Ruth Bader Ginsburg (1933 - 2020)

Supreme Court Justice Ruth Bader Ginsburg has died at age 87. NPR sums up her career in a sentence:

Architect of the legal fight for women's rights in the 1970s, Ginsburg subsequently served 27 years on the nation's highest court, becoming its most prominent member.

Justice Antonin Scalia wrote this about her for a 2015 Time magazine list of the 100 most influential people:

Ruth Bader Ginsburg has had two distinguished legal careers, either one of which would alone entitle her to be one of TIME’s 100. When she was a law professor at Rutgers and later Columbia, she became the leading (and very successful) litigator on behalf of women’s rights—the Thurgood Marshall of that cause, so to speak. President Carter appointed her to a seat on the U.S. Court of Appeals for the District of Columbia Circuit in 1980, and President Clinton to a seat on the Supreme Court in 1993.

Having had the good fortune to serve beside her on both courts, I can attest that her opinions are always thoroughly considered, always carefully crafted and almost always correct (which is to say we sometimes disagree). That much is apparent for all to see.

What only her colleagues know is that her suggestions improve the opinions the rest of us write, and that she is a source of collegiality and good judgment in all our work.

Ginsburg was a staunch defender of men's rights as well as women's rights. When she was a lawyer before becoming a judge, many of Ginsburg's clients were men asserting their rights to equal protection. Ginsburg understood that gender equality means equality for everyone. For example, I posted this New York Times article about a majority opinion by Justice Ginsburg in 2017: 

[The Supreme Court] declared unconstitutional a provision of the Immigration and Nationality Act that makes the path to citizenship for foreign-born children of unmarried parents dependent on whether the citizen-parent is the mother or the father. An unwed mother can transmit her citizenship as long as she herself has lived in the United States for at least one year. But for unwed fathers, the prebirth residency requirement is five years (it was 10 years before a 1986 amendment). 

The differential treatment of mothers and fathers, six justices held in an opinion by Justice Ruth Bader Ginsburg, violates the constitutional guarantee of equal protection. 

Justice Ginsburg’s distinctive voice was evident throughout the opinion, which drew on the sex discrimination cases she argued and won before the Supreme Court as a young advocate for women’s rights (many of those cases, like this one, had male plaintiffs) as well as on a landmark majority opinion she delivered early in her Supreme Court tenure that forced the all-male Virginia Military Institute to admit women. The greater burden placed on unwed fathers, she wrote in the new case, reflected age-old assumptions about unmarried parenthood and a stereotyped view of an unwed father’s ability to be a responsible parent.…

Some Ginsburg quotes (from here, here, here, and here):

“Fight for the things that you care about, but do it in a way that will lead others to join you.”

“Feminism [is the] notion that we should each be free to develop our own talents and not be held back by manmade barriers.”

“I don’t say women’s rights — I say the constitutional principle of the equal citizenship stature of men and women.”

“The pedestal upon which women have been placed has all too often, upon closer inspection, been revealed as a cage.”

“A great man once said that the true symbol of the United States is not the bald eagle. It is the pendulum. And when the pendulum swings too far in one direction, it will go back.”

“So often in life, things that you regard as an impediment turn out to be great, good fortune.”

Ginsburg gave an example of that last point from her own life, in the video below from 2019: “I'll tell you what Justice [Sandra Day] O'Connor once said to me. She said: 'Suppose we had come of age at a time when women lawyers were welcome at the bar. You know what? Today we would be retired partners from some large law firm. But because that route was not open to us, we had to find another way, and both end up on the United States Supreme Court.'”

2020 candidates on executive power

Here are 16 presidential candidates responding to a New York Times survey on "executive power."

The first question is:

1. Presidential War Powers

In recent years, the Justice Department’s Office of Legal Counsel has claimed that the Constitution authorizes the president, as commander in chief, to order the military to attack other countries without congressional permission if the president determines that this would be anticipatory self-defense or otherwise serve the interests of the United States — at least where the nature, scope and duration of the anticipated hostilities are “limited,” like airstrikes against Libyan government forces in 2011 and Syrian government forces in 2017 and 2018.

Do you agree with the O.L.C.’s reasoning? Under what circumstances other than a literally imminent threat to the United States, if any, does the Constitution permit a president to order an attack on another country without prior Congressional authorization? What about bombing Iranian or North Korean nuclear facilities?

