Founders' Key

I received The Founders' Key free via the Book Sneeze program in return for my review.

The book interested me because it is advertised as an explanation about how the Declaration of Independence and Constitution are connected but "progressives" today do not realize this fact. This is misguided and threatens our liberty.  This not being my understanding -- see, e.g., A New Birth of Freedom by Charles Black (and, humbly, my own writings), plus the matter is of deep interest to me, I chose this volume for my selection.

I appreciate the intent of this book and to the degree it makes you think about the subject matter, including by reading and contemplating the documents involved, all for the best.  A full third of this not too large volume are reprints of the Declaration, Constitution, various Federalist Papers and Madison's essay on "property." Such things can be found online, so spending so much space on them is a bit questionable, and selecting a few Madison papers can be misleading.  Still, worthwhile. 

The book starts on a bad foot, however, by quoting Rep. Pelosi's now (in certain parts) infamous answer to a reporter who asked the who asked the constitutional basis of the PPACA.  Linda Greenhouse -- in a recent NYT blog piece -- cited it to underline how ridiculous it was to assume the question was debatable.  Others, such as the author of this book, cites it to show that she and others have forgotten the limits of the Constitution.  Such has not been shown, nor the argument provided that she has "disconnected" that document from the Declaration.  In fact, the right to "secure" the liberties of the one is in part provided for by the powers found in the other.

The book continues such a shall we say two-headed theme.  There is an implication that many people, including "progressives," do not believe in the two documents.  Selective statements by some that some aspects of the Constitution are problematic or disagreement on its meaning do not show me proof of this fact.  The book -- as many of this sentiment do -- provides interesting and valuable discussion on the various principles involved in the two documents.  Specific aspects can be debated, but that isn't too important here.  The problem is that there is some conclusion that disagreement over details means the other side misses the importance of the overall principles.  A talking past takes place.

Nonetheless, I respect the effort and respect for the principles, some common ground possible there.  So, I think a mixed rating is appropriate.

The Case Against Liberal Dispair

Back to Real Threats to Individual Choice

This incubator is overused because you`ve kept it filled
The feeling good comes easy now since I`ve got the pill
It`s getting dark it`s roosting time tonight`s too good to be real
Aw but Daddy don`t you worry none `cause Mama`s got the pill
Oh Daddy don`t you worry none `cause Mama`s got the pill

-- Loretta Lynn

This was controversial thirty years ago, but seems like it still is, huh? In The Means of Reproduction: Sex, Power: the Future of the World, Michelle Goldberg explains the history of federal funded women health efforts here and abroad. This included birth control and reproductive health in general, the bipartisan nature of the affair shown by the efforts of the Ford Foundation and support of Rep. George Bush (B41) to overturn the 19th Century federal law against birth control.  At least back then, during the Nixon years, he was for an individual woman's right to choose whether or not to have a child. 

The basic idea is rejected by many people. As a whole, the nation accepts the basic idea that a woman has the right to choose in some sense. Many are not comfortable with the idea, particularly when it is done "wrong," but only a few wish to take the power away ala Rick Santorum. A large segment still is uncomfortable with the idea all the same, or the whole Sandra Fluke as slut idea (kidding on the square) would have been so ludicrous that it wouldn't have been raised. This segment helps to vote for legislators to in effect establish as the official understanding that an individual's right to choose is not really their own. And, to some extent, the Supreme Court has allowed this, even when it de facto seriously burdens women's health.

The federal government has refused to continue the funding because Medicaid clients have, under federal law, the legal right to seek care wherever they choose

Texas wants in effect to establish certain religious beliefs and hurt women in the process; again individual moral choice is NOT the point.  This is what "conservative" means these days and one of the biggest spin jobs is when those who promote these policies pretend to be libertarians concerned about the government on your backs.  Their success, like with the use of "Obamacare," is shown by the very need to waste time and effort to refute them.  The success is shown by acceptance, as realistically the best we can do, the denial of health care when "abortion" is involved.  The line drawn in the sand by the federal government on contraceptives and other health funding, however, provides some good news. 

These types of efforts are the other side of the coin. As shockingly a majority of the states go out there in some form (a few with Democratic attorney generals went around them, the governors acting on their own) to argue against that big threat to liberty, the PPACA, remember several of them support diminishing personal choice locally.  Legislation that uses free market principles to help more people have a real individual shot at health care should -- like Ford and Bush in the days of yore -- be something with bipartisan support.  This is why the right of privacy and personal liberty obtained support from REPUBLICAN appointees.

When those using the pill are "sluts" and jokes are made about putting aspirin between your legs and all, apparently we have a long way to go. Until otherwise shown, only one party, at least nationally, is seriously credible on this issue.  Push them as much as you want, but for those who go the "two peas in a pod" route, what is wrong with you?

I still think the tax argument is pretty good

The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United State

The PPACA covers all three.  The CC argument is fine too.

Tebow

I still think this is a strange trade and that the Jags would be a more logical fit down to the faith angle but this new version of the post will accept it as a given and try to see it as a positive change.  But, it still seems to be asking for trouble, down to the QB's confidence. 

SCOTUS Recognizes the Reality of Plea Bargaining

And Also: Nature's Justice: Writings of William O. Douglas is a good introduction to the idealistic side of this controversial justice. You can then read Wild Bill, a bit of an over-correction.

As we await the high point of the term, the PPACA orals, some other matters of note continue to take place.

Scalia dissented from the bench today respecting two opinions, written by Kennedy (joined by the "liberals"), providing protections against ineffective counsel in respect to plea bargains. There were various complications involved in the case including proper application of habeas and the "broken egg" problem (a pre-trial plea bargain based on various things that no longer are present, including avoiding trial), a point focused on by Alito's separate dissent.* And, the reach of the rulings are unclear given certain limits set forth and leaving lower courts much discretion to unscramble those eggs as they deem fit.

Of primary importance is that the majority realized that nearly all prosecutions are plea bargains, so it is important to apply due process rules to the procedures. Scalia [in a section not joined by Roberts; Alito dissents separately) goes all holier than thou:

In the United States, we have plea bargaining a-plenty, but until today it has been regarded as a necessary evil. It presents grave risks of prosecutorial overcharging that effectively compels an innocent defendant to avoid massive risk by pleading guilty to a lesser offense; and for guilty defendants it often—perhaps usually—results in a sentence well below what the law prescribes for the actual crime. But even so, we accept plea bargaining because many believe that without it our long and expensive process of criminal trial could not sustain the burden imposed on it, and our system of criminal justice would grind to a halt.

Sadly, he says, the Supreme Court no longer finds it "somewhat embarrassing" but a "a constitutional entitlement." Oh please. Plea bargaining has been in place in one form or the other for quite some time. I read Samuel Walker talk about the fool's errand of those who tried to prevent plea bargaining in Sense and Nonsense About Crime twenty years ago. The majority doesn't make it a "constitutional entitlement." The government sets up the system in such a way that it is a major part of how things work. Just as police and prosecutors have loads of discretion to arrest and charge, only a game of "let's pretend" can avoid realizing it is a major part of the system. Like property that need not be allowed, once it is, it cannot be taken away or used in a way that violates due process.

