Gerrymandering: voters rule

The Court's second decision today upheld the power of a state's voters over their legislature in a dispute over how gerrymandering concerns should be resolved. Per SCOTUSblog, "In 2000, Arizona voters amended the state’s constitution to give control over redistricting of federal congressional districts to an independent commission. This case is a challenge by the state legislature to that transfer, on the ground that it violated the Elections Clause" of the U.S. Constitution. Justice Kennedy joined the four liberal Justices in a 5-4 decisionhttp://www.supremecourt.gov/opinions/14pdf/13-1314_kjfl.pdf, which upheld the voters' right to override the legislature's redistricting process. SCOTUSblog further noted that the Supreme Court has several times already declined to address the constitutionality of gerrymandering per se. This decision also does not address the constitutionality of gerrymandering, but only whether the voters (via state constitutional amendment) or the legislature shall have the ultimate say over the drawing of federal congressional district lines. Scalia's dissent suggested that he didn't disagree with the voters' right to control redistricting--he would have dismissed the challenge for lack of jurisdiction--but he joined the dissent out of displeasure with the reasoning of the majority. The four dissenting justices (led by Roberts) objected that the 17th Amendment to the U.S. Constitution gives the redistricting power to state legislatures, not the state populace. The majority, in contrast, acknowledged the state voters' right to rein in their legislature's approach by amending their state constitution to require delegation of the redistricting process to an independent commission. The SCOTUSblog interpretation was that the opinion favors new legislators over incumbents, and therefore has little effect unless the state is undergoing a political shift.

Cruel and unusual death penalties

SCOTUS has issued its final opinions for the year, as well as a list of the new cases it will hear next year.  The first decision upholds Oklahoma's use of an anti-anxiety drug that a lower court found was virtually certain to induce unconsciousness before the state administered a paralytic drug and a heart-stopping drug.  The case arose after anti-death-penalty advocates successfully pressured drug companies to stop making barbiturates available for the death-penalty process, in response to which Oklahoma switched to an alternative method of inducing unconsciousness.  The argument then shifted to whether the alternative drug was adequate; the Court ruled today that the lower court had not committed clear error in accept expert testimony to the drug's effectiveness, and that Oklahoma was not required to prove that the new drug was as effective as the ones that no longer were available.

The oral arguments had been reported to be unusually violent for this staid forum.

Justice Alito delivered the majority opinion, joined by Roberts, Scalia, Kennedy, and Thomas.  Justices Scalia and Thomas issued a separate concurring opinion, not disagreeing with the reasoning, but responding to a dissent issued by Justices Breyer and Ginsburg, who expressed a renewed plea for the Court to take up the constitutionality of the death penalty.  Justices Kagan and Sotomayor did not join in this plea, which led observers at SCOTUSblog to wonder whether they, like past liberal Justices, had grown less vehement in their opposition to the death penalty after spending some time on the Supreme bench.  Instead, Kagan and Sotomayor issued a separate dissent addressing only the issues concerning Oklahoma's choice of consciousness-terminating drug.

When bad things happen to good birds

Nature, red in tooth and claw, and the webcam viewers who have to deal with it.  (Don't worry, you're not going to find yourself in one of those awful TV commercials about abandoned pets.)

Truck Stop at the End of the World

A cheerful song from the end times, as they were envisioned in the Cold War.



Don't worry about the scales: they're reading megatons.

The Sorrow of Schadenfreude

I can't enjoy it, because the situation is tragic. Still, I can recognize that I ought to feel it. From progressive site anongalactic:

While America was distracted by a the Confederate flag debacle, the U.S. Congress forfeited the entire economic future of the country by quietly passing so-called “fast-track authority” which will allow President Obama to approve the TPP “free trade” agreement.

The TPP, as you may have heard, outright surrenders U.S. sovereignty to multinational corporations, handing them total global monopolies over labor practices, immigration, Big Pharma drug pricing, GMO food labeling, criminalization of garden seeds and much more. In all, the TPP hands over control of 80% of the U.S. economy to global monopolists, and the TPP is set up to enable those corporations to engage in virtually unlimited toxic chemical pollution, medical monopolization, the gutting of labor safety laws and much more.

