TV Quickies

Rules of Engagement has gone downhill (started out pleasant but not having that much margin for error) some recently, especially the writers dumbing Adam down even more. Conan seems to be in a good/comfortable groove, perhaps fitting better out of the spotlight.

FNL

I don't have Direct TV, so I have to wait for the final season, but did get the First Season DVD set to watch deleted scenes and such. Again, got to love Tami, Tyra and Matt [& Lance]! And, the show as a whole. [And, "Smash" in real life sounds like a "Brian."]

Packs Win It ... Time For Baseball!

Checked the score a few times. Packs up at Half, but Steelers score late to make it closer. Steelers claw back to within three. Packs don't ice it late. One last final drive, which is the norm this year, though not two weeks back. Don't get that far. Ends the right way. Cheers.

Science of Kissing

The author of this book also contributes to a science blog on the side panel. The small book is fairly interesting if leaving you wanting more information. A good introduction to the subject, but in no way comprehensive. Nice down to earth tone; author has science chops.

Go Packers!

Seriously, no brainer. Right minded people agree. They even are favored. No reason to even watch. And, Glee following? Really?

McDonald v. Chicago

After the Supreme Court decided that the Second Amendment protected an individual right to gun ownership (if in a case narrower than many might think, including its focus on use of them for individual self defense at home and leaving open various categories of allowable regulations), it was just a matter of time before it was applied to the states. This was so even though some noted various provisions of the Bill of Rights have not be applied to the states. Making it an individual right, not one a federalist concern, made it that much unlikely that the Second Amendment would join the diminishing number.

Other than never coming up Third Amendment, the only other provisions not "incorporated" were certain jury provisions. This basic left use of civil juries and grand juries within state discretion and allowed states to have non-unanimous juries / juries of less than twelve members. Only two states actually have the former. The only other provision, arguably, is the fines provision, but there is so much overlap there with due process and cruel and unusual punishments that is really is semantics. So, the ruling in McDonald v. Chicago was not surprising and Stevens' dissenting opinion noting states and the federal government are treated differently pursuant to the Bill of Rights not really convincing. The only place they really are is regarding juries.

The ruling ultimately only decided that the Second Amendment applied to the states, but since the regulation was another handgun ban at home in a heavily populated urban area, the ultimate result is self-evident. The argument was curious -- the Supreme Court, though it was under no obligation to do so, asked the petitioners to discuss the Privileges or Immunities Clause of the Fourteenth Amendment. It had no desire to actually deal with the matter though Thomas went his separate way on the point. It purposely asked someone to also brief them on the due process argument. Justice Alito's summary of his opinion can be found here along with Breyer's summary of his dissent.

The oral summary on decision day (text provided too) basically does justice to each opinion. Justice Breyer's dissent for three justices doesn't convince me, but along with Stevens more seminal dissent (fittingly written right before he retired), it is well reasoned and warrants my respect. The basic concern is that guns are different from the other rights since they threaten life by definition (not sometimes) and given the mixed history (one that is pro-regulation), a novel recognition of a general national constitutional right is unfounded. As with Stevens, if more so, he supports local discretion in the area. It is unclear if he would oppose a national law that too broadly set forth a "one size fits all" legislation in place. Heller, involving a D.C. ordinance, simply is not a typical Second Amendment concern.

Though I admit the issue as to regulation is somewhat close, however, applying basic Breyer approaches, I would find the nation does recognize a basic right to own firearms. As to the "non-discrimination" principle of the privileges or immunities of federal citizenship, I think this misses a key point. "Equal rights" assumes both rights and an equal application of them. And, gun ownership is one such right. It is only a minority viewpoint that it is not; the debate is over scope. Minorities, including those without money for security guards, are protected.

And, it does advance broad liberty principles. Stevens' separately admits as much when he notes that there is a real argument here (if not one that applies the whole amendment to the states) as to defense of the home. In other areas, such as abortion, local discretion is limited. And, if guns are less "private," they also protect privacy and bodily autonomy. The differences warrant "regulation" but so does the Fourth Amendment speaking of "reasonable" searches and seizures. It is unfortunate that some core agreement couldn't have been reached here. An acceptance of some right to gun ownership but a debate over the breadth.

I have covered this ground before, but this post is inspired by reading Stevens' long solo dissent in full. It is interesting reading. Again, I don't really find his sentiments about different approaches as to state and federal applications convincing. Other than juries, this simply was not done in respect to the Bill of Rights in recent times. Citing Justice Harlan is fine, but does this mean Stevens doesn't think the First Amendment should be applied the same way? I see no evidence of this fact. There is an argument to be made that the Second Amendment and/or guns in general (given their reach) can be treated differently. Fine. That's a separate argument and more convincing.

The opinion is ultimately a paean to a flexible application of substantive due process, which Scalia concurred separately to dismiss (he's stuck with it as precedent, but doesn't like it, so he applies it basically without much respect). Stevens cites evidence that substantive due process is clearly proper. He spells out the common law fashion of its application, including how past history is not the only determinant (Breyer agrees, thus his dissent didn't focus on 1868; again, I would have appreciated a Kennedy opinion, which is tempered originalism). And, Stevens actually suggests he would be willing to accept some form of a liberty interest to self-defense, including in some context that involved firearms.

It is impressive but the thumb he puts on the scales [the relevant section can be read to get a sense but the narrow acceptance of the self-defense component, cf. Thomas' concurrence, is not seen in other areas, including areas like abortion where others recognize the right but are open to more regulation than he] against the evidence for at least a limited right to own a firearm at home does hurt his case. But, each side has problems in that regard. And, I find the opinion more convincing on the point that his often abbreviated selective use of history in Heller. Still, when the Bill of Rights started to be applied to the states, fairly easy cases were handled first. The right for a heavy populated urban area to ban certain firearms being decided when the amendment is just being covered is akin to an obscenity case being decided in the 1920s before one involving political speech. I think it really is a close call on some level and an unfortunate way of starting out.

Meanwhile, interesting interview of Justice Black can be heard here.

Smooch

With shades of Kate & Leopold (nobility planning to marry for money but falling in love via unlikely events), this Hallmark confection was fun. The leads, especially the girl, make the movie. The end complication is over nice and fast. Nice serious overtones.

Fun at Health Law Senate Hearing

The newbie "excellent" addition brought up the dreaded broccoli mandate thing up in a hearing on the law.  Also, you can't just focus on the Commerce Clause, Senator.  The whole point of the Bill of Rights was to temper possible over the top application.

What If

GMC is my source of Sue Thomas and Doc reruns, not gospel music. Both shows, more so the latter (each show ends on a pretty evangelical note), have some religious overtones. So, it's not overly surprising that they are on the channel in the first place. Anyways, over the last month, What If has been heavily promoted on the channel. I finally watched it. Mixed bag, a sort of Family Man with more religious content (I didn't see the latter, but that's a common comparison), that is worthwhile.

I found two reviews and interestingly the one from a Christian publication was more critical. Concern for "moralistic therapeutic deism, rather than a sinner flinging himself on the mercy of a holy God" suggests some of the problem was a concern for the theme of the movie. Let me note that though the relationship to the Left Behind series (there is overlap of those involved behind the scenes) might scare people, the film is not of that caliber. It is Christian, but fairly mild. That might be part of the concern there.

As a bit of an outsider, I don't judge the film as harshly. The basics here is that a young man (Kevin Sorbo, best known as Hercules) leaves plans of a life in the ministry with his young love (Kristy Swanson, perhaps best known as the movie Buffy, though maybe not by the current generation) to succeed in business. Fifteen years passes and a successful deal underlines how far he has gone. After getting a note from his old love (perhaps hoping for a donation), he has a bit of a car accident, and the tow driver (yes, it is Cliff from Cheers) tells him he has been give a second chance to see how his life would have gone. He could return to his old life, but he has to seriously try this one first.

