Happy Easter!

The original idea of Easter is to me antediluvian but think people try not to think about it. Abraham sacrificing a child was seen uncivilized two thousand or so years (if we try to make him historical) before Jesus! Plus, what is this "only son" business? God is supposed to be the creator of us all! And, many died for causes without knowing they were saving all of creation. The idea of rebirth and so on holds true and the original story (however the final belief in resurrection developed; see, e.g., Bart Ehrman's writings) has some interesting stuff in it.

As I Open My Eyes etc.

Well acted film giving us the feeling of a young woman's feelings right before Arab Spring. I, Tonya was well acted, but could not get into it. Can see why Kay Francis, the 1930s actress, was popular but two films I saw so far were fairly thin. Quick though (about an hour).

Justice Stevens: Repeal the 2A

ETA: RIP Judge Stephen "Chief Justice of the Warren Court in Exile" Reinhardt.  A former clerk talks about him here, including his work ethic. Much respect though I'm a tad less activist.

This is why I like John Paul Stevens’ call to repeal the Second Amendment. As I said yesterday, of course it’s not going to happen. But in facing a bunch of fanatics who have made a fetish out of the Second Amendment and taken a maximumalist position on it, milquetoast and moderate proposals aren’t going to cut it. The lunatics will see a ban on bump stocks as an attack on their American rights. The more politically savvy way to handle this is to call for what we really need–a direct attack on the nation’s gun culture through its fetish. I understand that Heller could be overturned with the right Supreme Court justices. And it’s not that Ian Millhiser is wrong exactly when he says Stevens isn’t helping because the real problem is the decline of American democratic institutions. But I don’t think Millhiser is helping either. In terms of advancing progressive policy, proposals around the margins aren’t going to appeal to the masses. I just don’t see the downside of attacking the 2A itself. Trump and Fox News going ballistic is nothing but the same noise they always give.

I think Erik Loomis -- who has some good stuff at the blog and I forgive his over the top remarks at times because he also goes into sane mode too -- has a point here.  There is a value to attacking the "Second Amendment" in particular, that is, the "symbolic" version, including as applied in Heller and McDonald. It is true that both actually allow a range of regulations, if not a direct attack on lethal handguns (though aside from a few areas that had limited effects before the decisions).  Part of this is moving the so-called Overton Window so much more regulation is the moderate position.

Still wary in part because the op-ed gives the other side here [and I'm not quite as strongly anti-gun as Mr. Loomis] more power than they have. Current law as noted allows a lot of regulations. Stevens says that repeal would be a "more effective and more lasting reform," but to what degree? Of course, the big issue is that it simply is hard to imagine such a repeal would actually happen. It also makes strong gun supporters that much more rabid in resisting even limited reforms. Again, there is a lot of possible ground there, and that seems to be more productive.

Stevens also exaggerates, which again, doesn't make the opening argument wrong, since advocacy often (to be blunt) does that some. Still, it rubs me the wrong way, especially for a Supreme Court justice.  Is a standing army truly no longer a concern today? I would argue a limited group of professionals (both the military and the police, which at times has paramilitary aspects) as compared to a "militia" of the people at large, citizens usually, soldiers on occasion (to cite U.S. v. Miller) still is a valid contrast.  Did the Second Amendment provide "no" limit to regulation?

That decision — which I remain convinced was wrong and certainly was debatable — has provided the N.R.A. with a propaganda weapon of immense power. Overturning that decision via a constitutional amendment to get rid of the Second Amendment would be simple and would do more to weaken the N.R.A.’s ability to stymie legislative debate and block constructive gun control legislation than any other available option.

As noted, I agree with the "symbolic" value of the Heller decision, and more should be done to emphasize its limitations. Spinning court decisions is a thing, like how Chief Justice Roberts spun Brown (RIP Linda Brown) as an anti-affirmative action decision.  It is risible to say it "would be simple" to overturn the Second Amendment.  As alluded to in the opening comment, a core issue here are structural problems where a minority of people block the will of a majority.  How "available" is it really?

Nor "would eliminate the only legal rule that protects sellers of firearms in the United States" because there are various other such rules, both state and federal in nature.  There is going to be at least some degree of protection of all sellers to the degree basic federal constitutional rules are involved.  This would at least require care in the wording -- it would not be a simple repeal.  I personally think the right to own a firearm is a constitutional liberty in some fashion even beyond the Second Amendment and some sort of legal protections are warranted.

Focusing on repeal of the Second Amendment for these reasons to me is misguided. I read his "Six Amendments" book and overall wasn't that impressed by the ideas there as a whole, including the idea we should have a specific amendment abolishing one single type of cruel and unusual punishment (death penalty). Change, other than at special moments or involving technical hardwired provisions [like the opening of Congress], generally doesn't come here by constitutional amendment.

And, is it really time to do this for a ruling a decade old?  The telling thing here, probably, is that there was a broad sentiment -- with some exceptions -- that there was a basic right to own a firearm.  The NRA took advantage of this and some other things (such as fear) to advance an extreme ideology, but the core right here -- one where lots of regulations are allowed -- is not a minority position. This is part of why it is not so easy, even without the supermajority necessary, to repeal the Second Amendment. So, like with campaign finance regarding the First, we need to work within it.

But, Loomis has a point.

