SSM New Jersey (Pretty Much)

The NJ Supreme Court somewhat dubiously held civil unions were equal enough, but with Windsor bringing forth federal marriage benefits, it was on weaker ground. The legislature would have likely passed a SSM law by now without Gov. Christie using it conservative political football.  Everyone should just deal with the likely futility of further fighting here.

Kiss Me First

The idea of examining life in the world of the web, including created identities, is an intriguing one for fiction and the book here has some amusing (intentional?) satirical touches. The lead character is a bit much, not very pleasant either. Not that the somewhat exaggerated comments on the book jacket are quite right (e.g., making it sound like a scary thriller; the cover image is curious too). Overall, too long and in the end not very satisfying.

Persons Day

The five women then appealed to the Judicial Committee of the Privy Council in London, which as a vestige of empire served until 1949 as Canada’s court of last result. There the outcome was different. A newly appointed Lord Chancellor, John Sankey, rejected the originalist approach. It was wrong, he wrote in the 1929 decision, “to apply rigidly to Canada of today the decisions and the reasons therefor which commended themselves, probably rightly, to those who had to apply the law in different circumstances, in different centuries, to countries in different stages of development.” Driving the point home, Lord Sankey went on to say: “The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits.” Women, the court concluded, were indeed persons. Soon enough, they were senators as well.

This is from an interesting Linda Greenhouse piece on "Persons Day" (10/18) in Canada, which honors a ruling that determined that women were "persons" for purposes of  eligibility to serve in the Canadian Senate.*  It can also be -- as Linda Greenhouse clearly means to do -- seen as as honoring living constitutionalism.  Scalia v. Kennedy is discussed here, but as the piece suggests, Scalia's brand of "originalism" (see, e.g., Shelby) leaves a lot to be desired even if we take it as a credible approach.

Repeatedly, I have seen this being sneered at (up to Justice Scalia) as akin to making shit up.  But, what I and others have called a type of "common law" constitutionalism to me honors not only overall republican / democratic values, but the true spirit of the founders. As Chief Justice Marshall noted, if for the purposes of determining the contours of the "necessary" and "proper" means of carrying out congressional powers:

Constitution intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs. To have prescribed the means by which Government should, in all future time, execute its powers would have been to change entirely the character of the instrument and give it the properties of a legal code. It would have been an unwise attempt to provide by immutable rules for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur.

Yes, the Constitution is "living" -- it "endures."  Why wouldn't it? If we look at how it actually was crafted, play in the joints was the very point:

In the draught of a fundamental constitution, two things deserve attention:

    1. To insert essential principles only; lest the operations of government should be clogged by rendering those provisions permanent and unalterable, which ought to be accommodated to times and events: and

        2. To use simple and precise language, and general propositions, according to the example of the constitutions of the several states.

Just what "interstate commerce" entails or "equal protection" would be a matter of fact and analysis that is determined by current understandings based on the wisdom gained from experience. The application will be done by the various institutions set up or referenced by the document -- the three branches of the federal government, the states, the people, the press, religious groups and so forth.  They will in some fashion be limited by those "essential principles" and "general propositions," but just what they mean -- the individual branches of the tree -- is not set. When the document makers wanted to remove such a thing, they used more specific language, such as the age required to be a President or senator. This doesn't answer specifically how the courts should operate, such as when to determine popularly passed laws should be declared unconstitutional.

The basic principle, even when applied in a system where parliamentary supremacy gives more complete power to the legislature (and thus if anything might warrant more judicial restraint, given legislatures can "update" as necessary), is shown here as being of long standing. A ruling in the 1920s is just one sign of many that the approach is not some latter day means to "make shit up" but to faithfully apply the law.

---

*  One issue here was the common law principle in place at the time that held "women were eligible for pains and penalties, but not rights and privileges." The inequity of this can be seen and it also influenced the women's right movement in this country. Citizenship brings with it both duties and benefits, equal rights feminism respecting both.

