A Couple Books

Found a couple interesting books on my library's free rack (only see this at my library so far) including The Tale of Despereaux (promo has stuff not in book) about a strange mouse's adventures and Ethel Rosenberg: Beyond the Myths. Note key information came out a few years after the book (a psychological history of sorts) was published but the implication she is guilty but the guilt exaggerated still seems fair. This is often the case.

Wave Hill

Used my IDNYC card to get a free annual membership to this mini-Botanical Gardens locale of sorts in Riverdale (no, not where Archie lives), which I believe most NYC residents don't know exists. Like a recent trip to Botanical Gardens, this isn't the best time to see it with less in bloom, but still is very nice with a great view. Interesting garden tour.

Emoluments

Michael Dorf talks about the "corruption premium" that Trump is at risk of taking advantage of and touches upon the constitutional provision against emoluments. More here. As suggested in the latter link, Congress might provide some safeguards there, including giving judicial standing to challenge. I also would offer disclosure rules and the possibility of relief being connected merely to business in question (such as a perk obtained). Note there is not a total ban; "without the Consent of the Congress." Impeachment is not the only remedy.

Geography Club

Found this in the library; it's based on a popular teen novel regarding a club that turns out to be an underground support group for gay and lesbian teens at a high school. Focuses on guy who falls for a football player. Good performances and look at average high school students. Meanwhile, added Death on Hold to the side panel about a death row inmate who finds redemption with help of a conservative white couple. Good inside look.

Ads

Figure I'd get a fraction of a cent, but really just trying the ads feature.

Football Update

Week started on Thanksgiving with Dallas again winning and Lions winning late. Giants offense struggled but scored enough with the defense's help not to be the first team to lose to the Browns. Another close game vs. Pats, Jets following trends by losing a close one in regulation. Oakland wins to stay ahead in the West. Tampa with upset over Seattle.

Update: Enjoyable SNF game with AFC Wild Card implications. KC needed much to go their way to the last second of OT. And, it did. Packers won over Eagles, 27-13.

Creche Time

The photo is of a new "hipster" creche that can be obtained for the low price of over $100. This is germane. For years, one thing I did this time of year is to read (and now listen to) various holiday display related cases, again starting on Thanksgiving.  It is realized that holiday displays are not the biggest problem out there.  But, they do provide a useful case study and raise some important concerns.  Thus, another go around.

It is somewhat interesting that someone who was more conservative regarding many (but not all -- e.g., he went along silently regarding banning a Ten Commandments display in a classroom and briefly noted agreement in a creationist science ruling)  religion cases had an insight that someone more separatist like myself shared on some level:

The Establishment Clause, however, sets limits only on what the State may do with respect to religious organizations; it does not establish what the State is required to do. I have long argued that Establishment Clause limits on state action which incidentally aids religion are not as strict as the Court has held. The step from the permissible to the necessary, however, is a long one. In my view, just as there is room under the Religion Clauses for state policies that may have some beneficial effect on religion, there is also room for state policies that may incidentally burden religion.

Justice White was the sole dissenter (interesting given Justice Stevens' sentiments overall, including going further than other Court liberals to not deem certain accommodations required on free exercise grounds) in a case turning on "the question whether a state university, which makes its facilities generally available for the activities of registered student groups, may close its facilities to a registered student group desiring to use the facilities for religious worship and religious discussion." And, though I'm not sure about that case, think the principle at the minimum could apply when dealing with elementary schools and the like in various cases. White was no longer on the Court when one of the questions he proposed came the opposite way he appears to deem required.  OTOH, as he sometimes did, perhaps he would have accepted precedent on the point.

The Supreme Court, however, did not agree -- various cases involving such questions treated "religious speech" as basically the same as other sorts of speech.  As Justice White notes, however, state authorized prayers and other matters show that there very well can be separate issues arising out of the Establishment Clause here.  Or, Free Exercise, for that matter.  And, such arises with holiday displays, even an early one eventually disposed of 4-4 [the basic question came once more, though only Justice Stevens fully accepted the stance of the district court judge here] involving a freestanding creche on a public forum along with other types of displays.  Let's look at that earlier case.

As is often the case, the district court has a certain charm by spelling out the factual details, which go back decades before the ultimate mid-1980s Supreme Court conclusion. In fact, it was something of a non-conclusion because there was a debate over the reach of the appellate opinion that was not settled by an evenly divided Court simply affirming the lower court. Something, with laughter, Justice White noted would not occur (that is, the Supreme Court simply saying "we affirm" without saying why).  A 2014 op-ed, ah the wonders of the Internet, provides an update of sorts.  The creche continues to be on public land, with a disclaimer saying it is not an official governmental display. Rather, a prime area of public land, here the "center of Scarsdale's business district," having some specialty of place. If not quite outside a courthouse or similar place specifically governmental.

In the 1970s, the inclusion of a freestanding creche an area of public land in the suburban village of Scarsdale, NY no longer seemed non-controversial.  The board of trustees, by divided vote, eventually decided not to allow it. The bottom line concern was the division it had caused, but the district court probably was right to note that it was a religious division. 1950s cases blocked the government from favoring certain religious groups in such a situation.  A more recent case (see above) generally disallowed singling out religious worship itself in respect to a state university. But, none of those cases dealt with a general rule blocking all religious displays that were freestanding, that is, without someone there who clearly was connected to them. Was a rule regarding freestanding displays and/or religious displays of that type different?  Was there still an illegitimate content based rule in place here, even if general time/place/manner rules are acceptable? Was there a compelling state interest involved?

The compelling interest necessary seemed to be to avoid establishment concerns.  The village in front of the Supreme Court spent much of the time suggesting controversial speech generally could be kept out of the village square here (only Stevens seemed game) but the focus of the lower courts was the Establishment Clause. The later case, in the 1990s, referenced above did ultimately clearly hold that a content based limit was illegitimate on free speech grounds while five votes basically (in various opinions) could be patched together to require some sort of disclaimer to deal with the establishment problems. And, as the court of appeals assumed here, it also held a neutral general policy of no freestanding displays was okay. Just not necessary.

Because when a symbol is implanted on public land that land uniquely becomes the message bearer, and because, concomitantly, there are no persons present to whom the receiver of the religious message can attribute the speech, the possibility that those receiving the message will assume it is supported by the state is particularly present.

The district court recognized a creche was a religious symbol, but held the village set up a public forum open to all types of speech here, so there was a secular purpose involved. Singling out religious displays itself would have First Amendment problems.  Citing the "Lemon test," it also held there wasn't enough "entanglement" to be problematic.  It was easier here than in other cases because the government itself didn't put out the display. The dissent in Lynch v. Donnelly, the display case that was decided by the Supreme Court as this case developed, can be cited for the other side.  OTOH, the district court ultimate decision was in part motivated to avoid "entanglement" of the courts involving secular purpose (e.g., what was necessary to make it not too sectarian or exactly the sort of signage necessary to avoid assumption of governmental endorsement).

The district court did hold the creche "advanced religion" because freestanding symbols could via the reasonable observer (to cite a test that arose later) be understood to be endorsed by the government.  Merely saying the symbol was privately owned and taken care of didn't remove that.  The "public" nature of the land to the judge seemed to be the major reason why the parties wanted the creche there. Finally, it would be different if the person or group was there with the display. As Justice White noted in the other case, in my opinion this was a valid enough Establishment Clause concern to at least give local government the discretion to ban freestanding religious displays.  So, no bans of religious events or speakers in parks etc. if non-religious ones are around. A freestanding display has a more "public" character, while being around an extended period of time (such as a month), not a one shot event.  Again, at least give localities the discretion.

