Tenth Amendment (Health Care Edition)

And Also: Interesting essay respecting a prisoner denied his right to vegan food, depriving him of free exercise of religion, especially as broadly defined and secured by federal law.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

-- Tenth Amendment

There is some belief that somehow the new health law (still called "bill" by many discussions) violates this provision. It is to be noted that by its terms, the Tenth Amendment specifically reminds not only the limits on the federal government, but that various powers are delegated to the U.S. and besides that prohibited to the states. See, e.g., Art. 1, sec. 10. But, the amendment is often used to focus on only half of the matter. As someone quoted Jefferson:

I consider the foundation of the Constitution as laid on this ground: That "all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people" (10th Amendment). To take a single step beyond the boundaries thus specifically drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible to any definition.

Jefferson isn't exactly someone whose views on the matter should be taken as authoritative. He after all didn't much care for Marbury v. Madison or McCulloch v. Maryland, less sympathetic than Madison to federal power, which after all was a main impetus of the Constitution in the first place. Jefferson at various times didn't quite seem remember:

Wikipedia notes: "The Tenth Amendment is similar to an earlier provision of the Articles of Confederation: "Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled." After the Constitution was ratified, some wanted to add a similar amendment limiting the federal government to powers "expressly" delegated, which would have denied implied powers. However, the word "expressly" ultimately did not appear in the Tenth Amendment as ratified, and therefore the Tenth Amendment did not amend the Necessary and Proper Clause."

But, watch out when the Supreme Court says that:

The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment, or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.

Art. I, sec. 8 etc. does provide a list of powers, and this is an important matter since Congress has limited powers vis-a-vis states with much broader ones. The removal of "expressly" and the "necessary and proper" clause in effect gives more play to the joints. And, surely, the federal government has broad power, especially over national matters. But, the power is still fixed:

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

Thus, even with this added gloss on enumerated powers, there is a limit to "foregoing powers" and those "vested in this Constituiton," not some general federal police power. The states have limits put on their power, but in the scheme of things, a lot is left, including a range of areas where we more often than not feel the brunt of governmental power. A core value of the 10A is that this federalist principle is reaffirmed.** As the Congress noted when introducing the BOR to the states:

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

This isn't a trivial matter. The First Amendment is itself "declaratory" in that Congress never really had the power to abridge the freedom of speech, except to the degree it did. That is, it references a fundamental right, one can say "natural" right, that was not removed by the enumerated powers in the Constitution except when there was some overriding state interest. Which remains, the word "no" in the First Amendment notwithstanding. All of the Bill of Rights in effect clarified the limits on government, some specific rights and possible abuse of powers deemed specifically worth dealing with explicitly. The Tenth Amendment in effect did this for the overall principle of federalism.

One of particular concern in recent years (with some excesses as shown in some immunity rulings) up to a point (whatever Thomas or some Cato Society view wants it to be*):

The regulation of an intrastate activity may be essential to a comprehensive regulation of interstate commerce even though the intrastate activity does not itself “substantially affect” interstate commerce. Moreover, as the passage from Lopez quoted above suggests, Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce. See Lopez, supra, at 561. The relevant question is simply whether the means chosen are “reasonably adapted” to the attainment of a legitimate end under the commerce power.

For good or ill, as applied in that case (concurrence by Scalia) to medicinal marijuana at least, this underlines (see the link) how the "individual mandate" and so forth works on federal commercial grounds alone. It is also a valid tax measure. The validity of the health law does not rob federalism of its power when appropriate. But, when appropriate, federal power is supreme. As here.

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* Thus, even Randy Barnett in the last link doesn't provide much hope, even though he thinks the Supreme Court precedent is wrong. Not that someone who brings up the specter of the federal government forcing gun ownership is totally worth our trust -- President Washington signed into a law that did just that, requiring members of the federal militia to own certain arms that I assume they all could not simply make at their home smith hut.

** [Update] The importance of the 10A is underlined by the fact that some Federalists (see, e.g., section on CJ Marshall in Mr. Justice) had a broad view of federal power. James Madison himself voiced the opinion that one reason why a BOR was necessary was that the necessary and proper provision potentially opens up a broad range of power that matched the range of purposes set forth in the Preamble.

Thus, the enumeration of certain powers in actuality had a somewhat limited value. The importance is underlined by something that once was deemed proper, but is now rejected even by those who support a broad view of federal power. That is, the idea that English common law crimes in effect were transferred over to the federal government as appropriate. So, there was no direct need to have a law against libel before charging someone for libel against the U.S.

There is still something of this when it comes to international matters, but much less so domestically. A national self-defense exception to concerns of governmental regulatory power (see, Mr. Justice, section on Justice Sutherland) suggests why your average John Yoo type support this sort of thing. Less so I. Potential in the document or not, once upon a time or now, a consistent limited government principle seems appropriate here.

Sotomayor Dissents [and Health Care Law]

And Also: When Gay People Get Married by M. V. Lee Badgett uses the Netherlands experience as a launching pad for a more extended look at the question with her economic expertise adding weight to the exercise.

As I wrote above, nothing too exciting in the substance of Sotomayor’s dissent, perhaps except in the fact that her opinion would have allowed for greater access to Courts for whistleblowers under the FCA. In the unsurprising nonmilestone file, Justice Scalia wrote a concurrence rejecting both sides’ reliance on legislative history.

Even less exciting. More on ruling. The opinion can be used to discuss the debate between the justices and the whistle-blower law. More on the value of allowing recovery in the comments here.

The first paragraph of this post (and the quote) was the original core, but it probably warrants a bit of expansion. The last sentence itself was just added and underlines the point. As suggested, a little case like this can be a learning experience. It suggests that the garden variety case is pretty uncontroversial though it might deal with an important issue of federal law. This one is even less so because the provision was amended by the health care law, so the only question that appears to remain is its retroactive effect. The SCOTUSBlog link discusses this point.

The case here was 7-2 with Scalia finding it necessary to concur separately to ride his hobbyhorse that legislative history is of no value in determining the meaning of the text. The fact even Thomas finds it unnecessary to do this, particularly when the ruling is not based just on that, underlines the tedious nature of this. Breyer's and Stevens' involvement in legislative activity in particular show them the value of legislative history as one part of understanding the statute.

Stevens has what seems to me a more realistic view of judging as a whole. As a recent portrait of Stevens noted:

According to Stevens, that approach has its origins in his brief stint as a lawyer on the staff of the House Judiciary Committee. “That was probably one of the most important parts of my education,” Stevens told me. He recalled an incident involving an antitrust law: “I remember explaining one of the tricky problems in the statute to one of the members of the committee. I got all through it, and he said, ‘Well, you know, let’s let the judges figure that one out.’ ”

What that told him was that “the legislature really works with the judges—contrary to the suggestion that the statute is a statute all by itself,” Stevens said. “There is an understanding that there are areas of interpretation that are going to have to be filled in later on, and the legislators rely on that. It’s part of the whole process. And you realize that they’re not totally separate branches of government—they’re working together.”

Again, the health care law has a provision that moots the general question behind this lawsuit as the comments by "Steve" in the last link in opening paragraph notes. First, the specific subject matter at hand:

A qui tam action, as most folks probably don’t know, is an action by an individual plaintiff to recover from someone who has defrauded the government. The way the statutory scheme works is that the plaintiff has to give the government the first shot to bring the case itself, and if they decline, then he can prosecute it himself. The government gets the recovery either way, but the qui tam plaintiff (“relator”) gets a much bigger share if he actually has to do the work himself.

