Sisters in Law

And Also: Caught two episode of Becker recently. Not exactly superior fare, but pretty good for the low expectation syndicated viewing fare usually on in such time slots. Sorta a low rent ensemble drama ala Wings with Ted Danson somewhat against type as a curmudgeon doctor in a Bronx clinic, surrounded by lovable losers.

Sisters in Law is an interesting documentary about obtaining justice in three cases involving spousal abuse, child rape, and child abuse. The latter case is particularly striking since we are directly confronted with the interview of the victim, see the scars, and also the confrontation (by not only the prosecutor, but other family members, who did not know what was happening) of the abuser herself. It might be called a bit touchy ethically to expose all these things to view (especially basically having the abuser beg the child for forgiveness -- she is six and this did not seem healthy) and one wonders about how the filming was set-up. [My sister likes Law and Order, and would otherwise probably like this sort of film, but probably would find these scenes hard to watch.]

Overall, a bit of context would have been helpful, but not provided -- we only saw the "sisters" (the judge, legal aid and one of the guards were all women) at work plus one quick scene of the prosecutor talking about the spousal abuse case in class. It surely would have been useful since the documentary took place in Cameroon (West Africa). [That spousal abuse case was the first successful prosecution in her seventeen years.] Are matters dealing with women done through women laden courts? [The divorce proceeding was separate, done in a male dominated hearing that granted her the largely pro forma divorce, but made things somewhat less comfortable.] How was the filming handled? Unfortunately, I did not go to the viewing where the filmmaker took questions.

I noted similar slight unease when discussing the documentary concerning the program teaching beauty skills to women in Afghanistan. A bit of backstory often is quite illuminating. For instance, in a sentencing statement, the judge spoke about African culture and the practice of correcting children -- she made clear that child abuse is not the same thing. Also, at least one of the women were Muslim, which raises interesting questions. And, perspectives from the main officials involved would also be useful. Editing decisions need to be made, and "Court TV" type view of things worked well, but a bit of connective tissue also could have been useful.

Finally, it is interesting how English is the official language, though some spoke a "pidgin" form or a native language. It turns out that a chunk of Cameroon -- as is the case in West Africa generally -- is French. But, there was a British area. Is the court system nationwide under the British system? After all, civil law courts have various different procedures, including not using the adversarial mode with which we are familiar. And, English and French are both official languages. [Adding to the polygot flavor, my World Almanac tells me the religious breakdown is roughly equally Christian/native (80%) and the rest Muslim. ... It is also a young nation, over 40% under fifteen.]

I never did see a documentary playing in the same theater (Film Forum) concerning nationalistic performances during Cultural Revolution China. But, there has been a good number of interesting documentaries of late, underlining the value of being close to the movie laden area of Manhattan. I also see that there actually is a documentary channel on Dish Network, but a quick look thus far suggests they are not that interesting -- second tier sort of things that might not have made PBS. Still, it's a good idea, and probably has some things of interest.

btw The replacement radio play by play guy for the Mets -- sounding like a low rent version of the old one -- annoys, so I'm glad Dish Network has SNY. [Darling, backing up Keith as the color analyst also is a bit of a soundalike, but is a better fit overall.] But, enough with the cheers -- let's see what the Mets do when they play real competition. Why are they doing so great vis-a-vis the rest of baseball? Others have better teams to beat than the Marlins and Nationals.

Still, looking good.

3 and the Complexity of the Human Animal

And Also: More talk is coming out that Rummy might have to go -- Slate had a piece, not alone by any means, that the military simply does not like/trust the guy. The military basically used hawkish Rep. Murtha to send the message that they felt it was time to pull back from Iraq. Bashing him as a defeatist really targeted them. But, though Rummy has some problems on his own (his war on the cheap theme, his personality), is he not really a conduit? He is not ultimately responsible for military policy and the war itself. Good discussion on crime on Your Call yesterday.

Julie Hilden is a commentator on First Amendment issues over at Findlaw, a strong believer in free speech as well as usually providing a well rounded point of view. Her latest on withholding media materials to prisoners fits the pattern, if anything, a bit stronger than some others. Hilden's last bit on the right of prisoners' children to retain contact and her emphasizing her dissent respecting the precedent being balanced underlines the point. She also is an author: both of another confessional biography (sexually explicit, cruel to mother), but also to a sorta fictional takeoff on the genre.

If you click the link, you can follow things to the biographical statement, which provides the titles as well as her website. Where you can read an excerpt of 3. The last ten or so pages were a bit annoying, including shades of the end of a Sue Grafton mystery novel (with the usual adventure ending), the book as a whole is well written and striking. It concerns a young woman -- one always wonders how much these things are patterned after the author -- who comes under the influence of a man who likes to control her in bed. This leads to an arraignment where she allows him to have a lover, but she has to be there and have veto power.

This allows Maya to have some sense of control and not worry about the husband falling in love with one of the women involved. But, control is not something that she has much of in the relationship, even though one side of her receives a lot of pleasure in it. It clearly is unhealthy, but questions arise -- just how much control does one have in such situations? Do we sometimes (women in particular) make calculated decisions that are clearly dubious on various levels, but do satisfy us on a core level? The husband is ultimately an unpleasant character (though he provides Maya with financial satisfaction too -- an easy path that did annoy too, adding to the fantasy nature of things), but the book is seen through Maya's eyes.

The poor rich girl type might annoy: product of a failed marriage, both of her parents than had five children a piece, but still could send her to a good school. Quiet and introverted as a child, Ilan (annoyingly pretentious name fits his character) reached her unlike her other two lovers before him. ["Lover" is her term -- curiously used here since it doesn't seem see really "loved" the other two.] They are expelled from college on trumped up charges, but really because they was too proud to defend themselves. But, Ilan's father (mother died young) is rich and owned a magazine to allow them a living. She turns out to be great at it. The fantasy life aspects of the story did bother me to some degree.

But, overall, the relatively short (218pg) book is a good read. The sexual dynamics are well explored, providing a "you are there" feel to her desire, passion, and regrets. Maya is a complex character in various respects, flawed/scarred/having a certain inner strength to hold on to. And, the writing is good as well, holding your interest and driving you to read on. Some suggest her biography is a bit pretentious, but either way (I have not read it), this is a worthy first novel. I have trouble finding fiction I enjoy, always did, but this one worked for me.

I also had the thought at various times that it provides a window into the complexity of relationships ... maybe stretching things a bit, but it did strike me that the human animal is so much more complex and open to various permutations than many -- especially with this leadership (ah politics again) -- want to accept. We need not limit ourselves to this type of story. For instance, religious faith is not really addressed fully enough in cinema these days. I actually kinda liked Mandy Moore's A Walk To Remember, about a daughter of a minister whose different path led to a fellow student quite different from her to fall in love. Fiction provides but one way to look at things through various perspectives, many flawed in some fashion, to understand the true wondrous (if scary too) complexity of human society.

[They decided to have an adult drama concerning a minister a few months back, a bit harder than Seventh Heaven. Nonetheless, apparently, the only way to work was to have everyone basically a sinner -- abusing painkillers, adultery, working with the mafia, etc. It was ridiculously overcooked. No wonder it was cancelled after a few episodes -- tone it down a bit, maybe they would have had something.]

The alternative is a snide remark I got from one of those "the other side are morons (you too)" people on message boards whose basic stance appears to be that liberals tend to be believe in their bullshit, while conservatives are just more cynical about it. His image of himself is a principled libertarian ... who appears to believe in the bullshit he spouts as well. [That is, simplistic examinations of how things work.]

As I said to him, tired of this attitude (I don't like snotty people I generally agree with, I really don't like it when I think they are wrong), I actually have respect for people with whom I disagree. So, yeah, conservatives quite often believe in their creeds. Some liberals cannot believe this, so they think they are generally cynical bastards. I find things a bit more complex ... I think they do drink the kool aid.

Makes things both somewhat more palatable and scary at the same time. The real difference is not that one side actually does not believe in their "b.s.," but that one side is more centrist in sentiment. There are divisions among conservatives, but they are more apt to stay together these days. Also, religious conservatives are more likely to be sure of themselves, which also causes problems given imperfections and such lack of dissent.

I might say, to cover the ground addressed in the original discussion where the remark was made, this helps their "anti-science" tendencies. Science requires not totally being sure of oneself, skepticism, and the lack of deus ex machina means to shut debate.

But, all the same, conservatives are complex (and fair) enough to merit respect. This too provides a reason, if only there was a proper balance these days, to welcome them into the conversation.

Thirteen Days

A problem with the use of original understanding as a means of constitutional analysis is that times have changed. Thus, carrying out the basic principles addressed by the document cannot only be a matter of examining the thoughts and opinions of the era when the Constitution was written. For instance, political parties greatly affected how our government works, and not always the same way -- the institution has changed over the years. But, many Framers (surely not all -- some were more realistic or did not really think of the matter too much) were against political parties. They did think them not only necessary evils, but something we could avoid, especially in the sense of the two major political parties existing today. The idea that Congress and the President would basically be united in a major sense because of one party control would seem unconceivable to them.

