Michigan v. Bryant

It is nice when Justice Scalia finds a bright line rule that has liberal results, but I'm wary of his dissent today. If an ongoing emergency is the test, a recently shot person whose assailant might be blocks away very well might meet it. His sarcastic disdain (oral argument) aside.

Oscars

I only saw a bit, but it didn't start too promising (boring) and the various "isn't our past grand" segments didn't excite. Didn't see many of the films, but one I did see (The King's Speech) was the big winner. Oft nominated Randy Newman had an amusing acceptance speech.

Alligators In Sewers Party?

The Republican party, increasingly, is the party of urban legends: that tax cuts for the rich always pay for themselves, that government spending doesn’t create jobs, that government overregulation of banks caused the crash of 2008, that global warming is not happening. The unconstitutionality of health care reform is another of those legends, legitimated in American culture by frequent repetition.

-- Andrew Koppelman

Unscientific America: How Scientific Illiteracy Threatens our Future

And Also: Watching Reba last night, again, want to compliment it for being well done, both funny and repeatedly touching. "Barbara Jane" is now in Working Class, which underlines the value of good writing and ensemble cast. That is, the actress thrives much better on Reba.

I recently read Sheril Kirshenbaum's new book on the science of kissing and found it interesting, if somewhat thin. It tried to skim a lot of material fairly quickly, which lead me not to be totally satisfied.  Still, it was an enjoyable book, a scientific account approachable for the general audience.  It is the sort of approach that she and her co-author Chris Mooney (also of The Republican War On Science fame) favor in this book.

The duo can be seen blogging here for those who want to get some immediate flavor of their style and philosophy. The title is somewhat of a misnomer. The authors' focus is not quite on "illiteracy" and they say as much upfront. It is more a matter of a lack of understanding of science's place in society and a disconnect between scientists and society overall that concerns them. This includes the lack of importance science has in the political realm. An attempt to get the candidates' views on scientific policy matters in the 2008 elections underlines this.

As does various subjects covered by the short (it is around two hundred pages, a third of which are endnotes). The stereotypes offered by movies. The overly combative stance taken by some against religion. [I don't think you can separate God and nature as much as they try to, since if God has a role in our lives, lives spent in nature, there is not a total disconnect there.] The importance of providing a bridge between science and society, including specifically encouraging some scientists to find out how to help there (Carl Sagan is shown as an ideal). The decreasing presence of science reporting in mass media. And, how blogging is of limited value, since it is so specialized and tends to be incestuous (likes come together).

The fact that image matters to them is underlined by their opening chapter: "Why Pluto Matters." The decision that Pluto was not a planet was a story that the public at large cared about. It seemed to many to be unfair and arbitrary. Scientists probably might find that silly. There is a good reason to not list it as a planet. It isn't really a matter of life or death either way. But, it did matter and the negative response suggests a disconnect. The friendly astronomer, Neil deGrasse Tyson, is not mentioned. His The Pluto Files and presence on various shows like Stephen Colbert should be a model for them, so that's disappointing.

The book itself is decent, overall often having a feel of a collection of essays on the subjects covered. Worth a perusal, especially given its length.

Happy Birthday Sis!

Re: Saletan's Current Series

[See here.

Update: My original posting is here along with responses to someone who sees what he wants to see.  The responses underline the uneven treatment, including the last one.  The importance of the procedure merits special concern that it is provided without undue burden, more so than many other procedures.

The best situation would be to have neutrality while protecting the right at issue, but that isn't the case now.  If this at times results in less oversight, who's really to blame there?]

The case, Ragsdale v. Turnock, involved an Illinois law that required abortion clinics to meet the same construction, equipment, and personnel standards imposed on outpatient surgery clinics. In the settlement, Illinois clinic representatives accepted sanitation standards, four annual inspections, and a few other requirements. In exchange, the state scrapped a host of exorbitant demands.

Interesting that "the same" rules were required but it took a lawsuit for a settlement to be made that resulted in the state scrapping "a host of exorbitant demands." It leads one to assume that the rules weren't really equally applied. Others have noted the problem, one suggested by this:

Testifying before Grizzle's committee on Dec. 5, clinic owner Patricia Windle explained the providers' fears. She described "the climate of terror" around them: kidnappings, bombings, and burnings. She recalled how some pro-lifers, bent on driving clinics out of business, had pursued ambulances carrying patients with complications. These activists, she alleged, had invaded patients' hospital rooms and pressured them to sue clinics and their doctors for malpractice.

This is not the path to trust, is it? You have state and private actors singling out abortion providers, who in many areas are a rare breed, unlike your average "outpatient surgery clinics." The result is not likely to be pretty. My preference would be to regulate the industry as a medical provider. This would include health insurance (private and governmental) treating it as such. But, it is singled out. And, this results in (totally unsurprising) wariness from providers when regulators come in. Evidence shows that they are not being treated equitably.

The result is problematic. 

Obama v. DOMA

[Update: Here is a summary of the purposes of DOMA that suggested its hortatory nature, stating (while also reaffirming in a way that singled out one group) current law at the time. Also, again, this is a big step since it is a basic statement on homosexuals as a whole, not just one subject.]

The Orwellian "Defense of Marriage Act" has three sections. The first is the title. The second holds:

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

Regular public policy rules gave states the power to not recognize same sex marriages, if they violate state policy pursuant to the rules of that state. This law might have put a thumb on the scales in some cases, but overall had a gratuitous flavor in that respect. If same sex marriage is protected under the Equal Protection Clause (or whatever), this application of the Full Faith and Credit Clause won't save it. Nonetheless, as applied to the federal government, this provision has some real bite. I am not aware of a current lawsuit that involves let's say a Connecticut same sex couple wanting Puerto Rico to recognize their marriage contra to this section. A custody judgment would be different (public policy rule doesn't apply and isn't the marriage anyway).

This is probably the most familiar aspect of the law, one passed when it looked like Hawaii and perhaps other states were at the brink of recognizing same sex marriage and in some case would force it on other states. But, the news of the day (see here and here, official statements) involves the third section:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.

Prof. Balkin has a good discussion here on the powerful likely effect (with precedent regarding race) the Obama Administration's new official position on this section will have. They have thus far defended the law using rational basis review, basically arguing that the law allows states to experiment and not force new marriage policies on society too quickly. Pretty weak, but old time moral arguments or ones based on child rearing were rejected. Some distasteful sounding comments in preliminary briefs were replaced as noted on Gay USA, but arguments that they (with precedents that included John Roberts and Bush) need not defend a patently unconstitutional law at all was resisted.

But, a new lawsuit in the Second Circuit raised a problem (and opportunity). Unlike the Ninth Circuit (old time rational basis still good law, though for DADT, it used intermediate scrutiny for substantive due process and Lawrence v. Texas underlined the equal protection component of that*), the level of scrutiny is an open question. So, the Administration would have to submit their position on the question. And, upon review, they decided that current law requires heightened scrutiny and it would be unreasonable for them to say otherwise. (See official statements, summarizing the arguments.) But, as a sort of middle ground, they will continue to enforce the law and invited the courts (who are left the ultimate role of interpretation) to allow others to defend the law. This is troubling, why?

