Dohiyi Mir

On The Record For Civil Rights

The highlight of today's VT State Democratic Convention happened just a few minutes into the procededings when Euan Bear of Bakersfield introduced the following:

National Marriage Equality Resolution

WHEREAS: Gender equality is one of the most significant moral and legal issues of the 21st Century; and,

WHEREAS: The Vermont Democratic Party has unequivocally endorsed and supported equality in all aspects of American life;

NOW THEREFORE: Be it resolved by the Vermont Democratic Party, in convention this 26th day of May 2012

FIRST: That the platform of the Vermont Democratic Party and the platform of the National Democratic Party should endorse unqualified support for marriage equality under civil law for same-gender couples; and,

SECOND: That all delegates selected to represent the Vermont Democratic Party within Vermont's borders or beyond, in state or national conventions or meetings, are directed to fully support as a matter of policy the inclusion in the National Democratic Party's Platform a plank committing the Party to the complete and immediate implementation of gender equality and equal treatment for same-gender couples under state and federal law.

There was no tedious worrying about how this might cause us to lose independent Catholics or left-handed blue-collar workers, with a tight vote.  It passed by acclamation.  Would that the rest of our fight for equal civil rights under the law were so easy.

As Congressman Peter Welch and Governor Shumlin observed in the afternoon, our little state has been a leader on this and other crucial issues, and the rest of the nation will ultimately follow.  It was a good day to be a Vermont Democrat.

ntodd

PS--Euan was our county chairperson and last year I was honored to be nominated by her to be vice-chair.  She's a strong progressive voice who helps keep our party honest.

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Friday Foetus Blogging, Week 31: She...Could...Go...All...The...Way!

Let's hope there are no good open field tacklers out there...

ntodd

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It's A Trilogy

1961:


1968:


1977:


One of these isn't quite like the other, but still: this is probably one of the most significant days in human history.

ntodd

[Update: 2012: Enter the Dragon.]

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The Movement Abides

Yeah, well, y'know, that's just like, uh, your opinion, man:

[A]s official Washington gears up to confront the issue of campaign finance abuses, which include corporate constitutional rights under the First Amendment, the corporate personhood movement is heading into round one of this long fight with somewhat weak hands. It has an imprecise message and imperfect messenger in the Senate. It has liberal critics who say the focus on stripping corporate rights is a dangerous distraction. And it faces facts from the 2012 campaign that are not buttressing its case—because it has so far been wealthy individuals, not corporations, that have invested the biggest bucks in this cycle.

We've seen similar issues crop up with women's suffrage, child labor reform, and the civil rights movement.  The fight should be at the state level!  No, Federal!  We need better laws!  An amendment!  Your tactics set us back!  Etc!

Perhaps the best approach here and now is an amendment that just explicitly allows Congress and the States to regulate campaign finance, as Sen Udall and Vermont have suggested.  Maybe we should say corporations aren't real people and can have their campaign contributions regulated.  We might want to include unions and non-profits, too.  Dunno.

Are there mixed messages and lousy messengers at the moment?  Sure, but who the fuck cares?  We're still in the early stages, throwing shit at the wall to see what sticks, debating and trying to reach consensus.  Takes geologic time to sort complicated social and political stuff out.

Personally, I'm not overly invested in any precise amendment language, let alone an amendment at all, even though I took the lead in our town's resolution effort.  I'm interested in fixing the problem of money's being equated with speech and having more influence on elections than actual ballots cast by non-artificial person units.  If SCOTUS revisits Citizens thanks to the Montana Supreme Court's decision, or we get an amendment, or somebody clever finds a way to write better campaign finance law to get around the ruling, whatever, I'll be happy.

For now, let's keep pushing from many sides and let the process play out.

ntodd

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Thursday Busydayblogging

Busy day for the toddler, then he crashed in Daddy's command chair.

ntodd

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War: What The Matrimonial Bloody Hell Is It Good For?

Via Balloon Juice, I see Paul Fussell died.  Honestly, he's one of those people like Abe Vigoda who I assumed had already done so, but I'm still sad.

