Landmark Cases: Plessy v. Ferguson

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

-- Justice Souter 

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

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

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

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

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

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

We also have this from the majority:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Second Coming of the KKK (1920s)

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

Ethnic Weekend (March 17-19)

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

Film Quickies

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

Tinker tinker: Nitrogen Gas

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

Yick Wo v. Hopkins

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

 -- SOON HING v. CROWLEY (1885)

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

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

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

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

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

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

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

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

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

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

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

Florida Passes Gun Regulation Law

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

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

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

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

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

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

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

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

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

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

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

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

A Fantastic Woman (and film)

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

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

Civil RIghts Cases

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Band Aid: Good concept & film

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

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

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

Film Quickies

The second Fifty Shades film was not that interesting -- they get back together fairly quick so there isn't much drama to be had. Saw a reference of Purim and checked out Esther and the King after seeing a positive online review. What I saw was fairly silly. No Samson! High Noon was on the t.v. and I rented it to see the whole thing. Excellent cast and good crisp classic. Like an early bit: can't arrest three waiting goons -- didn't do anything yet!

McCulloch v. Maryland

I provided extended analysis of the cases last time, so the start of a new Landmark Cases season warrants a follow-up.

Upfront, this opinion's symbolic character in various constitutional debates -- including its defense in "living constitution" [the term is at times a dig] circles -- was not fully addressed in the limited time period of the episode. First, we have a reminded that the Tenth Amendment does not have the word "expressly," thus "leaving the question whether the particular power which may become the subject of contest has been delegated to the one Government, or prohibited to the other, to depend on a fair construction of the whole instrument."  The Constitution provides "great outlines" with specifics to be "deduced from the nature of the objects themselves." Finally, there is an ongoing character regarding such "deduction."

This provision is made in a Constitution intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs. To have prescribed the means by which Government should, in all future time, execute its powers would have been to change entirely the character of the instrument and give it the properties of a legal code. It would have been an unwise attempt to provide by immutable rules for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur. To have declared that the best means shall not be used, but those alone without which the power given would be nugatory, would have been to deprive the legislature of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances.

The beginning of the quote underlines the "government" is involved here, so it is not just a matter of Congress  and "a Constitution" applies things across the board. "Great outlines" are in place but specific applications will occur in ways the original authors "must have seen dimly."  So, if broad equal protection principles are applied to protect homosexuals, the mere fact that in 1868 it would not have been seen except quite dimly doesn't end the question.  The opinion appeals to original understanding so who is loyal to that?  Well, the criticism showed a battle there.

The dispute between Marshall and Jackson was touched upon, but much could be said about that as well, including arguably how the Jacksonian position is reflected in various ways by many today as well.  The pushback of the defense, e.g., of the Affordable Care Act and so forth by McCulloch/Marshallian rhetoric underlines the continuing debate. Gerard N. Magliocca has an interesting book on the historical battle there, Andrew Jackson and the Constitution: The Rise and Fall of Generational Regimes.  Repeatedly, concerned about limited power are cited by conservatives (in certain cases), but opinion promoted broad national discretion:

Is it true that this is the sense in which the word "necessary" is always used? Does it always import an absolute physical necessity so strong that one thing to which another may be termed necessary cannot exist without that other? We think it does not. If reference be had to its use in the common affairs of the world or in approved authors, we find that it frequently imports no more than that one thing is convenient, or useful, or essential to another.

Marshall put his thumb on the side of national power, which was quite possible since the Constitution itself expanded it.  The opinion was careful to state that easily admitted fact that we have a limited government and that when any government (there being limits to both state and federal bodies) clearly crosses the line that judicial review will respond. But:

Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.

The test is broad though has somewhat unclear contours. For instance, what does the "spirit" of the Constitution entail?  If Congress can establish a corporation, a monopoly at that, not expressly allowed by the Constitution ... that is if it is "proper" to do so under the Necessary and Proper Clause ... the words "necessary" and "proper" have both a broad and limited reach. After all, some argued -- unlike Marshall's Hamiltonian arguments [originally rejected as to the bank by the same person who eventually signed the law establishing the bank now at issue]  -- that the bank was not necessary or proper. Likewise, the opinion said states taxing a national bank was not "proper," not by express constitutional terms but by appeal to overall principle.  Such techniques can be used to restrict national power as well as we saw by the controlling opinion in the Affordable Care Cases.

