Roberts courts have multiple opinions cautioning us that the Reconstruction Amendments (the Thirteenth not getting much attention though some would argue for its open-ended use in a range of areas) should not be taken too far. This particularly involves the enforcement in areas outside of race where the Commerce Clause won't work [e.g., discrimination against the disabled when state workers are involved]  and even there -- Shelby v. Holder.  There has to be a "congruent and proportional" fit, it has to be true "corrective" (to cite the majority here) legislation against state wrongs.

It is also a bit ironic that John Harlan's grandson was in various was more conservative then he was. For instance, the "great dissenter" (both were in a fashion) also was an early supporter of incorporation of the Bill of Rights (even of the Grand Jury Clause, still not incorporated) while his grandson strongly was against that sort of thing. Harlan -- showing his Whig roots -- supported a broad discretion of federal power as long as it reasonably follow the "substance and spirit" of the text -- honoring McCulloch v. Maryland.  This led -- though he did honor property rights in various cases -- to write the main dissent in Lochner v. N.Y. as well, one that deserves a bit more notice beyond Holmes' more famous one.

Harlan counseled a consistency -- he noted how the Fugitive Slave Clause was protected by express congressional legislation, positive legislation that enforced what arguably could only be enforced by state action. It would be ironical not to equally allow Congress to give full expression to the Thirteenth and Fourteenth Amendments that in Harlan's opinion broadly assumes equal citizenship as to race. Harlan does not share the majority's fear of unlimited congressional legislation since at the very least the amendments protect racial equality. It is the basic of "republican" government and not mere "social" rights.
What I affirm is that no State, nor the officers of any State, nor any corporation or individual wielding power under State authority for the public benefit or the public convenience, can, consistently either with the freedom established by the fundamental law or with that equality of civil rights which now belongs to every citizen, discriminate against freemen or citizens in those rights because of their race, or because they once labored under the disabilities of slavery imposed upon them as a race.
His wife's memoirs was published some years ago with the help of Justice Ruth Bader Ginsburg.  One vignette involved her role to assure that her husband retained Chief Justice Taney's inkwell, which he planned to give to someone else.  He was apparently having writer's block while writing his dissent, but was inspired when he found the inkwell his wife left for him.  A cute story, but does reflect how Harlan in the dissent did see the whole story of slavery, including the true breadth of Congress' power to do away with all of its badges and bring forth true constitutional equality. 


*  The act also protected service on juries, which the majority notes was deemed constitutional beforehand since juries are creatures of the state.

** This follows a general theme that the amendment was underenforced in the years after Reconstruction, including allowing segregation and not applying the Bill of Rights to the states.  But, maybe this should not surprise. Did not the Bill of Rights get similar treatment -- see, e.g., the Alien and Sedition Acts and how it so rarely arose in Supreme Court cases in the early years though examples can be cited especially in the states.