I referred to Fussell a couple times on this blog, and read aloud from his book Wartime once on a (now lost) podcast dedicated to the word 'fuck':

The use of fucking as the adjective and fucker as the noun of all work was so common among British troops that it was noticed in an oficial War Office pamphlet of October, 1941, issued not to reprehend the usage but simply to warn against careless identification of strangers. In North Africa a German spy dressed in British uniform had succeeded in deceiving a British unit because he spoke impeccable Other Ranks English. The War Office pamphlet warned: “lt should . . . be impressed on all ranks that the use in conversation of ‘f--—-s’ and ‘b----s’ is not necessarily a guarantee of British nationality.”

Now and then even the troops wearied of fucking and tried substituting equivalents like conjugal or matrimonial, as in “Where's the conjugal NAAFI in this camp?” or “What the matrimonial bloody hell do you think you're doing?” Fucking was so common and boring by the time of the Vietnam War that the Americans merely alluded to it and accommodated it to the more modern abbreviation habit. Thus a new arrival was a FNG or Fucking New Guy, and, as an army nurse remembers, a little rubber boat used for frolics while swimming was a LFRB, short for Little Fucking Rubber Boat.

After several years of fucking, one did not have to be a puritan to find it tedious. On Guadalcanal, Sherwood F. Moran, a Japanese language expert, said wearily to one marine, "Yes, I know, you saw the fucking Jap coming up the fucking hill and raised your fucking rifle and shot himbetween the fucking eyes.”

Ernie Pyle is also reputed to have had enough, even if his remonstrance took ironic form. “I am sick and tired of that word --,” he once said. “If I ever hear the ---- word again I'm going to throw up.”

But the use of the term could never be curbed because it was so essential to military meaning:

Once, on a misty Soottish airfield, an airman was changing the magneto on the engine of a Wellington bomber. Suddenly his wrench slipped and he flung it on the grass and snarled, “Fuck! the fucking ucker’s fucked.” The bystanders were all quite well aware that he had stripped a bolt and skinned his knuckles.”

NTodd's Pa's Wife got me the book the summer before my sophomore year of college.  As it turns out, the following spring I took a WWII class taught by an old friend of the author's.  The prof once assigned an article by Fussell, but I didn't read it since I'd read his book and I referenced that in the associated paper instead.  Wartime made quite an impact on me, and I highly recommend it.

ntodd

PS--I took the class pass/fail, skipped several weeks in a row during a rough patch when I rarely attended any course, got an A- (which only counted as a 'pass').  The prof in question was right out of Central Casting: a tall old man, wore the tweed jacket with leather elbow patches, chain smoked right outside the room (you could still smoke inside back then) until classtime.  Began our section on the Pacific Theater by saying, "the Japanese...are a little people."  He also told me I didn't have to be so conversational in my papers and exams--I now look back at it as practice for blogging.

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EmLOLument

I'm sure about 30 seconds after WHAT HATH GOD WROUGHT, there were articles bout how telegram style was going to destroy our ability to communicate.

ntodd

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In Defense Of A Birther

Outside the Beltway on AZ's SecState birther nonsense:

The fundamental issue is this:  constitutionally the citizens of the United States do not vote for the president of the United States.  They vote for the electors who, in turn, vote for the president.   Even though most state ballots only list the candidates the voter is not voting for the candidate, but for the slate of electors (indeed, in AZ the electors are listed on the ballot—see here and statute 16-502 ).  As such, the states as political units in the process do not oversee the actual candidates for president.  This means that the states themselves may have no constitutional standing in requiring any kind of proof of eligibility of candidates (and hence no grounds for indulging, constitutionally at least, in birth fantasies).   

Well...at first blush, you can certainly argue that states have no oversight of presidential candidates per se.  However, let's consider Article II, Section 1:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors...

So in fact the states DO have control over the electors themselves and can make pretty much any rules they want regarding their selection.  Today we're used to statewide popular votes, but it wasn't until 1836 that the States--SC being the sole holdout until 1860--uniformly ditched selection by the Legislature.  And we see evidence of State prerogative in ME and NE, who chose in the 20th century to ditch winner-take-all.  Point is that States have a lot of discretion in how presidential elections work.

