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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Thursday, June 30, 2016

Carol (The Price of Salt)

Enjoyed the movie more including because it focuses on both women, but the source book (from the early 1950s; its positive ending especially was appreciated by lesbians at the time) was overall enjoyable. It was in the voice of the younger woman and was a bit too talky about her feelings and such but well written. Short 1980s afterword by author.

Tuesday, June 28, 2016

Justice Beyond Criminal Justice

The failure so far to prosecute regarding the death of Freddie Gray does not mean "no justice" is possible. Justice does involve prosecutions (and how we do them), but in a big picture way, that might be the lesser approach. Prosecution is a last resort with a high bar while there are various other things to do, including civil remedies, political responsibility (see, e.g., 2006 and 2008) and changing policies. See., e.g, racial equality after Brown.

And Also: The contraceptive rule is a compromise.

Order Day

There will be scheduled summer order days but one more scheduled one before then. Big news today, finally, the union fees case (without comment) will not be re-heard. Thomas/Alito would examine a broad (over $100) disclosure law. I'm open to concerns if the bar is that low. Roberts joined a strong dissent to not taking a case requiring access to IUDs etc. at pharmacies without a religious exception. Somewhat open to concerns if nearby access is available but we are talking time sensitive/constitutional rights (Griswold).

Monday, June 27, 2016

The Burger Court and the Rise of the Judicial Right

I gave a brief partially negative review of this book and hold to it. But, it covered a lot of ground in a easy to read fashion, plus there were some interesting internal bits too. The story also shows how the courts are not complete independent from both the public and the political branches, the latter by whom is in control when appointments/confirmations occur. Kennedy as a fifth vote today shows just that as does his living constitutional approach.


First, the new Burger Court book co-written by Linda Greenhouse is too heavy-handed on the conservative shift, not enough inside details and found a few mistakes. Somewhat disappointed. Second, the statutory gun case came as expected except Sotomayor joined Thomas' dissent (minus 2A part). Gov. McDonnell won (even Rick Hasen thought he should) unanimously. Breyer wrote the abortion opinion (5-3), RBG concurred to briefly say it was really bad and dissents thought majority were the unreasonable ones. Orders boring.

Saturday, June 25, 2016

José Reyes Back

The Rockies disposed of their expensive star SS to the Blue Jays and in part received Reyes (who had a short-lived stint with the Marlins at the end of the day), but had prospects around ready to play. So, after a recent domestic violence incident led to a suspension, Rockies let him go, eating a chunk of money since no team wanted him. So, Mets got him for chump change, but wary myself, the d.v. not helping. But, guess wait and see.

ETA: Wary about Conforto last summer but thrived. After a good beginning, he's back to struggling rookie. So, to add to the spare parts, another rookie will replace him for awhile.

Friday, June 24, 2016

The Right to Abortion: A Psychiatric View

Found this book on one of the $1 shelves outside of Argosy. Nice find -- it is a booklet from 1970 that supports a woman having the same right to choose an abortion as they do to choose who to marry. It covers all the bases (privacy, religion, vagueness of mental health exceptions etc.) and holds up very well (even debates on how IUDs work). Exception is a suggestion that maybe husbands should be given right to take part in the decision but even that was hedged.

Thursday, June 23, 2016


Started with a statutory criminal ruling not too exciting but with a range of opinions including a tour de force by Alito. Then, warrants required for blood but not breath tests (Sotomayor/RBG disagree on latter). Kennedy (4-3) finally finds an affirmative action program he deems constitutional. And, 4-4 non-decisions for the long pending Dollar General case (net result: pro-tribe) and (surprise/horrible) immigration case. Abortion on Monday.

Wednesday, June 22, 2016

"Any honest historian of the early Republic will tell you that lax gun laws are not in fact pro-Second Amendment; they are anti-Second Amendment."

Saul Cornell wrote A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America.  

Interesting book.  He basically supports a pro-gun regulation approach to the 2A though his historical studies concludes the individual (common law) right to self-defense is separate from the purposes of the amendment itself (at least the original understanding). That's fine really though basically (McDonald v. Chicago in effect sort of says this) over time the people had a different view that matches the conclusion of D.C. v. Heller

He wrote a guest op-ed in today's NY Daily News (some good stuff today but again what's with doing away with daily movie and t.v. coverage; even the t.v. listings were cut in half).  Let's break things down. The most basic argument is okay enough:
Any honest historian of the early Republic will tell you that lax gun laws are not in fact pro-Second Amendment; they are anti-Second Amendment.
He in part appeals to the "security of the free state" (which I take to be an appeal to republican principles) language as giving the state some power to regulate to guard against domestic violence.  This is an interesting approach; most in support of regulation are more inclined to focus on the "well-regulated" part in particular. Cornell next notes Heller, in his words, supports "reasonable regulations," which is a bit misleading since that in legal jargon would suggest a lower level of scrutiny.  Scalia in fact specifically rejected "reasonableness" review here though did not clarify if strict scrutiny was required.  It is fairer as a colloquial summary.

