Football Sunday

There were a few potential upsets, including against the Giants, but Rams (we won a game!) were the champions (against the Saints! by a healthy margin!) yesterday. Steelers, mild upset. Arizona and Miami two that blew their chances. Not too interesting overall.

Steveeeee Somersssss

One of the good guys on NY radio.

Fleeing Hitler: France 1940

'Fleeing Hitler' can be enjoyed on many levels, from WWII history of a largely forgotten and unknown but major event, to personal stories of survival, to general lessons about evacuations and what happens when a modern western industrial society breaks down.

Good little book, as the customer reviews at Amazon suggest, on a little known "exodus." Covers various angles with good illustrations.

More on Personhood Amendments

The Ohio Personhood Amendment will insert Section 16(b):

"Person" and "men" defined:
The words "person" in Article 1, Section 16, and "men" in Article 1, Section 1, apply to every human being at every stage of the biological development of that human being or human organism, including fertilization.

"Our American forefathers" allowed abortion (and slavery and a lot of other stuff, but still, not a great reference). The Bible is also referenced.  Debatable as that might be, it's not something to use to defend secular law, nor does it quite get where they want to go -- the Bible allows the taking of "life" for any number of reasons, particularly in the Old Testament.  Then, there is a scientific definition, but again, particularly since science cannot define something like "person" (a legal or moral term), even putting other questions [touched upon by my previous discussion of this topic], this really only takes you so far.

My last discussion arose in particular from the Mississippi personhood amendment, and Rachel Maddow has focused on that (including last night), but references are made to a half-dozen or so of these things. This discussion led me to some helpful articles, including this one on the science of birth control. One article is by Michelle Goldberg, who wrote two interesting books -- on Christian nationalism and reproduction issues. Both are recommended. It includes discussion of the affect of such laws on IVF issues, noting the results of the restrictive policies in Italy and Germany. And, per my comment that effects on abortion and birth control are likely to be struck down but that it still would have some legal effect:

“People think, Oh well, they’re going to try to ban abortion but they’re not going to get away with it,” she says. “In Mississippi, there are a host of other issues—how does it change property law, districting, how do you count your citizens. You could imagine a new court case filed every day.”

Such issues and the reach of such a provision was noted by the dissents of Blackmun and Stevens in a case back in the 1980s involving a Missouri law of a similar caliber. Stevens' Establishment Clause discussion is also telling.* The Salon article notes the risky move taken here, one that (akin to some on the right loathe to have Christine O'Donnell run for the US Senate) some on the pro-life ("pro-life") side rather not take:

Personhood could represent the most audaciously successful reframing of the national abortion debate yet – in which pro-choicers have to fight over whether forms of birth control are abortion, as opposed to ensuring a woman’s right and access to reproductive choice. But even in Mississippi, allowing the fringe to drive the antiabortion movement could represent the point where it overplays its hand.

Goldberg notes that the effort can be seen to arise from "beast" itself:

It’s built around a few lines in Roe v. Wade that grapple with the question of whether a fetus is a person under the 14th Amendment. “If this suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the Amendment,” wrote Justice Harry Blackmun, before concluding that a fetus is not in fact a person.

Not really true and not needed to overturn Roe, underlined by the fact that those on the Supreme Court that wish to do so do not claim states cannot choose to allow abortions early in the pregnancy. Dorothy Beasley, the assistant D.A. who defended the restrictive law in Doe v. Bolton might have spoke of fetal Ninth Amendment rights, but even there abortion was allowed in a few cases (including, unlike in the Mississippi case here, for rape). I have looked through many lower court opinions and rarely was it suggested that that "persons" were being killed here. One outlier suggested otherwise, but though it upheld the anti-abortion law, even it noted that a woman still had some right to protect herself. I think the dissenting opinion is more correct:

I will not debate the biological or philosophical conclusion of the majority that, from the moment of conception a human life has commenced, although retired United States Supreme Court Justice Tom C. Clark does appear to take issue therewith, Clark, Religion, Morality and Abortion: A Constitutional Appraisal, 2 Loyola Univ. (L.A.) L.Rev. 1, 9-10 (1969). I am, however, more inclined to the view expressed in Doe v. Bolton, 319 F.Supp. 1048, 1055 (D.C.N.D.Ga., filed July 31, 1970) that "once conception takes place and an embryo forms, for better or for worse the woman carries a life form with the potential of independent human existence."

I understand and basically support the desire to give some meaning to human life, so that embryos are not treated the same way as a chair. The words used here are controversial, so how it is done is tricky, down to the nuances of the word "life" itself. I referenced in my first discussion Stevens' statement in an abortion ruling that it is logical for the state to regulate and protect the growing life in different ways from fertilization to birth. This is quite different from treating fertilized eggs as "persons," particularly if this means trumping the rights of girls and women from having an abortion for any reason other than maybe severe health risks (strictly applied). The dangers of treating fetuses as persons was noted by Rachel Roth in Making Women Pay: The Hidden Costs of Fetal Rights. Imagine if we push things back to conception. This would be true even if we are speaking of personal belief and practice. Much more so by secular law.

The Supreme Court has treated "persons" as humans who are born. Roe itself underlines this does not mean a state must allow pregnant women to abort until birth. A case a few years previously noted this in passing:

We start from the premise that illegitimate children are not "nonpersons." They are humans, live, and have their being.[3] They are clearly "persons" within the meaning of the Equal Protection Clause of the Fourteenth Amendment.

The matter of what "being" means is obviously greatly debated, including various proposals to have an earlier abortion cut-off. Trying to give "being" to a fertilized egg, however, is a bit much. Consider as well an important 19th Century case, if involving a lower court, that allowed a Native American to obtain habeas relief, holding for that purpose, he is a "person." In part:

Webster describes a person as "a living soul; a self-conscious being; a moral agent; especially a living human being; a man, woman, or child; an individual of the human race."

The fact that this would give an unborn Native American standing is I would think not a reasonable assumption as such. And, to say as much is not (sorry Ronald Reagan) to harken back to Dred Scott v. Sandford which removed blacks from the community of "persons" worthy of respect under the U.S. Constitution. The ability to give some legal protection to unborn human life is possible without going that route. I might also suggest for discussion that such life might have aspects of personhood as I think at least certain non-human animals have. But, as Roe notes, not in a "full" sense.

A final word on the issue of birth control, which Rachel Maddow and others flag. As one article noted:

The package insert for Plan B says that while the pill works principally by stopping ovulation (release of an egg) or fertilization, it may also prevent implantation of a fertilized egg by altering the lining of the uterus.

The use of "may" is telling -- the discussions underline that this hasn't been proven. Now, even if you are wary, on balance, only a distant chance might not be enough for you to disallow such contraception. This is so particularly if you recall that many fertilized eggs naturally die off, so (along with use of morning after pills in case of rape or other special cases) preventing conception in the first place will actually stop such "needless loss of life." But, as with those against the death penalty, the risk might be too much, especially since the people involved are very wary of the thing in the first place:

Scientists say hormonal birth-control pills and the morning-after pill work primarily by preventing fertilization in the first place, but the outside possibility, never documented, that an egg could be fertilized anyway and blocked is enough for some pro-lifers.

And, as I noted last time, the website for the Mississippi measure speaks in such a way that makes clear it admits "some" types of birth control might not be allowed. It's a tricky issue, but I'm not sure how much it can be avoided. Either side will also spin things some, prohibition of birth control (really some types) making it sound particularly bad. Bottom line, if the pro-choice side has to fight even on this battlefield, regarding something many who find abortion very distasteful will admit is at best ill-advised, it's very troubling.

The questions here will continue to be strongly debated and people on my side support wide discretion. But, there are reasonable matters of debate and then there are extreme measures. This falls quite far along toward the latter.

---

* The majority did not address the issue on the merits, but the plurality summarized the provision thusly:

The first provision, or preamble, contains "findings" by the state legislature that "[t]he life of each human being begins at conception," and that "unborn children have protectable interests in life, health, and wellbeing.

The connection between this and "personhood" is clear.

