And Also ..

I admit it. Those 1692/witch previews on WGN makes me curious about the show.

Two Things

Thinking it over, I do think sexual orientation deserves heightened scrutiny given the trend of the law, but reliance on Windsor alone (the comparison to state regulation of alienage on the "suspect" level is a good one) is a stretch. Watching last night, again, they needed to give more material to "Jen" on Rules of Engagement. She deserved it!

How Scarlett Johansson got mired in one of the Middle East’s touchiest controversies

A good summary. Sad she resigned as "global ambassador" for Oxfam because her endorsement work conflicted with one thing the institution opposes. Purity is just so hard.

And Also: Saw her latest SodaStream commercial -- sort of lame. The "want to help" part when she resigned an actual charity over this is ironic.

The Dog Lived (and so will I)

Touching, amusing and honest account of two cancer survivors.

New York’s Outrageous Attempt to Ban Academic BDS

Back when I went to VC, one usual thing was David Bernstein and his conservative Jew defender posts, including taking potshots at an academic boycott many on the left found dubious. But, this NYC bill in reply which is sort of an official (with a major loophole) boycott of the boycotts is worse.  I see a point on each side, but not official actions of this sort.

Notable Temporary Death Penalty Stay

And Also: Winning advocate in the Boerne case that struck down RFRA as applied to the states is the lead author of an amicus brief in the contraceptive mandate case aiming to strike it down as a whole. I'm sympathetic since the law is being taken too far.

Update: As expected,  the stay was vacated and he was executed. More on the legal issues.

The Court should not produce a de facto ban on capital punishment by adopting method-of-execution rules that lead to litigation gridlock.

-- Justice Alito, concurring in Baze v. Rees

The USSC is in a bit of a hiatus until oral arguments resume late February, but the recent temporary stay (by Alito, given its his circuit) of an execution is a notable action.* For the time being, and perhaps in general, there is no explanation why the stay is in place. Given some problems in recent years in this area, some clarity  could be useful.

The first link cites inside knowledge that a claim based on alleged tainted jury challenges might be involved. The media coverage, however, seems to focus on possible problems with the lethal injection protocol. A particular concern is that recent shortages led to problems obtaining the necessary drugs, which inhibits the ability to safeguard their usage. One article discusses, for instance, that in effect the drugs used until the last minute are secret.  A recent essay by Prof. Dorf also discusses in general recent execution problems.  [He links to an account of a witness to a recent execution, interesting for various reasons, including a faith based one.]

I'm against the death penalty generally speaking, but have noted recent cases where specific orders were noted at the Supreme Court website involved some pretty horrible cases. This case, from what I can tell, is not what I would call "worst of the worst." He was sentenced to die for the premeditated murder (according to one article) of a store owner (another person was shot but survived) during an armed robbery. That's a really bad thing, but execution-worthy?  I'm biased, but honestly, if someone who accepts the death penalty is certain cases was asked, would they on average apply it to him? Perhaps, there is more to the case.

A usual contributor to the Sentencing Law and Policy (where I first read about this case) comment threads cited a usual concern about rights of victims in cases of this sort. The person doesn't seem to care when victims oppose the death penalty. But, if that is a concern, I personally don't find the death penalty as overly useful. In Baze v. Rees, Stevens flags the issue too as part of a summary of the "costs" of the death penalty (FN17; I use quotes to note this is more than financial). 

Victims interests should be considered as much as possible, balancing other concerns (see, e.g., Payne v. Tennessee, dissenting opinions).  Likewise, as Prof. Dorf notes, the litigation here is often used selectively. But, that is how litigation in our system tends to work -- two sides with competing interests. Often more than two, with all the parties involved, including the courts here.  The resulting rules should provide some clarity though when dealing with the death penalty, history suggests it will only get us that far. The death penalty, even by supporters, is applied with some degree of discomfort. Killing people should be.

The rule of evolving standards of decency with specific marks on the way to full progress and mature judgment means that resort to the penalty must be reserved for the worst of crimes and limited in its instances of application. In most cases justice is not better served by terminating the life of the perpetrator rather than confining him and preserving the possibility that he and the system will find ways to allow him to understand the enormity of his offense.

Does this execution, putting aside the protocol issues which are worthy of concern specifically, really meet that test? Baze v. Rees highlights that ultimately such questions as has choice of means will usually not be decided by the courts except to uphold the actions of others. The "rule" applies all the same.

---

* The second link was obtained by doing a search of the condemned's name, the SCOTUS website not providing easy direct access to recent orders of that sort.  I noted this once to the veteran USSC reporter at SCOTUSBlog in an email and he agreed that it was not the best way to do things.

RIP Pete Seeger

Repeatedly pressed by the committee to reveal whether he had sung for Communists, Seeger responded sharply: "I love my country very dearly, and I greatly resent this implication that some of the places that I have sung and some of the people that I have known, and some of my opinions, whether they are religious or philosophical, or I might be a vegetarian, make me any less of an American."

He outlasted the bastards.

The Fosters

Brandon is still insufferable (and cancelling piano? moron) but promising episode with a good mixture of subplots. Mariana had some good lines. She also likes those "old" movies from the '90s. Product placement or not, kewl looking kindles or whatever they are.

Good Luck Charlie actress camera conscious

It was noted on the IMDB message board that the actress playing Charlie seemed much more camera conscious as she got older from her baby days. Do see that -- she does seem less natural. Then, again, she had a thing about people laughing at her. Real kids have issues!

Satan?

I'm with Bart Ehrman -- the contradictions in the Bible are interesting and should not be waved aside. For instance, in the first version, God somehow causes David to sin by holding a census. In the later Chronicles version, Satan does it. Attempts are made to deny a contradiction. But, it's more likely that this is an example of changing thoughts about good and evil, something readily cited in the notes to The New American Bible (Catholic).

After Jonah is Upset That His Plant Dies ...

And should I not be concerned about Nineveh, that great city, in which there are more than a hundred and twenty thousand persons who do not know their right hand from their left, and also many animals?”

Jonah is a fun story and it even ends on a pro-animal footing. Some translations say "cattle," which makes it even more so, since "animals" can be dogs and all, while who really cares about cattle? BTW, Hebrew and Christian Bibles have a different order for the same books.

Pro Bowl

Tired of Downton Abbey being lame, so stuck wit the Pro Bowl ... it was not bad given it's played by people whose season is over in Hawaii and winning gets you a whopping 27K more or so. I'm rooting for Seattle next week. And, am ready for baseball.

Charlie's Friend Has Two Moms

Disney Channel without fanfare had a bit of a milestone last night -- on Good Luck Charlie, Charlie's play date had two moms. There was a debate over the name of the mom; turned out they were both right! The couple blithely noted this though mild humor was made on the dad being sure not to make things awkward. Last episode in a couple weeks.

Rev. Joe -- A couple thoughts

I found this interesting summary of views of the New Testament "canon" over the years -- by it, the four gospels and most epistles of Paul were "orthodox" by mid-second century, the rest remained somewhat mixed. James 2:2 also is an example of how translations can lead one to lose flavor. Should the word be "assembly" or "meeting" or the more Jewish (fitting the tone of the opening of the epistle) "synagogue"? Depends on the translation you have.

January 29th -- Block of Cheese Day + John Leland, Religion etc.

Inspired perhaps by West Wing, the Obama Administration will have a virtual "block of cheese" day on January 29th. Going to the link, we see the first "cheese day" was in the Jefferson Administration and the cheese was ultimately replaced by a "mammoth loaf." The original cheese was a brain child of John Leland, a Baptist separatist, who became a strong supporter of Thomas Jefferson and later Andrew Jackson. A flavor:

The notion of a Christian commonwealth should be exploded forever...Government should protect every man in thinking and speaking freely, and see that one does not abuse another. The liberty I contend for is more than toleration. The very idea of toleration is despicable; it supposes that some have a pre-eminence above the rest to grant indulgence, whereas all should be equally free, Jews, Turks, Pagans and Christians."

