Quick Thoughts

The Ninth Circuit stayed the Prop 8 ruling which is reasonable enough. It will delay the next step for a few months. Meanwhile, saw the first half of S2 of FNL: pretty depressing and somewhat stiff stuff. The quick turnaround of coaches was pretty blithely done too.

Cut The ****

Sen. Reid has joined the concern trolls in respect to the downtown Islamic Center. Are you f-ing kidding me? As with those soooo concerned with lines now that same sex couples want to marry, I'm sick of this ****. Get your damn priorities right.

No Fault Law Signed NY

And Also: Apparently, it's time to make it official over at the NY Daily News with various articles like "2006 to 2010: How the New York Mets have flushed four years down the drain." Oh, btw, K-Rod will be out for the rest of the year, probably because of his assault. Charming.

As Judge Walker noted, the institution of marriage has undergone various changes over the years that altered its basic nature in many respects. One way that most take for granted now, though some think it immoral, is to ease the ability to end marriage. The inability of achieving divorce should be of special significance to this country given its mother country, England, underwent a major change when the Church refused to annul the marriage of King Henry VIII.

Yesterday, New York joined the rest of the country when the governor signed into law a no fault divorce law. By unilateral proclamation of one party that for six months the "marriage is irretrievably broken," divorce will be final if property and other ancillary matters have been dealt with. The wait and the need to address these issues, including child arraignments, underlines the special nature of "marriage." Some mere contractual arraignment need not have such a waiting period. But, the Supreme Court, Maynard v. Hill, has long held marriage is not merely a "contract" like any other:

Marriage is something more than a mere contract, though founded upon the agreement of the parties. When once formed, a relation is created between the parties which they cannot change, and the rights and obligations of which depend not upon their agreement, but upon the law, statutory or common. It is an institution of society, regulated and controlled by public authority. Legislation, therefore, affecting this institution and annulling the relation between the parties is not within the prohibition of the Constitution of the United States against the impairment of contracts by state legislation.

No fault divorce become common in the latter part of the 20th Century and altered significantly the institution of marriage, easing its creation and dissolution. The New York law also recognizes that another institution that has been more recognized in recent years [it did exist in the past, as noted by the defense witness cited by Judge Walker, in some societies], same sex marriage exists:

It is the intent of this legislation to grant full recognition and respect to valid marriages of same-sex couples to obtain relief under New York State laws and in New York's courts. While the Domestic Relations Law uses the terms "husband and wife" in some places and "plaintiff and defendant" in others, in using the terms "husband and wife", it is not the intent of this legislation to preclude access to relief under the Domestic Relations Law by same-sex couples with valid marriages performed outside the state.

If California, however, only protects a "domestic partnership," this rule would not apply. The failure of full faith and credit is but one matter that makes that regime unequal. Of course, New York has its own problems -- why recognize out of state marriages, if the marriages are not in all intents and purposes as valuable and equal as those that are not protected when New York itself provides the marriage license? Sometimes, comity justifies that, respecting marriages in nearby Connecticut for instance, but still ... why not do it all the way?

Focusing just on this law, the old way required a one year separation and consent of each party for "no fault" to work. But, many are not able to live independently like that or do not, and sometimes one party will not consent. This results in some sham marriages, or at least, marriages that are not really marriages in most respects, but legally deemed as such as a sort of legal fiction. Marriage rights usually is a way the government aids in the promotion of happiness, here it was often an artificial way to hinder that process. And, it could often hurt the party with less power, the other able to handle things just fine.

And, I can understand opposition from conservative groups, but NOW? One article said that they are "worried that it could make it easier for wealthy men to hide assets during a divorce proceeding," but how? Putting aside the benefit to women in relationships where the man refuses to divorce and separation might not be possible (e.g., a battered woman without the means to live alone), the new law still requires property and other matters be settled. If the woman thinks assets are being hidden, she can challenge the settlement.

To summarize:

Up to now, the only grounds permitted for divorce in New York have adultery, abandonment, cruel and unusual treatment, imprisonment of one of the spouses and separation for one year. Judges have frequently been forced to reject petitions for divorce.

"By removing the requirement to prove fault, divorcing couples and the courts will no longer have to waste resources litigating on whether a marriage should end, but will be able to better focus on issues such as the welfare of the children, fair division of marital assets and other economic concerns," said Stephen P. Younger of Patterson Belknap Webb & Tyler and president of the state bar. "The court system will ultimately realize substantial cost savings."

Also, related laws were also included:

Mr. Paterson also signed another bill favored by no-fault divorce advocates, A7569/4532, which requires payment of counsel and experts' fees to the "non-monied" party in a divorce action. Bill sponsors said the measure would level the playing field and allow the spouses—generally the wife—who has made little or no money during a marriage to protect their interests during a divorce.

Finally, Mr. Paterson also indicated that he had signed A10984/S8390, which will establish a schedule for temporary maintenance payments to non-monied spouses as their divorce proceedings move toward finality. The measure directs the state Law Revision Commission to study the effects of divorce and the new temporary maintenance schedule and report to the Legislature and governor on possible changes.

I will read up more on this, probably, but at first blush, this looks to be a good thing. New York lagged behind other jurisdictions and this led to some troubling results.

TV Quickies

The disrespect of the 4A aside, tonight's Army Wives was a good murder mystery plot; Drop Dead Diva was more average. Lost in Austen is today's DVD pick; a bit too long, but a good fantasy about truly being lost in a fictional world. More Elizabeth Bennet please!

"This is America"

[Update: Glenn Greenwald et. al. are now saying Obama is somehow walking back from his comments, noting how much of a "very limited nature" they are. Digby is linked with a usual "what a weak willed loser" type of analysis.

But, I'm with TPM. What did they read the first time? Obama didn't "support" the choice directly; he said they had the right, pursuant to local ordinances (and local officials, nearly unanimously, did authorize their actions), to do what they are doing. This to me was a good thing to do, especially mixed in with some nice words about Muslims as a whole. The overall message being sent is supportive -- you don't usually emphasize rights like this when let's say the KKK wants to march or something.

As to avoiding the question if this is "the right thing to do," getting involved in specific placement questions like that really is likely to be troubling. His opinion on every odd thing might be raised and isn't that more a local zoning issue? Again, the two questions are likely to be felt to be tied together anyways, but not explictly so. Best of both worlds in a way. {Last few sentences added.}

I call, like TPM, false controversy. Also, the reference to "lower Manhattan" is helpful since all this talk of "Ground Zero" implies it is actually being built there, not blocks away in place of a coat factory building. Sacred ground, is it?]

When judging various controversial matters in recent days, we have to remember who we are. There has been some controversy over the building of an Islamic Center in lower Manhattan. Confusion aside, no, it is not being built on the ashes of the Twin Towers. It is planned for a few blocks away, replacing a Burlington Coat Factory store. The local planning board, with one exception, okayed the deal. The mayor (my mayor) supported the move eloquently:

“The simple fact is, this building is private property, and the owners have a right to use the building as a house of worship, and the government has no right whatsoever to deny that right. And if it were tried, the courts would almost certainly strike it down as a violation of the U.S. Constitution.