Scalia is the one with a cheap view of criminal justice here. Four justices, including the Chief Justice, puts forth a limited view of the right to counsel. It rejects the reality set forth in the majority that it isn't just there to ensure the trial itself is fair and the person is convicted correctly in that sense. The right to a lawyer is one that is important as a whole. That's why Miranda rights speak of a "right to a lawyer" even before you step into a courtroom. Real life is not the pretend version of the dissent, one where one might imagine liberty and property taken away only after a trial. Often, the key moments are elsewhere, including when you surrender your rights via a plea bargain.

Four justices wish you to believe that the mere form of a "full and fair trial" is all you need, though one the majority keeps on trying to make "too long, too expensive, and unpredictable" [ironically, a core reason for plea bargaining is to avoid this sort of thing] per their misguided attempts at "perfection," which defense lawyers will be surprised to learn about after the limits put forth since the days of the Burger Court. The state sets up plea bargaining as THE major means to dispose of cases. It has responsibilities to ensure it is done right. If it wants, it need not use it, but as noted above, good luck with that. As with illegal confessions obtained in the station-house long behind that trial which can taint that conviction, even if the person is factually guilty and the jury so holds, mishandling plea bargaining -- which can result in (gambling or not) significant less time in prison and at times escape from death row -- taints the judgment.

If plea bargaining is so horrible, the path is not to avoid it as distasteful, but address its application. The dissent doesn't seem to want to end the practice. It wants to avoid dirtying its hands in trying to find some sort of rough justice. The important aspect of the case to me seems to be the realization that plea bargaining requires various safeguards, the overall principle more important (if not for these two defendants) than the results in the specific cases here.

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* See also, his separate concurrence in a procedural ruling, speaking of people who have to "dance to the EPA’s tune" and other "unthinkable" things, at least when property rights are at stake ... another example of "angry Alito."

Atheism: A Very Short Introduction

I have read a few books (including history, Koran and this one) in this series and find them as a whole enjoyable. Linda Greenhouse just wrote one on the Supreme Court. The atheist volume, a good read, supports the "positive" brand of atheism I prefer.

Intimate Life, Judicial Review etc.

The Sodomy Cases by David A. J. Richards is the "Landmark Cases" volume for Bowers and Lawrence, providing good background, if you could get pass the trudge of the introductory chapter.  It provides some general principles (the author working on them at least since the 1970s) in helpfully summary form.  A basic one is that "sectarian" legislation is constitutionally problematic.  "Sectarian" in this context means "internal to a moral tradition not based on reasons available and accessible to all."  A mid-1980s law review article expanded:

general goods are those goods whose nature and relative value is free of sectarian disagreements so that all persons, irrespective of religious or philosophical convictions, could reasonably agree that the criminal law should protect those goods from harm. But because there are sectarian disagreements about fetal life, it is not reasonably understood as a "good" in this sense, that is, as a good whose protection is an adequate justification for the application of criminal law to choices protecting reproductive liberty.

This suggests the "secular state interests" Justice Stevens referenced regarding birth control, abortion and euthanasia contexts or the "ethical and moral principles" of Lawrence v. Texas and the matters of "conscience" left to personal choice in Planned Parenthood v. Casey.  Originally, the forbidden zone would be a more homogenous matter of religious dispute, now it is a more open-ended affair, though some might still see it in First Amendment terms (see, e.g. U.S. v. Seeger).  Just how broad "sectarian" should be defined is open to debate -- I myself do not quite know how broadly Lawrence did so beyond cases often deemed "privacy rights" in nature and doubt (contra Scalia) it wanted to end all "morals" legislation as such.  There seems to be some "public morality" that is accepted and Kennedy himself sees fetal life as such, one that can limit reproductive liberty to some sense, particularly after viability. 

This is essentially not a question of personal "preferences," but rather of the legislative authority of the State. I find nothing in the Constitution depriving a State of the power to enact the statute challenged here.

So argued Justice Burger in his concurring opinion of Bowers v. Hardwick and  such is the sentiment of Justice White's majority opinion.  Some still have this point of view in this area, arguing that such "moral" questions be left to the legislature, Madison's factions (Federalist No. 10) dealt with there.  White is an interesting character there in that he -- unlike Scalia or Thomas -- supported Griswold.  His Bowers opinion, however, was foreshadowed some years before in a dissent respecting a zoning law blocking a grandmother's living arraignments with her grandsons. It supported a substantive due process, evolving understanding of "liberty," but only so far.  Not comfortable with the whole thing.*

Richards is more comfortable and would apply the principles in a more evenhanded fashion. Judicial review is a positive in that it is "grounded in arguments of principle" that is less possible in various respects than political decision-making tied to elections and partisanship.  The latter spoken of at times in Prof. Dworkin's writings.** A reasonable and consistent approach to the "contemporary understanding" approach to judicial review, one that still is loyal to the basic principles of the Framers (and often honoring open-ended provisions found in the text such as "privileges and immunities" or "due process")  would honor a right to "intimate life."

[Thus, Prof. Jack Balkin and others argue for a type of liberal originalism, apparently to not just approach things via a common law approach ("living"), but -- see that link -- navel gaze on what exactly what the original meaning, now more open-ended, means exactly. That is, the "originalism" part.  I jest.  Sort of. ]

As Richards notes in a later book challenging "fundamentalism" in law:

Like the right to conscience, [the right to intimate life] protects intimately personal resources (thoughts and beliefs, intellect, emotions, self-image, and self-identity) and the way of life that expresses and sustains them in facing and meeting rationally and reasonably the challenge of a life worth living -- one touched by enduring personal and ethical value.

There is a clear overlap there with freedom of expression and conscience, The Sodomy Cases arguing that the Supreme Court had to first strongly secure those rights, including opposing sectarian state religious establishments, to be ready to fully secure a right to privacy.  Nonetheless, intimate life is firmly a basic "inalienable right," one honored in the time of the American Revolution, if selectively denied to certain groups, particularly to slaves.  Therefore, it would be wrong to hold that it has "little or no textual support in the constitutional language" (particularly the Ninth Amendment) or history.  Unless one was selective about it.  There is a key equal protection issue there and the author ties gay rights to racial and gender equality.   We see this today in bullying.

On some basic level, these principles have broad acceptance, but they continue to be challenged in various respects.  Partially, it is a matter of selective respect, like Republicans who suddenly oppose free market friendly insurance policies when Obama signs it into law.  Sometimes, it is based on "sectarian" sentiments that are colored by racial, religious or other biases that are suspect.  It also might be a somewhat conservative approach that wishes to go only so far, but the lines drawn can be somewhat curious and on closer review, a bit too arbitrarily drawn.  

