Judicial Supermajority

Dr. Jay Michaelson argues that a responsible Supreme Court overturns the will of the People as expressed in their state laws and constitutions by putting together a 9-0 decision. That way, the already-controversial decision is easier for the population to accept:

In Loving v. Virginia, the 1967 case which found race-based marriage bans unconstitutional, Chief Justice Earl Warren built a 9-0 consensus—just as he’d done years earlier in Brown vs. Board of Education. He knew that a country divided by race ought to be united, if possible, by a Supreme Court mindful of fundamental values—even if the Court was, as the constitution requires, overturning the will of the majority.

It turns out that the rule he devises here isn't that the Court should take such radical action only when there is in fact a 9-0 consensus that such action is necessary. That would be a great rule, one I'd be happy to support, as it would be a limiting principle on a fairly radical power of the Court. We have similar supermajority standards for the other more radical powers of the Federal government: to amend the Constitution or to enter into a treaty that binds the United States both require legislative supermajorities.

In fact, this suggestion strikes me as much better than the one currently under discussion, i.e. to make Supreme Court Justices' tenure contingent on continuing Congressional approval of them. A supermajority requirement doesn't fiddle with the balance of power between the branches, and further, one of the good things about the current structure is that it cools democratic passion by continuing the input of previous administrations on current decisions. That represents a good power-sharing function, and often the Court is the only hope of the minority currently out of power that its views will still be considered by the party currently holding the levers. I should not wish to see that function change.

On the other hand, a supermajoirty requirement could be structured to restrain Court radicalism very easily. Any time that a Court ruling would require us to believe that the People had ratified a right without realizing it, they should require a 9-0 consensus. Any time we have to assume that laws that have continued to be in force without interruption since the ratification of an amendment were really invalidated by that amendment, there should be a 9-0 consensus. And perhaps any time multiple state constitutions have to be overturned, there should be a smaller supermajority -- 7-2, perhaps -- given that the state constitutional amendment process is already a supermajority process (and that anyone can escape a state constitution they find oppressive by simply moving to another state).

Unfortunately, that's not Dr. Michaelson's point at all. It's such a good point, though, I thought it deserved its own post.

A Theological Matter of Some Urgency

So it's Ramadan, which means that Muslims are not supposed to eat or drink from sunrise until sunset. That's troublesome when Ramadan falls in the winter time, as it sometimes does because it is a lunar month and thus drifts about the Gregorian calendar, but it's harder when it falls in summer months.

It turns out it's harder still given recent Muslim immigration to Sweden.

Muslims in the Arctic Circle are urgently coming up with new rules for Ramadan when they are banned from eating during the day - as the region will have 24-hour sunshine.

A Swedish Muslim association says new guidelines are being drawn up for the fasting month, which begins on June 18 this year, as members of the religion are not supposed to eat until sunset.

It strikes me that this is a real problem for the claim that these rules were given by God through the angel Gabriel to Mohammad with the intent that they should stand as eternal and perfect rules for human beings in all times and places. Clearly they should revisit Averroes' suggestion that, occasionally, a little ijtihad might be necessary: and perhaps ask if, given this manifest example, they should not apply the rule more widely as the philosopher suggested.

A Problem With External Reality

Mark Steyn, noting the degree to which the country shut its eyes to the world outside yesterday:

~George Orwell in a famous passage from 1984:

In the end the Party would announce that two and two made five, and you would have to believe it. It was inevitable that they should make that claim sooner or later: the logic of their position demanded it. Not merely the validity of experience, but the very existence of external reality, was tacitly denied by their philosophy.

Two plus two equals five. A severed head plus "Allahu Akbar!" equals "Nothing to do with Islam." Network screenings of Gone With The Wind plus Uncle Ben's rice equals blatant incitement to mass murder. A nice chichi gay couple at 27 Elm Street and a firebreathing imam and his four child brides at 29 Elm Street equals the social harmony of a multiculti utopia.

Where is this story headed?... What Marx called the internal contradictions of capitalism have nothing on those of "diversity".

And so the leader of the free world lights the White House LGBT as the tourist corpses are removed from their sunbeds.

Then Why Issue The Report At All?