Landmark Cases: Gideon's Trumpet

One of the grounds upon which Lord Coke defended the rule was that in felonies the court itself was counsel for the prisoner. 1 Cooley's Const. Lim., supra. But how can a judge, whose functions are purely judicial, effectively discharge the obligations of counsel for the accused? He can and should see to it that in the proceedings before the court the accused shall be dealt with justly and fairly. He cannot investigate the facts, advise and direct the defense, or participate in those necessary conferences between counsel and accused which sometimes partake of the inviolable character of the confessional.

-- Powell v. Alabama (Scottsboro Boys Case)

The Supreme Court in that case ultimately spoke of the "whole power of the state arrayed against him, prosecuted by counsel for the state without assignment of counsel for his defense, tried, convicted and sentenced to death."  The rule was applied to federal non-capital cases but in the early 1940s, they drew the line at capital cases and non-capital cases with "special circumstances" when it came to state cases.

In time, this was not seen as enough for equal justice under the law by the necessary number of justices and a case was sought out to address the matter. The Supreme Court might have to wait for cases, but it does have some discretion in seeking out and crafting the ones they do get.  Charles Gideon was in a fashion out of central casting -- a poor ne'er-do-well who showed the importance of paid counsel for one's defense if fundamental fairness would be upheld without being found guilty of a particularly heinous crime. Plus, he was white though many Warren Court cases, including those that in some way involved rights to a lawyer, involved blacks and other minorities.  Later played by Henry Fonda in the movie.

Justice Black (joined by Douglas and Murphy, who if he didn't die fairly early might still be around now too) dissented back in Betts v. Brady. He wrote the majority opinion and ala Justice Kennedy in Lawrence v. Texas basically said the result should have been pretty obvious the first time. Justice Douglas concurred to promote incorporation since Black had to write the median opinion of the Court. Justice Clark argued that capital and non-capital cases deserved equal due process (which simply doesn't work at some point -- capital cases traditionally treated more strictly).

And, Justice Harlan -- unlike his grandfather not a fan of incorporation -- writing separately to give Betts v. Brady a more sympathetic burial.  Harlan was something of a great dissenter like his grandfather if not someone many (unless you are of a conservative bent) honor as much. His big cause was federalism and though he gave teeth to fundamental fairness, Harlan was more willing to go only part of the way.  Harlan didn't think each of the Bill of Rights had to fully be protected as applied to the states; this meant the Betts v. Brady approach might have worked for him. But, over time, it was really just a shell -- case after case had "special circumstances," and in the long run this did the states not much good. Sham federalism, let's say.

Over the years, particularly in capital cases, the indigent in various degrees, did get some representation.  A set rule that they should get paid counsel is a logical (if not compelled merely by the text) rule.  A right to counsel when you cannot afford can be a meaningless one, one that also in practice would deny due process of law. A lawyer is a central matter for people even if they are not (as is the current national rule) arrested for crimes where imprisonment is possible upon conviction.  We see this now with all the issues involved in the Trump legal business.

And, sometimes, this would require government support.  This is general principle also applies even in civil cases to some degree, particularly regarding fees.  More so as a matter of policy. The principle of equal justice of the law might not be quite as mythical as some aspects of this case might seem (some defendants are guilty with or without counsel; many disputes still arise on how adequate the counsel is etc.), but myths have some truth to them.  Including those with a reference to the Book of Judges.

Lust on the Line [not Petticoat Junction Related]

I referenced a Stormy Daniels production found on Showtime given the recent controversy regarding Trump. Mixed bag as a movie. Moving past that connection, Lust On The Line was on the whole pretty good for late nite soft core porn. The first and last entries were the best [including the actresses] but overall liked the use of "natural sound" as compared to scenes dominated by canned music. These movies do need more "girl next door" types.

National Institute of Family and Life Advocates v. Becerra [Crisis Pregnancy Disclosures]

ETA: More on the case, crisis pregnancy centers and remarks about Julie Hilden (who sadly died young; I used to read her columns and turns how she had a major role at the website) here. The CA named defendant here recently tweeted about the move to add a citizenship question to the census. Not a fan -- he's on #TeamResistance. More here.

The oral argument of this case really bothered me.

The basic reason is a "good for the gander" concern that was voiced by Breyer as well as a "come on, this is necessary" concern that was more for Sotomayor (the "excuse me, don't buy it" justice on the left) to state.  More so, and this was if anything only barely dealt with in the oral argument, the law here generally seems so damn narrow. Licensed clinics have a general disclosure of what the state offers and a phone number; unlicensed clinics had to say they aren't licensed [which even the Trump Administration figured was okay].  As I said two years ago:

Generally, you shouldn't have to promote a message you despise, but crisis pregnancy centers put themselves out as health centers, including by look and action (such as ultrasounds). There a state has more power to regulate, including to guard against confusion.

California has specific rules that determine if a clinic can be "licensed," which to me has a certain cachet that some here seem to want to free ride on without the requirements often in place in such situations. During oral argument, you would think the line here was somehow ad hoc and artificial, including Alito (to the Trump representative!) so very concerned about treating professional speech differently.  But, we do this all the damn time. There are a range of disclosures required for licensed professionals in particular. These are licensed clinics. What is the problem?*

His reference to publishers, which raises a special First Amendment concern, was particularly specious.  MEDICINE particularly involves lots of disclosures and using strict scrutiny is particularly dubious and would not have upheld the requirements in Panned Parenthood v. Casey.  I use caps in part to address my aggravation with even the introduction of the case in a podcast with Leah Litman (liberal) not referencing the licensing point.  And, medicine is just what is involved here. The overall issue here is the "decision" regarding what to do regarding one's pregnancy. The challengers wanted to limit the nature of their role to avoid being put in the "informed consent" aspect of Supreme Court doctrine.  But, things should not be so narrowly drawn. Thus:

“California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women. To determine whether you qualify, contact the county social services office at [insert the telephone number].”

