TV Quickies

Rules of Engagement was fairly going through the motions (Jennifer is seen briefly) while Being Erica was good (even Brent has a few moments). Baseball began with a few late bits of magic.

Calvinball Constitutionalism

This sort of thing is sorta sad, except that people with actual influence actually believe it. I have various comments there, fwiw. See also, relatedly. The chicken bit is funny.

South Dakota's New Abortion Restrictions

The new three day waiting period law in South Dakota is at least a trifecta: burdening women, the poor and favoring certain religions. Oh, it enables fake "clinics." An audio account.

BS Alert

See this thread where I (new name) suggest "thinking" Obama was born here is a bit suspicious. A few tried to provide legalistic/philosophical hair splitting that is b.s. It avoids the reality of the situation and that he is not likely to talk like that generally.

More Mets Drama

Jason Bay. Another overpaid too long contract. Might be hurt. Again. And, more drama. Well, not really. Just a few moves. [Meanwhile: Phillies don't want Castillo. Some Mets fans smile. Another crossword fan ala Mussina. Why did no team pick up Evans, waiver bait?]

Avoiding Injustice Via Selective Focus?

I wrote this back in October:

Justice Brennan once told a reporter "to tell them stories" to explain to students and others the real life realities of the cases he covered. This article is a window behind what (via a link in the article) this case is "technically" about:

Issue: (1) Does imposing liability for failing to train a prosecutor on a district attorney’s office for a single Brady violation contravene rigorous culpability and causation standards? (2) Does imposing failure-to-train liability on a district attorney’s office for a single Brady violation undermine prosecutors’ absolute immunity?

Plain English Issue: Can a prosecutor’s office be held liable for the illegal conduct of one of its prosecutors, on the theory that the office failed to adequately train its employees, when there has been only one violation resulting from that deficient training?

You can see how you can have five votes here to hold that well it's only one violation and all, we need to give discretion to the prosecutors and some unfortunate incidents should not lead up many miles away to interfere with the running of a prosecutors office. What is this business about micromanaging how they train people? The underlining facts can argued away, the focus on a narrow legal issue, which is how many death penalty cases are disposed of as well.

It is telling to me the the conservative fifth circuit held for the prisoner here, even when given a second look as the full panel examined the question. Also, back in the day of yore, civil lawsuits, trusting local juries to weigh the facts and situation, was a common way to keep overreaching governmental officials in check. They would look at the whole picture, not a narrow legal question, the purpose of which is to keep them from doing their jobs.

And, so they did. 5-4, the Supreme Court today held that sure the prosecutors erred ["failed to carry out that responsibility"] but real fiscal relief obtain via a jury trial (see the article for why the DA Office as a whole had to be targeted) for someone (per the dissent) who "spent 18 years in prison, 14 of them isolated on death row, before the truth came to light: He was innocent of the charge of attempted armed robbery, and his subsequent trial on a murder charge, by prosecutorial design, was fundamentally unfair" could not be accepted. The necessary illicit policy wasn't found. Unless you accept the dissent.

Maybe, I'm wrong, but in close cases of this type I tend to think holding for the defendant is the best policy. Bad policy can easily be accepted since we see but "one bad apple." Justice Ginsburg read her dissent from the bench, underlining her passion on the issue. Meanwhile, the end of the line for Troy Davis?

We will do it right this time, really

Obama's speech last night, thanks for getting back to us, was depressing. The "American exceptionalism" mixed in with unilateral executive action (U.N. involvement ideal, but probably not required) with hazy details mixed with pragmatism masked by idealism. Is the best we can hope for is better applications of iffy policy approaches?

Andrew Jackson and the Constitution

An interesting case study, arguing that there is a continual "cycle of reform, ossification, and rebirth" of constitutional change.  The lack of one "fixed" meaning again is reaffirmed in spades. [And More: Interesting court opinion on 13A, citizenship and necessary/proper.]

Army Wives

Unlike some recent episodes, this was not a somewhat bland one -- it was a "special episode" done in powerful fashion as we see it is Jeremy who died, and we see things on both ends (home and in the field). Various reactions ring true, including a few from the children. 

Teen TV Quickies

The full length movie version of Wizards was pretty serious and I wasn't really a fan. From what I saw of the Suite Life movie, the same might be said.  Also, the portion I saw basically wrote out Zack's girlfriend and ended pretty lamely (the Bailey lasso thing etc.).  The new Victorious was cute.  The cast is too "too cool for school" in a way, but it has a good goofy feel.  Miranda gets the NYT treatment.

Baseball Quickies

The Cubs have an expensive "Ollie" problem too.  The Mets let go of Feliciano about the right time? Reliever feels "relieved."  Emaus looks workable and the Mets aren't the only team that balances things out and determines some liability works given the alternatives.  Given their likely year, isn't a new face with some potential a worthy option?

Making the best of it?

I'm  not of the "everything happens for a reason" school where every personal event has some deep preordained meaning or such. Still, the "lemons from lemonade" or "it's how you look at it" philosophy often works for me. Had aggravating problems with my computer recently, for instance, but I think rebooting it might have worked in the end.

