Happy 4th of July!

Our closest friend in Berkeley is coming to our apartment for the traditional meal of hot dogs (probably other things too, but I care only about the hot dogs). So no real blogging today. I will say that having independence -- autonomy, sovereignty, the freedom to choose one's path as a people -- is a great gift. The United States is hardly unique in purchasing that gift at the expense of considerable pain and death, but nonetheless that does remain an indelible fact of our history. On the other hand, that is not and should not be the only fact of history either. It's up to each generation to justify the charge, by making this nation into something great.

Quote of the Day: What's in a Name?

From Aldous Huxley's Eyeless in Gaza (1936):

"What's in a name?" Anthony went on. "The answer is, practically everything, if the name's a good one. Freedom's a marvelous name. That's why you're so anxious to make use of it. You think that, if you call imprisonment true freedom, people will be attracted to the prison. And the worst of it is you're quite right."

Quoted in Charles Leslie Stevenson, Persuasive Definitions, 47 Mind 331, 335 (1938).

Hijacking History

Shorter Sean Hannity:

There once was a time when the Confederate Flag stood for something honorable, like treason in defense of slavery. But now it's been hijacked by racist white supremacists! In conclusion, Black people are the real racists, because of rap.

The Trump Card

As many of you know, there are a lot of people running for President on the Republican side. So many, that the first GOP presidential debate will not be able to feature them all. Only the top 10 candidates -- as measured by a composite of several national polls -- will make it in. So who's looking like they'll make that elite list? According to a recent CNN poll, the top 10 are (in order):

1. Jeb Bush
2. Donald Trump
3. Mike Huckabee
4(t). Ben Carson
4(t). Rand Paul
6(6). Marco Rubio
6(t). Scott Walker
8. Rick Perry
9(t). Chris Christie
9(t). Ted Cruz
9(t). Rick Santorum

On the outside looking in (but still within striking distance of the bottom tier) are Carly Fiorina, Bobby Jindal, and John Kasich.

Personally, I just adore learning that Donald Trump has 4x the support of Ted Cruz. Live by the crazy sword, die by the crazy sword. And how humiliating must it be for Bobby Jindal that he can't make even make it onto the big stage but Ben Carson can?

Oh, it's going to be a fun primary, I can tell.

Obergefell Solidifies the Nascent Alliance Between Obama and the Boko Haram! I am not a Crank!

I stated a few days ago my belief that Obergefell will be a Lawrence and not a Roe. By that I mean that I believe Obergefell effectively signals the end of gay marriage being a significant site of social controversy in the United States -- we will see a few months of sputtered opposition (ranging in tone from "impotent fury" to "half-hearted identity performance"), and then it will just be accepted.

But we still have time to enjoy the death rattles. Check, for example, the Federalist's 15-point argument against gay marriage. There are a lot of lovely entries: Gay marriage leads to human trafficking, gay marriage leads to licensing parents, gay marriage "promises a monolithic society of conformity" (what?), but by far my favorite has to be lucky #13:

The United States is already punishing countries and threatening to cut off aid if they don’t accept the LGBT agenda. This is especially true of developing countries, in which the whole idea is foreign to over 95 percent of the population. According to a report by Rep. Steve Stockman, corroborated by a Pentagon official, the administration held back critical intelligence from Nigeria which would have aided in locating girls kidnapped by Boko Haram. The new National Security Strategy recently released by the White House makes clear that the LGBT agenda is a global agenda. And it looks a lot like cultural imperialism of the worst kind.

I hope we've all learned a valuable lesson about listening to Steve Stockman. Anyway, it's off to wave a Boko Haram ISIS dildo-covered flag at a pride parade!

Executions and Their Alternatives

This past March, I commented on the Eighth Circuit's en banc decision in Zink v. Lombardi, which rejected a challenge to Missouri's execution protocol. My particular focus was on a strange statement offered by the dissent which said that, if the death penalty is constitutional in the abstract, it follows that there must be some form of execution which is constitutional as well. This, to me, clearly did not hold -- it is perfectly plausible to say that while the Constitution has no objection to capital punishment as such, it still must be the case that any particular form of execution must satisfy the demands of the Eighth Amendment -- and perhaps none will do so.

Of course, leave it to the Supreme Court to take an obvious truth and turn it on its head. Today, in Glossip v. Gross, the Court rejected a constitutional challenge to Oklahoma's lethal injection procedure. In doing so, it made one fateful and indefensible holding: the Court decided that a prisoner cannot solely show that the method of execution is excruciatingly painful, barbarous, even tantamount to torture. He must show it is all of those things compared to a "known and available alternative method of execution." In other words, just like the Eighth Circuit, the Supreme Court declares that there must be a legal form of execution (not just in theory, but "known and available" to the executing state). And as a consequence, the baseline for "cruel and unusual punishment" rests against the characteristics of the next-best alternative. If, as it turns out, all the methods seem to be brutal and inhumane in their application -- well, the Supreme Court just legalized torture.

There is irony here. For all of Justice Scalia's bleating in King v. Burwell about how the Supreme Court "is prepared to do whatever it takes to uphold and assist its favorites," that complaint would be far more appropriate if leveled here. The whole reason this "known and available alternatives" argument was an issue was because social movement actors have made it exceptionally difficult for states to access most varieties of execution drugs. If social circumstances dictate that otherwise lawful executions can't be carried out in a fashion concordant with constitutional demands, that would seem to be that (I explored a far more ambitious version of this hypothetical in my "perfect poison" story). But of course, that didn't satisfy the author of the Glossip opinion -- who complained at oral argument that this would represent a capitulation to the death penalty opponents' "guerrilla war" against capital punishment. So the doctrine stands in all of its cruel and unadorned glory: executions must be allowed. If that means subjecting human beings to "the chemical equivalent of being burned at the stake,"* so be it.