Privacy and "argue" over "assert"

Prof. Allen summaries "at least" six aspects of "privacy" in this thread.  It is appreciated.  I also note some discomfort with the use of "assert" as in "s/he asserted such and such" instead of "argues" and how the former implies dismissing the other side with an edge.

Seriatim: The Supreme Court Before John Marshall

I referenced this mostly interesting collection here and re-read it, including it dealing with the origins of judicial review and what is now done via "substantive due process."  The 1865-73 and 1910s are two other periods that deserve more attention.  Past is prologue.

Slings and Arrows (S3)

As with S2, started slow, but soon was very good with some great Shakespeare mixed in (as usual, reflected in the "real world" too).  The cast is doing what it knows (down to Paul Gross actually being married to the female lead) and I'm very glad I found the series.

At least try to be not a jerk

RM a few days back noted she had a make nice meeting with Cal Thomas who apologized for a mean reference he made about her.  Politeness is important as is respectfully and at least half-honestly considering others' views.  Too many don't do that & it bothers me.

Irregardless

I enjoy these videos and she is really on her game here.

Originalism Again

loki13 and Mark Field lead the way for me here.  The whole concept is hard to take that seriously.  Madison and Hamilton didn't agree, we don't know a lot and so much water is under the bridge.  And, it is used to support one's views in an "it's not me, it's them" fashion.

Obama in 1990

H/T with link with more detail.  [More video on the background.]

Demi Lovato

I can't judge it as compared to other "behind the scenes" type affairs not being a regular viewer, but the MTV documentary in which she talked about her addictions and recovery was pretty good.  I liked her show and her struggles are sadly not atypical. Stay Strong.

While No One Was Looking ...

Kaptur beats Kucinich, the "gadfly" bit by redistricting. [Up against guess who! Meanwhile, Rep. Schmidt loses too. Time marches on.]

Super Tuesday

And, it continues. Santorum (and Gingrich as a favorite son) continues to win in red states & like in Michigan and Maine, Romney's "win" in Ohio (if one) is razor thin.  S. even had a couple pretty close seconds.  So, it drags on. Romney is still the leader, but looks weak.

HB Dred Scott v. Sandford

The ruling as much maligned as it is misunderstood.  Slavery was legal then, so that itself wasn't the problem.  The issue of SDP is also usually confused.   This comment misses the point that slaves was understood to be a special protected class of property, not akin to "medicinal marijuana." More thoughts here, here and here.

A little light for the Mets

Santana and "B" team Reyes w/o the BA (can steal and field) Andres Torres did well though the winning pitcher (Beato) left the game.  Some offense.  New team giant and a prospect did less well.

Appalling Indeed

And Also: Jon Stewart yet again doesn't just do satire, but provides a rather good overall summary of the Sandra Fluke affair here.

[And Also: Opinio Juris touches upon the speech too (see, e.g., a comment with links here and the general discussion here, but not much of an analysis is really provided.  The second link suggests it is bland and raises a lot of questions.  It probably does and something like that is more useful to discuss than let's say contraceptives.  And, do so by dealing with the details -- see that comment -- not some open-ended rhetoric.]

I have the famous comic strip on my wall about the person who won't go to bed because "someone is wrong on the Internet," but I don't take it enough to heart. Still, there is some value in interacting with others and even before the Internet, I personally used op-eds as launching boards to go through what I thought about various issues of the day.

And, some people matter more than any old person, including let's say Glenn Greenwald, who I repeatedly (until I stopped going, since it was just too much) who doesn't have enough perspective though some enjoy his attack dog approach. In a tweet, e.g., Chris Hayes cites Spencer Ackerman, a major commentator on political issues who was "appalled" at Eric Holder's speech. I'm appalled at his simplification. A comment there gets my sentiments fairly right:

I’m not being sarcastic and hostile because I disagree with your basic premise that there is government overreach occurring here. I’m being hostile and sarcastic because you took the quotation out of context, grossly oversimplified both the concept and the speech as a whole, and ignored the fact that he repeatedly cites Supreme Court precedent. Which means it isn’t unilateral, nor even unilateral unilateral unilateral.

It is like when once I was criticized at Slate for being too "legalistic" in  drawing lines in respect to Obama.  Yeah, after years of me and others focusing on THE LAW as a major problem with Bush et. al., not just policy, which can be bad or good, but THE LAW, it matters a helluva lot that Obama is doing better in that department.  The person and others cite innocents being killed. Their pacifism is duly noted. The war in Afghanistan killed innocents.  Oh, that's not the same thing!  Well, stop speaking in parody inducing hyperbole then.  

Obama, Romney And Gingrich Agree: The Government Doesn’t Need A Court To Kill You

Yes, if you point a gun at a police officer, the government doesn't need a court order to use lethal force.  The headline is too general.  The issue needs more nuance.  It is the mentality of Brett here as to "racism."  Simplistic to the extreme.   The Administration needs to be pushed against and on matters of secrecy and failure of court access etc., they have done some real wrongs, but if you are not going to show the proper nuance here -- that annoys people and it is sort of my pet peeve but we want an Obama because he shows it (or do we? I wonder) -- it's an "behind me Satan!" type moment.  It is counterproductive to the desired end, is it not? Well, I guess there will always be absolutists and people like me who are more "moderate." Sometimes, at least.

Will continue to be a struggle.  C'est la vie.  

Sanity on Iran

Per TPM, this is a good read, including some perspective on what is worst. Somehow, e.g., we managed to survive Chinese nuclear capabilities in the 1960s. And, unlike Iran, China actually sent troops against us not too long ago then. A bit more here.

Sandra Fluke

When they do exist, these exceptions don’t accomplish their well-intended goals because when you let university administrators or other employers, rather than women and their doctors, dictate whose medical needs are legitimate and whose aren’t, a woman’s health takes a back seat to a bureaucracy focused on policing her body.

Her own words continue to shine, if anything my comments here at times underselling them. See also, Ms. Ledbetter on Maddow.

It begins

First game of Spring Training for the Mets, and yet another nail-biter, down to getting people on second and third with less than two outs and not scoring. This happened with Reyes and will continue without him. As will more medical bad news that seems particularly bad.

Holder Speech on Target Killings etc.

I received a bit of vitriol for partially defending President Obama's authorization of the killing of al-Awlaki, including rejecting the "assassination" tag and some broad "anything goes" tag.

My sentiment is that killing "enemy combatants" (or whatever word is being used now) is authorized by law, judicial precedent and the AUMF 2001 (voted for by the likes of Ron Paul) in particular. "Citizens" are not exempt from this power. This power does not ban specific targeting.  There are various limits to it, including not allowing military force to be used against someone in NJ.  And, ideally, but I don't think it is compelled by current precedent, a citizen should have judicial process of some sort (not that al-Awlaki sought it) before a "kill order" is upheld.

AG Holder spoke about the general issue in a speech along with other stuff.  On that front, I support the release of the legal opinion drafted on targeted strikes with whatever minimal redaction required. Regardless, the speech is appreciated as is this Lawfare analysis of a key portion.

Various people do not appreciate the speech, but as seen by the comments here, there is a certain open ended nature to the criticisms that oversells their case. For instance, one person assumes I support some "war on terror" that was not referenced.  Also, the death penalty is put in the same category as killing people militarily.  This sort of thing just bothers me.  They are not the same thing.  West Wing noted this once and if killing people in our custody for civil crimes is seen as the same thing as killing people in a military conflict for the very reason we cannot get them, well, I'm sorry.  We are simply not on the same page.  They are not the same.  The speech also lists various limits and if people just won't care and will continue talking about unlimited power, it's hard to take it seriously.  Also, some still will argue that this makes opposition to torture of little value, again we have to re-litigate that torture is a unique wrong.