I say this though it seems that Justice White was with the four who upheld the appeals court that overturned the district court judge, in part since by then Lynch [unless one of the dissenters there switched -- seems dubious though guess maybe Blackmun did] was decided.  The difference between the two cases was that in that one the locality actually supported the display, but if that's okay, the Scarsdale case would seem to be an easier one.  This left the village to basically rely on the speech angle, though a sort of "government speech" argument as such wasn't the point.  It was that the locality was trying to avoid controversy.  The point was never really settled at that time. The understanding that court of appeals ruling required them to continue the creche (any attempt not to do so was content based, so the argument went, given they only stopped because a religious display was involved) was one of the two questions taken.  But, a 4-4 result ended that.

The Supreme Court did earlier decide (5-4) that a creche was not inappropriate even when the government itself sponsored it.  A case a few years later clarified things to make sure that one specific religion was not unduly involved.  Then, it clearly held that the government could not single out religious displays in open forum, but as to the Ten Commandments, could not specifically have the purpose to favor religion in sponsoring them.  This all involved closely divided opinions, so there is some lack of clarity on what exactly would be done today though a permanent cross on a City Hall (to cite something Justice Kennedy used) probably is too much. On the other hand, even there, a cross display to honor veterans seems okay.

It seems appropriate to me to allow government to have holiday displays, even if some sort of religious aspect is present. It's hard to completely remove that sort of thing, especially when for some even a "Christmas" tree would taint the whole thing.  Nonetheless, it seems good policy to avoid strongly religious displays, especially when one specific religion dominates.  A large creche, menorah and so forth is problematic. A truly diverse display with various religious symbols in the mix seems different than many of these cases where rather large displays were involved that often with only one or two religions (maybe a creche, menorah and some "secular" stuff that might still in effect favor Christmas but in a less religious fashion) dominating.  There a myriad of religious holidays in the year; it's telling that so many of these cases deal with one season of the year.*

I again would give local governments discretion here without it being deemed illegitimate content based discrimination. I'm sympathetic with Justice Stevens' argument: "The Establishment Clause should be construed to create a strong presumption against the installation of unattended religious symbols on public property."  This is so even if it is not completely required.

The creche in Scarsdale was particularly a concern because of the large Jewish population of the area.  There were various places to put a creche, even if  "some of the properties were not centrally located, some had topographical problems, and some already had creches." The First Amendment is aptly honored by being particularly careful to avoid unnecessary commingling of church and state, especially if would lead to political disputes. True enough, either way, we would have issues. So, there are no easy answers here.  Discretion when necessary seems appropriate, providing different fits for different situations.

The various opinions helpfully address various sides of the question.

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[This might be covered, but after helping to put up my family's private display, a few more comments on two cases in particular.]

* Lynch v. Donnelly rests on a creche surrounded by various other Christmas related symbols (Santa Claus and the like) was a legitimate recognition of the holiday season, but it's notable one specific holiday is involved. O'Connor's "endorsement" test is telling too since repeatedly Jews did feel like "outsiders" by heavy recognition -- including plays in public schools with a Nativity component -- of Christian holidays.  Some Christians themselves have opposed the government getting involved and/or the specific way the government express religious content.  This at least helps to suggest why some are concerned about this matter, especially if specific religious symbols and events are involved.

The later County of Allegheny case -- though it is unclear how much of this is still good law since Kennedy is now the swing justice -- took into consideration this concern up to a point.  A creche with a "Glory to God" message in a courthouse displayed for a month and a half was deemed too sectarian and connected to the government.  OTOH, though three justices cried foul, a sort of diversity display (menorah, tree, spirit of liberty banner) was allowed.  Scalia of all people flagged a problem in oral argument -- what religions should be involved here if such displays are seen as necessary to be inclusive exercises?  And, as others noted, some religions don't like to be associated with each other.  In fact, the menorah display split the Jewish community, some supporting it, some not. Government favoritism in religious disputes is a special concern, realizing there is no answer everyone will accept.

Finally, the concern all of this is anti-religious not only assumes the more separatist policy disrespects religion (underlining a sort of talking past each other), but ignores the line drawing allows free exercise too.  People can reference religion in speeches, their personal beliefs are accommodated in various ways  and some totally absolute rule is not present.  There is still something special about government speech here, especially when it selectively honors certain religious content, even if in the end it is allowed in such and such a case.  Some respectful balancing should be done.

Capitol Square Review and Advisory Bd. v. Pinette stopped the government from singling out unintended religious displays. Five justices, though this might not be good law any more, did flag possible endorsement concerns. Nonetheless, by separating the displays (or not allowing them at all) with a disclaimer, endorsement concerns were handled. Thus, the different parts of the First Amendment could be balanced. Religious speech should not always be treated just like all other speech, something some justices do too much in my opinion. Two of the five didn't think the disclaimer was enough, Justice Stevens most strongly arguing so. I think the government should have discretion to follow his lead and my inclination is to agree with him on the constitutional question overall.  But, I'm in the minority.

Four justices were generally not concerned that private displays in a public forum would be assumed to be government sponsorship, especially since the government could label the displays as private.  Thus, it was more of a pure free speech issue. It is hard for me to believe though, especially if there was a couple crosses and a menorah, some reasonable people in the community would not think the government endorses them. And, in a small way, certain religions would be advanced because they in particular would tend to be favored among the displays. And, there is a concern that religion should be separate from government in general here. At times, the government (as seen in legislative prayer and Ten Commandment cases) will itself more blatantly put a thumb on the scales, but even if they don't, it enabling de facto favoritism can be a problem too. 

Changing membership makes the exact rules here unclear, but Justice Kennedy later referenced reasonable observers and so forth.  So, it seems still good law for now (and good policy) that some concern about appearances of religious endorsement and favoritism should be in place.  The net result might be debatable, as seen by the cross involved in that very case (see different opinions), but the concern still is there. Okay. Enough.

The Black Cat (1941)

There are various films with the title of the Svengoolie movie last night, but this one is not like the others though something like The Shadow of the Black Cat (scary house, heirs etc.). I was curious what happened but darn this version was annoying, the comic relief annoying and the good guy a boob himself spending much of the time looks moronic. More than one top name, including Bela Lugosi, were basically wasted. Much boring exposition mid-way.

Happy Thankgiving

The picture is from Pieces of April, concerning a white girl out of sorts with her family (mom sick with cancer) whose oven breaks while trying to cook a Thanksgiving dinner for them. Her Asian and black neighbors help her out. This isn't a great year but happy holidays.

Majority Rule Matters as a Minority Wins Nationally

I don't agree with the whole of Sandy Levinson's analysis (see, e.g., Balkinization Blog and his books) and definitely am wary about some sort of constitutional convention of which he supports, but at some point his overall concern about anti-democratic aspects of the Constitution getting out of control is hard to ignore. You deal with problems, especially when you don't think change can occur, but as the Declaration of Independence notes, at some point it gets a bit much.

"Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed."

Simply majority rule is not appropriate here. Think small scale. Five friends. They decide where to go to dinner. Given their druthers, three would go to a non-kosher establishment, but one is an observant Jew. They respect this is more important than their preference otherwise, though being friends with such a person influences their preferences in the first place.

Or, maybe one strongly doesn't like a place, perhaps because their ex works there & it was a real bad relationship. They want to go as a unit but the person says "I'm going to 'filibuster' here because I really feel strongly. If four of you still want to go, I'll go along, but you better really want to go." If the other four insist merely because they have the power to do so, things will get uncomfortable. OTOH, if the one uses their filibuster card too much, in an unfair way, it is a problem.

Not in for everything he says, I think it is time -- like Sandy Levinson notes -- to strongly support making clear that when a minority skewers the system too much, especially when the result is President Trump & some of the stuff the Republicans are doing these days (principle is made clearer when consequence can be shown), we need to fix it somehow. At the very least, when a minority is going to have a special leg up, if they go too far, it has to be rejected. The SYSTEM is a problem, not just one or more of its component parts. We saw during the election just criticizing a personality wasn't enough.

