Maine Bound And Down

We spend summers in Maine, returning to Arizona in October  Last September I started seeing lots of posts in my Facebook feed from a guy named Graham Platner, mostly yelling about genocide in Gaza and using the usual code phrases regarding Jewish influence.  Seems he was running for the Democratic nomination for Senate.  I thought he was just some nut who'd get wiped out in the primary.  Instead he drove the incumbent Democratic governor, a solid progressive, out of the race and won the nomination.

That's despite:

- the Jew bashing

- the Commie loving

- the Nazi tattoo wearing(1)

- the phony background story 

- enlisting in the Army, not because of patriotism or a sense of duty, but because he liked killing people 

- mocking the death of his fellow soldiers 

- the rape fantasies (to be fair he said he'd only rape to establish dominance not as a sexual thing)

- sexually assaulting a Republican woman 

No, what it took to finally drive him out of the race was sexually assaulting a Democratic woman.  Tells you a lot about the state of the Democratic party in Maine.  None of the other stuff mattered - and the Jew bashing was seen as a positive by D voters. You could also already tell how bad Platner was just by looking at the Senators endorsing him early on - The Bum (Sanders), The Cherokee Princess (Warren), The Dirtbag (Gallego), and The Callow Youth (Murphy).

Actually, it's a bit misleading to say it was the sexual assault on the D lady that did it.  The truth is that a week ago, polls in Maine showed Susan Collins (R) edging ahead of Platner in the Senate race.  Usually, Collins trails the D challenger, only pulling ahead in the final couple of weeks of the campaign, but here she was beginning to open a lead on Platner in early July, spelling his doom.  Time for the D's to pull the plug in time to insert another candidate, so time to come forward with the sexual assault claim. 

Platner is a strong indicator of where the Democratic party is headed in Maine but there was another story, under covered in the media, that really tells you about the danger Maine Democrats (and those similarly situated elsewhere) pose to our democracy.

In early 2025, a Republican State Representative, Laurel Libby, posted a photo of a local high school track meet on Facebook.  One of the winners in the girl's competition was a boy who claimed he was a girl.  The representative stated in her post that this was wrong and boys should not be allowed to compete in girls competitions.

The Maine House of Representatives is narrowly controlled by Democrats, 75 to 72.  The House voted on party lines to censure the Republican representative and, until she apologized, banned her from speaking and voting in the House.  Not even one Democrat representative saw anything wrong with this action.(2)

Rep. Libby filed a federal court action seeking an injunction against the House for stripping her constituents of representation in the legislature.  In the District Court, a Biden appointed judge saw nothing wrong with the silencing of Rep. Libby and refused to grant the injunction.  Libby appealed to the First Circuit but a three judge panel of Biden appointees saw nothing wrong and declined to grant the injunction. 

It finally took an appeal to the United State Supreme Court to get Libby's request granted (Sotomayor and Jackson dissenting). After the Supreme Court action, the legislature lifted the sanctions.

What happened to Rep Libby is as much an indicator as Platner's primary win, of how radical Maine Democrats have become.  Libby was opining on a public issue, taking a position that all polling shows is the majority position of all Americans nationwide.  Yet every Maine representative voted to silence her, and Democratic appointees at the District and Appellate Court levels refused to intervene.

What has become ever more evident over the last few years is that Democrats have convinced themselves they are entitled to use all measures to suppress dissent, and will use any excuse to do so. To them, democracy is when they win everything.  They oppose diversity in viewpoints.  Look at their hysteria over losing control of just one social media platform - twitter when Elon Musk purchased it. They have an insatiable need to control every avenue of opinion, every institution, every organ of government. What happened in the Maine state legislature in 2025 is just the front of the new wave of repression.  If the Democrats attain a trifecta at the federal level and stuff the Supreme Court with radical justices, a plan they have adopted as their goal, in the future elected opposition figures like Rep. Libby will be successfully suppressed.  There is no "moderate" wing of the Democratic Party left.

Taken together, the path forward for Maine Democrats is to find a new candidate who is Jew-bashing, Commie loving, and thinks boys should play on girl's teams and be allowed in their bathroom, but does not sexually assault Democratic women.  

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(1)  Best quip I saw on this was that Platner's autobiography is called Maine Kampf. 

(2) The nominal justification for the sanctions was that Rep Libby included a photo and name of the boy in question.  Here's how the game is played; whatever a Democrat says or does is free speech, whatever their opponents do is, even it is speech, is the equivalent of an action and deemed harmful or unsafe and thus justifies suppression.  Here's how it works if your actions break the law but are in support of a Democratic favored cause. Recently, several members of Antifa were convicted and sentence to prison for violent acts in Dallas as part of their anti-ICE activites, including shooting a law enforcement officer in the neck.  In Democratic circles this was reported as being sentenced because of "protests", so it becomes another example of Trump's "fascism".

Nothing Doing

The United State Supreme Court assembled for the first time on February 2, 1790 at the Royal Exchange Building in New York City.  The initial session of Congress, beginning in March 1789, had enacted enabling statutes and approved the appointments of Chief Justice John Jay and associate justices John Blair, James Wilson, and William Cushing.  

On that august occasion in February 1790, the four justices, wearing wigs and their robes of office, gathered in front of an expectant audience.  And did nothing.  There were no cases.  After a week of doing nothing, the Court adjourned, after deciding to next meet in September.

Law School

THC graduated from Boston College Law School in 1976.  In retrospect I now realize that BC Law was near the end of its transition from a trade school, where one went to learn the practice of law, to a law school aspiring to the upper ranks of academia. BC was successful and is now ranked around #20 among American law schools.

THC didn't enjoy law school.  He was a poor student, more focused on getting out to a job than in studying.  With the help of Dean Huber, with whom he did an independent study, THC was able to work full time during his third year and just show up to exams for the two courses he was enrolled in.  Working did prove much more fulfilling than school.

Over the years, THC has witnessed the further transition of BC Law into an advocacy focused institution, like many of the other top law schools.  In its faculty, course selections, and in BC Law Magazine it is uniformly progressive.  It is about teaching students what the law ought to be in order to advance an ideological agenda, rather than what the law is.  The magazine is its periodical celebration of those who best advance the cause.

An example can be found in the most recent issue of the magazine, an article on a new book by constitutional law professor Aziz Rana, titled The Constitutional Bind: How Americans Came to Idolize a Document that Fails Them, which calls for "significant changes to our system of government" in order to deal with the "overlapping pathologies . . . of our governing arrangements."  The core problem, according to Rana is:

"the existing order makes it especially difficult for today's multiracial and largely urban majority coalition to implement widely backed policies in response to significant social problems".

According to the article, Rana is gleeful that "creedal constitutionalism has begun to lose its hold on the American imagination", because progressives have been disappointed in recent elections and Supreme Court decisions.

Apparently the author is disappointed by the failure of FDR's court packing scheme in the 1930s, and admires "a little-remembered convention sponsored by the radical Black Panther movement and attended by a broad swath of the activist left, with the goal of replacing the Constitution with a more democratic document".

Professor Rana's views are representative of those of legal academia in the leading schools.  He has the right pedigree; Harvard undergraduate; Yale Law School; member Council of Foreign Relations; and Fellow at the Quincy Institute think tank which is aligned with the Iran-China-Russia axis.  And his views have been enthusiastically endorsed by Nancy Pelosi, according to the BC Law article.

The legal academy is part of the broader progressive movement which has tortured the meaning of democracy, so that its definition is now simply "anything progressives favor", while anything opposed to progressivism is "anti-democracy".  

