Pro Bowl (& Go Saints!)

Well, the AFC QB situation was a bit lame (Houston QB was good though) with stars sitting things out, but they won all the same. But, we had one more missed average length field goal in January.

Obama Question Time?

Though honestly I don't really want to watch an hour plus of the back & forth, Obama going up against the Republicans on television was impressive. Digby is right to be wary, but now he can say he tried. Seems like a net positive. Still, pass health care, damn it.

A question of power?

And Also: A convincing argument that war is not the ideal path to fighting terror. His replies in the comments, btw, are representative of his forceful but polite approach that makes him a pleasure to read.

One thing that is interesting here is the emphasis on corporations as "persons" versus the issue of governmental power overall. A case about a century ago suggests a possible difference. Ironically, given some opinions on the sentiments of the era, it noted:

In creating a corporation a state may withhold powers which may be exercised by and cannot be denied to an individual.

The dissent suggests, true or not, there are limits:

There is no magic in the fact of incorporation which will so transform the act of teaching the two races in the same school at the same time that such teaching can be deemed lawful when conducted by private individuals, but unlawful when conducted by the representatives of corporations.

Yes. The law in question, the one that limited corporations in particular, denied incorporation to those bodies that promoted the integration of the races. The Court later determined that when this inhibited sending a student to an incorporated religious school, it was unconstitutional in the case involved, an early security of the right to privacy:

But the injunctions here sought are not against the exercise of any proper power. Plaintiffs asked protection against arbitrary, unreasonable and unlawful interference with their patrons and the consequent destruction of their business and property.

Similarly, person or not, the state cannot selectively benefit certain types of corporations based on the religious messages of their ads. The government, pursuant to the 1st and 14th Amendments does not have the power to pass such laws. It might be determined that corporations are such that certain types of limits, including related to speech, are within the state's power. But, corporate personhood alone is not the test. Similarly, the limits to state power is in some fashion related to the effects on humans, as shown by the law banning incorporation of integrated schools.

And, as noted in the latter case:

Appellees are corporations, and therefore, it is said, they cannot claim for themselves the liberty which the Fourteenth Amendment guarantees. Accepted in the proper sense, this is true. But they have business and property for which they claim protection. These are threatened with destruction through the unwarranted compulsion which appellants are exercising over present and prospective patrons of their schools. And this court has gone very far to protect against loss threatened by such action.

[case citations omitted]

Someone is likely to have "standing" to hold the government account for passing a law that abridges the freedom of speech which is done by humans even here in some sense. People authorize Nike's speech, people listen to and learn something from it. People downloaded the video here. It can be argued that standing given to corporations here advance their interests as is done when some other advocacy corporation critics of the ruling often like is so given, including but not limited to media corporations. e.g., NAACP v. Patterson.

Even if the corporation is not a "person," it is possible the government does not have the power to inhibit the expression or other interest involved. If it does, corporate personhood alone isn't necessarily the deciding factor.

Will (Should?) the USSC Necessarily Take The Case?

William Eskridge Jr. wrote CASE FOR SAME SEX MARRIAGE: From Sexual Liberty to Civilized Commitment in 1996 and it has held up well over time. See, e.g., Same-Sex Marriage: The Legal and Psychological Evolution in America, by Donald Cantor et. al., which looks at it from various angles, including how marriage overall has developed in recent years. Thus, we are left with NY being the only state to my knowledge without a true "no fault" divorce law,* though first cousins (yeah Darwins!) could marry there. This development changed marriage writ large in ways much greater than same sex unions has where they all state sanctioned.

The case will go next to the U.S. Court of Appeals for the 9th Circuit. And if the voters don't moot it by repealing Proposition 8 in 2012, the last stop will probably be the Supreme Court.

If the appellate court upholds Prop 8, it is somewhat unlikely that the SC will accept the case. It very well might be possible that even if they strike it down that the SC will not take the case. This would include how the ruling is written.