Consider Prof. Ely, who supported abortion rights legislatively, but was very wary of some "right to privacy" judicially.  But, his political equality approach to judicial review fully/equally applied very well might cover this ground, and even he thought there was a principled approach to strike down the unequally applied law in Griswold and opposed class based abortion laws like Maher v. Roe. And, eventually, even Roe as a matter of precedent.  One thing Ely cited in a famous law review article criticizing Roe was that fetal rights can be seen as a "minority rights" issue, but embryos and fetuses are not constitutional persons.  It is quite true, he too is a vegetarian, we protect animals, but requiring women to be vessels for their growth akin to a joey in a kangaroo is again not something done.  The ruling addressed that, including with a long look at history. 

And, other challenges are made as well. We will continue to be "sectarian" on some level there.  The best thing one can hope for is some protected sphere, equally and fairly applied as best as we can, continuously tweaking the exact nature of the whole affair.

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* This explains the overall nature of this much disliked opinion and underlines the importance of authorship.

Justices Burger and Rehnquist were never gung ho about the basic principle of a "right to privacy" while Justice Powell was, but basically had a block as to gays (ironically, he had many gay clerks, liking a certain "type,"one eventually arguing Lawrence v. Texas, though he first went through a heterosexual phase). He later admitted error on the point.  O'Connor's vote is a bit more curious though -- like society -- she too "grew" on the matter as shown by her later votes and actions. 

Lower courts, however, cannot psychoanalyze, and needed to follow such a precedent, though it was a poor fit as Lawrence eventually held.

** The Constitution specifically obligates political actors to swear or affirm loyalty to its dictates, constitutional review ultimately more likely to occur in practical ways outside of the courts.  Like it or not, however, people tend to entrust the courts with a special duty here, its very make-up honoring the assumption they will look at things differently. 

Supreme Court Watch

Some notable cases this week, including life imprisonment for non-capital offenses committed by minors. Also, important patent case and a notable family leave regulation was decided today, even Scalia rejecting (wanting to go further) the congressional second guess of the plurality's rule. Good dissent.

Peyton

So, looks like he going to Denver.  I guess they want more of a sure thing Elway than Tebow, who I think can thrive in the right place, no Eli or Tom, but surely has the passion and hard work down.  Maybe, down South will work, his faith a plus for many fans there.

Pelfrey

It is the lazy choice to keep this guy and will add insult to injury in what promises to be a bad year as a whole.  I'm tired of him and rather some retread short term.  Will he suddenly be okay?  Maybe, if we close our eyes and wish real hard!  Innings eater, they say.

Brian Lamb Stepping Down As CEO of C-SPAN

Item. He's one of the good ones -- keeps things smart and fair.

The Adventures of Johnny Bunko: The Last Career Guide You'll Ever Need

Isn't life a bunch of "WTF" moments? Don't know about that subtitle, but this manga style book is worth a read all the same. The outline:

1- "There is no plan."
2- "Think strengths, not weaknesses."
3- "It's not about you."
4- "Persistence trumps talent."
5- "Make excellent mistakes."
6- "Leave an imprint."

I don't read much of this sort of stuff, but if it isn't "novel," it still packs some informative stuff in an accessible format. And, I too agree with Diana when she says that “this isn’t just career advice, guys. In some ways, this is what it means to be alive.” After all, the "career" need not be business; even life counts.

Overall, I like the graphic novel format. I even read one of Pride and Prejudice as part of my Jane Austen period last year. One on the health care law (I'm sooooo tired of people talking about the lawsuits ... six hours of this stuff next week ... sheesh*) is on my list. The illustrator of this one illustrated a fictional one (Lost Girl) that also looks good. There is a sci fi t.v. series by that name too. And, a D.H. Lawrence novel.

Colorful.

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* Partially because I think the other side is so  lame.  One comment underlined the point by referring to a two hundred year old case that showed the connection between having insurance and protecting interstate commerce.  

My Week With Marilyn

The movie started with this boring Brit (the "my") and spent too much time on him for me to be interested. Bored, I turned it off to watch Army Wives. Later Vin Scully was doing a Dodgers game. Strange to listen to a ball game with a solo guy in these days of tag teams.

Army Wives

Another comfortable episode without any real bite but pleasant enough. Susan Lucci had a good cameo. CJ had some knowing looks.

“hearing to speech"

Nelle Morton coined the feminist principle of “hearing to speech.” Morton’s new understanding of hearing and speaking came to her while she was with a group of women who gathered to tell their stories. As one woman shared her story – a story which at times reached points of excruciating pain – no one moved or interrupted, everyone seemed to be holding their breath. At the end, when the woman finally finished, she said, “You heard me. You heard me all the way – I have the strange feeling you heard me before I started. You heard me to my own story.”

Morton recognized that hearing to speech, hearing all the way, was a “complete reversal of the going logic” in which a person speaks so that more accurate hearing may take place. What Morton was instead witnessing was a depth hearing, a kind of hearing that engages the whole self to the point of holding ones breath in order to allow the coherence of the story to form and come together. This kind of hearing evokes “a new speech – a new creation” – it enables one to be heard to ones own story, which then creates the possibility for new imagining, an imagining that contributes to the mutual empowerment and transformation of both hearer and speaker.

Scholarship is very personal in nature. I think people write and study because they care deeply about a given issue or circumstance and hope to impact it and make a difference for the better. If scholars would be mindful of that and keep it in mind as we engage with each another’s work, we may be more successful at bringing out the academic best in one another. We should of course point out the blind spots and shortcomings of each other’s work, but we must do so out of a sense of mutuality, with encouragement and respect, knowing that when we hear each other to speech we not only participate in another’s empowerment and be-coming, but also help tap into the source the of new imagining that can “break through political and social structures and imagine a new system.”

-- "Hearing Each Other to Speech in the Academy" By Xochitl Alvizo

The "hearing to speech" metaphor was referenced in Sodomy Cases and a search also obtain this UUA discussion of abortion:

What I see as the real challenge of the abortion issue is how we choose to be present with women in procreative crisis—how we choose to honor their needs and concerns. It is what feminist scholar Nelle Morton calls, "hearing each other into speech." It is what Gethsemane refers to as "the call to watch."

The lead excerpt's author also is connected to something known as "pub church," which I see has its own Wikipedia page, so it clearly arrived as a concept. The first Christian churches were often meetings at homes, so why not have religious meetings at pubs or cafes or other public places?

Anyways, I checked out what turns out to be the fourth (there is a fifth now) version of the UUA pocket guide, a sort of "very short introduction" affair. It was sort of a rambling affair, but it gives you a decent taste of the basics of the religion and its history.

Rev. Joe

I see value in a "Gaia hypothesis" of the earth as an interconnected entity and think there is a pragmatic and moral value in acting with that in mind. Nature religions seem to me to have a certain value there. It all does warrant a bit of humility on our part.

Cafe Blossom

After the one downtown was too crowded (seemed a bit upscale), the one uptown did the trick. Nice service, pretty good food (yummy nachos; "cheese burger" could use a bit more spice, but good; large piece of cake) a tad too expensive. Quantum Leap is a bit better.

Ethnic Days

Today's St. Patrick's Day (Irish), tomorrow St. JP Day (Irish/Italian) and Monday is St. Joseph's Day (Italian).  For the last, we have the 20th anniversary of My Cousin Vinny.  Tempus fugit!

Various

Interesting background to "lambda."