Furthermore:

“Let us not forget that Muslims were among those murdered on 9/11, and that our Muslim neighbors grieved with us as New Yorkers and as Americans. We would betray our values and play into our enemies' hands if we were to treat Muslims differently than anyone else. In fact, to cave to popular sentiment would be to hand a victory to the terrorists, and we should not stand for that.

But, others have been upset. They think it a travesty. President Obama disagreed:

But let me be clear: as a citizen, and as President, I believe that Muslims have the same right to practice their religion as anyone else in this country. That includes the right to build a place of worship and a community center on private property in lower Manhattan, in accordance with local laws and ordinances. This is America, and our commitment to religious freedom must be unshakeable. The principle that people of all faiths are welcome in this country, and will not be treated differently by their government, is essential to who we are. The writ of our Founders must endure.

The Muslims here are part of our nation, one with core values:

They are part of an unbroken line of Americans that stretches back to our Founding; Americans of all faiths who have served and sacrificed to extend the promise of America to new generations, and to ensure that what is exceptional about America is protected - our commitment to stay true to our core values, and our ability to perfect our union.

I don't think the Omar Khadr trial truly stays true to these values. One lawyer involved in human rights cases in Britain put a certain spin on the issue, saying that he can be tried by a military trial for alleged violations of laws of war (and perhaps should have combatant immunity), even given his age (which can be treated as a mitigating factor), but still the trial is trouble:

My objections are to (i) the trial taking place at all in Guantanamo Bay, out of sight and out of mind and largely “under the radar” of public scrutiny and (ii) the flawed procedure of the Military Commission process. ... It says much more that the Court has ruled confessions admissible – see Omar Khadr’s trial has been tainted by coercion.

This is a trial which should not have proceeded and the international reputation of the United States will only be damaged as it continues.

After all, this is America. Is this supposed to be the face of the military commission process?*

---

* One person who has angrily denounced this trial is Glenn Greenwald, who spends much of his time in Brazil. He doesn't do so for the weather. His partner lives there and under U.S. law -- unlike there -- residency allowances are not provided to same sex partners. Again, is this really America?

Closer? Who Needs a Closer?

No closer? No problem! Just have two complete games, one a one-hitter (by the pitcher; the Mets never had a no-hitter). The team had the most shutouts in the league. Consistency -- first two game winning streak since June -- well, not so much. No Perez today!

2nd Cir. Overturns Bill of Attainder Holding

As suggested here, the Congress enacted a "bill of attainder" by targeting ACORN's funding by in effect prosecuting them for crimes that some fakers implied they committed. A district judge agreed, but now is (wrongly) overruled. Form over substance.

Who Knew?

Before I started watching FNL, I saw Legion, which co-stars Adrianne Palicki. Yeah, Tyra. Meanwhile, a check on YouTube and who knew? Chelsea Handler, the off color cable show host, loves the show.

More Mets News

A Mets beat writer assured us on the WFAN today that Perez will not start on Saturday. I'll be convinced when it doesn't happen. The Mets actually had a good day, but still not two in a row (last occurring in June). And, yes that was Ron Darling in Shallow Hal.

One just has to laugh

Saw a reference that Oliver Perez might be starting on Saturday (the usual guy back in the bullpen, apparently to help blow games), which is amusing and all in itself, but now this. Mediocrity ... if only! [Tidbit: Citifield has a "holding cell" where K-Rod was held the night.]

"Rational Basis" Should Be Rational

And Also: The Last Gasp: The Rise and Fall of the American Gas Chamber by Scott Christianson provides a useful comprehensive summary, including its origins in other (civil and military) contexts. Its style is flawed though, a trudge early, a bit too cursory late.

The debate over the Prop 8 ruling is fairly tedious on various grounds. One argument repeatedly made is that marriage is a state issue, so the federal courts should leave it alone. This runs into Loving v. Virginia:

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State.

Here gender/sex is the illegitimate classification. Another argument is that there is a "rational basis" for Prop 8. The ruling in fact argued that strict scrutiny applies, but that even rational basis is not met. This review in the eyes of some is easy to meet. For instance, allow same sex marriage and state recognition of polygamy might be threatened. Mind you, as the person arguing Loving for the state of Virginia noted in respect to threat to family harmony admitted, the argument is weak. Citing it doesn't me "I" believe it to be true. It just is credible enough to meet the test.

IOW, the review doesn't really require rationality. Any honest analysis would suggest that polygamy is not threatened when same sex marriage is allowed, particularly when same sex domestic partnership with most of the rights of marriage is already in place. Particularly if the state, by state constitutional compulsion, gives strict scrutiny to same sex classifications in every other respect. Anyway, wouldn't allowing same sex sodomy also rationally be believed to cause this? The usual parade of horribles were made there, such as "polygamy, homosexual, same-sex marriage, consensual incest, prostitution, fornication, adultery, and possibly even personal possession in private of illegal drugs."

This only means "rational basis" is being selectively used, some say. When fundamental rights are at stake and/or "irrational prejudice" is apparent, maybe this is fine, even if the Supreme Court isn't totally honest about it. Same sex relationships is one area where this has been done -- Lawrence v. Texas didn't bend over backwards to find some "rational" basis for what was clearly based on selective personal morality and/or prejudice. Ditto when rational basis was deemed not present because of the mess of exceptions and lousy fit that a health rationale for a law against premarital distribution of contraceptives was something that one "cannot believe." The law was if anything more credible on that basis than California's law against same sex marriage.

In other cases, "every conceivable basis" is enough. But, the basis has to have some shred of rationality:

True, even the standard of rationality as we so often have defined it must find some footing in the realities of the subject addressed by the legislation.

Such "realities" is what the fact-finding and conclusions made by Judge Walker includes. We can call this "rational review with teeth" or whatever, but it shouldn't just be about making shit up. Yes, "rational basis" need not be conclusive or narrowly tailored. It can be under or overbroad in various respects. But, it has to have some degree of credibility, "some footing" outside of make believe. Perhaps, it also is a matter of expecting a little more (see the Massachusetts state ruling that also rested on rational basis -- "real and substantial relation" and "logically believe"*) of rationality. And, as with gender discrimination, rational basis is not even enough here.

But, if it was, a fair analysis of the term would suggest it was not met.

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* The ruling cites Justice Stevens, who put forth a good guiding principle:

The term "rational," of course, includes a requirement that an impartial lawmaker could logically believe that the classification would serve a legitimate public purpose that transcends the harm to the members of the disadvantaged class. [n4] Thus, the word "rational" -- for me at least -- includes elements of legitimacy and neutrality that must always characterize the performance of the sovereign's duty to govern impartially.

As noted by Romer, a badly fit policy "imposing a broad and undifferentiated disability on a single named group" is suspect here. The domestic partnership scheme does make this not as blatant, but marriage still provides a collection of rights, broadly denied here to same sex couples, even those who in every relevant way are the same as those who have marriage rights. Necessary neutrality is lacking there.

And, as Stevens notes, history of discrimination and so forth helps us to determine this fact. Doctrinal neatness might allow us to draw some lines, but the truth of the paths of Marshall and Stevens in the cited ruling also is convincing.

