Windsor Is A Pretty Good Opinion

Have seen some references to the case (e.g., Volokh Conspiracy has an ongoing series about various moves by the feds to set policy*), and as is the case for Roe et. al., there are the usual potshots at how flimsy it is. I retain, yes seriously, my belief that it was a pretty good ruling.  As usual, this is partially a matter of the likelihood of imperfection when dealing with group efforts and justices who are not [fill-in blank] level wordsmiths or have the legal chops of [fill-in blank] and realistic compromises. Still.

The opinion begins with the facts and a reasonable discussion on why it is appropriate for the Court to rule on the case, even though the President supported Windsor on the law. For instance, they still were not paying the money, while she wanted it. The opinion also explains past practice where amici were accepted to argue one side, as one case cited noted largely "[b]ecause of the importance of the questions raised by the Court of Appeals’ decision." The Chadha ruling also is a good case here, in fact, Judge Kennedy wrote on the use of legislative amici there below. So, it is also sound not to decide if BLAG standing was necessary -- there was adversity between Windsor and the U.S. and BLAG provided amici value to forcibly make the opposite argument, providing adversity there.

Six judges in fact accepted the Court was right to take the case, with Alito joining that, though going further, and firmly giving BLAG (one House of Congress, mind you) the right to defend a law that isn't being defended (it was after all being enforced). Alito argued that the U.S. was not the right party, since they in effect wanted Windsor to win. But, be that as it may, they were still enforcing the law. He makes a decent argument, which only goes so far. OTOH, we have the idea of one branch of Congress stepping in to protect Congress' handiwork.  That seems off to me.

The majority then talks about the general practice of the states having power over domestic relations, including marriage, though noting the feds still have power over such things in various ways. The opinion notes:

In order to assess the validity of that intervention it is necessary to discuss the extent of the state power and authority over marriage as a matter of history and tradition.

The opinion suggests there is a federalism angle here, but does not decide the case on that ground. It explicitly says this. It isn't hard. The case rests on the equal protection component of the Due Process Clause of the Fifth Amendment.  Since classification is made here, it is appropriate to look at the nature of the use of federal power here, particularly its novelty:

The Federal Government uses this state-defined class for the opposite purpose—to impose restrictions and dis- abilities. That result requires this Court now to address whether the resulting injury and indignity is a deprivation of an essential part of the liberty protected by the Fifth Amendment. What the State of New York treats as alike the federal law deems unlike by a law designed to injure the same class the State seeks to protect.

The opinion then discusses why this is a violation of equal protection, leading with the red flag that the "unusual deviation from the usual tradition of recognizing and accepting state definitions" is "strong evidence of a law having the purpose and effect of disapproval of that class." This, to be blunt, is f-ing obvious. It is tiresome really to have people deny it.  Section 2 of DOMA, redundant it might be, deals with state recognition. Section 3 singles out one type of marriage from which to deprive both benefits and obligations, among all other new developments (the opinion does a good job here of noting how marriage develops via the people of each state's changing recognition of its nature**).  As the opinion notes, the text and history of the law makes this even more clear.  As does the House Report.

The result, again as the opinion notes, harms the couples in question. Justice Alito faces the merits and notes the feds can decide to favor one type of marriage over another.  Why?  As to same-sex marriage not being "deeply rooted," nor are other types of marriages. I have seen this selective vision, including from law professors, but then illicit discrimination often is a matter of "habit rather than analysis" of wrongful practice. This is a major route to "stereotyped reaction." It is not "deeply rooted" to have each different sex partner to be an equal partner.  This is "beyond dispute," to quote Alito, given coverture rules, etc. The selective application of DOMA on same-sex couples shows an animus.  The reference got some complaints, especially if it is taken out of context without looking at the opinion as a whole, but this is right:

The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group. Department of Agriculture v. Moreno, 413 U. S. 528–535 (1973).

The idea for some here is that the Court is saying that the Congress and the President who signed DOMA were just a bunch of bigots. Not really. The case cited involved a law targeting hippies. It was deemed unconstitutional, an illicit targeting of the group in question. They were not supposed to just be a bunch of bigots.  A "bigot" is a particularly offensive animal. An illicit law can be a product of various things, harm at times justified by the parties on various grounds.  It is simplistic to not understand the full context of the reference, though yeah, DOMA was pretty bigoted. Sorry.  As the opinion notes in its conclusion, DOMA:

is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.

The reference to "dignity" and other such empathic sounding language annoys some too. But, it is appropriate to talk about how laws that harm should be found illegitimate.  "Dignity" is a common term used by various justices in various ways. It is not novel to this case and I have my doubts that some totally bland opinion would satisfy the critics. Yes, Kennedy has a certain style, like each justice does, but it is evenhanded; the same sort of thing might pop up when he writes about an affirmative action law being illegitimate or why ACA is unconstitutional, to the degree he had some part in the writing of the joint dissent.

I have no desire to claim the opinion was perfect, but as a whole, it is a pretty good opinion. One final complaint is that the opinion did not do enough to answer the supporters of DOMA, particularly the reasoning put out there in its defense. Section Three of DOMA was clearly put in place because same-sex couples in particular were deemed unworthy of federal marriage benefits.

An argument is put out that it deals with the novel issues of a new type of marriage, including the questions now being dealt with by the Obama Administration. But, why is this particular form of marriage supposedly in need of such a fix?  Why is this particular form of "new marriage" warranting special treatment?  It's true the majority could have addressed this issue (Kennedy has a bad habit of not addressing dissent arguments directly), if only because the answer is so clear.

The final concern I'll address is the question of scrutiny. The 2CA and the Obama Administration supported heightened scrutiny here, at least intermediate review, which is the standard for gender. The Court did not decide that sexual orientation warranted a special level of scrutiny, following the more opaque approach of Lawrence (and in a different respect, Heller, which also didn't decide the question, though it made clear rational basis wasn't enough).  I respect the lower level of activism here as well. The opinion did not require a firm answer to the question, since the specific law was blatantly unconstitutional. 

The Court did have something to say and it somewhat favored the 1CA opinion (which also covered federalism) on the question. The opinion speaks of "careful consideration" when discrimination of an "unusual character" was involved.  It quotes Romer here, and at least when a "politically unpopular group" is involved, such policies would warrant what some call rational basis plus (however it is phrased, this was also suggested by more than one justice during orals). In effect, Justice O'Connor's Lawrence concurrence (based on equal protection and cited by the Court in CLS v. Martinez)  is starting to become clear law.

The Solicitor General was on C-SPAN yesterday as part of a panel talking about last term and the upcoming USSC term and noted how the Administration pushed for a level of scrutiny stronger than applied to types of eyeglass distributors, focusing classifications by personal characteristics (a step beyond immutable characteristics), lack of political power and so on.  He didn't get all that he wanted on that front but didn't do all that bad. The test seems to me to put state DOMAs at risk, they too novel latter day blunderbusses against unpopular groups.

Traditional bans on same-sex marriage are not as unusual and that is one reason why Windsor all by its lonesome doesn't get you there quite yet.  It helps, surely, including concern for "purpose and effect," which is one more nice thing -- sometimes a high level of intent has to be shown, even when a policy deprives someone of liberty or equal protection.  The intent very well might even be there, such as driving while black, but phony "innocent" grounds can be found to paper over the effects.

All in all, I liked the ruling, its flaws on balance are quite forgivable. 

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* The choices seem reasonable, but it really seems -- not that the split Congress is likely to handle it soon -- like something that warrants a legislative clarification. The issue is complicated, some matters are based on domicile, and some on places of celebration.

With the two so significant as compared to most marriages, this is likely to advance full equality, including by litigation.  The decision for the feds rests on current law and practice, but there surely is wiggle room.  I do wish more discussions remind people that back in the day interracial marriages raised similar difficulties.

** Letting this development continue without having the feds single out one type of marriage is a reason why the opinion is different from setting in stone SSM for each state. Such development is how our common law Constitution works, particularly when deciding larger questions is not necessary to settle specific "cases" and "controversies," which are for a reason taken one by one.  Judicial restraint here is not worthy of scorn.