(see my comment here).  If some states can require abortion providers hand out information on adoption and so forth, why cannot licensed (yes, I'll keep on saying this) family planning clinics be required to simply say that? As noted by the lower court, the disclosure is not slanted -- it merely lists the options. If someone is pro-life, they do not have to ask about abortion services.  The Supreme Court has said the state can gear informed consent to promote childbirth. Why cannot it also be used to promote choice? And, advertising or the like wasn't provided as an alternative to allow abortion clinics to not provide the information. This makes sense -- the specific women in need here very well might not see advertising or where to get it from the government. It makes sense to target the place they go, the clinics.

"This facility is not licensed as a medical facility by the State of California and has no licensed medical provider who provides or directly supervises the provision of services."

The law also has a confusion avoidance rationale, one partially based on a record of problems with crisis pregnancy centers.  So, this isn't the only concern.  Still, it provides much bite on its own.  As to the confusion rationale, the idea anti-fraud statutes would provide a narrow alternative falls for two reasons -- (1) the test shouldn't be so strict to necessarily warrant that (2) that only is so helpful. For one thing, even if the clinics are not guilty of "fraud," they might at the very least unintentionally mislead. A disclosure requirement -- which repeatedly was upheld in the political speech context without proof of actively misleading etc. -- makes sense.

I am okay with being concerned with the law along the edges (see this account from a left leaning type), including things such as font size required in advertising or the like.  OTOH, where has this concern post-Casey (which overruled pre-Casey case law on this very point, if cases that weren't First Amendment in nature, but based on the right to choose an abortion freely) as to various repeatedly biased informed consent laws? As to "gerrymandering" (the cite Kagan -- the oral argument suggests at least part of the law will be struck down by greater than a 5-4 vote), the article helpfully responds. The core of the law, however, should stand.

There is something of an irony here that if the pro-life clinics here win, there might be a Pyrrhic victory of sorts that even the advocate somewhat (moving past trying to make this not an informed consent case) grants. That is, if there is a First Amendment problem here, it might add strength (that won a few times in lower courts) to challenges by pro-choice groups to much more blatant biased and burdensome disclosure requirements. I'm wary of that, inclined to think some differentiation will be found though it might help, depending on how the opinion is written, and what lower court is involved.  We shall see.

But, I still think the core of this law is sound. And, it would be sound in other contexts, some which might require a similar bland statement of what the state offers at a licensed location of a left leaning sort.  The alternative will be either free speech on steroids or artificial line-drawing as we see regarding free exercise in the area of abortion funding. Finally, it would help if the Supreme Court showed equal concern for the free speech rights of pro-choice clinics. Rust v. Sullivan (Justice O'Connor dissenting) comes to mind. The one issue here though -- if one where the Supreme Court weighed various things in the balance, at times against the wishes of more conservative justices -- that they seemed to care about was the rights of pro-life protests.

---

* Judge Gorsuch suggested that it seemed weird to him for a private party to be required to inform clients of their rights here. More particularly, the issue here was informing people of state benefits, and "private parties" here involved licensed clinics. It is perfectly normal for disclosures to be in place for such regulated entities to include an informing function of this nature. Basically, as Sotomayor flagged, what is being done here is redefining "medicine" akin to those who want "health" in respect to abortion (and beyond) to only mean a narrow thing.

If this law is struck down as going too far, fine up to a point, but to belabor a theme, bigger game is at issue here.

Navy Again Rejects Application To Become Secular Humanist Chaplain

Petty outrage alert, particularly: "recently the Navy chaplain advisory board recommended approval. However 45 House members and 22 Senators wrote the Navy opposing approval." Quite a few people are "secular" in some fashion even if they are "spiritual" and others would accept services from a secular humanist chaplain. But, certain people's faiths are more important than others to some. "Religious freedom" like "marriage" is repeatedly too narrowly understood. The denial here is particularly gratuitous.

Curse of Chucky

Mostly enjoyed in various degrees the "Child's Play" franchise (excepting the third, which I only saw a few minutes of and looks boring), including the last one where Andy came back and the actor who voices Chucky had his daughter enter the franchise. This last one has her, more Andy, a little Tiffany and a lot of garbled stuff. Disappointing with confused plot points though some good style points. Ending is apt given the father/daughter dynamic.

Landmark Cases: Plessy v. Ferguson

For those whose exclusive norm for constitutional judging is merely fair reading of language applied to facts objectively viewed, Brown must either be flat-out wrong or a very mystifying decision. Those who look to that model are not likely to think that a federal court back in 1896 should have declared legally mandated racial segregation unconstitutional. But if Plessy was not wrong, how is it that Brown came out so differently? The language of the Constitution’s guarantee of equal protection of the laws did not change between 1896 and 1954, and it would be hard to say that the obvious facts on which Plessy was based had changed, either. While Plessy was about railroad cars and Brown was about schools, that distinction was no great difference. Actually, the best clue to the difference between the cases is the dates they were decided, which I think lead to the explanation for their divergent results.