Cornell notes Scalia appealed to original understanding and then cites some examples of Founding Era regulations.  Cornell does note that we have a stronger sense of due process today, e.g., so need not follow them exactly.  Which is good since things like loyalty oaths are not a good idea.  We should not deem practices against loyalists while a war was ongoing on American soil with British troops breathing down our necks as quite the best approach. There were people at the time wary about emulating some of the things we did there. It does suggest the limits of original understanding.  He notes:
Under common law, any person in the community could approach a justice of the peace and demand that an individual be preemptively disarmed if they posed a danger to public safety. Such persons would be required to post a peace bond, much like a modern bail bond.
I'd like to know a bit more about this, but it doesn't quite sound like the terror watch list idea. The judiciary (to the degree "a justice of the peach" was that) seems to be involved.  How did one show "they posed a danger to public safety" and what does "preemptively disarmed" means exactly?  Was it a one-sided affair?  Was notice required? Were they able to offer proof then and there before being disarmed that the peace bond was illegitimate? The concern with the proposals is the after the fact, basically backward approach where the executive gets to block purchase and only then you can challenge it.  
It is not the real Second Amendment written by the Founders that poses a barrier to taking decisive and reasonable steps to lower the carnage in our streets; it is the mythical Second Amendment imagined by the gun lobby.
True but that's rather vague.  What exactly is "reasonable" here?  Bottom line, the article basically refutes an extreme argument and defends the broadest strokes of the pro-regulatory side.  This helps a bit, but doesn't quite tell us what specifically is okay.*  It's only an op-ed, so realize its limitations in form. Still, would help to learn a bit more how the terror watch list idea fits in here.  For instance, if the individual wrongly claimed a peace bond was warranted, was s/he open to civil damages?  Little things like that alone might make make the proposals different.

But, sometimes the very basics do help reach agreements regarding basic givens especially for hot button topics.

ETA: I emailed the author and he provided me a link to this article and referenced the book. My reading of the article is that it concerns carrying guns in public places and that colonial practice put strong licensing restraints on that.  Interesting perhaps for that issue which isn't settled yet.

Did find this article (see particularly around 717) that does appear to cover the bond issue.  "One means of conserving the peace, apart from prosecuting those who breached it, was to order persons who posed particular risks to provide sureties of the peace." This is separate from regular prosecutions, has a "probable ground" standard and involves what sounds like a form of bond and judicial oversight (“to bind the party to appear at the next sessions of the peace").  

Not sure how that applies here though sounds like judicial involvement on the front end would be required.  


* For instance, Sen. Collins has put forth a compromise version of the terror watch list proposal which has enough Republican support that there appears to be a fighting chance for it to reach cloture.  So it can die on the House floor (after the sit-in folks leave).  Sorry.  A tad cynical.

Seriously, the ACLU opposes it. A NRA/ACLU opposition here just might be too much, especially since again quite seriously, it's probably a lost cause in the House anyways.  Re-funding research (maybe all those John Oliver encouraged calls will bear fruit)  seems a lot more safe in this respect.  The whole thing seems gratuitous.  A general background bill also would be more copacetic though due process needs to be safeguarded there too.  But, not holding my breath there. 

The Summer of Sangaile

Found this at the 53rd Street Library. It's a Lithuanian film about young love, finding one's confidence (cutting involved) and the country's apparent fascination with planes. Actually watched the whole thing straight and in one sitting, so has to be decent. Seriously, had a good feel, interesting look (a bit much with the heights/planes at times) and lead very good.

Tuesday, June 21, 2016

Day Out Mid-Town

Used to regularly go to the Donnell Library in mid-town but then it shut down. A while ago. Yesterday, it re-opened in a fashion as the 53rd Street Library, a sort of 21st Century affair with even a place (stands type area) you can sit down and eat. Nice. Also went across the street and took advantage of my idNYC card to get a free year membership at MOMA. A lot to see (and hear). Round things off, bought a $1 book at Argosy Books. Charged me tax!