Also, once the states in question recognize the marriages, federal non-recognition is particularly dubious. For instance, as cited, federal ethics rules don't apply even to state-married couples.  The underlines the Romer-like overbreadth, even if we pretend that neutral reasons justify the statute. Note the rational basis with teeth scrutiny provides less looking the other way, so "pretending" is less appropriate here.

Supreme Court Watch

The Obama Administration is asking the USSC to settle a dispute over the contraceptive mandate, focusing on RFRA claims of for profit corporations. Which is weak on several levels. Pope Francis is trying to change the focus of things, without simply not being Catholic. It is silly to use this issue to draw a line in the sand even in Catholic institutions. When applied to for profit corporations, it is inane. Still worry what the USSC will do.

Going Where Kory Stamper Fears to Tread?

Miley Cyrus was in a decent Disney show, but now she wants to continue her career by being all well slutty might be a word for it.  Played out for me. "Twerking" sounds like shaking your butt or something. Don't know it? It's her latest thing, apparently.

Girl in Progress

This is a relatively rare serious female coming of age story (with a parallel story involving her single mom) co-starring "Maria" from The Fosters.  The mom's bf also will be familiar to some. Her friend also is a familiar teen show face. The film itself was pretty good.

Miss New York Wins

See my original Colbert Report video was blocked, see here.

Sexy Wordsmith Has New Video

Constitution Day

A day to remember; this thread provides some fodder (Madison, he gets no respect!).

PS

I was reading the tV tropes in the middle of watching the last episode of S3 and ... damn, Matthew? Sybil already died. It seems too soon on simply a dramatic level. Sybil was a drawn out scene. This one had signs of gratutious too -- him speeding along happy while mom and grandparents are so pleased too? This how they ended the third series!

Sports Sunday

Not really over baseball season yet, even though I'm told that Mets games don't matter, so why do I like them winning? Don't I know that their top 10 draft pick is at risk? Rays and Rangers playing to keep the Yanks et. al. in the race. Some good football games. The NFC East did not do well (including baby Manning); the AFC did, except for the Jets.

Downton Abbey

Sybil dying was a powerful few minutes - almost the whole family (and two physicians) were around her and each had a top acting moment. Afterwards, the same with the servants, with Thomas having a touching moment. In fact, a rather good few episodes.  Not supportive of every subplot, but turning out to be a very good season as a whole. Two left.

Rev. Joe -- "Disentangling Conscience and Religion"

I saw but only skimmed a bit an article on a subject of interest to me -- "Disentangling Conscience and Religion." So, the remarks below should not be seen as that responsive to the article overall though checking it out is recommended.  Meanwhile, I am reading Bart Ehrman's Forged: Writing in the Name of God — Why the Bible's Authors Are Not Who We Think They Are, which basically extends old themes. Good light reading. Ha.

The second flag salute case that is a seminal one in our jurisprudence spoke of "the conscience of the objector." The opinion focused on what might be called "freedom of the mind." This principle reaffirmed in Stanley v. Georgia: "Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds."  That is pretty general, but conscience is often tied to religion. Justice Murphy's concurrence (combining religion and speech) in Barnette noted:

But there is before us the right of freedom to believe, freedom to worship one's Maker according to the dictates of one's conscience, a right which the Constitution specifically shelters. Reflection has convinced me that as a judge I have no loftier duty or responsibility than to uphold that spiritual freedom to its farthest reaches.

The article explains that traditionally there was seen as a special connection between conscience and religious belief -- conscience is that human ability to judge right and wrong, but is it necessarily tied to religious belief (or God)?  The Supreme Court has from time to time spoke of a "right to conscience" (e.g., "the individual's freedom to believe, to worship, and to express himself in accordance with the dictates of his own conscience") that leaves things somewhat open. Abortion, for example, is something individuals are to choose as a matter of conscience, based on their own moral code.  See, e.g., Planned Parenthood v. Casey. Overall, Justice Douglas had it right:

It is true that the First Amendment speaks of the free exercise of religion, not of the free exercise of conscience or belief. Yet conscience and belief are the main ingredients of First Amendment rights. They are the bedrock of free speech, as well as religion.

The flag salute case underlines how freedom of conscience involves various First Amendment liberties, the right to freely choose one's moral path a matter of expression, association and religious belief.  This subject might have a familiar cast to it because past entries spoke about my broad understanding of the term "religion," so the difference between "conscience" and "religion" is somewhat unimportant. Conscience is an important aspect to religious freedom, necessary for its full enjoyment,* including as part of a person's freedom to choose (if one wants to define it more narrowly) not to have a religion.

"Religion" does have some limited meaning, broad as it might be, both as a matter of belief and action. Religion often is about action -- in ancient times, religion was often largely about ritual. This might also include certain people in control of rituals, perhaps a community who themselves providing a restraining hand. The ultimate restraint might be supernatural, but some might argue that it is this community of believers that are. Questions of conscience might be separate. Still, as religion grew more monotheistic, the understanding that one God guided us all would join the two together. Conscience being an ability to know what is right, who else but God would in some fashion be the source of it all? And, if there was some perversion of things, there are evil forces in the world.  A sort of gnostic view of things in fact has more of a logic to it, in a fashion.

But, if religion is a matter of ritual, perhaps beliefs in the afterlife when good and evil are judged (seen as an important check on society as might the institutions of the church themselves -- the freestanding believer deciding things would be less useful there, the dissenter traditionally seen as somewhat of a threat to societal well being) and how best to serve your God, conscience can be separate for those without all of that. I do think "your God" can have a broad meaning, broader than the usual view of some supernatural being. I think "God" can be a sort of symbolic thing, a means to make certain hazy thing like an ideal view of good to be more concrete, which many of us find more manageable. It is like use of idols as symbols (like some use religious items today) in the past or even stories of gods and goddesses that many did not take literally, but as a sort of poetic license of our reality. 

Anyway, I understand that "conscience" and "religion" should be given some meaning, that everything cannot be defined by such terms. There are complexities and the article covers some of them. All the same, I'm not sure how much it matters at the end of the day in our every day life, even as a matter of legal questions. We still should have freedom of conscience, which is related to, if not completely enmeshed with, religious liberty.  We have a broader view of both these days and better for it.

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* For those who find the "penumbra" language of Griswold silly, perhaps Brennan's language is more to your liking -- 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 theme works in general.

MHP Letter of the Day

,

Downton Abbey

I watched the second and third episodes, which complete a bit of a story arc, and thought both were stronger than the first (extended) episode. Some good plot material. And, poor Edith -- left at the altar! Watching the first special feature -- an extended documentary on the show. We get to see the servants look more fancy, many actresses favoring eye makeup. Thomas' homosexuality isn't address yet though his old ally is no longer. A bit sudden.

What's Next in the Drug War?

This cites an interesting article on the topic for those who won't pay $90 for the whole book. One interesting bit is the need to treat marijuana separately, along with how many people are arrested for simple possession, even if not incarcerated. Stop and frisk, e.g., underlines "mere" arrests can matter a lot, including as a sort of "foot in the door."

Week 2: Jets lose 13-10

Sigh. Well, the NYJ gave up a quick score and then turnover, but then their defense held -- after being down 10-0 in a flash, the Pats only scored three more points. Pretty Boy Floyd was upset all night with his young receivers and then the rain came, but a messy 2-0 is still 2-0. Still, the NYJ might have a permanent new QB, and some wins.

Sue Grafton

Her new letter mystery is out. She started with crisp under 300 page efforts, now we have an over 450 page tome. Too long, especially with her penchant for filler exposition. She doesn't do much of a gimmick here (has short interludes involving another detective) like a few recent efforts, but it's just too long for me. Three letters left.

Downton Abbey

I'm starting to watch S3. I noted S2 didn't have many gotchas though there was at least one horrible one late. The show as a whole is "comfortable," I think, with enough edge to keep it interesting. Comfort food. The first episode of S3 had that flavor to it.

New Campaign Star?

