Marriage For Residents Alone

And Also: Good column of all places in the sports section respecting the army targeting viewers of March Madness for recruitment.

[Also in legal news: The Supreme Court is due to reaffirm in some sense the rule of international law. Not only the Hamdan case, but one respecting notifying foreign consulates that their citizens are in our custody. The Bush Administration asshole policy of deciding to no longer actively take part in the treaty notwithstanding, a majority of the Court appeared willing to assume it has some real positive law security for those detained.]

The governor of Massachusetts won the first round of his attempt to narrow the reach of the gay marriage ruling of the state supreme court a few years ago. A ruling, for those who respect state rights: "The genius of our Federal system is that each State's Constitution has vitality specific to its own traditions, and that, subject to the minimum requirements of the [federal Constitution], each State is free to address difficult issues of liberty in the manner its own Constitution demands." This is the true sentiment of the Tenth Amendment, one that ultimately was meant to further liberty, not state power.

The governor and presidential hopeful pushed for the enforcement of a nearly hundred year law that barred marriages to non-state citizens if the marriage was barred by their home state. A major reason why people went to other jurisdictions to marry, including the couple in the famous interracial marriage case, was because their home state barred interracial marriages. But, this was not the only reason -- for instance, even in the early 1900s, divorce was hard to obtain. [Somewhat ironically, New York remains the lone holdout against true no fault divorce.] And, various odds and ends situations arose as well -- cousin marriages, etc.

All the same, the law was basically defunct these days, and had a racist taint. The call to re-enforce the law -- as the sole dissent in the case addressed here noted -- clearly was discriminatory in intent and action. Nonetheless, a somewhat related matter arose in California in which some people tried to interpret a provision against same sex marriages to only apply to out of state residents. Some felt this was not only a overly creative reading of the statute but basically unconstitutional. They pointed to the Privileges and Immunities Clause of the federal Constitution, which secures the rights of out of state visitors.

Well, in the first ruling on the matter, the Massachusetts Supreme Court said "not so fast" and with only one dissent (one judge was wary). The author of the same sex marriage case wrote a separate opinion tentatively defending the provision in this fashion:

It is rational for Massachusetts to take precautions that marriages performed here be considered legally binding and not merely aspirational. Put another way, it is rational for the Legislature to take steps to ensure that marriages performed here will hold up elsewhere, and that they will not be ignored by other States. The Commonwealth's concern is not a matter of comity so much as a matter of federalism, that is, of a State's concern for the integrity of its own laws.

Meanwhile, a plurality opinion spoke of comity and basically was pragmatic in sentiment:

By giving respect and deference to the legislative enactments and public policy pronouncements of other jurisdictions, it is my hope that principles of comity will have a significant impact on other jurisdictions if, and when, confronted with the issue whether to recognize validly contracted same-sex marriages of Massachusetts couples, even where those couples would not be able legally to marry in such other jurisdictions.

So two reasons really: the state has a reason to only supply marriages to those who they know would actually be able to enjoy them and they should respect foreign state laws because hopefully they will respect Massachusetts' as well. The latter sentiment is nice and all, but a bit naive in this context. The former works on some level, but also does not quite work. In fact, of all things, a fugitive slave case was used to underline the point by the one dissent (who also noted that heterosexuals from out of state were not likely to be equally targeted):

The Aves case established the principle that a liberty or right under the Constitution of Massachusetts that is available to citizens of Massachusetts, can be extended to others who travel here from other States, regardless whether their home States deny them those same rights.

I'm with the dissent but am sympathetic to the pragmatic approach, which drove one strong believer in the justice of protecting same sex marriages to sign on for now -- care should be taken to not go too fast in this area. But, the ruling really makes no sense. The state surely has a minimum residency requirement. A person can still can married afterwards, now being a state citizen, and soon enough leave the state. And, overall, the fear a liberty will not be protected by another state should not be a reason not to protect it in one's own state. Likewise, this law basically has unclean hands.

Anyway, interesting case, and a suggestion how even in MA change takes a bit of time.

Abortion: Autonomy, Conception and Unborn Life

And Also: It is wonderful that the kidnapped reporter Jill Carroll, who I seriously thought about to die, is free. [Update: Sympathetic comments were not voluntary.]

Susan Brownmiller's In Our Time: Memoir Of A Revolution continues to be of interesting reading.* The important of personal accounts, including those of victims, is underlined -- "consciousness raising" and so forth. The chapter on the abortion fights had some interesting tidbits, including "Jane," a Chicago based group that performed abortion themselves -- without doctors. A Slate frayster is convinced that the Thirteenth Amendment by nature is the answer to showing that the right to choose is a constitutional right, one basically absolute. He would disagree with Roe v. Wade's comment that the state can limit them to physicians for safety reasons.

Likewise, a woman involved at around the same time as the Jane collective was charged with practicing medicine without a license in respect to her menstrual extraction work -- she plea bargained to one count of fitting a diaphragm. Sounds almost like a message in the ridiculous. In fact, given the Baird case -- involving handing out contraceptives (foam) to the unmarried -- arguably inhibiting the distribution of presumptively safe contraceptives is a violation of the right to privacy. Justice White (with concurrence of Blackmun) so argued in this pre-Roe case. Things would be different for those substances usually prescribed, such as the pill, or potentially dangerous medical treatment like an abortion. Anyway, even Griswold involved in a medical clinic.

The book also references a Florida woman who was charged with manslaughter after a botched abortion. This somewhat belies a rallying cry -- why do pro-life people not target women, only doctors? Are they hypocrites or just anti-women? Do the not think pregnant women have a will? If so, they too would be guilty. Texas did not target the women; as the head lawyer Sarah Weddington noted in orals, the women is deemed the victim. But, meanwhile, California law -- after its reform law [signed by Gov. Reagan, but generally targeting minors under 15, rape victims, and a broad health exception -- it was not a "repeal" law like the one in New York] -- noted: "a woman who solicits or submits to an abortion is punishable by up to five years' imprisonment."

True, many laws did not target the women, surely not in practice. But, this in part can be defended as a pragmatic move in various respects. Care should be taken when talking about this subject -- hyperbole is liable to be wrong. For instance, the case where I found the contours of the California cited a case upholding the right to force a blood transfusion against religious opposition to save the life of the fetus. [The same court later decided saving the life of a women also will do the trick though one apparently atypical court case said medicine is too unsure of itself to actually know if withholding treatment will actually lead to death, so ruled the other way.]

The principle was upheld, apparently selectively (state rulings; know of no federal court stance on the subject), after Roe as well. Forced cesarean sections also have been known to occur, but they raise more concerns -- I am willing to say tentatively the blood transfusion rule might be legitimate to save the life of a eight month fetus. The ban on viable abortions except to save the health/life of the woman is more intrusive than that. Or, is the mere insertion of the needle an unlawful tort?

Abortion has been of interest to me for years and for years I have noticed how it has been subject to misleading statements. In recent debates over the South Dakota law, for instance, remarks were raised that things like in vitro fertilization and so forth were not known of in the times of Roe, so the sanctity of life from conception developed with our knowledge. Meanwhile, someone mentioned that morning after pills are not really "contraceptives," since contraception already occurred in many cases. It turns out Roe dealt with both issues -- underlining that "contraception" is not really a clear line, including noting many scientists consider conception to be a "process." Thus, targeting implantation can be "contraceptive."

But, I really don't think people actually read Roe -- they just ridicule it. Closer looks generally lead to more nuanced reasoning, something I fear even those who seem to be in the know need a few lessons on. A few looks at some of the quite interesting pre-Roe lower court rulings on abortion can do some people a lot of good, for instance, including those who think Roe came out of the ocean fully borne ala Athena. Also, a few address the question of the unborn, including questions of personhood and protection. Roe provides useful citations here.

I myself addressed "unborn persons" in something I am writing.** Going back to that blood transfusion, why is this question not addressed in more detail in anti-abortion dissents? Where is the fetal rights opinion of Justice Thomas? I actually would welcome one (good to balance things) ... I'm sure there are law review articles on the question for which his (or maybe Justice Alito's ... even CJ Roberts' has a Feminist For Life wife, right?) clerks to research. The anti-abortion libertarian Nat Hentoff referenced fetal health care years ago to raise a similar point: the unborn as patient, presumptively as person. Justice Scalia rather make fun of the right to privacy -- underlining in his Casey dissent that states have every right to allow abortions, if they so wish to do so. But, a look at the pre-Roe case law gives us one that noted:

Biologically, when the spermatozoon penetrates and fertilizes the ovum, the result is the creation of a new organism which conforms to the definition of life just given. Although this is a definite beginning, there is no assurance in any particular case as to how long the life thus begun will continue. ... Once human life has commenced, the constitutional protections found in the Fifth and Fourteenth Amendments impose upon the state the duty of safeguarding it.

The dissent in Steinberg v. Brown, 321 F. Supp 741 (N.D. Ohio 1970) showed the weakness of the argument, including respecting the actual law at issue, but even Roe noted that striking down the unborn personhood argument does not end the question. But, who actually reads Roe?

