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

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 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.

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. 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.  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.

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* 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.

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.

Tuesday, November 18, 2014

Justice Souter on the Importance of Humanities

“What the humanities and social sciences have to teach us is the variety of truth, the provisional nature of conclusions, the sources of illumination from people of other backgrounds and other perspectives,” he said, “and the magic that can occur when they are combined.” Hope semi-retirement (hears occasional appeals) is treating you well.

"Lawyers Ask For Clemency For Missouri Inmate Set To Be Executed Tonight"

A black man sentenced to death in Missouri for a robbery homicide (chance saved the life of a child) was refused final appeals today on concerns about an all white jury (no dissents) and the usage of drugs/secrecy (four justices dissent, again without comment -- it's time guys). An earlier judge applied sentence of death (the jury, then with blacks on it, hung 11-1 on that issue) was earlier reversed on appeal. Update: Executed. Four justices of the USSC felt he should not have been, at least yet, but didn't deign to say a word on why. This is wrong.

"Women’s Equality: Not a Radical Idea"

A ruling on a religious claim against the contraceptive benefit in ACA is telling on multiple levels as discussed at those two links.  

First, the very judge who wrote the opinion was one of the controversial picks of Obama that could only be confirmed by ending the filibuster for executive appointments.  A modern day RBG, Nina Pollard was a professor who was an experienced advocate including in many USSC cases.  RBG was appointed to the court of appeals in 1980 (an election year) without judicial experience.  She was if anything more of a feminist icon, leading the new ACLU division on women's rights.  But, things are more conservative now, and a simple majority was not enough.  Pollard went thru 51-44.

Second, the opinion itself is important since it carefully (being bound by Hobby Lobby) shows that this claim was a step too far, any tangential burden not enough. Also, the opinion spends pages to explain the compelling state interest behind the provision, something the plurality (on this point) in HL only assumed.  Thus, we have another important "brief for Kennedy" provided for via an eighty-five page appellate court decision.

I remain having a mixture of emotions, all bad, that this is a controversial matter.  The importance of contraceptives coverage (and abortion, even if precedent allows rank discrimination on the point)  on gender equality and women's health should be obvious. Also, providing a benefit also furthers free exercise, so such questions can rest on individual choice, not what is financially possible. Finally, once the government allows an exemption, even a requirement to fill out a form should not be deemed a substantial burden.  Some tangential connection will not do it either. 

A final personal note. It is time to renew health insurance under ACA and a little screw you to New York for not alphabetizing the providers in a long pull down list, which is not the only somewhat confusing part of the process. There will be bugs, especially early on.  Only one national party (some state Republicans are not trolls at times here) cares to address such things without denial of care overall, even if the Democrats do so imperfectly. And, as to the religious exemption thing, I actually know someone whose employer falls under that rubric. Plus, the very provider I chose turns out to be a Catholic one!  So, I have a personal stake here.

"6 Ways Religion Does More Bad Than Good"

There are problems with "religion," good comes with bad, but putting aside other things have some of these issues (e.g., tribalism), it is more certain religions. Blind faith, opposition to interfaith efforts etc. is a problem with some religions. The comment thread has some over the top comments about how "religion" is horrible. I have images of some liberal minister in a sweater or something here & feel compelled to say "um wait a bit."

Still Amuse Me? "It Kinda Does"

Show continues to be great, even on repeat viewing.

Sunday, November 16, 2014

Heather Has Two Mommies

I recently read the book Jailbait, a teen fiction book about a girl who has a relationship with an older man in 1971 (about the time the author would have been that age), and it turned out to be the author of the above book. Never having read it -- it came out long after I was a child and let's just say my mom* wouldn't be the sort who would have bought it even if I was (as I was not) a big reader of children's books at a young age (still unlike many at my grade school, I already had a library card when we went to the trip there) -- it was placed on the reserve list.

If you go to the Amazon page and read reviews, which I do from time to time, one complaint (even in one case by someone saying she's lesbian) was the discussion about artificial insemination. The reader of the version nicely performed in that video would be confused. There were also complaints about the B&W pictures, which was curious in the 1990s, but perhaps was partially a price deal. The 20th anniversary copy was in nice color and the story of a little girl with two mommies and learning how there are all types of families was well done. But, hey ... what?
I cannot applaud her choice or her reasons, because the eight rejected pages matter. Warmly and tenderly, they recount, in words and in pictures, the friendship of two women, Kate and Jane—their growing love for one another, the joining of their lives, their desire for a child, the pregnancy of Jane, and the birth of little Heather. All of this is in the excised material. Clearly it is germane, even indispensable, to the ensuing narrative. By leaving it out, the anniversary edition eviscerates and impoverishes the work, and its glowing re-touched illustrations do not make up for the loss. Something that matters far more than color has been jettisoned here. To reject these pages is to forgo the haven, the nest, the matrix that the expectant partners first wish for, and then prepare for their child. One enduringly memorable image that was omitted shows Kate stroking her partner’s distended abdomen and feeling the thump of the unborn baby’s kick.
The article notes that the b&w added something too, but though I can see how it might (see also, the power it gives to some old movies),  this part of the book is more notable.  The color scheme works as it might not if an old film noir. I don't know if the resulting message if rightly deemed "trite," but learning about her origins story does add weight to the whole thing.  And, even more troubling, unlike the 10th anniversary edition, the excision isn't even referenced in the author's comments!