Ends With A Whimper

Basically lame Game 7: Cards went ahead, 2/3 of game involves them getting more so.  They should not have had home field advantage as a wild card team.  The rain again affected a game in the playoffs.  And, the Rangers shouldn't have pitched Oliver in the 10th.  Oh well.

British Monarchy Scraps Rule of Male Succession

No Reed v. Reed in the land of parliamentary supremacy; no First Amendment either.  So, it was left to a Conservative (mostly so) government to apply equal rules for sex, but no Catholics need to apply.  We have that no titles of nobility thing. 

Pearls To Swine Vids

Yes, the comic has been animated -- see YouTube for various examples. Pretty good. Not good -- twice being one out away from winning your first World Series and blowing it. Should have let the real reliever hit in the 11th, but still probably would have lost.

Court Watch

Obama tries again with the "Liu seat."  Mid-40s, appeals experience.  Clerk to both Kozinski and Ginsburg.  [Not mean to Alito.]  I think Orin Kerr is wrong on the upcoming GPS case.  Various comments underline the point and he is missing it.  Search AND seizure.

Paul Clement: Have Bad Cause? I'll Be Your Advocate!

At the moment, he is defending both Arizona’s tough new law against illegal immigration and Congress’s prohibition against interstate recognition of same-sex marriages. And if, as expected, the Supreme Court soon announces that it will hear a challenge to last year’s health care law, it seems increasingly likely that it will be Mr. Clement who argues, in the thick of the 2012 campaign, that President Obama’s signature domestic achievement is unconstitutional.

I originally posted this quote alone, but upon re-reading it, the verbiage is questionable.

Justice Sotomayor's first opinion spoke of "undocumented immigrants" and Rudy Giuliani famously noted ("Mitt Romney's position of the hour" ... ha ha) that they are not guilty of a federal crime. The paper there noted his "literal definition of illegal immigration." This concern for "literal" definitions is selective and the felt need to flag it is suggestive. It is true that it is "illegal" to break civil requirements -- double parking isn't generally "legal," for instance. But, since the connotation here often is criminal, and the fact that some states are pushing to make them "criminal" in ways the Obama Administration opposes, it is notable. Colbert had a good segment on the matter on Wednesday's show.

"Congress’s prohibition against interstate recognition of same-sex marriages." It is appreciated that the more accurate "same-sex marriages" is used, but um, not really. DOMA does not "prohibit" interstate recognition. NY, e.g., recognizes same sex marriages performed in Connecticut. And, did so even before it performed their own. DOMA, basically redundantly, says this isn't mandatory. But, it surely doesn't "prohibit" it. And, that isn't what Obama is opposing. He is opposing another section that prohibits the application of federal benefits to the marriages in question. I guess, though it's a curious way to say it, this is in a way "literally" a barrier to "interstate recognition," to the degree federal benefits are "interstate," but really, is that what it implies?

The US Supreme Court website has linked to the briefs in the health care litigation, one of the lesser known aspects, such as this citation finder. Though I still find it premature, the betting man might say that the Supreme Court might take one of those cases this term (the beginning of next also would fall within the 2012 election cycle). It's about as likely as the Dolphins or the Colts or the Rams winning a game any time soon. Anyway, kudos on no "Obamacare," and "President Obama’s signature domestic achievement" works though again Congress had something to do with it. This solitary focus on "Obama" annoys me.

As to "is unconstitutional," technical pass -- only a few parts of it are being challenged, but there is an argument that it must fall completely all the same. So, ending the doughnut hole (what? you never heard about that? shocker) etc. isn't "unconstitutional" as such, but some want to toss the baby with the bathwater. One last tidbit -- "tough new law" ... well, that's an opinion. But, news articles generally do have opinions in them, including what is supposed to be totally objective statements, not just "he said/she said" business. Such is the nature of the beast, sorry if that is too messy for you.

But, it can be taken into questionable directions.

A bit much

More rain; no baseball tonight. As to Tony's follies, well, he got them there, behind ten games late August and past the Phillies and Brewers. So, if he had an off game, well, I think it's forgivable.

Non-Capital Order

The USSC now and then releases orders, often involving capital cases. This one is an exception. A bit of inside baseball. Not on the same page with everything here, but the older policy of keeping many state issues out of the lower federal courts makes sense. Justice Stevens agrees at least as far as when the state courts uphold rights.

Personhood Amendment

If you "declare a fertilized human egg to be a legal person," it doesn't really mean that abortion or birth control (which might involve preventing implantation) would be illegal, particularly if protected by the federal Constitution. It would be inane, particularly given how many "persons" naturally cease to exist. As Justice Clark noted pre-Roe:

To say that life is present at conception is to give recognition to the potential, rather than the actual. The unfertilized egg has life, and if fertilized, it takes on human proportions. But the law deals in reality, not obscurity -- the known, rather than the unknown. When sperm meets egg, life may eventually form, but quite often it does not. The law does not deal in speculation. The phenomenon of [p218] life takes time to develop, and, until it is actually present, it cannot be destroyed. Its interruption prior to formation would hardly be homicide, and as we have seen, society does not regard it as such.

The word "person" as found in the federal Constitution is used in ways that apply post-natally. It is not the same thing as "life," which in some form exists in each human cell and at conception as well. Persons are more than mere life, however, and it cheapens the word to apply it to fertilized eggs, which again naturally are disposed of regularly without any artificial means involved. The meaning of the unborn and at what point an embryo or fetus (though here we aren't even at the first point) reaches a point of meaning that merits "personhood" is a matter of great ethical, moral and religious debate. The idea that some state or states should set it in stone so that one group will win out is unjust.

This is so even if we can determine, though even there the line is quite debatable, some point in the pregnancy where a "person" exists, that is, legally saying it occurs before birth. The allowance to criminalize most abortions after viability is one such line. It is quite different, however, from drawing the line at fertilization! As Justice Stevens noted:

And if distinctions may be drawn between a fetus and a human being in terms of the state interest in their protection -- even though the fetus represents one of "those who will be citizens" -- it seems to me quite odd to argue that distinctions may not also be drawn between the state interest in protecting the freshly fertilized egg and the state interest in protecting the 9-month-gestated, fully sentient fetus on the eve of birth.

One group pushing for a "personhood amendment" has this "fact sheet." Note how "most" forms of the pill are protected. That means some are not, including I would think "morning after pills" since there is a chance that they prevent implantation of fertilized eggs in some cases. (I got in trouble with Amanda Marcotte over at RH Reality Check over this issue, but Planned Parenthood, the Mayo Clinic, Rachel Maddow etc. have noted the chance this might occur given how the pills work.*) The same would apply to IUDs, which work in part by preventing implantation. As to in vitro, they say unused embryos must not be destroyed. This isn't always possible, and what sort of "person" rights exist when they can be created willy-nilly and held in limbo, perhaps for years, put at risk over time? No exceptions here for rape, it is noted explicitly.

The fact that even those strongly against abortion (including those who want to make it illegal to choose it) support stem cell research underlined that those against it were particularly extreme. The same applies here. A person can be against abortion and realize that labeling fertilized eggs "persons" and saying that rape victims cannot take "some" pills to prevent them from being implanted is, quite honestly, a tad absurd. As some in the first story note, it is in fact counterproductive if you are "pro-life" to support such in effect largely symbolic measures. This is not to say it won't likely cause some harm (e.g., state funding issues) -- laws tend to have some effect as underenforced sodomy laws showed -- but symbolism is largely what is at issue here.

Perverting the conversation even more is a tragic thing. I have noted that use of "fetus" bothers me in abortion discussions since it brings images of largely developed beings when most abortions occur early in the pregnancy. If babies will be the image when a fertilized egg (why not sperm ala Monty Python's The Meaning of Life?), it will be so much worse. The effort and funds used toward this business can be shifted in so much more useful ways. I would be inclined to say that even if I wanted abortion to be made criminal. Is this what we are seriously debating now? A law to make fertilized eggs people?

Remember, Mitt "he's sane you know" Romney supports this sort of thing.