You Have, Well ...

A few remarks on the new "Miranda policy" for terror suspects.  See also, Glenn Greenwald, who (sigh) lays it on too thick again. For one, I don't think Obama's earlier comments about "unilateral" action clearly applies to the Libya context.  And, it isn't just about Obama. 

Being Erica

Another good one,  focusing on "current day" drama, including of other characters, and doing well with it.  Ditto giving us hints of "the rules."  And, even a bit about another group member.  Life on Top is a not bad bit of late night soft porn.  Helps to have a bit of plot. 

The Living Constitution Goes To War?

[Foreign intervention on various levels, including constitutionally, does lead to strange bedfellows. My take in response of Jack Goldsmith (the "reasonable conservative" who is still one, thus his opposing the Bush Administration underlines how far they went) over at Slate and other places. The version in the Slate fray was added to somewhat for this version.  The title is reaffirmed in this article.]

It is appreciated that a leading figure from the Bush Administration accepts that originalism alone does not provide a simple answer here, a principle that one hopes he applies in other contexts:

There are many more theories about the original understanding. Even if we could definitively resolve this debate, which we can't, it is unclear why original intent—which in practice rarely determines contemporary constitutional meaning—should control outcomes in the context of presidential war powers, a context that as much as any is marked by radically changed circumstances.

Many things are "marked by radically changed circumstances," but interestingly many who tie themselves to some form of original understanding (there are so many to pick from) and limited government wish to make an exception for executive authority in this field. As with the desire to avoid judicial review in such areas (repeatedly rejected, if not enough -- thus people's life, liberty and property are put in harm's way and it all is deemed a political question between the President and Congress, neither much directly affected in a concrete sense as compared to those denied standing in court), that seems a tad bit arbitrary. If defended to some degree.

The article is almost amusing in having a feel that your stereotypical living constitutionalists would appreciate. Since I don't feel like a stereotype, I'm not really totally comfortable with it. We are told (somewhat confusingly) that "constitutional meaning gets liquidated by constitutional practice." The quote from a Supreme Court opinion only says that long practice provides a "presumption" of constitutionality. For instance, the long practice was for the federal courts to accept that states had the power to ban firearms if they had a reasonable public interest to do so. This "presumption" was deemed illegitimate in 2008. Again, when it comes to certain matters, rules can be unequally applied. See also, December 2000. OTOH, accepted practice in this area would make impeachment dubious, since that is a matter of prosecutorial discretion that warrants fair warning. If Congress suddenly shifts gears to that degree, it would be improper.

It is noted that Sen. Obama and Clinton opposed "unilateral" action that seems to be equivalent to what is occurring here. I'm not sure. The link itself suggests a possible out. Does UN action of the sort here count as "unilateral" or does the reference to bombing Iran apply also to active threats akin to let's say Rwanda (when useful, the Iraqi people were cited as a reason for the 2003 invasion, but unlike in 1991, when such "humanitarian action" was avoided, there was not a live ongoing special act of human rights threat in place)? Does modern international law provide membership nations to work with others to deal with imminent human right threats as decided by lawful actions of the U.N. (not present in 2003; Kosovo is a hazy line, since NATO agreed and they are the regional force)? Though it's tempting, I'm going to say Obama changing his mind here though once you are in power, you can change your mind given new responsibilities.

There is also a pragmatic argument for congressional involvement, that too a type of "constitutional law" as would be the case when determining, even if court enforcement is not appropriate, the rules of the game for judicial nominations (information provided, senator involvement etc.). Sen. Lugar:

“But given the costs of a no-fly zone, the risks that our involvement would escalate, the uncertain reception in the Arab street of any American intervention in an Arab country, the potential for civilian deaths, the unpredictability of the endgame in a civil war, the strains on our military, and other factors, I am doubtful that U.S. interests would be served by imposing a no-fly zone over Libya.” ...

In this broad context, if the Obama administration decides to impose a no-fly zone or take other significant military action in Libya, I believe it should first seek a Congressional debate on a declaration of war under Article I, Section 8 of the Constitution,” Lugar said.

This is better than counting every two bit military excursion, ridiculed long ago, as if they are the same thing as what is going on now. So, is the campaign constitutional? Some use of military personnel overseas without new congressional involvement is legitimate. If the U.S. (including citizens abroad or our military) is attacked, for instance, so citing various past uses of force only takes you so far. Some of them most likely were illegitimate. State authorized racial discrimination was long in place, but that didn't make it acceptable. The same applies to many executive actions in the military context. Torture is illegal even if it has been going on for years.  And, as in 2001/02, congressional authorization of force has been used, so some precedent is there.

A citation is made to a Supreme Court ruling that held that the President "has no power to initiate or declare a war either against a foreign nation or a domestic State," but the article notes that there is a debate over what "war" means. The term has an international law meaning; does it include actions of the sort in place here? As a matter of international law, I think the invasion is legal pursuant to U.N. authority.  As in  various areas, the selective use of power leaves something to be desired, but the limitations of reality tends to work that way.  This includes dealing with tyrants who have some sort of restraint and/or can't be restrained more given nuclear weapons or whatnot.  The question here is domestic. Signing a treaty, ratified by only 1/2 of the Congress (Senate), does not override domestic law. We cannot sign a treaty that abridges the freedom of speech and censor anti-Muslim speech.

