Well, this should be interesting

The Supreme Court, today, heard arguments in Ayotte v. Planned Parenthood of Northern New England. From the name of the case, you probably guessed that it's an abortion issue. new Hampshire currently has an abortion law restricting minors from receiving an abortion without parental notification.

The case revolves around a very narrow issue: Whether the fact that there is no exception for emergency procedures could cause the entire law to be disallowed.

It should be interesting to see how Roberts votes....and even more interesting to see the reaction of both sides of this debate.

The watch-NASCAR-for-the-crashes in me wishes that this decision could be handed down during the Alito confirmation hearings.

Not really much of a post

Sorry I haven't posted in a while. As I mentioned earlier, I have a few half-created posts, but my thoughts are incomplete so far.

In the meantime, the American Constitution Society is "bloghosting" a great debate on a First Amendment issue. I can't really add anything to the arguments here (although, so far, I agree with Dean Polsby). Link below.

Link to Blog Debate

Happy Thanksgiving, all

I have several draft posts. They are coming soon.

In the meantime, have a great holiday!

The Chronicles of Narnia

Having been a geek (not in its current trendy meaning, but in the original meaning) in my youth, I did a lot of reading, particularly of fantasy. The Chronicles of Narnia were among my favorites. I am extremely excited to see the movie that is coming out shortly.

I should state at the outset that, although I was raised Christian, I don't think it "took".

I am interested (or perhaps even apprehensive) to see what is done with the underlying Christian theme to the book. It is undeniably a metaphor for Jesus' death and ressurrection, and the redemption that Christians believe came with it. However, The Lion the Witch and the Wardrobe is emphatically not a didactic book which attmpt to sway the reader to Christianity. It is more of a re-telling of what Lewis, like other Christians, already considered "the greatest story ever told".

There are two ways in which this movie could fail, and fail miserably. (Note that by "fail", I do not mean fail at the box office. I mean fail to retell a truly wonderful book in an appropriate way.) The first, and more unlikely, IMO, is for the movie to attempt to take advantage of the increasingly vocal Christian majority in this country (witness, for example, the success of Mel Gibson's "Passion" movie). If the movie was made didactic, or pushes its message on the reader, then it will be off-putting, in my opinion, and will both fail to re-tell the story and, ironically, will fail to express the message that Lewis sought to deliver: the beauty of Christianity. This is a very specific message. Lewis believed (IMO) that by expressing the beauty, the reader would grow to embrace the message as truth but he did not attempt to express it as truth in his stories...with the possible exception of That Hideous Strength.

The other way it could fail would be to suppress the message entirely. The book is a Christian story. To deny this would be to deny the very core of the story. If a faithful retelling of the story requires that the production company take a risk of offending its atheist viewers, then that is simply evidence of what a truly gifted storyteller Lewis was.

The whole breastfeeding thing

I got berated on an internet forum a while back because I opposed a Virginia law which required Starbucks to permit a woman to breastfeed while in their store.

I want to clarify my position.

First: I love boobs. whether it's right or wrong, I love 'em. Those of you who have met my wife know this to be the case.

Second: seeing a woman breastfeeding in public does not disturb me. I have two small children. I've seen my share of pump-and-dumps, and have no problem with seeing someone whip one out to feed a baby.

Here's my concern: Such a mandate is, at core, the government telling a private property owner how it can operate its privacy. Absent some real discrimination (which this is not), I am opposed to this.

It is discrimination (in this context) to say that one group has fewer rights than another group, based solely on their membership in that group. It is not discrimination to say that no one can be shirtles in a place where food is served...and that includes you, breastfeeders.

(picture deleted due to formatting issues and reader complaints)

What I would look for in a judge

The Supreme Court nomination and confirmation is going to be (and has been) big news. Both sides have been espousing the qualities they would look for in a judge. "Respect for precedent" "Conservative" "Liberal" blah blah blah. I think all of these are inappropriate.

