Friday, September 21, 2007

Another Milestone!

Visit number 200,000 came today, and here is some information on the lucky fellow:
Domain Name ? (Commercial)
IP Address 195.93.21.# (America Online)
ISP America Online

Continent : Europe
Country : United Kingdom (Facts)
Lat/Long : 54, -2 (Map)
Language English (U.K.)

Operating System Microsoft WinXP
Browser Internet Explorer 6.0
Mozilla/4.0 (compatible; MSIE 6.0; AOL 9.0; Windows NT 5.1; SV1; .NET CLR 1.1.4322)
Javascript version 1.3

Resolution : 1280 x 800
Color Depth : 32 bits

Time of Visit Sep 21 2007 7:26:26 pm
Last Page View Sep 21 2007 7:26:26 pm
Visit Length 0 seconds
Page Views 1
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Search Words history of solam
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Visitor's Time Sep 22 2007 1:26:26 am
Visit Number 200,000

Of course, I didn't start measuring until I was quite a ways into my blogging career. Nonetheless, it's a time to celebrate! Thanks for all of my wonderful patrons: friends, virtual friends, family, passer-bys, even (as this fellow was) Brits.

To a swift 200,000 more!

Corrupt CREW

Citizens for Ethics and Responsibility in Washington has got its latest list of corrupt pols up. Republicans continue to maintain their strong advantage, up 18-4 (and sweeping the Senate category!). Via LGM's "D", whose depressed to see his entire Congressional Delegation (House and Senate) made the list. Way to go, Alaska!
Members of the Senate:
Sen. Pete V. Domenici (R-NM)
Sen. Mitch McConnell (R-KY)
Sen. Lisa Murkowski (R-AK)
Sen. Ted Stevens (R-AK)

Members of House:
Rep. Ken Calvert (R-CA)
Rep. John T. Doolittle (R-CA)
Rep. Tom Feeney (R-FL)
Rep. Doc Hastings (R-WA)
Rep. Duncan Hunter (R-CA)
Rep. William J. Jefferson (D-LA)
Rep. Jerry Lewis (R-CA)
Rep. Gary G. Miller (R-CA)
Rep. Alan B. Mollohan (D-WV)
Rep. Timothy F. Murphy (R-PA)
Rep. John P. Murtha (D-PA)
Rep. Steve Pearce (R-NM)
Rep. Rick Renzi (R-AZ)
Rep. Harold Rogers (R-KY)
Rep. David Scott (D-GA)
Rep. Don Young (R-AK)
Rep. Jerry Weller (R-IL)
Rep. Heather A. Wilson (R-NM)

Of these, I've seen sharks (legal or political) circling around Sens. Stevens, McConnell, and Domenici, and Reps. Calvert, Doolittle, Hunter (though he's still happily running for President), Jefferson, Lewis, Mollohan, Murtha, Renzi, and Young.

Thursday, September 20, 2007

Alien Love

Sexy, sexy Fred Thompson.

See also Garance, Michelle Cottle, and Gail Collins. And of course all-time classic Belle Waring:
First of all, are women voters, taken as a whole, really so much like retarded kittens in our motivations? And secondly, doesn’t Fred Thompson pretty much look like a basset hound who’s just taken a really satisfying shit in your hall closet? Finally, even if we restrict our field of play to Republicans who have played prosecutors in the later seasons of Law and Order, I would much, much rather have sex with Angie Harmon, even though I’m not gay.

Indeed, oddly enough, it appears the only people really buying into the "Fred Thompson is uber-sex-man" meme are....heterosexual men. Take that for what you will.

Shame Squad

The Senate just voted 75-25 to condemn the infamous MoveOn "General Betray Us" ad which, of course, is the most important issue facing our country today and thus far more worthy of cloture than, say, restoring Habeas. I do agree that the "Betray Us" ad was in poor taste. But what about supporting all the troops, rather than just the ones willing to serve as water carriers for the Bush administration?

Well, those troops can apparently just suck it. Fresh off denying them much needed rest, Republicans voted en masse against a substitute amendment by Senator Boxer that would have condemned all political attacks against our nation's troops and veterans. "Betray Us", qualifies, as does the Swift-Boating of John Kerry and the smear of Ex-Sen. Max Cleland in 2002. Because Democrats couldn't overcome the 60-vote margin necessary, the resolution didn't pass.