The case is about the breadth of the exceptions to this practice when the material is deemed to be in the public domain, so in effect not worth the bonus. Again:

I like the new amendments because the kind of proceedings the Supreme Court was looking at in this week’s case — state and local administrative proceedings — are decidedly not big news, and we shouldn’t treat facts disclosed in such proceedings as though they had been printed on the front page of the New York Times. If there’s anyone out there who really wants to scour through the record of every state administrative proceeding in hopes of finding evidence of a Medicaid fraud case, then they’re most likely adding value in the same way that an actual whistleblower would. This is a powerful antifraud device and if you don’t like your tax dollars being stolen (or stolen a second time, depending on your point of view), it’s a good thing to encourage these qui tam actions.

Important little tidbit, one of many lost in debates over mandates and death panels. I'd add it underlines the value of private action to promote governmental ends. This is why it is so important that certain suits against states are held barred by creative readings of the 10th and 11th Amendments -- even if the feds could bring suit to let's say enforce federal anti-discrimination laws involving the handicapped, it has limited time, resources and at times yes will to do so.

Again, quite a lot of stuff from a little case. The news and blog potential, even without looking at the details of the specific whistleblower action here, is clear and clearly underutilized.

"Mets Season Not Promising" Post

The Mets hitting appears to be decent, but not great (especially without Beltran). The pitching: an ace/lefty reliever/closer and question marks. The NL East: tougher, even the Nats. Even Steve Somers is doubtful. The road to mediocrity.

Amish Grace

Susan Jacoby once noted in a book on revenge that forgiveness is personal. Amish Grace last night pointed out how hard that is, even when the person died and it includes his innocent wife. It is the best way, since hate is poisonous, but damn hard. Movie was pretty good.

New NFL Playoff Rule Is Sorta Lame

The statistics underline only a small minority of games really are affected especially since first possession touchdowns still will win the game. And, chance and good defense have a place. But, I'm ah game to see how it goes. Mets appear so mediocre.

Two NLRB Recess Appointments

The National Labor Relations Board was created in 1935 by the National Labor Relations Act and is tasked with adjudicating unfair labor practices. The board has been the source of increasingly rancorous slap-fighting in recent decades, and so while ordinarily the board is comprised of five members, appointed by the president and approved by Congress, it's been limping along with only two members since the end of 2007, while senators—then Democrats, now Republicans—gaily hold up the nominations process for the remaining nominees.

As noted earlier, Dahlia Lithwick discussed a lesser known but still quite telling oral argument on this point. Justice Scalia has a point -- if the rules are lax when something like this occurs, there is no pain for letting it linger on. Delays after awhile actually cause problems ... who knew? There has been a significant update. Let me add something cited by a New Republic article cited in DL's piece:

Obama has followed this pattern. Last spring, the White House reached an agreement with the Democratic chairman (Ted Kennedy) and ranking Republican (Mike Enzi) of the Senate Health, Education, Labor, and Pensions (HELP) committee to nominate two Democrats, Becker and Mark Pearce, and one Republican, Brian Hayes. Becker was a highly regarded professor at the University of Chicago Law School, as well as a counsel for the SEIU and AFL-CIO. Pearce is a Buffalo labor lawyer. And Hayes was a management lawyer for 25 years who also served as the Republican labor policy director on the HELP committee.

Well, Becker and Pearce were just recess appointed.* I personally don't think short mid-term breaks are what the Recess Clause covers, but practice and court review (even as to judges) have not backed me up. And, CJ Roberts appears to think it is a good idea. So, go for it. Things have gone on too long here. Plus, though important, these picks aren't the same as elite picks like Cabinet members or life time appointments even respecting to relatively minor district judges.

And, while focus in on health care or whatnot, important matters like this help explain why imperfect choices like Obama should be voted for over certain others.

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* The third nominee, a Republican, can be left up to the Senate. If Sen. McCain didn't start the process to hold up the other nominations, all three would have been voted for already. It is not a total win though -- a recess nomination only lasts to the end of this year. So, why doesn't the Republicans just let the Senate vote all three for a full term?

Well, that would the sane thing.

Let Them Sue

The case is weak, but it's fine if Republican Attorney Generals want to use the courts against the new health law. Better than cutting gas lines. So, let's not be too sarcastic here. Let them fail. And, maybe others can (as they do) take a chance with a better cause.

Health Care Law and Abortion Rights

And Also: Does "liberal" and "progressive" mean the same thing. David Sirota suggests not: "Liberalism sans progressivism -- i.e., public money sans regulation -- turns the Treasury into an unlimited gift card for whichever private interests are being sponsored."

Salon provides a useful summary:

During the celebration over the passage of healthcare this week, a noticeable number of pro-choicers could be found staring into their drinks and dejectedly contemplating what it all means. Have Democrats sold out pro-choice women? Were we thrown under the bus? Do Dems owe us now? What does the president's executive order on abortion mean in real terms? How is it different from the existing Hyde Amendment?

It is unclear how this legislation will harm abortion rights, but since money is rather important for them, it is clear it will in some fashion. As Katha Pollitt says, pro-choicers are deserve something in return for taking a bullet here. I agree that:

The way I see it, the Democratic Party and the Obama administration owe supporters of women's rights a huge payback for cooperating on its signature issue.

The Salon piece links to a good blog post by a Bronx abortion provider. For instance, there is an exception for rape? But, what exactly does that mean? Power dynamics in real life result in various pregnancies that really cannot be said to be totally "consensual" in various ways, even if it is not legally rape. Also, birth control fails even if used perfectly (and who uses things perfectly?). Finally, fetal abnormalities -- though covered here even in some conservative states -- is not an exception to Hyde. Will even this be covered?

The lines that are drawn by those against abortion turn out to be very arbitrary. The law tends not to be as messy -- it draws stricter lines in this area (though in practice, though not consistently, there might be more give) than some ideal accepted by various people who think there should be various limits. Repeatedly, in comment streams on this issue, e.g., people support abortion rights but say they shouldn't have to pay for them. As if health care is much of a "right" when you cannot afford to pay. And, suddenly $350-1000 (or more for some) is some trivial cost. Why do we get coverage for loads of procedures that cost less?

Some of the inane comparisons to "elective" procedures (like tummy tucks) are also downright offensive. The problems with Stupak partially arose from the fact that the current law (and this includes the health bill) is already rather selectively draconian. I am not completely sure, partially since it will take actual use to determine, how much worse things are now. Hopefully, not too much. And, unfortunately, even if you think it was horrible, I don't think the pro-choice side had the power here to stop Nelson-like language.

The fight for true equal health care is far from over.

A nod to the staff

On Keith last night, Lawrence O'Donnell (who doesn't quite seem natural when doing some of the more tabloid stuff there) referenced the Senate thanking their staff for the health care bill. Like Breyer, he once had the job, and respects their work more than others.

It's Done

Reconciliation was passed after some tiny tinkers were necessary since the Senate parliamentarian held they did not meet the "avoid filibuster" rules. And, in the end the it was done, imperfect, if a bit less so by House input. Thank you (and do better!).

Offside

The Iranian writer/director known for such gems as The White Balloon and The Circle, here provides depth again with the story of women trying to get in to see a soccer match. Yes, the title has a double meaning. Good DVD rental; interview provided worthwhile.

Robert Culp

Culp had a long career in film and television, including the historical interracial spy show, I Spy (episodes available). He was also great in The Greatest American Hero and made many appearances, including as CC's father on The Nanny. Thanks for entertaining us.

Liu Hearings Delayed: More of Same

And Also: Obama recently noted: "we can’t go forward without looking backwards and understanding that that was an enormous problem" ... no not about torture.