Monday, June 20, 2016

Supreme Court Watch

After another chance for Alito/Thomas to dissent from orders (Jesus Emmanuel Jehovah's request was rejected without comment), three boxes suggested multiple opinions. Thing is no one really cares about most of them. The notable thing was Sotomayor's personal (one section was her alone) and passionate dissent in a 4A case (Kagan also dissented strongly). Meanwhile, a challenge to NY and Connecticut gun regulations was denied w/o comment.

Update: Odds and ends on actions today.


The overall penultimate episode of S5 was very good, framed as Catherine's documentary and having plenty of chances for each character (again Sue is nearly absent) to shine. The constitutional dynamics is a tad confused but surprisingly not on the "maybe 12 years" point.

Sunday, June 19, 2016

Who Cooked Adam Smith's Dinner

Interesting and often sardonic book on how "economic man" is a misleading understanding of how the world actually works, especially how it skips over 1/2 of the population (and gives a fictional view of the rest). Gets repetitive at some point but good for average reader. This is good for me, who was never that good at money matters. Happy Father's Day.

Saturday, June 18, 2016

The Leech Woman

Pretty fun Svengoolie entry with a lot of stock jungle footage. The lead actress makes the movie including her femme fatale (in more than one way) turn. Trivia: the young version of the tribal woman married IRL "Colonel Klink" after a long time dating him.

Friday, June 17, 2016

RIP Jo Cox and Let Us Be Sane

I linked a thread that had some of my thoughts on the terror list gun ban proposal (not sure if it should be DOA and maybe it will help temper the whole watch list since guns will cause people to be concerned), one which some progressives along with others consistently find problematic. Republicans less so -- are they worried about the no fly list generally?  Not to my knowledge. 

But, the recent filibuster wasn't only about one proposal. A background check bill might also be voted on, limits on "weapons of war" (the AR-15 was invented for that purpose) generally and so on was also discussed.  Serious conversation here will require compromise, some proposals (especially at first) not likely (at times rightly) obtaining majority support.  So, the whole thing/thread is interesting, don't worry, even opposition to one proposal doesn't make the filibuster not worth it. 
Christiane Amanpour (Facebook/Twitter): "In deep shock still at British MP Jo Cox's assassination. A woman who showed the best most courageous face of politics, the righteous anger at the Syria war, the kind compassion for refugees, and the refusal to demonize the other. She leaves an important legacy for her daughters and for all of us."
The opening video regards a British politician who was recently killed though even there we can compare this to the mass shooting that injured Rep. Giffords and killed others, including a young child. The politician was shot and stabbed but in the U.S. we have much more firepower.  With the amount of guns, hate, screwed up people and so forth in this country, we are not going to totally deny the chance of the forces of chaos to win battles. What we might be able to do is reduce the effects, something akin to how modern warfare is less lethal because of medical advancements and current rules of warfare.  Sadly apt metaphor.
Gabrielle Giffords ‏@GabbyGiffords (Twitter): "The assassination of MP Jo Cox at the hands of a man driven by hatred is a manifestation of a coarseness in our politics that must stop."
It is totally fair to bring up Trump here because he is a product of various things wrong with our system and political parties.  Trump is seen as a bit too rude for many Republicans but the people who form his base is nto "beyond the pale" and neither really is Trump.  And, the things he incites, even if Trump himself doesn't support it (though he does support various nasty things) is his responsibility too.  We have a simple responsibility to be sane here, support rationality and some basic minimum of shame.  This election even more than 2000 and 2004, which was pretty emotional for me, is really a line in the sand.

See here too. The discussion references the few cases where protests of Trump became violent. This from what I can tell was some shoving, throwing eggs and damaging a car or something.  A handful of places. But, it's a horrible thing to do, even though it's sadly predictable* that bullying and forth will result in desperation moves (see the 1960s). It is tragic that violence is used so much in the Palestinian conflict.  And, some low volume version happening here is bad too.  Nor, is irrational visceral replies useful in my view online generally.  Sanity for all!


* One comment said it well:
Violence at Trump rallies, particularly committed by frustrated and scared young people terrified of what Trump’s movement means for them, can simultaneously be: 1. An entirely understandable and predictable response, sociologically and psychologically, 2. Emotionally satisfying in the short term, 3. Counterproductive in the medium to long term, and 4. Morally wrong.
Trump and his enablers had some blame here too, particularly those with more power than some twenty-something protester. Plus, the small numbers and the fact they aren't supported by the candidate counts. But, partially since I'm for a higher standard (unfair as this might be on some level), sanity standard, we still need to oppose it strongly.

Thursday, June 16, 2016

SCOTUS Watch: Yawn

Three technical opinions (Kagan/two by Thomas, who thrives on this sort of thing when writing for the Court) unanimous and with no separate opinions. Basically left to a colloquial footnote (2) in Kagan's opinion to stay awake. Not much of a "two box" day.

