Film Quickies

The second Fifty Shades film was not that interesting -- they get back together fairly quick so there isn't much drama to be had. Saw a reference of Purim and checked out Esther and the King after seeing a positive online review. What I saw was fairly silly. No Samson! High Noon was on the t.v. and I rented it to see the whole thing. Excellent cast and good crisp classic. Like an early bit: can't arrest three waiting goons -- didn't do anything yet!

McCulloch v. Maryland

I provided extended analysis of the cases last time, so the start of a new Landmark Cases season warrants a follow-up.

Upfront, this opinion's symbolic character in various constitutional debates -- including its defense in "living constitution" [the term is at times a dig] circles -- was not fully addressed in the limited time period of the episode. First, we have a reminded that the Tenth Amendment does not have the word "expressly," thus "leaving the question whether the particular power which may become the subject of contest has been delegated to the one Government, or prohibited to the other, to depend on a fair construction of the whole instrument."  The Constitution provides "great outlines" with specifics to be "deduced from the nature of the objects themselves." Finally, there is an ongoing character regarding such "deduction."

This provision is made in a Constitution intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs. To have prescribed the means by which Government should, in all future time, execute its powers would have been to change entirely the character of the instrument and give it the properties of a legal code. It would have been an unwise attempt to provide by immutable rules for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur. To have declared that the best means shall not be used, but those alone without which the power given would be nugatory, would have been to deprive the legislature of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances.

The beginning of the quote underlines the "government" is involved here, so it is not just a matter of Congress  and "a Constitution" applies things across the board. "Great outlines" are in place but specific applications will occur in ways the original authors "must have seen dimly."  So, if broad equal protection principles are applied to protect homosexuals, the mere fact that in 1868 it would not have been seen except quite dimly doesn't end the question.  The opinion appeals to original understanding so who is loyal to that?  Well, the criticism showed a battle there.

The dispute between Marshall and Jackson was touched upon, but much could be said about that as well, including arguably how the Jacksonian position is reflected in various ways by many today as well.  The pushback of the defense, e.g., of the Affordable Care Act and so forth by McCulloch/Marshallian rhetoric underlines the continuing debate. Gerard N. Magliocca has an interesting book on the historical battle there, Andrew Jackson and the Constitution: The Rise and Fall of Generational Regimes.  Repeatedly, concerned about limited power are cited by conservatives (in certain cases), but opinion promoted broad national discretion:

Is it true that this is the sense in which the word "necessary" is always used? Does it always import an absolute physical necessity so strong that one thing to which another may be termed necessary cannot exist without that other? We think it does not. If reference be had to its use in the common affairs of the world or in approved authors, we find that it frequently imports no more than that one thing is convenient, or useful, or essential to another.

Marshall put his thumb on the side of national power, which was quite possible since the Constitution itself expanded it.  The opinion was careful to state that easily admitted fact that we have a limited government and that when any government (there being limits to both state and federal bodies) clearly crosses the line that judicial review will respond. But:

Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.

The test is broad though has somewhat unclear contours. For instance, what does the "spirit" of the Constitution entail?  If Congress can establish a corporation, a monopoly at that, not expressly allowed by the Constitution ... that is if it is "proper" to do so under the Necessary and Proper Clause ... the words "necessary" and "proper" have both a broad and limited reach. After all, some argued -- unlike Marshall's Hamiltonian arguments [originally rejected as to the bank by the same person who eventually signed the law establishing the bank now at issue]  -- that the bank was not necessary or proper. Likewise, the opinion said states taxing a national bank was not "proper," not by express constitutional terms but by appeal to overall principle.  Such techniques can be used to restrict national power as well as we saw by the controlling opinion in the Affordable Care Cases.