The only thing I think is important in a Supreme Court judge (besides, obviously, intellect and a background in the types of issues he or she will adjudicate) is consistency. There is enough...openness...in the realm of Constitutional interpretation that both strict constructionists and living documentists can make rational, reasoned arguments that their approach is the appropriate one. I don't have a problem with either side.

However, I would have a problem if a justice applied their "beliefs" on interpretation inconsistently, depending upon political opinion. This is why i think it is inappropriate for Senators to ask nominees their opinions on specific issues and cases, and doubly inappropriate for nominees to answer such questions.

In case you missed it....

Pat Robertson has provided a link to another blog which may be enjoyable to readers of mine....both of you.

http://samuelalito.blogspot.com/

The infallible justices

I know I promised to respond to The Mean Guy's statement about the system collapsing under its own weight. However, the impending downfall of Western civilization isn't really that important. Instead, lets talk about a theoretical legal point.

The Supreme Court is never wrong.

Ever.

Maybe you disagree with them on the Roe v. Wade. Maybe the government parcelling out land in Kelo v. City of New London is more what gets your ire up. Maybe you're upset that the Second Amendment does not protect your right to keep and bear a sawed off shotgun. Hell, maybe you're upset that you need to pay overtime to workers while they change into their protective gear.

Doesn't matter. You're wrong, they're right.

Article III Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

The judicial power is the power to interpret the meanings of laws, including the Constitution. The Supreme Court is the ultimate arbiter of the meaning of those laws. This is written into the Constitution itself. Individuals who assert that the Supreme Court has made a decision that goes against the Constitution are arguing against themselves. The decisions of the Supreme Court are incorporated by reference into the Constitution by Article III.

The normal response to this is "Well, were they right in Dred Scott? Were they right in Plessy v. Ferguson???

Yes. They were. They were also right when they overturned those decisions. They were right in Bowers v. Hardwick, when they held that sodomy was not protected by the right to privacy, and they were right 17 years later in Lawrence v. Texas, when they ruled that it is.

Being "right" as a matter of Constitutional law does not mean making the moral, ethical, desireable or even wise decision. It means making the decision that is the law going forward. The Constitution, for all of its...well...wonderfullness, is not a codification of ethical principles. It is a system of government, and should be looked at as such.

Kansas utterly terrifies me.

I can't even speak.

I'm going to cut and paste a cnn.com article below. I will bold one paragraph.

TOPEKA, Kansas (AP) -- At the risk of re-igniting the same heated nationwide debate it sparked six years ago, the Kansas Board of Education approved new public school science standards Tuesday that cast doubt on the theory of evolution.

The 6-4 vote was a victory for "intelligent design" advocates who helped draft the standards. Intelligent design holds that the universe is so complex that it must have been created by a higher power.

Critics of the language charged that it was an attempt to inject God and creationism into public schools in violation of the separation of church and state.

All six of those who voted for the standards were Republicans. Two Republicans and two Democrats voted against them.

"This is a sad day. We're becoming a laughingstock of not only the nation, but of the world, and I hate that," said board member Janet Waugh, a Kansas City Democrat.

Supporters of the standards said they will promote academic freedom. "It gets rid of a lot of dogma that's being taught in the classroom today," said board member John Bacon, an Olathe Republican.

The standards state that high school students must understand major evolutionary concepts. But they also declare that some concepts have been challenged in recent years by fossil evidence and molecular biology.

The challenged concepts cited include the basic Darwinian theory that all life had a common origin and the theory that natural chemical processes created the building blocks of life.

In addition, the board rewrote the definition of science, so that it is no longer limited to the search for natural explanations of phenomena.

The standards will be used to develop student tests measuring how well schools teach science. Decisions about what is taught in classrooms will remain with 300 local school boards, but some educators fear pressure will increase in some communities to teach less about evolution or more about intelligent design. (Read how Kansas came to this point)

The vote marked the third time in six years that the Kansas board has rewritten standards with evolution as the central issue.

In 1999, the board eliminated most references to evolution, a move Harvard paleontologist Stephen Jay Gould said was akin to teaching "American history without Lincoln."