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* She also wrote a path breaking book on rape -- Susan Estrich, before she became a bit of an annoying loud mouth writing defending Hillary Clinton also wrote a small book entitled Real Rape that is quite good. SB went in some questionable directions. Her statement that the state should not allow a person to buy a woman's body (prostitution) seems a tad bit overblown -- is she against models, sex surrogates, escorts, and the like? Also, though she admitted it became excessive, the anti-pornography movement is clearly a mixed bag. Yes, there pornography is in various ways not good for women. But, it clearly is a legitimate matter in some general sense, and the attempts to ban it was ridiculous.

** My general sentiment is that there are "quasi-persons" which/whom the state protects in some partial way, the most well accepted being corporate persons. But, if a corporation can be a "person" for limited purposes, since the word has a certain legal meaning, why not other beings? For instance, animals, Klingons, or even the unborn? The "all or nothing" sentiment is not mandatory ... if anything, even corporations these days have too much security, which is surely not the case back in the day when they had much more limited discretion.

The 21st Century will have enough dealings with life before birth that some independent right metric will have to be formulated. The rights of pregnant woman will remain, but I think artificially thinking of the unborn as basically non-existent as a "person" will not work. It does not completely work now, especially with late term abortion bans.

And, the general public does not think of things that way -- they see a development of rights, which suggests that in some sense there are rights at stake before birth. Back to Roe -- no rights in a "full" sense is a telling turn of phrase.

Perspective Please

And Also: Tocqueville warned that strict equality might result in lack of individuality, largely as a result of social pressure. Reading Susan Brownmiller's memior on the women's movement, the point hits home. Not only in some pictures where nearly all the women seem to look alike (stereotype woman lib), but in her own accounts of rank and file targeting anyone who are singled out in any fashion, including via a single byline or media appearance. Problems of conformity pop up all over the place, sometimes especially in movements.

A few additional words about yesterday's post. First, the documentary is an example of an important principle: sometimes apparently small or minor things can be quite striking on some basis. The beauty school seems on some level trivial, but it is a real way to help Afghani women, also providing a cross-cultural bridge that is quite important as well. Likewise, the program is small enough that it is particularly real for the general public here as well.

This is why relatively small matters can be important in the scheme of things. Thus, an everyday event or happening might represent the state of affairs regarding equality or how women are doing today. Sexual harassment at the local work place and so forth. And, this works in various areas. For instance, a matter dealing with free speech -- perhaps a television show getting fined for a scene that selectively is deemed too suggestive -- might seem small. But, it stands for a wider principle, and has a direct effect on the general public. Little things matter.

[An interesting tidbit. While picking up my paper/coffee, I overhead the local store clerk talk about how he dealt with customers differently in this country. He went out of his way to be friendly, especially to all the women customers, and I have been noticing more customers of late. Annoying when I have to wait to pay for my coffee. Seriously, interesting bit about customer relations -- and one I wish a few more people around here did it. A bit of customer friendly training did wonders in the post office though I had to deal with an ass recently.]

They also can provide a means to understand broader themes. This is a problem with the NSA spying matter. When Clinton was involved in his troubles, the press had loads of stories addressing various angles -- we even later heard about Monica's handbags. The NSA spying matter has lots of aspects the join together into a greater whole, including the overall nature of the government's spying on the American public. Now, some effort is made to point to this fact, such as labeling rowdy protesters as "terrorists" when a handful of the group might do something to breach the peace. But, there really is no connecting of the dots, or consistent coverage. Such side stories can be quite useful.

As to that matter, a bit more on Sen. Levin. His underplaying of the NSA problem as merely something Congress might have to legitimize ex post facto rankles. This is an example of what people are annoyed about with the Democrats. This is not a matter of asking too much of them, asking them to do something they do not have the power to do (given their minority, lack of subpoena power, etc.). It also might suggest the need for new leadership. Russ Feingold is an example of a younger firebrand, but there are various ways for members to make themselves known.

For instance, the new senator from Illinois likes to take a more evenhanded approach . But, new voices are needed -- even some of the "realistic few" in Congress are really old guard faces, like Rep. Waxman. One value of new faces is that they might expect more -- looking toward a time when they will again be in power. They will not be satisfied with small things, such as protecting their positions of power (at some point, the Republican leadership goes too far, so even moderates in the minority will rebel ... as maybe the Republicans are doing in a small way respecting the President's actions -- the Hamdan orals suggests the Supreme Court is annoyed as well). Their eyes will be on the future, building up the movement, and having more energy to do so. And, more chance to catch fire with the public.

Anyway, it seems like the goal posts are not placed far enough these days. A questionable but perhaps fitting metaphor came to mind today. It also might be fitting given the state of affairs at times these days. I had a bit of trouble with my toilet of late, the flow suddenly becoming sluggish. Thus, it was an accomplishment when it worked without a hitch. Of course, the damn thing should work consistently. But, at some point, you are happy about small favors. And, you in the process do not consider the big picture -- this should be how things always work. You know, if you are black, it should not be a "great" thing for the cops not to hassle you. But, your expectations drop down considerably after awhile.

We need people who look at that big picture. Fight for the small victories, but keep in mind that it is not the only thing that matters. So, Sen. Levin ... sure, worry about making sure the President is doing things authorized and overseen by Congress (btw, maybe you should read Sen. Leahy's press release on the Patriot Act signing statement), but maybe those things are wrong to begin with. Thus, you found out compromising with Sen. Graham on the DTA did not quite work as well as it might have. And, keeping that in mind, including in media appearances, is something we can expect from the minority party.

If not, we need more new blood that understands the point.

Tyrant and His Posse

The Beauty Academy of Kabul concerns an effort by "Beauty Without Borders" to train Afghan women to be professional hairdressers. As noted on the documentary's website: "Economic development, distributed across the board, is one weapon against fundamentalist rebels and 'warlords.' Women who support their families financially earn freedom and respect." Though the documentary could have been a bit more well-rounded, it provided a striking look into an aspect of our involvement there respecting what allegedly was a major concern -- the well-being of Afghan women. The interaction between the American beauty experts (appearing a tad shallow at times) and the Afghan expats who helped them along with the women themselves was particularly striking.

Justice Scalia mouthing off about the detainee case shows a disrespect for the institution that quite arguably is worse than any crazy-eyed living constitutonalist offers. Though Hamdan's own lawyers were agnostic, five amici requested he recuse himself ala the Newdow case. Scalia did not, providing a lifeline for the government throughout. Meanwhile, Graham/Kyl of the "let's do nothing to clarify things except to strip/limit their rights" Detainee Treatment Act appears to have done some skullduggery to slant divided "legislative intent" their way.

The audio of the case btw was available by around 12:30, first showing up on C-SPAN3 and a bit later on CourtTV. As usual, I ask: why can we not have similar audio -- come on Souter, no one will even see you -- consistently when important cases (I reckon ten to twenty a term) are heard? The movement sorts play to cameras in various ways already (on the lawn, outside the court room, and so forth), while the words on already available. Sheesh ... they should have had a sort of "court on tape" for years now. The recent decision to label who's who on the transcript makes it even easier to do this. [Various Hamdan stuff, including an audio link, can be found at ScotusBlog.]

As to the DTA, Sen. Levin has strongly rejected those like his two brethren here who wants to make it retroactive. Suggests what happens when you "compromise" with those currently in power. Meanwhile, respecting the NSA spying issue, he went on Chris Matthews -- known to those in the know as a backhanded propagandist for the Right ("most people except for the nuts think the President is a good guy") to say that "the question is is it legal, or do you have to modify the law in order to make it legal." Of course, the censure thing is a bad idea before fake hearings to determine not what we already know (it's illegal), but the true breadth of the illegality.

In other words, another member of the Democratic leadership who will not stand up for the truth except now and again, when they find out that their timidity/establishment tone means shit (e.g., the DTA matter). Gary Hart was on Democracy Now! mentioning how he was upset at his own party for similar reasons. [See here, with another interesting story about South Dakotan Native Americans opposing the anti-abortion law there.] Guy became sort of a senior fellow of late, especially on security type matters ... writes a lot too, I have noticed. Anyway, in the words of Glen Greenwald's blog, where the Senate stuff here has been discussed of late:

That's an insulting and totally unacceptable response to an incredibly important (and purely legal) question. There is simply no excuse for this behavior in our system of government. Congress has a right to have questions like this answered, particularly when the DOJ, at the same time, offers long-winded responses to Republican questions that are nowhere near as fundamental or important.

This is in response to the non-answers to various Democratic questions on the NSA program, while the suck-up questions of the Republicans are used as they were meant to be: talking points. In other words, the response of a tyrant, "unfit to be the Ruler of a free People." A tyrant that has essential support from the legislature who "too have been deaf to the Voice of Justice." They too have ignored reminders of the circumstances and ideals of our settlement here. We must therefore, acquience in the Necessity of separation ... by the ballot. For, while they wage war against our ideals and liberties, we must hold them to be our enemies.

