Quote of the moment: Judge Richard Posner, on tradition and marriage

August 27, 2014

Judge Richard Posner, 7th Circuit, U.S. Court of Appeals

Judge Richard Posner, 7th Circuit, U.S. Court of Appeals

“It was tradition to not allow blacks and whites to marry — a tradition that got swept away.”

Federal appeals court Judge Richard Posner, balking when Wisconsin Assistant Attorney General Timothy Samuelson repeatedly pointed to “tradition” as the underlying justification for barring gay marriage.

Two states attorneys general argued before a panel of judges on the 7th U.S. Circuit Court of Appeals in Chicago yesterday that marriage between members of the same gender should be stopped because of tradition.  AP’s story explains what happened.

While judges often play devil’s advocate during oral arguments, the panel’s often-blistering questions for the defenders of the same-sex marriage bans could be a signal the laws may be in trouble — at least at this step in the legal process.

Richard Posner, who was appointed by President Ronald Reagan in 1981, hit the backers of the ban the hardest. He balked when Wisconsin Assistant Attorney General Timothy Samuelson repeatedly pointed to “tradition” as the underlying justification for barring gay marriage.

“It was tradition to not allow blacks and whites to marry — a tradition that got swept away,” the 75-year-old judge said. Prohibition of same-sex marriage, Posner said, derives from “a tradition of hate … and savage discrimination” of homosexuals.

Posner is one of those guys who gives us hope for the human race, and hope especially for that branch of the human race known as Homo americanus ssp. ordinarius.

Appointed to the bench by Ronald Reagan, Posner is widely recognized as one of the brightest and most engaging judges in the U.S. today.  That’s a sop to all the rest, to call him “one of ” the brightest — to avoid making everybody else give up hope.

But he’s outspoken enough that most legal scholars agree he’d never survive a hearing to take a place on the U.S. Supreme Court.  The late Sen. Roman Hruska’s revenge, that we can’t get the best and the brightest on our highest court.

Posner is not content to sit on the bench and make high pronouncements.  He pushes America, courts and lawyers, to be better.  He teaches at the University of Chicago Law School (in a position not unlike that the young Barack Obama had).  Posner’s high-flying comment-on-anything-important style got cut back in the past few months when his blogging partner died — Nobel-winning economist Gary S. Becker.

It must be agony to be a lawyer defending a pointless, silly and destructive law, to a panel that includes Richard Posner.

Arun With a View captured the reasons Posner strikes fear in conservatives, despite his being a Ronald Reagan conservative.

Sketch of Judge Richard Posner by the late David Levine

Sketch of Judge Richard Posner by the late David Levine

NPR has a delicious interview with Richard Posner. Money quote

“I’ve become less conservative since the Republican Party started becoming goofy,” [Posner] said.

And this

“Because if you put [yourself] in [John Roberts'] position … what’s he supposed to think? That he finds his allies to be a bunch of crackpots? Does that help the conservative movement? I mean, what would you do if you were Roberts? All the sudden you find out that the people you thought were your friends have turned against you, they despise you, they mistreat you, they leak to the press. What do you do? Do you become more conservative? Or do you say, ‘What am I doing with this crowd of lunatics?’ Right? Maybe you have to re-examine your position.”

Listen to it here and enjoy.

Tip of the old scrub brush to Texas Freedom Network’s emails — probably on the blog sometime soon.

Yes, I read Posner despite his errors, getting hoaxed by the DDT/Rachel Carson hoaxsters. That just indicates the danger of the hoax and the need to correct it and stamp it out.


Quote of the moment: Frankfurter, on due process

July 9, 2014

Supreme Court Justice Felix Frankfurter, The Collection of the Supreme Court of the United States (Artist: Gardener Cox).  Born Vienna, Austria, 1894. Died 1965.

Supreme Court Justice Felix Frankfurter, The Collection of the Supreme Court of the United States (Artist: Gardener Cox). Born Vienna, Austria, 1894. Died 1965. Associate Justice, 1939-1962

It is now the settled doctrine of this Court that the Due Process Clause embodies a system of rights based on moral principles so deeply imbedded in the traditions and feelings of our people as to be deemed fundamental to a civilized society as conceived by our whole history. Due Process is that which comports with the deepest notions of what is fair and right and just.

♦  Justice Felix Franfurter, dissenting in
Solesbee v. Balkcom, 339 U.S. 9, 16 (1950)


“Some there are”: Antonin Scalia, rock music, and high school graduation in churches

June 17, 2014

Some there are—many, perhaps—who are offended by public displays of religion. Religion, they believe, is a personal matter; if it must be given external manifestation, that should not occur in public places where others may be offended. I can understand that attitude: It parallels my own toward the playing in public of rock music or Stravinsky. And I too am especially annoyed when the intrusion upon my inner peace occurs while I am part of a captive audience, as on a municipal bus or in the waiting room of a public agency.