In the 10th anniversary edition, as helpfully explained in that article (the Wikipedia page does not include such information), does recognize the change. The author explains she got a lot of negative feedback on the subject and that felt the book would get wider exposure without it. Same sex couples having children, including by this route, is a lot less controversial these days.  The section should be added back, or at least that version offered, since it provides a more complete picture.  I can imagine, for example, some couples who already have a child -- perhaps by a former marriage -- decide to have one this fashion. So, the child knows what is going on.  Is it really too mature for all readers? As the article noted:
two women, one a doctor, the other a carpenter, fall in love and decide to bring a child into the world and raise her together
is the complete story here. I can see how something like artificial insemination might be somewhat tricky to explain to a four year old though would have liked to see how it was done here.  But, there should be a way to handle it -- books portray mommies and daddies having babies without going in much detail about the science of it all, yes?  The child listening is likely in various cases to wonder about Heather -- where did she come from? Now, this version can offer an easy alternative -- though she looks like one of the moms, the reader can assume they adopted Heather.  Still, some might know a two mommy couple where one of the mommies -- like in the original -- where one is pregnant.  Why not in a book?

I understand why the author changed the book though less clear why the original seems covered up -- like an embarrassment -- in the 20th anniversary author afterword.  This part troubles me.  Anyway, some of the original critics partially won -- though some (including more than one that moved past narrow definitions of "marriage" to saying there was no "family" here -- apparently, for some, even a widow raising children with a grandmother to help isn't a true "family") continued to find lesbians as sinful and not for children.  There is a certain depressing irony there.

As with the article, I do wish the next edition -- perhaps in honor of same sex marriage and parenthood being respected by the Supreme Court -- goes back to the book's roots.  The color is fine though. Hope I can find the original.

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* I am not a big fan, even here,  about being overly personal, but have noted in the past that some people in my family have different views than I on certain topics. Simply put, though her views on civil unions have changed, my mom does not have the same views as me on homosexuality. She actually stop going to a nearby church because it accepted same sex marriage, eventually going back to it because she did not feel comfortable other places.

I found all of this a bit absurd, but understand it. Religion and other beliefs is not always about stuff that is that rational.  This sort of thing also helps me empathize somewhat with others with different views, including those who are simply wrong and at times want to hurt others. It turns me off, though you know empathy and all, I understand it, when some respond in a very visceral way to this. That is, you can see the spittle, and basically these people are disgusting troglodytes.  Life is a tad more complicated.

Rev. Joe: Film Time


Yup, on again: it's one of those Hallmark films that are on over and over again. Deservingly so. It stays mostly loyal to the book, except it tones the religion down somewhat and tacks on a somewhat forced late complication. Still, enjoyed it, both for the performances and its fresh/real flavor. Also, a comfortable "PG" approach (spend the night? surely not!).

Saturday, November 15, 2014

Bit early & not even Thanksgiving, but ...


Didn't get into the book, but enjoyed this Hallmark film, in part because it is really two stories (with a bit of a third), so there is just enough material without filler or extended required complications. One couple better, but all pleasant. Repeat favorite.

"Affordable Care Act’s Cost of Coverage to Increase in 2015"

Insurance costs would have rose regardless; with ACA the costs decreased on average. But, hey, catchy misleading headline on your main page NYT. Don't worry. The increased "hurdle" here for re-enrollment has nothing to do with your "just reporting the news" headline. Anyway, "Obamacare" has all these issues. "Free market" care is pony-land.

Friday, November 14, 2014

"Florida finally completes execution 22 years after murderer's horrific crime"

As suggested by the comments to the story, hard to be that upset this guy is dead, but after over twenty years in prison, hard to tell what other than retribution is obtained. Deterrence unlikely. Last appeals concerned use of lethal injection and some lawyer issues. Allow executions, some harder cases will slip thru. Plus, the idea of the state having the basic power to take life like this seen as civilized. Many of us don't see that as acceptable.

Taking on Water



Notable how much reduction can address resource needs. Book was decent. The author is an expert and uses a "just folks" personal experience approach, if one a tad overwhelming on detail and not quite applicable (given she's in rural Idaho) to many readers. Good karma.

Twitter Purchase ...

Plain, eh. Not bad in coffee. Good review.