Wednesday, June 15, 2016

Eve Arnold

The author of the book on the war in Syria referenced a few days ago wrote this one (with lots of photographs) regarding an eclectic (from celebrities to poor farmers) photographer. It is sort of a coffee table book that provides bio with all those great photographs.

Terrorist Watch List Gun Proposal

As a placeholder, a dissenting opinion joined by two justices on guns. Anyway, one thing tossed out there is blocking those on the terrorist watch list from buying a gun (and perhaps something more), which I discuss in comments here. The proposal might be okay and criticism tends to be exaggerated (right to buy a gun different from various things) but wary about it especially without limits such as judicial process, limiting it to non-citizens etc.

Tuesday, June 14, 2016

Clinton Wins DC

And it's done.

Supreme Court Declines Review on Question on the Application of the Citizenship Clause to American Samoa

Discussion here (with reference to NYT op-ed). Tricky thing here is the local government, which apparently has support of the people, didn't want citizenship. Fear (which might be somewhat misplaced but maybe some laws are problematic) some local laws would be challenged especially those favoring locals. Can there be a way specific policies (favoring citizens) be challenged here? Or, allow people, by right, to choose to be American citizens?

Monday, June 13, 2016

Griswold Again: Property Rights

It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children "come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements."
-- Stanley v. Illinois [1972]
During around a half-century after the ratification of the 14A, "shifting economic arrangements" was often more respected as a matter of constitutional law.  The "right to contract" in particular was the basis of many state and federal cases, including what for many later was an anathema, Lochner v. NY  (maximum hour law for bakers struck down).  The Contract Clause, including public contracts, was also of great importance in the early years of the Supreme Court.  [One book, e.g., noted how early attempts to regulate lotteries were complicated since property rights and contracts were involved while by the end of the 19th Century, it was much easier to do so.]  Property rights were of great importance to the Founding Fathers as well including in the constitutional barrier to states using paper money.

In time, however, it was deemed more and more appropriate to let economic affairs to generally be left to public policy.  Basic aspects of one's personality such as sex, race, religion and so forth remain things carefully handled; fine lines between professions, much less so.  Note that Lochner v. NY itself was 5-4. The dissent accepted a legitimate public health purpose for the law.  And, in time,  maximum hours and minimum wages were also seen as necessary for true equal protection.  In Poe v. Ullman, Justice Douglas voiced the sentiment of many, if rather simplistically:
For years, the Court struck down social legislation when a particular law did not fit the notions of a majority of Justices as to legislation appropriate for a free enterprise system.
Douglas continued:
Social legislation dealing with business and economic matters touches no particularized prohibition of the Constitution, unless it be the provision of the Fifth Amendment that private property should not be taken for public use without just compensation. If it is free of the latter guarantee, it has a wide scope for application. 
There are provisions in the Constitution which touch upon these issues such as the bankruptcy and currency provisions,  the Commerce Clause, the Contract Clause, the Due Process Clause ("property") and any provision that might arise.  For instance, equal protection issues can arise if certain businesses are treated differently without reasonable grounds.  What if the business was a newspaper or movie theater with zoning issues?  Finally, privacy can be involved too, including the Fourth Amendment.   There is not a 4A free zone here.  Justice Stevens in a case involving a grandparent choosing to live with her grandchildren separately relied on property rights.

There was a judgment here that business and economic arrangements was more "public" and open to regulation. This developed over time and even long before the 20th Century various types of regulations were allowed. But, property rights was quite important to the Founding Fathers, especially in a society greatly agriculturally and land based.  Personal predilections alone was not behind the resulting case law. Slavery also was deemed a special type of property, while one core concern of the anti-slavery movement was free labor.  The basic right to freely contract was and continues to be a basic right of freedom.  The legitimacy of regulation, including to deal with inequalities should not lead us to forget this.  But, neither the public nature of things either.

Property rights are important and "private" property is specifically protected by the Takings Clause.  The 4A specifically protects "homes" and "effects," which are forms of property.  Cars are repeat players in search and seizure cases.  But, property still on some level is not as personal as "life" and "liberty," resting not merely on state property law but "intrinsic human rights." Justice Douglas between Poe and Griswold spoke separately to differentiate the home from businesses with "service which has become of public interest."  The principle continues today with religious owners having some obligations to employees and customers. They are not merely private individuals any more.

