The Caning

I deleted a Howie Rose is leaving post -- misunderstood -- just leaving WFAN. I thought The Caning (of Charles Sumner) interesting, but think the idea it was as important ("drove America to Civil War") to events a bit dubious. Also, like the Holmes book, could have been edited a tad. It also does not cite Sumner's work in Roberts v. Boston, a glaring oversight.

Blaming the Victim

h/t RH Reality Check. Too true.

Sports Sunday

An ump mistake helped lead to two Brewers runs, their own led to the Mets win (74th again), last year's closer doing the honors today. The Yanks took forever, but finally gave the Astros their 15th straight lost. Took a WP in the bottom of the 9th, but Marlins ended with a no-hitter. TB/Texas have another game. NY football was ... not good.

Rev. Joe: ULC Marriages Again

Have discussed the "everyone can be a minister" ULC Church (contra The Fosters, you can become a minister online for free), including the hazy nature of NY law regarding their ministers marrying. As in the past, saw multiple references to ULC officiants in today's NYT wedding announcements. If NYC registers them, NY as a whole should clarify its okay!

Now and then, a reminder ...

(ORDER LIST: 570 U.S.)

THURSDAY, SEPTEMBER 26, 2013 [:] CERTIORARI DENIED

13-6541 (13A307) DIAZ, ARTURO V. STEPHENS, DIR., TX DCJ

The application for stay of execution of sentence of death presented to Justice Scalia and by him referred to the Court is denied. The petition for a writ of certiorari is denied.

A Wild Justice

Revenge is a kind of wild justice; which the more man's nature runs to, the more ought law to weed it out.

-- Francis Bacon

I talked about Susan Jacoby's discussion of revenge here and providing that title to a book on the death penalty is less debatable when it is particularly sympathetic to the abolitionist side. But, the story of the road from Justice Goldberg suggesting that the death penalty itself might be unconstitutional to Furman et. al. (opaque striking down of particular laws that many thought would be a permanent ban) to Gregg et. al. (death penalty per se constitutional, but "death is different" and it cannot be mandatory) is well-rounded, the other side provided as well.

As noted earlier, the book is well written and a brisk read (one chapter on the social science of deterrence/rationality is a bit dry at times) even though the main text is about four hundred and fifty pages.  A few times, certain things said were off (e.g., Powell opposing Roe v. Wade as strongly as he did Furman -- one of the sources, The Brethren, noted that he was fine with the result of Roe; if he means some of the reasoning, that should have been clarified). But, that happens, and underlines that things shouldn't be taken as gospel. Bart Ehrman would say the gospels shouldn't be taken as gospel, so to speak.  But, this only happens rarily.

You can listen to various oral arguments and even opinion announcements, including Justice Marshall's dissent from the bench in Gregg. One concern there was that retribution (which the first link suggests is not necessarily "revenge") justifies the death penalty.  Marshall doesn't deny some form of moral "retribution" is an illegitimate aspect of punishment. He just thinks that execution is an inappropriate form of it, either as excessive or for other reasons.

Justice Stewart in his separate Furman opinion (he later was a member of the "troika" who handled the Gregg opinions) noted:

I cannot agree that retribution is a constitutionally impermissible ingredient in the imposition of punishment. The instinct for retribution is part of the nature of man, and channeling that instinct in the administration of criminal justice serves an important purpose in promoting the stability of a society governed by law. When people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishment they "deserve," then there are sown the seeds of anarchy -- of self-help, vigilante justice, and lynch law.

I too am not ready to say that retribution cannot be an aspect of punishment to meet constitutional requirements. I can understand that some might not want to grant this even for the sake of argument. But, Marshall is right -- is not even life imprisonment not enough to meet such demands?  For some prisoners, it is harder to handle, as we saw with a recent suicide.  Focus on what people "deserve" can at times deny the humanity of the prisoner, but there should be some middle ground.  Woodson v. NC,* a companion case, set it:

A process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind. It treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death.

Justice Stevens noted at the time that he thought the "evolving standards of decency" did not yet require the abolition of the death penalty. Stevens, Blackmun and Powell eventually deemed that to be the case one way or the other (though they might have rested on due process grounds).  And, the justices (on both sides) judged things wrongly there in Furman -- society was not ready to do away with the death penalty and instead passed new laws to try to meet the procedural concerns of the deciding votes.  This is how constitutional law develops, properly so, and I think the rulings were good in a limited sense for setting some guidelines.  The machinery of death is not worse with them, is it?

This is not to say that some aspects might be worse. The point here is that requiring some safeguards and limits helped in various cases. It is of only limited value, yes, and I think the death penalty as applied and in general is unconstitutional. Still, note that even in Baze v. Rees, where Stevens announced this sentiment, he concurred.  At some point, you have to deal with the limits of the possible, which led many justices in the past to go along even if they rather not. The Brennan/Marshall stock dissent approach is defensible given what was at stake, but of questionable value.  Brennan knew the value of compromise.

The abolitionists as well as other parties in the book also had imperfect options and choices. The book covers this ground well.

---

* The opinion also accepts, now as a clear statement of the law, that "death is different," and warrants some degree of more special care.  This was a litigation strategy with some pushback -- wasn't the concern for arbitrary results etc. likely to call into question the whole justice system?