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

The word "appropriate" is notable since it pops up in the Reconstruction Amendments and there is clear evidence that this opinion had influence [see the book cited as well as -- to jump ahead to next week -- the dissent in the Civil Rights Cases].  The limits of the Fourteenth and Fifteenth (Shelby v. Holder) has been an important them during the Rehnquist and Robert Courts with key cases being 5-4 battles. A telling except is the Boerne case, the main dispute [Souter and Breyer chose not to decide the federalism issue; Stevens and Ginsburg accepted it silently]  over the reach of the Free Exercise Clause. The concern there was that the Congress was not "enforcing" the amendment at all.  This would not be "appropriate."

Still, I think it reflects the means/end discussion of McCulloch -- Marshall basically said that as long as something was a necessary means to an end -- not an end in itself -- it was acceptable. RFRA was just to broad in that sense, apparently covering anything the state did. Shelby was more problematic since there was more an appropriate fit to the end.  The same applied to PPACA -- it clearly regulated more than one power and in respect to interstate commerce, the means was not in violation to the letter or spirit of the Constitution.  Use of a tax or regulation of commerce itself (by encouraging purchase) of those who are likely to directly and surely indirectly without "inference leveled on inference" to refer to U.S. v. Lopez [federal guns near schools law] where the link very well was weaker be involved in the health insurance market was not "improper."  The case to many of us was patently obvious, thus the ruling was offensive. 

Anyways. As touched upon in the episode, banking was a major policy concern in the era in question, battles over the Bank of the U.S. particularly striking during Jackson's presidency. As noted by the book cited, it might very well have been a historical accident that McCulloch v. Maryland itself held up. The opinion had a "Whiggish" character (Madison did eventually support the bank, but what if Jefferson/Madison's picks weren't largely nonentities and Federalist deep down Joseph Story?) and the election of William Henry Harrison (Whig) might have led to a conflict with the Taney Court. But, Harrison soon died, and Tyler was basically an anti-Jackson Democrat.

The case therefore continues to be of central importance regarding how to interpret the Constitution, the reach of governmental power and deep divisions (originally even among the two leading authors of the Federalist Papers) on basic questions.  This is so even though the basics of the case now seems fairly clear -- a few aside, sure most might say, Congress has the power to establish a national bank and state taxation of the then sizable amount of fifteen thousand dollars clearly would infringe on its power to do so. But, the reasoning will take us places many will not like.

Reviews

There was already a Loving movie out when What Comes Naturally about the history of interracial marriage came out right before the author died. Forty Autumns, about a family on both sides of the Iron Curtain, has movie potential. Very readable but perhaps a bit too brisk at times. Then, we did have three generations and forty years to handle. Battle of the Sexes was well acted but got bored half-way thru, especially since even the first match didn't occur yet by then. Not my "favorite band," but Mountain Goats are pretty good. Not a big Beatles fan, but Yellow Submarine was an impressive movie. Reminds me of Monty Python.

SCOTUS Watch

Some action of note order-wise, including letting the DACA case continue meaning the stay in place continues. Notable oral arguments this week. And, decisions today, including a 5-3 case [if some Democrat appointee took part, would it have been 4-4?] involving bail hearings for immigrants [Breyer dissenting from bench], a unanimous bankruptcy case and a splintered result in a jurisdiction case that involved Roberts being pretty upset in dissent.

ETA: A comment at the bail hearing link suggests the bottom line constitutional question is still open but here warns that it very well still might have broad reach in another fashion. Some of the negative coverage was probably too blunt but that's typical.

Landmark Cases

Years back, Saturday at 7 on C-SPAN (at least one of the channels, once there might have been but one) was "American and the Courts" time. For whatever reason, they stopped regularly providing Supreme Court programming like that but now have a new Landmark Cases series that discusses twelve, one each Monday night, with two talking heads [at times taking different sides], extras about the people/events involved (more clips on the site, where you can also see each episode) and call-in [at times an uncomfortable practice]/ability to Twitter/Facebook to discuss & ask questions. As someone familiar with the cases, found it a mixed bag, at times too cursory. But, welcome it and more court programming.

RBG -- Fair Critiques vs. Standard "the Left" Cant

I understand especially to the degree it led her to go overboard [Trump is some instigation but the average lefty did not simply give her a pass; compare some of Scalia's statements, at times on the bench] for people to be wary of hero worship of RBG or anyone, but as I note here that is the point -- be evenhanded. RBG has her moment and she deserves it -- she has had a distinguished career, she is eloquent and charming. Without saying "that's what the Right likes in a justice," some elderly conservative could have been treated similarly.

And Also: Compare the second comment (down to somehow making Thomas not an "icon") or the op-ed referenced making RBG into some "ethically challenged" justice her supporters give a pass too while not even admitting Scalia/Thomas/Alito/etc. counsels not to toss stones.