Thus, property rights do have some constitutional importance, and this can blend into social and business affairs.  Some exaggerated approach here, after all, leads to Justice Black (and temporarily Stewart)  deciding contraceptives are among the "social" policies the state has broad control over.  Once upon a time, even equal protection gave limited control to "social" affairs, the general idea being that civil rights here did not touch interracial marriage.  Or, overall, it was good public policy unless it was done just plain irrationally.  OTOH, there was a changing understanding on correct policy here including what is best to protect equality itself.

But, there remains a belief that certain "personal rights" are particularly private such as family life, the general idea always there.  There is no absolute rule here -- families are regulated too -- but family life and one's own body was never on equal footing with business regulations.  The particulars change but even in the "Lochner Era" the libertarian approach only went so far.  And, as public matters were more regulated, the private was (and is) if anything more important.  Tricky as usual.

SCOTUS Watch: America Samoa, Puerto Rico and Indian Territory

Orders today rejected cert. involving American citizenship in American Samoa and a public unions related case written by Justice Souter that might be a signal about the rehearing of the Friedrichs. As some suspected, Thomas wrote the Puerto Rico bankruptcy opinion (Sotomayor/RGB dissent; Alito didn't take part). Unanimous patent case (three justices concurred). And, RBG (with Thomas concurred, doubtful of Indian law precedents) wrote the opinion allowing a minor crime convicted in a tribal court to count as an aggravating factor even though the person had no counsel. The domestic violence angle is covered.

Sunday, June 12, 2016

Griswold Turns 51

Since high school -- mind you I went to a Catholic one -- had a interest in Roe v. Wade. The Webster case was decided around that time and wrote in my illegible scrawl about the case. The diverse issues (privacy, gender, religion, medicine, history, constitutional law, etc.) involved was apparent to me even then. A few years later, it was again of central importance, there a belief that there was five justices present to overrule.

But, in 1991, the Casey ruling did not do that. Instead, it firmly held that there are broad "liberty" rights, included unenumerated ones.  Clinton (here we go again?) was elected and a sixth vote was available though among the Roe dissenters, White joined to some degree the idea of a general liberty interest as seen by his concurrence in the 1965 Griswold decision handed down in around this time of the year. I have talked about this case a lot here and elsewhere for quite some time as this 2006 blog post shows. As noted there, the idea of "private rights" that people retained is not something that merely was found to exist sometime during the Johnson Administration. The Federalist Papers made a couple references. Such things were directly the concern of multiple amendments of the Bill of Rights. Slavery was wrong in part because one's private life was in control of others.

The term "private rights" underline the breadth of the term "privacy," which is not merely a matter of secrecy.  Your family life was "private" but others might know about it. Whalen v. Roe, e.g., discusses the various aspects of privacy. Professor Anita Allen once spoke of four, later expanding it to at least six.  Various people favor other terms but repeatedly things like "intimate" or "personal" arise that return us to the word "privacy." And, to the degree it matters,"privacy" has a long history. No word is absolute any more than any right tends to be. This one seems suitable in my personal opinion but the right not label is most important.

A seminal moment in the history of the right of privacy in this country, if perhaps only in hindsight, is the 1890 law review co-written by Brandeis. The fact the two authors weren't writing in a vacuum is seen by the Boyd v. U.S. case of that time that also argued that the Fourth Amendment protected a broad right of privacy. The Supreme Court protected this with an exclusionary rule as applied to the federal government, again that rule is over a hundred years old (see the Weeks case). Justice Douglas in his concurrence in Doe v. Bolton (along with Poe v.Ullman, his separate opinions in some ways better than his opinion for the Court in Griswold) also references from that era of the concern for privacy being invaded by legislative investigations.  One opinion connected this to Boyd showing the general right to privacy involved:
We do not overlook those constitutional limitations which, for the protection of personal rights, must necessarily attend all investigations conducted under the authority of congress. Neither branch of the legislative department, still less any merely administrative body, established by congress, possesses, or can be invested with, a general power of making inquiry into the private affairs of the citizen. Kilbourn v. Thompson, 103 U. S. 168, 190. We said in Boyd v. U. S., 116 U. S. 616, 630, 6 Sup. Ct. 524,—and it cannot be too often repeated,—that the principles that embody the essence of constitutional liberty and security forbid all invasions on the part of the government and its employees of the sanctity of a man's home and the privacies of his life. As said by Mr. Justice Field in Re Pacific Ry. Commission, 32 Fed. 241, 250, 'of all the rights of the citizen, few are of greater importance or more essential to his peace and happiness than the right of personal security, and that involves, not merely protection of his person from assault, but exemption of his private affairs, books, and papers from the inspection and scrutiny of others. Without the enjoyment of this right, all others would lose half their value.'
The era was also when "substantive due process" came into its own though research has determined that the general idea that there are general limits to legislative action were in some form understood from our beginnings. Even someone who thought the idea absurd like John Hart Ely Jr. made some reference (as I recall reading his famous work) to "legislative due process," some concept that the legislative process can be arbitrary and illegitimate. He also accepted some idea of unenumerated rights, which is basically in practice just getting to the same place by different means.