He was born in Massachusetts and was early on a strong opponent of slavery, in part as a violation of republican form of government. This suggests the potential of the term (see Art. IV of Constitution), which also was used by a few as a grounds against the death penalty. Leland's anti-slavery views changed over time, perhaps motivated by his political concerns.  This provides an insight into the complexity of this interesting historical character that deserves more attention. His strand of religious individualism was a certain wing of founding thought on religious freedom, something not just stated by Jefferson or Madison.*

During the Bush Administration, West Wing provided a fantasy universe for liberals. This was continued until the end, when the campaign to replace President Bartlett had Alan Alda on the Republican side. He was apparently going to be the winner, but then the other side's veep candidate died in real life and it was decided that it would be too harsh for his side to lose. At least, so I recall. The First Lady turned out to be "Stephanie Foster" of The Fosters. We live in reality (and the fictional universe had its issues anyway -- how else to cause drama?), but as a whole, I'll take the resulting Administration in various respects.

Going back to Leland, The Nation has an interesting article about how conservative Christian views of marriage have caused various negative consequences.  This is a theme we saw before -- e.g., abstinence only has been shown to be counterproductive, since teens will have sex and without more, the likelihood will be teens still having sex, just less properly aware and/or prepared.  As I noted in a comment, the use of "conservative" here is appreciated -- too often liberal or libertarian leaning comments sneer at "religion" as if that is the problem. The problem is certain beliefs and forcing it on others. Religion itself continues to provide positives ... at least, it is not really the ultimate problem.  To cite the article referenced in the footnote, "religion" is also an open-ended term:

The precise character of the good being promoted is itself deliberately left vague because the broad consensus on freedom of religion would surely collapse if we had to state with specificity the value promoted by religion. "Religion" denotes a cluster of goods, including salvation (if you think you need to be saved), harmony with the transcendent origin of universal order (if it exists),  responding to the fundamentally imperfect character of human life (if it is imperfect),  courage in the face of the heartbreaking aspects of human existence (if that kind of encouragement helps), a transcendent underpinning for the resolution to act morally (if that kind of underpinning helps), contact with that which is awesome   and indescribable (if awe is something you feel), and many others. No general description of the good that religion seeks to promote can be satisfactory, politically or intellectually. The Establishment Clause permits the state to favor religion so long as "religion" is understood very broadly, forbidding any discrimination or preference among religions or religious propositions.

Anyway, back to the start -- this "virtual block of cheese day" concept is cute and their heart is in the right place. The idea is that the White House is the "people's house" (Andrew Jackson took this to the next level with his inauguration with the hoi polloi invading the joint) where all views should be respected. This is seen as well with "We the People" petition idea. Online Q&A has been used in the past -- it works with celebrities and so forth, so why not the President?  I don't know how seriously the concept is taken as a whole, but the idea makes sense.

Virtual cheese also is animal friendly.

---

* In "Corruption of Religion and the Establishment Clause," Andrew Koppelman noted this about Leland's views and actions:

A state-sponsored orthodoxy was as counterproductive in theology as it would be in any of these other fields. Salvation was a matter for the individual. "My best judgment tells me that my neighbor does wrong," Leland wrote, "but guilt is not transferable. Every one must give an account of himself."

Yet, despite his alliance with Jefferson, Leland was no rationalist. He preached "the great doctrines of universal depravity, redemption by the blood of Christ, regeneration, faith, repentance, and self-denial." He once heard the voice of God speaking to him. One night, some devilish ghost approached his bed, groaning so horribly that Leland hid under the bedclothes and prayed to God for help. He said, "I know myself to be a feeble, sinful worm."  Yet, he was indifferent to most theological controversies.  Feeling mattered to him more than doctrine. He made Jeffersonian political philosophy appealing to his poor, ignorant, and enthusiastic followers, and thus "succeeded in linking the political philosophy of the American enlightenment with the camp-meeting spirit."

Thus, Leland also is an example of the complexity of the "separation of church and state" philosophy.  He did not oppose religion's involvement in politics (he himself briefly served time in office) but had strong opinions on the proper role of government over religion all the same.

"Evaluating Online Vigilantism"

One annoying trend at Volokh Conspiracy was Prof. Volokh posting from time to time some vague overbroad proposal to deal with online bullying tactics that never tended to discuss the proper way to handle it. The comments were filled with libertarian sorts who seemed not to think that there was really any problem here. The true problem is Comstockian prudes and censorial do gooders. Probably lefties. This is a half-ass approach.

In the real world, schools and others have to deal with the issue and there are lines to be drawn. At some point, e.g., even if criminal laws are not usually the answer, some sort of restraint on verbal or written behavior will occur.  Emily Bazelon, who wrote a book on the subject, to me seems more evenhanded. She has repeatedly written about what she sees as overreaching, particularly in some very complicated situations where guilt is not so black/white, but doesn't think no restraints are appropriate. This provides a more full-fledged look at the problem from someone who overall is to me pretty free speech friendly.

The opening photo provides a case in point as to the real issues that are being faced up with here. As the red dress lady noted:

I won a campaign asking the Bank of England to honour women on banknotes. It was a hard-fought win and, I thought, a great way to start the summer. But the next month was dominated by a stream of graphic, violent and detailed rape and death threats, sent to me over the internet.

The British MP in the photo also was subject to such harassment as she discusses on a news program. An update is that two people were convicted.  The story came to my attention via a Bazelon feature on anonymous "vigilantes" (h/t). One person involved in the effort had somewhat selective empathy -- badmouthing one of the women here and not sympathetic about what appears to me to be a serious case of harassment.  As suggested by the video and update, online harassment can raise complicated issues.  Harassment is against the law but how best to approach not one-on-one harassment, but harassment on social media, including Twitter?  Consider the summary of the British Act here:

Under the Malicious Communications Act 1988, any 'indecent or grossly offensive' message that causes 'distress or anxiety' to the recipient can lead to prosecution.

I reckon Prof. Volokh might find this a bit vague. But, as I said more than once there, harassment laws probably use some form of this language and somehow we manage to allow them. Speech often causes some "distress," but some literal definition would not make sense or clearly protected opinion would be unprotected. OTOH, take this sample:

One message sent to Creasy under the user name @rapey1 said: "I will rape you tomorrow at 9pm. Shall we meet near your house?"
Another read: "You better watch your back....Im gonna rape your ass at 8pm and put the video all over the internet."
And another said: "If I meet you in an alley you will definitely get f**ked."

The miscreants here seem to be like those people on AOL chats (now a bit out of date) who use anonymity to lash out or randomly instant message with tasteless material.  Putting aside appeals for child pornography, that sort of thing is generally dealt with with notifications of abuse and blocking over some sort of governmental involvement. And, such means or unofficial social regulations will usually be the way even pretty serious online stuff will be handled. Bazelon's article suggests some of the responses "anonymous" type groups can use. This includes to deal with some more physical abuses. There is an old fashioned social shaming (and vigilantism or whatever word we use) feel to this. 

It's a very complicated issue, isn't it? This is seen by the MP, who notes there are some tweets she receive for which she responds with a kitten picture to have them calm down or distasteful comments about "MP's tits" and harassing comments.  Women in particular have for some time been subject to harassment and online methods add one more means.  Online forums often encourages "flame wars" and distasteful comments. Those can be bad, though the above takes things to the next level.

Anyway, another good piece by Bazelon, and yes even getting Jane Austen on a banknote can result in misogynist targeting.

Justice McReynolds and the War on Drugs

There was some consistency in the early 20th Century cases where federal power was at times interpreted too narrowly (e.g., the Child Labor Cases) -- it took a while for the war on drugs to be readily accepted. Even Holmes in 1916 stated a federal ban as constitutionally dubious. As seen here, nice and bluntly, some retained doubt into the 1920s. McReynolds might have been an ass, but he had his moments. U.S. v. Miller was pretty well written too.

Short Term 12

Another good library find. This indie involves some twenty-somethings dealing with their own problems while working at a home for troubled kids. It has the original short and the extended film, which has different actors. The twenty minutes of cut scenes were also worthwhile. Mixing that and the short film is one way to see this. Other extras.

I'll Pass

An interesting discussion on calling someone "a Jew."

At the same blog, someone I clashed with on religious issues in the past is excited about a new book on religion in American society.  Andrew Koppleman, who has a different view of things, is cited as also enthused. No matter. Koppelman has repeated found serious fault with the stance taken. Not surprising going by the summary provided at Amazon, including how the current jurisprudence in this area has led to:

The negative consequences are visible today in the incoherence of religion clause jurisprudence and the intense culture wars in American politics.