Now, the law clerk that helped Blackmun write his dissent stating he no longer would tinker with the machinery of death wrote a book saying "yes, it does," but this does not mean deprivation of life, liberty and property should be treated the same. It is not. It should not. There are levels of wrong, even as applied to specific cases. Realistically, there is only so much imperfect groups will do, the job of some to push them.

Supreme Court Book Shelf

A Wild Justice (death penalty) per one review "contains few surprises," to those in the know, but the well written and "add depth" part makes for a rewarding read overall. I found The Great Dissent: How Oliver Wendell Holmes Changed His Mind [etc.] on the Abrams case overall less rewarding. Somewhat repetitive personal look though some aspects (like the background violence of the times discussed in one chapter) were well written.

Quickies

Sen. Cruz referenced Dr. Seuss during his publicity stunt (he's a politician; why not?) Here's a serious analysis by someone local. The continuing problems of lethal injection.

Where "dignity" is a bad thing ...

Interesting article discussing Scandinavian prisons. Meanwhile, over at VC, the resident fan of Sen. Cruz (still normally a decent sort) finds a confused analysis of Windsor somehow "very interesting." No surprising really, since the guy was confused about the Prop 8 case too. Finally, little nits are driving me crazy here. I feel like Joba in Cleveland a few years back.

Yanks Eliminated

A mixture of great managing, grit and middling competition made it last much longer than it really should have, but it happened tonight. Rays/Indians streaking to the finish line, Texas a bit behind. Royals (best improvement, not playoff edition) technically alive as are the Pirates for NL Central, but the Cards will win ... of course. It's really just positioning now.

Legislative Prayer Case

I'm wary of the Town of Greece case -- my feeling is the best result is likely a narrow bad ruling. Think that might be why the SG provided a questionable brief though the Administration is also religious friendly anyhow. The discussion here is nice, except it would seem to warrant the overturning of Marsh v. Chambers. Not going to happen.

To Kill A Mockingbird Names

The use of names (including Tom as a "mockingbird" defended by a "finch") is interesting.

Mets Season Winding Down ...

I think they are going in the right direction though this off-season with money coming off etc. will be a key moment. Collins kept the team together though made some stupid in game decisions. If Wally B. isn't going to be hired, re-signing him seems logical. Don't think a draft pick warrants all this "just lose!" talk. Always want them to win. So do they.

Quickies

Powerful video at NYT on a major health scare from the early 1960s. Conservative Republicans think many of their group are trolls too. Celebrate "banned book week" with a book on penguins! Problems with even "easy" death penalty cases.

Sports Sunday

UGLY day for the NY Giants; the baseball Giants might have put a nail in the Yanks postseason hopes as home fans said goodbye to two greats. The Rangers are falling apart late again too, might not even have WC game this time. Jets survived a very sloppy game. Packers didn't quite come back. Dolphins 3-0. Bears won.

Human Rights, Constitutional Rights

I re-read Charles Black's A New Birth of Freedom: Human Rights, Named and Unnamed, which rests human rights on the Declaration of Independence (life, liberty and the pursuit of happiness), the Ninth Amendment and the Privileges or Immunities Clause of the 14th Amendment. He provides some good stuff -- a defense of judicial review including given we don't really have majority rule, ways to reason out unenumerated rights in a common law way, how positive benefits are necessary for happiness (if mostly the responsibility of legislative action) and a realization that this is all imperfect, but human rights are worth it.

Black provides the usual shots at substantive due process, but again, I think it's logical -- due process involves the government not denying LLP without proper authority and limited government puts a certain floor on what authority it has.  It is an illegitimate "procedure" to substantively deny certain things.  But, it is good to have firm grounding on where these rights arise from, and the sources (including if one deems "God" of the DOI as metaphorical) provided are good ones.

Black is correct that the at times hesitant application of SDP is problematic. Still, judges are likely to be wary at times if told to overrule legislatures on "pursuit of happiness" grounds too.  The book also at times could have used an proofreader -- for instance, the Supreme Court did strike down on First Amendment grounds a law before 1937.  It also is not an in depth look at how the Supreme Court actually applied the provisions -- there are numerous citations to the DOI, a few to the 9A and some to the P/I (including concurring opinions) that could have been usefully cited.  Still, the book's message as a whole shines through.

The book cites Palko v. Connecticut as a misguided defense of substantive due process. It is ironic that the opinion speaks of "privileges and immunities" but given precedent relies on due process, including for freedom of speech.  One thing that caught my notice though given a recent post here on conscience is this:

If the Fourteenth Amendment has absorbed them, the process of absorption has had its source in the belief that neither liberty nor Justice would exist if they were sacrificed. This is true, for illustration, of freedom of thought, and speech.  Of that freedom one may say that it is the matrix, the indispensable condition, of nearly every other form of freedom. With rare aberrations, a pervasive recognition of that truth can be traced in our history, political and legal. So it has come about that the domain of liberty, withdrawn by the Fourteenth Amendment from encroachment by the states, has been enlarged by latter-day judgments to include liberty of the mind as well as liberty of action. ^[n5] The extension became, indeed, a logical imperative when once it was recognized, as long ago it was, that liberty is something more than exemption from physical restraint, and that, even in the field of substantive rights and duties, the legislative judgment, if oppressive and arbitrary, may be overridden by the courts.