Surely, original understanding still has value even in this context. You can even look upon it as addressing this very fact, even though a true party system was years away. For instance, James Madison spoke of "factions," which we would call interest groups. And, various checks and balances as well as separation of powers would help deal with such animals. But, factions are not major political parties. At some point, you are trying to ram a square peg in round hole, or at least some imperfect fit. Thus, the realistic way of applying constitutional principles takes original understanding into consideration, but realizes that applying the text to current times involves more than trying to time machine James Madison and his fellows into the 21st Century. Things change over time -- the words and principles are not set in stone. This is the nature of constitutional analysis.

Such is the case when dealing with executive power. The unitary executive was put in place because in some cases dividing power was deemed problematic. The ability to focus power into one person who would have more flexibility and the chance of immediacy of action was especially deemed important in military affairs. Nonetheless, even here, there were various checks. For instance, Congress declares war and has the power of the purse. Still, the President commanded the military, and had to deal with day to day concerns. Modern day realities supply him (the only "her" being fictional thus far) more power -- a bigger military to address bigger problems. But, communication and other restraints gave the President much flexibility in the 18th Century as well.

So we have the same theme: much has changed, but yes, some things have staid the same. History can serve as a guide. Robert Kennedy's account of the Cuban Missile Crisis (Thirteen Days) suggests as much. This is only proper since he notes that JFK himself looked toward history as a guide. Various guidelines are suggested by Thirteen Days:

Moral concerns arising from our values, including preventing unnecessary harm

Diversity of viewpoints (and time to consider them): "The fact that we were able to talk, debate, argue, disagree, and then debate some more was essential in choosing our ultimate course. Such time is not always present, although, perhaps surprisingly, on most occasions of great crisis it is; but when it is, it should be utilized. ... Opinion, even fact itself, can best be judged by conflict, by debate. There is an important element missing when there is unanimity of viewpoint. ... His office creates such respect and awe that it has almost a cowering effect on men."

Importance of balancing military views with civilian perspectives

International legitimacy and assistance: "major psychological and practical effect on [our foes] and changed our position from that of an outlaw acting in violation of international law into a country acting in accordance with twenty allies legally protecting their position"

Perspective: "What guided all his deliberations was an effort not to disgrace Krushchev, not to humiliate the Soviet Union, not to have them feel they would have to escalate their response because their national security or national interests so committed them."

Importance of both "word and deed"

Though I want to make clear that original understanding cannot be used too strictly, it is important to note basic principles still hold true. The afterword to Thirteen Days (RFK was writing in 1967/68, the afterword in 1971) discussed how war matters in the post-WWII world centered more and more in the hands of the President alone. Various reasons could be raised to suggest why: secrecy, flexibility, uncertainty, complexity, time restraints and an overall resistance to admitting to that a "total" war was necessary.

Such wars by constitutional principle and statute give the President various "home front" powers including economic mobilization, public order and news management. But, it also gave more legitimacy and spread blame. And, not only to Congress, but to the public at large. Many have not that the President could have asked for more sacrifice from the pubic after 9/11 instead of telling us to go shopping and cutting taxes. But, the authorization of force in 9/01 and October Resolution in 2002 highlighted the limited nature of the conflict. This was not "war," even if the President and others selectively use such terminology when they want to aggrandize more power.

But, this is not somehow compelled, nor does it mean that basic constitutional principles have suddenly changed. As noted, 18th Century executives/commanders-in-chief required a certain flexibility of action as well. Modern realities surely brought changes, but not as much as some might think. Consider the Cuban Missile Crisis. Yes, Congress was only notified days after the missiles were first discovered and a blockade is actually an act of war. All the same, if he actually bombed the missile sites things surely would seem to be different. After all, the book is not called Two Days -- there was some time. [OTOH, the President clearly thought he did not need congressional authorization even for bombing, if it came to that.] And, the OAS (regional security body) used to supply legitimacy.

This might not be enough,* but it surely was more than achieved for the Second Gulf War. The difference in the current conflict also was the time factor; as JFK noted to his speech to the nation "clearly offensive weapons of sudden mass destruction -- constitutes an explicit threat to the peace and security of all Americans ... We no longer live in a world where only the actual firing of weapons represents a sufficient challenge to a nation's security to constitute maximum peril." Given current times, this can be deemed a "sudden attack" situation, and the President clearly was understood to have the right to repel sudden attacks. This was not so, bullshit aside, this time around.

Still checks should be in place. First, when immediate action is not necessary -- and this would work on a elevating scale so that bombing of a few military targets is on a different level than invasion -- the executive cannot act on its own. Also, even here, notification immediately (if not before, if possible) should be required -- this is in no way an unconstitutional demand. Likewise, the Congress should act immediately as well, determining if the warlike action (and a blockade, again, is an act of war) is legitimate. Inaction would be a delegation, an unconstitutional one, of their authority and responsibility.

And, overall, when trouble spots are likely to occur, some basic framework should be set forth to address them. Treaty arrangements can in various cases be deemed to silently authorize certain actions, but not war writ large: the Korean "War" could not be authorized merely by treaty -- at that level of action, congressional authorization is necessary. In fact, the U.N. treaty was ratified with that assumption -- our basic constitutional principles would not, really could not (legitimately), be overturned. The Cuban Missile Crisis set forth somewhat of a borderline case, perhaps, though bombing of a foreign state would seem to me to cross the line.

Congressional authorization would be necessary to bomb the Balkans, including guarding against human rights abuses. Treaty and moral obligations might be in place for Congress to address the matter, including having a clear vote. But, current realities as well as presidential control of the military does not suddenly give one person -- even given the inherent checks and balances involved in the executive department (the afterward to Thirteen Days reminds that each branch itself has internal checks, such as Congress being divided into two branches) -- freedom to act alone. It might give us an international role that would appall Washington and others. Executive flexibility over any number of matters (though notification, following executive directives in a non-arbitrary matter, etc. cabins it somewhat) also remains.

Many things change, but not everything. Original understanding still remains important, if not solely so.

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* Certain leaders in Congress in fact wanted JFK to provide a more forceful response. They wanted it underlined that they were "informed" not "consulted." And, such "information" was only done right before the public as a whole was informed so seems on some level merely to have been an act of pragmatic comity. But, I think it should be required.

In fact, consultation should be required -- it is the reason why congressional authorization is required by the Constitution, and not only for full-fledged war. Ongoing events and so forth might require more independence of action, but this does not take away the basic principle. Such is the idea of the test suggested in the text.

West Wing: Vice Presidential Drama

And Also: Dish Network did get SNY, so I can watch Mets games after all -- Gary Cohen is the play by play guy with Mr. First Base providing his truth telling analysis. GC is a bit of a kick: he was the radio guy and looks a bit uncomfortable (and overly studious in his glasses and suit) thus far. Look at the camera Gary. Meanwhile, Family Guy (episode written by Alex Borstein) was finally funny again yesterday. Also, I caught the tail end of the new show Pepper Dennis. Okay, but the NYT review had a kewl word in it.

It was expected by most that the moderate Republican would win the presidential election in West Wing. History backs this up. Hard as it is to imagine, there never really was a time when a totally unrelated member of the same party won an election after a two term president. This is less surprising given the fact that there are many times over our history when a two term president itself was unlikely. John Adams was the first of three (four counting Gore) vice presidents who followed in the footsteps of two term presidents. Madison to Adams (by House vote) followed the theme via the secretary of state route. All the same, some suggested Bush in 1988 did not have history on his side since the last time the vice president route was followed was in 1836.

The word "really" is a bit of a trick. Hayes did follow Grant, but it is pretty well accepted that the election of 1876 was of questionable validity. Anyway, Tilden won the popular vote -- the need for electoral skullduggery (pretty fair word) underlines the "rule." The other exception was Teddy and Taft. Two provisos though -- first, TR did not serve two full terms. President McKinley was assassinated early on, but that is still one less election cycle. Also, Taft was in effect handpicked by TR, much to the latter's displeasure as events played out. The WW situation also had the President have a major role, but only in breaking a deadlock at the convention.

Things played more realistically, however, than the re-election of President Bartlett, which was a bit too much of a sweep. This election was razor thin with Vinick winning some "blue" states while Santos winning some "red" ones (his home state of Texas is understandable; South Carolina is a bit questionable, especially with a religious conservative sort on the other ticket). Things went down to Nevada (I received its quarter today -- I still did not get the 2005 CA one), also believable -- it's a purple state. Though the electoral vote validity was not really raised (though lawsuits were discussed -- neither candidate wanted them), it was quietly underlined that a state neither side paid attention to decided things. The popular vote count was not given, but yes, this is a bit troubling.

Real life also advanced another surprising plot line -- Leo died on Election Night. It is almost like it was planned ... seriously, there is something eerie about acting out hearing about a sudden death of a cast member who many really were close to.* It also raises various issues discussed on the show. Actually, the Constitution allows for the possibility. The only thing voted for are electors tied in some fashion to certain candidates. Certain state laws require them to vote for a certain candidate, which is constitutionally dubious, and especially open to flexibility when the candidate in some fashion cannot serve. One might argue that if Leo is chosen, the votes should not be counted, since in effect it is a null vote. The likely result would be no majority and the Senate would decide.