Friday Night Lights

One more thing: as usual, various teen characters are played by people years older (insert Clueless quip here on point), which at times is a bit disconcerting. When one has an affair with an older mom, it really doesn't seem that bad, since the guy looks in his 20s anyway.

Every Dog Has Its Day

One of those days -- the great MR slipped, while the Mets managed a 1-0 win versus a 17 game winner. The second 1-0 win in a few days. Meanwhile, El Duque -- who pitched on both teams -- is still trying to get the call. Is he really 44 or older? No Mets, don't take him!

Friday Night Lights: First Season

Saw this on Netflix. Overall, very good, particularly the characters. A few issues: too many miraculous finishes. Some story lines, including an attempted rape, not fully fleshed out. No real truly dark character; "Voodoo" pretty simplistically handled. Looking forward to S2.

Courts Doing Their Job

[Interesting possibility that Prop 8 could have been lost by default. This offers a suggestion that the state once was agnostic, allowing standing, but now that that the governor opposes a stay, is this an out for the Supreme Court? The below is a response to this article.]

An independent judiciary with the power to declare unconstitutional the laws of legislatures is an important aspect of our republican system of government, a recognition of the limited power of the elected branches. As James Madison said when introducing the proposal of a Bill of Rights:

If they are incorporated into the constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights.

The Fourteenth Amendment in particular was ratified with this principle in mind. The rights it secured -- citizenship, privileges or immunities, equal protection and due process -- were in theory at least in part or in whole already protected by the states. Due process of law was a basis of freedom with origins as far back 1215 if not before. Each state allegedly protected it, but repeatedly, it did so in the breach, especially in respect to certain classes of people. States therefore could be the enemy.

Madison knew that too. Already, the U.S. Constitution restrained states, the federal government and its justices playing a part -- e.g., states could not use paper money for debts, a federal judge declaring that unconstitutional right out of the gate. But, Madison wanted to go further, believing:

there is more danger of those powers being abused by the State Governments than by the Government of the United States

He wanted the Bill of Rights to include protections against the states involving "equal right of conscience, freedom of the press, [and] trial by jury in criminal case." As with certain other things, he failed. But, the Fourteenth Amendment did offer more national restraints, including those upheld by federal judges, time showing the problems with just entrusting fundamental rights in most respects to popular will, even state popular will.

This is what these judges did. Rights aren't just liberal or conservative, libertarian or whatever. They can protect any number of people. The people against the ruling support judicial review in other cases, "activism" yet again too often a matter of whose ox is being gored. Their ox is better, the other not, sometimes no matter what the facts hold: as fisherman noted in response to a debate in the NYT about fish feeling pain: they simply won't accept it. This is not just something opponents of same sex marriage do either.

The facts in Arizona and California are specifically about the laws of that state invading federal law. It will be made a national issue, but the law of that state should be the immediate concern. The Prop 8 case should be about California, the facts more about that state, even if some apply to all. Focusing on that, the ruling need not be as broad as some want or fear.

"Catching, but Not Releasing"

Interesting debate on how much fish feel pain and what to do about it. To make a decision, including one involving balancing options and realities, it is helpful to know the details. A careful analysis, especially with sensitive subjects, sometimes is hard to accomplish.

TV Quickies

Drop Dead Diva / Army Wives both were enjoyably easy viewing last night, the former using a haunted house plot (minus the result) used in L.A. Law (connection: CJ's law professor). Meanwhile, a pretty lame late night movie starred two FNL gals. Exciting, huh?

Full Value for Your Overpriced Movie Ticket

Good article on staying to [until?] the end of credits.

GPS Search Overruled

[Prop 8 stuff separated.]

Orin Kerr, an expert in the field, flags an interesting case that I first saw referenced on the news update portion of the paper he singles out as likely to support it (NYT; I found that a bit catty). Also discussed in this informative Washington Post article, it concerns a libertarian leaning panel striking down GPS monitoring without a warrant. Kerr doesn't buy it, including its "mosaic theory" that a search can be problematic as a whole. (One comment compared it to torture being a result of the sum of the interrogation's parts, which seems appropriate). To wit:

“A single trip to a gynecologist’s office tells little about a woman, but that trip followed a few weeks later by a visit to a baby supply store tells a different story,” Ginsburg wrote.

He added, “A person who knows all of another’s travels can deduce whether he is a weekly churchgoer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups — and not just one such fact about a person, but all such facts.”

Kerr also thinks Supreme Court precedent that allows attaching beepers to cars [late update: actually, it isn't even that -- it involved putting a beeper in a container of ether which a person then obtained without knowing it; the issue of placing a beeper on the car or item in a person's immediate possession wasn't even at issue ... more evidence that Kerr is simply misguided to think the precedents, involving much simpler technology and notably different facts are so clearly on point] are applicable here. In somewhat vague language, the Supreme Court -- in a portion latched on by the panel -- implied not all beeper-like searches of a certain scope would be allowed. I think GPS technology is quite different from beepers, so comparing the two seems to me a bit "unreasonable," but wouldn't be surprised if the Supreme Court agrees with him. The discussion also addresses the logic of the opinion, which is somewhat an inside baseball matter.

Two conclusions: given the change of technology and a circuit split, see the article, Supreme Court/21st Century (the beeper cases from the early 1980s) review is warranted. If not now, soon enough. Also, given modern information collection, the "mosaic theory" or some offshoot would be a principled way to apply the Fourth Amendment. It's a different question if that is the path that will be taken.

More on Prop 8

[I cited this earlier, but decided to just post it completely here, with minor edits.]

For the reasons stated in the sections that follow, the evidence presented at trial fatally undermines the premises underlying proponents’ proffered rationales for Proposition 8. An initiative measure adopted by the voters deserves great respect. The considered views and opinions of even the most highly qualified scholars and experts seldom outweigh the determinations of the voters. When challenged, however, the voters’ determinations must find at least some support in evidence. This is especially so when those determinations enact into law classifications of persons. Conjecture, speculation and fears are not enough. Still less will the moral disapprobation of a group or class of citizens suffice, no matter how large the majority that shares that view. The evidence demonstrated beyond serious reckoning that Proposition 8 finds support only in such disapproval. As such, Proposition 8 is beyond the constitutional reach of the voters or their representatives.

There is a very good post regarding the alleged "tyranny" of the ruling, but simply put, it doesn't hold up to any real scrutiny given how most people understand the role of the courts.

The idea of some is somehow the judge was tyrannical because he overruled the will of the people, in particular based on their vote on a state ballot measure to amend the state constitution. State ballot measures can't amend the federal constitution however. See, the Supremacy Clause and Art. V (amendments). Federal judges overturn popularly voted upon laws all the time. One person told me this will be a political land mine since the '10 elections is about federal power. How about the Supreme Court overruling state handgun laws in Illinois or federal laws on campaign finance?