-- Justice Souter 

Plessy is a favorite entry in the "anti-canon" those cases we love to refute, seeing them as grave injustices. Souter's point was not that we should simply accept such cases as legitimate at the time, but still reminded us that it is important to put them in context of those times. One of the guests [known for his pushing back originalist defenses of Brown] this week challenged a statement by Justice Thomas honoring Harlan's dissent. Courts operate based on a sort of Overton Window of the possible. If they suddenly did not generally there will be pushback and it would not be allowed long term. And, it is the nature of real life judging.

A couple weeks ago, we saw how the Supreme Court 8-1 struck down a congressional requirement to not discriminate by race in certain public accommodations. It was seen as not authorized by the Fourteenth Amendment.  Then, we had a case where unanimous court struck down a particularly racist application of a local law.  We are back to normal reality and the inequality two-step complete -- now, even if there is state action, it is acceptable if it is "separate and equal."  (More should have been said about how that in practice turned out to be an illusion.)

The die was cast here by the end of Reconstruction or even before: Congress allowed segregation of D.C. schools in the 1870s.  Let it be noted, by the way, that even Justice Harlan accepted segregation in public schools (when a state interfered with a private college, Harlan dissented, but specifically differentiated here). Harlan's language (at least not the parts about the white race being superior or how the Chinese are unfit) in his dissent is taken more broadly than its author felt warranted. A public streetcar to Harlan involved "civil rights" while public schools or marriage involved "social rights" that are of a different caliber.

(It was noted on the show that after the creation of the Interstate Commerce Commission, a finding of unreasonable restraint on commerce was barred. Nonetheless, the agency determined segregation was not unreasonable. This would eventually be deemed wrong in the 20th Century, but it shows what the plaintiff -- who was 1/8 black -- was up against.)

What was possible here? Realistically, I think it was possible in the Civil Rights Cases to uphold at least part of the law at issue since there was enough state action and effect on interstate commerce. But, the die was probably cast by the restrictive way federal civil rights laws were applied in the 1870s. Here, segregation was readily accepted for years as reasonable. An argument can be made that the text of the Fourteenth Amendment makes it not so and some courts right out of the gate so held. But, at the time, the "ordinary understanding" was that segregation was not barred. Again, even Harlan thought many race based laws acceptable.

This doesn't mean that it was a "right" approach. It isn't too hard to read the majority opinion here and find specious arguments, like any sign of racism is only in the minds of the challenger.  There is an exception here for nurses of children and I doubt a broader exception for other types of servants would be deemed arbitrary. So, segregation was the rule only up to a point. As noted above, actual equality was repeatedly not the rule, underlining separation often means unequal.  We even see this regarding separate bathrooms for men and women: the bathrooms repeatedly are not the same. Any separation there is based not just on privacy concerns but a belief of actual differences.* 

We also have this from the majority:

A statute which implies merely a legal distinction between the white and colored races -- a distinction which is founded in the color of the two races and which must always exist so long as white men are distinguished from the other race by color -- has no tendency to destroy the legal equality of the two races, or reestablish a state of involuntary servitude.

We saw earlier that Justice Harlan had a broad view of the reach of the Thirteenth Amendment and republican values in general here. A public streetcar involved the "public," and people were on equal footing here, race not coming into it.  Moving past that, the argument here in general has an assumed "given" to it -- why should they be so distinguished? And, evidence that segregation will at least have a "tendency" to destroy legal equality is evident.  Harlan had some "let's be serious" comments here but generally speaking, if only some people can travel with a white person, some sort of legally inequality is being established. It also amounts to an infringement of one's right to association.

The argument also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other's merits, and a voluntary consent of individuals.

Again, it is questionable if being able to intermingle without being separation by race on a streetcar is merely "social" equality.  In practice, generally speaking, the argument here is unsound. Yes, social prejudices might be furthered by legislation and be combated by them.  "Overcome" is a strawman in that respect.  And, equality of citizens and persons in general overall in public places is furthered by not artificially limiting commingling. The argument here is one-sided. A group very well might want to commingle, including in a single car, but they are not allowed.

In his dissent, Justice Harlan returned to his Civil Rights Cases argument that "public highways" bring in state action that bar race based restrictions of this sort.  The anti-black nature of the rule is something "everybody knows" and "no one would be so wanting in candor a to assert the contrary."  Discriminations among whites isn't the rule though logically it very well might be [the resurgence of the KKK, which the second time around expanded to anti-Catholic and Jew].**  The likely negative results, including a "feeling of distrust," from such a policy to Harlan was clear. And, such a badge of slavery, of inequality, unconstitutionally treated a certain class of citizens who under true guarantee of republican government (Article IV) are equal.

The white race deems itself to be the dominant race in this country. And so it is in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time if it remains true to its great heritage and holds fast to the principles of constitutional liberty. But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved. It is therefore to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a State to regulate the enjoyment by citizens of their civil rights solely upon the basis of race.

Both opinions here have interesting assumptions and reasoning that provides insights into the times and thought processors of the era. The words here of a border state former slave owner in the 1890s regarding the white race is far from surprising. More so that he was able to look past it to support legal equality ... up to a point.  And, the rhetoric here is nice, but Harlan did accept color distinctions. Note the proviso regarding "civil rights," but in time, e.g., marriage was such a right in this context. The "no account of his surroundings" language probably does not hold up to extreme scrutiny either. OTOH, it is best to read these things as a whole though it remains on some level a thing to quote maxims.