It is from the ranks of the students in these top law schools that the next generation of lawyers and judges will be drawn from.  They come from a post-constitutional legal world where the only thing that counts is the result and furthering the progressive agenda.  In this world, for a judge to decide a case in a way consistent with the law but not supportive of the progressive agenda would be unthinkable.  The courts are essentially just another legislative branch.(1)

The purpose of the original constitution that progressive seek to overthrow was to establish a federal government with defined and limited powers that allowed for individual and regional diversity in beliefs and politics, and which did not impact most of the everyday life of its citizens.

The new constitution sought by those like Rana seeks to ensure a permanent entrenched federal regime in order to impose a defined set of beliefs and to punish dissent, while controlling the everyday life of its citizens.  Implementing the "widely backed policies in response to significant social problems" is merely the excuse for repression and crackdowns on freedom of speech.

If you want to see the difference between those who believe in the "creedal constitution" and those who believe in "whatever gets it done", watch this exchange between Joe Biden and Kamala Harris during a 2020 campaign debate.(2)

In response to Joe Biden's criticism of her proposed executive actions on guns, Kamala Harris references Barack Obama's slogan: "Hey Joe—instead of saying, 'No we can't' let's say, 'Yes we can."

"Let's be constitutional," Biden responds.https://t.co/qpCouATwrg #DemDebate pic.twitter.com/f9AlLKlgpc

— The View (@TheView) September 13, 2019

UPDATE: Sept 27, 2025.  Read this recent column by Jonathan Turley, The Counter-Constitutional Movement: The Assault on America's Defining Principles, being led by law professors disappointed about not getting the political results they desire because the existing document leads to too much "rights talk" and identifying free speech as America's "Achilles' heel".

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(1) To illustrate the transformation from liberal jurisprudence to progressive legislative jurisprudence, we can look at Roe v Wade.  At the time, the 1973 decision received a great deal of criticism from legal scholars who supported liberalizing state abortion laws legislatively but felt Roe was bad constitutional law.  As liberal constitutional scholar John Hart Ely wrote in a 1973 article responding to the decision,"Were I a legislator I would vote for a statute very much like the one the [Supreme] Court ends up drafting", but, as a constitutional matter, he concludes:

It [Roe v Wade] is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.

In 1970, Judge Henry Friendly of the Federal 2nd Circuit wrote a draft opinion regarding a challenge to New York's abortion law.  Because the state modified its abortion statute prior to the opinion being issued, the draft was never released, and Friendly passed in 1986.  However, the draft remained in one of his clerk's possession for thirty years before he spoke of it publicly and released the text.  Friendly was one of the most highly regarded Federal judges of the time and supported the passage of more permissive abortion laws by state legislatures.  However, Friendly's draft upheld the constitutionality of the New York law, despite his personal beliefs.  This article, describing the draft opinion, was written by his clerk.  Unfortunately, I have been unable to relocate the text of the draft though I read it online 15 or so years ago.

The analytical approach of Ely and Friendly is inconceivable for someone like Rana and, for that matter, most of today's progressives who see their role of using the judicial system to enact their legislative preferences.  I should note that there are still occasional progressive holdouts in legal academia for the more traditional view; see, for instance, Akhil Reed Amar of Yale Law School, regarding abortion, but their numbers are fast dwindling.

It is also why, in recent decades, when any politically sensitive issue is in front of the Supreme Court, the question is always whether one of the conservative justices will break ranks because everyone knows the opinions of the liberal justices will always conform to their policy preferences.

(2) After his election, President Biden adopted Harris' suggested approach to the Constitution.

The Day Of "Enlightened Administration" May Be Ending

A mere builder of more industrial plants, a creator of more railroad systems, and organizer of more corporations, is as likely to be a danger as a help.  The day of the great promotor of the financial Titan, to whom we granted anything if only he would build, or develop, is over.  Our task now is not discovery or exploitation of natural resources, or necessarily producing more goods.  It is the soberer, less dramatic business of administering resources and plants already in hand, of seeking to reestablish foreign markets for our surplus production, of meeting the problem of under consumption, of adjusting production to consumption, of distributing wealth and products more equitably, of adapting existing economic organizations to the service of the people.  The day of enlightened administration has come.

- Franklin Roosevelt, address to The Commonwealth Club of San Francisco, September 23, 1932

FDR was expressing the view of early 20th century Progressives (1).  The world of the Founders had disappeared by the beginning of the 20th century with the emergence of Industrial America and thus their ideas about property and liberty were now outmoded.  For the United States to continue to compete as a great nation the social reforms of late 19th century Bismarckian Germany and the government-industry cooperative model of the new corporatist Italian state provided a better path forward.  It was a world where all the could be invented had already been invented; a world where the large corporations now existing would always exist; a static world in which the pie had been baked and now just needed to be sliced fairly.

The improvisation and chaos of the New Deal administrative agencies was supposedly controlled and regularized by the Administrative Procedure Act of 1946 which created a standardized administrative process governing the actions of administrative agencies.  In retrospect, like many well intentioned legislative actions, the APA turns out to have unintended consequences, creating, without need of a constitutional amendment, a fourth branch of government, and providing effective cover, licensing agencies to create a sophisticated tangle of procedures that baffle and frustrate anyone who has to deal with them and prove expensive and time-consuming to legally challenge. 

Since the days of the New Deal, the administrative state has metastasized, expanding its breadth, scope, and power, becoming ever more unaccountable, in ways that I think would astound even its biggest proponents in the 1930s.  In its current state, its existence is incompatible with the rights and liberties of American citizens.

Contrary to the paeans to agency expertise penned by Justice Kagan (2) in West Virginia v EPA (2022) and in the Looper Bright case decided today, the expertise in federal agencies is in the processes and procedures that empower them rather than in the substance of what they ostensibly are regulating.  Are there competent people at these agencies?  Yes, and I dealt with some of them who were quite good at their jobs.  But the best move on, leaving for more productive careers, while the bureaucracy promotes those best at protecting and growing the bureaucracy.

During the Trump administration, the Supreme Court overturned the Commerce Department's decision to add a new question regarding citizenship to the 2020 census on the grounds that it was "pretextual".  That is, the stated grounds for the decision were not the actual motivating factors.  The truth is that most administrative agency actions are "pretextual".  Today's administrative agencies are dominated not by true subject matter experts, but by ideological personnel who use their expertise in process to advance their agendas.

The Supreme Court's decisions this week in Loper Bright v Raimondo and SEC v Jarkesy , along with Garland v Cargill decided two weeks ago, are blows against the administrative state.  In the SEC case, the Court restored the right of defendants in cases involving civil penalties to have access to the judicial system and jury trials.  The Court overturned the process that allowed regulatory agencies to pursue penalty cases brought by the agency and try them in front of judges appointed by the same agency!  It restored the 7th Amendment rights of American citizens.  Cargill overturned a Trump era regulation because it erroneously classified bump stocks as creating machine guns, ruling the ATF lacked statutory authority to due so, findings that the agency had creatively stretched the definition of machine gun to include bump stocks.

Loper Bright overturned the Chevron Doctrine, stemming from a 40 year old Supreme Court case in which the court ruled that in cases of legislative language ambiguity the federal courts would defer to the interpretation of federal agencies.  The case involved fishing vessels and herring. Here's the summary from the New Civil Liberties Alliance (NCLA), which represented the fishermen and to which I  contribute (NCLA also filed an amicus brief in the Jankesy case).

