Government vs NFL and other tasty tidbits

Thought this was silly...

And since it's been a while since I've posted, I'll drop a few concise opinions in the spirit of brevity that has apparantly fled in terror from this blog. Christ almighty it's like reading a mini-book (especially you, Bert).

Gay marriage: Huzzah! Now I know that I am not the learned scholar in the ways of history, government and philosophy as you, my esteemed colleagues are, but I don't recall there being any mention one way or another in the founding documents of this country even a reference to the matter. It seems to me that the "definition" of marriage has stemmed largely from either a "traditional" or christian standpoint, both of which are bunk! Bunk, I say! Tradition has no place in law making, else it would seem difficult to advance beyond the current thought process. As far as the christian point of view, I was always taught religion doesn't (shouldn't I suppose, since it clearly does) hold a place in law making. Bert's arguement along the welfare lines (if I interpreted it correctly) is ok, but I hold you have to solve the abuse of welfare in heterosexual circumstances before you can use it to prevent homosexual marriage. Undermining social fabric? Anything can be construed as such...and to prove my point, I will offically state here that Slaps undermines social fabric on a far greater and detrimental scale than any two male lovers could ever hope to do. But I digress into a textual nightmare. Huzzah! for gay marriage. Seems ok to me.

Harry Potter & TGoF: Eh...lost a bunch in the translation from book to movie. Exciting, I suppose, but I was severely disappointed with the lack of sphynx in the maze as well as the intitiation of the revival of the Order of the Phoenix. Now, admittedly I was what could technically be called "slightly intoxicated" - but only slightly! - but I think drunk me could have inserted a little more development along the way. Also, Mad Eye's magical eye is like a modified eye-patch? I always pictured it being right in his socket, like a real eye. Only magical!

Abortion: Doesn't gay marriage solve this problem????

I'm out. Hope you all take a lesson here in brevity.

I hate cats

Just dropping this "amusing" little story by: Last night I find, to my surprise, cat shit in the dishwasher. The cat shit in the dishwasher. Enjoy.

Come on, you jerks....

What's going on here? We were cooking along pretty well, but there's been nothing since election day. Umm...something thought-provoking...jurisprudential stuff seems to work...lots of Sci-fi fantasy fans here...
What do we think about the legal rights of prisoners? What do we think of _Goblet of Fire_? Would Jesus want us to use torture--I mean--"extreme rendition?" How about them Buckeyes? Yeah!

Election Day Tomorrow

Make sure to go vote against Issues 2, 3, 4, and 5 tomorrow if you are an Ohio voter.

Sex at school caused by...

You guessed it...abstinence education.

Needless to say, I got no action in high school, so my outrage over this article may be the result of a little bias.

Some kids were caught having an orgy in the school auditorium. The Washington Post somehow thought this comment was relevant:

"Some parents said the matter got them talking to their children in discussions they might not have at Osbourn, where, according to the school system's director of instructional services, Sandy Thompson, health classes focus on abstinence and sexually transmitted diseases but not condoms or contraception."

If only those darned sex ed classes would've included more contraception education we wouldn't have all this public sex.

Ms. Miller, an alumna of the high school, had the most insightful comment:

"Our parents are the ones who had the sexual revolution, so why are they surprised?"

Whose fault is it, you ask? Well it's the abstinence-teaching fundamentalists and the free-lovin' hippies of course.

Sad...

Abortion

Again, in response to E$.

I did a quick, therefore inadequate, search of the state of abortion laws at the time Roe was decided. I believe (this is in part from Blackmun's opinion) that at least 18 states allowed abortions under similar statutes to this:
Justifiable Abortion. A licensed physician is justified in terminating a pregnancy if he believes there is substantial risk that continuance of the pregnancy would gravely impair the physical or mental health of the mother or that the child would be born with grave physical or mental defect, or that the pregnancy resulted from rape, incest, or other felonious intercourse. All illicit intercourse with a girl below the age of 16 shall be deemed felonious for purposes of this subsection. (this was the Model Penal Code's version at the time)

Obviously abortion was more restricted prior to Roe, but it was certainly not proscribed everywhere. It was allowed before the 26th week of pregnancy in these states where it was not proscribed. The interpretation of the statute worked much like abortion statutes now, under much judicial interpretation of "physical or mental health of the mother". It was probably not as liberally condoned by courts as it is now under the Supreme Court's (lack of) guidance a la Roe and Casey, etc. especially in say, Arkansas (where it was legal), and it might have been just as liberally condoned in more liberal states. I do not know.