---

* The "pro" side here include many who -- if they had their way -- would simply not allow birth control at all. Various efforts have been in place in respect to health insurance and funding where that is clear. On that level, it's pretty counterproductive, as AM noted, since birth control pills prevent the creation of all those fertilized eggs that will naturally be disposed of. Of course, "nature" did that, right?

The line drawn to allow "some" pills is also questionable on principle, since the other pills basically work the same way, but involve use of large doses of certain hormones that can affect fertilized eggs. Is it totally clear that a regular cycle of birth control pills might not possibly do that as well? Sure, it might be only a small chance, but "persons" are at stake! Some are not willing to risk even a handful of wrongly executed convicted murderers, after all.

Television Watch

It is confusing some viewers that Body of Proof aired episodes out of sequence. It was a mid-season replacement, so extra episodes were left over, though the link suggests even during the first run things didn't go directly as intended. Thus, after two new episodes were aired to start the new season, good episodes by the way, viewers were confused. Um, why does it seem that Kate is only just starting to date Megan's ex? She isn't a "new" girlfriend any more. And, at least it seemed this way to me, the "feel" of the show was different from the first two episodes. More rough and raw. Then, a new feeling episode was aired and then more that fit with earlier ones. It seems, perhaps, next week's episode might be the last of the original set of thirteen. Maybe, we can get back on track with the first episodes of the season as a guide?

Tonight's episode would be in Season One, if they are put in the correct sequence. The dynamics between Megan (the lead) and Kate (her boss) is a bit tiresome, but Megan's relationship with her daughter (her ex has custody, Megan previously focusing more on her career than her daughter) is one of my favorite parts of the show. Tonight's episode was partially focused on that, including debates between Megan and her ex over the topic. I have flashbacks to Once and Again, where the actor also had to deal with custody issues mixed in with a divorce. "Lacey" is played well, the actress having a sizable resume at 15.

I am watching the final season of the English show Doc Martin on YouTube though it might eventually be on the IMDB page/Hulu like the other four seasons. I like the female lead and the show as a whole is quirky, but the final season seems to be done in a particularly lackadaisical fashion, really laid back. As to the Canadian show Being Erica, I found the first episode of the new season online, but decided to wait regarding the rest. There are plans to have an American version of the show, though the Canadian version (aired on SoapNet about six months after the original airing) could easily be an American show, other than a reference to a Canadian city. Well, let's see how they handle it.

I also noted that I enjoyed the first episode of Once Upon A Time. The Disney character type coming to the real world, said to be some horrible place next to the charming land of fantasy, was done in Enchanted. This is something different, of course. The first episode was done well -- the storybook world intertwined with the current events in ours. A fun bit had some council taking place with various storybook characters such as Snow White, Prince Charming, a couple dwarfs, Jiminy Cricket and others involved. Another world was created as is done fairly well (I'm sure there are anachronisms and so forth, like some note Body of Proof doesn't quite do Philly right) in Pan Am, which by the way is apparently on the cusp of cancellation. I like it, so I hope it sticks.

Once Upon A Time (Grimm also has a storybook theme, if going in a different direction) will rise and fall on its stories and acting, the gimmick important but something of an extra. Snow White, now a teacher (the characters do not realize who they were after the curse kicks in; how Snow White's grandson realizes things has not told yet) with short hair (seriously, different look), for instance has a good bit of dialogue about the meaning of fairy tales and played her role low key -- she seems like a nice little innocent sort, but you can see an inner fire and strength.

November is coming and with it, Necessary Roughness and The Closer will come back with some new episodes. The Winter will bring Army Wives back. I said at some point -- who knows when -- that t.v. seems weaker these days. After awhile, however, you count and see there are enough shows to make a pretty good bunch. Again, most of them are hour long dramas. Monday, like the days of yore when Newhart and Murphy Brown was on, is a night for comedies too, as are other nights. I just don't really like them. But, there are a few on Disney and Nick, such as Good Luck Charlie. Toss in sports, news shows and Colbert, you have more than enough. It's all relative, I guess.

Stevens -- Reviewer

Justice Stevens is keeping busy in "retirement," including reviewing books. Last time the death penalty, this time criminal justice as a whole. A lot of good stuff there, including a broader understanding of the Fourteenth Amendment. Have not read either book yet.

Sports Update

A bit messy, but good baseball game.  Jaguars offense is lackluster, but their defense has been very good, making it 9-0 in the Fourth.

Once Upon A Time

Never into Lost, but this show from its producers or whatever had a good premiere.  Era of hour dramas and reality shows. 

Holy Hullabaloos: A Road Trip to the Battlegrounds of the Church/State Wars

This travelogue covers a lot of ground (it's hard at time to do this without oversimplifying; he probably slips now and again) in a way accessible to the general public pretty well, though his left leaning atheist Jew schtick asides do at times get annoying.

Ninth Amendment: Specifics

I have spent some time discussing the Ninth Amendment, referencing some cases and broad principles, but what rights in particular are covered?

First, there are those protected by state law that the federal government has no power to invade for one reason or the other. California protects the right to petition in private shopping malls, something now deemed not protected by the First Amendment, even though has the flavor of a traditional public business area where that sort of behavior (handing out pamphlets and the like) was done. This "retained right" (one that applies only in California in this case) should not be invaded by the federal government merely because the First Amendment does not reach that far.

This same result can arise in a more negative fashion. California decriminalized medicinal marijuana in various ways.  There might not be a "right" as such -- which would be stronger -- but by allowing it, people at least have the "right" not to be arrested or otherwise penalized by state officials for being involved.  If the feds had no power over this activity, again, merely because the rights enumerated were found not to include use of medicinal marijuana would not take this "right" away from residents of the state.  If California (like Alaska did in the 1970s regarding small time private possession) did recognize it as a right, the case would be stronger, though a clear case of a federal power might trump it.  Such concerns can be handled politically, including by prosecutorial discretion. 

Second, there are various rights that are protected across the board, even if individual states wish it to be otherwise. The various cases cited suggest various examples, including use and purchase of contraceptives, choices respecting childbirth (no "one child" policy here) and child raising, matters of intimate association including sexual activities of various types, the right to travel, marriage, a basic right to "liberty" from confinement without good cause (remember, the Bill of Rights lists various safeguards in criminal cases; what if a law allowed the detaining of those with mild ailments? if applied evenly and fairly, procedural due process could be met) and to make various daily choices regarding dress (see, e.g., Justice Powell's concurrence here as to hair length), diet and so forth.  One listing:

See, e.g., NAACP v. Alabama, 357 U.S. 449 (1958) (right of association); Griswold v. Connecticut, 381 U.S. 479 (1965), and Stanley v. Georgia, 394 U.S. 557 (1969) (right to privacy); Estelle v. Williams, 425 U.S. 501, 503 (1976), and Taylor v. Kentucky, 436 U.S. 478, 483-486 (1978) (presumption of innocence); In re Winship, 397 U.S. 358 (1970) (standard of proof beyond a reasonable doubt); United States v. Guest, 383 U.S. 745, 757-759 (1966), and Shapiro v. Thompson, 394 U.S. 618, 630 (1969) (right to interstate travel).

Again, see also Justice Douglas' concurrence in Doe v. Bolton (inspired by a memo written by Justice Brennan, who was interested in the Ninth Amendment but relied on substantive due process in his own opinions, as told by Liberty and Sexuality by David Garrow), which summarizes things nicely.  Again, these rights are protected in various ways, including by more strict review of them in respect to equal protection. This is how the fundamental right to vote -- which to me is basic to a republican form of government so would be a "Ninth Amendment" right (other basic rights aren't given to everyone for various reasons either -- young minors, for instance, cannot marry) -- is generally protected (raising but not relying on First Amendment argument).  An early recognition:

Though not regarded strictly as a natural right, but as a privilege merely conceded by society according to its will under certain conditions, nevertheless it is regarded as a fundamental political right, because preservative of all rights.

I was reading about the formation of the First Amendment. One mostly forgotten member of Congress noted that he wasn't really concerned with specific wording as such, but with the basic idea behind the freedoms related to religion at issue.  As seen in this case from the 1880s, this quite American sense of pragmatic flexibility makes sense.  Either way, this old discussion by me of "natural law" is germane.  And, that ends my Ninth Amendment discussion for the moment.  I think! 