The ending is to be expected. But, this doesn't necessarily mean God gives you only two options -- his or the highway. The idea of God does suggest that God knows the best way for you and if you choose a different path, you will lose out some. The idea of "what if" is found in various "It's A Wonderful Life" scenarios. Fiction and sometimes fact gives us a way to find out how things would have gone differently if we had the chance to decide differently. Though it might not be the only way to go, it is not too strange to imagine a deity giving the right people a chance to see how that other way would have turned out.

The positive review notes that way to succeed with Christian programming is to make a product that is independently well made. Both reviews note that Sorbo and Ratzenberger (as the angel) are very good here. As the teenage daughter, Debby Ryan is good too, if not having much to do. She has a chance to be a bit more surly here than on her Disney show. The reviews are mixed on Kristy Swanson, but I agree with the positive review -- she has a rare chance here to have a meaty role and gives a very good dramatic performance of someone of deep faith. As one review says:

What If is really made by the performances. Kevin Sorbo and Kristy Swanson have never been given roles this meaty before, and they rise to the occasion. Sorbo, in particular, delivers one of the most sincere performances of the year. If all you know of him is his work on "Hercules," be prepared to see a whole other side to his talents. Swanson, meanwhile, deftly handles some intense emotional moments as Ben's confused wife, who can't figure out why her husband has abruptly lost the very values that made her fall in love with him in the first place. As the wisecracking angel Mike, John Ratzenberger manages to be very funny without hamming it up. He gives the character a kind of quiet confidence that can only come from knowing that one's boss is the Lord.

I think one of most powerful parts of the film is Wendy struggling with the strange actions of her husband, having faith in him but not blind faith -- she lets him know how hurt and disappointed she is, how if he doesn't shape up, they might have to rethink things. Ben's acceptance of his new life is a bit quick, a mixture of reading up on religious matters, seeing the joys of having a family and some inner transformation (or acceptance of what was inside all the time) that we mostly have to accept as a given. I didn't quite accept him counseling the dying man in the hospital as if he was actually a minister of long standing. It's a fairly powerful scene though.

The deck is clearly a bit stacked here. As the negative review notes, he seemed like a pretty good boss and all, so his old life was not really that bad, was it? A quick read suggests Family Man involved someone a bit more hedonistic than someone who concerns about getting a nice car. He was going to get married, if to someone who wasn't as religious. I assume they might have had kids at some point. The negative review seems to like the idea of a more "forward redemption" story. Like someone who repents instead of one who got a second choice to do the "right thing." But, there are more than one ways to do things. And, for him, maybe the alternative choice was his thing. It can be left to another medium to tell a story of someone who is a minister getting a chance for a different path in life!

To sum up, I liked many of the performances (the wife and angel being the best), various moments felt real and the overall film was enjoyable. The middle was a bit rushed and the overall concept had a few glitches. And, just how old are they in the final scenes? [In their mid-40s.] But, an overall thumbs up from this viewer.

Plain Writing Act of 2010 [Good Luck With That]

Via Grammar Girl [note 7], I learned about this attempt to make agency rulings easier to understand. It received broad support.

Rivera going will be the true end of an era

The fact that Justice Rutledge (Stevens' boss) gets basically no mention underlines the book isn't comprehensive, but its narrative tone makes it one of the better books on the Supreme Court for the general reader.  I think the Yanks will survive Pettite's retirement.

Scorpions: The Battles and Triumphs of FDR's Great Supreme Court Justices

This review is overall fair: a good read but not the place to get a comprehensive look at the subject matter. Still worthwhile. Meanwhile, Being Erica was a mixed bag this week, the family stuff welcome. Sorta normal there with a few ffs helpful.

Congressional Findings on the Coverage Requirement

In the The Patient Protection and Affordable Care Act (sic), we read:

SEC. 1501. REQUIREMENT TO MAINTAIN MINIMUM ESSENTIAL COVERAGE.

(a) FINDINGS.—Congress makes the following findings:

(1) IN GENERAL.—The individual responsibility requirement provided for in this section (in this subsection referred to as the ‘‘requirement’’) is commercial and economic in nature, and substantially affects interstate commerce, as a result of the effects described in paragraph (2)

(2) EFFECTS ON THE NATIONAL ECONOMY AND INTERSTATE COMMERCE.—The effects described in this paragraph are the following:

(A) The requirement regulates activity that is commercial and economic in nature: economic and financial decisions about how and when health care is paid for, and when health insurance is purchased.

(B) Health insurance and health care services are a significant part of the national economy. National health spending is projected to increase from $2,500,000,000,000, or 17.6 percent of the economy, in 2009 to $4,700,000,000,000 in 2019. Private health insurance spending is projected to be $854,000,000,000 in 2009, and pays for medical supplies, drugs, and equipment that are shipped in interstate commerce. Since most health insurance is sold by national or regional health insurance companies, health insurance is sold in interstate commerce and claims payments flow through interstate commerce.

(C) The requirement, together with the other provisions of this Act, will add millions of new consumers to the health insurance market, increasing the supply of, and demand for, health care services. According to the Congressional Budget Office, the requirement will increase the number and share of Americans who are insured.

(D) The requirement achieves near-universal coverage by building upon and strengthening the private employer based health insurance system, which covers 176,000,000 Americans nationwide. In Massachusetts, a similar requirement has strengthened private employer-based coverage: despite the economic downturn, the number of workers offered employer-based coverage has actually increased.

(E) Half of all personal bankruptcies are caused in part by medical expenses. By significantly increasing health insurance coverage, the requirement, together with the other provisions of this Act, will improve financial security for families.

(F) Under the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1001 et seq.), the Public Health Service Act (42 U.S.C. 201 et seq.), and this Act, the Federal Government has a significant role in regulating health insurance which is in interstate commerce.

(G) Under sections 2704 and 2705 of the Public Health Service Act (as added by section 1201 of this Act), if there were no requirement, many individuals would wait to purchase health insurance until they needed care. By significantly increasing health insurance coverage, the requirement, together with the other provisions of this Act, will minimize this adverse selection and broaden the health insurance risk pool to include healthy individuals, which will lower health insurance premiums. The requirement is essential to creating effective health insurance markets in which improved health insurance products that are guaranteed issue and do not exclude coverage of preexisting conditions can be sold.

(H) Administrative costs for private health insurance, which were $90,000,000,000 in 2006, are 26 to 30 percent of premiums in the current individual and small group markets. By significantly increasing health insurance coverage and the size of purchasing pools, which will increase economies of scale, the requirement, together with the other provisions of this Act, will significantly reduce administrative costs and lower health insurance premiums. The requirement is essential to creating effective health insurance markets that do not require underwriting and eliminate its associated administrative costs.

(3) SUPREME COURT RULING.—In United States v. South-Eastern Underwriters Association [1944] that insurance is interstate commerce subject to Federal regulation.

President Ronald Reagan’s former Solicitor General — Harvard Law Professor Charles Fried is "quite sure" that the regulation of interstate commerce here is constitutionally proper, citing precedent back to the early 19th Century. The above suggests why. The findings in fact cite a possible third enumerated power beyond commerce and taxation with the reference to bankruptcies.

There is some opposition to being forced to buy insurance. If this is what occurs here, it has been deemed proper to regulate interstate commerce by "penalizing" (if taxation doesn't work for you) those who don't enter the market. What works with wheat works with insurance, thus this works with the necessary substitutions: "forcing some farmers into the market to buy what they could provide for themselves" was accepted in 1942, even if only to benefit the market as a whole. The same applies to purchase of health insurance. If allowed, the "the wisdom, workability, or fairness, of the plan of regulation" is left to the legislature.