The Lawfare summarizes the rules set forth for targeted killing of citizens, noting that there is some wiggle room, underlining to me the need for a clear legal memorandum on the point and perhaps judicial review:

(i) located abroad rather than in the United States,
(ii) has a senior operational role
(iii) with al Qaeda or an al Qaeda-associated force,
(iv) is involved in plotting focused on the death of Americans in particular,
(v) that threat is “imminent” in the sense that this is the last clear window of opportunity to strike,
(vi) there is no feasible option for capture without undue risk, and
(vii) the strike will comply with the IHL principles of necessity, distinction, proportionality, and humanity.

So, no, the Obama Administration is not saying a citizen can be killed "anywhere" or even that a person could be. I also agree with Holder that the "loaded term" of "assassination" is misplaced here. This is not a matter of me LIKING the use of drones or supporting their use in various cases. Again, this point is treated as basically trivial by some critics, who speak of people like me as "Obama lovers" or those who think Obama can do no wrong etc.  Whatever.  This doesn't change the bottom line. 

Some have argued that the President is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al Qaeda or associated forces.  This is simply not accurate.  “Due process” and “judicial process” are not one and the same, particularly when it comes to national security.  The Constitution guarantees due process, not judicial process.

First, I would note that "due process" also applies to "persons" here, but that citizens should get more protection, including per, e.g. dicta back to the days of The Slaughterhouse Cases, abroad.  Second, in some sense, this must be right -- an obvious case is in the heat of things, including a police chasing a suspect and needing to use lethal force.  A police officer need not first get judicial authorization in each case.  Rules are in place that they must follow and after the fact, redress might be warranted if they are violated.  Authorization is not provided by the people who carry out drone attacks, rules of engagement followed.  Imperfect as they might be, such rules have real teeth in reducing use of force. Oversight also is available and the lack of enough of it is one problem I have with drones. 

Nonetheless, I would probably require more judicial process in this case than offered here, but (as is repeatedly the case) the ideal is not compelled by current precedent. But, you know who DID NOT actually seek judicial process here. And, rules are more lax in "battlefield" conditions, underlining the falsity of open-ended comments about misuse of force, since judicial consent isn't required in the heat of battle etc., even if American citizens are involved. Again, this is not a matter of it being IDEAL to use force.  I also think the AUMF 2001 is woefully overbroad and should be replaced forthwith.  Congress has no interest in so doing.

The current use of force is -- as usual -- is going to lead to excesses but it matters who is in control and what limits are in place.  Over the centuries, the rule of law has put limits on lethal force.  Real effects result even if the result is far from ideal. War remains hell, but if we ignore the various shades of hell out there, why try?  Who cares if Geneva Conventions are in place, since force will still be repeatedly used and many people held in cages for long periods of time?  Continue to press Holder et. al. to go further, but keep some perspective of what the problem truly is.

Lawrence v. Texas Book

Interesting review of a new book on the case, including the transitional nature of the relationship (still involving a private space) that might not even have involved sodomy (courts repeatedly decide "law" on artificial "facts" and either way they still were convicted).

Wrong Avenue of Relief?

Should foreigners be allowed to use American courts to sue foreign corporations for human rights atrocities committed abroad?

As noted here, yes, if there is enough of a link to this country.  I'm not sure that the "arcane 1789 law" does the trick, particularly one given a limited reach by a unanimous court not too long ago.

[Update: Somewhat strange re-argument order, underling the USSC's selective minimalism.]

Army Wives

Pretty good season premiere that found a way to keep them together and teased us with someone being lost forever, but the apparent victim woke up this time after various well done visions of her future that is not to be. She had different types of visions on JAG.

Rev. Joe

I am a strong advocate for free thought on all subjects, yet it appears to me (whether rightly or wrongly) that direct arguments against Christianity; theism produce hardly any effect on the public; freedom of thought is best promoted by the gradual illumination of men's minds, which follow[s] from the advance of science. It has, therefore, been always my object to avoid writing on religion; I have confined myself to science.

-- Charles Darwin

Some have not taken this approach in the promotion of reason.  Thus, we have an atheist reference a discussion on why "sex is not spiritual."  Generally speaking, the problem is:

All the sweat and cum and juices and the delicious, confusing carnality of sex get shoved back into the closet in favor of much tidier abstractions so that we can believe that we're not just shallow hedonists.

That is, the issue is that sex is not some higher plane but just plain fun and messy.  I find this sort of thing depressing.  The answer to the fun is guilt school  is not to rob such things of some higher meaning.  After all, even this person speaks of it being "delicious" and "confusing" and such.  Something can be of this world and still have some sort of special meaning.  That is what "spiritual" means. It can mean a lot of things really, including the non-theistic "deepest values and meanings by which people live." And, darn, sex can have some special meaning.  It might not.  It depends on the experience.  Ditto a lot of other things.

Events that many see as having a spiritual component repeatedly have a messy aspect. Pain and suffering, for instance, can have a spiritual aspect.  This doesn't suddenly, though the type of sentiment this person might find bothersome might make it so, make it okay. It still can be fucking hard (I'm watching Slings and Arrows -- they say that word a lot; apparently, it's okay Canadian T.V. sometimes). It is quite real and concrete.  But, at times a higher meaning can be found.  That is what humans do.  They give things meaning, including spiritual in nature. 

Sometimes, language can divide, but other times, it can serve as a uniting force.  Some words have that character in part because they mean so many things to different people.  The Constitution is like that at times -- basic things like "speech" or "due process"  can be agreed upon, but the specifics cannot.   For many, if not all, "spiritual" has that flavor, since it doesn't quite seem the same as "religious" which suggests some things with which certain people rather not associate themselves.

Others want to force the issue.  I'm not quite like Darwin, but I rather not when it can be avoided. 

Victorious

Cute episode -- the "bad news" songs were quite clever and Jade/Tori play off each other well. You need to use a bit of finesse there since we don't want Jade to lose her edge.  The IMDB message board suggests there is some slash fans watching the show.

[Amusing reference to the show on an old episode of NCIS.]

Separation of Church and State Education

Ours is just one of at least 60 New York City schools that have doubled as rent-free houses of worship — the vast majority of them evangelical Christian churches — in their off-hours. Many have little connection with the school communities. It’s hard to imagine, for example, that the Village Church at Public School 3 in the West Village — a church that runs a Gender Affirming Ministry Endeavor associated with the movement to “cure” gay men and lesbians — is representative of the neighborhood.

I just referenced a teacher in a NYC public school and another recent discussion* also raises issues that touches upon that area while having broad implications nation-wide.  Of special concern to me is her comment that religious meetings are not simply speech matters, but have a special component that the First Amendment specifically addresses.  I agree and as Justice Stevens recognized in a case involving the group that gives her book it's name, some religious "speech" can have Establishment Clause implications. The tendency of the Supreme Court (or certain justices) to treat religious speech, symbols and association (with the exception of the ministerial exception, perhaps) as if it was just another breed of speech has been taken too far.  The author is correct to highlight that parenthetical.  Religion is different -- in both directions. 

The opening quote is from a NYT article by the guest involved and she cites an appellate ruling that the Supreme Court chose to let stand.  Earlier, with Justice Breyer concurring, the USSC struck down a policy that blocked certain religious groups from meeting after school in public schools for early grades.  Here, however, actual worship ceremonies were involved. There is some effort in the state legislature to try to find a way around the ruling.  As suggested by some of the one star rankings of her book at Amazon, some might like the sectarian group at issue here or in some other case.  But, in the words of Justice Souter, "an evangelical service of worship calling children to commit themselves in an act of Christian conversion" is not really proper at a public school.

One problem, which was noted back in the days of James Madison, is that such programs are not likely to be equally available. The lack of time and space as well as will (it is like Jehovah Witnesses -- most churches do not feel it is their mission to knock on doors or speak on street corners)  alone is a factor here.  Also, concern also arises when very young students, like those in elementary grades, are involved.  Will parents know specifically what they are teaching their students?  Being informed is important there even if you believe the groups have a right to access. And, there continues to be repeated examples of "neutral" programs that have some sectarian component to them. 

