Food in the United States is relatively cheap -- but it could be even cheaper. There are a wide range of federal policies that increase the price of various foods. Federal marketing orders for various agricultural products increase prices for milk various fruits. Restrictions on sugar imports dramatically increase the price of sugar, and therefore increase the demand for sugar beets and corn syrup. And so on.
The Washington Post reports, the federal government's love affair with corn-based ethanol is further increasing a wide range of food prices.
The nation's unquenchable thirst for gasoline -- and finding an alternative to what's been called our addiction to oil -- has produced an unintended consequence: The cost of the foods that fuel our bodies has jumped.
Beef prices are up. So are the costs of milk, cereal, eggs, chicken and pork.
And corn is getting the blame. President Bush's call for the nation to cure its addiction to oil stoked a growing demand for ethanol, which is mostly made from corn. Greater demand for corn has inflated prices from a historically stable $2 per bushel to about $4.
That means cattle ranchers have to pay more for animal feed that contains corn. Those costs are reflected in cattle prices, which have gone from about $82.50 per 100 pounds a year ago to $91.15 today.
The corn price increases flow like gravy down the food chain, to grocery stores and menus. The cost of rounded cubed steak at local Harris Teeters is up from $4.59 last year to $5.29 this year, according to TheGroceryGame.com, which tracks prices. The Palm restaurant chain recently raised prices as much as $2 for a New York strip. And so on.
"Anybody that knows anything about the marketing of corn knows that when you raise the price of corn you are going to create problems in all of the markets that use corn," said Ronald W. Cotterill, director of the Food Marketing Policy Center at the University of Connecticut.
There are significant negative environmental consequences of the artificially increased demand for corn-based ethanol as well, some of which have yet to receive much attention. For instance, as corn prices rise in response to the incrased demand for corn, farmers are becoming less willing to let fields lie fallow or enroll their lands in various conservation programs. Higher corn prices mean that the opportunity costs of such choices are higher than they were before. In parts of the country, this could have a significant negative effect on wildlife habitat, particularly for migratory birds. So, even if one makes the (dubious) assumption that there are significant environmental benefits from switching to corn-based ethanol, such as a potential reduction in certain emissions, there are significant environmental costs as well.
Yesterday the U.S. Court of Appeals for the Sixth Circuit issued an interesting divided opinion in Walls v. Konteh, a habeas case arising from a particularly interesting — and somewhat unique — set of facts connected to the events of September 11, 2001.
In September 2001, Lawrence Walls was on trial in an Ohio court for for various crimes. On September 11, as the horrific events in New York City and elsewhere began to unfold, the judge declared a mistrial, and rescheduled the case. Walls sought to dismiss the case on grounds that a new trial would constitute double jeopardy, but the judge rejected this motion and conducted a bench trial in November 2001. The court found Walls guilty on several counts and sentenced him to 11 years in prison. The decision was upheld on appeal.
The trial judge in this case testified that prior to declaring a mistrial, he was
concerned about the effect the breaking national news would have on the jury. The
judge noted the seriousness of the charges and testified he was worried the jurors
would not be able to devote their full attention to the evidence given the fact that the
country appeared to be under attack. He further testified that he considered the option
of instructing the jurors to return the next day. He testified he rejected the option
because, once again, he was worried about the jurors’ ability to concentrate and
because he did not know if the courthouse would be open the next day. Based on the
particular facts in this case as well as the foregoing testimony, we conclude that the
trial judge properly exercised his discretion in finding a manifest necessity for
declaration of a mistrial. Appellant’s sole assignment of error is found not
well-taken.
Walls filed a petition for a writ habeas corpus in federal district court. Here the judge concluded that the state court judge's sua sponte decision to declare a mistrial violated the defendant's constitutional right against double jeopardy. A majority of the reviewing panel of the U.S. Court of Appeals for the Sixth Circuit disagreed, however. Judge Norris, joined by Judge McKeague found that the "Ohio Court of Appeals’ affirmance of [the judge's] declaration of a mistrial under these circumstances, grounded as it was on a concern about jury bias, is neither contrary to, nor an unreasonable application of, clearly established federal law as defined by any
holding of the United States Supreme Court," and therefore no writ of habeas corpus was warranted. Judge Gilman dissented.
The majority opinion cites the proper
authorities and engages in the correct analysis, but I believe that it gives short shrift to one key fact that, if adequately factored in, would undermine much of its persuasiveness and lead to the opposite result. Specifically, the state trial judge possessed no knowledge concerning the potential effect of the September 11 attacks on the ability of the jurors to fulfill their civic duties in Walls’s case. Nor, of course, could he have possessed such knowledge; attacks like these had never before occurred on American soil. But the judge’s lack of familiarity with events that were totally extraneous to Walls’s trial distinguishes the present case from each of the cases cited . . . as examples of the deference usually accorded to a trial court’s evaluation of “possible juror bias.”
This article in today's Washington Post cracked me up. It is a story about all the bs answers that fathers make up when they don't know the answers to their kids questions while visiting museums and other tourist sites in DC. My favorite:
John Adami would probably know exactly what McLean means when she laments a museum's "intimidating mantle of authority." The Denton, Tex., dad was visiting Washington's museum row with his wife and five kids last week and had been fielding questions by the minute.
"It's a humbling experience," Adami said in front of the lunar landing display shortly after making a hash of explaining the Apollo programs. "It makes you question your intelligence after a while."
He turned slightly away from the family. "I've even been making up my own words," he said.
The story about the docent's hotline at the end is pretty funny too.
In honor of Father's Day, I invite all you dads out there to provide your best bs answers that you have given in response to one of your kid's questions like those in the story--but only if you got away with it.
Shooting the First Scene:
I am sitting at counsel table in the courtroom next to Marina Sirtis. They are now rehearsing the testimony of an expert witness. I am using my laptop as a prop so I will have it throughout the shoot and can blog as long as I have battery and something to say. They have blocked the first shot and, because it's facing the witness, I am not in it. So I am free to leave for the green room (such as it is), but they asked if I wanted to stay on set to answer any technical questions. Where should the bailiff stand? What would the writ look like? I reminded Marina that there was no jury in this hearing so she should not look at the jury box. Now that the crew and principals know I am here, they are starting to ask lots of questions, some of which have no correct answer ("How would the bailiff stand?"). This is definitely more fun than watching on a video monitor in the next room, or sitting around the cafeteria. I also get to watch the direction as well as see the actors, with each run-through, start to assume their roles on this, the first day they are playing these parts. But since this is a full courtroom set, it also just feels like sitting in a courtroom during a trial.
Update:Just had the camera on Marina and me for our reactions to the testimony--and one take just on me--so this was my first time on camera. Now we're on to the next witness. They seem to be varying the shot for each witness. First close up and now a very wide courtroom shot. Maybe we were waiting for the extras to show up. Now the courtroom really feels authentic with spectators and everything and no cameras in my view.