The 20A does deal with the death of a vice presidential candidate before the beginning of his/her term, but only in a limited context -- Congress can pass legislation to handle the situation when the matter is tossed the Senate's way if no majority is obtained in the Electoral College. If Congress accepted the count of Leo (the new Congress would be split, so disputed electoral counts would go the way of the states in question pursuant to the old law, but this time is simply a matter of qualified electors), which the text of the Constitution does not seem (at least technically) to disallow, Santos could appoint one via the 25A. Congress would then ratify ... this seems to most democratic way.

But, that does seem a bit crafty -- being alive seems to be an inherent "qualification" of the vice presidency (12A), so Leo would not be a valid choice when the electors vote. Thus, Leo is not someone who the Senate "may" choose from if there is no majority in the Electoral College. Anyway, unless (which is a possibility) there was some "faithless" electors (who did not vote for the candidate they were tied to though here maybe it was by design), there would not be a need to toss things to the Senate -- Leo would have 272 electoral votes. If necessary, the Senate picks from the top two legitimate vote getters. A null vote would not do the job -- the electors would have to vote for a legitimate candidate. So, Santos would ideally choose a vice president who he would suggest the electors pick.

The person would either get the necessary votes, or enough to be among the top two. In the latter case, the Senate decides (controlled by Republicans). But, the count is done by the Congress, so the Republican Senate cannot on its own determine it has to vote for a vice president; it does so pursuant to the official count. The not so happy v.p. does preside, but this should not affect things. I do foresee, especially as a dramatic possibility, that a handful of Leo electors choose not to vote for him. If more than two are faithless, there might be a lack of a majority. Then, what happens? The second legitimate vote getter might only have a small amount of votes. Or, would Leo be accepted, and the provision respecting the death of the candidate kick in? Could this somehow lead (if not by some other route) my feeling that somehow Vinick will become VP to come to pass? Perhaps, if he is also given some other meatier role as well?

Precedent? In 1872, the losing presidential candidate died before the electors voted. The electors voted for various people in a largely meaningless effort. It would seem that we can play a bit with technical rules here to reach a fair result, since ultimately it is a political question that surely would not be decided by the courts. Thus, the 25A route seems best with the electors voting for Leo given that is who the people voted for. After all, remember that the Articles of Confederation required universal acceptance for its amendment -- the Constitution only needed nine states to be ratified. There is some play in the joints, especially when technically yes a dead person can be elected.

Anyway, surprising ending, huh? And, I bet there is still more to come -- I did not see "scenes from next week," usually do not. But, this time, it may further the surprise. Time will tell.

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* It brings to mind the death of the co-star of the silly early 1980s (pre-Back to the Future) time traveling show Voyagers! (the annoying kid grew up to be a history teacher). He died in a freak accident on another (comparably silly) adventure series and the show re-filmed using another actor. A few commented on the tastefulness of doing this.

The WW does not seem tasteless, but it is weird. The show is ending. It really was not necessary to kill the character off ... this is a television program after all. But, it turns out that it was felt that the originally planned ending would be too much for the viewers to take. And, I guess the show does have a certain fan base who would take things to heart in this fashion.

Overly Open-minded Teens

And Also: Optimistic (and at least somewhat true) Amy Sullivan piece on the state of the Democratic Party. The title of the piece is a bit underachieving though. Anyway, I am starting to get a big kick out of Harry Reid -- he was doing his James Stewart impression on the floor recently, slowly talking about his "biggest mistake" on immigration, starting with a folksy comment about some former aide. Meanwhile, the Republicans were annoyed at what they saw as obstructionism. Reports also suggest HR basically hates the people (on the other side of the aisle) he said he truly respects.

There was a Slate column some months back noting how openminded students were on homosexual matters and such on teen shows these days. Degrassi was used as a prime example. I questioned if this was exactly true, but probably was on thin ice.

The show's season premiere sort of underlined the point. A new story arc had Paige -- the resident alpha who already has been a victim of dape rape -- being attracted to a bad girl. She didn't want to admit to this -- she simply "could not" like a girl, she could not "process" the whole thing.

Fairly believable. Determining the prevalance of socially unpopular relationships is difficult in part since even those who are open to the idea are socially (and as a result, emotionally as well) loathe to consider them. Thus, more people accept interracial relationships today than in the past (but still are hesistant ... as expressed in Something New) because of changing social mores.

This is surely the case when dealing with popular teenagers. [Old stereotypes would suggest that Paige, given her trauma -- including a recent hard break-up -- would welcome a same sex relationship. To take off on "The N" network's theme, they did not "go there" at all.] But, given the show's rules, close-mindness was so uncool. Thus, by the end (with an assist from Kevin Smith -- who directed Chasing Amy, involving a guy's pursuit of a lesbian), Paige surrendered to her inner feelings.

[I'd note, btw, the actress did a good job here -- as with a couple others on the show, she just might have a good future as an actress. The complexity of a character that some might think was just a brainless popular girl suggests the charm of the role over the years. In fact, outspoken libbie Emma actually turned out to be more of a babe as well. This too makes Paige more "approachable" in a sense for the viewer.]

This is nice and all: West Wing, for instance, promotes an idealized form of politics, and on some level, I do not mind it. But, it is okay for even "good" guys to have flaws and prejudices. In fact, it is real. So, I also wish such shows realized the fact, and let their popular teen characters have prejudices and all.

I still think they do, to a limited extent, and these characters never are completely off the hook. Some new drama is around the corner. But, still...

Another thing that is of interest is the possibility that maybe closemindness is so uncool that even if they are, they hide it. This is true for society too -- we aren't all as openminded as we claim, and this comes out in various negative ways. But, I'm not sure if there is consistent evidence of that on the show either.

Quick Hits

A new over the counter diet drug appears to be on its way, additional testing apparently not protected. You want a way to lose weight? Allow Plan B, which William Saletan reminds us* is usually not even likely to act on fertilized eggs -- it is probably more likely to stop fertilization in the first place! That FDA approval apparently is not enough. But, the double standard continues.

Talking about things affecting women, there is a good opinion piece concerning the fact that less than half black women marry -- it speaks of marriage being for white people. This is not news, of course, since many a social commentator is concerned with the marriage issue among black people. The article underlines that marriage is a cost/benefit matter, always has been, just has somewhat different criteria of late. Simply put, even if marriage is an economic benefit (not always the case anyway, even among whites -- marriage penalty and all that), it might not be a personal one. The conversation must address this fact.

Meanwhile, Bush's personal lawyer ... oh I mean the Attorney General ... let it out that he doesn't want to say that domestic warrant tapping is off the table in respect to the NSA taps.** Not that he is "able" to talk about things that much. This is a basic threat not only to congressional power but personal liberty -- judicial oversight is obviously important in the Fourth Amendment context, but so is congressional oversight. The rights of "the people" are broadly drawn out; the legislature often spell out the details. Details that can help determine "reasonableness."

Anyway, with the Libby disclosures and all, I again say, "when is enough, enough?"

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* Saletan ruins a generally good article by suggesting pro-choice advocates who do not want to allow the use of the term "abortion" in this context are playing with semantics. Since most people do not think stopping implantation is "abortion," and even that often does not occur in this context, who is playing with words here?

** It was in answer to a question by a former prosecutor by the name of Adam Schiff ... federal prosecutor, but yes, that's the DA on Law & Order.

Not Being Truly Honest With Ourselves Is A Lie

Argghhhh: I wrote yesterday's post as the save was blown in the Met's game -- thus, like Looper (ack) ruined Pedro's first win, Wagner ruined Bannister's. But, the game was only tied. The game was lost in the 10th when Julio -- who they don't trust yet to come in the 7th or 8th innings with a lead -- gave up five runs in .2 of an inning. Why?

Why trust him in the 10th? You had Bradford (got the final out) and Oliver to go at least an inning. Surely not aces, but apparently you trust them more than Julio. So, why? I don't understand. The Yanks blew a second game late btw, so are 1-2. In fact, they too put Procter in the second game in a thankless position before he was ready (didn't pitch for a week, dealing with baby being ill) though they had other options.

The decision by Massachusetts to require universal health care looks promising -- the devil is in the details, but state experimentalization and security is where broad social movements often begin. Also, in the news is a (shocking) NYT piece on how useful eating together as a family turns out to be, even if it is often hard to juggling everyone's different schedules and so forth.

But, obvious things are useful to talk about as well, and it does underline a broader point on the social value of meals as a whole. For instance, the various messages sent by the "t.v. dinner" was remarked upon in the 1950s when it first was introduced. Also, comments were made on the ingredients of box cakes -- housewives did not want them too easy, they wanted to consider themselves actually doing something. So, the company required the addition of eggs or something.

As to obvious, the Libby prosecution has turned up news that he was authorized by the President (via the Vice President) to selectively release formerly classified data to Judith Miller. As with the "shocking" (as in surprising ... it is also on some level shocking) news that the President actually wanted war, this really is not surprising.* But, there are tons of things out there that people know, but do not really discuss.