For what else is tyranny than a President who proclaims to be above the law, but when called upon it lamely tries to say it is but mere hot air that was always done that way? This was done in the Patriot Act, yet again, respecting an essential oversight provision. But, only Sen. Leahy spoke out.

Perhaps, again, we must modify the law in order to make it "legal." For is that not the only problem?

Entertainment News

The country star Buck Owens recently died -- I do not know of the man, but do enjoy country music among other genres. My mom is a fan and the local country music station was always her favorite while I grew up. The one station with country in NYC eventually changed formats, which is a shame. It is also rather ridiculous given the breadth of listenship in the overall urban area: mom no longer lives in the City, though is not too far away ... so still is out of range of the small country station that sometimes can be heard further upstate. We do have plenty of top 40 and latin stations though ... quite diversified! Seriously, especially with the popularization of country overall -- some really basically soft rock or contemporary artists -- a country station makes sense.

Meanwhile, (hat tip, Atrios) the Dixie Chicks again say it well:

Forgive, sounds good
Forget, I’m not sure I could
They say time heals everything
But I’m still waiting

I’m through with doubt
There’s nothing left for me to figure out
I’ve paid a price
And I’ll keep paying ...

Not so sure that is meant to have political implications, but still applies there too, huh?

A rookie on David Letterman's race car team died in practice yesterday. Letterman, a great fan of the sport for years, put forth a heartfelt statement showing his sorrow at the death. Basically, he said that he did not know the man personally, but it is tragic that Paul Dana died at such a early age (30). It had a nice feel to it and overall though Letterman's show is not always that good anymore, I still find him at certain moments particularly honest. Leno seems to be more phony, more of an act. Works for him, though. Still, Dave? Enough with the racist cab driver jokes, ok? [As an aside, the death was given a bit more cache given its connection to Letterman ... like it or not, all deaths are in some sense not created equal. Also, I guess the chance of death, the risks involved, adds to the excitement of the sport itself, huh?]

I also see that Alexa Vega, best known as the older sister in the Spy Kid movies, is popping up a lot of places. She was recently on a HBO movie concerning walkouts to protest inequitable LA schools in the late 1960s. Another cable movie was replayed in which she played a teen psychologically abused by her classmates, seriously addressing teen issues that help make high school a living hell for some students. And, I see that another movie (light teen fare) she was in is showing on cable tonight as well. Good young actress -- she actually dyes her hair black to emphasize her Hispanic side, her blonde mane not quite ethnic enough.

Talking about television ... West Wing (five days to the election) was pretty good last night, with Janeane Garofalo looking rather nice -- her pining for Jon Bon Jovi (Atrios also had a cameo) was particularly cute. But, again, I am ready for this long election to be over! Also, Related ended its season last week -- hopefully not its run -- in a two hour finale. It is too bad one of the few shows I enjoy ended its season so soon, plus I did not quite like a couple of its plot choices. Still, baseball is coming up -- looks like Pedro is in good shape. The new Mets channel is not on Dish Network yet -- YES Network (Yankees) still is not -- but hey, radio is fine. Nostalgic feel and ...

Sheesh ... what are you waiting for? Of course, the hundred of thousands of local subscribers are rarely referenced in press accounts as compared to Time Warner, Cablevision and Direct TV. Clearly, we are second class citizens.

Revenge/Retribution and the Social Contract

Sunday NYT Watch: An article on vegan firemen in Austin, a character study of the woman doctor on House, and a letter from a sophmore (high school) on how a teen series is "deliciously funny." Do fifteen year old girls actually say that? And, an amusing piece about Jewish women and Chinese food.

More on yesterday's theme, respecting the death penalty. I will use a post on the Slate fray as a starting point.

What is the definition of justice in this context? ... To blankly state that the victims want "revenge and not justice," is to seriously misunderstand them. Further, it is to seriously misunderstand the role of law and punishment.

The secularist measures crime by human standards and accepts, even embraces, the margin of error that would be unnecessary for a divine being to whom nothing is inscrutable. In a world of law, the absence of just revenge poses as great a threat to both liberty and order as revenge gone wild.

-- Susan Jacoby

In other words, simply speaking of "revenge" when discussing family members and so forth who want murderers executed is sometimes a bit too fast and loose. There is a self-righteous tone there, suggesting that they are just letting their rank emotions lead the way, while the speaker is a more reasonable sort concerned with balanced justice. There is a difference between revenge and retribution:

Jacoby treats revenge and retribution as synonymous, but perhaps there's a subtle difference. ... "revenge" [has] the most tenuous connection to the perpetrators ... Retribution, on the other hand, addresses moral culpability - which is why virtually everyone is repelled by the idea of executing a person with diminished mental capacity.

-- Cathy Young, reviewing Wild Justice: The Evolution of Revenge by Susan Jacoby

In the case of murder, it is very difficult to precisely say what is just. If you accept the idea of a social contract, you get out what you put in. Under such a definition try, convict and kill the bastard. It is precisely what he perpetrated on another, probably for a very stupid reason.

Three problems here. First, many societies do not have a death penalty, or one very narrow (likely arbitrarily so) and rarely applied. [Thus, almost forty states technically have the death penalty, but a mere handful have nearly all the people on death row, some having none.] They too have a "social contract." In fact, many societies believe the death penalty is simply uncivilized, unrepublican. Thus, after the country underwent major republican changes including a new constitution, the South Africa Supreme Court struck the penalty down on such grounds.

Second, we do not execute people "precisely" the way the person killed. That is the whole point -- we are not bloodthirsty killers, or at least, that is the case in theory. Third, the easy use of "bastard" rankles. I know this can be seen as a bit politically correct, since a murderer is likely a bastard. But, this has a certain flavor to it -- like we are executing not a person/citizen, but an "other." Someone without parents or family. Makes it so much easier, huh?

I'm not necessarily sure how I feel about the death penalty, but I think it has a place. It is a final solution to the question of, "How exactly do you deal with a human being who has irreparably broken the social contract?"

It is "a" final solution. A poor one, especially as shown in practice. A final word on the author of the comments. S/he works in medicine and is an opponent of abortion. I believe perhaps even an opponent of morning after pills, though perhaps just sympathetic to them. But, not of the death penalty. In fact, s/he is able to use rather slipshod reasoning to defend it, including treating the executed as a non-person of sorts. The same person who wants a woman not to have an abortion, even if we are dealing with a month old embryo.

I know there is a way to differentiate the two stances, and the person did not fully express views on capital punishment, but sometimes the disconnect is a bit glaring.

[Update: A reply to my Slate post is also worth reading. Overall, the person is more reasonable than my comments might imply, but there does seem a troubling outer coating that rankles. After all, the person thought Bush was better than Kerry ... though is a fan of Edwards. I saw some people like this, though surely E-K-B would still be favored over B-E-K, right? I repeat my annoyance at those who fail to see that Kerry, not just Bush and the press, was also the problem in 2004.]

Beautiful City

Dahlia Lithwick has a piece in Slate attacking the idea that "closure" is provided by execution. This is one of those things where you can have great analysis that boils down to a fairly simple truth -- the only "closure" there is in these situations concerns the people killed, as in their life on earth has been closed. The survivors live on, suffer on, and so forth. There might be some "resolution," but even then, only imperfect in scope. Maybe, this is enough -- no penalty is likely to be a perfect fit. But, the death penalty is problem filled. Imperfect closure does not save things.

[One person, who defends death row inmates, suggests life in prison is a better "resolution." The family does not have to relive the experience at sentencing hearings and the person is locked away. But, the family will have to relive it at trial and other places, most likely. And, some will fear the person will get out somehow, or consider merely living is too much. This will -- like the father below -- eat away at them. So, life without parole is imperfect as well.]

The piece calls to mind a very good Iranian film -- its cinema is rightly honored for its gems -- entitled Beautiful City (an ironic name for a prison). The film is based on the Iranian rule that a person can be saved from execution if the representative of the victim supplies a pardon. A sixteen year old murderer has reached maturity, so is eligible for execution. A fellow prisoner -- due out shortly after serving time for theft -- recklessly thinks providing a celebration for his 18th birthday is a good idea. Told why the person was not happy, the prisoner decides to try to obtain that pardon. The film takes us along for the ride, the murderer's sister and the victim's family complicating things considerably.

It is a tragic story, told in the deliberate way with focus on the characters (often young, even children) typical for the country's films. The basic idea arises from practices foreign to ours, but the film retains universal characteristics. The people, down to a sympathetic prison official, seem quite ordinary. They can very well be Americans. And, thus, such films make it more difficult to consider such people as truly "alien" -- people who we can stereotype and now consider on some basic level -- even more than basic -- like you and me. I simply cannot on some level comprehend the sense of "other" many are willing and/or able to put them in.

On some level ... the ability to formulate an "other" based on what turns out to be largely arbitrary characteristics is fairly typical. But, on some level it is quite foreign to our traditions, which understands some basic equality among the differences. And, the cinema is a small way to reaffirm the point.

Anyway, even without the theorizing, it was a good film. The acting in particular is worth noting.

Domestic Violence v. the Constitution?