BTW most of the actors seem to want to talk politics.
Jim Gilmore's National Property Rights Initiative:
Virginia Governor Jim Gilmore, now running for the Republican nomination for President, has just announced as part of his campaign a "National Property Rights Initiative." In general, his program looks pretty interesting and sensible to me.
I've noticed that a few other candidates have also raised the issue of property rights as part of their campaigns, which is encouraging. I hope Gilmore's announcement will encourage heightened public engagement on this important issue going forward.
Casting Call for VC Readers:
James Runcorn is having a bit of trouble getting enough extras as background for the courtroom scenes. One benefit is that you will probably be seated while waiting for shots. You won't get paid, but you do get named in the end credits and IMDB credit. If you live in LA and want to head over to Sylmar TODAY (right away) or TOMORROW, email him at burbankexpress (at) aol.com. Today would obviously be very last minute, but tomorrow would work too. Drop him a line for the details.
7am Call:
Was here at 6:30 am for breakfast before the 7am call. Just a few crew members ate the breakfast, which was basic dorm food. Well. before dorms upgraded the food.
I am now in a conference room set off the courtroom that is serving as the green room waiting to be called to wardrobe and make up. There are no working outlets in this pretend conference center so I don't know if I will have enough laptop battery to blog all day. I hope to be able to do so from the set in between scenes. We'll see. We'll also see if there is enough interesting stuff to blog about.
Am shmoozing with Brandon Ford Green who's playing the court clerk. Finding out about how he got into the acting business. Earlier I was talking with J.G. Herzler ("Star Trek Deep Space Nine") who is moving to Ithaca to teach drama at Cornell. He remarked that, though the Drama Department is next to the law school there, there is no connection between them. He said that because actors are full time liars, and lawyers lie for a living, law students would benefit from some dramatic training. I disputed the liars part, but said that those lawyers who try cases do need to present themselves the way they want to be perceived by others in court and some acting skills would be helpful for that. It is no secret that courtroom work does involve genuine acting, though I would not say that's the same as lying.
Just spoke with James Runcorn, who is playing the bailiff and also casting the background actors. He said it would be great if my mom and dad, who live in Orange County and are coming to visit the set tomorrow, wanted to be spectators in the courtroom scenes. And they would get named credits at the end of the film too. I think that would be especially cool because when I was a real prosecutor in Chicago my parents came to 26th and California to watch me first chair a murder case. Now they would be in a pretend courtroom pretending to watch me pretending to be a prosecutor.
The Dorothy deLacey Early Childhood Education Center is among a handful of schools in the United States that permit even the youngest pupils to pick their own fields of study. The school district that operates the deLacey Center tells us that if a pupil shows an interest in rabbits, the teacher must design a curriculum for that pupil around rabbits -- while other kids in the same classroom try to learn reading and arithmetic through materials on fire engines and dinosaurs. Since its founding the Center has catered to children with special educational needs. In the fall of 1992 the deLacey Center became an "inclusion facility." Pupils with learning disabilities or behavior problems were mixed with those whose challenges were less severe....
[Kindergarten teacher Colleen] Wales was not happy with the turn of events at the deLacey Center.... By November 1992, ... it seemed to Wales that her time was devoted more to self-defense from hyperactive kids than to instruction. Wales called for assistance in managing her class more often than did other teachers. She succeeded in having one child removed from class and sent elsewhere. Schumacher turned down Wales's request for the removal of a second child. Wales promptly took a medical leave and sent Schumacher a lengthy memorandum protesting her management of the deLacey Center. Its final two paragraphs convey the tenor:
Under my contractual obligations with the district, I was employed to serve as a teacher, not as a guard in a detention room. In addition, I have professional and legal obligations to ensure the safety of my students and to provide them with a positive learning environment. This cannot be accomplished under the present lack of procedure and/or lack of complying with established procedure in terms of discipline for students who cannot or will not comply with accepted norms of behavior in a regular classroom setting. In addition, I do not have to expect that being a punching bag for a student is an assigned job task of a teacher.
As such, I would like some form of written documentation and/or clarification, consistent with state statute, as to what actions/procedures will be enacted in order to perform/maintain discipline within the classroom as well as what actions will be taken to ensure that other students, as well as myself, will not be subjected to continued physical abuse without repercussions. As an employee of the district, I feel that it is only right that procedures be clarified and followed through, especially now that the situation has deteriorated to one where my personal health has been affected.
[Soon afterwards, Wales's contract was not renewed; Wales argues it was partly because of her speech. -EV] ...
A school is entitled to insist that its staff carry out the educational philosophy espoused by the elected school board and the principal the board appoints. A Montessori school need not employ teachers who hanker for stern discipline. A memorandum proclaiming support for a disfavored educational approach (removing or disciplining disruptive kids) may be useful to a school in determining how a teacher runs her classroom.
When a communication is simultaneously protected speech (as a call to the public to change the way the schools run) and a sound reason for an employer to act (when it reveals information relevant to performance on the job), it is essential to determine how the speech has been taken into account. Did the school district penalize an expression of views about how the schools ought to run (forbidden) or consider an expression that revealed how the teacher manages or wants to manage her own class (permitted)? ...
Rational employers routinely consider speech: think about a local treasurer's reaction to a subordinate's statement (in private, to avoid disruption) along the lines of "Everyone in this office is underpaid and entitled to steal what he can." ... A school district is entitled to put in its classrooms teachers who share its educational philosophy. This does not mean that Wales is a bad teacher; it reflects only the school district's judgment that she was not well suited to an "inclusion facility" .... Matching a person's skills to the job at hand is a difficult yet vital task for any employer, and the first amendment did not require defendants to retain at the deLacey Center someone they believed was not best for the children.
The ruling came after Steven Cranley pleaded guilty on Tuesday to several charges stemming from an assault on a former girlfriend....
Doctors say Cranley has difficulty coping with rejection and runs a high risk to re-offend if he becomes involved in another intimate relationship.
Justice Rhys Morgan said Cranley "cannot form a romantic relationship of an intimate nature with a female person...."
I don't know Canadian law, so I can't comment on that. In America, it is pretty clear that the law can bar people who were convicted of a crime from having sexual relationships with a member of the opposite sex -- that's what happens to prisoners generally, unless they get conjugal visits (which are by no means constitutionally guaranteed). The question would be whether the law can impose such a requirement as a condition of probation; the test for that (rational relationship to a legitimate penological purpose) leaves the judge a lot of discretion, and I'd be inclined to say that this condition is rationally related to the protection of the public. On the other hand, it is pretty vague, the law having no ready definition of "romantic" (even if "intimate" is understood simply as sexual); maybe that would be the problem. In any case, this isn't my core field, so I don't want to opine too definitely -- I just thought it was an interesting story to pass along.
