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

Monday, March 27, 2017

Ginsberg v. NY and Substantive Due Process

If we were in the field of substantive due process and seeking to measure the propriety of state law by the standards of the [14A], I suppose there would be no difficulty under our decisions in sustaining this act. For there is a view held by many that the so-called "obscene" book or tract or magazine has a deleterious effect upon the young, although I seriously doubt the wisdom of trying by law to put the fresh, evanescent, natural blossoming of sex in the category of "sin."
I originally posted a discussion of substantive due process after listening to the oral argument [the petitioner's lawyer dragged things out soooo much and then when he finally got to the point, wasn't much better] of Ginsberg v. New York and seeing the passage quoted (Justice Douglas, dissenting). But, after getting into the weeds, decided it was getting too tedious. I'll try again in a somewhat different way.

As I originally noted, Justice Douglas also said the the right to privacy was not a matter of "substantive due process" either (Doe v. Bolton, concurring opinion). The usage in the first case basically amounts to weighing legislation (the fear being this basically amount to judges applying personal values in an arbitrary way) to determine if it is unreasonable in violating "liberty" pursuant to the Due Process Clause.  Douglas (there with Black) argued speech is specifically protected in an absolute way.  But, in practice, that is overblown -- there are exceptions, if narrower and more carefully handled than other things.  Then, we need to find out how do that, and some choices are made as to "compelling interests."

But, "substantive due process" is used in various ways, including by Justice Douglas himself.  See, e.g., his dissenting opinion in Poe v. Ullman. First, he noted that the Bill of Rights itself has both "procedural" (e.g., to face your accusers) and "substantive" (free speech) protections that due process as found in the 14A protects. This is "substantive due process" though you can phrase it in another way (there are substantive protections and it's a procedural question to determine if they are properly denied, including wrongly denying a liberty whatever the procedure is used to do so).

Second, he believed and court precedent held that "liberty" protects things beyond what is enumerated in the Bill of Rights.  Later on, Douglas tried to limit this by arguing that enumerated rights were in effect a bundle of rights involving things not expressly stated. So, e.g., there is a right to association and privacy related to it, even though the First Amendment doesn't say "association" or "privacy."  The right to privacy wasn't really an example of "substantive due process" since again it wasn't really going beyond the enumerated rights of the Constitution.

I still prefer the more open-ended approach of his earlier dissent. Douglas referenced the "emanations" of enumerated rights there and that makes sense. But, he also spoke more broadly of rights necessary for a free society.  He specifically said he wasn't limiting himself to the enumerated rights or some indirect security to them in particular. Privacy is something that is needed for a free society, to have a zone to make decisions and free rein in general. Various enumerated rights also specifically show this, including religious freedom. The rights do represent specific concerns of wider general principles so there is some overlap here. The 9A however more generally secures rights to protect them, reliance on the enumerated rights at times at best a stretch.*

Anyway, the passage quoted to me is a suggestive window on what "substantive due process" brought to mind for New Dealers like Justice Douglas and why he and others tried to avoid it.  This is so even when at times it is clear that they too accepted the principle, but only disagreed with how to apply it.  Thus, e.g., Justice White in Griswold v. Connecticut cited the principle that economic legislation would generally get more leeway while certain matters of a more personal nature would not.  Justice Douglas' writings among others can help explain why we draw those lines, noting in practice that sometimes the personal overlap with the economic such as buying contraceptives and some decisions involving careers.

Such issues are of particular interest given the pending confirmation of someone to fill in for the seat wrongly seized from Merrick Garland. Gorsuch during his hearings tried to argue he was a special snowflake judge, who relied on the law, not personal beliefs and political experiences, when deciding the contours of such questions. Human judges are influenced by a range of things, especially along the margins. Gorsuch also kept on alluding to an old line about judges even being influenced by what they had for breakfast. Not me!  There is even a recent study that argues even that, or rather timing of meal breaks, influences judging somewhat. 

Senators also swear/affirm to uphold the Constitution. They need to decide legal questions in various respects and that oath/affirmation limits their discretion too.  And, they too aren't just robots that follow party.  They are specific individuals and voters should seek out how they personally would decide questions in various respects.  Nonetheless, that too can be taken to extremes.  If senators try to say they merely are deciding as they personally think best, a voter can laugh at them and tell them politics matters.

A final word on the original opinion. The case involves a magazine vendor being caught in a sting involving a teenager buying a girlie magazine that was deemed to be obscene for minors.  The opinion determined that it was acceptable to have different rules there for minors and adults, a principle that overall sounds fairly reasonable. Douglas/Black disagreed, thus pushing the principle that you can sell porn to ten year olds.  I guess one can imagine that not being the end of the world. A separate dissent by Justice Fortas accepted the majority generally but argued that in the case at hand a specific finding even of that lower standard was not made. If you deny speech to minors, it still should be done carefully.


*  Substantive due process is used to protect such rights, the "liberty" protected by due process involving things not expressly enumerated.  General principles like "privacy" help determine what to protect as well as specific rights (like travel) that can be seen as fitting in a wider whole or maybe simply because the rights are seen as generally fundamental.  There is usually overlap, but the strongest case is not any one port in the storm.