Kissing up to Iran: that's a job for the most dishonorable man in America. Fortunately, he's the Secretary of State.

A report issued Thursday by the Department of State repeatedly refers to sex reassignment surgery in Iran as “gender-confirmation surgery.”

Speaking at the release of the State Department’s annual human rights report, Secretary of State John Kerry said of the designation that “There is nothing sanctimonious in this,” emphasizing the need for “humility” in the face of the U.S.’ own racial inequality.

So, is the point that this is a human rights abuse or not? The US government also engages in "gender-confirmation surgery," particularly of prisoners like Bradley Manning, but generally only on request. We apparently wouldn't want to be sanctimonious about Iran doing it by force, under threat of death for noncompliance. So why bring it up at all?

They must really want this deal bad. Such a deal it is, too.

A Nice Piece

From Small Wars Journal.

Animal PR

What modern animals would look like if we drew them the way we reconstruct dinosaurs.

The spice trade

How to create a black market in salt, pepper, and sugar, and incidentally nurture some budding adolescent entrepreneurs.  We'll need special SWAT teams next.

The focus is supposed to be on "hungry, needy kids," but I suspect this model would start working only if they could get some hungrier, needier kids.  Traditionally the approach worked well with hospitals, jails, and abusive orphanages.  These kids get to leave the premises every afternoon, so there's a limit to how far you can jack with them.

Apologizing for Slavery

Will the Democratic Party officially apologize for supporting slavery and the Klan, asks the American Spectator? The history is doubtless known to all of you, but perhaps not in the detail spelled out in this article.

The idea of an apology and formal repudiation of slavery is not a bad one. I assume this part is a nonstarter:

And instead of raising all those millions for the next election? How about raising some millions from all your rich donors to pay black Americans for the damage you have done to them since the inception of your slavery/segregation and race-based party in 1800? Damage that has now, yet again, brought violence and tragedy from someone inspired by your ugly history. It would seem, at a minimum, that now is the time to apologize for — instead of ignore or hide — that history.

It's a new idea for reparations that I haven't heard before, associated with the party most responsible and most interested in them. I'd be willing to chip in.

All of my early American political heroes have a slavery problem, especially the big three: Washington, Jefferson, and James Jackson of Georgia. Washington and James Jackson were both heroic men of noble ideas and personal courage, men who believed in and lived the principles of limited republican government. Jefferson and James Jackson were men who believed in a society that still makes sense to me today, a society that supports a greater degree of liberty for people economically as well as politically by supporting small farmers and businesses in which people own their own means of production. Jackson in particular ran personal risks and paid a personal price to bring about such a society in Georgia. Two of these men, Jefferson and Jackson, were founding figures in the Democratic Party.

And yet all three of these men, and many others for whom a great deal that is good can be said, were not just owners of slaves but supporters of the practice. Jefferson was certainly alarmed by slavery as an institution -- he called it 'having a wolf by the ears' -- but just because he was afraid of the consequences of ending it he made no steps to do so. Rather to the shame of the American Revolution, several of Washington's hundreds of slaves effected their escape and gained their freedom by fleeing to a nearby British warship. Like the American Revolution itself, we want to endorse it and these men wholeheartedly -- but we have to say, somehow, "except for slavery." We have to sever that tie, at least conceptually, in order to see the good in them and in what they did.

One cannot apologize for them, but the institution might formally make apology for itself. Perhaps it ought to do so.

UPDATE: In a related story, the Pope apologized this week for the Church's persecution of a Christian sect called the Waldensians during the 15th century.

The Waldensians, who now live mostly in Italy and Latin America, were founded by Peter Waldo in France in the late 12th century. He gave up his wealth and preached poverty but as the movement grew it came into increasing theological conflict with the papacy. The movement, an early precursor of the Protestant Reformation in the 16th century, was branded as heretical and in 1487 Pope Innocent VIII ordered its extermination. Some 1,700 Waldensians were killed in 1655 by Catholic forces commanded by the Duke of Savoy....

During a visit to Jerusalem in 2000, Francis' predecessor Pope John Paul II asked forgiveness from Jews for their persecution by Catholics over the centuries.

There isn't any very good reason the Democratic Party couldn't do the same.

