Monday, June 30, 2003

And if you haven't read this case, I recommend it -- even for those of you that don't normally kick back and read legal opinions. It's a glistening piece of legal writing from judicial superstar Frank Easterbrook, regarding a very interesting legal argument concerning private property.

 5:24 PM
Time for an afternoon coffee break after a contentious meeting, and a little rumination on Peter's denial of Christ. A week ago, in Sunday school, the teacher pointed out an interesting verse in Luke that I had never noticed before.

In Matthew and Mark, the story is fairly straightforward. For instance, in Matthew 14 (NET version):

Then Jesus said to them, "You will all fall away, for it is written,
'I will strike the shepherd,
and the sheep will be scattered.'
But after I am raised, I will go ahead of you into Galilee." Peter said to him, "Even if they all fall away,
I will not!" Jesus said to him, "I tell you the truth, today -- this very night -- before the rooster crows
twice, you will deny me three times." But Peter insisted emphatically, "Even if I must die with you,
I will never deny you." And all of them said the same thing.

Both Gospels follow nearly the same text, which is pretty curt. Christ acknowledges that bad times are coming, but he reiterates that he will return to reassert his own leadership over the flock. The version in John is very similar, with even more of a hurt tone:

Peter said to him, "Lord, why can't I follow you now? I will lay down my life for you!"
Jesus answered, "Will you lay down your life for me? I tell you the solemn truth, the rooster
will not crow until you have denied me three times!"

These depictions emphasize Christ's role as a shepherd and leader, and simultaneously reiterate the fact that we are a bunch of dumb sheep that will bolt at the first sign of danger. There's very little here to prevent the reader from imagining an exasperated Christ, muttering as he rummages around the hillside after his flock.

That's what makes Luke's remembrance so spectacular, because he remembered a key piece of dialogue that was not included by the other authors. After telling the Disciples to shut up about which of them was the greatest -- not their finest hour, certainly -- Jesus explained that they should serve each other on earth so that they would sit in judgment in the Kingdom. He then got irritated that Peter's attention was drifting:

"Simon, Simon, pay attention! Satan has demanded to have you all, to sift you like wheat,
but I have prayed for you, Simon, that your faith may not fail. When you have turned back,
strengthen your brothers." But Peter said to him, "Lord, I am ready to go with you both to
prison and to death!" Jesus replied, "I tell you, Peter, the rooster will not crow today until
you have denied three times that you know me."

I find this additional language to be absolutely incredible; an unparalleled statement of forgiveness. First, Jesus isn't speaking as a disgruntled shepherd here; he's trying to prepare the sheep to take care of themselves. It's more dangerous from His point of view; like letting the kids stay home without a babysitter. Second, carrying the babysitter analogy further, Jesus picked one person in particular who would receive supernatural help in carrying his burden. Sometimes Jesus picks people for his own purposes, and he doesn't always pick the most faithful or the most learned. A sunburned fisherman was chosen to a position of leadership, even though he was the very one that Jesus knew would fail in his initial task. John wasn't the one chosen, despite being the particular favorite.

Third, and most of all, I am taken by the magnanimity of Jesus. Jesus did not pray that Peter would not betray him, which would have been so much easier, but rather prayed that Peter's inevitable failings would not destroy his ultimate faith. Jesus was willing to forgive the betrayal before it happened -- how many of us can say that? -- and indeed was so devoid of vengeance and spite that he prayed for the well-being and recovery of his betrayers. This was just a microcosm of his larger sacrifice: made not only for the people he had met, but also for those who would follow, and who would undoubtedly sin, and sin again.

What I find in this language is a repudiation of the "reluctant Christ" that can emerge from legalism. This is the notion that Christ wrote out a contract of forgiveness and is somehow obligated to accept anyone willing to sign it, no matter how contemptible He finds them. (Or, as Dennis Miller said of Chuck Colson's conversion, "Colson says he gave his life to Christ -- I wonder if Christ saw him coming first. Maybe he said 'There's that bastard Colson coming; he probably wants to give his life to me. Taxi!'"). But the Jesus in this passage is not reluctant; he's passionate in his love for the people that will hurt him. He not only forgives Peter in advance for hurting Him terribly, but he also prays that Peter will have enough faith to cast off his shame and forgive himself. Or, to put it another way, just because the church is the Bride of Christ, we should not assume that we're part of an arranged marriage. Christ ardently loves his bride, and wants to build her up. When I think of how much I love Shannon, and how infinitesimal that earthly love is compared to the Divine, I am simply overwhelmed.