Textualism and Context (Especially as to Terms of Art):
A reader faults my "free state" analysis on these grounds:
The author introduces extrinsic evidence when the document is internally consistent and clear within its 4 corners.
Some of the extrinsic evidence comes from unrelated political systems and writers unfamiliar with the new governing scheme created by the Framers. Extrinsic evidence supporting the internally consistent definition, such as lawmakers' floor statements, are not considered; indeed, only extrinsic sources supporting the author's definition definition are discussed at length.
He then goes on to elaborate,
I should have said, "the document is internally consistent and thus clear within its 4 corners." That is, one can get a clear definition of "state" on context alone without extrinsic evidence.
Assume you have no dictionary and have no idea what "state" means. You read the Constitution and Bill of Rights, and for 116 out of 116 times the documents use the word "state," context alone indicates that "state" means one of the 50 recognized jurisdictions and not the District. You would judge, based from this text/context, that the "state" in the 2d Amend referred to the same. Of course, EV is correct that one still needs a dictionary and/or understanding of English for the remaining words, but these sources aren't typically considered extrinsic evidence. (perhaps because dictinaries and language knowledge offer every definition of a word, whereas typical extrinsic evidence does not)
This the goal of textualism, yes? That all words in a document have clear meaning based on the text of the document alone, coupled with a knowledge of the language of the text? (of course even textualism allows departing from a dictionary definition where the text specifically redefines a word)
The political branches ought to have incentives to observe textualist rules. Even assuming that the change from "country" to "state" was stylistic, to rely on extrinsic evidence to correct the textualist mistake eliminates this incentive. It permits Congress to pass whatever ambiguous, permissive language will get a majority, improperly delegating to the courts the determination of what the law ought to be.
"Textualism" is a useful label, and textualists do care about the text. But I know of no textualist who thinks that we should ignore context, and in particular the possibility that a particular textual provision was a legal term of art at the time the law was enacted. I think such an entirely acontextual textualism (perhaps we might think of it as "literalism," though even that assumes the conclusion about what the text literally means) is senseless for reasons I've mentioned in other posts in this chain. But in any event it is no textualism I've ever heard legal scholars advocate.
Let's begin with a simple example: How would and should a textualist deal with the Double Jeopardy Clause, "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb"? Should he say that it applies only to subsequent prosecutions where either the death penalty or dismemberment is at stake? (Does it perhaps apply chiefly to those soldiers who are "quartered in any house" with the owner's consent?) Or should he consider the possibility that "life or limb" is a legal term of art that doesn't mean what "life or limb" normally would?
Likewise, it turns out that the Constitution and the Bill of Rights do not always use "State" to mean "state of the union," even setting aside the Second Amendment: Two clauses of the constitution refer to "foreign State." Would we say that, because nearly all occurrences of "State" mean "one of the United States" or a "member state of a union," the "foreign State" provisions must refer to foreign members of the United States, or perhaps foreign semi-sovereigns that are part of some broader confederacy -- so that, for instance, federal officials couldn't accept offices or titles from the Swiss cantons (as states in a union), but could accept them from Japan (which is not a state in a union)? Or would we recognize that the term "State" in the phrase "foreign State" means something different from "State" in other contexts?
"Free State" is much like this. My article offers what I think is strong evidence that "free State" meant "nondespotically governed country." Blackstone used it this way. Montesquieu used it this way. Cato's Letters used it this way. Hume's Essays used it this way. Many other writers that the Framers read used it, almost exclusively this way. There's thus very good reason to think that when Americans who were raised on those works wrote or read that phrase, they understood it as precisely the same term of art, just as they understood "life or limb" as a term of art or "Suits at common law" as a term of art. No textualist I know of would ignore such evidence, just to give future Congresses an incentive to avoid all legal terms of art (something that would be a pretty hopeless cause in any event).
In the post below, I made a simple claim: You can't tell whether a text is "clear" or "unambiguous" by simply consulting the text — you also need to see whether there is external evidence that the meaning of some term is something other than what you assume it to "clearly" or "unambiguously" be (whether we refer to the meaning intended by the author or the meaning likely understood by most of the author's intended readers). This shouldn't be politically or ideologically controversial. It's just a description of how language and communication works.
Some readers seemed to disagree, for instance asking "Do we need context, etc., to tell us what '2/3' or '3/4' means?" and objecting to "the view that semantic meaning is always necessarily up for grabs." Well, consider this text:
1 + x = 10
This may seem "clear" or "unambiguous," until you see that people sometimes say — and quite correctly,
1 + 1 = 10
So even with mathematical matters, we sometimes can't be sure of their "clear" meaning until we see their context. "10" usually means "ten," and in our culture "ten" is a fair initial interpretation of "10." But we have to be open to the possibility that the number is written in a different base, and adjust our interpretation if there is evidence that this is indeed so. It's not that math is somehow indeterminate; it's just that mathematical notation, like any language, can't be understood without figuring out what it means in a particular context.
Or say you have a contract that reads,
I will turn over to you my car if you pay me twenty thousand dollars.
Usually that's pretty clear; but if it turns out the contract is made by two Canadians in Canada, contemplating a transaction in Canada, we'd realize that "dollars" means something other than what it usually means in America. Even if the contract ends up in American court (say the parties move to California and litigate the matter in California), any American court will correctly look beyond the supposedly "clear" meaning of the text to recognize that the contract meant something quite different. Even the strongest version of the parol evidence rule would not, to my knowledge, require a court to assume that the term "dollar" is "clearly" U.S. dollar, even if that's the first reaction that the judge had to the contract before he learned of its entirely Canadian context.
Again, it's not that meaning is "up for grabs" in the sense that any interpretation is always as good as any other. It's just that language can't be understood without figuring out what it means in a particular context, and recognizing that seemingly "clear" words can become less clear — or clearly something else — when one recognizes the context. Usually the context is as you expected, and the meaning is thus what it clearly seemed at first. But we can't just categorically foreclose the possibility that a word in a 200-year-old document (or even in a relatively new document) means something different than what it clearly seems to be if we look only at the text.
The Cast
In the previous post I mentioned Walter Koenig, who as screenwriter is the moving force behind the film, Marini Sirtis and Richard Hatch. Here are some other principal cast members: Courtney Peldon ("Boston Public"), Eric Avari ("Stargate"), Jay Acovone ("Providence" "Stargate"), Patricia Tallman (various "Star Treks"), Gary Graham ("Alien Nation"), and Richard Herd ("Seinfeld"). Only two actors are here now but most will be in the courtroom scenes, which are the climax of the film and bring together most of the principals. I have no idea what type of interaction I will be having with the actors. The main title actors have trailers just outside the sound stages. I imagine I will just be hanging out between scenes with the crew. Never having done anything like this before, I am a bit anxious about tomorrow But at least I was a prosecutor in real life and, when I was in the courtroom set earlier, it felt very natural. We'll see. At least I don't have to say anything until Monday.
