RIP Ronald Dworkin

I have been waiting some time now for Ronald Dworkin's "Religion Without God" lectures to be released in book form. The basic idea, see also U.S. v. Seeger, is that there something "answers to moral questions or instill the universe with a glory it would not otherwise have" that we can define as "religion" and a deity is only a possible source.  He also alluded to this in Freedom's Law and other books as a means to defense personal decision-making in life and death cases like abortion and euthanasia.  The idea seems sound and descriptive of our society.

Not sure if the book will ever come given the author has died.*  I have long enjoyed his writings, including in the NY Review of Books, though have not gone into the weeds of the deeper philosophical aspects of his thought.  As one review noted some years back, Dworkin perhaps tried too hard to provide an overarching philosophical understanding of things like the constitutional meaning of the First Amendment. I think he assumed his premises some, but that's a common thing.  The most important thing is that the journey was worthwhile.  I think -- don't claim to have attacked his most learned writings -- I am basically in agreement with his major sentiments, including the fact that the law, including constitutional law, has a certain moral basis, constitutional values if you like.  And, these develop over time, judges having a duty to apply them. 

“We have the same basic philosophical issues facing us. What is the role of the judge? What rights of moral independence do people have? When, if ever, is it permissible to kill people as punishment? What is free speech about? And then Scalia says it’s American law that counts and that’s all. That’s mysterious. We’re not talking about precedent. We’re taking about sensitive people of the same general intellectual background as ours facing the same issues we face and our listening to what they have to say.”

The obit linked above itself links to a good article from 2004 (reference to the Kerry campaign) by the current NYT Supreme Court reporter (successor to Linda Greenhouse), an eleven page article with some pictures.  It discusses in part his clerkship with Learned Hand, including working with him to craft a famous set of lectures that (to his annoyance; the article has the great judge say "Fuck you") led Hand to be forced to admit under his view that Brown was wrong.  [Freedom's Law includes a similar account without the expletive.]

Dworkin was upset at this, since Hand didn't therefore change his vision.  Dworkin still thought Hand a great man, even though Dworkin's moral vision of the law clashed with his.  It also somewhat, and this was a problem for Hand too, clashed with Brown -- Brown in effect didn't go all the way, it was somewhat morally wishy-washy (see also, Naim v. Naim).  This might be a way to defend Hand, perhaps some might say he would have seen things differently after Loving v. Virginia.  No, some other now generally accepted ruling would still fall by the wayside, in part because of disputes over somewhat hazy line drawing in part moral in character. 

But, such is how law works in action.  Imperfectly with compromises that hopefully advance things in the right direction. Herculean applications of it are left to philosophers, like Ronald Dworkin.  R.I.P. 

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* With the recent death of his nemesis, Robert Bork, it is almost expected.

Marriage: Not For Love, For the Some Children

And of the eight states that provide virtually complete benefits to same-sex couples under “civil union” or “domestic benefits” statutes — which include Delaware, Hawaii, Illinois, New Jersey, Nevada, Oregon and Rhode Island in addition to California – none has filed to defend the constitutional authority of a state to deny such couples the status of marriage.

This is striking in that you might think at least one of them would find the Prop 8 ruling important since it threatens their in-between stance.  That is, California provides broad rights to same sex couples, drawing the line at "marriage."  The ideal for some who support the anti side here is same sex marriage for all, but the median path is more likely that the Prop 8 law (removal of SSM rights per constitutional amendment tainted with animus) specifically is problematic, not any ban on same sex marriage.  A brief from one of these states to set forth this limited path would be sensible.

About half of the states that ban SSM and don't have such an alternative did sign on to an amicus brief, basically a bunch of Southern states with a couple add ons, Michigan signing a brief on its own.  One might think Michigan would have a fairly sane view of things.  OTOH, the state is currently controlled by Republicans, the two Democratic senators notwithstanding.  So, it is not surprising really that the brief is the usual anti-gay claptrap, state Republican control these days generally leading to one of more of the following: voting restrictions, refusal of Medicaid expansion per ACA, abortion restrictions and/or targeting gays.

The brief basically starts with support of sex discrimination: traditional sex roles should be endorsed in its marriage laws.  Problem is that if that is your argument, you cannot use reasonableness review. Sex classifications must be narrowly tailored and the range of marriages that do not involve child-rearing alone shows the lack of that. Not that social science lacks evidence that same sex couples raise their children as well or at perhaps even better.  The research is somewhat new and federal appellate courts very well might be wary at this time to rest on that.  But, the telescope is turned around with sex classifications.  The brief underlines the problem.

We are assured there is no "animus" here. Michigan denies children of same sex families basic rights (though the protection of children is cited as a strong state interest), not providing domestic partnership benefits or the like.  Whatever is "ideal," the reality is that same sex couples will still have children.  CA protects them in any number of ways, though not equally since "marriage" in law and fact offers more protection for all involved, including the couple and their children.  Michigan does not do even that, not just giving something extra to different sex couples, but significantly harming same sex couples.  This includes blocking adoptions.

The brief even brings up the specter of plural marriages. Where plural marriages have long been allowed, same sex marriages generally have not been (South Africa, which allows plural marriages for certain traditional followers of the practice, an ironic sort of "tradition" exemption, is the only current one that comes to mind).  Why?  The actual line is sex based: a stereotypical belief that marriage partners must be of the opposite sex.  This is the case for seniors and others where procreation is not the issue, plus where marriage is quite different from it traditionally has been.

"Tradition" is selectively favored in ways that harm same sex couples.  This is animus.  That sounds mean, but "animus" tends to be justified as legitimate, such as laws that burden felons or the like.  The dislike here however is illegitimate.  The selective nature of the enterprise is a red flag.  "Rational basis" can result in laws with a bad fit but (1) not sex discrimination (2) not blatantly so when they target groups that do not deserve it and (3) not for certain groups that have received extra protections (FN4 etc.) and sexual orientation should fit here.

The best approach here is a "go it slow" one.  Prop 8 is blatantly wrong and however somewhat messy (debatable) it might be, the lower court ruling provides a narrow approach.  Unless one of these other states has its courts rule the state constitution protects SSM (unlikely, given they repeatedly expressly say the opposite) and then by a similar approach (not even a Hawaii legislative discretion rule ... though there the courts never finalized its SSM protection)  took them away, the CA9 ruling need not harm them.  That is, if the circuits involved decide the same way, the USSC taking the case partially halting "percolation" in the courts on the matter.  The USSC didn't step in to block the CASC upholding interracial marriage decades before Loving, even though it partially used federal constitutional law.

Half of the states that do not have SSM seem to realize this and did not submit or join a pro-Prop 8 amicus brief.  Doing so is in fact somewhat counterproductive since it underlines the injustice of their policies and if anything might push us closer to SSM. Demeaning marriage by suggesting it is basically about procreation and a certain type of child-rearing is not likely to be appreciated by many whose lives and marriages do not fit the stereotypical mold.  So, such efforts are helpful in a fashion to equality. 

Happy Valentine's Day. Remember. Marriage is not really a bilateral loyalty for love and so forth, it is there specifically for the children. Unless the children are in the wrong sort of family. The others are lucky also-rans, again, unless they are not the right sex. 

God Said, 'Ha!'

Double quotes sometimes used too! Julia Sweeney has an upcoming book about motherhood (her second monologue discussed the adoption of her daughter) so re-watched the title monologue (which in part explains why she adopted). Enjoyed it again. Discussed her third monologue (the daughter made an appearance in person) here. My type of gal.

[Photo Not Included]

Had a freak accident recently that led to the need for some stitches in my arm and it underlines the value of insurance. If I didn't have any, the trip to the emergency room (no morphine for me, but I felt like an extra on ER, it being a teaching hospital) and two follow-ups would cost a tad more than $0. Ah, that is what exposed muscle looks like.

VAWA

Republicans are latching on to pretty trivial things to block the re-authorization, but rights of non-members accused on tribal lands seems to be a credible dispute. Uh, not really. At most, it isn't totally out there. If you choose to reside on tribal lands, being treated like tribal members would seem to be equal protection. Here, it's allegedly unjust or something.