This is a major way to promote falsehood, so reports of the Libby variety here points to a changing of the conversation. Ironically, Libby wants to change the conversation too: he was charged for misleading/lying to investigators, not releasing classified information. So, authorization does not save him, except from further charges. But, the willing to be confused can be.

[Thus, even those who should have known better, was honestly surprised at the length of the Bush Administration's incompetence and heavyhanded authoritian government. But, I read Molly Ivins' book Shrub before the election of 2000, and it foreshadowed things pretty well.

I thought the guy an idiot, but the other scary stuff was good enough to keep from voting him as well. But, even in 2004, people of good will could lie to themselves. Bush was really flawed and all, but Kerry was worse. This is the net result of knowing the truth, but failing to honestly and forthrightly discuss it. A philosophy that helped in days of segregation as well -- in fact, honestly discussing it was in bad form. Maybe, a bit traitorous.]

The basic understanding that the President misled us into law is now accepted as current wisdom. The rub is we do with this knowledge ... most do not seem to want to truly face facts. Generally, the sentiment seems to be that what he did was basically in bad form, or at worst rather upsetting. I'm not exactly sure what to compare it to, but surely (as reported in a blurb at the end of a NYT story reporting a teen victim of Internet predators testifying in Congress) many would be more appalled at the deputy press secretary of Homeland Security trolling for teen girls on the Internet. (Yet again, it was actually some middle age guy or something -- unfortunately, a governmental agent). That is disgusting. What the President did is worthy of "concern."

This is shocking. It amazes me really that we (as in progressive sorts) feel quite comfortable talking about how the President misled/lie us into war and other nasty things. But, if this is true, it is no small matter of political dispute. It is not just a government official doing things we ideologically find horrid -- like mistreating gays or having a lousy welfare policy. It hits to the core of legitimacy. Thus, a censure, at the very least, is mandatory. Now, I am leery of censures that label a President a law-breaker, since it reeks of a bill of attainder.

So, maybe a resolution underlining how Congress feels the President violated basic separation of power commands (a political "crime" of sorts, but not criminal per se) is more appropriate. But, this is a special situation ... in fact, really, impeachment investigations are appropriate. I know what that means. On some level, it scares me -- the population, for instance, clearly does not think impeachment is appropriate. But, the alternative scares me too. We are legitimizing lying us into war -- we are making it merely a somewhat serious political misdeed. It is like saying murder is bad and all, but not worthy of prosecution.

I cannot accept that.

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* The Downing Street Memoranda are not news anymore, though a recent piece released more detail, including the suggesting faking Saddam into shooting down a plane painted with U.N. colors (you know, like those dressed up soldiers involved in the invasion of Poland by Germany). The DSM (no, not the mental health manual) was first widely released in an early edition of Lawless World, a book respecting international law that is on the side panel.

But, as the author Sands notes, the matter is now widely known -- at least, by the media. So, when the NYT released another article on the matter, of course, it was not deemed surprising. In fact, overall, we know that Bush fudged the truth. Sadly, this is deemed an unfortunate but bearable fact.

Various Thoughts

Baseball: As to the NY closer opening music "controversy," Billy Wagner has rightful ownership. He was the first one to use the song, on the advice of a teammate, and actually is a fan of the music. Mariano admitted to liking "christian music" (talk of him being a minister after retiring) and the music was chosen for him by the sound crew for effect -- Trevor Hoffman's "Hell's Bells" being so popular with the fans, they wanted something similar for the Stadium.

In fact, though no one apparently cares, another Pacific Coast team (Mariners) closer uses Hoffman's music. Thus, BW has first claim. At any rate, the real point is success, and he blew his second save. Brian Bannister also went no hitter to the sixth, but then gave up a three run homer. [No decision.] Reminds of the two perfect attempts by Rick Reed, both resulting in losses.

Silly commercial alert: Checking out a Cubs game, I caught a commercial involving a little boy getting ready to play with his kite, attaching a note on it. It was promoting returning to faith/belief by the Methodist Church -- see he apparently was sending letters to God or something. That's what prayer is for, kid. Well, whatever works ... thin line between creativity and silliness actually. In the long run, maybe it's a way to go though it does make religion look a bit well childish. I know Jesus was (is) said to like believers to have child-like enthusiasm, but a bit dubious.

And Also: Supreme Court justices [Kennedy/Thomas] had their usual testimony yesterday respecting budget matters and whatever the legislative peons wish to ask them. Again, they said "no" to television. How about audio? It protects privacy, they did it already apparently without incident a few times, and it is less intrusive than television.

Rightful Disgust

Baseball: The radio broadcast of the Mets opener was suspect. First, the saving play at the plate actually was a bad call, which was shown on the television broadcast as well as in the paper. The radio guys did not mention this; nor, did they mention that Wagner used the same opening music as a certain Bronx pitcher. This does not seem to me a big deal, though some with nothing better to do felt it was, but might be an issue when the Mets play the Yankees. Meanwhile, for opening day starters, there were a lot of big innings -- including off Barry Zito (by Yankees) and Zambrano (by Reds, but they blew it too). Will it be a year for hitters?

The jury determined the designated scapegoat for 9/11 is eligible for the death penalty, even though the prosecution offered a problematic "he didn't incriminate himself" argument that ZM did not offer what he knew, and in the process thus blocked the feds from realizing what was about to occur. [Yeah, it's his fault.] Even if the argument works -- really it should be overturned on appeal -- the clarity of immediate proof (given death is at stake) is slim. But, that is the next step -- the jury now has to determine if he warrants the penalty.

Overall, I cannot blame the jury for accepting the eligibility, since the prosecution and judge left it open. [Anyway, jurors are as imperfect as the rest of us -- it is not like, again, the government exactly shined here. In fact, given the crosssection of the community deal, it is like some jurors are better than the government.*] The former in particular are to blame here, especially given the questionable way how things were handled, including by one of the prosecution. Twisting the law to help this moron get his martyrdom wish would be tragic. And, appalling.

Talking about appalling, I did catch a bit of the censure hearings. I missed the early ad hominem attacks on John Dean, but did catch Arlen Specter and Orin Hatch sliming themselves, especially the latter. Sen. Hatch's routine is getting a bit old -- he has this sickening holier than thou tone, which is annoying when people I basically agree with like Sen. Schumer does it. By now, I cannot really take him seriously whenever he opens his mouth -- President Bush has reached this point years ago. But, Sen. Specter sold his soul too. He tried to the "no bad faith" dodge as if President Bush broke the law, but did so as a sort of honest mistake.

But, Sen. Feingold made it a point to show bad faith here, including various misleading public statements. So, no Arlen ... you are full of shit, and you must know it. If not, you are a moron. There is a simple right and wrong matter here, also shown in the Plame matter, and a few other basic situations from 2000 on.** A clarity that makes the Democrats' who tried to beg off or not even show up for the hearing just a tad disgusting. Props to Sen. Leahy though who showed real disgust when calling on one of the pro-Bush witnesses who assumed good faith -- as he noted, given all the secrecy, how are we supposed to know?

Nod to Justice Souter as well, who also showed his cards during the Hamdan orals -- his disgust is clear. [Justice Ginsburg even has her moments -- in her dissent from denial of cert. in the Padilla case, she noted how it should have been decided the last time up.] I like that -- disgust is an appropriate emotion along with the basic realization that we are dealing with people full of shit. Let us call the proverbial spade by its true name. For instance, I am getting sick of Barack Obama's attempts at "moderation." The sentiment seems to be that we are just dealing with a gentleman's disagreement, and if we are reasonable and unitive all will be well. Nice sentiment, but at some point it is pablum without more.

On that note, Feingold's shot across the bow is right on target.

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* I was called to jury three times in the last fifteen years. It has been over four years since I last was called, even though I did vote each year (voting rolls is a major source of jurors). I have this idea that they will call me when it is inconvenient.

** My disgust at his "presidency" started in November 2000 and never ebbed. A statistician was on C-SPAN recently and started his remarks on polling and such by noting somewhat off topic that it is clear that Gore won Florida, but Kerry lost Ohio. This really has to be underlined, though we are supposed to "get over it." I would say that definitely there is a preponderance of the evidence that Gore won, probably there is a clear and convincing clarity involved, and many would say beyond a reasonable doubt. I probably am on the fence on the last one, but it is not necessary: the bridge between the last two is a pretty weak "legitimacy" for our tyrant in chief.

Anti-Porn?

And Also: A bit stressful (a prelude?), but the Mets started things off on the right foot with newcomer Xavier Nady four for four. Old episodes of House are on USA Fridays, and it underlines how certain shows take time to click -- it is remarkable really how forced it tends to be. I saw May episodes on DVD, and five of six were very good, the other okay. I guess it took most of its first season to get in a groove. Or, they hired new writers.

I changed the books on the side panel. One also sees that my own book is "a work in progress," though I also did the finishing touches to the first major clean-up job. The first time around (October), a look at the hard copy showed a bit too many problems -- editing and a few items of content -- so it turned out to be more of a rough draft. Joe's Constitution is really always a work in progress. I'm forever considering various questions and reading new cases, suggested by new cases inserted during the latest editing, a few arising this Supreme Court term.* Wikipedia seems a better option, since then I can always edit without worrying about the formatting (a pain with the self-publishing site I used) in the final file, but I think the book can be considered to be done for the moment. Imperfect as it might be.