I think pro-abortion people have not pushed for legislation for multiple reasons. It is very unlikely the Court will overturn abortion case precedents altogether. If it does, then advocates can enact liberal abortion laws if they are able. I think many states would allow abortion if this were to happen, even more liberally than in 1973.

Secondly, abortion liberalization statutes would undermine pro-abortion court rulings. The core of Roe was that women had a 'fundamental right' (a very loose constitutional term of art) to abort. Thus, in most respects, it is beyond the powers of legislatures to touch. Such legislation would be an admission that abortion decisions rest on shaky foundations. Incidentally, due to the politicization of the issue, those shaky foundations are less freely admitted now than when Roe was written. Abortion rights advocates cling to that ruling despite its treatment in Casey and by liberal legal scholars after Roe was written.

Finally, related to the first two points, for better or (more likely) for worse, we believe the Supreme Court is the final--and in most respects--only arbiter of Constitutionality. This serves to devalue legislative and executive pronouncements. We have come to the point where Congress and the President sign and pass things they themselves might believe unconstitutional and say, "the Court will deal with it". Thus elected officials don't have to take unpopular stands in defense of the Constitution anymore. They just push it off to the courts. Can you imagine a President, a la Jackson or Lincoln, openly disobeying or even roundly criticizing the Supreme Court? It is nearly unheard of in our time.

Re: Eric's posts

I'm going to suprise you by agreeing in large part with your post on intentions or what "I really meant". I think I may have confused things by saying original intent. And you are right to point out that 'liberal' and 'conservative' are bad terms, but politically speaking they are what we have to work with. Speaking judicially we might say functionalist or formalist, but no two terms are comprehensive obviously.

To say original intentions is probably the wrong way to put it because there are people who would try to divine the spirit of the law or what the writer really meant as opposed to what he wrote. The 'liberals' (and Justice Thomas occasionally) take this approach (with adverse positions as you point out) to the Constitution, and a vast majority of judges do when it comes to legislation (which, it appears, will suprise you). I agree with you that this is a bad approach. Interpretation must start with the text that was given us.

Let me distinguish originalism from original intent, a distinction Justice Scalia makes. Scalia also eschews legislative history and intent as a bad guide to judicial interpretation for a myriad of good reasons that not enough people take seriously. The extent to which we might try to define original intent is asking "what did those words mean when they were written" or "were these laws commonly thought Constitutional when the article/amendment was adopted." These are legitimate inquiries. So, again, I would probably agree that people of all political stripes may believe they are adhering to some spirit of the law, but this leads to the disputes we have both pointed out, and, I would say, is the wrong approach. In this sense, an originalist's approach is very amoral, which is discouraging to many conservatives BTW, because it rarely allows a judge to invest any overarching intent in the form of moral preferences or authority, i.e. natural law or laissez fair economics, the authors may have held. Justice Holmes was probably the exemplar of this amoral approach.

This is why Scalia says his approach is very simple when it comes to very controversial things. The Constitution simply says nothing about abortion or assisted suicide, etc. Any attempt to force them in there begins by being extra-textual, a difficult hurdle to overcome in Constitutional interpretation. These questions are left to the people and the States, thus, self-government. We have come to the point where we expect the Court to decide every question under the sun. If we think there is a 'right' to something, it must be in there, but this is so self-evidently not the case as admitted by those who want it to be there when they say, "well...ah...ah...the Framer's never anticipated such and such a situation." So what? This seems dispositive evidence that the Constitution does not have an answer the Court, like philosopher kings, may hand down.