I also find in this passage an insight into the purpose of this life. Christ could have easily reinforced Peter so that he would not fall away, but that wasn't His plan. Christ wanted a redeemed Peter, not a flawless one. And that's what he needs from each of us -- redemption, not perfection.

 5:07 PM
More Signs of the Apocalypse

Wars, disease, unrest, earthquakes...

...and the fact that Jim Carrey is friends with Steven Hawking. Forget the main thrust of the silly article -- Hawking ran over Carrey's foot with his motorized wheelchair (which we know from "The Simpsons" has a helicopter attachment) -- and focus on the underlying fact that JIM CARREY is friends with STEVEN HAWKING. The man who emerged from a rubber rhino's butt trades birthday cards with the most brilliant scientist on earth.

This profoundly rearranges my understanding of the universe. In my perception of the world, Jim Carrey and Steven Hawking do not exist in the same species, much less the same mental grouping. But this discovery offers more support for that implicit American supposition that all famous people must know each other. The obvious basis for this assumption is the fact that you tend to meet all sorts of people when you do Leno and Letterman and Regis and so on, but I think it's actually deeper than that. I've always thought that this assumption was based on the idea that all "famous" people are co-workers, of a sort, and that the gossip pages are really no different than a conversation about what happened at the office party.

 10:58 AM
My, but she was yar

Katherine Hepburn, ingenue of the 30s and 40s, matriarch of the 60s, and elder of the 80s, dead at 96.

For someone whose first encounter with Katherine Hepburn was "On Golden Pond," "The Philadelphia Story" was a revelation, as was "Bringing Up Baby." And God knows that we could all aspire to be Tracy and Hepburn -- even in "Adam's Rib," which most explicitly presented the possibility of infidelity, their love was palpable. I have married friends that still call each other "Pinky" because of that movie.

So let's all agree to ignore "Dragon Seed" and honor her today by being witty and bold.

 8:25 AM

Sunday, June 29, 2003

Oh, and while I'm thinking of it, the new Fountains of Wayne album "Welcome Interstate Managers" is the best pure pop album I've heard in a long, long time. Have a listen to the samples on their website, and then run out and buy the rest of it. It makes other "pop" music sound like the soul-sucking, intelligence-insulting, death rattle that it truly is.

Not only is the music catchy without being mind-numbing, it has absolutely marvelous lyrics. (You can get a flavor from the titles of the songs, like the tune about slow service called "Halley's Waitress" and "Bright Future In Sales"). And if there is any justice in the world,* the song "Stacy's Mom" should become the guilty pleasure of the summer.

*There isn't.

 9:07 PM
Cancel the pacific tone of the previous post. Jonah has reached another milestone: the first time he managed to spill something that had heretofore been out of his reach. The little guy can't crawl, but he can "inchworm" his way along by sticking his butt up in the air and then throwing his arms forward.

We're glad that it was just a glass of soda, and that nothing was damaged. But it's a warning shot of sorts...

Those of you with older kids can stop chuckling now.

 8:51 PM
There are times when it's all worth it. Like when he's smiling and chattering joyfully to himself. Like now.

In light of yesterday's post, I feel that it's best to point out the upside as well.

 7:55 PM

Saturday, June 28, 2003

My prior post makes me think of a poem that I discovered via the play "White Chameleon" by Christopher Hampton. It's based on the legend surrounding Marc Antony, who betrayed Rome to make his stand in Alexandria alongside Cleopatra. On the night before his battle with Caesar's army, Antony and his troops heard the ghostly sound of music, which signified the god Hercules withdrawing his support of Antony. Choices have consequences, after all.

I often think of this poem, and in those moments of reflection I cannot get the true measure of myself.