The book is on my reading list and a future entry will likely address the matter further.  I would add that the point is not to block out all religious voices.  This is not the point here.  Putting aside discrimination issues, this might require not allowing the Boy Scouts (involving a belief in God) or any number of other groups to show up.  The concern is line drawing.  The separation of church and state might be something less than a brick wall but there are lines to draw. Not having worship services at public schools is such a line, one that was not drawn by the local ACLU:

“We view this as a victory for the city’s schoolchildren and their families,” Jane Gordon, the senior counsel of the New York City Law Department, said in a statement. She added that the Education Department “was quite properly concerned about having any school in this diverse city identified with one particular religious belief or practice.”

Sometimes, local institutions make questionable moves, but here supplying them the discretion to make this choice is sensible. Meanwhile, parents should be on guard of the lessons taught to their children, including those of a religious nature that might not be to their liking. 

---

* The show is Gay USA (if started today, it might be GLBTQ USA)  and she might seem a bit of a strange guest, but since the mixture of church and state tends to lead to conservative ends (though this need not be the case as shown by some sentiments of our President), the choice makes sense. 

MHP Update

She had a few good segments today including a tongue in cheek "benefits" listing of personhood amendments and discussion of charter programs, which has a personal flavor to me since a relative of mine is a public school teacher and is fairly dubious of them.

Spring Training

It begins.

Hamlet

I also looked at a guide to this play by Alistair McCallum and it was a very good summary mixing prose, key excerpts and random quotes over history.  Powerful stuff.  I think just trying to read the whole thing as with many classic works can sometimes be a bad approach.

Romeo and Juliet

After watching, Slings and Arrows, I was looking at the play. A lot of bawdy and silly wordplay there along with the time honored poetry, though many students would miss it. I have a copy of Macbeth too, this one with companion modern day text. A nifty approach.

Truth from Collison With Error

[Update:  One thing harped upon in the thread -- now over 1000 (the record at VC was a birther thread, it has a couple hundred to go) comments -- is the $3000 figure cited.  She cited that as the high end. I'm a bit annoyed that a quick search did not obtain some clarity on the matter, details on the costs a logical thing to provide, but then again the actual details as compared to rhetoric isn't the main point here. If it was eye or oral care, half that figure wouldn't be an issue. It's a red herring. Insurance includes smaller costs and it's small on both ends.

This RL friendly source noted a $1800 figure, which might just be for the pills and nothing else.  A differential, again from an unfavorable source, of a few hundred annually, putting aside that some spend more than three years at law school. This could be explained in various ways including doctor visits, tests or a special prescription.  Maybe, if she was allowed to be a witness, Republicans could have asked her where her figure came from.] 

Rush did not suddenly just act like an ass now, but this discussion of his "slut" comment about Ms. Fluke is telling. This issue is not just some theoretical discussion but quite personal and opposition often quite sexist. His crudeness is helpful in removing the facade.

There continues to be a basic sentiment that falls apart upon scrutiny. One person argued that insurance should only be for major unexpected happenings as if insurance is not repeatedly used for other things, in part to prevent that sort of thing. For instance, periodic visits or a visit for a child when s/he does not have some major illness. One person over at Slate once argued that coverage for abortion is misguided since it only raises rates, which are minor anyways. More so than chemical contraceptives, which for various people are not cheap (and those who live on the proverbial ramen noodles very well might not have much spare money at all), abortions are not that cheap. And, why stop there? Why cover eyeglasses or dental check-ups, both which might be less money than abortion? And, abortions are like accidents, not planned or common occurrences for specific individuals. OTOH, the average person is likely to have accidents now and again.

[Another thing that might be addressed is the overall idea that "we" are paying for anything here. The issue is not Medicaid or something but what is covered by insurance that a person pays for.  The whole point is that equal protection (and sound policy) entails including certain coverage like if we have police protection,* not protecting gay clubs would be a problem.  A few religious institutions self-insure but most do not, so the money ultimately goes into a broad pool, and I would be surprised if even the self-insured institutions are totally isolated writ large, even beyond federal funding in some fashion.]

There is a certain absurdity here. Women use oral contraceptives for various reasons, including to have consistent insurance (natch) against pregnancy. Condoms fail, but that is only part of the matter. Sex is not some easily regimented affair and most of us are well aware of the fact. People, including married and unmarried, particularly younger people, are yes sometimes a bit reckless. Duh. This is the value of oral contraceptives. People have sex, particularly those in college. Shocker. People are not "sluts" for having sex. Mature individuals, and apparently too many are not, realize adult women (even teenagers) sensibly use contraceptives, and along with other health benefits,** it makes a good amount of sense to factor this into insurance costs.  As is noted in the thread, that is likely why so many plans already provide coverage for contraceptives. 

The same holds true in other situations, including the PPACA as a whole. If those who drive can be required to have insurance given the rules of chance, taking into consideration basic rules of human nature makes sense too.  The logical person can see just like car insurance does not lead to bicycle riders needing to have it that contraceptives are not akin to non-therapeutic cosmetic surgery (e.g., "it makes them feel good, so you know, that's healthy too, you know") or any such thing cited by some people, often with a sneer.  The USSC in the early 1970s struck down a law that only barred the distribution of contraceptives to the unmarried as unreasonable but the state court went to the core of the matter:

To say that contraceptives are immoral as such, and are to be forbidden to unmarried persons who will nevertheless persist in having intercourse, means that such persons must risk for themselves an unwanted pregnancy, for the child, illegitimacy, and [405 U.S. 438, 453] for society, a possible obligation of support. Such a view of morality is not only the very mirror image of sensible legislation; we consider that it conflicts with fundamental human rights. In the absence of demonstrated harm, we hold it is beyond the competency of the state.

I find it best, and it suits my sentiments, to try to deal with others as if their arguments are aboveboard and not tainted with blatant prejudices. This never is 100% possible, since everyone has some bias or prejudice or speaks without total care and discretion. At some point, however, the other side crosses a tipping point. It is very hard to talk to a wall, with or without the crudity. I'm not sure why Prof. Volokh felt now was the time to cite Rush crossing the line -- is this really much different than many other examples? -- but he did a service in so doing.

Bottom line, it goes beyond this issue.  Basic civility and common sense should be used.  RL is not merely some Howard Stern.  He is a major voice of a certain political sentiment and clearly voices what they are thinking.  He also helps influence the conversation in the process as can those who respond.  Yet again, Mill was right -- erroneous speech can promote basic truths.

[After many leading Republicans atypically called him out, RL "apologized," but continued to misconstrue the situation. Well, we can't expect TOO much from the guy.]

---

* Some simply refuse to accept that police and fire protection is a type of insurance. We pay taxes and the public at large is the "pool" that is covered when something occurs.  Like here, catastrophic events are not the only time services are rendered and prevention is an important aspect.

Fire services in particular used to be private and even now a year or so ago a news story flagged that in some areas, if you don't pay into the system, you will not get coverage in the case of a fire. And, we are "mandated" to have such coverage in most areas.  It is seen as normal, but like many things such as modern civil rights laws, it once was not. 

** Some, again often selectively assuming good faith, say that it is fine to require coverage for "real" health concerns such as ovarian cysts. Again, not only are preventing the medical difficulties of pregnancy "real" health concerns, as Ms. Fluke noted, when contraceptives are controversial, every use becomes so as well. And, the result is that they too have problems. It is like use of opiates for pain. Some are hard pressed to get enough, since the very use is controversial and seen as overused. If contraceptives are put in the same class as morphine, we are in trouble.