Bork and Roe v. Wade

I meant the second point, not necessarily the sine qua non part. Which leads me to the following question: since the biggest threat to abortion rights is the overturning of Roe v. Wade, and since the "activist" origins of the ruling are the most obvious (and justifiable) grounds to overturn it, why has the pro-choice camp never introduced actual legislation to legalize abortion, whether at the state or federal level? I mean, everybody freaked out and started wielding pitchforks and torches at the thought of h...ho...homosexuals getting married, passing state-level "defense of marriage" acts, even though there is already a federal DOMA on the books. There have been plenty of Democratic majorities, and even if such an effort failed, the Roe ruling would still be binding, like a legal safety net, right? If the legislation worked, then even if Roe were overturned, abortion would remain legal and the anti-abortion camp would be deprived of a principal objection to it. There must be a reason this wouldn't have worked (I doubt it would now with GOP majorities all over the place); otherwise, somebody would have thought of it before me.

Perhaps this...

...will lessen your skepticism, Stanya. Bork gives Judge Alito his support.

He notes that "overturning Roe v. Wade should be the sine qua non of a respectable jurisprudence." This is not because abortion is the issue. It is because that opinion represents above all others the overreaching of the federal judiciary to legislate from the bench, constitutionalize issues, and create rights not mentioned in the Constitution.

Bork also observes that the abortion issue is so contentious in the United States because of Roe. If the issue were to be handled democratically, there would be a more civil debate and compromise, recognizing the ability to learn from mistaken policy, convince fellow citizens, and make gains in the future.

On a similar note...

...George Will sums up why the Democrats will have a difficult time opposing Judge Alito.

"I didn't mean it like that...."

I dig much of what you're saying, but it is interesting that your second paragraph seems to define "liberal" as "deviating from original intentions," to the point that "conservative" scholars are being "liberal" when they twist meanings. It seems to me that if intention twisting goes both ways (and since we love to simplify everyting to just two possible sides, which I doubt we can reasonably do), it is a bit sophistical to label it "liberal" or "conservative," even if one side seems to do it more.

Speaking of one side doing it more, I also question the notion that "twisters" (which I'll use instead of either team label) believe they are twisting. Now, I'll defer somewhat to Matt's experience; maybe you personally know self-avowed "liberals" who get together and say "let's try to bend the meaning of the words from what was originally intended," but I've never met one. Whenever I hear people of any political stripe talk about the Constitution, they all think they are upholding the spirit of the document, if not the peculiar personal intentions of Rufus King or Richard Dobbs Spaight. For example, I have no problem with interpreting the Constitution to allow gay marriage. This is not because I've said, "yeah, why not try to squeeze out some really wacky interpretation to shake things up," but because I've read and read and re-read the Constitution and find nothing to preclude the possibility. Moreover, all of the "spirit of the Constitution" arguments invariably have to tap into "spirit of Marriage" appeals, which have nothing to do with the Constitution. I know James Madison probably never intended gay marriage, but he probably never thought of it at all. Many of our sacred, holy Founding Fathers could never imagine a woman voting or a Black man becoming Secretary of State, so if we worry too much about what the guys "really meant" (as opposed to what they wrote), we may not always reach a happy conclusion. Finally, I simply can't believe "the original meaning and intent of the framers is in large part settled," any more than Christ's intentions (or Paul's, for that matter) are "settled", or we wouldn't still be arguing about it. If you think it's already carved in stone, that's because you're talking people who already think the same thing you do.

