Little Known Constitutional Provision Alert

Debt ceilings are issues for both individuals and the nation these days and as Jack Balkin and others note, paying OUR debts has constitutional significance.  We went down a somewhat similar road with Social Security a few years back.  What's next, the 3A?

No Justice: Token "Looking Back" Edition

This is pretty pathetic. More so that it is more than you expected.

Mets: Ruining the Buzz Edition

 

They also clinched a series win and, at 41-39, rose to two games above .500 for the first time since April 5. This is a team that was not expected to contend, and is still not contending - but it is playing respectably, and enjoying the moment.

What does this modest success mean, and how far will it take this team? It is useful to remember that, exactly one year before Wednesday night's game, the Jerry Manuel Mets were 43-34, and that record did not even represent their peak. They finished the year 79-83, lousy enough to cost the manager and general manager their jobs.

Our point? These Mets have not proven anything yet.

See here and here.  Yeah, okay.  Still, enjoy the moment. 

A Bit of History ...

Who needs time machines when you have books?  Once read Mr. Justice (edited by Allison Dunham and Philip Kurland, both men), a collection of mini-biographies of justices that included a chapter by one Mr. (sic) John Paul Stevens. The edition was published before he was even a federal judge, the library copy so old that it had an old address for the Mid-Manhattan library.  The book had accounts of justices from Marshall to Rutledge (Stevens was his clerk).

I recently also re-read a book, Justice William Johnson: The First Dissenter written a bit earlier than that.  The book is a bit of a trudge at times, but overall, it is an interesting account (focused largely on his career, his family basically disappearing after they came on the scene) of a largely unknown moderate Republican voice on the Marshall Court.  He had a restrained view of judicial power, but also accepted the basic lines of Marshall's view on the Commerce Power.  So much that when a state law infringed upon it (and the treaty power), he strongly rejected it, even it was a law involving black sailors coming from his own state of South Carolina.  He also rejected what he felt was hysteria over slave uprisings in other areas, including cutting back on due process rights.  I wrote the below early in the Bush Presidency.

A bit of history ....

Background: The slavery question was beginning to cause major excitement, especially after the Missouri Compromise.  A planned slave uprising was recently put down, and Charleston, SC strongly dealt with those accused, using special judicial proceedings ... but note even slaves in the heart of the slave South had judicial proceedings, if with limited rights.  Supreme Court Justice William Johnson (a South Carolina slave owner) was upset, since basic rights such as being able to confront one's accusers and seeing the evidence against you were not being protected.  As the proceedings went on, he publicly used an apparent earlier miscarriage of justice involving a slave to serve as a warning.  His fellow citizens were not pleased.  Thus, his sad words to Thomas Jefferson about a year later:

"I ... begin to to feel lonely among the men of the present day. And I am sorry to tell you, particularly so in this place. This last summer has furnished but too much cause for shame and anguish.  I have lived to see what I really never believed it possible I could see, --- courts held with closed doors, and mean dying by scores who had never seen the faces nor heard the voices of their accusers.  I see that your governor has noticed the alarm of insurrection which prevailed ... the best way in the world to make them [the people] tractable is to frighten them to death; and to magnify danger is to magnify the claims of those who arrest it .... strangers are alarmed at coming near us; our slaves rendered uneasy; the confidence between us and our domestics destroyed."

"[T]he governor ... consulted the attorney general on the legality of their proceedings, and you will be astonished to hear that he gave a direct opinion in favour of it. If such be the law of this country, this shall not long be my country."

The governor was concerned abuses occurred, and made such concerns official:

"The rules which universally obtain among civilized nations, in the judicial investigation of crime, are not merely hypothetical, or simply matter of opinion, but the result of the highest intelligence, instructed and matured by experience. They are given as guides, to assist the imperfections of human reason, and to enable it to combine and compare the various circumstances and probabilities, which occur in every case. Few minds are competent without these aids, to develop intricate affections of the heart."

But the state legislature was not pleased, and tabled the move to officially accept his statements. Instead, the state moved slowly toward their extreme defense of slavery, including harsh treatment of black (negro) citizens, such as trying to block entry of black seamen.  Of course, later there was a move to declare that all former slaves could never become citizens.  Congress also passed a law allowing alleged fugitive slaves to be returned to slavery without basic constitutional rights of "persons" (including some who might actually be free and therefore "innocent") put in place. Likewise, whites were harmed, such as not being able to receive certain literature or even to free slaves when they desired to do so.

