Choosing the Right Faults

And Also: Sen. Dole put out an ad that tarred her opponent, in a tasteless and deceitful way, for going to a fundraiser (the horror!) sponsored by "Godless Americans Political Action Committee." The candidate is clearly a Christian, but any respect for such citizens is clearly "anti-religious." Wendy Kaminer was involved -- generally find her worth reading.

There sometimes are some interesting pieces over at the CNN website, including a recent one that cautions to pick a mate with the right type of faults. After all, we all have them. The writer notes she was upset at the lack of intimacy in her parents marriage, but her mother noted that she knew she made a compromise -- but the dad brought a certain something that more romantic suitors did not. The author found intimacy/passion more important, but realizes the husband had other flaws too. And, as her therapist noted when being underwhelmed at them, she knew that ... after he is human. So with one's spouse, as with ones job, friends, diet, and so forth.

This reflects a personal philosophy of mine -- you generally have to look at the totality of the circumstances to get a good judge of things, since things rarely are simply black/white. A reality that can make things as complicated as it makes things interesting. A reader of this blog might think "hey, he is pretty sure of certain things, like this election!" But, shades of gray does not mean lack of a clear answer. [Obama has flaws, but as with Gore/Bush, "they both stink" is a wrongheaded equivalence.] A 70% chance of rain might not bring it, but one better bring your umbrella all the same. And, that 30% generally keeps you honest.

Talking about next Tuesday, many more people are voting early this year. My sentiment is to be attached to Election Day voting at polling places, seeing it as a symbolic event where the electorate comes together to do their civic duty.* But, there are complications (new laws and machines only complicate things), including time related, for many people. And, given the numbers [sometimes a bit too many!], we are often not talking about solitary votes here either. So, I do see the benefits too. On-line and absentee voting is a bit more complicated, especially since it open up the possibility of problems, even a few credible cases of voter fraud (ignored by many speaking out about our alleged in person fraud problem).

I'll be voting the usual way, at the usual time, and perhaps via a lever machine that might be truly on its last legs. OTOH, the replacement is slow in coming, and flaws that have popped up in other electronic machines probably will not speed things up considerably. We shall see.

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* The new Kevin Smith movie about a couple of friends who make a porno underlines "conservative" can have various meanings. Conservative can be coexist with crude ... much too much for many people's tastes. Likewise, supporting same sex marriage can actually be the more conservative thing, which people like Andrew Sullivan write books arguing.

Some Thoughts on AA and the Supremes

And Also: Another conservative that thinks Obama is the only truly credible choice for a good President, this time on religious matters.

By chance, I came upon a discussion of the latest race conscious school choice plan case that reached the Supreme Court, one that argued that the intent of the Fourteenth Amendment was to combat racial caste and thus "benign" plans of this sort were constitutional (and probably good policy in some fashion). This is an example of the need to put words in context, including the famous words of Justice Harlan's dissent in Plessy v. Ferguson. Words in this context probably used more by opponents of race conscious plans than supporters. Consider the very beginning of Justice Stewart's dissent in Fullilove v. Klutznick, a racial set aside case involving federal contracting:

Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. . . . The law regards man as man, and takes no account of his surroundings or of his color. . . .

Those words were written by a Member of this Court 84 years ago. [Harlan's] colleagues disagreed with him, and held that a statute that required the separation of people on the basis of their race was constitutionally valid because it was a "reasonable" exercise of legislative power, and had been "enacted in good faith for the promotion [of] the public good. . . ." Today, the Court upholds a statute that accords a preference to citizens who are "Negroes, Spanish-speaking, Orientals, Indians, Eskimos, and Aleuts," for much the same reasons. I think today's decision is wrong for the same reason that Plessy v. Ferguson was wrong, and I respectfully dissent.

It is often said that there is a firm divide in judging, liberal vs. conservative, but though Justice Stewart was a moderate Republican, he also was on the liberal side of things (particularly in press matters; but, his concurrence in Roe was if anything, more powerful than the main opinion for its simplicity in underlining its legitimacy). In this very case, Justice Stevens (who dissented, on statutory grounds, in the Bakke decision) raised the specter of Nazi race laws in regard to the lengths one must take to determine who is protected by such set asides. Earlier, in DeFunis v. Odegaard (the affirmative action case that was never to be), Justice Douglas also gave the likes of Justice Thomas good fodder with lines such as:

The Equal Protection Clause commands the elimination of racial barriers, not their creation in order to satisfy our theory as to how society ought to be organized. The purpose of the University of Washington cannot be to produce black lawyers for blacks, Polish lawyers for Poles, Jewish lawyers for Jews, Irish lawyers for Irish. It should be to produce good lawyers for Americans and not to place First Amendment barriers against anyone.

But, when you actually read the opinions involved, you run into various problems. A honest analysis of the question suggests difficulties that do not quite seem to be adequately answered. For instance, Justice Douglas suggested the LSAT test was racially (or otherwise) biased, a reflection of the deep problem at hand that had to be faced, even if this one method was not used. A telling problem, since many affirmative action opponents simply do not provide adequate alternatives; the true radicals might be opponents who also demand the deep structural changes really necessary for a shot at true equality. The problem is that after he raised this possibility, Justice Douglas noted: "We are not faced here with a situation where barriers are overtly or covertly put in the path of members of one racial group which are not required by others."

This would possibly justify a race conscious solution as would past discrimination of the particular people directly involved. Even Justice Scalia accepts use of race in this case, most clearly shown in the school segregation cases, the remedies in place to "undo the effects of past discrimination." But, Scalia notes this is a neutral matter -- "race-neutral remediation" based on who was getting hurt, no matter what race. Such remedies, such as those tied to income, very well might disproportionately benefit blacks. But, that's legally acceptable [though de facto discrimination does raise concerns, Scalia generally does not think that should be the test]. Douglas also raised the possibility of "neutral" (the quotes suggest my doubts) solutions such as individualized judging of candidates based on such factors as hardship and fighting discriminatory conditions. There is some bite to this p.o.v.

But, reality was more messy than claimed by some of these opinions. For instance, let's take the case of plans dealing with blatant school segregation in the 1950s and 1960s. Plans were set in place with the understanding that some reasonable subset of the school should be "black" (somehow not taking Nazi-like laws to determine). Though some discriminated against community as a whole might benefit, in no way did such plans (or really could they realistically be) only benefit specific families or individuals hurt in the past. In fact, as long as it was intradistrict (per mid-1970s case law), the remedy very might include parts of an area that historically did not discriminate much at all. Repeatedly, the opposing justices also noted such plans did not deprive students of slots in school. Oh? It is likely that those refused entry into college or law school can get in somewhere. As seen in the recent school cases, the problem is that the slots are not totally fungible -- some schools are better than others.

Thus, in practice, the remedy in school segregation was not narrowly tailored to individual students that suffered past or ongoing discrimination. A remedy would benefit newcomers as well. They were also race conscious. Some, like Justice Thomas, raise doubts that even this hurts their case. Perhaps, all black schools with adequate resources are the answer. Why should blacks need to go to "white" schools to get an adequate education? Justice Thurgood Marshall would answer that the key to an integrated society -- one in which per Scalia, there is only an "American" race -- is one in which the races actually come together. This is especially key in the lower grades.

And, per Justice Blackmun, if we have to take into consider race to deal with racism, so be it. What is the real alternative? As Marshall noted, it does not erase the truth that "all persons have equal worth" to argue that "it is permissible, given a sufficient factual predicate and appropriate tailoring, for government to take account of race to eradicate the present effects of race-based subjugation denying that basic equality." Justice Powell in Bakke said that "societal discrimination" was not adequate to justify race conscious programs. Why not? School segregation had to be fought with broad solutions.

Furthermore, it took legislative action to truly start the road started by Brown to make true in roads (it remains fundamental as setting the constitutional rule) via threatening federal funds. So, those justices who suggested legislative action in this area as compared to judicial mandates (attacked by Thomas et. al. as undemocratic etc. anyway) was troubling also leaves something to be desired. Justice Stevens [cf. his dissents in Fullilove and Adarand Constructors v. Pena] is correct to be wary about the scope of such legislative moves. They can be nothing much more than some sort of patronage system or a little thought out "solution" that does not take into considerate the special care warranted in this area (even Justice Brennan et. al. claimed to require intermediate scrutiny in this context).