The opening quotation is written in the spirit of a famous Supreme Court ruling regarding pledging allegiance to the flag:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

Various elected officials in the state of California agree. The governor rejects the need to stay the ruling pending appeal (a mixed blessing probably, but many more marriages will show the normality of same sex marriage, as was the case in other jurisdictions) , in part: "With the branch of government charged with making constitutional determinations now having made those determinations here, the Court’s ruling should take effect." The attorney general (elected in California) agrees. "As the Attorney General has consistently stated and as was convincingly demonstrated at trial, Proposition 8 violates the Fourteenth Amendment of the United States Constitution." The state legislature earlier wanted to pass a state law supporting same sex marriage, but the governor thought the state constitution prohibited it. All the same, the governor recognized:

our state now recognizes that an individual’s capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual’s sexual orientation” The Court’s decision here is consistent with California’s long history of leading the way in recognizing the rights of gay and lesbian families to order their relationships and manage their day-to-day lives.

Some people don't like this principle. But, it is the one federal and state judges are obligated to follow as a matter of precedent and common understanding of their role. The same applies to the specific ruling made here. Some critics say things like "I think tradition is reason enough to warrant Prop 8," but the Supreme Court has long rejected that rule. A lower federal judge is supposed to ignore that? Some think moral opposition to homosexuals should decide the question. Again, Supreme Court precedent rejects that.

Reading the ruling answers many other complaints. Some think marriage should be merely for different sex couples for reason of children; state practice belies the fact. I was told that "before 2001," no nation recognized same sex marriage. Not true as noted by the ruling; in fact, one of the defendants' own witnesses (in a deposition, most not wanting to testify in public, even after the Supreme Court rejected the right to broadcast the trial to more locations) is cited on the point. But, other cultures aren't the ultimate test, ours is, including as a matter of constitutional tests a federal judge follows. The ruling also underlines the many fundamental changes, particularly in regard to gender roles, marriage underwent over time, both by legislative and judicial means.

This also helps to answer the polygamy concerns, as does repeated cites to Supreme Court precedents involving marriage underlining its monogamous nature. The ruling holds that California is practicing sex discrimination (there is some sexual orientation discrimination too, but it's interconnected in this case), which is rejected in this country, including by Supreme Court precedent. Likewise, it shows -- as required by Supreme Court precedent that looks in part toward societal practice -- how same sex relations grew over time in our history, barriers to marriage largely a result of discrimination and the minority status of homosexuals. California itself protects same sex unions (including regarding adoption) in most respects. Application of all of this to polygamy is much harder, particularly to the degree polygamy in practice can in fact be show to lead to inequality and contrary to Supreme Court citations of a "bilateral loyalty."*

As to breadth of ruling, though the opinion is ultimately a broad attack on the basic idea of not allowing same sex couples to marry, the specific situation in California is referenced repeatedly, including the protections given to homosexuals not present in other states and the animus showed by the Prop 8 campaign. The very conclusion cites "California," not "fifty states" or even the area within the Ninth Circuit. So, it is imho possible for the appeals court to rule narrowly, applying it simply to the state of California. I think personally this is the best thing to do. This is usually how things go -- many major rights now enjoyed are a result of a stream of rulings, not doing everything at once, even if they could do so. The opinion might not be totally consistent, but then even in Romer v. Evans, complaints were made, including no mention of Bowers v. Hardwick.

As to the equality of domestic partnerships, the defendants themselves admitted it is not equal to marriage. One fundamental difference is that it might not be recognized in other states while "marriage" -- even marriages the state itself don't authorize -- might be. Another is societal recognition, including in regards to meaning and benefits (e.g., workplace benefits). It is 'separate but equal' at best, which in the race context was shown to be inherently unequal. Here too. So, those who say that domestic partnerships are really equivalent in all but name fail too.

Overall, applying the evidence provided, California practice, Supreme Court precedent and other means -- not mere theory of possible rationales or the like -- the ruling convincingly overturns Prop 8, its role in doing so supported by many of the top elected officials/bodies in the state. It therefore is not a violation of our republican system of government, one not a simple democracy.

As to allegations of "activism," it is notable that major homosexual rights groups opposed the lawsuit. The effort was led by Ted Olson, not liberal homosexual groups. The case brought in front of him, the federal judge was required to decide upon the merits. As to his sexuality, since Prop 8 favors heterosexuals, wouldn't they too be biased? Would we focus on the sex or race of a judge in some other case? Would Justice Thomas be allowed to decide Loving v. Virginia, his wife white? In a case about fornication, which have came about, would an unmarried judge in a relationship not be able to preside?

One blog entry spoke in support of same sex marriage but simply said that he was not convinced by the ruling. That's not very helpful, but it suggests the ultimate shallowness of the reasons in opposition. As I noted before, looking at the facts -- including the opinion itself -- makes it much harder to avoid the ultimate conclusion of the ruling:

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.

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* As to incest, lack of Supreme Court or societal precedent in this respect as well as non-recognition by the state of California also differentiates. No general recognition except for marriage for incestuous unions. Furthermore, the ruling cites cohesive family units as a state purpose of marriage, which is violated by such unions. Also, consent is an inherent part as well, which is also a problem here in various situations.

It is harder to defend various types of "incest" requirements under precedent -- many states allow cousins to marry (and DOMA doesn't deny them federal benefits) and rules against adopted or step-siblings are not really the norm to my knowledge. I know of a case here or there that protects something like adopted or step-siblings' right to marriage. I don't think many care much about that sort of thing.

Parent/child would raise various flags referenced. Biological siblings somewhat less so [eugenic concerns are not at issue in this case but since many with genetic conditions are allowed to marry, they might be dubious] though a case can be made. But, there is a basic "are you serious" component here too -- is this really a problem or is it just some sort of game played about some obscure "gotcha" which can be raised for anything?

When some federal judge protects brother/sister incest, get back to me.

Friday Night Lights

The season finale was somewhat weak, focused too much tying up plot lines and was a bit stiff. Also, from a small sample, it seems the show overdoes the remarkable finishes, from the first episode on. OTOH, those girls/women are both hot and tough (and scary!).

Quick Thoughts

Watching the beginning episodes of Friday Night Lights: very good. The same sex marriage ruling leads to tedious discussions, raising the same issues over and over. I think even money maybe the 9CA rules more narrowly. Who knew there were new pennies? No me!

63-37

That's pretty close historically speaking. If we were going to have someone somewhat controversial and who would get only a handful of Republican votes, I do wish it was someone else. But, I don't make the call. Congrats, Justice Kagan. [Well, now "Justice."]

Bliss x 2

And Also: I'm proud of my city for being the face of reason regarding an Islamic community center planned for a mile or two away from Ground Zero. The insanity and bigotry from usual suspects and one sad one shows the alternative path.

Finding Bliss (like the earlier Amy's Orgasm, if a bit more explicit) is at its heart sentimental film dealing with sexual matters. It stars Leelee Sobieski* as a straitlaced editor who takes a job editing porn movies to get a chance to make her own more "straight" film. She falls for the director while having to use porn actors in her own film. Though a bit weak at parts, it is overall an amusing and charming film. It is a bit different and cares for its characters. Sadly, this is a bit unusual.

Bliss is a quite different type of film, concerning a teenage Turkish village girl who was raped, and destined to be a victim of an honor killing. But, her cousin, a newly returned solider from fighting Kurdish rebels (though as I recall, who he was fighting was not really addressed), cannot do the job. They meet up with a professor on a ship, who is running away from his old life as well. The cousin falls in love with the girl, saves her from the people sent to finish her off and the assumed holy man who raped her is dealt with by her father, after the ex-solider (his son) could not do the job.