On the Set of "Inalienable":
In 2004, I blogged about what it was like to attend The Night Before, a pre-Oscars party at the Beverly Hills Hotel, and a year later I updated it here. Yesterday, I sent to Aspen the revised manuscript for Constitutional Law: Cases in Context, a new constitutional law casebook I have been working on for the past year. Today, I am at Riverfront Stages in Sylmar California, just north of LA, for the filming of "Inalienable," and independent sci-fi film that culminates in a hearing in federal district court. The script was written by Walter Koenig who played Pavel Chekov on the original Star Trek. On his website, he lists the principal actors and describes the plot:
Still guilt-ridden over the accident that took his family's lives, Eric Norris discovers that his body is host to a parasite from another world. Except, it is more than a parasite: it carries his DNA. Is this his new son or — as the government believes — a threat to mankind?
As I am live blogging this, the crew is setting up a shot for a scene between Walter Koenig and Richard Hatch of Battlestar Galactica. They are both being miked mic'd in the room where the video monitors are, along with the food for the crew. After some problems with the mike they are now rehearsing a scene that takes place in the bathroom. We're watching the scene on a monitor. It's a confrontation between the two principal protagonists that takes place early in the film. We can see the monitor of the bathroom but cannot hear the sound.
Tomorrow begins four days of shooting the courtroom scenes that are supposed to take place over three days. I have just two lines before the final climax on the last day that won't be shot until Monday morning, but I will be at counsel table throughout the hearing. Fortunately, I'll be seated the whole time which should be easy.
I came by today to get the feel of the place, and settle on wardrobe. [now they are getting ready to get the shot and everyone is yelling "quiet!". . . I think they will have to reshoot this because Koenig moved into a position where he was blocked by Hatch.] Tomorrow's shooting starts at 7:00am.
I'll try to provide more info later, but wanted to live blog this whenever possible. (It is 5:45pm here and shooting ends around 7:00pm) I hope to be able to live blog this over the weekend when my scenes are being filmed, but don't know how much I will be able to do. Fortunately there is WiFi throughout the studio.
They are now reshooting the scene but each actor keeps blocking the view of the other. . . . so now they're shooting take 3. . . . & 4, now they're moving on. The whole shoot is just around 15 days so it's going to go really fast.
Hatch and the director just came in for something to eat. It is pretty spartan in here. I am sitting here typing at one of a long bank of folding tables in the back of the room. On the other end of the table the props guy is mixing up a substance that will pass for vomit. It seems pretty trial and error from here. I see instant mashed potatoes, instant grits, food dye and hot water. In the props guy's words, "now it looks like yams," which is not the look he's going for.
Here's a photo (very blurry, sorry) of me on the courtroom set which is the same set used by Law and Order.
Apropos my evidence on what "free State" meant to the Framers, a commenter writes,
The author introduces extrinsic evidence when the document is internally consistent and clear within its 4 corners.
Some of the extrinsic evidence comes from unrelated political systems and writers unfamiliar with the new governing scheme created by the Framers. Extrinsic evidence supporting the internally consistent definition, such as lawmakers' floor statements, are not considered; indeed, only extrinsic sources supporting the author's definition definition are discussed at length.
This, I think, raises a broader question: How do we decide whether a 200-year-old document "is internally consistent and clear within its 4 corners," and what its clear, consistent meaning is?
Recall that we can never understand the document simply by looking within its own four corners: We have to look at the document's text coupled with our mental dictionary of what each term means. But it's possible that people of the era in which the document was written had a different mental dictionary; it's possible that terms such as "free State" or "militia" or "life or limb" or "common law" or "an establishment of religion" meant something different to them than they do now -- or meant something clearer or less ambiguous than they do now, or meant something vaguer or more ambiguous than they do now.
That's why I'm skeptical of "just the text, ma'am" interpretation, especially when it comes to old documents. It's always text plus dictionary, but when the dictionary is of a slightly foreign legal language, we need to do more research than just from reading the text.
My article on "free State" is meant to give a sense of what the phrase meant in the Framing generation's mental dictionary. That's why I don't hesitate to use instances of the phrase used in discussing ancient Rome, Renaissance Europe, or 1600s and 1700s England. I'm looking at what the phrase "free State" meant in the language of the time, and if it consistently meant something like "nondespotically governed country" in the works that formed the Framing generation's political and legal education, that's powerful evidence that the Framers continued to use it this way. (I'd also talk about legislative floor statements if they said something clear about the meaning of the phrase "free State," but they didn't.)
But more broadly, I wanted to write a separate post to stress the difficulty of focusing solely on the four corners of the constitutional text, stripped of "extrinsic evidence." I don't think you can understand the text without looking at extrinsic evidence of what the terms in the text meant at the time.
The petitioners urge that, contrary to the reasoning of the Court of Special Appeals, the Rayburn primary duties test does not mean that, "participation alone [is] not enough." We do not agree.
The context helps, but not a lot (emphasis added):
It is not enough to say that Moersen's music is central to the church's method of worship; it would be just as easy to say that the manufacturer of the organ contributes to the church's worship, or that the people involved in the upkeep of the organ and worship place contribute to the church's ability to maximize the participation in religious ritual. Where does one draw the line?, that is the question. As stated in a case cited by the petitioners, Musante v. Notre Dame of Easton Church, No. 301-CV-2352, 2004 WL 721774, *6 (D.Conn. Mar. 30, 2004), "the religious nature of the employer is not dispositive of the inquiry, since it is unlikely that a church custodian would ever be considered a ministerial employee."
The petitioners urge that, contrary to the reasoning of the Court of Special Appeals, the Rayburn primary duties test does not mean that, "participation alone [is] not enough." We do not agree. In Rayburn, the court considered whether the position of associate in pastoral care was important to the spiritual mission of the Seventh-day Adventist Church. 772 F.2d at 1169. Concluding that it was, the court stated: ....
No, that's worse. We're #1 squared! No, that doesn't help much either. We're #0, or, maybe better yet, #-1! Huh, maybe not.
In any case, I'm delighted to report that my colleagues at Mayer Brown Rowe & Maw have been rated #1 in appellate law by Chambers and Partners, to go along with our #1 rating for appellate and Supreme Court work from legal500.com. It's a privilege and a pleasure for me to be affiliated with the Mayer people.
What Does "Free State" Mean in the Second Amendment?
I thought I'd pass an excerpt from a new article of mine, "Necessary to the Security of a Free State," which will be coming out in the Notre Dame Law Review this Fall. I might blog more excerpts from it next week, but for now here's the Introduction; to see citations, and the rest of the article, look here.