After all, California already has a statewide domestic partnership law which protects most of the privileges of marriage. Thus, the "state interest" in having Prop 8 is weaker than some other state (including those in the Ninth Circuit) without that. The state legislature was open to a same sex marriage law and the CA SC held it was required under the state constitution. The possible "animus" of Prop 8, as compared to existing laws elsewhere provides a narrow construction.

And, the Supreme Court left in place preliminary protections of marriage rights and homosexuals in the past. The CA Supreme Court was twenty years ahead of Loving v. Virgina, resting on federal constitutional grounds:

Since the right to marry is the right to join in marriage with the person of one's choice, a statute that prohibits an individual from marrying a member of a race other than his own restricts the scope of his choice and thereby restricts his right to marry. It must therefore be determined whether the state can restrict that right on the basis of race alone without violating the equal protection of the laws clause of the United States Constitution.

Particularly if it rests on narrow grounds, which would probably be advisable (the ruling need not block further protections, just as narrow early free speech rulings left an opening for broader protections), the Supreme Court could feel it advisable to let things simmer before taking the case. Did it take a case when the lower court upheld an outlier law that completely banned same sex adoption?

OTOH, recent events suggest this is not something to rely too much on.

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* As the link suggests, NY's practices is troublesome in part because it is out of step "with modern views of marriage," which in effect burdens the basic right at stake.

Refusal of the NY Senate to pass a same sex marriage law [though out of state same sex couples, including those from Connecticut, are recognized ... notably out of state "civil unions" are not] is therefore not the only "right to marriage" issue the state needs to address.

Zinn Again

It might have been a "sad" moment to hear Howard Zinn died, but one must say he lived a long and productive life. Sometimes, "he died too young" doesn't quite fit. Cf. let's say this actress, who I saw twice recently. Instead, let's just honor him for providing such an important voice of dissent and education. And, continue his mission.

Alito's "You Lie" Moment

Various reactions to Alito's facial displeasure at Obama's remarks. Rep. Joe Wilson's "you lie" was exaggarated and this probably has been too, if perhaps somewhat less so. Maybe, the timing of the ruling made a visit by the justices there a problem waiting to happen.

Howard Zinn R.I.P.

Zinn was a great activist, teacher and person. Declarations of Independence is a good introduction to his views. Still, this criticism of his most well known work is on point.

Aimée & Jaguar

And Also: The second episode of Life Unexpected had a few predictable moments, but the main characters did not wear out their welcome quite yet! Being Erica is back as well, but I will see the first two episodes over the weekend, probably.

I will love you beyond measure
Be true to you unconditionally
attend to order and cleanliness,
work hard for you and the children and myself,
be frugal, when it is called for,
generous in all things,
trust you!
What is mine shall be yours,
I will always be there for you

-- Elisabeth Wust, née Kappler

Aimée & Jaguar by Erica Fischer is something of a remarkable account. I recently watched the film adaption, which changed some details for dramatic license, but held the core of the basic story:

The film explores the lives of the characters Felice Schragenheim (Maria Schrader), a Jewish woman who assumed a false name and who belongs to an underground organization, and Lilly Wust (Juliane Köhler), a married mother of four children, unsatisfied with her husband (a German soldier).

The book clarifies how things actually occurred (e.g., the divorce between Lilly and her husband occurred differently), provided a bio for Felice and discussed what happened after Felice was captured. This latter matter provided an interesting (among other things) account of regularity in the midst of craziness. As Felice was taken various places before her (unrecorded) final days, Lilly was at first able to visit and contact her. We even read brief messages that survived a few months later when Felice was in a concentration camp. And, some of Lilly's diary entries from that time. This is take a bit far at points, but it is a good device overall.

The basic story is a lesbian love story, but it also is a window into another time. The charm is that we have a lot of writings (as well as some remarks of survivors, including Jews who hid in Berlin and so forth) from that time, particularly a lot of poetry from Felice (the book was originally in German though the poetry translates well into English) and writings between the two lovers. As noted in a brief epilogue from the author, there is some holes from the perspective of Lilly (Aimee was a pet name given by Felice from a play, and it means "beloved"). For instance, we have a detailed background of Felice's upbringing, but very little on Lilly.*

[The opening excerpt is from vows of sorts they traded as a sort of marriage contract.]

The movie was somewhat more hazy about certain details but provided a great sense of place (one where the usual rules were not in place) and dramatic energy. Or something. Seriously, it was very good, the two leads particularly making it work. Juliane Köhler (Lilly; one photo in particular does remind me of her) later played a Jew fleeing from Germany in the Academy Award winner Nowhere in Africa (they emigrated there) and later as Eva Braun in Downfall. Since she was alive when the book was written, we know more about her, but Maria Schrader (various German roles I'm not familiar with) as Jaguar (as in the animal, her pet name) is somewhat more the focus in the film.

We know about the events before and after from various accounts, but Anne Frank is generally known for the events in her diary. A couple years of an already short life is what most people think about. As with the Civil War in the lives of others, a few years also comes off as the true time for these two. Life was pretty sad for Lilly after Felice was arrested, particularly after the war. Besides a short, unhappy, marriage, apparently she did not express her lesbian side again. But, many a love story is about a short period of bliss, if during truly scary times.

So is this. [Jaguar & Aimee]




* I'm not quite sure why -- yes, Lilly might not have wanted to share, but various things were in the public record. Thus, a chapter on her youth could have been done, probably, but the epilogue suggests the author (Jewish herself and born in 1943 of a mother who grew up in Poland) was less interested in digging that up. But, with a half-Jewish (!) brother and such, it surely would have added to the account. The book is however is generally neutral in tone.

A bit of balance ...

Not quite a support, but this is a more balanced Slate piece on just exactly what the ruling did. A bit too much hyperbole on that front. Good bit on how the "meaning" of the First Amendment changes with court personnel. My take. Next up: guns!

Creation

As the NYT noted: the "film traffics in the pseudo-psychological mumbo-jumbo that is the standard folk religion of the film biography, and undermines its interest in reason by dabbling in emotive pop occultism." The lead and some set pieces are pretty good.

Haiti ... beyond one disaster

Straight Dope, the trivia column, of all places does more than many to address not only the story behind one stupid Pat Robertson comment, but the structural problems behind the problems in Haiti. "An earthquake of comparable intensity in northern California in 1989 killed 63 people, compared to more than 150,000 in Haiti."

Saints Come Marching In

Well, in a game that went to OT (where three booth reviews and a questionable penalty all went for the Saints), the Saints did win. As with the last championship game (this time in warmer but less friendly environs), the Old Man coughed it up at key moments. Without him, the Jets went pretty far. To the future!

52 YD Attempt with Lead Early 3rd?

Really?! Miss/short field/TD/lead. Stupid move, Rex! [And, it went downhill from there. Expected more out of this game. Damn.]

Sports Quickie

Gary Matthews Jr. is a reasonable insurance policy, giving fans Mets fans something to be happy about. But, if this is so, why not just get rid of him?! CYA? Saints should win. Jets can. Nail biting likely.

Roe Turns 37

And Also: The search for Juliet in last night's hour long Wizards of Waverly Place was brief as compared to the somber (tragic even) tones of the plot. The actors overall carried it off though it does clash with the more easy going usual flavor of the show. Wonder how far they will take it.

This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.

-- Roe v. Wade

The recent excitement has, like LBJ's death originally, made yesterday's anniversary of Roe v. Wade a sideshow of sorts.  But, its security of privacy, particularly as practiced by certain groups with special burdens (be it women or homosexuals or whomever), is followed in spirit by the Prop 8 battle that continues onward.* Thus, equality and liberty, including the liberty to make certain intimate choices that touch upon matters of fundamental importance including one's very health and lives, join together as one to the current day. 