The view Prof. Smith puts forth would strengthen the power of religiously motivated institutions to be separate dissenting voices, including if it results in  burdens on third parties. Not just churches and the like. Those who incorporate and sell hobby equipment (yes, we now go on to familiar ground) will be able to deny employees a government benefit of coverage of contraceptives.  The perversion that results is noted by a reply:

The institutions seeking exemption from the Contraception Mandate are not voluntary associations but nonprofit and for-profit corporations. They are not composed of voluntary members uniting around a common religious vision; they are composed of employers and employees. Of course, it is possible that some employees view themselves as participating in a collective religious enterprise. But many of them do not. Instead, many do not share their employer’s faith and they show up for work in order to earn a living. They include factory workers, nurse’s aides, store managers, sales associates, drivers, food packers, custodial staff, and administrative assistants, among others, who depend on their paycheck and benefits to take care of themselves and their families. For many, their job is not a religious experience but a way to survive. Whatever may be said about voluntary members and religious associations, it does not translate to employees and corporations.

As noted there, many of these people have their own religious beliefs that they find advanced by the coverage in question. Denying them this benefit has "intensified cultural wars" today more than the alternative, which works hard to balance various competing interests, including those of religious institutions and diverse believers. I'm sure the scholar in question provides some useful insights, but with apologies, his stance here (and as critiqued by someone who apparently respects him) makes me rather wary. This includes other works criticizing secularism.

There has not been a "decline" of "American religious freedom" contrary to the title of his book. The issue is complex and we can point to some concerns most likely. But, as a whole, there is more religious freedom in action in various respects today. The ability of people to marry those who they love of the same sex, e.g., is repeatedly a matter of religious faith.  In the past, certain religions were more favored here. I'm clear of the compelling problem of a few random bakers and the like who don't want to sell cakes to same sex couples, but many more in the past quite honestly felt God supported not integrating.  In what direction have we traveled?

Glad you liked the book. I'll pass. Meanwhile, the USSC dealt with a footnote in the contraceptive mandate exemption wars. Marty Lederman, who has done yeoman work covering the overall issue, sees the brief order as a "Solomonic judgment" that ends things for the time being with a whimper.  Scotusblog has somewhat more to say. It is somewhat better than the "we say so" stay order to the 10th Circuit as to same sex marriage, but it still isn't very helpful -- it has a "one time only" feel -- "based on all of the circumstances of the case" without saying what.

As ML notes, the big game is yet to come. 

"How could AG Eric Holder justify refusing to authorize the death penalty process for Boston Marathon bomber"

I'm against the death penalty but not a big fan of the term "abolitionist," though perhaps given its anti-slavery origins, that is misguided. It seems more that the term is too often used to imply "extremist." Anyway, a blog (who supports it for extreme cases) asks that question, I assume not including "it is never appropriate." I tried. Toss in no deterrent value -- a crime like that, execution adds trivial deterrence especially given his age and cause.

Rights of the Dead

I share many of the sentiments expressed in the blog post and column linked there while setting forth further comments in the former. [This involves a brain dead pregnant woman, kept "alive" on life support.] I was upset at the to me cavalier "too bad" comment. As to "rights of the dead," they are for the living though some do think the dead live on.

Update: A court order might end things. And, finis.

Virginia switches on same-sex marriage

The new (D) AG announced the state believes same sex marriage is constitutionally protected. Going the "Obama route," the state will enforce but not defend with someone else having standing to do that. The brief provides a good argument for both SSM being protected and executives having a constitutional duty in certain cases to not defend.

Supreme Court Watch

There were a few notable oral arguments this week particularly on compensation of victims of child pornography, a potentially very broad union case and the limits of anonymous tips for 4A purposes. Three justices also would have stayed an execution on consular notification grounds (Secretary Kerry getting involved). Another not very sympathetic defendant.

Understanding the Bible: An Introduction for Skeptics, Seekers, and Religious Liberals

The author of this brief (under two hundred pages) interpretation of the Bible comes from the Unitarian-Unilateralist tradition. Don't know why he has "Matthew" as "Matthias" and he at times skims over controversy (e.g., the true nature of miracles). But, he does pretty well given all the ground covered to put forth his view of the things. Interesting.

Firefly

I finished watching the episodes and extras last night. Overall, very good show. Good to see that the main people continue to get parts -- particularly "Castle" and the wife on Homeland. Another graphic novel series is due this year. Need to re-watch the movie now.

Roe Turns 41

And Also: Whatever the ultimate result, the indictment of the former Virginia governor and his wife reminds that modern anti-corruption laws do have some bite. There have been some notable prosecutions, sometimes of leading individuals. How this plays out, including when weighing the reasonableness of campaign finance laws is up to debate.

Update: That's right President Obama.

RH Reality Check is a place to go besides Rachel Maddow to see various cases where the right to choose an abortion is being threatened these days. One part of the conservative swing in recent years, as RM noted recently, is a big uptick in abortion regulations. A recent analysis of an oral argument about a probably doomed in some part Massachusetts abortion buffer zone counseled us to remember the women going to the clinics, and not just as target opportunities for opponents. Same here.

"Regulations" might be too generous -- the core problem here is that they are not neutral regulations of  medicine, part of the "health" part of the police power, but repeatedly selective "morals" regulations. The purpose is to, as far as they can, selectively target a disfavored act.  This explains the irrationality on some sort of neutral grounds -- the laws are repeatedly NOT neutral, their purpose is to restrict abortion.  This came to mind some months ago when the Catholic law blog Mirror of Justice contained slanted coverage of the Gosnell case. The push for more regulations that would not stop what happened there must be defended in other ways, especially when they can be counterproductive.

While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.

-- Meyer v. Nebraska

The usage of "without a doubt" is striking -- it has a natural law flavor, a "self-evident" truth.  Some "liberty" that is basic to freedom, the (in the words of Charles Fried discussing privacy though he separates abortion since it specially deals with another life) "moral fact that a person belongs to himself, and not others nor to society as a whole," as Justice Stevens (quoted as well in another abortion case) noted.  It is at times noted (not always with full context, such as by those who do so to oppose it as a whole, ignoring she supports its core result) that Justice Ginsburg don't really like Roe, both since she felt it went too fast and because she favors a more gender based approach. As she noted in dissent:

legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.

The TPM article there notes Ginsburg at times voices sentiments that Roe was more about doctors than women. As with questionable judgments as to strategy (use of gender arguments when Griswold provided a more  stronger case at the time?) and events (Greenhouse co-wrote a book questioning the direction of liberation of abortion laws and claims opposition was particularly based on Roe itself), that is unfair. It again leads me to counsel people to read the damn opinion, imperfect as it might be. The opinion focuses on the women -- "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."

This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.

Yes, as a medical procedure, abortion also involves doctors. It also has a "public" component. This warrants as well a reminder of the nuances of the words "public" and "private." I see this as well in debates over regulation of businesses. The word "private" is sometimes applied to businesses, which really means they are "privately" own and run as compared to a governmental business.  But, it still serves the public and has some public character. Marriage is another thing that has a mixture of both -- the state gives you a license or you might take your vows in a public place, such as in a church in front of the community. But, it retains special private aspects. And, even there, it isn't absolute -- no spousal rape exception.  Does this make marriage just "public"?

Beyond this, however, the state may interfere whereover the public interests demand it, and in this particular a large discretion is necessarily vested in the legislature to determine, not only what the interests of the public require, but what measures are necessary for the protection of such interests.

This is a quote from  LAWTON v. STEELE, a late 19th Century case cited by Meyer, a case involving the choice to teach children a foreign language in the 1920s.  Lawton is one of various cases of that era that put forth a generalized notion that the police power was somehow limited. There was some "public interest" that the government could regulate though even there they had to go about it in a basically fair way.*  Beyond that, there are also ultimate private matters (religion, marriage etc.) where the government has less power over. This was the ultimate truth of Griswold and Justice Harlan's Poe v. Ullman dissent (honored as authoritative in later opinions) where he specifically notes:

But, to my mind, such a distinction is so insubstantial as to be captious: if the physical curtilage of the home is protected, it is surely as a result of solicitude to protect the privacies of the life within. Certainly the safeguarding of the home does not follow merely from the sanctity of property rights. The home derives its preeminence as the seat of family life. And the integrity of that life is something so fundamental that it has been found to draw to its protection the principles of more than one explicitly granted constitutional right.