As usual, I'd love to hear whatever corrections, suggestions, or disagreements people might have -- but please look through the entire piece beforehand, just in case other sections already deal with the issue. Thanks!
* * *
"A well regulated Militia, being necessary to the security of a free State," the Second Amendment says, "the right of the people to keep and bear arms, shall not be infringed." But what did the Framing generation understand "free State" to mean?
If the answer is "state of the union, free from federal oppression," that would tend to support the collective or states' rights view of the Amendment. It would suggest that the right might cover only those whom each state explicitly chose as its defensive force, perhaps a state-selected National Guard. And it would suggest the Amendment does not apply outside states, for instance in the District of Columbia. I suspect the intuitive appeal to many of the states' rights theory stems from the Amendment's reference to the term "State."
But if "free State" was understood to mean "free country, free of despotism," that would tend to support the individual rights view of the Amendment. "The people" would then more easily be read as referring to a right of the people as individuals, even if a right justified by public interests, much as the term "people" is understood in the First and Fourth Amendments. The right would cover people regardless of whether they were enrolled in a state-chosen defensive force, since the right would be unrelated to preserving the independence of the states. And it would apply to all Americans, whether in states or in D.C.
Likewise, consider James Madison's original proposal: "The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country."
Some assume the change from "free country" to "free state" was understood as purely stylistic, sometimes pointing to the absence of recorded controversy about the change of "free country" to "free state." This would cut in favor of the individual rights view. Others assume it was a substantive shift in the direction of a states' rights provision, and point in support to the Constitution's general use of "state" to mean state of the union (except where "foreign State" is used to mean "foreign country").
This Article makes a simple claim: There's no need to assume. There is ample evidence about the original meaning of the term "free state."
"Free state" was used often in Framing-era and pre-Framing writings, especially those writings that are known to have powerfully influenced the Framers: Blackstone's Commentaries (which I'll discuss in Parts II and III), Montesquieu's Spirit of the Laws (Part IV), Hume's essays (Part V), Trenchard and Gordon's Cato's Letters (Part VI), and works by many of the other European authors who are known to have been cited by Framing-era American writers (Part VII). [I choose these writers because I have systematically gone through Donald Lutz's list of the 36 writers most cited by Americans from 1760 to 1805; Montesquieu and Blackstone head the list, Hume and Trenchard and Gordon are in the top 10, and the other writers are all in the top 36.] [The phrase "free state"] was also used by many leading American writers as well (Part VIII), including John Adams in 1787, James Madison in 1785, and the Continental Congress in 1774.
Those sources, which surprisingly have not been canvassed by the Second Amendment literature, give us a clear sense of what the phrase "free state" meant at the time. In 18th century political discourse, "free state" was a well-understood political term of art, meaning "free country," which is to say the opposite of a despotism.
Political theory of the era often divided the world into despotisms and free states (either republics or constitutional monarchies). Free states had certain properties as a result of their being free, and were susceptible to certain threats of reverting to despotism. To remain a free state, the free state had to take these threats into account, and to structure its institutions in a particular way.
"State" simply meant country; and "free" almost always meant free from despotism, not from some other country, and never from some larger entity in a federal structure. That is how the phrase was used in the sources that the Framers read. And there is no reason to think that the Framers departed from this well-established meaning, and used the phrase to mean something different from what it meant to Blackstone, Montesquieu, the Continental Congress, Madison, Adams, or others.
Even given this finding, of course, many important arguments about the nature of the Second Amendment remain. But when we consider those arguments, we should recognize that the phrase "a free State" was not understood as having to do with states' rights as such, but rather as having to do with preserving the liberty of the new country that the Constitution was establishing.
Should Ideology Play any Role in Hiring for DOJ Career Positions?:
A lot of recent news stories echo the claim that the Bush Administration has improperly politicized hiring of career lawyers at the Justice Department (DOJ). There's an interesting question lurking in these stories: Should a lawyer's views of public policy play any role in whether they are hired? And specifically, if an attorney is applying for a position enforcing a politically controversial set of laws, should the attorney's view about those laws enter into whether they should be hired for a career lawyer slot?
At first blush, it's easy to say the answer is "no, those views should never matter." And perhaps that's the right answer. But I think there are actually some interesting issues lurking here, and I wanted to offer a hypothetical that I hope will illustrate them.
Imagine that DOJ has two openings for entry-level career lawyers. The first opening is in the Criminal Division's Child Exploitation and Obscenity Section, for a position prosecuting obscenity cases. The second opening is in the Civil Rights Division's Voting Section, for a position bringing civil suits against states and counties for racial discrimination in the operation of their elections.
There are three equally-well-credentialed applicants for the two positions. The first is Connie the Conservative, a very conservative young lawyer who was President of the BYU Federalist Society. Connie clerked for Judge O'Scannlain on the Ninth Circuit and is now at the conservative-leaning DC office of Kirkland & Ellis. The second candidate is Moe the Moderate, a completely nonpolitical mushy middle-of-the-roader. After graduating from Penn and clerking for Judge Prado on the Fifth Circuit, Moe has been working at a large litigation firm in Philadelphia. The third candidate is Libby the Liberal, a very liberal young lawyer who was very active in the NYU chapter of the ACLU. After clerking for Judge Reinhardt on the Ninth Circuit, Libby has spent the last few years working at the liberal-leaning San Franscisco office of Morrison & Foerster.
During the interviews for the two positions, both Connie the Conservative and Libby the Liberal made their personal views clearly known. In the interview for the position as an obscenity prosecutor, Connie the Conservative expressed enthusiasm for bringing more obscenity cases. "I'm deeply worried about preserving traditional values in America," she explained. "I think your work is extremely important." Libby the Liberal took the opposite view. "To be honest, I don't think the government has any role trying to stop adult pornography," she explained. "I'll work on these cases if it's my job, but I basically think this section should be shut down and you should go after some real criminals instead." Moe the Moderate was more reserved, indicating that he didn't have strong feelings about the work of the section either way.
The roles reversed themselves in the interview with the Civil Rights Division's Voting Section. Libby the Liberal expressed great enthusiasm for the Voting Section's traditional priorities. "I went to law school to fight injustice, and I think your work is incredibly important." Connie the Conservative took the opposite view: "To be honest, I don't think this section's traditional work is needed in this day and age. I'll work on these cases if I have to, but I basically think this section of the Civil Rights Division should be shut down." Once again, Moe the Moderate was more reserved, indicating that he didn't have strong feelings about the work of the section either way.
So imagine you're in charge of hiring at the Justice Department. Who should be offered a job for what slot in what order? Should you favor Libby the Liberal over Connie the Conservative for the Civil Rights Division job? Should you favor Connie the Conservative over Libby the Liberal for the opening in the obscenity section? Does it depend on what the President's priorities are, and in particular what the President's views are about obscenity prosecutions and the traditonal work of this section of the Civil Rights Division?