De Blasio has a fraction of a percent wiggle room for now to avoid a run-off, helped by his interracial family and two primary opponents seen as too conservative, including the play it safe black candidate, including on stop and frisk. Really has the Afro going there.

Colorado Recalls

I'm not really a fan of recall elections (even of Walker), since terms are already short enough given extended electoral cycles and off cycle elections etc. are already subject to very small electorates. This worsens the situation, often for reasons of short term excitements that worsens the moderating benefits of republican government. More on subject here.

NYC Primary Results

Spitzer lost the comptroller race by a few percentage points (yay), the public advocate race goes to runoff, De Blasio might have (barely) avoided run-off for mayor [saw an actual sound truck for the second place winner -- like some 1950s film], long time Brooklyn prosecutor was defeated and the reporting (of course) generally doesn't mention the (joke) judicial race.

Quote

Every truth has two sides; it is as well to look at both, before we commit ourselves to either.

-- Aesop

When God Talks Back

I could not get into the book itself, but the idea is very interesting -- "How does God become and remain real for modern evangelicals?" She argues it is a learned, not easy, but rewarding for many, mental outlook. Others would get to the same place without "God," who they will define as "insight" or something. The links provide some good discussion and an interview.

Primary Day

A possible run-off with a quick turnaround led to the return lever machines. After being reminded to set it, I voted. Unlike some places, never had long lines etc. Actually a choice for mayor (and public advocate), voted against Spitzer trying for his comeback tour for comptroller and for the judge getting the endorsements. The voter guide did not mention the judicial candidates. It's a joke, since no one knows about them.

Dem Congresswoman, Iraq War Veteran, Opposes Military Intervention In Syria

I think peace overall is the best option generally speaking. This is why even if there were WMDs, I didn't think without more war with Iraq was smart in '03. Kristof, sounding like a stereotypical concern liberal, opponents don't want to "do nothing" about the deaths. They think the likely military attacks, net, won't help. Reasonable minds can disagree.

Jesus, Interrupted

One charm of this book is that it is basically a summary of various things found in Bart D. Ehrman's books, including a historical-critical analysis of the New Testament, the conflicts between various books, inaccuracies, but how one still (not that he did because of the problem of evil) retain one's Christian faith. I did read somewhere else that the Suffering Messiah was not totally new c. 50 C.E., but BE does say others dispute some details.

Sports Sunday

I saw parts of the Jets and Packers' games, only seeing the very end of the Giants game. The latter was another too big hole to fill, not this time (driving/interception late) game that is getting to be too routine. Jets got a gift after it looked lost with about 1/2 minute left. Stupid penalty, long field goal. Meanwhile, Dice-K actually had a good game.

Smile or you are a bitch?

Sounds like something translated from Korean, apropos to this wider discussion. Meanwhile, a patronizing response to a criticism of the NFL concussion settlement. As noted in my comment, I'm wary of gag order settlement terms.

Syria AUMF: Chemical Weapons and Other Issues

Former Senator Richard G. Lugar said the difference lay in the danger of proliferation. “We are talking about weapons of mass destruction, we are talking about chemical weapons in particular, which may be the greatest threat to our country of any security risk that we have, much more than another government, for example, or another nation because they can be used by terrorists, by very small groups,” he told the BBC. “The use of these weapons of mass destruction has got to concern us, and concern us to the point that we take action whenever any country crosses that line and uses these weapons as have the Syrians.”

The NYT does something that Obama and other members of Congress better  take care to do -- provide some explanation why chemical weapons particularly are considered a threat to international safety. Why a chemical weapons treaty being enforced is credibly applied even to a domestic dispute involving a misuse of chemicals as revenge for an affair. It is a product of history and its use (and the danger) against civilians:

While militaries find chemical weapons hard to control, given the vagaries of wind and weather, they can be effective against the unprepared, and especially deadly to unsuspecting civilians. “You just have to watch the videos from Syria from Aug. 21,” Mr. Heisbourg said. “This is killing people like cockroaches and using the same chemicals to do it.” 

Thousands of people were killed by machetes in Rwanda, he noted. “That’s gruesome,” Mr. Heisbourg said, “but the production and sale of machetes is not considered a threat to international security.”

The article notes our use of Agent Orange being deemed legally an defoliant, but even if it can be deemed criminal (though clear international law -- so clear that even if Syria is one of a handful that did not sign on, it should still be considered "customary" and binding -- might have came later*), there really isn't some "two wrongs make a right rule." See also the link fest supplied by a comment here (I once looked into the "white phosphorus" issue and recall it being hazy. War overall, including the unhealthy aspects of it, is hell -- duly noted too. Again, chemical weapons specifically have been deemed historically a problem.  Helping Saddam is old news as well. Two wrongs don't make a right, including in promotion of devil's bargains to balance Iran. Net, where does this get you? We aren't pure?  Great! Thanks for telling me everyone knows.)

The concern here is that the U.S. specifically has no clear authority (as compared by some things I read, genocide) to independent of U.N. action to enforce this sort of thing by military action.  I have noted this very problematic issue though also that some have suggested a realistic ability to act and if the act is accepted, in effect, change international law norms in the process. Also, the matter addresses the the national (and international security -- see NATO's comment here) implications.

There is a reason this in particular -- not each and every violation of international law or harm to civilians -- is being addressed in this way.  Also, if you read the Senate AUMF against Syria, there are various "whereas" clauses to explain why it is particularly in our interest to use force here. Personally, I still am not a supporter, finding use of military force something that we should use only as a last result, especially when it might be counterproductive or of limited value. In the long run, for instance, use of military force without getting U.N. authorization (realizing that Russia's veto makes it rather difficult here) is problematic in itself, if promotes other nations to violate international law.

Nonetheless, it is helpful to understand the logic of the intervention, avoiding (I have seen it) simplistic tropes. For instance, someone quoted Obama opposing regime change and "war"** against Iraq in 2002, but (he's getting ridiculed for it) Obama opposes a broad action here to do that sort of thing. It wouldn't be the first time that Obama got it from both ends though.  One thing cited is that there just is not enough evidence. The AUMF, however, cites the Arab League (Syria is a member) holding Syria responsible for usage of chemical weapons. It cites various provisions, even if Syria is not a signatory of the more recent treaty against chemical weapons, of it being in violation of international law. The overall threat of the regime and how this adds to the overall danger of the situation.

The authorization of force is targeted as a response to the usage of chemical weapons and protecting further misuse or leakage to rebel forces. But, realistically, the whole context matters here. The usage of chemical weapons in some other situation might not warrant military force given the balance of prudence. I doubt it is warranted here. Still, we should look at the logic of this specific situation. The use of force very well might have after-effects, including further destabilization of Syria, including its relations with Russia (one blogger noted  this as a sign Syria's government no longer will feel Russia is protecting them as much). This again makes it unwise. Others, however, are willing to take the risk since things are so bad already. Such a government, such unrest makes usage of chemical weapons that much more dangerous.

Obama's response has been criticized as half-cocked, but there are a mixture of interests here -- domestic (the use of force here is tangential enough to self-defense and so forth that congressional authorization is sound), international security/human rights tied to specific dangerous weapons (something Obama has been for overall, including working toward nuclear weapon security -- something, Valerie Plame, e.g., has worked on as well) and the regional security issue of Syria. This involves a mixture of legal and realpolitik.  Such things are messy and even if we oppose the specific choice here, we should be grow-up enough to realize it and not get all shocked that some of the lines here are hazy.

Whatever happens, "For Syria there is no safe, morally pure solution."

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* All types of chemical "weapons" might be seen as illegitimate, including the gas chamber. 

** I realize that the Orwellian possibilities of avoiding the word "war" can get pretty bad, but this doesn't mean all uses of military force are legally or should be considered "war." The term has broad legal implications, which is one reason it is so often avoided, especially after WWII.  On a colloquial basis, I don't think the general public disagrees.

This doesn't mean a wrongful attack stops being an illicit "act of war" -- cf. a legitimate and illegitimate reprisal (authorized by Art. I separately from "war"). This provides a separate reason to obtain authorization of usage of force in let's say Libya.  Treaty obligations, e.g., very well might as a legal matter be open to change -- a treaty is equal to a duly passed domestic law for constitutional purposes.  But, Congress, not merely the executive, should do something like that generally speaking.