Ginsburg is quite correct to note that specifically at issue here are the interests of girls (lest we forget) and women though not only them. This was seen in some fashion from the beginning, and of the four advocates (the state put forth two different men in the two Roe arguments) providing oral arguments in the two cases (Doe v. Bolton is the other), three were women.  But, and this is in part why the issue intrigued me since high school, the case involves much "more than one explicitly granted constitutional right," including the right of gender equality.

This is seen in the area of homosexual equality, expressed just now by a sound 9th Circuit ruling that juror challenges by sexual orientation warrant heightened scrutiny akin to gender (if not as high, at least going by current case law). Lawrence v. Texas, bringing the religious freedom aspects of the freedom at stake up in the process, shows the connection:

The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. “Our obligation is to define the liberty of all, not to mandate our own moral code.” Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 850 (1992) .

Griswold  could be seen as the protection of the intimacies of married life. The opinions had a broader reach, but this seems to be the core -- the state recognizes the importance of marriage, authorizes and protects it. Given that, the couple has a realm of privacy that the state cannot enter without special cause. This involves sexual choices and determining when to have children. Even there, women are particularly affected, it is she who will become pregnant if contraceptives are not used.  And, there are wider interests as well, including for her health. This decades earlier led to the 2nd Circuit to assume a  federal ban importation of contraceptives did not apply to health. Griswold went the next step.

Roe was a logical next step as well as was a case shortly before that recognized unmarried people also have a liberty interest here. Does not the right to marry also include choices leading up to marriage after all? This provides more evidence that the overall right, liberty and interests here can be seen on various level of generality. It is quite true that the core has special concern for females.  But, it fits in a greater whole.  This is also why the opinion is such a seminal case -- it raises such basic concerns, including involving proper gender roles (assumed by the idea that a certain type of Good Samaritan might be warranted if abortion is banned -- it is a "duty" that is somehow "chosen" even when the odds are great, as when contraceptives fail) and the meaning of life. [And, various other issues.**]

A final word on that. It is sometimes tediously noted that "human life" is involved here as if there is much debate. The debate, putting aside some who will merely talk about "tissue," is the value we put on such life and the proper way to respect it (language is a weighted subject here, including use of pronouns).  The overall understanding is that the life is a developing thing.  As Justice Stevens once noted:

I should think it obvious that the State's interest in the protection of an embryo [yes! often not "fetus"] -- even if that interest is defined as "protecting those who will be citizens," ibid. -- increases progressively and dramatically as the organism's capacity to feel pain, to experience pleasure, to survive, and to react to its surroundings increases day by day. The development of a fetus -- and pregnancy itself -- are not static conditions, and the assertion that the government's interest is static simply ignores this reality.

Catholic doctrine holds that even artificial contraceptives are immoral because it interferes with the proper sex act, separating sex from reproduction.  The choice as to immorality here is a basic truth of Griswold and shows how tying marriage merely to making children the old fashioned way is limited. Among other reasons. Some contraceptives might work after the egg joins with the sperm though if most actually so act is very questionable. This too is not generally seen as enough.  See, e.g., language quoted by Justice Douglas in Doe v. Bolton. At the very least, for certain reasons -- few cannot think of some justifiable reasons to abort, even if they think it a horrible necessity.  Because we devalue the growing life? No. We determine it is growing, not a full person.

This makes it different from you and me, "persons" protected by due process of law.  The choices here are personal, freighted with moral and religious content that particularly affect the girl or women involved. And, as a result of protections involving various constitutional provisions, Roe v. Wade quite rightly secured that choice if allowing various regulations. So should we when legislating as a matter of sound public policy.

---

* Recently, I had a tedious debate online when I noted what seemed boilerplate -- businesses can be regulated as long as the rules are reasonable.  I was then asked what "reasonable" means. It is a summary of a range of rules, including constitutional in nature.  This raised a range of questions amounting to the point that the rules are unclear and not fixed, they develop over the years. Right.  So? There are still limits, both judicially enforced and restraints on legislative action.

** I personally see abortion as a basic issue of health care, including as the choice to avoid various burdens on your health that pregnancy brings. In various cases, it is particularly health related, including those truly late term abortions arising from special issues there.

Free speech and related issues also arise here, not just for protestors. Rust v. Sullivan is an example where doctor/patient speech is invaded, an issue back to the first contraceptive cases and late 19th Century bans on such materials. Neutral regulations such as necessary offering of the dangers of any health procedure is appropriate, but slanted rules are not. I can go on, but that just underlines the breadth of issues, constitutional and others that arise in this context.

The Borg Absorbs Again

Few years back, Slate ended "the fray" and went with tiresome Facebook comments. Now, Volokh Conspiracy -- my semi-replacement at the moment -- went to Washington Post. Have to sign in there or use Facebook & it won't be free in six months except for .edu and .gov types. Didn't warn us -- just popped up mid-day. Tiresome business. Bye.

More on Weakness of Hobby Lobby Claims

See here. I have a bit of scorn for the other side on balance including how it skewers health care (most inane: "pregnancy care needn't be covered by insurance" arguments based on it not being an "illness" -- how do people seriously make this claim?), employee rights AND sound religious freedom protections. They have a chance of at least a mild victory. Sigh.

"Fittingly for MLK day, Prez Obama laments class and race disparities from pot prohibition"

An interesting blog post with useful comments by the author (DB) as well.

The Fosters

Rosie O'Donnell started her story arc as the group leader at the group home Callie is sent to -- her character is a bit bland. Found the episode somewhat blah if overall fairly emotionally true. Like Brandon is in a pretty unpleasant place now, but it's credible. Callie among drug users and gang members seems off though facing her deeper problems has potential.

Sunday TV Watch

I only saw the end of the first game, but saw various parts of the second, which was more interesting. To follow a theme, though it didn't help them then, Seattle was helped by at least one major ref f-up. Downtown Abbey was dull again (kept switching to game). Good Luck Charlie was okay -- it's ending & it's time. A.N.T. Farm too.

? v. Broncos (Home Team)

It's fitting -- Eli won at Peyton's home stadium. Now Peyton will try to win at Eli's. Low scoring game with the Pats held down except for a field goal until the 4Q. Game in effect iced after a still risky 54YD field goal attempt was successful. Could have set the Pats in decent field position toward a 23-17 deficit. Still, "also ran" feel to this. Here's why as to home team.

Update: Seattle wins in messy game. SF had good shot until end. Two #1s

Ohio's latest struggles with lethal injection

The first electrocution did not go that well, so it is not surprising if a new drug protocol did not either.  Family members plan to file a lawsuit, which I comment about here. Note even someone (a fan for some time) sneering at me has to assume the conclusion and later talks of "optics," again assuming nothing went really wrong. And, is annoyed (repeatedly) when I dare to assume even prisoners (and family -- it lacks a certain bit of empathy to not at least understand their feelings here) deserve the chance to bring claims in court.

"the purpose of the courts well to uphold the right to privacy"

"Rev." Joe providing some thoughts on Firefly, we move to another favorite subject -- privacy rights.

A recent post cited a good summary of why it is important, some of the reasons at least having a constitutional component. Anita Allen, who wrote some books on the topic, wrote in Balkin's book providing alternative opinions to Roe v. Wade that there were at least four aspects of privacy. Later, she helpfully noted in response to a comment that there are more correctly at least six.  The "right to privacy" might be phrased by some as part of "liberty" (see, e.g., Lawrence v. Texas) now, but I think the concept reflects important principles and deserves to be honored.

The importance of "privacy" was famously addressed by Brandeis and Warren in a famous law review article over a hundred years ago. Various opinions spoke of the importance of "privacy" or "private life" in various respects, related to various things.  So, Griswold v. Connecticut was in no way something that came out of nowhere. It is therefore unfortunate that it is so thinly argued. Like Roe v. Wade, et. al., I am annoyed by the breadth of criticism since as a whole, especially relatively speaking, such opinions have merit.  Particularly for the basic core thing being protected, which is not always able to be expressed in a crystal clear way.

This immediately came to mind in response to a comment by a law professor thinking about writing about the "Four Horsemen." One of the mostly forgotten ones in Justice Butler, though on some level, he seems an interesting character -- e.g., the sole dissenter in Buck v. Bell. See, e.g., the article I linked here.  OTOH, it is somewhat telling that he dissented without an opinion. Like the solo dissent without opinion (then because of illness) in Bradwell v. Illinois (woman's right to be a lawyer), an unfortunate example of an alternative viewpoint being absent.  As suggested by the article, there were lower court opinions declaring eugenics laws unconstitutional. There was another way.