The problem here isn't that Republicans have no shame. Few politicians possess an intrinsic sense of shame; they can only be shamed by outside forces (the media, the voters) willing to take them to task for outrageous conduct. And in contrast to Democrats, who are forced to undergo a renewed round of newspaper and television fire every time a MoveOn-type organization sneezes, Republicans know that they can be as cruel and mean-spirited to the troops as they want without ever seeing the media blink. Check the papers tomorrow, and let me know if you see a headline reading along the lines of "Republicans block vote condemning political attacks against troops." It'll never happen, and I have no idea why we've collectively agreed to set our expectations so low for one party but not the other.

Originalism: A Primer

Let's start off with an obvious caveat: This post is worthless. Talking about the fine points of various judicial theories -- critical, originalism, textualism, active liberty -- is mental masturbation for legal eagles such as myself who think they actually exert any power over the way people view law and legal outcomes as legitimate. In reality, the vast majority of folks view the propriety of a legal decision solely on the basis of its results. Most pro-choicers think Roe was good, most pro-lifers think Roe was bad. Even insofar as people do actively identify with a judicial theory, they pick it based on what they think will give them most of the results they want, most of the time. Originalism is no different. As Yale Law Professors Robert Post and Reva Siegel note:
Originalism rose to prominence in the Reagan era because, as Edwin Meese put it in an uncharacteristic moment of candor, it promised to remake the Court in a way that would halt the slide toward "the radical egalitarianism and expansive civil libertarianism of the Warren Court." Originalism was successful because it implicitly pledged to reconstitute the Court in ways that would entrench conservative values in matters of faith, family, race and property. Wherever the theory of originalism produces results that are inconsistent with this pledge, it is blithely ignored. Voters are not attracted to the discipline or jurisprudence of originalism; they are drawn instead to its capacity to reshape Supreme Court precedents into a "living constitution" for right-wing convictions.

This, to be clear, is true for how virtually everyone who doesn't have a J.D. (and a fair amount who do) comes into their legal position, regardless of what it is.

Nonetheless, some folk do at least purport to assign originalism some special interpretative value. Unfortunately, many of them seem to have but a weak grasp of what originalism actually entails. For one, they often blend "originalism" and "textualism", when the two are actually very different things and often radically opposed to each other. But in this post specifically, I'm going to try and deal with the fact that the unitary category "originalism" actually is splintered into at least three different interpretative approaches, ones that have some commonalities but have important differences as well. The three are "original intent", "original meaning", and "original understanding", and at the very least someone who claims to be an "originalist" needs to clarify which of the three schools they are an adherent to.

I. Original Intent

Original intent is probably what most lay people immediately think of when they hear "originalism", and I suspect it is the oldest of the three categories. However, my understanding is that it also has the fewest true adherents today. Original intent argues that a law, statute, or clause should be understood as doing what its drafters intended it to do. The 13th Amendment was meant to bar slavery, but its framers did not demonstrate any intention for it to bar segregation (as plaintiffs alleged in Plessy v. Ferguson). What could be difficult about that?

Well, lot's of things, actually. First of all, intention is often unclear: not every legislator announces why they are voting for a particular bill or amendment, and sometimes different legislators vote the same way on the same bill for radically different reasons. In this case, whose intention is controlling? Second, anyone who observes politics knows that a sizable portion of votes aren't cast based on "policy" grounds at all. Senator A may vote for a bill requiring hospitals to fund abortions for poor women because he genuinely believes that these women should have access to reproductive choice. Senator B may not agree with that, but he votes "aye" because he's worried about his re-election chances in his moderate, pro-choice district. Senators C and D don't care about the issue at all, but C just votes the party line and D wants to log-roll with A later. Sometimes, a whole bill can put up with the primary purpose and intent of simply embarrassing or harming the other party. The rejection of the Lofgren Amendment to the Unborn Victims of Violence Act indicates that this was a major function of that law. How does a Court interpret the "original intent" of a law when half or more of the legislators' intent had nothing to do with the policy at issue? Finally, occasionally a key legislator will vote for a law with intentions radically opposite those indicated by the text. Senator Howard Smith of Virginia, for example, inserted the clause in the 1964 Civil Rights Act that protects women as a "poison pill", he assumed that by adding it, he could pluck off enough Senators from the affirmative side to kill the bill. Needless to say, this didn't work, but it leaves us with the peculiar position of having a clause in the Civil Rights Act the "original intent" of which was to sabotage the bill.