The God Abandons Antony
by Constantine Cavafy (1911)

When suddenly, at midnight, you hear
an invisible procession going by
with exquisite music, voices,
don’t mourn your luck that’s failing now,
work gone wrong, your plans
all proving deceptive—don’t mourn them uselessly.
As one long prepared, and graced with courage,
say goodbye to her, the Alexandria that is leaving.
Above all, don’t fool yourself, don’t say
it was a dream, your ears deceived you:
don’t degrade yourself with empty hopes like these.
As one long prepared, and graced with courage,
as is right for you who were given this kind of city,
go firmly to the window
and listen with deep emotion, but not
with the whining, the pleas of a coward;
listen—your final delectation—to the voices,
to the exquisite music of that strange procession,
and say goodbye to her, to the Alexandria you are losing.

Translated by Edmund Keeley and Philip Sherrard

 9:08 PM
Shannon and I finally got to see Finding Nemo last night, and I can't recommend it highly enough. Fie upon those of you who dared to qualify your recommendations! Fie, Will! Fie! It was THE GREATEST MOVIE ABOUT CLOWNFISH EVER MADE!

My experience at the film was enhanced by two factors. First, I was exhausted to the point of being bleary-eyed, as a result of working 20 hours a day for a couple of days. When you're that tired, every emotion is right at the surface, and even the slightest danger seems like a crisis. Thus, this wasn't a cute film about fish, it was an epic about family and loss, straight out of Chekhov.

The second factor was that I was very aware that I was watching a film about a dad trying to take care of his little one, and that hit a chord with me. It hit that chord hard. With a hammer. And it kept hitting it again and again and again. So, of course, tears were streaming down my face during several scenes of the movie, and Shannon was getting a real charge out of seeing me get so choked up (less so over the talking fish movie itself). It was one of the few times in my life that I ever truly experienced catharsis -- not sympathy, not admiration, but the religious (or semi-religious) experience of perfect harmony of emotion that was the goal of Greek tragedy.

It's safe to say that the big story in my life for the last six and a half months has been the stress, fear, anxiety and nausea that has accompanied Jonah's arrival in the world. Nothing in my life to date prepared me for the feeling that washes over me every time I think of the little guy. Such love, such compassion, such hope, and a gut feeling of pure acid that flushes through my gut. Even right this moment, I hear him chattering in the next room, and I get misty-eyed with love and fear. I'm in a new city, a new job, a new house and I've got a little guy to watch after. It's not even that I feel more trapped than I have ever felt; it's that I never even understood that it was possible for a human to feel like this.

On the night Jonah was born, I called from the delivery room to cancel some tickets that we had at a local theater. We had asked the theater company to waive their normal cancellation policy because Shannon could pop at any time, and they had good-naturedly agreed to do it. When I called the guy to let him know that we couldn't come, he suddenly became the most effusive, positive man I have ever met, and told me some things that I was going to need to know as a new father. This man -- who had the peculiar habit of talking in 50's beatnik-speak -- said to me:

"Baby -- you're gonna find places inside yourself you never even knew you had."

I instinctively knew when he said it that he was right, and the truth of those words has been proven again and again.

Or maybe I'm just tired.

So. Things I learned from "Finding Nemo":
1. The key to real estate is location, location, location.
2. Not all people with short-term memory loss are tattooed killers seeking revenge.
3. Even as a fish, Willem Dafoe is menacing.
4. You have to let kids learn to be bold, try things themselves, and not get discouraged or fearful. And you have to be the role model for that, whether you're ready or not.
5. Sell your Disney stock, because when Pixar negotiates their new contract with them, they're going to drive one hell of a hard bargain.

 8:39 PM

Friday, June 27, 2003

The greatest ad ever: streaming for broadband and smaller download for modem.

606 takes. No computers.

 6:59 PM
Just the guy every father hopes to see at the door, coming to take his daughter out on a date. I suppose I shouldn't be surprised that he's a murderer and a speed freak; it's not like he's going to get a paying job.