Saturday, March 25, 2017

Long Way North

Enjoyable and nice to look at animated film (French; the English dub I listened to was fine) about a Russian teen in the late 19th Century defending her family's honor by seeking out her grandfather's ship in the Arctic. A few twists on expectations and a bit shorter than you'd expect (eighty minutes, basically the trip back removed except for screenshots in the credits). Behind the scenes extra on DVD in French with subtitles.

Dear Miss Breed

Reading into the Japanese internment after watching Allegiance, learned about the heroine San Diego child librarian Clara Breed, who was great in general. But, of special note is her correspondence with in the camps, assistance of (lots of things sent) and writing of articles about (she wrote supportive articles in the midst of the war about the Japanese) the Japanese children who went to her library. Plus house parties. Good young adult book.

Wednesday, March 22, 2017

Gorsuch Hearings

Again, Twitter (I'm JoePaulson2) such as Kimberly Robinson great at live tweeting and updates. Coincidence or not (hard to believe they had no idea), SCOTUS today handed down a 8-0 slamdown of an emotional-laden Gorsuch opinion. Basic b.s. for me is his refusal to admit how judging overlaps some with politics as if it is coincidental who nominates the justice. More "I'm a judge, a special snowflake," so don't look at my experience in Bush Administration or something. Just be honest, okay? And, an old bit about judges being influenced by what they had for breakfast was cited enough times to start a drinking game.

ETA: Support filibuster. Show of force to respond to norm violation, good for base, keep pressure on and who knows what will happen next time? Marginally better nom? Finally, if concerned about public reaction, how that work with Garland? Too many didn't care much. Those who did leaned Trump. Plus, very well might fail without a "nuclear option" [kinda best policy anyway, especially with recent abuses of it] with some sort of return. A few Republicans likely to want to retain filibuster for their own power/tradition concerns.

World Baseball Classic

In rainy haze, US (eventually) ekes out a couple runs to beat Japan, faces some country called Puerto Rico for championship. Meanwhile, Jets get a stopgap (agree seems like a good move) and Giants pick up Geno Smith for some reason to compete for back-up (never used).

ETA: U.S. won, 8-0.

Gorsuch Hearings

I myself can't stomach watching [thanks Twitter] Judge Gorsuch, who sounds full of shit and is here thanks to to the Republicans' unprecedented (and wrong) blocking of Garland. You are tainted too, Gorsuch! No, the "Biden Rule" application is b.s. But, do agree hearings in general have an educational function plus serve an overall legitimizing role by putting him out in the open interacting with senators. Finally, do think a bit of the person and views do come out, helped by reporting/commentary. Very well the questioning is stupid and it is right to expect more substantive answers. But, that doesn't change the rest. Fix that!

And Also: Sen. Schumer uses Russia investigation of Trump Administration as reason for delay. Sure. I see this as all connected though some things are more so in certain ways.

Tuesday, March 21, 2017

World Baseball Classic

Don't know about "classic," but it's nice to have a true "world series," even though it is a bit strange Puerto Rico plays against U.S. (perhaps again). Caught some of it here and there with Israel a notable surprise early. Netherlands (key players from their island possessions) was just eliminated, unable to take advantage of multiple scoring opportunities. Sorta hoped they advanced. The first/second automatic runners in the 11th rule (nice touch) burned them twice! But, enough with the late broadcasts, last night's game ending around 2AM.

ETA: Issue as to time is that multiple games played in West Coast parks, but with teams from the West Indies, Europe etc. (last night game ended c. 7AM Netherlands local time) playing. So, unlike West Coast games, not even the local team is on "normal time." Just select players and the fans watching in the stadium. 11PM even there is a bit late.

Monday, March 20, 2017

Gorsuch Hearings

Mixture of disgust and depression. Gorsuch is a conservative wet dream. He even looks like Mike Pence in a way, their views on social issues comparable. What happened to Garland was horrible, including on a basic civics level. Filibuster!!! Meanwhile, more oral arguments this week; nothing really of note in today's orders except this "cakeshop" case not acted upon.

ETA: Some somewhat interesting orals on various subjects this week, following the "nothing major" theme of this term, plus a few rulings handed down 3/21. One involving acting officials might be be of mild importance. Spring is here.

Sunday, March 19, 2017

Holiday Weekend

3/17 - St. Patrick's Day (Irish), 3/18 -- St. JP Day (mutts), 3/19 -- St. Joseph's Day (Italian).

Buying a Bride: An Engaging History of Mail-Order Brides

An interesting history that focuses on various snapshots mostly involving the U.S. (Jamestown, New France, Louisiana etc.) and then a general supportive chapter of its current use. The historical examples don't provide us much understanding of the long term fate of some of the women involved, but overall it's a good account if not comprehensive.

Saturday, March 18, 2017


This is a 1970s sci fi horror film is probably best known as Marilyn Chambers' only "straight film." She gets into a motorcycle accident and the novel treatment results in her being desperate for human blood. Well crafted, especially as society at large gets infected but why are so many people blase about her suddenly leaving the clinic in the midst of a epidemic? Her final "experiment" is a bit silly but great final image. Chambers innocent girl look and cutesy voice makes her apt for the role. Acting chops? Mixed. Had niche potential.

ETA: Found her later soft porn flick Bikini Bistro cute and it pretty silly (and wrong except perhaps as to exclusivity issues) that a fireman got in trouble for being in it, no comment on the other issues. Nude pics in uniform is different though firing seems harsh.