So, even though in our system mere majority rule is not the rule, the fact a majority supports the Democrats matters. Surely, if the tides was turned, Republicans would say that. They toss out "popularity" when it suits them, just like when it suits courts etc. that are "undemocratic" (for instance, to protect certain rights that a majority might ignore) are deemed problematic. And, respect of the minority matters in various cases, but that too can be abused.  We need to look big picture as we face our problems.

A final look at numbers.  The popular vote went the Democrats way for the President and the Senate, but not the House of Representatives. It's somewhat hard to tell here since the system in place sets up certain candidates (a safe seat, e.g., will lead to no or token opposition in various cases) etc. that affects the final vote. Gerrymandering does not just lead to certain results of who wins (studies show limited results here in certain states, but if the system is already stacked, every little bit hurts) but affects voting as a whole. And, Republicans are going to have an edge in state races too, since there are more thinly populated red leaning states.  But, yes, Democrats need to correct a very serious unbalanced trend of state control.

Plus, big picture, I think there are two parties: a moderate party (mostly Democrat but has a few Republicans, who can win state-wide offices in blue states) and a conservative one (mostly Republican). This helps Republicans in state races and skewered things nationally, since there is promoted a sense of "both sides" when they are not evenly composed.  Anyway, horrible losses unfortunately are sometimes the only times people "snap out of it" (Moonstruck), but also are opportunities. Republicans looked in control in 1928 and Democrats in the mid-1850s.  Of course, the change -- like labor pains generally -- was unpleasant. 

The Eichmann Trial

After watching Denial, I wanted to read some stuff by the subject of the film. This is a good start, a fair and balanced account that also discusses Hannah Arendt's account.

After Disaster Analysis (Electoral College too)

One blog that I relied on for electoral analysis predicted a 50-50 Senate (LA is not a lost cause, but 52-48 the other way seems likely) and a safe electoral vote win for Clinton.  Recent remarks:

Now that we’ve had a week to digest the results of the 2016 election, here are some observations about what happened and what the results might tell us about the future.

The 11/9 post was aptly entitled:"Mea Culpa, Mea Culpa, Mea Maxima Culpa." Others without the specialized skills-set here are saying something along the same lines.  I was rather sure Clinton would win though some of the upper-300s electoral votes predictions seemed to me rather optimistic. [The level of assurance makes the gleeful taunting nature of some of the responses rather expected, even if they come off as sore winning.] Polls before the election suggested to me that (sadly) a much closer election was possible.  If only it was only that bad.  Key differentials, and 50 wouldn't have been enough this time, in the Senate was PA and Feingold losing. The other best shots were Indiana and Florida, two unsavory insider types running though they were our insiders.  But, Feingold? Sad.

The analysis usefully provides margins of victory. Wisconsin and Michigan are under a percent (NH went Clinton similarly by a hair); Florida (many feared a loss here) and Pennsylvania (a surprise) by a little over a percent. North Carolina seemed possible, but was by a few percentage points.  Obama's success there, however, suggests future potential. The tiny percentages are balanced by significant wins in high population states, somewhat less the other way for Texas (NY/CA have over 20% differentials, while Texas has less than 10%). Absentee voting etc. means the numbers aren't clear, but HRC has over a million more popular votes.  This seems to be trending up.  The people spoke there too.

[Looking at the map, unless it changes, Clinton could have won Pennsylvanian and Michigan and still lost because Trump won a spare electoral vote in Maine.  270-268.  "What ifs" can be cited over history, it being close multiple times.  But, imagine that. Think now is bad.]

And, the differentials suggest even different campaign tactics would make it hard to change the final result.  Finally, early reports aside, turnout is consistent with 2012 though a few more percentage points voted third party.  How that breaks down is unclear and probably cancels out in the long run somehow. The tiny differentials in a few states still make me wary to conclude they had no effect or would not have in two states in 2000. This would warrant further support for some alternative voting system, instant run-off, preference voting or whatever.

A bottom line point to be made here is that "mandate" can be tossed around rather weakly.  More people voted for Clinton and the electoral vote in the key states turned on slivers of voters.  Over forty percent of the electorate did not vote.  Again, who knows how they would split in the end if actually pressured more to do so.  People can analyze the results to help Democrats figure out how to succeed in the future, though the basic conclusion I have is that too many felt it important not to vote for a clusterfuck.  Beforehand, I basically saw it as a test -- you usually don't have to make those real hard decisions, even if you are given thought experiments. Failed the test.  This looked to be a Republican year -- look at history alone as to the presidency going back/forth.  Plus, an anti-establishment year.  Clinton was not a great choice there.  Just thought Trump was horrible enough.  Mea culpa.

A final word on the Electoral College. This article critiques it though a telling tidbit was if the popular vote was more evenly apportioned, Clinton would have only won a plurality. This would have sent things to the Republican controlled House under the system in place, which sounds like a mess too. It cites this analysis of original understanding, one that tries to soft soap a bit on the anti-democratic nature. The fact the Framers didn't think the people had the information (given lack of communication provided by today's national media etc.)  is a sort of positive spin. Like parents benignly being in charge of children, respecting their interests, but realizing they aren't mature enough to make choices themselves.  End result in the same.

We have since then entrusted the people with much more political power, including suffrage generally and direct election of senators.  As the article says, as well, the differentials in population between the states then and now greatly increased. The analysis notes one factor involved were small and slave states being concerned. Only half of that concern is of course cited these days and the result in practice turns out to be swing states matter.  A few more were in play this time but it sometimes got to the point that one or two states (such as NY) decided the election.  The net value of moderation there is unclear especially since there are other ways to deal with that, including the nomination process itself.  Plus, we are balancing things here, especially when as much as a million and a half people more voting for one candidate isn't enough.

The Electoral College is not popular (many simply don't really understand it) though an amendment is a long shot since it is not so unpopular that a requite supermajority is present to replace it.  Another path is states deciding to allot their electoral votes matching to the winner of the popular vote if their total is enough to get to 270. It is useful to remember that the winner take all policy for electoral votes state by state is not constitutionally required. There are a couple exceptions now, and back in 1796, spare electors seems to be why Adams won. I read once Madison (fwiw) actually supported a district allotment. How that would actually change things is unclear and would average things off too. IOW, some districts will skewer toward one candidate, while another barely so. Both would mean one electoral vote, leading to population vote imbalances being possible there too. 

The federalism appeal cited by the Trump side is checked by those who argue "the point" (as if there was just one) was to avoid unfit leaders that are result of misguided unmediated masses (see, e.g., Federalist No. 68).  One way to do that is to try to protect the interests of all states, so a regional tyrant would not win.  Another is to have people vote electors, who ideally would have the judgment that might not be present in the masses as a whole.  Consider the old rule where state legislators, possibly pledged beforehand, voted for senators.  But, some independent elector not tied to a specific person really never really was how things worked.  It surely doesn't work that way now and the Supreme Court basically accepted it.*

A few are appealing to electors, mind you partisan Republicans though perhaps in various cases not loyal Trump voters (cf. Bill Clinton is an elector in NY), to be "faithless" here.  This apparently is being loyal to the Electoral College.  Others wish to strengthen rules in place to prevent this sort of thing, of course assuming state power warrants it.  Regardless, the first group is a rather forlorn hope, in large part because we didn't set it up to have electors really show independent judgment.  Juror nullification is not really supposed to be a thing, even if the inability to challenge a verdict (generally speaking) makes it possible.  But, it is still recognized jurors are not supposed to be automans, blandly following the will of judges.  Electors are quite different here and it seems quite possible the Constitution warrants giving states express instructions, even setting up fines or only giving electors the limited power to vote for one person.