Giving .02

There is a Trump supporter on certain blogs I read that I feel compelled to answer though clearly it isn't going to suddenly make him change his mind. After all this has been going on since Bush was in office. But, he comes off as informed enough that some degree of logic should get through. OTOH, constant repeating of bad cant and an inability to get around it even when directly confronted shows otherwise. And, eventually I get annoyed and it's hard not to basically give some sort of dig, which basically just helps his "the Left" mentality. It is all somewhat addictive since I like to post on blogs even when few others do so.

SCOTUS Watch

After a break, they first handed down orders, including a solo dissent from denial by Thomas, the "no one cares about the 2A" Cassandra of the Court. Kinda has a point. Then, four decisions, including two criminal, Gorsuch writing a really tedious textual majority with a potshot at legislative history in one (four dissenters managed to read the text another way). Roberts and Gorsuch joined the liberals in one involving guilty pleas, here involving a 2A claim. Sotomayor and Ginsburg had two unanimous rulings with restrictive results, the latter resulting in Sotomayor/Breyer and Thomas/Alito/Gorsuch have competing concurrences to talk about legislative history. Calling Victoria Nourse, who in part supported that.

ETA: Two rejections of last minute capital appeals, one with RBG/Sotomayor dissenting as to means with Breyer noting the guy was on death row for decades and he would if given his druthers take the case to decide the constitutionality of capital punishment. That one never managed to be completed; the other guy was executed after challenges supported by top experts failed. The governor commuted a third to LWOP.

Samson: Bad Reviews Overdid it Again (PG-13 version)

Not into superhero films (and plot summary didn't do it for me), wary about the musical about Barnum being too watered down and didn't think the animation movie was for me. So, what to watch this time at the discount rate? Yeah -- another movie with mostly bad reviews! And, again, not a work of art, but fine for a low budget faith based film. I continue to think a series of biblical based films by various directors would be an interesting idea. A lot of material that can use some new perspectives. Some of that already out there.

"The Second Amendment Is Not Why The U.S. Doesn’t Have Good Gun Control Policy"

Another shooting. I agree sensible (whatever that is) gun policy is not blocked by Heller or the Second Amendment and have various comments below the article. One suggested gun "regulation" works better than control -- the amendment itself says "well-regulated"! Contra an annoying reply, I'm not suggesting "magical" results here but seems a reasonable way to help normalize gun regulations, to help influence many people somewhat. ymmv.

ETA: I have no easy answers except that no solution will "stop" school shootings but some policies will net improve the overall situation. A comprehensive background check system -- there remains loopholes, issues with data etc. -- does appear basic. Simply banning "assault weapons" will have limited impact but very well can be an aspect of overall policy, including as a symbol that there are reasonable limits. That website has a lot of data.

Presidents Day

Happy Art. II Day. Item: The spelling of these collective holidays confuses me a bit. A liberal writer on five underrated presidents. The day can be seen as about more than two guys with February birthdays though still like that reenactment. And, President Rat over ...

Fifty Shades Freed

I read one of the few fresh tomato reviews of this film and thought "sorta want to see this." After watching the resident prude over at the NYT talk about banning porn (and a few idiots sympathetic with it), wanted to more. And, instead of waiting to see another film, actually did. It was overall relatively um painless with some shades of fun. She got the best lines and action scenes too. Surely ridiculous and making you wish a better take on the basic idea was done and overdid the music. But, it's escapism. Duh. Anyway, relax bad reviewers. Have fun.

ETA: Watched the first one. I liked it, the ridiculous aspects adding to the fun. She really had a "Rory Gilmore" vibe. And, sure, you can criticize it in various ways. For what it was, it was fun and Christian here had more meat as a character. Her mother an intriguing character.

Women's Prison

The companion film on the old B-movie DVD didn't much work for me (lead was good) but this was overall pretty good as a genre film. Ida Lupino's role (including her real life husband playing "Dr. Crane") provides for an interesting backstory. Nothing special but an enjoyable time capsule. The implicit reference to a quickie was a nice touch.

Lady Bird

Prime reason I saw this film when and where I did was the discount price since $13.50 to $15 for a film without carfare is too much for me. Felt it was very good in various respects, especially the lead, but did not find is as really really good as its reputation. The mom was a bit over the top for me and the episodic quality at times had me bored. In the field of character studies, this is not somehow unique though the teen lead, mom and female director and Catholic school location together is a plus. NYC conclusion seemed tacked on.

