Scalia Speaks

A few justices have promoted their books over the last few years, including now retired O'Connor and Stevens, Breyer and Scalia (from quite different ideological vantage points) probably getting the most exposure. Scalia has been doing this for awhile -- I recall back in the day him taking part in roundtable discussions of constitutional matters in relation to a PBS educational series. Justice Sotomayor has noted she thinks informing the public (including schoolchildren) an important part of her job and I think overall justices are providing a public service here.  

Anyways, he is out there again promoting Reading Law: The Interpretation of Legal Texts, which he wrote with a legal writer that also collaborated with on a book about "making your case." Thus, he and other justices continue the outside legal education sidelines past judges and justices took part in as seen by Justice Joseph Story. Roberts, who just handed down an order (again, why have a page on the SCOTUS site for in chambers orders, if you don't post them?) went to Malta to do this, Scalia is on Piers Morgan.  I somehow missed it, but will work from the summary linked there (more with video here).

He says that there was no "falling out" with CJ Roberts, noting his friendship with ideological opposite number, Ruth Bader Ginsburg.  She is not exactly on the same level here as Roberts, including some assumed violation of his principles, and like, would he say it if there was?  Still, I think that sort of thing has been exaggerated though there might be something to it -- it's nothing new, if that's the case.  Same thing with his denial that he is influenced by "politics."  Bottom line there is that he has a certain ideological view that matches a political party though in various cases (see flag burning) there is not an overlap.  This is not surprising; the problem is lately he seems to be getting rather lazy and letting personal sentiments cloud his legal arguments more than usual.

Says substantive due process doesn't make sense in a reference to Roe v. Wade.  SDP is not just applied to that -- the First and Second Amendments are incorporated into the Fourteenth because of the same principle.   It does make sense and many have explained why: basically, our system of government presupposes certain basic rights (see Declaration of Independence) and the "law of the land" is unjust ("undue") if it deprives us of certain rights, such "liberty."  This was a motivation of the anti-slavery movement and was also understood to be among the "privileges or immunities" of citizenship.  Justice Thomas used that route in his McDonald v. Chicago gun ruling, though he selectively ignored the SDP history too.

“No, I don’t think it becomes a punishment, it becomes torture,” Scalia said. “And we have laws against torture but I don’t think the Constitution addressed torture, it addressed punishment. Which means punishment for crimes. … I’m not for [torture]. But I don’t think the Constitution says anything about it.”

Some have found this distasteful and it is, but not quite for the reason some think.  Torture is not "punishment" for Eighth Amendment purposes, at least  generally speaking.  (It can be used that way and torturous punishments was a concern; on that ground alone, his comment is misleading..)  Scalia, however, jumps off the rails with the last bit.  For instance, if not "the" surely a core reason for the Self-Incrimination Clause was to guard against torture.  It was a primary concern when it was debated and to say the Constitution doesn't "say anything" about it is rather ignorant.  I discuss this matter some and a good book addressing it here.  Other provisions probably also "say" something about it too, including due process, which concerns rightful treatment while in government custody.

As to Bush v. Gore, I think he should mostly just shut up about it, the "just get over it" stuff needlessly ... I'll say it -- dickish.  Some rulings will be very important and there will be strong disagreements. That's to be expected.  At some point, you have to accept that one side won, each side sometimes quite sure they are correct, though you need not like it.  He just comes off as a sore winner. The stuff about Gore losing the count is b.s., since we simply do not know what specific counting standard would ultimately be used if it was allowed to continue. [And more b.s.]

Scalia is clearly a smart guy with a strong point of view that overall is an asset to the bench, particularly his willingness to challenge the other side instead of (like Kennedy in various opinions) basically just seeming to ignore what they have to say.  He has blinders, more than some I think, which make it hard at times to take his analysis at face value.  No wonder some rather sneer at him (e.g., a comment saying he dislikes gays, that settles it for him).  Also, when he is "on," he seems to play to the crowd some, perhaps it would have helped if he wasn't an only child (he has nine).  [As noted here, the misguided vanity about how so principled he is vis-a-vis others is not pretty either.]

I respect him for speaking his mind and challenging others, but he still leaves a lot to be desired even if you agree with him.

Army Wives (S2)

In the midst of the S2 DVDs ... some good stuff plot-wise (season premiere was particularly powerful) & DVD extra-wise, commentaries (cast is great here) and other bonus features. One disc scratched but better than another library rental where one was missing!

The Book of Trees

Like Gravity, the author's own life guided her fiction here -- young woman goes to Israel to study for the summer but is "appalled" to learn about the Palestinians. Meanwhile, she struggles over her own views of God and Judaism, trees have a special sacred meaning to her. She comes off as a bit too naive at times, but she is 17.

C'est la vie

(cont.)

We don't get much (though some) Plame/Wilson personal stuff, understandably in a way (compare the movie, which apparently was fairly accurate or one would think they would not accept its portrayal), but still somewhat disappointing. More human story could have added to the somewhat repetitive "Iraq was screwed up" stuff.

Joe Wilson

His book is about his diplomatic career and public advocacy against the invasion of Iraq (this part rambles on by the end) with the Plame story (and the 16 words stuff) basically but a part of the Administration's shameful handling of things. You can listen to the Wilsons together on the commentary track of Fair Game.

The Closer Closing Badly

Only a few episodes left before a spin-off, but for the second week in a row, seems the show was being phoned in. [You do get to see "Fritz" direct.] Sad. What was with the Nathan Lane impression?

Hobgoblin of Little Minds?

I flagged a possible problem regarding how corporations and unions seem to be treated differently; a recent NYT op-ed pointed this out (SG Kagan herself addressed the issue).  The "freeloader" effects of the union rule with implications with the PPACA is noted here.  Should we not be consistent here? A few (e.g., the ACLU) try to be.

Reviews

Film: XXY (2007) was a good character study about a father growing to accept the fact his child is intersex as we also see some family drama going on and her (the child is raised as a girl but has some clear masculine tendencies) own relationships. An Argentinian film there also was a beautiful sense of place, it largely taking place in a fishing village. The actor (Ricardo Darín) who played the dad was later in another very good film about a retired Argentina prosecutor struggling with an old case and his attraction to someone involved who later becomes a judge. Good DVD commentary as I recall. The Secret in Their Eyes won an actress for Best Foreign Film and its director [not the same as the one for XXY] has a diverse resume, including American television, both a Law & Order series and a Comedy Central one.

Being a fan of XXY, The Fish Child (2009) by the same director seemed to have potential.  The film is strongest as a human drama, a daughter of a troubled well off family falling in love with a maid, whose troubled past comes out as they deal with the mysterious death of the father.  A bit heavy-handed but well acted with a good sense of place and the dramatic desperation of its characters.  The film is a bit confused, imho, as to the homicide and a bit on government corruption and the DVD box's blurb citing Thelma and Louse is misleading.   [edited for clarity]

Book:  I am about half-way through The Politics of Truth: Inside the Lies that Led to War and Betrayed My Wife's CIA Identity: A Diplomat's Memoir by "Ambassador Joseph Wilson."  Both books by the Wilsons have a big picture of the authors on the cover, setting the tone -- he is all serious in his suit, she looking sorta sexy (if in a down to earth outfit with well worn looking hands) and smiling. Both books also aren't merely about the controversial events, but only one is filled with redactions. 

The title and focus of the back cover is misleading -- you expect the book mainly to be about the Plame Affair and various negative reviews at Amazon have a partisan slant.  But, the first half of the book (minus a prologue of sorts) is in fact a down to earth "diplomat's memoir," a bit over two hundred pages that might not have been as widely read without the other drama, but is well worth reading.  This is the deputy who was the one in charge of the embassy when Iraq invaded Kuwait.  He also had an interesting career in Africa (in various former French colonies) and was political adviser to the C-i-C U.S. Armed Forces, Europe. The fact this public servant called a "hero" by George Bush Sr. was screwed over just underlines how disgusting the whole thing was.

[Update: Half-way through the "16 words" / Valerie Plame stuff (note the book was completed in 2004, years before his wife's account added more up to date details) & one thing that is a bit off is that the infamous words talk about a recent attempt that "sought" nuclear weapons, which can technically mean something pretty trivial -- the implication is that it was a serious effort or that Iraq  actually got something from them.

