@Mike at The Big Stick, it says nothing directly about such states. Kentucky, for example, is not directly implicated by Perry v. Schwarzenegger. However, a pro-SSM litigant in Kentucky would be able to cite Perry as a Federal court holding that a prohibition against SSM violates the Due Process and Equal Protections Clauses of the Fourteenth Amendment to the U.S. Constitution, and therefore a Kentucky state law, or a provision of the Kentucky constitution, violates the U.S. Constitution and is therefore void. The court in Kentucky could then do one of two things -- either agree with the reasoning in Perry and void the Kentucky law, or disagree with the reasoning in Perry and say that Perry isn't binding law in Kentucky and offer its justification for why a prohibition on SSM is consistent with the Federal due process and equal protections guarantees. If the Kentucky court picks option #2, that's setting up and almost guaranteed review by the U.S. Supreme Court, whose decision would be binding on both Kentucky and California.
For those who wish to claim the legitimacy of majority sanction, the fact that the Constitution is both the fundamental and supreme law of the Republic, and at the same time largely an articulation of those matters which are beyond the reach of the majority (either in substance or in structure) is a damnably inconvenient truth.
Note, though, that in a police puppicide, there are only two kinds of dogs that are ever involved: "Rottweilers," which are dogs shot by a police officer with black fur, and "Pit bulls," which are defined as non-black dogs that are shot by police officers. No other kinds of dogs exist in the known universe described in police reports; were you to listen to cops, mythical animals such as "golden retrievers," "chihuauas," or "beagles" are like "dragons" and "unicorns" in that while they are much-beloved by children in fairy tales and animated Disney movies, they do not actually exist in the gritty world of gravely endangered police officers defending themselves from bloodthirsty pit bulls and vicious rottweilers.
@Jason Kuznicki, the thing that worries me is that this is probably not the best that the anti-SSM movement can do. This was the best that these particular lawyers could do, and it's clear enough to me that their entire strategy at the trial court level was to win on summary judgment on the strength of the rational basis test. It never occurred to them that there was a realistic threat of a finding of "no rational basis" and they could not identify a "compelling state interest" as a fallback justification for the SSM ban. Other lawyers, perhaps more clever and resourceful lawyers, may well be able to do better and learn from this trial.
What worries me is the rising tide of claims that the anti-SSM side didn't get a fair shake. It's easier to accept a decision adverse to your preferences or interests if you feel like you got a fair shake. It's fuel to the fire of a social conservative movement already animated against "activist" judges and the rule of law. It could be a new Roe v. Wade that way.
For myself, I applaud the result and I say to the lawyers for the proponents, "If you can't take a fast inside pitch, you don't belong in Yankee Stadium and it ain't the umpire's fault if you strike out there." But that isn't how the anti-SSM forces are going to see it.
@Michael Drew, I don't think the Constitution would allow for a national authority to count the vote. It would have to be the cumulative results officially certified by the several states, which means if we look too closely into it, we're back into Bush-Gore 2000 hanging chad territory. I don't think anyone wants that.
@Michael Drew, let me offer three areas of interest as examples: downstate Illinois, upstate New York, and inland California. All of these are in traditionally Democratic states under the existing EC so they are of interest for this topic. Granted, their population density is not as great as the urban areas that dominate those states, but there are still lots of votes to be had there and there are plenty of smaller cities and exurban areas ripe for GOP activity.
I live in an inland area of California, and there was virtually no presence in my neck of the woods by the McCain-Palin campaign in 2008. The GOP campaign had no reason whatsoever to campaign here, even though this particular area is heavily Republican. My zip code voted for McCain over Obama by about a 60%-40% ratio, but there was no TV, no direct mail, no precinct walkers, and certainly no staffers to produce that result. Nor should there have been -- every dollar spent by McCain in California would have been a dollar wasted because there was zero chance McCain was going to carry California regardless of how much McCain moderated his policies (or his persona) to appeal to voters in California as a whole. Which is why a lot of Republicans I know didn't even bother to vote; they knew that Obama was going to carry California anyway so they felt like their vote didn't matter.
Under NPV, McCain would have had an incentive to appeal to the inland-area voters because even if he lost the coastal cities, an extra five to ten percent margin in the inland areas, all other things being equal, could have contributed to getting closer to a plurality of the national vote. This would be a good thing, if systemically increased voter turnout is stipulated to be an inherent good. But I do not so stipulate. My concern is that the increased voter turnout will come at the expense of degrading the quality of the products from which the voters will be asked to choose.
Ten samples produced these results, in alphabetical order:
Dan Brown: 1
Arthur Clarke: 1
Cory Doctorow: 1
H.P. Lovecraft: 4
David Foster Wallace: 3
First, a result that includes even one in ten incidences of "Dan Brown" is galling. Second, is "H.P. Lovecraft" code for "uses long sentences?" Finally, is "David Foster Wallace" code for "uses semicolons somewhat correctly"?
If we lived in a republic where people had demonstrated more concern about policies and abilities than about charisma and emotion, I would be happier about NPV. While the idea of the NPV is initially quite appealing, I see a dark side: increased polarization of candidates and thus of the polity as a whole because it rewards what are unfairly called "Rovian tactics" of using polarizing wedge issues to get out the vote on one's own side and dirty tricks to depress the vote on the other.
After all, if NPV makes "swing states" less important and increased the importance of "pumping up the volume" in one's own safe regions, then it de-incentivizes efforts to reach out to moderates or even members of the other party, because it's easier, cheaper, and at least as rewarding if not more rewarding to get more of your own voters out by throwing them red meat. All that counts is getting more votes than the other candidate, after all; state lines are irrelevant but writing off entire regions and redoubling efforts where it's easy to win becomes a better strategy. A Republican would campaign a lot in Illinois, even against Obama, but never set foot in the Chicago region. A Democrat would go to Texas, but pretty much only to Austin and ignore Dallas entirely.
Thus, a Republican would have an incentive under NPV to never set foot anywhere north of the Potomac River during their campaigns, and to advocate a constitutional amendment to make Christianity the official religion of America and issuing licenses to hunt illegal immigrants for sport. Democrats, on the other hand, could plausibly ignore every region that is not near an ocean and advocate single-payer healthcare, nationalized banks, and mandatory toilet paper recycling. Meanwhile, the Republican would be undermined with rumors of marital infidelity and the Democrat with rumors of corruption, none of them with the remotest basis in reality.
I'd predict that a moderate voter, one undecided but susceptible to persuasion about the benefits and burdens of competing policies or arguments about why one candidate is better than the other, would tend to be ignored rather than catered to in an NPV system. Those kinds of voters are the ones who will carry a "swing state" like Pennsylvania or Florida under the EC right now. A moderate voter in California or Texas is ignored now, yes, but a moderate voter in Ohio is much prized. So as it is, it may well be the case that only relatively a small number of voters, perhaps a million or so people of middle-of-the-road politics in four or five states, actually decide the election.
But at least it's people who in theory listen to and evaluate the candidates objectively before making up their minds. Those moderates are the losers of NPV, and far-from-the-center partisans are the winners.
@Jaybird, I confess I hadn't really thought about wrestling as a participatory melodrama, though, with the paying audience members playing the part of people booing the evil Soviet wrestler. I confess that I'm at a loss as to whether that renders wrestling either deeper or shallower than Hedges' unflattering analysis.
What I've noticed about wrestling fans is that they all harbor conscious awareness that their chosen entertainment is fake "scripted," but they are usually annoyed when you point that out to them. Of course, movie fans do this sort of thing sometimes too. (I still don't know if the linked video is a spoof or not.)
@E.C. Gach, my own opinion is that opinion leaders in both parties are at approximately the same degree of homogeneity, a higher degree than I prefer to see. The GOP is a bit more overt about its orthodoxies, perhaps.
@E.C. Gach, no, I was mainly trying to be clever. The dissonance I saw was that Hedges claims to be acting for the people but as I see it, he would impose his choices instead of agreeing to the decisions of the unreliable (because uneducated and brainwashed) majority. That doesn't seem progressive to me, but perhaps I'm wrong about that.
And Rufus is right in that Hedges does not come very far out of his shell and explicitly say that he thinks that policies intended to remedy the problems he identifies should be imposed on us. But it's very clear that he thinks unless something is done to change the path of society, we're headed to self-destruction, and it's also very clear that at least until further notice, the majority of the American people cannot be relied upon to choose an undestructive path for themselves. Ergo, the only way out is for contra-majoritarian rules to be somehow implemented.
That's why I infer Hedges is anti-democratic, and that's why I think he's not being particularly progressive so much as dictatorial. But mainly, I was trying to be clever; admittedly not doing a very good job of it.
As Rufus notes, "...this is a jeremiad, instead of journalism". Another take I briefly entertained on the book, and this most reminds me of it:
Chapter 1: "You watch too much television! It's going to rot your brains!"
Chapter 2: "You [masturbate] too much! Go out and have a real relationship with a real person instead!"
Chapter 3: "You don't study enough, and you don't study the right subjects! Get a real education!"
Chapter 4: "Don't just listen to people who tell you who great you are, and then not do anything about making your crappy life any better than it is."
Chapter 5: "Don't believe what other people tell you, especially about politics and economics; make up your own mind and speak up for yourself instead of just going along to get along."
All of this is probably true and good advice. But none of it is even remotely new, either on a qualitative or a quantitative level.
I must be missing something here. When did street harassment -- wolf whistles, crude propositions, rude observations about a woman's body, things like that -- become a crime? To be sure, this is contrary to anything resembling good manners and civilized conduct. But the appropriate response to something like that is to deploy shame, not the coercive power of the state.
Hedges is a brilliant writer and I find that I need to be on my guard as I read the book because it is not only so seductively written, but it also plays in to my elitist prejudices. I imagine that at least some readers here are similarly vulnerable. So critical thinking hats on, everyone, whether you like what you're reading or not!
The defendant here was not denied his right of habeas corpus; he failed to exercise it.
Strike that. The defense attorney failed to exercise his client's right of habeas corpus. And no wonder -- habeas cases are factually and procedurally difficult, expensive, and have a low success rate. Finding attorneys to take on that kind of work can be something of a challenge. For an indigent defendant, who is actually incarcerated while conducting the attorney search, finding such an attorney could be a daunting challenge indeed.
I think the solution is extending the statutory time period in which habeas appeals should be filed. That's not being "soft on crime" because by definition we're talking about people who are already in prison; nor does it have to alter the "one-habeas" rule. If anything, if a prisoner is given a longer period of time -- three years after final judgment seems right to me -- in which to find counsel and prepare a habeas petition, that justifies the harsh sort of result we see in this case.
As for this defendant, I have a hard time squaring a judicial finding of actual innocence with a result that he remains incarcerated. That's just plain not justice and that's why this case should have had the opposite result -- and then been depublished so as not to create a precedent.
@kris, I occasionally serve as a pro tem judge in traffic court. Every time I do it, I have between a dozen to twenty cases of people, presumptively citizens, who have been given tickets for driving without valid driver's licenses on them. And fully half of my daily traffic calendar -- fifty or more defendants a day -- don't have insurance. (Bear in mind that these are the people who show up in court to take care of their tickets, not the ones who paid their tickets by mail or over the net. I don't claim to know how that filter might skew the sample.)
Am I supposed to suspect that all of these people are not citizens? Or that they naturalized and/or got green cards between the time they got their tickets and the time they showed up in court?
The jurisdiction in which my court sits services a community of about 400,000 people. That's far too many citizens driving without identification or insurance, in my mind, to have the lack of those things give rise to a suspicion of anything other than the offenses of driving without identification and/or insurance.
I'd concede that lack of identification could contribute to formation of a "reasonable suspicion", as one of multiple objective, articulable factors that could be evaluated on a case-by-case basis. But by itself, there are a substantial number of people who are pretty obviously citizens driving around without licenses or insurance -- substantial enough that I can't call a suspicion of alien status based on this evidence alone a "reasonable" suspicion.
@Jaybird, hey, if you're eating the city's bagel, you play by the city's bagel rules. You want a whole bagel? No one in San Francisco is stopping you from buying your own.
@Jaybird, that would be your right to own property and the state's inability to take it from you without just compensation, explicated in the Fifth and Fourteenth Amendments.
At common law back in Ye Merrie Olde Englande, pets, livestock, and other animals were considered mere chattel, and you can do with your chattel as you please. So if you wanted to take an absolutist view of property rights, then you should be able to toss Miss Kitty under a passing Peterbilt if you should so please -- provided you don't damage the Peterbilt in the process -- and the state ought not say "boo" about it.
This does not mean I condone throwing cats under cars by any means whatsoever. Nor do I really think that a statute criminalizing animal cruelty constitutes a legislative taking of property; I'm not that pure of a libertarian. But, you asked, so there's your answer.
The "Off The Cuff" feature is one of the most charming things about this blog.
For me, it won't matter, though. I'm generally viewing posts in a reader and if I feel impelled to comment that's the first time I learn that it's an Off The Cuff or a center-stage post, and it does not make any difference to me at that point.
*Comment archive for non-registered commenters assembled by email address as provided.
On “Morning Joe Scarborough gets it wrong on gay marriage”
@Mike at The Big Stick, it says nothing directly about such states. Kentucky, for example, is not directly implicated by Perry v. Schwarzenegger. However, a pro-SSM litigant in Kentucky would be able to cite Perry as a Federal court holding that a prohibition against SSM violates the Due Process and Equal Protections Clauses of the Fourteenth Amendment to the U.S. Constitution, and therefore a Kentucky state law, or a provision of the Kentucky constitution, violates the U.S. Constitution and is therefore void. The court in Kentucky could then do one of two things -- either agree with the reasoning in Perry and void the Kentucky law, or disagree with the reasoning in Perry and say that Perry isn't binding law in Kentucky and offer its justification for why a prohibition on SSM is consistent with the Federal due process and equal protections guarantees. If the Kentucky court picks option #2, that's setting up and almost guaranteed review by the U.S. Supreme Court, whose decision would be binding on both Kentucky and California.
"
For those who wish to claim the legitimacy of majority sanction, the fact that the Constitution is both the fundamental and supreme law of the Republic, and at the same time largely an articulation of those matters which are beyond the reach of the majority (either in substance or in structure) is a damnably inconvenient truth.
On “Why Focus on Puppycide?”
Note, though, that in a police puppicide, there are only two kinds of dogs that are ever involved: "Rottweilers," which are dogs shot by a police officer with black fur, and "Pit bulls," which are defined as non-black dogs that are shot by police officers. No other kinds of dogs exist in the known universe described in police reports; were you to listen to cops, mythical animals such as "golden retrievers," "chihuauas," or "beagles" are like "dragons" and "unicorns" in that while they are much-beloved by children in fairy tales and animated Disney movies, they do not actually exist in the gritty world of gravely endangered police officers defending themselves from bloodthirsty pit bulls and vicious rottweilers.
On “For the democratic process…”
@Jason Kuznicki, the thing that worries me is that this is probably not the best that the anti-SSM movement can do. This was the best that these particular lawyers could do, and it's clear enough to me that their entire strategy at the trial court level was to win on summary judgment on the strength of the rational basis test. It never occurred to them that there was a realistic threat of a finding of "no rational basis" and they could not identify a "compelling state interest" as a fallback justification for the SSM ban. Other lawyers, perhaps more clever and resourceful lawyers, may well be able to do better and learn from this trial.
What worries me is the rising tide of claims that the anti-SSM side didn't get a fair shake. It's easier to accept a decision adverse to your preferences or interests if you feel like you got a fair shake. It's fuel to the fire of a social conservative movement already animated against "activist" judges and the rule of law. It could be a new Roe v. Wade that way.
For myself, I applaud the result and I say to the lawyers for the proponents, "If you can't take a fast inside pitch, you don't belong in Yankee Stadium and it ain't the umpire's fault if you strike out there." But that isn't how the anti-SSM forces are going to see it.
On “The National Popular Vote Initiative”
@Michael Drew, I don't think the Constitution would allow for a national authority to count the vote. It would have to be the cumulative results officially certified by the several states, which means if we look too closely into it, we're back into Bush-Gore 2000 hanging chad territory. I don't think anyone wants that.
"
@Michael Drew, let me offer three areas of interest as examples: downstate Illinois, upstate New York, and inland California. All of these are in traditionally Democratic states under the existing EC so they are of interest for this topic. Granted, their population density is not as great as the urban areas that dominate those states, but there are still lots of votes to be had there and there are plenty of smaller cities and exurban areas ripe for GOP activity.
I live in an inland area of California, and there was virtually no presence in my neck of the woods by the McCain-Palin campaign in 2008. The GOP campaign had no reason whatsoever to campaign here, even though this particular area is heavily Republican. My zip code voted for McCain over Obama by about a 60%-40% ratio, but there was no TV, no direct mail, no precinct walkers, and certainly no staffers to produce that result. Nor should there have been -- every dollar spent by McCain in California would have been a dollar wasted because there was zero chance McCain was going to carry California regardless of how much McCain moderated his policies (or his persona) to appeal to voters in California as a whole. Which is why a lot of Republicans I know didn't even bother to vote; they knew that Obama was going to carry California anyway so they felt like their vote didn't matter.
Under NPV, McCain would have had an incentive to appeal to the inland-area voters because even if he lost the coastal cities, an extra five to ten percent margin in the inland areas, all other things being equal, could have contributed to getting closer to a plurality of the national vote. This would be a good thing, if systemically increased voter turnout is stipulated to be an inherent good. But I do not so stipulate. My concern is that the increased voter turnout will come at the expense of degrading the quality of the products from which the voters will be asked to choose.
On “I write like . . . H. P. Lovecraft”
Ten samples produced these results, in alphabetical order:
Dan Brown: 1
Arthur Clarke: 1
Cory Doctorow: 1
H.P. Lovecraft: 4
David Foster Wallace: 3
First, a result that includes even one in ten incidences of "Dan Brown" is galling. Second, is "H.P. Lovecraft" code for "uses long sentences?" Finally, is "David Foster Wallace" code for "uses semicolons somewhat correctly"?
On “The National Popular Vote Initiative”
If we lived in a republic where people had demonstrated more concern about policies and abilities than about charisma and emotion, I would be happier about NPV. While the idea of the NPV is initially quite appealing, I see a dark side: increased polarization of candidates and thus of the polity as a whole because it rewards what are unfairly called "Rovian tactics" of using polarizing wedge issues to get out the vote on one's own side and dirty tricks to depress the vote on the other.
After all, if NPV makes "swing states" less important and increased the importance of "pumping up the volume" in one's own safe regions, then it de-incentivizes efforts to reach out to moderates or even members of the other party, because it's easier, cheaper, and at least as rewarding if not more rewarding to get more of your own voters out by throwing them red meat. All that counts is getting more votes than the other candidate, after all; state lines are irrelevant but writing off entire regions and redoubling efforts where it's easy to win becomes a better strategy. A Republican would campaign a lot in Illinois, even against Obama, but never set foot in the Chicago region. A Democrat would go to Texas, but pretty much only to Austin and ignore Dallas entirely.
Thus, a Republican would have an incentive under NPV to never set foot anywhere north of the Potomac River during their campaigns, and to advocate a constitutional amendment to make Christianity the official religion of America and issuing licenses to hunt illegal immigrants for sport. Democrats, on the other hand, could plausibly ignore every region that is not near an ocean and advocate single-payer healthcare, nationalized banks, and mandatory toilet paper recycling. Meanwhile, the Republican would be undermined with rumors of marital infidelity and the Democrat with rumors of corruption, none of them with the remotest basis in reality.
I'd predict that a moderate voter, one undecided but susceptible to persuasion about the benefits and burdens of competing policies or arguments about why one candidate is better than the other, would tend to be ignored rather than catered to in an NPV system. Those kinds of voters are the ones who will carry a "swing state" like Pennsylvania or Florida under the EC right now. A moderate voter in California or Texas is ignored now, yes, but a moderate voter in Ohio is much prized. So as it is, it may well be the case that only relatively a small number of voters, perhaps a million or so people of middle-of-the-road politics in four or five states, actually decide the election.
But at least it's people who in theory listen to and evaluate the candidates objectively before making up their minds. Those moderates are the losers of NPV, and far-from-the-center partisans are the winners.
On “Notes on “Empire of Illusion”, Chapter 1., and Bad TV”
@Jaybird, perhaps, but the blend of the elevated and the profane made me smile anyway.
"
The word "fake" in my previous post was supposed to be in strikethrough. Sorry I forgot the code.
"
@Jaybird, I confess I hadn't really thought about wrestling as a participatory melodrama, though, with the paying audience members playing the part of people booing the evil Soviet wrestler. I confess that I'm at a loss as to whether that renders wrestling either deeper or shallower than Hedges' unflattering analysis.
What I've noticed about wrestling fans is that they all harbor conscious awareness that their chosen entertainment is fake "scripted," but they are usually annoyed when you point that out to them. Of course, movie fans do this sort of thing sometimes too. (I still don't know if the linked video is a spoof or not.)
On “Guest Post: The Illusion of Progressivism”
@E.C. Gach, my own opinion is that opinion leaders in both parties are at approximately the same degree of homogeneity, a higher degree than I prefer to see. The GOP is a bit more overt about its orthodoxies, perhaps.
"
@E.C. Gach, no, I was mainly trying to be clever. The dissonance I saw was that Hedges claims to be acting for the people but as I see it, he would impose his choices instead of agreeing to the decisions of the unreliable (because uneducated and brainwashed) majority. That doesn't seem progressive to me, but perhaps I'm wrong about that.
And Rufus is right in that Hedges does not come very far out of his shell and explicitly say that he thinks that policies intended to remedy the problems he identifies should be imposed on us. But it's very clear that he thinks unless something is done to change the path of society, we're headed to self-destruction, and it's also very clear that at least until further notice, the majority of the American people cannot be relied upon to choose an undestructive path for themselves. Ergo, the only way out is for contra-majoritarian rules to be somehow implemented.
That's why I infer Hedges is anti-democratic, and that's why I think he's not being particularly progressive so much as dictatorial. But mainly, I was trying to be clever; admittedly not doing a very good job of it.
On “Notes on “Empire of Illusion”, Chapter 1., and Bad TV”
As Rufus notes, "...this is a jeremiad, instead of journalism". Another take I briefly entertained on the book, and this most reminds me of it:
Chapter 1: "You watch too much television! It's going to rot your brains!"
Chapter 2: "You [masturbate] too much! Go out and have a real relationship with a real person instead!"
Chapter 3: "You don't study enough, and you don't study the right subjects! Get a real education!"
Chapter 4: "Don't just listen to people who tell you who great you are, and then not do anything about making your crappy life any better than it is."
Chapter 5: "Don't believe what other people tell you, especially about politics and economics; make up your own mind and speak up for yourself instead of just going along to get along."
All of this is probably true and good advice. But none of it is even remotely new, either on a qualitative or a quantitative level.
On “The Empire of Illusion Strikes Back”
@Rufus F., you're welcome to do so. I fear it's a little on the longish side at about 3,000 words.
"
I've some rather lengthy thoughts upon completing the book available at my blog.
On “Retirement at 30”
Good luck, Chris. You always made me think hard.
On “Okay, your thoughts?”
I must be missing something here. When did street harassment -- wolf whistles, crude propositions, rude observations about a woman's body, things like that -- become a crime? To be sure, this is contrary to anything resembling good manners and civilized conduct. But the appropriate response to something like that is to deploy shame, not the coercive power of the state.
On “The Empire of Illusion Strikes Back”
Hedges is a brilliant writer and I find that I need to be on my guard as I read the book because it is not only so seductively written, but it also plays in to my elitist prejudices. I imagine that at least some readers here are similarly vulnerable. So critical thinking hats on, everyone, whether you like what you're reading or not!
On “In Which I Am Righteously Vindicated”
@Jaybird, I think McCain-Feingold was unconstitutional. The Supreme Court agreed with me on that one (for once).
I think it is unconstitutional to ban Uzis.
I think it is unconstitutional to waterboard prisoners.
Peace. Love. Flowers.
On “Procedure v. Innocence (ctd.)”
The defendant here was not denied his right of habeas corpus; he failed to exercise it.
Strike that. The defense attorney failed to exercise his client's right of habeas corpus. And no wonder -- habeas cases are factually and procedurally difficult, expensive, and have a low success rate. Finding attorneys to take on that kind of work can be something of a challenge. For an indigent defendant, who is actually incarcerated while conducting the attorney search, finding such an attorney could be a daunting challenge indeed.
I think the solution is extending the statutory time period in which habeas appeals should be filed. That's not being "soft on crime" because by definition we're talking about people who are already in prison; nor does it have to alter the "one-habeas" rule. If anything, if a prisoner is given a longer period of time -- three years after final judgment seems right to me -- in which to find counsel and prepare a habeas petition, that justifies the harsh sort of result we see in this case.
As for this defendant, I have a hard time squaring a judicial finding of actual innocence with a result that he remains incarcerated. That's just plain not justice and that's why this case should have had the opposite result -- and then been depublished so as not to create a precedent.
On “Arizona: Enemy of Federalism”
@kris, I occasionally serve as a pro tem judge in traffic court. Every time I do it, I have between a dozen to twenty cases of people, presumptively citizens, who have been given tickets for driving without valid driver's licenses on them. And fully half of my daily traffic calendar -- fifty or more defendants a day -- don't have insurance. (Bear in mind that these are the people who show up in court to take care of their tickets, not the ones who paid their tickets by mail or over the net. I don't claim to know how that filter might skew the sample.)
Am I supposed to suspect that all of these people are not citizens? Or that they naturalized and/or got green cards between the time they got their tickets and the time they showed up in court?
The jurisdiction in which my court sits services a community of about 400,000 people. That's far too many citizens driving without identification or insurance, in my mind, to have the lack of those things give rise to a suspicion of anything other than the offenses of driving without identification and/or insurance.
I'd concede that lack of identification could contribute to formation of a "reasonable suspicion", as one of multiple objective, articulable factors that could be evaluated on a case-by-case basis. But by itself, there are a substantial number of people who are pretty obviously citizens driving around without licenses or insurance -- substantial enough that I can't call a suspicion of alien status based on this evidence alone a "reasonable" suspicion.
On “In Which I Am Righteously Vindicated”
@Jaybird, hey, if you're eating the city's bagel, you play by the city's bagel rules. You want a whole bagel? No one in San Francisco is stopping you from buying your own.
Yet.
"
@Jaybird, that would be your right to own property and the state's inability to take it from you without just compensation, explicated in the Fifth and Fourteenth Amendments.
At common law back in Ye Merrie Olde Englande, pets, livestock, and other animals were considered mere chattel, and you can do with your chattel as you please. So if you wanted to take an absolutist view of property rights, then you should be able to toss Miss Kitty under a passing Peterbilt if you should so please -- provided you don't damage the Peterbilt in the process -- and the state ought not say "boo" about it.
This does not mean I condone throwing cats under cars by any means whatsoever. Nor do I really think that a statute criminalizing animal cruelty constitutes a legislative taking of property; I'm not that pure of a libertarian. But, you asked, so there's your answer.
On “Should we keep mini-posts?”
The "Off The Cuff" feature is one of the most charming things about this blog.
For me, it won't matter, though. I'm generally viewing posts in a reader and if I feel impelled to comment that's the first time I learn that it's an Off The Cuff or a center-stage post, and it does not make any difference to me at that point.
*Comment archive for non-registered commenters assembled by email address as provided.