DVD ETA: I enjoyed, though it started off really laying it on thick that "she's a bitch," Happy Death Day. It's a sort of horror movie Groundhog's Day, which was lampshaded late.

National Prayer Breakfast

66th Annual National Prayer Breakfast in D.C. included by various reports (see, e.g., NYT) fairly bland comments from Trump. Looking on Twitter, saw some seeing some strong sectarian rhetoric, but then that's typical here. So, maybe we are grading on a curve. Some references are annoying, such as the prayer in support of a sick girl (how about supporting health care?). Obama gave more inclusive remarks; back in the day was somewhat concerned with his framing. Overall, don't like talk of "believers" (=in a certain version of God). Overall, these things amount to mild establishments of religion, that is, certain forms.

Rob Porter: Symbol of Trump White House

The Rob Porter news (CNN had a piece concluding he was seen as too important in managing information in the White House to fire) is disgusting, both regarding defense of a batterer and the lax concerns for security (had to continuously rely on temporary security clearances and was a prime blackmail candidate; recall Clinton's email "sins"). By now, though, it's "yeah, but it doesn't matter." It does, of course, but not enough. BTW, the CNN article's comment regarding Ivanka and Donald's reaction should be put in sarcasm font.

Eagles Hang On ... Baseball, Please!

Not this time. Eagles went ahead, couldn't get two to be up by five with about two minutes left, get another three after a Pats turnover & of course the Pats had one more drive left in them. But, a little over a minute with no time outs was just (Phil fans said the Hail Mary when he threw his) not enough. Stressed just checking and looking at updates online.

Inside the Pentagon Papers

The latest book on the side panel [as it was once before] is a 2004 book discussing the Pentagon Papers with various interviews with participants included. We get a discussion of their creation [the content is touched upon, but a fuller summary might have been useful], Nixon's reaction, legal discussion (including since then) and rebuttal of claims of threat to national security. [Free speech includes speech that might be dangerous though.] A good short companion read to The Post movie with various "hey, that was in the movie" moments.

ETA: Might check out a longer examination by someone interviewed here but this Verdict essay summarizes the legal issues. Movie does provide a sort of behind the scenes look.

Just James: The Brother of Jesus in History and Tradition

Years back, before even this book was written, I wrote a paper of James, the brother of Jesus, of which I remember nothing. This is an interesting subject on someone we have fragments of information on (somewhat more so late though of mixed value) but clearly was an important figure in his time. The fact we only read of him in passing biblically is telling. OTOH, what do we really know about Peter even? Anyway, this academic style book was a trudge, dwelling long on academic points. But, the discussion of references in the gospels that imply he might have followed Jesus during his lifetime alone suggests there are kernels of interesting analysis. But, it could have been put together in a much more readable way.

Death Penalty Grinds On

After serving time for killing his wife, much less than he originally was sentenced per a now overturned Texan law [depressingly unsurprising biographic materials included] , William Earl Rayford was sentenced to die for murdering his ex-girlfriend. After over eighteen years, he was executed last night. After the usual SCOTUS orders. Don't see much justice in this, or public safety much furthered by arbitrarily eventually executing this far from "worst of the worst" (a colloquial assumption of whom deserves to be executed that does fit various people on death row) individual. I say this without shedding any tears for him personally.

ETA: Another one, this one with children involved. So, special aggravation. Public safety is really not furthered here -- threat of execution isn't really why one would not kill their young kids. As to retribution, eventually executing a few such heinous murderers doesn't do much for me net. Plus, system as a whole retains all its problems. I again am not shedding tears for this person specifically. Again maybe there is something else wrong buried in the record.

In Between

A fitting film for this "Me Too" era (including the dubious men in their lives, excepting one), concerning three somewhat different Palestinian women looking for love and their place in the world, having some difficulities in the process. Well acted and put together overall though somewhat predictable in certain respects. The final shot is often the promo and reflects the film ending on a depressing note. Saw it at the Pelham Picture House.

ETA: Most conservative roommate comes off as most complex. Also, why did the lesbian so blatantly temp fate with her girlfriend at her parents house, even after being wary of even holding hands in public outside? Did she want to get caught? Also, why is she going to Germany specifically? Does she speak German? Would also like to know a bit more about lawyer & why she seemed so manic (was upset about bf asking her to quit smoking, but hard partying part would have been a fairer request if she wanted to marry).

SOTU: FU Trump and All Your Enablers

The Commuter (Fun But Disappointing)

Another Liam Neeson action flick that this time early on promises to be something more (including raising "would you" ethical questions) but then is over the top silly with a range of standard tropes (down to the perfidy of his former friend). Thus, we have a nice set up of his family dynamic including Elizabeth McGovern as his wife, then a tacked on "they are okay, great job" sighting near the end of the film. The ethical complexity is also totally forgotten about too. The number of fight/action scenes by someone over 60 is a bit absurd too.