This is what Joe Biden said about when the president can take military action without congressional approval:

As is well established and as the Department of Justice has articulated across several administrations, the Constitution vests the President, as Commander in Chief and Chief Executive, with the power to direct limited U.S. military operations abroad without prior Congressional approval when those operations serve important U.S. interests and are of a limited nature, scope, and duration.

I have served in both branches of government and believe this allocation of powers has served us well. Only in the most exigent circumstances would I use force without extensive consultation with Congress.

Any initiation of the use of force against Iran or North Korea – unless in response to an imminent attack -- could certainly result in a wide-scale conflict and constitute a “war” in the constitutional sense that would require authorization by Congress.

And here's Pete Buttigieg:

I am concerned that the Executive Branch has stretched the President’s unilateral war-making authority too far. The Office of Legal Counsel’s reasoning provides that the President may direct the use of military force pursuant to his or her Article II constitutional powers without prior congressional authorization when (1) the President reasonably determines that doing so would serve an important national interest and (2) the nature, scope, and duration of the military activities would not rise to the level of “war” under the Constitution. This framework acknowledges the reality that a President may need, in rare and extraordinary circumstances, to take swift action in response to attacks or imminent threats of attack.

But while it may reflect history, it strays from our Constitution’s design. Moreover, it lacks criteria for determining which “national interests” qualify, as well as any identifiable limiting principles on what constitutes “war.”

As President, I will take swift and decisive action to protect the nation when necessary. But I also believe that decisions to embroil our armed services in conflict should be a joint decision of both the President and Congress. There should be a high bar for the use of military force, and an exceedingly high bar for doing so unilaterally.

Absent evidence that either North Korea or Iran pose a threat that is truly imminent, there is no justification for using force in either country, let alone doing so without Congressional approval.

I also recognize that Congress has the constitutional authority to set substantial limits on the President’s ability to use military force absent congressional authorization, as it has done through the War Powers Resolution. As President, I will respect these limitations. And I will work with Congress to explore legislation that builds on the example of the War Powers Resolution to ensure our constitutional values are upheld.

Tough decisions about committing American lives and treasure should be subject to public debate and congressional oversight.... And if and when I must act unilaterally to defend the United States, I will explain why the threat is too grave to wait for Congress to act.

Who do you think gave the best answer?

Professor Robert Summers of Cornell Law School (1933 - 2019)

Robert S. Summers, a contract law professor who taught at Cornell Law School for 42 years, was a preeminent scholar of the Uniform Commercial Code, and advised other countries including Egypt and Rwanda in writing their laws, died at age 85 on December 1.

I took his Contracts class throughout my first year of law school (2004-05). He had a distinctive style of teaching in which he rarely made any direct statements, speaking almost entirely in the form of questions.

I wrote down many of his witty and insightful comments during class, and when he retired in 2010, I did a blog post with some of my favorite moments of Contracts with Summers.

As you can see from that post, at one point he seemed to challenge some of the fundamental premises of legal education based on appellate case law, before saying he was “sowing the seeds of self-destruction.”

It was my first class of law school, and I won’t forget it.

Online comments and the Constitution

When I see online comments fantasizing about what grotesque punishments the commenters would like to see imposed on certain criminals, which is a kind of virtue signaling (“Look at me — I hate evil so much that I want terrible things to happen to evildoers, because I’m such a good person!”) . . . when I see that kind of comment, I’m proud to live in a country that has a constitutional rule against “cruel and unusual punishment.”

When I see comments assuming someone is guilty of a crime before they’ve been convicted of anything, based only on a headline that refers to the government’s allegations, I’m glad the Constitution requires “due process.”

Those and other short phrases in the Constitution, written centuries ago, are in effect regardless of what the majority thinks or feels, and that’s a great thing about America. We do live in a democracy, but there must be limits on the majority’s power, to keep democracy from becoming tyranny.

2 bad analogies about Supreme Court nominees . . .

. . . who face allegations of wrongdoing:

(1) "If I need surgery, I only care about the surgeon's medical skill. I don't care about anything else good or bad that the surgeon might have done. Therefore, we shouldn't care how a Supreme Court nominee has acted in life outside their job performance."

The problem with that: Government is different from a medical specialty like surgery, which has a clear scope and mission that's narrowly defined and uncontroversial. Government can potentially get involved in almost any area of our lives, and questions of what government should and shouldn’t concern itself with are hotly debated. So when we're talking about one of the most powerful government officials, it makes sense to look more broadly at the person's whole character, morals, judgment, etc.