It is a beautiful film to look at (including the opening scene involving her being found at the sea) and the journey the cousins take (focusing mainly on the girl) is pretty well done. I thought the ending a bit too tied up in a bow (don't like how so many films deal with evil by just killing the person off, as if that is how it is done) and the two men are somewhat thinly drawn. The movie is best when focusing on the girl, Meryem. It is a flawed but special film for certain aspects.

It is based on an international bestseller, which is much more complex. We see things through each of the three characters (and a bit from a few others), who are given bigger back stories. The basics for most of it is fairly similar, but then it goes down a different path, one more complex and in my opinion more rewarding. The cousins do not fall in love, though there is some implication that Cemal (her cousin) has fallen in love with her. No reference of the rapist being killed or him going back to the village. Meryem finds "bliss" in a small town, finally feeling that God truly loves her.

The film in other words is something of a more conventional account. Both are worth one's time, underlining that you can watch a film and read a book, getting something from both. I liked the book better, though this is not always true. The film version of Legally Blonde, for instance, was better than the book.

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* She looks and sounds like a young Helen Hunt, but unfortunately, tends to be pretty stiff in films. She is however rather good here, looking pretty sexy at spots too.

Prop 8 Ruling

The core of the Prop 8 ruling is fairly standard by now, since state judges have repeatedly decided that the fundamental right to marriage cannot be denied to same sex couples. The Massachusetts DOMA ruling showed that this includes federal district judges as well. The most impressive part of this ruling is the facts, which are quite detailed, quite important since they are presumed true on appeal. A taste:

1. Marriage is and has been a civil matter, subject to religious intervention only when requested by the intervenors.

2. California, like every other state, doesn't require that couples wanting to marry be able to procreate.

3. Marriage as an institution has changed overtime; women were given equal status; interracial marriage was formally legalized; no-fault divorce made it easier to dissolve marriages.

4. California has eliminated marital obligations based on gender.

5. Same-sex love and intimacy "are well-documented in human history."

The Bush v. Gore twins had a field day here since the other side basically didn't put on a factual case, resting on the law. Citing forty year summary judgments like Baker v. Nelson, which can be disposed of by any number of means (e.g., Prop 8 is different from some ancient marriage law), is not really a good alternative. Bowers v. Hardwick did not rest on the summary judgment on sodomy a decade before, did it? The merits were addressed. And, when they are here, it's an epic fail for the discrimination side. And, much changed since then, including as a matter of Supreme Court precedent.

Orin Kerr, who still can be a bit of an ass at times, cites the core statement of law:

The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household. Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage. Today, gender is not relevant to the state in determining spouses’ obligations to each other and to their dependents. Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law. Gender no longer forms an essential part of marriage; marriage under law is a union of equals.

Plaintiffs seek to have the state recognize their committed relationships, and plaintiffs’ relationships are consistent with the core of the history, tradition and practice of marriage in the United States. Perry and Stier seek to be spouses;they seek the mutual obligation and honor that attend marriage, Zarrillo and Katami seek recognition from the state that their union is “a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.” Griswold, 381 US at 486. Plaintiffs’ unions encompass the historical purpose and form of marriage. Only the plaintiffs’ genders relative to one another prevent California from giving their relationships due recognition.

Plaintiffs do not seek recognition of a new right. To characterize plaintiffs’ objective as “the right to same-sex marriage” would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy —— namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.

Various others analyze the opinion, such as here, but again, some nice turn of analysis or not,* the basics are fairly familiar by now. This can be applied to New York without much trouble. I'm a bit troubled by this, though find the basic logic great, since it seems going it slow is the best path here. The key gay/lesbian litigation groups tended to agree. The decision will be stayed and be left to the court of appeals (or beyond). Would not a narrower ruling based on Prop 8 and its animus, animus in a state that already broadly recognized same sex rights via domestic partnerships (cf. the rationality of the state interests in some state where this does not exist) make some sense? At least, as a lesser reason for judgment?

[Reading Slate's account, the findings of facts can to a degree be tied this to this state's practices, such as encouraging same sex adoption. But, same sex adoption is allowed and "promoted" in some way nearly in every state. The arguments applicable across the board would do the job. And, the lack of a factual case by the other side is compelling. Rachel Maddow noted how the ruling in effect ridiculed the two witnesses put up there by the defense. But, the findings of law are written quite broadly, leading to more knowledgeable of the subject and supportive of equality wary. Others are supportive, but again, don't take "California only" from the ruling. With reason, I think.]

But, the duo asked for this and the defense case was so weak, that it is not too surprising that this is the result. To be continued. One day, however, this will truly be the law of the land:

Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.”

It is just a matter of how long.

[This is but a part of a journey as the ACLU noted today:

Today's ruling shows that we can stop extremist forces who want to impose their own narrow view of morality on the rest of us.

But we must do more than that. We must demonstrate that there is a national consensus in support of marriage and other relationship protections for same-sex couples in states across the country. Every step forward will make it harder for the Supreme Court to rule that Prop 8 and similar exclusions from marriage are consistent with the Constitution.

That's why it's so essential to win more victories as critical same-sex marriage bills and relationships lawsuits are decided in New York, New Jersey, Rhode Island, Maryland, Montana and elsewhere. The ACLU is centrally involved in each of these efforts—and we need you to stand with us.

This is how the definition of marriage truly develops and how Lawrence v. Texas determined "liberty" includes same sex relationships.]

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* The TPM link links things to both race and gender, the former underlining how marriage is a fundamental right, a privilege or immunity of citizenship secured by the Fourteenth Amendment:

He also notes that slaves were unable to marry.

"The states have always required the parties to give their free consent to a marriage. Because slaves were considered property of others at the time, they lacked the legal capacity to consent and were thus unable to marry. After emancipation, former slaves viewed their ability to marry as one of the most important new rights they had gained," he wrote.

Walker also noted that past marriage inequalities have included the prohibition of interracial marriage and coverture, in which a woman's identity is subsumed by her husband's.

The coverture part underlines how much the institution of "marriage" changed over the years, equality eventually being understood to cover the new understandings.

Calmly Promoting Error

Glenn Greenwald once lashed out at Orin Kerr (also assistant to Sen. Cornyn) for calmly supporting executive tyranny and ridiculing a federal judge who rejected it. Some were insulted. See also, this citation calmly noting an "interesting" slanted review (as I note).

Republican Attempt to Amend Constitution Again: Citizenship Edition

[And Also: More on how this is largely a distraction here. Overall, it is useful to address the issue to reaffirm the basic principles of citizenship and rights that are being challenged or disrespected. As with torture and so on, cheapening such things need not require amendments to the Constitution. See also, Mourad's comments here. Overall, even if they aren't citizens, they would constitutionally and in practice have various protections and benefits as "persons." But, posturing is not always based on such details.]

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. ...

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Though they might be pulling back some, Republicans are trotting out the same idea brought out back in 1996: suggesting that children born in the United States of undocumented immigrants are not really U.S. citizens. Some appeal to original intent and/or fear of "anchor babies" or "jackpot babies" (the babies tie the aliens here while providing various benefits) or "birth tourism" (coming here just for citizenship; a few previously suggested some terrorist sorts do the same -- Manchurian Candidates?). Some ugliness is shown (the terms alone are pretty ugly); connections to the "birther" crowd is easily imagined.

Supreme Court precedent is on the side of those who argue that (with a few exceptions) those born here are citizens of the United States (and state citizens based on residency). A 1960s ruling (involving protection from being stripped of citizenship involuntarily) summarized a 1898 one, involving the group many were concerned in the day, so much that racist barriers were placed on the alien. parents ever becoming citizens:

The issues in that case were whether a person born in the United States to Chinese aliens was a citizen of the United States and whether, nevertheless, he could be excluded under the Chinese Exclusion Act, 22 Stat. 58. The Court first held that, within the terms of the Fourteenth Amendment, Wong Kim Ark was a citizen of the United States, and then pointed out that, though he might "renounce this citizenship, and become a citizen of . . . any other country," he had never done so. ....

Because the legislative history of the Fourteenth Amendment, and of the expatriation proposals which preceded and followed it, like most other legislative history, contains many statements from which conflicting inferences can be drawn, our holding might be unwarranted if it rested entirely or principally upon that legislative history. But it does not. Our holding, we think, is the only one that can stand in view of the language and the purpose of the Fourteenth Amendment, and our construction of that Amendment, we believe, comports more nearly than [a more restrictive ruling] with the principles of liberty and equal justice to all that the entire Fourteenth Amendment was adopted to guarantee.

The latter paragraph provides a warning to those who want to take some statements from 1868 to settle upon an "original meaning" that is not compelled by the text or the overall meaning of the amendment using various criteria, including an appeal to history. Basically, those living here -- even undocumented -- are under the jurisdiction of the U.S., so the protections (including citizenship by birth) are supplied. As noted by Plyer v. Doe (public schools):

Use of the phrase "within its jurisdiction" thus does not detract from, but rather confirms, the understanding that the protection of the Fourteenth Amendment extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State's territory. That a person's initial entry into a State, or into the United States, was unlawful, and that he may for that reason be expelled, cannot negate the simple fact of his presence within the State's territorial perimeter. Given such presence, he is subject to the full range of obligations imposed by the State's civil and criminal laws. And until he leaves the jurisdiction -- either voluntarily, or involuntarily in accordance with the Constitution and laws of the United States -- he is entitled to the equal protection of the laws that a State may choose to establish.

The term "jurisdiction" was specifically concerned with Native Americans (later dealt with by statute), enemy aliens and diplomatic personnel. A nation of immigrants is not the best place to rest citizenship on the legality of the residency of the parents, a matter mostly not a concern in 1868. There were various people in effect "illegal" even then -- enemy aliens, for instance, or paupers or the diseased in certain states though federal restrictions as a whole came later. If anything, this might imply the original meaning was to have a very liberal rule, immigration generally open. Anyways, into the 1980s, the Supreme Court assumed that the children of even those that could be deported (Mexicans here) that were born in the U.S. are "citizens" of the United States. The Wong Kim case argued that this role was the ancient English practice:

every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born

The immediate purpose of the rule was to overrule Dred Scott v. Sandford, which argued that even free blacks -- even if born in states that recognized them as state citizens -- were not intended to be included as U.S. citizens. Therefore, they were not able to sue or be sued in federal court. They also in effect were citizens of no country. The children of undocumented aliens are allegedly citizens of a foreign country, since they are not totally connected to this one. See also, the idea that somehow Obama is partially connected to another country because of his father's foreign citizenship. But, Wong Kim Ark involved parents loyal to a foreign sovereign; the child born here was still deemed a citizen. The legality of the parents' residency wasn't the basis of the ruling either. Born in U.S. jurisdiction, the U.S. sets the rules.

And, the racial implications of the proposed policy underlines the connection to Dred Scott. The Oxford Companion to the Supreme Court of the United States ("Citizenship") summarizes the value of the birth place rule:

[It] helped clarify property rights; it promoted immigration; it avoided jurisdictional conflicts; and it eased fears of massive expatriation during wartime.

Any "anchor" was in some way always there as was other things such as jobs, additional liberties and other family members living there. Relying on rules of other countries is also no way to determine citizenship of people born here. Marisa Tomei is recognized as a citizen of Italy, does that mean she is not really an American citizen? If a citizen does not follow their obligations, they can be penalized. And, overall, are undocumented immigrants the only concern here? "Birth tourism" suggests legal temporary residents also are a concern. Is citizenship to be left to the intent of the mother? Some artificial time limit is supposed to be implied or something?

Guests on Keith Olbermann earlier tonight provided a concerning alternative: the situation in Germany, where foreign workers are given work permits, but their children are not considered citizens, even when born there. A type of "people without a country" form, those who only know Germany, but are not considered citizens to that country. The racial/nationalist implications are fairly easy to imagine as are the resulting problems and conflicts. Is this what we want in this country, putting aside that it runs against text, history, doctrine and pragmatic principle? Even if there is an opening there, why should we seek it out?

It's a bad idea, more of a wedge issue than a credible idea. As with flag burning, hurt the gays to "protect marriage," violate privacy and equality to favor one religious/moral view of life and so forth, Republican amendment ideas [changing the "natural born citizen" rule for Presidents is an exception] tend to be stupid.

TV Quickies

Finished up the Doc Martin episodes - more scheduled to be filmed, but they ended fairly well with a lull in the middle of S4. Another case of "quickly pregnant" for plot reasons. His receptionist/assistant grew on me; like Mark better, but Officer Joe also got better.

Wait Until Next Year?

No trading deadline news and Perez is out there giving up runs again. More of the same:

The Mets have won only one of their last nine series, and the loss kept them tied for third place in the division with the Florida Marlins.

Put aside trouble with the Ds; they aren't even winning at home now.

TV Quickies

Pretty good Lifetime dramas tonight. The third set of William and Mary episodes again had a lot of bad stuff around the two leads (probably too much), including a really bad thing that was handled well. When horror comes, it has to be earned, and it was here.

Sen. Gillibrand (Babe-NY)

Sen. Kirsten Gillibrand aka "Supermom," number 3 on The Hill's Beautiful People list, top among actual members of Congress. She's cute, but not sure how she beats six and ten. Pic from here. She's also not a a bad senator either.

Ginsburg Goes the Quiet Tough Route Again

Good and pretty combative (with nod to Kagan hearings) speech by Ginsburg on international law. Will she and Breyer be more combative now that Stevens is gone? Friday Nights Lights was pretty good, if of the waiting for the other shoe to drop variety, tonight.

Arizona Immigration Law A Whole CAN of Worms (Federal Power Edition)

A federal judge has put the infamous Arizona immigration law on hold in various respects pursuant to a lawsuit brought forth by the federal government on pre-emption grounds. The link allows you to read the decision as well as some interesting comments on the general subject. Dilan Esper in particular has some interesting things to say:

What supporters of the law are really arguing is “if the federal government refuses to enforce its own laws, including for sensitive reasons of foreign policy, the Constitution permits the states to step in and override the federal enforcement choices rather than restricting the remedy to impeachment of the President or removal via the electoral process”. And there’s no reason to think that THIS is the case.