TV Watch

The guy who walked three straight last year pitched a gem -- it's the porn mustache!  Victorious was a decent episode with an amusing in joke about extras.  Pan Am again was pleasant time filling. "Nico" was on, but didn't play "Niko" here.  Saints piled on. 

More Football

Panthers didn't blow one.  S/B: nine total points.  Rams' lo-ser.  KC whipping suggests why Raiders got a new back-up QB.  Viks making it a game, even after a twenty-three point swing by the Packers.  Colts/Saints probably looked like a good match-up. MNF: yawn.

Wizards

I think the show has been pretty lame of late, but this surprise really annoyed me since it was treated so lamely. Tacked on and without energy. And, where exactly did YKW come from?! Time to go.

Week 7

Coming from 21-10, the defense stepped up and the Jets won, SD's final series pretty lame. Detroit is suddenly losing games. Miami blew a 15-0 lead (failed two point) and lost 18-15, Denver getting an onside + the two + OT. Lo-ser. Chicago managed a win in London.

Ninth Amendment Again

I have recently focused on the 9th Amendment to the Constitution:

The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

It might be somewhat "forgotten," though the number of law review articles and references suggest not totally in the least, but it sets forth basic principles (debated) even if it is not expressly cited in the process.

I would like to give a shout out here to Eugene M. Van Loan III's entry in Randy Barnett's collection of essays on the topic, Loan writing in the 1960s (see also, his 2006 article on "Judicial Review and Its Limits," which is usefully dubious about overly self-righteous claims of its legitimacy). It provides a good summary and is notable for various reasons. For instance, it lists several citations of the Ninth Amendment that other sources seem to miss. It also notes the limitations of use of history in interpreting constitutional provisions -- it is but one tool. And, it notes how focusing on federal power -- however originalist it might be -- is anachronistic in this day and age. The federalist revolution, or partial one, that came after he wrote does not change the fact, as he notes, "rights" is often the more appropriate focus, particularly when courts are involved.

The traditional view of the 9th Amendment can be found in a passing reference in one of these cases, Hoke v. U.S. (1913), which concerns a federal law against "white slavery." Argument:

Because the right and power to regulate and control prostitution, or any other immoralities of citizens, comes within the reserved police power of the several States, and under the Constitution Congress cannot interfere therewith, either directly or indirectly, under the grant of power `to regulate commerce between the States.'

Response:

If the statute be a valid exercise of that power, how it may affect persons or States is not material to be considered. It is the supreme law of the land and persons and States are subject to it.

Thus, the amendment limited federal power and in the process protected individual rights, but if a federal power existed, the amendment does not apply. As Loan notes, as the federal government expanded, the breadth of federal power made this a less useful check, especially with the use of implied powers. The concern didn't just arise during the New Deal, as criticism of John Marshall's rulings (now deemed canonical) showed, but it was taken to new levels in modern times. It is true that "a valid exercise" implies a limit, but a strong presumption of constitutionality generally makes that a limited check. "If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail." (principle cited by Justice Brennan in Roth v. U.S., involving federal obscenity regulation). The brief citations underline the limited concern.

In Bute v. Illinois (1948), "the reserved powers of the states and of the people were emphasized in the Ninth and Tenth Amendments" included whether or not to supply a lawyer to a state defendant in most non-capital cases, except if "special circumstances" applied. Due process of law in time was determined to require more. This does not mean the rights at issue were trivial. As Justice Stewart said before he accepted substantive due process in Roe v. Wade:

The right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being—a concept at the root of any decent system of ordered liberty. The protection of private personality, like the protection of life itself, is left primarily to the individual States under the Ninth and Tenth Amendments. But this does not mean that the right is entitled to any less recognition by this Court as a basic of our constitutional system.

Rosenblatt v. Baer (1966). Thus, rights are there and protected, but largely by state action. If some federal action invades this safeguard, federal judicial review would be justified. A few references can be found on that front back to the 19th Century as seen in the headnotes to ROOSEVELT v. MEYER (1863) (legal tender law). The Supreme Court held it had no jurisdiction because the lower court upheld the federal law in question (it is questionable if this was correct or they just was trying to avoid a hot button issue; either way, it is clear federal law gives the Supreme Court broader jurisdiction today), but the principle was out there. Again, given the focus on "power," the Tenth Amendment (originally thought of as working hand in hand with the Ninth, in fact, James Madison put the two ideas together) often focused upon. As the lower court did there.

The Bill of Rights limits the federal government. So, yes, originally the Ninth Amendment would take power away from the federal government, not address the limits of the power of the states or the people themselves in respect to violating "retained rights." The Civil War, however, showed the limits to this approach, the states also a major threat without some additional federal limits. Thus, citizenship or even mere personhood brought with it obligations from both the states and federal governments, obligations that could be upheld nationally. The Fourteenth Amendment spells this out, including its fifth clause.

The reach of this federal power, however, was greatly debated. This includes respecting rights -- see the Bute case above where something we now generally deem basic (a right to be given an attorney in any major criminal case if you cannot afford one) was deemed to be the discretion of the states to a large degree. Slowly, however, it was recognized that all have certain rights and local invasion was a concern for federal action. That is, this basic idea was always there to some degree, but the reach of these "fundamental rights" was expanded. As Justice Goldberg noted in Griswold:

The Ninth Amendment simply shows the intent of the Constitution's authors that other fundamental personal rights should not be denied such protection or disparaged in any other way simply because they are not specifically listed in the first eight constitutional amendments. I do not see how this broadens the authority of the Court; rather it serves to support what this Court has been doing in protecting fundamental rights.

As with saying a state violates the "First Amendment," the use of "the Ninth Amendment" here is somewhat misleading. What is largely at stake is the Fourteenth Amendment, which in effect "incorporates" the requirements of the Bill of Rights, including the Ninth Amendment. [There are likely other rights that states cannot invade that arise elsewhere such as suggested by this curious discussion of the right to travel.] The fact that states repeatedly added "mini-9ths" in their own constitutions underlined that it put forth a principle that could be applied nationally. Once it was determined that national rights of broad reach applied to all, protected not merely by state actors, the current common understanding of the Ninth Amendment is appropriate.

Goldberg used the Ninth Amendment as a "rule of construction" to further the principles of substantive due process. He cited three basic principles: rights traditionally deemed fundamental, those that work off enumerated rights (the majority's approach) and "from experience with the requirements of a free society."*  Douglas himself said as much in his Poe v. Ullman dissent and later (see, e.g., Doe v. Bolton), expressly referencing the "liberty" of due process of law as well. The "penumbra" stuff is ridiculed but was really a one-off though rights "indispensable to the enjoyment of rights explicitly defined" (Richmond Newspapers v. Virginia) continue to be an aspect of their recognition. The connection between SDP and the Ninth was seen in Planned Parenthood v. Casey:

Neither the Bill of Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects. See U. S. Const., Amend. 9.

The opinion hooks this up with Justice Harlan's Poe v. Ullman opinion (dissent but now basically normative), which rests on substantive due process. So, though the Ninth Amendment originally limited the federal government, in effect by helping to explain what a "proper" (or valid) use of power entailed in respect to rights, the basic principle applies to state action too. Its sentiment was "incorporated" as were other provisions, and a limited view akin to those who argue the Establishment Clause only offers a federalist limit misses the boat.

A full use of history, recognizing its limitations, helps show this.

---

* Natural rights or those "intrinsic" or "inherent" or "basic" to liberty (different adjectives can be found cited, again, usually involving substantive due process)  fit in each of these categories, helping to give them life and meaning.  Certain enumerated rights were "pre-existing" -- free exercise of religion or use of arms for self-defense, for instance.  See, e.g., D.C. v. Heller.   Others, such as trial rights, are societal safeguards of such rights.