The National Labor Relations Board was created in 1935 by the National Labor Relations Act and is tasked with adjudicating unfair labor practices. The board has been the source of increasingly rancorous slap-fighting in recent decades, and so while ordinarily the board is comprised of five members, appointed by the president and approved by Congress, it's been limping along with only two members since the end of 2007, while senators—then Democrats, now Republicans—gaily hold up the nominations process for the remaining nominees.

Dahlia Lithwick discussed a lesser known but still quite telling oral argument yesterday. Justice Scalia has a point -- if the rules are lax when something like this occurs, there is no pain for letting it linger on. Delays after awhile actually cause problems ... who knew? The ability of the minority party to delay things is well known though things like this should be understood by more people:

Republicans, however, are now refusing to give unanimous consent and are blocking the hearings. Today, during a Senate Homeland Security Subcommittee hearing on transparency, Sen. Tom Carper (D-DE) announced that he had to stop the proceedings because of Republican blocks

Delays in the area of nominations, particularly appellate judges, is well known. Goodwin Liu's (for some liberal writings see here and here) committee testimony to be United States Circuit Judge for the Ninth Circuit was scheduled today. Liu has had some conservative support:

"I think he's very well-qualified," said Yoo, who is also a Berkeley law professor. "He's someone who would be chosen by a Democratic president, not a Republican one, but that doesn't mean he wouldn't be a good judge on the bench."

That website provides other evidence, including respecting vouchers, of why this is so. But, as they did for other things, Republicans have used the rules to hold his hearings (already delayed) up. Just one more way, helped by Obama focus on other things, the Republicans have delayed even bipartisan nominees. After all, they must do all they can to prevent a "good win" for the Democrats.

Meanwhile, remember ACORN? The NYT recently corrected itself for repeatedly providing erroneous reporting. Of course, court rulings about bill of attainders by Congress or long after the fact clarifying news reports didn't stop Republican attacks from hitting home. The damage done, corrections are found in little read inside pages.

[Update: Calculated delay tactics are expected and on some level I guess fair game, though at some point they come total b.s. and lead one to have little real respect for the parties involved. More people should have this sentiment by now as to the national party as a whole, imho.

But, as noted by various accounts (see, e.g., TPM), there is a dark side to the opposition these days, including of a violent and hateful nature that simply put it is the other party's moral obligation to strongly reject. Instead, too often, they instigate it with over the top rhetoric. If "death panels" and "baby killing" bills are at stake here, what is the right path, after all?]

Influential Books?

Various blogs have cited books that influenced them. I really don't know if any books really affected me in that fashion. A few authors have influenced me, but even there I'm not sure if they (maybe the Bible?) pushed me one way or the other as such.

Unconstitutional?

The case isn't really credible. And, a few noises from some VC types aside, reasonable people know it. Plus, no "mandate" -- a few without insurance will pay a tax (eventually/weakly enforced) to pay for the system they will benefit from. The term is misleading at best.

Justice Kennedy’s Jurisprudence: The Full and Necessary Meaning of Liberty

What do I mean when I say Kennedy is a romantic? I mean that, at base, he has a deep emotional belief in the centrality of the Court's role as a guarantor of real life justice.

Words seven years ago that are no less true now as shown by this somewhat brief but overall pretty comprehensive analysis.

Fuck: Word Taboo and Protecting Our First Amendment Liberties

An expansion of the now famous law review article into an interesting brief comprehensive look at the word in question. There is a difference between one about and titled "fuck" and one that references the word at various points. So, he is a bit simplistic.

Pelosi = Leader

[By chance, saw this. So, $95 in 2014 and $695 in 2016 if you have no insurance. That mandate is sure scary stuff! Imagine if more focused (with easy to read summaries) on what was in the damn bill? I include here the likes of TPM or Rachel Maddow, who spent lots of time on Rep. Stupak, appreciated up to a point, someone who ended up being called a "baby killer" by some asshole while supporting the bill on the floor.]

Lot's of talk of "Obamacare," but Nancy Pelosi had a major role to play. This includes an important strategy that has led to passage of much legislation (in her house especially -- lots of stuff held up in the Senate) while protecting the right portion of the coalition:

The precision was vintage Pelosi, who has passed practically the entire Democratic platform by intentionally narrow margins, allowing members in vulnerable districts to keep a safe distance from the President and his agenda, both of which have agitated the Republican base.

Pelosi also opposed some noises from the Obama camp to think small after Brown won:

During a mid-February conference call with top House Democrats, Pelosi made it clear she would accept nothing short of a big-bang health care push — dismissing the White House chief of staff as an “incrementalist.”

She staid the course, dealing with various shoals and sausage making, resulting in an end where even Rep. Stupak rejected Republican/oppositional talking points: "We stand up for the American people. We stand up for life." This includes reconciliation, which made the bill better. Thus, the push just to vote for the Senate bill quickly turned out not to be the ideal policy. [A letter was signed promising the votes were there in the Senate for the reconciliation package, but let's see how that turns out.]

This is an imperfect step toward reform. Many who voted for it wanted more but politics is the art of the possible, not the ideal. The trouble necessary to get it passed underlined why it took so far even to get this far. And, it is somewhat sad that even this pretty conservative approach got so much venom in return, too much of it based on b.s. and lies.*

But, in the era of naysaying, a nod should be given to Pelosi for doing the job she was elected to do -- be a leader.

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* There is a difference between lying and b.s. though some connection as well:

The liar still cares about the truth. The bullshitter is unburdened by such concerns. Bullshit-related phrases like bull session or talking shit also suggest a casual, careless attitude toward veracity -- a sense that the truth is totally besides the point. Bullshit distracts with exaggeration, omission, obfuscation, stock phrases, pretentious jargon, faux-folksiness, feigned ignorance, and sloganeering homilies.

-- Laura Penny, Your Call Is Important To Us: The Truth About Bullshit

For instance, Rep. Cao (R-LA) voted for the first House bill but not this time, based on abortion reasons that are specious.

The problems with being greedy

David Frum discusses the problems with the "go for broke" approach of Republicans on health care and notes the opening once available (see, e.g., Democrats on taxes in 2001) for a more conservative bill.

Abortion Funding

As noted here, health insurance deductions already provide a de facto abortion subsidy. As with claims that abortion is not generally funded by insurance now, a lot of misinformation going on. More.

Battery Park City Library

Stopped by the recently opened Battery Park City Library and it is quite a place. Great selection, nice looking overall, lovely view of the Hudson and a nice walk from Brooklyn Bridge/Chambers St. Congrats to the neighborhood; my parts had to wait quite long for a library too.

I will probably say a word about some of the books (a history of the Second Amendment saved for another day; there also is a look at the Supreme Court and Native Americans that might provide a resource I have been looking for) eventually. Also, the Reagan myth book I referenced earlier was overall a good read. The DVD selection was also notable, providing a diversified collection (foreign films, television and apparently the whole Friday the 13th collection included). [On the horror movie, of sorts, front, here's an update on a remake of a controversial 1970s film.]

One was A Walk To Remember. I caught parts of this multiple times on t.v. and found the DVD good as well, including the novelist/screenwriter commentary. The latter (as was done with The Notebook) did a good job with the book, good performances helping. The books might be too precious, but they have made good films. And, the author does believe in his material and has some special connections to some of it. For instance, the girl (played well by Mandy Moore) here is somewhat based on his own sister, for whom the film is dedicated.

I did not see the latest screen adaption (the couple don't quite look Notebook worthy), but perhaps the next one with Miley Cyrus will be worthwhile. Greg Kinnear is in it and he has turned out to be a very good actor.