Looking over The Sodomy Cases again, the book is rather good, though it starts off with a bit too erudite sounding preface of sorts. Good material, but some might not like the style. I also still think that instead of spending two chapters on Griswold and Roe, that could have been one chapter, and one could have focused on pre-Bowers gay rights law. There was after all a chapter about the interim between the two sodomy cases.  Overall, the book is fairly down to earth and has some powerful insights that fits the issue into a universal context. 

As a political activist, a host here thought Game Change was a bit "didactic" and "basic," the other "cartoonist," though both thought Moore did a great job.   I went back and forth when first mentioning it, but again think the broader issue isn't to think as an activist.  And, as I noted, some activists actually LIKED it on that level.  Some truth all around.

Also, Logo is going the Bravo (used to be a PG rated IFC, just like AMC used to actually consistently show American Movie Classics, now the role of TMC) route: watering down its original purpose.  Will there have to be a "real" GLBTQ channel now?  here! can serve that function, perhaps, but it appears to be a pay channel (I get a lot of channels, but not that) of limited reach. Still, with so much niche programming, an opening is available for those who do not want a somewhat more gay Bravo channel.

Real Women Deal With This Too

Doonesbury Enters the Doctor's Office

Decisional autonomy must limit the State's power to inject into a woman's most personal deliberations its own views of what is best. The State may promote its preferences by funding childbirth, by creating and maintaining alternatives to abortion, and by espousing the virtues of family; but it must respect the individual's freedom to make such judgments.

-- Justice Stevens

Doonesbury this week has a series with bite about a state that does not trust a woman and her doctor regarding such questions, selectively at that.  I talked about ultrasound laws here and here and it's useful to remember that a majority of the laws in place do not force women to have an ultrasound. They truly further autonomy in various ways, such as requiring ultrasounds to be an option (putting aside if this cost is medically necessary in certain cases) or to allow the woman to see information if one is done.   Even Texas makes certain exceptions:

A woman would still be subject to the sonogram but would not be required to hear an explanation of the sonogram images if she certifies in writing that her fetus has an irreversible medical condition as identified by a reliable diagnostic procedure and documented in her medical file.” Based on this reply, it seems that the torturous description I'd borne was just a clerical mistake.

Minors and rape victims also are made exceptions.  It is useful to know just what might be at stake here with a "transvaginal" ultrasound as compared to what many think of in this situation:

Note that, contra the rhetoric of the governor of Virginia, this is not just about the "right to know," but the insistence that you get it and listen even if you don't want to do so. In fact, there is some effort to keep you from knowing everything, including the obligation of doctors to provide certain information that might lead a few to abort troubled pregnancies. Again, where are the "they are commandeering us into buying insurance" (they are not) crowd here?  Anyway, doing a search for the transvaginal probe led to this more explicit image:

I'm sorry for something that looks pornographic, but that is a sample image provided for training purposes. [See also a link here; really, the visual is like a modern day clothes hanger.]  Justice Kennedy noted in the D&X abortion case that: "Any number of patients facing imminent surgical procedures would prefer not to hear all details, lest the usual anxiety preceding invasive medical procedures become the more intense." They also rather not have certain procedures when they are not medically necessary. This includes, selective religious freedom alert, not having the state force its morals into the privacy of your doctor's office and require medical procedures to so further.

The right of privacy has no more conspicuous place than in the physician-patient relationship, unless it be in the priest-penitent relationship.

Yes, Justice Douglas, but the state is trying to save the woman's soul here, putting aside there is little real evidence that this will do anything.

The "sodomy cases" were so important because they hit to the core of privacy and equality as well as personal moral choices. They were not merely about certain sex acts, but basic rights. The attack on women's reproductive freedom, down to contraceptive choice, is important ultimately for the same reasons though they also have immediate health effects.

Meanwhile, the USSC will soon spend six hours on that great threat to liberty, providing more equitable health care.

Thomas Thrives in A Friendly Setting Again

The importance of having Republicans on Maddow (and vice versa)  is to see the other side aren't aliens. I wish he would speak at oral arguments.  He has a p.o.v. and isolating himself is unhelpful.

Good to hear he isn't big on hunting (suggests it would be interesting if they arm the animals).  The Flagrant Conduct book also comes to mind.  Justice Breyer at one point in the argument asked the state to give a "straight answer" to a question and this received a laugh.  The author, who was there, noted that Breyer didn't know why they were laughing; Justice Thomas had to explain it to him.  Breyer said "oh."

I did not read Thomas' autobiography and have no real incentive to do so.  My impression is that Thomas is a complex individual with a troubled biography in various ways.  His life story has a lot of impressive stuff in it though I think he misses some things and is wrong about some too.  Very wrong in some cases. And, I rather someone else was nominated, even if a conservative had to be chosen.  Nonetheless, I reject those who just want to caricature him as this horrible person or a brainless sort who just follows Scalia.  Patently unfair.

Life is too complicated for that sort of thing.  I can strongly disagree with people without missing their complexities and good points.  It is partially why I am upset he isolates himself as much as he does.  The isolation is not surprising really and whatever it takes to make his life a success.  There is value after all about just being a justice. "Isolation" can be exaggerated, since he does do a lot of these events.  And, he comes off as a friendly sort of person, if a bit shy and reserved.  Someone who might be wrong about some things, but not an "other" you can simply dismiss.

I strongly oppose certain things and people but that sort of thing is a bridge too far for me.  Fairness applies to all.

[I read about The Wise Kids after writing this and it seems like just the sort of film we need about  religious faith that after all guides the lives of large chunks of people in many areas.  The same applies to Higher Ground, which for some reason is taking a long time to get to my library.  Meanwhile, I'm watching various other DVDs that come in.  In other words, films that show some that those religious sorts aren't all stereotypes, but complex people that make life as interesting and aggravating as it tends to be.] 

Rachel Maddow Has Republicans On

She actually is getting a few, and not only Meghan McCain and that gal who doesn't like Palin, to come on. Well, good to see they aren't all weenies. Really, why not?  Show the troops you are able to face up to the enemy. Don't be a bunch of incestuous cowards. See also.

More on "Flagrant Conduct"

For those who want some further reading -- other than the cases themselves -- to Flagrant Conduct, there are several books that talk about legal matters involving what might completely be called the GLBTQ community.  The Landmark Cases series has a book on The Sodomy Cases, which some Bronx book guy reviewed over at Amazon:

This is somewhat of a rambling account of the "Sodomy Cases," namely Bowers v. Hardwick and Lawrence v. Texas. An ironic name given the latter case reminds us that these cases are not about a particular sex act alone, but the right of privacy, equality and liberty for homosexuals and others that goes beyond "sodomy" itself. Or, as the author notes here, freedom over one's intimate life.  [more at link]

The series book on Griswold v. Connecticut is better and along with the more tome like work Liberty and Sexuality provides an overall look at privacy cases as a whole. Courting Justice: Gay Men And Lesbians v. The Supreme Court (as an earlier book shows, the authors are a couple) is a laywoman's comprehensive look at the issue from the WWII (when there was perhaps a gay justice) to right before Lawrence, the law of which gets a mention in another case. And, of course there are lots of books on various GLBTQ issues and history, down to Out Behind the Desk: Workplace Issues for LGBTQ Librarians.