The first book is a feminist memoir. I discussed it a few days back and noted opposition to her anti-pornography stance. My first response to this stance, especially those like her who wants to give communities the right to keep newsstands from voluntarily including nudie magazines even behind the counter,** is how we define the term. Brownmiller seems to like to focus on the hard core violent/racist pornography, a tiny aspect of the materials at issue. She speaks of women being raped, bound, forced, and violated in pornography.

Now, I saw some pornography in my time -- especially the soft core sort on cable, but also a few magazines -- and I do not recall any that called us to be pleased by women having sex against their own will. It is out there, but surely not the sort of thing that dominates. So, to speak. So, no, it is a lie to define "pornography" in this fashion. This is somewhat less true online, but her anti-porn crusade came before the Internet phenomenon. But, even online, most pornography is of the explicit photo variety. And, much of the most explicit sorts are fantasy fiction or maybe chat rooms. Again, defining pornography as not "writing of prostitutes" but writings of rapists is simply wrong.

And, it should not take a pornographer to tell this to her. And, it really does not. She admits in passing in her book that some women were upset at the anti-pornography movement, some of the images actually pleasurable to them. They felt the anti-pornography brigade was calling their pleasure impure, and she said she "guesses" they were. You think? The true concern is not the tiny amount of pornography that involves rape fantasies and the like (and, yes, this is legitimate fare that examines one part of our psychology), but the degradation of women.

But, surely, nudity and sexual activity is not necessary for this. In fact, she talks about other portrayals as well in advertising and so forth. I would argue that this is in the long run is a much more problematic enterprise, especially looking at things through her eyes. Can we ban this fare? Also, what about all the violent fare in our society, which in fact is loathe to seriously address sexual matters in an adult non-porn sense? Why should we target a tiny explicit segment that is already deemed "bad" in some sense, even though millions (of both sexes) do want to look at it?

Such a misguided approach in my view. Furthermore, women are degraded in any number of ways in text as well. She is not for censoring that sort of material. At least, I do not think so, though some in the movement would. One person on the panel I linked below noted that any number of materials out there appall people. For instance, promotion of sexual freedom. Somehow, this is acceptable, even though millions are upset at it -- as shown by who is in power these days. How nicely selective. This is someone who honored women having basically lesbian meet-ups that at times led to topless dancing in a burst of glorification of their sexuality and gender. I wonder -- is same sex porn okay for her?

SB is excited about a comment by Chief Justice Burger of all people (does his Bowers' concurrence excite you too, Susan? Or, his tepid support of abortion rights?) that obscenity is not included within the glories of free speech. The old battles have been won; erotic literature protected along with the progressive thought that dominated the feminist movement, but once was liable to get you arrested. Our rights to enjoy sexual speech, including of an education nature, is less important to her. Oh, sure, she understands the need of the latter.

But, not when used in various pleasurable aspects, including sexual fantasy lives. Then, it can be degrading to women, so rightly targeted -- even if women themselves voluntarily take part and enjoy the material. SB does not push for a more well-rounded sort of "porn," which includes the pleasure of women into consideration. It might even be that she would define the term differently, since apparently when this is involved, it must be "erotica." This though millions of women read cheap romance novels that often promote sexual stereotypes as simplistic as the sorts in porn, especially of the soft variety. The fact that free speech overall involves some unpleasant material, sometimes because it reflects unpleasant desires and realities, also does not quite seem to reach her.

Or, is it only a problem in this field? Oh, she speaks of how the tiny area of Nazi themed porn appalled some Jews, But, how about all the speech that attacks the right of Israel to exist? Is this somehow less of a problem for Jews? Please. Eventually, SB saw the movement become too divisive and almost seem illiberal. Good instincts, but it was there from the beginning. Sexual degradation is worthy of attack, though pornography is a pretty narrow way to do it, but those who kept from suggesting the state should get involved had the right idea.

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* The Supreme Court, even after the conservative Fourth Circuit ripped the Administration a new one over its twisting of the evidence ["shell game"], rejected Padilla's appeal. Thus, it managed to avoid deciding the one case of an American citizen jailed for years without trial who was not picked up from the battlefield. The question is narrower now, but on some level this is a clear dereliction of duty ... though one can look at it as a modified victory. Still, this drawing out process gets ridiculous after four years.

** During a roundtable debate, an ACLU attorney noted that women manage to pass news counters without feeling violated by the presence of such magazines, especially since they are not "thrusted" in their faces. He suggested those who felt violated in some fashion chose to be, since they could avoid them.

SB suggested he was implying that some also "chose" to be raped. A ridiculous comparison -- the same applies to MacKinnon and Dworkin who directly connected the two, the latter basically suggesting sex was never truly consensual unless it was of the same sex variety.

Imperfect democracy and Stevens

Slither... great fun; horror comedy done right. The leads all fit great in various degrees, the wife doing sexy innocent as good as the foul mouth mayor does his role. Oh, another time when my long term habit of staying thru the credits paid off. You know, unlike everyone else who left before then.

Some call their daily walk a "constitutional" ... when I have a long walk ahead of me, it sometimes gives me a chance to think constitutionally. One way, I was considering how this country is not a democracy. As the Pledge of Allegiance says, we are a republic. But, one step further -- the representation is imperfect as well. This is not just a matter of malapportionment, including constitutionally mandated (the Senate -- giving a plus to thinly populated Republican states in a way the Democrats do not benefit from in return ... the only real plus is D.C., and that is just electorally).

Only around a half of the voting public votes, and that for presidential elections. Think off year and/or local elections, or even the primaries that determine things often enough. And, don't get me started on school board elections and so forth. In some fashion, a minority clearly governs. This is partly our fault, since so many do not vote, but it is bound to happen ... always did in some sense (helped in the past by stringent suffrage requirements; in the present by special interests and so forth). This is one more reason why the criticism of courts as "anti-democratic" does not quite work. Another reason would be that legislatures often work large scale, often making rough compromises at the last minute (often in conference days before the final vote), while courts look at things more carefully. Meat cleaver/scapel.

This can be seen as a sort of legislature due process safeguard via the courts. Also, our constitutional republic, of course, has various rights that a majority cannot infringe except by amendment. Some can be viewed as basic principles, including the right to privacy. A right that sadly was not dealt with carefully in too many opinions -- they all seem to be a summarily effort based on a few core decisions, which also did not carefully spell out the privacy reasoning. For instance, Loving (interracial marriage) and Stanley v. Georgia (obscenity in the home) both have privacy components, components underlined over time, but originally they were covered rather briefly.

Griswold is a core offender -- the whole thing is about six pages with a lot of the weight left to a concurring opinion (Goldberg respecting the Ninth Amendment) and later analysis left to a dissenting opinion in the case (Harlan in Poe v. Ullman) that came before it! Roe spends rather little time discussing the privacy core of the ruling. The Skinner case baldly spoke of procreation as a fundamental right. And, so it goes. Overall principles were reaffirmed over time, but it often is left to concurring/dissenting opinions to define things. This is why Bowers v. Hardwick is so important -- Blackmun highlights core privacy themes. Somewhat strangely, it was Stevens' dissent that was honored in Lawrence v. Texas.* And, on closer scrutiny, it is a bit lacking.

First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack.

And, the example was interracial marriage. But, this does not really help -- the Loving ruling underlines that morality alone can not be a trump, if there is constitutional interest that overrides. Racism surely is one. A broad, but fair, reading (Blackmun does the heavy listing in this respect) of various opinions suggests sexual freedom is as well. But, this does not mean morality is not a legitimate state interest. Other factors might make morality based arguments problematic -- for instance, when morality is too closely entwined with religion, or the "morality" in question is illegitimate.

I tend to find this to be the case all the time. But, I still need those two reasons. And, even then, a few things require me to stretch a bit, including harm to animals. In that case, there is rarely a compelling contrasting interest -- many would consider the basic principle at issue moral. Ultimately, Stevens dissented because Georgia only wanted to defend half of the law (partly since the other half, respecting heterosexuals, seemed comparable to decisions protecting heterosexual sexuality) and do so merely symbolically at that:

The record of nonenforcement, in this case and in the last several decades, belies the Attorney General's representations about the importance of the State's selective application of its generally applicable law

As in Lawrence, the couple only were caught in the act because of chance, though (a telling point, addressed in passing by Stevens) discriminatory treatment (by a police officer in the first case, by a private party in the second) helped things along (Stevens notes a rarely used statute leads to arbitrary selective enforcement, but only in a footnote -- Blackmun and Lawrence addresses the core stigma problem more directly). Anyway, in a footnote, Stevens raises the suggestion the law ultimately is symbolic. And, really, this is the nature of such laws. But, he notes:

Since the Georgia Attorney General does not even defend the statute as written, however, see n. 10, supra, the State cannot possibly rest on the notion that the statute may be defended for its symbolic message.