Currently, another "major excitement" has led to serious threats to basic liberties, and another disfavored group are the primary victims, though in the process everyone is hurt. This includes the distrust and fear (and concurrent ire and desire to strike back) between us and those that are being victimized.  Finally, we are again left with a choice: respect our basic constitutional liberties, in place because of their value in obtaining our true happiness, or continue on a road of oppression toward total disharmony. Remember also, that things didn't look that bleak overall in the 1820s, but that didn't mean the seeds of future horrors were not being sowed.  

Legal Tidbits

After a break, the often interesting Findlaw commentary essays are back.  Another appeals court upheld the PPACA, conservative darling Judge Sutton concurring.  His dubious "not a tax" discussion suggests problems, but this is a big win for supporters.  Inactivity, huh?

Scarecrow and Mrs. King

Watching the various episodes of S1. Well done overall, though too many killings for what amounts to light entertainment. I love Kate Jackson's voice.  I thought it was geared to the calm somewhat befuddled suburban mom here, but she sounded the same elsewhere.

Supreme Court Watch

Final rulings.

I think Citizens United was okay, but today's campaign finance ruling was much more hinky. Kagan's voice comes out in dissent. "Except in a world gone topsy-turvy, additional campaign speech and electoral competition is not a First Amendment injury." I'm tired of simplistic statements of what CU stands for, but whatever this opinion means (and it will lead to more confusion in determining what public financing laws are okay) leads me to think that the critics have some degree of truth in their scorn.  Not that I find it pleasing that each side is spitting at each other. 

It was apparent that a California law that banned the sale of certain types of violent video games being sold to minors would fail, the only question is how badly. Interesting result. Scalia led the way, Alito/Roberts rested more on vagueness, Thomas dissented on his understanding of original understanding's limited protection of minors and Breyer on his pragmatic view that this wasn't too much of a limitation on freedom of speech. The statement that free speech is "principally to protect discourse on public matters" troubles me if it has any bite, but the idea children on their own have First Amendment (and others?) interests me.

Two other rulings, one unanimous (doesn't look that notable), one split various ways with Ginsburg (according to Scotusblog) orally dissenting, suggesting it is of some importance. It concerns personal jurisdiction, which can be important given it determines who gets to go to court, but Breyer/Alito's concurrence also limited the reach of the opinion. The Supreme Court also accepted more cases (such as concerning GPS) and Scalia had a chance to show some spleen in a dissent there. Not that big of a final day, really.

The Supreme Court goes on break and I wait a few months for my annual Cato Supreme Court volume.

"Republican Controlled Senate"

Yes, the NY Senate is split 32-30, Republican. The pro-SSM vote split 29-4. So, let's have a tad bit of perspective here. The old Senate was as evenly split, the balance a handful of conservative Democrats.

Not Cool Blogger Of the Day

Really, David, you are not really leading me to want to read your book. "Joe" responds (masochist tendencies seen in past posts too) here.

Cool Blogger of the Day: Jen McCreight

Boobquake originator and all around charming friendly atheist JM talked about dealing with a condition known as "dermatillomania." She wanted to inform regular readers where she was and also:

Mental health has a lot of stigma attached to it because people are so embarrassed to admit anything is wrong. And frankly, it's silly. We don't tease or shame people for having bronchitis or cystic fibrosis or other physical ailments. And hell, mental health is still physical - the brain is an organ, not some disembodied spiritual puppet master. If we don't mock people for being deficient in insulin, we shouldn't mock them for being deficient in serotonin.

See also, here. Right you are, Jen, and cheers for promoting good sense again. Talking about good sense, she inserts a video as well about how not to behave around women. Common sense. Often neither. That's why we need people like JM here. Right?

Most Charming Glass Eyed Actor Dies

Oh, there's just one more thing...

Memories.

Change Is Possible

Significant and seemingly impossible social and political change happens more often than we think, and it happens more rapidly than we realize.  Even the most momentous change is always possible if one finds the right way to make it happen.

Agreed. Some things stay the same, but things do change over time.

SSM in NY? Yes

Senate approval was the final hurdle for the same-sex marriage legislation, which is strongly supported by Gov. Andrew M. Cuomo and was approved last week by the Assembly. Mr. Cuomo is expected to sign the measure soon, and the law will go into effect 30 days later, meaning that same-sex couples could begin marrying in New York by midsummer.

The world doesn't stop, does it?  

FNL

Ticking down to finale.  The long-haired one is back.  Wasn't they going to take two weeks to decide?  Good to see Becky and Tami get some air time plus Vince's mom stand up for her son.  Some nice bits.  Pleasant enough episode that is symbolic of the season.