Strip Club Denied Again

Stephen Colbert had a segment regarding applying an artistic tax exemption to exotic dancing, which turned out to be a close question.  The USSC denied review.

Dodgers and Detroit Win

With Kershaw, even down 3-2, Dodgers have a shot to take this the distance. Detroit held serve or something. Mariano Rivera was on Charlie Rose!

Hey, Losers?

Can you stop screwing with the country for your performance art shit? Thank you. And, screw you to all their enablers while others have to play adults, who, both parties aren't the same # whatever, seem mostly to be Democrats. We need a better second party.

Rev. Joe -- Russell's teapot

Passed upon this just now. Not claiming either is alone is enough to make the case, imho "Why I Am Not A Christian" convinced me more than C.S. Lewis' "Mere Christianity," which to me was poorly argued and a bit of a trudge. Update: To give Lewis a second chance, reserved his book on grief and "The Great Divorce" one. Not into Narnia.

Red Sox Win 1-0, Up 2-1

Lost 1-0 and came back late via a grand slam to win ... this round is about pitching.

Schuette v. Coalition to Defend Affirmative Action

A voice from the past, one Beverly Mann, was cited in the SCOTUSBlog round-up today with an analysis on how consistency (without hobgoblins?) will require upholding a lower court ruling that struck down an measure that inhibits certain types of affirmative action. We shall see, especially with Mr. "guarantee equality to all people" Scalia. [My view.]

Still ... Jets Won (Well, in Hockey)

NY Daily News coverage has a basic "Geno Smith messes up" theme, but sounds like only one mistake was blatant and the end result probably could have been just a less lopsided loss. A 19-16 affair would look nicer, but it still would be a loss. A mistake-free outing might have done it. Didn't happen. Disappointing, especially after a good end of the First Half.

"The Liberty of Free Men"

And Also: A "don't get too big for your britches, boy" (no racist overtone) game/loss for the Jets. One earned run in two games last night. Cards, ugh, up 2-0. Ugh to Boston too.

Finally, the record of the past in which all battles are decided and many pains forgotten whereas the most distinguished characters, actions, and works stand out more clearly and in a more final form than they did in their own time, may lull us into a false security and indolence in view of the pains we have to suffer, the decisions we have to make, the actions we have to accomplish, without yet knowing the outcome.

— PAUL OSKAR KRISTELLER: The Classics and Renaissance Thought. [qtd. by Chafee]

Zechariah Chafee, who we saw in a recent book on Justice Holmes' Abrams dissent, knew a bit about that.  He was a leading scholar/promoter of the liberal view of free speech in the age of repression back in Holmes' era and was still around when McCarthy came to town.  The quote introduces a collection that looks to the historical origins of constitutional rights, but with a bit less humility, it applies well to Chafee (related to the politicians and somewhat similarly of the old school New England Republican school of that name) himself. 

I have a book that collects Chafee's lectures on "three human rights in the Constitution" (legislative freedom of debate, barrier to bills of attainder and the freedom of movement (quoted in Kent v. Dulles; the whole thing is available in the above link) as well as a second boo, The Loyalty of Free Men for which he provides an introduction. This book is by Alan Barth, who in his time also had a reputation for promoting civil liberties, here -- in 1951 -- in effect dissenting from the McCarthy Era as it barely had begun as well a passing denunciation of the "basic stupidity" (or some such statement) of Japanese internment.

Great constitutional provisions must be administered with caution. Some play must be allowed for the joints of the machine, and it must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.

-- Justice Holmes

Prof. Chafee cites this early statement of a recurring theme of Holmes, but  even when judicial restraint is appropriate, he does so to remind us that "liberties and welfare" must be protected by "the people" and their representatives.  For instance, he argues that just because the Speech and Debate Clause provides broad discretion to legislators, even to say things that might be deemed slander elsewhere, this doesn't mean they should be left off the hook. Maybe, if we thought litigation was the only way to protect the rights of others. But, here Congress is given the power and responsibility of self-regulation -- including expulsion.

The ultimate responsibility of liberty comes in various forms, which is something to remember as one reads Barth's book, which provides a basic instruction book of freedom in a perilous time. Concern for loyalty campaigns, academic freedom, free expression of scientific and other things deemed sensitive, punishment by publicity and the perils of the growing power of the FBI (including surveillance*) has applications for today. Liberty and due process for Barth was not only essential for basic freedom, it had pragmatic value. So it was in 1951, so it is today.

I will now add some more discussion of Barth's book. One impressive chapter takes the time to fairly express the motivation of those who joined the Communist Party, being sure to  reaffirm the party proper is a bunch of reprobates and colleges would be within their rights to not hire (putting aside later questions of tenure or removal) communists since one has to be pretty misguided to seriously be part of such a party, at least after the 1930s. Also, especially by the time of the writing, the party is just too small in America to be a threat. It really is silly for let's say Hoover, who is deemed a reasonable sought overall, to take at face value, e.g., their allegations that for every one party member, ten are in the wings. They in effect exaggerated their membership, especially with fellow travelers and such techniques as groups with most "names" merely on the letterhead. 

Still, especially given the state of affairs in the early 1930s and the ability of Russia to mislead regarding their own totalitarian tactics, it was understandable some joined the party. Various reasons were give, such as their social gatherings, personal guilty of some for their good fortune, moral confusion, the idealistic ends they supported (such as racial equality) and overall their basically religious revival nature. The party had a creed, code of conduct, ritual and even the priesthood of sorts of a church with the evangelistic drive of those that sought converts in early Christianity. The "crusading religion" theme is also reflected by the beliefs of some that going against the party was really an act of heresy.  Such an approach can also be applied to other political movements, down to the Tea Party. One need not support them to say this.

The historical distaste in English history of test oaths was an important theme and an argument made in response to oaths demanded after our own Civil War was cited.  One folksy example made concerned a Quaker who told his dog, Tray, that he would not kill his loyal friend. But, he did give the dog a bad name and let Tray go ... "somebody else did kill Tray." And, putting a person in prison or making something a crime is not the only way to punish. When one's livelihood, perhaps one's long career, is at risk because of rumor or bad words, is this not penal? Is this not as much of a deterrent at times then a criminal sentence?

An early use of Godwin's law, much closer to the Nazis, is also cited. The fact that the FBI is not the Gestapo, nor generally has a malevolent purpose does not mean its actions are wrong or problematic. Insert appropriate quote from Brandeis' Olmstead dissent.  Also, it is noted that cops generally are not seen as heroic figures -- seems a lawyer, newspaperman or other amateur solves the crimes in popular fiction. But, the FBI is somewhat of an exception here. Today, people often similarly distrust the police in various respects, except when they do not.

In the chapter on the importance of open discussion of matters of science, it is noted that the public needs to understand the basics to be informed about public policy questions. They need not be experts in nuclear physics here. The same general thing applies to other matters, so enough with the humble pie "I'm not a lawyer" preface.  Washington was not a lawyer.  Also, in respect to the use of the nuclear bomb (or even killing a burglar), the basic principle that even if a serious act is right or rational does not mean one will have no guilt about it, will not second guess. This is only human given the stakes. And, the hubris of the idea of a "preventive war," and the trivialization of potentially nuking a few Soviet cities was noted. Finally, balance was deemed necessary -- total openness of nuclear secrets is not demanded to not overdo the secrecy overall.** 

Chafee in his introduction says Barth's book is important for at least two reasons -- it is a "fresh and persuasive presentation of the strongest arguments for determined maintenance of freedom of thought in a self-governing country like ours."  Others have done that, but it's useful to provide it in the language of the current era, using immediate examples. Barth does this with various quotable statements and examples. Second, he "tells us what has been going on." He is a "sort of war correspondent," the war here on our civil liberties.  You know, like blogs today.

Chafee has a bit of that in the book cited too, if not quite as smooth in its prose.  One good line -- "History should be a jailer to enlighten us, not a jailer to shut us up."  The Constitution "is the skeleton of a living nation," the words "for meeting the needs of our time," even if the history (as his account shows) is useful to know and understand. To finish the metaphor: "All of the Constitution grows while the life of a great community changes."  A "living Constitution" is no epithet to him.

The "Americanists" of today, good intentions or no, who are disloyal to our basic values would not likely be a surprise to either of these two distinguished characters of our past.  "Political discussion has been debased ... by shrill" people today as well, the "accusations of disloyalty" of only somewhat different sorts -- we even have McCarthy's double in Ted Cruz.  This basic lack of maturity includes those who apparently think park closings are the most important aspect to the current governmental shutdown.  Current voices, latter day Barths and Chafees, provide some light, but they will do in a pinch as well.

And, a special thanks to libraries and used book sellers from which I can get such items, even the ability to download Chafee's book for me not a great alternative to having them in my hands.

---

* The book cites a 1930s federal law that limits the power to divulge information, even if obtained by governmental wiretap to investigate and prosecute crimes.  Given the actual text of the Fourth Amendment, it is suggested, if not stated crystal clearly, that wiretapping per se would be unreasonable. This seems unlikely today, but on principle it sounds sensible -- by nature, a wiretap is a "general warrant" that vacuums up everything, not very "particular" (to allude to the 4A) to what it picks up.

** The tendency of certain classified or otherwise secret material, including files on certain people deemed security risks in some fashion, to be leaked was also addressed. This was deemed unfortunate, but total openness here was not demanded. How the author would react to current data dumps such as Wikileaks or Snowden is an interesting question.

Touch

These days, with so many options, movies do not have the same flavor for me as in the past when going to cinema was a special weekly event. But, film still has its charms, including indies like this that are enjoyable character studies. Loses a bit late, but has a realistic sensual feel, including hints on how to re-ignite a marriage. Meanwhile, checked out Dan In Real Life again, interesting commentary. A bit too precious, but enjoyed the film overall.

Note the cover

VP's name dominates with the co-author in tiny font. Then, we have the title and a reference that alludes to a series just beginning.  The cover pic is a bit vague with a James Bond-like silhouette. Somewhat generic, like the book, which is I guess okay for its kind.

Happy Halloween! (After Another NYG Horror Show)

Usual case of early Halloween episodes. This one was okay.

Blowback

It seems to have taken a while, but Valerie Plame's spy thriller (co-written by a genre writer with a goal for a series) is now out. Light (so to speak given its plot), quick reading largely has its now celebrity author as a draw. On its own, somewhat bland with trite elements.

Sports Thursday

Verlander shined again; the As starter was human this time. Series: Tigers. Giants were driving late down by six and then yet another turnover. 0-6. This is sad.

Pirates Lose

Two shots at it, but the Cards are like a f-ing bad penny.

Anna Chlumsky is All Grown Up

While apparently the whole pitching staff took part in a Rays 3-1 loss, watching Veep on DVD -- the first four episodes each have two commentaries (Veep/crew & rest of cast). Repeats have been repeatedly on, but never manage to watch parts of these episodes. And, darn, I remember My Girl. How you have grown. Oh, Tigers won a run-fest. Series tied.

"How Do Liberal Supporters of Citizens United Feel Now?"

Guess many deem me a "liberal," don't know if I'm a "supporter," but I warily at least thought the result was right in some respects. Still (as noted here) appreciate a clear understanding of what is at stake and don't think all campaign laws illicit (Kagan's dissent here seemed convincing). I'm unsure where I lie on this case. Meanwhile, remember Tom DeLay?

Supreme Court Begins -- Campaign Finance

This coverage underlines the difficulties of relying on school and work to provide health care. Talking about those at Jesuit institutions, the well named "Zephyr Teachout" is guest blogging, including about today's campaign finance case (various posts). She is informative and nicely is engaging with comments. Interesting on "corruption."