Things You Are Not Allowed To Say Or Do

A helpful guide from the University of Wisconsin.

I have trouble taking some of their examples seriously. "That's so White of you"? I read that in a book, once. I have a sense that it was Greenmantle or The Thirty-Nine Steps by John Buchan, though I can't find it in the etexts of either book.

Others are very strange. It's a microaggression that there is an overabundance of liquor stores in "communities of color"? I assume the liquor stores are there because it's profitable for them, so the abundance (or lack thereof) is within the community's control (even lacking zoning laws). Furthermore, what sense does it make to describe this as a microaggression? No one decides to create an "overabundance" of liquor stores: they decide to open one more. If they are misjudging the community's demand for liquor, the punishment will be delivered naturally by the market via the loss of their investment.

Certainly people should be courteous. I wouldn't want to be misunderstood as advocating discourtesy. Still, part of courtesy lies in not willfully giving offense, and another part lies in not willfully taking offense where none was intended.

More on Brotherhood

Via a friend on FB, there have been four more black churches burned in the last week. I wouldn't normally link to Daily KOS, but this issue transcends such matters.

Disparate impact

This eventful week's third blockbuster Supreme Court decision mostly upheld the use of "disparate impact" arguments in housing discrimination cases, but nevertheless prohibited the quota system.

The case arose out of accusations that Texas officials had violated the Fair Housing Act by awarding federal tax credits in a way that kept low-income housing out of white neighborhoods. The Fair Housing Act bans discrimination “because of race”; Kennedy concluded that it therefore “may prevent segregated housing patterns that might otherwise result from covert and illicit stereotyping,” absent a showing of deliberate racial discrimination. The ruling is consistent with the Court's previous interpretations of two other antidiscrimination statutes, Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act.

A new and important restriction on the use of disparate impact, however, is that the plaintiff must show a causal relationship between the defendant's action and the resulting statistical anomaly; the bare anomaly is insufficient. If the causal link is there, the plaintiff need not show proof of state of mind:

A disparate-impact claim relying on a statistical disparity must fail if the plaintiff cannot point to a defendant’s policy or policies causing that disparity. A robust causality requirement is important in ensuring that defendants do not resort to the use of racial quotas.... Policies, whether governmental or private, are not contrary to the disparate-impact requirement unless they are “artificial, arbitrary, and unnecessary barriers.”... Remedial orders in disparate-impact cases should concentrate on the elimination of the offending practice, and courts should strive to design race-neutral remedies. Remedial orders that impose racial targets or quotas might raise difficult constitutional questions.

This approach is just about exactly the basis of Edith Jones's decision below in the Fifth Circuit, so yay, Edith, as usual.

Justice Alito mischievously pointed out that minimum-wage laws could rightfully be accused of disparate impact.

Marriage

For those of you who'd like to read the decision instead of the commentary. The ruling is that no state may prohibit same-sex marriages; as a natural consequence, each state must recognize same-sex marriages authorized by other states. The right to same-sex marriages is ruled a fundamental right, with which (under the 14th amendment) the states cannot interfere without due process of law. (The Fifth Amendment places the equivalent restriction on the federal government.)

I would call it a privacy-penumbra case, squarely in line with Griswold v. Connecticut, which forbad the state to interfere in a married couple's decision to use contraception.  That is, it seems to be based less on identity politics than on limiting the government's right to interfere in intensely private intimate relations--but maybe that's just the part of the reasoning that resonates best with me.  Bear in mind also that it is a restriction on state power, not a prohibition of individual discrimination, which is a creature of statute.  That is a controversy that will continue to rage, especially since this decision neither expressed nor disavowed a First Amendment ground for refusing to participate in a wedding ceremony that violates one's religious convictions.  The Court did say that religious institutions have a first amendment right to advocate against same sex marriage. Roberts is leery of protections that are limited to advocacy: "The First Amendment guarantees, however, the freedom to 'exercise' religion. Ominously, that is not a word the majority uses." What will happen, he wonders, "when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples"?  Alito echoed these concerns, but mostly in terms of a fear of branding opponents as bigots unless they confined their opposition to private whispers.

Roberts read aloud a dissent in which he appeared to welcome gay marriage but deplore the decision to get there by judicial fiat rather than democratic process. (Those of us with memories extending beyond 24 hours may be amused by this comment from Justice Roberts: "But this Court is not a legislature.") In contrast, the majority opinion stated "While the Constitution contemplates that democracy is the appropriate process for change, individuals who are harmed need not await legislative action before asserting a fundamental right." Roberts also makes the slippery-slope argument: "It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage."

Scalia read aloud a dissent that was dripping with contempt for the legal reasoning of the majority:

If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.

Thomas balked at including homosexuality within "life, liberty, or property," and scoffed at the sloppy grafting of due-process on equal-protection jurisprudence by means of the dreaded "synergy."

A Month of Disasters for the Infidels

Coordinated attacks in France, Kuwait, and Tunisia. The attacks combined with a propaganda statement calling for a month of disaster for infidels seems to recognize the burgeoning US/Iran alliance that our administration is intending to leave as its major foreign policy legacy. The most deadly attack was on a Shi'ite mosque in Kuwait, but the attack in France was on an American-owned chemical plant, where at least one person was decapitated. The attempt to destroy the plant did not succeed. I would like to know more about how they planned to destroy it: chemical plants could be destroyed in ways that cause much greater damage than simply shutting down the equipment.

The world keeps insistently knocking at the door.

The Queen's Guard

"His gun is jammed," the observer states, suggesting that the misunderstanding of the situation here was even greater than it appears.

One wonders how long this beloved British tradition of having the guards ignore tourist antics (to the point of being laid hands on) will continue. The guard is a symbol of the Queen's authority, and a symbol of the state. In the age of terrorism, that makes them a target for those wanting to send a symbolic message of their own. The guard here was righteous and correct in his response.

Rule of law

OK, I'll talk about the words even if the concept of meaning has taken a small beating this week.

You know, if they'd said "state exchanges," I could see the argument for ambiguity. That might mean either "an exchange operating in a state" or "an exchange established by a state, as opposed to one established by the feds." How anyone can think "exchange established by a state" is ambiguous in a statute that involves both kinds is really beyond me, particular with evidence that the whole point was to give states an irresistible incentive to set up their own exchanges and not dump the task onto the feds. The states' refusal to set up their own exchanges became a conceivable choice only after the S. Ct. struck down the Medicaid penalty as too coercive, which is the main reason the remaining law now strikes many people as "internally contradictory." That is, it always was a little bizarre that state exchanges would be denied subsidies, but no one paid much attention because they could barely entertain the notion that it would ever happen--and it never would have happened, in all likelihood, until Justice Roberts re-wrote the ACA the first time.

The only way to read "exchange established by a state" as "exchange established by anyone you like" is to demand a certain result and twist the words and standards as necessary. Which is pretty much what the majority opinion announced it was doing: it said the plaintiffs' interpretation was right, but going along with it would be too inconvenient.  So the trial court said the language was unambiguous and meant what the White House said. The appellate court said it was ambiguous but meant what the White House said. The Supreme Court said the most obvious reading was that it meant the opposite of what the White House said, but it would be re-interpreted that way anyway because we wish Congress had written something different or at least had employed competent draftsmen.

This doesn't surprise anyone about the liberal judges or even Kennedy. Many of us hoped that Roberts's bizarre "it's a tax/it's a floor wax" approach the last time around was an aberration, but now we see it wasn't, at least not when the stakes are high.

A commenter I appreciate at Megan McArdle's site has been asking people for months now to provide her with an example of improved language that would make "exchange established by a state" unambiguous, if your purpose was to make it clear that exchanges established by the feds would not be eligible for subsidies.  She never gets any takers.  The most frequent response amounts to "Huh?"

There's been a lot of yelling back and forth about U.S. v. Gore and Heller and Citizens United and whether rightwingers are really consistent about precision of language. I won't for one instant try to argue that you can resolve constitutional disputes without dealing with flexibility and ambiguity in the use of language, especially centuries-old language with a long history and a complicated context. But King v. Burwell was a statutory interpretation case. That's a special animal, where we have precise and useful tools for deciding when the judicial branch should intrude on the legislative branch's prerogatives. The rule is: first the language has to be ambiguous, and only then can you consider the drafters' intent.  That's not just my personal opinion of the rule; it's the formulation of the rule confirmed by the majority opinion in King. v. Burwell.  If the language is not ambiguous, but the law still stinks and is unworkable, you send it back to Congress for fixing.  If Congress has changed its mind in the meantime, tough.