Justice Douglas touched upon cases where there was a right to privacy though it was a half-way effort (Justice Harlan did more in his dissent in Poe v. Ullman).  He did some more heavy-lifting in a separate opinion for Doe v. Bolton, the companion case to Roe.  This included a brief reference to a few cases involving congressional investigatory powers that recognized limits when privacy is violated. Sinclair v. U.S., a unanimous Butler opinion is cited.  The outer limits of Congress' power is unclear but the concern for privacy led the Supreme Court to carefully examine the need and nature of the investigations. IOW, there was -- to use current language -- some heightened scrutiny warranted. As the opinion noted:

It has always been recognized in this country, and it is well to remember, that few if any of the rights of the people guarded by fundamental law are of greater importance to their happiness and safety than the right to be exempt from all unauthorized, arbitrary or unreasonable inquiries and disclosures in respect of their personal and private affairs. In order to illustrate the purpose of the courts well to uphold the right of privacy, we quote from some of their decisions.

The sentiment was followed in Watkins v. U.S., a Red Scare case. Justice Butler, as shown in the article, was consistent -- e.g., he was a dissenting vote in Olmstead v. U.S., the wiretapping case better known for Justice Brandeis' historical dissent. He was not always libertarian (see, e.g., him joining the dissent in Near v. Minnesota), but his economic "four horseman" philosophy was also not just a PTB protection racket.

Anyway, a unanimous 1920s case spoke of "the purpose of the courts well to uphold the right to privacy."

RIP Hiroo Onoda

"Life is not fair and people are not equal. Some people eat better than others."

Some truth to that. A quote (some others) from a WWII Japanese soldier who refused to surrender until the 1970s, who died recently.

Faith in "Jaynestown"

As noted, I am watching episodes of the sci-fi show Firefly, which has some religious overtones (as done other works of its creator -- see, e.g., Buffy).  I noted that as a whole the world does not appear much different than ours, just that it occurs in space with a few things changed.

The major thing is that many people sprinkle Chinese in their conversation.  For instance, the preacher character compares something to "talking in the theater," which seems to be a pretty 20th Century reference. He also appears so far to be Christian -- the episode at issue here including a his Bible.  If anything, settling on outer planets leads to examples of more primitive civilizations. There is a carefully regulated official prostitution "companion" system, one of the lead characters a member.  For a non-cable television program, the whole thing is well done, but this sort of thing sorta annoys me. Star Trek is in various ways the same way, if less so than here, if less complex in other ways.

It's not about making sense. It's about believing in something, and letting that belief be real enough to change your life. It's about faith. You don't fix faith, River. It fixes you.

"Jaynestown" was a good episode that had an overall theme concerning the importance of faith and how others are confused about it. The episode also has a nice subplot involving the companion and different ways of becoming "a man."  There is also a few amusing scenes involving various characters, including the troubled girl being thrown by the preacher's (who turns out to have a mysterious back-story only discovered in a graphic novel) hair being all out and about. The girl also doesn't understand the Bible -- the Flood story, e.g., is all wrong, except maybe by use of quantum mechanics or something -- "fixing" it is difficult! Preacher explains that you don't "fix" it that way, that the point is to use faith to believe in something and change your life for the better. The full implications weren't addressed, but it was a thoughtful moment.

Doesn't quite seem to get thru (in another episode, the girl's special powers was seen as witchcraft ... be interesting to see how the preacher would have answered their primitive biblical analysis).  Meanwhile, turns out the most disreputable of the crew (Jayne) became a local legend at some backwater. The reaction when the crew hears a ballad in his honor is hilarious.  Turns out that when he had to dispose of some ill gotten gains, it landed on their town, and they saw it as a heroic move against the PTB.  Even when his former partner is let out of prison by said PTB to go after him and explains what happens, the people stick with their beliefs. One person even sacrifices his life to save Jayne.

This totally throws Jayne into a loop, especially given his cynical view of human nature. The captain, a cynic with a heart of gold (the first shown episode makes this clear while the original premiere movie was darker), suggests to him most people who have statues made out of them are probably SOBs in some fashion (Jayne knocking down his own statue reminded me of Saddam Hussein's statue being knocked down). "Ain't about you, Jayne; it's about what they need." And, that is often what is behind myths and religions often enough too. The truth of the matter isn't the ultimate point on a factual basis. It is the meaning -- a higher truth.

Doesn't mean that factual truth doesn't matter at all. Knowing Jayne's true intentions and nature could have been important. Also, trying to use the Flood as if it is some sort of scientific event will likely cause problems if that is taken too seriously.  But, as a myth, it has some value. I think the same might be the case -- to address a recent something -- to natural law or the idea of rights in "nature."  Maybe, I really haven't read the originals much, each of these thinkers actually imagined humans lived in nature in a certain fashion pre-government. Or, maybe, it was partially a fiction, a sort of philosophical myth to make a point. Ain't about nature's people.

And, then, some thinking they are all smart and all, point out that it's not really true. But, a myth isn't totally true. That's not the point. Bet the originators tend to know it.

New Proposed Voting Rights Act

The Shelby Voting Rights Act ruling was wrongly decided, but it would have been better if the re-authorization was more up to date, if understandable that a safer older version was retained. The bipartisan (cheers to Rep. Sensenbrenner, who I generally have little reason to support) amendment might have a long hill to climb, but cheers. Check both links for more.

Firefly

I saw the movie continuation (Serenity) of this sci-fi show, but don't recall ever checking out the show on television. A recommendation online led me to reserve it and the first few episodes are very good. Nice use of scattered Chinese (not translated for some reason even on the DVD) given how geo-political things balanced out. Usual bit of the future seeming pretty much like now except for some fun toys in space. Nice extras.

Timothy Sandefur and the DOI

Timothy Sandefur is guest blogging at Volokh Conspiracy, which is going about as well as the last one regarding the proper interpretation of the Constitution. I do think his defense of substantive due process "makes sense."

OTOH, going into the weeds, including a recent post (click his name [twice] and you will get a list of his posts) on slavery and the Constitution, is a tedious business and he loses his way as various comments suggest.  Still, he is no "liberal," though he tiresomely brings out the "the Progressives killed off the Constitution during the New Deal" trope (yeah, one rather live 1900 as to limited government ... if you were the right sort of person), so he helps clarify the issues as seen by SDP.

Talking about tedious, I had debates with people who are on various issues people I respect that ended up with them lashing out at me (talk of "caterwauling" etc. -- the inability of some people to disagree without being disagreeable pricks is a pet peeve of mine).  This was particularly focused on the Declaration of Independence (DOI). This person insisted in effect those behind it were mostly full of shit, trying to convince "rubes" (his word) to support independence while not really believing what they were saying. Oh, just since apparently I didn't know, they supported slavery (the writer was a slave owning "rapist"), just to underline how full of shit they were.  The person also tossed in his usual distaste for use of religion here, confused as usual.

This sounds like a five year old view of things to me.  Pauline Maier, e.g., wrote a book on the DOI explaining how localities supported the same basic principles.  The DOI was a basic summary of the common sense of the matter, more or less, what was truly "self-evident" to the many at the time.  This included, quite honestly, the people who wrote the document. The general principles -- limited government, personal rights, republicanism, right to revolution, some sense that rights are pre-exisiting with governments set up to secure them etc. -- was broadly agreed upon, though the particulars were obviously debated.

Also, the DOI was a set of ideals (putting aside of bill of indictment of King George) that were imperfectly put in place by mortal governments.  So, they quite honestly believed in some sense of equality (e.g., poor or rich, certain basic rights), even if they denied it (even as some knew it was wrong) to slaves.  It is not naivete to state that they truly believed what they saying -- of course, "up to a point" and as applied imperfectly. One of the gems of the DOI is that like other ideals (such as the Ten Commandments) it stands as a goal to move toward. The inability or failure to meet it does not mean promoters are full of it.  And, the idea the people were rubes tricked by them was particularly distasteful.