And Also: Slate has links to some good stories on how our money is being spent in Iraq, providing input to that whole "you break it, you own it" philosophy. Or, you build them (bases), you own them ...

Georgia v. Randolph: "A warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident."

The ruling was 5-3, CJ Roberts dissenting, Alito not participating. A reasonable assumption would be that if he did, he would have joined his ideological brethren. Thus, 5-4. Kennedy provided the swing vote.

The ruling was a narrow one, but it does answer some who think that the 4A is dead now that Alito is on board. The case concerns the right of one owner/leaser having the right to block entry to the police, even if the other consents. They do: if they are at the door when the police arrive. If they are sleeping in the next room, things change. I think this is a bit too narrow, though there was probably no majority for a broader test, one that might be a bit more messy in practice. Still, if the police knows a husband is in the next room, not asking his consent as well is a bit ridiculous. But, the dissent alternative of going to the other extreme is worse.

Justice Souter wrote the opinion and was a bit sharp concerning the Chief Justice's disrespect for privacy. The ruling also concerns modern expectations of privacy and the pragmatism of clear rules in 4A law. Meanwhile, Stevens and Scalia snipe at each other in separate largely gratuitous opinions, concurring/dissenting. In the NYT, Linda Greenhouse used the cases to suggest the possibility of hard feelings and divisions on the Court, while the sniping was seen as pretty playful -- old foes raising their usual arguments. It is notable how such opinions tend to be a way for the judges (and their clerks?) to not only dryly note legal reasoning, but do so in a way that suggests this stuff affects them personally as well. Sometimes, arguably, laying things a bit thick.

But one case, but perhaps somewhat symbolic of what will come. One might also note Justice Breyer's concurrence, which suggests that his concerns for domestic violence cases* made him a possible vote for the Chief Justice (making it 4-4, and the case of no precedential value), and tendencies to split the baby. In this fashion, he too is a potential swing vote, and his tendency toward centrism belies cries that he is some kneejerk liberal. On that front, in fact, Justice Souter might be more consistent -- in a liberal Republican sort of way.

Liberal Republican? Sort of like the unicorn, huh?

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* Another potential application of this theme, which Justice Souter rightly suggests is makeweight here (if there is a chance the wife is at risk, personal safety supplies an exception to the rule), arises in a pending case. The case involves the use of 911 calls in trials without allowing the defendants to crossexamine the person who made the call. This is suggested as a legitimate exception to the right to confront your accuser, since the person is not really "testifying" when they made the call.

I really do not see how this follows, besides the fact that the calls can very well in various cases be fraudulent or in some fashion confused/untrue. The very reasons we allow confronting accusers -- a principle that even arises in some fashion when the quality of a machine used to incriminate (such as a breathanalyzer) is at issue.

Nonetheless, I just heard a preview of a talk show that suggests requiring confrontation here would threaten the fighting of domestic violence. To the degree constitutional rights do so, I guess that is correct.

Rosalind Franklin: The Dark Lady of DNA

And Also: Injured war vet Tammy Duckworth won a close Illinois primary, but the grass roots local progressive activist (44% of vote vs. Hyde in '04) came quite close even though the party bigwigs and moneybags were against her. Telling ... and upsetting ... besides having a good "image," did the best candidate really win? What message does this send?

I agree that faith is essential to success in life (success of any sort) but I do not accept your definition of faith; i.e. belief in life after death. In my view, all that is necessary for faith is the belief that by doing our best we shall come nearer to success and that success in our aims (the improvement of the lot of mankind, present and future) is worth attaining. Anyone able to believe in all that religion implies obviously must have such faith, but I maintain that faith in this world is perfectly possible without faith in another world…

It has just occurred to me that you may raise the question of a creator. A creator of what? … I see no reason to believe that a creator of protoplasm or primeval matter, if such there be, has any reason to be interested in our insignificant race in a tiny corner of the universe, and still less in us; as still more insignificant individuals. Again, I see no reason why the belief that we are insignificant or fortuitous should lessen our faith – as I defined it.

-- Rosalind Franklin in letter to her father; Brenda Maddox in Rosalind Franklin: The Dark Lady of DNA

James Watson was a young American scientist on the make in the early 1950s, managing to obtain a job with Francis Crick in a top English research facility. As discussed in his gossipy book The Double Helix, which I read in high school, the two got caught up in the "race" (at least, his view) to understand the nature of DNA ... the building blocks of all of life. A tricky term, "life," isn't it? Franklin's biographer quoted a work by Erwin Schrondinger -- What is Life -- which attacked the question partly in this fashion:

Life is matter that does something. The technical term is metabolism – eating, drinking, breathing, assimilating, replicating, and avoiding entropy … [Life as 'negative entropy'] … something not falling into chaos and approaching the dangerous state of maximum entropy, which is death.

It was overall an interesting story, young scientists in post-WWII England trying to unveil one of life's mysteries, and doing it really in a somewhat causal way. After all, it really was not their main job -- in fact, an early attempt to formulate a model of what DNA looked like was such a failure/embarrassment that their superior in effect told them to stop working on the effort. But, it still needled them, and they continued to obtain useful data on x-ray diffraction photos of the substance from another scientist in a competing institution. And, eventually was given permission to work on the question again, leading to an "eureka" moment wherein the characteristics of the "double helix" was discovered.

This eventually led to a Nobel Prize along with that third man and the race itself was portrayed in a PBS movie that I also saw in high school -- thus the matter was an interest to me for some time before I learned more about a woman ridiculed by Watson, but quite fundamental to the discovery. It is unclear, given the biases of the era and the way her work was underemphasized when the discovery of the DNA structure was first released (and at the awards ceremony itself), if she would have shared that prize. But, the matter was academic, so to speak -- the award is not given posthumously, and Rosalind Franklin died at age 37 about five years before it was handled down.

Franklin was the chief reason why that first attempt to build a model was deemed so embarrassing -- when shown the model by the duo, she bluntly described why it was so wrong. And, she had good reason to know: already internationally known for her x-ray diffraction expertise by the time she was thirty, Franklin was in the process of taking "photos" of the substance. One such photo, "Photo 51," led Watson to discover that DNA is a helix. But, Watson found Franklin hard to deal with, as did the person who showed the duo her notes -- a low key sort working at her lab, who (helped by some misunderstandings) clashed with Franklin.

And, it was his petty comments about Franklin (some other gossipy remarks were removed, but unlike the other participants involved, RF was dead by this time, so could not defend herself) in The Double Helix that helped lead others to be more interested in Franklin's story. Likewise, those concerned with women's history would of course be drawn to her story, more recently in the cited work quoted above. I read the book three years ago about when a Nova episode told her story, but missed its release. It finally was on again yesterday and provided added flavor to a remarkable life story, including her difficulties in an institution where the main place for the researchers to relax was men's only.

The biography is recommended. Rosalind Franklin was born in a well-off educated Jewish family in England, given a good education in an age where this was still notable for women, and ultimately clashed with her more religious minded father. Her head strong nature showed itself early on, but so did Franklin's intelligence, drive, and scientific abilities. She became an expert at the important if somewhat tedious (for some ... she loved the process involved) x-ray diffraction technique, in particular studies of coal, and helped the war effort by formulating a better gas mask. After the war, she obtained a position in Paris, where she thrived. The open minded nature of the institution as well as the beauties of Paris agreed with Franklin.

RF still felt that she had to return to England, though it turned out that her new position did not agree with her -- not the lack of fellowship with the other researchers, nor the drab surroundings. Given her clear skills and important research, this was too bad. As to the DNA issue, RF probably did not know how her research was used without her knowledge, since the duo did not fairly (at least this seems to be the general sentiments of various accounts) credit it when they published. As to its true nature, she was more a technician, so the theoretical analysis of her work was not as much her forte. Nonetheless, RF was in the process of formulating its true nature. And, if able to work with the others, she would have been able to analyze her work even more successfully.

About the time the "double helix" was discovered -- she immediately agreed with the duo's new model btw -- RF asked to be relieved of her position. She moved on to a new one and thrived, her work on viruses also eventually leading to one of her assistant's winning the Nobel Prize. This time, she was properly honored. Clearly having a wonderful future ahead of her, it was tragic when cancer (perhaps a result of radioactive x-ray experiments) struck at search an early age. In effect, she was pissed -- she was too busy to die. In fact, the disease first struck during a vacation in the U.S. -- RF loved to travel and climb. And, her life ended right before she was to travel to a conference.

Rosalind Franklin is a symbol of the ideal person of science, hard working and determined, while still having a cultured side that sometimes only her friends truly recognized. Great story, if one unfortunately shortened.

True Criminals

Although Pentagon officials have insisted that only a tiny fraction of American soldiers behaved badly, there is wide agreement that their conduct damaged the standing of the United States in the Arab world.

A dog handler was convicted for mistreatment of detainees, one of many as one colonel noted lacked "definitive rules and ... some clear guidance." The result was predictable. But, analysis has shown that the testimony was a bit too generous. The underlining "unwritten rules" (and those infamous legal memoranda were probably in some sense ex post facto defensive in character) was clear. Responsibility goes to the top. This does not erase the guilt of the rank and file being targeted in cases like these, no more than systematic abuse should let beat police officers who abuse suspects get away with their acts.