Plus, did I mention the TPP will displace millions of American works as corporations outsource jobs to foreign workers? While corporations rake in the profits from new global powers, everyday American workers will lose their livelihoods and their jobs (not to mention their pensions)....

While Amazon.com was frantically deleting Confederate flag products from its website and everybody was going bat-crap insane over the 1970’s comedy TV series Dukes of Hazzard and its use of the so-called Confederate flag on a hot rod car, Republicans and the President were busy committing outright treason at the highest levels: surrendering American sovereignty and economically enslaving all of America’s future children.

And that’s the tragic irony of all this: While the political left falsely believed it was denouncing slavery by pressuring every online retailer and government entity to ban the Confederate flag, the U.S. Congress was busy enacting a whole new level of total economic enslavement for everyone, regardless of their skin color.

There's that "treason" word again. It could possibly be deserved, this time, depending on how bad the treaty really is. Since it's still secret, we can't be sure.

The Decline of an American Sport

Headlines from my father's favorite sport:

19 January 2014: NASCAR is turning off fans both old and new.

26 August 2014: As popularity, and seating, wane, NASCAR explores capacity to change

25 February 2015: What has happened to the once high-flying sport of NASCAR?

25 April 2015: Even as attendance and TV ratings drag, NASCAR still has lots of dedicated fans.

So, what you need is a way to get that dedicated hard-core of fans more committed to turning out and tuning in. That should be easy! Remember your roots! How'd stock car racing get started?



That's right: it's that old moonshiner, bootlegger spirit, fast cars racing through the hills on old dirt roads. The law might not like 'em, but they were fast and they were bold and mostly they were just looking out for their family and friends. This is a formula of proven success. Why, I think there was a wildly popular television show once on this subject. Maybe even a movie or two.

Shouldn't be hard to fix, right?

Beware

I'm awfully pleased Douglas is posting here now; I always look forward to his comments.  But his first post, with its aside about "a constant stream of inanity," almost discouraged me from posting this, from Ace:

Almost.

"The Battle of Vienna" the movie

Well this isn't a bad way to inaugurate my privileges at the Hall (Thanks, Grim!)-
Epic battle, heroic leader, Winged Hussars, it looks to have it all:
I came across this link to a new movie slated to be released in October Titled "The Battle of Vienna"- at least in Polish.  Unsurprisingly, it centers on Polish King Jan Sobieski.  It looks like the English title will be "September 11th, 1683", interestingly enough.  No idea if/when it will be released here, or through what channels.  It's nice for us though, that it's in English, with Polish subtitles.

Of course, it reminds me of past Hall favorite:

 
Maybe more 'diversions' like this movie can start to point us back to things that matter instead of a constant stream of inanity from our entertainment-industrial complex.

Doubling Down on "Treason"

Dr. Michaelson argued (see post immediately below) that Supreme Court decisions that radically overturn state laws should have a 9-0 consensus. This is to limit the sense of the People that the decision is radical, and make it easier for them to accept a limit on their sovereignty. If they are told that they may not pass laws of a given type, at least they can see that the Court is united in its belief that such laws are incompatible with the basic structure of our republic.

This would have been a great limiting principle on the Court's power. Unfortunately, the duty Dr. Michaelson wants to assert is a duty not to dissent.

Did The Four Dissenting Justices In Gay Marriage Case Just Suggest Treason?

In controversial cases, is the role of jurist to inflame controversy, or quell it?...

The four dissents in the landmark case on same-sex marriage, Obergefell v. Hodges.... [w]ith invective and hyperbole, they pour fuel on the fire of the controversy over same-sex marriage. Rather than merely state their views and disagreements, they use heated language to accuse the five-person majority of imperialism, a “putsch,” and worse.

Thus, the unprecedented calls of elected officials for open revolt against the Supreme Court—a shocking display of treason—are now accompanied by calls from within the Court itself that Obergefell is illegitimate, and the Supreme Court itself no longer worthy of full respect....

These are, as the saying goes, fighting words, and more importantly, they are words that will inspire others to fight. They are what some call “stochastic terrorism,” the broadcasting of a message so incendiary as to inspire some “lone wolf” to violence—if not actual violence, then precisely the kinds of anti-democratic, anti-American defiance we have already seen among some politicians.

Treason, treason, treason. You must feel very secure in your positions of power.

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.