As written, again, the old law targets all types of sodomy. But, the state felt heterosexual sodomy (or sodomy among heterosexuals) was secured by a constitutional right of privacy -- one recognized after it was written. Some sodomy laws came late in the game, like the one in Texas, and selectively targeted homosexuals. These laws cannot be targeted in this fashion. Furthermore, Georgia was sort of making the best out of a bad situation -- the law's original purposes were limited by forces outside of its control. They might save as much of the statute as possible, right?

After all, arguably, the rulings did emphasis family life and so forth. One involving unmarried couples using contraceptives did not and a few other rulings spoke of individuals. But, again, there was a legitimate argument made that they could be interpreted narrowly. Blackmun suggests why they should not -- Stevens at times assumes there is only one way to do things, so defending his way is less necessary. If you accept his argument, things are a bit easier.

Ultimately, as Powell's own law clerk (gay -- but the justice did not know it) thought at the time, it might have been best to target criminal statutes. Hard as it is to believe, a few people were in jail just for sodomy -- though some were involved in public activity (homosexuality taboo, so this often was the only way to express one's sexuality). He only briefly concurred, noting Hardwick was not prosecuted. But, he was charged, and liable to be charged again. The fear is there, probably liable to be selectively enforced. The risk was large enough, the state's failure to prosecute underlining taking this weapon out of its hands as no big deal.

The ruling would have been thusly: a plurality strictly saying that homosexual sexual activity is not a fundamental right, even as part of a great privacy right. The deciding vote saying he agrees, but taking way the possibility of any serious criminal sanction (Georgia having a ridiculously high possible sentence). Four saying it is part of privacy, while three of the four underlining how the symbolic interest surely does not justify a criminal sanction.

And, the next step -- recognizing homosexuals deserved equal protection in the civil arena -- would develop over the years, as it already was recognized in the speech area (years before in the beefcake magazine field, of all places, and also in less racy fare). But, Stevens -- though as always interesting and raising good points -- was a bit slipshod in his analysis. One might also note that Blackmun has a great footnote/aside on how the activity here was a core expression of the couple's very identity, so it could not be criminally targeted for that reason alone.

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* Not too strange. His dissent emphasized the equal protection aspects of the problem -- the law covered all sorts of sodomy, but the state here only targeted homosexuals. And, in Lawrence, O'Connor concurred separately on equal protection grounds, and Kennedy has been known to been libertarian in certain areas, including free speech and equality. The other sentiment in Stevens' dissent was the inability of morality to trump ... this too was a theme in Lawrence.

Marriage For Residents Alone

And Also: Good column of all places in the sports section respecting the army targeting viewers of March Madness for recruitment.

[Also in legal news: The Supreme Court is due to reaffirm in some sense the rule of international law. Not only the Hamdan case, but one respecting notifying foreign consulates that their citizens are in our custody. The Bush Administration asshole policy of deciding to no longer actively take part in the treaty notwithstanding, a majority of the Court appeared willing to assume it has some real positive law security for those detained.]

The governor of Massachusetts won the first round of his attempt to narrow the reach of the gay marriage ruling of the state supreme court a few years ago. A ruling, for those who respect state rights: "The genius of our Federal system is that each State's Constitution has vitality specific to its own traditions, and that, subject to the minimum requirements of the [federal Constitution], each State is free to address difficult issues of liberty in the manner its own Constitution demands." This is the true sentiment of the Tenth Amendment, one that ultimately was meant to further liberty, not state power.

The governor and presidential hopeful pushed for the enforcement of a nearly hundred year law that barred marriages to non-state citizens if the marriage was barred by their home state. A major reason why people went to other jurisdictions to marry, including the couple in the famous interracial marriage case, was because their home state barred interracial marriages. But, this was not the only reason -- for instance, even in the early 1900s, divorce was hard to obtain. [Somewhat ironically, New York remains the lone holdout against true no fault divorce.] And, various odds and ends situations arose as well -- cousin marriages, etc.

All the same, the law was basically defunct these days, and had a racist taint. The call to re-enforce the law -- as the sole dissent in the case addressed here noted -- clearly was discriminatory in intent and action. Nonetheless, a somewhat related matter arose in California in which some people tried to interpret a provision against same sex marriages to only apply to out of state residents. Some felt this was not only a overly creative reading of the statute but basically unconstitutional. They pointed to the Privileges and Immunities Clause of the federal Constitution, which secures the rights of out of state visitors.

Well, in the first ruling on the matter, the Massachusetts Supreme Court said "not so fast" and with only one dissent (one judge was wary). The author of the same sex marriage case wrote a separate opinion tentatively defending the provision in this fashion:

It is rational for Massachusetts to take precautions that marriages performed here be considered legally binding and not merely aspirational. Put another way, it is rational for the Legislature to take steps to ensure that marriages performed here will hold up elsewhere, and that they will not be ignored by other States. The Commonwealth's concern is not a matter of comity so much as a matter of federalism, that is, of a State's concern for the integrity of its own laws.

Meanwhile, a plurality opinion spoke of comity and basically was pragmatic in sentiment:

By giving respect and deference to the legislative enactments and public policy pronouncements of other jurisdictions, it is my hope that principles of comity will have a significant impact on other jurisdictions if, and when, confronted with the issue whether to recognize validly contracted same-sex marriages of Massachusetts couples, even where those couples would not be able legally to marry in such other jurisdictions.

So two reasons really: the state has a reason to only supply marriages to those who they know would actually be able to enjoy them and they should respect foreign state laws because hopefully they will respect Massachusetts' as well. The latter sentiment is nice and all, but a bit naive in this context. The former works on some level, but also does not quite work. In fact, of all things, a fugitive slave case was used to underline the point by the one dissent (who also noted that heterosexuals from out of state were not likely to be equally targeted):

The Aves case established the principle that a liberty or right under the Constitution of Massachusetts that is available to citizens of Massachusetts, can be extended to others who travel here from other States, regardless whether their home States deny them those same rights.

I'm with the dissent but am sympathetic to the pragmatic approach, which drove one strong believer in the justice of protecting same sex marriages to sign on for now -- care should be taken to not go too fast in this area. But, the ruling really makes no sense. The state surely has a minimum residency requirement. A person can still can married afterwards, now being a state citizen, and soon enough leave the state. And, overall, the fear a liberty will not be protected by another state should not be a reason not to protect it in one's own state. Likewise, this law basically has unclean hands.

Anyway, interesting case, and a suggestion how even in MA change takes a bit of time.

Abortion: Autonomy, Conception and Unborn Life

And Also: It is wonderful that the kidnapped reporter Jill Carroll, who I seriously thought about to die, is free. [Update: Sympathetic comments were not voluntary.]

Susan Brownmiller's In Our Time: Memoir Of A Revolution continues to be of interesting reading.* The important of personal accounts, including those of victims, is underlined -- "consciousness raising" and so forth. The chapter on the abortion fights had some interesting tidbits, including "Jane," a Chicago based group that performed abortion themselves -- without doctors. A Slate frayster is convinced that the Thirteenth Amendment by nature is the answer to showing that the right to choose is a constitutional right, one basically absolute. He would disagree with Roe v. Wade's comment that the state can limit them to physicians for safety reasons.

Likewise, a woman involved at around the same time as the Jane collective was charged with practicing medicine without a license in respect to her menstrual extraction work -- she plea bargained to one count of fitting a diaphragm. Sounds almost like a message in the ridiculous. In fact, given the Baird case -- involving handing out contraceptives (foam) to the unmarried -- arguably inhibiting the distribution of presumptively safe contraceptives is a violation of the right to privacy. Justice White (with concurrence of Blackmun) so argued in this pre-Roe case. Things would be different for those substances usually prescribed, such as the pill, or potentially dangerous medical treatment like an abortion. Anyway, even Griswold involved in a medical clinic.

The book also references a Florida woman who was charged with manslaughter after a botched abortion. This somewhat belies a rallying cry -- why do pro-life people not target women, only doctors? Are they hypocrites or just anti-women? Do the not think pregnant women have a will? If so, they too would be guilty. Texas did not target the women; as the head lawyer Sarah Weddington noted in orals, the women is deemed the victim. But, meanwhile, California law -- after its reform law [signed by Gov. Reagan, but generally targeting minors under 15, rape victims, and a broad health exception -- it was not a "repeal" law like the one in New York] -- noted: "a woman who solicits or submits to an abortion is punishable by up to five years' imprisonment."

True, many laws did not target the women, surely not in practice. But, this in part can be defended as a pragmatic move in various respects. Care should be taken when talking about this subject -- hyperbole is liable to be wrong. For instance, the case where I found the contours of the California cited a case upholding the right to force a blood transfusion against religious opposition to save the life of the fetus. [The same court later decided saving the life of a women also will do the trick though one apparently atypical court case said medicine is too unsure of itself to actually know if withholding treatment will actually lead to death, so ruled the other way.]

The principle was upheld, apparently selectively (state rulings; know of no federal court stance on the subject), after Roe as well. Forced cesarean sections also have been known to occur, but they raise more concerns -- I am willing to say tentatively the blood transfusion rule might be legitimate to save the life of a eight month fetus. The ban on viable abortions except to save the health/life of the woman is more intrusive than that. Or, is the mere insertion of the needle an unlawful tort?