Ashes to Ashes

So, what are you giving up for Lent? Me? Didn't really do that sort of thing.

New Chief at D.C. Circuit

U.S. Circuit Judge Merrick B. Garland on Tuesday became the new chief judge of the D.C. Circuit Court. He moved into that position after Chief Judge David B. Sentelle finished his term at the head of the Court. Judge Sentelle took senior status, and will continue to sit in that capacity.

Sentelle is a true believer conservative sort, while Garland was on Obama's short list to the USSC. Might not mean much, but interesting given the circuit's importance.

TV Update

Rules of Engagement is back -- the first new episode was saved by Liz, the second was pretty lame. "Jen" has a new look and still not much to do. The first episode of The Americans about KGB spies in 1980s U.S. was pretty good. Keri Russell has a good "don't f with me" face. Colbert (resident Catholic) last night was a good "pope update" viewing.

Pitchers & Catchers (but no Bourne)

The Mets have a bunch of also rans and maybes in the OF though if they got even one everyday type (like B), it would be okay for their needs and send a message the team isn't just waiting until '14. B. also would have gave them a lead-off guy. But, a first round pick (#10 at that) allegedly was [a] problem. [Whatever.] Didn't really want him.

Rev. Joe: National Prayer Breakfast 2013

Obama noted that prayer should transcend politics said the unity provided by faith often quickly goes away.

See here and here. Not a gigantic fan of "prayer" days [that are far from fully inclusive] or such that have a semi-official character, especially given the questionable sponsors. But, such nods to civic religion are expected these days and Obama seems to handle it pretty well.

Release the Actual "Kill" Memo

Leahy and Grassley are not terribly impressed with the white paper either, saying in their letter, that it “was not an adequate substitute for the underlying legal analysis that we believed had been prepared by the Department’s [DOJ] Office of Legal Counsel (OLC) ….”

Yes. Release the damn OLC memo. This Cliff Notes version is better than nothing, but heck, it was leaked first anyhow, so half a cheer at best. If there is real (he says doubtfully) bipartisan concern, how about restraining funding or something unless it is released?

C-SPAN or Civil War Channel?

It is joked by some that the History Channel is really the Hitler Channel for all the WWII coverage.  At time, it seems C-SPAN is the Civil War Channel, given the focus of weekend educational programming.  Last night (and now) is Gettysburg. Imagine how it will be in July, which is the 100th anniversary. There is a lot of other ground to cover in our history.

Actual Innocence

A comment at blog referenced earlier posted a worthwhile (if a bit tedious) article breaking down the number of wrongful sentences, suggesting the true error rate in death penalty cases might be 3 to 5%. One footnote alone is worth the skim:

I am not morally opposed to the death penalty. In fact, after reading the details of the underlying episode in 406 capital cases in a fairly short period, I am even less opposed to it on moral grounds than I was before. On the other hand, I do favor the abolition of capital punishment on a number of grounds: first, because I do not think a 3–5% error rate is an acceptable price to pay, nor do I think we are ever likely to undertake the reforms to reduce that error rate significantly; second, because I do not believe that the death sentence can ever be evenhandedly administered given the current nature of sentencing hearings, third, because the existence of capital charges distorts the incentives in plea bargaining in such a way as to raise the number of factually wrongful convictions by guilty plea; and last, because the existence of capital punishment draws all attention to the death penalty and away from the systemic problems and injustices of wrongful conviction in the non-capital parts of the system.

I am morally against the death penalty, but do not find those who are not reprehensible or anything, especially after reading some accounts of the murders involved. In a vacuum, the death penalty might be acceptable.  The reason to be fairly certain it is not arises when you look at how it is applied in real life. The final thought experiment in the article might look different even if the pool was limited to those who kill in prison or such, the very hard cases. But, of course, this isn't the case. And, actual innocence is but ONE problem of a glaring nature. 

The sentiment is raised in discussions of targeting killings of American citizens and drone strikes as a whole.  I am sympathetic to such concerns though still find claims constitutional rights are being violated repeatedly aspirational and am annoyed that the Obama Administration is being blamed for stating what the (flawed) law is at this time.  If you want to say as a matter of sane policy that targeted killings should be banned, you have a pretty good case.  Try resting on that. 

But, for those who do so while not trusting the judgment of the executive, the limit is limited.  At least, unless you do not expand it beyond citizens and say attacks on the base of operations as a whole is invalid too. Some honestly say this though even then sometimes drones particularly are cited (if we are going to be in the whack-a-mole business, they seem better than some alternatives).  Such is bigger game as is the idea the AUMF 2001 is unconstitutional (or is as applied) since we cannot in effect declare war on groups or even specific persons.  The latter does have a bill of attainder taint but military force against latter day pirates does not seem to me across the board unconstitutional or even wrong. 

A few people, including at Slate (the length of time the fray has been defunct suggests how long I've been talking about this) have voiced concerns that some of the above is overly legalistic.  But, we are a nation of laws.  What is legal should be at least part of the debate here, including when discussing the conduct of a person with the specific constitutional responsibility to faithfully execute not morality, but the law.  Good policy and public morality is part of the equation, obviously. And, I agree that getting overly concerned with legality can miss the forest for the tree.

So, though I think we need to argue this the right way, there is something to be said that bottom line wrongful actions are still wrong if legal. Admittedly, I am conflicted on just how wrong some of these actions are. At the very least, however, someone who is comfortable opposing the death penalty for cop killers needs to respect ire when he partially* defends the killing of a U.S. citizen without usual criminal process. 

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* Prof. Dorf's sadly realistic take on standing rules is but an example where I get off the bus -- chances are that even if the Administration agreed to standing, their argument on the merits would be upheld. But, it could have helped set clearer guidelines, guidelines set forth by an independent third party at that, a major concern of many critics. 

The Notorious Elizabeth Tuttle

This very well researched (with some reasoned supposition) bit of "micro-history" (small event used to discuss bigger themes) concerns the grandmother of the great divine Johnathan Edwards, in particular, the woman his grandfather divorced. It is in fact somewhat of a revisionist account of someone (if noted at all) seen as mostly "the crazy grandmother."

Amish Case / Response to Overkill Commentary

I find the federal prosecution (should be a local case) and sentences (crimes are serious, but not THAT serious) sought (update) in the Amish beard-cutting case troubling but appreciate this. This is somewhat personal, but the guy involved (not just your garden variety troll) has ranted and raved for a long time at the blog. He deserved this comeuppance.

Aspirational ---> Actual

The discussions regarding the leaked white paper (at times treated as if it is a full-fledged OLC memorandum, and one that covers a lot more than it purports to) often has an aspirational quality. That is, people insist certain constitutional liberties are being violated when it is far from clear that they are pursuant to established law. At least, as currently understood. But, "due process" etc. changes over time. Aspiration becomes reality.

Corporations/Unions -- Special Rules

In her Opinionator column for The New York Times, Linda Greenhouse discusses Knox v. SEIU,

including its judicial activism (the bad kind) and treating unions stricter than corporations. Meanwhile, for some strange reason, the 1A friendly sorts at Volokh Conspiracy doesn't talk about such things while perusing the world for upsetting incidents.

Tomboy

I could do without the tiny font of the subtitles at times but this French film provides a naturalistic approach to subject matter (a tomboy who is mistaken a for a boy and goes with it) that underlines how the French often handles such things better. A U.S. version would likely be more affected, this one is totally natural with really great performances from the child actors. It also is a nice length, not drawn out as some films.

This, of course, is a film so this effect is thanks to the filmmaker and people involved. The DVD has "behind the scenes" featurette that provides a good discussion from the director  (who also directed a film about three teenage girls) of her approach and how she put the film together.  Looking at a bit of the footage of the screen test for girl who plays the lead (we see her with longer hair), for instance, is a nice touch.