If "President Palin" took the same approach for the health law, I am not seeing the problem. Not that, unlike here, the case law significantly since its passage called the law in question. I also think heightened review calls into question not recognizing same sex marriage generally. But, especially since D.C. has a same sex marriage law, the litigation in question is not about getting married in the first place. It is singling out those recognized as such by a state (or nation like Canada) and depriving them of benefits. Toss in the sentiments expressed when DOMA was passed, this makes it a more blatant case.

This is a great step, reasonably applied.

---

* Obama now says DOMA is a violation of Equal Protection, but homosexuals are protected in other respects too, so this isn't the only way to go. If homosexuals have a liberty interest (Lawrence v. Texas), it applies in this context as well. And, as noted, some courts applied intermediate scrutiny in that context, even if not in the equal protection area. Or, rather, didn't update past rulings in light of a Supreme Court ruling that focused on due process, if with a lot of equal protection gloss.

Supreme Court Watch

The Supreme Court is back in session, hearing orals (a curious case included, involving the Tenth Amendment and soap opera type facts) and handed down a couple opinions. Both were supermajorities with two person dissents, each dissent joined by Justice Ginsburg (Thomas/Ginsburg and Sotomayor/Ginsburg, the former a strange duo) and both are statutory cases. The Supremes also decided not to re-litigate a Ten Commandments case, one where Alito might have changed the outcome.

Justice Kagan wrote the opinion for the less significant one (to my eyes), a case about a state that "imposes sales and use taxes on railroads when they purchase or consume diesel fuel, but exempts their main competitors—interstate motor and water carriers." The possible excitement might come with this statement:

[W]e note what taxpayers have long since discovered—that the meaning of “tax” is expansive. A State (or other governmental entity) seeking to raise revenue may choose among multiple forms of taxation on property, income, transactions, or activities.

Hmm. Does this mean "inactivity" is not a category of taxation in respect to the health insurance law? Or, as sane people say, is activity really at issue? Or, is this a reach? I doubt the last one, at least to the extent those who claim the law is unconstitutional will use any port in the storm.*

Anyway, the other ruling (by Scalia, having some chance to wrestle with the Sotomayor dissent and claims of legislative history) held the National Childhood Vaccine Injury Act "preempts all design-defect claims against vaccine manufacturers brought by plaintiffs seeking compensation for injury or death caused by a vaccine’s side effects." Justice Breyer concurred separately:

I join the Court’s judgment and opinion. In my view,the Court has the better of the purely textual argument. But the textual question considered alone is a close one. Hence, like the dissent, I would look to other sources, including legislative history, statutory purpose, and the views of the federal administrative agency, heresupported by expert medical opinion. Unlike the dissent, however, I believe these other sources reinforce the Court’s conclusion.

Though the dissent challenged his "policy" preferences, it seems both opinions thought the law itself set forth the preferences in question. I will leave that to others. I do see merit in Sotomayor using legislative history that "reflects the intent of the Congress that enacted the funding legislation necessary to give operative effect to the principal provisions of the Vaccine Act." And, given the dispute over the text's meaning, Breyer's approach (see also, his recent book) is a useful "tiebreaker," including the position of the executive and the experts the law itself (by his reading) deemed of special importance.

Again, the Court watcher can learn some useful lessons from more run of the mill cases.

---

* Reading about the opinion the next day, I see this tidbit:

Justice Antonin Scalia, writing for the majority, said Congress had meant to establish a societal bargain in the 1986 law. “The vaccine manufacturers fund from their sales an informal, efficient compensation program for vaccine injuries,” he wrote. “In exchange they avoid costly tort litigation and the occasional disproportionate jury verdict.”

Another federal district judge upheld the health law though (dubiously) didn't think the "tax" power was involved. You know, a rose by any other name is not a rose, and all that. As noted by the judge, the health law has a sort of quid pro quo too. Health providers and insurers have certain responsibilities that the law balances off in certain ways. Quite constitutionally.

The Sacred Meal

It's time for the free book review again. First:

Disclosure of Material Connection: I received this book free from the publisher through the BookSneeze.com book review bloggers program. I was not required to write a positive review. The opinions I have expressed are my own. I am disclosing this in accordance with the Federal Trade Commission’s 16 CFR, Part 255 : “Guides Concerning the Use of Endorsements and Testimonials in Advertising.”

The book is one by Nora Gallagher and "the sacred meal" is also known as Holy Communion. She is well qualified to write such an account given her training in the ministry (though she never finished the Episcopal ordination process, subject of a separate account), experience as a lay server and general participant. The book is for the lay reader, my version a short paperback of somewhat more than one hundred pages written in a casual fashion. Unfortunately, I did not really like it.

One review didn't like this book and noted it read like "a lot of rambling and life stories to make up for the lack of research done on the subject." I concur. The back cover has a bunch of pleasant blurbs and there is a nice introduction honoring her special "insights" on "the sacrament of the shared table" (to quote the forward). I found the book fill with rambling personal ancedotes (such as a friend's child missing in a plane crash) and musings about various subjects. If you like her style, this sort of thing might be enjoyable and touch you. I found it tedious after awhile.

A useful subject guide is provided in the back as a sort of "cheat sheet" (see also, boxes in chapters with key lessons) to remind just what we are supposed to be learning from all of this. And, mixed in with all those stories (she comes off as a down to earth sort, I can see why people like her) are some useful tidbits about Holy Communion. How it is a chance for the community of believers to come together. How it is a matter of "waiting, receiving and afterward" (the lead-up, the act itself and contemplation/meaning obtained etc.). The tactile nature of the event. The place of food and ritual in society over time. But, very little about the actual origins of the sacrament or a look at the gospel origins of the event.

The above suggests two things. The book does provide some lessons. I did not really care for the style but maybe others will. Second, the book is not (to quote a review that matches my sentiments) about the "scriptural and doctrinal" part of things. I didn't need some doctrinal thesis here. But, general boilerplate about Jesus' ministry (down to talk about him challenging the Roman Empire in some fashion; this is the guy who said "Render to Caesar" and submitted without much complaint to his death, so not sure what she meant) doesn't quite cut it. Why not a quick summary of the Last Supper or references to liturgical meals in Acts or something?

I think a quick account about "The Sacred Meal" warrants something like that. That and the rambling nature of her style turned me off. The book is of some value, but overall, it was incomplete.

RIP Perry Moore

He, not by much, didn't violate the "dying younger than me" rule, but this is a sad case. At least, unlike another local publication, the reader had a good understanding of the diversity of his life. Talk about stripping of the gay. We do get a rumor on the cause of death.

Old Themes Pop Up Again

I received a hit to this oldie but goodie that is apropos to the thread cited earlier with comments about privacy and oh look that conservative martyr, Robert Bork. Oh well, let me reprint what I said about the former.

Through much or our nation's history, what we today think of as "privacy" just didn't exist. So would the Constitution enshrine a "right" unknown to the society that produced the document? Would not a right which is, as you say, "fundamental to a free society," be preserved in the Bill of Rights?

I am not sure of the breadth of this statement.

Any number of constitutional rights today are not of the same nature in various respects as they were for much of our nation's history. For instance, "religion" was originally generally given a fairly narrow definition, but today it is understood to have a much broader meaning. The basic concept of religion all the same was known then and now.

The core aspects of "privacy" as understood today aren't merely contemporary. The right to privacy over beliefs, family life, property and so forth was well expressed in the Founding Era in various ways. General warrants were deemed so offensive in part because it was an invasion of the home and the privacies therein. Religious belief and private morality was a major matter of importance. The right to choose one's own way in life was deemed a major point of coming to America. John Adams and others honored the privacy of family life. Many "zones of privacy" such as in marriage, over children, in the confessional, with one's lawyer etc. have had a long history. And so on.