9 to 5

The film came up on Labor Day and saw it again on DVD, which has the trio providing commentary twenty-five years later and some other stuff. Commentary track fairly interesting. The film has something important to say but plot gets silly half-way thru.

"Effective review of history and modern realities of felon disenfranchisement"

This has been one matter that I have been concerned with over the years, particularly because it has a specific racial (and class) impact. I still agree with the dissent in Richardson v. Ramirez that the brief exception to a penalty provision in 14A, sec. 2 is not enough to authorize it. Happily, some improvements have occurred in the last decade.

Breaking the Law to Change It?

"Yet that doesn’t mean international law would view a U.S. intervention as illegal in the long run." This seems to be the strongest case on international law grounds, but given the questionable value of military action, I question it being used in this context. This debate also has led to those "what is so special about torture" sort of things. If a law professor, per a reply to me, is so clueless, maybe the general public needs a thumbnail reminder?

34 Pieces of You

This is a YA book about bounces around before and after the overdose of a teenage girl, providing things from the perspective of her brother (the guys come off the weakest here) and two sisters with different relationships with her with thirty four slips of her own thoughts. Covers a lot of ground (I see teen series!) pretty well. Recommended.

"Progress! NY Times Wedding Announcement Openly Discusses Abortion"

This discussion leads me to think about the book I just read -- a 25 year-old prostitute gets pregnant by her pimp and decides to keep the baby. In effect, it motivates her to escape his control, though not ultimately the life itself. But, abortion is not even suggested -- yet again, it is like a non-issue in fiction. Well, maybe non-fiction is starting to learn.

"President Obama and Compliance with Domestic Versus International Law"

The two blog posts alluded to in the title blog post cites Prof. Michael Dorf and he has two good good admonitory posts on violating international law in regard to the Syrian bombing plans.

Marty Lederman in the first two posts discusses the possible logic to President Obama's approach to international affairs, a sort of middle position that all the same has liberal interventionist leanings. This does not surprise me, including from someone who appointed Samantha Powers to the U.N. The stereotypical idea of Obama might be that he would oppose this sort of thing, but opposing intervention in Iraq doesn't mean that. Then, there is the usual citation to a 2007 comment:

“The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.” 

This was in the context of bombing Iran. I think too much is made of this, especially when it might be pursuant to some sort of treaty obligation. This is not necessarily a "unilateral" authorization -- it is based on something already authorized by the President with approval by the Senate. Also, "actual or imminent threat" is somewhat open-ended (Obama likes his wiggle room -- he is a pragmatist).  But, talk of "important U.S. interests in preventing instability in the Middle East and preserving the credibility and effectiveness of the United Nations Security Council" (Libya authorization) is pretty weak.  Don't think answers to a test in 2007 is the final answer here, but do wonder if some reporter directly cited the quote to the press secretary.

Back to the title blog post.  Domestic affairs would be important for the U.S., especially since it has such power to effect other nations -- the very idea of bombing Syria suggests this and it's part of our mentality as some sort of world leader. Presidents have for a long time had large discretion in international affairs, even if the Congress has various powers too. It is not surprising to be less concerned about others.

This doesn't mean international law shouldn't matter -- both pragmatically and on matter of principle. The Declaration of Independence speaks of what we "might of right do," and drawing the line in the sand on chemical weapons in part is argued to be as a matter of international norms. But, a sort of international due process is part of that too and it too is of basic importance. There are procedures to go through here, including the United Nations. The U.S. was key in establishing it for just that reason. Upholding proper procedures also pragmatically encourages others to do so. The world is not supposed to be a lawless place where nations have some "right" to do anything they can. It is not a violation of Godwin's Law to note the U.N. was a product of an alternative viewpoint.

Authorization by Congress is a limited improvement to unilateral executive action here as is having some nations (but let's be honest -- an ad hoc rump w/o UN approval only goes so far) supporting the U.S. And, nations do have the power to opt out of treaties, if not the international right to do so without good cause. This only underlines use of force here should be put to the highest test. I have doubts such tests are met.

Meanwhile, Senate Democrats have been considering new language to the authorization, fearing the one offered are too open-ended. Either way, I think there is a constitutional duty here for congressional authorization, particularly given there is no apparent international law duty to use force. This -- as has been noted -- is problematic on its own, but at the very least, domestically, it underlines the importance of bilateral authorization.

Don't Take My Man (or my Job)

She’s like an ambassador from a world where hard times make you stronger, but they’re still to be avoided; where you escape your past not by running away but by planting a ladder where you stand and climbing up.

Dolly Parton/9-5 is the Labor Day topic today here. Like those sad on Christmas, these days also make Labor Day a tragic day for many.

and when she was good

I happened upon this non-mystery series Laura Lippman novel about a lobbyist who is really a madam and it started well (it went back and forth from her past and the current day). But, by the 2/3 mark, it became a sludge. I have thirty pages left. Whatever happens, it is getting BORING, even as the protagonist should be in danger. But, nothing much happens there. It just drags on. Also, she is starting to act pretty stupid. Bad sign.

Rev. Joe -- "The Friendly Atheist"

The title refers to a blog, not my own title. I do think you can be both, and though I can be snarky, do try to be friendly overall to others. Some "new" atheist types symbolized by St. Hitchens favor the "religion is for rubes" approach. Not really a fan though being mean to assholes is understandable. Thing is, many believers in God etc. aren't, so don't do that.

Breadth of Syria AUMF

Per Justice Jackson's dictum, if Congress authorizes the President here, his executive powers will be at their highest point, though international law still remains a major concern. Thus, the focus should be on its breadth though shall we say "non-war" AUMFs have generally been limited. Well, everyone seems to be on board with going to Congress being a good idea.

Upcoming Primary

The upcoming NYC primary is big given Mayor Bloomberg is leaving, Spitzer is trying for a return (comptroller) and concern for a quick turnaround/run-off even led to them bringing back the lever voting machines. Looking at the voter guide -- some of the minor candidates had a problem with spell check when providing a personal statement. One did so in caps.

Meet Madison Kimrey, 12-year-old voting rights activist

,

More here. Remember, Scout stopped a lynch mob. Seriously, you go girl!

Obama Finds It Useful To Ask Congress To Approve Use of Force Against Syria

I was thus surprised, but very happily surprised, when the President announced this afternoon that he would seek congressional authorization for the strike.

Lawfare and Volokh Conspiracy among others discuss the news, including the Bush41/Kuwait kicker that "but I don't really need it." As a matter of basic constitutional policy, this (reporter Richard Engel: don't call it "war"!) is a good move. Let's see what comes of it.

Daniel Murphy

Murphy’s hustle proved to be the difference in this game. That’s the second time this week he has scored from second in a situation like that. He isn’t the most graceful of players, and sometimes he can make me scratch my head, but he’s gritty and has a winning attitude – every good team needs a baseball personality like that.

Yes. The nay-sayings annoys me. Baseball isn't just statistics and stuff. Daniel "Roger Ramjet" Murphy is a personality, gives the team character. Face palm moments duly noted.

"Ginsburg will be first justice to officiate at same-sex wedding"

One-half of the couple is "John Roberts." (No, not that one.)

The Body of John Merryman

An inane op-ed [from a member of the hack wing of the blog] led to some interesting comments, including a citation of the subject book. A brisk read, it helpfully provides the basics in around two hundred pages. An in depth look of the legal principles is found elsewhere, but this is a good addition to a cottage industry of books about historical cases.

Other News

Other news would be the big NFL concussion settlement, major IRS policy shift on SSM, CASC upholding "gay conversion" ban, Hasan getting the death penalty, the 50th Anniversary of the March on Washington and Mets News (ace might be out long term, useful trade). And more. BTW, opinion page not great, but looking at it recently, WSJ has some good coverage.