We got an idea of how to direct child actresses a bit in the commentary of Hysteria -- the director there noted that her trick was just to film them, not to say "action!" or the like, so they would not be artificial. There the children were just extras in one scene. It is amazing really how natural the children are here, including the cute as a button younger sister, and the screen chemistry of the two is perfect (again, this didn't come from nowhere; it is a matter of finding the right actress that "fit" with the lead).  Just one part of a successful completed film -- any major work has a lot of parts to it and the charm is for it to be so good that you forget that.

The film provides evidence of the power of low key. The film* does not make any heavy-handed points about gender or childhood.  It does have something to say about them, including gender expectations and struggles, including what is not said aloud.  But, it says such things in a low key sort of way, like things ideally should be.  I wonder what we should deem the appropriate audience of such a film.  It is after all mainly about children. But, such a serious film is not usually what we deem appropriate to bring children to come and see. Would someone the age of the lead (let's say ten to twelve) be interested in it?  Preteens and younger teens do read books with serious subject matter.  Need more films.

Since the film is French, there is also some more comfort with the human body than in many of our films.  There is an early scene involving the two daughters taking a bath and each then comes out.  The camera carefully shows just enough to make it clear to us -- the androgynous actress (clearly her daddy's favorite in the film) up to now provides the viewer a sort of unclear view -- she is a girl.  A U.S. film probably would show at least one click less if showing as much of a full body shot (if from afar) at all.  Ditto the likes of Fat Girl.  The film as a whole, given the ages of the girls here, does not show what some European films might have for older teens, but the shot -- totally innocent btw -- is one of the things that tells us as much as the subtitles that this is not an American film. 

The parents are very good too btw as is the neighborhood girl who innocently starts things into motion.  Anyway, it is a nice little film and will lead me to check out the director's other film, Water Lilies.

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* The Wise Kids, which deals with some members of a church group in South Carolina has a similar approach, and shows American films can manage it.  I was impressed with that film but did not find the story as a whole was enough to keep my interest.

Also, it might have helped if there was a character that did not, you know, have "issues." One of the trio of kids grew doubtful, another is gay and a third was basically your average evangelical teen, but wasn't simply comfortable with it.  We finally have a film that respectfully looks at such a group of religious believers but there has to be an "and also." 

Interesting (at least to me)

Who knew John Rambo went to the Supreme Court? In the book, he died, ruining sequel possibilities. Ah trivia. I was reading a book about the naval war in the Civil War and saw in passing a topical reference to a "holocaust" as in the lesser "calamity" implications of the term. Way back, I read "fetus" (or foetus) as applied to government back in the late 18th Century in the sense of "undeveloped." Etymology is pretty interesting.

UPS To End Saturday Home Delivery

With online billing and such, I get less mail these days. So, ending Saturday home delivery makes sense. Still, notable reflection of the times. Also, some overblown comments about mail as a whole not being too important. Less so, but still important in various respects.

Ghost Planes and Some Sunlight

The highest court in Italy has reversed a lower court's decision to acquit three CIA agents for their conduct in a 2003 extraordinary rendition case.

Some European countries might not like the trial in absentia, but that's something. Ghost Plane was a good book. And, I'm all for this sort of thing; continuing overuse of state secrets and blocking civil suits (e.g., Padilla) is very distasteful, Obama. Something like this too.

Book-Tour Rock Star? (Review To Come)

Sotomayor (first syllable accent adds the Latina) swore in Biden early to get on the road for a book event and cited her public education role in an earlier Q&A that aired on C-SPAN. So this is not too surprising and it is not like Scalia and even Breyer haven't done a lot to promote their brand. Still, this is an important reason she in particular was nominated, including to promote Obama's on point message that judges are not all simply fungible.

Appaloosa

Ed Harris directs and stars in this Western based on the mystery writer Robert B. Parker's (Spencer series) book whose bromance with Viggo Mortensen runs into complications in his latest peacekeeping mission when Renée Zellweger comes in town. Good atmosphere, acting and such but the actual story is overly drawn out. FF'ed some but the style makes it worthwhile. Harris' worthwhile commentary matches his taciturn character.

Drone White Paper Leaked

Seems like the John Brennan nomination as CIA head influenced leaking the title document, which as I noted here basically covers ground I read about other places in speeches, Kill or Capture and the like. There's a few things that seem to be gone over and over again, this included. More confused "assassination" stuff etc. Sheesh, just publicly release a formal legal memoranda. Note it was released to Senate committees. Yet another bit of oversight.

Update: I'm sure there are serious questions to ask here but there is a certain core legality that some seem overly confused about.

DOMA Briefs: Come One, Come All!

Talking about wrong, the Westboro bunch [the daughter credibly was the advocate ala Newdow in their case] has joined Citizens United et. al. (really) to join the DOMA brigade. More religious mysticism than brief, but seriously, is it much better than many "God said so" type arguments in this area? Why would each side consent to this drivel? Well, one side to taint compatriots, the other perhaps because some don't think it is drivel!

Paul Clement: Wrong Again!

A lot of love in some zones for Clement, including among ideological opponents, but given his position on GITMO, DOMA, the PPACA et. al., usually a good call to assume he's wrong. And, looking at the docket info at SCOTUS in a recess appointment case, hey it's him!

Victorious

This show, created by a Head of the Class vet I watched in the '80s, just aired its last episode, though you wouldn't know it from the plot. The random nature of the ending sort of fit the show's vibe, so I'm fine with that, less so the weak last season. Show as a whole had its moments. Two actresses from it and also recently over iCarly will have their own show.

Talking Past Each Other: Contraceptive Mandate Edition

It is obvious to Rick Garnett that "very short shrift" was given by the Administration to religious liberty in the recent tweak of the contraceptive mandate, that is, if you ignore the concerns of the employees with both religious liberty and health concerns. "I'm afraid" you have a blind-spot if you cannot even see my p.o.v. I see yours; it's wrong, but I see it.

SF Only Gets 20 of those 22 Points Back

Looked like a hold. Also, hell, take the delay of game. Would have gave them 40 more seconds if they saved that time out & punting from the end zone, a shot. And, really, what's the difference ultimately between the 7 and 12 yard line? They already was stopped once, so scoring was no gimme. Not a fan of the Ravens or that ending. Baseball here yet?

Superbowl

MHP amusingly started her show today wearing a football jersey with those initials and the number "3." I see no current player on her NO Saints with that number. Anyway, looks like good match-up but not really overly enthused with either team. Maybe, a bit more for the SF (aka let's spot them points) with the Ravens having the "now hot" underdogs edge.

Necessary Roughness

This show about a sports therapist is back but the first two episodes were pretty dull. Her sex dreams were tiresome (and didn't go anywhere) as is the immature new owner of the team. BTW, still tired with her annoying kids, the daughter a bit better since she isn't around as much and is a bit less bratty. The patients also were not that interesting.

Peppermint Twist: The Mob, the Music, and the Most Famous Dance Club of the '60s

After the first third about the mob guy behind the club, the book slows down some, focusing more on the son-in-law (less interesting, though listed as a co-author) and the music business as a whole.  Still, a pretty good read about a key cultural moment. Nice cover. 

A Bit More

SCOTUSBlog has a discussion on the new contraceptive mandate rules but I think RH Reality Check's analysis, including how in a perfect world they wouldn't be necessary (and sort of encourages bad behavior) but we don't live there is worth linking. Meanwhile, the latest season of Army Wives was overly padded, leading to TWO DVD sets with no extras except for deleted scenes and bloopers. Lame. The norm was commentary and other stuff.

Obama News: Pills of Various Varieties

More tweaking (usual suspects still railing away) of the contraceptives mandate aspect of the PPACA underlining how phony the "religious tyranny" arguments are here -- I still think the requirement is legit, furthers individual religious liberty by increasing choice and drawing the line here by the Catholic Church and Republicans was [something bad].  But, tweaking is fine and whatever works.  Meanwhile, huh, no Scott Brown.  Dems look okay, knock on wood.

