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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Saturday, August 17, 2019

The Cult of the Constitution



Under my real name, there is a book by me written over ten years ago (smh) on my view of the Constitution and I have a fairly absolutist view of things. I do repeatedly try to include a proviso that the courts are not the only way the Constitution is enforced.  So, for instance, my broad view on the rights to use drugs would not be something that the courts alone would enforce.  Also, a significant number of things occurred since the middle of the second Bush Administration.  But, I did have a broad view of the first two amendments.  I'm somewhat more restrained these days, especially when reading what to me is exaggerated absolutism, but at least my heart is with a strong view of things.  One that carried forth in other amendments too.

It is therefore helpful, from various perspectives, to get a another view of things.  This book honors the Fourteenth Amendment, but the Equal Protection Clause in particular.  One might suggest it has a certain "cult" of the "superright" (to use its language) here, one that honors the rights of non-white males in particular.  The book starts with a de-mythization of the Founding, which it argues was an active effort to protect the rights of well off white males.  And, in practice, this group still receives special benefits though they continue to feel (unjustly) aggrieved as victims.  This is not a necessary framing for the author's argument about how the First and Second Amendment is selectively enforced as a "cult" but is is helpful to note all the same.

I think this book is somewhat of an overrcorrection but the targets warrant that sort of thing all the same.  The book provides a common stance that the current RKBA argument was a rather recent perversion of the text and history of the Second Amendment.  This is somewhat exaggerated.  It is not some 1970s development that there was a basic idea that we have a constitutional right, probably found in the Second Amendment (though not necessarily only there), to own a firearm.  There was a general idea (see, e.g., Dred Scott v. Sandford) even in antebellum times of some basic right to own firearms.  This being broadly understood as a "Second Amendment" right probably developed over time.  But, there was some core idea that citizens had the right to own a firearm.  The limits of that right was the rub.

The argument that the right to own a firearm is argued in absolutist terms, so much that even D.C. v. Heller for some is too restrained, is helpful.  This includes a reply to those who argue that guns are generally beneficial to self-defense.  The argument that guns writ large are counterproductive is a harder case to be made, but it is helpful to make a strong case to reply to the other side there.  And, the book is particularly biting in noting how even the NRA is rather selective -- when women "standing their ground" to guard against abusive husbands or blacks are selectively killed for having a firearm, conservative leaning gun rights groups seem rather silent.

I personally think the Second Amendment was ratified for a limited purpose that still has some bite (think of local police populated by local communities or woman or LGBT in the military).  The current view of an individual rights view developed over time and was probably in place as early as the Fourteenth Amendment.  So, I think there probably is a constitutional right to own firearms though the discussion on how self-defense as a whole is a lot more complicated is quite accurate.  And, the right (and the language of the Second Amendment helps here) also includes various regulations.  It is not absolute.

The chapters of free speech and the Internet will sting liberal leaning types (though as usual, I wish to say many liberals support a RKBA) more.  The author again notes in practice the right often favors white males more than others, including when regulations involving harassment and so forth are deemed inappropriate.  This includes things like revenge porn and harassment online.  Liberals will appreciate the section that notes that people concerned about free speech on campuses repeatedly ignore those that target left leaning speakers.

But, sacred cows like the breadth of the value of the "market place of ideas" are attacked as well.  I'm wary of the breadth of this argument at times, including when she notes that hate speech violates the principles of our nation (pro-Nazi speech has no "idea" unless it is one that goes against our basic values).  Stopping the march on Skokie is something I'm really wary about doing. The armed Charlottesville march is somewhat easier to address -- "peaceful assembly" (though this is not highlighted in the book) is after all right there in the amendment. Also, concern about a large possibly violent demonstration being in a certain location is reasonable. It surely seemed to be given the results. 

I continue to think that laws against obscenity generally are inappropriate though this would not stop limits on child pornography or revenge porn.  I might be wary about language that such and such material will cause "emotional distress" but a boyfriend who uses private pictures to gain revenge on an ex-girlfriend is not a general concern of mine.  I found, e.g., Eugene Volokh at his blog and his supporters excessive when concerned about efforts to address harassment in high schools and the like. Meanwhile, that blog never seemed to address free speech concerns involving abortion clinics (e.g., forced ideological messaging).  And, I probably would find some room for disagreement on regulating online speech than the author but at the very least the liability of Backpage and the like is strong enough that it worthy of the discussion provided.

The book therefore is a worthwhile read.

End of Life Decision-Making & Religious Liberty

In short, there is no reasonable ground for believing that Nancy Beth Cruzan has any personal interest in the perpetuation of what the State has decided is her life. As I have already suggested, it would be possible to hypothesize such an interest on the basis of theological or philosophical conjecture. But even to posit such a basis for the State's action is to condemn it. It is not within the province of secular government to circumscribe the liberties of the people by regulations designed wholly for he purpose of establishing a sectarian definition of life.
I have noted over the years that I (some might say this is from coming at it in a largely hypothetical way, not being a woman or potential parent) think abortion is in a key way a religious issue.  Ronald Dworkin was a notable advocate of this position though it arose in various contexts, including with women advocates involved.  And, in the current basis of constitutional abortion law, Planned Parenthood v. Casey, "conscience" is directly cited.  The connection between "conscience" and "religion" is not always clear, but a shall we say embryonic form of the religious liberty component of the First Amendment (and Fourteenth in Madison's failed attempt to include the states) included references to "equal rights of conscience" or the like.  At the time, "conscience" was basically seen as some form of the Christian religion.

Justice Stevens was the one justice who directly highlighted how abortion rights, including restraints that selectively burdened abortion per certain conscientious views, raised First Amendment concerns in this fashion (one other case did directly raise the issue, involving abstinence only education funding).  Rightly so in my view, both as a matter of sectarian laws and burdening free exercise.  One can find splits of some sort of religious nature in any given legal subject, but life and death questions of this nature have a special religious component, one that splits believers. It is telling to me that on both ends there are sacraments in the Catholic Church.  Marriage too has a religious component, which underlines the importance of individual liberty there.*

He also raised the issue in euthanasia situations though when that was directly at issue, he went along with the others in saying that at least to some extent laws limiting it were constitutional.  Counting noses suggested that an absolute bar might be more problematic though I am not aware of any later federal cases (it did arise in a few state cases) that directly addressed the matter.  Washington v. Glucksberg is the better known case, including because the plurality used it to put forth a restrictive view of substantive due process (the strongest view of the opinion was never really applied, particularly given Justice Kennedy's views on same sex rights) but a companion case (see link) did come out of New York. Which provides a segue.

The New York Medical Aid in Dying Act, dealing with a controversial subject that divides some usual allies, did not pass along with the first slew of "we are fully controlled by the Democrats" bills.  I do see a co-sponsor of the Senate version is my active young frosh senator, Sen. Biaggi.**  The tricky issues in these laws include when it can be applied, assistance by physicians if one is unable to do it yourself, safeguards of consent and so forth.  But, the matter clearly also has a religious competent, which is eloquently expressed in the signing statement of a recently passed New Jersey law.  The direct impetus of this entry is a temporary restraining order, after the law went into effect on August 1st.

The lawsuit says that the law, which does not require a physician to be involved if they are conscientiously opposed (see abortion), in part conflicts with the physician's religious liberty.  This is of a kind where contraceptive choice, I use that term advisedly, is argued to be problematic.  The debate on religious liberties here tends to be one-sided and this goes back to my opening, which has been a repeat player on this blog for years.  Religious liberty here is not merely a right wing thing.  The patient who wishes to carry out their own view of conscientious choice, matters here split since ancient times, ultimately has the strongest claim.

From the summary, some mere duty to send records or the like to the physician of the person's choice is not an infringement of liberty.  Doctors here have some minimal requirements to carry out patient wishes too.  Sounds weak.

---

* As with other matters, and this will arise here, this does not mean it is free from regulation.  Freedom, before and after same sex marriage was protected, regarding private actors presiding over marriages does not mean -- before and after same sex marriage again -- discrimination in public accommodations in general was acceptable.

Some weighing of lines also will always occur here to some extent but that doesn't mean everything is up to regulation.  Overall, I think the viability line in this respect a fair one, if with tricky situations, especially to the degree it has a life/health of the pregnant woman proviso. "Viable" here might also factor in severely disabled fetuses.

** Sen. Biaggi has a special concern for sexual abuse, particularly from her own experiences, so the Child Victims Act is an emotional moment for her.  I am wary about an ability to bring claims from decades back (imagine child sexual abuse that occurred when one is ten and a case is brought when one is in their 40s), including given problems of memory and so forth. The legislation is a compromise though it has an open one year window. 

I linked to a television interview with a friend/fellow legislator but a quick search does not bring up the specifics of her case.  It would be informative to get a snapshot of the problem though any number of others can tell their stories.  Such is the case with sexual abuse in the Catholic Church and elsewhere.  But, specific incidents are important since they put a public face on the problem.  See also, sexual harassment:
Imagine showing up to work only to have a co-worker tell you to get breast implants, touch your butt while telling you to “tighten up” and tell you not to adjust your exposed underwear because he was “enjoying himself.” Or to be subjected to name-calling like “dumb blonde,” repeated remarks about your appearance and being swatted on the butt with papers by a supervisor. Or even to have a supervisor pull your hair, rub lubricant on your arms and tell you to buy sexual paraphernalia.
A concern on margins can not stop us from dealing with such things.  Even if electing Trump in the minds of some is acceptable.  We have far to go.

Thursday, August 15, 2019

Death Penalty Watch: Stephen Michael West [DEAD] and Dexter Johnson

West [23] and Martin [17] left work at McDonalds in Lake City, Tennessee, on March 17 and went driving around and drinking in Martin’s car for several hours. They drove to the home of Sheila Romines, a classmate of Martin’s who had previously rejected his unwanted advances. At approximately 5:20 a.m. after Mr. Romines left for work, Martin knocked on the door with West standing nearby. When the door was opened, the two then made their way into the house. Between the hours of 6:00 a.m. and 8:30 a.m., Wanda and Sheila were brutally murdered. Sheila was raped before she was killed.
The rape/murder of two women (Sheila Romines was fifteen; Wanda was her mother) with "torture-type" wounds is not really a surprising death penalty call.  A standard principle still is that even in death penalty states you can find comparable crimes not resulting in a death sentence though there tends to be lots of variables involved.  West was sentenced to die in 1987, so we have another case of the troubled concept of executing people after decades of confinement.  Martin admitted to the murders though it should be noted that he was a minor so was not liable to die (the constitutional rule would come years later).

The summary linked above notes: "the trial judge did not allow the jury to hear a tape recording of Martin confessing to both murders while he was in custody at the jail. "  It also notes claims of trial counsel ineffectiveness, mitigating evidence such as a horrible childhood and psychological problems: "suffering from major depressive disorder with psychotic features, paranoid schizophrenia, and schizoaffective disorder." A recent argument against the execution focuses on his "severe mental illness" and the fact he did not personally commit the murders. There is also a report of a failed challenge to the lethal injection protocol (not surprising at this point given the state of the law there).

The fact he personally did not commit the murders -- let's grant this is true -- is not necessarily compelling though the jury might have been affected by hearing about it.  The long time in prison to me is a notable factor here, I continue to question the value and justice of executing someone in prison for three decades. The strongest claim appears to be his mental state, at least to warrant a commutation to life in prison.  The execution of someone in prison for so long because of involvement in a heinous crime, if not one of the few that would seem to be the "worst of the worst" by someone with his mental problems (toss in the due process concerns involving the trial as a sort of extra) would to be to me a summary of the problems here.

The governor did not commute his sentence and his final last minute appeal was basically a lost cause execution protocol claim that was denied without a written dissent.  A statement from a brief (again, can be found using the docket numbers on the final order) is sort of telling:
The contention that West seeks nothing more than to avoid his August 15, 2019 execution may find favor among those cynicism about the objectives of method of execution challenges has clouded their willingness/ability to look at the case before them, but is not what West seeks here.
Uh huh. The firing squad was offered as a readily available alternative but  as noted above the challenge failed. Relying on Justice Sotomayor's dissent to argue the majority opinion should not be applied too strictly underlines the desperation.  Then, it was a forlorn statement regarding him choosing electrocution, still allegedly unconstitutional, as an option but that his execution should still be stayed so his challenge can be heard. He was electrocuted, yes, that still being done in the 21st Century.

[Even if it didn't sound like a strong case, I continue to think at least one justice should in each execution case explain why the execution was correctly carried out and/or comment on the case.]  
So, he won or lost the execution lottery, decades after his crimes. The net value to justice here is yet again very unclear to me. 

===
According to prosecutors, Johnson then shot Ngo in the head before murdering Aparece. It took investigators five days to figure out what happened but by the time trial rolled around, the state had linked Johnson to a slew of robberies and killings, including the slaying of a man standing at a pay phone and the murder of man sitting inside his car.
The core crime Dexter Johnson was sentenced to die for was the rape/ theft ($25 in cash and a credit card)/murder involving an Asian couple. But, there is reference to a spree that covered more ground. Johnson was eighteen at the time of the crime though was captured when he was nineteen (there was an intervening birthday). So, there was some mitigating factor there as to age.  The constitutional line by this point (2007) was eighteen though as noted in a past entry in this series there is some thought that the line should be twenty-one.  Either way, his age might be deemed a mitigating factor, if not one that is a total bar to execution.

The specific crime, like the first one, is of the sort that someone might deem appropriate for the death penalty but not necessarily a slam dunk. It gets easier if it was merely one part of a wider spree.  The age of the defendant complicates things.  The time on death row as these things go (around a decade) is not that long.  Johnson is only thirty-one, which is rather young.  The best hope for him is a claim of being intellectually disabled; if his status there is severe enough, he would be constitutionally barred from being executed.  The case is close enough that the often conservative court of appeals this week sent it back to the district court. Texas had issues with not carefully enough handling this issue in the past so can see some reason for concern.

So, we are set for another last minute drama, which drive the conservatives on the Supreme Court up the wall and is far from ideal.  But, overall, this would be a strong reason not to execute though there is often a lot of debate over being unable to firmly draw lines in marginal cases. [I ended my draft there, expecting the state to challenge the stay, but it did not. So, the execution is for now stayed.  As things go, this is not that long in.]

Sunday, August 11, 2019

Jeffrey Epstein Commits Suicide ... oh well

In the march of "what else happened?!," the news yesterday was that arrested (maybe this time he would get real punishment!) Jeffrey Epstein -- "good! he didn't get bail!" -- committed suicide. He seemed to have tried before but his suicide watch was brief. The "oh well, just another victim of the system" takes are coming in. But, very rich defendants with friends in high places are not typical and this "oh well" doesn't quite wash. Conspiracy? Eh. But, that handwaving is too easy in this case. Plus, while investigations occur, this can't be allowed to close off a full true accounting. Epstein in no way committed his crimes alone.

Saturday, August 10, 2019

Mets: Hey, What Can I Say?

The Nats blow late inning leads when they play the Mets. That is what they do now. The Mets designated sucker was left in long enough last night to blow a three run lead (including a wild pitch insurance run) and one more to lose the game. Conforto lost his shirt and Smith was part of the celebration on his scooter (he's hurt). Tonight ... well, Luis Guillorme tied the game with his first home run. Them going ahead was obligatory. And, Lugo again was out for a second in a one run game. Oh, the Braves lost, blowing a big lead late vs. the Marlins. They are having bullpen woes. Mets half game back in the Wild Card race with DeGrom next.

ETA: Sunday. DeGrom had a tough 1st, an error that looked to be his fault leading to three runs. He helped a rally with a bunt to later tie it but only went five. The bullpen gave up the lead and Diaz sealed the deal by giving up two. THIS time, the Braves closer did not blow a three run lead. But, two of three vs. rivals will do the trick if they are consistent about it.