Health Care Again

And Also: Being Erica followed the trend -- pretty good 'now,' somewhat boring 'then.' Is it just me or is there a disconnect here? Listened to the rest of the v-logs on the website; amusing stuff.

Keith Olbermann provided a collection of his somewhat heavy-handed special comments on health care tonight, comments inspired particularly by his father (who just died) pending experiences in the system, his absence from the show often a result of being there for his dad. I linked to my argument that health care is a constitutional right as well as a matter Congress has the power to legislate. One discussion was immediately a response to this:

Although Article I gives the Congress the power to legislate for the common good, I would never argue that this means that health care is a constitutional right.

On the other hand, anyone who argues that health care is not a Human right, is saying that it is permissible to leave an uninsured hit and run victim bleeding on the side of the road.

To review: Constitutional right? No. Human right? You betcha.

I responded:

Art. I provides a means for Congress to legislate in the area. It is not necessarily the place to look to determine if health care is a constitutional right as such.

If it is a "human right," and we are all humans, it would seem to be a right we all have that is not enumerated as such -- a "right" being something that has remedies, and government is in place to better secure them, at times obligating them to help do this. This might make it a 9A right. I'd add that in many cases, the average citizen has no legal obligation to help such a victim.

I also would think that it would be hard to truly uphold equal citizenship if health care is provided unequally, or that a certain select group is deprived of it. This would make it an equal protection matter, particularly since the government is already involved in health care. Equality would also affect non-citizens, since they too are protected by the Constitution in various respects. Since Congress has a particular duty regulate interstate commerce, inequities in national health care policy would be its logical bailiwick. Similarly, federal tax policy at times tries to promote equality.

Other constitutional hooks can be considered.

See here. Someone else was resistant to the idea of framing it as a "constitutional right," and some refused to accept that we all had some sort of constitutional "right" to such protection. A "right" doesn't mean the best care is secured, any more than a right to a lawyer means you have some "dream team." It doesn't mean that courts are involved in all aspects of the question; a possible comparison is how separation of powers is a constitutional matter that often is left to political branches to be decided. It is no less of constitutional dimension.

As I noted, perhaps strategically the first part is not the way to go. All the same, many agree with Nancy Pelosi when she speaks of a "right" to health insurance, one Congress clearly has the authority to secure in various ways. Bottom line, if it is so much a "human right" or basic matter of fairness, chances are there are ways for Congress to handle the situation. And, the word has a certain cachet that underlines the nature of the issue:

The word "right" is there already. I don't think it's mandatory to use it, but it doesn't fudge the issue since people basically use "right" here to mean a certain protection that state provides as of right, a certain special obligation that is different from good roads or other nice things that are not as essential as those basic things necessary for the general welfare.

Though lots of verbiage is provided, the idea that this all is somehow unconstitutional really is not something I take seriously. Not that it and other stuff (like "death panels," which as Keith notes, has hurt the promotion of a fundamental matter -- being prepared for end of life decision-making, including when you can't make your own decisions any more) is not repeatedly piled on, like some old fashioned manure dealer. Like Republicans who once claimed they agreed with the Democrats on over 80% of the bill, but like greedy bastards, do all they can to block supermajority rule. Can't allow Congress "to ram" something through ... only has been over a year now, decades in the long run. To block something that will help people while reducing the deficit. Something the other gang too often had been 0 for 2 in promoting.

Oh, and this "deemed passed" thing is moronic too.* Everyone knows the House Democrats are accepting the Senate bill in the process. The basic idea -- necessary since Senate Republicans refuse to allow reconciliation the normal way -- is to underline that the passing of the original bill is tied to the reconciliation fix. But, the rules of the Senate require the original Senate bill to pass now before the reconciliation bill can be passed by the Senate given the Republican obstructionism. Of course, like the hypocritical liars they are, Republicans are railing against the process (which they repeatedly used) necessary because of their own actions.

Passing major legislation in the face of assholes is hard work. And, the end seems to be in sight. Knock on wood. But, Keith is right, bottom line. Let's remember what basically we are fighting for here. How it is based on basic justice. And, why -- imperfect as it surely is -- the fight is worth it.

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* Some argue that it is simply not worth it to use such a too cute technique, given the voters will not be fooled into thinking the House did not support the Senate bill. Who knows what every last member (and there is little margin of error) has to deal with these days? And, in the long run, people as a whole won't care.

[Update: Jack Balkin as with the health care bill as a whole, has defended the rule being used here as constitutional. I'm with him; criticism gets "particularly tiresome and formalistic. Having to rehearse these arguments is like having to wonder about how many angels can dance on the head of a pin." I'm glad he showed a bit of annoyance, even if dealing in part with a former federal appellate judge. Update 2: Never mind.]

And, I think there is an important point here. The two bills are really a unit that has to be dealt with separately given the realities of the situation. The Senate bill alone is not what they ultimately are voting for in the long run. I can see some value in doing something to reaffirm the point, even if some will tell you the fix is really cosmetic in the long run. OTOH, Noah explains maybe not.

The Bloody Shirt: A Long Surrender: The Guerrilla War After the Civil War

A bald fact: more than three thousand freedmen and their white Republican allies were murdered in the campaign of terrorist violence that overthrew the only representatively elected governments the Southern states would know for a hundred years to come. Among the dead were more than sixty state senators, judges, legislators, sheriffs, constables, mayors, county commissioners, and other officeholders whose only crime was to have been elected.

-- STEPHEN BUDIANSKY

I'm currently reading Tear Down That Myth, which debunks some of the myth making about Ronald Reagan, including discussing how in various respects he was more moderate (on taxes, negotiation with the Soviets, use of military force) than some on both sides might think. The image still holds, including someone (who lived through the times though as an adult and one closer to his politics) who recently told me that she thinks that most people liked Reagan, including many Democrats.

Myths, helped along by textbooks and so forth, have long dominated the Civil War, before/during/after. Some still don't want to believe it was fought over slavery or that U.S. Grant (some rather have Reagan on the $50) was overall a pretty good historical character. I have to admit that sometimes reading Civil War accounts, you can easily be routing for the South, an even battle of some sort necessary after all for good drama. There are loads of books about the Civil War, much fewer about its aftermath, even of the Reconstruction, a period over twice as long. The importance to law (including three amendments) and history plus all the drama involved, notwithstanding.

The upcoming gun case ultimately is directly connected to an election time battle, a type of Easter Sunday massacre, that is the subject of books itself. United States v. Cruikshank involved federal prosecutions of locals who killed blacks protecting a courthouse, the ruling underlining that the Bill of Rights (including the use of militia) applied only to the federal government. The ruling left open a thin lifeline, one no longer much sought out by the mid-1870s (at least for nearly a century), if the federal government could clearly show that the federal right to vote was being infringed on account of race. Reporting on the upcoming gun case should include this little remembered tragic moment of history.

After all, the result is shown to be fairly typical in the title book, a lot of effort by a few leaders (and many of the people themselves) to get some justice resulting in small gains, gains that were short lasting at that. The violence and fraud used, hesitantly admitted to when pressed but justified as necessary, is depressing (and repeated, in various forms, to this day ... Republicans now serving as the heavies, albeit thankfully the violence is mostly in rhetoric). The efforts to protect and enjoy basic rights also is inspiring, short lived much of it might have been. One blog review touches upon the charm of this book:

Right up front, I'll make something plain; Stephen Budiansky's book "The Bloody Shirt" does not attempt to break new ground about the Reconstruction era. Instead, this book is designed to revive and retell the stories of a few individuals to illustrate the experiences of many. To his credit, Budiansky does not claim to be writing an authoritative study of Reconstruction, his intention is to show the impact that terrorism had in a few places and on a few persons in the South after the war as part of a larger reflection of the post-Civil War South. ...