Abortion has been of interest to me for years and for years I have noticed how it has been subject to misleading statements. In recent debates over the South Dakota law, for instance, remarks were raised that things like in vitro fertilization and so forth were not known of in the times of Roe, so the sanctity of life from conception developed with our knowledge. Meanwhile, someone mentioned that morning after pills are not really "contraceptives," since contraception already occurred in many cases. It turns out Roe dealt with both issues -- underlining that "contraception" is not really a clear line, including noting many scientists consider conception to be a "process." Thus, targeting implantation can be "contraceptive."

But, I really don't think people actually read Roe -- they just ridicule it. Closer looks generally lead to more nuanced reasoning, something I fear even those who seem to be in the know need a few lessons on. A few looks at some of the quite interesting pre-Roe lower court rulings on abortion can do some people a lot of good, for instance, including those who think Roe came out of the ocean fully borne ala Athena. Also, a few address the question of the unborn, including questions of personhood and protection. Roe provides useful citations here.

I myself addressed "unborn persons" in something I am writing.** Going back to that blood transfusion, why is this question not addressed in more detail in anti-abortion dissents? Where is the fetal rights opinion of Justice Thomas? I actually would welcome one (good to balance things) ... I'm sure there are law review articles on the question for which his (or maybe Justice Alito's ... even CJ Roberts' has a Feminist For Life wife, right?) clerks to research. The anti-abortion libertarian Nat Hentoff referenced fetal health care years ago to raise a similar point: the unborn as patient, presumptively as person. Justice Scalia rather make fun of the right to privacy -- underlining in his Casey dissent that states have every right to allow abortions, if they so wish to do so. But, a look at the pre-Roe case law gives us one that noted:

Biologically, when the spermatozoon penetrates and fertilizes the ovum, the result is the creation of a new organism which conforms to the definition of life just given. Although this is a definite beginning, there is no assurance in any particular case as to how long the life thus begun will continue. ... Once human life has commenced, the constitutional protections found in the Fifth and Fourteenth Amendments impose upon the state the duty of safeguarding it.

The dissent in Steinberg v. Brown, 321 F. Supp 741 (N.D. Ohio 1970) showed the weakness of the argument, including respecting the actual law at issue, but even Roe noted that striking down the unborn personhood argument does not end the question. But, who actually reads Roe?

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* She also wrote a path breaking book on rape -- Susan Estrich, before she became a bit of an annoying loud mouth writing defending Hillary Clinton also wrote a small book entitled Real Rape that is quite good. SB went in some questionable directions. Her statement that the state should not allow a person to buy a woman's body (prostitution) seems a tad bit overblown -- is she against models, sex surrogates, escorts, and the like? Also, though she admitted it became excessive, the anti-pornography movement is clearly a mixed bag. Yes, there pornography is in various ways not good for women. But, it clearly is a legitimate matter in some general sense, and the attempts to ban it was ridiculous.

** My general sentiment is that there are "quasi-persons" which/whom the state protects in some partial way, the most well accepted being corporate persons. But, if a corporation can be a "person" for limited purposes, since the word has a certain legal meaning, why not other beings? For instance, animals, Klingons, or even the unborn? The "all or nothing" sentiment is not mandatory ... if anything, even corporations these days have too much security, which is surely not the case back in the day when they had much more limited discretion.

The 21st Century will have enough dealings with life before birth that some independent right metric will have to be formulated. The rights of pregnant woman will remain, but I think artificially thinking of the unborn as basically non-existent as a "person" will not work. It does not completely work now, especially with late term abortion bans.

And, the general public does not think of things that way -- they see a development of rights, which suggests that in some sense there are rights at stake before birth. Back to Roe -- no rights in a "full" sense is a telling turn of phrase.

Perspective Please

And Also: Tocqueville warned that strict equality might result in lack of individuality, largely as a result of social pressure. Reading Susan Brownmiller's memior on the women's movement, the point hits home. Not only in some pictures where nearly all the women seem to look alike (stereotype woman lib), but in her own accounts of rank and file targeting anyone who are singled out in any fashion, including via a single byline or media appearance. Problems of conformity pop up all over the place, sometimes especially in movements.

A few additional words about yesterday's post. First, the documentary is an example of an important principle: sometimes apparently small or minor things can be quite striking on some basis. The beauty school seems on some level trivial, but it is a real way to help Afghani women, also providing a cross-cultural bridge that is quite important as well. Likewise, the program is small enough that it is particularly real for the general public here as well.

This is why relatively small matters can be important in the scheme of things. Thus, an everyday event or happening might represent the state of affairs regarding equality or how women are doing today. Sexual harassment at the local work place and so forth. And, this works in various areas. For instance, a matter dealing with free speech -- perhaps a television show getting fined for a scene that selectively is deemed too suggestive -- might seem small. But, it stands for a wider principle, and has a direct effect on the general public. Little things matter.

[An interesting tidbit. While picking up my paper/coffee, I overhead the local store clerk talk about how he dealt with customers differently in this country. He went out of his way to be friendly, especially to all the women customers, and I have been noticing more customers of late. Annoying when I have to wait to pay for my coffee. Seriously, interesting bit about customer relations -- and one I wish a few more people around here did it. A bit of customer friendly training did wonders in the post office though I had to deal with an ass recently.]

They also can provide a means to understand broader themes. This is a problem with the NSA spying matter. When Clinton was involved in his troubles, the press had loads of stories addressing various angles -- we even later heard about Monica's handbags. The NSA spying matter has lots of aspects the join together into a greater whole, including the overall nature of the government's spying on the American public. Now, some effort is made to point to this fact, such as labeling rowdy protesters as "terrorists" when a handful of the group might do something to breach the peace. But, there really is no connecting of the dots, or consistent coverage. Such side stories can be quite useful.

As to that matter, a bit more on Sen. Levin. His underplaying of the NSA problem as merely something Congress might have to legitimize ex post facto rankles. This is an example of what people are annoyed about with the Democrats. This is not a matter of asking too much of them, asking them to do something they do not have the power to do (given their minority, lack of subpoena power, etc.). It also might suggest the need for new leadership. Russ Feingold is an example of a younger firebrand, but there are various ways for members to make themselves known.

For instance, the new senator from Illinois likes to take a more evenhanded approach . But, new voices are needed -- even some of the "realistic few" in Congress are really old guard faces, like Rep. Waxman. One value of new faces is that they might expect more -- looking toward a time when they will again be in power. They will not be satisfied with small things, such as protecting their positions of power (at some point, the Republican leadership goes too far, so even moderates in the minority will rebel ... as maybe the Republicans are doing in a small way respecting the President's actions -- the Hamdan orals suggests the Supreme Court is annoyed as well). Their eyes will be on the future, building up the movement, and having more energy to do so. And, more chance to catch fire with the public.

Anyway, it seems like the goal posts are not placed far enough these days. A questionable but perhaps fitting metaphor came to mind today. It also might be fitting given the state of affairs at times these days. I had a bit of trouble with my toilet of late, the flow suddenly becoming sluggish. Thus, it was an accomplishment when it worked without a hitch. Of course, the damn thing should work consistently. But, at some point, you are happy about small favors. And, you in the process do not consider the big picture -- this should be how things always work. You know, if you are black, it should not be a "great" thing for the cops not to hassle you. But, your expectations drop down considerably after awhile.

We need people who look at that big picture. Fight for the small victories, but keep in mind that it is not the only thing that matters. So, Sen. Levin ... sure, worry about making sure the President is doing things authorized and overseen by Congress (btw, maybe you should read Sen. Leahy's press release on the Patriot Act signing statement), but maybe those things are wrong to begin with. Thus, you found out compromising with Sen. Graham on the DTA did not quite work as well as it might have. And, keeping that in mind, including in media appearances, is something we can expect from the minority party.

If not, we need more new blood that understands the point.

Tyrant and His Posse

The Beauty Academy of Kabul concerns an effort by "Beauty Without Borders" to train Afghan women to be professional hairdressers. As noted on the documentary's website: "Economic development, distributed across the board, is one weapon against fundamentalist rebels and 'warlords.' Women who support their families financially earn freedom and respect." Though the documentary could have been a bit more well-rounded, it provided a striking look into an aspect of our involvement there respecting what allegedly was a major concern -- the well-being of Afghan women. The interaction between the American beauty experts (appearing a tad shallow at times) and the Afghan expats who helped them along with the women themselves was particularly striking.

Justice Scalia mouthing off about the detainee case shows a disrespect for the institution that quite arguably is worse than any crazy-eyed living constitutonalist offers. Though Hamdan's own lawyers were agnostic, five amici requested he recuse himself ala the Newdow case. Scalia did not, providing a lifeline for the government throughout. Meanwhile, Graham/Kyl of the "let's do nothing to clarify things except to strip/limit their rights" Detainee Treatment Act appears to have done some skullduggery to slant divided "legislative intent" their way.