It does leave a disgusting taste in one's mouth. The true criminals are not people like this dog handler. The true criminals will never be in jail -- even some distant fear that their travel plans could be interfered with via International Criminal Court sort rules is deemed horrible to imagine.

No, they will get pensions, and even mention as possible '08 presidential nominees (you know, Bush's "wife"). One more thing to keep in mind in November '06, I guess.

Kevin Phillips Strikes

And Also: Putting side those losses to Korea, it is not too surprising that Japan won the WBC. Their pitching overall was quite good, they lost a few low scoring games, and they had some good hitting. A bit surprised Cuba had so much trouble with them right out of the gate, but Viva la Japan!

Kevin Phillips was on Democracy Now* talking about his new book, another one by Republicans upset at the path their party have taken with barely a decade of complete power under their belts. The book was also reviewed in the NYT Book Review, so we again have liberal/progressive leaning outlets using the other side, so to speak, to underline how bad things are going. His arguments seem relatively standard, with a bit more emphasis on their mixture of church and state, and you keep on hoping some tipping point would eventually be reached. After all, these people just KNOW how bad things are going ... but, the "reasonable" Republican/conservative is not in power now.**

KP has additional cache as a old guard commentator who spoke of a "new Republican majority" back in the late 1960s. But, on some level, he surely seems fairly mainstream. This is where the contrast comes in. Reagan, for instance, seemed pretty bad to many in the 1980s. But, in hindsight (though Bush II has cherry-picked some true believers, including perhaps Alito) there was some rationality there. Insiders spoke of this fact -- they were able to do their job without ideology interfering too much. I think this was less so in certain legal offices, but even there, there was some level-headness. And, fiscally, Reagan was less bad as his rhetoric implied. I guess we can say that he knew his limitations.

KP also basically called Bush a moron -- his disdain for the man is clear. (I shared the sentiment in 2000 and figured he would not win ... a thought that seemed right down to c. 9 P.M. on Election Day.) But, though this really is a serious problem -- akin to David Letterman's dumb guy being POTUS -- laying it on too thick probably turns some people off. He also went into the religious angle ... noting that in effect his base sees him as not only the leader of the Republican Party, but also of their religious leader. Now, this subject at times turns me off. For instance, much is sometimes made of the idea that Bush feels God speaks through him, telling him that he should be President or go to war with Afghanistan etc.

But, a felt religious mission is not necessarily a horrible thing. Some progressive sorts also are guided by something comparable. When people say something just felt "right" or they just "had" to do it, what does this mean, really? The problem really turns out to be his lack of humility, ignoring the imperfections of man, who over the years wrongly interpreted their own will to be God's own. Also, many note that certain sorts hope for Armageddon, and support Israel and the war for that reason. I really don't know if this is a significant factor -- though Left Behind books have a big enough readership to be a concern.

And, we support Israel for any number of reasons -- cultural (it is more "European" than other Middle Eastern countries, partly since many of its citizens came from Europe and even the U.S.), religious, balance of power concerns, and so forth. Rationally so too. The country truly is more democratic than others in the region, though the exceptions are surely worthy of note. For instance, it is by nature a Jewish state -- thus non-Jews are by design second class citizens. Putting aside the settlements and territory issues, this is a major problem. It is one that defenders of the country simply have a hard job confronting -- a true democracy pursuant to our understanding is one with equal citizenship. This simply is not possible there.

Anyway, when a chunk of your base is a certain religious group, one that wants to mix church with state, you have a problem. As KP notes, Republicans were helped in the past by a felt belief that the country was becoming too secular. Given the importance of religious leadership in the '60s and the beliefs of Jimmy Carter, I'm not sure exactly how this managed to occur. But, given the changes of the '60s, a period of re-entrenchment was fairly unsurprising. And, the modern age did have a secularist flavor in various respects. Anyway, now things are gone too far the other way.

[I'm a secularist myself, but don't find it too hard to respect religious belief in a way that some of my fellow travelers seem to find hard to do. Thus, I referenced a talk I had with a person who is morally against abortion, but deeply feels it should be a woman's choice. I respect such people a lot, even though her moral views on some things simply appalls me. Sneering at her, especially since deep down she is a moral person I surely can live with, is sort of what drives people to support some of the assholes in power today. Quid pro quo: respect my right to practice my moral beliefs too -- but ultimately, even many who are quite religious understand this basic American principle.]

I'm not sure how deep this whole thing is -- studies have shown, for instance, Bush really only received a relatively small (but given the closeness of the election, essential) push from religious believers in '04. But, forceful and energetic small groups -- just look at Christianity itself -- have been shown to be quite remarkable in forcing their views on society. And, with the rest of the party failing at its role as a restraining force -- bunch of bootlickers -- the religious faithful is able to have unbalanced power akin to Southern members of Congress in the past. The true believer nature of this class only makes it more dangerous.

Ultimately, KP argues for another shift of party control. He views impeachment as a no go, since it is deemed a sort of tit for tat matter (again, one abusive impeachment in between two presidents who well deserved it ruins it for everyone), but actually voiced a more radical approach: a sort of coalition government akin to the intra-war ones in Great Britain after WWI. I'm not sure how exactly we are to reach this point or where Bush would fit (is he forced to resign? maybe one has to read the book), but it does sound possible. At some point, perhaps if the Democrats win control back, parts of the Republican Party will discover the radical wing is just not for them ... or likely to lead to office in some areas.

And, perhaps, this would lead to a sort of 1850s situation, you know, when the modern Republican Party actually began. This is when the Whig Party truly fell apart, and the RP managed to rise from its ashes with various strands joining together, including anti-slavery Democrats. The Democratic Party itself ran into problems in the late 1960s, and in a sense, the resulting Republican majority was probably not the true end of the process. We did see, for instance, the Carter/Clinton Southern DLC wing of the party moving into the forefront ... and various Republicans are likely to be able to join with such individuals, if some major push is given.

Clinton is said to be the best Republican President we had in recent years. I think KP might be sympathetic to this sentiment and hopes for another such national leader to come to the forefront. With our population approaching the 300M mark, surely there are enough people to fill such roles -- and others of a more progressive flavor -- so that in '06 and '08 sanity can be regained. After all, even the Republicans often don't like their current leadership. Sheesh.

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* I really should watch more of this show, but have barely watched any sort of television news or news commentary for some time. I used to watch David Brinkley religiously (fittingly given its time slot), but perhaps the tenor of his replacements turned me off from that show some time ago. 60 Minutes never caught my fancy, nor did local news, which btw has an overly tacky three year anniversary segment on the war. I did used to watch some 20/20. Anyway, the show of course is shunted off to the 9400s educational block (Free Speech TV to be exact), while people like Media Matters have shown that Sunday talk shows are ridiculously biased against even a moderate left point of view.

C-SPAN does remain a good place to go for different viewpoints in three major ways, outside of its usual political reporting: the morning call-in shows, panel discussions/speeches, and book discussions on weekends. I have seen a bit too much of conservative leaning Stuart Taylor moderating legal panels, but even there some have addressed abuses of executive power and so forth.

Reference should also be made to last Saturday's America and the Courts segment [court of appeals oral argument segment -- again, the Supreme Court should allow this on a regular basis too] concerning keeping a torture victim repeatedly found worthy of asylum in custody for four years via evidence he could not confront. Two of the appellate judges (the other silent) were clearly on the side of the defendant, at times annoyed at the arguments of the government. I touch upon the case here.

** And, even the rational brigade is at times loathe to vote against their party, even though they know the current leadership is horrible. In 2002, I asked one such person why it would be so horror if merely the U.S. Senate would be in the control of Democrats, especially since the swing voters would be rather conservative. He referenced abortion as if total Republican control really changed that much on that front. [It has clear effect, though often negative for the life side of the mix, but much less than one might think.]

Later, in 2004, he -- to the rightful disgust/disappointment of some -- spoke of party loyalty. I really lost respect for him at that point. How many others basically sold their souls? Oh, McCain was his guy -- McCain has shown himself to be a Bush partisan, a fake maverick. The sort that you hope for, since he actually sounds like he knows reality, but deep down is (1) too conservative and (2) not really willing to risk too much to force the PTB to actually do anything special. This is why the whining about Feingold is annoying -- what exactly is the Democratic leadership doing that warrants care? Put up or shut up.

False Compulsion

And Also: The almost expected happened, not making it any less troubling. Korea finally lost a game, their third against Japan, ending the WBC at 6-1. The first two rounds were basically best of three, but the semifinals were sudden death. This was acceptable for Cuba/DR, who both were not perfect beforehand. But, a 3-3 team being able to get to the finals by beating a 6-0 team once ... a team that beat them twice already, seems unfair. They did win big, but that only tempers things a bit. Cuba getting to the finals btw is not surprising -- their season is ongoing at this point (so they are in game shape), and their ability is well known.