His narrative technique is sometimes a bit jumpy and fragmented, and the chronology gets muddled up, but this does not detract from the larger issues at hand. Budiansky's book is a reminder of the spasms that wracked the post-war South and the racism, violence, and depredations that plagued African-Americans and Republican whites.

The book in effect provides various excerpts of Reconstruction, somewhat disjointed at times, but often as exciting as a novel. The travels throughout the recently defeated South of a reporter of The Nation; a hopeful "carpetbagger" is burned by locals, marries a black teacher from the North, becomes a politician and sheriff and is run out of town by violence; General Longstreet knows when he is whipped, becomes a Republican and is beaten again by local whites this time; a former slave coach driver becomes a local magistrate but ultimately dies doing basically the same thing after whites (like one who later became an infamous race baiting senator) "redeem" his town, and so on. One or more stories that would make good fodder for fiction or film.

And, necessary for a true education of our history. I have read about the Reconstruction, including Eric Foner's well known book. But, exploits like these (with letters, newspaper clippings and the like) provide a vivid way to truly understand what was at stake and what occurred.

Not Just A Voice in the Wilderness

Joan Walsh has is right on Dennis Kucinich, who is being a leader: supporting the party, President and nation now but not suddenly bending his principles. Those nuns too.

A week of holidays

The 15th is when Caesar was killed (Ides of March), today is St. Patrick's Day (Irish), tomorrow St. JP's Day (Irish/Italians), Friday is St. Joseph's Day (Italians) and Saturday is the first day of Spring.

Health Care Quickie

The Internet is like a drug -- up late last night reading Ninth Amendment stuff. Anyways, as health care gets closer: as a constitutional right/duty and constitutionality of mandate.

Stupak Is Not Beneficial To True Pro-lifers

TV Watch: Being Erica from last week was pretty good, more focus on her own life "now." Rules of Engagement had its moments, but wasn't as good as last week. Russell's assistant was added to the opening credits. Congrats.

Jesus turned and said to Peter, "Get behind me, Satan! You are a stumbling block to me; you do not have in mind the things of God, but the things of men."

Not that some will be convinced, I don't think the Stupak Amendment is necessary to uphold the existing law as to funding abortions; in fact, I think it will push it the other way. Thus, it is not a reasonable demand. This has been covered by past posts and by others.

So, moving along, it is notable that many self-proclaimed pro-life individuals (in and out of Congress) support a health bill without such a provision. It is doubtful that every one of these wouldn't support Stupak it they had their druthers. But, as with T.R. Reid and others, they realize the perfect is the enemy of the good.* On the whole, the bill would do more to cut abortions and/or for "life" overall than focusing on worrying about $1s somehow going to abortion. The bill even "increases the adoption tax credit and makes it refundable so that lower income families can access the tax credit," part of why a Catholic group defends it.

Stupak on paper is not as myopic as he appears. He has supported efforts to cut down abortions by decreasing the need for them in the past. But, he isn't out there repeatedly underlining that. He is making dubious statements (not only rejected by Noah or Rachel Maddow, but ABC News) on a narrow issue that many "pro-life" members of Congress deem a sideshow to true reform. In the process, he puts a black mark on that movement, a movement that repeatedly is smeared as only caring about life before conception, not after them.

A local notes here that Rep. Stupak has become more conservative as his district has. Another reply suggests that it is proper for him to "vote" the way they want. As I noted above, I don't think -- push come to shove -- that he really is representing their interests even on this one issue. Of course, being a representative means more than that. If his constituents want him to lie or b.s. on this issue, he still doesn't have a "right" to do so. Some have low opinions of conservatives and think that this is all they want. I am not quite willing to do that.

Finally, his motives are of some importance (including to those who have to negotiate) but on some level are of little consequence. The general public and media take him at face value. We cannot try to psychoanalyze each public servant, especially since most are in some way -- quite rightly -- following the public's demands, not some "true feelings." Mayor Bloomberg, who bs-ed about term limits and so forth (and his party line for political reasons), is said to disrespect Sen. Gillibrand for changing her positions on guns since when she represented a conservative upstate district. Others sneered when she seemed to do so on same sex issues.

Oh please. The system encourages representatives and senators (or mayors or presidents) to act somewhat differently depending on whom they represent. The big picture has to be looked at, even if a total plastic public servant is something to worry about at times. So, I'm not going to be concerned about that. I think Sen. Gillibrand is starting off on the right foot overall. She is truly representing her state, including on various liberal issues. She is not just grandstanding in a way that appears to be counterproductive. This is overall, of course.

But, objectively, Stupak doesn't come off that way. Maybe, his electors are satisfied by what he is doing. If so, they are aiming low. Meanwhile, for questionable gain, he has to deal with a primary challenge. Hmm.

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* This ability to compromise includes those who call themselves pro-choice but are willing not to re-fight the battle on the Hyde Amendment, which many strongly oppose. They don't want to move the law past Hyde either. Of course, that side often tends to lean left and has compromised on a lot of other things too.

Film: WMDs and George Hamilton

And Also: Providing one of my duties as a resident, I filled out my census form today. It asked a few questions beyond necessary by express demand in Art. I, but "Who questions the power to do this?"

Green Zone was an imperfect movie but overall has a lot going for it. My problem with it basically was its simplistic plot development -- at some point, including a key moment near the end -- it had a tired standard "good guy vs. everyone else" device. This includes him acting very recklessly (including in ways that were tragic, though the viewer seems to be invited to elide past them) to support what he thinks is right, which at some point starts to get hazy. You might feel good about the film being on the right side ("why we go to war matters!"), but self-satisfaction only takes one so far.

But, the viewer can also see the problem with this approach. This possibility, which in some way might be part of the point, helps save the film from some criticism.* As noted by a news clip at the link, the film also has various real vets serving as extras and military personnel. This suggests that the film is deemed by people (including an advocate who has popped up on Maddow et. al., who has a cameo at a military briefing in the film) that matter as an fairly accurate portrayal of events. No matter that a disclaimer notes that it wasn't based on any one in particular, comparisons to Judith Miller et. al. purely coincidental.

And, it does make some serious points on WMDs and on our role in the Iraq War as a whole. Two Iraqis have key moments in the film, something some critics of The Hurt Locker for lacking such a local voice might find appealing. It does this as part of an exciting thriller, its movie aspects acceptable up to a point as dramatic license in telling a deeper truth. I still think the film got a bit much toward the end, less believable, even if aspects of that part of the film hit home.

Meanwhile, I recently saw another 2009 film (the year still was not great, but did miss a few pretty good films the first time around) on DVD, My One and Only. Narrated by a teen who will become George Hamilton, it concerns an odyssey by a wife played by Renée Zellweger, who takes a cross-country trip with her two teenage sons to try to find a husband to replace the one she just found cheating on her. Finding a husband she feels she deserves repeatedly is hard, though she tries to keep her spirits up and sense of decorum in place. It is a good character piece, one of those smaller films that make watching film enjoyable.

--

* SPOILER: Matt Damon's character breaches orders and recklessly takes a few of his men into danger, leading to others (including a special forces agent we are led to dislike) to their deaths when the meet-up goes bad. But, his justification for going there ultimately comes off as lame when he tries to explain it to an Iraqi who is helping him.

The film does not seem to invite us to be too upset that U.S. military personnel were killed by his reckless actions -- it ends with him leaking the news that there appears to be no WMDs and how the U.S. government selectively took the word of someone who said there was. Really, he should be up for court martial. But, the viewer can also see what happened. How he acted recklessly in pursuit of the truth.