An extended excerpt is given to give a flavor of the defense of substantive due process. Note though the "freedom of thought" and "liberty of the mind." Is not a liberty of conscience clearly a component of this general principle?  The rule here would guard against thought control by use of sci fi means, but it also respects the ability to have the freedom to determine right and wrong based on personal conscience. This is a major reason abortion rights (among other things) are so compelling to me -- it is a "sacred choice" that should be largely a matter of personal conscience, often clearly based on religious faith. 

Human rights, including positive rights (such as to health care), are fundamental and broadly of constitutional dimension. Black's little book is a good read there, even if a few things should be taken with a bit of salt.

Windsor Is A Pretty Good Opinion

Have seen some references to the case (e.g., Volokh Conspiracy has an ongoing series about various moves by the feds to set policy*), and as is the case for Roe et. al., there are the usual potshots at how flimsy it is. I retain, yes seriously, my belief that it was a pretty good ruling.  As usual, this is partially a matter of the likelihood of imperfection when dealing with group efforts and justices who are not [fill-in blank] level wordsmiths or have the legal chops of [fill-in blank] and realistic compromises. Still.

The opinion begins with the facts and a reasonable discussion on why it is appropriate for the Court to rule on the case, even though the President supported Windsor on the law. For instance, they still were not paying the money, while she wanted it. The opinion also explains past practice where amici were accepted to argue one side, as one case cited noted largely "[b]ecause of the importance of the questions raised by the Court of Appeals’ decision." The Chadha ruling also is a good case here, in fact, Judge Kennedy wrote on the use of legislative amici there below. So, it is also sound not to decide if BLAG standing was necessary -- there was adversity between Windsor and the U.S. and BLAG provided amici value to forcibly make the opposite argument, providing adversity there.

Six judges in fact accepted the Court was right to take the case, with Alito joining that, though going further, and firmly giving BLAG (one House of Congress, mind you) the right to defend a law that isn't being defended (it was after all being enforced). Alito argued that the U.S. was not the right party, since they in effect wanted Windsor to win. But, be that as it may, they were still enforcing the law. He makes a decent argument, which only goes so far. OTOH, we have the idea of one branch of Congress stepping in to protect Congress' handiwork.  That seems off to me.

The majority then talks about the general practice of the states having power over domestic relations, including marriage, though noting the feds still have power over such things in various ways. The opinion notes:

In order to assess the validity of that intervention it is necessary to discuss the extent of the state power and authority over marriage as a matter of history and tradition.

The opinion suggests there is a federalism angle here, but does not decide the case on that ground. It explicitly says this. It isn't hard. The case rests on the equal protection component of the Due Process Clause of the Fifth Amendment.  Since classification is made here, it is appropriate to look at the nature of the use of federal power here, particularly its novelty:

The Federal Government uses this state-defined class for the opposite purpose—to impose restrictions and dis- abilities. That result requires this Court now to address whether the resulting injury and indignity is a deprivation of an essential part of the liberty protected by the Fifth Amendment. What the State of New York treats as alike the federal law deems unlike by a law designed to injure the same class the State seeks to protect.

The opinion then discusses why this is a violation of equal protection, leading with the red flag that the "unusual deviation from the usual tradition of recognizing and accepting state definitions" is "strong evidence of a law having the purpose and effect of disapproval of that class." This, to be blunt, is f-ing obvious. It is tiresome really to have people deny it.  Section 2 of DOMA, redundant it might be, deals with state recognition. Section 3 singles out one type of marriage from which to deprive both benefits and obligations, among all other new developments (the opinion does a good job here of noting how marriage develops via the people of each state's changing recognition of its nature**).  As the opinion notes, the text and history of the law makes this even more clear.  As does the House Report.

The result, again as the opinion notes, harms the couples in question. Justice Alito faces the merits and notes the feds can decide to favor one type of marriage over another.  Why?  As to same-sex marriage not being "deeply rooted," nor are other types of marriages. I have seen this selective vision, including from law professors, but then illicit discrimination often is a matter of "habit rather than analysis" of wrongful practice. This is a major route to "stereotyped reaction." It is not "deeply rooted" to have each different sex partner to be an equal partner.  This is "beyond dispute," to quote Alito, given coverture rules, etc. The selective application of DOMA on same-sex couples shows an animus.  The reference got some complaints, especially if it is taken out of context without looking at the opinion as a whole, but this is right:

The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group. Department of Agriculture v. Moreno, 413 U. S. 528–535 (1973).

The idea for some here is that the Court is saying that the Congress and the President who signed DOMA were just a bunch of bigots. Not really. The case cited involved a law targeting hippies. It was deemed unconstitutional, an illicit targeting of the group in question. They were not supposed to just be a bunch of bigots.  A "bigot" is a particularly offensive animal. An illicit law can be a product of various things, harm at times justified by the parties on various grounds.  It is simplistic to not understand the full context of the reference, though yeah, DOMA was pretty bigoted. Sorry.  As the opinion notes in its conclusion, DOMA:

is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.

The reference to "dignity" and other such empathic sounding language annoys some too. But, it is appropriate to talk about how laws that harm should be found illegitimate.  "Dignity" is a common term used by various justices in various ways. It is not novel to this case and I have my doubts that some totally bland opinion would satisfy the critics. Yes, Kennedy has a certain style, like each justice does, but it is evenhanded; the same sort of thing might pop up when he writes about an affirmative action law being illegitimate or why ACA is unconstitutional, to the degree he had some part in the writing of the joint dissent.