For these reasons, most academic originalists have been abandoning "original intent" for one of the other two originalist approaches, which I'll outline below.

II. Original Meaning

Original meaning treats the terms in legal texts as terms of art -- that is, terms with specific and well-defined legal definitions that may not be obvious to a lay reader. For example, in 8th Amendment cases Justice Thomas has argued that, at the time of the framing, "unusual" did not simply refer to rare or uncommon punishments, as the term implies. Rather, it had a specific legal meaning from English Common Law. An "unusual" punishment was a punishment that was not previously spelled out in law: if execution methods on the books were hanging and the firing squad, a court couldn't sentence a convict to be drawn and quartered.

Original meaning is particularly useful, then, when a jurisdiction adopts a law or rule that has been in place in other locales for a long period of time, and thus has a surrounding body of precedents and history that can be drawn on to define the term. For example, several jurisdictions have passed Equal Rights Amendments. When, say, Maryland passed its version, it presumably "knew what it was getting into" because it had seen how other states had utilized their ERAs, and passed its own version with an eye to the meaning as expounded by other states. My reading of the Maryland Supreme Court's analysis of the Article 46 claim on the recent gay marriage decision is that the Court was engaging in original meaning jurisprudence as to the parameters of Maryland's Equal Rights Amendment (specifically, does the language as a term of art require discrimination to be "as a class"). Importantly, "original meaning" does not directly look to see how the action under question would have been treated at the time of the framing (in the gay marriage example, it's not concerned with whether gay marriage was considered to be protected by the ERA in 1975). Rather, it looks to understand the parameters of the legal principle at the time, but it can then apply the principle in whatever manner seems most apt.

Of course, many laws do not have such obvious analogues to the proceedings of foreign jurisdictions, and in these cases original meaning becomes fuzzier. OMers can attempt to look at the legislative history and political commentary surrounding the act, but this often significantly more inexact and fails to define terms as terms of art. In the Maryland case, for example, the majority conceded that the specific texts and history it could bring to bear on the issue were very scant, and it wove a few scattered newspaper accounts and some US Senate testimony, mixed with more contemporary precedent, to reach its decision.

III. Original Understanding

Finally, original understanding asks how a particular law, policy, or action would have been understood by the population at large to apply at the time of enactment. Would the population have understood the first amendment to protect obscenity in 1795? Would American's have seen school segregation as unconstitutional in the immediate aftermath of the 14th amendment (would they have thought that a proto-affirmative action program had to be barred?). In contrast to original meaning then, original understanding looks at the policy in question, rather than the legal principle surrounding it.

Original understanding probably gets closest to the prime virtue of the originalism movement, which is avoiding "nobody saw this coming" moments. But on the other hand, it can lead to results wildly at odds with the text it purportedly emanates from. The Alien & Sedition Act, for example, passed very soon after the ratification of the 1st Amendment, prohibits conduct that is unquestionably "speech" and well within the confines of the Amendment's protection. Original understanding also runs into problems in that it assumes the populace had a well-defined idea about how the clause would apply in every case -- and many cases are unexpected. I suspect that most cases that arise under most amendments deal with issues that most people didn't have an opinion pro or con on at the time of ratification. And finally, because it tends to look at the policy, rather than the legal text and principles themselves, it seems to stray the furthest from "classic" legal decision-making, which is supposed to abstract itself from the particular policy in question and instead apply generally applicable legal principles to resolve interpretative issues.

I've tried to sketch out the boundaries of the three major originalism schools, as I understand them, and how they differ from each other. Each of them has its own advantages, and, naturally, its own weaknesses, both of which I've laid out (in very abbreviated form). It goes without saying that I believe there are inherent weaknesses within the originalism project as a whole that affect all three schools: from the "there's no original evidence for originalism" gotcha, to the fact that people are fragmentary and don't understand the same texts in the same way (which is why we argue about these things in the first place), to the point that at least some portions of the constitution appear to be written precisely to be temporally variable (e.g., what's "necessary and proper" to carry out legislative functions, Art. I, Sec. 8 at one point in time may not be in another). And, to reiterate the point I made above and in my Madison's Tomb story, very few conservative adherents of originalism would continue to do so if originalism wasn't seen as legitimizing their preferred political ends.