And, the other two categories also can fit into both categories.  Rights arising from family life are traditional and basic to a free society while also basic to our natures.  On the other hand, something like marriage is as well, but to the degree the state supplies a marriage license, a positive law component is involved. A trial makes it harder for the government to deprive someone of liberty, but that is not the only way it protects us. 

Thus, focus on purely "negative" liberty, freedom from government restraint, is misguided.  Ninth Amendment rights as much as anything else in society requires some governmental action to be fully protected.  Thus, some argue education -- including that applied by the state -- is a Ninth Amendment right.  Society implies certain rights, including those unlisted.

16-7 (no the Rams didn't finally win)

A close but correct call helped Texas win 2-1. An incorrect call (didn't see it, but so says the ump) helped the road to ruin, a comeback in the bottom of the same inning stopped. Same ump made both calls.

Sports Pope Gets Dissed

I grew tired of him on WFAN a long time ago, so the fact this happened is not surprising. The fact they quite literally talked about it on the station all day today -- through three hosts -- is a tad ridiculous though the hosts didn't just agree with their colleague.

Ashleigh Banfield

Her controversial 2003 speech is appropriate reading/listening with today's Iraq announcement. How about Afghanistan?

Tough Guys and Drama Queens

I am reading The Drama Years, a book discussing the trials and tribulations of middle school girls, underlining the importance of this sort of book.  The teen years, as most of us know, are a time of change and struggle, both for the teens and sometimes it seems as much for the parents too.  It is a scary time for all involved, if exciting as well.  So, I appreciate a book that provides some perspective on how to deal with them, especially a book that covers all teens, not just boys or girls.

This book is by someone with decades of experience with dealing with teens, in close contact, and is realistic: the philosophy is that the truth of the matter is not enough.  You can be in the right, but if you don't approach and relate to the teens in the right way, you can fail.  This is upsetting to some, since they believe in effect "right is all that matters."  Not true.  Discipline can't be forced merely because you are a parent and the child did something wrong.  The importance of good relations is well known by many people when dealing with their families and the same is true for many (such as educators) who deal with teens as well. 

The book is divided into three sections:

1.     What's so different about today's culture
2.     Why traditional parenting no longer works
3.     A new model for parenting teens.

One thing that received some push-back is the author's suggestion that parents give teens some space to make choices, perhaps wrong ones.  This cannot be done for truly harmful things, such as using drugs or such.  But, take an example of a seventeen year old not wishing to go to church.  By this age, a person needs to decide to go to church on his or her own.  It is not like forcing the person to go to church until they leave home for school is going to be much good in the long haul. Realizing that you have to sometimes trust your child is sound advice.  The "conversation starter" and "how to discuss" conflict appendixes are also helpful. 

The book's overall philosophy is that God gave parents a special role and that they need guidance sometimes to help carry it out. Children aren't the only ones who need help. This attractive volume is a useful addition to parental support resources.

Note: This book was provided free by Book Sneeze in return for a review.  The opinions are purely mine and a positive review was not required for receipt of said book. 

Miral

During the DVD commentary, which is good, it was noted that Roger Ebert didn't like the film, but Carl Reiner thought it remarkable.  [His phone message is found at the end of the commentary track ... down to the phone number he left!]  The (Jewish) director noted that he'll take that any day.  A search for a review brought up another one, which admired how the film looked ("poetry") but not how it told the story as a whole.  I find the review too negative, but there is some bite to this:

Though the scenes are ordered logically, they’re handled in a way that’s so choppy, they feel more like unrelated episodes than chapters of the same story; gaps in the plot end up getting filled in with archival footage and onscreen text.

I had the feeling while watching this authorized film version of an autobiographical work (the author -- now a journalist -- shows up in the DVD extras and praised the result) that a three hour story was told in half that time.  The result involved some scenes of great power, the various actors very good, but I repeatedly felt we were merely getting incomplete snapshots of events.  If we accept this limitation, Carl Reiner was correct -- it was a remarkable film, particularly given how much material is found therein.  Great locations as well.  And, as the director noted, it is important to note that this is not supposed to be the whole story.  It is tells the stories of some people, mainly through one point of view because that is what the film is about.  If it cannot fully tell even that in under two hours, expecting even more is unfounded. 

The movie starts with the start of a school for Palestinian orphans, survivors of a massacre arising from the creation of modern Israel, a school where Miral eventually winds up.  First, we see a bit (over a span of twenty years) of the story of the school's originator and then of Miral's mother, both who could have been subjects of their own film.  The brief two scenes with Willem Dafoe's character underlines how we are left wanting to learn more about these characters and events.  Then, we skip to the main character's sixteenth year as the first Intifada goes on.  Various moments -- a possible first love with a member of the Intifada, an interrogation scene, a solider questions her on a bus, a possible friendship with a Jewish girlfriend of a family member etc.  are excellent. 

I never really got a full feel for Miral as a whole, again the need to compress so much into around an hour of screen time limiting.  The director suggested there was a two and a half hour director cut out there, but that he had to make choices to put together a film for general audiences.  He feels the result was successful and it was in various ways.  I say this more so after watching it again via the commentary track.  I still see the reviewer's point and can see how some will be unsatisfied.  But, even they, if truly fair, should recognize that even if the sum of the parts aren't as good as individual scenes, the parts still are worthwhile viewing. 

I tried to read the book, but could not get into it. Just one of those times when it didn't "start" well enough for me to latch on. The Internet probably worsens the situation, since I read so much more on here now, but this seems to be happening more often these days. The book logically would provide more space to tell the stories here, though it wasn't that long, so might have limitations too. The film ends with Miral about to go to school in Italy and hope that a political settlement was reached. The early 1990s.

Series Tied

In basically the same spot, if an inning later, the same pinch hitter for the pitcher hits the go ahead run off the same Texas reliever. But, the Cards pen faltered in the ninth.  Key base-running moves, even a steal -- this time the inches went their way at the end.

Rules of Engagement

Decent episode with Wendi McLendon-Covey shining. 

Dorothy Toth Beasley

Beasley was 0-3 in her early 1970s Supreme Court orals, her first against another woman advocate with a softer voice.  She lost in Furman v. Georgia (death penalty) and Doe v. Bolton (abortion).  She later became a state judge and continued to be honored for decades.

Exotic Animal Tragedy and Accurate Reporting

 

Both the woman and the operator seemed surprisingly calm considering that it was not merely a bear and a lion but 56 exotic creatures — a fierce menagerie that included wolves, monkeys and 18 Bengal tigers, an endangered species whose numbers total less than 3,000 in the wild — that had fled their cages on a 73-acre private reserve. Friends described the couple who ran it as animal lovers, but they also had a history of run-ins with the authorities.

Rachel Maddow had a report on this tragic story with Jack Hanna -- the goofy sounding animal expert that is a repeat Letterman guest -- as a guest.  It was atypical to have someone preface their remarks, especially before (as she often does) she asks if the report was all correct, with various corrections.  There were a couple trivial detail matters, but he also disagreed with her suggestion that it was partially a matter of politics -- the previous governor's executive order allowed to lapse, the suggestion being (with another bit on some testimony to Congress) it was allegedly a matter of too much regulation and hurting business.

This might be a case where Maddow's standard approach was not quite appropriate.  It seems that the ongoing story had some unclear details and the segment was hurt with a bit too little due diligence.  For instance, mention was made of the main person involved who apparently committed suicide and for some reason let his animals out of their cages, but not to his wife, or who cared for the animals when he was in prison (it is not clear when he obtained the animals from the segment).  It is curious that Maddow didn't thank Hanna (who was firm but polite) for his clarifications, which I think should have been done.  An article reaffirms what Hanna said respecting the need to find a way to legally put in place the regulations, including having the personnel to do so:

Ohio Gov. John Kasich this year let expire an executive order passed by former Gov. Ted Strickland banning exotic animals in Ohio because the order was not enforceable under Ohio law, said Bill Damschroder, ODNR’s chief legal counsel. Ohio Revised Code gives ODNR the authority to regulate only species that are native to Ohio, he said.