Anyway, I doubt push comes to shove it would matter -- a few stray electors have yet to actually decided a contest. A differential in electoral and popular vote could have had been itself avoided in 2000 if Florida's votes were counted in a better fashion. This year, like in 1888, the difference is just blatantly in place, no realistic (though some will fear hacks etc.) chance Clinton really won the popular votes in the relevant states to win the electoral vote as well. I somewhat relieved that somewhere between one and two percent differential is involved, different voting systems likely to result in imperfect results.  Consider a plurality where a majority is against the winner, but in the end it balances out that way.

I'm not as passionately against the Electoral College as some but am inclined to go along with the popular vote.  Why are tens of thousands maybe of vote in even three states worthy of beating the wishes of millions?  Region is a rather imperfect way to address interests that simple majority might not offer you.  Plus, states still benefit in our system in various ways, even if you ala Madison's druthers had a one person, one vote system in the Senate (a truly fair approach there would cross state lines or more than triple the senators we have now, given some states have less than a million in a country of over 300).

Anyway, we have our system, and too many voted for Trump. 

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* Ray v. Blair in the 1950s dealt with an elector being required to take an oath to vote for the nominee, but unlike the dissent, broadly honored state discretion here.  It did hedge:

However, even if such promises of candidates for the electoral college are legally unenforceable because violative of an assumed constitutional freedom of the elector under the Constitution, Art. II, 1, to vote as he may choose in the electoral college, it would not follow that the requirement of a pledge in the primary is unconstitutional.

The opinion cited history regarding early practice as well as a 19th Century ruling that would come up in Bush v. Gore too:

Doubtless it was supposed that the electors would exercise a reasonable independence and fair judgment in the selection of the Chief Executive, but experience soon demonstrated that, whether chosen by the legislatures or by popular suffrage on general ticket or in districts, they were so chosen simply to register the will of the appointing power in respect of a particular candidate.

This is an interesting case of "expectations" alone not being the test though it was careful to note that even if "the constitution has been found in the march of time sufficiently comprehensive to be applicable to conditions not within the minds of its framers ... subjects expressly embraced within it" must not be revoked.  Just what that means is the rub, especially when it includes certain things that are not literally expressed in the text.  

Reviews

Saw something like the first third or whatever of the female Ghostbusters, but turned it off since it was so boring. Don't recall original that much, but recall it being more fun. Better was Good Behavior on TNT, at least the lead (Michelle Dockery from Downtown Abbey, slumming it). Her involvement with a hit-man is fairly convoluted and didn't really need two episodes, but she makes it interesting. The second target's wife also was a good guest shot.

Rooting really really hard for Cruz? Yeah Okay

This guy in various cases has a sane view of things but other times sort of seems to be in an ivory tower. See, e.g., focusing on his own specialty when determining who should replace Scalia. Cruz enabled Trump, only for a short time truly being his own man. He is an asshole that his own party doesn't like in part because of his self-aggrandizement over institutional concerns. And, his conservative principles will clash with that blog's libertarian sentiments. Clinton as SOS shows Cruz is a logical choice for the Cabinet and we can do worse. But, blah.

The Fight Continues

Appreciate Ivanka Trump's company realized blatantly monetizing the presidency (promoting something she wore on 60 Minutes) was a bad idea, but her dad still going after the NYT on Twitter. Learning curve. A reminder the Dems also won the popular vote in the Senate. Also, "rules for survival" against autocrats. The 2000 elections still hit me hard when I started this blog a few years later. It's 16 years later and it's worse now in certain ways. It's so depressing and aggravating. Sugar or heat, the fight continues. Garland deserves seat. It was robbed.

Update: Part of this is staying true to your values in every day life. Starts there.

Football Update: Early Evening Edition

Jets, with Bryce Petty as QB, lost 9-6 (missed extra point). All teams in NFC North lost except for Detroit (bye). NFC continues to play tough (Redskins/Eagles won; two games left). As does top three in AFC West (Oakland bye; Panthers blew lead & game late). Giants on Monday. College upset -- Clemson vs. unranked but two teams behind them lost too.

Update: Exciting late games. Pittsburgh blew it, helped by trying for two each time and failing each time. Dallas did too but less times. Arizona won late. Chargers found way to lose again. Pats lost, not scoring at the goal line in final seconds. [Giants win.]

Hamilton Grange

A "grange" is a sort of farm or estate (after "barn") and this is Alexander Hamilton's Harlem residence. It borders St. Nicholas Park, which is nice in itself with nice views and paths. Free of charge, there is the museum area and a tour of the upstairs residence (a deputy guide was a tad rude in her style). Nearby is the Hamilton Grange NYPL branch. Couple local churches are architecturally impressive. Grant's Tomb is around a mile away. Nice day trip.

Yeah, that really happened, not a bad dream

As the stages of grief pass, "acceptance" should involve accepting ... no seriously ... there will be a President Trump, but not being complacent about it. Also, it won't be just horrible. Few things are. No "told ya soes" though as if people figured Trump just means the end of life as we know it or something. Yet again proof 'live in interesting times' is something of a curse. Meanwhile, don't understand language, but liked this CD.

Update: Various critics now saying we should hope for the best, hope he succeeds etc. Eh. He has to earn respect. Sniping at protestors on Twitter after being elected? Not helping.

Big "FU"

The polls suggested the Senate would be a nailbiter so if you can win by one or two, you can lose. So, okay. The presidency? Even the "horrible" predictions of Nate Silver was only 35%. Clinton seems to have won the popular vote and third party votes (including Stein in PA! shithead) was key in multiple states. Sad and angry electorate, some probably thought he wouldn't win. Brexit has been cited. We have this call for limits from a Never Trumper who associated with enablers of this state of things. Not quite kumbaya on how principled he is. More here. Not a big fan of the beginning of that post either. 16 years. Same shit. Worse.

Disgusting

Election Day: It Begins

Clinton won her first test (saw one place that the Senate vote split; 50-50 was one prediction). Voted early and there was a good turnout. Couple people in front of me. Hours in line? Not in NYC. Sheesh. Voted third party -- Clinton et. al. are on multiple lines. Voted "D" for Schumer given the importance of the Senate. One "independent" Democrat who helped Republicans get control of the state senate didn't get my vote. Voted "Green." Wrote in one name each for judicial races, since I'm against voting for that & there were no choices.

Denial

This was a back-up choice because I missed the window of another bargain priced film, but enjoyed it all the same -- helped that I like Rachel Weisz, Tom Wilkinson and even Timothy Spall. The portrayal of the British libel trial against someone who challenged a Holocaust denier was basically straightforwardly done, but done well. There, the defendant has the burden of proof. Be interesting to see a film with right losing, a good fight given.

NFL Sunday: One Step Closer to Bryce Petty

Early games alert. NY teams played same time and both game were sloppy. NYG late gave Eagles chance to make up a large deficit (multiple fourth down flubs burned Philly) but survived. Jets game turned on a return for a touchdown after their penalty forced a re-kick. Detroit hit a 58yd at the buzzer after having less than 1/2 minute to score and won in OT. Vikings 5-0 start looking long ago. Meanwhile, Comey says "nevermind." Schmuck.

Update: Packers lost, reflecting Vikings are in a weak division. AFC West have three teams with six wins; rest of divisions have a lot of mediocrity with a few superior teams total. [Oakland won, again not doing so totally pretty. Helped future tie-breakers for division.]

Duel

This was the Svengoolie film this week -- good flick & never saw it before. Had a car insurance parody right before a commercial break that at first I thought was the real thing!

A new wave of courtesy at the Court?

Justice Breyer a few months back provided a "courtesy fifth" to stay a win for a trans student because four justices wanted to hear the case during the recess. No update from him when they took the case. Now, CJ Roberts, clearer he rejects things on the merits, did so in a death penalty case. Kennedy silent (he was in the majority in Glossip and this case involves that sort of thing), Alito/Thomas dissenting. A person dying is a tad different. To be cont.

And Also: Special event in honor of Scalia, so special television was present for part of it. Election law order posted online, not (as of around 1PM Sat.) on website yet. Come on guys.

