William Yale

GEORGE WILL’s Sunday column calls the Supreme Court health-reform case (three days of oral arguments begin Monday) “the last exit ramp on the road to unlimited government”: “[T]he Institute for Justice, a libertarian public interest law firm, [argues that the] individual mandate is incompatible with centuries of contract law … because a compulsory contract is an oxymoron. … Under Obamacare, Congress asserted the improper power to compel commercial contracts.”

Libertarians may believe a compulsory contract is an oxymoron, but everyone is entered into all sorts of “compulsory contracts” by the virtue of being a citizen! Just by being born in the U.S., we are all compelled to pay taxes, abide by the criminal and civil legal codes, and sign ourselves up for Selective Service and possibly be drafted (if we are male), among other requirements that I am most certainly forgetting. Many political philosophers would also consider voting to be each citizen’s duty, and many countries make voting legally obligatory. Of course we wouldn’t even be having this argument if either single-payer insurance had been enacted or hospitals themselves had been socialized, making the individual mandate unnecessary. Those alternatives definitely would not have invited any legal challenges. At least, I don’t think so…

Via Friday’s Playbook

I liked the title so much that I completely ripped it off of Steve Clemon’s post on the same video, but I had seen this several days before he posted it.

I celebrate with gay marriage proponents everywhere in hearing that District Court Judge Vaughn Walker has overturned Prop 8. But this isn’t the end of the journey along the court system. The decision is going to be appealed, where it will land in the 9th Circuit Court of Appeals, and eventually the Supreme Court. Anthony Kennedy currently holds the distinction as the the swing vote in a polarized Supreme Court that regularly votes 5-4 on highly-partisan cases (the fact that it does so often makes these cases highly-partisan itself). So the pertinent question (one that pundits will be asking for months until the Supreme Court releases its decision) is whether Anthony Kennedy will sustain the District Court ruling, overturn Prop 8, and bring gay couples into full equality in the institution of marriage.

I believe that Kennedy will unquestionably vote to sustain Walker’s ruling. All one has to do to come to this conclusion is to read Justice Kennedy’s opinion in Lawrence v. Texas. Justice Kennedy strongly believes in the rights of everyone to enter into relationships that do not harm others or interests the state protects. In fact, he justifies this belief in the same ways other justices have historically reasoned on the right of privacy: that the right to have sex, to love, to date, and to marry, is per the 14th amendment ‘implicit in the concept of ordered liberty’. It is the basis by which society and all other rights are built. What follows is a short paper I wrote on the subject of Kennedy’s opinion in Lawrence. If after reading this and his opinion you are still skeptical Kennedy will side on the favor of gay marriage, email me.

In Lawrence v. Texas, Justice Kennedy made the right argument in favor of overturning Texas’ ban on homosexual sodomy. The strongest argument in favor of overturning this ban is the first argument that Justice Kennedy makes – that this ban violates fundamental human liberties of the most private human conduct, in violation of the Due Process Clause in the 14^th Amendment. The dissenting opinion in this case, written by Justices Scalia, Rehnquist, and Thomas, tries to argue that ‘homosexual sodomy’ is not a fundamental right under the Due Process Clause. This is a mockery of Kennedy’s argument, and is not the fundamental right that he argues for.

The freedom to conduct in private consensual sex, ‘absent injury to a person or abuse of an institution the law protects’, is but one small part of the liberty Kennedy argues for. The freedom to have sex, and more broadly the freedom to enter into the relationships that accompany it, are fundamental to the functioning of the entire human species. If we are not secure in our ability to enter into a romantic relationship absent the government stepping in to play matchmaker, then we cannot be secure in any freedom. Even when the most primal right of freedom to procreate is not at stake (given that this concerns homosexual sodomy), the ability to freely enter into these relationships cannot be abrogated. The right question is not: do we have a right to enter into consensual, loving relationships without government interference? The right question is: how can the government have a right to infringe upon our personal relationships?

I do not believe that Justice Kennedy’s later arguments invalidating the precedent or tradition against homosexual sodomy are as strong as the previous argument. Kennedy argued that laws banning this conduct were relatively new, and that similar laws are not endemic to Western Civilization or Judeo-Christian moral standards. If you take the first argument as a given, then Justice Kennedy should not need to invalidate precedent or tradition. If sexual self-determination is a fundamental liberty, then modern laws or tradition are simply wrong.

The dissent’s strongest arguments lie in blurring the difference between homosexual sodomy and other widely-punished offenses such as bigamy, adult incest, prostitution, and same-sex marriage (which at the time of writing had not yet been legal in any state). They argue that if laws banning homosexual sodomy are overturned, then no laws banning moral offenses can stand. This is a false dichotomy, because there is a distinct difference between homosexual sodomy and gay marriage on one hand and polygamy and incest on the other. Justice Kennedy provided the standard in his brief – keeping such laws if they dealt with practices that caused injury to a person or abuse of a legally protected institution. Incest and polygamy are argued to cause psychological harm – the first to children and the second to the multiple wives. Gay sodomy and marriage is consensual and causes no harm.

I personally come out in favor of the Majority in Lawrence. In the course of restating one of Justice Kennedy’s arguments, I stated my own opinion: if we are not secure in our ability to choose sexual partners or engage in serious relationships, then we cannot be secure in any right. If homosexuals are not free to engage in sexual practices, then neither are heterosexuals.

Hilzoy in Washington Monthly makes the good point that besides endorsing a right to privacy in the Constitution (heretical among those who oppose Roe v. Wade), she endorsed states protecting that right:

If there is a right to privacy in the US Constitution, then protecting it is a federal issue. It has to be. You just cannot say that there is a right to privacy in the US Constitution, but that what to do about that fact should be up to the states. Not if you understand what the Constitution is, and how our system of government works.

Hallelujah! The Patriot Act has been castrated (so to speak, and I didn’t say it had it’s head severed, although I wish it had). Judge Victor Marrero of the Federal District Court in Manhattan struck down some nasty bits of this law, namely, that which authorized the F.B.I. to acquire corporate records using informal secret demands called national security letters (ala AT&T).

According to this very reasonable Justice Marrero:

“When the judiciary lowers its guard on the Constitution, it opens the door to far-reaching invasions of privacy. The only thing left of the judiciary’s function for those Americans in that experience was a symbolic act: to sing a requiem and lower the flag on the Bill of Rights.”

As per a report from the Justice Department’s inspector general in March, the F.B.I. issued about 143,000 requests through national security letters from 2003 to 2005, often improperly and illegally. The identity of the ISP that brought the case to court remains unknown, pending a possible appeal by the US government.

This is an old post that never got posted.

One of Stanley Fish’s recent blogposts at the New York Times, entitled “Clarence Thomas Is Right” really made me mad. The whole article centers on the recent “BONG HiTS 4 JESUS” lawsuit, in which a high-school student held up a sign worded just so at a school-sponsored event, and was suspended by the school principal for refusing to take it down. Yet the student sued and was upheld by the Court of Appeals for the Ninth Circuit. End of story? No, because the Supreme Court recently reversed that decision. Now, onto Mr. Fish’s position.

Mr. Fish doesn’t agree with John Roberts and most of the conservative majority, who say the principal was only following school regulations. Nor does he follow the liberal minority who say free speech is paramount. He sides with Clarence Thomas, the worst conservative of the bunch, who says, guess what? That students have no rights to free speech at all. As Justice Thomas says it was traditionally understood, “teachers taught and students listened, teachers commanded and students obeyed.”

This would be bad enough, but Mr. Fish thinks Justice Thomas doesn’t go far enough:

“Not only do students not have first amendment rights, they do not have any rights: they don’t have the right to express themselves, or have their opinions considered, or have a voice in the evaluation of their teachers, or have their views of what should happen in the classroom taken into account. (And I intend this as a statement about college students as well as high-school students.)”

As a student, I take great offense. What ever happened to interactive class discussion? I would at least expect Mr. Fish to include the modifier, “While in school,” but he never does. I feel this is so completely counter to the spirit of education that it seems silly to be even discussing it. What I believe Mr. Fish must realize is that education does not stop at the classroom. Adults as well as children, teachers and students, and even you, Mr. Fish, are constantly learning and growing. Schools are not just, “pedagogical contexts.” They are vibrant, living, growing fountains of knowledge. It is only through the active use of our freedoms as youths can we learn to responsibly use them as adults.

An overnight patent company sues everyone over a generic product used by millions. The product? The mp3 player. Only in Texas can this be possible. I think I read about patent trolls in Marshall, Tx in some copy of wired months ago.