Wilson's infamous op-ed (linked above) basically refutes the latter, the book technically leaving open some vague possibility someone from Iraq made some sort of request though even that was deemed very unlikely.  An official denial from Niger was present; as to obtaining it, the actual yellow cake would not merely entail stereotypically corrupt locals but also foreign involvement too.  Hard to refute something that vague and again the clear implication was something a tad more solid.

Also, there is some dispute over his wife having "no" involvement in him checking things out but she could have passed his name along upon request or something.  No need to be absolute here -- she did not have the authority to send him and the idea appears to be independent of her to send someone to check it out though it already was checked out in fact. 

Overall, outing a CIA agent for spite, CYA & to send a message to others to not call the government out for mistakes is disgusting and the failure to address it alone imho was enough not to vote for Bush in '04.  The "send a message" part helps explains, along with the inapt timing as seams in the cause were coming out, why such an act of apparent overkill occurred.  Also, we are dealing with some true assholes here.] 

TV:  I did not see the first episode of the new USA miniseries about some Hillary Clinton clone played by Ms. Weaver.  Not watching the Mets get swept by the Braves (after losing two of three vs. the now playing well Cubs before the break, the Mets have to stop things or reaffirm "same old Mets" chants), I did later watch Army Wives and Newsroom, both decent if not overly exciting episodes of series drama mixed with soap opera. 

And, Less Lethal Than Some ...

"Being a Cub since I was drafted, you don't like hearing those things," Barney said. "It's nice to know people are interested. But I want to be here. Whatever happens, happens. It's a business."

I have heard that before. Barney had a lot of jobs anyways.

Rev. Joe (apparently not in a vat)

I looked over a book that purports to refute atheism and review it here.  As a result, someone challenged my arguments in to me a somewhat tedious way (seems to focus too much on terms and make assumptions while upset when I apparently do), but the exercise might be useful as a whole.  Hard to explain basic things.

Nasty Girl

Very good German film from 1990 about a somewhat goody-toe-shoe girl/woman who gets in trouble looking into her town's WWII past.  It all starts with an ill advised essay topic.  Inspired by a true story. Lead actress is great; film has a nice light touch with serious overtones.  Curious brief nudity that doesn't really add anything.

Across the Pond

I would like to know why someone used an Oxford University server to access my blog, but it probably was to learn about Brandin Rackley or something. Or, maybe She-Wolf of London.

"The Unexonerated: Factually Innocent Defendants Who Plead Guilty"

[ACS Blog has an example of a judge pushing for better oversight of plea bargains here.]

The criminal justice system is an imperfect system that involves various imperfections in its attempt to obtain that vague thing we call "justice."  This includes plea bargaining, which this article examines in respect to the at first blush perhaps unreasonable concept of pleading guilty while actually being innocent.  But, it really is not surprising, and in a practical sense this isn't that hard to understand.

As with plea bargaining generally, the ideal solution is a tough nut to crack given the realities of the situation.  The article notes three primary reasons people in this situation plead guilty: they are charged for minor crimes [who might not have a constitutional right to an attorney, since that is only required in various cases for felonies] and a plea will get things over with (e.g., probation instead of an extended process, which might include detention), those who win on appeal but prosecutors refuse to simply let them free and those who take a gamblers calculated risk that not accepting the plea will lead to longer sentences, perhaps even the death penalty. I would add some others plea while innocent for other reasons, such as immaturity or mental deficiency. 

Some think the idea situation is just to focus on the truth here, allowing the system to decide innocent and guilt.  I find this a tad naive -- we know the system is flawed, and forcing people to stay in prison for perhaps years more against their will since "justice" requires it seems downright cruel.  The article notes that some countries do not use plea bargaining and the amount of cases does overwhelm the system. Such countries have various differences from ours, including less cases overall and even if the person loses, the penalty is often much lower.  In various cases, going to trial does not seem logical to me.   And, in those other countries, various similar things probably occur, but in different ways.

The article also denounces the so-called Alford plea where a person personally thinks s/he is innocent but is allowed to plea anyway.  I am inclined to see the logic of such pleas.  To me, in fact, the accused really is so biased that legally speaking, s/he is not able to have the "reason" to determine the legal guilt involved. Reasonable doubt" here is a determination of neutral decision-makers, not those so self-interested that they are unable to do so.  The accused can accept that legally the state has a case "beyond a reasonable doubt" without personally accepting guilt.  The test is not violated because some one person, for whatever reason, disagrees (except if said person is a juror, most states requiring a unanimous jury), especially the self-interested defendant.

Surely, there is a problem of coercion here, but it seems impractical and on some level wrongly paternalistic to refuse to allow defendants some ability to take the best deal among imperfect options.  A couple recent cases (cited in the article) had the Supreme Court provide guidelines to require some oversight to the process. Scalia in dissent decried the normalization of the distasteful practice of plea bargaining.  As I said at the time, one is cynical here, since it is not like he is for stopping the process.  He just rather not have judges get their hands dirty trying to make the system somewhat more fair, even as it occurs in most cases.

Don't get me wrong.  I don't think judges and prosecutors should just cynically allow defendants to take pleas because it is the best bargain possible.  Judges should be careful to determine that the pleas are truly informed and knowledgeable, the cases where the person does not have a lawyer of particular concern.  If there is no actual reasonable basis for guilt, the judges cannot look away.  When severe crimes, especially the death penalty, are involved, some too heavy coercion might be shown in various cases.  The case of prosecutors refusing to accept the innocence of those found to be in post-conviction appeals etc. is also a problem and the Hobson's Choice made here by the defendants should be recognized, even if we are left with that or nothing.

And, yes, the whole process would be messy, but pretending that we can just do away with it is rather naive if not sometimes rather misguided.

This Blog Might Not Be For You, Rat

Dracula

Was reading Dracula -- free Kindle download. Starts off with nice atmosphere, but then it's like a cliffhanger at his castle & boring stuff happens. Sorry, moving on to Joe Wilson's book, which is like two books (his diplomatic career/Plame affair).

Third Parties Like the Other Two B.S.

Dr. Stein is quick to align Mr. Obama and Mr. Romney, saying their policies are nearly indistinguishable.

Not Nader, but has that Nader b.s. thing going for her.  Third parties, more power to them really, work better without it.

Amazing Grace

William Wilberforce and the efforts to end the slave trade in Great Britain are both worthy topics, but I dozed off while watching this film, which is pretty informative of how I felt about it.  "B" for effort.

Necessary Roughness

This show is a bit bland, but it's comfortable enough viewing and has enough plot (therapy, football, relationships etc.) to keep my interest. Her kids, however, are very annoying.  Must they be so bratty?

In the den of lions ...

Epstein blasted the leaks and argued that the prying media was responsible for the disclosures.

"I don’t like leaks coming out of the court," he said. "In the end, the leaks make the judges seem all too human...The effect on [the court's] overall performance and its prestige will have to be negative....I wish the journalists would back off that kind of stuff."

Carvin [who advocated against the ACA] said the leaks suggest that Roberts fell victim to pressure from the White House and Democrats not to strike down the key part of the health care law. "It gives some credence to the fact that this kind of thing works," he said.

SG Verilli thought it inappropriate to comment.  Still, we don't want judges to seem too human, do we?  They are demigods and should be so viewed by the public at large.  Likewise, if reasoned argument is what "this kind of thing" means, it isn't necessarily a bad thing.  What other "pressure" is Carvin concerned about?

OTOH, I'm not the best person to ask, perhaps, since I didn't give much "credence" to his arguments.

Poicephalus

A blog handle I saw. Nifty choice.

Latter Day Poll Taxes

“Many of those without IDs would have to travel great distances to get them, and some would struggle to pay for the documents they might need to obtain them. We call those poll taxes.”

Yes, Mr. Holder, though unfortunately the courts haven't quite seen it that way yet. As with gays, there is room for change.

Caterpillar names revealed!

Future scientist of America alert! 

The Closer

Not a good episode as a whole and made Brenda look weak to boot. The last few episodes before a spin-off was not started well with this flash back to a past nemesis. Hopefully, later ones will be better.

The Artist

Totally bored after about fifteen minutes -- silent films actually caught and held your interest, right? Sure it was good on some level, but no sale. Like the beginning of the Dracula book.

Also seen in "The Blonde Squad"

The guy behind this show was on Head of the Class back when I was the show's target audience's age.  Both have/had their moments.

Sunday TV

Army Wives was good -- should have sent at least one wife away (as is normal on an army base) and focus on others before this season. The Newsroom actually was okay this week after two pretty bad episodes.

Voting Id Follies

If you do not have one of these IDs and require one for voting purposes, you may be entitled to get one FREE OF CHARGE at a PennDOT Driver License Center.

Analysis from various quarters determined it is likely that more voters in 2000 intended to vote for Gore in Florida, perhaps thousands more.  Others were hindered, some unknown number probably not voting, for various reasons, including wrongful labeling of some people as felons -- that is, the term is something of a misnomer unless the label should be a mark of Cain, held to be disqualified from voting at the time because of past crimes.  We sometimes here that press recounts held Gore would have lost anyway (no -- depends on what standard was used) or the final ruling was 7-2  (Breyer strangely enough joined a dissent signed by the two and four justices each "dissented," none concurring with the majority).  But, this wider concern is if anything more important. 

Voting is an imperfect business and in any close case is not likely to be perfect.  But, at some point, the margin of error is a problem. This is especially the case when it is encouraged (often in a partisan way) by misguided laws.  Along with anti-abortion regulations, anti-gay laws and bad economic policies, Republicans (and it is noticeably so)  have put in place restrictive voting rules to address what amounts to a non-problem.  Rick Hasen in that link, after noting even if their negative influence is not as bad as some fear, lists five problems:

1. The tough new voter id laws serve no purpose. 

2. Many Republican legislators support them for the wrong reason.

3. Even if the effects are small, they can still matter in razor-thin elections. 

4. Even when effects are too small to affect the outcome of elections, we should not make it harder for people to vote for no good reason. 

5. What we really need is universal voter registration supported by the government, and national voter identification cards with optional thumbprints.

The lead quote is from a page discussing a new Pennsylvania voting id law.  [One guess on what party now controls the state.] Those who defend such laws tend to note that there are options to get a free id (id generally not found by the courts yet to be a poll tax for purposes of the 24A though if overly burdensome, it is a problem).  But, and the dissents in Crawford recognized this fact, "free" can be something of a misnomer.  The law here requires those who wish to get a free voting id go to the listed center and show other id.  If you don't have that, which isn't free in my state btw, there is another process involved and a return engagement.  This rigmarole can involve multiple trips, trips that might involve missing work or some other burdensome activity.

At best, laws of this sort should be put in abeyance for a year or more and not applied to the immediate election so that voters could go thru this rigamarole first.  An id can be helpful, but it the state requires it, it should proactively address the fact many don't have it (one number puts it at 9% of the potential voters here, over 750K; Hasen says maybe much less, but who knows?  again, enough to matter for little real value -- even the appearance of voting irregularities can be addressed in other ways).   

To me, it is clear that Kerry lost in Ohio, and thus lost the 2004 elections.  But, there were enough problems in that election to be of a concern, and some people still aren't sure (some go the other way and think it is pretty clear Bush lost -- Ehrman can say a word or two to these people).  Most thought little about it, just as only a segment of the population cared about the problems with the results in 2000.  Doesn't mean it doesn't matter and that we can just write off millions of people, voters who matter in our republican system of government.  Same this time around.

We "may" be entitled to be assured voter intent, not artificial winnowing out of the "wrong type of voter," will determine who wins in November. 

Chris Hayes

A fan via his dad, one of the few NYC residents who appreciates the overall rather embarrassing effort the Mets have had against the Cubs in the two series.  The Mets' yo yo season balances out to median NL level so far but this only is generally reassuring to me in hindsight. 

Rev. Joe (Book Concludes)

To finish off the book on Jesus' existence, after 2/3 beat an easy target, we have a summary of principles of proper history writing and about forty pages summarizing who Jesus actually appears to have been.  No real surprises there probably.  Somewhat padded exercise.

Split Decision

My hope was that at least one conservative justice would be sane on the matter and vote to uphold the law.

One was largely sane.

PPACA Education

A letter to the editor in the NYT earlier this week was concerned about informing the public, perhaps via an easy to read pamphlet (or graphic book -- see side panel), of what the PPACA does.  Why each member of the Democratic caucus does not send out such a thing is unclear to me. Don't they have free franking privileges? 

More on Book

I am about half way through the aforementioned book (Does Jesus Exist?) and think it provides good evidence (more so than present for various other things that are thought to have occurred in the first century of the common era) that Jesus exists.  [A bit further on now.  A problem with the book is that the case seems a bit too easy for over three hundred pages.  It's like Perry Mason vs. his lackluster adversary.] 

The hard part -- some detail beyond the fact he lived, had siblings and was executed -- that tells more about his life comes at the end.  The enterprise seems akin to answering those who say Obama wasn't born in the U.S. (or in Hawaii -- does that even count? kidding!).  There are a few stray serious people who seem to believe that too.  OTOH, millions appear to seriously doubt Obama was born here, so it is a serious concern.  It is a basic question and provides a chance to examine the evidence and historical study as a whole.  And, that provides clear evidence from many sources (the four gospels alone arising from multiple ones) that Jesus existed.

Two red flags.  First, he repeatedly lumps the four evangelists together -- the purported authors were all originally uneducated layman from Palestine, not the Greek speaking authors of the text.  Also, the names of the gospels were provided much later.  Luke, however, is purported to be a Gentile follower of Paul, a physician, someone who very well might have the knowledge required to write the books in question. Also, putting aside a stray cameo of someone who might be Mark as a young boy/man, he is an exception -- Acts includes various passages in which "we" (Luke and Paul) is mentioned.  This is not to say "Luke" actually wrote Acts, but that he is a special case.

The author also notes that it is striking how little actual writing we have from that era -- only a few stray pieces of hard evidence, for example, exists of the Pontius Pilate.  I put aside that Hillel is not referenced -- he is said to have died in the beginning of the first century, but Wikipedia has him having a hard to believe life span, and though we have sayings of his, not sure if we have anything he actually wrote.  But, it is clear to him that the "suffering Messiah" idea was simply not accepted until the execution of Jesus, who various people thought the Messiah, made it a necessity to explain why he died in such a shameful way.  How do we know this?

Also, as I explained, a Jewish scholar in fact wrote a book before this one (not saying Ehrman should know every one, but if I know of him, why not he?)  arguing the idea was at least possible.  There are some people who have some strange ideas these days, which most people find outrageous, but they exist.  So, with respect, I don't know how we can know that a "suffering Messiah" idea wasn't at least deemed possible by a few, even if most (including pre-conversion Paul) Jews would find it outrageous, just as most Christians would find certain beliefs of outliers today.

I have long found the Hebrew and Christian scriptures quite interesting (sometimes say I would do more to learn about others -- have read a bit about Islam and other faiths -- but I am partially a product of my upbringing and culture in that respect, which is the normal path to religious faith as well)  and works of this nature are a bit amazing in what you can learn given what you thought you knew.  Few know, though the idea might seem reasonable upon contemplation, how the idea of God and Jesus developed over time in the Bible. Some have the overall idea that the gospels are of a piece -- thus, some portrayal of Jesus' life takes pieces from various sources.  But, they are conflicting in many ways. 

But, I remain dubious about those who try to say certain things with too much of a degree of certitude.  We have limited sources here, flawed in nature. That is part of the charm for those who make this their life work, but it still warrants a bit of humility.  It is okay to hypothesize up to a point.  Past that point is educated guesswork.  Overall, however, on balance of probabilities, the book is convincing thus far.  The author also writes for the lay reader in a respectable way.  This to me is the best approach and I dislike nonbelievers who write with an edge.

Think about spending the few extra hundred or so required to include an index for the paperback version though.

---

*  One issue addressed in the first half is that Paul met Peter and James (Jesus' brother) a few years after the Crucifixion. This is striking in itself: Paul (who doubters of Jesus do think existed) personally referenced a meeting with two key people in Jesus' life that lasted over two weeks.

A few doubters tried to explain away the idea James was Jesus' "brother," which the author says is a big stretch.  Catholics also do not want to accept that James was his actual full fledged brother since they have a doctrinal reason to have Mary be a virgin all her life.  This is one of those things many Catholics don't really buy if they think about it and besides is not compelled by what the gospels (only two of which discuss his birth) say.  The concern is Jesus own birth, not Mary as a whole.

Such things are pretty interesting to consider. For instance, the "immaculate conception" (a Catholic holy day celebrates this along with Mary's "assumption" body and all into heaven -- one of a few days other than Christmas where believers are obligated to go to mass when it is not a Sunday ... a nun once noted that two key moments in WWII occurred around those two dates)  concept is not Jesus' own, but of Mary.  If Mary actually was without sin, you would have thought it would be noticeable she was pretty special even before she had Jesus.

Anyway, James (not the same person as the apostle of that name) is an interesting character -- Josephus also briefly references him, explaining his controversial stoning by Jewish authorities in the early 60s.  He is one of the few followers of Jesus other than Peter that we know a bit about. 

Did Jesus Exist?

Apparently so.  A few don't think so and Bart Ehrman's (your garden variety evangelist turned agnostic with atheist leanings, self-defined) latest clues them in while using the doubt to provide some history and historical analysis discussion.  So far, fairly interesting.  No index.

Don't Recall This Happening Back In The Day ...

In The Good News Club, the battle to see if NYC needs to let religious ceremonies occur in public schools was discussed.  Even a mass on Sunday, since other cultural events etc. are allowed. Seems a bridge too far, but the latest is a win for mixture of church and state.

Crisis Pregnancy Centers Win In Court

Laws to address the misleading (at best) crisis pregnancy centers have had some trouble in the courts for not being neutral and/or narrowly tailored enough. "Commercial" or not, they sell themselves as "medical," and that should matter. Will slanted anti-abortion scripts be given this much scrutiny?

If only Obama talked about the PPACA benefits ...

Meanwhile, more on birth control.

More on Medicaid Provision

"Bad Medicaid facts make bad spending precedent."

Scotusblog Analysis of PPACA Again Iffy

Overall, perhaps it is no wonder that the Eleventh Circuit Court, whose ruling on the ACA the Supreme Court reviewed last week, had expressed skepticism that the tax would be enforced the way a tax normally is.

Taxes on marijuana, e.g., are not "enforced the way a tax normally is" either. So what? (See also, here and here.)

DOMA to the Supremes?

Having mixed wins vs. the champion of wrong, Paul Clement, the Obama Administration has joined with the other side again in pressing SCOTUS to decide a question before some might think it ripe: DOMA.  Along with informing us of the pleadings, LD discusses the continuing force of Baker v. Nelson dismissed without comment as not offering a substantial federal question back in the day when the Supremes had to dispose of such things somehow other than ignoring them. 

The questions for decision are whether a marriage of two persons of the same sex is authorized by state statutes and, if not, whether state authorization is constitutionally compelled.

Well, that isn't the question here.  The question here is whether a federal statute that denies benefits to a marriage of two persons of the same sex already authorized by state statutes is constitutionally valid.  This should end the case.  It might be reasonable (at best) to argue that a state's ability to not authorize same sex marriage means the federal government can do so in this context too, though the it seems pretty clear that the two sovereigns (if I might call them that) are on different planes here.  Still, that doesn't make them the same question.  One does not block the other.

The other issue is whether subsequent precedent / legal developments changed things so much to override the usual practice of holding such things as binding.  It should be noted that a bare statement that a matter does not have a substantial federal question tells us little.  There could have been some quirk in the case that made that so.  Who's to know?  Surely, we should not expansively read much into it, underlining why somewhat related questions should still be open for lower court review.  Of course, SCOTUS can re-consider stuff anyways, so the question is of only limited importance at this level, if it gets there.

Still, subsequent case law clearly has changed things.  Moving past the state law question, the Baker ruling summarized Griswold:

The basic premise of that decision, however, was that the state, having authorized marriage, was without power to intrude upon the right of privacy inherent in the marital relationship.

But, as Lawrence v. Texas noted, this ruling was soon given a broader reach.  Privacy was not merely a marital right:

“It is true that in Griswold the right of privacy in question inhered in the marital relationship… . If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” 

So, the "basic premise" is broader in scope.  Subsequent law underlined the fact, making its reasoning stale. Also, the quote underlines the different nature of the two cases -- DOMA involves limiting rights even on those already married.  It intrudes upon marital privacy, so much that basic marital privileges might not apply in a federal context.

It is ironic that the ruling cites Griswold (a contraceptives case) to note that marriage is an institution "uniquely involving the procreation and rearing of children within a family."  Factual evidence can be shown to show that this conclusion also has been shown to be false.  But, if this is not good enough, rulings like Turner v. Safley (involving marriage of those in prison) underline that marriage has a broader scope.

Baker does not discuss sexual orientation discrimination, partially since the parties at that time (1971) would have really been grasping at straws (sexual classification litigation was in its infancy).  The court dismissed without comment a First Amendment claim.  Lawrence v. Texas underlined the importance of a broad understanding of intimate association as did other cases, in part using the First Amendment. Again, the law either changed or the questions raised now are not the same.  Ditto the rational basis of partial protection of same sex unions, which was barely imagined back then.  The Prop 8 case, e.g., is simply not the same case.

Baker also rejected an equal protection challenge on sex classification grounds because of the "fundamental difference in sex." Again, "undermined  by later 'doctrinal developments' " to quote the analysis.  Reed v. Reed was not even decided yet (it came later the same year), this being the first case in the modern era to strike down a law as being irrational based on sexual classification. And, eventually, heightened scrutiny was held to be the test, not quite the same as racial, but high enough that the "fundamental difference in sex" were rejected in various cases where traditionally sex was understood to be reasonable.  Thus, the assumption that sex is so determinative has been undermined.  

DOMA cases will eventually get to the US Supreme Court and the "rational basis with teeth" treatment of sexual orientation [House Republicans aside, a valid reading of current precedent*] along with the federalism enhancing nature of the lower court opinions make it a fairly safe bet.  Hey, I was right on PPACA -- well, much of it.  Seriously, I think this is a safe calculated risk by the Administration and the movement lawyers, the arguments as a whole possibly having six votes in this context.  Same sex marriage writ large is harder, but this is less so.

But, the Baker v. Nelson issue is really lame in this context. It is a toothless tiger as a whole, surely so when addressing federal rights of actual marriages.  It is unfortunate that even some supporters of SSM think otherwise.  Overall, society and the law moved on.

---

*  Romer v. Evans cited the principle that:

laws of the kind [that] raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected [are invalid]. "[I]f the constitutional conception of `equal protection of the laws' means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest."

The Court did not provide the usual discretion given to economic regulations here or when striking down the same sex sodomy law in Lawrence v. Texas.  Justice O'Connor spelled out what was going on:

When a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause.

Yes, only a concurrence of one, but one cited with approval in CLS v. Martinez and  it is a stretch to say it is not the law.  At best, you can say that it is merely persuasive and the matter has not been pressed.  To paraphrase Lincoln's order to Grant, let the matter be pressed then. 

TJ: Socialist?!

I  am conscious that an equal division of property is impracticable. But the consequences of this enormous inequality producing so much misery to the bulk of mankind, legislators cannot invent too many devices for subdividing property, only taking care to let their subdivisions go hand in hand with the natural affections of the human mind. The descent of property of every kind therefore to all the children, or to all the brothers and sisters, or other relations in equal degree is a politic measure, and a practicable one. Another means of silently lessening the inequality of property is to exempt all from taxation below a certain point, and to tax the higher portions of property in geometrical progression as they rise.

-- Thomas Jefferson

Ben Franklin, who was on the committee of 5 assigned to write the DoI, also agreed. Many of the Founders believed that a basic equality of property was both a good in itself and an essential condition for republican government. 

Old Andy Griffith Monologue

RIP Andy Griffith

Mike F. has a good commentary of his famous role here.  Some of his darker roles are also cited.  His pro-Democratic political bent (yup, PPACA too) is discussed here.  His last good role was a nice turn in Waitress.  Today's Matlock marathon was well timed. 

Happy DOI Day!

The croakers all say we'll rue the day
There'll be hell to pay in fiery purgatory
Through all the gloom, through all the gloom
I see the rays of ravishing light and glory!

Is anybody there? Does anybody care?
Does anybody see what I see?

I see fireworks! I see the pagaent and
Pomp and parade
I hear the bells ringing out
I hear the cannons roar
I see Americans - all Americans
Free forever more

Sit down, John! Moving on from 1776, it is appropriate to think about the Declaration of Independence, since independence itself was declared on July 2, 1776.  We in effect honor the spirit behind it, or at least, the creation myth behind it, July 4th being the day the Declaration of Independence was signed.  I end with a repeat from a few years ago, but will add that the PPACA (as SG Verilli noted at the end of his oral argument) can promote the liberty and equality it promotes.  See also, the last portions of this useful review by Prof. Amar. 

When we are true to ourselves, to our own beginnings and to the best of our history, we do not assert our entitlement to something called 'world leadership' on the ground of our now being 'the only superpower' -- that is, after all, just the bully's reason for claiming dominance -- but to our commitment to human rights.

- Charles L. Black, A New Birth Of Freedom: Human Rights, Named & Unnamed

Since the Fourth of July honors the signing of a declaration defending independence as necessary to better protect such rights -- independence itself voted upon two days before -- that quote is fitting. But, the fact that we needed help, particularly from France, so is this:

We hold these truths to be self-evident:

That all people are created equal and interdependent; that all life on this planet exists interdependently; that the future of all people requires that they live with respect for one another and for this earth.

That all people are endowed by their very humanity with certain universal, inalienable, and indivisible rights; that among these rights are the rights to life, liberty, clean air, clean water, food, shelter, consensual intimacy, education, health care, political participation, cultural expression, peace, justice and the pursuit of happiness.

- DECLARATION OF INTERDEPENDENCE

The Fourth of July is the time when many are filled with patriotic fervor, fervor that glorifies in our Independence and greatness. The Declaration of Independence, however, honors our interdependence as well. Its very first paragraph speaks of "a decent respect to the opinions of mankind." Such respect obligated us to explain why we were declaring our right to "assume among the Powers of the Earth, the separate and equal station" to which we are entitled. Do we really feel we are "equal" to the other powers of the earth? Do we have a decent respect of the opinion of mankind?

Next, the document speaks about how governments are formed to secure rights,* "deriving their just powers from the consent of the governed." When the government becomes "destructive of these ends," it is "the right of the people" to alter [including by election] or abolish it. "Their" safety and happiness is key, and it is "their" right, "their" duty to throw off government that fails them, even if prudence leads them to suffer until it is no longer sufferable. And, those involved are not singled out by race, blood, or religion ... "all" are included. The basic interdependent nature of this whole enterprise is crystal clear. The people must work together to insure that their interests, their rights are protected.

The document then lists various abuses,** targeting the king as many now target the President, though others such as the Parliament (Congress) have "too been deaf to the voice of justice." All the same, the document speaks in the plural, speaking of the American people as a whole. Their interdependence and basic interests as a whole are crystal clear. Not those of a select body of the people at large. Likewise, the ideal put forth is a peaceful and universal one: "we hold the rest of mankind, enemies in war, in peace, friends."

The document ends with a basic statement of honor: "And for the support of the declaration [and all it stands for] ... we mutually pledge to each other our lives, our Fortunes, and our sacred Honor." The interests of the community at large is our basic concern, but our honor must not be violated in the process. Power and self-interest alone are not to be our guide. The respect of our fellow citizens and the world at large is also a basic concern.

---

* The Declaration states that we have a right to life, liberty, and the pursuit of happiness. The pursuit of happiness is probably a term of philosophical art, involving what an ideal well-rounded person would seek. These rights are equally held. Lest we forget, the government has a responsibility to "secure" such rights, which surely includes a realistic ability to enjoy them. 

** The list is quite interesting and continues to have significance, including the importance of juries, civil over military power, abuses in war, setting up jurisdictions "foreign" to our laws, and so forth as the document quoted above suggests.

She-Wolf of London

Today being a full moon, this early 1990s series about a grad student who turned into a werewolf (a brief happening, her professor ties her up that night, the rest of the time they investigate strange happenings) is timely. Somewhat campy, the England episodes in particular had a nice sense of style.  Stories overall a bit more mixed.

The Gnostic Gospels

The story how an Arab peasant found some ancient scrolls in the 1940s after avenging their father's murder in a blood fuel sounds like something out of the preview of a novel with the word "code" in the title.  And, this is just the start of the saga -- how they eventually (minus some his mom apparently burnt as trash) got in the hands of scholars for review involves years more of drama.  Finally, there is interpreting the actual documents.

Elaine Pagels was involved in the editing of the texts found at Nag Hammadi and continues to write about "gnostic" writings and thought, most recently as part of book on the final book of the orthodox New Testament.  Such is part of the story -- the NT is a choice, twenty seven books chosen long after the fact, though the "canon" itself was largely accepted as normative by the second century.  This is not to say that we should take the books at face value -- only about half of letters labeled "Pauline" are likely written by Paul himself, for instance.*

"Gnosticism" is in fact a term given to various beliefs concerned with inner knowledge, often of a mysterious nature, often in conflict with orthodox teaching.  The book repeatedly shows that one reason why official "catholic" churches (though some of the critics ironically eventually split from the official church themselves) were so passionate about the evils of gnosticism was the threat to the basic aspects of the institution.  A concern for self-knowledge could threaten basic principles of apostolic authority (including the bishops as following in the footsteps of the few with direct experience of the Resurrection) and widespread membership that is allowed by following creeds and practice, not some special knowledge that only a few can truly reach. 

The author over time clearly has mixed feelings about gnosticism, including in a later book in which she talked about a traumatic experience in her own life. The psychological aspects (the "inner truths" of the movement fascinated Jung), acceptance of a role for women (and the feminine aspects of God)  and the individual (often in very poetic way, plus accepting the ability of a "living" interpretation, not tied to past accounts) all interests her as well as what it tells us about the orthodox view. The themes still with us.  On the other hand, she respects Christianity and its broad membership, something unlikely to develop with the esoteric and clearly somewhat elitist gnostic point of view. 

Take the belief of some that martyrdom was the true path to glory, based on a proclamation of faith.  Some gnostics were wary at best about this path, seeing it as glorifying death while the believers might not actually know the truth -- merely belonging to the official church wasn't enough there.  This seemed to some as a grave insult to the dead.  And, is not membership in the official church positive in various ways, including respecting humanity, in all its glory, not rejecting such things as imperfect physicality as compared to the inner spirit?  The belief in the human Jesus might seem illogical given Christian beliefs, but it also seemed more human to honor our whole self, including sacraments to honor life moments.  Gnosticism might be ideal, but pie in the sky.

The various sides of each point of view adds to the thought provoking nature of the journey here.  Ultimately trying to actually wrap one's mind around some of the esoteric writings leaves something to be desired, but how many try the same with some things in the official Bible? 

---

* There is some effort to push back gnostic thinking to the mid-original century of the modern era, e.g., dating the Gospel of Thomas (or part of it) as early as c. 50.  Admittedly, I'm not an expert, but it seems gnostic writings are of a second generation variety overall, though "in the air" by the time of the end of the century as the final books of the NT (including II Peter) were not yet written.  Such sources, including writings not found in the actual New Testament (including from Bishop Clement) already were concerned about such "heresies" and "false teachings." 

And, it raises themes also present in Greek philosophy, so the overall themes could have been around quite early, though applying them to Christian thought probably took some time. Suffice to say, I think the synoptic gospels are probably more akin to Jesus' actual ministry, but to the degree "the truth" is found over time, this is of limited importance.

The haziness of balls and strikes

“Well, at least it’s clear that they can’t order you to buy broccoli,” Mr. McCollum said, a final nod to the vegetable that played a central role in the plaintiffs’ case. “There are now very specific limits to the commerce clause.”

Keep the faith, Mr. McCollum, don't let the evidence stop you.

Yes, I thought I was done with this, but now we have a media account (from someone known to consider things from a conservative point of view, see her book, which I guess optimistically can be seen as a good balancing technique) with insider information about Roberts' thought processes.  It helps explain why the dissent did not join with Roberts, even when they agreed with his bottom line -- pique apparently.  The net result, though Roberts insists (somewhat convincingly, but not for some) otherwise, some argue the whole Commerce Clause bit is dicta.

Randy Barnett (in his white knight suit) was on Chris Hayes over the weekend and argued that eight justices voted their conscience, Roberts acted like a politician.  Sorry Mr. Advocate, no dice -- Breyer and Kagan joined the Medicaid coercion argument and it is dubious to think they did so just on the merits. [To be fair - as a comment at the link suggests -- they had problems with it, but seems to be statutory, but even there the leak article underlines the dissent had motives beyond a simple application of the law itself too.]  But, as I said there, let's say Roberts did compromise. This isn't invalid -- juries compromise, CJ Marshall compromised ... the Constitution itself is not merely some clear-cut document, but a compromise with hard questions papered over with some vague terms and conflicting principles (free speech v. fair trials etc.).  And, his tax v. "command" views were hinted at months back.

Justices are human beings and do have some degree of humility and limitations.  Majority opinions repeatedly involve justices consenting to some opinion that they might not agree with 100%, though some like Justice Thomas might rather a split ruling (like the Confrontation Clause case) that confuses the law of the land.  Back in the 1790s in cases like Hylton v. U.S.  and Calder v. Bull justices said a federal law would only be struck down in a "very clear" or "clear and urgent" case.  An extra degree of restraint because two bodies of Congress and the President, voted for by the public or their representatives, each swearing or affirming to uphold the Constitution, by act said the law was constitutional.

Some are cynical that Roberts did this just for pragmatic reasons, to protect the reputation of the Court and/or allow him to strike down affirmative action legislation or something in the future.  But, reputation was deemed an important check by the Framers, remains so.  We restrain ourselves for various reasons, including as a matter of honor and the realization that dishonor has various negative consequences. I think Roberts deserves a bit less praise overall than some might be giving him, but he deserves a bit of respect here. It just, don't laugh, also be that he took the tax argument somewhat seriously.

The rejoinder might be, "what if abortion" is up there, or free speech?  Well, the general answer is the famous Footnote 4, regardless if it was originally only accepted by a plurality.  An otherwise obscure case about milk regulation, it set forth a principle that economic regulation would generally be give a broad presumption of constitutionality unless it "appears on its face to be within a specific prohibition of the Constitution" (not a vague open-ended barrier like the 10th Amendment), "restricts those political processes" normally relied on or if burdens "discrete and insular minorities may be a special condition."

Political processes (or things such as clear statement rules that can be enforced by the courts)  were noted as important checks when using the tax argument.  Madison in a speech in promotion of the Bill of Rights noted "independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights."  Not every right under the sun.  The Tenth Amendment can be included here, so this alone cannot answer the critics, but even there an open-ended view of the courts as interpretation of the Constitution as a whole does not seem to be present.  Long held clear precedent can also bring forth clarity, but there isn't any really that justifies the CC ruling.

The 1990s brought forth more of a concern for judicial checks to promote federalism overall, even "when appeal is made to liberties which derive merely from shifting economic arrangement." But, even there, an open-ended libertarian Constitution was not really in place. There is a limit of judicial capital available, a limit of judicial competency.  Certain subjects are going to be seen as more the job of the judiciary though they will be loathe to close the door totally to anything.  And, time showed that economic rights are not ignored -- the last time Roberts joined merely with the four liberals might be a rightful notice case involving property.  Commercial speech, Taking Clause issues, commercial issues that touch upon other liberties like purchase of contraceptives, etc. show this.

Even if Kagan honestly meant it when she said -- with reference to the turtle metaphor used earlier -- that "it is law all the way down," law itself is developed in complex ways. Not always ideal but probably more interesting and realistic than the pure form some wish for. 

Necessary Beings and all that

If everything must have a cause, then God must have a cause. If there can be anything without a cause, it may just as well be the world as God, so that there cannot be any validity in that argument. It is exactly of the same nature as the Hindu's view, that the world rested upon an elephant and the elephant rested upon a tortoise; and when they said, 'How about the tortoise?' the Indian said, 'Suppose we change the subject.

I'll talk about Elaine Pagels' book later but a few thoughts on a somewhat related matter. Not that long ago, I looked at a book that did something a bit ironical: it in effect tried to use reason against atheists [A Shot of Faith (to the Head)]. Personally, and people with much more religious faith than I tend to agree, this sort of thing is not really advisable.  A professor in the early 1990s show She-Wolf of London noted society has always needed myths.  Myth of not, we also show a need for religion.  Trying to make religion a matter of science is not really the way to go though.

Evidentialism is a theory of justification according to which the justification of a belief depends solely on the evidence for it.

The book strikes against this philosophical argument, which means more than simply relying (as we generally do in our everyday lives) evidence and rational basis as a general matter.  We don't rely merely on that though; we rely on feelings too  and "faith" is a form of feeling.  It might ultimately be based on subconscious reasoning process in some fashion but like love and hate, "evidence" is not the only thing that really matters here.  I think the term takes things to a bit esoteric level myself.

Things are taken even further with some debates about "God," the quotes quite advisable since here we are talking about the concept, including such terms like "necessary beings."  I got in a back and forth, tad tiresome with a thumb on the scales (out of left field, suddenly a "Christian God" was necessary) one, on this matter in response to something I said about the book.  Simply put, the term for a long time seemed artificial to me in this context.  First off, like aliens populating the earth (a comparison that threw the person off ... but aliens still aren't "necessary beings" ... not the same thing ... what are you saying?!),  why stop there? Avoidance mechanisms might take questions off the table, but they don't cause them to totally disappear any more than other avoidance mechanisms do.

The all knowing, all powerful and all good idea of "God" (and this sort of gets into Pagels book though there we just have something of a new level -- there being a flawed "creator" figure below the ultimate source)  are not really "necessary" even to avoid the so-called "infinite regression" problem.  Why is creation "good"?  Why does the creation of our universe require unlimited power?  The ancients who thought up of Zeus et. al.  weren't so pure in their reasoning.  Personally, if there is a God or supernatural universe out there, I think it's made up of flawed forces, which might not be as reassuring to some, but it is to me in a way, since it seems more satisfying given how imperfect life is.

We rely and get solace from imperfect things, including our loved ones and religious communities.  A nod to last night's Army Wives, which I saw shortly after catching up with the new episode (after a short hiatus) online.  Good episode with various powerful subplots, including another good guest appearance, this time from Anna Chlumsky -- yes, the young actress from My Girl (tempus fugit) dealing with a husband injured in an explosion.  Also, how to handle a birth father imperfectly handling seeing his son again and the aftershocks of killing in self defense.  Toss in some marriage woes and the episode followed the skill of an earlier story arc.

Anyway, the nurse/mom/quiet soul who killed the person went to her minister for counseling.  His comments to her were a sign of the excellent writing and performances of this season.  One thing he said that in this imperfect world that we can honor life even if sometimes we need to take it. How far this goes, putting aside the fact he is a minister to many soldiers, can be debated, but there is a clear truth to it at least in some cases.  She went to him not because "evidentialism" is not a way to live our lives, but because religion served a role in her life and he provided a means to deal with her issues here.  This is fine, even if someone thinks her God is mythical and I am against "strong atheism" that doesn't respect that as much as excessive remarks from the other side. 

And, after what seemed a fairly rare positive comment about self-defense, we have a fairly rare case of religion explicitly playing a part in television outside of the usual suspects. 

Sunday Night TV

That new newsroom show on HBO -- a tweet compared it to Ally McBeal; no, that show was less annoying. So pretentious and fake. Last week's Army Wives was the third time CJ was in a lethal situation. I wonder if the NRA will use the ending for recruitment!

Rev. Joe (Gnosticism)

I am re-reading Elaine Pagels' book on the Gnostic Gospels, after seeing she (and Bart Ehrman) have new books. I talk about these authors here and here. I can see how the approach in various ways can be attractive long ago and now. More later.

Next Step?

June 2009 was about Sotomayor, 2010 Kagan, 2011 was a break, 2012 is PPACA ... will 2013 be about same sex marriage? To close the PPACA comments, Sam Seder's podcast was pretty good.

Supreme Win For Women

In short, [the PPACA] will increase health-insurance coverage for women, lower their health-care costs—and end the worst insurance-industry abuses against them.

Thanks to Democrats. Republicans said "NO!"

Human Rights

These treaties reveal a longstanding global recognition of the human right to health. We must evaluate the Supreme Court’s ruling in light of this significant body of international law: an important step forward, but only one step on a long journey towards full human rights for all.

Governments, federal/state, have the power and duty to protect it.

Scalia Joins Liberals (Moderates)

After the final orders, another order was posted that looks a bit strange.  It seems to be addressing this habeas writ grant, here four of the conservatives (minus Scalia) supporting a stay of the order.  Five being needed, the grant was upheld for the time being.

The Missing Constitution?

Those online ignore the message here freely, but as Glenn Greenwald noted once, sometimes the person you are responding to is not really the point. They voice something that others are thinking too. And, of course, it feels good to hear yourself talk and school someone. Oh, and you know, maybe each side will learn something.

Justice Ginsburg’s Constitution is the Constitution of New Deal Democrats. Article I gives the federal government the power to resolve any national problem, particularly national problems that individual states cannot resolve on their own. The number of persons without health insurance is a national problem that states cannot resolve on their own. Since the individual mandate and extension of Medicaid are not utterly idiotic solutions (the New Deal standard) to that problem, they are constitutional.

Roberts uses the Constitution of the Republican Party while the four dissenters (it is curious that they labeled their opinion a dissent when in effect they joined the holding on various points; it seems a bit counterproductive on precedent grounds) are Tea Party types.  This is a somewhat simplistic summary.  The ruling does not say that "any national problem" that is resolved by something not "utterly idiotic" is constitutional. This caricature falls by noting there are many constitutional provisions that limit the federal government without making it "utterly idiotic" for Congress to invade them.  And, the means here was specifically a commercial regulation. Ginsburg does not ignore the principle of "enumerated and limited" powers.  

As to Roberts, since I don't recall military commissions in Gitmo during the New Deal, the New Deal is not really a limit on federal power -- only in certain areas, apparently.  And, even in respect to non-military areas, such as abortion regulations or protections of religious liberty, Roberts will accept broad federal regulations. Even the dissent is not quite that suspicious, especially Kennedy -- I doubt he is really a "Tea Party" type in various ways, including the fact they tend to be socially conservative.  And, though it might be true to the others, even someone like Alito isn't overly pure about the idea in various respects.

What might be called the Move-On or Progressive Constitution is missing from this debate entirely. ... The post-Civil War Amendments, most notably the abolition of slavery and the equal protection clause, were designed to ensure that all persons would have the rights and resources necessary to live lives as democratic citizens (or some other phrase). Persons need rights to health care in order to function as democratic citizens. Therefore, the individual mandate and expansion of health care are legitimate exercises of congressional power to enforce the rights protected by the Thirteenth and Fourteenth Amendments.

It is not as if Ginsburg et. al. are not open to this sort of thing, if given a realistic chance.  Tennesse v. Lane, e.g., was a limited win for those resisting current state immunity doctrine because it was found the due process rights of the disabled to access of the courts were being addressed. This Fourteenth Amendment right is recognized while generally speaking burdens on the disabled need only meet a rational basis test.  Ginsburg concurred separately to defend Congress' ability to broadly protect the equal justice for the disabled.  She also used equal protection of defend abortion rights, not the traditional privacy rationale alone.  She has to work within actual doctrine though.

I think it quite reasonable to say that the PPACA is necessary to protect equal protection and it has been defended various times with rhetoric that promotes that overall meme.  I myself defended it as from the beginning, though some people was totally turned off by that idea.  That is, it allows everyone (or much closer to that reality) the ability to not be denied a basic necessity because of inability to pay, conditions beyond their control and so forth.  Art. I powers can be used to promote such ends, so all the same, I wouldn't use that by itself. I think the anti-slavery connection is more of a stretch, though the desperate state of those without proper health care and disproportionate affect on certain groups does bring to mind being not quite free and a racial angle.

Two things.  First, Art. I. itself has various powers that deals with such issues.  For instance, taxation for the "general welfare" -- that is, for everyone, not for some specialized group.  Medicaid is a case in point; not defended by reference to the 14A, but as an appropriate use of the tax power in a way that advances equality.  The commerce power has similar value as clearly seen by the Civil Rights Act of 1964.  A strong exercise of such powers will protect equality and the blessings of liberty for all. 

Also, the measure is a federal one -- the 14A in particular generally concerns states.  It is true that it also references national citizenship and some argue it should be used to protect a broad vision of that term nation-wide, both in federal and state jurisdictions.  And, since there is just one national citizenship, not grades of it, it has an inherent equal protection component that applies to each citizen, not just against state action.  But, that isn't how doctrine works these days and in fact (like those who can't understand why people don't see abortion rights as a basic Thirteenth Amendment issue) not broadly seen that way.

It would be nice to have a strong left leaning voice on the Court, a latter day Thurgood Marshall, that would consistently be able to promote such views as if this was the early 1970s.  (Judge) Goodwin Liu and others might have some opportunity in the future to do so, perhaps, some of his writings recommended.  From time to time, on certain issues, we will hear it.  But, when the federal government itself did not raise such an argument, it is a bit much to expect some voice on the Court to independently bring it up.  I agree it is somewhat unfortunate and that the Roberts opinion will help to restrain the "Overton window."

Such are the continuing effects of 2000. 

SCOTUS Final Orders

The final moves of the term included not accepting cert for various outstanding PPACA cases and the "wardrobe malfunction" case. Roberts had a playful concurrence there while Ginsburg noted the government can think about overturning their "Pacifica" policy.

Meanwhile at the SC ...

Today, the full Court vacated that temporary order and denied a more durable (or permanent) stay, with Justice Alito dissenting.  This means that citizens will be able to register in Arizona for this cycle’s elections without first having to produce specific documentary proof of their citizenship.

Details here.

Crying Wolf

Some kept on saying it wouldn't be passed and then many said it clearly was doomed in the courts.  Others said the tax argument was a joke.  It did pass and it was (mostly) upheld.  And, via taxation.  Oh well.  Oh, like Ezra Klein noted on Maddow, each time some provision is put in place, this "very unpopular" law is supported.

PPACA Ruling (or just read Ginsburg)

Dear Joseph,

Just heard the Supreme Court's ruling -- such exciting news.

We don’t know all the details just yet, but this hard-fought battle was worth it. The Court’s ruling means we can expand coverage, lower out-of-pocket costs, allow students to stay on their parents’ insurance until they turn 26, and end insurance industry abuses like denying coverage based on pre-existing conditions.

I’m so proud of President Obama and so many of my colleagues in Congress who did the right thing -- even when it wasn’t easy. Please join me in telling President Obama that we stand with him.

Click here to sign my message to President Obama now.

And I’m thankful for all of you who gave your support.

Kirsten

This was an email I received from my senator right after what one NYT account called "a striking victory for the president and Congressional Democrats." Replacing the other one -- Arizona v. U.S. and the individualized sentencing for minors liable for life imprisonment to provide a pretty good week.  Yes, there is the Montana campaign finance ruling, but that was a holding the line thing that was basically "you were wrong."

And, well, there's the fact this ruling -- turning on CJ Roberts doing a CJ Hughes impression vs. a joint dissent who thought they were signing on to a latter day Cooper v. Aaron apparently (when did justices each sign on to a dissent like that?  Scalia's name came first, but it was Kennedy's baby) has various possible landmines.  "This is the first time the Court has ruled that federal spending legislation is impermissibly coercive."  And, for some reason Breyer (who never finds a federal law that he doesn't like on federalism grounds) and Kagan signed on to that portion.  The result might be certain states [I said "wingnut" originally, but find taht word unduly divisive though in this context, if nothing else, it would be pretty deserved] will deprive poor people of the Medicaid expansion since they get to do so since the feds paying for it unduly "coerces" them somehow under lines Justice Ginsburg (with Sotomayor all alone on this point) shows is hazy. 

This is but one of the consolation prizes the Volokh Conspiracy "libertarians" have and it will at least lead to more litigation, if not problems with current law.  Next, the majority (Roberts thinks it isn't dicta since it is why he winds up with a taxation ruling that might not otherwise be necessary to save the statute)  actually accepted as constitutional law some of the ... sorry ... stupid arguments.

[And More: Some like John Dean appreciate that he showed some judicial restraint here, particularly the end result, which to be fair is somewhat right.  And, in a fashion, the "I know it when I see it" nature of artificial lines drawn is basically loyal to the nice sounding (to some) but skin deep federalism jurisprudence of the last fifteen years. You appoint a Rehnquist clerk, you get that.  But, I can only go so far on the bus, since as applied, the reasoning is still lame.  Sometimes, it's a game of lesser evil.]

Now, though Ginsburg notes even with it (her opinion is great with lots of quotable gems) the "tests" aren't violated, we have an "activity" vs. "inactivity" rule for the Commerce Clause and somehow (at least here; cf. jury duty, militia service, tax preparation etc.) it helps make the means (quite necessary to regulate interstate commerce pursuant to the scheme at issue) "improper."  Also, people here are being compelled while doing "nothing." No, they aren't.  Also, unlike past precedent suggested, even nearly inevitable future conduct cannot be used to justify the commercial regulation at issue.  Finally, it's okay to be somewhat wary of novelty and Roberts admitted this was only a possible red flag, but being able to apply new solutions to changing problems is a feature not a bug. 

[And More: I'll add one thing here -- "The individual mandate, by contrast, vests Congress with the extraordinary ability to create the necessary predicate to the exercise of an enumerated power."  This is silly, since the Congress isn't inventing the problem, they are addressing an existent one.  Dealing with the resulting legislation is not a problem.  The NPC section also is based on such dubious premises. The weakness of the reasoning given the breadth of the move is unfortunate, the fact the same thing is upheld all the same just makes the whole exercise look silly.]

Again, read Ginsburg's opinion which covers all this ground, there is no need to cover yet again such talked to death in various places.  My only point here is to note that on some level I don't think she goes far enough. The absurdity of the "doing nothing" brigade is that there simply is no practical way people will not be "active" in this context.  The relevant universe is not just specific people needing health care, though sure, this helps to show (along with enumerated limits and the democratic process) how upholding the law on Commerce Clause or Necessary and Proper grounds doesn't open up unlimited federal power.  It is interaction with others who use health care, involvement in a market where insurance is a significant matter, it is dealing with the results to the national economy we all are part of medical bankruptcies etc. 

Anyway, as a type of joker, Roberts said the PPACA is saved (mostly -- the Medicaid provision is hurt somewhat given its enforcement mechanism is weakened) because the only thing that happens if you don't get insurance coverage (not ... per the headnote ... "purchase insurance") is what functionally looks and acts like a tax. Not enough to block the USSC deciding the issue now under the Anti-Injunction Act, something suggested by some (including a few judges below) as reasonable, so he gets to do his part to promote maximalist doctrine via a minimalist opinion.  But, remember, President Obama asked for a ruling now too. 

The tax argument wasn't really taken too seriously though I personally (hey look it up) continuously thought it reasonable as did a few judges below in separate opinions.  In fact, a comment by Ginsburg during oral arguments made me think even the liberals weren't that gung ho about it.  The overall idea is that Roberts is using it as a political sort of savings clause and isn't really serious about the whole thing.  He is not game to throw the baby out with the bathwater.  I'm pretty surprised, especially with all the juicy new doctrine, that Kennedy didn't go along here.  The majority protected "liberty" by finding mandates of this sort unconstitutional, noting taxes here provide more flexibility and do so without making people criminals.  The tax doesn't go so far as to be unduly coercive and it isn't a direct tax.

The whole section is actually pretty well argued and touched the bases I have cited in the past online when talking about why the tax is acceptable.  I'm in fact okay with being somewhat wary about "mandates" though again they aren't unconstitutional in general or even here.  If something, e.g., "substantially affects" interstate commerce without being it, and a mandate of this sort is "necessary" as part of a comprehensive scheme, there is no real good reason to not allow it unless it violates some other constitutional provision or general principle.  But, fine, be wary of them, require a greater test.  Even then, as Ginsburg notes, the insurance coverage requirement is particularly necessary ... without saying so, she in effect says it meets the rational basis with teeth standard suggested by Kennedy in his U.S. v. Comstock concurrence.

The five here is akin to the person here that has a curious way to apply the tax power. Art. I, sec. 8 provides three reasons for taxation, and "revenue" is not the only one. I'm not sure where this need for "an effort to generate revenue that would replace the money that the feds will lose as a result of private persons' failure to buy insurance" is found in the text, ditto the limits now the law of the land given how the Constitution's meaning develops over time, much affected by political events, including who picks the people making the final decisions.

Well, bottom line, a constitutional law passed by a supermajority using a conservative approach barely survived.  How much all the dross will affect constitutional law etc.* is left to be seen.  One more reason for vote Obama and the Democrats in general in November.

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* For instance, there was a split among the SCOTUSBlog team, one thinking it would hurt in the short term given the anti-tax mentality of the current political universe, while another thought the law is atypical enough that it would not matter much.  

PPACA Tweets

Minor league Mets pitcher Collin McHugh worried about free lollipops and his wife thought it "way selfish" for Obama to hog naming rights.  Actress Elizabeth Banks retweeted that it is pretty funny the "right wing outrage" came from a Republican idea.  Like that woman.

Stolen Valor Case

I discussed the case here and here's an opinion summary.  The ruling was pretty bland though it starts out saying "Lying was his habit."  Four see it as an illicit content based provision (I agree), two as too broad and Alito leads the dissents in thinking it acceptable.

SCOTUS Update

Quick reaction: sheesh.  Whew, but this will cause some problems.  The Stolen Valor case was in effect decided on narrow grounds.  Scalia thinks token laws about lying are okay, while limits on selling violent video games to minors are not.  More later.

So little love

First Am. Financial Corp. v. Edwards ... it feels left out.

[A potentially important case, it was dismissed without comment as improvidently granted.]

Posner Speaks

[And Also: A sentencing policy blog has discussed the cases in detail and has a good post challenging Thomas' originalism dissent, including the assumption that mandatory life imprisonment obviously follows from mandatory death sentences of the Founding Era. But, that is not necessarily true.  Life imprisonment might be worse.  Some "volunteers" do want to die, including one case in NY some years back that split the siblings of the victim.] 

A tweet informs me that Tom Goldstein thinks the ACA will be upheld, not fully convinced, but on balance sure enough to make a position. Not really worth linking to the SCOTUSBlog post on the matter and you know, "fwiw." Still, my heart says "yes," and my head says "that is a reasonable thing to say." Anyway, a tweet (another way to spend time online, as if there aren't enough) links Judge Posner's take on the individualized sentencing for minors ruling yesterday. In part:

The analysis part of the opinion begins with two quotations from Supreme Court opinions, one that the cruel and unusual punishments clause "guarantees the right not to be subjected to excessive sanctions" and the other that the clause "flows from the basic 'precept of justice that punishment for crimes should be graduated and proportioned." These propositions have no basis in the text of the Eighth Amendment (imprisonment is not cruel, and mandatory life sentences for juvenile murderers is not unusual, at least in the United States) or the English legal history that lies behind it or punishment practices in 18th century

Posner takes up so much that one can forgive some weak reasoning, but really, this is thin gruel. [He's okay with the ruling, btw, just is sorta upset about how they got there.] The opinion is not about imprisonment itself being "cruel," it is about life imprisonment for minors without providing individualized treatment of all the factors. Wrongful imprisonment can violate the clause. Reliance on history also is not a "textual" matter. And, as I noted, just because something is not "unusual" doesn't necessarily mean it is saved under the clause (e.g., I can hate jam and ham, and still hate jam alone). Finally, what exactly is "unusual" in this context? If 1% (one number cited during the oral argument) is involved?

"the evolving standards of decency that mark the progress of a maturing society." Is the United States a maturing society? Surely not in the realm of criminal law

Why not? It isn't totally evolved, yes, but that is akin to saying a sloth is not fully evolved vis-a-vis a human. Our penal system in various ways is better than it was in the days when Posner was a boy, when there were less due process rights down to the ability of the poor to get counsel (however flawed) at all in many states. Later, he says that he wishes (channeling Colbert) that he wished (I can hear a Disney song in my head) judges could do more than rule by their "gut" in cases like this. They do. As in many cases, something that might be called a judicial gut might very well be the final factor. Still, that isn't the only thing used.

The discussion overall among the participants is fairly interesting, including various remarks Posner made. But, I find this lazy.