The opening quote is from the NYT, which also includes a YouTube clip of a press conference, toward the end Hanna defending the actions of the local law enforcement.  On Maddow, a clip showed how upset Hanna was, him shaking his head while the sheriff spoke.  The coverage (see also) does underline the importance of the right amount of government regulation, which was part of Maddow's point.  Ohio, according to one of these stories, is one of less than ten states with such lax regulation of exotic animals.  But, it wasn't like anti-government Republicans only were involved here.  And, Kasich appears to have done the right thing in this case, though the specific details might raise questions. 

In effect, the matter fell through the cracks, federal law not involved because compensation (interstate commerce?) was not involved.  Animal management is largely up to the states and Ohio (per the the chief executive of Born Free USA) is thankfully atypical on this front regarding exotics.  The individual here was known to be trouble for some time according to the coverage, so the legislature had time to address the situation.  They did not and the result was "just terrible” and "senseless," it "was nonsense" and it "was crazy.” So, said the sheriff.  And, humans could very well have been harmed as well. 

Proper regulation of animals is essential not only to respect their well being, which as creatures with meaning and value is reason enough, but to protect the well being of us all.  When amateurs are allowed to have exotic animals for pets or other reasons, it is generally a bad idea, worse with such lax oversight. 

Cards Win

Cards starter goes six, key pinch hitter comes in and hits in the clutch again and the bullpen does the rest.  Game turned on inches. Oh, still looked like he hit the ball off his foot in the ninth. Did Texas get 26 outs? Texas better hit better against the other starters. 

More on Ninth Amendment

[I am told, per the morning comment, that Body of Proof episodes were run out of order, so the first two episodes of the second season are "after" the last one. That explains a bit about the dynamics between Megan and her boss and I hope the superior first two episodes will be the true augur of how the season will go.  More polished and everything.] 

The Ninth Amendment obviously does not create federally enforceable rights. It merely says, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." But a catalogue of these rights includes customary, traditional, and time-honored rights, amenities, privileges, and immunities that come within the sweep of "the Blessings of Liberty" mentioned in the preamble to the Constitution. Many of them, in my view, come within the meaning of the term "liberty" as used in the Fourteenth Amendment.

-- Doe v. Bolton (Justice Douglas)

This interesting concurrence to the companion case to Roe v. Wade, along with Justice Stewart's concurrence [Justice Stevens in his book finds it superior in expressing the core holding] to Roe, provides a bit more teeth to the "right to privacy" or "liberty" interest involved than Roe itself. Many are misled regarding what the main opinion said, which is better than many critics give it credit for, so it is not surprising less people are familiar with these concurrences. This is unfortunate.

I noted  my re-reading of a book on the Ninth Amendment; it led me to skim another (more academic) book, Silent Rights: The Ninth Amendment and the Constitution's Unenumerated Rights by Calvin Massey. A promising aspect of this book is that it provides some more history and some technical discussion on application. The latter is more controversial -- I'm not really supportive of its mechanism (the reader can decide) -- but it's worth thinking about. The book was written in the mid-1990s, so putting aside my summary here is quite brief, perhaps his views developed somewhat. To toss that out.

It is curious that early on we are told that we cannot "disparage" the rights involved by (see Justice Scalia or Judge Bork) assuming judges cannot enforce them, but can in effect treat them as second class citizens by making precedents involving them somewhat weaker and more open to review if the legislature suggests the courts were wrong. Is this something like how the liberals on the Supreme Court think gun rights are weaker? The argument is that the rights are either found in state constitutions or "moral rights" that are never set in stone. [The other book also cited international law and a broader sense of "international natural law" is discussed here.] But, the same can be said about various other rights (such as equality) for which our understanding develops over time.  Still, in practice, the Supreme Court has been somewhat wary about unenumerated rights, including attempts (see, e.g., Griswold) to connect some to enumerated ones. 

It also offers an interesting concept of "cy pres" where the amendment is respected even though the original understanding of its reach can arguably no longer realistically be applied. The original understanding focused on powers, it argues -- if the federal government did not have the power to do something, rights would be retained.  See, e.g., how the First Amendment focuses on the power of Congress.  This might help explain how the Tenth Amendment ("powers") continued to be cited while the Ninth Amendment seemed to be almost forgotten. We focus more on rights these days.  And, I think "right" adds something more, including some governmental obligation to protect  (something "right" or somehow a moral good)  that merely having the power to do something might not.  But, either way, we still can respect the core meaning of the Ninth Amendment, even in an age of expansive governmental powers. I think the "cy pres" concept can be applied overall, "original understanding" a matter of broad principles with varying specific application. As Justice Stewart cited:

Great concepts like . . . "liberty" . . . were purposely left to gather meaning from experience. For they relate to the whole domain of social and economic fact, and the statesmen who founded this Nation knew too well that only a stagnant society remains unchanged.

There is a fear that this results in "judicial activism." Or, per Justice Black, "merely using different words to claim for this Court and the federal judiciary power to invalidate any legislative act which the judges find irrational, unreasonable or offensive." But, open-ended provisions, including the Ninth Amendment, requires some sort of judgment that at some point boils down to such things. Take Massey. He would allow states some power to determine the reach of the "retained rights" (originally deemed protected by statutory and common law ... the former he argues largely translated to state constitutions), but not when certain fundamental rights and principles are violated.  If we have judicial review, which has been deemed important since the end of the 18th Century, judges will have a lot to do with this, sometimes (see the 4A) being required to give meaning to things like "unreasonable." 

As I said in the past, "fundamental" rights is a term expressed for quite some time in various legal rulings. Case by case, throughout "this Nation's history and tradition," helped by constitutional text (e.g., the Fourth Amendment references an aspect of privacy, the warrant requirement not the only way it is now protected) and structure (e.g., separation of powers or republican government assumes certain things), references like "intrinsic human rights" pop up. Hundreds of years of judging continues, even if some don't like the inexactitude.  Different ways, down to use of equal protection to protect certain "fundamental rights" (one contraceptive case was explicitly a matter of treating unmarried and married couples unequally)  are used. And, yes, judges will have discretion, who and when (1900 v. 2000) affecting the result. 

The books referenced and others who point to the Ninth Amendment or the Privileges or Immunities Clause etc. raise the concern at times too. They don't find "substantive due process" satisfying. As seen by a footnote in Douglas' opinion, the problem is partially its taint, the fear it will be "a vessel to be filled with one's personal choices of values" and the fact that some other "cleaner" way to protect substantive fundamental rights is present. People still think the former all the same when other techniques are used and even a causal study of the law suggests the latter is a misguided quest best left to Don Quixote. No one panacea is available, though each provision can help toward the ultimate end.

The opening quote is intriguing. Douglas doesn't press the point, but as with the also thin Griswold opinion, it has bite. Like the First Amendment, the Ninth does not "create" rights -- the idea is that the rights were there already. The connection to "blessings of liberty" provides a bridge, even if he matured in an age when the term was a dirty one since it was largely used to strike down (if not as much as assumed) economic regulations, to substantive due process. The "liberty" now deemed to be protected by that is given meaning in large part by tradition and custom, both which develop over time. As the article cited notes, "natural law" is akin to less controversial pure scientific laws such as quantum mechanics. Both are falsifiable, which means our understanding of them can change.

It would be interesting to know what part of the Ninth Amendment is not part of the "liberty" expressed in the Fourteenth Amendment. Does the "life" and "property" components or perhaps the "citizenship" provisions add other content? Anyway, the basic idea of the Ninth Amendment -- even if the specific way it is done changes and is open to debate -- remains the same. There are various rights that are not expressly found in the Constitution, rights that must be given protection to truly protect our freedom, even if passed by majority vote (which the book is correct to note can be misleading given the nature of the political process). These rights are expressed and protected in various ways, in no totally clean fashion. It is a fool's errand to think it is possible.

But, the bottom line is clear, and even the likes of Scalia and Black in practice show it via acceptance of precedent, broad understanding of text (cf. Justice Harlan's view on "one person, one vote," which Black thought crystal clear by text treated otherwise for quite some time) and so forth. A too limited view of this ethos will get you in trouble -- right Robert? -- even though an honest expression of the complexity and inexactitude involved will also often tend to do so.  Life is messy.* But, as Douglas noted in another separate opinion:

Rights, not explicitly mentioned in the Constitution, have at times been deemed so elementary to our way of life that they have been labeled as basic rights.