But, Stevens' dissent in the "strict scrutiny" ruling in Adarand suggests (his earlier Nazi citation notwithstanding), some legislative policies can past muster. Adarand called into question giving some more wiggle room to the federal government, which earlier rulings suggested had more discretion given express power to enforce the Equal Protection Clause in the Fourteenth Amendment. Justice Scalia had earlier also used a structural/Madisonian argument about the dangers of smaller communities and the lessons of history. This in a case involving an affirmative action plan in Richmond, Virginia. But, Marshall/Blackmun was right to see this as a bit ironic -- if locals, with the lessons of history and pressure from disadvantaged groups now with real voting power, tried to provide remedies, shouldn't this be a good thing?

And, go back to the true nature of the problem at hand. In his Fullilove dissent, Justice Stevens questioned the legitimacy of the federal contracting law (not just its breadth; again, cf. Adarand) by noting that "both federal and state laws have prohibited discrimination in the award of public contracts for many years." As with the reality of "neutral" voting laws, this is rather naive. The fact that equality was legally mandated -- after all, equality was apparently the rule since 1776 -- does not mean it actually was enforced in practice. As Marshall noted in his dissent regarding the Richmond case, if the government ignores private discrimination when handing out contracts, it very well might "perpetuate that discrimination." The solutions might be difficult, but when the problems themselves are not adequately expressed, we are in trouble.

Likewise, let's look at that famous dissent. It is best to key paragraph in full:

The white race deems itself to be the dominant race in this country. And so it is in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time if it remains true to its great heritage and holds fast to the principles of constitutional liberty. But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved. It is therefore to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a State to regulate the enjoyment by citizens of their civil rights solely upon the basis of race.

Justice Ginsburg (Adarand dissent) highlights how even Justice Harlan was not truly of the mind that whites and blacks were fully equal, surely not that race was of no relevance. This is telling enough. But, note the use of "caste" and "classes," a typical understanding of equal protection, one with origins in Jacksonian America and the ban on titles of nobility. Does a remedial race conscious program form "castes?" Use of race, gender or whatnot to promote "diversity" or whatever arguably will lead to "classes" of citizens, though in context, the word seems to connote unequal classes, like levels of nobility. But, neither is really about some "better" race. Harlan does argue the law cannot take account of race -- but this was not an across the board rule. He did not oppose miscegenation laws. This was a "social" matter. Slots in a private university also is not currently a "civil right" like voting (the likes of Justice Thomas do not even consider government benefits "privileges or immunities of citizenship"). Harlan opposed mandated segregation of colleges, but even then he specifically did not include public schools.

Later he notes:

Sixty millions of whites are in no danger from the presence here of eight millions of blacks. The destinies of the two races in this country are indissolubly linked together, and the interests of both require that the common government of all shall not permit the seeds of race hate to be planted under the sanction of law. What can more certainly arouse race hate, what more certainly create and perpetuate a feeling of distrust between these races, than state enactments which, in fact, proceed on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens. That, as all will admit, is the real meaning of such legislation as was enacted in Louisiana.

This underlines the necessity of integration and how segregation (even de facto) is so problematic. Justice Stevens (in an opinion before he supported rejecting the racial set aside in the Richmond case) underlines that some uses of race are permissible to advance this end, suggesting appearances matter as well:

In the context of public education, it is quite obvious that a school board may reasonably conclude that an integrated faculty will be able to provide benefits to the student body that could not be provided by an all-white, or nearly all-white, faculty. For one of the most important lessons that the American public schools teach is that the diverse ethnic, cultural, and national backgrounds that have been brought together in our famous "melting pot" do not identify essential differences among the human beings that inhabit our land. It is one thing for a white child to be taught by a white teacher that color, like beauty, is only "skin deep;" it is far more convincing to experience that truth on a day-to-day basis during the routine, ongoing learning process.

Ditto in respect to selecting police officers, broadcast licenses (to promote diversity) and certain other contexts. Selectively citing Harlan's concerns is sort of cheating. Maybe, racially conscious programs are not necessary to obtain this end, or (per Kennedy in the latest ruling) they must be less blatant than your typical racially conscious affirmative action plan. But, integration is a compelling state interest. The same can be said about some aspects of the move toward "diversity," no matter how some ridicule such concerns. Some sound arguments can be made that race based programs can cause such divisions, even such "hate," though few would think some absolute rule would be necessary. Justice Thomas takes the extreme view:

I believe that there is a "moral [and] constitutional equivalence," between laws designed to subjugate a race and those that distribute benefits on the basis of race in order to foster some current notion of equality. Government cannot make us equal; it can only recognize, respect, and protect us as equal before the law.

This is asinine. It does not necessarily justify it to put in different categories appointing Marshall or O'Connor to the Supreme Court in part because of their race/gender and earlier efforts to keep blacks and women off the courts (or from being lawyers). Likewise, government programs and laws most assuringly do at least help us on the road to equality. In fact, you can believe that equality is our birth right, not a right given by governments (positivists beware), but even then governments can make certain classes of people in various respects "equal" in the area of civil rights. For instance, vets and non-vets can obtain equal benefits pursuant to some civil rights law. To the degree we are "equal" outside the area of law's cognizance, the Constitution and such is somewhat besides the point. We are not talking equality writ large here, but under the law.

Harlan again:

Slavery, as an institution tolerated by law would, it is true, have disappeared from our country, but there would remain a power in the States, by sinister legislation, to interfere with the full enjoyment of the blessings of freedom to regulate civil rights, common to all citizens, upon the basis of race, and to place in a condition of legal inferiority a large body of American citizens now constituting a part of the political community called the People of the United States, for whom and by whom, through representatives, our government is administered. Such a system is inconsistent with the guarantee given by the Constitution to each State of a republican form of government, and may be stricken down by Congressional action, or by the courts in the discharge of their solemn duty to maintain the supreme law of the land, anything in the constitution or laws of any State to the contrary notwithstanding.

This hits to the core of the issue. We are not talking simply "equality" or not using race as a factor at all. We are talking about "sinister legislation" that interferes with the "civil rights" of blacks. Legislation that in effect excludes them from equal inclusion in the political community, threatening our very republican form of government in the process. As an aside, a state law (not just federal) that does the opposite seems benign. Anyway, this hits to the core of "invidious discrimination," which -- Thomas et. al notwithstanding -- is not the same thing as recognizing some differences, and/or attempts to attack the very problem at hand. Problems that underline, talk by Scalia of no race but "Americans" aside, we are racially divided.

Trying to ignore it by acting in some totally "racially neutral" way will not stop that -- in fact, in the end, it very might well further the underlining problem. Thus lies the dilemma with which we are faced. Even supporters of affirmative action -- and Stevens-like wariness in the courts is a good policy given various factors, including the perils of various good intentions -- realize the "solution" has problems. But, in practice, things are not as clean as the other side suggest as well. Still, they have something to teach us (to a degree) at the dangers of solutions to "compelling" problems. Justice Douglas again:

The argument is that a "compelling" state interest can easily justify the racial discrimination that is practiced here. To many, "compelling" would give members of one race even more than pro rata representation. The public payrolls might then be deluged say with Chicanos because they are as a group the poorest of the poor and need work more than others, leaving desperately poor individual blacks and whites without employment.

This simplifies the problem, but raises an important red flag all the same. Just pointing to a problem (e.g., crime) does not justify any solution (warrantless searches). But, it is useful to note that the "public payroll" are likely to have a disproportionate number of disadvantaged classes, as someone who worked for the New Deal like Douglas would know (e.g., the poor in civil service jobs). So, his example does not really amount to much -- yes, being black or poor would not obligate the city to give the person a job, but some program that favors them (in real numbers at least) makes some degree of sense. And, there are limits, especially if we accept some compromise in between the extremes. See, e.g., Stevens' dissent is Adarand, which notes the program in question had economic requirements, oversight and was overall of limited nature.

And, yes, race conscious programs are problematic and divisive. So is the status quo. Likewise, any solution is likely to be race conscious in some fashion. Again, special care can be used, limits be put in, and this still be the case. So, if possible, programs that largely focus on class can be used, even if the results are disproportionately black or Hispanic in various cases. Or, some sort of "head of school" rule. An honest accounting will suggest such policies are not just concerned with merit (the best of some schools are not that good) or free of race consciousness (often the real reason for such policies), or that "neutral" techniques like individual analysis of candidates will in practice take into consideration race. We have to make questionable choices ... doesn't mean we can make the best of bad situations and avoid more questionable options.

Overall, I understand the concerns of those who oppose race conscious programs, and think the other side often does not adequately address them. Given my druthers, I would avoid them, even when the ends (such as diversity) are to my liking. This sometimes would lead me to support more radical solutions, such as someone who opposes Obama's health plan in lieu of universal health care. And, I realize sometimes the likely alternative is as questionable in various cases. But, they are helped by some less than stellar arguments as well. A reasonable/rational policy needs to address the complexities and not be as tied to standard lines of rhetoric and dismissive scorn.