Draft and 13A

The decision to change the combat restrictions for women (the details still under advisement; see here for some good discussion) has led some to discuss the draft, including current doctrine that women can be selectively exempt. As suggested here, the original ruling here was questionable when decided, more so now with a stricter concerns for gender equality and different military needs.

The argument that the draft itself is clearly unconstitutional pursuant to the Thirteenth Amendment is a lot weaker.  I had a back/forth with a couple people at that blog over this issue, leading to a lot of heat since it seems so obvious, putting aside that the draft is not currently seen as "involuntary servitude" as that term is used in the amendment not only by the USSC but also the general public.  The term has a certain meaning and various traditional duties to the state is seen as quite different.

Utilizing the language of the Ordinance of 1787, the Thirteenth Amendment declares that neither slavery nor involuntary servitude shall exist. This amendment was adopted with reference to conditions existing since the foundation of our government, and the term "involuntary servitude" was intended to cover those forms of compulsory labor akin to African slavery which, in practical operation, would tend to produce like undesirable results.

So noted a 1916 ruling that upheld a traditional road work requirement that applied equally to adult males of a certain age. In other words, the terms of the Thirteenth Amendment has a certain meaning, and like the Heller ruling said as to the Second Amendment, simply taking a literal interpretation of them is inappropriate. I am sympathetic to a liberal reading of the amendment all the same, including honoring the broad spirit of the terms, including the sort of things that were covered. So this application to abortion is very sensible and it might even be seen as a problem here -- serving as road labor has a forced labor taint to it that jury duty or compulsory education does not. 

no novel doctrine with respect of services always treated as exceptional, and certainly was not intended to interdict enforcement of those duties which individuals owe to the state, such as services in the army, militia, on the jury

Contra to a concern on the thread, I am not one to be, um slavish, to history alone here.  In the old days, motherhood could have been seen as a duty to the state in some respect, making abortion abolition appropriate. But, there is clearly some specific context here, and a strict libertarian reading is fictional.  Such literalism comes up from time to time online and in discussions,  the person at time seeming to think the question has not been talked to death. Thus, one person couldn't see how personal possession of drugs (not even making an exception for medicine) can without totally being arbitrary or prejudicial not be an aspect of a constitutional right to privacy if sexual freedom is honored.  Or,  if we allow same sex marriage, what about incest or polygamy.

The questions have a germ of truth since going the next step often is reasonable, even if the status quo is as well.  Take the draft.  Putting aside the Selective Draft Cases (rightly stated as conclusionary by the OP), there has been a long acceptance AND opposition to it, in part because some see it as a type of servitude.  The Second Amendment underlines that the need to serve in the militia, which can also be dangerous in certain situations, is not of the same caliber -- consider something from the 19th Century cited in Perpich v. DOD, a ruling curiously not cited by the majority in Heller:

Lexicographers and others define militia, and so the common understanding is, to be 'a body of armed citizens trained to military duty, who may be called out in certain cases, but may not be kept on service like standing armies, in time of peace.' That is the case as to the active militia of this State. The men comprising it come from the body of the militia, and when not engaged at stated periods in drilling and other exercises, they return to their usual avocations, as is usual with militia, and are subject to call when the public exigencies demand it.

Jury service is of a similar caliber.* The draft to the armed forces is closer to servitude and up until at least the Civil War, a federal draft in that respect was quite controversial in some quarters up to the top. On the other hand, especially after over a hundred years of history, it simply is not the sort of "involuntary servitude" that we usually consider the concern of the amendment. Forced pregnancy, which is quite literally forced labor with slavery implications (as slave women could tell you), is not quite seen as it either, which is why that even many pro-choice people do not quite accept the application.  I think the case is mixed.

The draft is clearly a sort of involuntary servitude for a span of years and would have threatened many in 1776 as an act of tyranny for which unfree people served as cannon fodder for the king. This would be true even if the people could be said to have agreed to it via the Parliament (to the degree that even worked for the virtually represented colonies). But, today, if our representatives are going to authorize wars, it is valid to argue there is a general duty to fight in them. Quite true any draft in practice will be inequitable, but women in combat and the end of DADT underlines the advancements in that area just in the last few years.  Also, though it's not likely to happen, if we actually had a draft, I would support a broad civic responsibility, to address the needs of the public and those who are conscientious objectors, broadly defined. 

Trusting in some select few will lead to various problems, including a weaker connection to the campaigns and a select view favored by the actual fighting men and women.  After all, the armed forces clearly lean conservative, a result of the military tradition of certain areas of the country, not just the nature of the fighting force itself.  A concern was put that the draft would lead to use of people as cannon fodder.  As someone noted, if that was the aim, changing incentives will bring more people in for that purpose. Many already join in part for fiscal benefits, some non-citizens doing so for hope of citizenship. And, looking at history, including the Civil War (where the draft came later), not really sure if that as compared to other factors influenced how to use troops.

Anyway, I'm inclined to not think the draft into the armed forces violated the 13A and that it could be an appropriate "necessary and proper" means to fill forces in question.  Also, though the above suggests its value even in other contexts, the draft has been used carefully over the years. It has been used to call up the people as a whole only in limited cases where there is a serious need, where the usual limited membership of the armed forces would not do the job.  So, a small standing army was in place to guard the borders and such with the militia serving as a limited means to guard against invasions as well but the Civil War needed manpower that a voluntary call-up could not offer.  Ditto certain 20th Century conflicts.

It is ultimately a political question to determine how this serious threat to liberty, even if it is not accepted as an illegitimate sort of involuntary servitude (I don't see it that important if we see it as a type but an acceptable exception or to simply say it is not the sort covered, though some might ... the 1A says "no" ... are we to say "no" means "yes" since libel is "speech"?).  So, before we do draft people for foreign wars and such, it better be damn necessary.  OTOH, perhaps that should be true regardless, especially given many a person didn't join the NY National Guard with the expectation to repeated stints in Afghanistan.

Anyway, I think the concerns about the draft are quite reasonable, but still think it is simply not obvious that the 13A is violated.  Other things of a forced labor character are clearly allowed, even though the amendment only (unlike most other amendments) lists one exception.

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* Some libertarians wish to get around this by a means of voluntary jury service, but  the value of the institution is watered down when it becomes a select group.  The whole point here, as well for the militia, education and arguably the draft into the armed forces is to state a general duty of citizenship that balances out general benefits.  The general nature has various values, including to provide a "cross section of the community."

Ed Koch Dies

I was just reading about him missing the premiere of the new Koch documentary because of illness, not the first time the late eighties former mayor who we heard from time to time voicing political opinions and the like was in the news for health reasons. An old timer, stereotypical face of NYC, sometimes too conservative for my taste and eventually having the times pass him by, his heyday was kind of before I thought much about politics. RIP.

Powerful on Guns, But Still A Bit Off ...

O'Donnell wanted Gov. Patrick to appoint Barney Frank, particularly because of his congressional expertise and in an act far from "monumental self-indulgence" (seriously, calm down SL) did not. LD had Patrick on and avoided directly asking him about the experience issue; more time to kid around? BTW, how about the filibuster, former Senate guy?

Kory Speaks

Our sexy dictionary babe has a new post up after a couple months on the use of the dictionary as a voice of authority. I wonder if she didn't post for so long after her last post was on guns, before they became the issue of the day. A bit of twisted serendipity.

Trolling Hagel

The one person endorsed by Eugene Volokh at his blog is this Tea Party dweeb, who did on his campaign website honestly say he was a conservative. McCain and remaining amigo Graham joined the "leave Israel alloonnnne" brigade with cranky also upset Hagel was sane on Iraq. Imagine, an actually controversial (cf. Kagan) to Rs nominee with actual bite.

Kiss Me

No, not the catchy song. A sort of Imagine Me & You, Swedish style. Two people in long term relationships fall for each other at their parents' engagement party. Well acted but not overly surprising. There is a bit of selfishness involved in love, huh? Such adult step-siblings hooking up just might technically be illegal somewhere in this country. Pretty good.