And, will continue to be.

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* Consider Lochner v. N.Y., used by both liberals and conservatives in various ways as a warning of the dangers of lack of proper judicial restraint and of substantive due process as a whole.

Justice Holmes' dissent is now deemed by many to be the correct path, but even he noted that when "a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law,"  the federal courts CAN "prevent the natural outcome of a dominant opinion" from being carried out pursuant to the "liberty" protected.

The test, shades of Coke, involves judges using "artificial reason" to determine what is against "common right and reason," even if a king or "the people" determines short term otherwise. Judicial review is a lot easier that way than the 1776 path. 

Body of Proof

I mentioned how I enjoyed this show but -- after a pretty good start -- it is slipping by having an uncomfortable overdose of personal stuff, usually of the "very special episode" variety, such as being adopted or a sibling killed. The actors don't even seem comfortable.

Hindoo Holiday

I wrote about J.R. Ackerley's other works, but this was not as enjoyable -- no Tulip and a bit too thick. This account of his trip to India in the 1920s as the personal secretary to the maharajah of a small Indian principality still has charm. But, not into it.

Miami Plays Like 0-4

Three red zone possessions result in six points, seven the other way via a 100 yard interception return. Jets made it 14-6 right before the Half, they finally having a good offensive drive and it's 24-6 early Fourth Quarter. How to beat a bad team. Next week, a real team.

Alito Balances

Justice Holmes gave a sharp retort: “That is not my job. My job is to play the game according to the rules.”

The Constitution is in place to "establish justice" (Preamble), so if Alito wants, "doing justice" works, whatever Holmes allegedly said.

Brewers Collapse

Phils' starters didn't do it (again), though the final game was 1-0. The Cards ace followed with a five inning effort, the only starter getting a win in six games. The Brewers were messy, starting and fielding. Bats couldn't handle the relief corps. Good season, sad end.

(Beating Head Against Wall)

After Volokh Conspiracy and Scotusblog (THIS is what you use for your new message board? how original), now Balkinization is overdoing it on the PPACA (one single part really) stuff. Including the missing the damn point part. Easier to talk past each other that way.

Eyes Like Stars Trilogy

As noted here, I enjoyed the first book about a teen mixed up with Shakespearean characters and such. But, the sequels weren't as good, plodding really. Disappointing after that start.

Sports Update

Detroit (particularly the Tigers) ended things badly, Giants had a pretty good game against real competition, the Jets weren't helped by Dallas blowing it late, but Philly helped even things out by beating the Redskins. Cards game is a mess. They should win. [Go Texas!]

Amanda Ralph's Child

The first sentence of the article: "Amanda Ralph is the kind of woman whose babies are prone to die."  When we hear about "value voters" and the need to do such and such to deal with something that led to three thousand deaths or whatever, things like this comes to mind:

The unusual attention Ms. Ralph is receiving is one of myriad efforts being made nationwide to reduce the tens of thousands of deaths each year of infants before age 1.

These days, I can relate when such things seem "frequently disheartening," but we trudge on, trying to keep our priorities in order. Merely cutting government and lowering our taxes, not mine. Caring for the health and well being of all, the "general welfare," not attacking "Obamacare" is.

RIP Paula Ettelbrick

And Also: A report that Obama is sending some forces to Africa brings to mind "one more place, huh?," but actually appears to be pursuant to a law passed a couple years ago. Don't know if the backers thought it through, but that's another thing.

Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of “liberty” protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons.

-- Lawrence v. Texas (quoting Justice Stevens)

Lawrence overruled Bowers v. Hardwick, which had a more limited view of intimate association. Griswold v. Connecticut started a line of cases that protected sexual intimacy and the rights of families (such as parental rights and a grandmother living with nephews). The right of unmarried people (even minors) to buy contraceptives was also recognized, but the Supreme Court was wary about taking cases that took the point that far. Various lower court opinions on such questions as cohabitation, fornication, female teachers breaking "morals" requirements and so forth underlined the issues raised by the sexual revolution. Lawrence in effect cemented the deal.

Society has built off more limited ideas that such choices should be tied to marriage. In the days of Jane Austin, see Emma, just writing to a member of the opposite sex before you were at least engaged could be a major social taboo. Now, unless you live in Saudi Arabia, such intersexual socializing is accepted. The importance of equality, including in respect to same sex marriage, should not lead people to have a "one size fits all" mentality as shown by another major gay/lesbian activist [Paula L. Ettelbrick] who recently died:

“When analyzed from the standpoint of civil rights, certainly lesbians and gay men should have the right to marry,” she wrote in the fall 1989 issue of Out/Look magazine as part of a debate with Thomas B. Stoddard, a colleague at Lambda who strongly favored same-sex marriage. “But obtaining a right does not always result in justice.”

I sometimes read during same sex marriage debates that the best path was simply (uh huh) to end state sponsored marriage overall, a type of major structural change that is more late night college debate topic than likely to happen any time soon.* But, it is not totally off the wall, since in various ways, marriage is not required for those in long term relationships, who raise families or join together for various purposes, such as two siblings who have a home and care for each other. And, the law in various ways -- including definitions of "household" for rental purposes -- recognizes the fact. There are various "beyond marriage" movements noting the fact, see also Beyond (Straight and Gay) Marriage: Valuing All Families under the Law. Amazon notes:

Topics such as inheritance, tax consequences, workers' compensation death benefits, social security, probate, adoption and health care, plus their impact the diversity of today's family units are simplified for the reader.

The movement for liberty and equality for all is not about any one issue, important as it might be, and those with a broad vision are to be respected. After all, even Rachel Maddow, who has had a long term same sex relationship with her partner, is not only a stronger supporter of same sex marriage rights, but doesn't think the choice is right for her at the moment. Maddow in a recent interview said she was wary of one size fits all sentiment on that front. Many long term unmarried different sex couples would fully agree. And, NPR recently had a nice segment about an unconventional (heterosexual) couple.

---

* If a candidate, such as Mitt Romney, opposes same sex "marriage," they need to be asked if they think civil unions are wrong as well, including when governmental benefits such as social security and bankrutpcy are involved. A recent answer that he is supportive of giving them hospital visitation rights doesn't quite do it.

"Class" Health Care Provision Roadblock

The program was intended for people with severe disabilities who wanted to live in the community, though benefits could also have been used to help pay for nursing home care or assisted living. It would have been financed with premiums paid by workers, through voluntary payroll deductions, with no federal subsidy. Premiums were supposed to have ensured the solvency of the program over 75 years.

The inability (at the moment) of the Administration to put in place the "CLASS" program is being used by Republicans to show the problems with the PPACA as a whole. The fact that they (the darn spend-thrift socialists) determined it could not fiscally be applied, however, underlines the overall fiscally conservative nature of the whole affair. Maybe, if Republicans weren't assholes and did more to work with the Democrats to pass such a moderate piece of legislation, it could have been better?

A voluntary program for clearly needy individuals with a fiscal check (put in by a Republican amendment (poison pill?) -- amendments one area where Republicans did take part) does not seem to me the best part of the law for them to target. In fact, the problems with the provision underline overall Democratic arguments. For one thing, it shows the importance of the individual responsibility provision (the "mandate"), a purely voluntary set-up not enough to cover the costs. As a Businessweek artice noted:

Because it is voluntary, Class faced a “problem of adverse selection,” in which only people who need the insurance, or think they will, would sign up, he said.

A major piece of health legislation, especially one passed in troubling conditions (Republican obstructionism resulted in bad policy decisions, or rather, not as good ones to enable passage), is going to go through some growing pains as it is put in place. But, it could also be that -- as with the underfunded stimulus package -- that there were too many restraints, resulting in not as good policy. Our system is set up to be conservative in various respects, but the current system (particularly with how the filibuster is applied) can be too conservative. As one expert noted:

“The aim here was a good one,” he said in an interview. “But the program as written in law was over-constrained.”