I have no desire to claim the opinion was perfect, but as a whole, it is a pretty good opinion. One final complaint is that the opinion did not do enough to answer the supporters of DOMA, particularly the reasoning put out there in its defense. Section Three of DOMA was clearly put in place because same-sex couples in particular were deemed unworthy of federal marriage benefits.

An argument is put out that it deals with the novel issues of a new type of marriage, including the questions now being dealt with by the Obama Administration. But, why is this particular form of marriage supposedly in need of such a fix?  Why is this particular form of "new marriage" warranting special treatment?  It's true the majority could have addressed this issue (Kennedy has a bad habit of not addressing dissent arguments directly), if only because the answer is so clear.

The final concern I'll address is the question of scrutiny. The 2CA and the Obama Administration supported heightened scrutiny here, at least intermediate review, which is the standard for gender. The Court did not decide that sexual orientation warranted a special level of scrutiny, following the more opaque approach of Lawrence (and in a different respect, Heller, which also didn't decide the question, though it made clear rational basis wasn't enough).  I respect the lower level of activism here as well. The opinion did not require a firm answer to the question, since the specific law was blatantly unconstitutional. 

The Court did have something to say and it somewhat favored the 1CA opinion (which also covered federalism) on the question. The opinion speaks of "careful consideration" when discrimination of an "unusual character" was involved.  It quotes Romer here, and at least when a "politically unpopular group" is involved, such policies would warrant what some call rational basis plus (however it is phrased, this was also suggested by more than one justice during orals). In effect, Justice O'Connor's Lawrence concurrence (based on equal protection and cited by the Court in CLS v. Martinez)  is starting to become clear law.

The Solicitor General was on C-SPAN yesterday as part of a panel talking about last term and the upcoming USSC term and noted how the Administration pushed for a level of scrutiny stronger than applied to types of eyeglass distributors, focusing classifications by personal characteristics (a step beyond immutable characteristics), lack of political power and so on.  He didn't get all that he wanted on that front but didn't do all that bad. The test seems to me to put state DOMAs at risk, they too novel latter day blunderbusses against unpopular groups.

Traditional bans on same-sex marriage are not as unusual and that is one reason why Windsor all by its lonesome doesn't get you there quite yet.  It helps, surely, including concern for "purpose and effect," which is one more nice thing -- sometimes a high level of intent has to be shown, even when a policy deprives someone of liberty or equal protection.  The intent very well might even be there, such as driving while black, but phony "innocent" grounds can be found to paper over the effects.

All in all, I liked the ruling, its flaws on balance are quite forgivable. 

---

* The choices seem reasonable, but it really seems -- not that the split Congress is likely to handle it soon -- like something that warrants a legislative clarification. The issue is complicated, some matters are based on domicile, and some on places of celebration.

With the two so significant as compared to most marriages, this is likely to advance full equality, including by litigation.  The decision for the feds rests on current law and practice, but there surely is wiggle room.  I do wish more discussions remind people that back in the day interracial marriages raised similar difficulties.

** Letting this development continue without having the feds single out one type of marriage is a reason why the opinion is different from setting in stone SSM for each state. Such development is how our common law Constitution works, particularly when deciding larger questions is not necessary to settle specific "cases" and "controversies," which are for a reason taken one by one.  Judicial restraint here is not worthy of scorn.

Also, once the states in question recognize the marriages, federal non-recognition is particularly dubious. For instance, as cited, federal ethics rules don't apply even to state-married couples.  The underlines the Romer-like overbreadth, even if we pretend that neutral reasons justify the statute. Note the rational basis with teeth scrutiny provides less looking the other way, so "pretending" is less appropriate here.

Supreme Court Watch

The Obama Administration is asking the USSC to settle a dispute over the contraceptive mandate, focusing on RFRA claims of for profit corporations. Which is weak on several levels. Pope Francis is trying to change the focus of things, without simply not being Catholic. It is silly to use this issue to draw a line in the sand even in Catholic institutions. When applied to for profit corporations, it is inane. Still worry what the USSC will do.

Going Where Kory Stamper Fears to Tread?

Miley Cyrus was in a decent Disney show, but now she wants to continue her career by being all well slutty might be a word for it.  Played out for me. "Twerking" sounds like shaking your butt or something. Don't know it? It's her latest thing, apparently.

Girl in Progress

This is a relatively rare serious female coming of age story (with a parallel story involving her single mom) co-starring "Maria" from The Fosters.  The mom's bf also will be familiar to some. Her friend also is a familiar teen show face. The film itself was pretty good.

Miss New York Wins

See my original Colbert Report video was blocked, see here.

Sexy Wordsmith Has New Video

Constitution Day

A day to remember; this thread provides some fodder (Madison, he gets no respect!).

PS

I was reading the tV tropes in the middle of watching the last episode of S3 and ... damn, Matthew? Sybil already died. It seems too soon on simply a dramatic level. Sybil was a drawn out scene. This one had signs of gratutious too -- him speeding along happy while mom and grandparents are so pleased too? This how they ended the third series!

Sports Sunday

Not really over baseball season yet, even though I'm told that Mets games don't matter, so why do I like them winning? Don't I know that their top 10 draft pick is at risk? Rays and Rangers playing to keep the Yanks et. al. in the race. Some good football games. The NFC East did not do well (including baby Manning); the AFC did, except for the Jets.

