Justice Scalia spoke to a gathering of the Utah State Bar Association, meeting at an exclusive resort. He apparently defined himself innocently enough as something pretty much everyone knows. He is a self-described "originalist."
"I believe that texts should be read to mean what they were understood to mean when they were adopted."
The controversy is generated by what goes beyond mere analogy. He analyzes pre-WWII Germany's judicial philosophy as the equivalent of anyone who disagrees with his judicial philosophy. He doesn't quite say that liberal judges brought on the Holocaust, but he mans the ramparts to make sure liberals don't introduce it here.
Justice Scalia's reputation, as the most brilliant of the bright lights that grace the Supreme Court, has dimmed in recent years. At least among those less disposed to accept his judicial values.
I see him as the most sophisticated justice on the Court. I trace his sophistication to its roots in fifth century Greece. He is the intellectual descendant of the philosopher Gorgias.
Gorgias was a member of a generally well regarded school of thought advanced by Gorgias' mentor, Protagoras.
Protagoras believed that truth was elusive, but that we could come closest to it by engaging in rigorous argument. He did not see truth as intrinsic to any one side of any argument, and so he trained his students to argue either side of any controversy, looking for whatever truth could be found in either. The idea was that nobody could claim to actually see the truth. Not about anything.
Scalia's main thrust in Utah could have been lifted from Protagoras. It is the inability of mortal beings, including judges, to interpret how changing times interacts with law that necessitates staying with what those who wrote the Constitution actually intended.
The goal of Protagoras and his followers was to teach students the foundation of a successful life. One point of criticism against them was that they charged for teaching. In fact, they charged enough so that only the aristocracy could afford to send their sons for lessons in success. However, there was a degree of social acceptance of the idea that the aristocracy exclusively deserved the keys to success. They were best at governing, right?
Protagoras may not have been entirely pleased with his influential follower, Gorgias. Gorgias kind of went to extremes to argue positions pleasing to the aristocratic patrons who paid the bills. He began to argue more and more unpopular positions, even those that defied normal reasoning, to show that truth was possessed by nobody.
He authored a treases of sorts, On Nature of the Non-Existent. He pretty much argued that nothing exists.
Such manipulations of logic contributed to a social pushback that sent the entire philosophy of Protagoras into disrepute. These people would argue anyside, or every side, of anything, anything at all, if the money was right.
For me, what finally pushed the aging Antonin Scalia into much the same category was another talk he gave outside the courtroom. This was in the form of an interview. In response to a question about the Eighth Amendment to the Constitution, Justice Scalia suggested that if police were found to have been torturing a prisoner, they would be on constitutionally sound ground.
Cruel and Unusual punishment, you see, would not apply to a prisoner who was not convicted of some crime. A prisoner who has not been convicted in a court of law is presumed to be innocent. And if you torture an innocent prisoner, there can't be any punishment, cruel or otherwise. After all, there would be nothing to punish.
I wrote at the time that Justice Scalia's form of original intent required some mental gymnastics.
There you have it. Justice Scalia's version of Original Intent demands of us:
- that we disregard clear language in the law and instead discern what was hidden in the minds of the ratifiers, and
- that we regard those ratifiers essentially as idiots.
Since then, the arc of the Scalia universe has been bent noticably. Conservatives remain comfortable, but the farther away from the rightmost corner of society we go, the more the idea that his opinions are wrong has been replaced by concern that he has become unhinged.
His comments during oral arguments, especially, seem to have been lifted from some late night radio talk show in the old confederacy. But his written opinions are noticeably weaker, often lapsing into the pattern of an old Phil Donahue audience member. "But Phil, where will it all end?"
His concern during marriage equality arguments became a hybrid, mixing his concern about original intent into a broader concern that, if equality were allowed in one place, it might have to be allowed everywhere. We can only hope.
During Voting Rights arguments, he put traditional judicial deference to legislative prerogatives on its head. His concern about Voting Rights was that too many members of Congress had voted for it. Something very wrong with something so many agreed on. It was up to the court to take action.
In fact, I think Justice Scalia's mental dexterity has been growing since the famous Bush v Gore decision of 2000. That decision transformed Governor Bush into President Bush without the bother of counting votes that had been missed. It also was a rare decision in its don't try this at home provision: warning that it must not be used in future judicial decisions as any precedent. Just this once, you understand.
His ability to take any conclusion, and find some logical path to reach it, puts him squarely in the tradition of Protagoras and his pupil, Gorgias.
They were the original Sophists. Their philosophy of success though creative argument, the ability to torture logic enough to arrive to any desired conclusion, became the virtual synonym of intellectual dishonesty. It came to be called Sophistry.
Justice Scalia, the court's intellectual gymnast, has honed Sophistry into the most sophisticated reasoning you will find in any court.
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Where Rules Only Apply to Ordinary Citizens (5:02) - Click for Podcast
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Voting rights are back in court again. This time in Pennsylvania, at the state level. And the most compelling testimony so far has not come from election officials. It has not come from any Democratic voter blocked from voting. Not from a minority voter facing new obstructions. Not from a statistician or election analyst.
In fact, it has not come from anyone actually in the courtroom.