Obama Administration Colorado/Washington Pot Response

August is busy busy, even outside of the sports world. If the usual isn't enough, we have Syria (chemical weapons ban of concern so much that darn who needs Congress? it's so obvious without them!), the Administration voiced a position on Colorado/Washington marijuana legalization. A lot of wriggle room -- it still is against the law federally after all -- but a hopeful sign. Any big change will realistically require congressional action.

Syria Bombing

First, get Security Council approval. Second, get congressional approval. Third (or zero-th), determine if engagement is a good idea. Wary about that, actually.

Gnostic Gospels

My source here has been Elaine Pagels (who I saw in person years ago) and some Bart Ehrman, but Marvin Meyer is also a well recognized scholar. I checked out The Gnostic Gospels of Jesus: The Definitive Collection of Mystical Gospels and Secret Books about Jesus of Nazareth recently and it's a useful compilation in one volume. The problem is that the esoteric nature of the text makes it hard going with the short introductions provided.

City Comptroller for NYC

Not sure about mayor, but good summary of why I'll vote for Stringer against Spitzer.

Mets Fans Reaction: "Yeah, Knew Something ELSE Was Going To Happen"

After a depressing sweep (not too long after another sweep vs. "big boys," the Dodgers, helped by a LOUSY call or two in a key at bat), we now hear that Matt "no decision" Harvey is hurt. The timing is a bit off -- it is not like fans were feeling great -- but, you know, to poison the "all things considered, the future looks okay" vibe. Oh well.

Prof. Sherry Goes Too Far ... Let's Ridicule Her!

I have read some of Prof. Sherry's writings (e.g., on the history of judicial review back to the 18th Century or the weakness of using any one type of judicial ideology) and found it helpful and insightful. This article is somewhat weak and it feels like overkill to have so many posts about it, but I guess some good came out of it. And, a lot of blather, sometimes latching on to some phrase in one or two posts. Such tiresome b.s.

The Cuckoo's Calling

Not a Harry Potter fan, but the drama over "Robert Galbraith" led me to check out this mystery. Quite good -- the detective (with a bit from the p.o.v. of his new assistant, a stand-in for a young J.K. Rowling) is an engaging character as is the story. It's over 400 pages, but never boring. One or two questionable moves, but look forward to future entries.

Rev. Joe Goes To Court: "Major tests on religion shaping up"

Wary of the results of all of them if they come up, but the prayer one should be of limited harm at least. A look at the questions presented suggests the deck is stacked, but perhaps helpful in that respect. Note Sotomayor's ruling on the contraceptive mandate.

D-O-M-A

That might be a new classic!

"The importance of my gag reflex in accepting who God made me to be"

So I repented. I turned around and faced God. I accepted who God created me to be and I exchanged my unnatural sexual relations for my natural ones.

Not quite the references to "God" likely to be found in a Tracie Peterson novel.

The Icecutter's Daughter

Here's an excited review for this book. I read it and the next one in the series. Over ninety books? Makes Danielle Steele look like a wanker! The book is quick reading Christian historical fiction. I think it sort of overdoes it on the Christian (moderation in all things!) but both were enjoyable reads. The second book has a surprising plot twist.

New Mexico Photographer Loses Discrimination Case

I'm not 100% sure the law in place is necessary, but the ruling itself looks very reasonable. The idea that photographers are uniquely "expressive" here as I noted in the comments to me appears particularly wrong. As with the contraceptive mandate, the other side is filled with arbitrary line-drawing, mixed with strong rhetoric that repeatedly doesn't address the hard questions. The OP discussion there is fair though.

Bradley Manning Sentenced

His mistreatment in prison complicates the matter, but for what he was sentenced for, ten years would seem appropriate. If he actually gets released when he is first up, I think it is reasonable. I would not be against commuting his sentence at the end of Obama's term either. Releasing all this information in this manner was rightly prosecuted but his treatment and the amount of charges, not so much.

The Loved Ones

I saw this on a "gross out" horror movie list and it started off promising. But, a mostly pointless subplot and a badly paced second half (plus some real stupid plot developments as well as an aggravatingly lame ending) made it a major disappointment. It had promise as a "fun" film with some verve, but it lost its way. Others liked it more.

Lee Thompson Young

I made a flippant remark about Rizzoli & Isles and someone brought up the news of his suicide. Very sad. The show is a somewhat silly one that can best be enjoined for its role as entertainment. But, like certain problems with Disney stars (like LTY, actually), reality shows its ugly face there too. How will the show deal with this? Oh well. Back to the non-serious.

F-bomb lady

A blog hit was connected to this picture of word goddess Kory Stamper.

"God"

Reading about Islam and Muslims, I again am left thinking that a lot of things are not about the actual concrete (so to speak) "God" of religion, but the concept and understandings behind that. The concepts and principles for which "God" is probably a sort of symbol, a personification that people find necessary to make real. When people sneer at "God" or "religion," or certain types, that should be their concern too.

Airplane!

The Airplane movies were on last night. Amazing how much stuff is rammed in there. The amount of stuff you can miss (especially on network broadcasts) alone. The white/red loading area bit with a kicker about abortion, e.g. The announcement of an Airplane III actually turns out to be based on reality. Surely.

"Sexual Assault and The Military: The Answer Goes Beyond What the Pentagon or Congress Propose"

This discussion looks at the "culture" that helps promote sexual abuse in the military (my own Sen. Gillibrand is a leading voice on this issue). I provide a partial dissent and would think that the shocked comment as to adult literature comes off as pretty silly. Still, sexual freedom being a good thing doesn't stop it from being a complicated thing, including protecting individual dignity in the process. After all, it often involves surrendering it!

Rev. Joe: No god but God: The Origins, Evolution, and Future of Islam

Reza Aslan has received some fame for his appearance on FOX promoting a new Jesus biography, and this effort suggests it will be worthwhile. A well written three hundred page "biography" of the religion covers the basics. Clearly not comprehensive, but a good progressive approach to the material. The Jesus book is on reserve.

Another NSA "Bombshell"

See here. I guess the "big story" needs a bit of context. See also comments by the likes of "WiscoJoe" here (not me). I'm wary about the whole thing, but find some of the "this is tyranny" stuff dubious. For instance, my comments here. And, by now, quite repetitive.

Not quite the same thing

IMHO: One provision of the PPACA v. suspension of habeas corpus.

Together We Cannot Fail

I enjoyed Terry Golway's book on Nathaniel Greene back in the day and see he has worked on a few books that provide audio of presidential speeches. This one concerns FDR with thirty short excerpts. Powerful stuff though the text gets a bit repetitive at times.

As if Dodgers needed more help ...

After defensive misplays led to 2-3 runs, ump miscalls (blatantly a 3-2 way outside "strike") blocked the Mets from making up for them. Worse, the manager not only didn't complain (it deserved getting tossed; even Vin Scully was a bit taken aback), but barely reacted. Almost worse.  West Coast, so this happened after midnight local time. Some way to end a day.

The Fosters

With the show now on hiatus, I am left with watching old episodes again. The one after Stef was shot is probably the best one and one sign (other than great flashbacks) are numerous great reaction shots. Some subpar efforts are worthy of a bit of respect for being pretty well put together. The good ones make you think "this is good." In more than one way.

Touch of Realism

The author of the cat book noted he [putting aside his basically dumpy guy look] was someone people would not notice on the street, in fact, if he was, some would not have a pleasant reaction. This adds to the power of the reality of the book, a bit more of an edge than say Marley & Me. If there is a movie, hopefully that edge will be retained.

Ginsburg on Opera and the Law

The speech page on the USSC website is mainly dominated by Stevens, but Ginsburg has a few entries, including a recent one with an opera focus. It ends with a few lines of a pending Ginsburg/Scalia opera. Yes, "opera star" is not in the cards for our fair justice.

A Street Cat Named Bob: And How He Saved My Life

This is a basic book -- a recovering British addict who makes a living busking (and then selling newspapers) gets inspiration to improve his life from a cat he found (or vice versa) -- and charming and powerful for that very reason. No great happenings, just a life.

Rev. Joe Book Review: The Quarryman's Bride

Found this at a cozy library during my recent trip to Staten Island, it originally from a branch much nearer to me. It's a Christian historical fiction about some family tragedy and redemption in 1890s Minnesota. A bit too heavy at times on the message (I'm game, up to a point, but tad much), but the story and writing is pleasant enough.

Working Girl

The author of the book just referenced was the source of the famous movie The Birds, which started out as a short story that was not about some classier than class eye candy.  Might have to read it some time. Was not really overly impressed by the movie -- it really requires you to be mesmerized by the lead, since much of the running time involves her without anything really bad going on.

No disrespect to Tippi Hendren, who is the mom of Melanie Griffith, herself one of those actress best known for a few roles (1988 was a good year, particularly given Working Girl; she had at least one jail-bait role in the 1970s) though she continues to work until the present.  It is nice when actors and actresses have long careers -- Mystic Pizza (1988) is an example. Multiple people there still have work, including each female (the male love interests and at least one supporting character have found work too) lead. It's helped by cable (or whatever) expanding greatly the number of roles. Annabeth Gish (distantly related to the silent screen stars), for instance, is in the new series The Bridge, which I sometimes saw previews for while watching something else (like The Fosters, maybe) on demand. 

Working Girl has some of this, including a bit even regarding the spin-off. Yes, though I don't recall it (liked the movie), there was a television version (see also, Baby Boom), if one that only lasted twelve episodes (less showed).  Melanie Griffith's part was played by ... a young Sandra Bullock!  I actually remember her being cut from Letterman once when she played a small supporting role in an early movie of hers. He later apologized, apparently seeing the charm she showed back then too.

The basic idea of a Staten Island girl done good -- assistant to junior exec -- is followed, but without the whole Harrison Ford deal (Trask appears to be the only real cross-over character ... the person who plays her boss in this version is another "I know her" character actor sort).  When Bullock's early work is referenced, it generally is some crappy Amazon themed film or maybe Love Potion No. 9. In fact, she had a few other roles, including some television work.  Ah trivia.  It's useful ... right?

Oh, the Sal Pascarella character sounds like the nudge from While You Were Sleeping, one of her first true "cute girl" successes.

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* The intro provides a low rent view of the Staten Island ferry shots from the film, plus a subway turnstile, suggesting she is perhaps working midtown somewhere.  The ferry is currently free, which makes it a great little tourist stop. At some point, it was fifty cents, at least one way. Not bad either.  I'm pretty blase about NYC, lifer here, but felt a bit like a tourist myself here recently -- nice people watching too while waiting for the ferry to load. Mini-UN of sorts.  But, really. Free?!

Review Quickies

The final book of the writer of Rebecca is the atypical effort Rule Britannia, a political satire about the U.S. invading the U.K. and the rebellion led by an elderly former actress and her young charges. Quite readable with an interesting p.o.v. of her granddaughter, not totally gung ho about it all. Prime is a slight but well put together wry film about a woman dating a younger man who turns out to be her therapist's son. Leads do well. Interesting ending.

Law Man

Latest on the author in question. [More.]

Addicted to Prayer?

[And Also: I found this old post of mine about a book entitled Converting Kate. It uses one of my favorite examples, the God laughs at his creation besting him story.]

There is an interesting article entitled "Addicted to Prayer" in the NYT referencing "evidence accumulates about the many health benefits of religious practice."  The article compares prayer to role playing games: when "people use prayer to enhance their real-word selves, they feel good. When it disconnects them from the everyday, as it did for the student, they feel bad."

There are both positive and negative ways to pray. And, it is not necessary based on some actual existence of God, that is as some actual concrete being. The concept though ... which underlines the complexity of religion as a whole.  Some atheists or agnostics focus on the idea that "religion" is fantasy.  But, it is unclear if something that is the basis of human history from the beginnings apparently lingers on merely because people are convinced about things not there.  To quote the article, there is a human "capacity to make something real" here.

Meanwhile, the U.S. government submitting a brief that largely supports the N.Y. community involved in an upcoming USSC case involving use of legislative prayer to start government meetings.  This would overturn the ruling below, which a betting person would see likely (the best to hope for is a narrow ruling), which interpreted Marsh v. Chambers somewhat more strictly than the government here suggests is required.  This is more likely given changes on the Court that makes dicta* from a creche case for which wrote the main partial dissent likely to have less holding power.

The federal government says the lower court should not have analyzed the content of the prayers here.  I think the lower court makes sense in noting, including referencing other circuit rulings, that the content can be taken into consideration to some degree, even without "parsing" them. The lower court in effect uses a balancing approach to determine if endorsement, particularly the "effect" of it (to allude to the Lemon Test) is present.  This includes using only local clergy, implications the Christian dominated prayers were "our" prayers (not just the personal means of the people used to sanctify the proceedings) and did not do enough to guard against endorsement. I would let such a fact specific enterprise stand.

The analysis of the brief did note that the government is more supportive of the endorsement test. Changes in personnel matter here too. The 2CA cited, e.g., on a Ten Commandments case where Breyer was the determining vote. He in effect used a balancing test. O'Connor is no longer on the Court.  The four man plurality there has a fifth vote.

That broad assault by the town on the theory is not imitated in the government brief.  Indeed, there is a section of the government document which suggests that a government body that has not had prayers as a part of its historic practice perhaps should take steps “to clarify to a reasonable and informed observer” that it is adopting a prayer practice in keeping with the limited role of prayers in government settings.   The reference to the views of an observer suggests an element of caution about whether a newly adopted prayer practice might be seen as a form of endorsement of religion.

The brief's suggestion here is more advice than command though the lower court would probably see it more of the latter. "Before 1999, Town Board meetings began with a moment of silence." As noted here, in the past, changing gears here in the past might have been seen as a red flag. Policy-wise, which is not the issue here specifically true, the old policy would have been best. A moment of silence helps to avoid the problems that might arise here -- as seen there, the case in small localities can be harder for 1A purposes than a state legislature or the U.S. Congress.

As is, hopefully the opinion will be decided narrowly, and this fact specific dispute that in no way blocks legislative prayer will not be used to broadly dispose of the endorsement test.  Should we just trust the matter to local governments?  Protecting religious minorities would seem just the sort of Carolene Products justification of some court action here. But, realistically, especially with a narrow ruling, that will be the case largely either way.  Even when any controversy is a result of a gratuitous replacement of long practice that was better left be.

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* Government practices, even legislative prayer, "that have the effect of affiliating the government with any one specific faith or belief" is illegitimate. Thus, a comment in Marsh regarding "indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief" is given a somewhat stricter flavor. The government brief in effect hand wavers away the later dicta.

"When Younger Players Showed Way on Testing "

I have seen some discussions about how the steroid policy in baseball is a joke and "everyone" cheats anyhow. I find this annoying -- everyone doesn't cheat, the policy protects the health of players overall and the players agreed to the policy. It is actually being enforced now. Rightly so. Also, A-Rod is no victim. Enough of that b.s. The fact he's (annoyingly) still playing underlines due process, even in this context, is being followed.

The Fosters

First, Rizzoli & Isles was pretty good today with a surprise ending that left the mystery somewhat unsolved. Somewhat hit/miss with this show, but kudos when it's good. Also, the After Ellen recap is up and the "Joe Lies" (Say Anything) reference is you know film nerd porn. Mystic Pizza (same actress) also was on recently. Damn thing was on 25 years ago.

Arizona enacts ban on abortions based on gender, race

This week's RH Reality Check podcast flagged this law that targets physicians, not the girls/women, though they are burdened in the process. The law is offensive -- you have a choice to have an abortion, not only for the "right" reason. If the abortion is to cover-up an interracial affair, is that a problem? Anyway, you have a right to do things, even if for the "wrong" reasons. The law also inhibits free discussion with medical providers.

"Ruminating on Personhood in Today’s NY Times"

h/t to an interesting article. This is sound: a "right is a legally enforceable claim." This means (some) animals have certain rights, including protection from cruelty. If corporations can be a form of person, animals should too, especially since if anything a dog should often be more protected. Not sure if they will get 1A rights though.

One more thing ...

The tweets reminded me of something -- particularly in an earlier scene, the show rather well made it clear the two women just had sex and were currently nude under the coverages. Hints sometimes are best. Also, Teri Polo had some great acting moments. Finally, kudos dramatically for her dad -- everything didn't work out in the end. In real life, life is messy.

Save Money (Except for the Extras)

A sort of in-joke on The Fosters has Lena's dad become an Internet minister to be able to preside over the marriage ceremony, something done outside of t.v. shows too. He's played by the same person who played Rev. Camden on Seventh Heaven. BTW, he references a small price tag. Have no fear -- you can get it free via ULC Church!

Third Amendment and the Limits of Narrow Interpretation

And Also: An Onion article in honor of the (summer) season finale of The Fosters, the marriage episode. A problem with the court scene. And, don't really like the cliffhanger -- poor Jude will be crushed! I can accept it, but it still is pretty stupid on Callie's part to run away like that. Still, she is sixteen.

That military powers of the Commander in Chief were not to supersede representative government of internal affairs seems obvious from the Constitution and from elementary American history. Time out of mind, and even now, in many parts of the world, a military commander can seize private housing to shelter his troops. Not so, however, in the United States, for the Third Amendment says,

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Justice Jackson in a separate opinion in Youngstown Sheet & Tube Co. v. Sawyer is one of the few citations of the Third Amendment found in the Supreme Court opinions. Griswold v. Connecticut provides it merely as part of a string cite of various protections of privacy found in the Bill or Rights. The dissents in Poe v. Ullman cite it along with the Fourth Amendment as part of the protection of "the privacy of the home," so it is not seen only a "guarantee of the preference for the civilian over the military," but also a privacy protection.

The only apparent ruling that truly relied on it in the federal appeals court is Engblom v. Carey, a ruling only about thirty years old, and the claim was so novel that qualified immunity applied. The opinion and the amendment came up when a more recent case that might have Third Amendment implications was addressed here. The post suggests that it should not be incorporated, that its reference to "soldiers" in fact only applies to the federal government. That is not the fundamental freedom that should be incorporated into the Fourteenth Amendment.

The matter was addressed in comments by me in particular, but this is a case where the limits of originalism pop up. The professor in question has focused on original understanding before, writing over fifty page papers that others dispute to determine what "seems" to be the meaning of such and such a thing. Come on.  [See also, this on the reach of federal equal protection, something a few smart alecks sometimes lash against, since contra to long-held precedent, doctrinal or textual niceties allegedly make federal substantive equal protection review moronic.]

I am not, you know, a scholar about these things, but after a couple decades, yeah, do sort of know some basics. At least, enough to know there are complexities and it is often a choice where to take things, especially pursuant to current understanding. The piece, e.g., argues that "troops" and "soldiers" implies a federal reach, since states don't have "troops." But, put aside that Art. 1, sec. 10 is not an absolute bar.  Why shouldn't "soldiers" here be interpreted broadly?  The Engblom opinion in fact doesn't do much heavy-lifting at all.  But, how about U.S. v. Miller?

The Militia which the States were expected to maintain and train is set in contrast with Troops which they [p179] were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia -- civilians primarily, soldiers on occasion.

The Third Amendment works applied to modern day police (which act more like soldiers did in that era) and state guard type troops. Why would even civilians serving a militia role have the ability to quarter in someone's home? The civilians are acting like "soldiers" on that occasion.  "Troops" is not the word used. If a case about the militia and Second Amendment can use the word "soldier," we can here too. What is the point of being so literal and specific?  Being forced to keep state agents in one's home probably can be seen in most cases at least as a sort of "seizure" of the home or a temporary "taking" or a violation of the privacy of the home protected by the substantive due process.

Or, we can honor the spirit of the Third Amendment.

Colibrí

I found this book about a kidnapped Guatemalan girl, and though it is written for a middle school audience (in the voice of the twelve year old protagonist), adults can appreciate it as well -- at times, it seems like she is narrating from when she is older, though it is written as if the events occurred recently on an ongoing basis (tense is sort of strange in fiction that way). Good book with a flavor of the place and culture. Bit scary for kids.

"How Not to Convince Republicans to Address Climate Change"

Prof. Adler a conservative/libertarian who supports the need to address climate changes criticizes a response by some old time Republicans (who he wonders should even be called that any more).  His support is appealing, makes him seem approachable, but his mind-set still is problematic. It is like his concern for blocking judicial nominees and refusing (even when one of his fellow bloggers used the word as I pointed out more than once) to use the word "filibuster" for some of the actions.

I responded myself,* including addressing an update. One thing I noted, e.g., are that the people in the op-ed are Republicans, replying to someone else that they had various leadership roles in the past.  Also, putting aside Adler's concern about the river matter (see below), the op-ed didn't only reference that.  The link above can be used to read my responses.  An update led me to respond again, which will be re-published here, since I think it might be the most important part of the discussion on my end:

"The Right" (I stereotype here a bit akin to suggesting the op-ed writers aren't really "Republicans") doesn't really appear to "believe climate change is a problem" that is worthy of much concern, that is, one that would require them to focus on as compared to other things, or even understand it is one of those things government power should be used to address, akin to abortion or use of executive power against national security threats. So, that's an uphill battle.

For instance, a carbon tax is suggested. But, the current Right in the House of Representatives are of one mind -- taxes are bad. This is one reason why any hope for a bill seems to require some sort of pork -- in reality, Republicans in the House still care about that sort of thing. So, realistically, though Prof. Adler would on principle find this distasteful, it very well might realistically be part of a bill, if I thought there was a real shot at any sort of legislation in that department. And, like the PPACA, the first step might be imperfect. But, like health care, climate is a long haul. You need an opening & it will be a decades long journey. Any legislation unless we change how the Congress works will particularly be imperfect.

Some have put forth a bit of hope, since there are some of a conservative mind-set who see climate change as a religious issue -- it is part of God's duty to us to take care over those things we have dominion over or some such thing. That would to me be one approach: find allies among the Right's base. It would be helpful, yes, to use the Right's usual buzz words. For instance, a nod to "statists" or some put-down of "Science" (you know, Al Gore types). As to "demands tangible results to actual problems," the op-ed actually addressed that, even if one of the examples might be a trope. That is, something more symbol on some level than fact. But, tropes are used and a successful argument for the "Right" is likely to include one or more too. So, whatever works there w/i reason. I'm being a bit cynical, but yes, while pushing for solutions, flag possible bad ways to do things. Say there needs to be something done, and don't you want the "right people" to do it? Do nothing, and you know who will do it!

But, ultimately, you have to convince the Right that there is an actual problem worthy of some sort of real government regulation. Some here simply don't think so. Once you think there is a real problem, let's say crime or education, there is room to compromise and work on solutions. So, maybe vouchers will be part of the government's answer. The thing to do, I guess, is find some sort of entry level. Again, some use religion. Another path would be to suggest it is a way to attract certain types of future voters. This has influenced some to think immigration reform is necessary. Some, as some on the left already are doing, suggest there are free market advantages to addressing climate change. etc.

[end] I have read up on climate change some but don't claim expertise on the matter or the best approaches to address it, either scientifically or as policy. So, it is useful to read about the whole thing and try to understand as much as one can. Those in the comments, perhaps a tad overly cynical, suggesting "the Right" (apparently "Republicans" might not be members of it) are not really listening have a point. The concern that you have to speak about it to them in the right way is correct. But, it is not as much as talking about "statists" or something. It is ultimately about convincing Republicans that there is a reason, pragmatic or otherwise, to do something in the first place.  And, the result will be imperfect.

Prof. Adler, however, continually taking selective potshots at PPACA, including how it was passed without a planned conference effort to iron out difficulties, makes me doubt his awareness of the big picture. The posts never really address the reason why Congress acted as it did there. The Republicans, with the unfortunate addition of Scott Brown, blocked any ability to pass a new amended bill! And, he here takes a potshot at one of the op-ed writers for opposing Scott Brown in lieu of Elizabeth Warren.  Why are old-time Republicans supporting such people?