Vegetables

I looked at the creative Dirt Candy graphic novel cookbook, but don't really do recipes. Still, easy to get a lot of cheap fresh vegetables. Got soup vegetable selection and it provides enough for like three meals or snacks. Used an onion and potato with 'meat' crumbles today, celery and carrot as snacks and still have a parsnip and scallions/onion for pasta. Someone picked me up a focaccia eggplant/tomato pizza wheel (no cheese). Tasty things.

No Sen. Barney Frank

Well, hope those saying the "D" will win in MA are correct. As to fill-in, don't know the guy, but he has an impressive resume and knowledge of state issues. A great representative of the future of the party, who we should look toward, and don't think Frank would have done any miracles. Insider or not, still a newbie to the Senate. So, half full sentiments.

NCIS

Pretty good episode last night with a flashback to Abby's "first case," involving a childhood incident. She has a crisis of faith, in effect worried her personal approach to karma hasn't been good enough. I like her strategy, hoping things balance out positively in the end.

Sports Update

After a "7" start time was listed but that only involved opening ceremonies and such, I didn't turn on the Pro Bowl until about a minute in. Missed a score. Then, another in four minutes. I left to do a few things and missed the rest of the game. The NFC dominated after a balanced beginning. This sorta "half full" view of the Mets OF is mine, I guess. I don't know those two new guys. Will give them a shot. Also, Bay was a big mistake via "we must do something."

Rev. Joe (Abortion Choice)

The religious issues involved are perhaps the most frequently debated aspects of abortion.

See the footnotes to Douglas' opinion. Melissa Harris-Perry had a minister on yesterday making the religious pro-choice case. Individual choice on greatly disputed intimate religious and moral matters should be basic, especially in a Protestant friendly nation like ours.

Egypt Protest Turns Deadly

At least 26 people died on Saturday when Egyptians rampaged in protest at the sentencing of 21 people to death over a soccer stadium disaster, adding to bloody street turmoil confronting Islamist President Mohammed Morsi.

Putting aside the tragic irony, this story suggests certain types of things avoided by our system, flawed as it might be. For instance, it is sometimes noted that public protest is more restrained in this country. Sometimes, that is a good thing.

NLRB Recess Appointments Unconstitutional

An overly technical D.C. circuit ruling struck down Obama's NLRB recess appointments contra to the 11th Cir. on the Judge Pryor matter. Filibustering led to all of this, so it's all connected. I was sympathetic to the Pryor case, but either way, a lifetime appointment is not the same thing. And, the whole context in each case, not quite the same. Structural separation of powers restraints take that into consideration.

O'Donnell on Filibuster Non-Reform

[crickets] Rachel Maddow had some coverage. She had a clip with HR's previous comment saying "it's time" to change the 60 rule. To quote him, "it's a shame" what happened today. O'Donnell, who worked for the Senate and praised the institution in the past, didn't have anything on it. Had nice extended bit on Kerry c. 1972. Still, his insight would have helped.

Mets Sign Marcum

I had low expectations for 2012/2013 and except for not enough life last summer, the team has met them. This off-season some good moves occurred and this rounds out the rotation. The lack of an OF addition is a problem, but disposing of Bay, getting some value for Dickey, signing Wright and getting a few spare parts without doing something dumb helped.

Filibuster Reform? Try 2015

The filibuster will not be reformed. But the way the Senate moves to consider new legislation and most nominees will be.

To some degree.  How exciting!  Various sorts blaming Harry Reid, like it's all his fault. This is somewhat as stupid (not quite) as calling a majority vote every two years to change, but does not end, the filibuster (unlike a few other things, not a supermajority rule explicitly there), abused of late by Republicans, a "nuclear option." Tad bit more complicated.

The Slave Trade and the Origins of International Human Rights Law

The last third of the book gets a bit wonky, but on the whole, this was an interesting read.  It is a good addition to the quick reading list necessary for the polymath, or those who play one on t.v. Seriously, recommended, including to help the overly cynical.

Pro-Prop 8 Brief

Senate Dems have unveiled a new re-authorization of VAWA legislation, blocked by House Republicans after it managed to get some Republican votes in the Senate because of provisions involving gays, undocumented immigrants and Native Americans.  Meanwhile, SCOTUSBlog discussed the latest briefs in the Prop 8 and DOMA cases.  I'll focus on the former, which is the somewhat weaker case for the side of good. 

The brief’s argument about the constitutionality of “Proposition 8” focused on three central themes: marriage in the U.S. has always been under the control of the states, the states from time immemorial have restricted that institution to opposite-sex couples, and the timing of when a state reaffirms its support for the traditional version of marriage makes no constitutional difference.

The question here would be if this specific regulation of marriage was legitimate and the "timing" here can make a difference.  The split in two Ten Commandments display cases comes to mind here though it mostly only convinced that lesser known swing justice, Justice Breyer, who has actually been in such a place repeatedly.  Another situation that comes to mind is drug testing of students, where he too took a less liberal position than Justice O'Connor. Anyway, the point there was a long standing display could be acceptable, but another more recent one had an illegitimate purpose.  All displays aren't the same.  The context matters.  This applies in the equal protection context too, as seen in the area of felony disenfranchisement, which is generally accepted, except when there is a clear illegal motive.  See, Hunter v. Underwood. 

This is a major difference too between longstanding marriage laws that only allow different sex couples to marry and johnny come lately affairs that specifically target same sex couples ala Prop 8. Likewise, the discriminatory background of such laws are more blatant, specifically the targeting of homosexuals and same sex couples.  Factors like this can up the ante, justifying a higher test to meet, the "rational basis with teeth" rule that O'Connor in Lawrence et. al. put in place.


I personally think same sex marriage should be protected as a general matter on constitutional grounds, but these things develop over time.  The 9th Cir. did not decide that matter -- it held that this specific law was a problem.  And, the specific timing and background is relevant.  Finally, yes, restriction to opposite sex couples was a general rule, but so was not providing domestic partnership rights that provide broad protections to same sex couples.  We live in a different world and you have to address the reasonableness with that in mind. 

The Lawrence precedent, the brief said, was about punishing criminally acts of private human conduct in the home, while “Proposition 8″ does not even discourage let alone criminalize any private behavior or personal relationship. The Romer decision, it said, involved the imposition of a sweeping form of political disability because of a person’s single trait, while the California measure has made no change whatsoever in a series of laws that provide gays and lesbian couples with very comprehensive civil rights.  The Loving and Brown rulings, the brief added, dealt with explicit racial discrimination, while the California amendment involves only the definition of marriage without regard to race.

Lawrence did expressly note that state recognition of this nature was not involved, but the general principles of the case justify equal respect here.  Likewise, earlier rulings did not involve interracial marriage, but eventually, the basic principles was applied to that context.  Loving also concerns broader principles than the specific ones applied, including equal protection and honoring fundamental liberties in different contexts.  Generally speaking, Justice Blackmun was right in his Bowers dissent [FN5] that the "parallel between Loving and this case is almost uncanny."  Next, come on -- if Prop 8 does not even "discourage" this sort of thing vis-a-vis different sex unions, what is the point?  If anything, it then becomes bare animus, which blatantly violates Romer and Lawrence.  Prop 8 was not as broad as the law in Romer, but it did "change" a significant liberty in ways that provide a suitable parallel, focused upon  a "single trait" as well.*

Meanwhile, there also is a discussion of the defense of DOMA, including how somehow it honors federalism and the "go it slow" labatories allowed there by selectively harming states that authorize same sex marriage.  All in time for Valentine's Day.

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* Cf. Prof. Kerr doing one of his clueless professor routines and apparently with a straight face wonders why even a supporter of SSM would necessarily find voting for Prop 8 a problem. We are supposed to remember he is not a bigot.  No, he is just aiding and abetting them here with such selective pretextual reasoning. Since that would be in bad form, we are left with those who just note the problems with his reasoning. 

Alex Doonesbury Has Twins?!