SecState Bennett referred to AZ statute 16-507 as one justification for his request of Obama's birth certificate:

[T]he entire group of electors of each party shall be enclosed in a scroll or bracket to the right and opposite the center on which shall be printed in bold type the surname of the presidential candidate and vice-presidential candidate.

Thus, there is an explicit link between the electors presented on AZ's ballot and the candidates they are expected to vote for (I'll note AZ has no faithless elector ban on the books, however).  One could make the argument--though SecState Bennett does not--that it is in the State's interest to ensure the candidates that voters presume will be chosen by their electors (who are selected by the candidates' parties) are actually qualified for the office.

It's a stupid gambit, to be sure, but I think the constitutional argument that's been made against it is a little too clever by half.

ntodd

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Nullify-a While You Can, Monkey-Boy!

Via TP, I see the Iowa GOP's platform is brimming with more constitutional word salad than Ron Paul at an Applebee's, including:

A Right to Life

1.4 We disagree with Roe vs. Wade and Doe vs. Bolton as “settled law.” [What about Casey, which reaffirmed Roe?] Under the Tenth amendment, these Supreme Court decisions have no authority over the states.

...

Government: Judicial Branch

1.1 We demand that U. S. and state courts operate under the guidelines [uh...guidelines?] stated in Article VI of the U. S. Constitution, where it establishes that the United States Constitution is the supreme law of the land.

...

Government: State and Local

1.1 We support constitutional state sovereignty including nullification of federal oversteps [Dear Strict Constructionists: where is the state power to nullify spelled out?].

Once again we see wingnuts waving the Tenth around as some sort of "Get Out Of The United States Free" card.  The dissonance is awesome: we want the courts to follow the Constitution, but if we don't like what they or Congress do in their constitutional roles, we'll just say "LALALALALALA, WE CAN'T HEAR YOU AND YOU'RE NOT OUR REAL DAD!"

I almost hesitate to refer to longstanding judicial doctrine, but here are some Supreme Court decisions they might not be aware of that pretty much nullify nullification:

• Prigg v PA (1842): [U]pon just principles of construction...the legislation of Congress, if constitutional, must supersede all state legislation upon the same subject, and, by necessary implication, prohibit it. For, if Congress have a constitutional power to regulate a particular subject, and they do actually regulate it is a given manner, and in a certain form, it cannot be that the state legislatures have a right to interfere. 

• Ableman v Booth (1858): The language of the Constitution by which this power is granted is too plain to admit of doubt or to need comment. It declares that

"this Constitution, and the laws of the United States which shall be passed in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land, and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."

But the supremacy thus conferred on this Government could not peacefully be maintained unless it was clothed with judicial power equally paramount in authority to carry it into execution...

• Cooper v Aaron (1958): It is necessary only to recall some basic constitutional propositions which are settled doctrine.

Article VI of the Constitution makes the Constitution the "supreme Law of the Land." In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as "the fundamental and paramount law of the nation," declared in the notable case of Marbury v. Madison, 1 Cranch 137, 5 U. S. 177, that "It is emphatically the province and duty of the judicial department to say what the law is." This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system....Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3 "to support this Constitution."

...

"If the legislatures of the several states may at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery. . . ."

As an aside, there's a certain quasi-ironic juxtaposition between the former cases and the latter, of particular interest to me given VT's ante bellum history.

Anyway, the document is chock-full of ignorance and contradictions, not limited to declaring that unborn children have rights whilst rejecting a UN convention that says children have rights, and declaring that healthcare isn't a right but rather a "privilege" whilst ignoring natural rights as understood by William Blackstone, Thomas Jefferson, James Madison and even George Washington's nephew, Justice Bushrod Washington.  

And who the fuck is trying to "remove any mention of God" from the Declaration of Independence?  Are there liberal gnomes breaking into the National Archives and people's homes, scratching out "Nature's God" from every copy?  Are they also removing any mention of the general Welfare and the Necessary and Proper clause from the Constitution, or do we not care about that?