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

The word "appropriate" is notable since it pops up in the Reconstruction Amendments and there is clear evidence that this opinion had influence [see the book cited as well as -- to jump ahead to next week -- the dissent in the Civil Rights Cases].  The limits of the Fourteenth and Fifteenth (Shelby v. Holder) has been an important them during the Rehnquist and Robert Courts with key cases being 5-4 battles. A telling except is the Boerne case, the main dispute [Souter and Breyer chose not to decide the federalism issue; Stevens and Ginsburg accepted it silently]  over the reach of the Free Exercise Clause. The concern there was that the Congress was not "enforcing" the amendment at all.  This would not be "appropriate."

Still, I think it reflects the means/end discussion of McCulloch -- Marshall basically said that as long as something was a necessary means to an end -- not an end in itself -- it was acceptable. RFRA was just to broad in that sense, apparently covering anything the state did. Shelby was more problematic since there was more an appropriate fit to the end.  The same applied to PPACA -- it clearly regulated more than one power and in respect to interstate commerce, the means was not in violation to the letter or spirit of the Constitution.  Use of a tax or regulation of commerce itself (by encouraging purchase) of those who are likely to directly and surely indirectly without "inference leveled on inference" to refer to U.S. v. Lopez [federal guns near schools law] where the link very well was weaker be involved in the health insurance market was not "improper."  The case to many of us was patently obvious, thus the ruling was offensive. 

Anyways. As touched upon in the episode, banking was a major policy concern in the era in question, battles over the Bank of the U.S. particularly striking during Jackson's presidency. As noted by the book cited, it might very well have been a historical accident that McCulloch v. Maryland itself held up. The opinion had a "Whiggish" character (Madison did eventually support the bank, but what if Jefferson/Madison's picks weren't largely nonentities and Federalist deep down Joseph Story?) and the election of William Henry Harrison (Whig) might have led to a conflict with the Taney Court. But, Harrison soon died, and Tyler was basically an anti-Jackson Democrat.

The case therefore continues to be of central importance regarding how to interpret the Constitution, the reach of governmental power and deep divisions (originally even among the two leading authors of the Federalist Papers) on basic questions.  This is so even though the basics of the case now seems fairly clear -- a few aside, sure most might say, Congress has the power to establish a national bank and state taxation of the then sizable amount of fifteen thousand dollars clearly would infringe on its power to do so. But, the reasoning will take us places many will not like.

Reviews

There was already a Loving movie out when What Comes Naturally about the history of interracial marriage came out right before the author died. Forty Autumns, about a family on both sides of the Iron Curtain, has movie potential. Very readable but perhaps a bit too brisk at times. Then, we did have three generations and forty years to handle. Battle of the Sexes was well acted but got bored half-way thru, especially since even the first match didn't occur yet by then. Not my "favorite band," but Mountain Goats are pretty good. Not a big Beatles fan, but Yellow Submarine was an impressive movie. Reminds me of Monty Python.

SCOTUS Watch

Some action of note order-wise, including letting the DACA case continue meaning the stay in place continues. Notable oral arguments this week. And, decisions today, including a 5-3 case [if some Democrat appointee took part, would it have been 4-4?] involving bail hearings for immigrants [Breyer dissenting from bench], a unanimous bankruptcy case and a splintered result in a jurisdiction case that involved Roberts being pretty upset in dissent.

ETA: A comment at the bail hearing link suggests the bottom line constitutional question is still open but here warns that it very well still might have broad reach in another fashion. Some of the negative coverage was probably too blunt but that's typical.

Landmark Cases

Years back, Saturday at 7 on C-SPAN (at least one of the channels, once there might have been but one) was "American and the Courts" time. For whatever reason, they stopped regularly providing Supreme Court programming like that but now have a new Landmark Cases series that discusses twelve, one each Monday night, with two talking heads [at times taking different sides], extras about the people/events involved (more clips on the site, where you can also see each episode) and call-in [at times an uncomfortable practice]/ability to Twitter/Facebook to discuss & ask questions. As someone familiar with the cases, found it a mixed bag, at times too cursory. But, welcome it and more court programming.