(2) "If you were considering hiring a babysitter or nanny for your kids, and had heard that one candidate sexually assaulted a 15-year-old at age 17, and there were many other candidates who you had no reason to suspect of sexual assault, you'd probably pass over that person — even if it was just a rumor and you couldn't say it was more likely than not to be true. Choosing a Supreme Court Justice is a more important decision than choosing a babysitter or nanny, and therefore shouldn't have a higher standard of proof."

Problems with that: Hiring someone to help out in your own home is a private decision which you're free to make on a whim. It isn't an extended process that plays out in front of the whole country and could permanently mar a judge’s reputation. Also, choosing a nanny or babysitter isn't an elaborate governmental process that was carefully crafted to provide for separation of powers and checks and balances, in which a nominee is chosen by a president who's typically been elected after making campaign promises/statements about what kind of judges they'll choose, and another branch of government makes the final decision but is expected to give some degree of deference to the president's choice.

How does this question asked of Donald Trump about H-1B visas make sense?

John Dickerson asked this to Donald Trump on Face the Nation yesterday:

TRUMP: At the debate, you talked about H-1B visas. You said: "It's something I, frankly, use, and I shouldn't be allowed to use it." When you have talked about the bankruptcy laws, you talk about how you took advantage of them. When you and I talked about your taxes, you say you try and pay as little as possible. If you are president, why would anybody follow the laws that you put in place if they knew you were taking advantage of those laws when you were in the private sector?

(That's from the transcript. You can see it in the middle of this video, starting at 5:18 — click the slider at the bottom of the video, a little more than half of the way through the interview.)

I asked John Dickerson about this on Facebook (he hasn't responded to me) (UPDATE: see the end of this post for his response):

Trump claims that he followed the laws, and used them to his business advantage; he hasn't said he violated any laws. How is that inconsistent with the assumption that people will "follow the laws that [he] put[s] in place" when he's president? Presumably he'd to try to improve the laws, leading to better results when businesspeople followed them in a way that worked to their advantage (as businesspeople can always be expected to do).

My mom, Ann Althouse, made the same point (and we hadn't discussed this with each other or seen each other's comments when we separately pointed this out):

What's Dickerson trying to say, that taxpayers should pay more than they owe? That businesspersons shouldn't understand the law, see what's to their advantage, and structure their transactions efficiently? Why wouldn't voters trust a businessperson who followed the law and figured out how to use it? Don't we want someone knowledgeable and competent? We're supposed to prefer someone who's so intimidated by law that he wastes money? Is Dickerson a fool or is he just trying to manipulate viewers into thinking ill of Trump?

Here was Trump's response, with an odd interjection from Dickerson:

TRUMP: Because I know the game better than anybody, because I have been on the other side. I have built one of the greatest companies. I did a filing which shows one of the great companies, great assets, very little debt, tremendous cash flow, some of the greatest assets in the world. But let me just tell you, I use the bankruptcy laws just like other very successful people. I don't [want] to use their names, but I could name 10 people right now, the biggest people in all of business. We do it. It's the game we play. We use the laws of the land.

DICKERSON: But why wouldn't people keep playing . . .

TRUMP: We use it. And that's the way we play the game. Wait a minute. As far as the visas are concerned, I'm not doing anything wrong. I think the -- those visas shouldn't be allowed. But they are allowed. They are part of the fabric of what you do. So, I'll use it. I mean, I'm a businessman. Now that I have turned politician -- I hate to say that, almost, about myself -- but now that I'm running for office, I know the game better than anybody. I'm the one that can fix all of this stuff. But when you start talking about -- I never went bankrupt. I never went bankrupt. You understand I never went bankrupt. But you take a look at the business leaders. Every once in a while -- I have 500 companies. I have so many different companies. And a very few, I will take advantage of -- frankly, by using the laws of the land, as every other major businessperson does.

My mom points out that Dickerson's follow-up was "weirdly obtuse":

"But why wouldn't people keep playing?" There's nothing wrong with "playing." The key is to put the right rules and regulations in place and then to enforce them. If you don't like what people are doing when they are following the law, then something's wrong with the law, not with the people who are finding effective ways to compete.