Lawrence v. Texas gained strength from history and underlined that when defining the contours of the Due Process Clause that history is not fixed to the time of the framing of the Fifth or Fourteenth Amendment.  In fact, it set forth the last fifty years as the most determinative.  This "common law" approach, which recognizes developments in society and society's laws as an important factor in fleshing out "liberty" (and striking down certain laws or official actions violating the generally accepted understanding or an evenhanded application of it via federal judicial review) is not to the liking of everyone. This is notwithstanding (see, e.g., Seriatim, discussing the justices in the first decade of the Supreme Court and here) that many probably thought this was the way to go from the beginning.  Some would leave things more to the people:

The right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being—a concept at the root of any decent system of ordered liberty. The protection of private personality, like the protection of life itself, is left primarily to the individual States under the Ninth and Tenth Amendments. But this does not mean that the right is entitled to any less recognition by this Court as a basic of our constitutional system.

Justice Scalia* also takes this approach as did CJ Rehnquist to large effect though both were less accepting of democratic and local decision-making when they felt the Constitution clearly compels the opposite, including when its very words does not expressly seem to do so to others. Suffice to say that I and others think it also limits legislatures when privacy and equal protection rights of this sort are at stake.  Nonetheless, particularly given that the courts often follows its lead (the book noted the strategy of reassuring the Supreme Court that it was merely following what the public has broadly accepted, not some broad open-ended thing like same sex marriage), the public and its legislators and state courts matter a lot.  When Republicans and state legislatures go too far respecting reproductive health and there is a backlash, it reaffirms:

Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific.  They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

Note, "necessary and proper" can apply to rights and powers as shown by the changing views of economic regulations in the 1900s. Also, societal practices -- such as in sexual matters -- can be a means to show the contours of these "truths" even if laws on the books, particularly if applied strictly and harshly, might be cited in contrast.  Early practice brought forth few laws and much determined by "common law," but practice continues to have some force even today.  The proper line there was always debated, as it continues to be, but few are strictly on one side or the other.  Ironically, even many (like the Tea Party) that appeal to originalism shows the truth of this dynamic.  There is some dissonance there in that original understanding and history is cited when the it doesn't quite take them where they want to go.  History is understood through the gloss of their own experiences and understandings. 

Reality can be denied but it is still there.

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* One thing that some appreciate about Scalia is that he actually responds to the opinions of other justices, be it via majority opinion, concurrence or dissent.  This is appreciated but it might be more so if he tried a bit more to actually walk in the shoes of the justices a bit more instead of viewing things -- like the most biased Internet comment on some blog -- firmly through his eyes, and often sneering while doing so.

His dissent in Lawrence is of this character and Thomas' brief dissent that he thinks the law is "silly" but that it still isn't unconstitutional (ala Justice Stewart in Griswold) loses some of its charm in that Thomas joins such a screed. The word is apt and it is a shame that such non-judicial temperament is found in a justice deemed the model for many people. 

The state was never really that gung ho about defending the law and the unprepared D.A. who did the oral argument (most of the work below was done by someone else) cheapened the affair (yeah, like the previous sodomy case, it turns out he was having an affair too)  by not providing even a half-way credible performance. If nothing else, Paul Clement should do a better job of it with the PPACA and DOMA. 

Obama (nerd style) Calls Out the Rs on Energy

I think I'll stick with the current model, Romney et. al.  We can instead spend time in "missing the forest for the tree" land.

Kory Stamper -- Tina Fey of the Lexographer Set

This summary is not available. Please click here to view the post.

People's Support of A Right to Health Care

This article explains the PPACA as an expression of the people that "the right to health care was a fundamental human right that warranted protection by the federal government." See my take on that point. The recent book also concerns a case that confirmed (like Heller for guns) the majority view of modern liberty protections.

VC Joins the Dark Side

I didn't care for it when Slate joined the Facebook generation in a unilateral way and don't like it with Volokh Conspiracy.  The format is tiresome on various levels and others agree.  Heck with it. 

Voter Id

Rick Hasen, who blogs about election law and has a forthcoming book on the "voting wars" and  a sneak peek on the "The Fraudulent Fraud Squad" [I originally noted the $2 sample chapter download; there is a smaller sample provided for free; I still find the $2 cost silly for a work of this sort.] summarizes:

1. Republican legislature passes voter identification law making spurious claims about how such a law is necessary to prevent voter fraud.
2. Democrats and good government groups object, arguing the measure is intended to suppress Democratic votes (true), and file lawsuits.
3. Democrats exaggerate the likely effects of the voter identification requirement on voter turnout.
4.  Courts split on the legal question, often along the party lines of the judges.

This has received national attention, including from Eric Holder, whose Justice Department rejected more than one new law in states covered by the Voting Rights Act. Anyway, Hasen's basic conclusion is that such laws might not do much (it's hard to tell) overall, but given the selective partisan nature of the support and that a fundamental right is at stake, they still are a bad idea overall.  The burden is on the other side.

This "both sides aren't equally wrong" principle is shown over and over again in modern day political battles, leading me to quite tired by the "each side does it" brigade that butt in from time to time, suggesting you know they are just stating some neutral viewpoint and all, understanding how people like myself (you know, Obama loving partisans) can be passionate by one side in particular.  I lay it on a bit thick for emphasis.

#3 is notable too. Those who support rights tend to "exaggerate" somewhat.  People for a certain cause are not known to be totally neutral about it.  They often speak in broad terms, sometimes citing parades of horribles about let's say free speech.  You know, ban obscenity and next the orgasm scene from When Harry Met Sally would be banned (after all, the film Carnal Knowledge was an early target, leading to Usurper Court review to say "well, we didn't mean that"). This has some force, if a certain degree of perspective is held.  The other side well earned their distrust.

I recognize Prof. Hasen's overall argument and that he is on "our" side here, but it still warrants a reminder that the reference needs a bit of context.  For instance, he earlier referenced a NPR interview with someone who supports voter ids, particularly because people show it to cash checks and so forth.  [If he means picture ids, I don't.  I use a bank card.  If I gave it to someone with my password, they could cash checks without showing id.]  Since the issue is that (1) voting is more important than cashing checks and (2) the type of id allowed (3) etc., this was not very helpful to me. In fact, it was annoying, since it avoided the hard questions. The interviewer, per usual, didn't follow-up.  Grr.

I look forward to the book, but will not spend $2 for a sample.  Meanwhile, Rachel Maddow (see her blog etc.)  provides a video introduction to her upcoming book and a sample is provided gratis.  I reserved the book at my library along with one by Ms. Ledbetter, interviewed on her show. 

Body of Proof

One of the better episodes last night tossed in yet another character drama, but this one actually reflects the diabetes of the teenage actress involved. On Twitter, she notes has had it for 2.5 years. The NCIS repeat was decent (Gibbs bio stuff) but too many people killed.