Two years later, after voters replaced three members, the board reverted to evolution-friendly standards. Elections in 2002 and 2004 changed the board's composition again, making it more conservative.

Many scientists and other critics contend creationists repackaged old ideas in scientific-sounding language to get around a U.S. Supreme Court decision in 1987 that banned teaching the biblical story of creation in public schools.

The Kansas board's action is part of a national debate. In Pennsylvania, a judge is expected to rule soon in a lawsuit against the Dover school board's policy of requiring high school students to learn about intelligent design in biology class. (Read about the Dover debate)

In August, President Bush endorsed teaching intelligent design alongside evolution.

Let's talk Second Amendment.

San Francisco recently adopted a ballot measure which would ban all guns within the city environs.

San Francisco voters approve handgun, military recruiting bans
By LOUISE CHU, Associated Press Writer

Tuesday, November 8, 2005 (11-08) 23:25 PST San Francisco (AP) --

Voters approved ballot measures to ban handguns in San Francisco and urge the city's public high schools and college campuses to keep out military recruiters Tuesday.

With 100 percent of San Francisco precincts reporting, 58 percent of voters backed the proposed gun ban while 42 percent opposed it.

Measure H prohibits the manufacture and sale of all firearms and ammunition in the city, and make it illegal for residents to keep handguns in their homes or businesses.

Only two other major U.S. cities -- Washington and Chicago -- have implemented such sweeping handgun bans.
Supervisor Chris Daly, who proposed the measure, said the victory showed that "San Francisco voters support sensible gun control."

Citing statistics that show most homicides in the city involve handguns, Daly said "every life that's saved with Proposition H is a big win."

Although law enforcement, security guards and others who require weapons for work are exempt from the measure, current handgun owners would have to surrender their firearms by April.

A coalition led by the National Rifle Association has said it plans to challenge the initiative in court, arguing that cities do not have the authority to regulate firearms under California law.

Davey Jones, chairman of the Committee to Oppose Handgun Ban, said a recent wave of gun violence in the city may have hurt his campaign, but opponents believe the right to possess handguns is necessary for self-defense.

"We focused our message to seniors and to women and to the gay community," Jones said. "Of course we're disappointed. We believe that we did not get the message out."

The military recruitment initiative also won with 60 percent in favor and 40 percent against.

Measure I, dubbed "College Not Combat," opposes the presence of military recruiters at public high schools and colleges. However, it would not ban the armed forces from seeking enlistees at city campuses, since that would put schools at risk of losing federal funding.

Instead, Proposition I encourages city officials and university administrators to exclude recruiters and create scholarships and training programs that would reduce the military's appeal to young adults.




Wow! That's pretty dramatic. But note an important passage in that article:

A coalition led by the National Rifle Association has said it plans to challenge the initiative in court, arguing that cities do not have the authority to regulate firearms under California law.

What? California law? Why not the Second Amendment? There can't be a more stringent restriction on "the right to keep and bear arms" than "thou shalt not keep nor bear arms.

Maybe the NRA saw an easy road with the California law. Maybe that issue is a slam-dunk, and they thought that argument sufficient. I haven't read their brief, so I'm not sure.

However, I have a theory (thirdleg, if you're reading this, I'm about to piss you off)....

I think the NRA is scared to raise the Constitutional issue.

There are two basic reasons why they could lose on this issue:

The first is that the Second Amendment does not bind states (or cities), because it has never been incorporated into the 14th Amendment "privileges and immunities" language. The Constitution binds the Federal government. The rights provided in the Bill of Rights and the Constitution limit the actions of the Federal government.

The states are separate and independent government bodies. Absent the Fourteenth Amendment, the restrictions of the Constitution do not apply to the states.

The Fourteenth Amendment prohibits states from interfering with the "privileges and immunities" of U.S. Citizenship. This has been held to include certain portions of the Bill of Rights...Never the Second Amendment.

Therefore, states (and cities) are not bound by the Second Amendment.