A life long Republican, someone who had voted enthusiastically for John McCain and against Barack Obama in 2008, had to testify by video camera. Medical problems keep her from traveling too much. That's why she couldn't make it from Reading, PA to Harrisburg.
Two women testified in court Monday via pre-recorded videos. The first, 71-year-old Marian Baker of Reading, said she hasn’t missed voting in an election since 1960. She said she suffered from a broken leg and other debilitating injuries that make it difficult for her to walk and stand. She can make it to her polling place just three blocks away, she said, but worries her legs won’t hold up during an inevitably lengthy wait at the nearest PennDOT center in Shillington. Last time she renewed her license, she said she waited four hours just to get inside the building, and another 90 minutes to get through the process. She said when she called to request an accommodation, a PennDOT representative told her she’d just have to show up in person and press her luck.
- Philadelphia Intelligencer, July 16, 2013
The amount of official help this voter has gotten is not unusual in states where voting is administered by Republicans. In some jurisdictions, state workers have been ordered not to help anyone without IDs to find out where they can get them. One worker in Ohio was fired for suggesting that withholding voting information was wrong.
Many of us who drive are unaware that some voters don't carry photo IDs and that it isn't all that easy to get a substitute ID. For all the talk about having to produce a photo ID to cash a paycheck, enter an office building, or frequent a library, most such examples are simply not true.
The only times I recall showing a photo ID in the last couple of years were the several times I gave blood. I did offer to show my driver's license when I renewed my library card last year. The worker chuckled and told me they don't do that unless a patron insists. "Do you insist?" she smiled.
It is easy to go through life without a photo ID, if you are within walking distance of life's necessities or if you are retired or if you use public transportation to get to work.
And who are not licensed to drive are the very people least likely to have an easy way to jump through any additional hoops to get a photo ID. Conservative lawmakers have gone through some lengths to make it even harder.
Republicans in Pennsylvania have parroted conservatives elsewhere, insisting new photo ID requirements are needed to prevent voter fraud. In fact, a Republican city commissioner in Philadelphia, Al Schmidt, claimed to have found over 700 instances of voting irregularities. Wow. Sounds pretty convincing.
A closer examination of those 700 instances shows that the commissioner actually looked for 7 categories of irregularities, 6 of which could not be prevented by any sort of voter ID requirement. When cases that would not have been affected by IDs were discarded, simple discrepancies found to be innocent, circumstances looked into, and backroom counting practices separated out, the 700 cases were whittled down to a hard core of 1. That would be one. A single case of voter fraud over several years of elections in all of Pennsylvania.
In court, advocates for photo IDs have, so far, made two admissions. One is that there is virtually no voter fraud in Pennsylvania that would be prevented by new photo IDs. The other is that a substantial number of legitimate voters would be kept from voting. But those advocates insist their actual motivation has nothing to do with restricting legitimate voters or gaining any partisan advantage. Party is not a consideration.
Outside of court, Republican officials are sometimes more candid, their words captured in unguarded moments. In 2012, Pennsylvania officials were allowed to suggest falsely in statewide advertising that voters needed new photo IDs to cast their ballots. This is Pennsylvania Republican Party chairman Rob Gleason earlier this week talking about whether that photo ID campaign had an effect:
Yeah, I think a little bit. We probably had a better election. Think about this, we cut Obama by 5 percent, which was big. You know, a lot of people lost sight of that. He won, he beat McCain by 10 percent, he only beat Romney by 5 percent. I think that probably photo ID helped a bit in that.
- Rob Gleason, July 16, 2013,
Interviewed by the Pennsylvania Cable Network
And this is Mike Turzai, who leads Republicans in the state legislature, right after laws were passed that those without photo IDs would not be allowed to vote.
Voter ID, which is going to allow Governor Romney to win the state of Pennsylvania, done.
- Mike Turzai, Pennsylvania GOP House majority leader, June 23, 2012
Our reaction to voter suppression laws, intended to gain political advantage, depends on how we look at voting rights.
If we see the issue as the right of a political party to own all the votes that supporters want to cast, we may divide along partisan lines.
If we regard voting as a right owned by individual citizens, the rights of political parties will not matter as much as the right of Marian Baker and those like her.
Lots of news going on right now: filibuster negotiations that may influence the future of lawmaking in the United States, abortion rights being curtailed by midnight legislative maneuvers, mortgage foreclosure safeguards overturned by stealth, voting rights obstacles thrown at the working poor, iffy dealings in Egypt, and a host of other vital developments.
But we keep rehashing the Trayvon Martin killing. And we should. The case invites attempts to divine some larger meaning. And humanity seeks meaning.
A man is adjudged to be innocent until declared guilty by a jury after a fair trial. That is the law. The law does not prevent me, or anyone, from having an opinion apart from the determination of a jury.
O. J. Simpson was guilty, most probably of unplanned murder as he was caught in the midst of some vandalism. That is my opinion.
Those who assaulted Reginald Denny were guilty, regardless of whether they were caught up in a mob mentality. That is my opinion.
John Warnock Hinckley was guilty of attempting to assassinate a President, regardless of the unwillingness of the jury to wade through the evidence to a conclusion about mental competence. That is my opinion.
Little Caylee Anthony was murdered by the mother to whom God and human society entrusted her well being. That is very much my opinion.
And an armed adult murdered a teenager in Sanford Florida in the belief that he was doing society a favor.