Flagrant Conduct

And Also:  I referenced and posted some video of the empty controversy here but as I noted in comments there, the idea that support of race based affirmative action is "racist" is standard trope for the FOX crowd and being shocked about it is a bit naive.

The ratifiers of the ninth amendment didn't have to worry about the right to abortion since abortion wasn't illegal before quickening in 1789. I do think those who pushed for the ninth and tenth amendment felt such rights as decisions of family size and choice, control of their bodies, and the like was included.  A free society that would say not allow you to have any more children after a certain point isn't that free.  The rights also change through time -- homosexuality was until 1973 or so was seen as a mental disorder for instance.  I for one think many of the ratifiers would call anti-sodomy laws garbage since they were a randy bunch and some homosexual.

That is a bit of ancient history recently found on the web (via a bulletin board before I even knew about any World Wide Web as such) -- think early Clinton years -- underlining how long I've been talking about such things. The issue of homosexual rights, rights that are so interesting and important to me because they are but subsets of more basic things, continue to this day.  We are all just passing thru a much longer battle.

A seminal case here is Lawrence v. Texas, the personal story (overall history and legal matters are handled, but those looking for detail there should look elsewhere) covered by an excellent new book entitled Flagrant Conduct. As noted by a review by Dahlia Lithwick and here, one surprising thing about the case is that the "couple" involved not only were not really one, but were probably not even having sex when "caught" by the police.  As noted by Prof. Dorf., this wouldn't be the first time the courts decided the law on "facts" that might not match what actually happened. The Supreme Court clearly is concerned and influenced by facts, but ultimately they rule on law.

[Update: One bit of trivia explains why the state D.A. delayed beginning his argument (see the Oyez.com audio) -- he found a watch left behind by someone and showed it to the marshal.  No one claimed the watch at that time.]

The charm of the case for the movement was that it provided a window into challenging a law that clearly had nefarious effects but was rarely directly at issue in our criminal actions, if ever in purely private avenues. Bowers v. Hardwick also involved an accidental discovery, but the two there to my knowledge actually was having sex.  The apparent truth was apparently driven by the discriminatory actions of the lead officer in the case and furthered by the motivations behind a law that only targeted one group of people. The law -- like the use statute in Griswold v. Connecticut -- was in no way toothless. It's force was nefarious for its "closeted" nature.  This was recognized in the opinion itself.

The book notes how important bars were and I guess continue to be in some sense to the movement for equality here.  They provided a public place for gays and lesbians to meet and associate.  This is not atypical.  Taverns were a major meeting place for those upset at the British in the days before the Revolutionary War as well.  As with coffeehouses, they were a primary social meeting place for the masses and often for the elites too.  The importance for protest and personal association is clear.

[Update: Rachel Maddow mentioned last night that America Samoa Republican delegates yesterday were being chosen at a bar. Thanks to the the Pacific delegates, Romney had a thin win delegate-wise last night.

There is a chance that Romney will receive a few too little delegates by the end of the process. This provides the also rans, even perhaps Paul, significant power.  Other than the fact that these guys have little else on their plate at the moment and it's a long-shot any of them will win in November, this makes it logical for them to stay in the race.]

This raises questions about Dallas v. Stanglin (1989), which rejects a broad right to social association, there at dance clubs. Somewhat strangely,* Brennan and Marshall went along with the dismissal even though Stevens and Blackmun noted:

the opportunity to make friends and enjoy the company of other people — in a dance hall or elsewhere — is an aspect of liberty protected by the Fourteenth Amendment

though not as a First Amendment right of association as such. They thought the law, which restricted certain dance halls to those between 14-18, reasonable and in fact arguably helpful toward that end.  So, they would have upheld the law on narrower grounds. The main opinion rejected expanding an earlier ruling (by Brennan) that protected intimate association among small groups or larger "expressive" associations to cover such "recreational dancing." Rehnquist noted such things as "meeting one's friends at a shopping mall" does not involve First Amendment protections.

But, meeting friends is repeatedly a means to associate with others to talk and relate.  And, going to the bar or dancing is also a means to do that sort of thing.  It is a prime means to associate with others, often of a similar racial, sexual orientation or other class of people.  It is not "high" importance to express opinions and the like, sure, but it very often has that value. At the very least, contra the opinion, it has an "intimate association" context.  What exactly is "socializing" if not partially that?

I won't cite it, but this reminds me of another case where the Chief Justice dismissed the idea that internet message boards and the like can be a sort of public forum.  It's a fairly limited view of things.  The case could have decided narrowly enough without going that far.  It is sensible as a time, place and manner matter to judge that teenagers should have their own place to hang out.  There are teenage sections of the library, so why not teenage dance halls and skating risks?  The reasonableness given the age of the patrons and the possible problems of adults (including as to drugs or perhaps sexually) interacting there -- especially since there were places for mixed company allowed -- was enough to uphold the statute. 

Some have noted that Lawrence v. Texas protects fleeting sexual acts as much as more long lasting relationships, just as earlier cases protected contraceptive uses for such things. It is also important to protect avenues where such relationships can originate, including social meeting places. These matters are part of the wider liberty involved and should not be diminished as unimportant or trivial in nature even if they are not as intimate and privileged as more private spaces.

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* [re-edited] The basic logic can be that the main opinion, though arguably somewhat weakly, re-affirmed the right to intimate and expressive association and that it is important to separate the most important and threatened aspects of these rights. Thus, family privacy would mean a lot more than meeting in a public place to dance with a bunch of people (as compared to a law that limits same sex dancing, e.g.).

I understand the idea there and recall a lower court opinion that rejected trying to force causal chit-chat and hanging out with friends into rights usually left for more important things.  Still, I think this can be taken too far and that it is important to recognize (as did the concurrence) that there is a liberty interest of some importance here as well. The concurring opinion recognized this without putting them all on the same level. 

Romeo and Juliet

The first film watched to match the plays shown on Slings and Arrows is the Franco Zeffirelli version of this seminal tragic love story. Well done adaption with the added charm of teen actors as leads.

Mets' Tim Byrdak headed for DL

Others hurting.  '12 motto: low expectations.

Army Wives

Decent episode with various subplots. Touching goodbye of a character that started off seeming a bit of a b. Nice goings on with the adopted son. Some signs of trouble brewing.

Quick Answer

For me, neither "atheism" or "theism" without detail amount to much, the details very well potentially "religious."

DST

Josh Lewin (Sunday Game)

Again, he sounds informed and all, but his diction and such is so bland. I guess you have to look at the positive, the path to surviving this Mets season as a whole. Santana hopeful; new relievers ... work in progress. Player health, disconcerting. Murphy, still playing.

Power to Kill

And Also: Very good panel discussion on Israel on Chris Hayes' show today, him repeatedly noting how Palestinians (represented by the woman from Miral) seem not to be part of the conversation except when they use violence. It is striking to me how the "two state solution" underlines how different things are from our country. Imagine if that was the path taken in 1863. 

President Obama, who came to office promising transparency and adherence to the rule of law, has become the first president to claim the legal authority to order an American citizen killed without judicial involvement, real oversight or public accountability.

