Saturday, April 23, 2011
Friday, April 22, 2011
At Least 90 Protesters Killed In Syria "Good Friday" Protests
Al Arabiya reports that "at least 90 people were reportedly killed and dozens were injured when Syrian security forces fired live bullets and teargas to disperse 'Good Friday' protests in several cities, witnesses reported. The death toll seemed to be rising late Friday." Tweet
John McCain vs. John Bolton On The Libyan Rebels
John McCain visited the Libyan rebel capital of Benghazi today and said that the rebels are his "heroes" and deserve more direct American support:
The following is a link to John Bolton's response: http://www.therightscoop.com/john-bolton-mccain-wrong-about-libya/
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Why The Supreme Court Was Wrong And Its Decision Was Flawed In The Animal Cruelty "Crush" Videos Case Of United States v. Stevens (2010)
I was very surprised one year ago on April 20, 2010 with the Supreme Court ruling in United States v. Stevens and that the decision came down with such an overwhelming 8 to 1 majority. But the unpredictable Supreme Court left only Judge Samuel Alito arguing that Congress's ban on the distribution of animal cruelty videos should not be voided under the First Amendment's protection of the freedom of speech. Justice Alito wrote: "The Court’s approach, which has the practical effect of legalizing the sale of such [animal cruelty] videos and is thus likely to spur a resumption of their production, is unwarranted... The First Amendment protects freedom of speech, but it most certainly does not protect violent criminal conduct, even if engaged in... for expressive purposes... [T]he Court of Appeals erred in second-guessing the legislative judgment about the importance of preventing cruelty to animals." I agree with Justice Alito. This decision is bad policy, but more importantly bad law.
Before I discuss the legal flaws with the majority's reasoning, the policy implications of this decision must be discussed. The Supreme Court ruled with the distributor of dog-fighting videos. That means until Congress acts in response to the ruling and until the Supreme Court possibly revisits any potential new Congressional legislation on the matter, economic incentives have been reintroduced into our society for the production and distribution of videos depicting animal cruelty. This includes so-called "crush videos." These videos show women, sometimes barefoot but usually in stiletto heels, stepping on and killing small animals. A description of one such video appears in Alito's dissent:
"A kitten, secured to the ground, watches and shrieks in pain as a woman thrusts her high-heeled shoe into its body, slams her heel into the kitten's eye socket and mouth loudly fracturing its skull, and stomps repeatedly on the animal's head. The kitten hemorrhages blood, screams blindly in pain, and is ultimately left dead in a moist pile of blood-soaked hair and bone."This sort of video is apparently a sexual fetish that appeals to the interest of some very deranged individuals in our society. The incentive to market these videos is now back in full force as the Court invalidated federal legislation that was specifically passed in an attempt to put an end to such videos.
But if policy reasons alone were the only problem with this ruling, I would have no grounds for disagreement with the Supreme Court. It is the job of the Supreme Court to follow the law, not to create policy. But the legal reasoning of the Court is seriously flawed. When the Supreme Court invalidates a law on faulty legal grounds it is the Court that has subverted a Constitutional legislative process by substituting the judgment of Congress with the judgment of the Court. There were two central legal arguments put forward by the Supreme Court.
The Court majority written by Chief Justice John Roberts begins with an argument that has little to do with the substance that lead the Court to invalidate the law. The Court developed a relatively novel argument, at least as far as First Amendment jurisprudence is concerned. Justice Roberts's opinion argued essentially that exceptions to the First Amendment's protection of "speech" do exist but that any exceptions should be based on "tradition" and "historical evidence" that the expression restricted was not meant to be protected by the First Amendment. Roberts wrote: "As the government notes, the prohibition of animal cruelty itself has a long history in American law, starting with the early settlement of the Colonies... But we are unaware of any similar tradition excluding depictions of animal cruelty from 'the freedom of speech' codified in the First Amendment, and the Government points us to none."