In this case, I personally would have found the drafters' intent a slam-dunk once Gruber shot his mouth off, but let's assume he was lying when he first shot his mouth off and not when he retracted all his previous statements. The fact is, we shouldn't be looking at intent at all, because the argument that the language in question is ambiguous is laughable. Yes, it's "only five words in a 2,000-page bill," but they happen to be the only five words in 2,000 pages that bear directly on the point in dispute. Very, very disappointing, even for someone with no illusions about the Supreme Court consisting of saintly and courageous geniuses.

Ho Chi Minh Posters Are Still On Sale on Ebay

They are. And Che, of course.

Polls on the Flag

We've heard a lot about what the media, business, and political classes think about the flag issue. What we haven't heard about is what the people of South Carolina think. The last time this issue was decided it was done by a deeply contentious debate in which both sides argued their positions forcefully, and when compromise was finally reached they locked it in with a guarantee that it would only be altered if there was a 2/3rds majority vote in favor.

It looks like we're close to that.

Am I right that this is the first major poll taken since the beginning of Flagmania last week?... The crosstabs unfortunately don’t break down the numbers by region and race. It’s useful to know what white Americans and black Americans think, and it’s useful to know what southerners think compared to people from other regions. But there’s no way to tell how white southerners differ from black southerners on this subject, apart from a tidbit that YouGov discloses in its summary: White southerners continue to tilt heavily in favor of seeing the flag as a symbol of southern pride rather than racism, 53/20. Among black Americans generally (not just southerners), the split on the same question is … 3/70.

I don't know what a 'major poll' is, but there's another one more focused on South Carolina that's posted in the last day.

Sixty percent of likely voters surveyed by Rassmussen Reports said the flag should not be displayed at the South Carolina capitol, while 21 percent said it should. Eighteen percent are undecided.... A plurality of Republican voters (46 percent) said the flag should not fly at the statehouse, and a majority (76 percent) of Democrats agree. Although the majority of likely voters agree the flag should not fly there, they are split on whether it is a symbol of Southern heritage (43 percent) or hatred (39 percent).... Party lines also correlate with differing interpretations of what the Confederate flag represents. A majority of Republicans (64 percent) said it represents Southern heritage, while a majority of Democrats (57 percent) said it is a symbol of hatred.

That sounds like an adequate apology for the Republican majority legislature to go ahead with it. It's a complete concession by one side of the old debate, however: not a new compromise, but a surrender of the position. I hope this is received as I am sure it is intended: as a gift of something precious to the conceding side, intended to show honor and respect for the victims of the recent shooting, and to their community which has responded so gracefully.

Banhammer

You may have seen Ed Driscoll making fun of a movement to question what liberals will ban next, given the week's successes. Upworthy responds with a list of fast food places you 'aren't allowed' to eat at any more, along with explanations of why not.

Papa John's -- because their founder was critical of the ACA. Sonic -- because they don't pay minimum wage, leaving their wait staff to rely on tips. Wendy's -- which actually pays above minimum wage, but not enough above, and they don't allow tips. Chick-Fil-A! "OMIGOD, you guys, you can absolutely never, ever, ever eat at Chick-fil-A."

If we can't drive people who disagree with us politically into abject economic poverty -- so that they can be forced into line, by having to choose between starving and making themselves subject to the corporate discipline of a responsible company like Walmart (wait! When did Walmart stop being the enemy of everything good? This is really new, right? But Hillary Clinton has an important attachment to it in her past, so...) -- if we can't do that, how will we ever achieve justice?

"A Shot to the Heart"

An Army Ranger responds to Charleston, with reflections also on the loss of friends in the wars.

A Flag That Should Definitely Be Changed

England selects a banner for its Women's World Cup team.

Totally inappropriate content warning, but it's seriously an official banner.