Billy Budd, perhaps the second most well known work by Herman Melville, is ultimately a parable. Budd is an innocent, impressed from a the Rights of Man (ship) by the British to serve on the Bellipotent during the war with France. Clearly instigated, he serves a single but deadly blow on a hated member of the crew. The captain, appealing to the rule of law -- especially in wartime -- called for an immediate on board hearing during which he reminded the doubtful men that they did not serve under the interests of moral/natural law, but the Royal Navy. He bluntly referenced the very buttons on their uniform. The hearing not warranting an appeal, he was executed the next day, honoring -- like Socrates -- his executioners. For was not the law upheld?

The captain protested, accepting the uncomfortable nature of the events, that his acts were compelled. The alternative (the stakes) was basically anarchy (and were they not fighting the products of the French Revolution?). And, the law they were obligated to follow -- though Budd's own impressment suggests at best a Hobbesian reason for such obligation -- also justified their actions. It was an honorable choice -- ultimately, the responsibility was not their own, they mere servants of a higher power. A power of some greatness, surely, again underlining the need to make some uncomfortable choices among the non-utopian options available. At the end of the day, Melville suggests the captain does not feel guilty about the execution of Budd, even though the Captain Vere (as in "severe") was heard muttering his name on his deathbed.

Helped by the fact that it was a device in Melville's earlier works, the general sentiment also is that the book is in effect a thinly disguised metaphor for slavery. The impressment angle underlines this, perhaps a not too far step from the rendition of fugitive slaves back to slavery. Also, the Captain himself is seen as a stand-in for Melville's own father-in-law, the great Massachusetts jurist, Lemuel Shaw. Chief Justice Shaw (himself against slavery) was denounced for his claimed "compulsion" to follow the Fugitive Slave Act of 1850. He was compelled to do so ... the central decisions were constitutional and legislative ... and there was a basic security need. The very union was at stake.

Justice Accused: Antislavery and the Judicial Process by Robert Cover concerns this appeal to "formalism," prefacing things with the story of Budd. Though referencing the play between the joints in some aspects of slavery jurisprudence, Cover only briefly notes the questionable "compulsion" in various fugitive slave cases, cases that turn out to not be as (sorry) black and white as claimed. [I think it would have been helped if he did a bit more in this regard, to underline the clear choices being made by the judges involved. The book ends on a weaker note than it needed to do so ... the opening chapters the best.] Don Fehrenbacher (best known for his great work on the Dred Scott Case) in his final work on the slavery question underlines the point.

For instance, surely, the Constitution obligates rendition of fugitive slaves. Nonetheless, it did not obligate states be forced to allow slave catchers to enter free states, seize without process ("self-help," a common law method of returning "property," I believe) persons (as they are so-labeled, no matter how many times they are deemed "property" in court opinions even by the likes of anti-slavery sorts like Justice Story) deemed in those states to be free and carry them back to slavery. Or, not even allow the slave to speak up at the stacked hearings set up, while they could be returned with hearsay evidence. If whites were so treated (and the "one drop rule" alone suggests how color is not fungible here), especially when the federal government was involved, the Bill of Rights alone would guard against it.

But, such fundamental freedoms (ratified btw after the Fugitive Slave Clause, and clearly limiting such open-ended provisions by design) are shunted away largely in throwaway lines. Anyway, the hearings were mostly pro forma and preliminary. If necessary, they could retain relief in the states where they were remanded. Not that such "non-persons" (surely after Dred Scott) had any presumptive "right" to court process etc. One more honest jurist basically admitted the fact, but deemed it a necessary evil under our constitutional order. The idea the largely afterthought Fugitive Slave Clause (one vaguely written and placed in Art. IV in such a way that it is even questionable that the federal government was meant to get involved at all) was a sort of deal breaker also was a legal fiction. And, as Shaw's biographer noted, various other problems of the 1850 law made his "compulsion" to uphold it rather questionable.

The claims of compulsion -- putting aside the judge's putative personal views (I find this public hand-wringing somewhat distasteful -- doth protest too much) -- therefore turn out to be somewhat flimsy. If anything, the compulsion is not of the clear legal sort, but a higher one -- a basic belief that the alternative is too dangerous to imagine. And, often rising from current events, or the tenor of the judge's times as s/he sees them. Thus, when CJ Taney injected his own views into the minds of the Framers -- many of whom did foresee slavery ending or tempered, if only by means such as liberal manumission laws that would allow blacks some form of freedom with the rights that brings -- the fears are clearly at times their own, even if their are pushed on to the Framers themselves.

The necessity argument might in various cases actually be true. But, it is a much closer call than suggested, and the severity "mandated" turns out not to be the case. Again, this is shown in the case of Budd ... per a recent analysis of the work. The "drumhead court" was in no way compelled by the events -- in fact, it appears that the measure was generally disfavored. And, the court itself seems to have been stacked -- the members somewhat unsuitable for that role, except perhaps as better able to be controlled by the captain's will. Melville has I believe the ship's doctor -- on Star Trek, Mister Roberts and other works often the most philosophical/learned individual on board -- reference some doubt to the whole proceedings. This too would be of a piece with the slavery/Shaw metaphor.

I first learned of the book from a reference of a strong anti-abortion opinion in What Roe v. Wade Should Have Said ... and abortion opponents do raise the slavery precedent as a compelling warning. The comparison does not quite work to the degree desired, perhaps, because Roe v. Wade took much "play" out of the joints, while decades of slavery jurisprudence gave judges much more discretion. The Supreme Court itself did not firmly speak of the earlier federal Fugitive Slave Act until the early 1840s, the later one in the late 1850s -- both in dubious, conclusionary decisions. Even then, not only did a few state judges want to resist, but there was no need for the force of rhetoric even respecting appeals to juries. After all, juror flexibility (with shades of nullification) was only firmly restrained in the late 1800s.

The "compulsion" of all actors in our government system shows up in any number of cases, some fundamental enough that comparisons to the slave crisis are apt. Abortion is a suitable reference point here, though the author (a big fan of Cover) of the aforementioned citation was not aware of Cover's view on abortion. [I tried a Google search to determine Cover's views and unfortunately was also unable find out. The balance of the evidence suggests he is pro-choice, surely respecting legal abortion* ... taking his general liberal views.]

But, so is the death penalty and questions of war/peace. Surely, on the third anniversary of a needless and criminal war. A war "compelled" by assumed weapons of which many at the time voiced clear doubt. No matter the lie angrily and/or self-righteously insisted by enablers. A war carried forth by a President** who acts like a tyrant, and a fairly incompetent one, which helps to explain his unpopularity. No matter how many try to cloud it ... making the DEMOCRATS the party that needs to defend themselves.

This does not make my line overall correct. It just makes the other side's claims of obviousness so much dross, useful means to defend the status quo as if there is no other way -- even for those quite uncomfortable with the situation. We need not like Captain Vere commands us "sign sad assent." All too many, even those with good hearts do just that.

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* On this point, I had a discussion that led to mixed feelings. She is personally against abortion, but deeply feels that abortion should be up to the woman. In fact, she was shocked that the state can selectively fund childbirth, even in cases of rape and special circumstance. [NY by court analysis of its state constitution is an exception.] But, she is the sort to vote for the people who put such laws on the books. The overall effect of such a vote is blocked out because of other concerns, including a felt belief Democrats care too much about certain groups etc. In other words, the heart and head silently debate, the less rational winning out. The results are sadly apparent.

** I surely know that "We the People" ultimately are to blame here -- we have popular sovereignty in this country. But, two provisos. First, in actuality, we delegate a lot of that power, so some real blame really needs to apply to our leaders. After all, we live in a republic -- we have agents and their responsibility is also clear. Two, ultimately, in certain spheres in particular the buck stops somewhere. And, in foreign policy and war, the President is said stop at this point in our history.

Oh, we also have the Declaration of Independence. This is surely a rhetorical device, not to be taken totally literally (or seriously), but I do not find it too troubling to pattern myself after that writer. And, George III, not the Parliament, was the tyrant. The President in our system is also the "head of state," the representative of the nation as a whole. So, blame on his personally comes with the territory.

Big Love ... the road to polygamy?

And Also: First heard about John Barrow, the winner of the Templeton Prize (outstanding work bridging science and religion) yesterday. Cheers to those groups that bridge gaps that in practice are not as deep as stereotypes sometimes imply. As Dr. Barrow noted: "The concept of a lawful universe with order that can be understood and relied upon emerged largely out of religious beliefs about the nature of God." Bridging gaps btw might be one of the most compelling goals/needs of today's society.

A free HBO weekend allowed me to watch Big Love, the new polygamy drama. Has potential. Of course, with polygamy comes those who must compare it to same sex marriage. Charles Krauthammer, apparently thinking one HBO drama is a clear tipping point (as you know, the Mafia is also legitimate -- everyone just loves the Sopranos), knows too many gay people to buy the conservative line hook, line, and sinker. He just thinks now we just cannot ignore that slippery slope.