Feminist Judgment Series Rewritten Judicial Opinions

I find books that use one incident, including a legal case (there are multiple series covering many of them), to provide a center to discuss a range of issues and the history/aftermath respecting them a helpful approach.  For instance, to take the recent anniversary, a book on Roe v. Wade will not merely provide a case study of the litigants and the history of the litigation, but a thumbnail sketch of history behind abortion law and so forth.

More of this thing, including for a few current cases of particular note to the public, would be helpful. The article can include pictures of the participants, a chart providing context of the history of the issues etc.  The story might also be written after the fact, providing information on what happened since the opinion was handled down. For instance, multiple criminal cases decide federal constitutional law issues, but the ultimate effect for the litigants is unclear. State law might in fact result in ultimate victories, for example, even after a loss in federal court.

A somewhat related area of literature involves providing alternative perspectives on legal cases.  This includes discussion of little known cases, perhaps ones that were decided by lower courts only that had intriguing possibilities.  For instance, a retrospective on Griswold included an article on a forgotten companion case to an earlier ruling, a case that could have highlighted the importance of contraceptives to autonomy in marriage, particularly for women.  I would have tweaked a comment in that article regarding there not being a health concern as compared to Poe v. Ullman where the wife had a medical condition that made pregnancy dangerous. All pregnancies in some fashion have health issues and beyond the obvious effects on the woman, it affects the couple as a whole. 

There are also attempts to write alternative opinions, including collections covering Roe v. Wade and Brown v. Bd.  The subject book, the introduction can be read online, is of this caliber.  After two introductory chapters, the second particularly academic in character, there are twenty-five alternative opinions (mainly majority, but also concurrences and dissents).  The link provides a full list, but after Bradwell (women's right to be a lawyer) and Muller (hours limit law upheld for women), they all involve modern day cases from Griswold on.  Each are introduced by an often tedious discussion and then we get the feminist judgment, the "justice" for some reason given her (in nearly all cases) full name, when practice is to only include the last name ("Justice Ginsburg," not "Justice Ruth Bader Ginsburg").

I was overall disappointed with the results though the actual opinions are a mixed bag.  The alternative opinion of Rostker v. Goldberg (military draft) was one of the best while a few seemed a tad redundant (Planned Parenthood v. Casey amounted to an adoption of Justice Blackmun's opinion). One case involving sexual abuse of a student eloquently voiced her experience, including bluntly calling it "rape." Griswold was an unrealistic 21st Century sexual autonomy judgment when a more narrow ruling very well could have been feminist in character as well with an opening for more as events develop.  See, e.g., the article cited. And, though appreciate Harris v. McRae* taking the establishment argument seriously, it too blithely rejected the free exercise one.  Generally, perhaps for space reasons or a desire to promote ideal arguments as compared to more realistic time specific judgments [each opinion only used materials available at the time but this should also include realistic results], the opinions seemed a bit too conclusionary at times too.


One book -- couldn't get into it -- I recently read examined how scientists felt about religion and spirituality.  The book was careful to allow such terms to have an open-ended character, people have different opinions about them, reflecting the reality of the situation.  "Feminism" is somewhat of this character.  At any rate, the idea behind the book is interesting and the result was of some value.  One can imagine other perspectives that would provide interesting analysis regarding various cases, such as different religious or cultural viewpoints.

This book was at best a mixed bag but at least there was so much to pick from that there was a good chance of some interest. 

---

* The opinion argues that there is no right to have your religious beliefs sponsored by the state.  The introduction argued that this also would open up dangerous avenues as seen by current disputes where discrimination is allowed if motivated by religious belief.

But, there is also a right not to be deprived of general benefits selectively for specific religious beliefs. This to me is what happens when you only fund childbirth and not abortion (except in narrow cases) for what amounts to at least quasi-religious reasons.  This has an express free exercise flavor in part because religious freedom of action doesn't just apply to conservatives.

This also reflects an at time "what about" character that popped up at times. What about Sherbert v. Verner (cited once in passing in another case via a string cite) in which denial of unemployment benefits was problematic when a person was unemployed "for cause" arising from religious belief?  The individualized provision of benefits that does not directly harm third parties (a blanket benefit only for religious reasons rejected) to me logically applies in the health benefit context.