This is the argument that clearly attracted the likes of Justices Scalia and Thomas, as it is couched in original meaning as seen through history and traditions. The problem is that the originalist argument is flawed for two reasons. One reason, and admittedly this is the weaker reason, is that the assumption of the Court is that if the historical evidence does not provide a clearly visible exception, that this means the Constitution meant to protect the speech. One could argue that if the speech at hand is in no way even analogous to what the Framers expressed they had in mind when adopting the provision, it should remain unprotected by the Constitution and subject to Congressional regulation. This is very debatable because it would admittedly allow for a presumption potentially allowing for Congress to take away expressive "rights" that the Supreme Court today considers to be protected by the First Amendment.
However, there is a much stronger argument. Roberts concedes that "the prohibition of animal cruelty itself has a long history in American law, starting with the early settlement of the Colonies." Justice Antonin Scalia wrote an important 2001 opinion for a majority of the Supreme Court in Kyllo v. United States that ruled that law enforcement's use of heat sensors on private homes to find whether unusual heat patterns were present indicating drugs were being grown violated the Fourth Amendment's right to be protected from "unreasonable" government "search and seizure." The Supreme Court wrote that "[i]t would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology... While it is certainly possible to conclude...no 'significant' compromise of the homeowner’s privacy has occurred, we must take the long view, from the original meaning of the Fourth Amendment forward." I wonder why the Supreme Court is unwilling to take the same originalist "long view" in the case of videos depicting animal cruelty? Roberts writes that bans on animal cruelty have "a long history" dating back to before the Constitution was even adopted and continuing long thereafter. Those that adopted these earliest American animal cruelty prohibitions and the First Amendment itself did so in a world in which modern photography or videos obviously did not yet exist. They could not possibly consider this "advance of technology." While it is true that they did not ban "depictions" of animal cruelty, one must realize that the only ones that could be made would have been by hand. The fact that bans on actual animal cruelty were already so prevalent in fact provides originalist evidence that the Founding Fathers would have supported a ban on the distribution of videos depicting animal cruelty, especially when the video depicts actual cruelty committed. The historical evidence itself shows that Americans have always taken animal cruelty to be a serious issue worthy of prohibition by law, and this should then apply today to videos that could not have been imagined would exist, and which a refusal to ban results in the creation of a market incentive to engage in the conduct these early Americans found reprehensible and prohibited. This incentive is created to engage in the underlying activity that the earliest Americans found worthy of outlawing, as the films today of animal cruelty could be sold to those demented consumers with a "crush video" fetish.
The second argument that lead the Supreme Court to declare the legislation unconstitutional was that it was overbroad. This means that the statute as written could theoretically apply to situations in which the speech is clearly protected. For example, the majority argues that the statute could apply to videos of hunting. This was the actual reason the law was declared invalid. This is a matter of interpreting the statute's reach rather than the central issue of animal cruelty videos itself. It is on this ground that Justice Alito in his dissent did a sufficient job showing why the statute was not overbroad. In fact, he shows why the argument of the majority was "seriously flawed." He says he would interpret Congress's legislation banning the distribution of animal cruelty videos as applying "only to depictions involving acts of animal cruelty as defined by applicable state or federal law, not to depictions of acts that happen to be illegal for reasons having nothing to do with the prevention of animal cruelty." Further, the statute itself provides an exception for videos with serious “scientific,” “educational,” or “historical” value, language itself borrowed from Supreme Court First Amendment jurisprudence. Apparently when Congress uses the Supreme Court's own famous words to carve out an exception it has little meaning, but when the Supreme Court does so it is crystal clear. The bottom line, though, is that something like hunting would fall into this exception.
The strongest point that Alito makes, and which I believe the majority fails to address in an honest manner, is that the "most relevant of our prior decisions is Ferber [v. New York (1982)]...which concerned child pornography. The Court there held that child pornography is not protected speech, and I believe that Ferber 's reasoning dictates a similar conclusion here... Those who record the underlying criminal acts are likely to be criminally culpable, either as aiders and abettors or conspirators. And in the tight and secretive market for these videos, some who sell the videos or possess them with the intent to make a profit may be similarly culpable." Further, "the criminal acts shown in crush videos cannot be prevented without targeting the conduct prohibited by" the statute the Supreme Court declared unconstitutional. Finally, "the harm caused by the underlying crimes vastly outweighs any minimal value that the depictions might conceivably be thought to possess... It must be acknowledged that [the statute] differs from a child pornography law in an important respect: preventing the abuse of children is certainly much more important than preventing the torture of the animals used in crush videos. It was largely for this reason that the Court of Appeals concluded that Ferber did not support the constitutionality of [the statute]... But while protecting children is unquestionably more important than protecting animals, the Government also has a compelling interest in preventing the torture depicted in crush videos."