Simple, right?

Voter Suppression: Then and Now

Baseball: Tampa, after leading the toughest division in baseball for most of the season and whacking around rather good pitching in the playoffs (cf: the Rockies second half streak or the Tigers slip-up late in the season), decides to choke and provide us yet ANOTHER lame World Series. What a f-ing waste.

Charles Zelden wrote The Battle for the Black Ballot, one of those short form accounts of landmark Supreme Court cases, this one concerning Smith v. Allwright. This case served as the true death sentence to the "white primary," even if it was in some fashion run by the party itself. Note that the Twenty-Fourth Amendment, dealing with poll taxes in federal elections, specifically includes "primary" and other elections in its text. This underlines that simplistic interpretative rules are problematic -- in various cases, this might be seen as implying that amendments without "primary" are less all inclusive. Note as well that the Supreme Court used the Fourteenth Amendment to attack state poll taxes.

The all white primary was but one disenfranchisement technique, a myriad of "neutral" laws (including still lingering examples such as felon disenfranchisement aka former felon disenfranchisment, since we are not just talking about people in prison or even on parole/probation) put in place toward this end. Such laws also sometimes targeted other "wrong" sorts, such as poll taxes that in some cases were clearly in place also to harm poor whites. An understanding of history would help in seeing behind the neutrality, including in cases involving "at large" voting that historically was used to dilute the voting strength of local black communities. Missing the forest for the trees, such things look perfectly fine.

See also, various Republican voter suppression techniques. John Stossel has an idiots shouldn't vote piece up. I'm not sure many of his (conservative) supporters would want to know how that would work in practice. BTW, I recently saw the second half of Recount, the HBO movie about the 2000 mess. I'm reading a book by Zelden on the matter as well. Depressing, but useful. Unlike some, I cannot "get over" the hijacking of a presidential election. Blacks did not "get over" early defeats in white primary cases.

Disenfranchisement and dirty pool tended to stick in their craw.

Obama: Respected and Credible

It is not all good, but the fact that Obama is getting support all over the place (e.g., former McCain adviser Charles Fried) is telling. Consider the respect given by a conservative scholar to his constitutional wisdom -- the substance is notable too -- as compared to the knee-jerk b.s. (see also last link) from the McCain side. One side is at the end of the day credible, the other is not.

2-1, Phillies

We repeatedly heard about "90% chance of rain" and the clear understanding of many was that the game would be rained out and it might help the Phillies by letting their ace pitch three times. The game was played, if a couple hours late. Moyer (aka Grandpa) got his first WS game and did a pretty good job unlike his last two playoff games. The Rays came back from 4-1 down, but (as in the first) blew it via a wild pitch in the 9th. Oh well.

D.C. v. Heller Again

And Also: Rita Rocks was on Monday to Friday this week in a special sneak preview. The show is ultimately something of a pleasant trifle, one that -- as far as it is enjoyable viewing -- is probably harmed by such repeated viewing. It followed a regularly scheduled repeat of Reba, so it is also not likely there was many "oh let's see what's on" viewers either.

[As a preface, the headnotes are very useful here in summarizing the opinion. This entry was inspired by me happening to read over the opinion again. A recent article on the case was not the reason involved.]

A re-examination of D.C. v. Heller, the Second Amendment case from last June, suggests the majority ultimately has the better argument. It surely was not Justice Stevens' finest hour, providing a fine example of self-assured slanted jurisprudence in spades. The strongest part of the opinion is its argument that the core of the Second Amendment was to protect state militia, particularly from fears that the federal government will disarm them pursuant to Article I, sec. 8. And, the collective rights argument has some merit and arguably can be defended. But, saying "there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution" (not only via the Second Amendment) is overkill. Or, that "no one" has argued that the political process has not adequately handled the gun control issue. Or, that history etc. has provided us a "clear answer" to the question. Oh come on.

Early reference should be made to a blatant deficiency of all the opinions. Except to the degree they broadly spoke about "the people," the opinions did not discuss the Second Amendment's particular reach in federal enclaves and territories in general. The dissents did not reference the incorporation issue; the majority only briefly did so to note it is still open. Stevens did emphasize state concern that the feds would disarm their militia, but made no reference to arguments (even though the dissent below relied on it) that federal territories or the nation's capital (see Art. I, sec. 17, giving plenary control to Congress) was different in some fashion. Finally, no mention was made to Dred Scott v. Sandford, which referenced an individual right to "keep" arms in the territories. Ironically, if equally applied, an interpretation that could be used by the radical anti-slavery side as well. See, e.g., Akhil Amar's book on the Bill of Rights.

[The majority does note that "free state" is general in scope, not concerned with individual "states" in particular. But, more needed to be said, especially is such a novel case and in reply to the dissent from below.]

Stevens argues that the amendment is "distinctly military in meaning." The majority's linguistics analysis does not really compel one in the other direction, even if it thinks so. All the same, "military" can imply "armed forces" when what is clearly involved is an alternative, a "militia" that serves when necessary, but consists of citizens who usually go about their ordinary business doing something else. Overall, you need more than the mere words to determine what is at stake, including arguing that it is more than service in the militia itself. It is "entirely sensible" to take the majority's more expressive view, though relying merely on the Second Amendment to add hunting and self-defense is ill-advised. Better and probably more accurate to share the load, the militia and the common law right of self-defense often applied on two different tracks.

The majority was myopic here. The very question being examined was if the Second Amendment covered non-militia possession and use of firearms. The Court answered in the affirmative, noting that such use in various ways furthered the interest of the militia as well. This seems almost to be a "penumbra" approach, akin to not letting the warrant provisions of the Fourth Amendment reduce the scope of the "right of the people to be secure" in the relevant areas. The dissent took the other side, holding only the militia was at stake here. But, "service in a militia" includes people not in active service, in effect, the people are always in some sense "serving" this role. They are in those cases a resource, gun ownership keeping them prepared and ready to serve if necessary. As with a general "liberty" interest of self-defense, one that traditionally included weapons, this broad approach should have at least been used in the alternative.

The majority notes: "the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right — unlike some other English rights — was codified in a written Constitution." This was the immediate purpose of the amendment and the core reason the prefatory clause was added, but "undoubtedly [they] thought it even more important for self-defense and hunting." If so, the opinion does not really prove so in respect to what the Second Amendment secures. Scalia also for some reason feels it necessary to argue that drafting history is not really a good tool when dealing with such pre-existing rights. Does this mean drafting history and the like (what Madison etc. talked about when writing the thing) is not important for purposes of free speech and religious freedom, also pre-existing natural rights? Really? This path is simply not necessary or even advisable for where the majority wants to go. [As compared, perhaps, to Scalia interpretative preferences.]

The dissent with disdain rejected much of the evidence used by the majority. A blatant example is the dismissing, in a few paragraphs, the relevance of the English Bill of Rights of 1688. "The English Bill of Rights responded to abuses by the Stuart monarchs" implies that it as a whole was not really relevant to our constitutional history, across the board, but in fact multiple rights found there are also found in our own Bill of Rights (e.g., ban on cruel and unusual punishments). Yes, as referenced by William Blackstone, it was limited by parliamentary supremacy. It also favored Protestants (the official religion) and certain classes. But, the fact that we have judicial review and rights of "the people" as a whole does not mean the English precedents should just be swept away as irrelevant. We tweaked them in various cases, see the First Amendment; they still are clearly very relevant overall.

[Other important provisions of the English Bill of Right to our constitutional tradition even if directly applied without some change include: judicial independence, concern for taxation without legitimate legislative action, right to petition, legislative freedom of speech, and rules respecting due process of law.]

The dissent also did not think much of postenactment commentary, "views are not altogether clear, they tended to collapse the Second Amendment with Article VII of the English Bill of Rights, and they appear to have been unfamiliar with the drafting history of the Second Amendment." The majority does not solely rely on postenactment commentary; it uses it as one of many ways to determine the amendment's meaning (cf. U.S. v. Miller, relying on part on "writings of approved commentators"). So, the fact it is not "altogether clear" -- what is? -- is largely besides the point. Maybe, just maybe, "they tended to" do something many of the time believed was quite relevant. This includes Joseph Story, no matter how the dissent spins his reference. IOW, they were more familiar with the drafting history, or what was at least partially involved (which is all that really is necessary at the end of the day) in its inspiration.