Broadly speaking, should the candidate's views — views that I think on most scales register as more-or-less "political" — make any difference as to whether they should be the one offered the job?
(Oh, and I should add, any similiarities between the characters here and those existing in real life are purely coincidental. Void where prohibited.)
UPDATE: I have amended the title of the post to make clear that the question is the candidate's ideological views rather than partisan political affiliation. Hiriring on the basis of partisan affiliation is illegal, and I think we all recognize the harm of it; that was not intended to be within the scope of the question.
Language teachers talk about translators' "false friends" -- words in a foreign language that sound familiar, but are quite different. The classic example is the Spanish "embarazada," which does not mean embarrassed. Likewise, the Russian "magazin" means a shop, not a magazine (the latter translates as "zhoornal," cognate to journal).
I'm looking for examples of the legal historian's false friends -- terms (mostly English terms) that might sound familiar to a law student doing legal research today, but really mean something different from what the student would at first expect.
I've seen this, for instance, in my Second Amendment work. "Militia," for instance, pretty clearly meant something like "the armed able-bodied citizenry" (limiting citizens to first-class citizens of the time, and excluding blacks, Indians, and women) rather than "National-Guard-like force" or "small military band," which is what many people tend to think of when they hear "militia" today. Likewise, "free State" meant not "state independent of the federal government" but something like "democracy, republic, or constitutional monarchy" as opposed to a despotism. Neither of these terms have entirely lost the old meaning; but they have acquired enough of a modern meaning that the modern meaning may lead modern readers astray.
Dean William Treanor points to another example, here of a change in grammatical convention:
Justice Thomas, Professor Amar, and others have assigned critical interpretive weight to the fact that, to quote Justice Thomas, "[i]n the Constitution, after all, 'the United States' is consistently a plural noun." This grammar would appear to suggest, as Justice Thomas and Amar have concluded, that the Constitution, as initially adopted, reflected the view that the United States was a collection of states, rather than one nation. What this reading misses, however, is the fact that, in the late eighteenth century nouns ending in "s" were commonly assigned plural verbs, regardless of whether the noun itself was plural or not, a rule gradually displaced as the nineteenth century progressed. It is true that "United States" was often matched with a plural verb in 1787 and consistently matched with a singular verb after the Civil War. But one cannot conclude simply from this change in grammatical practice that the dominant political theory changed, since the same verb shift occurred for the word "news," and there was no reconceptualization of "news."
(I can't personally vouch for the accuracy of this argument, but my sense is that Dean Treanor enjoys a very good reputation as a historian; and, more broadly, this is an example of the sort of thing I'm looking for, even if some might disagree with Dean Treanor's particular argument.)
Allison Weiss Brady, 36, a venture capitalist and philanthropist who is on the board of her family foundation, said she likes to be practical when buying handbags preferring to buy bags in basic colors. Still, she spends $20,000 per season on accessories and typically spends $5,000 per bag, much more than the $2,000 she used to spend a few years ago.
Among Brady's most prized finds recently are a pair of $11,000 earrings at Judith Ripka and a multicolored lizard Fendi handbag for $4,960....
A growing number of stores and shoppers are seeing the need to give back, however. Brady, the philanthropist who divides her time between Miami and New York, prefers to shop at stores where a portion of sales goes to a charity.
The basic characteristics of this Chicago Tradition are: a strong work ethic, an unshakable belief in economics as a true science, academic excellence as the sole criterion for advancement, an intense debating culture focused on sharpening the critical mind, and the University of Chicago's two-dimensional isolation. Much of the credit for the creation of this Chicago Tradition has to go to the University's first president, William Rainey Harper.
That is from Johan van Overtveldt's The Chicago School: How the University of Chicago Assembled the Thinkers Who Revolutionized Economics and Business. I enjoyed this book very much. Instead of stopping at Friedman, Coase and Director, it also offers a comprehensive treatment of the entire Chicago history, including such neglected figures as Herbert Davenport, Laurence Laughlin, H. Gregg Lewis, Albert Rees, Theodore Yntema, and Jim Lorie, in each case noting their roles in the broader story.
There is a separate chapter on each the business school and yes the law school. It is also noted that Friedman (among many others) really didn't want Hayek in the economics department. I wish this book had more analysis of how Chicago succeeded in changing the policy world, but it is a landmark in the history of economic thought and of course also law and economics. I can't recommend it to non-specialists, but anyone who cares about Chicago thought should buy it.
Yeah, that particular religion can't be compared to the other great religions, not straight up. I've listened to those who claim that you MUST read the holy book in arabic, for example, and other translations and usages are substandard.
I'm no expert on Judaism, but wouldn't many Orthodox Jews conclude that to fully understand the Torah you need to read it in Hebrew? I'm not sure they'd have the same theological explanation for this as Muslims would, but wouldn't they still insist (in a way that Christians generally do not) that translations of the Torah are in some measure "substandard"?
Amira Hass, a columnist for Ha'aretz, is, as I recall, an Israeli Jew so sympathetic to the Palestinian cause that she decided to live among them. I read her column regularly, and I think it's fair to say that she routinely places the blame on Israel for anything that goes wrong in Palestinian/Israeli affairs. Until today. Though she halfheartedly throws a few shots at Israel, her column is basically a vigorous attack on both Hamas and Fatah:
As Fatah's mirror image, the Hamas government announced it cannot pay civil servants' wages. But it has found ways to finance the large amount of weapons being smuggled into the Gaza Strip and purchased in the West Bank.
Now it will have full "military" control of the Gaza Strip. Will this bring relief to Gaza's 1.4 million residents? Will it improve the health system and ensure employment for university graduates? Will it remove Israel's land and sea blockade?
It may be assumed that the military takeover of Abbas' symbols of "sovereignty" will serve as an excuse for Israel to sever once and for all the remaining civilian and economic ties between the Gaza Strip and West Bank - a political process Israel started in 1991. Because Hamas, like its mirror image Fatah, has no coherent liberation or independence plan for Palestinians in this lifetime.
Contrary to what some VC readers might think, I was a strong supporter of Oslo, and like many others, was confident in the late '90s that a peace settlement was at hand. I was saddened for both Israelis and Palestinians when the latter's leaders turned out not to have reformed, but to be the same terrorist thugs that murdered Israeli schoolchildren in the '70s.
As I alluded to in a previous post, Fatah and Hamas are at root both criminal gangs masquerading as political parties, though I acknowledge that Fatah, at least, has some members who would like to come to terms with Israel. It's taken Hass and other an extra
six or seven years to recognize this, but perhaps now that the leftist enablers of Fatah and Hamas finally seem to be seeing the light, a useful turning point has been reached that will allow some sort of silver lining from this whole mess. For example, perhaps with Gaza turning into Hamastan, Israel will be able to make a West Bank-only deal with some combined Palestinian/Jordanian interlocutors that will create a confederated Palestinan/Jordanian state there. One of the great shames of the post-2000 crisis in Palestinian-Israeli relations is that I can't imagine that after years of suicide bombs the Israelis will ever feel comfortable enough to have reintegrate the West Bank into the Israeli economy (which previously paid huge economic dividends for the Palestinians), which means that Jordan will be the key to the economic future of Palestinians there.