I find unconvincing each of the variations of the defense story. I do not find it plausible that a youngster with no history of violence circled around to ambush a larger man who gave the appearance of stalking him. Details detract from the already slim likelihood of the narrative. Trayvon launched his ambush without first setting aside his candy and soda? He attacked this stranger while shouting "You're going to die tonight"? Really?
I find impossible the notion that the teenager spotted a weapon that was still holstered behind the larger man.
I do not see any way that a man quite used to patrolling the alleys and hidden pathways of his little complex needed to step away from his vehicle to read one of only three street signs in the community, because he had become unfamiliar with the area he had patrolled at night for half a year.
What does strike me as likely is that an adult vigilante, angry with each passing day that young black intruders, "punks," seemed to "always get away," decided on independent action. Unlike the teenaged victim, the armed adult did have a history of violent behavior.
I find it more plausible that he drew his weapon as he approached and that he did so with deadly intent. This was one perpetrator who would not get away.
I find it quite believable that the man was surprised at the ferocity with which the kid fought for his life, fought in self-defense once he saw the gun.
The story as presented by the killer makes sense only in context of what he knew at the time and felt would be believable to the officers questioning him. The hooded figure he had targeted was a thug, a criminal, who could not have been there for any legitimate purpose, that the neighborhood intruder had gotten a form of street justice that an all too forgiving, politically correct, system of law was not prepared to render.
His story was consistent with that initial assumption. It did not fit at all the candy bearing young man the victim later turned out to have been.
I believe the verdict of the jury was partially correct on the facts. In my opinion, the man was not guilty of second degree murder or manslaughter. This was no spontaneous act. The neighborhood vigilante was motivated by a frustrated rage that had been building for a long time.
As I see it, this killing was premeditated, going beyond any charge that was contemplated.
Here is the point. I am glad that I live under a system in which the rule of law often prevails, a rule of law that prevents my belief from making it into the courtroom without evidence. In which the law holds that my opinion, in itself, is no evidence at all.
Had I been on the jury, I am sure, at least as sure as anyone who was not in the courtroom can be, that I would have voted against the second degree murder charge. I suspect I would have pressed for a manslaughter conviction. But I cannot be certain of that.
I am not happy with the injustice that is often intertwined with our system of justice. I find it hard to avoid anger at the losses of Nicole, Caylee, and now Trayvon: that they are without any voice, that there is no reckoning for their killings. In Florida, at least, the law needs to be tightened so as to prevent an affirmative defense with no burden at all on the defendant.
But I am even less happy at those who are just as obviously innocent and who are convicted. Ryan Ferguson, here in Missouri, comes to mind.
While I am sometimes angry at juries who let the guilty go free, I am stunned at those who favor continuing wrongful convictions, keeping the innocent in captivity. Missouri Attorney General Chris Koster comes to mind.
It is a legal Sophie's Choice, this balance of red hot injustice. I would rather have a few more Nicole Simpsons, Caylee Anthonys, and Trayvon Martins go unavenged, their gloating murderers celebrating with their lawyers, if it would free one or two of those who are so clearly innocent.
When it comes to those who are obviously guilty, I very much want to live in a nation of laws.
I want those laws to keep my angry opinions, and those like mine, out of court and away from any jury.
The McCarthy era is important to me beyond what I read in history books or see in old videos. There were little known acts of courage. I think of a young Methodist minister speaking out from the pulpit in a very rural, very conservative parish. The resulting storm of protest against that preacher, my father, did not make much of an impression on me. I was too young at the time.
Edward R. Murrow acted out a more prominent act of courage when he spoke out against Joe McCarthy in March of 1954. McCarthy was given time to respond. He attempted, as I understand it, to enlist a substitute to rebut Murrow. A youthful William F. Buckley, Jr had demolished over-confident faculty members in debate at Yale after he authored a critical book about the University. CBS and Murrow would have none of it. They were less interested in the evils of the Communist state as represented by the USSR, which was beyond dispute, than in McCarthy's abuse of the struggle against it.
McCarthy accepted and began with an expansion of his vital, critical role in fighting the evil threat, and how he had endured vicious attacks for his noble work:
Now, ordinarily--ordinarily--I would not take time out from the important work at hand to answer Murrow. However, in this case, I feel justified in doing so because Murrow is a symbol,a leader and the cleverest of the jackal pack which is always found at the throat of anyone who dares to expose individual Communists and traitors.
- Senator Joseph McCarthy (R-WI), April 6, 1954
Senator McCarthy went on to an attack of Murrow's background, including his sponsorship of international exchange student programs in the 1930s and his onetime membership in a labor union, the Wobblies, a popular nickname for the Industrial Workers of the World was called.
Every time I listen to that segment of the, I am struck by one segment early in Senator McCarthy's presentation.
Now, of course, neither Joe McCarthy nor Edward R. Murrow is of any great importance as individuals. We are only important in our relation to the great struggle to preserve our American liberties.
- Senator Joseph McCarthy (R-WI)
It seemed to me to be a defiant contradiction against a stereotype nurtured at the time by American media. America was supposed to be about the primacy of the individual. The Soviet state was supposed to be about the complete unimportance of the individual except as cog in state machinery.