The National Oceanic and Atmospheric Administration implemented a Final Rule in 2020 to force fishing companies like Relentless Inc., Huntress Inc., and Seafreeze Fleet LLC, to pay for human at-sea monitors aboard their vessels. Congress never gave the agency authority to launch such a program. This at-sea monitor mandate violates the Constitution’s Article I, and the agencies have exceeded the bounds of their statutory authority. NCLA’s clients are small businesses that commercially fish for Atlantic herring (as well as mackerel, Loligo and Illex squids, and butterfish). Paying for monitors would cost them more than $700 per day, substantially cutting into—or even exceeding—their daily fishing profits for herring. 

The U.S. Court of Appeals for the First Circuit upheld the Final Rule, deciding that broad “necessary and appropriate” language in the Magnuson-Stevens Act (“MSA”), which governs U.S. fisheries, augmented the agency’s regulatory power. It then relied heavily on Chevron deference to uphold the agency’s ostensibly reasonable interpretation of a supposedly ambiguous federal statute.

Note that nothing in this case involved NOAA's supposed expertise in managing fisheries.  Rather it was a question of how to pay for a monitoring system.

These cases are important wins against the administrative state and for American citizens but there is still much more that needs to be done.  Good first steps, but we will see if the Court has the willingness to go further.  Both the left and right overstate the impact of these cases, particularly Loper Bright, which does not dismantle the administrative state, but merely curbs its worst excesses to a limited extent.  Administrative agencies and their supporters are relentless and will continue their attempts to undermine constitutional rights.(3)

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(1) 20th and 21st century Progressivism while sharing a philosophy of government control by bureaucracy (read My Senator for more on this), differed in many other significant ways.  The 20th century version was nationalistic, demanded assimilation into The American Way, and would have rejected multiculturalism and identity as demanded by today's progressives.

(2) Of the three Justices appointed by Democratic presidents, Kagan is by far the best.  Thought I disagree with her judicial philosophy she is very intelligent, a clear thinker, and an effective writer.  It is worth reading her dissents; the other two, not so much.  When Kagan joins a dissent from one of the other two but does not write herself it's a signal that it can be safely ignored.  For instance, in this week's opinions in City of Grants Pass v Johnson, the Court ruled that a city ordinance prohibiting overnight camping on city property by anyone, is not a violation of the 8th Amendment prohibition on cruel and unusual punishment when applied to the homeless.  Justice Sotomayor wrote a ridiculous dissent joined by Kagan and Jackson.  Like many of her opinions, it is bereft of intellectual substance and simply a polemical policy piece.  

(3) The bureaucracy has many ways to get you.  EPA, the agency I'm most familiar with, was created in 1970 and administers several very complex statutes, requiring extensive regulatory schemes.  These regulations were often ambiguous and confusing and companies would write the agency asking it how it interpreted the application of their own regulations.  The object was not to file legal challenges but to simply allow the company's employees to operate in compliance and not be vulnerable to enforcement actions.  At its discretion, the agency would respond with a guidance letter.  However, the letter only went to the company making the inquiry and could not be located easily by other companies trying to ensure compliance with the same regulatory provision.  During the 80s and 90s, several DC based environmental lawyers became known for having the best collections of these guidance letters and if you wanted advice you had to pay for it.

During those years I had conversations with EPA attorneys in two Regional offices about this situation.  They were also frustrated because they also did not have ready access to the guidance letters, explaining that the enforcement attorneys at EPA HQ wanted to keep distribution restricted in order to maximize their ability to use enforcement discretion in the future and did not want to be bound by its interpretations.  This amounted to keeping the regulated community uncertain of how to act for the purposes of allowing the agency to arbitrarily use its power to punish.

When the Trump Administration came in, the new EPA Administrator directed that all guidance letters be made available on a searchable database, which was done over staff objections.  Within a week of President Biden taking office, the database disappeared from EPA's website.  I know that a previous EPA General Counsel issued a similar directive to his staff which simply ignored it until he left.

Opinions

The Supreme Court recently held oral arguments on the affirmative action programs of Harvard and the University of North Carolina which, at least in the case of Harvard, where I'm familar with the data, has increased black and hispanic admissions while significantly limiting Asian admissions.  I expect the Court will overturn the diversity rationale first expressed by Justice Powell in the Bakke case (1978) and then made an explicit holding of the Court in the 2005 Grutter case, which provided cover for academic institutions to unleash the scourge of Division, Intolerance, and Exclusion (DIE).  While I believe that to be the correct constitutional conclusion, the reality is that the Court's ruling will not make a difference to the admission practices of the elite colleges and universities most committed to DIE.  There are quite a few potential ways to work around the Court's anticipated ruling in order to achieve the same goals which, in turn, will trigger more litigation.

Reading the transcript of the arguments led me to reread the opinions in Bakke and two aspects jumped out to me.

The first was Justice Powell's explanation of the purpose of "diversity", why it was important in the educational environment, and thus a permissible factor in admissions.  Excerpts:

The atmosphere of "speculation, experiment and creation"—so essential to the quality of higher education—is widely believed to be promoted by a diverse student body. As the Court noted in Keyishian, it is not too much to say that the "nation's future depends upon leaders trained through wide exposure" to the ideas and mores of students as diverse as this Nation of many peoples.

Thus, in arguing that its universities must be accorded the right to select those students who will contribute the most to the "robust exchange of ideas," petitioner invokes a countervailing constitutional interest, that of the First Amendment. In this light, petitioner must be viewed as seeking to achieve a goal that is of paramount importance in the fulfillment of its mission.

"The law school, the proving ground for legal learning and practice, cannot be effective in isolation from the individuals and institutions with which the law interacts. Few students and no one who has practiced law would choose to study in an academic vacuum, removed from the interplay of ideas and the exchange of views with which the law is concerned."

Ethnic diversity, however, is only one element in a range of factors a university properly may consider in attaining the goal of a heterogeneous student body. 

What is striking about Powell's rationale is that it appears no longer applicable in education, particularly in the elite colleges and universities.  His assumption is that ethnic and racial diversity, in and of itself, is an element in creating the "robust exchange of ideas".  Precisely the opposite is currently happening in academia.  What is important for students (and faculty) is complete conformity to a rigid set of ideas based upon race and gender being the sole lenses through which human experience and knowledge should be viewed.  Applicants, students, and faculty are increasingly being forced to pledge adherence to every element of the new creed, and dissent is immediately punished.  Classroom discussion, student group activities, outside speakers are all subject to a stifling conformity.

In light of the state of 21st century academia, Powell's concept of "diversity" has simply been nullified. On that basis alone, Grutter should be overturned.

The second thing that stood out was Justice Marshall's opinion.  Marshall's opinion is concerned solely with the situation of the Negro (his word) and the history of discrimination, pre- and post-Emancipation, experienced by that group.  After a lengthy recitation of that history, the Justice concludes;

 . . . these differences in the experience of the Negro make it difficult for me to accept that Negroes cannot be afforded greater protection under the Fourteenth Amendment where it is necessary to remedy the effects of past discrimination.

It is a view I have sympathy with, though the argument carries less power in 2022 than in 1978.  The unique aspects of the descendants of the freed slaves, and the discrimination they faced nationwide consistently until the post-Second World War era are at the heart of this.  In the July 2022 post Justice You Shall Pursue, I wrote about an interview with Charles Fain Lehman:

Two thoughts prompted by the interview:

The first is whether the Civil Rights Act of 1964 (CRA) was a mistake in not limiting its scope to the problem we were trying to remedy - the exclusion of black Americans from the full scope of legal rights of citizenship, as well as their de facto exclusion from large parts of American life.

During the debates over the 14th Amendment after the Civil War, an alternative was proposed simply stating:

All national and State laws shall be equally applicable to every citizen, and no discrimination shall be made on account of race and color.