Another person lashing at it me didn't like my guarded opinion that TS was correct up to a point to state that the DOI provides a baseline that the Constitution must follow.  The same person responded separately citing the clause about Indians being "savages" as an obvious example of how "we" don't believe in the DOI any more. Give me a break. The fact some stray remark (contra his comment, not a 'principle' but a misguided statement of fact in this case) is not supported doesn't mean the DOI as a whole still is not respected as a whole. Repeatedly, it was used up to today as a text to reaffirm basic principles such as equality. I am hard pressed, honestly, to find much that is out of date in it. 

TS thinks that constitutions should have a certain character to be just. On some level, though he loses me on the details, this makes sense. Political philosophers for eons have spoken about just government and the DOI does provide the basics of what is generally seen as necessary givens. It's written in such generalities that without more it is not enough. And, if you go down the list of abuses, e.g., some of the institutions (such as juries or separation of powers) may not be necessary. Still, is equality not? etc.

A particular argument is that there are certain underlining principles necessary even when amending the Constitution. Art. V only lists one express limit that is still active and personally I think that too can be avoided by amending the Constitution to remove the provision.  But, perhaps since we are amending the "Constitution" that there is implicit limits, perhaps suggested by the Ninth Amendment (rights protected even from amendment).  For instance, an amendment to deny some basic right deemed inalienable or at least of central fundamental importance.

TS suggests at some point this would be "unconstitutional" and even the courts should recognize the fact.  I think many basically think so -- that is, they think at some point an amendment is so just that it would be unjust to submit it. If somehow it went through, it still would be unjust. Now, ultimately, I think this a political question -- don't think the courts really would be best able to decide it. And, realistically, if the people wanted to, it could amend it. Still, even then, I think it better to at some point see it as a new constitution. A new government.  The DOI authorizes that and if the Constitution is so changed that it loses its basic character is it not more honest to say we have a truly new one?  OTOH, yes, perhaps that is what we have now -- the 13-15A, for instance.  So, maybe it's semantics.

I think the ideas that the DOI still matters (including as a means to interpret various provisions of the Constitution*) and holds true overall are correct. The limitations involved here are duly noted and there is no desire to be a naive idealist here. This includes realizing the imperfections and mixed motives of those who first put out.  Overcompensating the other way is as misguided, even if done with a bit more grace than here. And, who determines things here? Is it a tie to the hand of the dead? No. The DOI provides broad brushes that we today give meaning to.

The rub then would be if even the brushes were out of date. As noted, I don't see it. The only real problem might be the touches about "natural law," particularly references to some deity. But, natural law is a flexible animal, which can be translated to fundamental givens that are particularly important, but not quite set in stone (see also, "no" in the 1A).  As a whole, the people still believe in some sort of deity, but even there, it can be seen as more properly a sort of metaphor for justice or "good." It does not seem to me to alter the document too much to translate it in this fashion. As with other past works, including works of religion and philosophy, as a whole, it retains a basic value worthy of special respect. Not as a graven image, but still somewhat unique.

---

* One can find online various listings of the diverse citations of the DOI in legal opinions of varying types. One comment on the threads there note at least a few state enabling acts required that the government honor its principles, so it was a means of determining guaranteeing a republican form of government.  Also, the DOI was cited repeatedly by those involved in the 13A/14A, including to express principles of freedom, liberty and equality. Justice Stevens (later on too, then joined by Ginsburg) provided another example:

If man were a creature of the State, the analysis would be correct. But neither the Bill of Rights nor the laws of sovereign States create the liberty which the Due Process Clause protects. The relevant constitutional provisions are limitations on the power of the sovereign to infringe on the liberty of the citizen. The relevant state laws either create property rights, or they curtail the freedom of the citizen who must live in an ordered society. Of course, law is essential to the exercise and enjoyment of individual liberty in a complex society. But it is not the source of liberty, and surely not the exclusive source.

I had thought it self-evident that all men were endowed by their Creator with liberty as one of the cardinal unalienable rights. It is that basic freedom which the Due Process Clause protects, rather than the particular rights or privileges conferred by specific laws or regulations.

Justice (then judge) Cardozo once noted that natural law is usually cited to fill in gaps -- positive law provides text but the ultimate meaning and reach is at times unclear.  The DOI can serve this purpose. Not alone, but as a still relevant important document. 

Oklahoma Ban On Same-Sex Marriages Is Unconstitutional

The ruling was stayed since it's in the 10CA, but it provides more interesting reading. This time DOMA, sec. 2 was basically deemed hortatory, but the state DOMA was a violation of the 14A as an irrational discrimination by sexual orientation. The "common sense" skipping over of gender equality is by now standard if not compelled. Any port in the storm.

10 Reasons Privacy Matters

Good summary.

The Fosters Return

After re-watching episodes waiting, the new set begun tonight with a pretty good episode with a nice turn again by Annie Potts as Stef's mom. The final few minutes were very good too, including a "this can be you" shot of some young prostitutes. Better return than DA!

Recess Orals (Quick Take)

Starting from Adam Serwer's quick reaction tweet, talk is that the recess case is looking bad for Obama. Two things. (1) As to the Senate controlling things, they do -- THEY had announced "no business" when this occurred. (2) Obama rarely used the power anyway, lack of a NLRB quorum vs. a Republican attempt to nullify the law pushing him to do so here. The change of the filibuster rule is what concerns him the most. On some level, he won the war.

Downton Abbey

The series took time to get into gear last season, so the first extended episode being a bit dull was not really a red flag. But, I think the second episode was mostly dull too though a few plot lines chugged along. The only thing that really happened was horrible and like the end of last season, the knife was twisted to make it more so. Ugh. Starting to root for Mr. Molesley.

"The Medicaid Cure"

BTC News (who used it) is not supportive of Krugman's "Medicaid cure," arguing Medicaid does not provide satisfactory enough coverage. He is aware that expansion is better than the alternative of nothing. Also, he had a bit of a conflict with the LGM crowd. I think ACA is a foot in the door. We don't have the votes for Medicare for All. So, it's a matter of keeping perspective (lacking here on A-Rod) but pushing from the left flank is important too.

Championship Preview -- Go (yawn) Seattle

Ugh. Brady v. Manning for the nth time. Jets fans don't want to stomach Brady playing in their building, so eh, go commercial boy. SF's win today was annoying & they had their fun. A subdued push for Seattle now and later. SF over Pats, of course. Over Denver? Eh. Guess.

Seattle Better Play Better Next Week vs. SF

Panthers go ahead but are stopped from getting more. Panthers called for a head butt. No call on SF. SF stops Panthers. Panthers stop SF, overturned call. Panthers do nothing in Second Half. Bye Carolina. BTW, a 1/2 yard penalty or so for encroachment near goal line is ridiculous. Offensive false start there would be five yards. The rule is inequitable.

Update: Chargers fail to stop Denver, early & then late.

Rev. Joe -- Gospel of Thomas

I say, if the owners of a house know that a thief is coming, they will be on guard before the thief arrives and will not let the thief break into their house (their domain) and steal their possessions. As for you, then, be on guard against the world. Prepare yourselves with great strength, so the robbers can't find a way to get to you, for the trouble you expect will come.

I think Thomas had a reason to doubt in John. "His" gospel is interesting reading.

Sports Update

A-Rod's suspension was reduced to a season. Meanwhile, the '14 Jets head coach's brother's defense kept New Orleans in the game. Kept it 16-8 late. A late pass on 3rd Down / score made it 23-8. But, NO (3-3 now on onside kicks) managed to make it 23-15 and recover. But, an illegal forward pass ended the game, that final reasonable length Hail Mary denied.

Update: Colts couldn't come back from a hole this time, though it was close until the 4Q.

The Village Barbershop

Cliff is a barber now? A bit thin but mostly enjoyed this film.

Noel Canning Orals Preview

There is no surprise that these questions — with major political as well as constitutional impact — were stirred up by disputes over presidential nominations to the National Labor Relations Board. That seventy-eight-year-old agency, which oversees labor-management dealings, has become an increasing target of business hostility and, as a result, Republican opposition to its decisions and its membership.

I talked about the Recess Clause a few times, as noted here when talking about this particular application of the controversy. There is "no surprise" either that the stances of each side were somewhat different when determining what "happen" etc. means when a Bush judicial appointee (not required to provide a quorum as compared to NLRB members in this dispute, putting side any difference of such a life time appointment) was at stake.