Overall, precedent has determined that foreign policy (and immigration as it fits in or by itself) is the role of the federal government, though states can get involved in various cases when it affects local interests or when given discretion to do so by the feds. As bhaal notes, this includes the power of the executive to establish certain policy decisions, decisions that might not be necessarily compelled by federal law. All the same, states cannot on their own choose to follow what they deem the "better" policy:

It’s stunning that anyone is attempting to claim the Supremacy clause only concerns ‘law’ and not ‘policy’. The job of executing the law is given to the President — Art II §2. Without someone putting it into effect a law is just a piece of paper or letters on a screen. If the Supremacy clause did apply only to the law in theory or States were free to interpret it themselves then any State could apply their own interpretation of it, claim it wasn’t being executed properly and do it themselves, making a mockery of any kind of organised system of laws in the country. In order for federalism to actually mean anything there has the federal Executive has to decide how to execute the laws that Congress pass and those laws and decisions have to override inconsistent actions of the States. Reading the Constitution in the way suggested by some results in absurdity. ....

It would be ludicrous if a State could pass a law, as Arizona has done, which appears to conform to federal law, but actually attempts to enforce that law in its own way, with additional penalties, or with skewed priorities.

Dilan provides a great summary of the interests in question:

1. I think that the status quo on immigration is a tacit compromise between business interests, the Mexican government, and Hispanic groups on the one hand and labor unions and nativist groups on the other, and that the Constitution permits such tacit compromises. It in no way dishonors his oath of office; however, if it did, the remedy is to impeach.

2. The President “refuses to enforce US law” all the time, if you mean exercises his discretion (through the Justice Department and administrative agencies) to decline to prosecute or bring enforcement actions against people or entities who violate it. Again, though, if in a particular case this seems improper, the remedy is impeachment. [Still, not bloody likely to occur.]

3. I don’t think letting illegal immigrants stay in the country in any way makes the US less sovereign. What sovereign is challenging us over any significant amount of our territory? What people don’t recognize the US as sovereign? What sovereign immunity has the US lost? This is overheated political rhetoric from anti-immigrant conservatives. Plenty of countries (1) have illegal immigration problems and (2) retain sovereignty.

4. As I said, Mexico obviously isn’t going to invade. But Mexican cooperation is crucial on several foreign policy issues, including terrorism, drug trafficking, free trade, hemispheric cooperation, and, yes, controlling migrant flows. If the President determines that the best way to secure such cooperation is not to be draconian in enforcement of immigration law, that is precisely the type of foreign policy judgment that it is his right to make. The Constitution doesn’t grant the 50 states the power to make 50 junior foreign policies that conflict with Presidential determinations, or to blithely declare that whatever actions they take that piss a neighbor off actually have no effect on foreign policy.

There remains some debate over the plenary power given to the federal government over the issue of immigration, but at least in this context, I think the Commerce Clause is a primary source. The ruling of Heart of Atlanta Motel, Inc. v. United States, in particular, aspects of Justice Black's concurrence, provides some useful information in this context. I will provide some excerpts that show the breadth of the power, the rightful control by the feds when the matter is beyond the concern of a single state and how a system as a whole justifies a policy even if looking at a few stray individual cases might suggest differently. Some citations are removed:

It requires no novel or strained interpretation of the Commerce Clause to sustain Title II as applied in either of these cases. At least since Gibbons v. Ogden, decided in 1824 in an opinion by Chief Justice John Marshall, it has been uniformly accepted that the power of Congress to regulate commerce among the States is plenary, "complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution." Nor is "Commerce" as used in the Commerce Clause to be limited to a narrow, technical concept. It includes not only, as Congress has enumerated in the Act, "travel, trade, traffic, commerce, transportation, or communication," but also all other unitary transactions and activities that take place in more States than one. That some parts or segments of such unitary transactions may take place only in one State cannot, of course, take from Congress its plenary power to regulate them in the national interest. The facilities and instrumentalities used to carry on this commerce, such as railroads, truck lines ships, rivers, and even highways, are also subject to congressional regulation so far as is necessary to keep interstate traffic upon fair and equal terms.

Furthermore, it has long been held that the Necessary and Proper Clause, Art. I, § 8, cl. 18, adds to the commerce power of Congress the power to regulate local instrumentalities operating within a single State if their activities burden the flow of commerce among the States. ....

But, in deciding the constitutional power of Congress in cases like the two before us, we do not consider the effect on interstate commerce of only one isolated, individual, local event, without regard to the fact that this single local event, when added to many others of a similar nature, may impose a burden on interstate commerce by reducing its volume or distorting its flow. ....

"The genius and character of the whole government seem to be that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the States generally, but not to those which are completely within a particular State, which do not affect other States, and with which it is not necessary to interfere for the purpose of executing some of the General powers of the Government." Gibbons v. Ogden.

The broad use of "commerce," back to the days of CJ Marshall, underlines how immigration fits in, particularly "travel" (another comment cites a case where states were stopped from blocking travel given it burdened commerce) and "trade," including (as Dilan notes) the relation it has to other countries. The fact some stray person might come here to see a baseball game or the like does not remove the fact that regulation of immigrants in this context has a primary effect on commerce. As noted, the fact that "some part" might affect the state itself does not remove the plenary power because the overall scheme affects the nation as a whole. This makes sense since "the external concerns of the nation" reasonably are the concern of the nation, not individual segments therein acting perhaps in competing ways.

Along with the "necessary and proper" clause, also cited by Justice Black, federal regulation of immigration can usually be easily fit in the commerce power, along with other assists such as the treaty power. This is often how it was so regulated in the 19th Century as well. The lawsuit seems on solid ground.*

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* Republicans are having a bit of a disconnect since the judge has received their support in the past. This includes -- how surprising -- selective use of "activism":

"She didn't overturn the law," said Sen. Jon Kyl (R-AZ), the second highest ranking Republican in the Senate. "She said that portions of it -- the bulk of it -- needed to be enjoined because of her view that it was pre-empted by federal law because it created undue additional burdens on the federal government. This judge is not an activist judge. She had to make a decision. She made a decision. I don't happen to agree with it, but she's not an activist." ...

"I don't know if it's so much judicial activism as it is a failure to understand the federal government's responsibility when they don't carry out their responsibility then the states have to do it for themselves as a matter of security," said Sen. John McCain (R-AZ).

Very clarifying. I jest. McCain's statement too. What other federal functions can states do if the federal government (in his opinion) doesn't carry out "their responsibility," I wonder. Let's see. Congress has various enumerated powers. If they don't properly carry them out in a way some state thinks burdens their interests, individual states have the power to step in, even when their actions affect "external concerns of the nation."

Yes, unlike some, I'm glad this guy isn't President.

Knuckleballer to the rescue

They were right to keep Niese, even with Oswalt being offered, since team needs another pitcher, not just a replacement for a rising star. R.A. Dickey went 8.1 innings on three days rest, which works better without the losing that came before it. Look forward, huh?