Justice Harlan, as he did in other cases, spoke of the need for judicial restraint when "reasonable" regulations were involved. But, he argued that this one was not constitutionally so. The majority, however, was not putting forth a novel argument going the other way -- by the 1890s, segregation and other race-based policies were readily seen as acceptable. This puts this opinion in better stead than Dred Scott v. Sandford, which struck down a major piece of congressional legislation using a strong form of pro-slavery constitutionalism. A narrow loss might be seen as unjust, but the case is a leader in the "anti-canon" because of its unnecessary breadth. This one is because the law moved based the limited, not holding up to long term scrutiny, view of equality of the day. The challenge showing some knew that at the time.

The opinion was in this respect a final peg of sorts in the acceptance of segregation, which was by then well established. It can be seen as a window of the times. The slow fight to true equality was yet to come and continues to this day. The lessons of both opinions can help us there.

 ---

* And, even Harlan agreed to some degree. The majority argued:

The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but, in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either.

The reader today might be confused -- "absolute equality" would seem to "abolish distinctions based upon color."  If you want to say that the text is not to be interpreted absolutely, fine, that's standard stuff. But, this seems a bit like doublespeak. And, blacks probably said: "unsatisfactory" to whom?

** Harlan notes that the law only applies to whites and blacks, so ironically a race  "so different from our own" -- the Chinese -- could intermingle with whites without risk of arrest. 

Harlan's prejudice is noted here, but he is also responding to then current policy.  And, one can refute him here by saying there simply weren't enough Chinese in Louisiana for it to be deemed problematic.  That only takes us so far though and the net result in practice is fairly arbitrary behavior such as line drawing where someone 1/8 black could be banned, depending on the choices of train conductors.

The Second Coming of the KKK (1920s)

"The Klannish spirit -- fearful, angry, gullible to sensationalist falsehood, in thrall to demagogic leaders and abusive language, hostile to science and intellectuals, committed to the dream that everyone can be a success in business if they only try -- lives on." Last sentence of the book; sounds familiar. The six main ideological components: racism, nativism, temperance, fraternalism, Christian evangelicalism and populism. Actually, the second Klan was run like a business (sort of a franchise) with modern advertising (and entertainment) a major component. Rot at top helped limit its reach. Familiar?

Ethnic Weekend (March 17-19)

St. Pats (Irish), St. JP (Irish/Italian mutts), St. Joseph's (Italian)

Film Quickies

Online reading leads me to various writings (enough!) and video. The Cats Of Mirikitani (good vignette) and Hiroshima mon amour (overall good with interesting DVD interviews but the flashback to me went on too long/laid on a tad thick) being two recent ones. My foreign film at a small theater pick this time was The Insult, which was good too, but a bit unbalanced (each being a victim/in the wrong adds much to the point) between the two main characters. The courtroom battle of small battle reflecting bigger ones has a familiar feel.

Tinker tinker: Nitrogen Gas

Some, including Justice Sotomayor in her Glossip dissent, have voiced the idea that the firing squad might be the best approach for executions. Now that lethal injection for various reasons is problematic, nitrogen gas is offered too. As noted in the article and comments there, this leaves something to be desired. But, maybe THIS method will be okay!

Yick Wo v. Hopkins

Their motives, considered as the moral inducements for their votes, will vary with the different members of the legislative body. The diverse character of such motives, and the impossibility of penetrating into the hearts of men and ascertaining the truth, precludes all such inquiries as impracticable and futile. And in the present case, even if the motives of the supervisors were as alleged, the ordinance would not be thereby changed from a legitimate police regulation, unless in its enforcement it is made to operate only against the class mentioned; and of this there is no pretense.

 -- SOON HING v. CROWLEY (1885)

This was a unanimous opinion written by Justice Field, who was the most suspicious of property regulations, only a year before the subject of this week's episode.  This case is of some importance both as a moment in time [the win was something of a positive in a sea of inequity] and for various principles that later had more bite, but one that many probably knows less about than most of the others in the two series. The two guests, including an Asian woman professor and Josh Blackman as the conservative leaning representative, provided a good discussion.

Class legislation, discriminating against some and favoring others, is prohibited, but legislation which, in carrying out a public purpose, is limited in its application if, within the sphere of its operation, it affects alike all persons similarly situated, is not within the amendment.

The Supreme Court unanimously held for Lee Yick ("Yick Wo" was the name of the business) and its language provides various interesting sentiments with potential broad reach if desired.  A basic problem is that there is not a neutral rule that is applied to all. The policy in place gives supervisors general power to allow or disallow use to wooden buildings, which invites and in practice was found to involve discriminatory treatment.  The Fourteenth Amendment protects "persons" against that, which includes aliens, especially Chinese ones protected under treaty.

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

The opinion, basically the one thing we remember Justice Matthews for (he did write Hurtado v. California, an important opinion regarding the Due Process Clause), reminds us that there are limits to government, "fundamental rights to life, liberty, and the pursuit of happiness, considered as individual possessions." The quoted passage later was significant in voting rights cases though even this one cited a state case that struck down a regulation deemed overly restrictive of voting rights.  The opinion did not do so, but the fact aliens (in fact those by federal law at one point not able to become citizens) are involved without recourse to voting might provide a greater grounds for court action.  See, the famous "Footnote Four."

The "Lochner Era" was not quite upon us but there was already starting to be a basic flaw -- regulations had to be "reasonable." This case was a well chosen one to show that this had to have at least some bite. The petitioners and two hundred others (Chinese subjects) were denied licenses while white owned laundries (eighty) were not.  Thus, even though the letter of the law was not discriminatory, it was applied with an "evil eye and an unequal hand."  The principle holds in other cases too including (to quote one of the guest's work) those treated like "alien citizens," that is, American citizens denied equal protection. 

It was suggested that this was really a property rights' case though we saw in the beginning that property regulations were given a broad breadth. Discrimination of Asians -- particularly immigration laws, this era one where the power was more and more found in the federal government -- was also generally upheld though there were exceptions. Wong Kim Ark protected birthright citizenship, even if the parents could not be naturalized under the laws in place.  A California case also at the very least provided a right to an education though soon it was of the segregated kind.

Such cases suggest that even if an era deemed today to have not honored personal rights provided certain limits. The Fourteenth Amendment still had some teeth.  Plus, the basic principles protected, that recognition of a certain floor, provided a germ for more. This case was specifically a race case but the ban on arbitrary class legislation was set forth more generally. The arbitrariness here was rather obvious but again the principle could hold for somewhat closer cases.  For instance, homosexuals can gain protection against open-ended power to regulate morals that in practice is done in an arbitrary way against certain groups. 

And, the importance of voting rights holds true, even if some "right to vote" is not expressly found in the federal Constitution. Thus, e.g., when being concerned with "liberty," limits on voting in particular would be of fundamental importance since it is necessary to protect rights in general. Nonetheless, there is some floor for "persons" even without the vote.

Trump's Second Pardon: Less Asshole, Still FOX News Fodder Trolling

The "pleased" comment here to me is near trolling though I respect the person overall. I discuss the case some in comments; basically military personnel got caught (apparently not for nefarious reasons) with classified photos via an abandoned phone and then tried to cover it up. Got a year (he has been out for months) and supervised release. Not exactly a rank injustice or something. Oh, allowed Trump et. al. to do Hillary trolling. Minor if notable Trump use of power that is getting the expected "kudos" from usual suspects.

Florida Passes Gun Regulation Law

The sweeping and bipartisan law is named after Marjory Stoneman Douglas High School in Parkland, Fla., where a former student, Nikolas Cruz, was charged with launching the massacre on Feb. 14. The law imposes new restrictions on firearm purchases and the possession of “bump stocks,” funds more school police officers and mental health services, broadens law enforcement’s power to seize weapons, and allows certain staff members to carry guns in schools.

Another school shooting has this time brought some sense of a movement from the kids (teens) themselves and Florida (Dave Barry is not alone in talking about how libertarian their gun policies are) actually did pass a significant package of gun regulations that should not be lost in other news. With talk of a possible meeting of Trump with the leader of North Korea (how about confirming a South Korean ambassador) and Stormy Daniels NDA news, there is obviously a lot to keep our attention elsewhere.

To add to the summary, the last link provides more details such as that potential gun purchasers "would have to wait three days, or until a background check is completed, whichever is longer" and a 21 year age limit for purchases.  The most controversial provision is likely the limited funding of a program that would voluntarily allow non-teachers (aka librarians, coaches and the like) to be armed.  The most unfortunate was probably the failure to improve the background process. Failure to ban high-capacity magazines or specific types of weapons (even for a short period of time) is probably sadly predictable.  This is Florida.

The NRA has already challenged the latter barrier and litigation also has been started pursuant to state age anti-discrimination laws regarding certain stores announcing a similar policy.  To the extent a state has a broad anti-discrimination provision explicitly based on age, seems like a slam dunk. As to the constitutional argument, I think it is fairly strong.  Eighteen has been the line drawn in a range of contexts, including the Eighth Amendment area regarding capital punishment and LWOP.  And, constitutional rights include a right to purchase. See, e.g., birth control.

This is likely to be a tricky matter.  The lower courts have (in part following Heller's lead) accepted a range of regulations, including bans on certain types of weapons, limits on carry outside the home and regulations involving sales.  Nonetheless, this is a broad ban on law-abiding adults. Voting before the amendment giving this group the right to vote was specifically addressed by the second section of the Fourteenth Amendment.  Was the line for marriage ever drawn at 21?  The federal government limits sales to this group only as to handguns, which given the result in Heller actually seems a bit dubious. A complete ban? Worse.

The law in place would still allow family members to give guns to minors and so forth.  I'm not sure how much "facilitation" is allowed here and can figure (see alcohol) there would be ways around it fairly easily with the help of willing adults.  Big picture, some would say (and some Florida legislators did) the true goal should be stopping the flows of certain types of guns overall.  Sen. Marco "can't believe you re-elected this schmuck" Rubio warned such a ban could be open-ended.  Others say "duh."

And, there is some evidence (a Washington Post article covered this, for example) that a federal ban of certain types of so-called "assault weapons" (terminology is a gotcha for certain "gunsplainers") did have some effect on mass shooting.  A glance at some Rand analysis shows that proof is hard to come by, which provides a recommendation to increase gun studies.  Sounds like ending the Dickey Amendment might make sense though there is this study for those who want to read something while we wait.  BTW, the Rand site includes an analysis of various policies and research that backs them up.  There is "moderate" evidence there.  This along with the fact it is a place for common ground leads me to find it a most promising area for public policy.

I honestly am not sure about the best solutions here though a few things like background checks, safety tools [child access prevention gets high marks on the Rand research analysis page], funding and concerns over stand your ground laws appear most convincing to me. As to the last, one writer, e.g., noted how stand your ground changes the basic sense of how we should interact with each other. I'm open to some doubt on bans of certain types of weapons but on a basic level why do we need them, including high-capacity magazines? A big problem here is there are so many of them.  There is simply no easy way to get rid of them. Finally, I want to know why there was an uptick on mass shootings.

A few other things also appear worth noting. First, a major source of deaths here are suicides.  This often doesn't get the same play as shooting a lot of schoolchildren (it is not surprising or wrong that killing kids and so forth get so much attention even if they are a statistically small number of overall deaths). There is some concern with singling out "the mentally ill" (only a small submit are dangerous; the term can cover a whole lot of people) when dealing with mass shootings, but this is a separate matter.

Second, a major issue is crime in general.  So, e.g., dealing with the drug problem very well might significantly decrease the number of gun deaths, including various tragic cases. One person cited a local policy that used various strategies to keep track of the small subset of the population more likely to be violent.  Domestic violence is one area as well that is specifically covered in current laws and providing special dangers in this area. Dealing with the issue as a whole can reduce gun violence specifically.

Finally, there is things specific to our culture that matters here, not limited to the fears and so forth that inhibit sound regulation.  Reading a recent book on the film High Noon (which also was about the blacklist) highlights the place violence has in our culture, including the role of the gun there. A limited number of people have the majority of the guns (beyond let's say owning a handgun or rifle, some have many of them) in part from fears of various types and other ideological reasons and so on. 

As with cigarettes, they is likely a need for a certain cultural change in mind-set here. We need to on some level glorify guns less and have a bipartisan understanding that some limits are acceptable. One person, e.g., obtained guns from his mother, who had some sort of armory in her home. The result was she was killed as well as a bunch of school children. It is basically immoral to have so many guns in a location where there is even a small chance of misuse.  No panaceas are available here, of course.

A Fantastic Woman (and film)

The NYT review of this is on point including: "Marina insists on her own dignity — her basic rights to respect, safety and the pursuit of pleasure — in the face of condescension, indifference and contempt." The lead [she basically carries the film though the man she loves shines in his limited playing time] deserved a nomination herself. Nice to see Angelika again.

And Also: Housing Works shop nearby. Library too but closed early with the snow muck. Also, really liked film but perhaps small demerit as to mostly one note supporting cast -- great movies tend to have multiple very good roles. Again, she mostly carried film.

Civil RIghts Cases

It is true that slavery cannot exist without law, any more than property in lands and goods can exist without law, and, therefore, the Thirteenth Amendment may be regarded as nullifying all State laws which establish or uphold slavery. But it has a reflex character also, establishing and decreeing universal civil and political freedom throughout the United States, and it is assumed that the power vested in Congress to enforce the article by appropriate legislation clothes Congress with power to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States, and, upon this assumption, it is claimed that this is sufficient authority for declaring by law that all persons shall have equal accommodations and privileges in all inns, public conveyances, and places of amusement, the argument being that the denial of such equal accommodations and privileges is, in itself, a subjection to a species of servitude within the meaning of the amendment.

This week's Landmark Cases episode concerns five cases that are generally labeled the "Civil Rights Cases," which held sections of the Civil Rights Act of 1875 unconstitutional as applied to public accommodations.*  The two guests were well spoken though did not seem particularly expert on the specific question.  A tweet of mine regarding wondering what would have happened if the case went the other way and then Congress (the law controversial from the beginning) overturned the law was cited on air.

One curious thing about these cases -- which to many seem badly decided** (though the Republican guest agreed with the majority) -- are basically good law.  The general idea that Congress does not have the power under the Fourteenth Amendment to regulate "private" action (even public businesses) is still good law -- e.g., U.S. v. Morrison.  The Supreme Court upheld using the Commerce Clause with a few justices agreeing with Justice Harlan's dissent and saying the Fourteenth Amendment should be used. The trick there though is that we would then need to know how much it is about "enforcement," which to some extent goes beyond what the amendment bars by its own force. So, e.g., Congress barred literary tests in various cases [and the Supreme Court upheld it] even after it was determined that literacy tests are not by unconstitutional in general. 

The majority here left open the Commerce Clause route, Congress only taking them up on it around eighty years later. Harlan noted that if there was a power to pass the regulation, why did it matter if Congress expressed it the wrong way?  This, however, is often the case -- the Supreme Court says a certain approach is wrong, but doesn't close off doing the same thing in a different way.  Anyway, I think Harlan has the better argument on the "public" nature, particularly transportation and inns, which historically had had to take all comers. The connection to interstate commerce is most apparent there. Would think there was room for compromise there, excepting places of amusement and maybe certain intrastate actions. As to places of amusements, Harlan argued:

My answer is that places of public amusement, within the meaning of the act of 1875, are such as are established and maintained under direct license of the law. The authority to establish and maintain them comes from the public. The colored race is a part of that public. The local government granting the license represents them as well as all other races within its jurisdiction.

The majority feared the congressional approach here would eat the rule, wondering where there was a limit if it went beyond mere "corrective legislation."  It was even willing to assume for sake of argument that there was a right to equally enjoy public accommodations. But, and Harlan correctly shows how artificial this formalism was, the law here covered discrimination not "sanctioned" by the state. In a couple weeks, we will see that the Supreme Court will allow that if it is "separate but equal."  And, the majority in particularly dubious passage was worried about blacks being a "special favorite of the laws" if "badges of slavery" was taken this far.  They did (see opening passage) give the Thirteenth Amendment something of a broad breadth:

Compulsory service of the slave for the benefit of the master, restraint of his movements except by the master's will, disability to hold property, to make contracts, to have a standing in court, to be a witness against a white person, and such like burdens and incapacities were the inseparable incidents of the institution. 

And, it even conceded that barring blacks from certain places might have been influenced by fear that it would allow slaves to sneak in too. But:

There were thousands of free colored people in this country before the abolition of slavery, enjoying all the essential rights of life, liberty and property the same as white citizens, yet no one at that time thought that it was any invasion of his personal status as a freeman because he was not admitted to all the privileges enjoyed by white citizens, or because he was subjected to discriminations in the enjoyment of accommodations in inns, public conveyances and places of amusement. Mere discriminations on account of race or color were not regarded as badges of slavery.

Laying things on a tad thick. What are these "essential" rights, even if we (rightly) deem Chief Justice Taney's "no right" rhetoric in Dred Scott exaggerated?  I think "some one" would deem there was said "invasion" and that such barriers were in a core fashion a result of slavery -- white and blacks were seen as in some special respect different, blacks so inferior that it was acceptable to allow many states to enslave them.  The separation of the races did not arise out of mere social distaste or something.  It grew from blacks being enslaved and this set up a range of different treatment. Regardless, the Fourteenth Amendment was in place to provide a wider source of power to protect civil rights.

Again, there has been some staying power here -- the Rehnquist and Roberts courts have multiple opinions cautioning us that the Reconstruction Amendments (the Thirteenth not getting much attention though some would argue for its open-ended use in a range of areas) should not be taken too far. This particularly involves the enforcement in areas outside of race where the Commerce Clause won't work [e.g., discrimination against the disabled when state workers are involved]  and even there -- Shelby v. Holder.  There has to be a "congruent and proportional" fit, it has to be true "corrective" (to cite the majority here) legislation against state wrongs.

It is also a bit ironic that John Harlan's grandson was in various was more conservative then he was. For instance, the "great dissenter" (both were in a fashion) also was an early supporter of incorporation of the Bill of Rights (even of the Grand Jury Clause, still not incorporated) while his grandson strongly was against that sort of thing. Harlan -- showing his Whig roots -- supported a broad discretion of federal power as long as it reasonably follow the "substance and spirit" of the text -- honoring McCulloch v. Maryland.  This led -- though he did honor property rights in various cases -- to write the main dissent in Lochner v. N.Y. as well, one that deserves a bit more notice beyond Holmes' more famous one.

Harlan counseled a consistency -- he noted how the Fugitive Slave Clause was protected by express congressional legislation, positive legislation that enforced what arguably could only be enforced by state action. It would be ironical not to equally allow Congress to give full expression to the Thirteenth and Fourteenth Amendments that in Harlan's opinion broadly assumes equal citizenship as to race. Harlan does not share the majority's fear of unlimited congressional legislation since at the very least the amendments protect racial equality. It is the basic of "republican" government and not mere "social" rights.

What I affirm is that no State, nor the officers of any State, nor any corporation or individual wielding power under State authority for the public benefit or the public convenience, can, consistently either with the freedom established by the fundamental law or with that equality of civil rights which now belongs to every citizen, discriminate against freemen or citizens in those rights because of their race, or because they once labored under the disabilities of slavery imposed upon them as a race.

His wife's memoirs was published some years ago with the help of Justice Ruth Bader Ginsburg.  One vignette involved her role to assure that her husband retained Chief Justice Taney's inkwell, which he planned to give to someone else.  He was apparently having writer's block while writing his dissent, but was inspired when he found the inkwell his wife left for him.  A cute story, but does reflect how Harlan in the dissent did see the whole story of slavery, including the true breadth of Congress' power to do away with all of its badges and bring forth true constitutional equality. 

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*  The act also protected service on juries, which the majority notes was deemed constitutional beforehand since juries are creatures of the state.

** This follows a general theme that the amendment was underenforced in the years after Reconstruction, including allowing segregation and not applying the Bill of Rights to the states.  But, maybe this should not surprise. Did not the Bill of Rights get similar treatment -- see, e.g., the Alien and Sedition Acts and how it so rarely arose in Supreme Court cases in the early years though examples can be cited especially in the states.

Band Aid: Good concept & film

Flipping thru the channels, saw this listed and then the lead actress (among other things!) referenced it during her appearance on Colbert. Free on demand; it was good, including her songs with a serious edge. BTW, a key moment was a big fight in the bedroom and she was topless. It was suitable for the scene; nudity sometimes is though so is male nudity!

ETA: I also read Gigi, Julie de Carneilhan, and Chance Acquaintances (my copy had all three) by Colette after Gigi was again on t.v. The first is like a condensed version of the musical and kinda a pleasant trifle told from various points of view. The middle is longer and in one p.o.v. and was tedious after a while. The last was something of a trifle and felt it could be half as long but it was pleasant enough (first person narrator based on author).

And More: Didn't watch the Oscars & not really into the stuff getting the most attention.