Wednesday, September 19, 2007

A New Twist on "Acting White"

CNN's Political Ticker blog reports that the Rev. Jesse Jackson has accused Democratic Presidential candidate Barack Obama of "acting White" by not taking a more vocal stand on the Jena Six case. It's worth noting that Jackson says that he "does not recall" making such a statement, but I see no real reason to doubt the newspaper coverage.

My TMV co-blogger Angela Winters commented on the story, saying that epithets like "acting white" are simply "juvenile" and that Jackson is "assuming that any black public figure who doesn’t act in the way he thinks they should isn’t 'authentically black' because somehow he is the barometer of whatever 'authentically black' is."

All fair points, perhaps. But I think this particular iteration is an interesting twist on the "acting White" rhetorical saga that's worth noting in a bit more detail.

Generally, the phrase "acting White" has entered the public eye as a referent to Black youth seeking to tar their peers who excel academically. This, of course, is a bad thing, for it implies that authentic Blackness stands in opposition to intellectual pursuits. Thus, it is detrimental the construction of a positive, flourishing Black identity.

But Jackson's claim, as reported, is different. He's not arguing that Obama is "acting White" because he's too erudite. He's saying Obama is "acting White" because he's showing insufficient concern for social and racial justice. And as Angela says (and I agree), the Jena Six certainly is something that Presidential candidates should be speaking out on, because it is an appalling case of blatant injustice and Jim Crow railroading the likes of which should never be seen in contemporary America. Of course, as a White person, I'm not entirely thrilled that "lack of concern about racial justice" is considered to be a trait of my race. But I can't really deny that a strong segment of the White population does generally prefer to ignore these issues. And in any event, I can suck it up. But Jackson's definition of "authentic Blackness" is one that encompasses concern for justice, looking out for those who are still being oppressed in America's racial hierarchy, and not pulling the ladder up behind you once you've made it. Angela is perhaps right that Jackson doesn't really have the standing to issue such a decree. But would it really be such a bad thing for the Black community to construct its identity around these guidelines?

I definitely believe that a true Jew must show concern for the marginalized and the stranger even if our own position is secure ("for you were once strangers in a strange land"; the ethical relationship between Jews and strangers is one of the most repeated Biblical injunctions, appearing 35-40 times, far more often than the prohibition against killing). I construct the identity of "Jew" not solely in terms of biological properties or chanting certain words at certain times, but also a broader set of ethical and moral commitments which are every bit as integral to my Jewish personhood as are the more "traditional" ritualistic components. And in general, I have little real objection to constructing communal membership, at least in part, around certain shared ethical commitments that we can then press against our supposed compatriots ("press" not as physical coercion, but rather moral suasion). Indeed, so long as these principles are dynamic and open to analysis, debate, and critique, this strikes me as a better grounding for group membership than biological or ethnic essentialism. In any event, is it really that bad when the Black community expects/demands of its people that, regardless of power or position, they still remember their brothers and sisters who haven't yet made it, who are still (literally, in this case) in chains?

Even within this framework, I still think group identity should be constructed positively as who we are ("this is what it means to be Black") rather than who we're not ("not doing this makes you White"), because the latter denies the ability for intergroup commonalities and the capacity of people from all communities to learn and grow from each other. But that notwithstanding, I have trouble objecting to a vision of Blackness that incorporates social justice for all as part of its parameters. Certainly, its better than Blackness defined as opposing academic excellence. Perhaps we should try and nurture this thread, rather than stifle it at birth.

Hillarycare, Redux

Ezra Klein is right, this is a really good ad.

As was noted at the Plank, in Presidential politics simply being associated with an issue may be more important than whether or not that association turned out well, so Hillary turning the '94 debacle into experience credits may work out well for her.

Also, I really liked the closer: "If you're ready for change, she's ready to lead." Like many primaries, this one has been divided between the "change" narrative candidates (Obama, Edwards), folks who are more on the outside and presenting fresh faces, versus the "leadership" candidates (Clinton, Biden, Dodd), folks who have been around for awhile and can claim credit as experienced statesmen and women who get things done. The tag-line, of course, links the desire for change to the necessity for a leader: "If you want change, I'm the type of politician who can make it happen [not just talk about it]."