Downton Abbey

Sybil dying was a powerful few minutes - almost the whole family (and two physicians) were around her and each had a top acting moment. Afterwards, the same with the servants, with Thomas having a touching moment. In fact, a rather good few episodes.  Not supportive of every subplot, but turning out to be a very good season as a whole. Two left.

Rev. Joe -- "Disentangling Conscience and Religion"

I saw but only skimmed a bit an article on a subject of interest to me -- "Disentangling Conscience and Religion." So, the remarks below should not be seen as that responsive to the article overall though checking it out is recommended.  Meanwhile, I am reading Bart Ehrman's Forged: Writing in the Name of God — Why the Bible's Authors Are Not Who We Think They Are, which basically extends old themes. Good light reading. Ha.

The second flag salute case that is a seminal one in our jurisprudence spoke of "the conscience of the objector." The opinion focused on what might be called "freedom of the mind." This principle reaffirmed in Stanley v. Georgia: "Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds."  That is pretty general, but conscience is often tied to religion. Justice Murphy's concurrence (combining religion and speech) in Barnette noted:

But there is before us the right of freedom to believe, freedom to worship one's Maker according to the dictates of one's conscience, a right which the Constitution specifically shelters. Reflection has convinced me that as a judge I have no loftier duty or responsibility than to uphold that spiritual freedom to its farthest reaches.

The article explains that traditionally there was seen as a special connection between conscience and religious belief -- conscience is that human ability to judge right and wrong, but is it necessarily tied to religious belief (or God)?  The Supreme Court has from time to time spoke of a "right to conscience" (e.g., "the individual's freedom to believe, to worship, and to express himself in accordance with the dictates of his own conscience") that leaves things somewhat open. Abortion, for example, is something individuals are to choose as a matter of conscience, based on their own moral code.  See, e.g., Planned Parenthood v. Casey. Overall, Justice Douglas had it right:

It is true that the First Amendment speaks of the free exercise of religion, not of the free exercise of conscience or belief. Yet conscience and belief are the main ingredients of First Amendment rights. They are the bedrock of free speech, as well as religion.

The flag salute case underlines how freedom of conscience involves various First Amendment liberties, the right to freely choose one's moral path a matter of expression, association and religious belief.  This subject might have a familiar cast to it because past entries spoke about my broad understanding of the term "religion," so the difference between "conscience" and "religion" is somewhat unimportant. Conscience is an important aspect to religious freedom, necessary for its full enjoyment,* including as part of a person's freedom to choose (if one wants to define it more narrowly) not to have a religion.

"Religion" does have some limited meaning, broad as it might be, both as a matter of belief and action. Religion often is about action -- in ancient times, religion was often largely about ritual. This might also include certain people in control of rituals, perhaps a community who themselves providing a restraining hand. The ultimate restraint might be supernatural, but some might argue that it is this community of believers that are. Questions of conscience might be separate. Still, as religion grew more monotheistic, the understanding that one God guided us all would join the two together. Conscience being an ability to know what is right, who else but God would in some fashion be the source of it all? And, if there was some perversion of things, there are evil forces in the world.  A sort of gnostic view of things in fact has more of a logic to it, in a fashion.

But, if religion is a matter of ritual, perhaps beliefs in the afterlife when good and evil are judged (seen as an important check on society as might the institutions of the church themselves -- the freestanding believer deciding things would be less useful there, the dissenter traditionally seen as somewhat of a threat to societal well being) and how best to serve your God, conscience can be separate for those without all of that. I do think "your God" can have a broad meaning, broader than the usual view of some supernatural being. I think "God" can be a sort of symbolic thing, a means to make certain hazy thing like an ideal view of good to be more concrete, which many of us find more manageable. It is like use of idols as symbols (like some use religious items today) in the past or even stories of gods and goddesses that many did not take literally, but as a sort of poetic license of our reality. 

Anyway, I understand that "conscience" and "religion" should be given some meaning, that everything cannot be defined by such terms. There are complexities and the article covers some of them. All the same, I'm not sure how much it matters at the end of the day in our every day life, even as a matter of legal questions. We still should have freedom of conscience, which is related to, if not completely enmeshed with, religious liberty.  We have a broader view of both these days and better for it.

---

* For those who find the "penumbra" language of Griswold silly, perhaps Brennan's language is more to your liking -- the "Bill of Rights goes beyond the specific guarantees to protect from congressional abridgment those equally fundamental personal rights necessary to make the express guarantees fully meaningful."  The theme works in general.

MHP Letter of the Day

,

Downton Abbey

I watched the second and third episodes, which complete a bit of a story arc, and thought both were stronger than the first (extended) episode. Some good plot material. And, poor Edith -- left at the altar! Watching the first special feature -- an extended documentary on the show. We get to see the servants look more fancy, many actresses favoring eye makeup. Thomas' homosexuality isn't address yet though his old ally is no longer. A bit sudden.

What's Next in the Drug War?

This cites an interesting article on the topic for those who won't pay $90 for the whole book. One interesting bit is the need to treat marijuana separately, along with how many people are arrested for simple possession, even if not incarcerated. Stop and frisk, e.g., underlines "mere" arrests can matter a lot, including as a sort of "foot in the door."

Week 2: Jets lose 13-10

Sigh. Well, the NYJ gave up a quick score and then turnover, but then their defense held -- after being down 10-0 in a flash, the Pats only scored three more points. Pretty Boy Floyd was upset all night with his young receivers and then the rain came, but a messy 2-0 is still 2-0. Still, the NYJ might have a permanent new QB, and some wins.

Sue Grafton

Her new letter mystery is out. She started with crisp under 300 page efforts, now we have an over 450 page tome. Too long, especially with her penchant for filler exposition. She doesn't do much of a gimmick here (has short interludes involving another detective) like a few recent efforts, but it's just too long for me. Three letters left.

Downton Abbey

I'm starting to watch S3. I noted S2 didn't have many gotchas though there was at least one horrible one late. The show as a whole is "comfortable," I think, with enough edge to keep it interesting. Comfort food. The first episode of S3 had that flavor to it.

New Campaign Star?

De Blasio has a fraction of a percent wiggle room for now to avoid a run-off, helped by his interracial family and two primary opponents seen as too conservative, including the play it safe black candidate, including on stop and frisk. Really has the Afro going there.

Colorado Recalls

I'm not really a fan of recall elections (even of Walker), since terms are already short enough given extended electoral cycles and off cycle elections etc. are already subject to very small electorates. This worsens the situation, often for reasons of short term excitements that worsens the moderating benefits of republican government. More on subject here.

NYC Primary Results

Spitzer lost the comptroller race by a few percentage points (yay), the public advocate race goes to runoff, De Blasio might have (barely) avoided run-off for mayor [saw an actual sound truck for the second place winner -- like some 1950s film], long time Brooklyn prosecutor was defeated and the reporting (of course) generally doesn't mention the (joke) judicial race.

Quote

Every truth has two sides; it is as well to look at both, before we commit ourselves to either.

-- Aesop

When God Talks Back

I could not get into the book itself, but the idea is very interesting -- "How does God become and remain real for modern evangelicals?" She argues it is a learned, not easy, but rewarding for many, mental outlook. Others would get to the same place without "God," who they will define as "insight" or something. The links provide some good discussion and an interview.

Primary Day

A possible run-off with a quick turnaround led to the return lever machines. After being reminded to set it, I voted. Unlike some places, never had long lines etc. Actually a choice for mayor (and public advocate), voted against Spitzer trying for his comeback tour for comptroller and for the judge getting the endorsements. The voter guide did not mention the judicial candidates. It's a joke, since no one knows about them.

Dem Congresswoman, Iraq War Veteran, Opposes Military Intervention In Syria

I think peace overall is the best option generally speaking. This is why even if there were WMDs, I didn't think without more war with Iraq was smart in '03. Kristof, sounding like a stereotypical concern liberal, opponents don't want to "do nothing" about the deaths. They think the likely military attacks, net, won't help. Reasonable minds can disagree.

Jesus, Interrupted

One charm of this book is that it is basically a summary of various things found in Bart D. Ehrman's books, including a historical-critical analysis of the New Testament, the conflicts between various books, inaccuracies, but how one still (not that he did because of the problem of evil) retain one's Christian faith. I did read somewhere else that the Suffering Messiah was not totally new c. 50 C.E., but BE does say others dispute some details.

Sports Sunday

I saw parts of the Jets and Packers' games, only seeing the very end of the Giants game. The latter was another too big hole to fill, not this time (driving/interception late) game that is getting to be too routine. Jets got a gift after it looked lost with about 1/2 minute left. Stupid penalty, long field goal. Meanwhile, Dice-K actually had a good game.

Smile or you are a bitch?

Sounds like something translated from Korean, apropos to this wider discussion. Meanwhile, a patronizing response to a criticism of the NFL concussion settlement. As noted in my comment, I'm wary of gag order settlement terms.

Syria AUMF: Chemical Weapons and Other Issues

Former Senator Richard G. Lugar said the difference lay in the danger of proliferation. “We are talking about weapons of mass destruction, we are talking about chemical weapons in particular, which may be the greatest threat to our country of any security risk that we have, much more than another government, for example, or another nation because they can be used by terrorists, by very small groups,” he told the BBC. “The use of these weapons of mass destruction has got to concern us, and concern us to the point that we take action whenever any country crosses that line and uses these weapons as have the Syrians.”

The NYT does something that Obama and other members of Congress better  take care to do -- provide some explanation why chemical weapons particularly are considered a threat to international safety. Why a chemical weapons treaty being enforced is credibly applied even to a domestic dispute involving a misuse of chemicals as revenge for an affair. It is a product of history and its use (and the danger) against civilians:

While militaries find chemical weapons hard to control, given the vagaries of wind and weather, they can be effective against the unprepared, and especially deadly to unsuspecting civilians. “You just have to watch the videos from Syria from Aug. 21,” Mr. Heisbourg said. “This is killing people like cockroaches and using the same chemicals to do it.” 

Thousands of people were killed by machetes in Rwanda, he noted. “That’s gruesome,” Mr. Heisbourg said, “but the production and sale of machetes is not considered a threat to international security.”

The article notes our use of Agent Orange being deemed legally an defoliant, but even if it can be deemed criminal (though clear international law -- so clear that even if Syria is one of a handful that did not sign on, it should still be considered "customary" and binding -- might have came later*), there really isn't some "two wrongs make a right rule." See also the link fest supplied by a comment here (I once looked into the "white phosphorus" issue and recall it being hazy. War overall, including the unhealthy aspects of it, is hell -- duly noted too. Again, chemical weapons specifically have been deemed historically a problem.  Helping Saddam is old news as well. Two wrongs don't make a right, including in promotion of devil's bargains to balance Iran. Net, where does this get you? We aren't pure?  Great! Thanks for telling me everyone knows.)

The concern here is that the U.S. specifically has no clear authority (as compared by some things I read, genocide) to independent of U.N. action to enforce this sort of thing by military action.  I have noted this very problematic issue though also that some have suggested a realistic ability to act and if the act is accepted, in effect, change international law norms in the process. Also, the matter addresses the the national (and international security -- see NATO's comment here) implications.

There is a reason this in particular -- not each and every violation of international law or harm to civilians -- is being addressed in this way.  Also, if you read the Senate AUMF against Syria, there are various "whereas" clauses to explain why it is particularly in our interest to use force here. Personally, I still am not a supporter, finding use of military force something that we should use only as a last result, especially when it might be counterproductive or of limited value. In the long run, for instance, use of military force without getting U.N. authorization (realizing that Russia's veto makes it rather difficult here) is problematic in itself, if promotes other nations to violate international law.

Nonetheless, it is helpful to understand the logic of the intervention, avoiding (I have seen it) simplistic tropes. For instance, someone quoted Obama opposing regime change and "war"** against Iraq in 2002, but (he's getting ridiculed for it) Obama opposes a broad action here to do that sort of thing. It wouldn't be the first time that Obama got it from both ends though.  One thing cited is that there just is not enough evidence. The AUMF, however, cites the Arab League (Syria is a member) holding Syria responsible for usage of chemical weapons. It cites various provisions, even if Syria is not a signatory of the more recent treaty against chemical weapons, of it being in violation of international law. The overall threat of the regime and how this adds to the overall danger of the situation.

The authorization of force is targeted as a response to the usage of chemical weapons and protecting further misuse or leakage to rebel forces. But, realistically, the whole context matters here. The usage of chemical weapons in some other situation might not warrant military force given the balance of prudence. I doubt it is warranted here. Still, we should look at the logic of this specific situation. The use of force very well might have after-effects, including further destabilization of Syria, including its relations with Russia (one blogger noted  this as a sign Syria's government no longer will feel Russia is protecting them as much). This again makes it unwise. Others, however, are willing to take the risk since things are so bad already. Such a government, such unrest makes usage of chemical weapons that much more dangerous.

Obama's response has been criticized as half-cocked, but there are a mixture of interests here -- domestic (the use of force here is tangential enough to self-defense and so forth that congressional authorization is sound), international security/human rights tied to specific dangerous weapons (something Obama has been for overall, including working toward nuclear weapon security -- something, Valerie Plame, e.g., has worked on as well) and the regional security issue of Syria. This involves a mixture of legal and realpolitik.  Such things are messy and even if we oppose the specific choice here, we should be grow-up enough to realize it and not get all shocked that some of the lines here are hazy.

Whatever happens, "For Syria there is no safe, morally pure solution."

---

* All types of chemical "weapons" might be seen as illegitimate, including the gas chamber. 

** I realize that the Orwellian possibilities of avoiding the word "war" can get pretty bad, but this doesn't mean all uses of military force are legally or should be considered "war." The term has broad legal implications, which is one reason it is so often avoided, especially after WWII.  On a colloquial basis, I don't think the general public disagrees.

This doesn't mean a wrongful attack stops being an illicit "act of war" -- cf. a legitimate and illegitimate reprisal (authorized by Art. I separately from "war"). This provides a separate reason to obtain authorization of usage of force in let's say Libya.  Treaty obligations, e.g., very well might as a legal matter be open to change -- a treaty is equal to a duly passed domestic law for constitutional purposes.  But, Congress, not merely the executive, should do something like that generally speaking.

9 to 5

The film came up on Labor Day and saw it again on DVD, which has the trio providing commentary twenty-five years later and some other stuff. Commentary track fairly interesting. The film has something important to say but plot gets silly half-way thru.

"Effective review of history and modern realities of felon disenfranchisement"

This has been one matter that I have been concerned with over the years, particularly because it has a specific racial (and class) impact. I still agree with the dissent in Richardson v. Ramirez that the brief exception to a penalty provision in 14A, sec. 2 is not enough to authorize it. Happily, some improvements have occurred in the last decade.

Breaking the Law to Change It?

"Yet that doesn’t mean international law would view a U.S. intervention as illegal in the long run." This seems to be the strongest case on international law grounds, but given the questionable value of military action, I question it being used in this context. This debate also has led to those "what is so special about torture" sort of things. If a law professor, per a reply to me, is so clueless, maybe the general public needs a thumbnail reminder?

34 Pieces of You

This is a YA book about bounces around before and after the overdose of a teenage girl, providing things from the perspective of her brother (the guys come off the weakest here) and two sisters with different relationships with her with thirty four slips of her own thoughts. Covers a lot of ground (I see teen series!) pretty well. Recommended.