The Proposal

This was cited as an example of Academy Award winner Sandra Bullock focusing more on commerce than art, but actually it was rather good. Again, standard fare can be done right. Well put together and some serious undercurrents. Pleasant DVD commentary.

God and Guns

And Also: Interesting article on the NYC mayor clashing with our junior senator. Reflects that there are different sorts of public officials; it is not necessarily bad a senator votes differently than a local representative. In fact, isn't that kind of how is meant to be?

Two more lower court rulings for the wolves.

[1] The Ninth Circuit upheld the use of "under God" in the Pledge of Allegiance, agreeing schoolchildren in effect are "coerced" to say the Pledge, but the addition of "under God" is just some historical recognition (this is why children affirm we live under a God -- to honor what our founding fathers believed is true) in some patriotic exercise that isn't really religious, so that's acceptable given the ability to opt out while fellow classmates treat you as a loser because of your faith (or lack thereof). This took about 60 pages.

The dissent by the liberal lion of the circuit, one that is so long that it has table of contents, disagrees. He suggests that something added to reaffirm that we "must look to God for divine leadership," has schoolchildren reaffirm something various religious believers don't agree with, is clearly unconstitutional in this context, and it is "most extreme sophistry" to deny it. He also points out that "under God" being added has to be treated separately, just as the Supremes did in another case where the dissent suggested doing so would cause "under God" to fall.

He tosses in a citation of Palin (duly noted, thus one footnote will be a bigger concern of some than the dissent overall) and reminds people what judicial empathy, a "quality that is most desirable in, even if frequently absent from, today’s federal judges at all levels of the judicial system," means. And, adds in a few cites of the writer of the original Pledge and two of his family members noting he would have opposed the addition.* This took about 130 pages.

[2] Meanwhile, the Massachusetts Supreme Judicial Court upheld a trigger lock law and a requirement to obtain a license before carrying a firearm. It noted, not waiting a few months for the Supreme Court to decide the question, in part that as of now, the Second Amendment does not apply to the states. Both rulings were fairly short, one longer given other matters.

The state constitution "recognizes no individual right to keep and bear arms." Though not bothering to note that Heller left open the legitimacy of licensing, one of the two cases decided (accessible here) did note that the Massachusetts law was different from the one struck down in Heller since it (MA) allows guns in the home for self-defense if a suitable trigger lock was attached. It does disagree with Heller dicta on the meaning of Massachusetts Constitution.

And, for some media commentary.

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* In part:

Bellamy’s great-granddaughter later echoed this sentiment, stating that her “great-grandfather . . . . [was a] deeply religious man, [but] He intended the pledge to be a unifying statement for [our] children. By adding the phrase ‘under God’ to the Pledge of Allegiance in 1954, Congress . . . . divided our nation further rather than uniting its citizens.”

The majority opinion disagreed:

The Pledge of Allegiance serves to unite our vast nation through the proud recitation of some of the ideals upon which our Republic was founded and for which we continue to strive: one Nation under God--the Founding Fathers' belief that the people of this nation are endowed by their Creator.

Of course, some of "we" don't strive the ideal that we are a nation under God. Unlike striving for a "republic" (e.g., majority doesn't always rule, courts overrule certain laws they pass), the state favoring an religious ideal and having public schoolchildren recite it, is a constitutional no no. The whole point of establishment is that something specifically religious as compared to something else becomes particularly "patriotic." Thus, citation of the Pledge as some patriotic act only worsens the addition of a specifically sectarian tenet.

Health Tyranny In Action?

Noah, on the health bill beat, notes that the tax for not having insurance (under $700 under Obama's plan) will not be collected for a few years, and no criminal penalties or property liens will be used to collect. The horror! Yet again, pays to actually read the bill.

Finding Our Way Again: The Return of the Ancient Practices

I received this book via the Book Sneeze program for free but these views are purely my own.

As with other authors of the books I received, each who is well known among the initiated, I am not familiar with Brian McLaren's work. Amazon tells me that he "Brian D. McLaren is an author, speaker, pastor, and networker among innovative Christian leaders, thinkers, and activist." His innovative style led one clerical review to call this a "dangerous book!" Some were upset that he appeared to be too supportive of Jewish and Islam practice, finding some common ground between the religions, and not appropriately defending Christianity. I find that sort of thing a tad bit silly (but recognize different faiths can be quite passionate about that sort of thing) because each of these religions do have common ground. This very book about "ancient practices" underlines the point. To cite another review:

Some of the practices, he explains, are contemplative (reading, Sabbath, or prayer), others are communal (hospitality, singing, or confession), and still others missional (caring for the sick, helping the poor).

These are not uniquely "Christian" acts and I appreciate those who can find some common ground. The author here also provides a service to the reader by ending chapters with "spiritual exercises," which provides a sort of "workbook" flavor to the work. But, of course, you can skip over that if you like. Still, since the reader is likely reading this work to learn and contemplate the religious faith in question, it is a good idea.

The book is an introduction to an "ancient practices" series and I see it has some stylic points of other entries. This includes boxes that provide key lessons and use of personal experiences to teach. But, it also includes references and analysis of biblical passages. Since I felt another volume of this series did not do enough of that sort of thing, that's a net positive. It also provides a quick but informative look at history. The book also is a quick read and should appeal to the average reader. It is a comfortable paperback that you can skim through and make notes/underline when appropriate.

Some disagree with some of his interpretations. That's not really a reason not to read the book. Challenging beliefs is a good thing. To be honest, the book did not really keep my interest. I will give it "three stars" for a good attempt, but I'm getting the idea that I don't really appreciate the style of this series. But, for those who do, this is worth a look.

The Love Letter

And Also: A few times, I took a brief break from Slate fray work. I'm due for another, I think. Still won't use that new comment system -- no formatting, threading or general area to post stuff, just articles to attach comments.

Caught the rerun of this old (1998) Hallmark film recently and enjoyed it. Based loosely on a short story [spoilers covering both], it tells of a love story through time that doesn't quite all work out the way you might think. No great surprises, but not just predictable. Leads are also good. I wanted to borrow it from the library to show to someone, but darn if the copy was not on the shelf as promised by the computer.

Still, the main branch of the Manhattan library system does have a broad selection of DVDs (fewer videocassettes), if not all shelved correctly, particularly television shows. For instance, I was able to get the full first season of Rules of Engagement (but seven episodes), which was mostly amusing. I also saw a copy of another blast from the past, Once and Again, which began in 1999. No, Sela Ward was not just in Sisters. I also got out the fairly amusing British show, The Vicar of Dibley.

I saw it once or twice on PBS; notice how there are only a few episodes over all, but stretched over a decade.

The Abortion Myth

And Also: I realize the NYT Sunday edition went up (one reason I don't buy it myself), but did not realize that the daily copy is $2. Shows how long since I bought one, I guess. The main stuff is free (for now) online, after all.

Now and then, get an interesting hit on my blog, like one of this post from Charles Darwin University, Australia. I'm glad, since it was one of my better posts; a taste:

An argument was made that life in prison was crueler than execution because the former consists of spending life in a hellhole. Since it is equitable to execute those sentenced for intentional murder, this suggests that capital punishment is more humane than such an alternative. ... This has surface appeal, but is wrongheaded on many counts.

The author of the third book added to my side panel, the abortion one, also has an Australian connection. It was an interesting book that argued that choosing an abortion is ultimately understood by the woman as a moral choice of what it means to be a good mother. The people she interviewed, on both sides, did find her mentor's (Peter Singer) hypothetical solution satisfactory on this front -- an artificial womb. It would in effect be trusting something that was the woman's responsibility, even if it was just to stop the process by an abortion.

I found the short book a bit to reductionist ("the" bottom line was argued to be this basic question, when a person's stance on abortion is a combination of various things), but the basic point is improtant. That is, we cannot just focus on legal matters, and even the issue of "viability" will not solve matters, especially in the future. Ultimately, an important moral question is at stake, and the alleged "value voters" anti-abortion choice side has no monopoly. To quote Justice Douglas' pre-Roe opinion on the point:

"There remains the moral issue of abortion as murder. We submit that this is insoluble, a matter of religious philosophy and religious principle, and not a matter of fact. We suggest that those who believe abortion is murder need not avail themselves of it. On the other hand, we do not believe that such conviction should limit the freedom of those not bound by identical religious conviction. Although the moral issue hangs like a threatening cloud over any open discussion of abortion, the moral issues are not all one-sided. The psychoanalyst Erik Erikson stated the other side well when he suggested that 'The most deadly of all possible sins is the mutilation of a child's spirit.' There can be nothing more destructive to a child's spirit than being unwanted, and there are few things more disruptive to a woman's spirit than being forced without love or need into motherhood."

The full title is a bit misleading: The Abortion Myth: Feminism, Morality, and the Hard Choices Women Make by Leslie Cannold. But, especially if you want to skip the introduction and appendix stuff, it's a good quick examination of the subject -- under 140 pages. Quotes from real people (at first, I thought there would be more, but there is also much analysis) from both sides also adds to the mix. Finally, interesting perspective of the British and Australian situation, which at least in 2000 left (and seems to still appear to leave) much more to the doctor's discretion.*

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* The author notes that dislike of doing the messy work of abortions, not moral disapproval alone, seems to be a major reason why many health care providers refuse to do second trimester abortions. She notes that it is in effect their duty to provide health care, even if they rather not. Also, "health" here is understood to include such things as affect on the family or being able as a whole to handle another child.

Back Again

When it first came on, Rules of Engagement was a comfortable comedy on at the right time. It's new 8:30 time slot is not as useful overall, but last night's episode was pretty amusing. More please.

Numbers

Interesting discussing on teacher training here that led me to an interesting discussion on imaginary numbers. The basic idea, showing the value of math in reasoning things out, is that certain mathematical equations require the square root of -1 ("i").

Beyond Silence

The director of Nowhere in Africa also is behind this smaller but still very good film. It concerns struggles between a hearing child and her deaf parents, including as she learns the clarinet. As noted here, the movie shifts gears some, but I think it holds together.

One More Into The Breach: "Health" and Abortion

And Also: Rep. Stupak has voiced support for 95/10, but I'm really to blame since I had to do an Internet search to determine this. He should be shouting it from the rooftops, every time underlining its importance, since in the end it matters a lot more to those against abortion than his amendment.

Noah tries to convince that the Senate health care bill does not "fund" abortions. This in the face of Rep. Stupak threatening to block it if additional language is put in to selectively target abortions. Why this is a bad idea is suggested here (as usual, nothing to worry about -- only the poor will suffer, they are too small of a group to worry about) but maybe it would help if he spent his time being as enthusiastic spokesperson for one of those 95/10 prevent the need for abortion bills.

There really isn't likely to be a way to make the bill pure enough to totally segregate funds to please some people. These same people assure us we can segregate funds when funding religious organizations. The law doesn't allow to directly fund religious practice, but we can fund religious institutions if they run non-religious things like soup kitchens or abstinence programs, even though money is always somewhat fungible. This they selectively support.

But, I know how these things go, and some Solomon-like solution hopefully can be arranged. All the same, let us not ignore the basic injustice of the current system. Matters of health are not covered for selective reasons of morality. Welfare benefits are provided, even if people choose to use them in a way that furthers their particular religious and moral beliefs. But, a certain medical procedure, one with direct connection to the health of girls and women, is singled out. The only exceptions concern life, rape and incest. Risks to health per se, no.

Roe v. Wade underlined what is at stake here:

The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.

How "elective"* are some of these choices? We make many health choices that are in no way compelled to save our lives. I'm not exactly sure why rape suddenly should by itself be a special unique character in the area of health regulation. Not saying it should not be included. Clearly, psychological health in particular is involved. But, more is involved, matters not really health involved alone at all. OTOH, if another child will tax someone's health (a teenager's pregnancy might be an exception, statutory rape often involved by definition), it would not be covered. The Supreme Court has in fact held in Harris v. McCrae that "medically necessary" abortions need not be covered under the Hyde Amendment.

Why? Because some people think abortion is immoral. The attenuated "funding" at issue here takes this to a certain ridiculous extreme, but let's talk about generally. Why is this fair? Why should health care decisions rely on the moral beliefs of some? Many think it is immoral to have a child in various cases. We need to fund childbirth, however, all the same in various cases. We are not only burdening the individual health choices of women, but selectively favoring the religious beliefs of certain groups. This is both bad policy and blatantly unconstitutional.

I understand it is not seen that way, though taking things as far as Stupak wants might be a close question (not saying the Roberts Court would agree). This doesn't change the basic injustice.

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* This op-ed is a mixed bag, but suggests why some are worried about the Stupak Amendment. Some of the comments underline how "elective" (and comparisons to Viagra or breast implants) is to be blunt stupid. Also, it surely isn't a monetary thing -- as Noah notes, the Senate bill does some fancy footwork to avoid the fact that childbirth in fact costs a lot more money.

Coffee and Dying

More on the Coffee Party:

“We’re not the opposite of the Tea Party,” Ms. Park, 41, said. “We’re a different model of civic participation, but in the end we may want some of the same things.”

The Tea Party argues for stripping the federal government of many of its roles, and that if government has to be involved, it should be mostly state governments.

“The way I see it,” Ms. Park said, “our government is diseased, but you don’t abandon it because it’s ill. It’s the only body we have to address collective problems. You can’t bound government according to state borders when companies don’t do that, air doesn’t. It just doesn’t fit with the world.”

Still, she said, “we’ve got to send a message to people in Washington that you have to learn how to work together, you have to learn how to talk about these issues without acting like you’re in an ultimate fighting session.”

Candles on Bay Street by K. C. McKinnon concerns a small town vet who finds out his first love (who now makes candles) is dying of cancer. The first part (a life up to the narrator's 30s and how she affected it in miniature) is the best. Somewhere near the halfway mark, it becomes a somewhat drawn out road to the inevitable, the poetic musings getting a bit thick. It isn't a long book, but it comes off as too long.

I first found out about it because it was made into a Hallmark movie, though I never saw the whole thing, which in fact complicates a few things. The need for padding underlines the thinness of the novel's plot at times. As with Legally Blonde and a few other books, this is one of the times when the film version actually comes off as somewhat better. One of these days, I will see how the movie version ends up. It was well acted at any rate with the main roles fitting the characters, including Alicia Silverstone in the lead.

Latest Being Erica

With an exception to a new assistant at work, the episode didn't address recent plot developments. But, it was pretty good, a step in the future providing a bit more back story about her fellow therapy mate. Not great, including the lesson, but a comfortable watch.

What Is Truly At Stake

It is true that we should look past the governor in the current controversy and remember what this is truly about -- the well being of someone who appears to have been a victim of domestic violence. Not just politics or CYA. Is that too much to ask?

Mets Won

Grapefruit League or not, I'll take it.

People Waited Overnight For This?

Pretty disjointed oral argument; why even use up time that could be used otherwise (e.g., dealing with the actual law) if no one (even those not a fan of substantive due process) really took the p/i argument seriously? Only real question is the scope of the opinions.

And Also

Accord as to the Uighurs ruling today. Thanks, Mr. Ford. I think Gillibrand works and a credible primary opponent should actually help her. But, Ford isn't one, so I'm glad he's not running.

Gun Oral Argument Preview

And Also: Loving Anabelle was on Logo over the weekend. See this review. I'm with those who don't like the ending (including as a matter of personal dynamics of the characters), especially these days.

[Some editing done after first posting; still rough probably, but will leave it there, I hope. It also is patently arbitrary not to immediately release audio on this important case, particularly given the popular interest and the unlikelihood the advocates will really act much differently. A transcript of the oral argument will be available on the Supreme Court's website, but that's simply not the same. Maybe, like noted here, a re-enactment would be useful in cases of this sort.]

With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. ... Obviously, the same test could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the guarantee against double jeopardy, the right to counsel, or the right to keep and bear arms.

-- District of Columbia v. Heller

McDonald v. City of Chicago will be up for oral argument tomorrow to determine:

Whether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home.

The result, except perhaps as to privileges or immunities (and that too -- expect some concurring opinion from Thomas), is not really in doubt. Heller repeatedly hints that ownership of firearms is a fundamental right that should be incorporated no less than any other right from in the Bill of Rights. Its discussion of the importance of firearms after the Civil War underlines that this is not akin to the grand jury, the only other right (the Third Amendment in effect applied in Griswold) not incorporated. The comment that the question has not yet been decided is mostly gratuitous and already debatable.

Some argue that federalism might make incorporation different. U.S. v. Lopez, the gun-free school case, suggests that at least some justices might give more discretion (at least in some areas of regulation) to the states here. See also, Printz v. United States (state involvement in enforcing Brady Bill). But, see Justice Thomas' concurrence there (citing a few liberal leaning scholars) a "personal" right. The conservatives, unlike some in the past, have not generally (Thomas' suggestion that the Establishment Clause is a federalism mechanism is an exception that in effect proves the rule) supported a two-tier federal/state approach in this area.

Heller after all involved a local ordinance, but though D.C. tried to raise the point during oral argument, no justice really focused on the point. This is so even though the dissent in the lower court relied expressly on the fact that no one size fits all national law was at stake that would limit state discretion, but one specifically applied to D.C. Would the justices really act differently pursuant to another local ordinance from a state? Someone can reason that they could, but this does not really convince me that they will.

The Supreme Court does allow some state discretion as shown by the test for obscenity, which relies on local community standards in certain respects. State discretion is particularly allowed for juries. Not only may the states not use grand juries even for "infamous crimes" (see Fifth Amendment) but states, and only states, can allow non-unanimous juries to convict. Note that the standard is weaker here, but still some floor is in place. For instance, the Supreme Court set a floor of six people for state criminal juries and juries that small do have to be unanimous.

There is some flexibility in these cases that the sharp debate by Scalia and Stevens in Heller tends to mask. This is on some level unfortunate and it would be appreciated if a Justice Kennedy type opinion* is forthcoming. It might be expecting too much, but a simplistic 5-4 ruling on all grounds in this case would be unfortunate and tiresome. Liberal commentators and leading Democratic political figures (including presidential candidates) accept that there is some personal right to own a firearm. We can debate if this includes the right to own a handgun in certain areas or not. But, can we not agree on a basic point that personal ownership is a sensible approach there?

On this, the dissent by Breyer in Heller was preferred, even if it was too weak as to protection of a fundamental right. Focus on broad and greatly debated interpretations of original understanding brings forth little light in the end and should be avoided if possible. At one point in Heller, a common sense approach is used to define the contours of the term "arms," to wit:

It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon.

The concurring opinions in Griswold also take a somewhat similar approach in defining "liberty," which is ultimately the main concern of tomorrow's argument. As Justice Goldberg (with an assist from his law clerk, Stephen Breyer) noted:

"Liberty" also "gains content from the emanations of . . . specific [constitutional] guarantees," and "from experience with the requirements of a free society."

Experience and state practice in particular (state constitutions are repeatedly cited by scholars of the Ninth Amendment [and perhaps "privileges or immunities"] as a means to determine "retained rights") has led to a general understanding that "ordered liberty" includes a right to own firearms, particularly in the home. [see Heller and the dissent here] By the time of the Fourteenth Amendment, the Second Amendment was generally understood to have a personal touch. Events after the Civil War underlines its importance for blacks in particular (though other threatened groups continue to see its value), adding to the original understanding that personal gun ownership was one of the protections secured by the Fourteenth Amendment. And, a "Douglas approach" would suggest other (via "emanations" or whatever) amendments (such as protection of the home pursuant to the Fourth) reaffirm the principle. The spirit at least includes protecting the home with firearms, even as society changed and arguably made the issue more complicated in various ways.

A living history approach does as well. Cruikshank is telling. It arose out of a federal prosecution of an infamous massacre in which the rights of blacks to assemble and carry firearms in particular were threatened. This reflected the post-Reconstruction Era in which state and individual threats to blacks and black ownership of weapons for self-defense was rampant. State inaction (and often involvement) repeatedly threatened the safety of blacks and a realistic security of their basic liberties. The Supreme Court rejected an approach in which federal power could be used to protect such liberties (recognized as such, but not covered by the amendment) unless the state directly violated them, and even then only if a small number of national privileges or immunities were at issue. Or, a clear violation of equal protection, defined rather narrowly.

The Supreme Court, with justices who selectively honor the first Justice Harlan's approach in other cases (cf. Civil Rights Cases [still good law] and Plessy v. Ferguson [not]), still retains a segment of this dubious approach (section II), one which ignores what was accepted by Congress and the executive (and a few judges) at the time until the period of reform passed. But, over time and influenced by the stream of history, it rejected the idea that the Bill of Rights as a whole was not among the "liberties" protected by the Fourteenth Amendment as applied to the states. Meanwhile, even in the face of modern police forces and national guard arrangements, the public generally accepted law abiding people have a right to own guns. The debate generally focused upon the terms of regulation.

So, citations to "pre-incorporation" cases are rather misleading, since as noted in Heller, they also apply to First Amendment protections. Protections in place in various ways even when many people oppose them. Thus, there has to be a reason to selectively not apply the principles of 20th Century jurisprudence to the Second Amendment. The Third is obscure but still should apply when applicable, grand juries would apply a "one size fits all" rule that would overturn modern criminal practice (this might also apply to the Seventh Amendment as to civil cases, but due process secures basic protections in both cases all the same), but most states have some state protection of a right to own firearms. This recalls the segregation context:

In view of our decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government.

It might be thinkable, but is it constitutionally reasonable for states to have a different rule across the board here? A few outliers don't stop the Court from setting a firm rule when the Eighth Amendment is at stake. Why here? Likewise, as with that amendment, specific applications apply general principles with an eye to common practice. The decision here is somewhat harder, but the sound result is still not too complicated.**

Well, that is open to debate, obviously.

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* See, e.g., this case setting forth a basic principle that also applies here:

In all events we think that our laws and traditions in the past half century are of most relevance here. These references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex. “[H]istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry.” County of Sacramento v. Lewis, 523 U.S. 833, 857 (1998) (Kennedy, J., concurring).

Such an approach used here just might get at least six votes. Dare to dream.

** When the basic principles involved are so open to debate, see also abortion, dealing with specific applications are that much harder. This is why it's useful to have a basic settled broad principle, so we can focus on the specific regulations at hand. Heller also underlines that Supreme Court cases don't just deal with specific facts, but general principles to apply in later cases. Thus, it was not necessarily illegitimately "activist" for it to deal with other matters, such as areas of legitimate regulation.