It is noted that the findings speak of "activity." It is said that not buying insurance is "inactivity." But, "activity" is still being regulated here, even if the overall scheme is advanced by regulating some inactivity in the process. Thus, a boycott (not buying ... inactivity?) is regulated since it is part of an overall scheme to affect sales (activity). Regulations often pull in those who are not immediately benefited, such as a requirement to buy a device that is only useful when there is a fire. The damage from the fire might never come, but if it did, the small outlay for all beforehand prevents major damage for a few who very well might not afford it. This damage, e.g. by bankruptcy, affects society at large. A 'one size fits all' rule is a valid approach.

It is unclear what "inactivity" means, however, since those who don't purchase insurance don't only do that. They do other "activities," including using the money they saved and using other means of maintaining health. The findings as a whole also provide a justification for the scheme that is a closer fit and easier to execute than requiring people to eat broccoli or to exercise in a certain way. But, not to worry, such parade of horribles will be raised, akin to the fact that the war power can always mean we will invade Canada.

Hey, we did it a couple times before, right?

The Pay For Certain Sectarian Religious Beliefs Pro-Incest Bill

Attempts to make permanent the unconstitutional Hyde Amendment add insult to injury by only covering "forcible" rape [fixed?], incest of those under eighteen and limiting the already overly narrow health exception. And, tax breaks for only those of a certain faith.

A Bit More

Balkinization has a various opinions strongly rejecting the "Tea Party" opinion striking down the health care law root and branch. Tim Jost dismantles the opinion as well. Jack Balkin, who has does yeoman work defending the law is a tad pissed, showing Sandy Levinson type passion:

The notion that being asked to either buy health insurance and make health care accessible for one's fellow citizens--or to pay a small tax-- is a form of tyranny akin to George III's regime is simply bizarre: it shows how perverted and twisted public discourse has become in the United States. The assault on the individual mandate is really an assault on the public duty to assist other Americans in need, and in particular, an assault on the legal obligation to pay taxes to contribute to the general welfare. The assault on the health care bill is not a defense of liberty. It is a defense of selfishness.

I concur. The annoying thing here is not only the johnny come lately selective arguments but the idea that this is some major threat to liberty, when it in fact is just the opposite. One final thing, since others have covered this ground in depth as seen by the links thus far, an abortion ruling is cited to help show there is some need to strike down the legislation in full. The opinion, as is the norm, really goes the other way. This includes the general principle that courts should "enjoin only the unconstitutional applications of a statute while leaving other applications in force." But. as Orin Kerr notes, acting like an inferior court judge was something treated as a "now and then" sort of thing here.

A word on the other ruling cited today. The judge argues that a narrower anti-fraud law might be legitimate. The concern appears to be that it isn't content neutral. Again, this doesn't seem to be the rule in place for abortion providers. And, there was clear evidence that a special problem was involved that had to be addressed. So, I'm still very hazy on why this law is illegitimate, even though I'm quite supportive of a strong view of the First Amendment. Eugene Volokh, no wanker in that department, ended up agnostic. Note his telling (see my comment) update.

Anti-Fraud Law Struck Down

A lower court struck down a requirement for a "pregnancy counseling center" to disclose that this doesn't include abortion information. As I noted here, I disagree. And, such selective (cf. abortion clinics' need to disclose alternatives) invitation for fraud is a real problem.

Lower Court Rulings: Tea Party Edition

Yes, this is but a district court ruling, but darn is it dumb.

Pro Bowl / Mushrooms

Saw a few minutes of the Pro Bowl after the NFC went up by a lot, the end result about the same as the last game that mattered. Sorta. Bland sometimes, mushrooms are quite tasty if done right.

TV Quickies

One of the best drama series in TV history ends on Feb. 9, so even though it has the ratings of a 3 a.m. "Nanny" rerun, let's give "Friday Night Lights" a final round of applause.

I enjoy both.  LGM posts a good interview of Assange; I don't watch 60 Minutes but appreciate flags to take notice of something they do. 

Crime: Stories

Is it reading time? This is another good book (and translation): a collection of short stories by a German defense attorney.

Happy Birthday Sis! (More Today Than Oprah!)

At The Dark End of the Street

A very good different perspective on well trod ground, Rosa Parks but one heroine in a long road to respect and dignity.

Justice Sotomayor Q&A

She joined many others over the years in the Landon Lecture Series, answering questions in lieu of a speech.  She is quite personable and comes off well.  I appreciated her comments on affirmative action and how educating the public is an important part of her job.

Sports Quickie (Go Packs!)

Gil Meche is getting some appropriate kudos for turning down millions to get paid for basically being on the DL.  For some, every last cent is not all that matters. This article on the Packers' atypical financial scheme is another reason for my favorite for the Super Bowl.

Being Erica

Not living in Canada, I had to wait until yesterday to see the latest season of this show, including the answer to the cliffhanger -- what is through that door? Answer: not too much.  Decent episode but "group" is a bit annoying. As to the planned American remake, tad redundant.

Fugitive Justice: Runaways, Rescuers, and Slavery on Trial

A page turning book centering on three 1850s trials with enough background to put things in perspective.  Best for the human stories.

Since Mild Reform Is Too Scary

Sen. Udall's mild filibuster reform fails.

Let's Focus On Real Issues

And Also: This underlines that Citizens United, which promotes disclosure and disclaimer laws while leaving the issue of foreign corporations open, is not the only thing to blame. More from me here.

[The below is in response to an article by William Saletan, whose "alternative" pro-choice columns over at Slate get some well deserved grief from various sources.  This one is a reply to an disreputable abortion doctor in the news, leading to the usual focus on extremes.  I think LGM replies well here too, one of a few recent posts on the topic. Here's a bit from me.]

But we'll still be left with some women who, for no medical reason, have run out the clock, even to the point of viability. Should their abortion requests be granted anyway? I've answered your questions. Now it's your turn to answer mine.

Viability was used as the line as a type of compromise -- there is no perfect line and constitutional line drawing rarely is absolutist, though some think it should be. If that's the law in PA, it's the law and should be followed. The Supreme Court allows a second physician requirement to be used to care about the viable fetus' needs. Planned Parenthood v. Ashcroft.

But, let's remember what is at stake here. "Some women." Saletan notes that >1.5% of all abortions involve viable fetuses,and this includes some borderline cases where survival is unlikely. Some subset of these involve threats to the woman's health/life or severely disabled fetuses. "Late term" also means different things; "partial birth abortions" are sometimes said to be "late" abortions, even though a significant number occur before viability.

So, we are talking a fraction of a percent left over. Citing data on "second trimester" abortions [which can be 10 weeks earlier] are only of limited value in determining numbers here. Also, he cites a doctor who said the "health" threat was exaggerated. But, what does "health" mean? The Supreme Court defined the term broadly in a ruling before Roe v. Wade to avoid vagueness problems. I don't know how the physician defined it but think it reasonable to assume his definition is arguably too narrow.* And, who decides if it is? If you can't trust a woman and her doctor?
One blog replied to the piece thusly:

We’re debating the rights of some group of theoretical women who want to have post-viability abortions, and who have no medical reason to do so, and who were perfectly able to access abortion earlier in their pregnancies. Why? Seriously, why are we doing that? There are not significant numbers of these women. Abortions after 24 weeks are already highly restricted, and can’t just be done on a whim. This is not really a significant point in the abortion debates, theoretically or realistically. What does impact thousands and thousands of women is the fact that abortions are hard to get because anti-choicers have erected a bunch of barriers, using many of the same arguments that Saletan focuses on in this piece; the fact that even birth control and decent sex education isn’t the easiest to come by in the United States because of those same anti-choice activists who aren’t just against abortion but who oppose anything that helps to give women control over their own bodies and lives; and the fact that abortion is demonized as evil or selfish murderous instead of taken for what it is: A fairly common part of women’s reproductive experiences.

Why is this question being raised? Theoretical questions are tossed out all the time on this and other issues, while they don't actually apply to nearly all the matters at hand. When safe abortions [cf. this very case] are provided without threats even to first trimester abortions, when the question of non-health related third trimester abortions is actually the issue at hand, come back to me.

I might say even then that the line drawing is so hard that we should trust the women and her doctor to determine the question, but realize absolutism isn't the likely result. I will say that the Roe guideline works for me. But, rarely, do we have the liberty to worry about making the call.

[Update: A look at the Grand Jury report of the acts that led to the question being raised reaffirms all of this. All that is charged makes the illegal late term abortions an also ran, especially given the "need" for said abortions seemed not be a concern, even though a credible doctor would take that into consideration before performing such dangerous procedures.]

---

* Doe v. Bolton noted:

We agree with the District Court, 319 F.Supp. at 1058, that the medical judgment may be exercised in the light of all factors --physical, emotional, psychological, familial, and the woman's age -- relevant to the wellbeing of the patient. All these factors may relate to health. This allows the attending physician the room he needs to make his best medical judgment. And it is room that operates for the benefit, not the disadvantage, of the pregnant woman.

I'm not sure, especially given that post-viable abortions are riskier than childbirth, just what abortions that occur at this stage do not meet that test. I have a thought that the doctor cited by Saletan defined "health" in a different way. But, who knows. Are we to make violators of vague guidelines criminals?

Roe Turns 28

As abortion rights continue to be complicated (and threatened), another anniversary passed by with little note. Still, see here (last link there too) for some discussion from yours truly on Roe v. Wade. [Update: Some gender equality was secured at the Court today.]

Go Packers!

I don't want to see the Loser Bowl (for those who won't play the next week) and lost my taste for the "Packers v. Oh Yay Them Again" Bowl.

[expletive deleted]

Packers Win (21-14)

But, they didn't make it easy for themselves, even after the Chicago was left with their 3rd stringer, who made it a nailbiter by the end. D, punting and their QB saving a TD after his own turnover were key.

J-E-T-S

I started being into sports in the mid-90s, so the start of things might be the NYJ being up 10-0 at the Half in '99, the QB getting hurt at the start of the next season and work from there. Others have much longer memories. Let's see how we feel later. (Go Packs too.)

Love On A Dime

A bit more on this historical Christian romance novel referenced last time. The book concerns a young Christian woman, daughter of a banker, who secretly rights romance dime novels at the turn of the twentieth century. The novels have uplifting Christian messages, serving as her means to promote God's word and helping fund a missionary agency she serves to help poor immigrants, but still not the sort of thing proper for high society.

Thus, a threat by a gossip column to reveal her true identity scares her as much as her publisher (who is also her former flame, leaving her a few years back when he heard her parents discussing her he was not successful enough for her) wanting her to expose herself to promote her brand to help his struggling business. The former flame comes back into her life once he becomes successful enough to perhaps win her back. But, someone else has caught her eye, a well off sort that in various ways could help her situation, including the well being of her ne-er-do-well brother. On the other hand, he is a bit of a drip, not very Christian and not supportive of her independence and more reclusive ways. Her old flame, on the other hand, is more Christian, someone she has passion for and your typical romantic hero.

Prime romance novel material. One major device in the book is delayed gratification. You obviously know how the book will end up, basically, but things are dragged out pretty long. This includes the author obviously having deep feelings for the publisher/former love but not trusting him enough to tell him she is the novelist, assuming someone she deep down knows is her true love can't be trusted with such information. At some point, and remember she is in her mid-twenties by now, she comes off as a ninny. This is standard "stupid plot" tactics found in many movies. Some misunderstanding or whatever is needed to delay the inevitable conclusion, including everyone realizing the right things.

I did like the main characters overall (as usual, a supporting character, her friend, is at times more interesting than the main character) but at some point did get tired of this device. After all, much is spoken about trusting in the Lord and all, and the right path is pretty clear. This includes trusting that writing in a way to promote God's message (and romance novels do seem to promote a certain morality, so that would be a logical route) will ultimately be understood by her family. As to the setting, we get more of a sense of the upper class set than the time exactly, though do learn the names of various types of carriages. I do think the book does a decent job transporting us into a different time and place.

So, I liked the book as light reading, and some of tad heavy-handed dialogue and such worked both as amusing and serious heart-felt drama, but would have liked it more if it cut to the chase a bit more quickly. Like many movies, it doesn't quite have enough material to properly fill up its running time. And, dragging things out diminishes a strong female lead. The moral focus of the book might turn off people who aren't into Christian literature, but it is really just a language used to address what non-religious literature could handle just somewhat differently. Many romances boil down to proper life choices and personal happiness.

Overall, not a bad free Kindle book.

TV and Other Thoughts

I with TPM and am a tad bit shocked when I heard that apparently out of the blue that Keith Olbermann just had his last show. Really? Is that how it works? You have long and successful show, then you suddenly don't? Seems a tad arbitrary and unfair that fans did not get more of a warning. And, though I think he is a bit of a blowhard, I will miss his voice. Plus, the Young Turks or Chris Hayes would make a better replacement than an uber insider like O'Donnell.

A Christian friendly channel (shades of PAX) airs two shows that are among my current syndication favs -- Doc and Sue Thomas FB Eye, the latter having a theme song that is currently stuck in my mind. And, guess what: an actor on the program later was on a show involving a 1890s detective that is currently on my viewing list. Never-ending, as I said recently. Anyway, a quick nod to Love On A Dime, a Christian historical romance taking place about the same time that I was able to download for free on Kindle. I actually am enjoying it though at times it is pretty over the top to the degree that it also works as a sort of parody at times.

Doc recently had a subplot that I knew was a must see -- the adopted (foster?) son of a character had to do a school paper on whether 'under God' should be in the Pledge. After doing a slipshod effort, his teacher told him to do a better job, checking out both points of view. Well, he did a better job, but still only gave the 'pro' side. This bothered his teacher in particular because of a crisis of faith he had as his brother died. It is useful to note that "Doc" is a Christian of an evangelistic bent, though the show as a whole doesn't dwell on it, except that his final emails to his mentor tend to have such a focus.

A bit in bad form to bring that up to your young student, but still, he should have actually covered both sides of the issue. This is so even if you think God exists and that the First Amendment is not violated by the phrase being there. What about Render Unto Caesar and all that? The suggestion at one point that the First Amendment was written the way it was to uphold Judeo-Christian values was really a bit much. What about Muslims? We are talking a NYC located show and are a few here, you know. Seventh Heaven, which I also liked, also stacked the deck like that.

Religion and faith is a big part of many people's lives and it is appreciated when programs recognize the fact. But, I think there can be some sort of middle ground here. The teacher came off biased, and he was in the sense that he shouldn't have expressed his religious views to a twelve year old student (I guess he is about that age) as strongly as he did. Still, the teacher was right to be upset that he only gave one side of the story, and should not faith be made only stronger by respectfully facing up to the alternative, but not losing faith in the end?

Meanwhile, sneering at true believers on the other side is pretty counterproductive in my book. I seemed to have gained a bit of respect from someone whose views are quite different from mind there. It upsets me when the other side doesn't seem to be listening. Just talking past me. It isn't really that pleasant even when I see it among people whose views I support.

Meanwhile In Actual NY Team News

The NYJ play in NJ. Meanwhile, NYC baseball teams make some moves. Andruw Jones [flashbacks to 1996] and Willie Harris [great catch, Mets lose!] now play for NY teams. The Yanks managed to make one overpriced major signing. And, the Mets continue to find various injured and scrub players. Fans dream of .500 for '11.

Supreme Court Watch: Win/Lose Edition

NASA v. Nelson is a typical win/lose ruling -- it narrowly decides the question at hand without being a big loss for either side. Yesterday, it was an oral argument that deals with the state secrecy doctrine.

The mega issue at stake in the first case is informational privacy. As noted by the ruling (see also, here), there are some references to such a constitutional liberty but the matter was never dealt with too carefully. The government employee background check involved here would not be a good place either, particularly since the government doesn't deny some sort of right exists. So, the right was assumed but a suitable government interest showed it was not an invalid violation. Justice Alito, who referenced a concern of government seeking too much private information last term, wrote the opinion.*

I can see how the matter could be problematic in certain cases but this appears to be the best way of doing things, especially since -- as the opinion notes -- the questions here are in some sense beneficial to the employees. This does not deny that there is a right to informational privacy, both as a basic substantive liberty interest [if you have a liberty over marital affairs, e.g., this includes some protection of the information there] and growing out (see Alito) of other rights such as freedom of association or Fourth Amendment concerns (e.g., "papers" include privacy over intimate diaries and such). Such a case is probably out there, but particularly with this Court, judicial minimalist opinions to deal with cases like this (which do reach many people given the number of government employees even in this agency) are appreciated in a fashion as well.

I'm less gung ho about a state secrecy case up for oral argument yesterday. As noted here and elsewhere, the Supreme Court didn't seem to have much concern about challenging the underlining corrupt premise that allows the U.S. government to avoid relief in civil cases via an overly broad state secrecy doctrine. As shown in this extraordinary rendition case, state secrecy can promote injustice both before, during and after the fact. In the midst of the Cold War, three hard-nosed FDR appointees agreed with a lower court judge who took a different approach. As I quoted in the link above:

One of the principal checks is furnished by the independent judiciary which the Constitution established. Neither the executive nor the legislative branch of the Government may constitutionally encroach upon the field which the Constitution has reserved for the judiciary by transferring to itself the power to decide justiciable questions which arise in cases or controversies submitted to the judicial branch for decision.

The justices themselves yesterday flagged the "heads I win, tails you lose" strategy of the government (the Obama Administration supporting the practice), but a "greedy" governmental contracting company is not likely to be a promising case for the Supreme Court to do much. As Scalia noted, more likely they will use it to say "go away." No big deal for this group, but more so when torture victims and others are trying to obtain a semblance of justice.

Judicial minimalism, especially of the sort that leans in a certain ideological direction, is a matter of winning some, losing some. The Roberts Court will be a repeated game of getting what you can and avoiding losing as well.

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* During oral argument, Justice Sotomayor raised some concern about the limits of how much information the government could seek out while the question of what information they can share also arose. But, the Obama Administration did not wish to deal with the issue, a limiting of the scope that with which Justice Ginsburg was quite on board. Interestingly, Ginsburg concurred briefly in two right to counsel cases today, narrowly joining unanimous rulings against the defense.

Scalia/Thomas wrote separately today to argue that they don't think informational privacy is protected by the Constitution, Scalia annoyed Nelson didn't cite a clause even though the government never denied it existed. Why citing precedent and the like isn't enough is therefore too upsetting is somewhat unclear. And, see here, any truth to his "fake" minimalist point is belied by how selectively he cares about it in practice.

Good Behavior / Judicial Competency

The 25th Amendment (and Art. II) handles presidential vacancies (up to a point) but what about the other two branches? Congress is dealt with here and federal judges here. As to the former, I put some of my .02 there. But, suffice to say, single members are not really a big problem, while major destruction is a mega-issue that can be dealt now too.* But, it is not surprising if people will worry about it when it comes. Below is what I said in response to the judicial incompetency issue.

The want of a provision for removing the judges on account of inability has been a subject of complaint. But all considerate men will be sensible that such a provision would either not be practiced upon or would be more liable to abuse than calculated to answer any good purpose. The mensuration of the faculties of the mind has, I believe, no place in the catalogue of known arts. An attempt to fix the boundary between the regions of ability and inability, would much oftener give scope to personal and party attachments and enmities than advance the interests of justice or the public good. The result, except in the case of insanity, must for the most part be arbitrary; and insanity, without any formal or express provision, may be safely pronounced to be a virtual disqualification.

-- Federalist No. 79

The last sentence notwithstanding, when Judge John Pickering showed signs of insanity, that wasn't the reason he was impeached in the first case of removal of a federal judge by that route. He was cited for wrongdoing. The "good behavior" tenure of judges from there forward was not treated as an additional means to impeach, the criminal laden criteria [treason, bribery, high crimes and misdemeanors] used in each case up to a judge who was removed just last year.

Some experts have suggested that it does provide an additional route, perhaps to deal with the incompetency of judges, a problem that as shown by John Pickering was around from basically the beginning. A few justices, for instance, hung on long past they appeared able to properly carry out their judicial functions, especially in the days before nice retirement packages. Particularly in the days where justices also played a major role in circuit courts (which for some was a major drain on their health), this caused major difficulties.

The issue of dealing with physically or mentally incompetent judges was recognized as a possible issue but there was a fear that any mechanism to handle it would be abused. But, as Hamilton's citation of insanity, is this fully true? Art. II provides -- long before the 25th Amendment -- the authority for Congress to pass legislation to deal with the inability of a President to carry out executive functions. A similar power is not in Art. III. but the "good behavior" provision seems to me the only way to deal with the insanity exception of Hamilton, since being insane doesn't seem to me a high crime or misdemeanor.

Congress set up a procedure to have appellate courts self-regulate, including giving them power to keep certain judges from trying cases (at least temporarily). A requirement for all judges to have periodic medical exams seems a valid one as well. This seems to me as important as the ethical rules judges have a responsibility to follow. Even if we allow self-regulation to handle Supreme Court justices, since the institution was able to handle one or two justices who hung on perhaps too long, the issue of health will be a concern for the hundreds of lower court judges as life spans and means to expand them continue into the 21st Century.

"Good behavior" should include some minimum ability to serve. This includes some responsibility concerning physical and mental health. If a judge is unable to do so voluntarily, some mechanism should be in place to deal with the situation.

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* As I noted, the true concern would come when there isn't a quorum to do business. If there is, each house can do business. If not, what immediate issue would have to be done that is not addressed by current law and executive emergency powers? And, in case of a disaster, quickie elections can be set up, state laws changed if necessary. Previous emergency rules would make sense, but if hundreds of members of Congress died or were unable to serve for any extended period of time, the resulting national trauma will be obvious even if it is in place.

Harry's Law

Okay, so the Supreme Court justice retires to do justice show tanked. Will Kathy Bates' patent lawyer turned street lawyer do better? I'm on her side, but the first episode was pretty bad with Bates herself looking a bit dazed. Preachy is okay, but not amateur hour style.

[Click Photo For Story]

Gun Cultural Messages

And Also: As we honor MLK's memory today, note how different sides pervert his message. Obama's peace prize is a no-brainer on that level. A bit more accurate.

One thing I might do in 2011 is try to obtain a good balance of dealing with the ever more options for reading and watching [and listening!] that are out there online and elsewhere. An example.

Via an interview on Rachel Maddow, I borrowed a history book, which referenced a somewhat satirical 18th Century novel, which online was flagged for a surprisingly balanced contrast of Christians and Muslims. Benjamin Franklin did something a bit similar by using the imprisonment and slavery of whites by the group later deemed the "Barbary Pirates" to turn the tables on those who say black slavery is good to promote Christianity and the well being of the slaves. Via a gift card, I purchased said book on Amazon for at a used rate [another blog led me to a Kindle purchase] and thought the particular scene strong, but the overall style a bit hard to enjoy.

It's like a commercial that used to be one where a world was imagined where you could access libraries worth of movies and books (I suppose) whenever you wished. We seem to be half-way there. Anyways, two things. It's something that I will have to control a bit this year. And, two, here's a bit on another matter that I heard about via a blog and downloaded on to my Kindle. It is an article on gun control that had a realistic take on how society as a whole (even experts) process the issue, including data, and how this should influence moderate policy solutions. It is pre-Heller, but one example is the suggestion that a recognition of an individual right to own a gun would be balanced with gun registration [a bugaboo of some NRA types]. Or, gun registration and/or licensing would be joined with voting and jury service, showing gun owners that they are respected. Respect being an important issue here:

Their prominent (and in many respects fabled) role in American history imbues guns with a surfeit of social meanings. For one segment of American society, guns symbolize honor, human mastery over nature, and individual self-sufficiency. By opposing gun control, individuals affirm the value of these meanings and the vision of the good society that they construct. For another segment of American society, however, guns connote something else: the perpetuation of illicit social hierarchies, the elevation of force over reason, and the expression of collective indifference to the well-being of strangers. These individuals instinctively support gun control as a means of repudiating these significations and of promoting an alternative vision of the good society that features equality, social solidarity, and civilized nonagression.

These competing cultural visions, we will argue, are what drive the gun control debate. They are what dispose individuals to accept certain empirically grounded public-safety arguments and to reject others. Indeed, the meanings that guns and gun control express are sufficient to justify most individuals’ positions on gun control independently of their beliefs about guns and safety.

Each vision will process constitutional text and history etc. or gun violence etc. in different ways. So, it is important to understand and respect both sides when handling the situation. One good look at this from a teenage perspective is Gunstories: Life-Changing Experiences with Guns. The book has some great photos and examines the many sides of the issue, from hunting to target shooting to those harmed by urban violence, male/female, pro and con.

Well, I need to get back to my Kindle -- I downloaded a free historical romance. Yeah, they have stuff like that. And, while reading reviews of the author's follow-up book, I found a website where they send you free books if you review it online. I would supply a link, but don't want to spread the overload virus!

Steelers Favored By Three? Oh well.

Fifty minutes before the game, a pumped-up Brady ran onto the field, jumping and clapping as he headed for the end where a couple of Jets were tossing the ball. It was the closest he would come to their end zone for nearly three quarters.

#1s Choke, Go #6s!

The Packers didn't have to punt.  The Bears calmly gave up 24 garbage time points.  And, Rex backed up his bluster.  The Falcons and Pats looked pretty bad at times, the latter at times rather surprisingly so.  Seattle ended pretty well for a 8-10 team. 

Ravens Choke

Up 14, the Ravens decided to give the game away, down to the 3 and very long they gave up to help ensure that the new OT rules did not kick into place yet.  A majority of the points came off turnovers and sloppiness. Ravens had a chance at the end but ended with whimper.

One More Thing To Listen To

Nice to see Marc Maron, who I first heard about on Air America, is getting some press. Yes, you can download SC arguments to Kindle.

Few Thoughts on Mental Health

The concern that permissiveness has contributed to the recent mass homicide comes from various directions, including those that point to the gun [particularly the thirty shot clip] and the person who shot it, while some point to outside influences such as violence tinged discourse. This post will touch upon the subject of this article, namely, his mental health status.

Mental illness is personal for Gov. Brewer, including mental illness mixed (as it usually is not) with violence against others. It is more likely that they will fall between the cracks as a member of a troubled class in our society, one of limited resources and conflicting concerns. Like other weak members of the pack, they are more vulnerable to the problems and pratfalls of society that others are more able to handle. This includes violent discourse that many will see as strong metaphor and expression of discontent, but some will take more literally. The fact that we don't know that this specific instance was not "caused" in some fashion by such discourse does not mean we are wrong to use it to flag a concern. Mishandling fire will cause burns.

Were there moments when he could have received help that might have prevented this tragedy? Who knows -- the whole matter, as with all preventive mechanisms -- often is a matter of statistics that is not clear in individual cases. Jared Lee Loughner puts a face on those statistics like those who were his victims and those who helped prevent things to be worse put a face on the positive side of the events. We need such faces to have a more personal feel for what is occurring. The intern who helped save Rep. Giffords life therefore is essential to re-enforce lessons on what true heroism looks like, to teach us how to act in such situations.

There are also those who think our society is too permissive and that this might have worsened the situation. This is normal -- events like these lead us to forget that liberty and safety is not cost-free. Less civil liberties have costs too. Consider a 1970s ruling, an unanimous one (not just the liberals):

He was kept in custody there against his will for nearly 15 years. The petitioner, Dr. J. B. O'Connor, was the hospital's superintendent during most of this period.

Throughout his confinement, Donaldson repeatedly, but unsuccessfully, demanded his release, claiming that he was dangerous to no one, that he was not mentally ill, and that, at any rate, the hospital was not providing treatment for his supposed illness.

The specter of Soviet Russia using psychiatric institutions to serve as a place for political prisoners, that not too long ago being gay was deemed a psychiatric illness and that most who are mentally ill are not dangerous to others, all comes to mind. This also requires special care to deal with those who need assistance, including spending funds that are often deemed an easy place to cut in the midst of budget shortfalls or cries that taxes are too high. This is true even when in the long run, like many investments, the funding is cost effective in the long haul.

Finally, we are already talking about if he is sane enough to execute. A tad early for that. It is notable that his lawyer kept even the Unabomber from being executed. Thus, even if he is not found "not guilty," he might be able to avoid the death penalty [an arbitrary process after all]. A tiny number of people (less than one percent) have been found not guilty by reason of insanity and those who were tend to spend more time in state custody, such as Brewer's son. Since the ultimate decision very well might be left to the jury, in which only a few dissenters can decide the sentence, a common sense view that he was "crazy" can lead to the determination that execution is not warranted. This is not a political assassin like Timothy McVeigh.

Ultimately, the best the general public can do in cases like this is to ponder the situation and try to obtain some sense of meaning from the events. As a funeral and memorial service is ultimately for the living, that is perhaps the best we can do, including to truly honor the dead.

"Voices that Shaped the Abortion Debate Before the Supreme Court’s Ruling"

Before Roe v. Wade By Linda Greenhouse and Reva B. Siegel provides various first person documents (including excerpts of briefs) from both sides to give a more accurate/complete understanding of events.  A good read especially for many who don't have it.

"The family of the victim opposed the execution"

Weird case.  First, to get a death sentence for a domestic homicide.  Then, to be executed decades later in the face of family opposition to the sentence.  A blatant example of the arbitrariness of the system.

Quickies

What IS my sign?  Any "change" [?] really occurred long ago, if at all.  And, one or two spaces after a period? Well, I was taught two (why) and even if it's wrong now, I again probably will continue the old way.

Obama's Memorial Speech

I agree with this that it was fine.  I have limited respect for speeches, particularly when the speaker is not someone whose actions are worth much.  But, Obama continues to give me reason to respect him.  Pisses me off some too, but I'm still able to hold my head up with him.

Quickies

Jon Stewart had a good take on the Giffords' shooting and some overcooked ideas (see also) on how to prevent further tragedies.  It's okay to consider issues but at some point, it gets overblown.  And, the picks: Packers, Seahawks, Jets and eh.  Non-NY fav -- Packers.

Kagan's First Opinion; Scalia cites House of Lords

She was involved in a few cases thus far but today wrote her first opinion.

Held: A debtor who does not make loan or lease payments may not take the car-ownership deduction. [8-1, Scalia dissenting]

As is the norm, the newbie was given a relatively uncontroversial opinion.

Justice Scalia sided with the debtor here, splitting with Thomas and the other conservatives. It fell down to a textual interpretation that is best left to experts.  Note how his views do not always, stereotypes aside, come down one way or the other or even agree with Justice Thomas.  OTOH, the assumptions don't come out of thin air either.  It is interesting though that he cited a House of Lords opinion to serve as an example of a canon of textual interpretation.

He added: "This has always been understood." As with the common rejoinder by comments "you are mistaken" or "you misunderstand," what "has always been understood" (it's so obvious!) clearly is open to debate here. Scalia is actually a bit toned down here. "It seems to me that is the situation here." Seems to? Downright reasonable there, Scalia.

Orin Kerr* noted:

It’s a pretty technical bankruptcy case. It struck me as well-written and clear for an opinion on such a complicated topic — you can pretty much follow the opinion on a quick read, which isn’t always the case with technical legal areas like this — but having no understanding of bankruptcy law, I’ll leave to others how persuasive the opinion is on the merits.

One comment on Scalia's reference is also notable:

Yah, that was very weak. If I’m trying to show that a supposed rule about verbose language has “always been understood,” then I need to do better than (1) a single 1942 case (2) from the UK (3) that concerns boilerplate language, not a term that may be “verbose” but is certainly not legalese like “in addition to but not in derogation of.”

Selective citation of history alone only takes you so far. It is part of a wider balance of factors.  Some comments suggested Scalia might have been correct as to the result.  Don't know. I think the 8-1 ruling suggests otherwise.  Either way, his example is telling. 

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* Prof. Kerr, who advised Sen. Cornyn during the Sotomayor nomination, provides interesting commentary as a self-professed "conservative lawyer."

More on Rep. Gabrielle Giffords

Rachel Maddow had a good show on the matter, including reminding us of the many mass shootings of late and how stories of heroes serve as reminders and positive re-enforcement. Overall, her usual good job. The shooter's mental health has led to some good analysis.

Quickies

This is an overall good Wild Card round-up; I love the Super Mario Bros. bit. An article on the child murdered on Saturday. Blue Valentine is now "R." I too like the "pasta boat," using it just last night.

Three out of Four

Good Wild Card Weekend, helped by the upset. My teams, minus KC, all won. It ended with another nail-biter, the Packers (truly putting Favre behind them) winning in the waning seconds off an interception in the end zone. And, sending a gift basket to the Eagles' kicker.

"atheistic, scientific spirituality"

Chris Mooney blogs about science matters and has in the past tried to form a centrist position in regard to conflicts with science and religion -- atheism without the [or as much of a] sharp edge, perhaps.  He referenced an article recently of his printed by Playboy of all places.  It promotes (I kid you not) an "atheistic, scientific spirituality" that is "devoid of supernatural belief but not devoid of feeling."  Mooney dealt with the subject in an op-ed:

Spirituality is something everyone can have — even atheists. In its most expansive sense, it could simply be taken to refer to any individual's particular quest to discover that which is held sacred.

Some people had negative responses since "spirituality" has a religious connotation.  But, what does "religious" even mean?  I raised the question before and it still seems that many people use it in an artificially narrow sense.  For instance, Daniel C. Maguire in Sacred Choices (examining positions on contraception and abortion in ten major religions) argues that religion is the very response to the sacred. In other words, Mooney is furthering a form of religion.  Danger Will Robinson!!!!  But, why must "religion" only include faith in some "God" that many who may not call themselves "atheists" deep down don't really believe in?

As seen in the last link and other places, the "conscience" and the like has from the beginning been an important part of what freedom of religion meant in this country, down to the first draft of the Religion Clause of the First Amendment.  It is quite true that originally "conscience" was tied to some belief in God, usually a Christian version, but at times one with deistic connotations.  Just as other constitutional matters have developed richer meanings, a deeper meaning of religion is possible.  It also can be that a parallel right to be guided by something other than religion is a protected liberty,* but I don't think that's necessary:

At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

I think such things is what "religion" is all about, it being more than mere philosophical or ethical guidelines on some level, and the added "awe, wonder, reverence" [Maguire] and other emotional components that "spirituality" and "sacredness" bring to mind only would underline the point.  But, one again need not go all the way.  The important thing is that it often is that the core of why religion plays such an important part in someone's life does not rest on the existence of God or an afterlife, since that is just the source and reaffirmation of the ultimate truths and sense of the sacred that guide their lives.  It is sort of a "chicken or egg" question on some level, but "God tells me so" is true even if "God" is an anthropomorphic construct. 

If this is true "atheistic" is somewhat unnecessary.  Again, it is on the level that there are common understandings, and "God" is usually understood to be an actual person, not an idea, though it sometimes is discussed in such a vague and symbolic way that it's hard to see why.  And, "spirituality" is somewhat of a metaphor, since there is not actually a physical "spirit" involved.  The word is used that way enough times for this too to be a bit silly.  The "spirit" of the law (contra the literal meaning) is a common example.  Should all so practical atheistic scientists not use it in that sense too?  Next up, worrying about saying blind people "see" the truth and so forth.  Yes, the language is somewhat biased toward believers of a literal God.  So be it.

[Update: As usual, things are not as complex as they may at first appear, and "hard" is more correctly "sometimes seems hard." The ordinary acceptance of an actual deity as well as a perhaps natural (in various senses of the word) tendency to be able to accept concrete as compared to symbolic entities leads "God" to be used in a certain way. This is so even as God seems to become more and more distant as a real true blue person into some sort of vague force, 'spirit,' that can be more bland and forceful than uses constructed beliefs to guide you.]

Anyway, I think Mooney has his heart in the right place here and is addressing what truly exists, even if the language makes it a bit tricky to put it in the 'right' words. 

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* There are various ways to deal with the issue. First, you can say "religion" means the common understanding of God and afterlife and that opposition to it is part of freedom to settle on for or against. Second, conscience [and so forth] can be deemed an important liberty on its own, in part since it is so important to the first. Finally, "religion" can be defined broadly.

KC Falls

KC started off well but after giving up a 3rd and 13, ultimately allowed the Ravens to take the lead before the Half, threw backward to try to make a 4th and 1/3 and ended up being routed.  This is how the Saints game should have gone if the Saints/Seattle played to form.

More on Rep. Gabrielle Giffords

Salon's War Room page has some good stuff, including discussion how she comes off as a promising rising star of the party and Congress as a whole.  It answered a question regarding past members who were murdered.  Keith Olbermann's (in a special session) guests had some good stuff too. Others like Judge John Roll deserve notice too.

Two Down! Go KC and GB!

The horrible events of the day (underlining all death is not created equal) underlines the value of outlets like two great games, each turning on pretty neat turn of events.  Helped that the two fell quite a bit from their Super Bowl selves. Still, great (if stressful) games.

Murder Requires Dehumanization

Given the extremism of the rhetoric at the top, is it any wonder that there is incredible fear trickling down to the grass roots? If those are the stakes, then of course criminalizing any implementation of the bill makes sense. Frankly, if those are the stakes, then violent resistance might be required. 

-- Ezra Klein (last night) 

Rep. Gabrielle Giffords Shot With Others

Was this a "Second Amendment remedy"?  She was shot hosting a "Congress on Your Corner” event and as of now wrong preliminary reports of her death suggests the need to take a breath and wait.

Kewl and Not Kewl

JJ shows up in Doonesbury again but she comes off as a harpy. Not kewl. More so is this carefully worded signing statement against the denying funds to transferring prisoners from Gitmo that doesn't rest on some sort of inherent claim of executive power.

Go Jets! (and Seattle, GB and KC)

I basically like the underdogs this Wild Card weekend, most of them not actually the wild cards. The one who is (the Jets) actually had a better record. Another win could have made things easier though. Murderer's row ahead. But, we got the re-match. So be it.

That tempers the fun

Now, I think [I discuss] text only takes you so far anyway (meanings and assumptions mean more), but read the damn whole thing at least! I would laugh about this and other things, but the Republicans actually have real power too. Rear guard defense is a tad depressing.

End of Life Counseling = Good Thing

Dr. Atul Gawande has been on various shows (down to Colbert) and one issue he has covered is the bogus "death panel" trope. A sound device to protect health is attacked, hurting people in the process.

Obama Guts Watch

[Did] to re-nominate blocked judicial nominees such as Goodwin Liu.

Udall Proposal

The Udall proposal looks pretty good. Reasonable small steps. It's doomed, right? Sen. Gillibrand was on Jon Stewart last night. Looking good. She seemed a bit too thin lately; looks healthier here.

Constitutional Option

I discuss here how the "constitutional option" reasonably can allow the Senate to change (not end) its filibuster rules by majority vote on the first "day" of the session. As a leader in the movement noted in a speech, quoting a National Review article by Sen. Hatch back when the "nuclear option" was raised by the Republicans to prevent the blocking of Bush judicial nominees [which might be treated differently, in theory]:

The Senate has been called a "continuing body." Yet language reflecting this observation was included in Senate rules only in 1959. The more important, and much older, sense in which the Senate is a continuing body is its ongoing constitutional authority to determine its rules. Rulings by vice presidents of both parties, sitting as the President of the Senate, confirm that each Senate may make that decision for itself, either implicitly by acquiescence or explicitly by amendment. Both conservative and liberal legal scholars, including those who see no constitutional problems with the current filibuster campaign, agree that a simple majority can change Senate rules at the beginning of a new Congress.”

Sen. Udall is doing yeoman duty here, part of a real effort of actually governing, and taking part in significant change, change for the better at that. Take it when you can given the new Republican controlled House will make things a lot less likely in that general direction (at least both at once). It's all a tad convoluted, even if logically Art. I power over setting rules, a power not among those where a supermajority is noted, suggests the path should be simple. But, as I noted in that original link (versus someone who wanted to red herring to death), Senate custom (including principles that guide it) is like that while balancing various sentiments. Actually, "mls" over there cited the balance fairly well:

a duty to balance the Senate’s institutional interest in preserving its rules and traditions (regardless of whether one considers this interest constitutional or extra-constitutional in nature) versus the interest in ensuring that the Senate’s rules do not effectively deprive the Senate of its rulemaking power and/or conflict with the principle of majority rule

This balance involves providing a time, such as the first day as the new session, where a majority can use the "constitutional option" set forth in that document, the potential to do so putting pressure on the senators to reach a compromise. This is likely to occur in the end here. I don't know what will happen really. It very well might turn out to be pretty anti-climatic. But, Sen. Udall and company is to be praised for pushing for actual filibuster reform, given how unbalanced the process has gotten, unbalanced in favor of a certain party. Reform, not end, like it or not.

Let's see what the actual plan entails, if there be one, since anything arguably on the table now is still open to negotiation. Will Republicans (and a few Democrats) block it, even though they control the House and one day will benefit when they regain control of the Senate? Remember again that the Democrats did not use the filibuster to block much Republican legislation during the Bush years, so it was no savior back then, and again the reforms won't end its use. And, there will be other means of delay. I think that if a health care-like effort was put that even Social Security privatization would have passed on some level, so again, it is no silver bullet. As to judicial nominees, if they are to be treated differently or not, how did that go in stopping conservative nominees, even if Miguel Estrada (tossed around there repeatedly as compared to any number of others) was blocked?

Anyway, constitutional options should get a lot of support in Congress, right? And, along with freedom of debate, which is fine up to a point, that includes changing the rules so that a lead weight is not on one side of the seesaw. Or one quite so heavy.

Football Quickie

A former NYG QB helped give the Colts an opening to win and prevent the Jets from having the Bengals KC in the first round. Interesting score watch: 8-7 (before the PAT, thanks to an earlier safety). Query: any team have four points (two safeties)? Many wild cards favored.

Keeping Faith with History

And Also: Maybe, it's okay that the coach of the NY Giants kept his job after another last season collapse, but yesterday's three point win against the loser Redskins (elimination officially coming with about two minutes left) was nothing that impressive.

One of the two books I downloaded to Kindle was the updated version of Keeping Faith with the Constitution, a chapter on freedom of expression and an index being the chief additions. Let me add that the computerized automatic text to speech feature (male or female voice) is pretty neat, if a bit rough. [The link provides a complete download of the original version and discussion, including a summary by two of its authors, one an Obama appellate judge nominee filibustered by the Republicans.]

The book is a useful account meant to be approachable by the general public discussing how fidelity to the original Constitution includes keeping its particulars up to date. The lessons of history, such as the women's rights movement, of special importance. Antiquated beliefs of a woman's role per 19th Century thought is not the limit of what equal protection requires. This is part of the attempt to turn originalist thought against itself. In other words, the core principles of the Constitution matter, and the way to keep them active is to keep them up to date as to the specifics. Relying on merely a limited view of what was understood in the past under this light is problematic.

Lee v. Weisman can be used to put this principle into practice. This is a 5-4 ruling by Justice Kennedy from 1992, but could probably come down the same way today. Kennedy argues that a prayer ceremony at a public school graduation violates the First Amendment (as incorporated into the Fourteenth) because it in effect coerces dissenters to join in, given the importance of the event, peer pressure and so forth. Precedent and Kennedy-esque appeal to constitutional principle is cited.

Justice Scalia, particularly annoyed since Kennedy a few years before appeared to take a less restrictive view in a holiday display case, dissented with his usual verve. Public ceremonies historically provided some invocation of God and this was no different. Precedent could be distinguished, granting it was to be taken as sound. His citations generally were to governmental ceremonies, however, one exception involving students going to a graduation at a church (!). Justice Souter's more expansive concurrence, one that rested in part on original understanding and text, was not even referenced. Better to snidely comment on how the idea dissenters here would be pressured to conform is so ridiculous.

Justice Souter's concurrence underlines that originalism need not be seen as purely a conservative approach. [Justice Blackmun concurred to also argue that coercion alone isn't the test, but focusing more on precedent.] It also shows that history is of some value, if we don't have a selective memory. Still, though this was not uncommon in such cases, the opinion is troublesomely incomplete. And, the book helps understand why. A full understanding would cite the history of public education, one where selectively respect of religious belief is well documented.

Such history would make Scalia's selective appeal to the value of public honoring of "God" -- alone a tad ironic given his own counseled the value of praying in private -- appear even more dubious than it already does. But, even when someone like Justice Black cited religious disputes that guided the writing of the First Amendment, the whole story was not expressed. Keeping faith to the First Amendment includes learning the lessons of history since its ratification. This includes repeated sectarian de facto establishments in public schools, even if courts somewhat artificially address limited questions that made the problems seem more trivial.

The fact four opinions missed this basic fact in an important respect is as troubling as it is normal. We saw it too in Heller and its follow-up -- the history of the right keep and bear arms should include events after Reconstruction, and not just in some summary paragraph or reference. Lawrence v. Texas suggested that the last fifty years is of special importance when understanding the contours of substantive due process. The value of an up to date history can be seen as useful as a general principle. A page of history retains its importance, particularly if it is a complete one.

It helps too when the justices don't just -- as here -- basically talk past each other. Kennedy is particularly at fault, doing his usual ex cathedra routine with no cites to the dissent (or concurrences), even by the usual footnote approach. Scalia often doesn't seem to truly want to see things through the other person's eyes, this involving less disdain than he usually shows, but at least he makes an effort to respond. A complete use of history might provide a way to use the tools offered by the other side (history being Scalia's touchstone, not just founding era history at that) to have a real conversation.

One can hope, at least.

Losers but still winners

Division play allowed the 7-9 Seahawks to make it after another pretty good back-up QB SNF affair (kinda) made the team's last two months of decrepitude old news. The once 0-5 SF could have got in if they won last week. Cannon fodder for Saints or no, they made history.

Week 17: Final Playoff Spots Set

Tampa won early but Bears (played it hard with little to play for) lost a close one, knocking them and the Giants out (who won). Jets back-ups beat Buffalo's back-up QBs good and the Colts' win means a playoff re-match next week because KC lost. One more spot to decide.

True Grit

I finally got WiFi but using the Internet with it froze the Kindle; customer service solved the problem. Meanwhile, great movie. Great leads, atmosphere, humor and moments of seriousness.