The audio of the case btw was available by around 12:30, first showing up on C-SPAN3 and a bit later on CourtTV. As usual, I ask: why can we not have similar audio -- come on Souter, no one will even see you -- consistently when important cases (I reckon ten to twenty a term) are heard? The movement sorts play to cameras in various ways already (on the lawn, outside the court room, and so forth), while the words on already available. Sheesh ... they should have had a sort of "court on tape" for years now. The recent decision to label who's who on the transcript makes it even easier to do this. [Various Hamdan stuff, including an audio link, can be found at ScotusBlog.]

As to the DTA, Sen. Levin has strongly rejected those like his two brethren here who wants to make it retroactive. Suggests what happens when you "compromise" with those currently in power. Meanwhile, respecting the NSA spying issue, he went on Chris Matthews -- known to those in the know as a backhanded propagandist for the Right ("most people except for the nuts think the President is a good guy") to say that "the question is is it legal, or do you have to modify the law in order to make it legal." Of course, the censure thing is a bad idea before fake hearings to determine not what we already know (it's illegal), but the true breadth of the illegality.

In other words, another member of the Democratic leadership who will not stand up for the truth except now and again, when they find out that their timidity/establishment tone means shit (e.g., the DTA matter). Gary Hart was on Democracy Now! mentioning how he was upset at his own party for similar reasons. [See here, with another interesting story about South Dakotan Native Americans opposing the anti-abortion law there.] Guy became sort of a senior fellow of late, especially on security type matters ... writes a lot too, I have noticed. Anyway, in the words of Glen Greenwald's blog, where the Senate stuff here has been discussed of late:

That's an insulting and totally unacceptable response to an incredibly important (and purely legal) question. There is simply no excuse for this behavior in our system of government. Congress has a right to have questions like this answered, particularly when the DOJ, at the same time, offers long-winded responses to Republican questions that are nowhere near as fundamental or important.

This is in response to the non-answers to various Democratic questions on the NSA program, while the suck-up questions of the Republicans are used as they were meant to be: talking points. In other words, the response of a tyrant, "unfit to be the Ruler of a free People." A tyrant that has essential support from the legislature who "too have been deaf to the Voice of Justice." They too have ignored reminders of the circumstances and ideals of our settlement here. We must therefore, acquience in the Necessity of separation ... by the ballot. For, while they wage war against our ideals and liberties, we must hold them to be our enemies.

For what else is tyranny than a President who proclaims to be above the law, but when called upon it lamely tries to say it is but mere hot air that was always done that way? This was done in the Patriot Act, yet again, respecting an essential oversight provision. But, only Sen. Leahy spoke out.

Perhaps, again, we must modify the law in order to make it "legal." For is that not the only problem?

Entertainment News

The country star Buck Owens recently died -- I do not know of the man, but do enjoy country music among other genres. My mom is a fan and the local country music station was always her favorite while I grew up. The one station with country in NYC eventually changed formats, which is a shame. It is also rather ridiculous given the breadth of listenship in the overall urban area: mom no longer lives in the City, though is not too far away ... so still is out of range of the small country station that sometimes can be heard further upstate. We do have plenty of top 40 and latin stations though ... quite diversified! Seriously, especially with the popularization of country overall -- some really basically soft rock or contemporary artists -- a country station makes sense.

Meanwhile, (hat tip, Atrios) the Dixie Chicks again say it well:

Forgive, sounds good
Forget, I’m not sure I could
They say time heals everything
But I’m still waiting

I’m through with doubt
There’s nothing left for me to figure out
I’ve paid a price
And I’ll keep paying ...

Not so sure that is meant to have political implications, but still applies there too, huh?

A rookie on David Letterman's race car team died in practice yesterday. Letterman, a great fan of the sport for years, put forth a heartfelt statement showing his sorrow at the death. Basically, he said that he did not know the man personally, but it is tragic that Paul Dana died at such a early age (30). It had a nice feel to it and overall though Letterman's show is not always that good anymore, I still find him at certain moments particularly honest. Leno seems to be more phony, more of an act. Works for him, though. Still, Dave? Enough with the racist cab driver jokes, ok? [As an aside, the death was given a bit more cache given its connection to Letterman ... like it or not, all deaths are in some sense not created equal. Also, I guess the chance of death, the risks involved, adds to the excitement of the sport itself, huh?]

I also see that Alexa Vega, best known as the older sister in the Spy Kid movies, is popping up a lot of places. She was recently on a HBO movie concerning walkouts to protest inequitable LA schools in the late 1960s. Another cable movie was replayed in which she played a teen psychologically abused by her classmates, seriously addressing teen issues that help make high school a living hell for some students. And, I see that another movie (light teen fare) she was in is showing on cable tonight as well. Good young actress -- she actually dyes her hair black to emphasize her Hispanic side, her blonde mane not quite ethnic enough.

Talking about television ... West Wing (five days to the election) was pretty good last night, with Janeane Garofalo looking rather nice -- her pining for Jon Bon Jovi (Atrios also had a cameo) was particularly cute. But, again, I am ready for this long election to be over! Also, Related ended its season last week -- hopefully not its run -- in a two hour finale. It is too bad one of the few shows I enjoy ended its season so soon, plus I did not quite like a couple of its plot choices. Still, baseball is coming up -- looks like Pedro is in good shape. The new Mets channel is not on Dish Network yet -- YES Network (Yankees) still is not -- but hey, radio is fine. Nostalgic feel and ...

Sheesh ... what are you waiting for? Of course, the hundred of thousands of local subscribers are rarely referenced in press accounts as compared to Time Warner, Cablevision and Direct TV. Clearly, we are second class citizens.

Revenge/Retribution and the Social Contract

Sunday NYT Watch: An article on vegan firemen in Austin, a character study of the woman doctor on House, and a letter from a sophmore (high school) on how a teen series is "deliciously funny." Do fifteen year old girls actually say that? And, an amusing piece about Jewish women and Chinese food.

More on yesterday's theme, respecting the death penalty. I will use a post on the Slate fray as a starting point.

What is the definition of justice in this context? ... To blankly state that the victims want "revenge and not justice," is to seriously misunderstand them. Further, it is to seriously misunderstand the role of law and punishment.

The secularist measures crime by human standards and accepts, even embraces, the margin of error that would be unnecessary for a divine being to whom nothing is inscrutable. In a world of law, the absence of just revenge poses as great a threat to both liberty and order as revenge gone wild.

-- Susan Jacoby

In other words, simply speaking of "revenge" when discussing family members and so forth who want murderers executed is sometimes a bit too fast and loose. There is a self-righteous tone there, suggesting that they are just letting their rank emotions lead the way, while the speaker is a more reasonable sort concerned with balanced justice. There is a difference between revenge and retribution:

Jacoby treats revenge and retribution as synonymous, but perhaps there's a subtle difference. ... "revenge" [has] the most tenuous connection to the perpetrators ... Retribution, on the other hand, addresses moral culpability - which is why virtually everyone is repelled by the idea of executing a person with diminished mental capacity.

-- Cathy Young, reviewing Wild Justice: The Evolution of Revenge by Susan Jacoby

In the case of murder, it is very difficult to precisely say what is just. If you accept the idea of a social contract, you get out what you put in. Under such a definition try, convict and kill the bastard. It is precisely what he perpetrated on another, probably for a very stupid reason.

Three problems here. First, many societies do not have a death penalty, or one very narrow (likely arbitrarily so) and rarely applied. [Thus, almost forty states technically have the death penalty, but a mere handful have nearly all the people on death row, some having none.] They too have a "social contract." In fact, many societies believe the death penalty is simply uncivilized, unrepublican. Thus, after the country underwent major republican changes including a new constitution, the South Africa Supreme Court struck the penalty down on such grounds.

Second, we do not execute people "precisely" the way the person killed. That is the whole point -- we are not bloodthirsty killers, or at least, that is the case in theory. Third, the easy use of "bastard" rankles. I know this can be seen as a bit politically correct, since a murderer is likely a bastard. But, this has a certain flavor to it -- like we are executing not a person/citizen, but an "other." Someone without parents or family. Makes it so much easier, huh?

I'm not necessarily sure how I feel about the death penalty, but I think it has a place. It is a final solution to the question of, "How exactly do you deal with a human being who has irreparably broken the social contract?"

It is "a" final solution. A poor one, especially as shown in practice. A final word on the author of the comments. S/he works in medicine and is an opponent of abortion. I believe perhaps even an opponent of morning after pills, though perhaps just sympathetic to them. But, not of the death penalty. In fact, s/he is able to use rather slipshod reasoning to defend it, including treating the executed as a non-person of sorts. The same person who wants a woman not to have an abortion, even if we are dealing with a month old embryo.

I know there is a way to differentiate the two stances, and the person did not fully express views on capital punishment, but sometimes the disconnect is a bit glaring.

[Update: A reply to my Slate post is also worth reading. Overall, the person is more reasonable than my comments might imply, but there does seem a troubling outer coating that rankles. After all, the person thought Bush was better than Kerry ... though is a fan of Edwards. I saw some people like this, though surely E-K-B would still be favored over B-E-K, right? I repeat my annoyance at those who fail to see that Kerry, not just Bush and the press, was also the problem in 2004.]