Favored Highly Paid Team Wins

Looked to be a repeat of the comeback from 2-1 down vs. the Dodgers but this time 3-1. Indians, however, came down from a hole in the 8th. But, blew it in the 10th. Only got one of them back. So, it's like Cubs were still destined and actually had to fight a bit more for it. Yeah. Fans and all. Get it, but BLAH. I'm a Mets fan. I have this next week.

New York Botanical Garden

Weather decided to be nice so was a perfect day for a long walk (might be a side exit but had to double back, eventually, to get out) at NYBG. I repeatedly pass by but might have been inside once. My IDNYC card gives me a year license to the grounds, basically. One charm is you can call in to listen to people talk about various displays and poetry posted. A sort of personal audio tour. Many flowers not in bloom, but still nice. Thain Family Forest the best.

And Also: Went to the Museum of City of NY [passed the Harlem Meer, picturesque if a tad polluted] and Museum of the Moving Image (Astoria Queens). Both worth a visit but particularly liked the first with its social history exhibits and being nearby to other places.

SCOTUS Watch

An oral argument on Halloween about cheerleader uniforms seems apt, but fairly technical orals this week. However, noticed last term's opinion announcements are up over at Oyez.com. Too bad the Supreme Court can't do it. And, I agree Thomas' questions seemed pretty good. Meanwhile, went to The Cloisters, which is in the spacious and charming Fort Tryon Park with wonderful views. And, a few states allow early voting do-overs.

Make It Stop, Please

Emails again with repeated evidence Comey at best did enough to deserve to be fired for incompetence. Make it about her, go ahead. OMG. Is it over, yet?!

Annie on My Mind

Enjoyed this 1980s (with a 2000s author Q&A) pioneer Y&A lesbian romance, which particularly does a good job giving us a window into the narrator's emotional and physical state as she falls in love. They met at The Met (ha) and used my IDNYC card to obtain an annual membership (if minus discount possibilities), checking out this very exhibit mentioned. Impressive and thanks again to all those docents who give interesting tours. Must now go to The Cloisters. Then, went to the Yorkville Library, well timed for this interesting book discussion, adding to an audience of mostly Pakistani women.

Cubs/Indians (Cubs win three after down 2-1)

Congrats. But, not very competitive after first three.

Update: Giants (in London, per Rams turnovers; offense mediocre) and Jets (in U.S., but comparable, Geno Smith out early) both win. Three way tie (kinda) for second/one game behind in NFC East. Fitzpatrick not really shining or anything as Jets ready to play string.

Against the Death Penalty

Various justices (Powell said so after he resigned) at some point came against the constitutionality of the death penalty. Two more said it was "likely" and this book provides that dissent with an added introduction and enhanced endnotes (Breyer doesn't do footnotes, so much of them basically translates references into them). The author is the wife of Senator Amy Klobuchar and wrote multiple books on the Eight Amendment and the death penalty.

The Real Liddy James

There are so many fiction books out there but I find it hard to get into most of them. Found this by chance and found it an enjoyable read. Liddy James is a divorced successful family lawyer with two kids who overextends herself and has a bit of a breakdown. We also get a window into her ex-husband's current partner (surprise pregnancy), whose voice we sometimes hear, and a bit of some other characters. Liddy isn't the only one at a bit of a crossroads. Good mix with a healthy touch of empathy including for blended families.

Gregory Lawler Executed

Supreme Court debate questions involved guns (HRC says gun regulation okay under 2A) and abortion plus HRC saying the Senate should confirm Garland (if they don't by January 20? not addressed) while Trump said RBG was mean to him. None on death penalty even with the subject matter due to occur by end of day. The execution itself involved use of a AR-15, the guy on death row for about twenty years. Failed challenge based on his autism diagnosis.

My Own Words

I think the Notorious RBG book is an excellent means to get a full accounting of the woman but this provides a chance to get her own words (with brief introductions providing biographic information, this originally planned to be a companion to a biography but she continues to be on the Court) on various issues such as women, a moderate approach to judging, dissents and usage of international law. Plus, various bench statements.

SCOTUS declines to rule in 1995 death penalty case

On an otherwise boring order day, Sotomayor (with RBG) dissented from a denial of cert. in a death penalty case, one relisted multiple times. On Twitter, Shon Hopwood (wife now in law school; just argued a case in federal appeals court) welcomed the dissent. Twenty years on death row raises a Breyer concern -- long time on death row -- but did not join. Maybe, it wasn't a good procedural case / wasn't likely to be granted cert., thus dissent of two.

Update: Chris Geidner on Twitter opined that the other liberals might not have supported Sotomayor's procedural analysis. Meanwhile, in the Northern Mariana Islands 2A news.

Kate McKinnon Talking About Her Cat

She's great as a whole, so full of life and hilarious. Plus sexy. Looks like Yogee.

Trump IS a Threat to the Rule of Law

Some pushback on the criticism of Trump saying he wants to jail Clinton, but as various comments suggest, as a whole that is an overcorrection. If a simplistic "never prosecute" rule [but not prosecuting predecessors has bite if you take everything into consideration] is in place or "take rhetoric totally seriously" is the issue, okay. But, it's more than that.

"Fair Punishment Project releases second part of report on small number of US counties still actively utilizing the death penalty"

Any one argument against the death penalty is only going to appeal to some people but the "unusual" nature of its application seems significant. The first comment here makes some points but as suggested by mine own think only so much. Anyway, it's not just any one thing.

Baseball Update

Somewhat surprising both the Red Sox and Texas were swept out. Turned out to be a FIVE game losing streak. Took some extras (Bumgardner out after five) for the Giants to last another game and five pitchers for them to blow it in the ninth in Game Four. Dodgers/Nats (eh to both) will go five. Theme: more Murph, Kershaw struggling some but Nats not taking enough advantage. Me? I'm rooting for the AL and Cubs. NY football depressing.

Update: Dodgers advance with basically a pen game, closer goes 2.1 and Kershaw closes (1st out was Murphy) with last two outs after pitching a couple days before. Instant classic.

SCOTUS Watch

Columbus Day and Yom Kippur means a short week but oral arguments in a jury case tinged with racism and for those who care a major Apple verdict. Orders (mostly uneventful) brought the first per curiam, basically SCOTUS protecting its turf if in a somewhat surprising fashion (who knew Booth v. Maryland still had a bit of life?). And, a tidbit on Kagan's recusal.

And Also: Afternoon order granting some cases, one with six justices (Sotomayor/Kagan out). Doesn't sound totally mundane either.

The Insular Cases and the Emergence of American Empire

And Also: Some thoughts on character by the Founders per Trump.

Today's Columbus Day (aka Indigenous People's Day) as well as Thanksgiving in Canada.  We can say the usual about the problems with Columbus, but you know, those "indigenous people" were a mixed bunch (see Aztecs etc.).  We cannot assume that people who were here first for all time have some right over the land or something.  Need to focus on the needs of everyone today.  Finally, there is nothing specifically superior about the people here originally -- if they by some quirk of fate established a nation in Europe, they very well might be the ones bashed today.

There is some connection to all of this and the title book because there too we are concerned with imperialism and the fates of the indigenous peoples. The book deals with a range of cases (the first set decided around the turn of the 20th Century) arising mainly from island possessions connected to the Spanish-American War (Alaska and Hawaii arise as well as does Samoa, which was obtained separately if at around the same time). Let me say upfront that though the subject is interesting, the book itself soon became tedious. There are lots of cases here and after a promising beginning, it became a trudge and a bit confusing to keep track of them.

The United States had numerous times to deal with new territories, including those involving the civil law / French and Spanish people of somewhat different cultures than ours.  Though the book shows even here (e.g., Latinos in the Southwest) were not trusted, all the same, they were basically European and seen as able to be brought in effect on equal footing. After the Mexican War, e.g., we didn't have concerns that Mexicans could not handle jury trials.  See also, though various ways of course were available to "deal with it," newly freed slaves after the Civil War.  The Supreme Court in fact dealt with the rights of black jurors at this time.  There was no constitutional argument set forth by the Court (if one by some in society) for some lag time to adapt.