Romney The Outsider

I'm intrigued by this new ad he's putting out, where he chides Republicans for spending "like Democrats", ignoring border security, and having ethical standards that are "a punch line for Jay Leno."

How will it play? There are definitely a lot of Republicans disenchanted with their Party right now, but it does violate Reagan's 11th Commandment. Especially the last one could be trouble with the base, because while many conservatives are upset "from the right" on spending and immigration, I feel there is a much higher propensity to view the ethics charges as trumped-up fictions of the left-wing media ("DeLay is a martyr!").

Biggie Tenure

The Notorious B.I.G. gives advice on how to succeed as a starting academic (via Dumi).

Tuesday, September 18, 2007

Maryland Supreme Court Rejects Gay Marriage Challenge

The 4-3 opinion can be accessed here. It's long, so I only read the majority, not the dissent, so if the dissenters echoed my objections -- so much the better.

I've been blogging about gay marriage legal cases for a long time, and there is very little I can say about individual cases anymore, since a) gay rights plaintiffs are presenting roughly the same arguments, b) courts are, by and large rejecting them for roughly the same (bogus) reasons, and c) "I have long since stopped believing that (absent the political charge surrounding the issue) marriage discrimination presented even a moderately difficult question of law."

Nonetheless, there are a few bits of particular intrigue surrounding the Maryland opinion. The plaintiffs sued under two distinct portions of Maryland constitutional law. The first is Maryland's equal rights amendment, prohibiting discrimination on basis of sex (Article 46, "Equality of rights under the law shall not be abridged or denied because of sex."), and the second is Article 24 of Maryland's Declaration of Rights, which essentially mirrors the U.S. Constitution's 14th amendment equal protection/due process guarantees.

A bunch of commenters have chided me by arguing that the Maryland Court was merely interpreting the relevant Maryland clauses and precedents as they were literally written, not as I wish they had be written. Needless to say, I disagree, but more interestingly, the majority seems to disagree too. Right at the outset of their opinion, in discussing the Article 46 claim, the majority admits that plaintiffs "point to several Maryland precedents that, if viewed literally, appear to support the proposition that a statute receives strict scrutiny analysis under Article 46 if sex is at all a factor in determining whether certain individuals are entitled to the benefits provided by the particular legislative enactment under review" (slip op. at 10-11, emphasis added). Apparently, however, reading precedents literally is "beguiling" (10), and the majority engages in all manner of contortions to dodge out of the clear language of Article 46 and replace it with a more restrictive definition that only burdens the state when it subordinates men or women "as a class" (a term they rely on heavily but don't really explain). I offer the above language, not because I believe the courts can't take more incisive and critical views of precedent that are somewhat extra-textual, because I do, but rather to point out that in this case, the majority is admitting that it is taking the more winding, subjective, interventionist judicial road, and that taking the "conservative" literal reading of Maryland state precedents would almost certainly have given a victory for the plaintiffs. Tragically, this result did not cohere to what my conservative friends wished our constitution to mean, so they jettisoned it.

But, as I indicated, it would be hypocritical of me to say the a court can't examine the "context" of particular precedents to see if they truly are applicable to the case at hand, for I believe in expansive judicial powers and am not generally a strict textualist. So the question for me is whether the distinctions the court draws between its past precedents is persuasive or not. The argument that ERA language requires allowing same-sex marriage has been around for awhile, and it basically goes like this: "Jane marries Bob, legal. Will marries Bob, illegal. The only thing that changed is the sex of Party A, hence, the law is sex discrimination." But the majority argues that the ERA should only be understood to prohibit subordination of a sex "as a class." I gather that the claim they are trying to make is that since both men and women are hit by this sex-based burden equally, neither sex is being treated worse "as a class" and thus Article 46 does not apply. As I noted, this is not explicit or implicit within the language of Article 46, so they are forced to rely on readings of precedent.