Furthermore, the Supreme Court fails to realize the legal consequence of its decision in terms of future cases and following Supreme Court precedent. They rationalize the outcome in terms of overbreadth, but at the same time declared that there is no reason for animal cruelty videos to be a lesser protected form of speech. If Congress were to now narrow the law in response to this ruling and make the terms of the statute more precise, the law could then again appear before the Supreme Court for review. At that point, having already put the option of viewing the speech as lesser protected off the table, the Supreme Court would then have to view the statute within its usual free speech framework. They would have to ask if the regulation was content-based or content-neutral. It is clearly a regulation that is content-based as it targets a particular type of video, and the Supreme Court as a matter of course and precedent strikes down content-based regulations. Therefore, assuming they would not make some unusual break from precedent and the jurisprudential framework that has developed around free speech, the Supreme Court seems to have boxed themselves into a situation where no matter what happens animal cruelty videos will be protected under the First Amendment.
The Supreme Court should feel embarrassed for its illogical decision, and even more embarrassed that only one Justice dissented.
To read the opinions for yourself visit http://www.supremecourt.gov/opinions/09pdf/08-769.pdf Tweet
Thursday, April 21, 2011
Time Magazine On Moses And The Founding Of America
The plight of the Israelites resonated with the earliest American settlers. For centuries, the Catholic Church had banned the direct reading of Scripture. But the Protestant Reformation, combined with the printing press, brought vernacular Bibles to everyday readers. What Protestants discovered was a narrative that reminded them of their sense of subjugation by the church and appealed to their dreams of a Utopian New World. The Pilgrims stressed this aspect of Moses. When the band of Protestant breakaways left England in 1620, they described themselves as the chosen people fleeing their pharaoh, King James. On the Atlantic, they proclaimed their journey to be as vital as "Moses and the Israelites when they went out of Egypt." And when they got to Cape Cod, they thanked God for letting them pass through their fiery Red Sea.
By the time of the Revolution, the theme of beleaguered people standing up to a superpower had become the go-to narrative of American identity. The two best-selling books of 1776 featured Moses. Thomas Paine, in Common Sense, called King George the "hardened, sullen tempered pharaoh." Samuel Sherwood, in The Church's Flight into the Wilderness, said God would deliver the colonies from Egyptian bondage. The Moses image was so pervasive that on July 4, after signing the Declaration of Independence, the Congress asked Thomas Jefferson, Benjamin Franklin and John Adams to propose a seal for the United States. Their recommendation: Moses, leading the Israelites through the Red Sea as the water overwhelms the pharaoh. In their eyes, Moses was America's true Founding Father.
But escaping bondage proved to be only half the story. After the Israelites arrive in the desert, they face a period of lawlessness, which prompts the Ten Commandments. Only by rallying around the new order can the people become a nation. Freedom depends on law.
Americans faced a similar moment of chaos after the Revolution. One Connecticut preacher noted that Moses took 40 years to quell the Israelites' grumbling: Now "we are acting the same stupid part." And so just as a reluctant Moses led the Israelites out of Egypt, then handed down the Ten Commandments, a reluctant George Washington led the colonists to victory, then presided over the drafting of the Constitution. The parallel was not lost. Two-thirds of the eulogies at Washington's death compared the "leader and father of the American nation" to the "first conductor of the Jewish nation. Tweet
Reviewing A Chapter From Gertrude Himmelfarb's "One Nation, Two Cultures": Moral Statistics And The Decaying Social Order
All should find the historical paradigm presented in Gertrude Himmelfarb's book “One Nation, Two Cultures”, the long-existing conflicting visions of schemes of morality being in a sort of dialectical motion, to be very interesting. Competing moral visions still clash today, with that which is predominant having changed. But there were two specific parts about a chapter in this book that interested me most.