A bit of overkill there, huh? How time flies. Will we see some of her mom JJ? She has been mostly forgotten, originally a pretty sympathetic character before going a bit crazy. Too bad, imho. And, notice how her grandmother (Sen. Warren's assistant) sort of looks her age, while her hubby does not. Alex's about the same age uncle is a pain though he lost his money.

Counterproductive Opposition To Roe

Roe opponents provides the usual confused arguments. Criminalized abortion is not the best way to honor human life. Latin America suggests this. Overturning Roe will selectively hinder women's rights, lead to some tragic cases, while abortion will largely continue. Dealing with and preventing unwanted pregnancies and moral suasion is pragmatically the more effective approach. Less so if other interests such as conservative views on women are at issue.

What is At Stake

Bottom line, reproductive liberty is a basic matter of importance and the principle involved in Roe provides each one of us a right to personally choose the approach right for us, whatever that might be.  One in three women have abortions, but the ruling goes far beyond even them. And, the broader principle of privacy and equality goes even further than that. 

President Obama’s Second Inaugural

Some way to honor MLK Day!

Martin Luther King Jr.

A little bit of everything -- history, racial equality, non-violence, workers' rights, imperfect man (like all) and (like many a leader) gone while still looking over the proverbial Jordan ala Moses (he is a minister). Disappointing last few years including the anti-poverty stuff.

Good Luck Charlie [carping time]

Toby was a useless addition, show-wise. Then, unrealistically, the mom quits her job, with five kids. Here, Teddy blithely pays money for a secret trip to Boston, needlessly taking a big suitcase. A few too many "ignore me acting stupid" moments. And, the dad's negligence costs how much? The house is totally busted. Finally, so what if PJ -- him of the two day Chicken University -- signed on to cooking school over college. Seems better anyway.

Brother v. Brother, It Is

Fred Willard had an amusing guest appearance in a pretty good hour finale of Good Luck Charlie. On a plane; no movie. Meanwhile, Pats led at the Half, but the Ravens dominated the second half, the game in effect over with seven minutes left while the Pats watched time bleed away, down by 15. So, in the SB, the one who leads early should watch out?

SF Does Its Part to Set Up Brother v. Brother

Simply don't want the Pats to win while very annoyed the Falcons won last week, so couldn't really enjoy the games today. The Falcons blew another big lead, marched down the field in a longggg drive, but was stopped in the Red Zone. So, at least something for the viewers.

"A Progressive Agenda for Women’s Reproductive Health and Liberty on Roe v. Wade’s [40th] Anniversary'"

{The below overlaps some with the last entry on this topic, but I want to focus specifically on this piece. As to my usual religious entry for Sunday, personally, I view abortion as involving a personal religious choice.  Ronald Dworkin has written about this, but simply put, we are dealing with a special moral and religious dispute here.  See also, The Abortion Myth by Leslie Cannold, providing various women voices on how not having an abortion is often seen as immoral. BTW, this is my 5000th post.]

Dawn Johnsen's "Issue Brief" from five years ago largely holds today, except that the legislative efforts have been ratcheted up since there. She promotes an agenda "to protect genuine reproductive liberty and reproductive health for all." To quote:

The progressive agenda should aspire to protect genuine reproductive liberty and reproductive health for all. Toward this ideal, I would suggest three shifts in strategic priorities, to augment ongoing efforts to persuade courts to invalidate abortion restrictions. First, focus more on persuading the public to support meaningful reproductive options through political action, grassroots organizing and public education.  Second, focus relatively less on the threat of criminal abortion bans that would be enforceable if the Court were to overrule Roe and more on abortion restrictions already in place or on the immediate horizon, obstacles both legislative and extra-legal that cumulatively deprive growing numbers of women of access to abortion services.  Finally, situate abortion within the full range of progressive policies essential to genuine reproductive health and liberty, policies that empower women and men to prevent unintended pregnancies and to bear and raise healthy and wanted children.

This requires looking beyond the courts, if still important, "not only in Washington, D.C., but also in state legislatures, local communities, political parties, and elections at every level of state and local government." And, it is a big picture thing.  The fight over contraceptives, still shocking that is the ground chosen, doesn't make any real sense if you are trying to convince the public at large unless something -- like putative religious liberty concerns -- are cited.

A similar strategy should be used here.  It is not only a matter of abortion.  Someone personally opposed can and should honor Roe, which involved a matter of personal liberty.  As DJ cites Justice Ginsburg noting, It was also not "some generalized notion of privacy; rather they center on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature." I have seen this myself -- Roe used, e.g., in promotion of personal use of drugs or any sort of medical procedure.  The ruling, however, was not quite that libertarian.  It cited specific concerns, which covers a lot of ground, yes, but not THAT much ground.

As Justice Blackmun asked, one wonders if some of these people have actually read Roe, or more than a few tidbits. But, nothing new in that, underlining the importance of education here and realism regarding how the specifics of a ruling might be ignored in lieu of some overall spirit, a spirit that might not actually even be there. This is not novel to the general public -- the courts also do this, including when applying precedents that can be applied in various ways.  Still, it does tire me somewhat the the same old canards pop up, the same old confusions.

Anyway, Roe was the product of a larger movement, the young advocate Sarah Weddington herself chosen (along with Linda Coffee, even more forgotten) in large part because of a desire for a feminist voice.  Truly respecting its memory therefore is logically a matter more than understanding and upholding (as much as we can) a legal ruling in the courts.  It involves the promotion of certain basic ideals and putting them into practice, particularly involving "a woman’s autonomy to determine her life’s course" though men have something to do with this too.

Swearing In

Rachel Maddow also reported (I'm watching it online, a way to pick and choose the video you want while doing other things) Biden is being sworn in (trivia alert!) by Justice Sotomayor (autobiography on list) and Obama by Roberts (holding a cheat sheet I bet -- hey, I'm bad at that sort of thing too; if I ever got married, I would hold my vows on an index card).

Republicans Promise To Be Sane For The Time Being

Rachel Maddow reported -- before another important special report on abortion -- Republicans will not take us off the debt limit cliff, though they will keep the issue alive to bring it up in a few months.  I don't know how this falls on the debate I'm having with a commenter, but half full, and all that. Keep up the fight, Obama.

Roe Turns 40

[And Also:  Kudos that Stephen Colbert's sister, with an impressive bio and attitude, is running for an open House seat.  Hope everything, including name recognition, will give her a chance -- it is after all SC, and she is running as a Democrat for a seat controlled by Rs for thirty years.]

There has already been various discussions about the upcoming anniversary of the ruling, one I wrote about repeatedly over the years myself. Dawn Johnsen,* who has been part of its defense over the years, has some helpful things to say. This includes the nature of the ruling, current roadblocks and advice:

launch strategies to counter right-wing efforts to reframe the debate and muddle the public’s perceptions about abortion. “Effective strategies,” she wrote, “must target this public misperception and emphasize political action, the harm caused by incremental abortion obstacles, and a broad range of policies that promote reproductive choice and health.”

Current reports about the broad support of the basic ruling in Roe does not (at least publicly) concern one strong  opponent:

"I don't worry much about these polls..." said Scheidler. "I think a majority of Americans prefer to be called pro-life." He said knocking down Roe v. Wade - which would return the issue to the states - is not as important as educating people on "the great evil" of abortion.

And, I think many who push comes to shove support the right to choose, at least when it involves them, are uncomfortable about whole thing. Thus, there are basic roadblocks, helped by the looser Casey ruling:

“the protests, harassment and violence directed at abortion clinics, providers and their families; the lack of abortion training opportunities in medical school; and the literally hundreds of state abortion restrictions that are designed both to sound reasonable and to stop the performance of abortions as effectively as a criminal ban.”

As noted by DJ, such things can be an "undue burden" on abortion rights, though it is another matter if five justices would now think so.  As Rachel Maddow noted on Thursday, in various areas (including those states with ONE provider), we have legal abortion but at least a form of de facto criminalization as applied to many women.  Thus, the need for education of what is at stake, political** and personal action, like the move to re-open George Tiller's clinic, closed down after he was murdered while going to church.  That my friend is "assassination."

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Various movements are related and gay rights rightly is seen as being connected to the abortion rights movement, which itself is just part of a movement for equality, women's health, religious freedom etc. So, a shout-out to a same sex married military couple who rejected second class status in a private officers' club, which does not have the federal DOMA to blame on such a thing.  In fact, the Marines according to the article required equal access to private clubs in another situation.

Lawrence v. Texas turns ten this year, same sex marriage a concern in two major cases which will be heard in March. 

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* Hurrah!  Love her voice -- soft spoken passion and grit.

** As the filibuster is up for reform, full disclosure might include that I have supported its use in judicial nominations, in part to oppose certain anti-choice Bush nominees. The proposed reforms, however, won't end its use, and as the link notes, changes occurred when this extreme option has been misused.  Its use for judicial nominees is perhaps most defensible and even there the whole picture should be weighed.  

The Distance Between Us

The author of this autobiography of the childhood with serious parent issues of an undocumented (until the change in policy during the Reagan years) immigrant from Mexico wrote one of the books on the side panel now. Well written and novel-like itself though tapers off a bit late. A hint of that fiction book is present, but no, not simply a roman-a-clef. A good read given immigration is one of "the" issues of the time. She was/is a "dreamer."

MSNBC

O'Donnell continued his campaign against the NRA last night against board member Tom Selleck, pressuring him to resign, especially over the reference to Obama's daughters. Okay, but Selleck was not personally to blame for such things and LD at times implied that. Good segment on Rachel Maddow regarding possible re-opening of George Tiller's clinic.

Golden Globes

Didn't see it though this makes it sound pretty good [hosts are great at being funny and feminists/professionals though Fey looks too 'glam' these days]. The big news was Foster's rambling speech and good for her, even if some (e.g., the hosts of Gay USA) imho unfairly were annoyed she wasn't more "out," though she has been and has reasons for her privacy.

More on Aaron Swartz

Orin Kerr has another good post.

It isn't all that clear, Mr. Scalia

Arizona v. Gant is a Fourth Amendment case from 2009 for which Scalia's brand of judicial ideology led to a more libertarian result. It happens though his concurring opinion also is a window in the problems with his philosophy.  Thomas letting himself get caught on a microphone during oral arguments has in some cases led to the usual lame knee-jerk comments about him, including as if he is simply Scalia's lapdog (was Marshall just Brennan's?).  Don't worry -- still find trouble with both of them, but in a somewhat more interesting way as some might.

Scalia in his concurrence sets forth a basic bit of philosophy that goes beyond the Alito "Scalia wants to know what Madison thinks about video games," though he does invite such carcicature at times, especially when he seems to be playing to the camera, so to speak:

we look first to the historical practices the Framers sought to preserve; if those provide inadequate guidance, we apply traditional standards of reasonableness

During oral argument, he made reference to Jefferson's carriage being stopped, but he notes in his opinion that such historical practices as to what "unreasonable" means in this context is "uncertain."  So, "tradition" follows though eight justices (including Thomas) doesn't seem so certain that it is "abundantly clear" that it doesn't go the way of Stevens opinion.  And, just what "tradition" demands is repeatedly an issue, including how following "the most specific level" [thus on a key point, the opinion there had two votes; perhaps, someone else should have wrote it!] is unnecessary. The clarity seems to lean the way that appeals to his ideology, which is not unique to him, but is harder to take given his self-assurance that his approach prevents that sort of thing.  

Scalia thus is not just concerned with what people thought c. 1787 or whatever the date of the particular provision in question, but some more nebulous "tradition" that (see, e.g., McDonald v. Chicago) is colored by precedent and other things.  The moderate (yeah) conservative approach of a Harlan, O'Connor, Kennedy or Souter (coming after but leaving sooner) is what wins out in the end -- a sort of modern day originalism that is influenced by the past but respecting the passage of time. So it realistically would be though some don't quite want to admit to it, which is where Scalia lies, even he admitting at times being somewhat of a "faint hearted originalist."  That is, when he isn't fronting as something else.

Thus, the end result here, where he is upset with the result, but deems the majority the best of imperfect options. Meanwhile, he doesn't like the exclusionary rule while being supportive of a brand of immunity that is modern in scope, excluded evidence [which experts such as Orin Kerr has shown very well might have been the rule long ago too, just done largely in the shadows of appellate review*] providing a balance while the less immunity friendly past entered modern times.  Like something observed tainted by the observation, modern law requires altering tradition to honor the spirit of the law.  Kennedy had the principle right:

They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

Kennedy has his problems too, so various views are appreciated, even a bit of Scalia, especially if we take them all with a healthy grain of salt.

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* I looked over an article of his on the subject, but a quick search doesn't bring it up right away. Let's add this instead, regarding the "history" (quotes advisable) used by the USSC.  Kerr's note that Scalia says such and such is "consistent" with original understanding reminds me of his opinion in Oregon v. Smith where one interpretation of free exercise of religion is deemed not simply wrong, just not compelled. 

A hazy concept of "hybrid rights" is used there as a workaround, like those used to ensure that the earth remained the center of the universe.  Kerr also notes how Scalia sometimes notes that the "unchanging Constitution" refers to bodies of law the do change, including property law under the 4A, a principle that should apply across the board.  See, e.g., how modern day equal protection law reflects modern day understandings even if we (with the right amount of generality) apply basic originalist sounding baseline principles.  Really, it's better simply to listen to the likes of Stevens here.  Sorry, life is messy.

Obama/Biden Plan On Guns

See here and here. Seems to be a step in the right direction. This is a fight for the long haul. No "magic bullets" here. Full gun background check seems like something to insist upon. Also, think "gun control" might better be framed "regulating well" like the 2A suggests.

Greg Germann

I remember him as a nebbish character on Ned and Stacey and now he has a bit of that as the acting director of NCIS. Yesterday's episode was pretty good though it left things open. I still liked last week's episode before the ending. NCIS already had to deal with the explosion at their HQ. Now this. A bit much. And, do Ziva et. al. need more personal tragedies?!

Gun Owners Protected in NY Law

In a concession to the pro-gun side, local authorities will be allowed to withhold the identities of registered gun owners — an issue that erupted recently when a suburban New York City newspaper published the names and addresses of gun owners in its readership area.

Not cited when Rachel Maddow reported the law. This effort needs compromise and signs of respect to gun owners. This is an example and it is important to note it along with ending gun show loopholes and so on. Also, something about the NRA blocking federal collection of info was noted in passing. Got to clarify things like that.

New NY Gun Law

Gov. Cuomo added to his record by helping to have NY be the first out of the gate here and the law looks fairly promising. Don't think letting a few days pass so legislators can read the thing would have hurt, including notification rules for certain mentally ill that concern some doctors. Measures like protecting the privacy of gun ownership records suggest there is a little bit for everyone. The new "assault weapon" label should be up for litigation soon.

Raise Him Up A Single Mother's Guide to Raising a Successful Black Man

Being a parent is always at least somewhat difficult, but for various reasons, it is often particularly so when you are a single parent. And, there is a special burden when you are not only a single parent, but also single and a black mother. It is therefore that much more remarkable that so many children thrive, thanks in no small part to the skill and love of single mothers nation-wide. This book has the purpose of helping single mothers raise her boys to be a successful black man. Any help is appreciated!

The book offers this advice with a Christian perspective, providing scriptural allusions and prayers to guide them. The book of Acts in particular is chosen here to show how biblical parallels exist to the modern day single black mother. Also, examples of successful black athletes raised by single moms are provided as role models. This is appreciated as helpful, but personally do not think it important as such that the success story is an athlete. After all, few people grow up to make a lot of money that way & it can be misleading.

On the other hand, the colloquial language ("you go girl" etc.) did not concern me as it did for another reviewer. Overall, a good read, nothing great, but a good addition to "how to" lit.  

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* I received a complimentary copy from Booksneeze in return for my honest review.

Aaron Swartz

As noted here, I have mixed feelings about the Aaron Swartz matter. Don't think it great to talk about how the feds "contributed" to his death and if he wanted no jail time, that is a bit much. Ideal or not, the stuff isn't free and he broke the law and this remains true even if (I don't know) he was greatly overcharged. Some commentary is just too one sided for me. [Update: See, e.g., here, where prosecutors wanted less than six months of jail time.]

Not quite Garbo ...

Thomas, J. (Yale, JD), speaks: funny at argument—Yale degree could mean lawyer is incompetent, not competent, capital trial counsel.

So tweeted Scotusblog. More here and here (there is video available of a Q&A involving Thomas and Amar, a curious match-up given Amar's brand of constitutional interpretation). [I added a couple more links including one that actually talks about the case.]

Dirt Candy (aka vegetables)

So getting invited to speak at a library gives me a deep, warm glow that nothing else can equal…except maybe really top quality cocaine

Good attitude -- the talk (combining vegetarianism, opening a restaurant and writing a graphic cookbook) was pretty good too. Hey, the price was right. I don't recall ever actually going to the sixth floor (it's usually closed to the public) of the Mid-Manhattan.

Texans Lose Less Badly

A whipping like the Texans had during the regular season was not expected but the 3Q basically made the end result clear -- Pats fairly easily won 42-28. Thus, I want a brother vs. brother head coach SB, the [ugh] ending of the other game making neither Championship Game that fun. I would find the Falcons winning somewhat less distasteful than the Pats.

Seattle Chokes [30-28]

Falcons looked to yet again have choked in the playoffs but after Seattle came back from 20-0 (and blowing chances to score), the Falcons couldn't ala Denver take a knee with 1/2 minute left. They just quickly got in field goal range. No miracle Hail Mary this time. Aggravating way to lose though it coming down to the failed HM had a bit of karma to it.

Rev. Joe (Moment of Silence Laws)

Wallace v. Jaffree touches upon the problems of certain laws but also (see concurring opinions) the likely validity of others. Two things. (1) The background in that case poisoned the well beyond the narrow question ultimately addressed. (2) The oral argument etc. barely addressed a key issue: even focusing on religious exercise, "prayer" is but one means of religious expression. Support of prayer itself favors some religions over others.

SF Whips GB

Even after spotting them seven early. 45-31, seven in garbage time.

Second Thoughts

I don't know Aaron Swartz so decided to delete something about him. As to Hysteria, like the commentary and interviews and it was well put together. But, I stick with my "boring" -- it was too dry and MG was not really "wasted" but her character was kind of boring too. Didn't like the court scene. Might be better in a different frame of mind. Duck bit was amusing.

Denver Chokes

Falcons had little over a minute to get a TD and did it in half that time. Denver with two time outs didn't even try to get a FG. OT. It took to the second OT, but they also lost the game after Manning gave it up. Did he forget that the game did not end with the first OT?

Stupidity Loses One: No Coin For You

The Treasury won't mint a platinum coin to get around the debt limit. BTW, Mike Castle is mentioned. Remember him? He lost to Christine "Not the Senator of Delaware" O'Donnell in 2010. Even sanity has been mixed with confusion here -- see how money is a "delusion" here.

Hysteria

The film looks good (setting and all), but it's pretty dull and Maggie Gyllenhaal was wasted. The idea of the inventor of the vibrator has an amusing flavor and a play was made about the idea too. Pretty good commentary [it shows the intent and all, and there was skill there, but still was bored] and there is a bonus documentary. But, the subject matter really deserves a better platform. Half a cheer for taking a chance at a novel subject.

Judgment At Nuremberg

I read the play with an intro by the playwright added after a revival performed about a decade ago (Shatner's military escort role in the film was a black guy here with dialogue alluding to the South; was that the way in the original play?). Powerful though it's interesting so little is offered as to specific criminal acts (e.g., the defense showed that the U.S. also sterilized the "mentally unfit"). Perhaps, that is a point: missing the forest for single trees.

John Brennan / Drones

Brennan's name was floated four years ago for the job he has now been nominated for but his role in hinky stuff in the Bush years was apparently then deemed too questionable, sort of like Mike Piazza and steroids. Piazza is likely to get in the Hall of Fame eventually, but more information and time is desired by many writers. Well, as reported by Rachel Maddow last night on drones, more info on them should be provided before Brennan is confirmed.

O'Donnell/Giglio

Lawrence O'Donnell is not PC as to the Bible and good for him. But, the book God v. Gay is basically correct: on the whole, the Bible has a few verses on the subject, the focus is in no way some compelling issue as some make it out to be. Many Jews and Christians manage to have a sane perspective on the matter. I understand the basic idea of a small symbolic gesture to right leaning evangelicals but yeah you will find that sort of thing in their past.

Americans For Responsible Solutions

As a Western woman and a Persian Gulf War combat veteran who have exercised our Second Amendment rights, we don't want to take away your guns any more than we want to give up the two guns we have locked in a safe at home. What we do want is what the majority of NRA members and other Americans want: responsible changes in our laws to require responsible gun ownership and reduce gun violence.

I'm game, Gabby and Mark [from linked op-ed].

Oh ...

The Pirates! Band of Misfits was BORING and was pretty disappointed since I was led to believe it was a quirky fun sort of film.   Snow White and the Huntsman (technical nominations) was also pretty boring. Was told Argo (read book) and Flight (Denzel) are good, but not really into watching them.  A bit curious about Hitchcock (technical) and Sessions, not much else than the two earlier referenced.  AIDS doc got lots of praise though.

Oscar Nominations

Silver Linings Playbook (though like the nod to Jacki Weaver) is a good film, but really, Best Picture worthy?! Helen Hunt? Wasn't she the LEAD in that film? I never heard of Beasts of the Southern Wild until now. Somewhat weak field, imho, Lincoln and Zero Dark Thirty probably two favorites. Haven't seen either yet. Mirror Mirror is the "bad film" nominee.

Division Round

HC of Redskins is an asshole for leaving RGIII in. My favs: Broncos, 49ers (Packs be okay), Seahawks (current personal favorite) and Texans (creamed last time; Pats current "please lose"). Should be some better match-ups this time. Seattle/GB rematch with real refs?

The Ballot

I'm with a local sports guy that MLB not seriously enforcing the steroid ban has resulted in a karma result this year with no one on the ballot. I'm not horrified or anything and wouldn't be surprised if it will only be a temporary thing. But, this isn't jail -- the "due process" required here is different. And, the past is the past. We are dealing now with the issue. So, no talk of greenies in 1965. Also, records should take into consideration current conditions.

Personal Note

Note to self: If you can't take to heart that comic about "someone is wrong on the Internet," a break might be needed. No really. Just one more Pringles potato chip! It's okay!

"I Was Wounded; My Honor Wasn’t"

Rape is horrible. But it is not horrible for all the reasons that have been drilled into the heads of Indian women. It is horrible because you are violated, you are scared, someone else takes control of your body and hurts you in the most intimate way. It is not horrible because you lose your “virtue.” It is not horrible because your father and your brother are dishonored. I reject the notion that my virtue is located in my vagina, just as I reject the notion that men’s brains are in their genitals.

Powerful op-ed.

NCIS

Strong episode though I didn't like the violent (cliffhanger) ending, especially the death of a little used female character. Ziva's father was a warrior of sorts, so okay, though doesn't she have enough death? (see, e.g., her brother), but the director's wife ... ugh to that.

Coffe Shop God

I happened to watch the author give an interview about her documentary that "addresses universal ideas of forgiveness [including a face to face with the killer] and redemption," a sequel to the title book, which deals with her emotions after finding out about her brother's murder. The book is a raw cry of the heart with photos. More here.

Debts and Coins

I think Dorf makes some good points here and in his longer article, which also alludes to the argument that "debt" might not (the USSC barely directly dealt with the matter) include "obligations" like social security benefits (he supports a broader understanding).  Technically legal or not, I also think the platinum coin idea is real stupid.  Not into stupid.