RBG -- Fair Critiques vs. Standard "the Left" Cant

I understand especially to the degree it led her to go overboard [Trump is some instigation but the average lefty did not simply give her a pass; compare some of Scalia's statements, at times on the bench] for people to be wary of hero worship of RBG or anyone, but as I note here that is the point -- be evenhanded. RBG has her moment and she deserves it -- she has had a distinguished career, she is eloquent and charming. Without saying "that's what the Right likes in a justice," some elderly conservative could have been treated similarly.

And Also: Compare the second comment (down to somehow making Thomas not an "icon") or the op-ed referenced making RBG into some "ethically challenged" justice her supporters give a pass too while not even admitting Scalia/Thomas/Alito/etc. counsels not to toss stones.

Giving .02

There is a Trump supporter on certain blogs I read that I feel compelled to answer though clearly it isn't going to suddenly make him change his mind. After all this has been going on since Bush was in office. But, he comes off as informed enough that some degree of logic should get through. OTOH, constant repeating of bad cant and an inability to get around it even when directly confronted shows otherwise. And, eventually I get annoyed and it's hard not to basically give some sort of dig, which basically just helps his "the Left" mentality. It is all somewhat addictive since I like to post on blogs even when few others do so.

SCOTUS Watch

After a break, they first handed down orders, including a solo dissent from denial by Thomas, the "no one cares about the 2A" Cassandra of the Court. Kinda has a point. Then, four decisions, including two criminal, Gorsuch writing a really tedious textual majority with a potshot at legislative history in one (four dissenters managed to read the text another way). Roberts and Gorsuch joined the liberals in one involving guilty pleas, here involving a 2A claim. Sotomayor and Ginsburg had two unanimous rulings with restrictive results, the latter resulting in Sotomayor/Breyer and Thomas/Alito/Gorsuch have competing concurrences to talk about legislative history. Calling Victoria Nourse, who in part supported that.

ETA: Two rejections of last minute capital appeals, one with RBG/Sotomayor dissenting as to means with Breyer noting the guy was on death row for decades and he would if given his druthers take the case to decide the constitutionality of capital punishment. That one never managed to be completed; the other guy was executed after challenges supported by top experts failed. The governor commuted a third to LWOP.

Samson: Bad Reviews Overdid it Again (PG-13 version)

Not into superhero films (and plot summary didn't do it for me), wary about the musical about Barnum being too watered down and didn't think the animation movie was for me. So, what to watch this time at the discount rate? Yeah -- another movie with mostly bad reviews! And, again, not a work of art, but fine for a low budget faith based film. I continue to think a series of biblical based films by various directors would be an interesting idea. A lot of material that can use some new perspectives. Some of that already out there.

"The Second Amendment Is Not Why The U.S. Doesn’t Have Good Gun Control Policy"

Another shooting. I agree sensible (whatever that is) gun policy is not blocked by Heller or the Second Amendment and have various comments below the article. One suggested gun "regulation" works better than control -- the amendment itself says "well-regulated"! Contra an annoying reply, I'm not suggesting "magical" results here but seems a reasonable way to help normalize gun regulations, to help influence many people somewhat. ymmv.

ETA: I have no easy answers except that no solution will "stop" school shootings but some policies will net improve the overall situation. A comprehensive background check system -- there remains loopholes, issues with data etc. -- does appear basic. Simply banning "assault weapons" will have limited impact but very well can be an aspect of overall policy, including as a symbol that there are reasonable limits. That website has a lot of data.

Presidents Day

Happy Art. II Day. Item: The spelling of these collective holidays confuses me a bit. A liberal writer on five underrated presidents. The day can be seen as about more than two guys with February birthdays though still like that reenactment. And, President Rat over ...

Fifty Shades Freed

I read one of the few fresh tomato reviews of this film and thought "sorta want to see this." After watching the resident prude over at the NYT talk about banning porn (and a few idiots sympathetic with it), wanted to more. And, instead of waiting to see another film, actually did. It was overall relatively um painless with some shades of fun. She got the best lines and action scenes too. Surely ridiculous and making you wish a better take on the basic idea was done and overdid the music. But, it's escapism. Duh. Anyway, relax bad reviewers. Have fun.

ETA: Watched the first one. I liked it, the ridiculous aspects adding to the fun. She really had a "Rory Gilmore" vibe. And, sure, you can criticize it in various ways. For what it was, it was fun and Christian here had more meat as a character. Her mother an intriguing character.

Women's Prison

The companion film on the old B-movie DVD didn't much work for me (lead was good) but this was overall pretty good as a genre film. Ida Lupino's role (including her real life husband playing "Dr. Crane") provides for an interesting backstory. Nothing special but an enjoyable time capsule. The implicit reference to a quickie was a nice touch.

Lady Bird

Prime reason I saw this film when and where I did was the discount price since $13.50 to $15 for a film without carfare is too much for me. Felt it was very good in various respects, especially the lead, but did not find is as really really good as its reputation. The mom was a bit over the top for me and the episodic quality at times had me bored. In the field of character studies, this is not somehow unique though the teen lead, mom and female director and Catholic school location together is a plus. NYC conclusion seemed tacked on.

DVD ETA: I enjoyed, though it started off really laying it on thick that "she's a bitch," Happy Death Day. It's a sort of horror movie Groundhog's Day, which was lampshaded late.

National Prayer Breakfast

66th Annual National Prayer Breakfast in D.C. included by various reports (see, e.g., NYT) fairly bland comments from Trump. Looking on Twitter, saw some seeing some strong sectarian rhetoric, but then that's typical here. So, maybe we are grading on a curve. Some references are annoying, such as the prayer in support of a sick girl (how about supporting health care?). Obama gave more inclusive remarks; back in the day was somewhat concerned with his framing. Overall, don't like talk of "believers" (=in a certain version of God). Overall, these things amount to mild establishments of religion, that is, certain forms.

Rob Porter: Symbol of Trump White House

The Rob Porter news (CNN had a piece concluding he was seen as too important in managing information in the White House to fire) is disgusting, both regarding defense of a batterer and the lax concerns for security (had to continuously rely on temporary security clearances and was a prime blackmail candidate; recall Clinton's email "sins"). By now, though, it's "yeah, but it doesn't matter." It does, of course, but not enough. BTW, the CNN article's comment regarding Ivanka and Donald's reaction should be put in sarcasm font.

Eagles Hang On ... Baseball, Please!

Not this time. Eagles went ahead, couldn't get two to be up by five with about two minutes left, get another three after a Pats turnover & of course the Pats had one more drive left in them. But, a little over a minute with no time outs was just (Phil fans said the Hail Mary when he threw his) not enough. Stressed just checking and looking at updates online.

Inside the Pentagon Papers

The latest book on the side panel [as it was once before] is a 2004 book discussing the Pentagon Papers with various interviews with participants included. We get a discussion of their creation [the content is touched upon, but a fuller summary might have been useful], Nixon's reaction, legal discussion (including since then) and rebuttal of claims of threat to national security. [Free speech includes speech that might be dangerous though.] A good short companion read to The Post movie with various "hey, that was in the movie" moments.

ETA: Might check out a longer examination by someone interviewed here but this Verdict essay summarizes the legal issues. Movie does provide a sort of behind the scenes look.

Just James: The Brother of Jesus in History and Tradition

Years back, before even this book was written, I wrote a paper of James, the brother of Jesus, of which I remember nothing. This is an interesting subject on someone we have fragments of information on (somewhat more so late though of mixed value) but clearly was an important figure in his time. The fact we only read of him in passing biblically is telling. OTOH, what do we really know about Peter even? Anyway, this academic style book was a trudge, dwelling long on academic points. But, the discussion of references in the gospels that imply he might have followed Jesus during his lifetime alone suggests there are kernels of interesting analysis. But, it could have been put together in a much more readable way.