I don't see Trump as fomenting disrespect for the law. It's more the opposite. The law matters. Get it right. People using the law to their selfish advantage may reveal what's wrong with the law, and Trump is offering his services, as an expert player, in seeing and fixing the flaws so that the game produces a result that is in the general interest of the American people. There may be reasons not to trust him (and there are surely reasons to mistrust those who've played the law game from positions in government), but his use of the law isn't a good reason.

My mom notes that she's in the legal field and she found Dickerson's question "very weird." I'm also in the legal field and had the same reaction. If a journalist as prominent as Dickerson, the host of one of the Sunday morning political shows, saw fit to ask this on the air, how much similar confusion about law, policy, and business is out there among the general public?

UPDATE: John Dickerson has responded to my question on Facebook:

Good question. What I was trying to get at is where is he on the question of gaming the laws and abiding by them. Does he think laws exist to be maneuvered around and taken advantage of? In the case of companies like Apple and others he makes a moral objection to their taking advantage of tax and trade laws. But in his own business he says he plays every game he can even when he acknowledges (as he did with H1B visas) that it's a bad thing to do. (He's under investigation both for his use H1B visas and his tax filings) So what I was trying to get at is whether he expects everyone to game the system when he's trying to make the system better or whether he expected a different standard than the one he uses once he's on the other side-- since his view of standards is a moving target. (For example, he campaigns against foreign workers taking jobs but hires them; campaigns against foreign made goods but makes them). So where's' the line? How does he draw it? How will he draw those lines when he's president. He offered a lot of that in his answer. The point is to excavate his reasoning. The reason I asked about his event with Dr. Carson is that it's part of the same inquiry: what guides your behavior? Is politics a system to be gamed? Seems like a lot of people are upset about politics being turned into a game this election cycle. As the candidate who has achieved a special status because voters think he tells unique truths, how can he say something seemingly true one minute and then say oh that wasn't true it was just politics the next minute. There's no law against doing that. He's just playing the game. But I keep hearing that people are tired of the game playing. Also, it seems like a pretty shifting set of standards-- and campaigns are about whether what you're saying will still be true once you're elected. So why, if his standards are shifting now, should people not think he'll shift his standards when he gets into office. Nothing will be there to bind him in many cases but his personal set of standards. Thanks for asking!

As I said in reply to Dickerson on Facebook: He keeps referring to Trump "gaming the laws," "maneuver[ing]," "tak[ing] advantage of" the laws, etc. Those terms might sound vaguely nefarious, but the bottom line is that they all seem to refer to a businessperson following the law. If the consequences of businesspeople following the law are bad, then the law should be changed. So I fail to see a contradiction, or even a tension, between what Trump says about what he's done as a businessperson and his stance that he'd improve the laws and the economy as president. After all, his argument is not that he expects businesses to suddenly act in the country's best interests out of the goodness of their hearts. His argument is that he knows firsthand, from decades of experience, what it's like to do business under a lot of laws and regulations, and he has ideas for improving those laws to get better economic results. That's all under the assumption that people who run successful businesses, who are advised by lawyers and financial advisors, will always work hard to do whatever they think will advantage themselves under the existing law.

Failed constitutional amendments

The Washington Post takes a look at proposals to amend the US Constitution that never became law:

What if we selected the president by lottery?

Or changed the name of the country to the United States of the World?

Or limited how wealthy a person could be?

How about if we outlawed drunkenness, prohibited divorce, or forbade duelists from holding public office. What say we?

All these have been suggested amendments to the Constitution — some of the 11,000 proposals made over the years to adjust one of the nation’s founding documents. . . .

Some of those that were not ratified were unusual — such as the one in 1911 that would have given Congress the power to protect migratory birds.

Another failed proposal, in 1846, called for presidential election via a lottery system. It called for each state to select its own presidential candidate. Then the name of each state would be written on balls equal to the number of congressmen from that state. One ball would be picked at random, and the candidate from that state would become president. The vice president would be selected the same way.

Blackerby said the proposal came amid sectional strains over slavery. “This could have been a way to purposefully randomize the presidency,” she said. “There was lots of discussion over whether the next president would come from a slave state or a free state, and there were people who were talking about secession if the other side won.” ...

An 1860 proposal would have abolished the presidency outright and replaced it with an executive council. One in 1886 would have created the offices of first, second and third vice president.

An 1893 suggestion would have renamed the country the “United States of the World.” Another in 1866 would have changed the name to “America.”

On Feb. 24, 1838, Rep. William J. Graves, a Whig from Kentucky, shot and killed Rep. Jonathan Cilley, a Democrat from Maine, in a duel in Bladensburg, Md. Ten days later, an amendment was offered in the House that would let Congress ban anyone who had fought, or arranged, a duel from holding federal office. The proposal failed.

In 1978, Congress approved an amendment to give the citizens of Washington, D.C., full representation in Congress. But the states failed to ratify it.

Other failed suggestions were more disturbing.

Four years before the 13th Amendment abolished slavery in 1865, an amendment proposed in 1861 would have protected it. The Civil War intervened, and the amendment was never ratified.

An amendment proposed in 1912 would have banned blacks from marrying whites or people of other races.

The 1938 proposal to make drunkenness illegal came after prohibition had been repealed. It didn’t go anywhere, and the copy in the archives bears some anonymous commentary in pencil:

“Why not add . . . [']Congress and the several states shall have concurrent power to change human nature from time to time in its or their discretion.[']"

12 articles of faith about the criminal justice system

And 26 proposal for reform (PDF), by Judge Alex Kozinski.

(I haven't read the whole article yet, so I don't necessarily endorse any of these.)

A weird sentence from Chief Justice Roberts's dissent in the same-sex marriage case:

People denied a voice are less likely to accept the ruling of a court on an issue that does not seem to be the sort of thing courts usually decide.

My mom (Ann Althouse) responds:

But this does seem to be the sort of thing courts usually decide. And I think people will accept it quite readily. In fact, I think the overall reaction will be one of relief that we don't have to keep chewing over this issue. Let people get back to their personal relationships that were always going on anyway. The country wasn't collapsing because gay people love each other and seek the legal aspects of permanence.

What I'd like to know is: how did Roberts decide that this is not the kind of issue "courts usually decide"? That itself is a decision. What's the standard for saying the Supreme Court shouldn't decide an issue? Is it just based on whether the Justices have a bad feeling about the whole thing? And aren't issues of minority rights exactly the kinds of issues that are often very important for the Supreme Court to decide?

Now that the Supreme Court has recognized same-sex marriage as a constitutional right, does it follow that there must be a right to polygamy?

Of course, some people are quick to make that argument today — like Fredrik deBoer, who writes in Politico:

Now that we’ve defined that love and devotion and family isn’t driven by gender alone, why should it be limited to just two individuals? The most natural advance next for marriage lies in legalized polygamy . . . .

In Chief Justice John Roberts’ dissenting opinion, he remarks, “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.” As is often the case with critics of polygamy, he neglects to mention why this is a fate to be feared. . . .

[P]rogressives who reject the case for legal polygamy often don’t really appear to have their hearts in it. They seem uncomfortable voicing their objections, clearly unused to being in the position of rejecting the appeals of those who would codify non-traditional relationships in law. They are, without exception, accepting of the right of consenting adults to engage in whatever sexual and romantic relationships they choose, but oppose the formal, legal recognition of those relationships. They’re trapped, I suspect, in prior opposition that they voiced from a standpoint of political pragmatism in order to advance the cause of gay marriage.

In doing so, they do real harm to real people. Marriage is not just a formal codification of informal relationships. It’s also a defensive system designed to protect the interests of people whose material, economic and emotional security depends on the marriage in question. If my liberal friends recognize the legitimacy of free people who choose to form romantic partnerships with multiple partners, how can they deny them the right to the legal protections marriage affords?

Polyamory is a fact. People are living in group relationships today. The question is not whether they will continue on in those relationships. The question is whether we will grant to them the same basic recognition we grant to other adults: that love makes marriage, and that the right to marry is exactly that, a right. . . .

Conventional arguments against polygamy fall apart with even a little examination. Appeals to traditional marriage, and the notion that child rearing is the only legitimate justification of legal marriage, have now, I hope, been exposed and discarded by all progressive people. What’s left is a series of jerry-rigged arguments that reflect no coherent moral vision of what marriage is for, and which frequently function as criticisms of traditional marriage as well.

Well, I'm sorry, deBoer, but you're missing something. Oh, I admit your argument has a certain appeal on the surface: how can we say a policy that excluded people from the institution of marriage based on their gender or sexual orientation was unconstitutional discrimination, without saying the same thing of a policy that excludes people based on their number? If it doesn't matter whether you're male or female, straight or gay, then how can it matter whether you're 2, 3, 5, 10, or 50 people?

But polygamy is significantly different — even assuming for the sake of argument that we have no concerns about coercion or power disparities within any given polygamous relationship. As my mom, Ann Althouse, explained 9 years ago:

Legal marriage isn't just about love, it's an economic arrangement. Having the state authorize your union is not the same thing as having your friends and neighbors approve of you and your religious leaders bless you. It affects taxes and employee benefits -- huge amounts of money. A gay person with a pension and a health insurance plan is incapable of extending those benefits to his (or her) partner. He (or she) can't file a joint tax return. That's not fair. A polygamous marriage, however, puts a group of persons in a position to claim more economic benefits than the traditional heterosexual couple. That doesn't appeal to our sense of fairness.

The law doesn't assess how much two people love each other. Two persons of opposite sexes can marry for all sorts of reasons. If there were a device that could look into their souls and measure their love, we wouldn't accept the outrageous invasion of privacy it would take for the government to use it. Excluding gay couples from marrying does generate the complaint that society does not sufficiently respect homosexual love, and by harping on this point, proponents of gay marriage activate their opponents who think that's a good thing.

But it's not all about love and who respects what. It's also about economics. And in that dimension, it's easy to distinguish polygamy.

UPDATE: My mom sees a problem with her own argument from 9 years ago, in light of the majority's reasoning in Obergefell.

ADDED: Judge Richard Posner points out another important distinction:

[P]olygamy imposes real costs, by reducing the number of marriageable women. Suppose a society contains 100 men and 100 women, but the five wealthiest men have a total of 50 wives. That leaves 95 men to compete for only 50 marriageable women.

MORE: Jonathan Rauch observes:

[T]he case for gay marriage is the case against polygamy, and the public will be smart enough to understand the difference.

Gay marriage is about extending the opportunity to marry to people who lack it; polygamy, in practice, is about exactly the opposite: withdrawing marriage opportunity from people who now have it. Gay marriage succeeded because no one could identify any plausible channels through which it might damage heterosexual marriage; with polygamy, the worries are many, the history clear, and the channels well understood.

UPDATE: My mom responds to those quotes by Posner and Rauch:

I've got a problem with that! Talk about a male perspective! What about the women who want to choose to share one man? They should be denied to preserve a pool of marriageable women for all the extra males that would otherwise have scarce pickings? Are women some kind of natural resource to be conserved for the benefit of males?

As the old saying goes: Feminism is the radical notion that women are people. If women think they are better off as multiple wives to one high-quality male, why should they be cut off from that way of life so that some less-desired male will have better odds of getting a woman for himself? Is this everybody-gets-just-one theory of marriage some kind of welfare program for undesirable males?

I can see that society fears its renegade young male and would like to tame them through marriage, leveraging the power of their sexuality lest they expend that energy in acts of violence and dissolution. I can see the idea of using women for this purpose and rejecting polygamy because it takes women out of commission in that service. . . . But if you use that as your overt argument, you're going to run up against ideas about women's autonomy and freedom. We're not society's tools.

UPDATE: Jonathan Rauch expands on his argument against polygamy.

The Supreme Court just recognized the constitutional right to same-sex marriage.

I'm disappointed that the decision was only 5-4, with a majority opinion by Justice Kennedy, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan.

Still, today is a great day in American history.

The majority concludes:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

My mom, Prof. Ann Althouse, writes:

There's a distinct absence of doctrinal particularity about the levels of scrutiny. There's no discussion of the government interest to be served and how closely connected it is to the policy that's supposed to serve that interest. The focus is on the gravity of the burden imposed. . . .

It's notable that the due process analysis predominated and drove the equal protection analysis. I think the inequality is easier to explain and understand, but there are reasons to prefer to frame things in terms of fundamental liberty. Equality is, perhaps, a cooler matter than liberty. There's more passion in liberty and more to disagree about. There's no end to demands for liberty, and which liberties get to be fundamental? That question sets us up for the dissenting opinions, and for those, I'll do separate posts.

Much of Justice Kennedy's opinion is workmanlike and dull, piecing together precedents in an earnest effort to show us that the right found today was really always already there and nothing to do with feelings and political preferences. But there were some glimmers of passion. My favorite example:

"Marriage responds to the universal fear that a lonely person might call out only to find no one there."

Alex Knepper writes (on Facebook):

When I was first realizing I was gay, I was scared: I figured it would preclude me from full participation in society, and for that reason I fiercely resisted admitting my orientation to myself. It's still unbelievable that in just ten years since that time, the nation has moved from -- at best -- tolerance, but often outright hostility -- to widespread acceptance. This ruling will mean millions of people will be relieved of a part of the struggle and self-loathing that so often accompanies self-discovery and coming out, and will instead live with the awareness that same-sex relationships are viewed with legitimacy by their nation. Of course, no law can erase all of the difficulties that accompany being gay -- but gays and lesbians can rest easy knowing that now, at least, the government has done its part to secure our equal treatment under the law.

Androphobia!

Case #1:

I recently assisted a young man who was subjected by administrators at his small liberal arts university in Oregon to a month-long investigation into all his campus relationships seeking information about his possible sexual misconduct in them (an immense invasion of his and his friends’ privacy), and who was ordered to stay away from a fellow student (cutting him off from his housing, his campus job, and educational opportunity) — all because he reminded her of the man who had raped her months before and thousands of miles away.

He was found to be completely innocent of any sexual misconduct and was informed of the basis of the complaint against him only by accident and off-hand. But the stay-away order remained in place, and was so broadly drawn up that he was at constant risk of violating it and coming under discipline for that. When the duty to prevent a 'sexually hostile environment' is interpreted this expansively, it is affirmatively indifferent to the restrained person’s complete and total innocence of any misconduct whatsoever.

That's from a Harvard Law Review Forum article called "Trading the Megaphone for the Gavel in Title IX Enforcement," by Professor Janet Halley, quoted by my mom, Professor Ann Althouse.


Case #2:

A UT-Arlington student who claimed she was threatened at gunpoint on campus this week admitted Friday that she’d lied, a university spokeswoman said. The student told police she hadn’t even been at the school the day she said the incident occurred....

The university had issued an alert Friday that the student told police she had been followed six miles by a man in a pickup before she reached the campus. She had reported that when she parked at the university, the man threatened her and pointed a gun at her before he left. The student also posted on social media that the man might have targeted her because she is Muslim. In a Facebook post, she referred to the killings of three Muslim students this week in Chapel Hill, N.C.

That's from the Dallas Morning News, which had originally reported, before it was revealed to be a lie: "The suspect was described as a white man in his mid-30s wearing a camouflage baseball cap, a short-sleeve blue shirt and bluejeans." The paper noted that the police were investigating and asking anyone to call with information about that suspect.

"But don't you think that if a government official claims that something has to do with national security, ...

... rules of privacy and speech don't matter at all?"

So Ben Wikler (a friend of mine) wryly asks Ben Wizner of the ACLU, which just filed suit against the US government over the Obama administration's surveillance programs. Listen to that interview and more about PRISM here.

A few points about Justice Scalia's comments on sexual orientation and murder

Speaking at Princeton University, Scalia was asked by a gay student why he equates laws banning sodomy with those barring bestiality and murder.

"I don't think it's necessary, but I think it's effective," Scalia said, adding that legislative bodies can ban what they believe to be immoral.

Scalia has been giving speeches around the country to promote his new book, "Reading Law," and his lecture at Princeton comes just days after the court agreed to take on two cases that challenge the federal Defense of Marriage Act, which defines marriage as between a man and a woman. . . .

"It's a form of argument that I thought you would have known, which is called the 'reduction to the absurd,'" Scalia told Hosie of San Francisco during the question-and-answer period. "If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?"

(Source.)

My mom, Ann Althouse, links to that article and points out that Justice Antonin Scalia is "antagonizing — antoninonizing — students."

My thoughts on this:

1. I interpret Scalia's phrase "moral feelings against" to refer to disgust. He lends this an air of dignity by using the lofty word "moral," but what he's really talking about is a visceral or aesthetic reaction expressed by interjections like "Eww!" and "Yuck!" We need to think about whether it's actually legitimate for disgust to serve as a primary motivation and justification for passing a law. There's no question that there are good laws that prohibit behavior that happens to be found disgusting. But the question is whether mere disgust can justify a law that would otherwise not seem to have a rational justification. It's fine for people to be disgusted at the thought of a particular couple having sex or even showing any kind of affection. This could be based on any number of factors, including the couple's gender, age, or physical attractiveness. Most people would find it offputting to see certain couples do so much as kiss in a movie — more offputting than they would find a movie scene showing a brutal act of murder. There's a much wider audience for images of violence than for atonal chamber music, but as long as even 1% of the population finds that kind of music pleasant, some people are going to happily exercise their right to create it, no matter how large a majority experiences it as a bunch of noise with no redeeming value. I wouldn't want to live in a society where the presence or absence of such feelings of disgust and revulsion determined what kinds of behavior we're allowed to engage in.

2. I assume Justice Scalia realizes that mentioning gay people and murderers in the same breath is going to be very inflammatory to a lot of people, and isn't the best way to win over those who didn't already agree with him. (He winked at this by sardonically adding: "I'm surprised you aren't persuaded.") This doesn't mean his words were poorly chosen — he might have good reasons to try to stir up controversy over this. And, of course, he has a right to express his viewpoint in his own inimitable style even if he offends people. But while he's remarking on the way voters can make their decisions based on visceral repulsion, he might want to consider that many people are viscerally repulsed by the way he makes his point, and this may affect people's votes in future presidential elections.

3. What matters far more than anyone's visceral feelings about what is or isn't disgusting is this: Murder laws uphold the principle that everyone in a society should have equal rights and responsibilities.

National Review makes the case against amending the First Amendment

In an editorial against the terrible idea of amending the First Amendment, the Editors of National Review write:

The phrase “stunning development” is used far too often in our politics, but here is an item that can be described in no other way: . . . congressional Democrats, frustrated by the fact that the Bill of Rights interferes with their desire to muzzle their political opponents, have proposed to repeal the First Amendment.

That is precisely what the so-called People’s Rights Amendment would do. If this amendment were to be enacted, the cardinal rights protected by the First Amendment — free speech, freedom of the press, freedom of assembly, freedom to petition the government for redress of grievances — would be redefined and reduced to the point of unrecognizability. The amendment would hold that the rights protected by the Constitution are enjoyed only by individuals acting individually; individuals acting in collaboration with others would be stripped of those rights. . . .

The so-called People’s Rights Amendment would have some strange consequences: Newspapers, television networks, magazines, and online journalism operations typically are incorporated. So are political parties and campaign committees, to say nothing of nonprofits, business associations, and the like. Under the People’s Rights Amendment, Thomas Friedman would still enjoy putative First Amendment protection, but it would not do him much good inasmuch as the New York Times Company, being a corporation, would no longer be protected by the First Amendment. . . .

One of the great dangers of such efforts to regulate political speech is that it puts incumbents in charge of setting the rules of the game under which their power and their position may be challenged. That is a recipe for abuse and corruption, and for smothering those critics who would draw attention to abuse and corruption.

Justice Scalia gets the law of supply and demand wrong at oral argument

And Matthew Yglesias thinks Scalia's error could actually make the case that the Affordable Care Act is constitutional.

If the U.S. Constitution is losing influence abroad, is that a problem?

In response to a New York Times article making that point, as well as Supreme Court Justice Ruth Bader Ginsburg's comments that she wouldn't advise other countries to model their constitutions on ours, Ramesh Ponnuru argues that this isn't necessarily a cause for concern.

Is the effect of Citizens United being systematically distorted by the media?

Dan Abrams marshals the evidence.

Texas would have the highest speed limit in the United States, under legislation just passed by the Texas House.

85 miles per hour.

The link is from Metafilter, where one commenter points out that Texas seems to be inspired by "Europe." The article quotes the bill's sponsor:

"They have high-speed roadways in Europe, and there could be some merit in having some of those highways in Texas," said Rep. Lois Kolkhorst, R-Brenham, who introduced the bill. "Given the right engineering, we should consider it."

As Bruce Bartlett has said in a different context (transcribed in this old post):

We're traveling down the route of Europe. And many Americans just hate that idea. If you're in any group of conservatives, and you say, "Oh, that will take us down the route of Europe," they will say, "Oh no, we don't want to do that! That's awful!" Nobody ever explains what's so terrible about Europe.

Dick Cheney kept a resignation letter in a safe the whole time he was Vice President.

He reveals this in his memoirs, which are coming out next Tuesday. Only Cheney, President Bush, and one staffer knew of the letter's existence.

Cheney's reason:

"[T]here is no mechanism for getting rid of a vice president who can’t function."

He also makes this tantalizing statement about his book:

"I didn’t set out to embarrass the president or not embarrass the president."