NDAA Developments

One continuing theme of mine is that criticism of President Obama as little better (or worse) than President Bush just isn't supported by the facts. Some people who should know better have taken their anger or whatever at some of his actions, his inability given various realities or just plain error to lose perspective. I think Obama is a flawed President living in flawed times. That is enough without all the over the top stuff. Are we not supposed to be the reality based community?

The National Defense Authorization Act is an example. An important developments just happened, one that anyone who cares about civil liberties should note while they (like Glenn Greenwald recently did, per usual) sneer at his disrespect for law. As Lawfare, a major resource on such issues, noted:

[T]he Obama Administration issued a policy directive that effectively negates much of the NDAA’s section 1022, the section that purports to require that non-citizens suspected of strong links to terrorism be held in military, rather than civilian, custody. Using a national security rationale, the directive reverses the presumption of military detention that section 1022 had established.

A human rights lawyer noted this along with a Senate bill (credit where credit due, supported by four Republicans) helps "chip way" at the problematic aspects of the NDAA policies involving (so-called) enemy combatant detentions. The former measure:

Drafted in response to concerns that section 1021 of the NDAA authorizes the indefinite military detention of US citizens picked up on US soil, the Due Process Guarantee Act would protect both citizens and lawful permanent residents arrested in the US against being detained indefinitely under a military rationale. It would set a baseline prohibition on indefinite military detention in these cases, allowing it to be used only when Congress explicitly provides for it.

It's nice that four Republicans signed on, but that's but 1/6 of the sponsors. Yet again, one party, with a few exceptions, are on the side of sanity. The fact the Democrats are imperfect is well noted, but perspective warrants keeping that in mind. This is shown by our old friend (and torture supporter; Sen. Franken bluntly says that here) Stephen Bradbury finding (shocker) the bill unconstitutional. Somehow due process protections and setting rules of capture is something Congress does not have the authority or rightful discretion to provide for. The other side really should read the Constitution now and then.

As for President Obama's policy announcement, per Lawfare:

Bottom line: The President has–rightly in my view–read this law virtually out of existence. This is not a breach of faith with Congress, which in negotiations with the administration, so watered the provision down that, as signed, it reasonably lends itself to this reading. In fact, the provision–as Bobby has shown in earlier posts–would actually bear a more aggressive reading than President Obama has given it here.

You know, just like Bush would have done. Now, yes, it is a policy, and President Romney etc. could change it. But, congressional inaction would not have tied his hands there. He still could have under existing law purported to hold citizens, lawful residents and others pursuant to the laws of war or so forth. Wrong or not, the NDAA did not to my understanding do much to add to his power there. As Lawfare noted, it was a bad piece of "symbolism" and in some (not so clear) ways made certain procedures official policy backed by Congress. Not good. Nonetheless, President Obama did something significant here in promotion of civil liberties. Lest we forget it among criticizing those things he did not do. Fair is fair, some people are not.

Meanwhile, some are upset at how President Obama is going after medicinal marijuana dealers in states with permissive laws, after promising not to do so. I have cited this in the past, will forgo linking, but add a comment here pursuant to a somewhat surprising source. "Bill Otis," who provides knee-jerk screeds on a regular basis here, a prosecutor who apparently needs a release valve some place, makes a valid point. President Obama probably honestly made the commitment, but then the excesses of the dealers became too much for him or rather his Justice Department. The article cited after all notes that the more laissez faire approach lasted for two years. It very well might be true that he should have tried harder, but the story to me seems more complicated than some who rail against him as some phony make it out to be.

The times are often depressing and the glass empty sentiments of some are not helping.

Griswold Critics

I provided a summary of Griswold v. Connecticut yesterday and it bears noting that there are some who do not believe in it. After all, there being no basic "right to privacy" was (see Joe Biden's book) perhaps the major hook against placing Judge Bork (who John Paul Stevens supported at the time though Bork felt it was wrong for JPS to publicly say so) on the Supreme Court. Justice Thomas did a Justice Stewart in Lawrence v. Texas, saying it was a silly law, but there is no constitutional right against such things. (He also joined Scalia's screed for some reason.)

And, though some draw the line at abortion or gays, others too would go further. Robert George, a major warrior in the fight to save marriage by depriving same sex couples rights, argues the point here (I first found a version of his efforts on Youtube by doing a search on the case). Prof. George favors strong criticisms:

“Privacy” functioned as a euphemism for immunity from those public-morals laws deemed by the justices to reflect benighted moral views.

This sort of disdain is sometimes seen by the critics of privacy rights. Always charming when error is mixed with sneers. The general sentiment that the justices merely invented things is hard to come by when protections over the privacy of marriage and family life was cited by courts for quite some time by that point. The alleged fact that it was not based on text is hard as well when the Fourth Amendment speaks of "the home" (see also, Justice Harlan's dissent in Poe v. Ullman, his conservative bona fides making it curious to talk about "lifestyle liberalism" here) while other open-ended protections like "privileges or immunities" (such as state authorized marriage) are found there.

The case against the right to privacy is there, if weak, but critics often overreach and allege the pro side that has no case, that they are in fact not arguing in good faith. This is bad pool and is more advocacy and personal spleen than useful argument (or, on some level, argument at all). Still, we can look past that (and errors like citing a Massachusetts case that dealt with a narrow state issue, not the general argument of a right to privacy) and look at the "myths."

For anyone who cares to look, the purposes of the laws are apparent in the record of the case: Connecticut sought to promote marital fidelity and stable families by discouraging attempts to avoid the possible consequences of non-marital sexual relations through the use of contraceptives.

Looking past the picking a fight preface there, the problem here -- and one place to look are the concurring opinions citing said purposes -- is that law was a bad fit in that respect. Contraceptives, for instance, were readily available to prevent disease. The citation of "purposeless restraints" is not based on there being no alleged purpose but that the restraint is so poorly constructed that legally speaking it is an arbitrary one.

What, then, was the operative “principle” in Griswold? Nothing other than the Court’s desire to place its imprimatur on “enlightened” views about human sexuality.

How does he reach this? First, he cites a state case concerning the statutory reach of a contraceptives law, which the USSC reasonably did not consider earlier. Next, he childishly makes fun of the penumbra metaphor, ignoring the underlining principle and its basis and precedent. Third, since "the rights of parents to direct the upbringing of their children" are among the aspects of privacy cited by the majority and concurring opinions, how does that have "little in common" with that opinion? The majority itself, for those who care to read it, spoke of "the right to educate one's children" as part of the issue at hand! The opinion ends with honoring marriage, not "human sexuality" writ large.  But, yes, ultimately, it is about (and even then, not merely that) our right to make various private sexual choices.  Some do not like that.  Our constitutional tradition, however, supports it.

As to "sensible" people disagreeing with the opinion, sure, it is not absurd to disagree with its reasoning. A bit of strawman. The argument that the wide use of contraceptives now provides an after the fact justification is not one I am overly familiar with myself though logically broad acceptance is one way to determine if a liberty should be honored. The opinions by Harlan and Goldberg cite precedent to back that up, again underlining the opinion (wrong or not) was not invented out of whole cloth. As to the need for the opinion to prevent legislation invading the right, well, apparently there is some bite there. As with abortion, the fact that "not enough to worry about" will be affected is a limited view of equal protection.

Griswold recognized rights that were already honored. The doctrinal principles set forth can be debated on some level, I myself finding them sound, but bottom line, the American people has well accepted them as a whole.

Griswold Again

Griswold v. Connecticut: Birth Control and the Constitutional Right of Privacy by John W. Johnson is one of the better examples of various "landmark cases" books.  It goes somewhat off the rails after discussing the case, the summary of privacy cases after Roe a bit weak.  Nonetheless, it provides a good account of the case overall, including a brief history of privacy rights from the colonial days to the 1960s.  Cases and events can provide a good way to address broad principles and themes, this book being a timely example.  I read and noted it already; the times show the need to continuously re-examine such things, lessons slipping away. 

Unlike some, I think the majority opinion is overall a useful approach, ironically given the author, a more conservative one than the open-ended "liberty" stance later used.  Some like to ridicule talk of "penumbras" and "emanations"* like childish people laughing at funny sounding words.  The principle was in fact repeatedly cited, "penumbra" itself used over twenty times in past opinions.  Brennan (with support from Goldberg and Harlan) but shortly before noted the overall theme:

It is true that the First Amendment contains no specific guarantee of access to publications. However, the protection of the Bill of Rights goes beyond the specific guarantees to protect from congressional abridgment those equally fundamental personal rights necessary to make the express guarantees fully meaningful.

The ruling cited the First, Third, Fourth, Fifth and Ninth Amendments in particular as having aspects of privacy.  I have spoke of in the past of the Ninth Amendment, but suffice to say, as Justice Goldberg noted in his separate opinion, there are liberties beyond the four corners of the text and the spirit of the text is one way to find them.  The Supreme Court never had much occasion to deal with Third Amendment, but the opinion notes how the First and Fourth raised privacy interests. Shortly after, another ruling (citing an earlier opinion) noted the right against self-incrimination is in place partially on account of "our respect for the inviolability of the human personality and of the right of each individual 'to a private enclave where he may lead a private life.' "  Years later, the Supreme Court said the Second Amendment is particularly important in the home as well.  In Bowers v. Hardwick, Justice Powell also suggested criminalization of private acts raised Eighth Amendment concerns. 

The book notes the long concern of privacy, including Justice Story in his Commentaries speaking of "liberty of private sentiment" and the threat of "cold and formal severity" if private correspondence was not protected.  The proper role of the state (public v. private) was an essential theme, including privacy of family life and religious belief.  The preface speaks of a "judicially constructed right," but I do not accept that. I think the right was always there, if not fully recognized.  As is normal in common law jurisdictions, at some point, a slew of cases show a theme, which is set forth as doctrine.   Such was the case here.

Special note should be given to Justice White's concurrence.  His opinion, like Harlan's just his own, recognized a substantive due process liberty interest in the privacy of family life. As he noted, precedent so recognized, warranting heightened scrutiny here.  Any alleged state interest here to a law that burdened the use of contraceptives (if never directly enforced against actual use, White noted that the law in practice unequally burdened the right by blocking distribution and advice in ways mostly felt by the less well off; the dissents in Poe v. Ullman also fleshed out the dangers of the law, a point the majority opinion here barely did except with a passing comment about invading bedrooms) is of "marginal utility to the declared objective."  I find that is the best approach to answer the "premises" provided to block same sex marriage, ones "whose validity has not been  demonstrated and whose intrinsic validity is not very evident." 

White notes the various uses of contraceptives -- family planning, health or protecting of "life itself" (pregnancy more lethal at that time; some also noted the abortion ban, unlike the law against birth control, had a life exception -- thus, a different sort of "life" also was at stake).  The effort for legalization was in large part one driven by doctors.  It was seen as a matter of public health.  This is now controversial according to some people. "Pregnancy is not a disease."  Here too the absurdity increasing the chance of abortion is left open as funding of contraceptives is threatened.  The Church for years blocked legalization for non-Catholics. Now, such members of the hierarchy wishes to do so indirectly.

It is true that the ruling could have been more detailed, including in comparison to the dissents in Poe v. Ullman.  Connecticut courts over the years focused on the argument that the law should be interpreted to have a health exception or at least one for physicians.  By the time the rulings tied to Poe and Griswold were involved, they were tired and largely just cited precedent.  The privacy argument was not really addressed (see, e.g., a case referenced by Justice White, Trubek v. Ullman, which directly raised the privacy of family life argument and the court below noted it didn't add anything to past rulings focused on doctors and health).  It was only a back-up argument for those behind the Griswold case and the confused oral argument never really got around to it.**

Some cases did flesh things out though Roe v. Wade was tellingly lacking in this regard, though the concurring opinions in it and a companion case did provide helpful context.  Griswold was an easy case, involving marital privacy and clear intimate activity (including medical treatment and private advice)  that most accepted as protected.  But, the principles logically led to harder cases, if ones reasonably decided.  Things were still in flux post-Roe, as noted in a somewhat obscure ruling involving providing certain information to obtain prescription drug, one that also providing a helpful summary:

The concept of a constitutional right of privacy still remains largely undefined. There are at least three facets that have been partially revealed, but their form and shape remain to be fully ascertained. The first is the right of the individual to be free in his private affairs from governmental surveillance and intrusion. The second is the right of an individual not to have his private affairs made public by the government. The third is the right of an individual to be free in action, thought, experience, and belief from governmental compulsion.

Planned Parenthood v. Casey and Lawrence v. Texas [focusing on intimate association, well discussed in this law review article cited by Justice Blackmun's earlier Bowers dissent] also later provided helpful summaries of basic themes, if relying on "liberty" instead of "privacy" as such. Those wanting more discussion can always do keyword searches on this blog, since I believe the right to privacy is basic.  As Prof. Allen noted:

We should care because privacy is important.  I urge that we think of it as a “foundational” good like freedom and equality.  Privacy is not a purely optional good like cookies and sports cars.  Since the 1960s, when scholars first began to analyze privacy in earnest, philosophers and other theorists have rightly linked the experience of privacy with dignity, autonomy, civility, and intimacy. They have linked it to repose, self-expression, creativity, and reflection. They have tied it to the preservation of unique preferences and distinct traditions.  I agree with moral, legal and political theorists who have argued that privacy is a right.

A lot of stuff to ponder.  John Johnson helps us along in this book.

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* The much maligned principle:

The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.

This provides a limiting principle -- "specific guarantees" or textual limits provide the launching point, thus reference to "the home" (Fourth Amendment) or associations (with First Amendment content). The Court (two justices not even joining in there, Warren not overly enthused about it even when he did) did not hold to this theme, Roe v. Wade speaking of general "liberty."

** Listening at Oyez.com, Poe v. Ullman was even worse, a very labored performance with the end of the audio garbled. Also, imagine a justice now -- like Harlan -- politely taking back a planned question (on free speech implications of a law that covered "counseling" and other things) to allow the advocate a chance to address other issues.  Emerson very well might have been better off answering the question -- it might have helped Justice Black find something wrong with the law. 

USSC Rejects Another Last Minute Claim

There might be some difficulties applying execution protocols, but this is not a great representative for the anti-capital punishment crowd. Then again, even he was on death row for over twenty years so far. I'd just leave him there. The system is still broken.

Ziva David (NCIS)

One charm of NCIS are the characters and Ziva, our cute (does she practice those flirty faces?) Israeli-American team member is but an example. The Slate article referenced is notable as are the comments.

Proverbs

Wordplay is the funhouse of lawyers, but we should not be fooled into believing sophistry, even if we respect its skill.

Fiction Honored

"Every American" does not have to "buy" insurance under the PPACA to avoid a "fine" as epluribus notes here.  The poll question is a mistruthful push-poll.  Prof. Kerr pats the person promoting it on the back.  Educators should not honor and help promote ignorance.

Slings and Arrows

To be, or not to be, that is the question:
Whether 'tis Nobler in the mind to suffer
The Slings and Arrows of outrageous Fortune,
Or to take Arms against a Sea of troubles,
And by opposing end them: to die, to sleep
No more

One charm of this Canadian series is how it honors the wonders of Shakespeare, including a great monologue by "Geoffrey" on the thought processes of Ophelia in Hamlet, various insights on staging Macbeth (including audience reactions) and the actual sexual energy possible playing things on the stage.  Such insights and passion is often not found on our shows these days, many of them procedurals that have their charms (I'm liking NCIS these days) but not having such intimate depth. 

I never did (reading a few and watching movie versions) but it makes me want to see a live performance of Shakespeare.  I am a bit concerned about a full length production with its language and such but something like Romeo and Juliet (here the star was so intimately connected to his Juliet, that he had his first heterosexual affair)  or Hamlet seems approachable. 

Silliness of Originalism

This tidbit from a law professor working on a bio of someone sometimes seen as the Madison of the Fourteenth Amendment is but one more example of the subject.  See also, long articles like this, which provide disputed analysis of one Framer's views.  It is a shame so many rely on this angels on a pin method as authoritative.

Slings and Arrows (S2)

Typical sophomore jinx -- first episode basically closes S1 plot lines as if everyone is ready to leave.  New plots not as interesting.  Hits a certain stride mid-way and the cast is still likable.  Still, somewhat disappointing. More evidence that you can say "fuck" on Canadian TV.

2012 Oscars

Didn't watch (Billy Crystal? yawn) except for the touching speech by the Iran film winner, alluding to current controversies but the glory of the arts win out.  Like many, haven't see The Artist. Midnight In Paris, Rango and The Beginners bored me.  MHP scared me from The Help but maybe later.  Will try to see a few others later on as well.

Beginners

Going down the list of Oscar films, The Help is being discussed on Melissa Harris-Perry (she was insulted and used it to talk about various issues) right now and Beginners meant well, but the turgid pace and style made it unwatchable for me after a short time.

Stolen Valor Case

Volokh Conspiracy often is best read for its comments.  As is sometimes the case, they can have the better of the argument than contributors, though others simply go off the rails.  It is interesting to read the responses to these people too (and helpful to read the wrong-minded ones) as it was back in the day when I started commenting privately to op-eds, which provided convenient abbreviated summaries of issues of the day. So it went with the "stolen valor act" case that just was heard by the USSC, this time Prof. Volokh supporting criminal penalties for certain categories of speech, certain viewpoints in fact.  Contra:

In 2007, Xavier Alvarez of Pomona, Calif., was elected to the board of the Three Valleys Water District. At a board meeting, Alvarez introduced himself by saying: “I’m a retired Marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy. I’m still around.” Alvarez did not just lie about being a war hero; he lied about many things. His catalog of untruths include playing hockey for the Detroit Red Wings, marrying a Mexican starlet, and rescuing an American ambassador during the Iranian hostage crisis.

Now, out of all the lies he told, one of those is punishable by the Government. Why? Well, because. Because it pisses some people off. But why stop there? What if you falsely claim to be a postman to your friends? What if the government sets up a database of other facts that you shouldn’t contradict?

What if the Government really, really like the Detroit Red Wings?

Look, don’t get me wrong. False statements have (almost) no value. And they can be actionable (see, inter alia, fraud). But America, for lack of a better word, was built on puffery, exaggeration, re-inventing yourself, and, yes, lies.

Prof. Volokh (the USSC link provides his brief) wants to draw the line at knowingly false statements of fact (mistake or satire not the issue here) via neutral laws such as against false statements regarding all medals of honors.  This would allegedly get around R.A.V. v. St. Paul, which struck down a hate crime speech law (a law only about cross burning, that is, perhaps like the long ago law about wearing medals, was treated differently later on)  that targeted only some types of class based hate.  The ACS Blog link above dissents from the "this law is neutral" argument particularly since the law doesn't criminalize false denials.  Also, the law narrowly addresses one sort of honor, just like the other law was criticized for targeting only certain types of hate. 

Volokh also belittles (contra to a strong concurrence by his former boss, Judge Kozinski) the possibility that a whole list of possible lies might be criminalized.  Not likely to happen.  Oh?  A silly argument by a scholar who is aware of a slew of petty laws out there against speech.  This very law is petty, particularly if the thing is interpreted narrowly (as any law targeting speech should be).  The very name -- stolen valor?  This sounds like the stereotypical primitive who thinks his/her soul is stolen via photographs.  What is "stolen" in any real sense by some liar here?  If lies of this sort will now be criminally actionable theft, where is the stopping point?  There isn't one, so we will have selective prosecution depending on what particular viewpoint we find important at the moment. 

If the issue is that it influenced the obtaining of a job or something, that might be different, though a neutral law about lying on a government application can easily apply there.  But, this is speech and as the appellate court opinion noted, strict scrutiny should apply unless some exception is involved.  Yes, false statements of fact were deemed not by themselves to have constitutional value, but criminalizing them all would be problematic since free speech needs breathing space.  Thus, it is hard to claim libel when matters of public importance are at stake, even if the statement is untrue.  Judge Kozinksi also noted the importance of personal expression, litigating personal lies could be problematic on that level.  The original  (Kozinksi concurred on en banc review) appellate court panel noted:

In sum, our review of pertinent case law convinces us that the historical and traditional categories of unprotected false factual speech have thus far included only certain subsets of false factual statements, carefully defined to target behavior that is most properly characterized as fraudulent, dangerous, or injurious conduct, and not as pure speech. We are aware of no authority holding that the government may, through a criminal law, prohibit speech simply because it is knowingly factually false.

Like cases involving animal cruelty and violent video games, this law provides a somewhat novel question that forces the point, a type of "pure" false statement that an overly literal (see the dissent below) application of dicta might be thought to allow. This case is not about lying to a federal agent or as Volokh (with his co-writer) suggests about lying online to talk to a minor about sexual matters.* A special relationship or protecting minors CAN possibly be a compelling state interest.  There is no compelling state interest in this case. It is a symbolic piece of legislation to provide a type of shame to those who lie about military records.  It is not even about someone who actually was in the military who has some additional responsibility.  This interest is not totally trivial, but not enough when speech is involved.

The best case that might be imagined is to think of it as a type of trademark security, though again, not all government honors are so protected even there.  It is also a somewhat strange trademark law, even if one argument was made to shoehorn it in.  The government is clearly not really relying on that argument. As SCOTUSBlog notes, it will try to uphold the most they can by interpreting it more narrowly than its language suggests.  This is common practice.  I'll stick with the NYT and others to argue it is not worth the effort and trivial as the case might be on some level, the underlining principle is not.  Petty laws targeting speech are not only shallow but set forth dangerous precedents. 

I listened to some of the oral arguments and it was somewhat disconcerting to hear the defendant's counsel (who after all won below) sound so disjointed.  Judge Kozinski wrote a strong opinion about the troubling nature of the law but for a significant amount of time, you failed to get a sense that much was at stake but general principle.  The advocate even made a "concession" that it might not chill any speech.  Rather striking.  Contrast Judge Kozinski, cited by the LAT:

"Lying about being a military hero is despicable and may have some impact on the government's ability to recruit genuine heroes, but it's hard to understand why it's so much worse than burning an American flag, displaying a profane word in court, rubbing salt into the fresh wounds of the families of fallen war heroes," or other unpopular speech held to have constitutional protection, Kozinski said.

"Some impact" is not a reason to criminalize speech and if other speech or speech-like acts can cause similar harms, why are they not chilled?  Santorum, e.g., (h/t TPM) had an ad that mentioned his "Armed Services" experience, alluding to his time on the Armed Services Committee.  Arguably, this misleadingly sends the message he was in the armed services.  The government would likely argue that the (the literal reach of the statute possibly notwithstanding) that this does not count since he didn't intend to falsely send that message.  Is the court of law a place to determine such statements by politicians?  Some statement in some media interview or the like? Add this to the "Without the robust protections of the 1st Amendment, the white lies, exaggerations and deceptions that are an integral part of human intercourse would become targets of censorship" argument, you had an opening for a strong case against the law.  Not quite at the USSC earlier in the week, however. 

An appellate court as this case was pending upheld the law and a better case should have been made here, even if one does not think oral argument matter that much.  Bottom line, criminal penalties should be used sparingly given "Congress shall make no law."  Special interest exceptions need not apply.  And, even putting aside that, this is a petty piece of symbolism while more important protections are not provided. 

[And Also: Prof. Volokh and some others also do not find much to be upset about in regard to proxy baptisms by Mormons, particularly of Holocaust victims like Anne Frank.  To briefly comment, particularly since I'm taking a break from doing so there, I'm inclined to be with those who find it at least somewhat troubling on respect grounds.  Since this law is largely about just that, there is a connection.  And, here too, the main concern is what should be done, not something that should be legally actionable.  The former means a lot more at the end of the day. 

I find it troubling that some go on and on about how religion is rubbish, so who cares?  I find much religious belief wrong, but I find a disconnect with some who I agree with on other issues when they find it necessary to rub their nose in it.  After all, there are quite a few liberals who practice Christianity and other faiths that have beliefs that seem irrational. Why gratuitously take potshots? When they want to remove rights from others, sure, but in general, it seems bad manners.  And, the idea of some that even being offended is stupid seems rather much.] 

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* Any exception to the general prohibition against censorship tends to bring with it problems, underlining the misguided approach by Prof. Volokh here in the pursuit of doctrinal purity.

As someone online for years, I can tell you that even this apparent no-brainer matter is not without complications. For instance, in chatrooms, people often knowingly pretend to be someone else for role playing purposes, including being another sex or age.  Criminalizing lying in this context can be problematic, particularly when entrapment is mixed in. 

Ho Chi Minh City

This received some hits previously but not sure about from Vietnam.

Rum Diary: Rating etc.

[SPOILERS]

Rum Diary was rated 'R' -- "for language, brief drug use and sexuality."

The brief drug use was something of a tacked on scene (much more drinking in the book -- the fact the lead comes off as somewhat boring at times here is one problem with the film) involving some mysterious psychedelic drug provided by a crazed roommate and applied via eyedropper.  Nothing much happens for a bit, then our young Hunter stand-in sees his buddy's tongue get real big and soon the two are wandering around a bit in the dark night.  Johnny Depp's animated film Rango was more psychedelic by far (if to me, more boring). 

The language was not noticeable.  They might have used the dreaded "f" word at some point, but I did not get any sense of it being adult level language as a whole.  As to "sexuality," how that even gets you a rating where you cannot go with an adult if you are under seventeen is unclear.  Notice it didn't say "nudity."  Nudity is hinted at times, but you never actually see it.  You do see a quick scene of sex in the distance without anything being explicitly seen.  Another sex scene is interrupted before it barely gets started.  Amber Heard has some sexy moments here and she looks like a young actress to watch.  Still, not seeing that rating here.

A bit on the story.  The movie takes the basic outline of the book, removing one character and giving his girlfriend to the no principle money guy that tempts our hero,* the usual sort of movie compression as was omitting Paul's actual plane trip into Puerto Rico.  A local watering hole that provides the opening scene of the book is also mostly ignored, a more questionable choice.  The changing of the boyfriend results in some plot changes involving the girl (Amber Heard) and causes some plot confusion.  His pal (standing in for someone else) comes along at one point when it doesn't make much sense for him to do so. 

The overall idea of a young (but to him getting old fast) writer experiencing some life stuff in Puerto Rico, including with a colorful press photographer (Giovanni Ribisi adds some color too as a crazed crime/religion reporter)  staid largely the same.  As fleshed out more in a "making of" segment, the idea is the writer/reporter cannot find his voice and the experiences here makes him develop into his "get those bastards" persona.  You do not really see it, to be honest.  The movie promises more craziness than it really delivers, even the striking rape (we see the lead up) found in the book watered down here, down to much less sexiness on the dance floor.  Depp seems strangely toned down here repeatedly. 

And, the ending sort of comes in a rambling way (involving a cockfight to suddenly make some money for some last bit of justice that came off as unlikely, which they do not actually use and then a thing with a boat and ... a tacked on "happy ending" final crawl that really seemed ill advised)  that I found badly done.  The book was somewhat disjointed there too but handled things better (no cockfight, for one thing), without the happy ending business. It left things more appropriately hanging.  The film had charms like I said earlier but in a disjointed fashion, including various supporting characters and some good scenes.  Tellingly, I watched it in dribs and drabs, getting bored.

The extras were a "making of" segment that was pretty good and a rather drawn out home movies flavor documentary regarding the real Hunter Thompson editing the work and trying to get (a decade ago) it made into a movie.  This over forty minute segment could have been shorter.  

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* Aaron Eckhart is well cast here but after awhile, has not enough to do.  The same might be said for the great character actor Richard Jenkins, playing the editor.  The others, besides the three cited in the text, were generally okay, but nothing special.  Michael Rispoli as Sala was very good though at times he was a bit too talky. 

A Room with a Zoo

Had some bad luck finding a book recently to read through so tried  a safe choice -- this charming book with cute illustrations.

Rum Diary

The book read like a rough draft of a young writer that was left unpublished for years.  Some good parts but not good as a whole.  The DVD extras (with Hunter Thompson) showed how long the film was in development.  Similar result really with Depp et. al. still providing enough to make it worth a look. Last part still rather weak.

"sex should be free from consequences"

This thread like others raises some ugliness, including this seen before trope.  The idea is that somehow Griswold or birth control being covered equals protecting licentiousness.  Such ignorance. A small nod too to Dilan -- usually worth reading, but on religion, uh ...

Girl Scouts

A comment at BTC News etc. alludes to a Republican legislator's shot at the Girl Scouts, but on religious issues, gays and so forth it actually is saner, more so than the Boy Scouts. Also, they are for girl empowerment. Anti-conservative! Yes, rather ridiculous too.

Sandra Fluke Talks About Contraceptives

The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this state to all humankind; and no person shall be rendered incompetent to be a witness on account of his or her opinions on matters of religious belief; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this state.

-- Article I, § 3 of the New York Constitution

We here in NY manage to have religious freedom as well as a requirement for religious employers to provide insurance coverage that includes contraceptives. It is noted that the First Amendment does not have a proviso like this one has but as noted in the past, it still protects religious exercise more than the current official understanding of the federal Constitution as applied to laws of general applicability. I covered this issue back in 2006 (tempus fugit) here.

The controversy that an application of a similar rule pursuant to the PPACA has received a lot of coverage, but various details are often missed. The important points might still be cloudy. For instance, what is a "religious employer" for purposes of federal law here (note that this is pursuant to this administration's interpretation of the law, underlining the importance of who controls the executive department)? With apologies to Rachel Maddow, this site lets us know:

A religious employer:

• Is a nonprofit organization

• Has the inculcation of religious values as its purpose

• Primarily employs persons who share its religious tenets

• Primarily serves persons who share its religious tenets

Thus, even for religious schools, not merely churches, you do not have to provide birth control to nuns, but it could be different if non-faith employees make up a significant part of the facility and staff. If the institution is so insistent to not provide coverage, or even indirect fund those that do (or, as in reality is the case, some of them), don't hire non-Catholics in this situation and only serve those who follow your tenets. If you don't want to do that, yes, you will have to follow some general laws. Since you are no longer doing something purely religious, but something that can be regulated to deal with the general public affected. They want to have their cake and eat it too, however.

The "threat" to religious liberty led Rep. Issa to hold an oversight hearing (and I wonder if anyone picked up on this) with even the url to the video being politically charged. There was controversy because of the lack of women on the first panel, but he noted: "The hearing is not about reproductive rights and contraception but instead about the Administration’s actions as they relate to freedom of religion and conscience."  [I would add that is wrong for another reason -- the witness was concerned not just about that, but women's health as a whole.]