American justice, as an ideal, should be about individuals. The guilt or innocence of an individual, how we judge an individual incident, should be about that individual and that case. Nothing else should matter.
Public issues should be about policy, and should be distinct from individual legal cases.
Of course, as a matter of practicality, there is an intersection between public interest and individual cases. This was common in Jim Crow days, as one murder case after another resulted in "not guilty" verdicts, in defiance of the facts of each case. The de facto public policy was made apparent. It was completely legal for white vigilantes to kill black people and those who might sympathize with black people.
Multiple instances of jury nullification in the old South made new Civil Rights laws a necessity.
In the Zimmerman acquittal, the injustice is easier to see than what went on in the minds of the jurors. Did they see something not apparent to most of us?
The great Ta-Nehisi Coates, writing for Atlantic Monthly, believes the public policy implications come from the negligence of law enforcement authorities in the hours, days, and weeks following the killing of Trayvon Martin.
... it's worth remembering that what caused a national outcry was not the possibility of George Zimmerman being found innocent, but that there would be no trial at all. This case was really unique because of what happend with the Sanford police. If you doubt this, ask yourself if you know the name "Jordan Davis." Then ask yourself how many protests and national media reports you've seen about him.
- Ta-Nehisi Coates, the Atlantic Monthly, July 14, 2013
Ta-Nehisi Coates believes the jury pretty much got it right. It's possible that the strange burden of proof in Florida makes that true.
Self defense in Florida law puts very little burden of plausibility on the defendant. It is an affirmative defense. In most states, that puts some burden on the defendant to show the defense has some plausibility. In Florida, the prosecution has to prove beyond a reasonable doubt, not only the facts of the case and the applicability of law, but also what is virtually impossible to prove in even the most egregious cases.
This case seems egregious. To believe the defense narrative, one must believe that a man who armed himself with a loaded gun got out of his vehicle to read a street sign and was then ambushed by a teenager who neglected to leave his skittles and soft drink behind. "You're going to die tonight" from a kid with no history of violence and, moments later, "You got me" reduce still further the believability of that story.
In most jurisdictions, the defense would have had to show some degree of likelihood that such a narrative was true.
When an affirmative defense is presented, putting the burden exclusively on the prosecution leads to obvious injustice. In other times and places, it has been because of confused or willful juries. That is what happened after the almost murder of Reginald Denny in California and the almost assassination of President Reagan in Washington.
In Florida, a close reading of the jury instructions and a brief review of case law seem to show a different standard. It seems as if, in the absence of witnesses, a deadly aggressor in Florida will go free if he is the only survivor.
In the Middle Ages, a similar standard of winner-takes-law was employed. A fight to the death was more fair back then. Rules were enforced. Guns were not to be brought to a skittles fight. The question is whether we want to go back to those times.
Back then it was called Trial by Combat.
And there is our public policy issue.
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Radical New Farm Bill - Robin Hood Inside Out (4:03) - Click for Podcast
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The House of Representatives has passed what has already become the most famous agricultural legislation in the last half century.
The cutting off of food for those struggling to get out of poverty is the primary point of contention.
The cobbling together of such programs as price stabilization for farmers with breakfast for little kids and emergency nutritional provisions for families in need was a constructive joining of interests. Those in need represent a weak legislative constituency. They are without a voice in the offices of law makers. Joining them to agricultural interests gave them a natural ally.
The result is palpable. In my lifetime, death by starvation went from a measurable social problem to a point near vanishing.
Latent Republican hostility toward those surviving in poverty became manifest. Compassionate conservatism is a phrase not heard in a while. War on poverty became an overt war on the poor.
One Republican, during debate, referred to emergency food for families and breakfast programs for children as "some extraneous provisions" that ought to be segregated from consideration for agribusiness.
Representative Rosa DeLauro (D-CN) responded on behalf of food recipients. "These people are not extraneous."
Segregating programs to feed people was not the only accomplishment of conservative Republicans in the House of Representatives.
Even after eliminating all food programs, the final House bill was actually larger than the farm bill passed by the Senate. House Republicans added additional provisions to push more money to huge agricultural businesses. The outlay was expanded to 195.6 billion dollars.
Farm Bills last for 5 years. They have to be renewed. The next renewal date was set for 2018. You know, five years from now?
Feeding of those in poverty was not the only part that was eliminated. The expiration date was also cut out of the bill. The Christmas tree for big business was made permanent, everlasting, eternal.
Only after passage was the public informed that all the additional pork was locked in. Forever. Sugar subsidies, the new "shallow loss" provision that guarantees agribusiness will never suffer substantial losses, and a host of other programs for agricultural industries are now to be made permanent.
One addition that was proposed was heartening. Members of Congress would be prohibited from personally benefiting from all the additions to the bill. None of those billions in additional payments would go directly to any member of Congress.
That amendment was voted down.
In Response to John Myste's Catholic Core Argument on Obamacare Not Irrational
I merely object to the notion that A. The Catholic argument against this is completely irrational, as if it were pointless and merit-less, and B. the arguments in rebuttal to the Catholic argument should essential dismiss the catholic argument as irrational. I responded to this thread, but my response is not specific to it. It is more an overall reaction to arguments I see everywhere.
The idea of freedom of religion coexisting with secular law is in conflict. You cannot serve two masters.