Antebellum state cases were split and sometimes focused on state provisions not directly on point, so are a mixed bag. More so than the majority implies, but this stacking the deck is fairly normal as opinion writing goes. Stevens also does not think much of post-Civil war commentary. To wit: "All of the statements the Court cites were made long after the framing of the Amendment and cannot possibly supply any insight into the intent of the Framers; and all were made during pitched political debates, so that they are better characterized as advocacy than good-faith attempts at constitutional interpretation." Does this apply to interpretation of the Fourteenth Amendment and/or developing constitutional principles in general? Some of the sources also were constitutional commentaries not so easily dismissed as biased. Also, the majority emphasized the sources were just one more resource, useful in part since the framing was still fresh in mind while the people grew to adulthood. Historical arguments only take us so far, but each side use them, so the dissent dismisses them at its peril as well.

Stevens also quotes a 1876 ruling, though the quote does not really help him any:

The right there specified is that of "bearing arms for a lawful purpose." This is not a right granted by the Constitution.* Neither is it in any manner dependent on that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government.

As the majority notes, this underlines that "the right" referenced is not what was claimed by the indictment at issue in the case (as Stevens argues), but the Constitution itself. Using then understood constitutional principles, the Court held that the right (ditto the First, as noted by Scalia in a footnote, clearly implying the Second also should be incorporated against the states) was not guarded against from private or state invasion, even pursuant the Fourteen Amendment. The ruling in question was problematic in part because both the framers of the amendment and common sense held that an important national "privilege and immunity" was weapons for self-defense, and federal law securing such rights (including against unwilling or unable local officials) were constitutional. Scalia references post-war sentiment of this sort somewhat, but the Second Amendment focus makes it overall minor in importance.

[It is also not noted by either side, for their own reasons, that there was some development in the understanding of the Second Amendment. This developing view is generally copacetic to liberal leaning sorts, but is only selectively -- such as those who argue developments made a "well-regulated militia" made up of the people at large unworkable in practice -- by many collective rights proponents. As applied here, see Akhil Amar, an amendment originally often seen as federalist in scope -- state checks on federal power -- became more individualist in nature after the former sentiment led to the Civil War and such. Again, this leads the Stevens' dissent to have a "so what" nature comparable to those who cite early history to justify pro-Christian readings of the First Amendment. A one size fits all originalist approach again does not work as well as a more nuanced one might.]

Stevens also thinks U.S. v. Miller compels his view, but again is not helped as much as he thinks:

The key to that decision did not, as the Court belatedly suggests, ante, at 49–51, turn on the difference between muskets and sawed-off shotguns; it turned, rather, on the basic difference between the military and nonmilitary use and possession of guns. Indeed, if the Second Amendment were not limited in its coverage to military uses of weapons, why should the Court in Miller have suggested that some weapons but not others were eligible for Second Amendment protection? If use for self-defense were the relevant standard, why did the Court not inquire into the suitability of a particular weapon for self-defense purposes?

To the degree we are talking about the Second Amendment itself, reliance on the function of the arms in question as compared to the nature of the arms themselves, makes sense. Surely, as a loyal interpretation of the one direct interpretation of the amendment by the Supreme Court before last June. If nothing else, Scalia clearly tweaked the earlier ruling to the degree it implied that the right to keep and bear arms relied on militia use alone. The majority here argued that more was involved; advancement of the militia was in effect one of many functions of an armed populace. But, the net value for the dissent is unclear. As compared to an unregistered sawed-off shotgun, a handgun and other "arms" the average person would wish to purchase are clearly "militia" weapons.

[Anyway, a brief ruling from 1939 in which only one side showed up is really of limited value. Noting Marbury v. Madison also had only one side show up is silly, not only because it is not such a trifle but Chief Justice Marshall simply has more cachet than Justice McReynolds! This was just one of too many "oh come on" moments in the primary dissent.]

As to Stevens' annoyance that the majority overruled the understanding of hundreds of appellate judges that followed Miller, nearly all of the cases dealt with felons and the like. The one other federal appeals case involving a handguns ban, which split 2-1, was not even referenced (Breyer mentions the underlining law). Likewise, the Ninth Circuit fairly recently closely split on its application to "assault" weapons, while the D.C. and Fifth districts both found an individual rights view, so were not disparaged by the majority here. In fact, the lower ruling here added to a circuit split, which belies the four justices' apparent annoyance that the majority suddenly overruled the understanding of lower court judges up to now. This understanding was clearly much more nuanced and divided than Stevens' "it's so clear" dissent implied.

Justice Breyer's dissent, also joined by all of the dissenters, took probably a more appropriate (if still problematic) tack -- assume for the sake of argument, the majority's individual rights' view, but interpret the law in question in such a way to hold that it was not violated. Constitutional avoidance can justify a holding that there is a self-defense exception to the ban on usable firearms in residences though admittedly it is probably a stretch. All the same, a clarifying tweak of the law could have made it evident that a easy to operate trigger lock mechanism would satisfy things, though having a loaded weapon available (the alternative would be requiring a person to load the weapon when the burglar comes etc.) would still be problematic. And, if Breyer means that there is an exception only when there is some clear threat, well that is dubious. The idea is that there can be a general threat of crime.

This leaves the handgun ban, which the majority noted (per Miller) is a commonly use weapon, reasonably so, and thus protected by the amendment. All the same, it does not eviscerate the amendment's purpose, even taking an individual right's view, to uphold a handgun ban in urban areas. The majority did not ask for strict scrutiny though its reasoning would seem to warrant it. Anyway, given that a handgun ban in urban areas (passed by a local legislature, one with legitimate evidence of high crime etc.) would not deprive the people of the interests the amendment was said to secure. Other weapons could be used for self-defense, including against tyranny. Hunting would not be done at home; anyway, use of even handguns for hunting or target practice in other areas could still be open. And, the state could still call up average people to serve as an armed force (imagine if locals were prepared in New Orleans for this function when the flood came).

Breyer takes an "interest-balancing" approach that holds that gun policy disagreements does not make a certain regulation in this area illegitimate. It is telling that he cites "second class" constitutional interests as areas where such a policy (with dissents from various members of the majority ... and dissent in some cases) was upheld -- commercial speech, campaign finance regulations, government employee speech and (general) procedural due process (e.g., enemy combatants). Core rights such as political speech, abortion rights and the like would generally (for him) require stricter scrutiny. But, particularly given some history of strong urban gun regulation, a handgun ban might survive even heightened scrutiny. And, as Breyer notes, given the novel nature of this federal question, one should precede carefully.

Anyway, Scalia/Stevens were each one note in their own way, even though a more nuanced approach could have carried them where they wanted to go. All the same, Scalia does have the more convincing argument, if not quite taking the way I would have. This includes the phrasing of the right as the ability "to possess and carry weapons in case of confrontation,” when a broader liberty probably would better suit things. But, you take what you can, with the limits of the justice in question. Kennedy probably would have done a better job, but so it goes.

---

* The majority finds a useful early lower court ruling:

Johnson v. Tompkins, 13 F. Cas. 840, 850, 852 (CC Pa. 1833), Baldwin, sitting as a circuit judge, cited both the Second Amendment and the Pennsylvania analogue for his conclusion that a citizen has “a right to carry arms in defence of his property or person, and to use them, if either were assailed with such force, numbers or violence as made it necessary for the protection or safety of either.”

Not mentioned, the ruling also underlines the pre-existing nature of the right, just as the majority here notes the Constitution (both Art. I, sec. 8 and the Second Amendment) assumes that there is already an existing "militia," not one created by that document:

The constitution of the state or union is not the source of these rights, or the others to which we have referred you, they existed in their plenitude before any constitutions, which do not create but protect and secure them against any violation by the legislatures or courts, in making, expounding or administering laws.

Election Law Blog

I added Rick Hasen's "Election Law Blog" to the blogroll; his entry on the ACORN hysteria points to one reason why. Good example of taking things into perspective, even if your side is not 100% firm.

1-1 Again

"Tampa Bay never really got a huge hit, but neither did the Phillies as Jimmy Rollins & crew fell to 1-for-28 with runners in scoring position." That's a bit much, huh? This went pretty much as one expected though a heavy used Rays bullpen might get hurt eventually. Okay, let's go for 2 of three at Philly!

Replacing McCain

And Also: An article's subheading notes "Republicans and Democrats both launching robocalls." You have to read further, which many do not, to realize that Obama has "at least" four (at least one criticizing negative calls) while McCain has twelve. The first sentence of the article notes "more than a dozen daily robocalls" are at issue. Telling how that splits up. Meanwhile, my city council disgraced itself today to enable Daddy Bloomberg (and themselves) to run again since we need him as a savior or something.

When vacancies happen in the representation of any State in the Senate, the executive authority of each State shall issue writs of election to fill such vacancies: Provided That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

-- Seventeenth Amendment, Clause 2

A Findlaw article argues that an Arizona law that requires such an executive appointment be of the same party of the person being replaced (the governor of Arizona is now a Democrat) is likely unconstitutional since the provision gives the executive plenary appointment authority. In support, it is noted that those behind the amendment knew that legislative districts were malapportioned and in other ways might not be as reflective of the popular will as the governor. Overall, such a strict reading of the clause is plausible, but in no way compelling.

No evidence is supplied to show that those that framed/ratified the amendment was that concerned about malapportioned legislative districts. The essay ignores that current one person/one vote rules makes the issue much less a concern than it was in the 1910s. To the degree malapportionment still exists, as it surely does, would one person really be a better reflection of the complex nature of the electorate as a whole? The amendment was particularly concerned with senators being bought. Why would leaving it to the governor alone necessarily lead to less corruption of this form? And, yes, it's a good idea in a way to give the governor a chance to select the best person, "right" party or not. But, it also can be deemed more democratic to reflect the party of the person who the people actually elected in the first place.

The essay argues that it might be a good idea, for example if the senator left under cloud of partisan scandal, that the selection not be tied to his/her party. But, if we want to follow the exact text of the amendment in absence of anything else, it seems to give the legislature broad power when the people decide. IOW, "as the legislature may direct" specifically addresses that as compared to the executive appointment. In fact, this re-enforces my sentiment that a key reason for this option is that the legislature might not even be in session to "direct" anything at the time.

The essay argues that it promotes the "straightforward textual reading" of the amendment. Probably so, if not the only one, but such a reading of the First Amendment would also suggest "no" means "no" in all cases. Doesn't work that way. First, a reasonable interpretation can very well be that an ever existing executive might be the best able to fill the office because the legislature might not be in session for some time. Or, it might take too much time in general, an immediate appointment possibly the best policy (e.g., to cover the interests of the state or deal with a closely divided Senate). Some strings will not change that. Second, when a legislature "empowers" the executive to do something, it usually is inferred that there are some strings. For instance, can the executive set up a racially segregated panel to decide? Limits compelled by state law (and/or their constitutional provisions in particular) also might apply.

One clause should not be taken in a vacuum like that. This is not to say that it might be good policy to give the governor a free hand. But, I am not really convinced. If the governor refuses to follow the dictates of this provision (which will likely happen less than half the time), realistically, some compromise will be found. On the other hand, the governor might refuse to fill the office, leaving things to the people. Not a bad result really. Anyway, I do not think the amendment clearly compels plenary decision-making without any strings; a bare reading of text and history does not convince me otherwise.

Quickies

Prisoners can vote in Maine and Vermont, the latter (since the 1790s) making an exception for election fraud. Meanwhile, the NYT has a powerful article on how needy people are targeted for credit debt. When they go too far, of course, said companies blame them and push for changes in bankruptcy rules etc. Some years back, this is how many farmers were overextended, albeit slightly differently. Go Rays! [One fateful mistake, one missed opportunity (lots of futility), plenty of great pitching going to waste. Felt like a Mets game.]

Politics: Powell and the Ohio Voting Case

And Also: Recently saw a dance performance. Good to get a flavor of such things, but cannot say I understood it that well. My next experience of live culture is likely to be Mamma Mia! Good to stay loyal to the blog title sometimes!

"What if he is? Is there something wrong with being a Muslim in this country?" Powell said. "No, that's not America. Is there something wrong with some 7-year-old Muslim kid believing that he or she can be president?"

"It troubled me. We have two wars. We have economic problems. We have health problems. We have education problems. We have infrastructure problems. We have problems around the world with our allies. So those are the problems the American people wanted to hear about, not about [1960s radical William] Ayers, not about who is a Muslim or who's not a Muslim," Powell told reporters after the endorsement.

By now, I have no love of Colin Powell, who felt "duty" meant supporting/enabling a crooked war and administration writ large. But, like it or not, he is not far from a significant minority of the electorate, including those that once supported the war (etc.) but now feel disgusted with it all. You can say all you want how they should have opposed it from the start, how much they let themselves be lied to or lied to themselves, but it won't get you much in the end. A woefully flawed individual of this sort still will be respected, in large part not only because of his actual accomplishments, but because he is like more people than we wish to admit.

Anyway, the way he announced support of Obama mattered too. Who else of his stature firmly went against all this bashing of Muslims? The concern for Palin's competency, the tenor of the McCain campaign and all the rest, that was nice too, but honoring a dead Muslim soldier was a necessary act of decency. It is sad, actually, when something so obvious is said and deemed (rightly) of some moment for being said. So, even if you think it should not, his endorsement mattered.

It is no doubt faint praise to laud the Supreme Court for having the intellectual honesty to apply its legal principles even-handily, regardless of whether those principles favor Democrats or Republicans. At a minimum, justice is supposed to be blind. Still, given the lingering shadow that Bush v. Gore casts over the Supreme Court's objectivity in cases involving Presidential elections, even such minimal fairness is heartening.

I referenced earlier the Supreme Court's decision to stop the lawsuit brought by Ohio Republicans against the Ohio Secretary of State, which intended to force her to match up newly registered voters with DMB records or such as apparently required under HAVA. To simplify somewhat. [The lawsuit and the resulting judicial opinions are usefully summarized here, the source of the above quote. Electoral litigation as such here.]

The OSOS (a Democrat) argued she did what was required, it is too late in the day (including under HAVA), and such a private lawsuit was not allowed under Supreme Court precedent. She lost in lower court -- after an en banc panel overturned the original appellate ruling -- but the Supremes agreed on standing grounds. Yes, Virginia, the Supremes can be consistent, even when it hurts their ideological fellow travellers. The more strict standing rules will hurt in other cases, but that is how these things work -- the rule of law gives some and takes some away.

Apropos also is a 2006 election case also decided around this time of the year involving an anti-voter fraud measure concerning citizenship. Some at the time was concerned that it took the problem of voter fraud as an "compelling interest" given the lack of any real evidence of it being a compelling problem in practice. It also noted the alternative of provisional ballots (in this case, one had to show up with the proper id in five days ... quicker than some states that gave ten) though they leave something to be desired. Bottom line, however, the SC (again, via a unanimous per curiam) trusted the district court, focusing on time restraints.

The worthwhile main dissent to the en banc ruling overturned in the case here also raised the time restraint issue, one addressed by HAVA too -- sometimes, partisan lawsuits are sensible, but last minute ones of this sort are problematic. The dissent, like the dissents in the SC voter id case, also noted the flaws with provisional ballots. As to the standing issue, fwiw, the SC agreed with it. This even if the second dissent was not quite fair in saying "In a case full of irony, we have a majority of this court inferring a private right of action – on the basis of, well, nothing – to create utter bedlam in a state’s election."

That dissent also argued that one of the majority should have recused herself since her husband was running for state office. She noted with disdain that it is not like "only Republican candidates will benefit from preventing vote fraud." But, the litigation was brought largely because -- this time around (Republicans sometimes have registration drives too) -- more new voters there lean that way. Her vote did not turn the case one way or the other; in such a partisan tinged matter, the appearance of impropriety should be a concern. OTOH, it was ill advised for a federal appellate judge to be personal like that -- honestly, the bias here was a bit of a stretch. The net result, however slight, was to make it much more likely for some to see impropriety not likely present.

Well, at least rank partisan impropriety of a person sort. Taking everything into consideration, including other courts decisions on the merits, the en banc reversal was ill advised as a general matter. And, ideological sentiments very well might have something to do with it. The whole thing underlines the importance of the lower courts, the SC not likely to take the time to decide in this fashion as a general matter.

After all, if they decide more than around eighty cases, they get tired. Still, we had a death penalty case looked over again in September and two quick opinions in the first couple weeks of October. Such activity!

Stuff On T.V.

And Also: I enjoyed the film version of Starting Out In The Evening, a book about an elderly writer, his soon to be forty daughter who wants a child and the twenty-something who wants to do a thesis on him. The well acted and written film turns out to have good source material. I enjoyed its multiple points of view and short chapters that still provided an eloquent and touching window into a quartet (the daughter's boyfriend has a role later on) of adult characters. The book writer was fatter though.

Baseball: A combination of good management (general and on the field, the former important in making some key trades and minors depth), draft picks (helped by past failures) and play on the field led to the Rays success this year. The first to provided a chance for the last; poor managing in the Jets game last Sunday underlines how all are useful. Home field is also very important to them (though the Sox didn't enjoy it in the second round, they too had a great home record), including in the play-offs. Though record (same result this year) really should decide the deal, now it is the winner of the All Star Game. And, the AL won, so TB is favored there too.

Guess who was the winning pitcher? Yes, Scott Kazmir in the fifteenth, on short rest. Who lost? Brad Lidge with an assist long before by Billy Wagner not managing to get his one out. Hope Rays fans will appreciate that -- along with the Mets giving up Kazmir, not giving Bradford the money he wanted (i.e. less than they will pay Wagner for not playing next season), trading away Wheeler and for useful vet Cliff Floyd (also let go by the Cubs -- two-fer there for CF!). Yankee haters (including those who don't like the current dispensation) also appreciate that Don Zimmer (sick of the Boss) left to become the team's special assistant. Go Rays! I think they have a great shot.

[The spouse of a former Met recently arranged some Rays players to show up at an Obama rally. That doesn't hurt my support, but I was for them for months! Just do a search!]

DVD I referenced Anglo Files earlier, an account of an American expatriate on life in Britain. The book referenced The Queen, concerning her handling of Princess Diana's death. Helen Mirren won an Academy Award for her role, and I always thought about watching the film, but never was really in the mood. But, did finally watch it, and thought it very good. Very good acting all around, nice sense of place (so it seems; a historian of the royals is on the commentary track, so I guess it is pretty accurate), and nice insight in a unique point of view.

As the book noted, the Queen is from a different era, unable to contemplate how modern sorts didn't want a stiff upper list, but a showing of emotion. It is also amusing that Prince Philip is played by the same guy who now plays Bush 41 in W (also the farmer in Babe). Made me think of royalty too. For a nation based on nationality as such, that is, "British" or whatever, it probably makes sense to have the head of state to be such a living symbol. Of course, it originally had more power, but it has some point now all the same.

Television: New show on Lifetime with a favorite, Nicole Sullivan, one of the best things on the original Mad TV show (it also amuses me that Freddie's overprotective mother on iCarly also is a vet of that show). Rita Rocks concerns a mom who is depressed that she no longer is fun and all, but a boring mommy stuff in a dull service industry job (some Target-like store or something it sounds like ... it is realistic to have both parents working in this fashion). She decides she needs some me-time and starts to jam in the garage with woman who delivers her mail (Tisha Campbell-Martin) and an out of work neighbor. It is basically an old-fashioned sitcom (Lifetime ... t.v. for soccer moms) but Sullivan is an enjoyable actress, who very well might be able to carry a pleasant sitcom.

[For some reason, they are shoving multiple new episodes of the show back to back at 8:30 during this week. Why exactly? This overexposure of the like of some show repeated on syndication seems ill advised. A double episode, maybe. Episodes Monday to Wednesday (the easy upcoming menu on the t.v. reaches that far), a bit much.]

I caught Rachel Maddow's new show a few times -- she has her brain and heart in the right place, with a sense of humor about things too, but isn't over the top about it. Less so than Keith Olbermann probably. It was nice to see Kent Jones contribute too, KJ losing his spot in the radio show because of budget reasons. RM also was profiled in the NYT magazine last Sunday. Let me add that the extra make-up she sometimes wears during television appearances does not really suit her.

The photo in the article is more how I see her, and how she promoted herself in her radio show as well. But, some woman who I raised the point to said she liked how she looks on television, so who knows?

9=2

The idea at the beginning was 9=8, TB's manager's idea that nine players translate into one of eight playoff slots. Well, it looked like the Rays would choke at the cusp of the promised land, but they only showed their toughness by winning it in 7. Meanwhile, the Giants beat the lesser team after a slow start, the Jets went to OT (Brett style), but lost it on a longggg field goal against even less credible opponent. Not that the Giants should be too comfortable -- got some tougher games coming up, and they need to play better.

Palin and Abortion: [Somewhat] Sound in Logic, Bad in Practice

And Also: A pretty good definition of "religion" via a Justice Frankfurter opinion: "man's belief or disbelief in the verity of some transcendental idea, and man's expression in action of that belief or disbelief."

[Added (Somewhat) in the title given the first section of this entry -- the not making women criminals isn't really consistent.]

Salon flagged an emotionally hard-hitting new ad campaign raising the point that Sarah Palin would not make an exception for rape as a matter of legal policy. The website in question also flags the relevant Couric/Palin interview segment. The breadth of her personal position is suggested by her opposition to the morning after pill, though she does not make an official campaign position on the point. But, this is telling:

Palin: I'm saying that, personally, I would counsel the person to choose life, despite horrific, horrific circumstances that this person would find themselves in. And, um, if you're asking, though, kind of foundationally [sic] here, should anyone end up in jail for having an abortion, absolutely not. That's nothing I would ever support.

Pragmatically, her "no jail" position might be "consistent," but if a "baby" is involved, why not? What if she had two or more abortions? If she was desperate, and a friend helped her, should that person get jail time? A person who gives her an "abortion pill?" It belittles women to suggest only those evil abortion doctors should get punished legally as if she did not consent in the abortion, and if is criminal, should get punished too. Taken to its logical conclusion, this selective prosecution policy would lead to some rather interesting results.

Palin's personal position can be attacked, just as it makes sense to oppose personal opinions that lead to troubling results, and can even be seen as consistent. This does not make it right or good public policy. To underline the point, I answered this reply to the Salon post:

(1) that in a world in which the fetus is a innocent person, no matter how small, Palin's logic is sound, (2) that rape is not a statistically significant reason that abortion on demand could not be limited in at least some form in other circumstances, and (3) that in a post-Roe world, most states would likely allow exceptions for the circumstances described in the video, are all valid.

I also think that it is logical to hold that rape is not always the "best" argument for an abortion, even if you include "statutory" rape (interesting way to bring in many teen pregnancies). A woman who is raped very well might be able to handle a pregnancy and birth more than various others who wish to have an abortion. Examples can be supplied, I'm sure.

Likewise, if you think the embryo/fetus is a "baby," rape very well might not justify it in this case by itself. Others on the thread suggest logic isn't really key here -- see the authoritarian/blame the woman discussion -- but for logic sake, sure, we can put that aside. And, yes, it's a very small sub-set of abortions.

But, this doesn't really help Palin. Fact is, the electorate as a whole isn't as absolutist as she is. When faced with such extreme cases, we generally see how nuanced our positions truly are. Likewise, as that statutory rape issue suggests, some not quite extreme cases start to seem closer than they might think, close enough to not justify illegality.

What is rape, for instance? As a matter of lack of true consent, it probably amounts to much more than what is likely to be made criminal, surely proven. So "statistically" it really might be much more than one might think and not really addressed by post-Roe laws. Btw, Roe itself took place in a state that had no rape exception. Finally, even if only a small number of girls/women are hurt, it is such a terrible class, that the risk is particularly troublesome.

So, Palin very well might have a "valid" opinion. This doesn't make it true. Or, one held by someone I want as the leader of my state or potentially, my nation.

[We need more such replies, but at times, we find it so hard to take an "assume for the sake of argument" approach, even when we very well might come out the same place at the end as we believe all along.]

The True Threat: Voter Suppression

And Also: Apropos to my comments earlier as to substantive content found in surprising cases, sounds like David Letterman did a better than some might suspect job of questioning McCain. David does have a serious side that adds to his charm. Keith Olbermann also pointed out McCain apologized there for exposing "Joe" the plumber to media scrutiny, earlier in the day blaming Obama for doing so.

The "voter fraud" issue has been exploited by the McCain/Palin ticket though repeated evidence (fwiw to such people) has shown it is a non-problem. This is not the same thing as saying it never happens (though in fact evidence is that it close to never does), since nothing is 100% in this world, but that doesn't justify excessive replies that do much more harm than good.

[Consider let's say military recruiting. The voter fraud side will answer critics and say that a few excesses should not lead us to stop recruiting or provide excessive regulations. This for problems that statistically happen much more than voter fraud, as in more than negligible numbers.

In a sense, this turn around is fair play stopped the Republican challenge in Ohio -- the Supreme Court said a private party couldn't bring suit, just like it said earlier a private party couldn't bring suit to enforce a federal student privacy law.]