-- "The Power to Kill" (NYT Editors)

This is how an op-ed that agrees with a lot of what Holder said in his recent speech began.  Such an introduction is the sort of thing that takes a lot of air out of the room.  What does "real oversight" or "public accountability" mean?  Does Congress have no oversight over this sort of thing?  Did Obama oppose it?  What does "public accountability" mean?  Isn't this very op-ed but part of that?  And, did Lincoln think his military couldn't kill people during the Civil War without judicial involvement first?

To me, this is a prime case of needing to understand the basic issues at hand.  The matter arises as to the PPACA. Repeatedly, even when places like SCOTUSBlog discuss the matter, patently untrue things are said like "everyone" has to "purchase" insurance or they will be "fined."  When the conversation begins on the wrong foot, something like assuming that each time a person uses "birth control pills" they are having sex, how can we manage to have a fruitful conversation?  The whole thing is corrupted.

The op-ed ends with an opinion that I share:

The administration should seek a court’s approval before killing an American citizen, except in the sort of “hot pursuit” that justifies the police shooting of an ordinary suspect. There should be consequences in the event of errors — which are, tragically, made, and are the great risk. And the administration should publish the Office of Legal Counsel memo. We cannot image why Mr. Obama would want to follow the horrible example set by Mr. Bush in withholding such vital information from the public.

This "court" according to the op-ed can be like the FISA Court, not an ordinary federal judicial action.  When Congress first gave the President the power to call up the militia to use force against some domestic disorder, there was a provision that required a federal judge confirm that the situation was such that normal police action was not significant.* 

President Washington did not simply call forth the militia (in fact, leading it himself) during the Whiskey Rebellion.  He first obtained the okay from a federal judge.  If so, the same should be possible before killing a U.S. citizen except in the "hot pursuit" (see, e.g., TN v. Garner) scenario, which would include the battlefield (what that entails can be a sub-question) or the heat of the moment during a raid that aims to get a Bin Laden.  And, the memo should be made public.  While Dennis Kucinich rails against Obama and the woman who beat him, e.g., he can lead the movement in Congress (with certain Tea Party sorts) to subpoena the document.

I myself, maybe it's my problem, sometimes find it hard to get pass the dust to get to the core issues here.  But, that is the bottom line.  There are basic lines along with a lot of troubling power, some of which is legitimate in fact or as understood by current law.  Working within the no extremes approach that ala Gibbs on NCIS would be one of my rules, we should understand the whole picture there. And, I appreciate how the op-ed ends a lot more than how it begins. The beginning seems like some sort of necessary boilerplate before the real core of the situation is covered.

Let's stick with the latter.

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*  The Militia Act of 1792, in part:

And be it further enacted, That whenever the laws of the United States shall be opposed or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act, the same being notified to the President of the United States, by an associate justice or the district judge, it shall be lawful for the President of the United States to call forth the militia of such state to suppress such combinations, and to cause the laws to be duly executed. 

This is statutory, so is not a matter of the courts on their own ruling on the question, perhaps avoiding the "political question" problem.  Imagine if such a rule was in place today!

Rev. Joe

Fran Drescher's (best known from The Nanny and her tell tale voice) latest show is Happily Divorced and reflects her own life in that she too found out that her husband was gay. As sort of promotion connected to the show, she decided to have a contest in which she would officiate three same sex weddings.

As Conan O'Brien did, she went the route of the ULC Church or rather an offshoot known as the ULC Monastery.  Both are accepted by New York City for purposes of being marriage officiants though the matter is a bit more complicated in the courts. As I have noted in the past, readers of NYT wedding announcements will notice from time to time that same sex couples are married by ULC ministers, a personal means to sanctify the proceedings to reflect one's own religious and spiritual beliefs.  

The NYT article notes:

“Even though I am Jewish, I take no offense at being a minister or called Rev. Drescher,” she said. “Love is love. I’m not a divisionist; I am a uniter.” [The title is optional.]

What kind of advice does she offer? “Don’t expect your partner to be everything you need in life,” she said. “Have other friendships to fill the voids. But if you have found someone who shares your values, be happy and be well.”

Drescher, who is also a cancer survivor (and earlier a victim of sexual violence) is naturally someone who various people might relate to.  Given her background, it would make sense that same sex couples might like her to officiate the proceedings or they might just like to meet a celebrity.  I am glad that my state has recognized same sex unions and my city the wishes of those who wish to have ULC ministers officiate, truly recognizing "the right to worship as [they] pleased." Here the sacrament of marriage:

Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.

Good luck to all she marries.  

Josh Lewin

I listened to part of today's Mets game on the radio, the game not on t.v.  Howie Rose was not there today, so I don't about this but this from his old haunts seemed more like it today.  Lewin sounded stiff and generic like the guy he replaced. Technically okay but boring.

The True Palin

On Lawrence O'Donnell (a political insider himself and one of the people behind West Wing), he as well as Nicolle Wallace (strongly anti-Palin McCain insider who later wrote two books on a Republican woman President that Rachel Maddow liked a lot) noted their admiration for the upcoming HBO film Game Change. I probably will take a look at it, but Andrew Sullivan previewed it by suggesting it provides a much too positive look at Palin herself (who is going around, shocker, denouncing the film). 

Anyone with even the faintest grasp of Palin's reality - including former close aides like Frank Bailey - understands that she is emotionally unstable, paranoid, vindictive, self-destructive, religiously fanatical and clinically deluded. Her "wonderful mothering" led her to take a tiny child with Down Syndrome and parade him in front of the cameras as a political prop, and later hauling him out half-naked at night to show off to fans on her book tour. None of her children has made it to college; one was a teenage vandal, another a teen mom. A man who lived in her house, says her children had to raise themselves. She quit office in mid-term because her vanity and rapacity were more important to her than public service. The victims of her vicious career lie strewn all over Alaska. Anyone faintly aware of reality also knows that John McCain was as cynical, brutal and expedient a figure as anyone to run for president - and that Palin's selection was an act of such grotesque vanity and cynicism that it instantly disqualified him from the presidency.

Don't sugar coat it, Andrew.  I think the analysis is overall fair. [Second thought there is that he is a bit too one-sided there and a bit over the top. "Victims of vicious career strewn all over Alaska" is a bit much.] It is striking how visceral my distaste of Republican candidates have been since 2000.  I didn't support but in no way find it distasteful that people might vote for Bush41 or Bob Dole.  On the other hand, finding Bush43 or McCain/Palin as credible candidates was on some basic level (to repeat myself) risible.  There are those who now were just shocked at how Bush turned out after they saw him as a sane choice in 2000.  Molly Ivins and others told us then that was wrong.  By 2004, as seen even by Meghan McCain, we knew it.  More so in '08 and now in '12.  It is not polite to say so, but we should sometimes be blunt about it. 

Also, I don't agree exactly with everything Andrew Sullivan says here in response to the Derrick Bell video controversy (see my embedded video below), but it is a reasonable analysis of the sort I appreciate.