The Catholic objection is not tantamount to denying a religion freedom to sacrifice your first born to Moloch.
- John Myste, July 8, 2013
The terms that I used were "inconsistent", "mystical", and "paranoid".
Here's just one inconsistent aspect in this case: allowing exceptions for Catholics on the matter of contraception and abortion because of their religious beliefs, but not allowing exceptions for various other groups who do not want to be forced to act against their beliefs. We do not need to use extreme examples like sacrifices to Moloch to make the case against T. Paine's position here. We can simply point out that we are all taxed and that most or all of us object to something that our government does with that money, either on religious or moral grounds. Secular law and freedom of religion as T. Paine understands it are incompatible, as you admit.
The mystical aspect in this case: T. Paine's claims that abortion is murder (and thus is wrong and should be illegal) according to God and natural law. He has failed to prove both
- that his god exists and has this position and
- that natural law is a legitimate concept and supports his position.
These are faith-based claims, even though T. Paine likes to say that science is on his side.
My claims are not faith-based, since I merely present my own concept of personhood and argue for its relevance, recognizing that not everyone values particular qualities of life precisely as I do. I do not assert that "personhood" is a purely factual concept pre-defined by God or natural law, such that we must all recognize the zygote as a person and defend it accordingly. Unlike T. Paine, I do not raise my beliefs on this matter up to the level of absolute, cosmic truth.
Were I a Catholic, and had I had this point brought up to me, I would consider it a troublesome issue, much akin to a dilemma faced by a soldier obeying orders in Nazi Germany.
I understand that, but it is not a problem that can be eliminated. There will always be someone who believes that the government is forcing him to do something immoral. Making an exception for someone simply because he fervently disagrees with the law is bad policy that flirts with anarchy. Claims need to be backed by convincing evidence.
One last point:
T. Paine and others like him would have us believe that they care far more about what God wants than what the public or the law wants. They will fight to the end to protect their beliefs and freedoms! Yet we can expect that very few of them will end up being fined or imprisoned for breaking secular law to serve God. It is very revealing that these people, who believe both that legalized abortion is legalized mass murder and that it is a significant transgression against God, tend to do nothing more than vote for and fund Republicans.
If they don't care as much about their beliefs or deity as they would have us believe, then I certainly can't take them seriously enough to consider making an exception for them.
In addition to his thoughtful contributions here, Ryan also writes for his own site, devoted to the logical examination of political, religious, and social arguments. Please visit Secular Ethics.
The text you quoted concerned my overall experience with debating T. Paine, not with any specific argument that he was making at the time. However, the mystical claims do show up in most cases.
You can make counter arguments; explain why this is OK to you, and why it has precedent in our history. None of these points do anything to solve the problem presented: business owners believe they are being forced to finance murder.
And others resent being forced through taxes to finance a murderous military. We can't eliminate the resentment, but we can dismiss legal arguments on the basis of precedent, as you said. T. Paine never did explain how making exceptions for his religious beliefs is fine while making exceptions for others is not, so he failed to defend his side.
What do you want from us, exactly? Silence?
Ryan, July 4, 2013
I agree with you that the law should not be changed to accommodate Catholicism. I would not care for that. For me, God's law will always be trumped by secular law, and must be, until we agree on one and only one God.
I merely object to the notion that the A. The Catholic argument against this is completely irrational, as if it were pointless and merit-less, and B. the arguments in rebuttal to the Catholic argument should essential dismiss the catholic argument as irrational. I responded to this thread, but my response is not specific to it. It is more an overall reaction to arguments I see everywhere.
Were I a Catholic, and had I had this point brought up to me, I would consider it a troublesome issue, much akin to a dilemma faced by a soldier obeying orders in Nazi Germany.
The idea of freedom of religion coexisting with secular law is in conflict. You cannot serve two masters.
The Catholic objection is not tantamount to denying a religion freedom to sacrifice your first born to Moloch.
The question of what a human is and why that matters is a difficult one and different people have different answers, and I daresay, they are mostly faith-based, whether the “answer” is supplied by an atheist or a priest or a withered sage on his way to sainthood.
I believe the Catholic objection was politicized and is used primarily as an attempt to win the argument against Obama Care. I also believe it has merit and brings up a troublesome predicament for our democratic, religion-tolerant, political design. Again, if someone “knows” that abortion, at any stage, is murder, then I can see how they would object to supplying insurance to pay for it, or to supplying their employees with insurance to pay for murder. They could construe this as insuring that their employees have the ability to murder babies as needed.
Again, I don’t think the argument should change the law, and I am quite certain there are plenty of other precedents prior to the introduction of Obama Care in existence. Neither of these facts make the Catholic core argument irrational.
John Myste's contributions to debate at Fair And UNbalanced are limited by an intense schedule. We are grateful for his generosity.
Ryan is also a valued contributor. His thoughtful reactions are a concise reflection of his own site. Please visit Secular Ethics.
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...it just didn’t occur to white school administrators that treating black students “equally” by requiring them to swim every day for weeks in the winter in Chicago in P.E. class would present all kinds of hair and skin problems for the black students (my mother for example).
Much of the discussion focuses on whether the notion of White Privilege is offensive, or ought to be, to conservatives. The post attempts to separate malicious intent from systematic effect. An ostensible equal requirement may not always reflect equal treatment.