UPDATE: Here's what Juan Cole has to say on his blog about the recent violence in Lebanon and Gaza, which can't be attributed to Israel: [ This space intentionally left blank ]
Considering the restrictions most Muslim countries place on women I'm surprised that she thinks she can be a police officer in the first place, in a country that expects women cops to drive, handle guns, arrest men, etc., just like the male ones. (Saudi Arabia does have women on the police force, but AFAIK they really function as a sort of auxiliary so male cops don't have to manhandle, search, or even talk to non-related women.) OTOH, if she can be flexible about those restrictions, why can't she be flexible about the head-dress? The department isn't requiring that she go bareheaded, just that she wear the uniform hat. As I understand it, Mohammad only prescribed that women be "modest"; interpreting that as any particular garment is a cultural thing, not Islam.
I've heard similar arguments before, but they've always struck me as quite weak, a weakness that we can see if we adapt them to Judaism or Christianity. We know how varied Judaism is -- yet we don't express surprise when, say, a Reform Jewish man refuses to eat pork but doesn't wear a yarmulke. Nor would we, I think, have prisons deny Jewish prisoners pork-free meals just because the prisoners aren't full-on Orthodox, on the grounds that "they're flexible about some Orthodox Jewish religious laws, why can't they be flexible about pork?"
Likewise, some Christians observe a Saturday Sabbath; some observe a Sunday Sabbath; some observe no Sabbath (in the sense of a day of rest) at all. Many Christians are very serious about following some Old Testament rules, but think the others (such as the Sabbath observance and the kosher rules) have been superseded. Why isn't it equally plausible that some Muslims may interpret Islam to allow women a great deal more latitude than the Wahhabi do, yet still preserve some aspects of traditional Islamic women's garb?
Similarly, it's not uncommon for cultural rules and religious obligations to be closely intertwined. As I understand it, the requirement of wearing a yarmulke is a cultural tradition that is not understood even by the Orthodox as being mandated by the Torah. I'm not sure about this, but my sense is that the wearing of Christian-themed jewelry and the placement of ashes on the forehead on Ash Wednesday is "cultural" in the sense of not being seen as mandated by religion, but is surely linked to religious sentiments.
It may well be that the court's decision in this case is right; I'm not speaking about that here. My point is simply that some American Muslims' rights shouldn't be determined based on what Saudi Muslims do, or even other American Muslims do, just as some American Christians' rights aren't determined based on what other Christians do, and some American Jews' rights aren't determined based on what other Jews do.
Islam, Christianity, and Judaism all include multiple denominations, both formal and informal. And American religious freedom law recognizes that no religion ought to be treated as a monolith with a single Established Official View that somehow affects the rights of all members of that religion.
Should Google Change Our Standards for Attribution of Quotes?
Say that you're writing a book, a magazine article, or some other work in a medium that (1) doesn't allow hyperlinking, and (2) discourages footnoting. And say that you want to quote a phrase you much like — for instance, "The past is a foreign country; they do things differently there."
Naturally, you should quote it, to make clear that you're not claiming authorship. But must you give credit to the author, for instance, "as L.P. Hartley wrote, '...'"? In an earlier time, I would think you should, unless the line was so cliché that its source would be familiar to most readers. (By the way, should it have mattered whether the author was long-dead?) After all, you ought to give credit where credit is due.
But these days, for many such quotes, the attribution is only a google search away — not much harder, generally speaking, than looking up the quote in an endnote, which would be considered a perfectly acceptable way to give credit in those media that allow endnotes. So assume that the google search does indeed yield the proper attribution. Does that relieve you of the obligation to mention the author in your work (again, assuming you include the quotes)? Or should you still mention the author's name somewhere, given that not everyone will be reading your piece with a computer around, or perhaps based on some deeper inherent obligation to give credit in your own work? Or might the ethical question be moot, because the text without the attribution — for instance,
"The past is a foreign country: they do things differently there." Among other things, they speak a foreign language....
-- looks clumsy enough that you ought to add "In L.P. Hartley's words" or some such just to make the text flow better?
UPDATE: Well, there's remarkable unanimity in the comments, and they all answer the question in the title with "no." Fortunately for me, I generally write in media where footnotes and endnotes are allowed, so I can avoid the "As x says" locution and yet give full credit directly in my own work. In any case, thanks for the feedback!
Tips for Law Students Who Are Doing Empirical Research?
I'm also looking for tips that I can pass along (again, in Academic Legal Writing) to law students who are doing empirical research (of whatever kind, and I realize there are many kinds). There, too, I already have quite a few, but it would be great to have more. If you have any suggestions, I'd love to hear them. Thanks!
Tips for Law Students Who Are Writing Articles on Legal History?
I'm looking for tips that I can pass along (in Academic Legal Writing) to law students who are writing articles on legal history. I already have quite a few, but it would be great to have more. If you have any suggestions, I'd love to hear them. Thanks!
Anaheim Mayor Curt Pringle on Development Without Eminent Domain:
Anaheim Mayor Curt Pringle recently published this report explaining how cities (including his own) can promote development without resorting to the use of eminent domain. Many of the arguments are not new, but it is significant that the mayor of a major city is publicly endorsing them. Plus, Mayor Pringle was kind enough to cite my article on the notorious Poletown case as an example of how using eminent domain to promote development often causes more economic harm than good.
CONFLICT OF INTEREST WATCH: Pringle's report was published by the Institute for Justice, the libertarian public interest law firm that litigated the Kelo case. As longtime VC readers know, I have done some pro bono work on takings cases for IJ myself.
Reason magazine editor Radley Balko has, like me, recently spent some time in Buenos Aires, and wrote this interesting piece analyzing Argentina from a libertarian perspective. I disagree with one or two of Radley's points, and a few others deal with issues that I don't know enough about to have an opinion. But I definitely agree with his bottom line conclusion that Argentina is a nation whose great potential has not been fully realized primarily as a result of excessive statism.