Sure, that's why there wasn't a woman on the first panel (the stupidity of this underlined by the presence of two on the second -- there are women against even the compromise policy out there) and giving the minority party all of ONE witness. And, "freedom of religion and conscience" is not absolute, nor is it non-germane to have the other side there to address the question. Reasonable opposition recognizes such things. Ms. Fluke was represented on the hearing's website via a link to a press conference that included others like her, which is nice, but it would have been nicer if they were represented on the actual panel. She also came in for a special Democrat only hearing today. Instead, we have talking past each other, made worse given that even the Catholic Charities and Catholic Health Association (why weren't they there?) support the proposed solution.

A real debate on this issue would be represented by having the Democrats' side represented for a few witnesses, instead of the one sided affair that took place. If something that has bipartisan, broad Catholic support results in this, well, that's rather telling in itself. One concern raised by the panel was that Plan B is covered.* That sort of thing has a shred of logic, more than harping on the fact that "pregnancy is not a disease." A moronic statement -- the issue is the real health effects of pregnancy, which is a major reason why Catholics do not generally have ten children, even if they have the money to care for them. But, real debate of possible sticking points is not the point here. Major fail.

One of the women panelists (in the second round) offered "reasonable alternatives" to having the insurance company provide the coverage without charging the institution. I still find this akin to that bit on The Daily Show where it was noted that there are just so many ways for the government to pay for abortion, so what we really need is special money (dollar bills) so that pro-life people will not be corrupted. After all, we pay the salaries of building inspectors to clinics. Pacifists also ridicule them on what the government forces them to do.

Anyways, these "alternatives" would include the women paying for it themselves, their employers or via their spouses. Ms. Fluke notes that contraceptives could cost $3000 over the span of one's attendance at law school. The point of insurance is avoid out of pocket costs. Many of these people are not married, particularly those at college. Many are not employed -- why do they need insurance at all if they can get it that way? -- and many opponents would like to let many employers not cover insurance either. So, these "alternatives" are weak, leaving the option of individual credits. Where will this money come from? Unless this is some sort of unfunded mandate, it will come from somewhere. Perhaps, less funding to education institutions and so forth?

I guess finding not overly credible distinctions is something Catholicism has had a long history putting forth, but the bottom line is that money is fungible and at some point, the religious institutions have to recognize the lines they are drawing here are silly. They are not being asked to directly promote, distribute or even fund contraceptives or even those that do so. They interact with various institutions, down to those who build their campuses and serve their food, that in some fashion support violations of doctrine. Do all cafeteria food come from companies without same sex couples being given benefits? If not, is not the Church funding the promotion of same sex marriage? Seriously, why is that different?

Ms. Fluke's remarks (she doesn't appear to have been sworn in, so it isn't "testimony" as such) underlined the importance of the drugs in question for women's health. It is my understanding, though some appear to be confused here (I say this in part from reading blog commentary), that non-birth control related use of these drugs is not the issue. But, as with narrow "health" rules for abortion, one problem is that once you make it controversial, those who need it for ovarian cysts or whatever will have a hard time. Some providers (and students) will not understand the after all unreasonable lines being drawn. After all, the basic idea of preventive health apparently is too hard for some to understand, sneers of "pregnancy is not a disease" being made.

And, it bears remembering that even Catholic organizations accept the compromise, most Catholics (e.g., Rep. Nancy Pelosi) realizing even the original ones were not some big insult or threat to Catholics as a whole. This plus the thousands of students, employees, patients and others covered by these institutions that are well respectful of "religious liberty" underlines the shallowness of the alleged "threat" here. The modern regulatory state is a major driver for the felt need for some religious exemptions of general laws, even if the institution in question received government funds and serves the general public. It also shows the need for respect for all views and some middle ground. Most seem to respect that.

A hopeful sign.

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* See here for discussion of a district court ruling striking down as a sort of religious gerrymander a local policy held to be applied in a discriminatory fashion. Seems to depend on the facts, which those interested can investigate further. As I noted, if anything, for what it is worth (it's only a district court ruling in a special case), it's possible the logic there would hurt the dissenters here because Obama's proposal seems to be a problem in the other direction!

Anyway, this Plan B issue has received less press. Since some think it is an abortifacient given there is a small chance that it will not merely block conception but implantation, it raises the abortion red flag. Looking at the written testimony of the two women panelists, and this really deserves to be underlined, their main concern (not saying it was their only concern) was in fact this issue. One in fact underlined her institution DOES cover contraceptives (but not sterilization) generally.

The year delay is well used to deal with issues of this sort and if a bipartisan modification merely exempts this sort of drug, it would be acceptable though probably with some sort of rape exception. Those with health problems would still get contraception coverage. It is not ideal, but no compromise is. Rushing this slanted panel for political effect is again not productive to the general welfare, the ultimate bailiwick of Congress under the Constitution.

Privacy Quickies

A district court struck down section 3 of DOMA and it's nice and all for a Bush43 appointee to do so, but as I said here, probably went overboard on the reasoning. Virginia's forced ultrasound bill's (possible fix) is still bad, but somewhat less so without direct bodily invasion.

The single issue voter

In my recent comments on President Obama's treatment of medicinal marijuana, I referenced a blog post where I first saw the Rolling Stones article on the subject as well as certain comments in particular. This includes those that to me seemed more visceral than a rational look at events, including belittling what Obama did in respect to gays.* I find that sort of thing annoying, but should be somewhat more philosophical about the state of mind expressed by such comments. Perhaps, for Lent, I will try to take a breath and do more observing.

Also, someone bothered me because (other than also wrongly diminishing Obama's overall actions) of what I saw as a myopic view arising from personal experience with those helped by medicinal marijuana. One person in apparent response to my comments spoke of "partisans" who miss "deal breakers," referencing a "pro-life" Democratic candidate. I guess he did not mean Sen. Casey, who underlines that no one issue should decide an election by its lonesome, especially in comparison to candidates like Rick Santorum. If you live in a safe state or district, perhaps, but overall, as I noted, even if Obama's position (at least after 2010 -- the thread mostly ignored the article on that point; standard case of not addressing hard questions) here is wrong, the very same people you care about will be helped in some other fashion.

And, politics like religion should not be just about you. I was said to be deluded or holier than thou on this point, but it's true. And, those who really care about these issues realize the fact, sometimes "holding their nose" because they know the alternative is worse. Public policy affects a lot of people. If your single issue dominates, screwing other people (I think it was at least partially b.s. anyways -- even if the person voted for Obama in '08, the belittling of him overall did not suggest a person much sympathetic as if this was the "tipping point") by helping to support bad public policy (again, even "me and mine" cares about more than one thing) is selfish. We as a society are supposed to not be just for our own interests. I find it easier to be less selfish because it is actually in the long run also beneficial.

Some disagree. They have a myopic vision and to me it is pretty sad. And, leads to bad results for "me and mine." And yours.

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* The theme of this discussion is the same with some other candidate, some other issue, but I do find a disconnect at times for those who imply I'm some sort of "Obama lover," when I find him too moderate on various issues ... I don't "love" him, but do realize his moderation is not just some sort of reprehensible hypocrisy, the sentiment of some. 

As to being some sort of "partisan," if that means some basic respect for the coalition known as the Democratic Party or some other organization, realizing that I am not merely some lone actor standing in the ether, fine, but that is also rather misleading.  I feel more comfortable reflecting that I have been targeted from both sides, the sign of valor of my sort. 

USSC Case Best Likely To Be Fictionalized?

Sounding a bit like a Law & Orders: Special Victims episode, talk of "bitches" and "passing strange" in an interesting clash of Roberts v. Sotomayor (Kagan in the middle) in a Fourth Amendment case involving gangs and such. Again, glad Sotomayor is there.

"Corruption"

A local professor with the wonderful name Zephyr Teachout was on Chris Hayes recently. She wrote an interesting article on how "corruption" is a major concern of the Constitution, but how far she takes that is questionable. I am not, e.g., appalled at corporations funding ads against candidates, even shortly before elections.