Please tell me this is all an elaborate test of the Infinite Number of Monkeys Theorem by a mad scientist from the 8th Dimension...

ntodd

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When Rights Collide

Freep:

Verbal and physical intimidation of patients by protesters at the Planned Parenthood office and clinic in Burlington has led city councilors to propose legal “safe zones” around such facilities.

The resolution, to be discussed tonight, calls for a buffer zone, extending 35-feet in each direction of reproductive health centers in the city, in which demonstrators may not confront patients, volunteers and staff. 

Ten of the council’s 14 members have co-sponsored the proposed ordinance, which “seeks to balance both the fundamental right to assemble peacefully and to demonstrate on matters of public concern, with the right to seek and obtain reproductive health care services.” 

Notice there is a significant difference between protecting people trying to access medical facilities and shunting anti-government protesters into "free speech zones."  That must be why SCOTUS has upheld such laws:

The First Amendment interests of petitioners are clear and undisputed...On the other hand, petitioners do not challenge the legitimacy of the state interests that the statute is intended to serve. It is a traditional exercise of the States' "police powers to protect the health and safety of their citizens." Medtronic, Inc. v. Lohr, 518 U. S. 470, 475 (1996). That interest may justify a special focus on unimpeded access to health care facilities and the avoidance of potential trauma to patients associated with confrontational protests. See Madsen v. Women's Health Center, Inc., 512 U. S. 753 (1994); NLRB v. Baptist Hospital, Inc., 442 U. S. 773 (1979). Moreover, as with every exercise of a State's police powers, rules that provide specific guidance to enforcement authorities serve the interest in even-handed application of the law. Whether or not those interests justify the particular regulation at issue, they are unquestionably legitimate.

...

The right to free speech, of course, includes the right to attempt to persuade others to change their views, and may not be curtailed simply because the speaker's message may be offensive to his audience. But the protection afforded to offensive messages does not always embrace offensive speech that is so intrusive that the unwilling audience cannot avoid it. Frisby v. Schultz, 487 U. S. 474, 487 (1988). Indeed, "[i]t may not be the content of the speech, as much as the deliberate `verbal or visual assault,' that justifies proscription." Erznoznik v.Jacksonville, 422 U. S. 205, 210-211, n. 6 (1975) (citation and brackets omitted). Even in a public forum, one of the reasons we tolerate a protester's right to wear a jacket expressing his opposition to government policy in vulgar language is because offended viewers can "effectively avoid further bombardment of their sensibilities simply by averting their eyes." Cohen v. California, 403 U. S. 15, 21 (1971).

The recognizable privacy interest in avoiding unwanted communication varies widely in different settings. It is far less important when "strolling through Central Park" than when "in the confines of one's own home," or when persons are "powerless to avoid" it. Id., at 21-22. But even the interest in preserving tranquility in "the Sheep Meadow" portion of Central Park may at times justify official restraints on offensive musical expression.Ward, 491 U. S., at 784, 792. More specific to the facts of this case, we have recognized that "[t]he First Amendment does not demand that patients at a medical facility undertake Herculean efforts to escape the cacophony of political protests." Madsen, 512 U. S., at 772-773.

One must tread lightly when fundamental liberties are concerned, and I think BTV's proposed resolution achieves a good balance with this conflict.  Free speech does not allow you to get up in my grill when I'm exercising my rights--the right to swing my fist ends where the other man's nose begins and all that.

ntodd

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Let A Thousand Delegates Bloom

I'm new to party politics.  Of course I have followed politics and party mechanisms with much interest over the years, but I've always been an Independent, and as an activist coming from outside the system it's a little weird navigating the processes inherent in what Washington, Madison, et al, called factions.

Still, after my first foray as a candidate without party support, I opted to jump in feet first.  The big question was whether I'd actively support a non-duopoly party and sign on with the Progressives, or go with establishment Dems with whom I have less in common ideologically.

In the end, I left the Progressives to the mother of my children, who is their current town chair, and I was elected vice chair of the Democratic county committee in 2011.  This year I became a delegate to our state convention in Barre this coming Saturday.

One of the reasons I decided to join what I've often derided as a corporatist, weak-willed party is the whole "change from within" thing.  It's not that there is a great probability that people like me can pull the organization more to the left, but I have to try.

Vermont gets 27 delegates to the DNC in Charlotte.  One of the people I'm definitely supporting is Tim Briglin of Thetford Center, who writes:

Vermont's delegation...has the opportunity to model for our party and our nation that we are a state of inclusion and community, and that Vermont abhors discrimination and prejudice in all formst.  I will press our delegation to play a leading and visible role in support of President Obama and in opposition to North Carolina's suppression of its citizens' civil rights.

There are many ways to effect change, large and small, and one way is to do whatever you can to shift that Overton Window.  I appreciate what other folks are doing to build alternative parties, cast protest votes, etc.  For now, I'm walking this path and will see where it leads.

ntodd

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Traffic Rules

Clearly just another tyrannical usurpation of individual liberty:

Bicyclists be warned: Traffic rules in Shelburne apply to you, too.

Following “an exorbitant amount of complaints” this spring about scofflaw bicyclists on the town’s scenic roads, officers are writing tickets for “blatant” offenses such as running stop signs or red lights, Shelburne Police Chief James Warden said.

The tickets have led to a burst of comment and commiseration on the website of the Green Mountain Bicycle Club.

One rider posted on May 9, shortly after receiving a ticket, that this was the person’s first run-in — after riding for thousands of hours and hundreds of thousands of miles over 19 years: “Tonight riding home was my 1st ticket for rolling through a stop sign, $214 + two points on my license. I guess there wasn’t much else going on in Shelburne tonight?”

Another said a $195 fee for the Killington Stage Race “is starting to look like a bargain now compared to a commute or training ride in Shelburne ($240 + 2 points on drivers license). 

Warden said his department has no special animus for bicyclists. “It had gotten to the point where we had to do something about it,” he said, “but there’s no policy to go out and nail every bicycle on the road. Our goal is to see no one gets hurt.”

Jeebus, these bikers make the rest of us look bad.  Traffic rules are there for everybody's safety, including yours, assholes.  And you are, in fact, violating the law:

23 V.S.A. § 1136

Every person riding a bicycle...is subject to all of the duties applicable to operators of vehicles, except as to those provisions which by their very nature can have no application.

You have to signal, stop at signs and lights, and yield for pedestrians, just like any other vehicle.  Get over it, you fucking whiners.

ntodd

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Also On This Date

NC seceded:

We, the people of the State of North Carolina, in Convention assembled, do declare and ordain, and it is hereby declared and ordained, That the ordinance adopted by the State of North Carolina in the Convention of 1789, whereby the Constitution of the United States was ratified and adopted, and also, all acts and parts of acts of the General Assembly, ratifying and adopting amendments to the said Constitution, are hereby repealed, rescinded and abrogated.

We do further declare and ordain, That the union now subsisting between the State of North Carolina and the other States under the title of the United States of America, is hereby dissolved, and that the State of North Carolina is in the full possession and exercise of all those rights of sovereignty which belong and appertain to a free and independent State. Ratified the 20th day of May, 1861.

Their constitution, which now bans unions other than heterosexual marriage, also bans secession in Article I, Section 4:

This State shall ever remain a member of the American Union; the people thereof are part of the American nation; there is no right on the part of this State to secede; and all attempts, from whatever source or upon whatever pretext, to dissolve this Union or to sever this Nation, shall be resisted with the whole power of the State.

So sorry, NC, you're stuck with us gay lovers in VT just like you and your fellow secesh were ante bellum:

Vermont's anti-slavery laws and resolutions irritated the Southern States exceedingly, a knowledge of which did not in any wise deter the Green Mountain lawmakers from expressing their opinions freely and fully.

In a message to the Virginia Legislature, Governor Wise, referring to one of the Vermont resolutions on slavery, said: "We cannot reason with the heads of fanatics, nor touch hearts fatally bent upon treason." Copies of Vermont resolutions relating to Kansas sent to the executives of the various States, called forth along message to the Georgia Legislature from Gov. Herschel V. Johnson, in which he characterized the resolutions as insulting. 

The Vermont resolutions are said to have caused "much high feeling and indignation in the House." One member offered a resolution directing the "Governor to transmit to the Governor of Vermont, with a request to lay the same before the State Legislature, the Georgia resolutions of 1850, declaring that the State would resist acts of aggression therein enumerated, "even (as a last resort) to the disruption of every tie that binds her to the Union"; and enclose the same in a leaden bullet. Other members suggested that powder and a coil of rope should be included. 

The following resolutions were offered:

"Resolved, By the General Assembly of the State of Georgia, That His Excellency the Governor be and is hereby requested to transmit the Vermont resolutions to the deep, dank and fetid sink of social and political iniquity from whence they emanated, with the following unequivocal declaration inscribed thereon:

"Resolved, That Georgia, standing on her constitutional palladium, heeds not the maniac ravings of hellborn fanaticism, nor stoops from her lofty position to hold terms with perjured traitors."

In the Georgia Senate this resolution was offered: 

"Resolved, That His Excellency, President Pierce, be requested to employ a sufficient number of able-bodied Irishmen to proceed to the State of Vermont, and to dig a ditch around the limits of the same, and to float 'the thing' into the Atlantic."

Not sure where you'll find any able-bodied Irishmen today...

ntodd

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Does The 14th Amendment Only Protect Hetero Corporations?

Continuing my current obsession, I'll note that SCOTUS struck down CO's anti-gay Amendment 2 in Romer on this date:

One century ago, the first Justice Harlan admonished this Court that the Constitution "neither knows nor tolerates classes among citizens." Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (dissenting opinion). Unheeded then, those words now are understood to state a commitment to the law's neutrality where the rights of persons are at stake. The Equal Protection Clause enforces this principle and today requires us to hold invalid a provision of Colorado's Constitution.

...

The Fourteenth Amendment's promise that no person shall be denied the equal protection of the laws must co-exist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons...We have attempted to reconcile the principle with the reality by stating that, if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end. 

...

[E]ven in the ordinary equal protection case calling for the most deferential of standards, we insist on knowing the relation between the classification adopted and the object to be attained. The search for the link between classification and objective gives substance to the Equal Protection Clause; it provides guidance and discipline for the legislature, which is entitled to know what sorts of laws it can pass; and it marks the limits of our own authority. In the ordinary case, a law will be sustained if it can be said to advance a legitimate government interest, even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous...By requiring that the classification bear a rational relationship to an independent and legitimate legislative end, we ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law.

...

It is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance. "`Equal protection of the laws is not achieved through indiscriminate imposition of inequalities.'" Respect for this principle explains why laws singling out a certain class of citizens for disfavored legal status or general hardships are rare. A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.

Ya gotta love a Scalia dissent that starts by mentioning Kulturkampf...

ntodd

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You Can Do A Lot With 50 Words

I didn't know this until Ericka told me recently, but one of Sam's favorite books was born from a wager.  Dr Seuss' editor bet him he couldn't write a book with a mere 50 words.  Turns out he could, and did, winning 50 bucks.

The words, in order of appearance:

i am sam that do not like green eggs and ham them would you here or there anywhere in a house with mouse eat box fox could car they are may will see tree let me be on train say the dark rain goat boat so try if good thank

Sam's vocabulary at this point is significantly greater than 50 words, though he still lacks articles and conjunctions, which means he still couldn't write Green Eggs and Ham...

ntodd

PS--Hey, DNA only has 4 nucleobases, and writes a fairly interesting story.

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Big Truck Day

At first, Sam was just overwhelmed by all the vehicles and didn't even want to drive.

Then he saw the racecar.

Ready to get out.

Oh, wait, lemme tell you how this thing works.

Got to touch a real, dirty VT bus!

So this is what it feels like to be a big kid, like some of my friends at daycare.

These wheels are GINORMOUS!

Rather than driving, he spent much of his time closing doors.

He now understands the perspective of dirt in a backhoe.

ntodd

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Friday Catblogging

Jeebus, it seems everybody's bored with my current constitutional obsession.

ntodd

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Friday Foetus Blogging, Week 30: It's The Little Differences

I mean, we got the same shit now that we got then, but it's just...it's just, now it's a little different.

ntodd

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Speaking Of Stigma

There is nothing either good or bad, but thinking makes it so.

 - Hamlet, Act II, Scene 2

I see the DC Circuit upheld Section 5 of the Voting Rights Act.  Good.

Back when the temporary sections were renewed in 2006:

Some Republicans in Georgia, Texas and other states say such efforts to disenfranchise minorities disappeared long ago, and that continued coverage by the act is an unfair stigma.

I can't help on this day but quote from the majority in Plessy:

We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.

Pre-clearance states have at least 12 more years to go with this stigma, from where I sit...

ntodd

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Enjoyment Of All Our Faculties

A day after celebrating Brown, we remember the infamous Plessy decision.  Former Kentucky slaveholder, Justice Harlan, was the sole dissenter:

[I]n view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved. It is therefore to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a State to regulate the enjoyment by citizens of their civil rights solely upon the basis of race.

In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case...But it seems that we have yet, in some of the States, a dominant race -- a superior class of citizens, which assumes to regulate the enjoyment of civil rights, common to all citizens, upon the basis of race. The present decision, it may well be apprehended, will...stimulate aggressions, more or less brutal and irritating, upon the admitted rights of colored citizens...

12 years later he dissented in Berea College v Kentucky:

This Court has more than once said that the liberty guaranteed by the Fourteenth Amendment embraces "the right of the citizen to be free in the enjoyment of all his faculties," and "to be free to use them in all lawful ways."

...

Have we become so inoculated with prejudice of race than an American government, professedly based on the principles of freedom and charged with the protection of all citizens alike, can make distinctions between such citizens in the matter of their voluntary meeting for innocent purposes simply because of their respective races?

Harlan did share the common paternalistic view of late-19th century white men that they were, in fact, superior in faculties, accomplishments, etc, which is why it's so interesting that he did not let such prejudice influence his understanding of constitutional protections.  That's as crazy as a gay judge being able to rule on a bar fight between a straight and a queer...

ntodd

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We Stopped Dreaming

(h/t to a former student)

ntodd

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Marriage

It was God's work before the fall, and it is only God's work in the restoration.

 - George Fox

While not the most Quakerly of Friends, I certainly appreciate our traditional approach to marriage.  It's really nobody's damned business, ultimately, especially not the State's.  I can imagine an endpoint when civil marriage really becomes an anachronism, though that ain't coming any time soon.

For now I see some value in the institution--or rather, I see value in not getting rid of it, as that could cause significant problems from a legal perspective.  So much of the marriage contract is wrapped up in trying to provide stable child rearing, property rights, inheritance, insurance, ad nauseum, that it would be impractical and extremely disruptive to wake up one morning and have these arrangements unavailable (even if you grandfathered existing arrangements).

So let's just assume that we're stuck with it, for better or worse.  The question then becomes whose responsibility it is to manage the mechanisms that govern civil marriage.  I happen to agree with President Obama that the states are not only the traditional, but also natural, arbiters of marriage law.

That said, there's a clear role for the Federal government.  Not in the sense of concurrent powers per se, but in its exercise of powers related to defending civil rights and maintaining some base level of uniformity amongst the states (hello, full faith and credit!).

I don't think it makes any sense for couples to go to the Feds for marriage licenses, nor does it for the central government to dictate ages of consent, common-law marriage, etc.  States are really best-equipped for such details.  However, they can also be quite capable of stomping all over fundamental rights, so we need some kind of check against more localized tyranny in the form of, oh, dunno...guarantees of due process and equal protection unded the law, say.

Loving v Virginia didn't take away the states' prerogative concerning how marriage works, but did ensure that they could take away "one of the 'basic civil rights of man,' fundamental to our very existence and survival."  State and Federal interests overlap and are not mutually exclusive.