Lastly, I have some questions on the nature of words, and laws, in particular. The articles and amendments are laws, written words. It seems written laws are meant to take the place of somebody's judgment to some extent. Here's what I mean. If I am the king and somebody makes a claim against somebody else, I have the power and obligation to decide what to do to make it right (though rulers' versions of "right" have frequently been anything but). To simplify things for the next time, or to make sure my intentions are carried out in my absence (when I'm dead or off killing the neighboring tribe), I write them down for other people to read (thanks, Hammurabi). The trick, though, is that the words I leave about my intentions are not the same thing as my intentions. As Socrates warns Phaedrus, words are not trustworthy memory aids; the are only impoverished shadows of what I actually meant. Now, my point here is not the same as Derrida's (though he adds yet another layer of difficulty to the problem). Once I, the king, am dead, the people cannot ask me what I "really" meant, they can only consult the words I left. (We can quibble about extratextual evidence [letters Jefferson wrote, napkins Madison doodled on, what Franklin did after he signed the thing, etc.], but those are not really part of the text under consideration and are beside the point here). So, interpreters of my words have the following job: determing the range, the limits of meaning for the words I left (since the words are slippery and indeterminate) and reach a reasoned conclusion within those limits. I don't say the because that would be really naive. Moreover, isn't this what lawyers do for a living? Neither prosecutor nor defender questions what the law says, but stretches (and I don't mean that in a negative way) the words' range of meaning just far enough so their interpretation fits safely inside. Neither lawyer would say he is "twisting" the law or the intent behind the law. Rather, they both think they are elucidating a legitimate interpretation of the semi-reliable written words. On the other hand, it is always "the other guy" who is twisting the law...I would never do something like that...I'm just upholding what the law says! Also notice that nobody calls to the stand the state senator who voted yes on the law when it was a bill, or the little old lady who collected signatures for the referendum to see what they really intended the law to mean--we have the law, and that is what we have to work with.

Dang, this got long. My point here isn't to pick on you "conservatives" or exonerate "liberals" (though it was interesting to hear a law professor on talk radio the other day praise Alito as a "good, conservative, activist jurist"). I want nothing to do with either of you. However, I see this business of "originalism" vs. "activism" as another talking point based partly on an actual problem of interpretation that affects everyone. Discuss.

P.S. I generally think Bork is a douche bag, but I agree with the argument you cite about Roe.

Original Intent

In light of the President's new nominee, I wanted to address Eric's post from the 18th of last month. I have to disagree.

In one sense, Eric is correct. Idealogues can twist the meaning of texts in their favor. This, however, does not negate the actual meaning of those texts. The debate among liberal constitutional scholars, at least honest ones, has shifted from "what did the authors mean" to "how should we interpret the Constitution in light of present moral/political circumstances". On the other side you have conservatives and libertarians who would adhere to the Constitution's intended meaning despite outcomes that may offend modern sensibilities. And sure, there are conservatives and libertarians who would depart from original meaning, but they are essentially taking a similar path to the liberals'.

In other words, the original meaning and intent of the framers is in large part settled. There is little to debate about. The argument is whether it should guide jurisprudence, which, to me, is a no-brainer. If you do not adhere to the meaning given by its authors, what meaning do you give it? As Justice Scalia argues, you give it the meaning that 5 justices want it to have. This is clearly anti-constitutional, meaning judges may change how our political order is constituted. The idea of a constitution is exactly the opposite of what liberals claim it to be. A living, ever-changing constitution is no constitution at all. The Constitution, it seems self-evident, is only changeable through the amendment process it provides.

Again as Scalia notes, 70 years ago everyone shared his jurisprudence. The problem we face now is not that of judicial Derridas (though it arises from time to time), but of those who are simply in conflict with what they see as shortcomings of our Constitution or constitutionalism in general. Thus, they have sought to invent modes of judicial amendment and are ever attempting to legitimize them to reach ends the Constitution simply does not mandate or contemplate.

Not to borrow from Scalia too much--but he has it right--what informs this informal amendment? And the skeptic's answer is, our moral and political preferences. We make the constitution mean what we want it to mean not what it actually means. Thus, the constitution is destroyed by our present moral preferences it was meant to moderate in the political process it established.

Sadly, we have come to the point where one political party believes originalism is an unacceptable jurisprudence. When the Democrats do not win in elections and legislatures, they go to the courts, and if the courts do not give them what they want, their desires are completely frustrated.