"Progress! NY Times Wedding Announcement Openly Discusses Abortion"

This discussion leads me to think about the book I just read -- a 25 year-old prostitute gets pregnant by her pimp and decides to keep the baby. In effect, it motivates her to escape his control, though not ultimately the life itself. But, abortion is not even suggested -- yet again, it is like a non-issue in fiction. Well, maybe non-fiction is starting to learn.

"President Obama and Compliance with Domestic Versus International Law"

The two blog posts alluded to in the title blog post cites Prof. Michael Dorf and he has two good good admonitory posts on violating international law in regard to the Syrian bombing plans.

Marty Lederman in the first two posts discusses the possible logic to President Obama's approach to international affairs, a sort of middle position that all the same has liberal interventionist leanings. This does not surprise me, including from someone who appointed Samantha Powers to the U.N. The stereotypical idea of Obama might be that he would oppose this sort of thing, but opposing intervention in Iraq doesn't mean that. Then, there is the usual citation to a 2007 comment:

“The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.” 

This was in the context of bombing Iran. I think too much is made of this, especially when it might be pursuant to some sort of treaty obligation. This is not necessarily a "unilateral" authorization -- it is based on something already authorized by the President with approval by the Senate. Also, "actual or imminent threat" is somewhat open-ended (Obama likes his wiggle room -- he is a pragmatist).  But, talk of "important U.S. interests in preventing instability in the Middle East and preserving the credibility and effectiveness of the United Nations Security Council" (Libya authorization) is pretty weak.  Don't think answers to a test in 2007 is the final answer here, but do wonder if some reporter directly cited the quote to the press secretary.

Back to the title blog post.  Domestic affairs would be important for the U.S., especially since it has such power to effect other nations -- the very idea of bombing Syria suggests this and it's part of our mentality as some sort of world leader. Presidents have for a long time had large discretion in international affairs, even if the Congress has various powers too. It is not surprising to be less concerned about others.

This doesn't mean international law shouldn't matter -- both pragmatically and on matter of principle. The Declaration of Independence speaks of what we "might of right do," and drawing the line in the sand on chemical weapons in part is argued to be as a matter of international norms. But, a sort of international due process is part of that too and it too is of basic importance. There are procedures to go through here, including the United Nations. The U.S. was key in establishing it for just that reason. Upholding proper procedures also pragmatically encourages others to do so. The world is not supposed to be a lawless place where nations have some "right" to do anything they can. It is not a violation of Godwin's Law to note the U.N. was a product of an alternative viewpoint.

Authorization by Congress is a limited improvement to unilateral executive action here as is having some nations (but let's be honest -- an ad hoc rump w/o UN approval only goes so far) supporting the U.S. And, nations do have the power to opt out of treaties, if not the international right to do so without good cause. This only underlines use of force here should be put to the highest test. I have doubts such tests are met.

Meanwhile, Senate Democrats have been considering new language to the authorization, fearing the one offered are too open-ended. Either way, I think there is a constitutional duty here for congressional authorization, particularly given there is no apparent international law duty to use force. This -- as has been noted -- is problematic on its own, but at the very least, domestically, it underlines the importance of bilateral authorization.

Don't Take My Man (or my Job)

She’s like an ambassador from a world where hard times make you stronger, but they’re still to be avoided; where you escape your past not by running away but by planting a ladder where you stand and climbing up.

Dolly Parton/9-5 is the Labor Day topic today here. Like those sad on Christmas, these days also make Labor Day a tragic day for many.

and when she was good

I happened upon this non-mystery series Laura Lippman novel about a lobbyist who is really a madam and it started well (it went back and forth from her past and the current day). But, by the 2/3 mark, it became a sludge. I have thirty pages left. Whatever happens, it is getting BORING, even as the protagonist should be in danger. But, nothing much happens there. It just drags on. Also, she is starting to act pretty stupid. Bad sign.

Rev. Joe -- "The Friendly Atheist"

The title refers to a blog, not my own title. I do think you can be both, and though I can be snarky, do try to be friendly overall to others. Some "new" atheist types symbolized by St. Hitchens favor the "religion is for rubes" approach. Not really a fan though being mean to assholes is understandable. Thing is, many believers in God etc. aren't, so don't do that.

Breadth of Syria AUMF

Per Justice Jackson's dictum, if Congress authorizes the President here, his executive powers will be at their highest point, though international law still remains a major concern. Thus, the focus should be on its breadth though shall we say "non-war" AUMFs have generally been limited. Well, everyone seems to be on board with going to Congress being a good idea.

Upcoming Primary

The upcoming NYC primary is big given Mayor Bloomberg is leaving, Spitzer is trying for a return (comptroller) and concern for a quick turnaround/run-off even led to them bringing back the lever voting machines. Looking at the voter guide -- some of the minor candidates had a problem with spell check when providing a personal statement. One did so in caps.

Meet Madison Kimrey, 12-year-old voting rights activist

,

More here. Remember, Scout stopped a lynch mob. Seriously, you go girl!

Obama Finds It Useful To Ask Congress To Approve Use of Force Against Syria

I was thus surprised, but very happily surprised, when the President announced this afternoon that he would seek congressional authorization for the strike.

Lawfare and Volokh Conspiracy among others discuss the news, including the Bush41/Kuwait kicker that "but I don't really need it." As a matter of basic constitutional policy, this (reporter Richard Engel: don't call it "war"!) is a good move. Let's see what comes of it.