Finally, other than a passing citation in a footnote, Adkins v. Children's Hospital is ignored.  This is a rare case that does have feminist language, even though denial of minimum wage benefits (to women alone) is not a result a lot support. But, one of the opinions here dissents from giving special rights to women regarding hours laws. So, why not at least reference [as a false start at least] an opinion [in 1923!] with language like this:

No distinction can be made between women who work for others and those who do not; nor is there ground for distinction between women and men, for, certainly, if women require a minimum wage to preserve their morals men require it to preserve their honesty.

Roe Turns 45

The women's marches (thank you!) were well timed in part because today is the 45th anniversary of Roe v. Wade, covering something with various aspects, various subjects (privacy, autonomy, history, medicine, religion, sexual equality, First Amendment issues etc.). No wonder it first was of deep interest to me in high school. Many posts on this blog discuss the issues. Finally, a nod to Doe v. Bolton, which deserves more attention for the material covered, including Douglas' concurrence and the state oral argument.

A Year later ...

A year ago, I watched a free showing of Loving with various people upset at what happened at noon that day (1/20/17 seems on some basic more of "infamous" day than a surprised military attack on a military target and all involved there). Still find Trump being in the White House and so on insane and nauseating. The whole Stormy Daniels thing (among others) does give people a reason to watch this, a Stormy Daniels production. Saw the girlfriend in the beginning in another film, also as a supporting character. Think she handles the dramatics pretty well. Seriously -- to me, a bit of skill helps there. Go Jags! Please win.

ETA: Okay. A bit more on that film. Has four sex scenes, a sizable lag time between first (the best) and second. Third is a toss-in with two extraneous characters. Guy friend (who she has had sex with) of lead's bestie [who is really the center of a sorta "B" plot] has no sex scenes at all. Lead to me is the blandest of the bunch really. Decent amount of plot and overall (lead's parents are over the top) decent acting. Pats win 4Q. Baseball please.

The Didache: A Window on the Earliest Christians

Re-reading this book on an early (maybe before the gospels or around the same time) Christian work that is a guidebook ("teaching") for believers. I discussed it a few times in the past, including here. The developing tradition aspects [such and such occurs but is given a different meaning over time, for example] continue to impress. As usual, best to consider it as one possible view of certain matters, understanding the past never a perfect science. Overall, appreciate the moderate tone. The Didache itself is worthy to be read along with the books of the NT and would have been a suitable addition to the New New Testament.

ETA: In my original discussion, I referenced a mysterious passage involving something prophets are allowed to do if they don't encourage others to do it. Note the various ways the words are translated, affecting how one is led to understand the text. The average person misses this since they don't know Hebrew or Greek. And, even experts split over these things. This is beyond not knowing the exact context. Or, possibility of mistakes writing it down/copying or whatever. Warrants humility when interpreting/formulating doctrine.

Prequel to "All the President's Men"?

Started a bit slow (and fiscal stuff boring though did add to the drama some and personal story), but overall, enjoyable film quite suitable for the times. Rah rah stuff really.

Division Round

This is an ongoing football post. Eagles 15-10 win (and that's 10 points given up on turnovers) was the sort of gutsy win needed with a back-up QB. Falcons had chance to go ahead late but first and goal effort kinda sad. Figure, written during warm ups, Pats won. Jags probably goners too, especially embarrassing Steelers last time. Saints game likely to be best again. Will update (with winners) as needed. [Jags upset -- their offense repeatedly stopping the Steelers from having a major comeback. Vikings had under a minute after a late field goal complete a Saints comeback and managed to actually to get a TD.]

ETA: It took some questionable non-calls and thought somehow the Steelers would manage to come back -- that onside kick call near the end really was dubious -- but some game by the Jags often dubious offense. And, that is with the D giving up a few "come on!" scores. Fear the Jags can't do that vs Pats but reason to hope it will be a game (contra Titans).

Clemson etc.

Missed my honorary college football team (Clemson) got whomped in the Sugar Bowl, so Alabama had a shot at the championship. The game likely better than AFC division round games though Jags did beat the Steelers last time. Being behind as usual, finally got a smartphone. It's easy to switch numbers (even from a T-Mobile flip phone to a Verizon Android) though don't really need most of the gimmicks. Typing is annoying though there is a way to make the screen bigger. Grandpa is cranky. Remember answering machines?

2018: A Week In

It's a week in and besides being damn cold at times, what has changed, huh? So disappointed in you 2018! Seriously, who knows what this year will bring. Disappointments and a few surprises, I guess. Winners of today's football games as expected but Jags eked out in a bad effort (Bills QB out late after a wicked hit that for some f-ing reason got no penalty) while Panthers hung on until late to lose (an early missed chip shot helped that). Theme for me recently is that I'm tired of assholes and people doing asshole things. That is all.