Adler is ideologically opposed to PPACA, but here is more sympathetic to the ultimate cause. Fine. But, the big picture is on some level the same.  The procedural and ideological roadblocks of the Republicans (and others, to be fair and complete), not merely arguing the case the wrong way, must be addressed.

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* A shorter response in the comments addressed someone who (assuring us that s/he accepts the mainstream position that climate change is happening) thinks there is so much "political capital" invested in defending it that if evidence arises the other way (mind you s/he doesn't think there is), the scientists will not accept it.

The concern is ironic, since without partial blinders, it doesn't make much sense. The scientists already put their work on display, skeptics and others who or whatever reason support them (see also, tobacco companies) will be there and there surely won't ALL not honestly and ethically examine new evidence on global warning.

It also was pointed out the attacks are seen as attacks on science itself. This is true on some level -- it arises in any number of contexts and has some degree of merit in many of them -- but overall, you have to rely on the things noted to be safeguards. Only something of a conspiracy theory approach really works here unless there (not present here) is some reason to fear significant information is blocked or hidden by some small group.

Pioneering civil rights attorney Julius Chambers dies

A civil rights hero, who lived the history and fought to point it in the right direction. He was from North Carolina and worried about new restrictive voting laws. The fight continues and his style -- quiet, smart, powerful -- is an important means to address it.

Mets v. KC etc.

Mets split two trudges vs. the KC Royals thus far -- you know, their usual rivals. In both games, KC pitchers got a hit, one key to a three run inning. Chen did pitch in the NL, but still. The relievers got 18 of 19 out today. The one the winning run in the 12th. Oh well. Meanwhile, can A-Rod go away? Some, apparently seriously, say he is being mistreated by MLB. Sorry, not buying it. MLB aren't saints, but of the two ...

August Doldrums

So goes the Mets. Their closer's neck hurts and he has been out for a few days. Their All Star 3B got hurt racing for first, hurting his achy hammy, the throw airmailed anyhow. Led to their young newbie starter, Zack Wheeler pinch running. It was bound to happen eventually with the team struggling for runs, every base counting, but the immediate cause was a blown save by their fill-in closer. Another reliever is out for the year, probably.

Criminal Justice Quickies

Another article about states running low on execution drugs. I think some solution will be found for Texas at least. Others states might let it go; Texas likes executing people too much to not manage a means to get in their quota. "federalist" here really lets go against the California prison order. Such venom is a wonder to behold. Have been a victim of it, but apparently, down to an octogenarian Supreme Court journalist, I'm in good company.

Supreme Court Watch

Couple notable orders, prisons and adoption.

Imperfection is a feature, not a bug

Were the drivers involved in these cases, to one degree or another, knuckleheads? Absolutely. (I include myself.) However, the world is full of knuckleheads, and if fixing mistaken directions can save them from themselves, it seems incumbent on the navigation companies to fix them.

Exactly. Any system has to take into consideration humans are human, including per a recent debate I had, the idea that the pope can be totally infallible about anything.

In the Family

Birth, genetics, who looks like or acts like whom doesn't matter. A family is a group of individuals who love, hate, trust, question, need, console, and depend on one another as they grow and mature and learn how to give a little more, take a little less ... all in the same environment, whatever or wherever it may be.

-- "The Lives Behind The Lines ..." [Lynn Johnson]

The ABC Family show The Fosters, as does the network as a whole in a fashion (Gilmore Girls was an earlier show a "family friendly" group, usually a code word for conservative, supported*), suggests the breadth of the term "family." It involves a lesbian couple with the biological son of one, two twins they adopted and the two foster kids they recently took in. The drama includes the father of the teenage son and recently his grandfather.  It is rightly getting kudos as a gem of the season.

The title film is basically about something a 1970s Supreme Court ruling about an extended family reminded us not to do -- "close our eyes to the basic reasons why certain rights associated with the family have been accorded shelter."  It was suggested to me by a reader some time back, but it has recently been available on DVD (had a short run locally, but missed it), so checked it out.  First time the DVD did not only have two discs (extras basically discussing the style of the film and its creation) but an oversized pamphlet that didn't fit in the case of essays by others. 

Very good film, the talent underlined by the fact the star ("Joey," which has a backstory to it) also wrote and directed.  It is amazing what goes into even the crappiest film out there, so a 169 minute effort like this is on another level even without it being so good. I admit to not watching it straight thru -- short attention span with the Internet and all -- but was never bored or anything. The film has a set pace, in effect as low key (if "low key" had a picture next to it, this guy would show up) as the main character. Little music and no montages that I can recall -- we get a feel of the characters raising from watching them have breakfast [the very title of another film on a related subject] and similar things.  Lot of quiet empathy.

The film not only underlines the complexity of family (the lead himself was the product of a foster home, he adopted the name of the person who became his dad), but of sexuality. The lead is a contractor of sorts and met his partner while working on the house of his and his wife (pregnant at the time). The wife dies and he is there to help the guy thru his pain and somehow something happens and they become a couple.  It occurs the other way too, of course -- a person running for mayor of NYC (you know, other than the jerk) is married to someone who at the time considered herself a lesbian.  Sexuality is not black/white, fitting here too since this is also an interracial romance -- Asian and white -- in Tennessee yet.

The sense of place (strangely, the credits has it being filmed in NY! did I read that right?!)  is important to the film, since it adds flavor to the process. An Asian with a Southern accent? Who knew such a thing occurred?  The film takes place in the early 2000s, so you think he would not have as hard of a time finding a lawyer after the aunt takes their son away (his partner died in a car crash, but never re-wrote his will, since people don't expect to die in car crashes). I would note that the scene felt like it might have been a mistake -- the way it happens makes her look like a total, I'll be crude, bitch. We don't see it, but it must have been very traumatic for the six year old son.  There was other ways to go that would still be pretty bad without a glorified form of kidnapping. You can understand why it was done that way, but it felt off when it occurred, dramatically so.  I guess there is more than one way to read the situation.

Anyway, check out the film to see a powerful (and heartbreaking at times) story and act of film-making. The top link can get you some background.  Lots to like, including his comment, amazed, that anyone would doubt he was the kid's dad. The supporting cast, mainly (I recognized one person in a small role) non-big names, were also excellent, especially the person playing the young son.  The guy who eventually becomes his lawyer also has a plum role and some plum dialogue. I can see the person who recommended this film saying something like he did. Thanks for the heads up.  Oh, since I know a couple, the scene in the classroom is great too.

ETA: The lawyer's little speech to Joey is a key moment in the film and an excerpt is even used in the trailer. The scene is excellent for various reasons, including how Joey is shot with a focus on the expression on Joey's face as he listens. It is a highlight of movie-making.

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* The show had some conservative aspects, which on some level should not surprise, since it is about a teen that not only had her baby, but who became a major success story through hard work and continued to pine for the father of the child.  I liked the story a lot in its early years, but in time, did feel it cheated the audience. And, the slut shaming of Paris really rankled. The character also became something of a caricature though overall that happened to others as well, including at times the leads.

Ariel Castro

Some people lack a certain amount of humanity, including those some might call "monsters," particularly sociopaths. Some seem poster children for the death penalty, but it won't only apply to the "no doubt cases." And, including when there is no death, there is a basic moral [comment] and legal rule. One even those whose life is to protect children have supported. Dissent is apparent and understandable. Glad he pled and we avoided the specter of a trial.

Rizzoli & Isles

AfterEllen loves this show for its lesbian subtext and TV Tropes notes various things about it can let people look past the writing. Yes. TNT is filled with mystery shows mostly about characters ("characters welcome" doesn't only apply to USA), just too much to expect the scripts to be consistently good. Monday's episode was though, the mystery's wrap-up still a bit lame. Surrounding parts done well, Rizzoli a bit less annoying than usual.

The Girl

A good film concerning a desperate young Texan mother who loses her child to foster care and tries smuggling Mexicans across the border, but it goes tragically wrong, and she has to deal with a young girl who lost her mother. "Making of" segment narrated by director. From the producers of the also very good Maria Full of Grace. Abbie Cornish (an Australian actress sounding quite Texan, speaking Spanish too) is excellent in the lead.