Scarecrow and Mrs. King

Another bit of nostalgia for people of a certain age, I passed the first season on DVD in the library.  Fun show.  I actually never saw the first episode and remember wanting to when it was still on.  This would be prime USA "characters welcome" material.  New books on panel.

Reason To Vote Democrat

Most Republican senators say they strongly oppose the [SSM] measure on religious or moral grounds.

Not to worry. Some aren't resting on breaching the First Amendment. Some rest on politics.

Supreme Court Watch

A legal blog has had a series of posts on a recent ruling that gave some rights to those subject to incarceration at civil contempt hearings, in part noting how state courts led the field after the Supreme Court interpreted requirements somewhat narrowly.

Meanwhile, today was another decision day, though a few of the hot button cases (e.g., violent video games) were left to the final week.  The cases today were somewhat less flashy, but still legally important and divisive, the 5-4 split more prevalent than last time. For instance, yet another ruling concerning Anna Nicole Smith was a 5-4 split that struck down on constitutional grounds one aspect of a bankruptcy law. A case on the  Federal Employers’ Liability Act had an interesting split where Thomas was the swing vote, (mostly) joining with the liberals.  A tort case split the Court in more predictable lines. 

Sotomayor wrote a dissent in that case.  She also concurred separately in a Confrontation Clause case (Kagan along with Thomas didn't join a portion of the main opinion, but didn't concur separately) involving lab tests.  The case was important to the extent it sent a signal as to how the new appointees would join the expansion of the rules in that area, the matter still somewhat unclear since she (but not Kagan) suggested the case today was not as open-ended as some might suggest.  Sotomayor also was the only liberal justice who joined a ruling striking down a regulation on use of drug information. Breyer wrote the dissent, suggesting more discretion should be allowed for commercial speech regulation (and, anyway, precedent doesn't require it).  It is notable that Sotomayor joined the more restrictive majority opinion on the point. 

The cases are of some interest but nothing overly exciting jumps out.  I am somewhat annoyed that in more than one case the majority wasn't able to control themselves and not include sections that a majority of the justices were able to join.  The Vermont case is a tad technical, but generally I agree with at least somewhat stricter tests for commercial speech than Breyer would seem to require.  Not sure if this case is really anything to worry about, particularly given while listening to the orals, it seemed the law was in some fashion particularly badly drawn or litigated.  And, if the specific matter in the Confrontation Clause opinion seems somewhat minor, the basic principle of consistency in criminal protections is ideal.

Anyway, even given the last few cases, this term seemed pretty unexciting this time around, the issues of the OLC and so forth more interesting at the moment. See, here and here for a taste why we should be wary about not only the result on the meaning of the WPA regarding Libya, but how they got there. 

SSM in NY?

It doesn't get much uglier than that. Tying the fate of same-sex marriage to unrelated disputes over money should offend New Yorkers on both sides of the debate.

-- Bill Hammond

Maybe so, but it shouldn't surprise them.  Politics is about horse trading and other somewhat unsavory actions, which do not suddenly disappear when really important stuff comes to the table.  Republicans as a class are no big fan of this legislation, even if some would vote for it once introduced or if given free reign.  Their base hates it or at best would not mind if it went away.  And, if it allows them some influence over something they do care about (tax cuts, apparently) or at worst to lead to some religious exemptions and such, they will do so.

The Democrats on some other issue would do the same.  The NY legislature is an equal opportunity political machine.  Has been so for a long time -- the film 1776 joked about it with some degree of truth.  And, we aren't just talking New York here.  When did the Thirteenth Amendment pass Congress? In a lame duck session and Lincoln probably helped pave the way by promising a few goodies for the lingering votes.  The Constitution itself, including slavery, was a compromise where "unrelated disputes over money" mattered.  So it goes.

Marriage is a fundamental right but has traditionally been the discretion of the states.  This includes as it underwent various changes (e.g., women having an equal status, easy divorce laws and other matters that affected the institution much more than same sex marriage* would today) over the years.  So, though ultimately a federal constitutional issue, state by state development is essential here.  Events in California suggest it is only a matter of time there.  If New York joins in, logical since it already recognizes out of state same sex marriage (though the highest court did not decide the issue), it would be a major step forward.  [See here for my comments on why "rights" is one proper way to address this issue.]