The NRA would be apoplectic if they brought a case to court, and lost on this theory, because suddenly there would be a precendential ruling affirming it. However, that's nothing compared to the other argument.

There are two competing theories of interpretating the Second Amendment: The "individual rights" and the "states rights" models. Under the states rights model (which the NRA justifiably loathes), the right to bear arms is solely related to the establishments of organized militia which are themselves, arguably, under the control of the states (or, in certain circumstances, the Federal government!) Therefore, the right to bear arms is held by the states in order to arm its militia. If the state chooses to have a poorly armed militia (or no militia at all), then it can restrict or eliminate gun ownership.

There is some textual support for this reading. The Second Amendment, alone among the Bill of Rights, has a preamble: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

Why include that language, if not to limit the Amendment's application? If the framers wanted it to be "just another right", they could have included it in the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, or infringing the right of the people to bear arms and to petition the government for a redress of grievances.

Instead, they separated it out, with a preamble. The preamble must have some legal effect. What could that legal effect possibly be if not to limit the scope of the right to bear arms?

Gay marriage and the Constitution

This is sort of off the top of my head.

There are two completely separate Constitutional arguments for gay marriage, one (very) strong, one weaker (but I believe winnable).

Under the first argument, states are free to define marriage however they like, subject to their own state constitutions (Massachusetts', for example, mandates gay marriage). However, state laws must be given "full faith and credit" by other states, meaning that a gay couple that gets married in one state must be treated as married in another state, regardless of that state's definition of marriage.

The clear analog is common-law marriages. Some states do not recognize common-law marriage. However, if a couple is considered common-aw married in one state, then they move to another state, the second state is required by the Constitution to treat them as married.

Currently, there is a Federal statute called the "defense of marriage act", or DOMA, which states that gay marriage need not be given full faith and credit. There have been no challenges to this law, because any such challenge would be "unripe"(no one has been placed in a situation to be affected by the law). Once a challenge is brought, I cannot see any way that the law will survive Constitutional muster. This, I believe, will be the ultimate resolution.

The weaker argument (although one which I believe is correct) would actually determine that gay marriage is man-dated (pun intended) by the Constitution. Sexual orientation has been explicitly ruled to not be a Constitutionally protected category. Of course, that could always change, but I don't think it's necessary.

There are several "levels" of Constitutional protection for discrimination based upon membership in a class. Laws which discriminate based on race, for example, aresubject to "strict scrutiny", meaning that the law must be narrowly tailored to meet a necessary government interest.

Discrimination based upon gender is subject to "middle scrutiny". This means that any law which makes a discrimination based upon gender must be closely related to an important government interest. Limiting marriage to heterosexual couples arguably discriminates based on gender, in that a man is granted a right that a women is not. To wit: the man can marry a woman; for example, Angelina Jolie (I will address the counter-argument momentarily). This is government discrimination against women, and must pass middle scrutiny (Im sure you see that I could reverse the terms and say it was discriminating against men as well).

I have never seen any rational description of an important government interest that is served by limiting marriage to heterosexual couples. If there is no important government interest served, there can be no discrimination based on gender.

Here's the counter argument: "Steve, you dumbass", you say, "marriage doesn't discriminate based on gender. Everyone is free to marry someone of the opposite sex." I agree that the situation can be framed in that manner. That's why I think this argument is weaker than the one above. However, if you look at this rule coldly, it seems very clear to me that there is a line being drawn based on gender. At core, men are able to do something women are not. Similarly, women are able to do something men are not. The fact that these rights "cancel out" is immaterial from an equal protection standpoint. Separate but equal is not sufficient for equal protection.

Regarding Alito

Samuel A Alito, Jr, that is.

Anyone who read my first post may think I am hostile to judges like Alito (and Scalia, for example) because they are the type of judges preferred by those who want "strict constructionism".

This is wrong. I have no problem with either judge. I do not feel that a judge must read the Constitution broadly. I believe that judges may, if, in their...well...judgement...feel it is appropriate to do so, and permitted by the language of the Constitution. If a judge does not feel it is appropriate to do so, then he or she should not, and that is also an appropriate use of the judicial power.