[Note: To toss it in, one such means -- used by Justice Thomas to cover some of this ground -- is to determine these things are privileges and/or (still don't know why the different clauses use a different conjunction) immunities of citizenship. Non-citizens would still be protected by equal protection and other means.]

Justice Douglas in Griswold spoke of "penumbras" and "emanations" of enumerated rights, but elsewhere also spoke of rights generally necessary for freedom. Coming from a tradition that rejected "substantive due process" as basically a matter of conservative economic rights, he was wary of the term. In Doe, he spoke of it as a "vessel to be filled with one's personal choices of values, whether drawn from the laissez faire school, from the socialistic school, or from the technocrats." Or, to quote Justice Black, "unreasonable, that is, unwise or incompatible with some particular economic or social philosophy."

But, liberals -- influenced by personal choices of values -- overall continued (use the term advisedly) to accept there were certain personal rights essential to liberty, even if they had to be protected via constitutional review. A broad protection of explicit enumerated protections took you far.  Justice Black was strongly against going further but managed to go further than many as is (e.g., "one person, one vote") while noting going far enough at times (e.g., electronic clairvoyance or symbolic speech). Saying the rights are "associated" with certain enumerated rights -- as Douglas once summarized Griswold -- is telling. He basically was right the first time:
"Liberty" is a conception that sometimes gains content from the emanations of other specific guarantees or from experience with the requirements of a free society.
Looking toward enumerated rights is appropriate -- the rights in the first ten amendments were chosen not because they were the only ones we had (see Ninth) but because of their basic importance to the people of the time. Certain rights were just so fundamental that a special listing was deemed necessary. And, overall, the rights retain valuable.  Furthermore, as each justice in the famous Olmstead opinion (best known for Brandeis' new constitutional phrasing of his privacy article) recognized, they deserve to be treated liberally. As Justice Holmes noted: the "words import a policy that goes beyond them." Thus, the right to privacy.*

All the same, Justice Douglas was right to speak of the second half of his "Poe" test, noting various examples found in case law. Back in 1920, in a dissent, Justice Brandeis spoke of the "privacy and freedom of the home." He joined without comment Meyer v. Nebraska, which included marriage and family life protected by the "liberty" of the Due Process Clause.  There were various rights -- travel is another -- that "experience with the requirements of a free society" were determined to be fundamental. As I covered in the past, the Ninth Amendment also serves this purpose.

Justice Douglas also was correct to see the right to privacy as basically a structural protection, something that was necessary protect freedom in general -- a zone of privacy to make decisions and thrive in  a free society:
If liberty is to flourish, government should never be allowed to force people to listen to any radio program. The right of privacy should include the right to pick and choose from competing entertainments, competing propaganda, competing political philosophies. If people are let alone in those choices, the right of privacy will pay dividends in character and integrity. The strength of our system is in the dignity, the resourcefulness, and the independence of our people. Our confidence is in their ability as individuals to make the wisest choice. That system cannot flourish if regimentation takes hold. The right of privacy, today violated, is a powerful deterrent to any one who would control men's minds.
Privacy is not just about making choices, but having intimate zones and associations. So all three threads are important: explicit text is a type of "signpost" that can take you further, helped by traditional rights (whose meaning develop) and underlining principles the flesh out whys.  And, other rights, including equality, procedural due process and so forth help as well since constitutional rights and powers tend not to be isolated from each other.  And, so it continues.


* Griswold cites the First, Third, Fourth, Fifth and Ninth Amendments. The Third is a bit of a joker, but has a rich history as a means to protect privacy. The opinion could have also expanded how the Self-Incrimination Clause protects "our respect for the inviolability of the human personality and of the right of each individual 'to a private enclave where he may lead a private life."

Douglas was not big on the individual right to bear arms, but the Second Amendment also has a privacy aspect. The dissent in a lower court case that upheld a local handgun ban noted "the fundamental right to privacy and the fundamental right to defend the home against unlawful intrusion within the parameters of the criminal law." And, Heller held that the 2A was at its core in the home. Well, perhaps personal defense is?  Castle doctrine etc.

The Morning They Came For Us: Dispatches from Syria

Good book by the woman in the video. Meanwhile, the largest U.S. death toll for a domestic mass shooting occurred earlier today at a gay nightclub in Florida. First, RIP. Second, sigh. Third, can we pass national gun legislation to show we are serious? I think there is a right to have a gun. Still can do stuff to stop use of AR-15s to shoot up people. The domestic violence connection is noted too. Finally, only sane leaders. No, Trumps or their enablers. No!@

Saturday, June 11, 2016

Pillow of Death

Silly film but fun. (Sven much older now!)

Thursday, June 09, 2016

Final Primary/Caucus Numbers

With but D.C. (D) left, we can summarize. There is about a 55/45 split among pledged delegates with Sanders in the end having a respectable finish, especially with starting expectations and doing so bad in Southern states. His combative approach got him far, but ultimately, Sanders supporters have a reasonable grounds to feel proud and think they helped in the long run. Bitter enders will exist but should be a statistical nonentity by November.

After Wisconsin, Kasich received a few more stray delegates than Cruz (NY helped), but never did quite past Rubio's totals. Meanwhile, unless there is some write-in upset or something, the Democrats are assured at least one win in the Senate races since the new California rules means two Democrats will be on the ballot in November. One estimate suggests a 3-2 split in toss-ups will result in a 50-50 Senate, underlining removing a senator to run as Clinton's veep is a really dubious move (choices seem to all be from states with Republican governors).

Anyway, it is also useful to note that of the minority that is the Republican voting block that took part in primaries/caucuses, only a plurality voted for Trump, helped by post-Wisconsin belief he was a lock anyhow and everyone else eventually leaving the race. In delegates, he received a clear majority, but winner-take-all rules and that late "it's done" surge helped too. Ultimately, Trump probably would have been the candidate anyhow, but current rules somewhat exaggerate his support. This plus the usual lag time for things to settle (e.g., Sanders votes to shift to Clinton) make current poll data misleading.

SCOTUS Watch: Judicial Issue Day

Three fairly interesting cases of mild importance that were written by  Kennedy (judicial recusal), Sotomayor (judge calling back a jury) and Kagan (power of Puerto Rico to try a case per double jeopardy rules; Breyer with SS dissents, the latter without an opinion). Some chatter that something else interesting would occur; not really.

Puerto Rico has two major rulings this term -- a major deal -- the other case involving bankruptcy rules that might be a much less important opinion given pending congressional legislation. Here the Court 6-2 discussed how the "dual sovereignty" rule (states & in some fashion Indian tribes and the U.S. are separate sovereigns so double jeopardy does not apply) works and how double jeopardy applies here. The somewhat ironic thing here is that the "liberal" approach here can go both ways -- as not a separate sovereign for this purpose (telling caveat), the defendant wins, but Puerto Rico gets somewhat less power in the process.

The whole thing appears to make sense and it's nice that Ginsburg (with federalist Thomas going along) called into the whole dual sovereignty rule in general. The whole discussion also shows "dignity" is not just something Kennedy talks about, it having various applications (to states and individual rights).  Likewise, this still holds in place the large amount of sovereignty Puerto Rico has over its local affairs.  But, double jeopardy is a constitutional bar.  Congress can legislatively pass criminal laws so that only Puerto Rico gets (if it cares to) deal with certain local crimes but once one part of the U.S. government prosecutes, another cannot.  States are a special exception and it's a dubious one at that.

If I was more inclined to support the rule, the dissent might be a bit more acceptable. The majority has precedent behind it but some of the logic involved seems a tad artificial. The whole equal sovereignty of the states, even those who were once territories of the U.S., stuff comes off a bit mystical really -- Puerto Rico does seems to have enough sovereignty to count.  But, it is part of the United States as a whole with "states" having a  special role as seen by voting representation in Congress and the 10A. Justice Thomas concurred to note his different views on Indian sovereignty.  That issue will arise in a pending case.

Update: SCOTUSBlog cites the negative reply from the governor of Puerto Rico, not surprising, but the whole thing seems overblown on some level. True criminal law is a basic matter of sovereignty, but avoiding double jeopardy in a few cases -- federal prosecutorial discretion will reduce the problem further -- is a rather narrow thing. At the end of the day, simply put, Puerto Rico is not a state or an independent entity.  There are constitutional limits here with the U.S. (up to a point) correctly giving it a wide level of self-rule. These sorts of complaints probably help formulate a good balance.  

Kennedy and the liberals split from Roberts et. al. in another case involving proper recusal rules. The opinion had a particularly interesting section on how one person can affect the whole in a multi-member court. Justice Thomas (with Kennedy) dissented in the third case, wanting a more clear-cut line regarding not reconvening a jury.  Query why a clear-cut line was so important for Thomas there and a looser one in the recusal case?  Guess things are complicated at the end of the day.

Meanwhile, a fairly convincing argument that the liberals will accept Heller in large part because it has only limited effect.  Gun rights here are widely accepted, with a big assist from the NRA, Heller dealing with a couple of outliers.  [Added to note this ruling on concealed carry does show there are some important arguments around the edges and shows at some point the USSC should take a case for argument on the issue of gun rights in public places.]

Meanwhile, Linda Greenhouse co-wrote a new book on the Burger Court.  Will check it out and get back to ya. 

'lenient sentencing of Stanford sex assaulter' (or sentencing so bad it's a national story)

Lots of coverage on this case. Found this commentary from a defense perspective helpful. This one might go a bit too far (e.g., the liberals focused on capital cases when opposing victim impact statements; think they are more okay in some cases) but agree that recall in response to one dubious ruling is bad policy. Big thing here is the dad's lack of empathy for the victim ("twenty minutes" line etc.) and over the top comments for the aggressor. The judge was a former prosecutor of sex crimes. But, for this specific defendant ...

Tuesday, June 07, 2016

Super Tuesday: The Final Chapter

Trump (shocker) swept the states (California just closed) though over 30% voted not-Trump in South Dakota. Worthy of a nod. More than one state provided a chance for the likes of Carly Fiorina to get a few votes. Sanders won the final caucus (ND) and Clinton so far won NJ, NM and looks to win SD. D.C. is next Tuesday (that's it!). Nice victory speech.

Update: Clinton won California but Sanders did get Montana. Kudos to the not Trump bitter enders! 25% in California and Montana showed a bit of honor. How about November?

Monday, June 06, 2016


The orders today brought three "grants," two death penalty cases that have received some notice. One case case concerns how intellectual disability is proven in Texas but also includes a question about length of time on death row, a long term concern of Breyer. If solitary confinement is involved, that would also be a concern for Kennedy. The third is a racial gerrymander case; the two unanimous opinions (by Kagan/Sotomayor) appear pretty boring.

Update: Never mind. Corrected order; length of time not being decided. To be fair, as seen here, these "boring" opinions are of some importance at least in a baby step way.

Freedom Is A Mixed Bag

From an earlier shot of feasting on a carcass, the basic idea (think Bambi's mother being killed as a baby and being raised by the person who killed her) to another killed lion, this film is not for the faint of heart. Nor, if you look up and see what happened in a few years to Elsa. But, the sense of realism of animal life plus human sentiment helps make this film a classic.

Sunday, June 05, 2016

Weekend Politics

Yesterday, Clinton won all seven Virgin Islands delegates since Sanders did not meet the 15% threshold. There is a little over 100K people there and we apparently got control in large part because of WWI concerns. Clinton looks to get something like 60/40 in Puerto Rico, its delegate rules convoluted though prisoners can vote. A lot more disenfranchised there in November. Bankruptcy and double jeopardy rules to be decided by Supreme Court in June.

Saving Time

Someone brought up this name and happened to see the DVD at the library. OTOH, this trailer basically seems to sum up the film, plus doesn't seem that good. Will skip it.

Saturday, June 04, 2016

Racism and Ali

R.I.P. Muhammad Ali. This provides a good summary of why we should honor him. His fight for a draft deferral went to the Supreme Court (and was the subject of a HBO film). The backstory includes Justice Harlan at the last minute examining the facts and throwing the case his way. The Trump/Mexican thing is germane including why yes it's "racism." Comments there cover the gambit, including how word trolls aren't convincing.

Thursday, June 02, 2016

Kristol's Choice is so dumb, let's just deal with a side issue

Griswold and privacy specifically has been a popular topic for me but basically the opinion holds up. It is just that his Poe v. Ullman dissent was better by being a more comprehensive defense. The "penumbra" principle is fine too; it is just that a general right of privacy probably requires a bit more. I add more here including on the Third Amendment.

Wednesday, June 01, 2016

Court Stuff

Trump continues the theme from earlier in going after a judge in a fraud case, bring up his ethnicity. Odds and ends from the Supreme Court (one boring opinion), including Breyer/RBG focusing on geographical disproportionate death sentences. Local control, encouraged by the 6A (local juries), furthers this. But, death is different and "unusual" punishments are of special concern. A per curiam shows that. June here: big cases coming.

Update: More on the geographical point here. The counterarguments come off as exaggerated and it simply is not merely an "abolitionist" thing. It's a general rule. Also, if you can't trust someone who might be against a litigant's belief's, that applies to all beliefs including those you like. Gay judge? No "defense of marriage" litigants! Can't be the rule.