But, as a Washington Post article today suggests, there IS a real concern with voter suppression. Sometimes it is clearly criminal -- attempts to jam phone banks suggest the attempt to interfere with elections that have led to criminal prosecutions. Laws that encourage false positives, legitimate voters clearly likely to be brought in. Other times, it is a result of troublesome laws and practices that lead to thousands of legitimate voters to be burdened or even blocked at the polls. Just one example:

In Alabama, the centralized system triggered a new controversy over a constitutional ban on voting by people convicted of a felony crime of "moral turpitude." The governor's office in the past year issued a list of 480 crimes that meet the definition, including disrupting a funeral and conspiring to set an illegal brush fire.

Alabama's court administrator and attorney general issued a shorter list of 70 more violent and serious crimes. But Secretary of State Beth Chapman said the longer list was used to identify ineligible voters until three weeks ago.

Among those wrongly flagged by the database was former Republican governor Guy Hunt, who was driven out of office in 1993 after being convicted of a felony ethics violation for misusing inaugural funds. But Hunt, 75, received a pardon that declared him innocent a decade ago.

"Well, he's voted ever since the pardon, so he sure shouldn't be on any list now," said Hunt's son, Keith, in a telephone interview.

The former governor, who has run for office since he was pardoned, was included on a "monthly felons check" sent to a county registrar this year. The document, obtained by The Washington Post, contains 107 names of purported felons, but 41 of them committed only misdemeanors, according to the handwritten notations of a county staffer.

Note the mixed problem -- faulty on policy (even petty crimes) and results (badly administered). This was an issue in the 2000 election in Florida and very well might have thrown the election, given the error rate of "felons" was much higher than the margin of victory. This is much more of a grave threat to democracy than ACORN, no matter what McCain implied during the debate.

The let one hundred people free to prevent an innocent being convicted principle suggests depriving legitimate voters is a lot more important than a tiny number of wrong names on the rolls, names that don't translate into illegitimate votes. But, even if they did, I would be more concerned with legitimate voters disenfranchised. What should get more press and concern on the campaign trail? What does these days?

It goes beyond politics. This does not mean we should ignore the current regime is so much worse; but, neither side is free from sin either. Reality dictates we do not make the perfect the enemy of the good and all that, but the bottom line is clear all the same. The fundamental right to vote is the basis of our system of government. The fact the "wrong" sort of voter will lose out more times than not is not supposed to be the point.

Not This Again

The Red Sox, after the Rays made it 7-0 in the top of the seventh off their closer, decided this rather lame post-season (unless you are a Rays or Phillies fan) needed some excitement. And, won the damn game. This is getting old. Get drunk from the champagne on ice, and win one of the two games at your home park Tampa!

McCain Underlines Why He Is A Jerk

And Also: Sarah Lyall is an expatriate American journalist who went to England via marriage. This eventually led to an amusing account of her new home, The Anglo Files: A Field Guide to the British. FWIW, Christopher Hitchens likes it too.

Most of the people who pay attention to my writing are in some large part sympathetic to my point of view, though some who disagree have let me know they find me generally fair. So, when I rail against a usual suspect, it has a speaking to the choir quality to it. All the same, sometimes, it becomes crystal clear why I simply don't disagree with some of these people. They simply disgust me. McCain, who I did respect in the past (and read two of his books), has arrived there.

The third debate, on as the Dodgers showed why they are not quite ready for prime time (still, they called out Joe for a curtain call ... nice place to spend one's golden years for a good piece of change), underlined the point.* McCain apparently did better this time around; in fact, TPM etc. even like the moderator. Still, "better" is a relative term. A few examples will underline the point. Let's remember this is the candidate for President for one of the two major parties.

On some level, one might expect a bit more shame. I know this is quixotic, but hey, I said "on some level." The poll numbers (knock on wood) suggest that a lot of Americans -- even with someone they need to trust more than current politicians leads one to -- expect more too. In effect, too many agree McCain has become a sad character, one leading to the likes of William F. Buckley Jr.'s son and the like finding him a no go. Various examples, other than Sarah Palin, can be supplied. She's up there surely, but back to the debate. Here's something that pissed me off:

We need to know the full extent of Senator Obama's relationship with ACORN, who is now on the verge of maybe perpetrating one of the greatest frauds in voter history in this country, maybe destroying the fabric of democracy.

"One of the greatest frauds?" They register loads of people to vote and a tiny number (single digit percentages) of the registrations might be problematic. I'm not sure this matches the history of depriving blacks the right to vote by various illicit means. This aspect of the "history" of this country is where the disgust comes in. The disdain comes in also to the degree of all the other, including in recent history, examples of voter fraud. Plus the fact Obama has little real connection to the group. This involves the right to vote. What a bastard.

[BTW, think getting a driver's license or non-driver's id is a piece of cake? Check this out. I researched this for someone with a job, bank account, is registerd to vote, but has no government picture id. Just getting an official copy of the birth certificate might be problematic.]

Just again, the example of the eloquence of Senator Obama. He's health for the mother. You know, that's been stretched by the pro-abortion movement in America to mean almost anything.

That's the extreme pro-abortion position, quote, "health."

Yeah, health. Nice picture of a child born because of a health of the woman rule. More here, but the air quotes hits it home. Then, there is the Ayers B.S. A number of people -- up the mayor of Chicago -- worked with and praised this former 1960s radical. Republicans included. How about the shot at his wife being in the same firm as Ayers' wife ... and thousands of others? Now repeated outlets (see, e.g., the NYT) suggest "Joe" the plumber leaves something to be desired too. And, McCain is just full of shit on taxes too. [Just one example.]

Honestly, I want someone on the other side that I can have a bit of respect for, someone that doesn't make me nauseous. Someone who has the honor and decency not to let his (or her) ambitions lead to this sort of thing. I expect too much, huh? A few babies cry that Obama is flawed, so I just have to vote for someone 10x worse (I put aside the third party brigade, but the leader of the Nader** and Green Party candidates do leave something to be desired all the same) or focus on some b.s. reason to ignore the fact. This only leaves to more of the same.

And/or, a lot of muckracking on blogs.

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* The Phillies have become the Braves -- the fact the Mets owned them this year didn't help much. Note that the Yanks mostly took care of the Rays too. It helped that the Cubs collapsed; they very well might have been no match for the Phillies too, but probably would have played better than the Dodgers.

** A member of the "Nader Party" and having about as many supporters, though Democracy Now! keeps on putting him on as some grand alternative voice (the gentlelady who even black Dems felt went too far, now leading up the Greens, is not a grand alternative either), as the leader of the "Lieberman Party."

Quickies

Dodgers choked late on their chance to tie the series at 2, Giants add to the NL East teams that lost to lesser opponents, and the Rays knocked around Lester. Meanwhile, the Supremes handed down their first opinion, a per curiam reminding a lower court to listen to what they said. They also refused cert. on someone due to be executed, even with a quite reasonable claim of actual innocence. Meanwhile, Dems also sometimes take reckless arrogance to a new level.

Rays make it 1-1

The Red Sox moved up a notch but the Rays nicely filled in (pick your slot) for those who like AL East contests -- this includes the 9-8 eleventh inning marathon (over five hours) game um this morning. Still pissed the Mets got rid of Kazmir (even after his lackluster perf lately), but how about Wheeler, who came back from a game tying wild pitch to pitch three innings, helping the Rays to outlast the Sox? My kingdom for such a reliable reliever. Promises to be a series.

Breakfast with Scot / CT Marriage Case

And Also: An error did the trick in Game One, bad pitching in Game 2. Dodgers are down 0-2. It took to the seventh inning for the Rays to get a hit in Game 1, the score 1-0 Sox at that point ... lets not have Phillies/Red Sox series, okay? Blah.

[I later heard how timely the below truly is given today is National Coming Out Day!]

Breakfast with Scot is a pleasant little film about a former Canadian hockey player (now t.v. sports guy) who grows to love the 11 year old son of his partner's brother's girlfriend (victim of a drug overdose). Eric (Thomas Cavanagh of the U.S. t.v. show Ed) is particularly uncomfortable with Scot's effeminate ways (including a love of show tunes), which might be a sign of his homosexuality, or a reflection of his attachment to his mother. Eric might be gay, but he remains partially closeted, still hurt by comments made when he was a player ("Erica" and such). Noah Bernett is very good as Scott.

This film, nothing too surprising but still pretty good, is timely in that the Connecticut Supreme Court (4-3) has just decided that same sex marriage is protected under the state constitution. The state was a pioneer in recognizing civil unions legislatively. The Massachusetts Supreme Court held that a ban on same sex marriage did not meet rational basis review. The Californian Supreme Court went the strict scrutiny route as did the minority of the New York Supreme Court. This time, it was quasi-suspect scrutiny, which is where gender lies in the federal courts. But, the federal courts is only one factor in the Connecticut weighing scheme:

(1) the text of the operative constitutional provision; (2) holdings and dicta of this court and the Appellate Court; (3) persuasive and relevant federal precedent; (4) persuasive sister state decisions; (5) the history of the operative constitutional provision, including the historical constitutional setting and the debates of the framers; and (6) contemporary economic and sociological considerations, including relevant public policies.

The court here found California more "persuasive" than a majority of its sister state courts. It recognized a living Constitution approach. As to contemporary considerations, the bottom line was that a ban would harm homosexuals, while true equality would not harm the real interests of different sex marriage. The federal courts as a whole tend to be hurt by misguided reference to Bowers or limited analysis of the equal protection matter at hand. As to the equal protection analysis, the core issues are:

subject of long-standing and invidious discrimination and whether the group’s distinguishing characteristic bears no relation to the ability of the group members to perform or function in society ... It is evident, moreover, that immutability and minority status or political powerlessness are subsidiary to the first two primary factors

There is long-standing discrimination, and (one dissent notwithstanding) some support for equality doesn't negate it; see, gender as a quasi-suspect class. Anyway, the legislature making clear it does not "condone" homosexuality and so forth underlines the limited gains. Sexuality "bears no relation" and reliance on conformity to other states or tradition doesn't justify making it so. As to "immutability," the importance of sexuality to a person meets the test, putting aside the whole nature/nurture debate. Anyway, the court takes a sort of sum of the parts approach to the question, not allowing any one factor decide the question.

The dissents* focused on the usual dubious matters. As noted, one issue was the assumed powerful nature of homosexuals, though this does not make classifications by gender or race justified. The fact the state Constitution specifically lists various classes of people does not mean others might be "quasi-suspect," as precedent suggests. One dissent raised the children factor, though the majority noted the state specifically did not rely on that (cf. New York). But, many married people cannot or will not have children. This is surely not the only reason for marriage, so that does not work either. Anyway, same sex couples often have children as well. As the majority noted:

primary reason why many same sex couples wish to marry is so that their children can feel secure in knowing that their parents’ relationships are as valid and as valued as the marital relationships of their friends’ parents

Marriage has a central role in our society; a "separate but equal" regime of civil unions, especially given the continuing history of discrimination in this realm, is not true equality. When the Massachusetts Supreme Court first decided that a ban on same sex marriage was unconstitutional, I thought that civil unions might be a suitable path. Since my own state of New York does not even have them (New York City has domestic partnerships), that would be a leap. Still, is it really truly equality? Is a pragmatic compromise the right path for a body with "the role and the duty of the judiciary to determine whether the legislature has fulfilled its affirmative obligations within constitutional principles"?

Probably not. Anyway, our governor held that the state must recognize out of state marriages as a lower court suggested. It is time for our state as a whole to match the path of two nearby states; the fact we do not even offer civil unions is particularly troubling.

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[Update] * The NYT linked to the majority opinion; but the dissents (the second is a brief one that underlines the majority opinion has a high standard to overcome) of Kerrigan v. Commissioner of Public Health can be found here. Having read over them, let me add a few more comments.

The primary dissent (two judges) is not convincing as to the political power of homosexuals; besides, the other factors in the analysis make it somewhat besides the point. As to the fundamental right to marry, procreation was simply not the only reason for its existence. The second dissent (one judge) focuses on this alleged point, which is rather lame. It surely is not the only reason now, and equal protection concerns only emphasize the point. And, the first dissent doesn't adequately cover the argument that a sex discrimination problem is present here.

The first dissent would take a cautious approach, noting the state already protects same sex couples (but as the majority notes, only so far). This message is okay, and I was sympathetic to it, though the dross of the opinion hurts its overall effect. The second does not adequately answer those that question how depriving same sex couples of the right to marry is necessary to protect heterosexuals with children. As the majority notes, the policy hurts the children of many homosexuals/bisexuals.

You are left with the idea that it's reasonable to have a state policy that favors heterosexual (man/woman) child raising. But, a same sex marriage ban is a poorly fit way to do this, especially in a state that allows same sex adoptions. The fact that it hurts many of the class is is assumed to help emphasizes the point. Finally, just how helpful is it when civil unions (this also was noted by the first dissent) in effect have most (if not all) of the benefits of state authorized marriage?

Overall, such dissents -- even to the degree they make some good points -- come out to sound rather lame.

The View from The View

Blonde Shock: "Charlotte Feeney of Stratford says she can never return to her natural blonde hue, a shock that left her so traumatized she needed anti-depressants." Lawsuit rejected. Sigh.

But it has recently become more common to see politicians, especially John McCain, made uncomfortable by the directness of the conversation on daytime television, a directness that isn’t often found in the more traditional news media.

Salon has an interesting piece on the tendency of daytime television to deal with important issues of the day. This includes "light" talk shows and soap operas. The article points to McCain having to answer the gay marriage question:

It was a glimpse at what the daytime format makes possible: a breezy, casual, personal exchange as vehicle for a larger social conversation. The moment packs a wallop in part because the heft of the encounter is a surprise, and in part because it is delivered by a host, like DeGeneres, whom viewers feel they know intimately and trust. Instead of watching a political pundit conduct an inside-baseball transaction with a candidate, an audience can feel as if a friend has just asked the questions.

The "exchange" part, see also The View, also warrants comment. Daytime talk shows, see Regis, often have such a "chat" segment that is somewhat freewheeling. It also actually is a conversation or stream of consciousness of sorts, which is better than the too often regular alternative on nightly news and news commentary shows. Ellen actually "persisted" and provided a follow-up. This is how real conversations and attempts to get a (complete) sense of how things really are should work.

This seems to be verboten on many nightly shows, as shown when Andrea Mitchell let out on Rachel Maddow that "some" were critical of references to the Keating Five ... this in a piece centering on McCain's wife suggesting Obama doesn't support the troops since he opposed legislation that in his opinion hurt them. OTOH, ahem, McCain WAS involved with Keating, and apologized for it! This led to one of those "screaming at the screen moments," this time because Rachel just let that go. She in other words, in a small way, promoted ignorance. Thanks!

This is not to say that somehow The View is where you should get all your political information from; not quite. But, it does point to the value of various sorts of media, just as various types of reading (including comic books and such) can provide surprisingly nutritious fare at the end of the day along with some pleasure and fun. Truly slumming is so hard these days.

Various Thoughts

Anti-Obama BS Watch: Glenn Greenwald today highlights the racist crank that was front and center on an anti-Obama special that played on FOX last weekend. This column focuses on the true "radical" nature of the one time radical William Ayers these days. The "Citizen of the Year in Chicago in 1987" and involvement in an education grant supplied by a "right-wing Republican" suggests the BS factor. Of course, the never repent message being promoted here is rather anti-Christian too. But, hey, what else is new?

[OTOH, one second debate wrap-up suggested this sort of thing was not really a concern of the participants.]

Baseball: The Cubs and Angels, both leaders in their respective divisions, fell apart in the playoffs. This is not news, though the latter did win it all in recent memory. Why? It might be that they comfortably won their spots early, so did not stay fresh to the end. The Red Sox is a very good team, but that did not really justify some sloppy play (and some questionable calls -- why not a safety squeeze?). Still, the Red Sox have owned the Angels for awhile now in the playoffs, getting to be As/Yanks levels at this point. And, the Rays now have home field (and won the season series).

The Cubs really were sloppy in the playoffs. It should be noted that if the Mets did not choke, they could have won three of four (including knocking Zambrano around some) in the last week versus the Cubs. The Cubs had little to play for, yes, but that might point to some problems. Still, the team is not full with a bunch of rookies. The White Sox was clearly a flawed team as was the Brewers. The quick exits of the other two are more troubling for fans.

Book: The movie Bottle Shock was a not very good (if watchable) portrayal of an event that very well could make for a good little film -- the upstarts in California beat out the French in a wine-tasting, leading to the true rise of their fortunes. Apparently, there is another movie in the works about the events ... low bar to beat really. Anyways, I'm reading a book on the events (Judgment of Paris: California v. France and The Historical 1976 Paris Tasting That Revolutionized Wine by George M. Taber), and the movie seems not to be that loyal to history either.

Many movies are not, but when lesser movies also have that "problem," it is another concern. No wine fanatic, but so far, it's a good read with some nicely drawn characters. Something a little different too. So is the new show on the CW on Sundays at 8 (for the time being), Valentine, about gods among us who are trying to hook us up to retain their purpose in life (and immortality). The first episode was cute and something other than another crime or conspiracy or reality show, which are not really my cup of tea.

Might be a pleasant way to follow up football.