"Notable Increase" in Justice Department Hiring from Religious Schools:
The New York Times has an interesting piece on the changing priorities of the Civil Rights Division Justice Department under the Bush Administration. The article, however, contains this curious line: "Figures provided by the department show that from 2003 through 2006, there was a notable increase of hirings from religious-affiliated institutions like Regent University and Ave Maria University. The department hired eight from those two schools in that period, compared to 50 from Harvard and 13 from Yale." The author seems unaware that Ave Maria wasn't accredited until 2002, so it's hardly shocking that hiring from there rose from 0 to an average of less than one per year. Regent was accredited in 1996, and again it's not exactly surprising that as the school becomes more established, an average of slightly more than one of their graduates per year could get jobs at the Justice Department. The statistics quoted look even more like data-dredging when you realize that hiring from BYU went down from 2 per year in 01 and 02 to 1 per year from 03 to 06, and, even more impressive, hiring from Notre Dame went down from 6 in 02 to one in 06, and from Catholic from 4 in 02 to 2 in 06. Put another way, during the Clinton Admnistration, in 1999 the Justice Department hired 9 graduates of religious law schools, and in 2000 hired 7 such graduates. In 2006, with one more law school to draw data from (Ave Maria) and with a much more established Regent, the Bush Justice Department hired 6 graduates of religious law schools (in 2005, the total was nine). If anything, then, the Department is hiring fewer graduates of religious schools from a significantly bigger pool. And the scandal is what? [I should note that there are other religiously affiliated law schools in the U.S., but my data comes from a table accompanying the New York Times article.]
A federal judge said Thursday he will not delay a 2 1/2-year prison sentence for I. Lewis "Scooter" Libby in the CIA leak case, a ruling that could send the former White House aide to prison within weeks....
[U.S. District Judge Reggie B. Walton] never appeared to waver from his opinion that a delay was unwarranted. After 12 prominent law professors filed documents supporting Libby's request, the judge waved it off as "not something I would expect from a first-year in law school."
Maybe I'm missing the context, but this seems rather intemperate. I've read the motion, which is signed by leading constitutional law professors (Vikram Amar and our own Randy Barnett), leading criminal law commentator Alan Dershowitz, and Robert Bork, and which is signed as amici by the same people plus several other well-respected scholars. It's well-reasoned and extremely competent; I'm not sure I'd agree with it, but it makes a thoughtful and plausible case for its position. There seems to me no cause at all for the judge to react this way.
Thanks to Bill Patry for the pointer to the AP story.
Fred Thompson has said he is going to run a "new style" campaign, making use of the Internet. In that vein, I think it is interesting that his campaign blog has a blogroll--and that we're on it.
Also, if you check out his blog, they posted an interview yesterday by Peter Robinson with Senator Thompson filmed at the Hoover Institution. Particularly interesting is a brief colloquy about eight minutes in or so where Peter asks Thompson how he became a conservative, and Thompson mentions reading Barry Goldwater's "Conscience of a Conservative." To this day it remains striking to me for how many people Goldwater's book was a gateway into conservative ideas and the conservative movement.
By an overwhelming vote of 151-45, the Massachusetts legislature just rejected a proposed state constitutional amendment banning gay marriage. The amendment needed 50 votes to get on the ballot for a November 2008 referendum. Though it's still possible for anti-SSM activists to press for an amendment in the next session they would have to begin the long, multi-year process all over — and their fortunes have been moving steadily in the wrong direction for three years now.
What's so striking about the vote today is how dramatically support for SSM has grown in the legislature (and in state public opinion polls) since the state supreme court ordered the recognition of gay marriages in 2004. Back then, before the state had any experience with such marriages, there was overwhelming opposition to the idea. Only about a third of the state's 200 legislators fully supported gay marriage. The only real disagreement was whether the state should constitutionally ban both civil unions and gay marriages or just ban gay marriages. Opponents of gay marriage back then gambled that they could hold out for a broad ban — a tactical decision that cost them.
The delay allowed gay-marriage supporters time to mobilize politically and to let the initial anxiety subside. More than 8,500 same-sex couples got married in the state with no obvious or immediate effect on Massachusetts families or existing marriages. (And most people understood that, however regrettable, Boston Catholic Charities' exit from the adoption field was a consequence of pre-existing state anti-discrimination policy and of the group's own decision to stop serving gay couples — not gay marriage.) Anti-gay marriage legislators were defeated in elections. Others, like the Republican senate minority leader, actually became gay-marriage supporters as time passed.
While SSM opponents gathered 170,000 signatures for a petition to have the issue placed on the ballot, the state's amendment process requires that at least one-fourth (50) of the state's legislators vote to send such a citizen initiative to a vote and to do so in two consecutive sessions. Legislators correctly understood that in such a process, by design, they are not merely "pass-throughs" for a ballot fight. Under state law, they were entitled to, and did, exercise their own judgment about the issue.
Now, even the watered-down ban on gay marriages has only anemic and collapsing legislative support. As recently as January, there were still about 60 votes in the legislature for a ban. A few weeks ago that had dwindled to the low 50s. Today it's at 45.
An even bigger win for SSM, in my view, would have been a successful referendum vote in November 2008. But it's clear there's now a secure beachhead for gay marriage. And thanks to this decisive legislative support, it now has a democratic imprimatur it would not have had absent a strong political challenge to the 2003 Goodridge decision.
Much opposition to gay marriage has been based on hypothetical and not unreasonable fears about an important and untried reform. As time passes, it is growing more and more difficult to make these arguments. In one state, at least, gay marriage is here to stay.
Learned Hand:
Time Magazine's August 25, 1961, issue included this memorial to the great Judge Learned Hand, who had just recently died. If you're a fan of Judge Hand, as I am, it's an interesting read.
As soon as I get a chance, I'm going to write to Gov. Kaine and ask him to commute this sentence. Geez, I remember plenty of beer being available at various Sweet Sixteens I attended (when the drinking age was 18), and exactly no harm came of it.
UPDATE: I didn't mean to suggest that no harm can come out of serving minors alcohol, but rather that it's not such an obviously harmful activity as to justify such a draconian sentence. I doubt, for example, many first time DUIs get anything approaching 27 months.
The couple were charged with 16 misdemeanor counts, however, it was later discovered that seven of the kids at the party had no alcohol in their system. Of the remaining nine who did have alcohol in their system, none were found to be over the legal limit for intoxication.
The couple pleaded guilty to nine counts of contributing to the delinquency of a minor in Juvenile and Domestic Relations Court, and the prosecutor had recommended they get a 90-day sentence. However, the judge was furious about the recent death of one of Ryan's classmates at the local high school from an alcohol-related crash. He decided to make an example of them and sentenced them both to eight years.
This is a bit misleading, because the "legal limit" for minors is zero. Nevertheless, this does show that the parents weren't exactly running a wild, out-of-control drinking party. If the prosecutor, as he claims, really thinks this is the "worst case of underage drinking that he's dealt with in 15 years of prosecuting," then he either lives in a really tame county, or, more likely, underage drinking is rarely prosecuted there. But at least he recommended a much more reasonable 90 day sentence. And I don't see what Ryan's classmate's death has to do with the parents' culpability. I've never been a fan of "making an example" out of some hapless defendant who happens to be at the wrong place at the wrong time.