I cannot take the concern too seriously. There are simply too many differences -- the problem with an illegitimate classification is that it is invidious and/or differentiates between two classes of people without good reason. The two are connected since the bad reason tends to be related to bias and disfavor more than rational reasoning. Nonetheless, one can attack discrimination often by comparing the two groups involved, and pointing out the similarities are just too many to warrant treating them differently. Such is the case with same sex marriage.

Polygamy has any number of differences -- other than discrimination of sex and sexual orientation, which is enough -- from monogamy to warrant treating it differently. Now, the particular laws might be too broad -- surely, the old time laws that made mere promotion of polygamy a crime would be an issue as might even be those that broadly ban "cohabitation" in all its forms or "purporting" to be married. Purely religious ceremonies seem different than full fledged marriage, the state kind. And, even if the practice is clearly attached to religious beliefs, free exercise is not absolute.

As a libertarian move, it is not totally irrational to talk about a right to polygamy. But, I feel the same thing about drug use, but I can differentiate it (especially the hard stuff) from other aspects of a right to privacy and so forth. For instance, religious belief (culture is on a somewhat weaker plane) is on some level a basic part of one's being. It, at least in our tradition, is not quite a "choice," but something that comes from inside and/or above. So, religious activities have a special place. Also, overall, privacy rights include determining who you marry, even if some state involvement enters the mix. I surely do not think the state should stop married couples from having "open marriages" to some extent, banning swapping and so forth. One can even point to the usual problems with criminalization.

But, if a wife allows her husband to have a mistress ... or even still have sex with someone he once married (and divorced, but on some level, they agree some "marriage" state remains) ... this is not the same thing as polygamy. Still, many people have open relationships which are in some sense not totally incomparable. I think they have every right to have such relationships. This would be a form of informal polygamy, one that -- to be honest -- is far from new. The establishment, however, of a formalized state structure of polygamy would be quite different. It is why legal parlor games and facial comparisons break down on closer scrutiny.

So, yes, polygamy is not a total irrational result of liberal marriage norms. One might note however that from ancient times the "slippery slope" of heterosexual monogamy was polygamy -- including in the Bible -- more than same sex relationships. All the same, it is quite different from monogamy -- of any type -- and the line drawing is far from arbitrary or even hard. And, people like me who are willing to consider polygamy as not horrible are quite in the minority. Law is not a game of "well being totally principled, this sort of necessarily follows." We do not have unisex bathrooms ...

even though they had one in Ally McBeal.

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PS The move a few years ago by the Massachusetts Supreme Court to declare bans on same sex marriages to be a violation of its state constitution brings to mind their moves against slavery two hundred and twenty years before. They alone strictly interpreted provisions in its state constitution respecting the "free and equal" status of all citizens to mean slavery was invalid. This reflected special state practice and understandings respecting liberty. Other states interpreted the terms in context of their own experiences. They, unlike some people, have perspective.

St. Patrick's Day

And Also: George Wythe, revolutionary and early opponent of slavery (though a Virginian, he put his principles to work, both in his personal and professional life) is one of those people who should be better known. I also was not aware until today his sad end.

Today's St. Patrick's Day, and we always had corned beef and cabbage (with potatoes) to honor it, though my mom was sure to remind us that her family was not Irish (surname notwithstanding), but American. 'Tis true that other than a love for Italian food and a last name ending with a vowel, my Italian side (my paternal grandparents were born in Italy, so my father was surely more ethnic in this respect) does not seem to show through. Anyway, though my name makes Sunday (St. Joseph's Day ... patron saint of children's medicine) somewhat more personal on some level, it was today that was honored if only in this small way while I grew up. The meal, by the way, is pretty good. Other than beer, I'm not sure if too many other Irish foods truly are.

The usual blarney dealt with year after the year today is the problem of including gays in the St. Patrick Day's parade. It should be underline that gays per se can go there -- there is no loyalty oath even as to Irish heritage to my knowledge. The difficulty is when certain groups want to fly a banner. This in effect honors something the Catholic Church still finds immoral. This is a step too far for the groups, since it is after all St. Patrick’s Day. And, they have a point, if a closed minded one. Nonetheless, the comments by a local parade official comparing forcing them to include the banner with that of the Irish Prostitute League or the KKK was just a tad crude.

I honored the day, since I would not cook that sort of thing even if I still ate it, by having Chinese food -- it had green things in it and I bought it with greenbacks. A better move is in the works for tomorrow, which is JP Day. This is the day to honor Irish/Italian mutts like myself, coming between the two saint days for those countries. I'm thinking of fries (potatoes) with tomato sauce -- bit of both cultures. I note that my niece is truly a mutt -- she of three nationalities. Mutts by the way, as shown by her cuteness and so forth, are the best sort of animals.

U.S.A. Out: Meanwhile, in yet another "last game" of Roger Clemens -- who retires more than some musicians have farewell tours, the U.S. was eliminated from the World Baseball Classic. Korea won 2-1 last night, so all the red white and blue brigade needed to do was to beat Mexico. They lost 2-1, which barely eliminated them based on runs allowed in innings played. If it was a home game, for example, they would have had an extra half inning and squeezed in. Ditto if they lost 1-0.

Also, Korea is 6-0 with two wins over Japan (3-3). But, they have another game (the two are like the Yanks and the Red Sox ... Japan liking to lose about as much), and if Japan wins, they go to the finals. So, Korea -- who did not have to win last night to get to the semifinals -- really has not gotten too much for their perfection.

Parton and Etheridge

And Also: Carla Martin, the former flight attendant, is just the administration's latest designated scapegoat. The prosecution, as Dahlia Lithwick at Slate has repeatedly noted, has been problem filled for some time. Prosecutorial overreaching being a dominant theme. But, hey, the system isn't broken. Noooo. Only a few bad apples. Incompetence ... the one saving grace of this administration. Imagine if it was this corrupt and nefarious in a more efficient matter!

Melissa Etheridge and Dolly Parton were on Crossroads (a country music show, not the Britney movie) last night, switching songs and talking about their music etc. This is a nifty idea -- a sort of role reversal that probably would work in many contexts. Consider politics. What if we had two people from different sides on, and they had to switch concerns. Thus, the liberal would discuss matters of religion and ways to limit abortion, while the conservative would worry about criminal justice and the rights of women. Note how they both, well care about these issues, but generally have a different focus/frame of things. More neutrally, we can have actresses of different styles switching roles, thus a serious one does comedy/farce, and vice versa. Hey, it works on that mommy swap show.

I personally have diverse music tastes, though I generally just listen to whatever is on a few select radio stations. There is a local college radio station that I generally enjoy -- a nod in particular, given the upcoming holiday, to their playing of Irish music on weekends. The jazz station also is enjoyable, but so is the usual Top 40 sort of things. Do not really enjoy rap, though some forms of hip hop and such can be good. I enjoyed the "Poetry Jam" performance that is in effect hip hop through poetry, which I saw a couple years back. Also, country music is good as well. This grew from my mom, whose teen years were in the 1950s, but for some reason (I asked -- she was not really too clear about it) prefers country. Note that NYC does not have a country music station.

Etheridge and Parton are both very good performers and interesting personages. Good contrast on stage. Parton's stage persona can be best described as drag queen, just a bit bustier and more artificial. She wears a big wig, lots of makeup, and has that kewie doll thing down. Comes off as very nice and chipper. Great legs for someone sixty. Etheridge has a more butch Indian look. On the stage yesterday, she had no makeup, and the sort of get-up familiar to those Clint Eastwood "Man With No Name" movies, just without the shawl (my sister-in-law had one of those things on Christmas Eve ... she wore it well). Comes off a bit more reserved, but about as blunt when she wants to be.

Parton has the "background" -- poor backhills gal, reflected by some of her songs, and inspired by the religious song tradition that so influenced country music. Johnny Cash also had some of that influence. She married young, but her husband stays behind the scenes to the degree that actually finding a picture of the guy might take a bit of doing without the Internet. Etheridge (who seems to blend country with rock a bit more, a blend that works out pretty well, though both have a lot of "ballad" sort of songs that tell stories) did not have such a music background and don't think she came from poverty either. She also likes to keep her personal life private, but has a harder time of it.

You know, the lesbian part and all. Some story there -- her long term partner left a certain minor movie actor to be with ME, they had two kids via David Crosby (Crosby, Stills, and Nash ... given his up/down life, not particularly great sperm material, but who knows?), but eventually the partner felt the lesbianism didn't "take." We find out all the time that relationships are not working out how we hoped, but when sexuality (especially bisexuality) enters the picture, suddenly more drama arises. Anyway, in time, a younger actress on a dare asked ME out on a date, they clicked, and a few years back they obtained a domestic partnership in California. ME survived cancer. Such the drama.

When her split was raised, ME mentioned that she is not out to be some lesbian role model, just someone who wants to do her thing and be happy. Good for her -- that is a sound philosophy, though of course you are forced into being something of a role model when you choose to be a public figure. Sometimes, it is forced upon you to some degree, and various stars do not really like that part of their careers. One can respect that up to a point, especially outside of the entertainment star realm. A musician or actor's private life is on some level part of their career -- their "public" likes to learn about it to some extent, and thus it comes up in interviews and gossip pages.