We can find dozens of examples in everyday life that have nothing to do with race. Occasionally, one generous member or another of my workplace will bring in donuts or brownies or cake. Everyone shares. Equal treatment, right?
Except some folks cannot participate. Diabetics and a few others are wise to enjoy the treats vicariously through others. It's a sacrifice, a nod toward health. A gift of milk and cookies will not be equal to those who are lactose intolerant.
Such inequities are received in good natured acknowledgement. They are part of adult life.
It gets a little more serious when job interviews are not offered to those whose names on resumes have "ethic" names, or when cabs do not stop, or streets are not quite as maintained.
When photo identification is demanded of voters, the lack of equality between those who routinely have such ID's in the form of drivers' licenses and those who ride buses to work may not be apparent to most citizens. After all, doesn't everyone have a license? It does occur to those politicians who benefit from keeping opposing voters away on election day. The laws have every appearance of neutrality but they make for an unequal society.
One argument against the term "marriage equality" or even marriage equality itself is that equality has already been applied. Any adult can get married. The restriction that it must be to someone of the opposite gender applies equally to all.
This does not not always seem intended as snide commentary. Some conservatives are convinced they are embracing true equality by applying the same restriction to all.
La majestueuse égalité des lois, qui interdit au riche comme au pauvre de coucher sous les ponts, de mendier dans les rues et de voler du pain.
The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.
- Anatole France, 1894
All things considered, I don't mind giving up donuts.
I would get a little irritated if some politician made it illegal for me to marry the one I love or made it harder for me to vote.
All to be equally applied, of course.
When the Supreme Court declared Section 4 of the Voting Rights Act unconstitutional, a key part of their reasoning involved a relatively new doctrine called "sovereign equality."
Section 4 required that regions of the country in which pervasive discrimination in voting rights had occurred in recent history refrain from efforts to keep certain racial groups from voting. In fact, they had to submit any changes in requirements to the United States Department of Justice, just in case. If the changes would make it harder for some segments of the population to vote, the changes would be invalid.
History is change. Change will keep happening until history ends. Attitudes are part of that change. At the time the Voting Rights Act was made law, Congress included a provision that allowed a state or locality to remove the pre-clearance requirement over time. If a clean record on voting rights was maintained for ten years, the requirement would vanish.
The Court now makes clear it doesn't care for that pre-clearance. Treating states unequally violates the Constitutional principle of "Equal Sovereignty."
The notion of equal sovereignty is well established in international law. Little Monaco with its 32,000 citizens and .7 square mile land mass is the equal in law of China's 7 billion people living on 7 million square miles.
The root of Sovereign Equality of states was planted by Chief Justice John Roberts back in 2009.
The doctrine of Sovereign Equality was introduced by the Chief Justice in Northwest Austin vs Holder. It was a new principle. Roberts put it in as a sort of aside. Nobody paid much attention to it. The issue in that case was whether a little municipality could apply for the 10 year bailout because it had no history of discrimination in voting registration. They wanted to make minor changes in such things as voting location without pre-clearance.
Sure enough, they had no history of messing around with people who wanted to register to vote. That was because the municipality never registered anyone to vote. That was handled by other levels of government. So the court said okay. You can have your changes without getting an okay from the Justice Department, and ruled against the Feds. Leave the little city alone.
Everybody yawned a little, rubbed the over-glaze from their weary eyes and went home for a nap. Nobody noticed Chief Justice Roberts sneaking in a little praise for the founders. You see, the Voting Rights Act, said Roberts did a lot of good. But it violated the constitution in that case because there was not sufficient cause to violate Equal Sovereignty, which has always been so very important to those who established a new Republic on our continent. In fact, it was an organizing principle.
Justice Roberts cited an obscure decision from a hundred years before that dealt with admission of new states.
Indeed, "the constitutional equality of the States is essential to the harmonious operation of the scheme upon which the Republic was organized."
He did mention the Fifteenth Amendment to the Constitution. That's the one that says violations of voting rights based on race are illegal. He did agree that even indirect changes that, on the surface, were race neutral but were designed to discourage minority voting were covered under the amendment. And he agreed that Section 2 of that amendment was pretty clear in giving Congress authority to act.
But he dismissed the first hundred years after the Fifteenth Amendment as unworthy of consideration.
The first century of congressional enforcement of the Amendment, however, can only be regarded as a failure. Early enforcement Acts were inconsistently applied and repealed with the rise of Jim Crow.
He's got that right. The Freedmen's Bureaus, set up by Congress right after the Civil War to protect newly freed slaves, only lasted unto the 1870s. After that, white folks kind of lost interest. Why punish the South by forcing them to respect black rights?
It seems kind of criminal now, but in those days the why-can't-we-all-just-get-along applied to post-war regions, not individual people. So the individual people were often used to decorate tree limbs, but regional rights were respected. You see, life is filled with little trade-offs.
But in the Austin case in 2009, nobody got upset. The words by Roberts were just an independent concurrence. Nothing to get worked up about. The case was decided on the basis of more recent history and the lack of ability to establish a clean record.
That was in 2009.
In 2013 Robert's little history lesson was transformed into the law of the land. The Austin case, along with the provable need argument, combined into a precedent for the pre-clearance part of the Voting Rights case. The provable need couldn't be met because, Roberts said, the sections of the country that were required to clear changes in advance had a better record than those parts of the country that didn't.
If it seems like that last part is a walking writ of contradiction, it is. Crime is going down, so we can get rid of police officers. Terrorists haven't struck since Boston, so we can disband the military. The inside of my car is pretty dry during a rainstorm, so I don't really need a windshield. You can use the same reasoning to get rid of the roof on your house. Justice Ruth Bader Ginsburg spoke of umbrellas.
Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.
In less than a week after the voting rights decision, Texas announced restrictive voting laws that would affect mostly Hispanics, changes in districts to reduce the number of representative minorities could elect, and reductions in the times and places of voting. Republican lawmakers in North Carolina announced they would impose a new voter ID law that would affect those who do not drive, increase times to wait in line by eliminating early voting, and outlaw same day registration. Similar fast action was begun in Florida, Georgia, and Mississippi.
Life without the Ginsburg umbrella looks to become very wet for non-white citizens trying to re-register and then vote.
The doctrine of Sovereign Equality is the newest part of Supreme Court law. It is a novel twist for a court that upholds original intent as a confining principle. An Amendment is acknowledged by everyone but Tea Party folk to supersede Constitutional provisions. Amendments become the constitution.
And the original intent of the framers of the Fifteenth Amendment was pretty clear. The failure of Reconstruction after the Civil War, the loss of white interest in black civil rights, the lynchings, the hundred years of literacy tests, poll taxes, and mysterious disappearances, don't erase that intent.
The first action regarding the South by the same lawmakers who passed the Fifteenth Amendment was to establish those Freedmen's Bureaus and impose civil rights for newly freed on those same not-so-sovereign unequally treated states.
Those who drafted and passed that Amendment may be credited by some, even by members of the Federalist Society, with knowing what they had in mind. Sovereign Equality? Never heard of it.
We can offer our posthumous pity to those who drafted the Voting Rights Amendment in 1870. Like Shakespeare's drowning Ophelia, "incapable of her own distress," the lawmakers mistakenly thought they knew what they themselves intended.
The Roberts Court was not there to explain it to them.
Coverage of the Trayvon Martin murder case is profoundly discouraging. Even a story that is deadly serious in a literal sense is treated with surprising superficiality.
A teenager, not an eyewitness, exactly, but a witness by cellphone, has testified. The young lady was dragged into court as an involuntary witness, and subjected to ridicule.
Her demeanor, her weight, her diction, and the educational level of her testimony have been given dominance over that testimony. With few exceptions, the reluctant witness has been treated with the same sort of examination as would a self-promoting would-be celebrity. Like a faltering beauty contestant stammering helplessly about geography and maps, she is dissected. Personally. The question of the day is whether she qualifies as a candidate for fame.
In fairness, there have been exceptions. Andrew Sullivan is one who has been interested in the facts of the case. Such exceptions have been too few.
Florida law is a bit of a mess on self-defense. You wouldn't know it from news coverage. The burden of proof is misstated as a routine by legal experts on national television. Those who get it right, get it right by correctly parsing words in a way that will escape most of us.
Self-defense is what is known as an affirmative defense. An affirmative defense is different from the simple application of law to provable facts. In most cases, the law is the law, and facts are either proven beyond a reasonable doubt or they are not. An affirmative defense is one in which the burden shifts.
If I shoot a neighbor, then claim I was criminally insane, I must demonstrate a plausible case that I was, in fact, insane. It is not up to the prosecution to demonstrate beyond a reasonable doubt that I was not insane.
If I claim that I was miles away on a deserted street corner, making it impossible to have committed the crime, despite a mountain of evidence, the prosecution does not have to prove a negative: that I was not in a certain place.
If I claim self-defense, that I was in reasonable fear for my life, the prosecution does not have to prove that I was not in such fear, which is to say the prosecution does not need to prove beyond all doubt that I did not kill in self defense.
These are, to varying degrees, affirmative defenses. I do not have to prove beyond a reasonable doubt that I was on a distant street corner, or that I was out of my mind, or that the victim was actually a perpetrator. But I do have to prove that it is reaonably plausible. I have to make a prima facie case, a superficial case, that my claim is plausible and believable.
Just what the standards of proof might be do vary from state to state. But an affirmative defense puts the burden on the defendant to show the claim holds water.
This is nearly untrue in Florida, an oddity that media outlets seem reluctant to expose as the danger that it is.
Thus, when CNN features as a legal analyst a defense attorney who insists otherwise, CNN has some obligation to refute their own expert. Consider Richard Herman, a well known criminal defense attorney, as he explains to a national audience that the case against George Zimmerman ought to be dismissed right away.
The evidence they've reduced the trial is insufficient to support a second degree murder case. They don't have it and they have the ultimate burden of proof here to prove beyond a reasonable doubt that there was no self-defense. They haven't done that either.
- Richard Herman, June 29, 2013, on CNN
The only rebuttal by two other guests is that the evidence kind of ought to be considered by a jury. Don't-cha think?
This is not the only case of legal experts proposing a legal standard that hands an instant acquittal in egregious cases. And CNN is not the only news network repeating this inadequate non-explanation.