Much like our historical trend toward democratization of suffrage and other civil rights, the US has seen an evolution of inclusivity in state-sanctioned marriage.  Despite setbacks, I think marriage equality is inevitable--there will be many more glorious defeats before we achieve final victory, but that arc is bending.

This shouldn't come as a surprise.  As much as the anti-gay folks try to paint marriage as something immutable, it's always been a fluid institution, frequently redefined by states, churches and prevailing social norms. Today, we've seen a variety of justifications for the hetero monopoly on marriage, and certainly there are kernels of truth to each.  

There's still arguably a state interest in "responsible" procreation, for example--we probably don't really want to encourage population growth at this point, but children who are brought into the world need to be cared for and whatnot.  But I'm not sure what procreation and marriage really have to do with each other when there are significant numbers of childless married couples and even more unmarried couples with children [waves to the camera].  Is the state going to force couples with children to get married, or not allow childless couples to remain wed?  I'm not sure even Ron Paul or Rick Santorum would admit the possibility of some Republic of Gilead.

There are similar problems with objections regarding child rearing, stability of the family unit, etc, which end up being circular at best.  I've seen arguments along the line of, "we can't let gay people get married and/or adopt because the stigma will cause the children to be bullied."  Um...self-evident, methinks, vis Brown v Board that you create the stigma through this very "reasoning" and legally-sanctioned separation.

I'm sure Justice Scalia and his cadre will be able to contort themselves to deny the rights and responsibilites, and basic protections of law, to people whose exercise of free association offends their values.  I do hope, however, they consider the concluding paragraph from Griswold:

Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.

Marriage between consenting adults is a fundamental right.  Engaging in private sexuality between consenting adults is a fundamental right.  So long as we confer legal benefits to state-recognized coupling--the justification of which is a whole other issue--we must protect them for LGBT persons as much as we do heteros, per the 14th Amendment.  

Anything less is state-sanctioned bigotry and discrimination, and beneath the dignity of America, her people and ideals.  We've fallen many times, we work toward the restoration...

ntodd

PS--It seems fitting that a couple married in Vermont were at the heart of probably the earliest SCOTUS case regarding marriage: Maynard v Hill (1888).

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Thursday Oldmanblogging

The Tune warms his aching joints in the sunlit living room.

ntodd

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Equal Protection And Dignity Under The Law

In a variety of SCOTUS cases, the concept of 'dignity' has been a key element:

• Trop v Dulles (1958): The basic concept underlying the Eighth Amendment is nothing less than the dignity of man.

• McKaskle v Wiggins (1984): [T]he right to appear pro se exists to affirm the accused's individual dignity and autonomy.

• Planned Parenthood v Casey (1992): These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment...Part of the constitutional liberty to choose is the equal dignity to which each of us is entitled. 

• Lawrence v Texas (2003):  It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons...The stigma this criminal statute imposes, moreover, is not trivial. The offense [is] a criminal offense with all that imports for the dignity of the persons charged.

That word is not used in Brown v Board, issued on this day in 1954, but dignity is still clearly at the heart of that landmark decision:

To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. The effect of this separation on their educational opportunities was well stated by a finding in the Kansas case by a court which nevertheless felt compelled to rule against the Negro plaintiffs:

"Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system."

...

The words of the [14th] amendment...,contain a necessary implication of...exemption from legal discriminations, implying inferiority in civil society...

So today when it comes to marriage equality, it's not just legal protections at stake, but a recognition that none of us are inferior to anybody else.  I guess that's why Andrew Sullivan got choked up discussing the significance of Obama's words:

I never understood the power of a president's words until that day, really. I thought, all that matters is the states and the Congress and the Defense of Marriage Act and I had all this in my head and suddenly this man saying, 'I'm with you, I get it, you're like me, I'm like you, there is nothing between us, we are the same people and we are equal human beings and I want to treat you the way you treat me.' That -- that was overwhelming. That's all I can say. I was at a loss for words.

Dignity--whether it be regarding civil marriage or service to one's community--is fundamental to individual liberty and the rule of law.  I would hope the people of VA and NC in particular reflect on that on this historic date.

ntodd

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