So few in America's universities and media, and with increasing time in society at large, are still willing to agree that increased sexual freedom undermined the American family. The idea that there is largely a decaying societal order is an important one, regardless of whether professors, entertainers, or media elites recognize it. In fact, they contribute to it. Gertrude Himmelfarb acknowledges the obvious, the great advancements in civil and women’s rights since the cultural revolution of the 1960s. But what she points out is that there has been “bad with the good.” She does a fairly good job of demonstrating some of the costs that have come along with the change in values from the dominant moral class. As Gertrude Himmelfarb shows, there are indisputable “moral statistics” that demonstrate how this “decay” has in fact manifested itself in the societal order with increased crime, violence, out-of-wedlock births, single parenthood, teenage pregnancy, child abuse, drug addiction, alcoholism, illiteracy, promiscuity, divorce, and welfare dependency (though some improved in the 1990s). Looking to minority communities, the newer more morally “liberal” order has had effects that are even more devastating. In fact, Justice Clarence Thomas has made similar points in public speeches comparing the segregated black community in Georgia that he remembers growing up in as compared to the problems facing the black community today.
Further, as Himmelfarb points out, these statistics are only half the tale, with social pathologies having taken effect throughout the entirety of the culture (e.g., lack of parental authority, lack of school discipline, violence and vulgarity on TV, readily accessible porn of every sort, increased obscenity in music and entertainment, the culture on college campuses, etc.). For the small minority in the media and academia that recognize a decaying order and threats to family, Himmelfarb greatly helps give voice to that view and back it up with substance. As she writes, the counterculture “also liberated a good many people from those values…that had a stabilizing, socializing, and moralizing effect on society. It is not an accident…that the rapid acceleration of crime, out-of-wedlock births, and welfare dependency started at just the time the counterculture got under way.”
The second part of a chapter in her book that was interesting was the explanation and analysis of the forces behind this continuing decay. First, there was Senator Daniel Patrick Moynihan’s “defining deviancy down” (what used to be considered deviant is no longer) coupled with Charles Krauthammer’s “defining deviancy up” (what was once considered not deviant is now the worst vice). As but one example of this phenomenon, there is a repeated point made about smoking now taking a position in the culture as the worst of vices while the traditional morality of yesteryear growing ever more extinct (perhaps due to relativistic “absolutophobia” when it comes to making judgments on moral questions). This definitely has more than a ring of truth to it.
A second point made is that the media, but particularly academia, are the elites of this new order with incredible influence on the culture at large. The traditionalist, now “dissident,” culture “cannot begin to match, in numbers of influence, those who occupy the commanding heights of the dominant culture.” Academia has in large measure therefore become a distillery for creating ever increasing supporters of this dominant culture, “educating” the next generation into accepting its assumptions and propositions. The university has in some ways become the secular progressive seminary. The stories in the book of students that have been raised in a culture of “moral relativism” refusing to make any “judgment” even on matters like human sacrifice was absolutely frightful and abhorrent (if I may be so bold as to render a “judgment”).
The real question is whether it should be all that surprising? Some might laud the developments, and see no downsides to the rise of this new dominant class with its pervasive (or perhaps perverted) cultural standards (the “Jersey Shore”ing of the American culture). But if one does take that view, one should be honest in confronting the fact that some of the fruits of sexual liberation coupled with an increasing welfare sate have been poisonous.
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Republican Senator John Ensign To Resign Amid Ethics Investigations
Roll Call is reporting that Nevada Sen. John Ensign will resign his Senate seat tomorrow amid ethics investigations.
Sen. John Ensign will announce within the next 24 hours that he plans to resign from the Senate, according to a well-placed source... Ensign's resignation comes amid continuing fallout from the scandal involving his affair with Cynthia Hampton, a campaign staff member married to Ensign's former senior aide, Doug Hampton.
TweetTexas Governor Rick Perry Calls On Texans To Pray For Rain
Reuters reports that "Texas Governor Rick Perry called on Texans to pray for rain as cooler temperatures on Thursday helped firefighters contain wildfires that have charred more than 1.5 million acres across the state. Perry, a Republican, sought increased federal help in combating the blazes last weekend and urged Texans to ask the same from a higher power over the Easter holiday weekend."
"Throughout our history, both as a state and as individuals, Texans have been strengthened, assured and lifted up through prayer," Perry said in a statement.
"It is fitting that Texans should join together in prayer to humbly seek an end to this ongoing drought and these devastating wildfires."
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Religious Adoption Agencies In Virgnia Will Not Be Forced To Adopt To Gay Couples After State Board Rightly Rejects Such Proposed Changes To The Law
The Washington Times reports that "faith-based adoption agencies in Virginia will not be required to allow gay individuals to use their services, after the State Board of Social Services on Wednesday rejected proposed changes to the rules governing adoption and foster case agencies. State law allows gay individuals to adopt or become foster parents of children, but adoption agencies are also allowed to reject their applications based on individuals’ sexual orientation... Chris Freund, a spokesman for the Family Foundation, applauded the board’s decision, saying it protects the freedoms of faith-based charities like the Catholic Charities Diocese of Arlington. 'Most of them would have chosen to close down rather than basically be forced to violate their principles,' Mr. Freund said."
This is a victory for proponents of common sense everywhere. Attempts to force religious adoption agencies to adopt to gay couples or else be closed down have already happened elsewhere (see http://www.weeklystandard.
What most concerns me is pushing for regulations that will actually drive certain adoption agencies out of adoption if they do not want to compromise on their values or on what they think is in the best interest of children. This rejected push for that precise change demonstrates that it is not just about allowing gay couples to adopt, and not even just marginalizing those who don't, but actually eliminating as a matter of law any organization that disagrees. That is something I find rather ridiculous and alone leads me to support the successful attempts to block the instituting of these new regulations in Virginia. Taking notice of these rejected potential legal regulations coming from the self-proclaimed "tolerant" and "open-minded" side exposes what is instead a rather authoritarian and dictatorial streak that accompanies the far-reaching ends of a legal and activist agenda.
Former New Mexico Governor Gary Johnson Officially Announces He's Runnning For President
The first hat has been cast into the ring for the GOP 2012 nomination, and it's former New Mexico Governor Gary Johnson. Johnson is a libertarian leaning Republican who has been outspoken in his support for drug legalization. He is pro-gay marriage and pro-choice. We all have to wait and see how that flies in a Republican primary, but he may be the new Ron Paul running against the actual Ron Paul who may still once again join the race. Here are a couple clips of Johnson so that you can get a taste of the newly announced candidate:
Johnson recently on the "Reality Report":
Johnson's speech to CPAC this year:
Johnson on weed legalization:
Johnson interviewed by Reason TV:
Johnson interviewed by Sean Hannity:
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Abraham Lincoln's Argument About How Rights To Property Disavow Slavery
A quote I thought was worth sharing from Abraham Lincoln in a speech at New Haven in 1860 where he states one of the reasons for opposing slavery:
"One of the reasons why I am opposed to Slavery is just here. What is the true condition of the laborer? I take it that it is best for all to leave each man free to acquire property as fast as he can. Some will get wealthy. I don't believe in a law to prevent a man from getting rich; it would do more harm than good. So while we do not propose any war upon capital, we do wish to allow the humblest man an equal chance to get rich with everybody else. When one starts poor, as most do in the race of life, free society is such that he knows he can better his condition; he knows that there is no fixed condition of labor, for his whole life. I am not ashamed to confess that twenty five years ago I was a hired laborer, mauling rails, at work on a flat-boat -- just what might happen to any poor man's son! I want every man to have the chance -- and I believe a black man is entitled to it -- in which he can better his condition -- when he may look forward and hope to be a hired laborer this year and the next, work for himself afterward, and finally to hire men to work for him!"
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Oklahoma GOP Lawmakers Push To Abolish Affirmative Action
The AP reports that a "Republican-backed plan to wipe out any affirmative action programs in Oklahoma appears headed for approval by the Legislature. The proposal would prohibit special treatment based on race or sex in public employment, education or contracts. Supporters say it would underscore the importance of equality, even though no preferences are now given for jobs, contracts or college admission... The Senate has approved the measure. It is scheduled for a hearing Wednesday in a House committee." Tweet
Dick Armey: Standard & Poors Lowering America's Credit Rating To "Negative" Is Obama's Fault
Dick Armey writes that the Obama "administration has set another landmark: For the first time, America’s bond rating has fallen from standard to negative and the country may lose its Standard & Poor’s AAA rating. This development comes at a time when the White House is busy trying to prove that it is serious about addressing the deficit but pushing an unserious proposal." To read more visit: Negative Credit Rating Result of Obama's Failings
Wednesday, April 20, 2011
Majority Of American Voters Against Citizenship For Children Of Illegal Immigrants Majority Of American Voters Against Citizenship
A new Rasmussen poll revealed that 61 percent of likely American voters don't think children of illegal immigrants should be automatically granted U.S. citizenship. Tweet
Hugh Hewitt Grills Andrew Breitbart On Politics, Religion, "Birthers" And More
To listen to the interview visit http://vimeo.com/22588639. Tweet
Governor Jan Brewer Vetoes Arizona "Birther" Bill
TweetArizona Gov. Jan Brewer on Monday vetoed a bill to require President Barack Obama and other presidential candidates to prove their U.S. citizenship before their names can appear on the state’s ballot…
“I do not support designating one person [i.e. the secretary of state] as the gatekeeper to the ballot for a candidate, which could lead to arbitrary or politically motivated decisions,” said Brewer, who was secretary of state until she became governor in 2009.
“In addition, I never imagined being presented with a bill that could require candidates for president of the greatest and most powerful nation on Earth to submit their ‘early baptismal circumcision certificates’ among other records to the Arizona secretary of state,” she said. “This is a bridge too far.”
MSNBC Host Martin Bashir Gets Very Hostile With Andrew Breitbart: “You Didn’t Read My Book, Media Matters Read It For You”
Hugh Hewitt interviewed Andrew Breitbart about this obnoxious exchange with Martin Bashir:
The following is the earlier Breitbart interview with MSNBC's Dylan Rattigan that was far more civil and coherent:
Visit msnbc.com for breaking news, world news, and news about the economy
TweetMonday, April 18, 2011
Wall Street Journal: Taxing The Rich Won’t Cover The Bill
The Wall Street Journal does some fact checking the claims Obama has been making about his own plan and shows that higher taxes won't cover the bill.
Here are the WSJ facts about 2008:
How about 2005?Consider the Internal Revenue Service’s income tax statistics for 2008, the latest year for which data are available. The top 1% of taxpayers—those with salaries, dividends and capital gains roughly above about $380,000—paid 38% of taxes. But assume that tax policy confiscated all the taxable income of all the “millionaires and billionaires” Mr. Obama singled out. That yields merely about $938 billion, which is sand on the beach amid the $4 trillion White House budget, a $1.65 trillion deficit, and spending at 25% as a share of the economy, a post-World War II record.
Say we take it up to the top 10%, or everyone with income over $114,000, including joint filers. That’s five times Mr. Obama’s 2% promise. The IRS data are broken down at $100,000, yet taxing all income above that level throws up only $3.4 trillion. And remember, the top 10% already pay 69% of all total income taxes, while the top 5% pay more than all of the other 95%.
TweetIn 2005 the top 5% earned over $145,000. If you took all the income of people over $200,000, it would yield about $1.89 trillion, enough revenue to cover the 2012 bill for Medicare, Medicaid and Social Security—but not the same bill in 2016, as the costs of those entitlements are expected to grow rapidly. The rich, in short, aren’t nearly rich enough to finance Mr. Obama’s entitlement state ambitions—even before his health-care plan kicks in.