In 1820, the Supreme Court dealing with D.C. broadly dealt with the situation of: "permitting the representatives of the American people, under the restrictions of our Constitution, to tax a part of the society which is either in a state of infancy advancing to manhood, looking forward to complete equality so soon as that state of manhood shall be attained." Speaking of an "American empire," the term "United States" even then was defined as "composed of states and territories." This was Chief Justice Marshall, a nationalist, but his successor -- in an otherwise of course dubious opinion -- similarly treated territories as equal to states in respect to general rights in Dred Scott v. Sandford. Thus, a person born in New Mexico Territory after the Fourteenth Amendment was still an American citizen at birth without naturalization.  It was part of the "United States." 

[Note that "equality of states" was also not just some neo-Confederate theme. The problem with the Shelby voting rights case is not that but the legitimate power to treat states differently given the differences some have as to voting discrimination. The special preclearance rule in place is of special significance but is "appropriate" given the need of the situation.]

Fast forward. Boumediene v. Bush, the final Gitmo case addressed the Insular Cases to explain why a new rule was developed:

The Court thus was reluctant to risk the uncertainty and instability that could result from a rule that displaced altogether the existing legal systems in these newly acquired Territories. [cite] (“It is obvious that in the annexation of outlying and distant possessions grave questions will arise from differences of race, habits, laws and customs of the people, and from differences of soil, climate and production … ”)

Ditto Reid v. Covert, the 1950s case that held the American citizens overseas should have the same rights as civilians at home: "These territories, governed and regulated by Congress under Art. IV, § 3, had entirely different cultures and customs from those of this country." But, Louisiana had "different cultures and customs" in relevant fashion respecting civil v. common law courts, but that wasn't the idea in 1803.  The reference in the final Insular case (1922, summing up the final principle that Congress has the power to determine if a territory is "incorporated" and thus worthy of full rights, basically amounting to jury and voting rights, the latter discussed in a John Oliver segment) noted:

Congress has thought that a people like the Filipinos, or the Porto Ricans, trained to a complete judicial system which knows no juries, living in compact and ancient communities, with definitely formed customs and political conceptions, should be permitted themselves to determine how far they wish to adopt this institution of Anglo-Saxon origin, and when.

Or, as the justice that announced the opinion in Downes v. Bidwell (the concurrence provided the ultimate accepted theory), "possessions are inhabited by alien races."  Yeah.  Many of the original cases also dealt with the nuances of tariff and other taxation, including the provision that "all duties, imposts, and excises shall be uniform throughout the United States."  This provided another wrinkle.  Finally, there was the general flexibility desired for imperial possessions, that unlike in Marshall and Taney's day were not necessarily going to eventually become states.  As Justice White noted in concurrence, pragmatic reality warranted a new rule:

Conceding that the conception upon which the Constitution proceeds is that no territory, as a general rule, should be acquired unless the territory may reasonably be expected to be worthy of statehood, the determination of when such blessing is to be bestowed is wholly a political question, and the aid of the judiciary cannot be invoked to usurp political discretion in order to save the Constitution from imaginary or even real dangers. The Constitution may not be saved by destroying its fundamental limitations.

Or, so was the thought at the time. Of course, it is not necessary a given that such a path be taken. The early cases were often split 5-4 with not only Justice Harlan alone in noting repeatedly the Constitution spoke of "people" not places here in respect to rights.  If newly freed slaves could adapt to "Anglo-Saxon" legal institutions, why couldn't those in Puerto Rico, the Philippines and so forth?  Is being on a jury or a unanimous jury requirement really so complicated for locals not to have a right deemed of fundamental importance to the founding generation?

At any rate, as John Oliver noted, even then there was this qualifier: "may for a time be impossible, and the question at once arises whether large concessions ought not to be made for a time, that ultimately our own theories may be carried out and the blessings of a free government under the Constitution extended to them."  That was over a hundred years ago.  Aren't we due?  It unclear what is left of the cases today.  Again, even then, there was this dictum of unclear reach:

We suggest, without intending to decide, that there may be a distinction between certain natural rights enforced in the Constitution by prohibitions against interference with them and what may be termed artificial or remedial rights which are peculiar to our own system of jurisprudence. Of the former class are the rights to one's own religious opinions and to a public expression of them, or, as sometimes said, to worship God according to the dictates of one's own conscience; the right to personal liberty and individual property; to freedom of speech and of the press; to free access to courts of justice, to due process of law, and to an equal protection of the laws; to immunities from unreasonable searches and seizures, as well as cruel and unusual punishments, and to such other immunities as are indispensable to a free government.

This amounts to a hint of substantive due process, which was recognized to exist to some degree by the Supreme Court at this time. Again, putting aside the then quite important issue of limits of taxation power, the core issue here were political rights. Juries were understood to be included there as seen by such things as juries being "polled."  Again, to continue:

Of the latter class are the rights to citizenship, to suffrage, Minor v. Happersett, 21 Wall. 162, and to the particular methods of procedure pointed out in the Constitution which are peculiar to Anglo-Saxon jurisprudence, and some of which have already been held by the states to be unnecessary to the proper protection of individuals.

Again, Balzac v. Porto Rico (1922) spoke of "guaranties of certain fundamental personal rights declared in the Constitution" and thus today people in Guam have abortion rights and Puerto Rico the right to same sex marriage.  Boumediene v. Bush showed that even in Gitmo rights to "due process" that case alluded to applies as well per habeas protections.  You did not need to be an American citizen to have them.  Thus, today, putting aside citizenship, it is unclear the reach of those opinions today. Still, e.g., in American Samoa not only are you merely a "national" but certain groups have special land rights, equal protection of the laws not fully honored. Locals there voiced a desire not to be American citizens though it is unclear there is no way to protect basic equality more all the same even with some local discretion in various respects.

A final concern, as noted in the John Oliver piece, are voting rights.  The general expectation that territories would eventually become states does arise there, but the Constitution does allow an extended territorial period where people are not represented by voting members of Congress or are able to vote (via electoral votes) for President.  Of course, this can cause problems, as seen by the eventually felt need for an amendment to protect (up to a point) the rights of those in D.C. to vote for President.  It is unclear why such a need -- after a century -- is not present in other island possessions.  The "may for a time" bit there is more of a moral command, since the Constitution sets up a certain system based on statehood to apply such voting rights.  The same can apply, per a case just last term, if Puerto Rico wants to be fully treated as a sort of state dual sovereign" rule).

The circle back to the holiday, handling Native Americans and tribal rights has been a long and somewhat convoluted process. But, Native Americans in the fifty states were naturalized. At the very least, they can vote for President though their ability to local home rule (including in respect to outsiders, as shown by a 4-4 case involving a civil liability issue last term) sometimes leaves something to be desired.  The correct approach there, especially if the tribe only has a tiny population is complicated.  A bit different when you are dealing with Puerto Rico, which has more people than many states.  Other regions also has sizable populations.

The matter should be pressed.

Two Films

My Summer Prince is was an enjoyable Hallmark film, including three older actresses you will catch for their younger roles ("Troi" is no longer you know sexy hot but she has a good role). No reference to what royalty actually does these days and the queen coming to Idaho was apparently rather local. The Final Girls involves some friends getting stuck into a horror film. Well done, good acting and feel of a 1980s slasher flick. "Film" might be "R" but not the film.

SCOTUS Watch

A race tinged death penalty case got the most attention in the first week of the term, but another criminal justice case that was even more tangled among procedural weeds should get some too. The claim: "harassed and beaten during a traffic stop and that officers knowingly falsified drug tests," but was it fit for federal court and how? Expect narrow rulings.

Trump Tapes

TPM has some good analysis, including how what is on the tape does not only reflect the man but his actions. The end game for Republicans now is to try (up to a point; some minority will go further) distance themselves but still seek to retain control of Congress. This can't be allowed. They made their bed and simple justice warrants they lose. But, it still looks damn close. BTW, you know the media (MSNBC was up late live) LOVE this. Finally, some said HRC should focus on herself more than being anti-Trump. Had point, but darn, he makes it hard.

Update: Bottom video. Wow. She ices it. Plus, everyone has BIG possibles -- PENCE OUT! TRUMP OUT! LOSE HOUSE! Eh. Calm down. Happy with comfortable Senate, closer House. There is a month. OTOH, "TO BE CONTINUED" feel here. Still, think there might be disappointments. Still, Garland in? Would be a pretty big gesture. Guess too late though.

Frequency

This is based on a pretty good film with Dennis Quaid as the father though now 1996 is the earlier period. The butterfly effect really shows here though it helps to get rid (for now) a tiresome boyfriend. Has potential if somewhat heavy-handed at times (well, it's the first episode) though the possibly dirty cops subplot is tiresome. CW so she's 28, though a few more years to make her a more experienced detective might work better.

No more baseball

Horrible ending taints game. Great game evenly matched. Not blown like that. AGAIN. Sick of Giants. No fan of Nats/Dodgers. I'm supposed to be enthused by Texas/Toronto? The Red Sox? Guess go Indians, but blah. Heart not in the rest of games.

Do Guns Make Us Free?: Democracy and the Armed Society

This expands on an Atlantic article and he has written others on the theme. Overall, it is a good warning on the dangers philosophically on civic society though wished he compared things more to the two times we had rebellions. Was the Revolutionary War valid under his reasoning and/or how were the times different? Plus, is a civil republican militia model (see Saul Cornell) sensible? Says he is open to some gun ownership etc. but book is somewhat one-sided there. Still the NRA focused rhetoric needs the corrective provided here.

SCOTUS Watch

There is a 5-3 split of Catholics (Sotomayor is the secular Catholic; Kennedy the one who is a bit cafeteria) and Jews (all appear mostly secular) on the Court and Garland is Jewish too, so it is fitting that the First Monday in October overlaps with the Jewish New Year today. Anyway, the orders were of little apparent note, one criminal one split 5-3. Some (like U.S. v. Texas -- rejected, not held over until nine were available) cases rejected of some interest. The Twitter brigade is back, including Kimberly Robinson with some good stuff.

Sports Update

A bit less embarrassing, but NYJ still had a bad game, not yet winning any of the elite games in the killer first six (minus Buffalo, not counting). Cards/Panthers struggling too but believe in them more to rebound. Pats 3-1 without pretty boy; could have been that with him. No surprises or need for Game 163 on the MLB front though it took a winning streak vs. Dodgers (slumming?) to do it. Various teams (e.g., Braves strong finish) had moral victories.

Update: NYG had another sloppy game, symbolized by an early turnover that turned good field position to a Viks score. Getting late early for both NY/NJ teams.

April and the Extraordinary World

Finally saw this. Very good. Better than Academy Award winner Inside Out.

Mets Clinch Top WC

4-3 nail-bitter. Why not? Congrats ... lots of problems but also lots of heroes.

The Gerbil Farmer's Daughter

The time period (and for a few years, Kansas too) overlaps some with the other recent book written by a "Holly" (Hope). Found this while looking for The Farmer's Daughter. The author also writes fiction and non-fiction articles so it is not too surprising this is a good read regarding growing up with naval career father who goes into the gerbil business. Trials and tribulation of her preteen and teen years with a wry touch with some serious moments.

José Fernández

Marlins players were still raw last night about the death of their young star pitcher in a boat accident, someone very honored and loved especially in the Latino community (he was a Cuban refugee, lover of life and him being an ace was but part of his charm). He's an example, an elite one, of how baseball is not just about skill and winning, though that helps. Like, unlike some, I wasn't ready to hand-wave a loss last night. Cards helped by being dominated (again) by the Reds. Still, yes, a game is different from a life.

Love and Friendship

Movie version of Lady Susan, the title rather generic and not really that apt (an early work has that name, spelled differently). Liked the book though interested in how it would be as not an epistolary novel. Had a moment few years back when I went thru Jane Austen except the Juvenilia. Not sure I would now. And, this sort of talky deliberate with some amusing dialogue film, might have handled once. Now, I found it real dull and shut it off.

Repudiating NAFTA

Years ago, I recall reading about the challenge to NAFTA, some arguing it is a "treaty," and thus wrongly negotiated. Seemed to me like a treaty (think commercial treaties of yore). A question, with various comments (including mine -- see especially the FAS links), involving a future President abrogating it is discussed here. Whatever the accepted rules, personally, generally think if two parties (Senate/President or Congress itself/President) requires entry, it takes both to exit, since revocation is in effect a new (opposite) agreement or treaty. Here there are rules and the President has delegated discretion. A lot more there.

The Levy Family and Monticello, 1834-1923: Saving Thomas Jefferson's House

The author wrote a Brandeis biography and was in that video I talked about the other day. Found this book at the library, part of the story summarized here. It also talks about Monticello before and after. Interesting little footnote to history that touches upon bigger themes including antisemitism. Liked it more than one or more of the author's others.

Garden City: Dreams in a Kansas Town

Harper Lee helped investigate a famous couple of murderers involving a Kansas family and a biography referenced this book, the author's family having a cameo. It was published in the 1980s when the author in her early thirties, so one wonders about an update. We get a bit of that from this obit of her mother from a couple years ago. The book itself is a bit limited and plodding but interesting as a window into a life (second half are snapshots of others).

Update: Wrote this in media res; the autobiographical part was somewhat plodding and ends in her early 20s. But, the second part was interesting with various perspectives, including a Latino. One review complained she didn't have an Asian voice, but she does reference them and again did include a minority voice. True enough comes from a certain perspective.

Further Reading

After reading a recent Brandeis bio, saw an event with the author that involved Brandeis scholar Philippa Strum. Interesting. Follow-up with two of her books, part of a constitutional case studies series -- Mendez v. Westminister (Mexican-American students in 1940s; Trump connection obvious) and the more well known Whitney v. California (weak on "why concurrence"). Interesting materials, somewhat tedious (especially the first) accounts.

Hillary Clinton Slogans (One Version)

If I had to guess the Hillary Slogans, they’d something like:

•  Muscular Diplomacy as a first resort, Sane Limited Intervention as the last. (Not my favourite.) 
• Sensible Economic Fairness (restrain the bad, support the good esp. at the bottom) 
• Woman and Girl Issues Are Core * Social Justice Requires Listening and Respect.
•  No One Will Work Harder For Everyone Something like that. 

(Just off the top of my head. If I did it again, I’d get a slightly different mix on domestic since there’s so much there.) (This is the positive message I’ve gleaned from her campaign.)

ETA: I would quibble with a lot of this or whether these are the right ones. She has a lot of policy thoughts. And detail is her style.

I'm sad

I am with her for three reasons, in this order: Trump is a clusterfuck, my party's platform and Clinton has intelligence and experience (including dealing with Republicans). Her flaws are also exaggerated. It's sad #1 isn't enough for more people. Now we have this: "Nation's largest police union endorses Trump." Including talk of how he is a "proven leader." WTF? Why should I complain when people protest police if your leadership is for a racist asshole?

Happy Endings Are All Alike

Book by YA and mystery writer Sandra Scoppetone from the 1970s (re-issued later) about two teen girls in a relationship and what happens when one is raped. We get viewpoints from a range of characters, which I like, including unpleasant ones like the rapist. Good overall; the rape chapter is visceral. Also, sense of dread as we wait for the attack.

Jane Wants A Boyfriend

But, she has Asperger syndrome. Her sister is settling with a boyfriend and dealing with her first big break in a Shakespearean play, but then her parents says they are moving out of the city and wants her to take Jane. Turns out the answer is a sketchy co-worker who turns out to be deeper than first meets the eye. The couple are well portrayed and some reviews treat Eliza Dushku as the sister a bit unfairly. Overall, it isn't great, but enjoyable.

NY Primary Day

There might be some local elections of some note but my district solely chose a female district leader, who very well might be important cogs in the party machinery. Still, have no idea who these people (two choices) are, the incumbent endorsed by my assemblyman. I received no information on her, including from local pols. So, filled in the oval for write-in and filled in a family member. Doing my duty, protest of sorts, received a sticker.

Update: Looking at a free paper, the incumbent won in a close race.

Football Begins (as Mets continue the WC Race)

The new rules seems to have significant effect in at least one way -- multiple missed extra points, including (along with a blocked chip shot field goal attempt) being the difference in the Jets game. Horrible loss in a season with a low margin of error. NYG had a shot for a repeat of blowing it but Dallas helped at the end. Pats beat Arizona with their back-up. Sigh. Various good games though the first had too many Cam Newton hits. More tonight.

15 Years

I went to work in mid-town in a lower level work room and around nine o'clock (also was here for the 2000 election stuff) heard on the radio what was happening. Key moment for me was a radio reporter's anguish as she [somehow this detail annoyed someone, who for some reason thought I was being sexist for remembering each detail, including her sex] watched a tower collapse. Passed a key church daily and multiple funerals. So, any anti-American stuff "justified" by this is along with other stuff a personal affront. My Kennedy Shot moment.

Tim Tebow Signed By the Mets

Oh okay. Sandy "Mr. Politician" Alderson insists it is not a publicity stunt of some sort, but that would be the most logical thing. Amusing but not sure how much it all matters. More importantly, with them due to play each other, Cards & SF lost while Mets won, so there is almost (Cards played two less games, SF one) a three-way tie for Wild Card. Nice.

Update: As Thursday Night Football went on, Cards lost & Mets statistically has #2 Wild Card.

The Birth of the Bill of Rights: 1776-1791

I re-read this book from the 1950s (have a used paperback copy, originally ninety-five cents). The subtitle is somewhat of a misnomer since it goes back before that. And, I agree with this review -- it is useful as an early narrative history [and is readable for the average person] that provides the whole picture (not "1787-1791"] but it goes in tedious detail at times while in others doesn't do enough to explain the intellectual background and so on.

Rizzoi & Isles

This show, especially "Rizzoli," was at times a bit forced, but overall it was good comfort food. It ended on a nice note, each character (including Maura's #2) having their moment.

Louis D. Brandeis: American Prophet

This is a new intellectual biography (as one review calls it) of Louis Brandeis, a volume of moderate length (my type of book these days) biographies of Jewish figures throughout history (one upcoming: Jesus). Jeffrey Rosen -- whose book on privacy I read some years ago -- provides his evenhanded approach that makes his a good choice to be head of the National Constitution Center.  The subtitle aside, Rosen also saw him as a latter day Jeffersonian.

Overall, though it seemed to me to spent a bit too much time on his economic views (rather let's say ten pages been taken from that and added to the Supreme Court section), it was a good ... if somewhat straightforward (bit dry at times) read. The book does cover a lot of ground: his childhood/early career, economic views (and more broadly society -- he was wary of the New Deal at times too because he was against bigness in general), civic responsibility, time on the Court (focusing on speech/privacy along with his fact based), Zionism and a view from today (not too surprising each Jewish justice today voices support).

Rosen sees Brandeis as a very good model for today (e.g., something for both the left and libertarian right),* including his economic concerns that provides lessons for today.  He tried to find a middle path in his lawyer days, finding a way in the middle that would satisfy both sides. Brandeis was for a "living constitution" but (shades of recent writings of Jack Balkin?) he did so in a sort of originalist way in honoring the Framers' vision as he saw it (see, e.g., his concurrence in Whitney v. CA and dissent in Olmstead v. U.S. that appealed to historical values while applying them to current realities**).  And, Brandeis had a strong concern for the duties of citizens, free speech promoting that as well.

Brandeis' Zionism fits into his overall vision. He was earlier more assimilationist, concerned about "hyphenated" Americans. But, later saw Jews as supportive of basic progressive/American values (reason, concern for others, individual morality etc.) and needing their own homeland (he also supported this for others after WWI).  From my reading, it seems like Brandeis seeing the individual cannot solely be atomistic, a solitary individual, nor just part of the overall crowd as an American.  They would also have to be a member of a smaller group, a diversity of them a benefit of this country.  This would also fit into his overall free speech views.

One thing that impresses Rosen is Brandeis' use of language, including as a "prophet" for his causes -- thus his famous opinions on free speech, privacy, dangers of corporations, importance of experimenting (states as laboratories) etc. continues to impress. [Rosen argues that Brandeis changed his approach on privacy from his famous law article, which balanced free speech more than his later approach.]  Thus, Holmes is sometimes honored here, but in the long run, Brandeis is the true hero since we are provided with an inspirational reason based on American values, not some libertarian "marketplace of ideas" argument.  The value of this is seen if you compare the more thinly argued "right to privacy" cases (and then cases mostly reliant on precedent) with those (see, e.g., the dissents in Poe v. Ullman) that provide some more depth on how it fits into an overall ethos. Basically, the material it there, but we need more effort to form a complete account.

[this paragraph added]

The book recognizes his limitations, including on racial issues. He did support gender equality (including in his model laws for Palestine) though took time to sign on to the issue of women suffrage and supported protectionist legislation (given his druthers, he probably would have made it more evenhanded, but the doctrine at the time made this impossible).  His views on Zionism, e.g., was a bit too idealistic and not fully realistic of the facts on the ground (including Arab opposition). And, various other caveats are tossed out, such as why he concurred in Whitney.

Overall, it was interesting and intriguing summary that can be a model for studying the past lives and beliefs of historical figures. 

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* Rosen also repeatedly compares things he said with modern day realities such as how such and such is like Google or brain imaging. And, this doesn't come off as forced as a whole.  His overall joy and enthusiasm comes out, which is also true when you hear him in interviews etc.

** The dissents in the wiretapping case as a whole take a sort of "spirit of the Constitution" approach that is appropriate. An earlier dissent, showing the application might not always appeal, also cites the principle: 

Such changes may result from change in the conditions in which, or in the purpose for which, a punishment is prescribed. The Constitution contains no reference to hard labor. The prohibition contained in the Fifth Amendment refers to infamous crimes -- a term obviously inviting interpretation in harmony with conditions and opinion prevailing from time to time. And today, commitment to Occoquan for a short term for nonsupport of minor children is certainly not an infamous punishment.

The language and basic reasons for it does not change under this view (though in practice we do in various instances alternate basic reasons -- see, e.g., McDonald v. Chicago discussing the changing concerns regarding the Second Amendment). What can change are "conditions and opinions prevailing."

So, there is "no reference" to let's say gays in the Constitution but the references to "equal protection" can apply differently as "conditions and opinions" develop.  As specifically the case in the Fourth Amendment context, this can be quite tied to facts, a major concern of Brandeis himself.

Frozen Ghost

Lon Chaney Jr. comes off as somewhat stiff to me and there is a lot of exposition here but overall fun movie with good atmosphere and supporting cast including the now familiar "twisted artist" character (seen him before in Sven films). Don't know the singer, but fun new song/music video. Angel Olsen is very good as well. Those mini-concerts are kewl.

Frozen Ghost

Lon Chaney Jr. comes off as somewhat stiff to me and there is a lot of exposition here but overall fun movie with good atmosphere and supporting cast including the now familiar "twisted artist" character (seen him before in Sven films). Don't know the singer, but fun new song/music video. Angel Olsen is very good as well. Those mini-concerts are kewl.