It was overwhelmingly defeated in the Senate and instead we ended up with the more complex and legally ambiguous version of the Amendment we have now, in which we are still debating what "due process of law", "privileges and immunities of citizens" and "equal protection" mean 150 years later. 

The one sentence version was doomed to defeat because, at the time, white Americans would not accept social equality for blacks, but in the long-term I think it would have served us much better.  Was the same true of the CRA, which I've always considered one of the two greatest federal legislative achievements of the 20th century (the other being the 1965 Voting Rights Act)?  It is something recent events have led me to question. (1)

(1)  My point is not whether other groups should have civil rights, but perhaps we would have been better served focusing on the unique circumstances of those involuntary brought to America, held in servitude, and their descendants.  Whatever other groups may have faced, the degree, extent, and duration of discrimination against these people is unparalleled in our history.

Ironically, the elite academic institution focus on diversity has led to a highly disproportionate percentage of black admissions to be of first and second generation African immigrants or biracial applicants.  In some cases, as with Barack Obama, applicants fall in both categories.  This has been noticed by some black organizations who have called for preferences for those descended from slaves, in order to correct this imbalance. 

Unfortunately, all this is a diversion from the real issue - the failure of K-12 education to develop a pipeline of students for the institutions of higher learning.  The result is that the elite institutions are competing against each other for a small pool of black applicants.  Expanding that pool should be the focus.  There are a lot of theories about why this has happened but, unless and until it is solved, this issue will remain with us in one form or another.

On a side note, until rereading the case, I had not realized that arguing for the University of California was Archibald Cox, of Harvard Law School, and the Special Prosecutor fired by President Nixon in the Saturday Night Massacre of October 1973.

Regarding Dobbs

With the Supreme Court's recent abortion decision there has been talk in both parties about potential Congressional action.  For the Democrats it's been about codifying legislatively the precepts of Roe/Casey on a national level.  For the Republicans, in the event they gain control, it is passing a national ban on abortion after 15 weeks (or, for others, an absolute ban).

Apart from the intra-party political disputes each party would face in drafting legislation (1), I have my own problem with these proposed solutions because I do not believe Congress has any Constitutional authority to pass such legislation.  Past legislative proposals have invoked the Commerce Clause as the Constitutional justification but my view of that clause is that the decision of an individual to have an abortion does not constitute interstate commerce.  Some conservatives have made an alternative argument that Congress has authority to legislate on this subject under the 14th Amendment but it is a big stretch to do so, and moreover, it would mean effectively reading that Amendment as supporting substantive due process, which is otherwise anathema to conservatives.

If I were in Congress I would vote against any such proposals and that is why THC is never going to be nominated for public office by either party!

UPDATE:  For those interested in the underlying constitutional law issue, listen to this Bari Weiss podcast in which Akhil Reed Amar, a pro-choice Yale Law School professor, explains the constitutional deficiencies of the 1973 Roe decision.

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(1) For the Democrats the problem is the party has moved way beyond Roe/Casey and takes the position that there should be no legal constraints on abortion - the Equality Act proposed by the party would Federalize abortion and allow it at any time until birth (though there are legislative proposals in California and Maryland to extend that for a bit after birth).  For Democrats, abortion has moved from the Clintonian formula of "safe, rare, and legal" to the Calhounian doctrine of a positive good.

For Republicans it is going to be extremely difficult to reconcile the differences between those supporting a European style 15 week limit, with appropriate health exceptions, and those who will strongly advocate for an absolute ban.  The former is roughly consistent with American public opinion, the latter opposed by most Americans.

Misremembering History: Will Plessy Ever Be Overruled?

Much of the oral argument in the abortion case currently being considered by the Supreme Court turned on the issue of when it is appropriate to overrule a precedent set by a previous decision of the Court.  In that context there were several references to Plessy v Ferguson, the 1896 case in which the Court determined the 14th Amendment did not eliminate all "distinctions based on color" and, in common parlance, upheld the provision of separate, but equal, facilities to different races.

Most references in the popular press, and surprisingly even in legal circles, refer to Plessy as being "overruled" and no longer applicable law, usually citing Brown v Board of Education (1954), the school desegregation case, for this proposition.  This is incorrect.  Plessy is still the law in the United States, as the Supreme Court has continually affirmed, even in recent decades, that differential treatment based on race meets constitutional standards (see, for instance, Grutter v Bollinger (2003)).

In Plessy the Supreme Court held that distinctions in treatment based upon race were constitutional when the Court determined such distinctions were appropriate.  Brown only held that such distinctions were inappropriate in the case of K-12 public education, but made no broader ruling regarding the reasoning behind Plessy.

What has caused this public confusion is since Brown the Court has struck down some racial distinctions while upholding others of a different character than those in Plessy ; the Court still maintains it can determine when a specific racial distinction passes constitutional muster.(1)

That the Supreme Court has refused to repudiate the reasoning of Plessy is astounding, particularly in light of the language of the 1964 Civil Rights Act prohibiting discrimination on the basis of race, color, religion, sex or national origin in hiring, promoting, and firing, public accommodation, and in federally funded programs.  Instead the Court has developed in a series of decisions its own rationale for ignoring the anti-discrimination provisions of the Civil Rights Act when it determines it appropriate to do so.

Most recently, the Court's approach has been supported by the Biden administration which recently urged the Supremes not to review the case filed by Asian Americans against Harvard University, taking the position the Court should not stop Harvard from continuing to use race in admissions with a disparate impact on Asian Americans.  That the administration is taking such a position should not be a surprise as the newly appointed head of the DOJ's Office of Civil Rights, Kristen Clarke, does not think the anti-discrimination provisions of the Civil Rights Act apply to all Americans, an interpretation also supported by Vanita Gupta, the #2 official in DOJ.

It is time for the Supreme Court to explicitly overrule Plessy and make the law of the land reflect the sentiment in Justice Harlan's famous dissent in that case:

"Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved."

For further background I recommend reading The Color-Blind Constitution by Andrew Kull (1992), a book I first mentioned in Readings on Slavery.  Kull's book covers the subject from 1839, when citizens of Lynn, Massachusetts unsuccessfully petitioned the legislature to repeal all laws "which make any distinction among its inhabitants, on account of COLOR", through the debates over the 14th amendment, Plessy, the post WW2 desegregation cases, and the many cases in which the Court failed to apply the language of the 1964 Civil Rights Act.  In his conclusion Kull writes, referring to black Americans:

"No other racial or ethnic group among America's immigrants has a comparable claim to special treatment, and the moral awkwardness of asking black Americans to be content with nondiscrimination should not stop us from giving that answer to everyone else.  Yet the breach in the antidiscrimination principle made in favor of African-Americans has led to a multiplicity of government-sponsored preferences for groups defined by race, ethnicity, or status as a "language minority".  The expanded claims to group entitlements could not rest on the unique circumstances of slavery and its aftermath.  The necessity of a more broadly applicable justification has led to the wide currency of a profoundly different rationale: a variety of arguments whose common core is the idea that a distribution of social benefits is presumptively just when made to racial and ethnic groups in proportion to their numbers.  Yet to the extent that a system of proportional entitlements becomes acceptable as an avowed premise of equality, the aspirations of American democracy will be profoundly altered."

Kull's words were prescient in light of what's happened in the thirty years since the publication of his book.  Since then we've had the strange spectacle of self-proclaimed civil rights groups attempting to overturn a 2006 amendment to the Michigan constitution banning discrimination based on race, color, sex, or religion in admission to colleges, jobs, and other publicly funded institutions on the grounds it was discriminatory, an argument rejected by the U.S. Supreme Court.  And in November 2020, we had a California ballot initiative to repeal the anti-discrimination provisions in the state constitution, an initiative backed by the Democratic party, tech oligarchs, and public employee unions.  Despite the proponents outspending the opponents 17-1 in a state where Biden beat Trump by five million votes, the initiative lost by double digits.  When voters have a choice, they pick antidiscrimination over discrimination.  

Much of what passes for education in K-12, as well as corporate diversity training with its focus on race essential and stereotyping is, in my view, violating the 1964 Civil Rights Act.  There are already lawsuits beginning to make their way through state and federal courts and the Supreme Court may eventually have the opportunity to undo the problems it has created.

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(1)  The Court has held that racial distinctions to correct ongoing discrimination are constitutional.  That is a legally justifiable distinction I agree with, but it is not what we are talking about here.  It is the Court's insistent that, under certain circumstances, racial distinctions and classifications are constitutional even when there is no ongoing discrimination.

A Misunderstanding Or Projection?

 I am now reading that a number of Democratic Senators are stating they will not meet with any Trump Supreme Court nominee since "they already know how they will be voting".  Under normal circumstances nominees make the rounds to meet with Senators and answer their questions prior to a confirmation hearing.

The notion that any Senator knows how a Republican nominee will vote on key issues confronting the Court is simply false.  Is this notion a result of a misunderstanding of how justices think or is it a projection of how Progressives think about the law?  I think the confusion arises because it is a true statement for Democratic nominees and thus projection.  If you look over the Court decisions on the most contentious issues during the 21st century you will see Democratic justices voting together while Republican justices often split on these issues.  The reason why the press speculates in a contentious case whether a Republican justice will be a "swing vote" but never a Democrat is for this very reason - the Democrats are predictable, they stick together.

And even when the Republicans stick together they are more likely to issue concurring opinions than Democrats.  A concurring opinion means the justice agrees with the conclusion reached by their colleague writing for the majority but disagrees in whole, or in part, with the reasoning.  If a majority opinion is not joined in by a majority of those agreeing with ruling its precedential value is limited.  By not issuing concurring opinions even when it is clear from their other opinions that they disagree with the underlying reasons for the opinion of the justice writing for the majority, the authority of the opinion for precedential purposes is strengthened.  Probably the most notorious example is Justice Kennedy's opinion in Obergfell (the gay marriage case), an opinion in which all four Democratic justices joined even though they must have gagged at Kennedy's reasoning.

The Democratic strategy is no secret, Justice Ginsburg spoke openly of it to a New York Times reporter several years ago.  The idea was that on key cases the Democratic justices would vote as a bloc and not write any concurring opinions.

The reason for the lack of underlying diversity in Democratic nominee opinions versus those of their Republican counterparts derives from their differing legal philosophies and it also explains the frustration of many conservatives who complain that Republican appointed justices are "unreliable", a complaint you never hear from liberals and progressives about Democratic appointees.

While Republican appointees all express adherence to some form of originalism - trying to ascertain what the words in the constitution meant at the time of its adoption - they differ on the means by which they apply it.  In addition they differ on the role of precedent in rulings (Roberts and Thomas being at polar opposites on this) and the degree to which the institution of the Court itself must be protected.  They also disagree on the approach to statutory interpretation as well as the deference owed to administrative agencies.  The result is much more frequent splintering of the Republican appointees and even when they agree they are not shy about writing concurring opinions explaining alternative reasons for reaching the same conclusion.  Even on the most contentious issue facing the Court, the future of Roe v Wade, there are only two of the five Republican appointees who would support overturning it - Thomas and Alito.  It is also why you have Gorsuch recently writing a very non-conservative opinion for the court on the meaning of "gender" under the Civil Rights Act and both Kavanaugh and Roberts have frequently sided with the Democratic appointees who, as always, vote as a bloc.  Roberts in particular, has proven supportive of the new legal field of Trumplaw, writing opinions against the administration for acts that would have been legal under prior administrations.

Because of the approach of the Republican appointees you will often see them make rulings that are likely against their personal beliefs or politics.  There was no fiercer defender of the rights of citizens against illegal search and seizure and the rights of criminal defendants to fair jury trials than Justice Scalia.  And despite the strawman arguments against originalism and textualism by progressives ("the 2nd amendment only applies to firearms that existed in 1790!") it was Scalia who wrote the Court's opinion that the use by police of a thermal device as they drove by a house to detect the heat generated by a marijuana growing operation was an illegal search.

In contrast it is difficult to find opinions by Democratic appointees that appear to conflict with their beliefs and politics.  That is not hypocrisy on the part of the justices; it is consistent with their philosophy of Living Constitutionalism which is a results oriented judicial philosophy compared to the various approaches of Republican justices which are process oriented.  Living Constitutionalism converts the judiciary to becoming effectively just another legislative branch of government.  You just need to decide what policy outcome you want and then structure a legal argument to support it.  One could ask, if that is the right approach, why even bother with a Supreme Court?

If Amy Barrett is confirmed I think her opinions will in many cases be consistent with conservative policy but there are going to be instances where conservatives are disappointed..  Progressives never have to worry that one of "their" justices will disappointment them.

Bad Prediction

"The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."

- Supreme Court Justice Sandra Day O'Connor in the opinion for the Court in Grutter v Bollinger (June 23, 2003)

We are now 17 years down the road and not only are racial preferences not going away but racial preferences and even segregation appear to be the wave of the future.  Looks more like Diversity Now! Diversity Forever!  Oh, joy.

The Grutter decision upheld by 5-4 (with Scalia, Thomas, Rehnquist and Kennedy dissenting) the official admissions policy of the University of Michigan Law School that sought to achieve student body diversity.

The concept of "diversity" in school admissions was first introduced at the Supreme Court by the concurring opinion of Justice Lewis Powell in Regents of Univ. of Cal. v Bakke (1978) in which Powell wrote that attaining a diverse student body was the only interest asserted by the university that survived scrutiny.  However, because no other justice joined Powell in his opinion the Courts, as O'Connor expressed it, "have struggled to discern whether Justice Powell’s diversity rationale is binding precedent."  O'Connor, joined by Justices Stevens, Souter, Ginsberg, and Breyer, in stating "The Court endorses Justice Powell’s view that student body diversity is a compelling state interest that can justify using race in university admissions" rendered discussion of the precedential value of Powell's opinion moot.

And with that we were off to the diversity races as academic institutions rapidly established Offices of Diversity & Inclusion to spread the new gospel of Critical Race Theory and suppress any dissenting voices as racists and heretics.

They Can Get You If They Want To

"If there is one thing a defense lawyer knows, it's that the government can get you if it wants to.  Any government.  Federal, state or local.  Law-abiding private citizens do not believe this until some government sets out to get them, and they have to pay good money to a man like me to fight for them, but their disbelief is like unto the very dew of May; it evaporates fast.  Along with their bank balances, cheerfulness, and the order of their lives."

George V Higgins in Defending Billy Ryan

Having been through this experience myself, let me just add Amen.

Justice Kennedy Channels Calvin Coolidge

I was struck by a passage in Justice Kennedy's concurring opinion in NIFLA v Becerra, the Supreme Court decision of last week striking down California's attempt to mandate pro-abortion messages be provided by anti-abortion crisis pregnancy centers.  It made a point similar to that of President Coolidge in his 1926 speech on the 150th anniversary of the Declaration of Independence.  Though Kennedy refers to the Constitution and Coolidge to the Declaration both warn of the dangers of progressive thinking which ignores the founding principles of this country.

Justice Kennedy:

The California Legislature included in its official history the congratulatory statement that the Act was part of California's legacy of "forward thinking".  But it is not forward thinking to force individuals to "be an instrument for fostering public adherence to an ideological point of view they find unacceptable".

It is forward thinking to begin by reading the First Amendment as ratified in 1791; to understand the history of authoritarian government as the Founders knew it; to confirm that history since then shows how relentless authoritarian regimes are in their attempts to stifle free speech; and to carry those lessons onward as we seek to preserve and teach the necessity of freedom of speech for the generations to come.  Government must not be allowed to force persons to express a message contrary to their deepest convictions.  Freedom of speech secured freedom of thought and belief.  This law imperils those liberties.

President Coolidge:

About the Declaration there is a finality that is exceedingly restful. It is often asserted that the world has made a great deal of progress since 1776, that we have had new thoughts and new experiences which have given us a great advance over the people of that day, and that we may therefore very well discard their conclusions for something more modern. But that reasoning can not be applied to this great charter. If all men are created equal, that is final. If they are endowed with inalienable rights, that is final. If governments derive their just powers from the consent of the governed, that is final. No advance, no progress can be made beyond these propositions. If anyone wishes to deny their truth or their soundness, the only direction in which he can proceed historically is not forward, but backward toward the time when there was no equality, no rights of the individual, no rule of the people. Those who wish to proceed in that direction can not lay claim to progress. They are reactionary. Their ideas are not more modern, but more ancient, than those of the Revolutionary fathers.

The

The Califo

Sometimes They Get One Right

At least they did on this date in 1954:

You can find the full text of the NY Times story here.  Oddly enough, despite popular belief, Brown v Board of Education did not overrule the holding in Plessy v Ferguson (1896) which ruled that segregation was not unconstitutional if equal facilities were provided to both races, the "separate but equal" doctrine.  The 1954 Court simply held that the doctrine did not apply in the field of education. 

Blurring Lines?

THC didn't like Blurred Lines, the Robin Thicke hit, composed by Thicke and Pharrell Williams but is a little puzzled by the jury verdict finding it constituted copyright infringement of the 1977 Marvin Gaye song Got To Give It Up (another tune THC didn't care for) and awarding several million dollars to Gaye's estate.  You can find a more lengthy analysis in this article at Reason to which THC was pointed by a post at the terrific Coyote Blog.

THC's puzzlement is that while there are some similarities between the songs, the same can be said of most of pop music - nothing new about this flap, which is easily distinguished from the clear theft of a song (see the real story of Dazed And Confused for the difference).  In his post, Coyote embeds this amusing video by Axis Of Awesome to illustrate the point:

My Senator

Yes, this is THC's Senator (though the phrase "callow youth" also comes to mind), Chris Murphy (D-CT) explaining away the woes of the Affordable Care Act by whining that it was a tough job since "we were reordering one sixth of the American economy" and that "the only way to do it was to make it big".

That certainly is one way of looking at it. But perhaps THC is being unfair.  Perhaps we should have more empathy for the task of the legislator and regulator who must get everything just right in order to make that one-sixth of the economy operate like clockwork.  And for those who ceaselessly criticize those who are tirelessly working on our behalf - that irksome American public which does not appreciate all that is being done for them - we need only remember the sentiment of the Emperor Caligula when vexed once again by a stubborn Roman populace: 

Utinam populus Romanus unam cervicem haberet!
Would that the Roman people had but one neck!

  (Caligula, not a nice guy)
And certainly our public servants deserve a better class of citizens.  THC is sure that once they can reorder the rest of the economy they'll start working to ensure they have a citizenry worthy of them, or, in the alternative, arranging for that one neck (undoubtedly with advance publication of the proposal in the Code of Federal Regulations) and establishing a more suitable populace which will more tamely accept their guidance. 

Sen Murphy's sentiments merely echo themes of progressives that are now a century old, sentiments best captured in Franklin Roosevelt's Commonwealth Club speech of Sept. 23, 1932, given in the midst of his first presidential campaign. It is worth reading in full because it gives you the most undiluted picture of the Progressive mindset and, as an added attraction, comes complete with a Fractured Fairy Tale version of American history.

Let's enter the WAYBAC Machine and take a look at that speech:(Mr Peabody & his pet boy, Sherman, enter the WAYBAC Machine)

In FDR's view, the world of the Founders had disappeared by the beginning of the 20th century with the emergence of industrial America and thus their ideas about property and liberty were now outmoded.  The Progressives believed that in order for the United States to continue to compete as a great nation the social reforms of late 19th century Bismarckian Germany and the government-industry cooperative model of the new corporatist Italian state provided a better path forward.  It was a world where all that could be invented had already been invented; a world where the large corporations that existed would always exist and maintain their dominance (a generation later John Kenneth Galbraith would make the same argument with a different constellation of corporations in The Affluent Society and The New Industrial State), in other words, a static world in which the pie had been baked and now just needed to be cut up.  Under these circumstances it was time for the rule of the manager and administrator.  FDR summed it up this way:

A mere builder of more industrial plants, a creator of more railroad systems, and organizer of more corporations, is as likely to be a danger as a help. The day of the great promoter or the financial Titan, to whom we granted anything if only he would build, or develop, is over. Our task now is not discovery or exploitation of natural resources, or necessarily producing more goods. It is the soberer, less dramatic business of administering resources and plants already in hand, of seeking to reestablish foreign markets for our surplus production, of meeting the problem of under consumption, of adjusting production to consumption, of distributing wealth and products more equitably, of adapting existing economic organizations to the service of the people. The day of enlightened administration has come.

Take that Steve Jobs and Bill Gates!  No soup for you. 

The goal of this new process was simple then, and remains simple today for Progressives.  Provide regulators and the Executive Branch with enough authority to make the "right" decisions.  The substance of those decisions may change over time; the important part is that bureaucrats have the authority to tame this unruly economic system and the citizens who insist on acting in such a chaotic manner - as FDR put it, we can rely on the enlightened administrator.  That's why, as it turned out, the actual language of the Affordable Care Act, has mattered so little.  Whatever the Obama Administration hasn't liked it just ignores or unilaterally changes.  Maybe they'll get it wrong this time but there is always a more perfect regulation and a more perfect regulator to get it right the next time.

The idea that order needs to be imposed, and can be done so effectively by all-knowing regulators, was widespread in the New Deal and remains a touching, faith-based creed, today.  This distaste for the disorder created by the individual decisions of millions of citizens, along with some bizarre views on economics, can be seen in an excerpt from Justice Cardozo's dissent in Carter v Carter Coal Co (1936) in which the Court, in a 5-4 vote, found the Bituminous Coal Conservation Act of 1935 to be unconstitutional.  The Act was another attempt to set up a government, industry and union cartel to set prices and wages:

Overproduction was at a point where free competition had been degraded into anarchy. Prices had been cut so low that profit had become impossible for all except the lucky handful. . .
 
Congress was not condemned to inaction in the face of price wars and wage wars so pregnant with disaster. Commerce had been choked and burdened; its normal flow had been diverted from one state to another; there had been bankruptcy and waste and ruin alike for capital and for labor. The liberty protected by the Fifth Amendment does not include the right to persist in this anarchic riot.

What's missed is that those individual decisions by millions of people are an incredible example of spontaneous collective action whereas the nominal "collective" decisions by regulators and crony cartels on behalf of "the people" are actually made by very few persons. 

The "principles" other than control remain malleable though the New Deal principles look somewhat odd from today's perspective.  The New Dealers saw the need to reorganize both the industrial and agricultural sectors of society and it was upon these two pillars that their reforms were built. First, was the National Industrial Recovery Act (NIRA) which created a cartel of industry and government and industry to regulate prices and create operating rules for every industry sector.  The Progressive idea was that prices were too low and needed to be raised in order for the country to end the Depression.  Doesn't sound like today's Progressives, but no matter, the real point is "who decides?" and "who controls?"  Fortunately, the law was declared unconstitutional by the Supreme Court thanks to Schechter Poultry Corp. v U.S. (1935) in which the government prosecuted a family of Kosher chicken sellers in Brooklyn who insisted that their customers should actually be able to select the chickens they wanted to buy.  You are reading that correctly - the new regulations required buyers to accept chickens only in blocks of a dozen or half-dozen because allowing them to select individual chickens would disrupt the market!

(It's all or nothing!)
The other pillar was the Agricultural Adjustment Act designed to accomplish the same goal - raise prices for the consumer.  As a result of the New Deal policies, millions of cattle and hogs were killed and their meat not allowed to be marketed in order to create more demand and raise prices at a time when millions of Americans were going hungry and a web of subsidies and growing restrictions established to reduce production and make food more expensive.

(Let's make it more expensive for the kids in order to increase corporate profits!)
Unfortunately the agricultural subsidy program has endured and in creating a new constituency for its benefits has ensnared politicians on both sides of the aisle, preventing any meaningful reform measures for 75 years.

While the specific type of Risorgimento intended by the NIRA was knocked off track by Schechter Poultry, later New Deal Supreme Court cases such as Carolene Products (1938) and Wickard v Filburn (1942) resulted in the Court dropping nearly all barriers to government regulation, except for certain Constitutional clauses which the Court still deemed worthy of protection.  As THC has pointed out before, the worst damage done to the Constitution in those years were all in cases where the government advocated for measures to improve the profitability of producers and to increase prices for consumers.  That is why THC says that the governing principle is about control, not about anything else; the details can change at any point as long as the right people continue to make the decisions. 

The result is today's upside-down Constitution. The original one presumed that rights remained with the people except to the extent those rights had been specifically delegated by the people (or the states) to the new federal government.  Today's Constitution, in the view of the predominant legal scholars, presumes that the default position is that the Federal Government, and for that matter, State governments except to the extent preempted by Federal action, can act as they see fit except for certain matters that have been delegated back to the people.  For instance, some sexual-related matters seem to have been delegated back, something the earlier Progressives would definitely not have approved of and, who knows, at some point that delegation may be revoked as academic theories change.

The best way to understand our current situation is that we are governed by the tenured liberal arts faculty of an Ivy League college which has the freedom to instruct students as they deem best and, when funds run low, to send out another tuition bill to the parents.

THC wonders what Senator Murphy next plans to "reorder".  THC knows who will get the tuition bill.

 

 

Law Of The Jungle

THC was recently able to locate a rare copy of the out of print treatise, Law Of The Jungle, originally published at 4 National Lampoon 1973.  Authored by two Ivy League scholars, John Weidman(1) and Henry Beard(2), their work is a much-needed summary of an often neglected topic, the law of the jungle or "lex biologica", as the authors more properly refer to it.

The authors provide a useful corrective to what they refer to as a simplistic view that reduces lex biologica to:

"a pair of simple catch phrases; 'kill or be killed' and 'survival of the fittest'.  This is, of course, no more true than the proposition that all human law can be expressed in the simple solomonic principle of 'an eye for an eye and a tooth for a tooth' "

As an example of the loathsome degree of disparagement visited upon lex biologica the authors note:

"Another example of this attitude is the oft-quoted line from Dickens; 'The law is an ass".  To set the record straight, it should be noted that a number of asses have been very distinguished jurists.  For example, an ass, sitting as judge in the famous migration case, Vertebratae Americanae v Alaska Land Bridge, established the principle of the right of unlimited evolutionary spread.  In another instance, an ass wrote the celebrated dissent in Goldfinch v Bluejay (12 Ornith. 148), holding that a search of a bluejay's nest for evidence of its having eaten the eggs of the plaintiff goldfinch, a search which, as it developed, did yield incriminating evidence  . . . violated the defendant bluejay's rights since it was based not on specific probable cause but on the general knowledge that bluejays traditionally raid other birds' nests.  The principle was later accepted."

While the authors note that the lex biologica consists of two categories; plant law (lex flora) and animal law (lex fauna) and acknowledge that some cases may fall between jurisdictions, particularly between the microbe subcategory of lex fauna and plant law, citing as an example the "incalculably large number of nitrogen-fixing cases, a criminal matter taken very seriously by most vegetation", the Law Of The Jungle remains primarily focused on lex fauna which gives the work a much needed unity of purpose.

The authors take us through a brief, but illuminating, overview of the multitude of legal jurisdictions within animal law including the Vertebrate Courts, the Reptilian Courts, the Rodent Courts (administering the special codex rodenta), the Court of Common Stings and introduce us to the Marsupial Courts "a quirk produced by the early separation of the Australian land mass from the rest of the continental agglomeration" with its own unique characteristics

"to the extent that, in criminal prosecutions, evidence by the young, if they are in the pouch at the time of the commission of the alleged crime, is not admissible, and cannot be compelled."

In this section of their work, THC was delighted to learn something completely unexpected:

"Incidentally, while we're on the subject of insects, it's worth mentioning that when you hear the characteristic high-pitched noise which cicadas make on a summer day, the odds are you are hearing a Court of Small Crawls being called to order"

On a more serious note, the authors admit that while "the minutiae of all this is admittedly bewildering . . . nothing  . . . begins to compare in complexity and sheer orneriness with aquatic law" and treat us to a elegant discussion of the famous case, Seagull v Mollusk (187 Atlan. 30) in which:

"a gull, which had taken a clam from among some rocks near the seashore normally covered by high tide and had dropped it from a considerable height to break its shell, found itself charged with unlawful breaking and entering under the corpus juris maris for an act which under the jus terrestria and the jus aeris is not a crime if committed in the course of a lawful search for food.  The critical point was that the clam had been seized in an aquatic jurisdiction and when it fell, it fell into an aquatic jurisdiction, namely on a rock covered at high tide."(3)

Because the lex biologica is based, like the British legal system, on a common-law framework, the treatise also contains an overview discussion of key rights:

The Right to Eat
The Right to Breed
Freedom to Cry, Howl, Bay, and Hoot
The Right to Bare Claws
The Right to Assemble in Herds, Migrate and Stampede
The Right of All Animals to Be Secure in Their Nests

As to the first of these rights, The Right to Eat, the authors point out that "the distinction between killing to kill and killing to obtain food is paramount throughout animal law" and use the landmark case of Gazelle v Lion (245 Mamm. 198) as illustration.  In this case (which took place in the Court of Carnivore Appeals for the Northern Veldt) a plaintiff gazelle asked for a writ of habeas carcasse to be issued.  This writ, when issued, "demands the return of the remains of the preyed-upon animal and its release ex mandibilia, literally, 'from the jaws' pending determination of the legality of the predator's actions."  In this instance, the gazelle had the good fortune that an officer of the court happened to be in the vicinity as the authors note that most of these such writs are "issued post-mortem".

Unfortunately, while the gazelle initially prevailed after issuance of the writ on the grounds that just prior to attacking the gazelle, the lion had killed an antelope which it had not eaten:

"In a judgement nullifying the writ of habeas carcasse, the court, presided over by a notorious 'feeding judge', it must be noted, [found] that the lion's legitimate and protected right to eat remained intact, for at the time it killed the antelope, it could not be argued that it was not hungry, since it had not eaten the antelope it had previously killed, and, having not eaten the antelope, it could hardly be argued that at the time of its attack on the gazelle its hunger was any the less."

The next section of Law of the Jungle addresses common areas of the law including Contracts, Property or Territory Law, Torts, Classification Law and Trusts and Estates although in the last area, animals rarely execute testamentary instruments:

"since, with few exceptions, they usually have very little in the way of real property to pass on except possibly some freshly-killed food or recently gathered forage, and estates are almost always eaten up (literally) by the lawyers handling the probate."

 At the end of this admirable work one can only endorse the closing sentiment of the authors:

"It is sad indeed that legal biology has failed to gain the attention it so clearly deserves, and it is mankind, surely, who is the loser.  Think, for example, of how convenient it would be to be able to swear out a writ of nolo pestare in Insect Court against every mosquito on your property, or of how many lives could be saved if the sharks along our coasts were hit with a succession of beach warrants and cease-and-desist eating orders!"

THC highly recommends Law Of The Jungle to its readers and urges them to undertake the arduous, but rewarding, task of obtaining and reading this little-known masterpiece.

NOTES
(1) John Weidman, BA Harvard, JD Yale;, Writer, Sesame Street; Author of book for three Stephen Sondheim musicals
(2) Henry Beard, BA Harvard; Co-Founder National Lampoon; Co-Author O.J's Legal Pad (1995)
(3) The seagull was eventually acquitted on a technicality based on an argument that the case "fell properly into the jurisdiction of the jus aeris and jus terrestris, jointly, because at the instant of the commission of the act . . .  namely, the moment the seagull released the mollusk from its beak with the intent that it should fall on a rock, thus breaking the shell, the seagull was in the air over dry land".

Clarence & Ruth

It's been frequently noted that despite heated legal disagreements reflected in frequent 5-4 decisions on key issues, there has been an historically unusual degree of collegiality among the justices of the Supreme Court over the past two decades.  This has been attributed to the temperament of the justices as well as the deliberate efforts of the late Chief Justice Rehnquist who sought to cultivate a comfortable atmosphere, including instituting luncheons after the weekly case conferences where it is forbidden to talk business.

A few days ago, Justice Clarence Thomas visited Harvard Law School and was interviewed by Dean Martha Minow and it's now available on YouTube.  The subject of collegiality comes up often and Justice Thomas speaks very affectionately about Justices Ginsburg, Kagan and Breyer specifically.  Breyer and Thomas sit next to each other during oral arguments and, as it turns out, joke with each other (Dean Minow remarks that she has watched them whispering to each other and chuckling).  According to Thomas, Breyer also likes to doodle during the arguments.

Justice Ginsburg is apparently one of the justices everyone else likes.  It's also been widely reported that she and her late husband were particularly close to the Scalias.  Thomas also mentions that one of the other justices (sounds to me like it was probably Scalia) said about Ginsburg that "she makes all of us better judges".

The entire interview is well worth watching (it's 70 minutes long, but if you have less time start at about the 44 minute mark when Dean Minow asks the Justice who are the people he most admires).  Thomas has a compelling personal story and he draws upon it as he gives advice to the students.  I'll highlight some of his remarks below the video.


Thomas talks a lot about the actual mechanics of opinion drafting and it is fascinating.  He mentions that when he came on the Court, Justice Whizzer White told him "you must have a routine" and Thomas certainly does.

He mentions that you "need people who can disagree in a way that moves things forward" when talking about the types of law clerks he hires for each term.

For inspiration, Thomas reads Justice Harlan's dissent in Plessy v Ferguson (1896) which upheld segregation laws and which he notes was also Justice Marshall's favorite.  Thomas quotes this passage from Harlan's dissent:

"The white race deems itself to be the dominant race in this country.  And so it is, in prestige, in achievements, in education, in wealth, and in power.  So, I doubt not, it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty.  But in the view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens.  There is no caste here.  Our Constitution in color-blind and neither knows nor tolerates classes among citizens.  In respect of civil rights, all citizens are equal before the law.   The humblest is the peer of the most powerful.  The law regards man as man and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved...." 

 He notes that Harlan was the only Southerner on the Court that decided Plessy.

Regarding collegiality, the Justice remarks that despite his stodgy northern New England image, former Justice Souter was an amazingly good storyteller. 

He has very pointed views on the need to ask questions in oral argument (as is well known, he almost never asks a question) and on how opinion should be written.  It sounds like on both subjects the Justice who is most his opposite is Scalia although his name never comes up.


He tells the audience that earlier in the day he mentioned to Dean Minow that in his radical phase he demonstrated outside Harvard Law School in 1970.

I don't know whether the students found this encouraging or discouraging but he mentions that he made his final student loan payment during his 3rd term on the Supreme Court!

In response to a question from a student he speaks about how hard it can be sometimes to stick to deciding a case based upon the law and precedent and not on how he personally might resolve it.  He mentions that some of the cases where that had come up "would surprise you" but the only ones he specifically mentions are the Haitian refugee decisions.

Thomas describes himself as "quite introverted" and that the "loss of his anonymity" was the hardest part of the job.

He did not grow up speaking English and it was not until his mid-30s that he felt completely comfortable speaking Standard English.

This last comment goes to Justice Thomas' personal story.  Born in the poor black hamlet of Pinpoint, Georgia which lacked sewerage and paved road in the segregated South of the 1940s, Clarence Thomas grew up speaking Gullah, a mixture of English and West and Central African dialects and was raised by his grandparents.  He tells the story of his youth and of his later life until his entrance onto the Court in 1991 in his remarkable autobiography, My Grandfather's Son (2007).  It's an candid and sometimes unflinchingly self-critical account which was noted by many reviewers at the time.  The Atlanta Journal-Constitution said it "lays bare the darkest, most painful moments of his life, with candor almost unheard of in public figures" and The Washington Post comments "a fascinating glimpse into a tortured, complex and often perplexing personality".  Thomas writes of his anger and radicalism as a young man, his failed marriage and drinking problems as well as the lessons taught him by his grandfather and in Catholic School that helped him persevere.

If you drew a Venn diagram of people who've read My Grandfather's Son and Dreams From My Father by Barack Obama, I think I'd be one of the few who has read both (I'm convinced based on discussions with many who purchased Dreams From My Father that not many have read it).  I've often thought that you could do a semester college course just discussing the two books, both by young men whose fathers abandoned them, and the issues of race, class, culture and family that they raise.

Early in his career, Justice Thomas took an unfair beating from his opponents over his alleged lack of competence for the job and was commonly viewed as someone who would automatically follow Justice Scalia.  However as Jan Crawford Greenburg revealed in Supreme Conflict (2007) the real story was much different and right after joining the Court, Justice Thomas persuaded Scalia to change his vote in two cases, and today he is considered an intellectual leader on the Court even by those opposed to his views (see, for example, his concurring opinion in McDonald v Chicago (2010), in which he revived the history behind the Privileges and Immunities Clause of the 14th Amendment and laid the legal foundation for a possible future overturning of the Slaughterhouse Cases (1873) which eviscerated the clause leaving it almost meaningless).
 


If you'd like to get a better idea why Justice Ginsburg is so liked by her colleagues, Makers.com is featuring a series of short vignettes with her in which she also speaks of the collegiality of the court as well as her career (including the challenges facing a young woman lawyer at a time when professional opportunities were limited) and about her beloved late husband Marty.  You can find them here.