Happy New Year

Well, a NY team (Buffalo) did get to the playoffs because the Bengals had a late game winning drive [eliminating Ravens] and the Dolphins (for at least the second time) didn't manage to score after a late onside kick [Bills win]. Giants won but more importantly (after scoring 15 early points, nothing much) Colts did too, so #2 pick. Some new teams in -- like the Jags, but guess the Vikings will be my choice. And, Hack didn't get to play again, even in garbage time. Just enjoyed the bone chilling weather. FU Keith Hernandez, btw.

ETA: Titans upset but KC losing in the first round required plus not that good. Nice story Rams: offense didn't show up and incomplete pass late failed to make last two minutes exciting. Still, after last year's Super Bowl, Falcons deserve at least one year of shame.

Won't be blogging much until early 2018

Cell Phones Come to SCOTUS Again

Everyone love patent cases, but the big case so far (with the travel ban punted) might be the one on cell phone location (over 127 days!).  Cake is upcoming.

It's not surprising if the lawyer didn't want to do it, but overall logic does warrant at least tweaking third party doctrine (as Sotomayor noted in U.S. v. Jones, well deservedly). There was a lot of doubt from the justices on line drawing though the party [who for technical reasons might not even benefit but these cases aren't just about them] should be aware for both sides. Also, Gorsuch (who latched on to some "property" right argument that might help in some cases but sounds artificial and for which no one else was interested*) sounded like an smarmy asshole like usual. 

THAT the individual shall have full protection in person and in property is a principle as old as the common law; but it has been found necessary from time to time to define anew the exact nature and extent of such protection.

One is technically in "public" but like the original Brandeis/Warren article, "privacy" wants a liberal understanding that [as five justices -- no matter how Orin Kerr counts -- in Jones seemed to understand] guards against 24/7 monitoring that is "public" in only a very artificial way.  The Fourth Amendment, pace Scalia in Jones, has been repeatedly emphasized by SCOTUS to ultimately be about personal privacy ("persons" in right there). Surely, specific things are cited ["persons, houses, papers, and effects"] but personal rights are an overall concern. 

Again, we can take that too far, e.g., how some provisions are at least partially a matter of structure (the First Amendment as a whole was partially about giving states more power). The Fourth Amendment specifically invites balancing with the whole "reasonable" component though it also has certain fixed rules that are less flexible.  So, electronic eavesdropping might very well invade "property" (the old form a lot more) but at some point it would require a broader view of property.  For instance, property rights can include rules for seclusion. 

Nonetheless, quoting that law article, if "has grown to comprise every form of possession — intangible, as well as tangible" is the rule, what is really the limits of "property"?  "Liberty" can be deemed redundant. Likewise, the justices were right to be concerned about line-drawing and a bit too particular about congressional line-drawing being above that. There are certain basic lines (see also, "excessive bail") but statutory law can help clarify specifics.  The courts can also step in to help with the contours, including (a favorite of the Roberts Court) certain "limiting principles" that at times result in somewhat artificial limits to open-ended powers. 

24/7 monitoring for an extended period of time (that's vague, yes, but 127 days meets the test) is an unreasonable and even Rehnquist back in the early 1980s left that open to censure while upholding a placement of a primitive beeper without a warrant ["twenty-four hour surveillance of any citizen of this country will be possible, without judicial knowledge or supervision"].  I'm not sure why a basic rule here requiring a warrant with the usual exceptions like exigent circumstances doesn't work, but fine. There should be limits.  The same applies to the "third party doctrine" which even in 1970s application was suggested to have limits (concern about First Amendment interests vs. general business records; FN6). 

Prof. Kerr, an expert in this field, argued in an article some time back that over time judges have accepted an ebb/flow balancing to protect persons when rules no longer seem to work.  The breadth of the modern world in the area of communication warrants that here, especially since I think the dissenters even then had a point.  If a phone call is protected, a phone number if still fairly private in various ways -- it is why the government aims to obtain them really.  A "voluntary" surrender of privacy for specific reasons (to get phone service?!) is a ridiculous fiction.  Certain things we share for limited reasons, something the Court is more aware of when it involves medical matters (contra Rehnquist's dissent in Roe v. Wade where he argued an abortion isn't really "private" since a third party is involved).

Location is a bit harder than phone numbers, but at some point, yes, personal privacy warrants protection.  As noted in the oral argument, technology can pinpoint location to parts of the home.  Is reports you went to the bathroom "x" number of times not sensitive information?  That is true even if it is not at the home.  Privacy, as Lawrence v. Texas et. al. reminds, is to some degree protected outside the home.  A Star Trek-like ability to ping your location 24/7 would be a violation there.

The lines to be drawn will be tricky probably but such is the nature of the law in general. In the past, worrying about lines for breathalyzers wasn't an issue either, since they didn't exist.  And, cell phones change the situation there too since now phone warrants are easier to obtain. 

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* Scalia's opinion ruling on an unauthorized placement of a tiny tracking device on the car seemed overly formalist to a mixture of justices, even if not everyone would rely merely on that. I won't link, but other than Sotomayor's concurrence, we also have Kagan's in a case involving placement of drug dogs on a porch.  There is both the property interest involved and the general concern for privacy.  The latter helps wider concerns -- see, e.g., Griswold.

Gorsuch's reference seemed a bit forced to fit things into a certain "box," which people with his artificial view of constitutional line drawing will tend to do. Maybe, it was just a hypo. We shall see.

Thanksgiving

The basic idea of Thanksgiving is not purely our own (e.g., can find references to days of thanksgiving in the Bible) though we have specific things that are including the whole origin story that like myths tend to be has some truth, some fantasy. The whole pardon turkeys, even without Trump needing to take a potshot at Obama [link would be redundant], continues to be asinine. Many really don't like turkey anyhow. Needing to work tonight, I'm sympathetic. Okay with limited hours today, if holiday pay and flex time exists.

More Concern = More Need For Nuanced Responses

There has been a slew of accounts of sexual abuse of some sort (including a "#MeToo" campaign) and the Al Franken news suggests a need to balance accounts, some from some time back. For instance, he apologized for the photo, and it was wrong (and stupid), but a crude pose is different than groping her while asleep. Ditto the dispute over the bit. This includes looking at his history as a whole as well as other accounts including things said behind the scenes. Cf. Roy Moore. Or, various celebrity wrongdoers. A few "got to resign" comments lack perspective. Wrong doesn't mean a "nuclear option" response in each case.

Jets Suck, Giants Suck Much More

So, it has been an f-ing year. Anyways, Jets reminded people they are not good by losing to another not good team and the Giants reminded people they really suck by losing in sad fashion to a zero win team. Few days back a retired ball player died in solo flight. Years back, that happened to my uncle (by marriage). Find it easy to find connections these days, including in some fashion in personal life. Surely have my Trump family member(s) to bear.

2017 Elections

Democrat won in NJ governor's race, so the U.S. senator trial [jury contemplating now] a lot less stressful. The VA governor race, which many worried about, went well with House control up in the air based on a few nail-biters. Multiple trans people won nation-wide. Medicaid expansion in Maine. A progressive activist won a Philly DA race. Meanwhile, sanity in Notre Dame regarding birth control coverage. Roy Moore race next month!

NYC Votes

Low turnout in NYC, but tbh a bunch of low stress races here. In the 13th District, the second place winner in the primary got a decent protest vote even with all those MG campaign posters (god -- such overkill). I was actually supportive of a constitutional convention, but big loss there. Forest set-aside won narrowly; public official penalty measure unsurprisingly passed by a large margin. I wrote a bunch of write-in names for the "who are these people" judicial races. Continue to find that inane. Voting easy but no receipts.

SCOTUS Watch: Shadow Docket Time

Before possible full opinions, SCOTUS handed down two per curiams that amounted to more "shadow docket" AEDPA error correction, three liberal justices speaking separately to note on the merits the death penalty case has some juice. The potshot [comments] at one judge being involved in multiple cases is telling: out of probably thousands of cases, her popping up repeatedly is damn curious. As to AEDPA, one problem here is that it limits development of the issues, which might raise constitutional problems regarding the role of the lower federal courts [state courts still can decide] to flesh out the few cases SCOTUS decides.

ETA: A brief authored unanimous technical opinion was handed down. Oyez.com has opinion announcements up; Trinity Lutheran and Ziglar has strong dissents from the bench. This stuff should be on its own website.

Orphan Train

Sports Update

Last two games of the World Series were something of a disappointment (Chase Utley gets hit on the foot and it leads to enough for Verlander to lose, Astros go ahead 5 early and Dodgers offense blows various chances) but nice ending. This includes the young shortstop's marriage proposal to the beauty queen. Jets, after three annoying losses, dominate on Thursday vs. Bills. Optimist says four wins okay; others say they should have one at least one more. Giants off. Killer injury to Texans QB day after WS win. Had your moment Houston.

And Also: About Abortion had some interesting aspects but plodding/predictable style. Eh.