Some of the cases they cite work well for their proposition, others, less so, but the one that really kills them (to the point where I think they're treating it disingenuously) is Giffin v. Crane, 351 Md. 133, 148, 716 A.2d 1029, 1037 (19 98) ("[S]ex is not, and can not be, a factor in the enjoyment or the determination of legal rights."). Giffin dealt with a ruling in a custody decision awarding custody to the mother of her two female daughters on the grounds that the young girls needed a female role model in their life (the court decided that both parents were qualified to have custody, and used sex as the determinative factor). Objectively, this is an precise example of a case where a sex-distinction was held to be invalid despite not being premised on subordination "as a class." Mothers were held to be presumptively better parents of daughters, and presumably a man would have been held to be presumptively better parents of sons. Neither one is being subordinated "as a class", like with gay marriage, the sex-based burden falls on both sexes equally and reciprocally (Even though men can't marry men, they can still marry women; even though women can't marry women, they can still marry men. Even though men are burdened from having custody over daughters, they have an advantage for sons; even though women are burdened from having custody over sons, they have an advantage for daughters). As the majority is defining it, there is no way to justify the Court's statement that "in its context," Giffin's rhetoric about sex discrimination is solely "related to distinctions drawn between men and women as classes." (slip. op at 27).

The second interesting development was in the Court's discussion of the Article 26 claims, and specifically whether the Court should apply strict, heightened, or rational basis scrutiny to gay plaintiffs. Though the Court seems to recognize that the plaintiffs have at least a plausible claim here, the Court ultimately holds that:
While there is a history of purposeful unequal treatment of gay and lesbian persons, and homosexual persons are subject to unique disabilities not truly indicative of their abilities to contribute to society, we shall not hold that gay and lesbian persons are so politically powerless that they constitute a suspect class. (55)

For some reason, the grammatical structure here, "we shall not hold that", strikes me as odd. It's not, "we can't" or "they aren't", rather, it seems to admit that this is purely an exercise of judicial discretion -- "While we could very easily hold that gays deserve heightened scrutiny due to the 'history of purposeful unequal treatment' and 'unique disabilities', we won't. Why? Because we're the BAMF's with the gavels, that's why, and we don't have to."

Anyway. Two years ago, I noted the Catch-22 law was placing gay Americans in, by placing way too much emphasis on "political power" as a determinative factor in whether or not to raise the level of scrutiny their cases should undergo. Historically, the only way minority groups could get judicial relief from discrimination was by displaying enough political clout to get them to pay attention. Jack Balkin explains:
In general, courts will protect minorities only after minorities have shown a fair degree of clout in the political process. If they are truly politically powerless, courts may not even recognize their grievances; and if they have just enough influence to get on the political radar screen, courts will usually dismiss their claims with a wave of the hand. Conversely, as a reform movement for minority rights gains prominence through political protest and legislative lobbying, courts will increasingly pay attention to minority rights and take their claims more seriously." [Jack Balkin, What Brown Teaches us about Constitutional Theory, 90 Va. L. Rev. 1531, 1552 (2004)]

However, while that's still true, today minorities are being squeezed from the other side -- if they start to flex any political muscle at all, this is used as proof positive that they no longer need judicial protection. As I wrote:
The problem is getting worse, not better. Because contemporary rhetoric from the far right equates even modest victories by gay rights activists (AKA "the homosexual lobby") as proof of their political potency, homosexuals have almost zero space to operate in modern law and politics. If they win, they will no longer be seen as needing protection from the Courts and will see their victories stripped away by a hostile legislature. If they lose, then they won't be seen as an important problem and the Court will just ignore them. Either way, homosexuals will remain in roughly the same position--mostly powerless, mostly ignored, and mostly reviled.

The Maryland Court's justification for denying either strict or heightened scrutiny fits this to a T and showcases the problem in all its cruelty (and ridiculousness).

The Court identifies three rough factors which may indicate that a group deserves some form of heightened scrutiny:
(1) whether the group of people disadvantaged by a statute display a readily recognizable, "obvious, immutable, or distinguishing characteristics . . ." that define the group as a “discrete and insular minorit[y];” (2) whether the impacted group is “saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process;” and (3) whether the class of people singled out is “subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities [to contribute meaningfully to society].”

Of these, you'll note that "political powerlessness" is but one factor of three, within one factor of three -- that is, it is one of three things that may convince the court that gays fall within one prong of heightened scrutiny analysis, of which there are two others which gays could also conceivably have claim to. Of these, the Court refused to rule on whether or not homosexuality was "immutable", thus kicking out prong one entirely. Prong three it essentially conceded to exist, which is good because its undeniably true. Prong two I think is true even without the "political powerlessness" portion (gays have been "saddled with ... disabilities" and "subjected to ... a history of purposeful unequal treatment"), and I think that gays are sufficiently politically disadvantaged so as to fall under that burden too. This is more than enough to establish at least heightened scrutiny, but the Court decided to let barely a sixth of the test (the political powerlessness test) swallow up the rest of the analysis whole-sale.

Perhaps mindful of its weak position, the Court simply starts rattling off precedents where gays were not accorded any sort of raised review. What's interesting is how these cases so perfectly demonstrate the catch-22 dynamic Balkin and I allude to. The early ones came when nobody cared about gay people at all (but, in theory, when their claim to heightened status should have been strongest, because they had absolutely zero political power or influence). Later, citations start appearing to cases like Romer and Lawrence, where the Court didn't raise scrutiny because it didn't need to to strike down the laws in question (they failed under rational basis). By now, we have a mountain of cases which for one reason or another don't raise scrutiny levels, so now we start to see courts refraining from doing it because of all the "precedent" and not wanting to be the one that jumps the gun, and Maryland joins this ranks. What's amazing is that nowhere in this array of cases does anyone give anything approaching a colorable reason as to why denying heightened scrutiny is appropriate. The precedents managed to pile on without what would seem to be an obvious and necessary step.

The other half of the paradox is that as political power grows, courts start withdrawing their protection. I don't doubt that at some level of political inclusion a group starts to need reduced judicial protection, but we're seeing it withdrawn way too soon. The Maryland Court cites the various pro-gay rights legislation that has been passed as evidence that they are doing a-okay in the political arena. Had this logic been applied to Blacks during the Loving case in 1967, there is no way strict scrutiny could have been applied, as no less than six "Civil Rights Acts" had been passed by Congress prior to that time. Courts were intelligent enough then to know that, this not withstanding, the massive history and continuance of anti-Black prejudice and discrimination was more than enough to justify strict scrutiny. To argue that Maryland's passage of an anti-discrimination act means they are now political equals, unhindered by massive residual societal prejudice, is unbelievably naive. More importantly, it provides a perverse disincentive to avoid advocating for one's rights, lest one get caught in a right-less netherworld -- too "powerful" for judicial protection, yet not powerful enough to garner true legislative equality. For gays, at the precise moment where they gained the visibility to exert some legal leverage on the courts, courts said that very visibility prevents them from intervening. This reasoning can only be described as mean-spirited.

So, to sum up, the Maryland case is not all that different from the anti-gay marriage decisions that came before it. But it does illustrate two interesting developments in the doctrine. The first is that the court essentially admitted here that were it to take a strict textualist view of Article 46 and its elaborating precedents (if they read it "literally"), the plaintiffs would have won. I look forward to all the folks who pride themselves on demanding constitutional decisions being about what the text says, not what they want it to say, thus condemning the court's manipulations. Second, the Court's reasoning behind the denial of heightened scrutiny has managed to proceed both with a) no legally legitimate reasoning behind it and b) has created a disincentive for minority groups to try and advocate for their own rights, trapping them in a cycle of marginalization. This is a dangerous development and one that needs further study.

Obama Releases His Tax Plan

Thru CNN, here it is. Highlights:

-Establish "five minute filings" for easy tax returns

-Nixing income taxes for the 7 million senior citizens making less than $50,000 a year

-Establishing a universal credit for homeowners who do not itemize their deductions

-Providing 150 million Americans with tax cuts of up to $1,000 to offset payroll taxes

-Repealing Bush's tax cuts on the wealthiest 1%

What do you think?

Monday, September 17, 2007

Wedding Celebration

Everybody congratulate Lauren, founder of Feministe, now blogging at Faux Real, because she's getting married today!

I also congratulate her on being a damn fine blogger, but that I can do any day.

Quote of the (Yester)day

As so often is the case, my quote of the day comes from quite some time ago. This one comes from a Chinese Newspaper (one year prior to the communist takeover) commenting on the application of segregationist law in Alabama:
We cannot help having some impressions of the United States which actually already leads half the world and which would like to continue to lead it. If the United States merely wants to 'dominate' the world, the atomic bomb and the U.S. dollar will be sufficient to achieve this purpose. However, the world cannot be 'dominated' for a long period of time. If the United States wants to 'lead' the world, it must have a kind of moral superiority in addition to military superiority.

Ta Kung Pao (Shanghai), May 1948 (quoted in Mary Dudziak, Cold War Civil Rights: Race and the Image of American Democracy (Princeton: Princeton UP 2000), 32).

Dudziak's book, incidentally, is quite good and a must-read for anyone who wants an accessible history for the way the moral atrocities of Jim Crow impacted America's crucial Cold War image as a beacon of democracy and hope.

The Trial of God

One of my favorite pieces of literature of all time is Elie Wiesel's play The Trial of God. It's very intense, very deep, very theologically challenging, and very, very, good.

Today, in a lighter vein, Nebraska State Senator Ernie Chambers has announced he is suing God, "seek[ing] a permanent injunction ordering God to cease certain harmful activities and the making of terroristic threats." Though the point is to make a statement about frivolous lawsuits, Chambers has gone ahead and filed the case.

I've always thought it would be a neat law review article to try and tease out the various procedural and substantive questions that might be raised by a "trial of God." More of a fun-piece than a tenure-piece, but you never know: even the perfect crime article saw its day in court.

Winging It

Although I have more than a passing interest in it, I haven't blogged too much about the UC-Irvine/Chemerinsky affair. Virtually everyone -- left, right, and center -- seems to be in agreement that a) Chemerinsky was treated really badly and b) this was a bone-headed, if not crippling, start for the new law school.

However, while even most conservatives have been reasonably united in their condemnation of UC-Irvine, some have been grumbling that had this been a conservative candidate being drummed out by liberals, nobody would make a peep. Texas Law Professor Brian Leiter takes on this resurrection of the classic "conservative victimization" argument today, and I think he's spot on:
From an objective perspective, one might have thought it relevant that from the actual McCarthy era to the present, those who have been fired from academic jobs in the U.S. do appear to be all on the left end of the political spectrum (though I hasten to add that L'Affaire Chemerinsky is far more mild than what happened during the McCarthy era, or what has happened more recently to Professor Finkelstein at DePaul--it tells us more about the venal politics of Orange County, and the spinelessness of the Irvine Admininstration, than it does about anything else).

Does anyone really doubt that if, say, a "Chemerinsky of the right"--a high-profile, conservative constitutional law scholar at a top, if not super elite, law school (say, Steven Calabresi at Northwestern or Eugene Volokh at UCLA)--were treated the same way as Professor Chemerinsky (offered a job, signed a contract, then had the offer rescinded because of political pressure from outside the university), that the reaction would not have been exactly the same? There is simply something creepy about the spectacle of anti-intellectual low lifes with power or money being able to undermine university appointments at the 11th hour, and it is that, more than anything else, to which I think everyone in the academy is reacting. (Here is a profile of one of those reported to be involved in torpedoing the Chemerinsky appointment. Who would want to be involved with a university where people like this can actually intimidate administrators?)

I doubt every academic firing that's been political charged has come from the left side of the spectrum, but the point is well-taken. The update Brian writes actually mentions the case that immediately came to my mind: the strong defense by many prominent liberal professors of then-Professor Michael McConnell when his nomination by President Bush to the 10th Circuit was being held up. McConnell is undeniably conservative (he was on President Bush's Supreme Court short-list), but is widely respected by liberals and when some of our interest groups tried to trip up his nomination, the academic community reacted in force and en masse.

UPDATE: Leiter reports that Chemerinsky has been rehired as the UC-Irvine law school dean, and has accepted.

Sunday, September 16, 2007

Lincoln Chafee Now an Independent

Former Republican Senator Lincoln Chafee of Rhode Island has left the GOP and is now a registered independent.

There isn't any major political angle to this. Chafee was the ultimate RINO, not even voting for President Bush in the 2004 elections. It was well known that he only was maintaining his GOP membership out of respect for his father, one of the great Rockefeller Republicans, and had he pulled a Jeffords at any time during his tenure in the Senate, he easily would have kept his seat. I don't think this is a precursor to a political comeback, either; while Chafee did not dislike being in the Senate, it never really was his passion, and I don't think he has any desire to engage in another tough war with current Senator Sheldon Whitehouse (who now has the advantage of incumbency in uber-blue RI).

Still, I thought it was interesting that he finally made the jump. I wonder what finally pushed him over the edge?