I will let the experts determine the logistics here, but it seems to me that the problem is that purely voluntary overconservative techniques to serve the needs of the public are problematic. Republicans should be a bit wary about being too glad about what happened here.

Tricky Strip Search Case

Albert W. Florence was held for eight days in two counties on a civil contempt charge, even though he had paid the relevant fine.

In the process, he was strip-searched twice.

“Turn around,” he remembered being told while he stood naked before several guards and prisoners. “Squat and cough. Spread your cheeks.”

As discussed here (with the link to the NYT article), this case goes beyond the broad policy at issue.  As the advocate for the policy noted, on some level it seems reasonable to have a blanket policy regarding searches for those you put in general population at a prison.  He admitted that the person shouldn't have been arrested, surely not held for eight days.  But, that isn't the specific matter at hand here, nor the fact that race and other illegitimate factors will um "color" who is arrested and detained. 

But, maybe you have to deal with that reality, particularly after the Supreme Court (5-4, Souter and O'Connor in effect switching roles)  rejected a line where a mild traffic offense would not be subject to imprisonment (seizure).   If you are going to detain trivial offenders, who you shouldn't anyways, before you require them to strip in front of you and bend over to expose their genitals, have some sort of reasonable suspicion.  After all, assuming that just because they are being detained was controversial in the 1970s, the Supreme Court splitting on the issue 5-4 (Powell joining the dissenters on the point)  even after contact visits. 

Sotomayor and Alito, who in one fashion or the other actually dealt with prisoners in the tri-state area, were somewhat concerned about a per se rule given the trivial nature of some of the offenders caught up in the mix here.  And, as a matter of policy, some degree of reasonable suspicion was in place by federal and various state practice.  The petitioners wanted to draw a line at minor offenses, other offenses basically assumed to have suspicion.  The dissents in the cited case, admittedly dissents, would have gone even further, requiring some sort of individualized suspicion across the board.  But, for a person like this, especially since the state is allowed to view them in the shower or have medical personnel check them, there is little real reason to suspect contraband. 

Would someone picked up for some simple possession charge have drugs in their anus or a razor blade there?  There is always a fear that someone might, particularly perhaps a homeless person or some other sort who is picked up for a trivial offense but has something hidden for some reason.  A few justices noted there actually was not much evidence of this though.  But, it's a hard call -- the real problem really is that he shouldn't have been arrested and surely not kept that long.  Attacking this policy is really a sort of indirect means of addressing the real issue.  After all, this is a violation of privacy, just as drug testing is in a different fashion, but the eight days in prison probably was worse in the long run.

The case of a teenage girl being told to strip to her bra and panties because of suspicion she had prescription-strength ibuprofen pills on her person was a pretty easy case and even there the Supreme Court did not set in place a totally clear-cut rule.  The chance that five justices would find the policy here illegitimate is questionable though the opinion might set some guidelines that put some limits in place.  For instance, the prison's lawyer drew the line at contact searches -- that is, snapping on some gloves etc. would be quite different.  Some chance of one or more concurrences or possibly a partial dissent of some type.  But, a win is something of a long shot.

This is probably the best case so far for the general public to listen to, the link above providing text/audio matching.  Supreme Court transcript here with multiple audio platforms and a chance to download for later. 

Baseball Update

The Brewers had a "Burnett" moment, their iffy starter having a good game to make it a series at 2 all. Verlander made it through 7.1, the .1 a bit ill advised, but Detroit survived. 3-2, Texas.

Health Care and Abortion

The desire to deprive women of health care involving abortion as an option is yet another bugaboo in this country.

-- Health Care and Abortion

Yes. Unlike some representative said during the floor debate earlier today, abortion IS health care, particularly when women (or girls) are "confronted with a choice between two serious harms: serious health damage to themselves on the one hand and abortion on the other." You might not LIKE the choice to undergo this medical procedure, done by doctors to protect the health and well being of the patient. But, if it isn't "health care," what is it?

It is duly noted that the government is now (wrongly) allowed to discriminate by religious and moral belief and deny funding even to those who require an abortion to prevent various significant health concerns. At least admit what you are doing as you try to deprive needy individuals of protections in extreme cases or deny individual choices respecting health insurance. The type of emergency care at issue here covers the extreme cases even many strong pro-life types would admit are tricky situations. Likewise, many against abortion would realize that health plans include coverage of things they personally oppose.

It is a tad annoying that we are supposed to find it perfectly acceptable to use government money to pay for religious education because the overall plan is "neutral" and individual choice is involved without it being an Establishment Clause issue, in fact to do otherwise would violate the Free Exercise Clause, but individuals can't make their own health care choices in disfavored areas. Then, it is a problem because the government is paying for abortions. Not the individual by means of her own health care choices, such as those who decide to have a child in other cases. They are okay, Their moral and religious choices are acceptable. Thanks, Father GOP.

Abortion is a deeply personal choice that some people find immoral in various cases. But, it is a personal choice, just like most health choices are inherently personal on some level. The Hyde Amendment is bad policy, if not probably unconstitutional (just like a few states have found it to be pursuant to their own constitutions when the states deny funding selectively that way), but we are stuck with it for the moment. The Republicans will continue to try to make things worse.

The fact Obama has promised to veto this latest version even if it somehow managed to get through the Senate (it is not likely to) underlines (yet again) why it pays to have him as President.

RIP Frank Kameny

The federal government began to target homosexuals as "enemies of democracy" by labeling them a threat to national security. One of the many men and women who suffered from employment discrimination was Dr. Frank Kameny, a Harvard-educated astronomer and professor. In 1956, Kameny was terminated by the Army and barred from federal employment for several years following his alleged solicitation of sex from an undercover police officer. When Kameny unsuccessfully sued the federal government, the Supreme Court denied certiorari. The Court's failure to hear Kameny's case points to society's general fear at the time to hear, let alone debate about, potential civil or legal rights for gays.

-- "The Progress and Pitfalls of Lawrence v. Texas"

Frank Kameny, a great in the gay liberation movement, has just died. His motto was that if he and society clashed, he would examine the matter once, but if they still were in trouble, society is the one with a duty to change. Worked fairly well, up to a point. The case cited is somewhat interesting -- a look at the appellate ruling rests on neutral grounds. No reference to homosexuality per se. There is danger there, societal prejudices can be given a pass that way. But, such neutrality could eventually pay dividends, when truly honored.

Lawrence v. Texas rested on substantive due process with an equal protection gloss. I am re-reading a book on the Ninth Amendment, another way to look at the question. To quote a rare case of a Supreme Court opinion (not just a concurrence or a passing mention)* that honored it: "The concerns expressed by Madison and others have thus been resolved; fundamental rights, even though not expressly guaranteed, have been recognized by the Court as indispensable to the enjoyment of rights explicitly defined." The principle has been repeatedly upheld in various ways from time to time. For instance, 1870s:

There are limitations on such power which grow out of the essential nature of all free governments. Implied reservations of individual rights, without which the social compact could not exist and which are respected by all governments entitled to the name. No court, for instance, would hesitate to declare void a statute which enacted that A. and B. who were husband and wife to each other should be so no longer, but that A. should thereafter be the husband of C., and B. the wife of D. Or which should enact that the homestead now owned by A. should no longer be his, but should henceforth be the property of B.

The book [Retained by the People: The 'Silent' Ninth Amendment and the Constitutional Rights Americans Don't Know They Have] argues that we should use Supreme Court precedent establishing rights or analogous rights, connections to specific constitutional guarantees, longstanding traditions, contemporary societal consensus, decisions by American lawmakers and judges, general American traditions and international norms to give meaning to them. As with the Second Amendment, there has been various scholarly discussion, this volume more geared to general audiences. Recommended.

---

* The reference is actually found in a plurality though Justice Brennan joined the famous Griswold concurrence (worked on by law clerk Stephen Breyer) and Marshall surely agreed with the sentiment too. The Casey (abortion) plurality also referenced the Ninth Amendment. Basically, the references give further backing to the use of substantive due process.

To remind:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.