The hair splitting game continues. To continue to quote the SCOTUSBlog preview: 

Predictably, perhaps, the jousting over recess appointments has now become a constitutional controversy for the Supreme Court to sort out, since no one else in government can declare just what the Recess Appointments Clause actually means.  Indeed, the case now before the Court involves questions about the meaning of these key words in the clause: “vacancies,” “may happen,” “during,” and “the recess.”

I think this is largely a political question, but then, even determining what is a "political question" and the scope discretion given to the political branches (to the degree one thinks the courts are not political, which I realize might sound a bit naive, if not wrong on other grounds)  is ultimately up to the courts. Cf. the definition of "try" in the case of impeachment. A game of word parsing here is at some point tiresome. There are various possible reasonable grounds to define these terms and the path taken by the executive (and not rejected by the current majority of the Senate, so the two sides are not in dispute, even if the minority of the Senate has a voice in the litigation -- which I continue to see dubious) is not an unreasonable application of the text. This should do it.

Judicial review is important in our system, but there still remains a presumption of constitutionality of political action, including the actions of the President and the majority of the Senate. The well respected Carolene Products rule is concerned with clear textual commands and threats to minorities that might need additional judicial concern. Big business interests that have the whole Republican Senate caucus on their side does not seem to be to apply very well here. National rules that might be threatened by individual states or even federal agencies might be an issue too. But, the ebb and flows of inter-branch disputes seems to be a prime area that political question rules should apply.

The Founders adopted the exception because, in a day when travel was extremely difficult, there would be times when the Senate would not be able to assemble to consider an appointment to a position that had become vacant.  It was written to assure that government agencies could continue to operate in the interim.

The first part might be the immediate concern but as usual the charm of the text (if also its vice) is that it goes further than that.  There is text and new concerns might arise that can be addressed by its usage. Also, the new concerns often -- as here -- still arise from the same overall purposes. The Senate could back then by inaction not fill vacancies and in the process inhibit the execution of the laws.  Travel problems is not the only reason to use the recess power. If modern political tactics or inertia results in vacancies, the clause can still be quite useful. And, phony "sessions" where advise/consent is not realistically available provides a functional recess that also provides an appropriate usage.

Finally, other than clear textual commands, a primary purpose to distrust the political practices is that some person or group lacks adequate security in the political processes.  Here -- though again the majority of the Senate is not complaining -- the threat is the executive misusing recess appointment power and infringing on the advice/consent power of the Senate. The Senate (and even a minority of it) has various ways to check any "abuses" here as to appropriate custom. The courts, especially by usage of at best debatable fine tuning of the text, need not step in.

If they do, the President should win on the merits. Will he? Eh.

A New New Testament

I have begun to read this book though probably won't read it straight thru. This is probably advisable given the length and time one should spend to carefully read scripture.

Anyway, I read the introductory and background material, including how the "new" material was chosen and some thoughts on its value. The latter was done in somewhat repetitive and rambling fashion, but some introductory remarks by John Dominic Crossan (a leading scholar sympathetic to the approach here, which some might deem "revisionist") made a good point.  The new material provides a contrast to the material in there already -- the more paternalistic Pastoral Epistles, e.g., can be balanced by the more feminist Acts of Paul and Thecla. Two different apocalypses is another example. The New Testament was always mroe diverse than some think (as a look at the gospels suggest), but this expands that. The additional works also provide more of a feminine voice. Plus, there is an emphasis on additional prayers or perhaps a sort of Psalms for the New Testament. 

Finally, the material is seen as an opening for a fresh approach that the editor (and various contributors to formulating the collection or helping to translate parts of it) particularly thinks is helpful to address spiritual conflict. There is a concern expressed that many today are spiritually troubled, not thinking old ways of religion appropriately deals with their needs.  I think the term "spiritual" is interesting myself, since it has such an open-ended meaning. The book uses it without giving a particular sense of what it means. I think that Wikipedia entry does a good job providing an understanding of what we are talking about here.

Don't know how many will be like those mentioned that teared up and gasped when they heard the Gospel of Thomas (doesn't seem that striking to me) and wonder if this is somewhat a matter of too much emphasis given to some "authority." ("It is great! Now, I have something in the name of Mary [Magdalene] that expresses my beliefs of the truth!")  There is some special connection we have with the past, including when we read and honor scripture.  So, use of writings from some past age as compared to something written later or even today that expresses the same thing is particularly special (sacred, spiritual) to people.

The collection limits itself to roughly to period of the original New Testament (175 C.E., which to me is rather late).  That's a plan, but not necessary.  The original New Testament was selected because it was felt that the material came from the age of the apostles. Some of the works are dubious on this front at best -- some of the epistles, e.g., were found doubtful even in the fourth century.  Still, we are talking stuff that mostly came within a hundred years or less of Jesus. Other than maybe the Gospel of Thomas -- a somewhat esoteric collection of sayings that it is not surprising really that wasn't included -- the usual material people think could have been included came later.  But, this doesn't mean they couldn't be added. The Old Testament spans a long time.

Some of the material not added also helps provide insight on that which was. Didache or Teaching of the Twelve Apostles is one example that provides early insight on Christian practices. It appears to have be written sometime in the late first or early second centuries. As I noted in the past, it was not agreed upon in this volume (if by a close vote) because of a prohibition of "abortion," which is ill-advised, especially because it isn't particularly clear just what that means.  Note, e.g., the reference against "pederasty" in that work. This provides insight on what Paul was concerned about -- not "homosexuality" overall, which was not really understood the same way as today.  The Greek terms he used in his list of forbidden sexual acts are still debated, but this reference to me is informative.  

One account I read (I can find it, but it's just one, so it isn't determinative anyway) noted that the Didache was not included because it did not seem to be of literal merit. Another suggested that it was seen as not really authoritative (not really "the twelve apostles"). But, it is a quick and interesting read, including in respect to its prayer for the Eucharistic meal -- thanks for Jesus Christ, but not an emphasis on his death and resurrection.  Not to put myself on the same plane as the scholars and religious personnel here, but like the person who led the effort, I would have included this work. Pagels and others also like it.

One theme of the descriptive remarks is the approach set forth by Karen King and others to de-emphasize the term "gnostic," which is deemed by this group misleading. It is deemed to cover too much ground as if a diverse group of material could be put under one umbrella and sometimes have an implication of "other" or "not quite orthodox."  The latter is not quite in the spirit of this enterprise. The material is worthy of study, and as I have noted in the past, in the air even as Jesus taught. Some of these writings (try this as a taste -- The Apocalypse of Adam) is hard going because of talk of "aeons" and other things, but reflected philosophical themes written by Philo (d. c. 50 C.E.) and others. And, the basic idea is not too hard to understand. Check out the Gospel of Judas, for instance.

A notable thing here is that the movement is not merely Christian -- Philo was a Hellenistic Jewish philosopher.  It brings to mind a parable of Jesus involving sowing the fields -- the time was ripe for the message. There are some universal themes here. The accounts, experiences and thoughts of a select group is found in most scriptures, including the Qu'ran. We should keep that in mind when trying to use them as universal guidelines. It is hard enough using the U.S. Constitution to govern us today and that was written by people in our own country not that long ago. 

I think this effort to try to find a more complete New Testament is fine.  But, the dreams of a Native American minister to formulate a sort of Native American Bible that brings together material from that tradition also shows its limitations. Part of the path to fully addressing the needs of 21st Century spiritual needs is to realize that they do not rest only on 1st Century (even if that means late 2nd) documents. We need not create new myths ala the Church of Latter Day Saints here. Various religions have grew over the years with their own new writings. The Hebrew Scriptures spans over a thousand years even beyond its mythical opening. The Christian Scriptures can extend for over a century. 

There are various collections out there (down to Atheist Bibles), but I think that would be a good effort. A "testament" that provides writings that reflect the story of Christianity thru the ages, including such things as medieval writings of Thomas Aquinas and tales of martyrs in England and France. An excerpt from the Crusades and modern appeals to strict to fundamentals plus a reply to such a move. This covers a lot of ground, but I can imagine it being done in a reasonable sized volume or two.  

Anyway, one more thing. A New New Testament might lack useful explanatory footnotes,* but I again note that it has an attractive font. It is very readable and inviting on that front.  

---

* As noted before, most bibles have footnotes noting translation issues, parallel or related biblical verses and at times specific discussions of the matters addressed. 