Sunday, April 17, 2011
Israeli Teenager Dies 10 Days After Hamas Rocket Hit His School Bus
The Jerusalem Post reports that "Daniel Raphael Viflic, the 16- year-old who was critically wounded in an anti-tank missile attack on a school bus in the Negev by Hamas terrorists 10 days ago, died on Sunday after a steady decline in his condition. The missile hit the bus moments after most of the children got off, while it was traveling near Kibbutz Sa’ad, about 2.5 km. from Gaza. Just two people were on the bus when it was hit – the driver, who was lightly injured, and the boy, who was en route to visit his grandparents." Tweet
Responding To Socially Radical Law Professors Article: It’s Not About Decoupling Sexuality And Intimacy, It’s About Decoupling Sexuality And Morality
The article “Sex In and Out of Intimacy” is written by Washington University Law School in St. Louis Professor Laura A. Rosenbury and Loyola Law School Professor Jennifer E. Rothman. Despite being written by apparent teachers of the law, it is one of the most mindless and ridiculous articles one can read. I shudder when I think drivel such as that which appears in their article enters into a classroom and influences the minds of future lawyers. The article is Justice Antonin Scalia’s slippery slope unabashedly on full display. In Lawrence v. Texas (2003) , which overturned a Texas sodomy law declaring it unconstitutional, Justice Scalia warned that "State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light...[judicial] validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision." For those that ridicule Scalia for this rather cogent point, all that needs to be done is read actual articles like "Sex In and Out of Intimacy" by actual law professors since the Lawrence decision. Even though the authors distinguish their own ideas from that of the Supreme Court majority opinion authored by Justice Anthony Kennedy in that case, it is the actual logical extension of Lawrence in its promotion in part of protecting all sexual autonomy and activity between consenting adults. Lawrence was not limited to protecting sodomy between those that could demonstrate they were in committed relationships, even if phrases about intimacy appeared in the majority opinion. As Justice Scalia wrote in dissent, Lawrence “effectively decrees the end of all morals legislation…as the Court asserts…the promotion of majoritarian sexual morality is not even a legitimate state interest.” This article, therefore, is not to be taken as all that far from Lawrence after all even if the law professors would like to believe it is. Though it is pretty clear that even Anthony Kennedy would cringe at the absolute radical sexual revolution (or perhaps rebellion) in law and society being called for by this article, and the argument for a constitutional and legal framework of protection and promotion that should surround it as put forth by these law professors.
That these authors think whatever they have formulated in an article about sex should actually be constitutionalized is astounding. It’s one thing to argue in an article for a shift in the legal landscape by lobbying one’s legislators or the public at large to change all sexual mores, but to think this is a credible constitututional theory is absolutely ridiculous. Yet that is precisely what is put forward in the article. If Lawrence contributed even slightly to authors like these seriously thinking that the courts should or can mandate a complete sexual upheaval and impose any new vision on society regarding sex, then that is a sad commentary on Lawrence. The Constitution does not demand all of law conform to this extreme libertarian/liberal view of sexuality. It makes a mockery of the Constitution to think what they espouse about all “consensual adult sexual activity without regard to intimacy” actually justifies “constitutional protection.”
But even as pure policy, the arguments in this article are nonsensical. Putting aside asinine lines like “solo sex may ultimately promote involvement in society,” the very idea that all of law and society must place the same value on sex of every kind as is placed on that which takes place within the framework of an intimate stable couple is mind-boggling. There are more ideal ways than others to channel one’s sexual urges. The article at its core was really about the complete decoupling of morality and sexuality, not about the decoupling of sexuality and intimacy. In this warped vision a stable married couple faithfully dedicated to one another and perhaps raising a family is no more ideal and noble than someone having sex with a different person every night. These policies if taken seriously would be disastrous as it would literally eliminate whatever limited unified ideals or mores surrounding sex and relationships are left in our culture.