Justice Antonin Scalia, dissenting to the Supreme Court’s denying to hear a case about high school graduations held in religious facilities, the denial of the writ of certiorari to Elmbrook vs. John Doe et al., 573 U.S. ______.

Justice Clarence Thomas joined Scalia in the dissent.

But, he argues, religion is protected by the First Amendment, our music choices are not.

Read the dissent (way down at the bottom).

Easter services at Elmbrook Church, in Brookfield, Wisconsin.

Easter services at Elmbrook Church, in Brookfield, Wisconsin.

I suppose to some, high school graduation ceremonies are a lot like being forced to listen to rap music at intersections.  To others, high school graduations may seem akin to religious experience.  Not sure either view means the ceremonies should be held in churches.

This case is 14 years in the justice system.

More:


May 6, 1882: Race and immigration policy collide

May 6, 2014

Today is the anniversary* of our nation’s first** law generally governing immigration.

It’s a history we should work to change, to put behind us, to move away from.

Congress passed the Chinese Exclusion Act, which barred Chinese immigrants from the United States for 10 years.

1882 Chinese Exclusion Act, page 1 - National Archives

1882 Chinese Exclusion Act, page 1 – National Archives

1882 Chinese Exclusion Act, page 2 - National Archives

1882 Chinese Exclusion Act, page 2 – National Archives

We cannot paint over this part of history.  The Chinese Exclusion Act was racist in intent, and racist in content.

What should we learn from it?  Among justifications for the law were claims that immigrants from China were taking jobs from citizens, especially in California.  Chinese workers imported to build the Transcontinental Railroads sought new employment once the routes were built.

Reality probably differed a lot.  Chinese entrepreneurs, with money they had earned working on the railroads, established news businesses.  Yes, a lot of Chinese were getting jobs.  They were mostly new jobs, in new businesses, boosting the economy and creating more jobs.  That came to an almost-screeching halt.

Did America learn?  This law was renewed, then made permanent — not really fixed until World War II, when China was an ally in the War in the Pacific, against Japan.  Even then, it wasn’t a good fix.

The law was repealed by the Magnuson Act in 1943 during World War II, when China was an ally in the war against imperial Japan. Nevertheless, the 1943 act still allowed only 105 Chinese immigrants per year, reflecting persisting prejudice against the Chinese in American immigration policy. It was not until the Immigration Act of 1965, which eliminated previous national-origins policy, that large-scale Chinese immigration to the United States was allowed to begin again after a hiatus of over 80 years.

Can we learn from this history, for immigration reform now? Santayana’s Ghost wonders.

How much is resistance to immigration reform based on racism, the sort of racism that kills the U.S. economy?

The Chinese Exclusion Act proved to be an embarrassment for Uncle Sam:  “A Skeleton in His Closet,” by L.M. Glackens, published in Puck magazine on Jan. 3, 1912. Uncle Sam holding paper “Protest against Russian exclusion of Jewish Americans” and looking in shock at Chinese skeleton labeled “American exclusion of Chinese” in closet. Image from NorthwestAsianWeekly.com

The Chinese Exclusion Act proved to be an embarrassment for Uncle Sam: “A Skeleton in His Closet,” by L.M. Glackens, published in Puck magazine on Jan. 3, 1912. Uncle Sam holding paper “Protest against Russian exclusion of Jewish Americans” and looking in shock at Chinese skeleton labeled “American exclusion of Chinese” in closet. Image from NorthwestAsianWeekly.com

____________

*    I note the image says it was approved by President Chester Alan Arthur (who had succeeded to office after President James Garfield was assassinated a year earlier).  The New York Times calls May 6 the anniversary of Congress’s passing the law; if Arthur signed in on May 6, it was probably passed a few days earlier.  May 6 would be the anniversary of its signing into law.

**  The Chinese Exclusion Act was preceded by the Page Act of 1875, which prohibited immigration of “undesirable” people.  Who was undesirable?  “The law classified as undesirable any individual from China who was coming to America to be a contract laborer, any Asian woman who would engage in prostitution, and all people considered to be convicts in their own country.”  It was not applicable to many immigrants.  The Page Act was named after its sponsor, Rep. Horace F. Page of California.

This is based on, and borrows from, an earlier post at MFB.

More:


Remembering the worst ever U.S. industrial accident, 1947: 576 dead at Texas City

April 16, 2014

April 16 marks the 67th anniversary of the Texas City Disaster.

It’s a day Texans, and all Americans should note.  It’s an event we need to remember, because every point of the disaster is something we forget at our very great peril.  Thinking such a disaster could not happen again, and failing to train for these same conditions, contributed to the disaster last year in West, Texas.

67 years ago, in the harbor at Texas City, a large cargo ship being loaded with tons of ammonium nitrate caught fire and exploded, setting fire to other nearby ships, one of which exploded, devastating much of the town. In all, 576 people died in Texas City on April 16 and 17, 1947.

View of Texas City from across the bay, in Galveston, April 16, 1947

View of Texas City from Galveston, across the bay, after the explosion of the French ship SS Grandchamp, April 16, 1947. Photo from International Association of Fire Fighters Local 1259

The incident also produced one of the most famous tort cases in U.S. history, Dalehite vs. United States, 346 U.S. 15 (1953). (Here is the Findlaw version, subscription may be required.)

The entire Texas City fire department was wiped out, 28 firefighters in all. The International Association of Fire Fighters, Local 1259 has a website dedicated to the history of the disaster, with a collection of some powerful photographs.

More below the fold. Read the rest of this entry »


Just stay quiet: Poster hoax about the Pledge of Allegiance

September 15, 2013

Anybody send this to you on Facebook (100 times, maybe?)

Hoax claims about the Pledge of Allegiance, found on Facebook and innumerable e-mails

Hoax claims about the Pledge of Allegiance, found on Facebook and innumerable e-mails

Clever, eh?  It repeats the McCarthy-era editing of the Pledge of Allegiance, and then comes up with this whopper:

. . . My generation grew up reciting this every morning in school, with my hand on my heart.  They no longer do that for fear of offending someone!

Let’s see how many Americans will re-post and not care about offending someone!

Not quite so long-lived as the Millard Fillmore Bathtub Hoax — which started in 1917 — but a lot more common these days.

Just as false.  Maybe more perniciously so.

Consider:

  1. Actually, 45 of our 50 states require the Pledge of Allegiance in public schools.  The five exceptions:  Iowa, Hawaii, Oklahoma, Vermont and Wyoming.  See any pattern there?
  2. None of the five states previously required the Pledge, and then stopped.
  3. None of the five states claim to not require the pledge in order to avoid offending anyone.  Oklahoma would be happy to offend people on such issues, most of the time.
  4. Reposting historically inaccurate claims, without fear of offending anyone, is no virtue.  It’s just silly.

The creator of that poster is probably well under the age of 50, and may have grown up with the hand-over-heart salute used after World War II.  That was not the original salute, and I’d imagine the author is wholly ignorant of the original and why it was changed.

Students pledging to the flag, 1899, 8th Division, Washington, D.C. Part of the Frances Benjamin Johnston 1890 - 1900 Washington, D.C., school survey.

Wikipedia image and caption: Students pledging to the flag, 1899, 8th Division, Washington, D.C. Part of the Frances Benjamin Johnston 1890 – 1900 Washington, D.C., school survey.

Wikipedia gives a concise history of the salute:

Swearing of the Pledge is accompanied by a salute. An early version of the salute, adopted in 1892, was known as the Bellamy salute. It started with the hand outstretched toward the flag, palm down, and ended with the palm up. Because of the similarity between the Bellamy salute and the Nazi salute, developed later, the United States Congress instituted the hand-over-the-heart gesture as the salute to be rendered by civilians during the Pledge of Allegiance and the national anthem in the United States, instead of the Bellamy salute. Removal of the Bellamy salute occurred on December 22, 1942, when Congress amended the Flag Code language first passed into law on June 22, 1942.

Students in an unnamed school in 1941, offering the Bellamy Salute for the Pledge of Allegiance.

Students in an unnamed school in 1941, offering the Bellamy Salute for the Pledge of Allegiance. Wikipedia image.

One might understand why the Bellamy Salute was changed, during war with Nazi Germany.

Arrogance and ignorance combine to form many different kinds of prejudices, all of them ugly.  The arrogant assumption that only “our generation” learned patriotism and that whatever goes on in schools today is not as good as it was “in our day,” regardless how many decades it’s been since the speaker was in a public school, compounds the ignorance of the fact that since 1980, forced patriotic exercises in schools have increased, not decreased.

Like much about our nation’s troubles, assumptions based on ignorance often are incorrect assumptions.  Consequently, they give rise to what is today clinically known as the Dunning Kruger Effect (or syndrome), so elegantly summed by by Bertrand Russell in the 1930s:

The trouble with the world is that the stupid are cocksure and the intelligent are full of doubt.

Humorously summed up by “Kin” Hubbard:

It isn’t what we don’t know that gives us trouble, it’s what we know that ain’t so.

Ignorance is a terrible disease, but one easily cured, by reading.  We can hope.

More:


Can’t make this stuff up: Utah internet sales magnate wants Constitutional Amendment for . . . religious freedom

August 13, 2013

You know what?  The Stupid doesn’t burn, after all — if it did, this guy would have self-immolated long ago.

Utah Policy Daily is an online-newsletter of public policy stuff in the Beehive State — a very good one.  It’s done by some top Utah political consultants from both parties, and former political writers, colleauges and friends from the University of Utah and the political and culture wars in the state.

Utah Policy Daily carried this story, this morning, which I present in full only because you wouldn’t believe it otherwise:

Constitutional Amendment Would Protect ‘Religious Liberty’

By Bryan Schott

Jonathan Johnson, Executive Vice-President of Overstock.com, is leaping into the political ring with a proposed constitutional amendment to protect religious liberty.

Jonathan Johnson of OverStock.com

Jonathan Johnson of OverStock.com

The Daily Caller reports Johnson wants his proposed amendment to exempt churches from being forced to perform same-sex marriages. Johnson says the amendment wouldn’t interfere with the Supreme Court rulings in favor of same-sex marriage, but it also protects groups opposed to the practice at the same time.

Johnson and some friends hatched an idea for states to pass a constitutional amendment saying: ”A religious organization, religious association, religious society or any person acting in a role connected with such organization, association or society and shall not be required to solemnize, officiate in, or recognize any particular marriage or religious rite of marriage in violation of its constitutional right of conscience or its free exercise of religion.”

(The wording is still being fleshed out, but that’s basically what it will say.)

In some ways, this shouldn’t be controversial. The proposed amendment “doesn’t get in the way of gay marriage,” Johnson notes — “but it [also] doesn’t have gay marriage encroach into areas of religious liberty.”

Read more: Utah Policy – Constitutional Amendment Would Protect Religious Liberty

As I understand it, this amendment would be aimed at preventing the government from ordering preachers to marry people they don’t want to marry.

Maybe Johnson is so much a Mormon (I do not know his faith) that he does not know that this “right” is protected by the First Amendment, and has been practiced by far too many Catholic priests, Baptists ministers, and even Mormon Bishops, over the past 225 years.  Preachers regularly refuse to allow their churches to be used by people for any fool reason whatever, and no preacher is forced to solemnize a marriage.  In short, his proposed amendment is wholly superfluous, already covered by the First Amendment.

Unless his real purpose is to create some new way of bashing homosexuals, as I suspect.  Bigot.

Here’s the scary part:  This guy has created a lobbying group to push for the amendment, and has already raised more than $100,000 to push it.  According to the RWNJournal Daily Caller:

As conservatives work to create a firewall on the issue of religious liberty, don’t be surprised if this effort catches on nationwide. Johnson already has a Utah PAC (First Freedom PAC) and a 501 (c)(4) that he says has “raised low six digits — and we’re not really trying yet,” he says.

How many stupid people, people wholly unaware of the First Amendment, are out there with the checkbooks open willing to be suckered by confidence schemes like this?  Enough to raise “low six digits.”

Hey:  For just $10,000, I’ll come to your home and explain why the First Amendment already gives us religious freedom, and tell you why it shouldn’t be mucked with.  I’ll bring PowerPoints and patriotic music, if you want, and give it all to you in less than an hour — or take a whole day if you want.  I won’t even charge expenses.

Then you can put your remaining money into a group that really works to defend the Constitution, or the First Amendment specifically — and I’ll tell you who they are.

Next thing you know, this guy will “come up” with an idea for an amendment to recognize Jesus.

History and policy ignoramii.  Santayana’s Ghost is grumbling and going back for another cup of coffee.  Has Chris Rodda heard about this yet?  Ed Brayton? (Oh, yeah, Ed’s on it already.  Good.)

One point of light:  My old colleague at the Daily Utah Chronicle, Bob Bernick, wrote a column detailing that Utah politicians generally are not so stupidly right-wing as many in the rest of the nation, “Utah, not as crazy as we could be.”  Maybe some of those not-stupid people will take Mr. Johnson aside and explain the Constitution to him.

Update:  Point of darkness:  Johnson has a law degree from BYU.  Seriously.  I thought U.S. Sen. Mike Lee was an aberration,

More:

Here in Texas, we have the First Amendment engraved in stone, at Southern Methodist University.

Here in Texas, we have the First Amendment engraved in stone, at Southern Methodist University. Photo by Ed Darrell – use encouraged.
Text of the First Amendment: Amendment:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.


Follow

Get every new post delivered to your Inbox.

Join 2,211 other followers

%d bloggers like this: