Wednesday Writs for 2/20


Em Carpenter

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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112 Responses

  1. Avatar Oscar Gordon says:

    L3: I have a hard time supporting strikes that are in response to legislative action not directly impactful to the given work force.Report

    • Avatar Em Carpenter in reply to Oscar Gordon says:

      Well, there are other things in the bill affecting seniority and leave. It’s a huge education overhaul- and West Virginia teachers were not consulted. And of course, the money follows the students so charters and ESAs take money from their classrooms.
      The bill would also give them another 5% raise and a tax break for purchasing supplies out of pocket,, but the teachers say theyre striking and willing to forego the raise because they believe it’s bad for the kids.Report

      • Avatar Oscar Gordon in reply to Em Carpenter says:

        Ah, ok, that makes a difference. Those are things that shouldn’t be part of a legislative action given that there is a Union (unless the Union signed off on those things).

        Striking just because a bill creates charter schools and ESA’s sounds like an attempt to short circuit the normal democratic process.Report

    • Avatar Saul Degraw in reply to Oscar Gordon says:

      I disagree here. I think the teachers sincerely think they are working for the best interest of the kids. They even said take back the raises but don’t give public school funds to private and charter schools. Though I suppose this is an ideological disagreement. I’m anti-charter school and certainly anti public school money being given to private schools.

      The strike caused the bill to be defeated. Strikes work.Report

  2. Avatar Burt Likko says:

    [L1]: I read the summary of West Virginia State Board of Education v. Barnette and am struck by the harmony of principles at stake in its overturn of Minersville School District v. Gobitis as we’ve seen more recently in the shift from the “laws of general applicability” principle in Employment Division v. Smith leading to RFRA leading ultimate to Burwell v. Hobby Lobby Stores, Inc.

    The thing of it is, we celebrate Barnette (rightly, IMO) as a move towards freedom, but Hobby Lobby is still a partisan rallying cry (albeit one that has muted with so many other partisanized events occurring in the intervening five years). It’s discomforting for me to cheer Barnette and sneer at Hobby Lobby.

    I think that’s my reaction because in Hobby Lobby I see competing freedoms — the freedom of the employee to get contraception through her employer’s health care plan, pitted against the freedom of the owners of the company to not pay for the contraception. And perhaps I’m discomfited because the obvious freedom-maximizing accommodation — let the employee who wants contraception pay a surcharge for it — seems to have not been an option for reasons about which I can only speculate.

    It may also be because in Barnette I see the government intruding upon a religious belief for the overt purpose of imposing its own preferred beliefs, a governmental objective that seems inherently illegitimate to me. (As Justice Jackson points out, a government that must rely upon compulsory professions of loyalty appears to be doing so because it fears it cannot earn its citizens’ loyalty through its deeds.) In Hobby Lobby I see the government inadvertently intruding upon a religious belief for the purpose of promoting public health, which is a legitimate public purpose unrelated to the mental state, beliefs, or other inner lives of the participants in the program. Yes, I see the argument that the contraception mandate had the effect of intruding upon the owners’ practice of their beliefs, but effect and intent are different things.

    In any event, it’s a reasonably clear picture when we compare the power of the government to the rights of an individual. Barnette did not set a competing individual liberty of some other person against the Barnette family – it set the power of the government against individual people. It’s easy, or at least it ought to be easy, for even someone who thinks the flag is worthy of a profession of loyalty to see that others might disagree for any number of reasons.

    There surely can be a reasonable reconciliation, a balance point, between the need to allow people the latitude and freedom to act as dictated by their consciences, and the need for laws to have compulsory and practical effect, that we may have a government at all.

    Maybe we only get to that place by feeling our way as we go.Report

    • Avatar Em Carpenter in reply to Burt Likko says:

      Really good observations, Burt. I knew there was something niggling at me even as I applauded the Barnett decision and I think you pinpointed it. We run the risk of contradiction when in some cases we want the government to stop letting religious beliefs meddle with our rights, but in other cases want the government to stop letting the rights of others meddle with our religious beliefs. Legitimate public purpose, such as public health makes sense. Compare that with the alleged legitimate public purpose espoused in Gobitis of patriotic loyalty and unity. I think that the difference is clearly the specter of forced nationalism is much more problematic and antithetic to rights than an issue of public health.
      Feeling our way as we go, indeed.Report

    • Avatar DensityDuck in reply to Burt Likko says:

      “perhaps I’m discomfited because the obvious freedom-maximizing accommodation — let the employee who wants contraception pay a surcharge for it…”

      which, uh, the employee is certainly able to do by purchasing the contraception services over the counter…?

      “In Hobby Lobby I see the government inadvertently intruding upon a religious belief for the purpose of promoting public health, which is a legitimate public purpose unrelated to the mental state, beliefs, or other inner lives of the participants in the program.”

      And as the dissent in the case pointed out, if the government thinks this is a useful service that ought to be provided to citizens, it’s entirely welcome to set up its own program to provide that service rather than require private citizens to do it.Report

  3. Avatar Saul Degraw says:

    I don’t think there is any amount of behavior that an 11 year old kid can do that justifies how the adults reacted in the Florida pledge case.

    One of the big problems of civil liberties cases is that civil liberties are rarely advanced by saints and boy scouts. For every Sullivan v. NY Times which pushes free speech forward while fighting for civil rights, there are probably 5-10 people whose motives are less pure.

    The case law on standing for the pledge has been settled for over 70 years. The problem is that lots of people like performative patriotism and I’m not sure how to educate against that. Maybe the curse of civil liberties is that it will always be advanced and protected by a well-educated, culturally connected “elite.”Report

    • Avatar LeeEsq in reply to Saul Degraw says:

      One Supreme Court justice, I forgot who, quipped that “the cause of liberty has generally been advanced by unpleasant people.” Many of the people who fought against the once common and popular obscenity laws were not people you would generally want to hang around. Same with other freedoms. They were misfits and malcontents.Report

  4. Avatar George Turner says:

    The Supreme Court just ruled on Timbs v Indiana, which was a case about civil asset forfeiture and how courts have been using excessive fines and seizures as a revenue stream.

    Held: The Eighth Amendment’s Excessive Fines Clause is an incorporated protection applicable to the States under the Fourteenth Amendment’s Due Process Clause.

    The court’s opinion (pdf)Report

  5. Avatar North says:
    Unnnng… it’s beginning to look like Jussie Smollett fabricated the “homophobic MAGA attack” on himself. If true, this is looking like the Rolling Stone fiasco and the Covington fiasco rolled up in a rainbow flag with a really idiotic self centered gay man in the middle of it. Thank agnostic Jesus that I kept my yap shut when the original story popped out; a lot of lefties have made utter fools of themselves on this one.
    If the allegations are true and the facts on the matter are beginning to look mighty damning, I’d really want to strangle Smollett. Talk about a privileged wealthy gay actor hurting poor and abused LGBT people everywhere throughout time for his own self aggrandizing purposes!
    If it is the way it’s looking I hope they hurtle the book at him and I hope the left pours out their vitriol on him in spades.Report

    • Avatar Jaybird in reply to North says:

      At least there weren’t any politicians who made sweeping statements about what this attack means.Report

    • Avatar Saul Degraw in reply to North says:

      I’m still not convinced that Covington is a fiasco especially because the kid decided to sue the Washington Post for 250 million dollars (the amount Bezos paid for it) and the Washington Post was one of the more moderate reportages on the whole deal.

      Now they didn’t like the little private school shit look like an angle like the lickspittles at Today but….Report

    • Avatar Jaybird in reply to North says:

      Welp. The twitters are saying that the cops have announced that he’s been charged with Felony Disorderly Conduct.Report

      • Avatar North in reply to Jaybird says:

        That fishing imbecile! I hope they throw the God(ess) damned book at him!Report

        • Avatar Jaybird in reply to North says:

          (And, on top of that, he apparently committed Mail Fraud a month before this particular incident in creating a fake death threat that failed to go viral and there may be books being thrown at him regarding that too.)

          I’ve seen two main responses to this sort of thing. One that focuses on the individual, one that focuses on Us As A Society. (Or maybe it’s the other way around.)

          The first one is that the dude is obviously crazy and needs help. The argument is somewhat circular because it points out that only someone who is obviously crazy and needs help would do this, he did this, so, therefore, he is obviously crazy and needs help. I mean, someone *SANE* would not do this. Therefore, he is insane. Q.E.D.

          The second one is that the guy was committing, for lack of a better term, blood libel. They point out that the cops came to him and said “we’re pretty sure we caught the two guys who jumped you, do you want to press charges?” and he was enthusiastic about pressing charges. Then the cops showed him that the two guys that they caught were the two brothers (and *NOT* two random white guys from the area). When he was showed this, he immediately said that he did not wish to press charges. This is given as evidence that he would have been happy to use the power of the state to attack/destroy two random guys who merely fit the description that he made up. As such, he needs to not only be charged with Felony Disorderly Conduct, but with stuff like Conspiracy To Commit something or other.

          I have no idea what the proper response is. We want to dissuade future people from doing this sort of thing but I find myself wondering how we got into a situation where it would be in the same ballpark as reasonable to try a stunt like this in the first place.Report

          • Avatar North in reply to Jaybird says:

            Well he’s going to lose his lucrative job and, hopefully, have trouble finding more lucrative jobs. And if the left has the sense that god gave a gnat he’s going to get viciously dragged across the left-o-sphere. With his case history he might well get slapped with a bit of jail time. And that’s the bare minimum of what he deserves.Report

          • Avatar Chip Daniels in reply to Jaybird says:

            As long as we are stroking our chins and wondering things, we could also wonder how we got in the situation where, half a century after the Civil Rights campaigns, the idea of white men attacking a black man out of racial animosity is still so easily believable.

            Maybe that newspaper in Alabama calling for the Klan to night ride again could offer a perspective.Report

            • Avatar Jaybird in reply to Chip Daniels says:

              “It’s their fault for this story being so believable in the first place” is an interesting argument.

              Do we want to explore how this argument has been used historically or no?Report

            • Avatar Brandon Berg in reply to Chip Daniels says:

              Let’s say there are 200 million white adults in the United States. If in any given year, one in a million white adults decides to attack a random black man just for the hell of it, that gives the media four such incidents per week to satisfy the left’s perverted lust for racism porn. The fact that one crazy motherfisher somewhere in the US might attack a black guy for being black every now and then means literally nothing at all.

              That said, this particular farce had all the classic hallmarks of a hoax and was not even remotely plausible. The only thing that sold it even a little bit was the fact that he was actually injured. Most people don’t have the guts to commit to a hoax like that.Report

            • Avatar North in reply to Chip Daniels says:

              Mmmm, in my opinion changing the subject away from an uncomfortable fact; that this idiot fabricated a crime that played to our left wing sensibilities and way too many people bought into it too easily; to more standard left wing nostrums demeans us and our principles.Report

          • Avatar Iron Tum in reply to Jaybird says:

            If he had testified against two random white men, he would have been well within his rights to do so, and they would have been responsible.

            This is not a difficult concept. All white men are racists. All of them, without exception. Because racism is about systemic power structures, not the beliefs of any one particular individual. Likewise, white men are members of, supporters of, and perpetrators of at least two oppressor classes. They as class members ARE responsible for hate crimes, regardless of the “facts” of any particular situation.Report

  6. Avatar Jaybird says:

    In a vaguely related story, ABC news is talking about this:

    ONLY ON ABC7NEWS.COM: Surveillance catches presumed MAGA supporter vandalizing San Francisco home

    SAN FRANCISCO – In an exclusive interview, ABC7 News spoke with a San Francisco homeowner who said his home was vandalized and he believes it all started after he put out an “Impeach Trump” sign on his balcony.

    The San Francisco resident prefers to remain anonymous but said, “I kind of feel like the eggs had gone too far and I felt violated at that point. My kids live with me and I thought what will he do next? He can throw a rock through my window.”

    We’ve got a handful of San Franciscans on the board. Guys, is this something that you guys have had to worry about? Trump supporters vandalizing things in your town?Report

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