The lieutenant governor in this state does not have the power to break ties in the state senate in respect to legislation, so a tie will not cut it there.  The measure already was passed in the assembly.  The vote in the state senate is up in the air, one or two more votes needed.  This is a six or so vote improvement since last time, which is impressive.  The talk is that if voted upon, it will easily get a majority.  Problem is that Republican leadership has yet to agree to put it to a vote.  As I said, this is understandable, but that doesn't mean it lacks ugliness.  Yet again there is more than a dime's worth of difference between the parties.

A reminder of what is at stake.  Loving v. Virginia held that race was an illegitimate classification for marriage, even if interracial marriage burdened both sides. That is, each race having the "equal" right to marry only people of the same race was not enough.  The same applies if the classification is based on sex.  Some argue the problem in Loving was racism while this classification is benign.  As with selective concern for tradition (coverture? not making spousal rape illegal? the latter was true into the 1970s) , doesn't cut it.  Stereotypical sex roles, a major concern of sex discrimination case law, is not allowed either.

Some cheapen marriage by arguing that procreation justifies the [invidious] discrimination involved here.  But a ruling on marriage of prisoners underlined that marriage is important and to be protected even if every aspect of marriage is not in place in a given case.  This lesser known case warrants an extended quote:

The right to marry, like many other rights, is subject to substantial restrictions as a result of incarceration. Many important attributes of marriage remain, however, after taking into account the limitations imposed by prison life. First, inmate marriages, like others, are expressions of emotional support and public commitment. These elements  are an important and significant aspect of the marital relationship. In addition, many religions recognize marriage as having spiritual significance; for some inmates and their spouses, therefore, the commitment of marriage may be an exercise of religious faith as well as an expression of personal dedication. Third, most inmates eventually will be released by parole or commutation, and therefore most inmate marriages are formed in the expectation that they ultimately will be fully consummated. Finally, marital status often is a precondition to the receipt of government benefits (e. g., Social Security benefits), property rights (e. g., tenancy by the entirety, inheritance rights), and other, less tangible benefits (e. g., legitimation of children born out of wedlock). These incidents of marriage, like the religious and personal aspects of the marriage commitment, are unaffected by the fact of confinement or the pursuit of legitimate corrections goals.

Clearly, all married couples do not and sometimes cannot procreate, but that is but one aspect of marriage.  This excerpt suggests the breadth of marriage, which in basically every case applies to same sex couples.  This even can include legitimation of children, which can include legal recognition of the parenthood rights of two same sex people. As another lesser known case (leading Justice Powell to question its breadth given regulations of among other things "homosexuals") noted;

Although Loving arose in the context of racial discrimination, prior and subsequent decisions of this Court confirm that the right to marry is of fundamental importance for all individuals.

The right is personal.  It should not be limited based on the sex or likely sexual preference of the partner involved.  Doing so is wrong since there is no good reason - given the reasons for the state license in question - to fence out people on such grounds.  It is bad public policy and New York should act on that ground alone.  Its courts did not join with those that saw a constitutional (state and/or federal) problem, but there is one there as well.  And, as with other marriage and relationship matters, old ways or norms are not a good reason to do otherwise.  Change occurs there slowly, over time, and we are seeing yet another development here. 

It would not shock me if politics holds up the works here, things all so close.  Hopefully not.  If so, however, the true path is apparent and it is but a matter of time.  

---

* I continue to favor this term for various reasons.  It is what is at stake. The sexual orientation of your partner isn't the issue.  It also focuses on the sexual discrimination going on.  "Gay" even is arguably a problem since it often is limited to male homosexuals.  I realize that gays are obviously a big part of this whole thing, but SSM (it even is a nice acronym) is the appropriate term to use.

Summer

Welcome to summer, a season less ideal for adults who don't like the beach or the heat.  The exact beginning (13:16 EST) suggests the inexactitude of things (and Daylight Savings Time) since you'd think it would occur at noon, given the whole evenly divided day thing. 

Life on Top and Jane Austen

I have referenced this show already, perhaps partly to note a supporting character that charmed me in such films as The Devil Wears Nada (her personality, that is; her body is fine too, but it's her personality and humor that is particularly notable). My latest satellite package ("cable" no longer fully accurate) brings with it lots of channels, including some that has late night soft porn.

Most is pretty forgettable, but as with other pay channels, there are some shows and so forth of some note. Life on Top and Lingerie included. I earlier, in a brief form of this entry, referenced the first episode of the title series. I also saw the first episode (as with other shows, child, teen and adult, the episodes are replayed often) of Lingerie. More so than Co-Ed Confidential, though that has some charm, some of the characters on these shows are interesting.

Suffice to say, long form, soft porn needs more than breasts. That's said in part since that is the most evident thing, though other parts of the body (though rarely front male ... watch prison shows for that) are seen. One thing not seen is bodily fluids. This includes sweat. These people have sex at a drop of the hat, put their clothes back on (it helps, of course, that the women tend not to wear bras ... and not only because they are too small) and go about their business. The reference to a condom (even showing it) in the Life on Top premiere is as rare as a reference in the movie cited above of a character still smelling of sex.

The series premiere of Life on Top put some effort in making us care about the female characters (Lingerie has more focus on males, though the leads are women; btw, I notice many teenage Nick/Disney show lean female, while many animated shows lean male -- very few female characters, e.g., on Bugs Bunny), who also have some acting ability. It might be assumed that acting is not the point here, but for series television (and for some, even films), it does matter. The first episode even had one of the characters lead her partner in sex (that is, tell him to "go slower") while her sister had a sexy bit of foreplay in a car.  [I saw the third episode last night and it had a quite acrobatic sex scene that looked like it required some choreography to accomplished.]

These type of shows/films rarely have such context and lack something in the process. The "Bella" (and "Regina" aka Brandin Rackley) of Life on Top were also in a few soft porn films that are basically take-offs of other films. They are amusing ... when you aren't really expecting much, a bit of something means a lot. I guess it might be a matter of taste, but in this area, I like a bit more than soft porn sex with cheap music and a 50/50 shot (at least) of fake boobs. Tiresome. Might have to see what Disney/Nick re-run is on instead. Seriously, a bit of "pillow talk" and character goes a long way.

These shows have some, though watching a few episodes beyond the pilots, not enough. Still, the acting and writing is pleasant enough to be worth a look some night. It brings to mind a show from the 1990s (a "Desperate Housewife" was in the cast, long before she was that well known) called Bedtime, a cable soap opera with some explicit sex. I will now shift gears.

A re-viewing of The Jane Austen Book Club took place about the same time I tried Austen's first book (if one released after she died), since it seemed to have amusing elements and was pretty short. I was somewhat disappointed with it, since it didn't seem to focus enough on the "abbey" of the title. Persuasion kind of felt the same way -- after the lengths of the other books (and I have not yet read her longest, Emma), it seemed a bit too abrupt. The satire of "abbey" was not given enough attention in my opinion and too much of it took place at Bath.

The charm of her writing is her felicity of expression, the emotional lives of some of her characters and (often in particular) the many boobs and knaves among her casts. Like in many an adventure story, the good guys often aren't what makes or breaks things. It is the flawed characters, particularly the bad guys (or girls). Austen has lots of them and they are very fun. Looking at a collection of "her other writings" (including unfinished books), notes Jane herself took underlined the point. She lists various reactions to Mansfield Park, and many don't really like Fanny Price, one person thinking her "insipid," another "could not bear" her. Edward also got a mixed reaction, such as "cold and formal."

Austen's works are a social commentary of her times and she clearly finds much to fault in society, though she shows a certain "Tory" (one biography notes she was a loyal Tory) respectability. One source noted that she felt for Fanny, a bit of a dull sort who couldn't bear a somewhat racy (involving an unwed mother) play to take place while her husband was away. The notes cited shows many at the time liked Pride and Prejudice better while some even wanted Fanny to marry some lively young cad type that underwent a change of behavior once he fell for her. She had only one true love and when the love is respectable, the Austen way is predictable.

Austen had a limited range in her novels (an unpublished early work, Lady Susan, suggested she had the potential to focus on a more flawed character) in that sense. Pride and Prejudice was not only lively but had the most independent young woman character (though published later, in an early form, it was written years before) as well as the most interesting male one. Darcy fell for Elizabeth and though we read mostly about her family, he has a special role.  His emotional center of gravity fell apart and we get more of a sense of his inner feelings than male characters in other works.  More so than an Edward in Mansfield Park.  Again, I have yet to read Emma, which might be worth noting. Unfortunately, unlike her siblings, Jane died fairly young, so we did not see if future novels would go past the Fanny/Anne quiet heroine role.

I will comment on Emma (the source material for Clueless) when timely as well as whatever biography I choose to read. It is noted that Jane Austen's writings (including letters) are online, since even ridiculous modern copyright laws don't go back to 1817. Also, Becoming Jane -- not to be taken that seriously as biography (well, at least, with a large grain of salt) -- was pleasant to look at but around 1/2 way in, I got bored.

[Update: The commentary track was done in such a plodding way that it too was tedious.  I do think the lead, who actually wrote a thesis paper on JA, was pretty good. The film as a whole didn't do it for me, though.]