Some of the people involved in this work did help put forth a "Jesus Seminar" effort that tries to determine the relative historical nature of the four gospels, tossing in the "Q" sayings, a few Jesus related quotes in other NT books & the Gospel of Peter.  (Looking at it some more, a few other references, including from the Gospel of Thomas is tossed in too.) I obtained a cheap copy of this guessing job and it does provide some such material for the material covered -- it is overall a commentary of the material.  

Utah SSM Update

The marriages performed from the time of the ruling to the USSC were put on "hold," which to me is a certain nuance that is different from saying they are void. The drivers' license bit might sound silly, but that is an important piece of official i.d. (for me too). How will other states treat such marriages? As noted in the letter, will ultimately be up to the courts.

Update: U.S. will recognize Utah same sex marriages.

Debby Ryan "The Story of ARDY"

Found this cute. YMMV.  More here.

Baseball Hall of Fame

This is one of the people who find it outrageous that steroids has kept a few people out. Not one of them. Piazza likely to come in next year. It isn't prison or something. It is a ceremonial honor. The concern is real though as applied to him is admittedly weak. But, a year of no picks sent a message and a minority still aren't sure enough time passed. Fine. Meanwhile, A-Rod in trouble for interference with an investigation too. He's no martyr.

Execution of One of the Abolitionist "Hard Cases"

There were a handful of USSC orders rejecting stays for someone eventually executed particularly for killing a prison guard (in 1980) while on death row (for a 1974 abduction/murder of a couple). Breyer attached a dissent to one (citing a 1999 case involving this person) pursuant to his concern for those on death row for a long period of time.

USSC Stays Utah SSM Ruling

No reason given. Expected and on balance reasonable. Good luck in the 10CA.

Downton Abbey

As in the past, first episode of new season a bit dull. Two hours seemed a bit excessive.

Mind If I Order the Cheeseburger? And Other Questions People Ask Vegans

The author of this book is familiar from me from her regular legal essays at Verdict and involvement with her husband and others (primarily one other person, all three vegans) at Dorf at Law. The book is one of many that discusses various aspects of veganism.* It addresses such things such as "what about plants," why vegetarianism isn't enough nor is lack of purity a reason not to be vegan, abortion, native groups, religion and other issues. Overall, she provides some interesting analysis using the legal analytical approach familiar at Verdict in a strong but polite fashion.

As to the title, either order a vegan cheeseburger, or understand that it is polite to take into consideration the desires of your eating partner. If you are really serious about the question, the person probably would say "yes" if totally honest though personally I don't mind too much -- perhaps, I should more. Then again, I'm not a full vegan yet. Really, there are enough alternatives that you can have with your vegan eating companion, if you really are worried about it. Finally, a cheeseburger is a pretty blatant thing to have. 

I personally did not find it earth shattering or anything though like various standard things (such as discussion of abortion generally or some other issue) how she approached it was notable and different in various cases. For instance, the chapter on abortion is fairly notable while her one on religion matched up with the Jewish faith she was raised on (strikingly, she is a child of Holocaust survivors -- she was born in 1966).  As one Youtube review noted, however, if you are familiar with this stuff, it isn't that sine qua non or anything. The forward on that point is a tad overblown.

The introduction provided "the simple case for veganism" -- health, environment and animals.  The first reason is why Bill Clinton apparently is now a vegetarian (who knows if he is pure on the point -- we are talking Bill Clinton here) though it really isn't enough -- you can be pretty healthy and still eat animal products. Still, animal products are a major cause of the dietary and health issues in this country, particularly the fatty nature. Factory farming also is a major threat to the environment. But, concern for the moral well being of animals is really the determinating factor here.

I personally am what is known as an "ethical" vegetarian -- someone who chose this path because of a particularly ethical and moral approach. My basic sentiment in the mid-1990s was that on an equality level, animals warranted enough respect that avoiding unnecessary harm to them was appropriate. The fact I liked to eat some of them was not really an appropriate enough reason to be part of their harm. Neither is optional wearing of their hides or the like. The book does not really cover animal testing or zoos, by the way, which suggests it is not meant to be comprehensive. Still, a lot of the former is clearly unnecessary, while the latter very well might be acceptable if done the right way. Not free from problems.

Anyway, the chapter that turned me off is the one where Prof. Colb argues that certain animal welfare laws, particularly those to make their lives on farms and in slaughterhouses a little better, are counterproductive. Why? Well, they take a long time to kick in, are underenforced, are defeatist (the best we can do?) and encourage people to think the animals now have decent lives. Something similar can be said about a range of partial solutions to problems that are not going away any time soon. It comes off as some sloppy "perfect is the enemy of the good" fallacy. No sale.

So, I also welcome those who do partial steps toward protecting animal welfare, even if they don't fully respect animal rights or think animals have rights. Those who don't eat veal, e.g., might only being doing a little thing, but  it is something and hopefully they will take the next step. Her chapter on the Bible is telling -- even if Jewish scripture can be read to allow animal usage only as an imperfect expression of the limitations of human wants, it is a realistic thing for it to at the same time set some basic floor.  Paul noted as to marriage that it very well might not be ideal, but if you have to do it to avoid immorality, it can be better than the alternative. He didn't just say that supporting marriage at all is wrong, since it is an imperfect approach. He was realistic about human nature.

Also, she is a bit too quick to say that being vegan is so easy. It might be for someone with her means, including those who have the wherewithal to make vegan recipes etc., but it is not totally easy for everyone. I myself am not a cook and even "simple" recipes are not so easy for me, plus don't have a home stacked with the many ingredients so many of them have. The basic example of her ordering at a restaurant is telling -- loads of places don't have too many vegan options. And, yes, some don't want to wait until later to have a vegan desert. It is great that many places now have a range of vegan options, including big supermarkets or Whole Foods style stores. Plus, especially with mail order, there are ways to get vegan options, including footwear. But, like those who eat badly in other ways because of what is readily available, being vegan takes some work.

[I personally never really liked eggs much and am not a big seafood person. As to foods I do like more, milk products directly seem to be too much. I do let myself go with foods where milk and eggs might be in there -- the real concern here would be muffins, since I'm not really a big cake eater. I avoid products that have other animal products, including various process foods like "vegetable" soups or the like. So, I though I'm closer to being a vegan than some, vegetarian is an honest label. Still, since I don't blithely eat cheese or eat regular ice cream, that is somewhat misleading.]

One thing that comes to mind here is a matter of line drawing.  A late chapter addresses bees -- she notes that they might have subjective experiences and feel pain, plus consistency makes it useful to not have honey. Better safe than sorry, plus there is little reason to have it given the alternatives. Things like mussels and oysters are similar and her husband once summed up the concerns -- possibility of some feeling of pain, concern for health and possibility of other animals (such as dolphins) to be caught in the process. There also can be environmental concerns in the raising of seafood.  It is an ill advised indulgence.

Regardless, this is a footnote to a much great usage of animals where pain is a no brainer. Thus, her "why not just be a vegetarian" chapter focuses on eggs and milk products, not touching seafood or honey.  As with other things, some basic perspective should be kept here.  A priest might be a more holy person than a parishioner, but a pretty good church goer will be a lot better than many. Anyway, the book is worth a look for those who have a chance.  As with others, as it goes along thinking thru things, you will benefit, even if you don't totally agree. [When a ref explained why a call on the field stood yesterday, I thought "huh, this is a good way to teach people logic and reasoning."]

One more thing. What about abortion? First, the chapter repeatedly used "fetus" -- this bothers me, since most abortions occur earlier in the development, when there is an "embryo." This is half the point -- abortions generally occur before there is a sentient being, which is different from killing a live dog. Second, there is a major difference in justification. The chapter addresses this, the fact that women are required to in effect be Good Samaritans if they stay pregnant. The true late term abortion, a rare thing, involves a fetus that can be viable, but nearly always there is some compelling reason it is done. The typical abortion occurs when the embryo is much less developed and it still is done for a pretty compelling reason for the person involved. A lot more compelling than optional dietary choices. The chapter made it a tad too hard.

---

* The book notes "Vegans avoid participating in violence toward animals. This is a broad thing really and does not just involve eating, which is basically (if not completely) the focus of the book. Veganism can be seen in a broader light -- Compassion the Ultimate Ethic: An Exploration of Veganism by Victoria Moran is recommended on that front -- veganism as in effect non-violent living.  I personally think that is a good ideal and my own stance on eating, wearing etc. animals is part of a bigger picture.