Congress is given multiple powers that are in place to "chain the dog of war." It is near sophistry to avoid calling bombing countries, setting up blockades ("no fly zones" included) and supporting rebel forces by some other name. The spirit of the text matters here too. Unilateral action (or even vague delegation ala the 2002 AUMF giving the ultimate choice to invade Iraq to Bush) is not authorized. As with discrimination and other wrongs, Congress knowing and enabling violations does not make them appropriate. Do Tea Party types and others want "a world government" to set the rules of when our military goes into harm's way? [Apparently, as long as we continue to have a major role in it; as with "federalism," practice is more nuanced than rhetoric.] And, no standing in court mind you, since "you" aren't hurt, only Congress, who is not willing to push the matter, it being inconvenient.*

We can debate the shades of wrong here,** but in the modern state, Congress has the ability to be involved immediately and should be. This isn't the case of naval conflicts in the time of Napoleon, so references to the past are of only limited value. But, the current might of the U.S. military and the dangers of unilateral action if anything make it more dangerous. The "executive" should "execute," including when "commander-in-chief." Congress having the power and responsibility, they are the true villains here. Members get to pontificate while someone else gets to make policy decisions. Congress has an obligation, pragmatically and constitutionally, to do more.

Congress should immediately pass a resolution on the ongoing matter and set some guidelines for the President to follow. The guidelines should not be as vague or open-ended as the AUMF, which "authorizes" apparently a roving battle plan involving any number of nations. Imperfect as that might be, it would do something appropriate to its constitutional obligations.

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* Talking Points Memo, e.g., notes the Republicans are split on Libya. Some oppose such a foreign intervention under these terms (and under this President), others support it. Thus, it's convenient not to have to vote on such matters, except for fait accompli funding matters, once we are already there and all.

** A standard argument is to determine if Obama is "worse than Bush" on this issue, an act of tedium given that the final settlement is a complex matter that is repeatedly not addressed that way.   See, e.g., here regarding the "new normal" [including the law article cited], which Bush helped to create/broaden and which involves various nuances that matter given the breadth of the power involved.

But, on some level we can't avoid this sort of simplification.  Thus, an invasion authorized by the U.N. / truly a multilateral effort and in some fashion supported by regional powers is deemed a "U.S." one.  As with everything else, we have to take that as a given when deciding what to do. 

Background Helps

Prof. Jack Balkin twice led an effort to re-write key precedents (Brown and Roe), but looking again at the former, more background about the original case was supplied. Curious, particularly since a review challenges the latter on knowing their history. Still worthwhile.

Overseas: Real and Imagined

Army Wives again rested on our love of the characters, the plots somewhat dry. And, the reveal last week was in fact this week's cliffhanger! Meanwhile, yes, Libya requires (constitutionally) congressional authorization. The blame is more in Congress' court.

Goodbye Oliver

If they didn't sign the lousy deal, he would have been a nice story, then his time in the sun over. But, instead, he is a subject of scorn. As should be management. Him and Castillo, self-inflicted wounds. And, there was someone else left to pitch in Game 162 last year!

Various

Justice Scalia once cited the secularist nature of some nations in Europe, so might appreciate a ruling that allows Italian public schools to choose to display crucifixes. As the discussion linked notes, the court did apply a "criteria of objectivity and pluralism" but unlike regarding an oath of office citing the gospels [Buscarini and Others v. San Marino] or requiring religious courses* as such, this was deemed a proper example of local discretion.

Meanwhile, a bit more on Luis Castillo. He is (was) likely the best of a subpar bunch competing for second base. But, many fans didn't like him, sometimes his attitude seemed to justified it (overall, I think the reputation is unfair, him doing fairly well and injuries and a bad contract isn't really his fault) and probably was seen as a distraction. Also, it might be that the alternative, unless someone new comes with mid-season transactions, can have more of a future. And, let's be honest. The season is not going to depend on having someone a bit better there. If he's the best option, it really isn't because his skills are exactly superior as such.

[More here. The article cited was stupid but the paper's sports coverage and columnist overall is okay, so the attacks on them are sorta lame.]

It is telling that the Mets had to release him with six million left and not be able to get anything in return. You'd think he would be a credible back-up on some team. One probably will pick him up at the league minimum. Now, what about Perez, who is doing decent as a reliever, but letting go of bad news from the past is even more blatant there. Are they going to cheat someone with some potential of a roster spot to keep him on? If "fans" matter, as some say is the case with Castillo, ever more there. And, even some of his teammates want him gone.

The Memoirs of Dolly Morton is a good find via Kindle (less than a dollar though I eventually found a copy, don't know if it's complete, online). It is a work of erotica (porn if you like, but I think that word fits here) written around 1900, but not having an "old fashioned" sound. In fact, its narrative of a young Northern woman suffering being a planter's mistress in the time of the Civil War is quite good. It includes enough sex (with a focus on bottoms) to please those who like that sort of thing. My favorite is the use of the term "spot." Sometimes, understatement is best.

The Kindle version even has a few pictures (again bottom focused). Here is a photo of the cover of another version, which isn't really too representative of the plot.

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* The opinion here noted:

In this respect, it should be noted that, as the Court has held on numerous occasions, this freedom, in its religious dimension, is one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, skeptics and the unconcerned.

The ruling also cited this principle:

In the light of the above, the Court concludes that the instruction provided in the school subject “religious culture and ethics” cannot be considered to meet the criteria of objectivity and pluralism and, more particularly in the applicants' specific case, to respect the religious and philosophical convictions of Ms Zengin's father, a follower of the Alevi faith, on the subject of which the syllabus is clearly lacking.

The "right to freedom of thought, conscience and religion" can only be limited when “necessary in a democratic society.”

Libya -- We Get More Involvement

Not that I would know, but the ending being a "black hole" lacking in clarity with our involvement unsure and wary seems about right. And, remember, no congressional action needed to start us on the road. "Wacky" indeed. Castillo going is no big deal either way.

Deadly Choices: How the Anti-Vaccine Movement Threatens Us All

Dr. Offit's book is a striking warning and brief in support of vaccines. Timely given a recent Supreme Court ruling that involves a key law addressed in the book. The brief against tragically misguided selfishness is particularly sound. "Liberty" should have limits.

Respect for Marriage Act

And Also: Another good Being Erica with Dr. Tom being a major focus (as earlier) and some information on "the rules" (at least, in his case). Erica and her sister (I like her character) get time too. Again, will we have more on the other three members of the group?

The "Defense of Marriage Act" is an Orwellian piece of legislation in that it doesn't really defend marriage unless you define the term to mean something differently than what millions of Americans (including many faiths and now multiple state and local governments) have determined the word to mean. Also, fwiw, what I think it does mean. As the matter works its way through the courts, as was the case with DADT, political efforts are in place to correct the situation.

I was recently informed my senator was involved in introducing the title piece of legislation in the Senate. It is a truth in advertising sort of thing in that it true does have "respect for marriage." Wikipedia provides text for a House version:

(a) For the purposes of any Federal law in which marital status is a factor, an individual shall be considered married if that individual's marriage is valid in the State where the marriage was entered into or, in the case of a marriage entered into outside any State, if the marriage is valid in the place where entered into and the marriage could have been entered into in a State. (b) In this section, the term `State' means a State, the District of Columbia, the Commonwealth of Puerto Rico, or any other territory or possession of the United States

This is the right and constitutional path to take, Congress also having a duty to uphold the Constitution. But, shouldn't equal marriage rights be in place for all? As the website notes:

Nor does it obligate any person, state, locality, or religious organization to celebrate or license a marriage between two persons of the same sex. This legislation only requires the federal government to equally apply its policy of looking to the states in determining what legal relationships are eligible for federal benefits.

D.C. has same sex marriage now via legislative action. Congress provides them local home rule and gave them the ability to do that. Puerto Rico, on the other hand, does not have same sex marriage, though it must follow the U.S. Constitution. And, I think it is unconstitutional for them to do that. But, marriage is also traditionally something handled locally. The federal government does not generally regulate marriage,* including singling out one class as not being part of it; this is one reason DOMA was so unique and misguided. Putting aside pragmatic considerations (which are important too), therefore, it is correct for the legislation to let localities define marriage.

When they do so illegitimately, proper court action and other pressure is appropriate. I'm vague there advisably. At some point, federal pressure (other than court action) would be appropriate too. Now, it's good to go somewhat slowly. The political situation seems to be going in a positive situation.

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* As with other matters of local concern, the federal government does regulate marriage in certain instances, including means to obtain child support payments from parents who cross state lines. But, these are narrow situations, states regulating the matter overall. Thus, the 10A implications.

JP Day

Today is St. Patrick's Day, the Irish patron saint. Saturday is St. Joseph's Day, the Italian patron saint. Sunday is the first day of Spring. Friday is JP Day, in honor of Irish/Italian mutts like myself.

Giving People Bad Names

I don't think "pro-life" people are by definition tools, but too many are or give aid/support to sorts like this, and therefore the generalization is somewhat earned.  As noted here (see also comments), Palin also gives her party a bad name in part because she is them.

The true "wingnuts"

H/t.

Blind Leading The Blind?

Too cute and precious.  Also, a nice example of human compassion and loyalty. 

[Per My Army Wives Comments At IMDB]

[Link last post.]  It is striking how judgmental some people are about Roxy's actions; as with those utterly disgusted when a teen whose sister was murdered acted out, "being human" apparently isn't quite familiar to them.  Seed of Chucky was a bit weak, but Tilly was great.

TV Quickies

Army Wives was okay; as an old LA Law viewer, CJ's new boss amuses.  I saw the upcoming episodes of Suite Life and Good Luck Charlie, and similar responses -- likable characters, but not the spark of some earlier episodes.  GLC needs a real good one about now.

Libya

Wes Clark has a useful realistic perspective regarding why us intervening is a bad idea.  See also, here, including my comment against monarchical assumptions of our right to "install" people.

Go for it (and good luck with that)

[I replied to an article on the House of Representatives deciding to defend DOMA with the below. The final paragraphs and footnote is added, though the footnote references a reply to my post as well.

One reply (who also wasn't aware of the public policy exception) cited a West Wing episode where the President settles a deadlock by nominating one conservative, one liberal justice, the former thinking DOMA violates the 10th Amendment. Unfortunately, President Bush didn't nominate a Judge Kozinski sort. The paucity of such moves, which cannot be said about Obama and Clinton, underline why I disliked the guy even above and beyond not liking his basic politics and personality.]

I'm all for them defending the law. President Obama continues to enforce it and the courts have to rule on the matter. So, it's useful to have two sides give it their best shot. When the executive, as was the case a few times recently, for some reason concedes, having someone else (at times by court appointment) do the job is common practice. So, go right ahead.

Not that the going is easy. From the article:

Conveniently, the report lists all four reasons for promulgating the DOMA: "defending and nurturing the institution of traditional, heterosexual marriage; defending traditional notions of morality; protecting state sovereignty and democratic self-governance; and preserving scarce government resources."

The law in this case (again, dealing with only the third section,* concerning federal benefits) does not advance the third and fourth reasons. It has been determined by an earlier congressional research service report that marriage provides a net fiscal benefit to the government, reflected by the so called "marriage penalty." As to state resources, the law burdens them, since in various cases the states have to handle more of the load when they recognize same sex marriages when no federal benefits are provided.

And, when the federal government selectively singles out certain types of marriages in this way, it burdens state sovereignty in that those states that recognize SSM are deprived equal respect under the scheme in question. That interest works more as to the second section, dealing with states not having to recognize out of state marriages, though they already didn't have to do that under the against public policy exception of the Full Faith and Credit Clause. The likely redundancy was even cited those behind the law. But, that isn't the issue at hand anyway. 

That leads defending "traditional" notions and such. Again, this is not about the federal government itself protecting the right to marry directly as in regard to D.C. or military families.  It regards benefits to states that already recognized them. Other traditional notions of morality aren't singled out here. For instance, first cousins, adopted and step-siblings or even other "incestuous" relations [such as uncle/niece, allowed under a religious exemption in some cases] are not covered. Nor, other "traditional" aspects of marriage that have not met the test of time like strict divorce laws. Only same sex relations that burden homosexuals in particular are targeted. 

This matter has been beaten to death so I won't go on, but the blatant nature of the specific matter at hand does continue to strike me. Singling out same sex couples married in other jurisdictions for denial of benefits is pretty amazing to me on some level. Even someone fairly conservative about the development at hand might understand that state experimentation, which includes not penalizing those states who have marriages some don't like, is a careful way to go. The fact one judge rested his opinion on the Tenth Amendment underlines the point.

The limited nature of the step is also recognized by those bringing these cases to court, even though they might deem the federal Prop 8 case as risky.   But, it often is not seen that way.  On some level, that's valid, since the underlining principle goes further than this one case.  Still, as shown by those who support civil unions but not marriage, others do honestly see logic to middle ground.  This along with the benefit of time makes it a good idea to respect the idea that this is actually a somewhat conservative approach.  To cite Justice Souter, who spoke on another subject but some believe had this one partially in mind:

Changes in societal understanding of the fundamental reasonableness of government actions work out in much the same way that individuals reconsider issues of fundamental belief. We can change our own inherited views just so fast, and a person is not labeled a stick-in-the-mud for refusing to endorse a new moral claim without having some time to work through it intellectually and emotionally. Just as attachment to the familiar and the limits of experience affect the capacity of an individual to see the potential legitimacy of a moral position, the broader society needs the chance to take part in the dialectic of public and political back and forth about a new liberty claim before it makes sense to declare unsympathetic state or national laws arbitrary to the point of being unconstitutional. The time required is a matter for judgment depending on the issue involved, but the need for some time to pass before a court entertains a substantive due process claim on the subject is not merely the requirement of judicial restraint as a general approach, but a doctrinal demand to be satisfied before an allegedly lagging legal regime can be held to lie beyond the discretion of reasonable political judgment.

See also, the previous paragraphs of his opinion, including references to privacy rulings such as Lawrence v. Texas.  Thus, with some honesty, I welcome the defense here.  It hopefully will fail in the long run, but political cynical move or not (some strongly oppose SSM, but I doubt the Speaker of the House is one of them -- he doesn't come off as a moral warrior type), it is in the promotion of a good cause. 

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* To remind, the specific matter at hand:

Section 3. Definition of marriage.

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.

This didn't stop D.C. to recognize same sex marriages though I think there might be a way to somehow stretch DOMA to apply there, since some act of Congress probably is involved.

Anyway, that would be a harder question in some ways, since it directly involves the federal government applying its own local "police powers." On the other hand, when the Second Amendment was at issue, the differences between states and federal territory (see the very wording of the Second Amendment and its accepted meaning as a federalism protection) was totally ignored by the Supreme Court in Heller.   Federalism concerns are somewhat selectively applied, even when the matter is specifically at issue. 

Book Review Okay, But Standard Line Not

We do have two recent examples of presidents who have stood up against majority opinion: George W. Bush with his surge in Iraq and Barack Obama with his health care plan.

What part was the public against? More health care for kids? Less pre-existing conditions? Less costs? What? W/o context, we have b.s.

Rand Paul Reaffirms He Is An Ass

Sorry, Glenn Greenwald, things like this (cf. stance on choosing abortion etc.) is why people don't like the Pauls, even if they are sane on a few issues. We fight wars over energy and whine about the need to make small "sacrifices." Are we adults or babies?

Same-Sex Marriage Bill Falls Short in Maryland

Bigotry, including of the religious kind, wins out for now in Maryland. And, Del. Tiffany Alston comes off rather badly. Sorry, you do, Tiff. Would "democracy" justify racial inequality? Similar choking?

It's cute! Let's Use it to sell coffee!

I love the original affirmation, but I find its inclusion in the Maxwell House ad to be emotionally manipulative and sneaky.

It's how things are these days, but yeah, I agree. Less bad than many at least. The original video and update are pretty darn cute.

Bechdel test

To pass it your movie must have the following:

1) there are at least two named female characters, who

2) talk to each other about

3) something other than a man.

Striking. More here.

Planes, Trains & Automobiles

John Candy was a funny and endearing actor, but one in a lot of dreck. This was one of his few truly good films along with Uncle Buck and a few others. BTW, when was Bob Hope really funny?

Being Erica

This week's episode had a good message but was uncomfortable to watch since you saw the disaster a mile away. That's okay, though hiring her was such an obviously bad idea that it went a bit too far.

It Isn't THAT Simple

GG sees life as simple -- prosecute Gitmo detainees or let them go. But, doing the right thing often is pretty hard. There are various complications involved here. Can't we realize the former and the latter? As seen here, bad (and snotty) analysis is a major pet peeve.

Westboro Baptist Church Fairly Easy Case

The Westboro Baptist Church ruling is in some ways an easy case. It involves a peaceful group targeting a person of public concern (a war hero whose family publicized his death) in a public place with a buffer zone between them and the family involved to promote long held views on public matters. This sort of thing at times involves distasteful speech, upsetting speech and use of people as message enhancers against their will. It also these days includes websites.

We do not have veiled threats in this matter ala "wanted posters" from anti-abortion groups or that like that at times include home address and such information. "Private" people are not free from public display in this day and age. This is seen when more private people are targeted by the media for a particular story, even long after the news event passed:

One need only pick up any newspaper or magazine to comprehend the vast range of published matter which exposes persons to public view, both private citizens and public officials. Exposure of the self to others in varying degrees is a concomitant of life in a civilized community. The risk of this exposure is an essential incident of life in a society which places a primary value on freedom of speech and of press.

This is from the majority opinion of a case from 1967 in which the dissent (written by liberal Justice Fortas, joined by CJ Warren) balanced free speech with the privacy rights of a family, crime victims whose lives were made into play fodder (with details altered to boot).

CJ Roberts in his opinion here underlines other cases are different. For instance, the Supreme Court twenty years ago treated a protest that singled out a family's home differently. The protest here was (per the First Amendment) a "peaceful" assembly. It did not block a medical facility or even "invade" the inner happenings of the ceremony in question here. It did not involve "private" information like credit information of a private individual. And so forth. Some who support the case might not support the line drawn in other contexts.

Some justices like Alito and Thomas want to protect privacy to the degree that campaign finance laws for people running for office or those who promote ballot messages are threatened in dubious ways.* The same justices are less willing to protect the Fourth Amendment and other privacy protections in other contexts. Dubious enterprise. Balancing privacy interests in an ever more intrusive world is a complex matter and a proper sense of perspective is important.

[This originally was a response to Dahlia Lithwick's Slate article.  A bit more on how changing media might change First Amendment law can be found here. I added a link to the wanted poster reference, a matter that was among the first things I discussed on the Slate fray after a quick visit during the Bush v. Gore era.]

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* Citizens United upheld disclosure requirements that Thomas alone called called into question. It is possible to imagine such laws overly invasive of people who give small amounts of money (let's say $25), not the sort of thing most people are concerned about. But, Thomas, Alito and others would go much further than that sort of thing.

 

Better Than Yoo But A Ways To Go

GG on Obama's latest Gitmo order is imho [see comments] too one-sided.  I find this and this a more balance account, including contra his in effect blaming Obama for a bipartisan consensus that on core issues was there already and always influenced his actions.

Wintergirls

Striking book about a teenager struggling with anorexia.  Strikethroughs etc. (podcast) used to help understand things through the narrator's somewhat unreliable p.o.v.

ACA Update

Has the issue jumped the shark? Only thirty comments by midday! The brief referenced by the resident constitutionality of law representative is pretty good as is this one. Dream Supreme Court nominee (well, for some of us; that unlikely, Goodwin Liu is up again) Pamela Karlan is on the case (note the ironic url):

The Patient Protection and Affordable Care Act—which critics sometimes label Obamacare, as if the issue were the president, rather than providing adequate and affordable medical care—is under sharp legal attack, condemned as unconstitutional by conservative federal judges in Virginia and Florida.

As to debate over effectiveness [and/or their "necessity" for the ends sought], she is agnosticism, since she is only a law professor, not a member of Congress (reasonableness the grounds there). Clearly, she is too humble. As a final matter, upon reflection, I have five replies to the "no limit now" brigade:

[1] The overall scheme has to be "commercial"

[2] It has to be federal

[Update: Furthermore, we can add a means/end fit test here if the issue at hand is if something is "necessary and proper" to the enumerated power involved or something like that is deemed necessary to limit governmental power, even though again, there are various other ways it is limited. So, the "mandate" here can be shown to be a reasonable fit while some sort of broccoli mandate (ever so stupid) will not.]

[3] It has to go through two houses (one with a filibuster) and the President

[4] It can't violate some federalism principle such as commandeering* state officials or favoritism of one state over the other

[5] It can't violate some other textual (or structural) command, liberty based or otherwise

Many of the people against this law, few true libertarians (who, particularly back in the day, were among the defenders of the "forced" insurance model), say political checks are good enough, such as when something like the basic presence of the death penalty is involved. Suddenly, it isn't good enough. The law was weaker than many (arguably a majority of those who voted on it) wished because of such checks. Without phony "inactivity" tests, "commercial" regulations were struck down as violating the Constitution. This includes in effect rules that were deemed not "proper" such as requiring state legislatures to pass legislature or state officials to enforce federal laws.

The problem for the other side is that law in question simply don't violate them.  On this, as with (sadly) other issues that divide the parties these days, it is not true that there is really a reasonable difference of opinion.  The "rules" say there must be on some level, but it doesn't seem that way to me.  More so now.  

Anyway, Happy Mardi Gras and so forth.

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* I have cited these already and get little in response other than support for constitutional limits ... apparently, other than limits like not being able to force people to purchase abortions or religious periodicals. And a myriad of others. It's cant.

Randy Barnett tries a "citizen over subject" anti-commandeering principle, but the whole point of rulings on the point is that the federal government can regulate people in ways they can't regulate states. The non-subject rule is a backdoor liberty interest by another name, which is again covered by many things.

Wizards of Waverly Place

Disney has various fun shows (and theme songs) that I don't find true parallels of in the world of adult t.v. But, this show has gone downhill and the end of the somewhat halfhearted "Maxine" (who I liked more than the recent pretty boring Max) subplot was pretty lame.

Legal Quickies

Obama's actions reaffirms that DOMA's constitutionality should be determined by the courts. Glad you agree, John. Justice Alito: the empathy judge. Republicans upset. (No? Strange.). SC today: Scalia concurs separately over a footnote and again splits from Thomas.

Army Wives

It's back and started on the right foot with a well written episode. The subplot with Roxy/Finn's father my favorite, but others (including Denise not liking her son's finance) pretty good too. Next up, DDDD?

The different degrees of no flinching

Dahlia Lithwick in her article regarding the Al-Kidd oral argument says this:

Justice Sonia Sotomayor gives off the first trace of raised dander when she retorts, "You don't think there's a reason to make prosecutors flinch against willy-nilly … out of pure investigative reasoning, out of whatever motive they have, just lock people up?" To which Katyal replies, "Making prosecutors flinch is always a bad thing."

Katyal first speaks against damage suits, noting:

"No doubt that certain individuals will be harmed, but the cost of rooting out the bad apples through damages lawsuits is far worse, that it causes prosecutors to flinch in the performance of their duties."

Then, Sotomayor replies with a question trying to limit the absolute discretion of the prosecutor; Katyal pushes for a broader discretion, again concerned about causing prosecutors to "flinch the performance of their duties more generally." Sotomayor replies in part with the reference cited by the article. Then, the transcript has Katyal saying "making persecutors flinch is -- is -- always a bad thing." He already worried about flinching twice. So, his priorities seems apparent. But, that lower case "m" turns out to be important.

Listening to the audio and reading on in the transcript, his final "flinch" is not as blatant as suggested by the article (cited by me here). Katyal and Sotomayor are actually talking over each other there. Katyal says "you're" (Sotomayor) saying [I'm saying] flinching is always a bad thing. He clarifies that he means:

What I'm referring to is this Court's precedents that say damages liability on prosecutors is the wrong way to go about it [causing the flinching] because the costs are too high compared to the benefits

and lists other means. Scalia helps him note that there are other procedures [arguably less useful, which is why damage suits are available in such cases in other contexts] "there in order to make them flinch in a different" way and Katyal says this is "precisely correct." He  then says these other measures are not "constitutionally compelled," underlining can be less restrictive in practice.

So, Katyal, to me, clearly has the mentality that flinching is a bad thing and that damage actions even in cases like this are bad for that reason. But, the quote used in the article is arguably a bit misleading without noting what he said right afterward.  And, it is not really the first time that Dahlia was a bit too fast and loose with the issues, which is at times more problematic when the law is involved since such details often matter in specific cases.

It also aggravates the sentiments of some already turned off by her clear leanings. This is seen various places, including on blogs, and it seems to me that a bit more care might help promote the ultimate ends (including support of a side) intended.

Let's Go Mets!

This actually seems credible, especially if  you don't expect much.  They looked good yesterday. Don't trust that bullpen though.  And, am rooting for Daniel Murphy, though actually finding a position for him (don't they need a real second baseman?) hasn't been easy.

Quickies

Being Erica was very good this week with multiple characters having a chance to understand the complexities of relationships and desire.  Despicable Me was disappointing -- it had potential to be fun, but was overall boring. Ditto the Justice Stevens bio.  Not enough depth really.

Naked Therapist

Seriously? (I say kinda no).  Is the prostitute therapist (glasses key) next?  Doonesbury has a nifty plot, including the sly sex bit

Hate Wins, 8-1

[The other ruling, where again (see last SC entry) Scalia and Thomas split, was a 8-1 ruling that had a helpful footnote noting  "[f]or those of us for whom it is relevant, the legislative history,"  a good way to avoid a brief concurrence from Scalia on the point.  Why can't this be done more often?]  

For the past 20 years, the congregation of the Westboro Baptist Church has picketed military funerals to communicate its belief that God hates the United States for its tolerance of homosexuality, particularly in America’s military. The church’s picketing has also condemned the Catholic Church for scandals involving its clergy. Fred Phelps, who founded the church, and six Westboro Baptist parishioners (all relatives of Phelps) traveled to Maryland to picket the funeral of Marine Lance Corporal Matthew Snyder, who was killed in Iraq in the line of duty. The picketing took place on public land approximately 1,000 feet from the church where the funeral was held, in accordance with guidance from local law enforcement officers. The picketers peacefully displayed their signs—stating, e.g., “Thank God for Dead Soldiers,” “Fags Doom Nations,” “America is Doomed,” “Priests Rape Boys,” and “You’re Going to Hell”—for about 30 minutes before the funeral began. Matthew Snyder’s father (Snyder), petitioner here, saw the tops of the picketers’ signs when driving to the funeral, but did not learn what was written on the signs until watching a news broadcast later that night.

-- SNYDER v. PHELPS

CJ Roberts wrote the opinion (Breyer concurred separately to suggest its narrow nature) with only Justice Alito in dissent. The opinion turned on the "public" nature of the speech in question, even if some of the signs were arguably addressed to one individual in particular. It concerned opinion on matters of public debate (e.g., our nation's treatment of gays) and was done peacefully in a public place. A verbally abusive attack on a person for merely private reasons would be a different situation. A "wanted poster" targeting abortion providers that might be seen as a threat, ditto. Any "emotional distress" in this case, however, arose from protected speech and conduct.

[See here for more on the privacy promoting aspects of the opinion.]

It did not address the constitutionality a state law regarding such protests passed after the fact, but did note the protest did not violate at least one aspect of the law and its content neutral quality makes it different from singling out a protest of this nature. No intrusion was found that justified penalizing the protectors, particularly since the home was the involved and the funeral / memorial service was not invaded. [Alito suggested the group got as close enough as they could and avoid trespass laws, but the majority opinion notes "Several buildings separated the picket site from the church."] Again, different situations might be imagined where an invasion of privacy (e.g., intrusion upon seclusion) suit could work.

Justice Alito had a solo dissent as he did in an earlier case dealing with distasteful speech, there involving a law involving "crush porn" and other portrayals of animal cruelty. He opposed the "right to brutalize" upheld here. Speech does sometimes do just that. Freedom of speech is so important because it matter, including in ways that hurt. A newspaper article can hurt the people discussed. It "may intentionally inflict severe emotional injury on private persons at a time of intense emotional sensitivity by launching vicious verbal attacks that make no contribution to public debate." Or, rather, no significant contribution. That is the true meaning of Alito's words. And, why, he wonders, do the protests have to be placed at these places, when there are so many? Because it is a means for a small group to get the most exposure. If the group is benign, in the minds of the sentiments of the person viewing the situation, this is a good thing.  Or, so people think.  Generally speaking, see here.

The majority opinion assumes that the speech here is of public concern. Alito notes that it is largely targeted to one person. But, the movement here -- like other movements -- do have a general public policy concern, even if in various cases they address single examples of the concern in action. And, though the majority did not have to address the question, the family here made their hero slain solider into a public figure. They (rightly) celebrated him and did not make the memorial service into a purely private family event.  Financial penalties for public protests in such a case is even more problematic than would be the case for a standard funeral.

A good ruling that helps a distasteful group.  Some might even think protest should be protected more than suggested here, given its references to private v. public speech and the like.  A bit of now famous Roberts minimalism, perhaps.  But, it is a good ruling all the same.  Hate might win, but the rules set will in the end help us all.  [After all, even now, some think gays are the disgusting ones, including in public places.]

Sayles on Sayles (Directors on Directors)

A collection of questions posed to famed independent director [upcoming: Amigo] John Sayles, whose diverse abilities also includes rewrites of popular films and acting. A good skim, provides insight into a thoughtful leader of the film craft and other matters.