[Update: The movie was decent -- I think the leads worked well overall  and we got some of the behind the scenes stuff, but it wasn't special or anything.  I think it got weaker as it went on with the second half pretty dull at times. The negatives of Palin as unprepared, above her pay grade, overwhelmed and having some delusions of grandeur was touched upon. I don't really think Sullivan is totally fair in thinking her character was too soft here and besides that would not be dramatically useful.

I think it could be sharper over all.  Mixed vote.  This is from a certain type of viewer of the political scene, of course, others might get more from this sort of thing.  Also, moments like people in the film explaining their connection to Palin or the ugliness of the campaign in certain respects.  So many like me see that talked about so much already but the average person who is not so bloggy etc.  might very well get more out of that.]

Real Fake Chicken?

NYT has its twenty articles only policy now though Google Reader and such services allows you to access them for free thus far (I am not always able to find every article this way, but it mostly does the trick).  Also, sometimes when I access links off-site, they don't count.  Nonetheless, you can access the video features found on the front page of the website even after your twenty articles are up.  Note that I also embedded a couple videos on my blog since blogger makes that pretty easy to do.

One such video now available on the NYT website is "Real Fake Chicken: Mark Bittman Tests a Plant-Based ‘Chicken’," connected to an article he also wrote.  The article notes:

IT is pretty well established that animals are capable of suffering; we’ve come a long way since Descartes famously compared them to nonfeeling machines put on earth to serve man. (Rousseau later countered this, saying that animals shared “some measure” of human nature and should partake of “natural right.”) No matter where you stand on this spectrum, you probably agree that it’s a noble goal to reduce the level of the suffering of animals raised for meat in industrial conditions.

I'm not sure how many people really think much about this "noble goal," but if it didn't really cost them anything, they probably would being willing to accept that it would be nice if something can be done.  Not that many rather think about what happens to cows, pigs and so forth before they become beef, pork and so forth.

There are four ways to move toward fixing this. One, we can improve the animals’ living conditions; two (this is distasteful but would shock no one), we might see producers reduce or even eliminate animals’ consciousness, say, by removing the cerebral cortex, in effect converting them to a kind of vegetable [book cited]; three, we can consume fewer industrially raised animals, concentrating on those raised more humanely.  Or four, we can reduce consumption, period.

There has been some efforts made to improve living conditions ever since animal welfare became a national issue in the United Kingdom in the early 19th Century.  See, e.g, For the Love of Animals.  Temple Grandin has also been a leader in improving the plight of animals raised for food.  I had a debate regarding her efforts here, a law blog that is vegan friendly though they often don't make an issue of it (likewise, I'm a vegetarian, but I don't tend to broadcast it).  The second "way" is striking but though factory farming already robs many animals of half their existence, we aren't there.


Reducing consumption as a whole is the best policy. We overconsume generally in this country and it is in no way limited to animal products.  Something of an aside: I'm tired of plastic bags.  Let's say I go to the local fruit store to buy bagels and a tomato.  The bagels go into one of those little plastic bags which are hard to open.  The tomato can fit inside.  If I did not say "no," I would be given another plastic bag.  I go to the bakery.  I get a linzer tart (a jelly cookie) and a bagel.  A paper bag for each (the powder can't corrupt the bread!) and again, a plastic bag is offered.  Go to the store to get mouthwash.  Another plastic bag.  And, let's not forget the supermarket.  The relatively small amount of groceries that fits in one not too large carry on bag results in six to eight plastic bags easily.

I received a free carry-on via some promotion and have a small messenger type bag I tend to carry around as well as another one for other purposes.  So, I generally say "no" to all these plastic bags.  It is tedious. It is a lot easier to take the darn things.  I then collected them up and took them back to the local supermarket which has a bin for them.  A few of the little bags are saved to collect recyclables.  But, many wouldn't do that.  I do notice they sell those reusable carry-on bags and some plastic bags (like for a local health food store) are strong enough that many probably re-use them too.  Still, this underlines how even easy non-consumption is not so.

That is, it takes a bit of effort, but still isn't really that hard if some thought is involved.  This is the case with meat substitutes. For one thing, there are many options other than meat.  Many cultures have for economic or other reasons little occasion to have animal products, at least certain major types of such products.  The rice and beans of Mexico, for instance, is a staple food. Other times the inclusion is rather gratuitous. It is amazing how many products, including something like "vegetable soup," can have some sort of animal product in it, including chicken.  Cereal or bread often has milk added to it in the back end of the ingredients. 

When you take Brown’s product, cut it up and combine it with, say, chopped tomato and lettuce and mayonnaise with some seasoning in it, and wrap it in a burrito, you won’t know the difference between that and chicken.

No need to cite a specific meat substitute here though the video focuses on one specific type of chicken alternative.  In fact, many people who have no interest in the matter might be eating various processed foods extended with some sort of textured vegetable protein (TVP) or such.  Various dishes -- think steak and onions -- might not be easily replaced in this fashion, but so many can be.  I buy TVP cubes myself and they are very tasty (after being marinated) on bagels, in soups and mixed with pasta or rice.  High quality is not what is sought for when we get chicken strips in our salads. There are some good options there, don't get me wrong, but that often isn't even a main factor.  It is so easy to replace a large quality of our animal products without losing much at all.

Of course, they have to be readily available in the first place.  Sure, people can make their own dishes. I have various cookbooks myself.  I don't actually use them mind you, since (1) boiling water for pasta the right way is an accomplishment for me (2) everything seems to require about ten ingredients, most of which you cannot just purchase one serving of.  Consider even making waffles via a waffle maker I received as a gift.  Messy business.  So much easier to just heat a couple up.  So, many aren't going to make faux chicken wraps.  They need to be readily available.

The increase availability of vegetarian and vegan alternatives is appreciated.  Take soy milk.  I personally like plant based milks better than regular milk overall.  Some do not.  But, many do appreciate the taste and others appreciate them because they might be lactose intolerant or perhaps for a religious reason (something about mixing foods).  And, unlike let's say ten or twenty years ago, it is fairly common to see soy milk, and your average supermarket is likely to have some.  For instance, Deals, which is a local discount store, had both soy and almond milk.  Price-wise it also is reasonable though sometimes you have get it the right place.

Any path to improved living requires some degree of effort but also some availability and easy access.  The theme can be found in any number of areas including let's say treating women correctly or easy access for the handicapped.  The possibilities are there and it is hopeful to know it.

One Manning Is Enough

I'm a NY football fan (well, NY/NJ) so like the Jets and Giants.  Mark Sanchez is the best option; he needs a better team around him.  He's not Eli yet there.  Peyton Manning is not the answer.  It's a risk and we already went that route with Brett Favre. No thanks. [Jets: Ditto]

Self-Delusion Alert

I find the constitutional arguments against the PPACA risible. I am a bit superstitious in saying that but let's be honest here.  This too is risible.  The "mandate" was suggested in the 1990s.  And, no other Commerce Clause challenge? Really?  Meanwhile, on the tax issue.

[Update: Someone later provided details on the 1990s point but also loki13 in effect patted him on the head for being such an effective advocate. He might be but not really in a positive sense since his reasoning is specious. This isn't just a game.]