Mets Won Yesterday, So No Win From Santana

The team did pick him up after he had a real lousy first inning, but they still lost in extras, though no Perez appearance this time. Anyone who thinks coming back from six down is still a moral victory is thinking like a loser. As this team still is.

Some Viewing

Friday Nights Lights (via IMDB -- has five episodes so far from this season) was a good touch since it has been an iffy week on media. Two books on interesting subject matter (including polygamy) just was written in a way that I could not handle. One was too graduate school, the other too flowery in a fashion. Annoying. I have read relatively little fiction over the years in part since I generally have trouble finding a style of it I like. Nonfiction can be like that too.

Netflix was not totally ideal either. The Vicar of Dibley second series and final two episodes were a mixed bag. Overall liked the first series about the first female vicar to a small English town, first seeing a bit on PBS (and not the main channel), later seeing the first six episodes on a DVD from the library. Amusing show, but one comment somewhere was correct: it got a bit too focused on the main character and at times went for the cheap joke. Often the most charming part was the final bit after the credits, where the vicar tells a joke to her "verger," who never gets it. By chance, the profane farmer character once guest starred on Doc Martin. These shows eventually always run together.

I just saw a good movie that I first watched in a charming theater downtown near a bridge. The Sticky Fingers of Time (there are five fingers you see -- the past, present, future, what might have been and might still be), the director of which later making another film I later watched. IMDB will tell you what one. Creative indie this one is with a perfect sense of style and character. And, soy milk isn't that bad. You just need to get the right kind.

Time passes. The theater is no longer there, nor the time. The 1990s are no more.

Sherrod Lessons

John Stuart Mill once said that even glaring error should be allowed to be spoken, not criminalized that is, because truth can come with collision from error. This doesn't mean we want to encourage such error, but it's likely to come all the same. And, like in the Shirley Sherrod case, we better try to learn something from it. Including all the stuff that it brings to light.

Lots of stuff, it seems. The perils of being weak-kneed and knee-jerk in particular, especially when people with stated desires to destroy the left [as a clip on Jon Stewart showed], even if it requires fraudulently edited video to do it. Fool me once .... Did not we learn from the ACORN debacle, shown to be filled with crap as well?

But, the strength and insight of the woman herself was inspiring, especially those who learn about her life story. In a different context, Sherrod (and the white farmers who spoke out for her -- farmers who some might at first glance stereotypically say look like those likely to be racists) sounds like someone President Obama would provide as a symbol.

The story also brought to light a little known federal lawsuit:

Five months after President Obama announced a $1.25 billion settlement for black farmers who faced overt discrimination by the USDA in the eighties and nineties -- and several days after the Sherrod case brought the issue up again -- Congress again refused to authorize the money.

A "settlement" underlines that the courts aren't the only place we go to obtain justice. It also shows that even after discrimination is found, it takes the other branches to deal with the situation, which has not been fully accomplished -- this thing has been going on since the 1990s -- here.

Those who have read/listened to more than a couple minutes of her speech also learned a bit about the history of racism on the ground. Again, Sherrod knows something about that given her father (a black farmer) was killed by a white person when she was a girl, the grand jury refused to indict. It helped her decide to stay and work for justice; it is in that context that she then noted that eventually she learned it is about helping poor people of all races. It is something like if someone was raped, pledges to work for the rights of women, but finds out some college frat boy had his rights violated by the policies of the college and -- though she isn't really interested at first -- helps him.

Sherrod also spoke about the history of law enforcement in the state, including two racists sheriffs, one the subject of a major civil rights case back in the 1940s.* We too often forget that such perversion of the role of the government was not that long ago, putting aside that it still occurs in certain contexts to this day. This led to some discussion of lynching, including historical attempts (in part blocked by filibustering) to address it on the federal level. As the links suggest, this led to some attempts to call her a "liar" or the like for her use of the term "lynch," but also that (as with her treatment as a whole) even some natural critics (including people at American Spectator) think the people went too far here.

Does that mean the likes of Andrew Breitbart will be shown as persona non grata by them? It is a long process -- doesn't take too many dissenters, as shown by Republicans for Obama in '08, for some progress to be made. Anyways, hopefully some lessons will be learned here.

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* The SC was closely divided in part because the use of federal civil rights laws were still fairly novel; the opinion started:

This case involves a shocking and revolting episode in law enforcement. Petitioner Screws was sheriff of Baker County, Georgia. He enlisted the assistance of petitioner Jones, a policeman, and petitioner Kelley, a special deputy, in arresting Robert Hall, a citizen of the United States and of Georgia. The arrest was made late at night at Hall's home on a warrant charging Hall with theft of a tire. Hall, a young negro about thirty years of age, was handcuffed and taken by car to the court house. As Hall alighted from the car at the court house square, the three petitioners began beating him with their fists and with a solid-bar blackjack about eight inches long and weighing two pounds. They claimed Hall had reached for a gun and had used insulting language as he alighted from the [325 U.S. 91, 93] car. But after Hall, still handcuffed, had been knocked to the ground they continued to beat him from fifteen to thirty minutes until he was unconscious. Hall was then dragged feet first through the court house yard into the jail and thrown upon the floor dying. An ambulance was called and Hall was removed to a hospital where he died within the hour and without regaining consciousness. There was evidence that Screws held a grudge against Hall and had threatened to 'get' him.

Prayer

And Also: I watched Friday Nights Lights a few weeks ago for the first time because of an abortion themed episode, but after watching a few more episodes, this might be a keeper. Knock on wood. Good writing and performances does the trick.

In answer to a Slate Explainer column, I noted:

For one, Catholics, who unlike Protestants believe in purgatory, think prayer helps speed the transition from limbo to heaven.

Why is this different from helping people go into heaven itself? That is, under the logic of the belief structure? From personal experience, I also wonder how many Catholics truly believe in purgatory or limbo these days.

Under that logic, when a Christian prays for someone who has died, he is also praying for himself. He therefore brings himself closer to God and closer to salvation.

This seems the most logical path. For instance, a prayer of thanksgiving recognizes one's blessings and helps one remain humble about them. A prayer in honor of someone who died, including to obtain solace and strength, also is personal and humble. Like chanting, yoga, mediation and other devices, prayer also is a means to center onself and reach what many see as "sacred," a special place that often but need not solely be in some fashion ultimately about a God-type being. It also might be a means to be right with nature. This makes it a type of "religious" experience in my eyes.

Prayer is personal as well as having a communal aspect. A group of people praying can be like any other group -- each person on their own is one thing, as a group, there is a certain power. It also can be important to know people are praying for you. Maybe, this even works while in limbo? Anyway, just like someone appreciates when they know a person is thinking about them, knowing a person is praying for you can help. To the degree that well being is in part mental, this also might have some value when you are sick. Someone alone, for instance, might have a harder time of it even if they have the same disease, the same medical resources.

Of course, some faiths -- especially in mythology -- believe that supernatural beings are listening, and do care if many people are appealing to them through prayer.

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* The photo has the woman appearing to hold a rosary. Such items can serve as a means of focusing yourself. It is something like the idols of the old, sometimes ridiculed as if people were praying to stones. But, many didn't think the idols were gods themselves, but means to focus oneself to a supernatural that humans could not themselves see.