Thoughts of drugs turn my attention to the book I just finished: "Reefer Madness," by Eric Schlosser. I recommend it. Schlosser does a good job of exploring the "underground" economy and its effects on the "real" economy, and did almost as good a job of getting under my skin as he did in "Fast Food Nation." Some stats I remembered:

1/8 of the UK's GDP comes from black market activity.
America's #1 legal crop is corn, at $16 billion. The value of the annual marijuana crop is between $4 and $24 billion.
Americans spend more on porn than on Hollywood movies.

Of course, the book is a slightly reedited collection of his excellent reports for The Atlantic...
In the Strawberry Fields
Reefer Madness
Marijuana and the Law
More Reefer Madness
... so you can get a taste of the book there. It's good , but "Fast Food Nation" is great, and "Reefer Madness" unfortunately suffers by comparison. "Fast Food Nation" changed the way I looked at the world -- probably because it wasn't predictable.

Nevertheless, the best writing on porn I have ever seen is not in "Reefer Madness" but rather was a lengthy article on the Adult Video Awards written for Premiere Magazine in September 1998 by "Anonymous" (David Foster Wallace). Keen insight, real heart, and a great sense of humor. Apparently not available online.

 4:24 PM
By the way, I highly recommend the site The Memory Hole. It's devoted to preserving information that The Powers That Be would rather pretend never existed. The premier event on the site right now is the footage of Dubya when he was told about the attack on the second tower on 9/11. Andrew Card tells him that America is "under attack," but Dubya continues to sit in the classroom for well over five minutes, like he hadn't a care in the world. He even sat there for a full thirty seconds waiting for the kids to get out their books so they could read to him.

Oh, by the way, this should not in any way cause you to doubt that the Secret Service was scared that Bush was a target on that day. That was why they bounced him across the country and kept him away from Washington. Of course.

Another interesting point: Bush cheerily admitted that there is no link between Al Qaeda and Iraq. Of course, something like forty percent of Americans somehow got the opposite impression.

 2:06 PM
It's not so much who won, though that's nice. It's the fact that the rumored Republican attempt to stuff the ballot box for Sharpton apparently failed, if it ever existed.

I especially like the text about how the MoveOn.org "primary" is bigger than New Hampshire and Iowa combined.

 1:52 PM
Mom asks a good question: "Is there ANY possible way in the world to uphold laws that prohibit adult people's practicing consensual sex in private as they choose?"


If that answer is unsatisfactory to you, here's my not-so-quick summary of Con Law I:

We live in a federal democracy, which means that a state is free to pass any law that is not barred by the Constitution or preempted by a law of the United States in an area given solely to the United States. So a clear majority of the people of Texas want to outlaw sodomy because it offends their Judeo-Christian values, even though it is a victimless crime. (This is where Scalia gets off track by citing "bestiality" and the like; there's no consent there.) The people of Texas have spoken, as is their right unless the Constititution says otherwise. But which part of the constitution -- which literal part -- says that a state cannot pass laws barring certain sexual acts? Abortion? Marriage? Contraception?

One school of thought says that the whole notion of a constitution is that it protects liberty, justice and such, and that it is simply improper to allow government interference into such things. Otherwise, the majority could win out in every circumstance, just like Ambrose Bierce's comment that a democracy can only survive so long as the majority doesn't realize they can vote themselves money out of the public treasury. Unfortunately, that approach can ignore the fact that the Constitution is just a written compact between the people and their government, and is not carte blanche for the Supreme Court to do whatever it wants to do. It contains limitations, and those limitations are words.

The other school of thought is that the Constitution only means what it says. The word "privacy" never appears in it, nor does the concept that the Supreme Court gets to decide what's morally right. That right belongs solely to the elected representatives of the people. Of course, this approach can ignore the fact that Constitutions are deliberately written with vague terms ("freedom," "due process," and the like) that offer the courts a lot of leeway in interpretation.

The result is an absolutely extraordinary strain upon the words of the Fourteenth Amendment: "nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." (The prior clause about "privileges and immunities" was effectively erased from the Constitution in 1873, in The Slaughterhouse Cases. Of course, that was a travesty, but it's too far gone to resurrect at this point.) The same pressure is put on the similar language in the Fifth Amendment, applicable to the federal government.

Much has been made of the notions of "equal protection" and "due process," and how they are unhelpfully reflexive. "Equal protection" means that all people situated alike must be treated alike, but "situated alike" begs the question. By what standard? Who decides what the relevant "alikeness" is? And "due process" on its face merely means that people get the usual legal processes. One explanation of these two clauses is that if Congress passed a law saying that all people that were exactly six feet tall will be killed, equal protection would require that everyone be subjected to the same measurement method, and due process would require the right to appeal to a higher court of measurement.

But, of course this analysis seems unsatisfactory to many, because we naturally think that Congress just can't do that. So a substantive element started to creep into these clauses. The equal application of the laws became a guarantee of equal laws. That is, the Supreme Court started to use "classifications" as a way to getting at the "situated alike" problem. Under this analysis, the Court first asks what classification is created by the law, and then asks what level of suspicion it should apply to that classification. And, being the ever-mushy Supreme Court, they created a sliding scale to express that idea. Because the Fourteenth Amendment was aimed at the "big issues" like race, religion, and alienage, any law that purports to sort people based on those characteristics must be "narrowly tailored" to correct a "compelling state interest." This was called "strict scrutiny." But if the law doesn't touch on those Fourteenth Amendment landmines, it need merely be "rationally related" to a "legitimate" objective. (The Court has since suggested that distinctions based on gender fall in between these extremes, through something called "heightened scrutiny," and has been very, very coy about the proper treatment of homosexuality.)

This would solve the problem of the six-foot-tall law above. The Court would ask what classification was being created, and finding that height is not any of the Big Issues, would ask whether that law was rational, or addressed a "legitimate" objective. And it's clearly wacko. Or, to use a more current example, Justice O'Connor's opinion in Lawrence would address the Texas sodomy law as an Equal Protection problem: it discriminates on the basis of sexual preference, which is irrational in the context of a sodomy law. That is, while it may make sense to outlaw all sodomy (O'Connor said exactly that in Bowers v. Hardwick), it makes no sense to allow it for some and not for others.

But equal protection only applies to classifications of persons based on their characteristics. What about a law that outlawed red pickup trucks? That was where the concept of "substantive" due process came in, which Scalia has rightly criticised as a contradiction on par with "white blackness." But the Court more or less hit on the idea that "life, liberty or property" would be meaningless if there were not some restraints on the power of Congress. So, another sliding scale gets created. If the law imposes on a "fundamental" liberty, then the Court applies a harsh standard of review. If the law merely restrains liberty -- nearly every law does -- then the court looks for a rational basis and a legitimate state interest. This makes sense in light of the explicit protections of the Constitution, such as freedom of speech or assembly. A law that restrains the freedom of speech clearly must be well-justified. A subsequent case explained that "fundamental liberties" were not merely those made explicit in the Constitution; they could also be those liberties "deeply rooted in this Nation's history and tradition." But a law that restrains commercial goods need only be "rationally related to a legitimate state purpose."

But this once again leads to the great constitutional problem: how do you ask the question? Narrowly or broadly? For instance, Scalia asks whether sodomy is a "fundamental liberty" such that it is recognized by the Constitution or "deeply rooted in this Nation's history and tradition"? Scalia says no; there's no "fundamental" right to anal sex. It's hard to imagine the Founding Fathers committing treason so they could have the right to bugger each other.

A second way to ask the question is whether there is a "fundamental" right to have sex. Note that we've backed off of the details somewhat here, and the question becomes a lot harder. Does the Constitution protect sexual relations? Is the right to sex "deeply rooted" in our history? (Insert "deeply rooted" pun here.)

The last way to look at the question is to back off even further and ask whether there is a "fundamental" right "to be let alone" -- that is, a right to "privacy." This was based on the idea that any law that intrudes into the "right to be let alone" would necessarily create so many paper cuts on the explicit terms of the Constitution that it would bleed the whole document. This concept was explained as the "penumbra and emanations" of the Constitution, and Justice Douglas has been taking heat for that terminology ever since.

Note that the Constitution itself does not answer the question of what level of detail should be used. It isn't immediately apparent that one should consider only the very most narrow explanation of the law, or that one should look at the "bigger picture." People that like to use only the most narrow explanation of the law (let's call them "Scalias") criticize the "big picture" people for "legislating from the bench" and "imposing their own preferences on the law." Scalias find support in the idea that words have an irreducible meaning, and that minimal meaning is at least predictable, which is why we should be "literal" about our analysis. They also like to ask what the Founding Fathers meant by those words, which makes sense in every other context--would we ask what a modern reader makes of "Pride and Prejudice," or what Jane Austen meant? (Derrida aside, of course.) This is, of course, also very predictable in the sense that the parties now know where to turn to make their case. Scalias believe that if everyone would apply these same rules, there would be a whole lot less argument over the meaning of laws and a whole lot more responsibility placed on Congress to get the laws right in the first place -- which is laudable because Congress is elected and the Court should have a limited view of its role.

On the other end of the spectrum, the "Brennans" note that the Constitution is about limiting the power of government and the majority, and was written in deliberately expansive terms that simply are not susceptible to such narrow constructions. What is the correct definition of "due process" or "equal protection," after all? To a Brennan, a Scalia seems to avoid the real issues by taking a bull-headed or even sneaky view of the Constitution. A Brennan believes that a Scalia is avoiding his duties by refusing to acknowlege the actual scope of the Constitution; in this way, a Scalia looks like he is "legislating from the bench" or "imposing his own preferences on the law" by refusing to hold what the law clearly requires. Unfortunately, to those outside the law (and to many inside the law as well), the Brennan's interpretation of the Constitution seems less "legal," because the Scalia spends his time talking about the literal text of the law. The Brennan gets exhausted with such talk because he is talking about the text, but merely "recognizes" that the text is broad. To the Brennan, it makes no sense that the Scalia puts up with libel laws, because the First Amendment clearly states that "Congress shall make no law abridging the freedom of speech."

So you end up with questions like Roe. Is the fatal extraction of a fetus a "fundamental right" such that there is a long tradition of protection for abortion, and such that the Founding Fathers would have had it in mind? Or, is the "right to bodily integrity" so "fundamental" that the state has no business telling you what to do with your own body? Both questions are correct under the "law," yet both seem to lead to different answers.

In Lawrence, Kennedy talks about "liberty" and "privacy," and he explains at great length that Bowers was wrong to claim that condemnation of homosexual sodomy has a long tradition in America. This, along with the talk of "privacy," suggests that he is applying the "fundamental liberty" doctrine. But he simply never says so, and he never explains what the extent of this unspoken liberty is. Is it homosexual sodomy? Probably not, because he overrules all of Bowers. Sodomy? That would be the narrowest view, but it would not take note of the lugubrious discussions of "privacy" that Kennedy engages in. Consensual sex? Broader, and also possible. All matters of sexuality, including marriage and contraception? That's possible too, given the line of cases under the "privacy" heading. There's just no way to know, and it will lead to a hundred challenges.

And yet, Kennedy says that the sodomy law "furthers no legitimate state interest," which very strongly indicates that he was not calling the liberty a "fundamental" one. Moreover, as Scalia points out, he almost studiously avoids the use of the word "fundamental" or overruling the "fundamental liberty" holding of Bowers. If Lawrence wasn't a fundamental liberty holding, we have to ask a different question: was the sodomy law "rationally related" to a "legitimate state interest"? The only "legitimate state interest" offered by the State of Texas was the traditional and historical view that the majority may always pass a law to prohibit that which is morally repellent. What is especially interesting is that there is no "victim" or "societal harm" here to make the question easier, as with prostitution (societal harm), bestiality (victim), adult incest (arguably a victim or societal harm), and the like. There's nothing there but morality. And if the majority actually applied "rational basis" review to strike down a law with no other basis than "morality," it will be unprecedented. Moral laws have been a part of Anglo-American jurisprudence since at least the 1300s, and were implicitly accepted by the Founding Fathers as acceptable under the Constitution. Can the Constitution prohibit laws that the Founders themselves accepted? Kennedy's answer was that the Founders "did not presume to have [the] insight" to "know[] the components of liberty in its manifold possibilities." That is, "times can blind us to certain truths."

So. Was there a way for Kennedy to strike down the law? Certainly. He had two options, but both had side effects. The class of victimless "morality" crimes is this: adultery, fornication, sodomy, and consensual bigamy. (Pornography and the sale of sexual paraphernalia would create a borderline case, if one accepts the argument that such shops create a blight on the community.) I would argue that Kennedy could hold that all of these laws are "irrational," but he could not stop short at just one, nor could any court ever deny gay marriage.

On the other hand, Kennedy could come right out and hold that a "fundamental" liberty under the Constitution was implicated, which would have the same effect and a whole lot more, depending on how broadly you define the "liberty" -- after all, a broad definition of the "liberty" is what allows you to overturn the law, but a broad definition of "liberty" accidentally encompasses a whole lot more than the immediate case.

Kennedy doesn't want to choose. So he basically holds that gay sodomy statutes are illegal (probably straight sodomy statutes as well), and then refuses to acknowledge what he has truly done.

So, after all that, here's the answer to the question of how the law could be upheld:

Scalia believes that the question is narrowly characterized as "homosexual sodomy," which is not a fundamental liberty, so it must be reviewed under the "rational basis" test. He would argue that America has, from the time of the colonies, used morality as a proper basis for passing laws, and that therefore the Constitution could not prohibit what its drafters explicitly permitted.

Finally, Scalia would give more deference to the 1986 Bowers decision: he bitterly pointed out that the "other side" affirmed Roe against very similar attacks in 1991 by relying on nothing more than the notion that the Court shouldn't overrule recent precedent. And he has a very, very good point. As Scalia pointed out, what's good for the goose is good for the gander.

 12:44 PM
A Dedication to my Wife
by T.S. Eliot

To whom I owe the leaping delight
That quickens my senses in our wakingtime
And the rhythm that governs the repose of our sleepingtime,
The breathing in unison

Of lovers whose bodies smell of each other
Who think the same thoughts without the need of speech
And babble the same speech without need of meaning.

No peevish winter wind shall chill
No sullen tropic sun shall wither
The roses in the rose-garden which is ours and ours only

But this dedication is for others to read:
These are private words addressed to you in public.

 8:53 AM

Thursday, June 26, 2003

The Five Albums That I Have Listed To Most Often

What a great topic this week! These are five albums that I have heard so often that I know every word, every note, every nuance. But I'm not necessarily proud of that fact.

1. Animals. I confess I became a Pink Floyd fan in high school and it got out of hand in college, and this album was their finest hour. Unlike most fans, who gravitate to Dark Side of the Moon and The Wall, I really liked Animals, which has some of their most interesting muscial experiments on it. It was actually written in 1973, played in concert, and then shelved for four years while they all went out and collectively freaked out. (It was the 70s, after all, and they made a googlejillion dollars from Dark Side of the Moon. I heard Pink Floyd again (Wish You Were Here, 1975) recently in a ice cream shop here in Houston and had the most amazing flashback of good memories. But I've outgrown Pink Floyd now. I listen to Radiohead and Sigur Ros, which is a completely different kind of pompous art rock.

2. Life's Rich Pageant. This album holds up beautifully to repeat listening, so I keep listening to it. (In fact, I just put it on.) I didn't like it at first, when it came out lo those many years ago, but it grew on me. It's just such a rush. It makes me happy in a very primal way.

3. Sheryl Crow. This is her eponymous second album. When I was living in Tallahassee and trying to get in shape, I would exercise walk every morning and evening, and I would listen to this album (and none other) while I did it. I timed myself by the songs. The day I managed to walk four miles before the end of "Superstar" was one of the happiest days of my life. Of course, I'm now sitting on my sore ass in front of a computer in an office tower at 11:55 p.m., waiting to get another draft of a document to review, and I have never felt so far away from that moment of triumph.

4. Very Mercenary. A great album by the British hip-hop duo "The Herbaliser." I first heard their song "The Sensual Woman" on the soundtrack to Snatch and ran out to get the rest of the album. "The Sensual Woman" is (supposedly) a woman's how-to-get-in-touch-with-your-sensuality recording set to a lurid hip-hop beat. The whole album is incredibly inventive and exciting, and I practically wore out the CD while studying in law school.

5. Russ Taff. A Christian Rock album by Russ Taff. This album was more or less my most-frequently-played album in high school. This was the first Christian Rock album that I ever really liked, at a time in my life when I was really trying to like the stuff that the Tribe told me to like. Russ had a little more blues than most, which ain't saying much, but it was something. As a result, this album stayed in my collection while the rest of the Petra and Whiteheart albums vanished through that slow and unintentional process of disc attrition. A quick search of Amazon confirms that it's long out of print, which is a shame because I'm getting a little nostalgic...

 11:59 PM
I urge anyone that hasn't actually read Justice Kennedy's majority opinion in Lawrence v. Texas to read the opinion personally --- especially before spouting off any opinions about it.

Setting to one side the rectitude of the ruling itself, Kennedy's opinion seems to avoid every interesting issue in the case, as well as any pretense to explanation of something so mundane as "the law." He never explores the relevant standards, and thus never has to answer the big questions that have hung in the "brooding omnipresence in the sky" for almost twenty years.

If one only read the news articles (feh -- ALL reporting about law sucks), or Kennedy's opinion itself, one would miss the most interesting stuff in the case. The implicit, but necessary, holdings of the case are that (1) it is not "rational" to pass a law based on a moral belief unaccompanied by victimization, and (2) the words "due process of law" necessarily and inherently protect sex because there could be no such concept as liberty if laws could restrain it.

I don't dispute these rulings, but I am disgusted by Kennedy's unwillingness to 'fess up to the essential aspects of his own decision. Scalia sure caught it though, and rightly excoriated the majority for their unwillingness to admit what they were really saying. Scalia was right to say that nothing stands in the way of gay marriage now, even though Kennedy slithers away from that conclusion. But that's not even the most interesting effect. What will happen to the crime of bigamy? Should the old-school Mormons be celebrating now that consensual sex is a "fundamental liberty" that cannot be restrained? Kennedy has opened Pandora's Box, but won't admit it.

I'm glad he opened the box (I think -- it's a big box), but I am sickened that he pretends it's still shut.

Yet again, I am torn as a left-leaning, law-loving Libertarian. The Court has reached a result I like, but has done so through an absolutely abominable opinion. Lawrence is every bit as jurisprudentially unsound as Atkins v. Virginia (banning execution of the retarded), Roe v. Wade (barring the states from passing laws restricting abortion in some circumstances), and Bush v. Gore (barring Democrats from taking office when elected). People will be criticising this opinion for years as nothing more than "legislating from the bench," and they will be right. Regardless of whether Kennedy could have reached the same result through legal analysis -- he could have and should have -- he dropped the ball and made it easy for people to hate the Court. At least he didn't mutter that crap about "penumbra and emanations."

 11:08 PM
I have finally yielded to the pressure of my generation -- or a very particular subset of my generation paradoxically given to extremes of earnestness and irony -- and started a blog. Estimated total audience: under a dozen. On a big day.

In Douglas Coupland's Generation X, his characters have a rule that they tell each other stories and the others are not allowed to interrupt. I thought that was incredibly self-indulgent and ludicrous of Coupland, and hoped that Gen X wasn't so hopeless that it would engage in one-sided conversations with itself. Of course, about ten years later, I find myself writing a diary for public consumption. Somehow I doubt that blogging will ever be superior to the average coffeehouse conversation with my friends; but on the other hand, I particularly like coffeehouse conversations.

But the other purpose of this blog is this: I find myself thinking odd thoughts during the day, while I'm trying my damndest to incessantly bill hours. I surf odd web sites, I jot down odd questions. It's a pressure valve that can (on some days) keep me from putting my fist through a wall. It occurred to me that I might enjoy actually keeping these random thoughts all in one easy-to-follow place.

Anger management in an easy-to-read form. Enjoy.

 10:24 PM

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