Occasionally, we do get a correct technicality as an obscure verbal reference. "Well, the prosecution of course has the burden of proof in this case beyond a reasonable doubt and also has the burden to rebut self defense." Some alert listener might realize that there is an unexplained duality of prosecutorial burdens, but I wouldn't bet my shoes on it.
The actual burden on the defense is weaker in Florida than it might be elsewhere. It is not only the Stand Your Ground law, which defendant Zimmerman declined to pursue as a defense. It is the interpretation by Florida courts that makes the claim of self-defense kind of easy to substantiate. A series of Florida courts have issued rulings:
...holding that law does not require defendant to prove self-defense to any standard measuring assurance of truth, exigency, near certainty, or even mere probability; defendant's only burden is to offer facts from which his resort to force could have been reasonable...
The rules of evidence, in essence, allow random thugs to seek out confrontations on the expectation that an attacker, being the only survivor, will also be the only witness. Self defense does become easy to maintain in Florida if such an attack happens in an obscure enough place - - say a public walking area late at night.
As with Senate filibusters, mainstream journalists report odd manipulation of ill-considered rules as if they are routine occurrences.
The lightly reported scandal is that Florida has gone back to the trial by combat of medieval times. According standards mandated by Florida courts, Zimmerman will possibly get off simply by virtue of being the only participant in that attack surviving to become a witness. Had Martin survived and Zimmerman lay dead, having threatened with a firearm and lost it in the ensuing struggle, Martin would have been able to demonstrate self defense, struggling with the larger adult to keep from getting shot.
But Martin lacked foresight. He did not realize he was bringing a bag of skittles to a gun fight.
I did not believe that as a member of that body that I should allow someone to make comments such as he was preparing to make that ultimately were just open rebellion against what the word of God has said, what God has said, and just open rebellion against God's law.
- State Senator Daryl Metcalfe (R-PA), June 27, 2013
When the anti-gay Defense of Marriage Act was struck down by the Supreme Court, it was about as sensible as a strict constructionist could get. The Full Faith and Credit clause of the United States Constitution is pretty specific about the obligation of states to respect "public acts, records, and judicial proceedings of every other state."
The court could have made a distinction between respect by the respective states and respect by the United States on a federal level. The tangled web that might have involved would have been like a fantastic Sudoku puzzle. In fact, one seemingly bemused Justice asked during oral arguments why Congress didn't simply rewrite all federal statutes dealing with married couples, turning them into mere contractual relationships with the added specification of opposite genders.
So, for a moment, the issue became the unwillingness of the judicial branch to take on the massive mountain of homework to be generated by a spirit of anti-gay meanness.
Whatever the reason behind the reason, the same Court that ignored Section 2 of the Fifteenth Amendment, overruling Congress on voting rights, embraced Article IV of the Constitution and told Congress to specify its own backward values.
It was a cause of celebration, and Democrat Brian Sims, an openly gay member of the Pennsylvania legislature rose to speak in celebration of the ruling. He was told to sit down and shut up. His remarks to the legislature would be in rebellion against God's laws. Two other Democrats rose to defend Representative Sims. They were silenced as well.
The news hit web sites about as fast as electricity could carry the news. Talking Points memo headline the story: Point of Cosmic Order, Mr Speaker. It was a kind of medieval standard by a state legislature.
Except it was a little different than headlines might have indicated.
In fact, it was not a medieval standard. It was a medieval procedure, the sort that endangers the Republic on a federal level as well.
The sort of freedom of speech under which Representative Sims attempted to speak required unanimous consent. A small group of Republican legislators objected. That's all we know. The number is secret. It could have been just one.
It is hard to ascribe this to the Republican Party, except in the John Stuart Mill sense. Not all Republicans acted to silence their colleague for speaking "in rebellion against God's law." But all those who did were all Republicans.
In fact, Sims reports that several Republicans approached him to apologize and to express solidarity with his right to speak. WHYY reports, "Sims said that he will remember the moment, not for being silenced, but for the support offered from his colleagues in the Legislature."
The real obstacle to progress is an antiquated rule that allows just one member of a legislative body to silence another lawmaker. It just takes one.
This weakest-link procedural structure haunts the United States Senate as well. The filibuster rule allows a 41 vote minority to block any action contemplated by the majority. Other rules allow just one Senator to block some decisions from ever coming to a vote.
When such actions are infrequent, occurring in extraordinary circumstances, it can be viewed as a brake on a temporary majority willfully violating important principles. This is what most of us see in the actions of Texas legislator Wendy Davis or in the fictional actions of Jimmy Stewart in "Mr. Smith Goes to Washington."
But the current Senate practice includes blocking even routine legislation, or holding hostage the credit of the United States, blocking the paying of bills and paychecks until absurd demands are addressed.
Current prevailing standards of journalism seem to prevent most references to filibusters, or even to the fact that a determined minority can undermine a clear majority. Headlines of "Senate fails to act" allow the actions of an irresponsible few to be ascribed to an entire body.
Reform is not to be accomplished by unfairly blaming Republicans in Pennsylvania, or by justifiably blaming Republicans in Washington, DC. Rules need to be changed.
The problem is not the weakest link.
It is the chain that makes democracy hostage to the weakest link.
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