It is a bit different in respect to sports stars and the like though if they act like asses in some public fashion, they sometimes only get what they deserve. Still, a public figure is just that -- their privacy is somewhat restrained, and it comes with the territory. These two seem to handle it fairly well.

The Law Stands: Even During War and Outside Our Borders

In England amidst the clash of arms the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which we are now fighting, that the judges... stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.

-- Liversidge v. Anderson, 3 All E.R. 338 (1941) (Atkin, L.J., minority opinion).

I first read of this quote, which supplies a useful counterpoint to the old dictum that holds laws are silent during wartime, in Lawless World by Phillipe Sands. After the Civil War, the Supreme Court basically underlined that Lord Atkin voiced the sentiment that applied here as well: the Constitution applies both in war and peace. And, even before Sandra Day O'Connor (she's retired, thus the plebian reference) voiced her displeasure of current overreaching by her putative political allies (the tone has the hurtful disappointed tone suggested by other conservative criticism), her "war is not a blank check" line in Hamdi soon made the great quote list soon enough.

But, the minority opinion was particularly telling respecting recent events since it concerned an application of a WWII British detainee law, one at least put in place with some aforethought and parliamentary input (as was military trials in our country at the time -- this is why cases like Ex parte Quirin are simply not on point as means to defend the panels set up by President Bush). Particularly ironic, the defendant was a Jewish businessman. At any rate, the majority -- in a ruling later deemed wrong -- allowed broad executive discretion. This lead to the minority opinion to remind the other law lords that even in wartime judges have a role to check the executive, not serve as their enablers.* Clearly, I need to learn more about this guy.

Laws are not silent during wartime, even if they are (to summarize the sentiment on Chief Justice Rehnquist's book on the subject -- interesting read) more quiet. And, judges -- especially those on the front lines, so to speak (the f-up concerning the only person prosecuted related to 9/11 -- however weakly -- underlines the point) -- continue to serve as an important restraint. Others dissent ala Justice Jackson in Korematsu, dissent when the judiciary are asked to ratify overreaching:

[A] judicial construction of the due process clause that will sustain this order is a far more subtle blow to liberty.... A military order, however unconstitutional, is not apt to last longer than the military emergency.... But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. . . . A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image.

Such sentiments -- on both sides -- were discussed by those from Israel and Great Britain, both who have took them to heart (again, surely somewhat selectively), even though they have had more direct and long lasting problems with terrorist groups than we have in recent years. One person (snottily) pointed out the Britain was somewhat selective in the past concerning treatment of the IRA. I assume then that CJ Warren should be ignored in Brown v. Bd. of Ed., since he earlier supported Japanese internment, which hit closer to home -- he being governor of California, which did not have a large black population. Or, to ignore that over time, Western Europe learnt from their missteps, their human rights laws developing in the last few decades in part in response to such wrongful steps.

Sands also argues that the WWII era is quite relevant here since FDR and Churchill went out of their way to promote international law, especially in the Atlantic Charter. Human rights, a principle against aggression, and respect for free trade all were expressed there. It also led, greatly through our own efforts with a special assist from Eleanor Roosevelt, to the creation of the United Nations. But, like the proverbial Jewish scholars who outgrew their creator -- rejecting direct advice from Yahweh, since He gave them the right to interpret His laws -- now others are more concerned with international law. Great Britain, including respecting the International Criminal Court (within bounds) and environmental concerns, have retained some concerns -- though Blair's allying with Bush suggests they too are not quite as gung ho as they once were.

[Thus, I read today: "With the United States in virtually lone opposition, the United Nations overwhelmingly approved a new Human Rights Council today to replace the widely discredited Human Rights Commission. The vote in the 191-nation General Assembly was 170 to 4, with three abstentions. Joining the United States in opposing the resolution were Israel, the Marshall Islands and Palau. Abstaining were Belarus, Iran and Venezuela." The last country is interesting. Overall, this is sad.]

This is done at our peril. On Air America yesterday, a Slate writer (Daniel Gross, sounding quite serious) noted that even if we were totally independent respecting oil, many of our trading partners would remain dependent. Thus, we would be quite concerned when major sources of oil were somehow threatened. No nation is an island. And, reality dictates this, of course -- for instance, international rules respecting economic rules tend to be honored much more by the current leadership (though somewhat selectively per steel tariffs etc.). Likewise, even with all our rhetoric and dangerous moves, we do need other nations for other reasons too. And, this in some respect will require honoring international law. In fact, Sands notes that even free trade policies raise social matters (as suggested by those who are wary about the concept) that might come back and bite us too. Maybe, then, we will not even be gung ho in this area.

As with laws during wartime, international law is tempered in practice. But, on some level, it always exists. [The book quotes Bolton -- the unconfirmed U.N. representative -- noting treaties really are provisional. They aren't really "law" in any concrete sense when international relations are involved.] And, in the end, as with law generally, it benefits us. We ignore this at our peril. The current leadership, however, is surely quite perilous.

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* The supposed "compulsion" judges are under to further unjust laws again and again has been shown to be something of a legal fiction. This was shown in the slavery context -- the Constitution clearly speaks of slaves as "persons," who as a class have rights. Fifth Amendment. Also, the document goes out of its way to barely speak of the matter, especially in respect to the federal government. Compare this to the Constitution of the Confederate States of America which directly spoke of slavery. [It also directly noted the federal government should have limited control over commerce.]

This led anti-slavery sorts like Justice McLean even to suggest the Commerce Clause did not really cover slavery at all, since slaves are people, not commerce. [Justice Douglas later took up this theme, arguing the Fourteenth Amendment is a better means to secure equality in the business sphere.] Others, however, felt the Constitution and/or the times required some denial of such basic principles. Not always -- even Southern courts did things like free slaves who resided in free areas for set amounts of time. But, enough to underline the ultimate flexibility of judging. See also, Justice Accused by Robert M. Cover.

Zoo in Budapest

And Also: Katherine Harris (yeah, that one) has a book out about principled leadership. Not making it up. Reports are that Democrats are reading it. I referenced this as a rolled up newspaper following by a "bad bad dog," a few months ago. Or whatever. Clearly, I misspoke to some extent, since clearly it is now some serious move that (per Sen. Frist) helps our enemies. Oy.

I am a fan of Loretta Young and an early movie of hers that sounded pretty good was finally on television when this writer knew about it, namely Zoo in Budapest (1933). [A nod to another deceased movie star, Maureen Stapleton, not related to my knowledge to Edith Bunker.] Good little movie. An innocent -- parents died when he was young, grew up in the zoo's walls -- falls in love with a runaway orphan (she's 18, thus due to serve five years apprenticeship in a tannery or something). Young does look, well young, especially in pigtails ala that red freckled kid from Switzerland. Overall, charming movie with a good (especially for the time) animals going wild climax. Did look like it was filmed on location, at least at some zoo.

The last scene was a bit striking though. After saving a young boy, the lovebirds manage to end up together, the young zookeeper caring for the animals on the estate of the boy's parents. A bit restrained for someone who basically had gone native with the animals at the zoo (and got in trouble for stealing furs from patrons -- nifty that I just edited my chapter on animal rights and welfare before watching it; furs is really where I truly draw the lines ... it is in a sense worse than hunting on the frivolous harm to animals meter), but so it goes. More ironic is that -- after we grew to like them partly because they seemed a bit different from everyone else -- Eve said that "now we can be like everyone else."

I'm not sure if that is quite a good thing. It is true though that for an orphan, normality is not exactly the worse thing in the world. Nonetheless, it does highlight the tendency of various movies to be rather conservative, though some points are added to show that being overly so is a problem. For instance, Talk of the Town is a rare movie dealing with the Supreme Court. It is a Cary Grant/Jean Arthur vehicle (another two I enjoy, especially the latter) though the justice to be is played by someone else. Grant is a self-proclaimed anarchist wrongly accused for burning down a factory, but in the end, he leaves the judging to the professionals. I think there is a lot of potential in court cases for some good movies, and some actually have been made.

Anyway, a couple more comments about the movie. I guess the quick shot of Eve in her underclothes while changing into a dress sown for her benefit (to escape, since they always wore bland uniforms that lost nothing in the B&W) might have been a tad risqué at the time, huh? Compare this to one of the sisters on Related last night in her black bra ... it does seem sometimes, a bit of skin or the suggestion thereof is on some level more revealing. Also, the scene where the moronic cage cleaner starts attacking Eve is also pretty rough -- nothing much happens, of course, but the suggestion of rape is clear.

A word also about Mrs. Henderson Presents. I briefly commented about this last time and commented that it was not quite that good. It should be noted that it had its moments. One also gets to see Bob Hoskins nude, though this is not exactly a grand recommendation. [When the performers first disrobe, they want the men to as well, so we have a rare example of full frontal male nudity in a mainstream film.] The supporting cast, including the woman performers, is good -- other than the two leads, they do not have much to do, but this is sort of a pity.

And, though a scene that bothered me still does, it can be taken to give a shot of reality to the proceedings. It just is that it seemed a cheap way of going about it. Don't quite recommend it, but it might be a good rental.