Friday, August 09, 2019

Appeals court decision on Lehigh County Seal

After a district court who voiced its dislike of current law held this seal unconstitutional, the law changed some and the court of appeals upheld it. I think the law was unclear enough that a seal like that with various symbols might have been upheld anyway though some evidence the cross was added to honor Christians who founded the county (settlers came centuries ago; the seal is from the 1940s) made the lower court ruling unsurprising as well.

I think this is a fair reading of what five justices would do and the 1940s time period suggests Breyer might go along too. But, altering a seal is different from taking down a display, especially those just endorsed (like from a patriotic group) by the government. Changing a seal to be more modern should be less controversial. This is an official government seal which is also more ubiquitous than a single monument or display, especially one only up for a holiday. Again, the justices likely won't parse like this but it suggests all displays are not equal. A representation of a large county should honor all.

ETA: For whatever reason, these things tend not to explain, Roberts granted a temporary stay in favor of the government in a criminal case.

When The Men Were Gone

The preseason started with a Jets/Giants game so this based on a true story about a woman who coached in a Texas high school in WWII was well timed. The author was a sportswriter, coach and now educator so the character was appropriate. A town dealing with tragedies, not all involving WWII, was a major subplot. The real coach (I found this via a bit of online research) coached at a college so I guess the finale game is a dramatic creation.

Good book. I read a version with "P.S." material but it focused on the author. We get nearly nothing on the real person, even a photo, though I found more than one online. The author notes she fictionalized some material since various details were lost to history but again there is material. Various background biographical material is said to be based on real life. This might explain why some records are lost but you'd think articles and such ... oh well.

Peppermint


Jennifer Garner is only in her 40s so it's quite possible this can open up a second act (the director also helped Liam Neeson there), especially given her earlier action roles. The title is the ice cream her daughter (who has some spunk that you figure came from her mom even if she holds it down) ordered before being murdered along with her dad, ill advisedly tempted to cross the wrong person. The fix is in so the mom doesn't get justice for a few years. Garner is quite believable as an angel of vengeance though some thought her path was mpt made complicated enough. Eh, it did the trick. Touches on the power of social media etc. but Garner makes the movie. The supporting players are good enough to check the boxes.

Thursday, August 08, 2019

Welcome to Marwen


I read the book and checked out (some of) the movie on DVD. Steve Carell again is excellent in a serious role and the animated reenactments of his imagined stories are well done. But, especially since it starts after the "town" is set up and all (curiously; they could have started earlier, the book provides his backstory and how he created the town), was not really interested in watching almost two hours (he had to be pressured to give a victim impact statement at the sentencing of his attackers and the film ends with him managing to do it). I'll try the documentary; this review is a bit too negative but interesting.

Wednesday, August 07, 2019

NSFW

I'm unsure how I survived, but sure did, before being online. For instance, how did I deal with not being able to look up pieces of trivia (always was someone attracted to such things)? Well, I read more magazines and (at times) books. Anyway, recently I checked out some videos at Porntube. It has a range in quality, including some pretty good story-lines. Some good acting, seriously. The mechanics of sex can only take you so far there [quality is duly noted] though yeah those who watch late nite Showtime type fare will find something called cock and penetration (except for on Japanese video where that was blocked). A bit addictive.

Not A Fan of Rep. Castro Tweeting Those Trump Donors

As noted here, even Citizens United supported disclosure laws (Doe v. Reed, involving a controversial referendum is even more on point). Disclosure is particularly about flags to deal with a form of legalized bribery but there are other reasons, including to see in general who is supporting a person or cause by means of large sums (my $5 for Gillibrand, e.g., is a lot less notable). When money is involved, however, there tends to be an overlap at any rate.

This response seems to flow to even mere Trump voters, but the people Rep. Castro (twin brother of the guy running for POTUS) listed big donors in his controversial tweet. As I said in comments in both places, I'm wary of this sort of thing. Searching a database is different than selecting some names and tweeting them. It is different when their member of Congress does it and in effect shames them for donating to Trump. I fear tit for tat. And, no, I'm wary of everyone knowing such and such bakery or whatever supports "x" candidate. At least on the level of tweets to so many people. I fear what it will do to their families and communities. I hope legislators don't make a habit of this though the good faith of the people who are complaining repeatedly are likely to leave something to be desired.