Advocating “changing our understanding of sex as an exceptional activity producing unique harms and benefits” is idiotic. Unfortunately, given the fact that much of the legal academia is on the left, it should not be terribly surprising that two law professors would actually write this in an article for all to read. Do they think having sex is no different than playing a game of Monopoly? Last I checked, there were no Monopoly Transmitted Diseases. If they really believed this they would be unable to see the difference between forcing a child to eat his broccoli and forcing a child to perform a sex act. They would be unable to recognize that some sexual behaviors can be signs of psychological trauma or disorder (e.g., gender identity disorder or paraphilias [http://en.wikipedia.org/wiki/Paraphilia]), and not always opportunities for enhancing “self-awareness.” Further, not only is sex an exceptional activity, it is obviously so. It is the only activity that throughout human history results in the “benefit” of offspring. By not even noticing that simple fact, these authors would have the sexual ideal of humanity be reduced to the level of a bunch of animals. Not noticing that procreation is directly related to sex is also one important reason why these authors advocating “shifting the landscape” misses the boat completely. It renders the article a string of irrelevancies.
These authors talk about “envisioning” a world where ongoing sexual interactions are not tied to committed domestic relationships, and look at that vision as some sort of wonderful goal. No “envisioning” is needed. Sex not tied to committed domestic relationships already takes place in huge numbers. And the implications are not some rosy sexually liberated wonderland. Teen pregnancy, single motherhood and absent fathers, the increase of the spread of sexually transmitted diseases at all ages, and more, are the sort of rancid fruit of these ideas.
Even the implications of the authors are awful, even putting aside the fact that they are actually claiming the Constitution should be interpreted to achieve their radical agenda. Laws against prostitution are gone? Laws against incest are gone? Virtually any legal restriction or societal disapproval relating to sex is gone? In its place, these law professors would like custody or divorce decisions that cannot look to conduct of the spouses such as adultery, “pluralistic sexual education” that doesn’t conform “to traditional notions of gender and heteronormativity,” government facilitation of “exploration” of one’s own sexualities, and more. And of course, to top it off, in the mind of two law professors it is “likely a good thing” if there were some “level of destabilization” of “entrenched family structures.” The implications are so radical, and so varied, that they each should require their own attention. But the truth is that the authors feel no need to take all these issues independently. No argument need be made for any of these individually, only bold irrational assertions that treating all sex in every context equally would be great for “self-understanding” and “interconnectedness.”
Of course I have no problem conceding to these law professors that “sex can constitute a vital part of self-expression.” But what they fail to realize is that like any form of self-expression (be it sex, or even speech, writing, art, etc.), it must be recognized that some forms are better than others, and other forms can be just downright vulgar and disgusting.
President Obama, Who Decried Bush's Use Of "Signing Statements," Uses A Signing Statement To Keep His "Czars" Regardless Of Congressional Legislation
One rider [to the bill] – Section 2262 — de-funds certain White House adviser positions – or “czars.” The president in his signing statement declares that he will not abide by it.
“The President has well-established authority to supervise and oversee the executive branch, and to obtain advice in furtherance of this supervisory authority,” he wrote. “The President also has the prerogative to obtain advice that will assist him in carrying out his constitutional responsibilities, and do so not only from executive branch officials and employees outside the White House, but also from advisers within it. Legislative efforts that significantly impede the President’s ability to exercise his supervisory and coordinating authorities or to obtain the views of the appropriate senior advisers violate the separation of powers by undermining the President’s ability to exercise his constitutional responsibilities and take care that the laws be faithfully executed.”
Therefore, the president wrote, “the executive branch will construe section 2262 not to abrogate these Presidential prerogatives."
To read more from a law professor about the "serious constitutional question" this poses as a the threat to Congress's "power of the purse" visit http://volokh.com/2011/04/16/stripping-congress-of-its-power-of-the-purse/. Tweet
Allegations About A "Hostile Environment" For Women Could Cost Yale A Half-Billion In Federal Funding
To read the Wall Street Journal op-ed by Peter Berkowitz on the ridiculous allegations against Yale visit http://online.wsj.com/article/SB10001424052748704529204576257121944716258.html?mod=WSJ_Opinion_LEFTTopOpinion Tweet
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