As conservative Justice Harlan noted a decade earlier, "the State is asserting the right to enforce its moral judgment by intruding upon the most intimate details" in a "matter [regarded] for the conscience of the individual and her family" (to quote Roe).  As Samuel Adams, the patriot that pushed for our independence once noted:

Driven from every corner of the earth, freedom of thought and the right of private judgment in matters of conscience direct their course to this happy country for their last asylum.

And, as Roe itself said (some who ridicule it might want to read it more closely**), this includes greatly debated questions that divide us, including the place of embryonic and fetal life. Such great matters of religious debate are questions left in many ways to the conscience of each person.  This is not only good policy, but follows the words and spirit of the Constitution.  Again, it is particularly important when the alternative, in ways that often are counterproductive to the alleged justifications (see the result of abortion bans in Latin America), burdens certain groups.

But, focus on a particular ruling is too limiting. The spirit of Roe is secured in private and public life in a myriad of ways, while the threats to it often arise there as well.  Those against abortion realize the importance of such realms as well, realizing that reduction of abortion often is not a matter of banning it, but dealing with the reasons that lead to abortions.  Ironically, this at times promotes the basic sentiments of the ruling in the process. 

Happy birthday and keep well.

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* As discussed on the latest episode here, one thing a viewer of the trial could have seen was a local politician emotionally discuss his changing his mind on voting against a measure to support same sex marriage.

He also firmly noted that be against same sex marriage is "prejudice," even it might not make you a simple "bigot."  Such a personal account means more than words on a page, particularly when many are more likely to watch than searching for them in some dry transcript.

** It is quite open to some criticism even though the concurrences and later cases added more flesh to the reasoning. For instance, the quoted paragraph is basically the core analysis of why the right to privacy applies to this specific context. It is somewhat lacking.

But, other aspects, including why "person" doesn't apply to embryos and so forth is less so. In fact, though shall we say sometimes in embryonic form, there is a lot of good stuff there. If we focused on thin opinions alone, any number would be open to scorn.

Value of Open Courtrooms

And Also: The ultimate result of the Edwards matter is pretty pathetic. I voted for the guy but knew at the time that it was at best a protest vote. But, what a stupid ass. And, yes, not the best veep candidate. OTOH, Dean has shown himself a worthy candidate.

The Supreme Court blocked a feed to a few more courthouses and thus one to the general public is currently out too. So, we are left with secondhand accounts, such as here.

Video reports appeal to some more than reading extended transcripts, particularly transcripts that are actually at times summaries of what occurs. Video can also be more democratic -- some might not be as comfortable with extended transcripts, finding video easier to understand or relate to. This is useful to recall even if you or I may not be a member of this group. Reading is fundamental, but video is educational as well.

People can also dismiss the live blogging as the work of biased pro-same sex marriage sorts or otherwise erroneous. The "MSM" often is also dismissed as biased and/or incompetent. Coverage will be incomplete (as live blogging of the Sotomayor hearings tended to be). When such an error is cited or something is left out, being about to directly download the video of the trial can be used to judge things for oneself, including things that rest on viewing the demeanor of witnesses or others involved and so forth.

Viewing the trial also would deal with live people, making it harder to stereotype or ignore the personal on both sides. This is true even regarding questions we all are tired hearing about. "Oh, well, yes, that [fill in blank] sort seemed reasonable. I mean other [fill in blank] faceless people on the other side." Certain issues that are very personal and sensitive are hard to reasonably handle. Facing real people changes things in various cases.

Though many here speak from direct experience, including involving themselves and loved ones, it also amounts to a lot of faceless philosophizing. Having seen Bazelon and Lithwick [Slate commentators] on television speak their mind (or even listening to audio of them) alone matters to me and others, if in a small way. When dealing with same sex couples or Prop 8 supporters, it would even more so. Video reports of the Haitian disaster underlines this.

The coverage is helpful. But, direct video would be more so, even if it also brings negatives. How much? Hard to quantify. Enough to matter, probably.

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* I added:

Bottom line, video helps the function of public trials, expanding the role in the process beyond media gatekeepers, even if the latter group includes bloggers. Online video has an educational and oversight function in any number of cases, as its use on political blogs show, and can in respect to trials too.

Some are not comfortable with this role, but the fears tend to address issues that would arise anyway, such as outing witnesses whose names and faces are in no way secret or the expansion of the noise of cranks. This must be weighed against the positives as well.

I might have referenced this before, but this was originally posted on the Slate fray and I wanted to post it here as well.

Freedom For The Thought We Hate: A Biography of the First Amendment

Not the best of titles (not much about religious freedom here and it is not just about stuff we "hate"), but Anthony Lewis provides a good introduction for the general reader. Most interesting is his acceptance of limits, including to respect privacy, and rejecting too much special favoritism of the press. A few factual slip-ups though.

Citizens United

And Also: Meanwhile, this (Gitmo suicides) underlines what happens when you don't have a full airing out set of investigations. I want prosecutions, but a Truth Commission is the least we can do.

[And Also: The overheated replies to this ruling, including the assumption this will mostly benefit Republicans (the union limits ignored in the process), annoy me. Glenn Greenwald, who has no love lost to corporate control and so forth, provides a more sane reply today.]

He brought this civil libel action against the four individual petitioners, who are Negroes and Alabama clergymen, and against petitioner the New York Times Company, a New York corporation which publishes the New York Times, a daily newspaper.

-- NYT v. Sullivan

This great moment of First Amendment jurisprudence ultimately concerned written material which led to liability to five persons -- four humans and one artificial person aka a media corporation. At no point did the Court suggest that the protections involved depended on who brought the suit. Or that corporations have the same rights as you and I. Even in respect to First Amendment matters. So, why should today's ruling against the FCC be understood differently?

Some point to the hypocrisy. Suddenly, judicial restraint goes out the window (Roberts' concurrence), and we should bluntly rely on the text (see Scalia's concurrence) over specific original understanding (after all, things have changed since then). The apparent basic principle that protects corporations here as much as non-corporations was not really honored well in the past. "Plausible" narrower alternatives that would not make new law in the face of complex factual questions are available. Corporations corrupt the process (many links).

Fine. The concurring opinions can be used to show why the federal courts should rely on text to overturn Prop 8. I'll call them on it, if they reject it based on false claims of restraint. The experts in the field have a good point that at worse (best?) they should have remanded it in June before deciding it without a factual record dealing with exactly what they planned to do. Free speech should be honored consistently, though Kennedy (the author here) does this more than others.

And, money does "corrupt" the process, but money will always be there. It is a cost of the First Amendment, one that can be addressed in other ways. Some include: the limits (disclosure/disclaimer) upheld here, public financing, free ad time, grants to nonprofits that can be used to promote their causes during election times, and so forth. Finally, even Scalia points out that corporations can be limited to their charters. This can include what they donate money to promote.

But, who is President affects the bottom line, even if anti-abortion campaigns might not. The way they went about it is open to criticism, but the bottom line of today's ruling is less so. A lot of talking past each other, aided by who wrote the lead opinion (the need for concurrences largely based on Kennedy's penchant to not answer dissenting points) and dissent (written by an outlier here, Breyer and company not going as far as Stevens did in the past), notwithstanding.

I talk more about the rulings over at the Slate fray.

A bit of perspective?

If this election was such a national referendum of health care and how Democrats are understood overall, maybe I should have had a chance to vote. OTOH, maybe it was a single special election with a bad candidate losing? That is, get a f-ing grip.

Give Me A Break

Democratic President. Significant majorities in both houses. Long drawn out negotiations to pass reform struggled for generations. Opponents who are tools. It all rests on the 60th vote. Oh, fuck you. Will they ever learn? Precedent is not overly promising.