As with other constitutional principles, the principle developed over time. Brandeis noted as such in his famous article. And, Bork and others don't like that approach. But, even citing the original understanding, and various originalists have, "privacy rights" would be protected. The replies by "ackerman" are well worth reading, including his use of "asseverations."

The Bork matter can be read there. No Jetsons spacecraft in the 21st Century but tired old arguments from two decades ago linger on. There's always something to fall back upon.

Kindle Alert!

Too much stuff on it! Too many free books available, including old classics. Should have stuck with articles and cases, preferably short ones like this from an old favorite. Meanwhile, obit watch: I read Criminal Violence, Criminal Justice back in the day. Very good.

Silence Isn't Golden

And Also: The conclusion of the "Angels/Wizards" trilogy of episodes on The Wizards of Waverly Place was pretty good; the angel in training was cute, a sort of mini-True Jackson. The show is getting into that "tired" phase though the Maxine subplot has some promise.

The responses to Thomas' silences often are critical or apologetics that have such critical responses in mind. For instance, the implication is made that Thomas is a dope, just following Scalia. But, some critical responses are not as much derogatory but disappointed. I think this is a useful approach, at least one potentially more productive.

One article cites a law review article, "Why Justice Thomas Should Speak At Oral Argument," and it suggests that -- contra to some -- that oral argument is not basically useless ceremony:

"By removing himself from oral argument, Justice Thomas' opinions do not benefit from the full adjudicative process designed to test theories in open court," Karp wrote. "Many of his opinions, therefore, read less like the product of actual litigation, and more like constitutional commentary." Rattling off other unorthodox views Thomas has taken, Karp added, "Justice Thomas' revision of the constitutional order emerges from his chambers without exposure to public debate." Before 2006, when Thomas did on rare occasion ask questions, Karp also noted, they sometimes had powerful effect. (Read the related article for more on one exchange.)

[The law review article -- a worthwhile read -- also cites another concern, that the silence tarnishes his reputation, including regarding his personality, a personality that comes off somewhat differently when people actually hear him talk in public; C-SPAN periodically airs such events. Cf. The interview on Q&A that I cited in a previous post that several people saw in a negative light.]

For good or ill, Thomas provides a different voice on the Court, one that repeatedly is different from the other conservatives (who each have their own nuances, though they sometimes are lumped together). As with Justice Sotomayor believing that public interviews and appearances are an important part of her job, since they inform the public, oral arguments are one way to insert that voice into the public dialogue and affect the development of judicial precedent. The voice still is affecting the law, but in a troublesomely incomplete way.

Judgments are affected in some fashion (if not who wins or loses, but how they did, which is important for future cases) by how oral arguments go. As someone else noted, briefs can be written, but that is not the end of the line. The airing out matters. Justices can discuss things behind the scenes, but repeated analysis by court reporters suggests oral arguments provide a more complete way to air out the details. It also provides advocates on both sides to take part.

Thomas supporters should be upset that his insights, which they so respect, are not as much a part of it. But, I think, a core problem is that these people don't expect them to be taken seriously anyhow. So, who cares, right? This is too pessimistic and those who point out Thomas has affected Scalia's judgment at times alone shows why.

Appellate courts have multimember panels for a reason. They have oral arguments for a reason. Not just for ceremony. If one or more do not fully do their jobs, it hurts the overall process.

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* The last time Thomas asked a question underlines the value of having each justice available to flag potential points. It also shows that it can be done politely and unobtrusively.  A bit of symmetry: this also was the first opinion of Justice Alito. 

Republicans to Women: FU

By a vote of 240-185, the House passed Rep. Mike Pence's (R-IN) amendment to strip Planned Parenthood of its federal funding.

More here. One party, flawed, the other absurd.

Don't Need That iPad Just Yet

I was wondering about how deprived I am without an iPad. I feel a bit better now. I also manage to survive without a ready means to download Angry Birds on my phone. Somehow.

Being Erica

Good episode with various layers this week. With talk about Thomas, was Anita Hill really so long ago (and that Alan Simpson, talking smack again), 2019 doesn't seem too far away any more.

Abortion = Health Care

William Saletan has had a sketchy time of it, so credit where credit is due: his article on the Gosnell case is good today, including how treating abortion separately from other medical procedures worsened the situation. This is common and generally leads to bad results.

Coach Leta Andrews

Texas is fanatically devoted to football, but it also welcomed women’s basketball long before the mandates of gender-equity legislation. This was especially true in rural areas where young women worked on farms, and it seemed incongruous that they should not be allowed to sweat while playing sports.

“Dammit, Constable!”

LGM posted a great 1970s reenactment of Gibbons v. Ogden, quite relevant these days. Ditto an accessible for free century old bio of the author. The virtual library is expanding.

Silent Thomas

[Update: As Rachel Maddow and others point out, Justice Thomas' off the court behavior has been troubling. It is unclear how much, since you don't expect him to act any differently either way, but failure to be fully upfront about such activities is quite troubling.

The appearance of impropriety matters, worsened by his separating himself from the public in ways such as not talking at oral argument and his wife's blatant partisan activity, and the general rules of propriety are for the good of all. In another case, a judge very well can be affected by such involvement even if one argues Thomas (or Scalia) would try the case the same either way.

And, big picture, the matter goes beyond any one justice.]

A NYT article reports the fifth year anniversary of Justice Thomas asking a question during oral arguments. Lyle Denniston a few years ago had this to say:

Well he’s two different kinds of people, at least from my perception. As a person, as a human being, he’s very warm. He laughs very easily. He’s very sensitive to people’s personal troubles and concerns.

He and his wife have reached out a number of times to people in not as good circumstances to help them out. He’s an uncommonly generous person for a person in such a high place.

But his approach to the law is very, very aggressive, a very – I call it iconoclastic. I mean, Justice Thomas would take a lot of the court’s constitutional jurisprudence and just throw it out and start all over.

For example, he doesn’t believe that the part of the constitution that keeps the government and religion separate should apply to the states at all. The states should be free to do what they want to accommodate religion.

He would – he would really make a revolution in constitutional doctrine if his ideas were followed. So – and there’s one other facet of him that I think is really unfortunate and that is his lack of participation in the give and take in oral argument.

I mean, most people who really understand the way the court works know that the oral argument is the first time the justices really get a chance to discuss seriously the issues that they’re deciding because when the case comes up in the first instance it’s a quick look to decide whether to hear it.

But when they come to oral argument and sit there for an hour, only an hour per case, that’s a very important moment at which they shape the agenda for the decision. And if you don’t participate at that point then you are not participating, at least not very actively, in shaping the agenda of how the discussion at least is going to begin on how you decide the case.

Now why he does not participate is not known to me. It’s unknown to most people and even who know him. But he doesn’t take part. And I think that’s a shame.

I agree. As the article notes, his atypical voice is left out of oral arguments, discussion of those views not given as much of a hearing and back/forth when they are only made in separate concurrences and dissents (sometimes, but not always, joined by Scalia and at times others). It also sends a lousy message, one that appears to be not totally off base -- he basically thinks "screw them" regarding his critics and even many who are fairly conservative, but not supporting his views. He has his little group of supporters to fall back upon, including his wife whose public activities might be acceptable on some level, but still is taken to an extreme of partisan political involvement.*

Not sure how bad this is as compared to the Scalia "clown/ass" approach, but something is lost. And, truly, I think it is unfortunate because of the stereotype it promotes. I find his judicial philosophy wrong in many ways, and intellectually lazy as well (the failure to take involve in orals underlines this -- a talking to oneself, a failure to interact with the other side and see your views are not quite as clever as obvious as you think), but still overall a worthwhile addition to the Supreme Court. The marketplace of ideas need forceful expressions of his side. Involvement in oral argument would help there.

A little would go a long way here, Justice Thomas.

---

* Scotusblog today summarizes the article linked: "Noah Feldman objects to the popular notion that the Justices should be insulated from political life. Feldman produces many historical examples to the contrary and argues that “the justices’ few and meager contacts with the real world do little harm and perhaps occasionally some good."

Fair enough and on some level I think it's okay that Thomas' wife has her Tea Party cause. At some point, however, there is a line that probably is crossed. To the degree things are more strict now in the past, but all things considered, not sure if that is a bad thing either. With the increase of governmental power and judicial control over it, the image and reality of judges being partisan is more troubling. The ultimate line is debatable.

Feldman adds useful perspective either way.

Spring Training

Here we go again. Low expectations (helpful?) for the Mets. Bunch of trash heap acquisitions, ownership in trouble and new managers. Yanks have a questionable starting rotation. Cry me a river.

I Am Curious (Yellow) Actress Dies

The Swedish actor Lena Nyman has died of cancer aged 66, a day after the death of Maria Schneider. Both actors were instantly associated with a sexually explicit film: Schneider with Last Tango in Paris and Nyman with I Am Curious (Yellow). But while Schneider's career and life suffered consequently, Nyman went on to establish herself as a well-loved performer in her native country.

The NYT obit links to the original review:

To the extent that "I Am Curious" tells a conventional story—and it is very loose and cool in this respect—it is the story of Lena, an intensely serious (and funny) young woman who goes about Stockholm seeking to implement new answers to the social, political and sexual hang-ups that seem to her to have calcified Swedish life.

In fact, some of the commentary on the DVD (the director was still around; he speaks English with a fairly mild Swedish accent and is nicely laid back) put out over thirty years after its release suggests the social commentary was more controversial for some in Sweden than the sex stuff. The sexual material was praised by Vincent Canby in the review as well:

In the course of searching for her own sexual identity, Lena mets and has a stormy affair with a healthy young man who works in a men's store. Their-first encounter, among the file cabinets, tape recorders and other paraphernalia of Lena's room, is fine, adult comedy as the two of them—suddenly all clumsy in their excitement—hobble around (their movements restricted by the clothes around their feet) trying to fix a mattress on the floor. In the midst of the preparation, a little printed sign ("I Am Free"), which Lena has pasted on the wall, comes loose.

The infamous nature of the film aside this is not just a piece of porn, even of the Russ Meyer variety. The fact that the lead later had a major role in Ingmar Bergman's Autumn Sonata suggests there is some real talent here. The film is a serious work, even if many might share the opinion of one judge that it is a "crashing bore." It fits well in its era: a sort of New Age film (yeah, not sure what exactly that means, but it sounds right) that has something to say about major social issues but in the messy and rough way of a young sexual active college student like Lena here. One the first op-ed notes led the reviewer having an "obvious affection for Lena of the earnest, pretty face and the somewhat rotund figure that betrays every candy bar she has ever eaten. It looks like real love."

Not that nice, but she does come off as a real person, not just some fake sex movie character. And, having seen a review a few years back about Deep Throat, such realism (one sign: pubic hair; pubic hair is not seen in late night soft porn and in one mainstream movie, a flash of it risked a "NC-17" rating). Now, some saw any such examination of social issues and the like in films of this nature just a way to toss in some "redeeming social value" to pass muster. Hard as it is to believe, this film was found to be obscene by some U.S. courts, even after mid-60s Supreme Court rulings made it pretty hard to do that. One case [WAGONHEIM, et al. v. MARYLAND STATE BOARD OF CENSORS] even reached the Supreme Court around 1970 and was upheld by a split decision. Justice Douglas recused himself in the midst of impeachment troubles because he contributed to works by the publisher involved.

The film might be boring after awhile [over three hours of material was filmed, split into two films per the colors of the national flag; the other being I Am Curious (Blue)], but if a film with so much social commentary (down to a clip of an interview with Martin Luther King Jr., who was in Sweden to get his Nobel) wasn't redeeming enough, what was? The '60s was filled with lame sex films of varying degrees of raunchiness. And, this went too far? The judge who found it a bore was in the dissent; the majority upholding the ban (though it was allowed in some places) had this to say:

This Court has little difficulty in finding that the dominant theme of the film, taken as a whole, appeals to a prurient interest in sex and is patently offensive in that it affronts contemporary community standards relating to the description or representation of sexual matters. It is only with regard to the third element of the "Roth-Alberts" test as set forth in A Book v. Attorney General, supra, which must coalesce with the other two standards, which presents any occasion for pause. However, after reviewing all of the evidence in a light most favorable to the appellants' contention that the film does have something of social value, it is our judgment that it is utterly without redeeming social value. We have previously, in this opinion, stated that the attempts of the film makers to use social questions to depict the restlessness of youth and its search for identity, against an intellectual ambience, were patently strained and contrived. We do not think that Lena's concern with social and political problems, so artificially depicted, supplies the redeeming social quality required to sustain the film. We find no meaningful nexus between this concern and her problem with her twenty-three lovers.

Sure. Fanny Hill, redeeming. This not. The excerpt is a telling example of the lack of imagination involved in such cases. Sexual relations not providing a "meaningful nexus" for a young woman's search for identity and her views on men in general. The film is not about her twenty-three lovers. It focuses on her relationship with two men in general, really. And, how about "the sexual scenes have nothing whatever to do with the remainder of the picture." Yeah. Sex had nothing to do with the life of a film about a young woman trying to find meaning and understanding in the '60s. Sex had nothing to do with college too, I guess. Again, seriously? Not that things would necessarily be different today -- this much nudity and sex, a NC-17 rating and limited release in certain art houses would be quite likely. Or, be a foreign film.

I previously noted that the director (and writer) provided commentary for some scenes. Watching those scenes might give you an abbreviated taste of the film as a whole. The film is a lot more concerned about providing slightly twisted social commentary of roughly the role of socialism and the class society in Sweden through the eyes of a somewhat naive drama student than satisfying our prurient interest. This underlines the silliness of the obscenity findings. The first half of the film has one abbreviated sex scene (fit for a 'R' rated film and mostly lead-up) and a sort of parody [earlier we had a scene about Lena comforting the king, the commentary noting that it reflected the fact one political party supported the end of the monarchy) of Lena on a retreat that involves her being topless. The rest is talk, of varying degrees of interest. The "bore" that was referenced, though it is of some interest up to a point. There is more nudity and sex after this, but the talk/explicit ratio is still leaning toward the former.

The whole thing is a somewhat self-indulgent lark with a pleasant lead with nudity and sex (but those who like that sort of thing can find a lot more in other films) mixed in. It being so controversial is clearly a sign of the era, though again, if a film in this country today tried to get wide release with similar content, good luck with that. How about a re-release as tribute? Film Forum?

Connections

Candles on Bay Street was on again and hey Ted Atherton of Sue Thomas was in it. TV/film nerds love that stuff. Saw him here first. His Sue Thomas co-star is the lead in the historical (c. 1895) CSI-like affair Murdoch Mysteries, a decent show on PBS down here.

Jesus Inquest

[Update: I emailed the atheist biblical (among other things) scholar Richard Carrier via email to ask if he ever reviewed this book. He nicely responded, as he did some time back, but unfortunately did not. Carrier was not overly impressed with the work but noted the author cited him accurately, if in an rather incomplete fashion. As I always, I appreciate such assistance from perfect strangers; it underlines the wonders of the Internet that such things are so possible.]

While looking at comments and information about the Christian historical romance Love On A Dime (free Kindle download), I discovered the "Book Sneeze" website. It is a chance to get free copies of basically Christian titles if you provide an online review. Over at Amazon and elsewhere such reviews have this:

Disclosure of Material Connection: I received this book free from the publisher through the BookSneeze.com book review bloggers program. I was not required to write a positive review. The opinions I have expressed are my own. I am disclosing this in accordance with the Federal Trade Commission’s 16 CFR, Part 255 : “Guides Concerning the Use of Endorsements and Testimonials in Advertising.”

The first book was The Jesus Inquest: The Case For and Against the Resurrection of the Christ by Charles Foster. The book is an attempt to provide both sides of the case though the author himself is a Christian barrister, if not a professional theologian. He is upfront about possible bias but notes that he has done the best he can. As someone on the "nay" side, plus someone in a society where the question is not merely some sort of thought experiment, I can't be free of bias either. But, I don't think he quite is bias free enough. Let me add that "bias" often can be unintentional. We all have limited experiences that make it hard if not sometimes impossible to view things in a certain way. "Givens" in 1500 and now, e.g., were quite different in various cases.

Let me start with my basic philosophy. My basic philosophy is that you usually need not go all the way to join a side and it's best to be somewhat temperate about it as a whole. It might work if you go at it differently and the passion involved might actually get you pretty far. But, the end result seems less successful as a whole. The "X" (anti) side here doesn't seem to agree. "X" includes various fantasy scenarios less likely than the gospels and is cocksure about some of them, when being cocksure of much about the gospels is not what a true scientific approach merits. To be "sure" Jesus' actual tomb was found (amazingly few know about this fact) or that such and such happened when we only have a bunch of after the fact slanted religious texts to work with is silly. Or, that various discrepancies prove that it's a fraud, often when they really don't amount to much.

I don't think "Y" (pro) was totally fair here. Too many strawmen. The idea is great and the journey provides lots of interesting material. It also is written in a smooth way that is brisk reading. That's great. But, there was too many "oh come on" moments. For instance, the idea that Jesus or someone else plotted beforehand to save him from the cross and/or take his body is deemed ridiculous given time restraints. Later, we are told Jesus knew ahead of time that he would be betrayed. He had no friends in high places. But, two such people (see John) buried the body. Such and such had to be true, since if it was, people would point out it was not. As if many were around decades beyond the events reading the gospels as if they were on national television or something.

Overall, we have limited source material, material that in various cases (putting aside later gloss or editing) probably have hidden context that we have no way of knowing about. Even Foster admits a few aspects (like Matthew saying people rose from dead when Jesus died) are likely not true. Damning admission! A much less credulous people signed on to the Church of Latter Day Saints and many other faiths that was based on dubious (at best) information in various respects. This doesn't mean it couldn't have happened, but the fact a small group believed Jesus rose from the dead (but many if not most even there at the time didn't join in though -- again note the source problem -- we simply don't have any contemporary accounts of their views) is not shocking. And, even quite unlikely things are more likely than such an event. The burden of proof is way on the side of "Y."

More examples can be added. Like the fact Mary Magdalene is well off is denounced though other accounts that she came from a well off area, successful for its salt industry, are readily found. Comment on Jesus being married not being an issue if true. Jesus' message was that the disciples had to leave their families to proclaim God's word and because the Kingdom of God is near. The fact some iffy stuff is included doesn't always help -- true believers often put their own gloss on things that others see as damning. It is not actually clear that the end of Mark is lost. These sorts of things make me question his judgment. Repeatedly, I wanted "X" to have a chance for redirect.

The book would have been better, therefore, if the tone of assurance on each side was cut back several degrees. Finally, a basic assumption is one I don't agree with: "If Jesus is a fraud then Christianity is dead." [To quote a review.] Is it? Shades of Jefferson's New Testament, I truly think that Christianity on the whole does not rise or fall on Jesus rising from the dead. It rests on a community of believers (God does play a role here, if not always an essential one) who accept something bigger than themselves should guide their lives. On the other hand, if Jesus truly rose from the dead and nothing truly amazing happened, just how important was it? Seems more amazing when a human sacrifices his/her life for a single person or a cause than when "God's son" does so with some assurance beforehand (human martyrs can't do miracles to assure themselves).

A major religion, eventually, formed. The reason it succeeded was not really based on a few people early on believing. Many others at the time believed other miraculous things. The basic principles, such as support for the poor and universal salvation over selective membership in cults, was not reliant on Jesus rising from the dead. Islam became a great religion in another context without that. A sacrifice of a deity's child is really old school mythology. It underlines why pagan Romans were often more likely to accept it than Jews. The fact that the majority of the Jews, to early Christians' annoyance really, rejected it is a telling point. Jesus' message and willingness to die for it is worth a great religion on its own. Christianity is not a big lie if he didn't rise.

I respect this effort and learned some interesting things in the process, but do wish it wasn't as much of a stacked deck. This includes what comes off as sarcasm or sneering at times, when more humility is warranted on both sides. "X" comes off too much like some kneejerk atheist, which might be how a few act, but is not the only way to go. Given "Y" a bit too often has his own problems, mixed bag. One of those "it's good enough that it's a shame it couldn't be better" deals.

More VC -- Nonoriginalism (or is it?) Edition

Mark Field shines here, especially right above and below my comment. I cited the Madison "living constitution" quote repeatedly to certain [selective] "originalists" and they basically ignore it.

Cheap Shot Alert

Glenn Greenwald today flags a possible sign of cross-party support of civil liberties, but seriously, small sample in support of a preliminary vote. And, cheap shot approach to my "okay, but full picture, not great" comments (jmatrix) about Ron Paul. Real tiresome.

A good comment on the "tax" in health law

Those who deny that the so-called “mandate” (in reality the “minimum essential coverage” requirement) is a tax are ignoring the actual provisions of the law. It is a tax, and an income tax, at that. The “minimum essential coverage” requirement is part of the Internal Revenue Code (see 26 U.S.C. Sec. 500)A). Failure to maintain “minimum essential coverage” subjects an income taxpayer to a “penalty” as measured by taxable income. The amount of the “penalty” rises from $95 per year in 2014 to $750 after 2016, but there is no “penalty” if the amount exceeds eight percent of a taxpayer’s household income, and no “penalty” if a taxpayer’s household income is under 100 percent of the poverty line. If a “penalty” is payable, it is paid with the taxpayer’s income tax return. As Charles Fried pointed out in his Senate testimony, there is no “minimum essential coverage” requirement (i.e., no “mandate”) for individuals who have no taxable income. The requirement arises only when the individual receives taxable income. The law explicitly provides that no other enforcement can be used to collect the “penalty”–no criminal prosecution or fines and no liens or levies. In other words, it can only be collected as part of the individual’s income tax obligation, and it can only be paid on the individual’s income tax return. It is a tax, and an income tax, at that.

-- epluribus

We can add that it is quite possible that a "penalty" can be passed in the form of a "tax," particularly since the tax power is not merely to add money to the treasury alone:

The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States

Thus, as Madison once noted, a protectionist tariff is constitutional, even though the obvious point of the measure, a "tax," is not to provide money for the treasury.* One means to determine taxation is to determine if someone did something or not. That is to "penalize" them in some sense, but not in the criminal or civil penalty sense [what is the burden of proof here? does it have to meet Eighth Amendment limts as a "fine"?]. There is no apparent convincing reason why this is not true.

A fine is an allowable means to further the Commerce Power, but still, there is no reason to assume this is a fine. Again, I find this (updated) a good quick rejoinder as well, including the interesting reminder that health insurance has been a tax deduction for quite some time.

---

* This is clear precedent:

First. It is beyond serious question that a tax does not cease to be valid merely because it regulates, discourages, or even definitely deters the activities taxed. Sonzinsky v. United States, 300 U.S. 506, 513 -514 (1937). The principle applies even though the revenue obtained is obviously negligible, Sonzinsky v. United States, supra, or the revenue purpose of the tax may be secondary, Hampton & Co. v. United States, 276 U.S. 394 (1928). Nor does a tax statute necessarily fall because it touches on activities which Congress might not otherwise regulate.

I left the citations in since it underlines the principle is not some post-New Deal gloss, but supported by the conservatives of an earlier era. The excerpt is followed by a statement by one such conservative justice that the principle was applied from the beginning of history.

An earlier precedent from the Lochner Era is sometimes cited. Putting aside its questionable force at this point (see, e.g., F12 here), even that opinion spoke of a clear intent to "declare that the employment within the mentioned ages is illegal." The added matter that it seemed to be a way to avoid an earlier ruling (Congress regulating child labor) clearly influenced the result. If the requirement here is equally unconstitutional on Commerce Clause grounds, that might be relevant. All the same, a ten percent net profit tax amounting to $6,312.79 at that time [1922] is a matter of different degree than the fraction of that in current dollars at issue here.

A person can easily pay the $695 or such (the poverty line limit deals with those clearly unable to pay, subsidies helping here too) so arguing the law is in effect making not buying insurance "illegal" is a reach. Again, it is not merely "regulatory" but provides money for the treasury. Quite true it is largely regulatory. Only a very selective picking and choosing of choice quotes will lead you to find this a problem. But, those who aim to make "inactivity" a rule don't need much, do they.

One more thing. Another reason not to consider this a "fine" is because that has no "criminal" connotation. The comment above underlines the collection of the money is limited to the tax system. "Fines" are collected in various ways. Also, the Supreme Court has noted that something with a clear "criminal" motivation cannot be relabeled a "tax." The ruling there cites a case often cited by the anti side, La Franca, but said case rests on just that principle. Again, not buying insurance is not "illegal." It is just one of many things that will entail a higher tax burden.

[Footnote added]

TV Quickies

Rules of Engagement has gone downhill (started out pleasant but not having that much margin for error) some recently, especially the writers dumbing Adam down even more. Conan seems to be in a good/comfortable groove, perhaps fitting better out of the spotlight.

FNL

I don't have Direct TV, so I have to wait for the final season, but did get the First Season DVD set to watch deleted scenes and such. Again, got to love Tami, Tyra and Matt [& Lance]! And, the show as a whole. [And, "Smash" in real life sounds like a "Brian."]

Packs Win It ... Time For Baseball!

Checked the score a few times. Packs up at Half, but Steelers score late to make it closer. Steelers claw back to within three. Packs don't ice it late. One last final drive, which is the norm this year, though not two weeks back. Don't get that far. Ends the right way. Cheers.

Science of Kissing

The author of this book also contributes to a science blog on the side panel. The small book is fairly interesting if leaving you wanting more information. A good introduction to the subject, but in no way comprehensive. Nice down to earth tone; author has science chops.

Go Packers!

Seriously, no brainer. Right minded people agree. They even are favored. No reason to even watch. And, Glee following? Really?

McDonald v. Chicago

After the Supreme Court decided that the Second Amendment protected an individual right to gun ownership (if in a case narrower than many might think, including its focus on use of them for individual self defense at home and leaving open various categories of allowable regulations), it was just a matter of time before it was applied to the states. This was so even though some noted various provisions of the Bill of Rights have not be applied to the states. Making it an individual right, not one a federalist concern, made it that much unlikely that the Second Amendment would join the diminishing number.

Other than never coming up Third Amendment, the only other provisions not "incorporated" were certain jury provisions. This basic left use of civil juries and grand juries within state discretion and allowed states to have non-unanimous juries / juries of less than twelve members. Only two states actually have the former. The only other provision, arguably, is the fines provision, but there is so much overlap there with due process and cruel and unusual punishments that is really is semantics. So, the ruling in McDonald v. Chicago was not surprising and Stevens' dissenting opinion noting states and the federal government are treated differently pursuant to the Bill of Rights not really convincing. The only place they really are is regarding juries.

The ruling ultimately only decided that the Second Amendment applied to the states, but since the regulation was another handgun ban at home in a heavily populated urban area, the ultimate result is self-evident. The argument was curious -- the Supreme Court, though it was under no obligation to do so, asked the petitioners to discuss the Privileges or Immunities Clause of the Fourteenth Amendment. It had no desire to actually deal with the matter though Thomas went his separate way on the point. It purposely asked someone to also brief them on the due process argument. Justice Alito's summary of his opinion can be found here along with Breyer's summary of his dissent.

The oral summary on decision day (text provided too) basically does justice to each opinion. Justice Breyer's dissent for three justices doesn't convince me, but along with Stevens more seminal dissent (fittingly written right before he retired), it is well reasoned and warrants my respect. The basic concern is that guns are different from the other rights since they threaten life by definition (not sometimes) and given the mixed history (one that is pro-regulation), a novel recognition of a general national constitutional right is unfounded. As with Stevens, if more so, he supports local discretion in the area. It is unclear if he would oppose a national law that too broadly set forth a "one size fits all" legislation in place. Heller, involving a D.C. ordinance, simply is not a typical Second Amendment concern.

Though I admit the issue as to regulation is somewhat close, however, applying basic Breyer approaches, I would find the nation does recognize a basic right to own firearms. As to the "non-discrimination" principle of the privileges or immunities of federal citizenship, I think this misses a key point. "Equal rights" assumes both rights and an equal application of them. And, gun ownership is one such right. It is only a minority viewpoint that it is not; the debate is over scope. Minorities, including those without money for security guards, are protected.

And, it does advance broad liberty principles. Stevens' separately admits as much when he notes that there is a real argument here (if not one that applies the whole amendment to the states) as to defense of the home. In other areas, such as abortion, local discretion is limited. And, if guns are less "private," they also protect privacy and bodily autonomy. The differences warrant "regulation" but so does the Fourth Amendment speaking of "reasonable" searches and seizures. It is unfortunate that some core agreement couldn't have been reached here. An acceptance of some right to gun ownership but a debate over the breadth.

I have covered this ground before, but this post is inspired by reading Stevens' long solo dissent in full. It is interesting reading. Again, I don't really find his sentiments about different approaches as to state and federal applications convincing. Other than juries, this simply was not done in respect to the Bill of Rights in recent times. Citing Justice Harlan is fine, but does this mean Stevens doesn't think the First Amendment should be applied the same way? I see no evidence of this fact. There is an argument to be made that the Second Amendment and/or guns in general (given their reach) can be treated differently. Fine. That's a separate argument and more convincing.

The opinion is ultimately a paean to a flexible application of substantive due process, which Scalia concurred separately to dismiss (he's stuck with it as precedent, but doesn't like it, so he applies it basically without much respect). Stevens cites evidence that substantive due process is clearly proper. He spells out the common law fashion of its application, including how past history is not the only determinant (Breyer agrees, thus his dissent didn't focus on 1868; again, I would have appreciated a Kennedy opinion, which is tempered originalism). And, Stevens actually suggests he would be willing to accept some form of a liberty interest to self-defense, including in some context that involved firearms.

It is impressive but the thumb he puts on the scales [the relevant section can be read to get a sense but the narrow acceptance of the self-defense component, cf. Thomas' concurrence, is not seen in other areas, including areas like abortion where others recognize the right but are open to more regulation than he] against the evidence for at least a limited right to own a firearm at home does hurt his case. But, each side has problems in that regard. And, I find the opinion more convincing on the point that his often abbreviated selective use of history in Heller. Still, when the Bill of Rights started to be applied to the states, fairly easy cases were handled first. The right for a heavy populated urban area to ban certain firearms being decided when the amendment is just being covered is akin to an obscenity case being decided in the 1920s before one involving political speech. I think it really is a close call on some level and an unfortunate way of starting out.

Meanwhile, interesting interview of Justice Black can be heard here.

Smooch

With shades of Kate & Leopold (nobility planning to marry for money but falling in love via unlikely events), this Hallmark confection was fun. The leads, especially the girl, make the movie. The end complication is over nice and fast. Nice serious overtones.

Fun at Health Law Senate Hearing

The newbie "excellent" addition brought up the dreaded broccoli mandate thing up in a hearing on the law.  Also, you can't just focus on the Commerce Clause, Senator.  The whole point of the Bill of Rights was to temper possible over the top application.

What If

GMC is my source of Sue Thomas and Doc reruns, not gospel music. Both shows, more so the latter (each show ends on a pretty evangelical note), have some religious overtones. So, it's not overly surprising that they are on the channel in the first place. Anyways, over the last month, What If has been heavily promoted on the channel. I finally watched it. Mixed bag, a sort of Family Man with more religious content (I didn't see the latter, but that's a common comparison), that is worthwhile.

I found two reviews and interestingly the one from a Christian publication was more critical. Concern for "moralistic therapeutic deism, rather than a sinner flinging himself on the mercy of a holy God" suggests some of the problem was a concern for the theme of the movie. Let me note that though the relationship to the Left Behind series (there is overlap of those involved behind the scenes) might scare people, the film is not of that caliber. It is Christian, but fairly mild. That might be part of the concern there.

As a bit of an outsider, I don't judge the film as harshly. The basics here is that a young man (Kevin Sorbo, best known as Hercules) leaves plans of a life in the ministry with his young love (Kristy Swanson, perhaps best known as the movie Buffy, though maybe not by the current generation) to succeed in business. Fifteen years passes and a successful deal underlines how far he has gone. After getting a note from his old love (perhaps hoping for a donation), he has a bit of a car accident, and the tow driver (yes, it is Cliff from Cheers) tells him he has been give a second chance to see how his life would have gone. He could return to his old life, but he has to seriously try this one first.

The ending is to be expected. But, this doesn't necessarily mean God gives you only two options -- his or the highway. The idea of God does suggest that God knows the best way for you and if you choose a different path, you will lose out some. The idea of "what if" is found in various "It's A Wonderful Life" scenarios. Fiction and sometimes fact gives us a way to find out how things would have gone differently if we had the chance to decide differently. Though it might not be the only way to go, it is not too strange to imagine a deity giving the right people a chance to see how that other way would have turned out.

The positive review notes that way to succeed with Christian programming is to make a product that is independently well made. Both reviews note that Sorbo and Ratzenberger (as the angel) are very good here. As the teenage daughter, Debby Ryan is good too, if not having much to do. She has a chance to be a bit more surly here than on her Disney show. The reviews are mixed on Kristy Swanson, but I agree with the positive review -- she has a rare chance here to have a meaty role and gives a very good dramatic performance of someone of deep faith. As one review says:

What If is really made by the performances. Kevin Sorbo and Kristy Swanson have never been given roles this meaty before, and they rise to the occasion. Sorbo, in particular, delivers one of the most sincere performances of the year. If all you know of him is his work on "Hercules," be prepared to see a whole other side to his talents. Swanson, meanwhile, deftly handles some intense emotional moments as Ben's confused wife, who can't figure out why her husband has abruptly lost the very values that made her fall in love with him in the first place. As the wisecracking angel Mike, John Ratzenberger manages to be very funny without hamming it up. He gives the character a kind of quiet confidence that can only come from knowing that one's boss is the Lord.

I think one of most powerful parts of the film is Wendy struggling with the strange actions of her husband, having faith in him but not blind faith -- she lets him know how hurt and disappointed she is, how if he doesn't shape up, they might have to rethink things. Ben's acceptance of his new life is a bit quick, a mixture of reading up on religious matters, seeing the joys of having a family and some inner transformation (or acceptance of what was inside all the time) that we mostly have to accept as a given. I didn't quite accept him counseling the dying man in the hospital as if he was actually a minister of long standing. It's a fairly powerful scene though.

The deck is clearly a bit stacked here. As the negative review notes, he seemed like a pretty good boss and all, so his old life was not really that bad, was it? A quick read suggests Family Man involved someone a bit more hedonistic than someone who concerns about getting a nice car. He was going to get married, if to someone who wasn't as religious. I assume they might have had kids at some point. The negative review seems to like the idea of a more "forward redemption" story. Like someone who repents instead of one who got a second choice to do the "right thing." But, there are more than one ways to do things. And, for him, maybe the alternative choice was his thing. It can be left to another medium to tell a story of someone who is a minister getting a chance for a different path in life!

To sum up, I liked many of the performances (the wife and angel being the best), various moments felt real and the overall film was enjoyable. The middle was a bit rushed and the overall concept had a few glitches. And, just how old are they in the final scenes? [In their mid-40s.] But, an overall thumbs up from this viewer.

Plain Writing Act of 2010 [Good Luck With That]

Via Grammar Girl [note 7], I learned about this attempt to make agency rulings easier to understand. It received broad support.

Rivera going will be the true end of an era

The fact that Justice Rutledge (Stevens' boss) gets basically no mention underlines the book isn't comprehensive, but its narrative tone makes it one of the better books on the Supreme Court for the general reader.  I think the Yanks will survive Pettite's retirement.

Scorpions: The Battles and Triumphs of FDR's Great Supreme Court Justices

This review is overall fair: a good read but not the place to get a comprehensive look at the subject matter. Still worthwhile. Meanwhile, Being Erica was a mixed bag this week, the family stuff welcome. Sorta normal there with a few ffs helpful.

Congressional Findings on the Coverage Requirement

In the The Patient Protection and Affordable Care Act (sic), we read:

SEC. 1501. REQUIREMENT TO MAINTAIN MINIMUM ESSENTIAL COVERAGE.

(a) FINDINGS.—Congress makes the following findings:

(1) IN GENERAL.—The individual responsibility requirement provided for in this section (in this subsection referred to as the ‘‘requirement’’) is commercial and economic in nature, and substantially affects interstate commerce, as a result of the effects described in paragraph (2)

(2) EFFECTS ON THE NATIONAL ECONOMY AND INTERSTATE COMMERCE.—The effects described in this paragraph are the following:

(A) The requirement regulates activity that is commercial and economic in nature: economic and financial decisions about how and when health care is paid for, and when health insurance is purchased.

(B) Health insurance and health care services are a significant part of the national economy. National health spending is projected to increase from $2,500,000,000,000, or 17.6 percent of the economy, in 2009 to $4,700,000,000,000 in 2019. Private health insurance spending is projected to be $854,000,000,000 in 2009, and pays for medical supplies, drugs, and equipment that are shipped in interstate commerce. Since most health insurance is sold by national or regional health insurance companies, health insurance is sold in interstate commerce and claims payments flow through interstate commerce.

(C) The requirement, together with the other provisions of this Act, will add millions of new consumers to the health insurance market, increasing the supply of, and demand for, health care services. According to the Congressional Budget Office, the requirement will increase the number and share of Americans who are insured.

(D) The requirement achieves near-universal coverage by building upon and strengthening the private employer based health insurance system, which covers 176,000,000 Americans nationwide. In Massachusetts, a similar requirement has strengthened private employer-based coverage: despite the economic downturn, the number of workers offered employer-based coverage has actually increased.

(E) Half of all personal bankruptcies are caused in part by medical expenses. By significantly increasing health insurance coverage, the requirement, together with the other provisions of this Act, will improve financial security for families.

(F) Under the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1001 et seq.), the Public Health Service Act (42 U.S.C. 201 et seq.), and this Act, the Federal Government has a significant role in regulating health insurance which is in interstate commerce.

(G) Under sections 2704 and 2705 of the Public Health Service Act (as added by section 1201 of this Act), if there were no requirement, many individuals would wait to purchase health insurance until they needed care. By significantly increasing health insurance coverage, the requirement, together with the other provisions of this Act, will minimize this adverse selection and broaden the health insurance risk pool to include healthy individuals, which will lower health insurance premiums. The requirement is essential to creating effective health insurance markets in which improved health insurance products that are guaranteed issue and do not exclude coverage of preexisting conditions can be sold.

(H) Administrative costs for private health insurance, which were $90,000,000,000 in 2006, are 26 to 30 percent of premiums in the current individual and small group markets. By significantly increasing health insurance coverage and the size of purchasing pools, which will increase economies of scale, the requirement, together with the other provisions of this Act, will significantly reduce administrative costs and lower health insurance premiums. The requirement is essential to creating effective health insurance markets that do not require underwriting and eliminate its associated administrative costs.

(3) SUPREME COURT RULING.—In United States v. South-Eastern Underwriters Association [1944] that insurance is interstate commerce subject to Federal regulation.

President Ronald Reagan’s former Solicitor General — Harvard Law Professor Charles Fried is "quite sure" that the regulation of interstate commerce here is constitutionally proper, citing precedent back to the early 19th Century. The above suggests why. The findings in fact cite a possible third enumerated power beyond commerce and taxation with the reference to bankruptcies.

There is some opposition to being forced to buy insurance. If this is what occurs here, it has been deemed proper to regulate interstate commerce by "penalizing" (if taxation doesn't work for you) those who don't enter the market. What works with wheat works with insurance, thus this works with the necessary substitutions: "forcing some farmers into the market to buy what they could provide for themselves" was accepted in 1942, even if only to benefit the market as a whole. The same applies to purchase of health insurance. If allowed, the "the wisdom, workability, or fairness, of the plan of regulation" is left to the legislature.

It is noted that the findings speak of "activity." It is said that not buying insurance is "inactivity." But, "activity" is still being regulated here, even if the overall scheme is advanced by regulating some inactivity in the process. Thus, a boycott (not buying ... inactivity?) is regulated since it is part of an overall scheme to affect sales (activity). Regulations often pull in those who are not immediately benefited, such as a requirement to buy a device that is only useful when there is a fire. The damage from the fire might never come, but if it did, the small outlay for all beforehand prevents major damage for a few who very well might not afford it. This damage, e.g. by bankruptcy, affects society at large. A 'one size fits all' rule is a valid approach.

It is unclear what "inactivity" means, however, since those who don't purchase insurance don't only do that. They do other "activities," including using the money they saved and using other means of maintaining health. The findings as a whole also provide a justification for the scheme that is a closer fit and easier to execute than requiring people to eat broccoli or to exercise in a certain way. But, not to worry, such parade of horribles will be raised, akin to the fact that the war power can always mean we will invade Canada.

Hey, we did it a couple times before, right?

The Pay For Certain Sectarian Religious Beliefs Pro-Incest Bill

Attempts to make permanent the unconstitutional Hyde Amendment add insult to injury by only covering "forcible" rape [fixed?], incest of those under eighteen and limiting the already overly narrow health exception. And, tax breaks for only those of a certain faith.

A Bit More

Balkinization has a various opinions strongly rejecting the "Tea Party" opinion striking down the health care law root and branch. Tim Jost dismantles the opinion as well. Jack Balkin, who has does yeoman work defending the law is a tad pissed, showing Sandy Levinson type passion:

The notion that being asked to either buy health insurance and make health care accessible for one's fellow citizens--or to pay a small tax-- is a form of tyranny akin to George III's regime is simply bizarre: it shows how perverted and twisted public discourse has become in the United States. The assault on the individual mandate is really an assault on the public duty to assist other Americans in need, and in particular, an assault on the legal obligation to pay taxes to contribute to the general welfare. The assault on the health care bill is not a defense of liberty. It is a defense of selfishness.

I concur. The annoying thing here is not only the johnny come lately selective arguments but the idea that this is some major threat to liberty, when it in fact is just the opposite. One final thing, since others have covered this ground in depth as seen by the links thus far, an abortion ruling is cited to help show there is some need to strike down the legislation in full. The opinion, as is the norm, really goes the other way. This includes the general principle that courts should "enjoin only the unconstitutional applications of a statute while leaving other applications in force." But. as Orin Kerr notes, acting like an inferior court judge was something treated as a "now and then" sort of thing here.

A word on the other ruling cited today. The judge argues that a narrower anti-fraud law might be legitimate. The concern appears to be that it isn't content neutral. Again, this doesn't seem to be the rule in place for abortion providers. And, there was clear evidence that a special problem was involved that had to be addressed. So, I'm still very hazy on why this law is illegitimate, even though I'm quite supportive of a strong view of the First Amendment. Eugene Volokh, no wanker in that department, ended up agnostic. Note his telling (see my comment) update.

Anti-Fraud Law Struck Down

A lower court struck down a requirement for a "pregnancy counseling center" to disclose that this doesn't include abortion information. As I noted here, I disagree. And, such selective (cf. abortion clinics' need to disclose alternatives) invitation for fraud is a real problem.

Lower Court Rulings: Tea Party Edition

Yes, this is but a district court ruling, but darn is it dumb.