Everything I have read about Alito indicates that he is a thoughtful, brilliant, open-minded jurist. He has issued opinions that some may find controversial, however, nothing "extreme" or out-of-line with the language of binding precedent (that I am aware of).

People do not have a right to expect a judge who will vow to uphold Roe. When Bush was elected, it was very clear that (1) he opposed Roe, and (2) he would appoint a judge during his term. In the debate on Oct 8, he said:

I'm not telling. I really don't have, haven't picked anybody yet. Plus I want them all voting for me. I would pick somebody who would not allow their personal opinion to get in the way of the law. I would pick somebody who would strictly interpret the Constitution of the United States.

Uh, let me give you a couple of examples I guess of the kind of person I wouldn't pick. I wouldn't pick a judge who said that the Pledge of Allegiance couldn't be said in a school because it had the words 'under God'' in it. I think that's an example of a judge allowing personal opinion to enter into the decision-making process, as opposed to strict interpretation of the Constitution. Another example would be the Dred Scott case, which is where judges years ago said that the Constitution allowed slavery because of personal property rights. That's personal opinion. That's not what the Constitution says. The Constitution of the United States says we're all - you know, it doesn't say that. It doesn't speak to the equality of America.

And so I would pick people that would be strict constructionists. We've got plenty of lawmakers in Washington, D.C. Legislators make law. Judges interpret the Constitution. And I suspect one of us will have a pick at the end of next year, next four years. And that's the kind of judge I'm going to put on there. No litmus test except for how they interpret the Constitution. Thank you

Alito is exactly what he promised.

True story

This is re-pasted from another website (where I posted it) to preserve it for all eternity.

It actually happened to me.

Ok. A little background. Currently I am wearing a pair of dress pants, a belt, a pair of relatively new boxers with excellent elasticity in the waistband (Spongebob Squarepants motif, by the way) and a button-down shirt. Because I have recently started getting back in shape, my pants are somewhat loose, and my belt is tightened all the way. For those of you familiar with this type of sartorial jury-rigging, this means that the waistband of my pants is somewhat bunched. Given the nature of the clasp on this particular pair of dress pants, this occasionally causes my pants to unbutton (although they remain on my person, due to the action of the belt).

Anyway. I needed to pee. As is my wont when such a need arises, I went to the mens room, and stood in front of the urinal. I unzipped my pants, and hooked a thumb in the elastic waistband of my Spongebob boxers, pulling them down to free myself and direct my stream appropriately. At this point, looking down, I noticed that my pants had become unbuttoned (as discussed above.) Holding my unit in place with the fingers of my left hand, and my boxer waistband with the thumb of the same hand, I started to unbuckle my belt with my right hand, so I could re-button my pants.

Unfortunately, as I was doing this, someone walked in. We'll call him "Jim" (his name is actually Steve, but that would be confusing). Again, due to my having lost weight recently, my pants are loose. Now, bereft of the support system of my belt, my pants began sliding down, exposing the Spongebob Squarepants print on my ass to Jim.

In a desperate attempt to conceal my boxers from this co-worker, I released both my unit and my boxers from the grip of my left hand, and reached for my pants. Unfortunately, this resulted in the powerful elastic of my boxer waistband to immediately snap into place some two inches above my unit. This, in turn, caused my unit to snap into a directly vertical alignment.

I was still peeing.

The pee streamed in an arc along the wall of the urinal. Acting out of instinct to avoid peeing on my shirt, I stepped backwards while sealing off my kegel muscles. I managed to trip on a tile.

So, to sum up, I am now sitting on the floor of the men's room, my pants are around my knees, and my unit is peeking out of the top of my now exposed Spongebob boxers. Jim witnessed the entire escapade.

I have closed my office door, and am contemplating resignation/suicide.

Irony amuses me

I snapped a photo of a piece of litter I found by the side of the road this morning: