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The Rightness of Roe

[ 0 ] January 23, 2008 |

In honor of it’s 35th Anniversary, here’s my three part series on why Roe v Wade was correctly decided:

Part I

Part II

Part III

The short version is that 1)it’s flatly false to say that the right identified in Roe had no previous doctrinal basis, and 2)properly understood the decision is consistent with the general democracy-promoting tenor of Warren Court-era jurisprudence. See also Douglas in Doe v. Bolton–who draws out the precedential connections more carefully than Blackmun–and Stevens in Thornburgh, who correctly points out that it’s ridiculous to claim that a woman has a fundamental right to avoid pregnancy before the fact but has no reproductive rights at all after the fact.

Finally, for new readers my piece in the Prospect explaining why the preferred High Broderite policy of “compromising” by providing formal protection to the rights of women who least need the protection while throwing the rights of those who do need it under the bus is completely unacceptable.

"If you can’t fix it, Jack, you gotta stand it. "

[ 0 ] January 22, 2008 |

One commenter was upset about the exclusion of Lust, Caution from the Oscars. Depite being an Ang Lee fan, I’m not really too upset. It’s a very good picture, but my guess is that when I compile a top 10 list it will settle towards the bottom. I didn’t agree with complaints about slack pacing in Brokeback–the sheep herding sequences looked great and were necessary to set the mood–but I did find it problematic here. And the political intrigue wasn’t quite detailed enough for my liking. The period detail was outstanding as always, and the acting very good, but there were other movies this year that I like more.

All of this is a way of bringing the sad news that Heath Ledger has passed away at age 28, in what was most likely a suicide [see update]. He had separated from his partner (partner-on-film Michelle Williams) and their daughter last year. His performance in Brokeback, however, will live as long as people are interested in movies. R.I.P.

Deborah Lipp says in comments that police have not found evidence of suicide, and his survivors do not want it described in that way. My apologies for jumping the gun.

How Did Taste Get Through the Academy?

[ 61 ] January 22, 2008 |

Maybe I’m forgetting something, but relative to the quality of the year I would be surprised if this isn’t the best selection of best picture nominees of my lifetime. Granted, it’s marred by Schnabel relegated to a Best Director nomination while Atonement takes Diving Bell‘s rightful place in what I assume (although I haven’t seen Atonement yet, so maybe even it’s good) to be the Middlebrow Doorstop spot (although having only one is pretty amazing in itself.) Still, There Will Be Blood and No Country are both excellent-to-exceptional films, Juno very good, and while the enjoyable Michael Clayton is overmatched in this heat (and I would have preferred Lumet/Before the Devil) it’s certainly better than most recent Best Picture winners (Crash, Shakespeare in Love, Beautiful Mind, Gladiator, I Can’t Believe There is Soulessness and Homophobia In American Suburbia! American Beauty, ugh.) It’s an unusually strong collection of pictures. I wonder how it happened?

…looking at the other nominees, Away From Her/Polley also would have been a good choice, although at least Christie got a nomination.

On Wingnut MLK Revisionism

[ 0 ] January 22, 2008 |

Rick Perlstein.

good stuff here as well.

McGovern got 6 Million More Votes Than FDR In ’32: It Was the Greatest Campaign in History!

[ 4 ] January 21, 2008 |

I very much want to think that McCain will lose the nomination, and I think a Romney win is plausible. But I have to say that I’m not sure what this data is supposed to prove. McCain’s declining vote share says very little about his chances and a lot more about the banal factthat having 4 serious campaigns in a state plus the unusually well-funded vanity campaigns of Paul and Rudy! tends to depress the vote share of the frontrunners when compared to a campaign with 2 serious candidates. (This would seem to be a variant of the “Bill Clinton never won a majority” argument, as if no Perot voters would have gone to him in ’96.) The argument from raw vote totals is even worse; it is certainly bad news for the Republican Party but says absolutely nothing about McCain’s ability to win future primaries. The latter seems to be a variant of the world-historically specious “Bush got more votes than anyone in American History!!!!What a landslide!!!1ONE11!!11″ argument.

Now, if someone has some evidence that supporters of Thompson and Huckabee or Rudy’s supporter will disproportionately vote for Romney over McCain, or at least a compelling logical argument on behalf of this outcome, then we’ll have something. But I haven’t seen either yet.

Happy MLK Day

[ 0 ] January 21, 2008 |

This is a good quote from Letter From a Birmingham Jail. My favorite:

Let us consider a more concrete example of just and unjust laws. An unjust law is a code that a numerical or power majority group compels a minority group to obey but does not make binding on itself. This is difference made legal. By the same token, a just law is a code that a majority compels a minority to follow and that it is willing to follow itself. This is sameness made legal.

Let me give another explanation. A law is unjust if it is inflicted on a minority that, as a result of being denied the right to vote, had no part in enacting or devising the law. Who can say that the legislature of Alabama which set up that state’s segregation laws was democratically elected? Throughout Alabama all sorts of devious methods are used to prevent Negroes from becoming registered voters, and there are some counties in which, even though Negroes constitute a majority of the population, not a single Negro is registered. Can any law enacted under such circumstances be considered democratically structured?

Sometimes a law is just on its face and unjust in its application. For instance, I have been arrested on a charge of parading without a permit. Now, there is nothing wrong in having an ordinance which requires a permit for a parade. But such an ordinance becomes unjust when it is used to maintain segregation and to deny citizens the First Amendment privilege of peaceful assembly and protest.

I hope you are able to ace the distinction I am trying to point out. In no sense do I advocate evading or defying the law, as would the rabid segregationist. That would lead to anarchy. One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.

When you read legal scholarship from the 50s, as I’m professionally obliged to do sometimes, it’s striking how much gnashing of teeth there is about the Supreme Court allegedly usurping the prerogatives of Southern legislatures, with virtually no recognition of the fact that these governments were not remotely democratic. The beautifully stated first paragraph about the importance of avoiding self-exemptions from general laws is also a point not made nearly often enough, and is relevant to the pending anniversary of Roe v. Wade.

To be fair and balanced, however, the current employer of Jonah “Liberal Fascism” Goldberg made the case for apartheid police states and argued that MLK wasn’t much of a speaker. But I’m sure this is covered extensively in the book.

Random Notes

[ 46 ] January 21, 2008 |
  • Great ending to the Packers/Giants game, and this is especially true since Tynes would have been as unjustified a goat as Norwood. The first miss is a very difficult kick under these circumstances, and Coughlin’s bush league behavior after the miss may have been overcompensating for a strategic blunder in not playing for 4 downs there. The last-second miss he had no chance on; that was just a busted snap. Anyway, this is yet another lesson in the silliness of dividing players between “clutch” and “non-clutch.”
  • I was also happy because of the egregious home cooking down the stretch, and not just the phantom holding call. Aikman’s discussion of the missed offside call on the KGB sack was the most impenetrable reasoning in American discourse since Bush v. Gore was issued.
  • I’m also reminded that I’ve never understood why people think that the coin toss before overtime is so unfair; the thing is, it’s a disadvantage that can be overcome by, you know, making a stop, or for that matter by winning in regulation. Certainly, the NFL system is vastly better than the ridiculous quasi-football they play in college overtimes.
  • As has been noted once or twice, Norv Turner is inept, and as everyone has pointed out punting from NE territory in the 4th quarter should be a firing offense. And then there’s Rivers. Alas, like last week I was listening on the radio while working, but according to Trumpy (and confirmed by a couple commenters) Rivers couldn’t put weight on his foot and hence couldn’t throw properly; what he was doing in the game I have no idea. A team that puts in that kind of effort against a historic offense deserves a better shot to win.

Championship Sunday Open Thread

[ 375 ] January 20, 2008 |

San Diego at New England: Probably one week too late, if I was in Vegas I would follow Paul Campos’s advice and take the points. It’s hard to beat a good team by two TDs in the playoffs, and that’s especially true when the underdog has a better defense in cold weather. Still, that doesn’t mean that I think there’s the slightest chance Brady/Belichick could actually lose at home to Gimpy Rivers/Volek/Turner, especially given the injuries the Bolts have.

Giants at The Frozen Tundra Etc. I’ve been wrong about the Giants twice in the playoffs, which bodes well for those hoping to avoid a two-week Favre media wankfest which will make the media’s treatment of McCain look like its treatment of Gore. And the Pack’s huge win last week probably has to be discounted a little by the fact that the Seahawks defense stopped competing about 7 minutes into the first quarter. Still, I think the clock is going to strike midnight for the Giants. It was great to watch their duct-taped secondary hustle against the Cowboys, but it should also be remembered that they left a lot of guys open on passing downs, which was mitigated by Romo overthrowing Owens and Patrick “enjoy the popcorn!” Crayton (perhaps affected by Jessica Simpson’s incredible power to affect football games) repeatedly dropping balls and giving up on routes. I don’t think the Packers are going to leave Webster, Pope et al. unexploited. And I’ll concede that I was wrong about Eli going into the playoffs if you concede that last week was a lot more Trent Dilfer than Joe Montana.

A final note: ice bowls are cool. Super Bowls always in temperate climes and/or indoors are Teh Suck.

Quotes of the Day

[ 0 ] January 20, 2008 |


I don’t know who on this planet has the stature to go face-to-face with Bill Clinton and look him in the eye and tell him he behaved in a discreditable fashion. His wife? His buddy Vernon Jordan? Whoever it is, someone had better stop him. He campaigned against a fellow Democrat no differently than if Obama had been Newt Gingrich. The Clinton campaign may conclude that, numerically and on balance, Bill helped. But, trust me, to the thousands of committed progressives who supported him when he really needed it, who went to the mat for him at his moment of (largely self-inflicted) crisis but who now happen to be supporting someone other than his wife, he’s done himself a tremendous amount of damage.


The political realities in the 1990s were much different than the political realities today, and there’s much, much less chance that people like Mike Tomasky will countenance the Ricky Ray Rectoring, welfare-reforming, Obama-smearing [and DOMA signing, habeas corpus-gutting, etc. –ed.] side of Bill Clinton now, when such behavior isn’t really construable as an unfortunate side-effect of the historical moment.

And The There Were Four

[ 17 ] January 20, 2008 |

I mostly concur with Rob’s analysis of the Democratic race; I wouldn’t say it’s over but Clinton has to be considered a heavy favorite. With the GOP, I guess it depends what the definiton of “wide open” is, but that’s not the adjective I’d use. Obviously, it’s a two-man race — if Huckabee can’t win there he has no chance, Thompson’s campaign was stillborn, and Rudy9 Giuliani11’s campaign is a historic farce with 4 fewer delegates than Ron Paul and 1 more than Duncan Hunter. And while it’s not close to over I think at this point McCain probably to be considered the favorite. Certainly, I violently disagree with the claim that Romney wins however S.C. comes out. A Huckabee win and he would have been in pretty good shape. But to beat McCain straight up, you have to think that the majority of Thompson and Giuliani votes would go to Romney, and that doesn’t seem like a good bet. And while I’ve said this before, while I have little doubt that the GOP establishment would thwart McCain if it had a plain-vanilla Southern conservative to work with, this is irrelevant to the current race. (And some GOP elites have to be smart enough to understand that McCain 1)has a more conservative record than Romney and 2)would have a far better chance in the general.) There’s also a serious proof-is-in-the-pudding issue; if the Republican Establishment was determined to (and had the power to) stop McCain it’s not clear why they didn’t just do it in South Carolina.

As everyone who reads this site knows, Clinton/McCain is my least favorite matchup among the viable ones, but I’ll have to learn to live with it.

"Political strategy masquerading as a psychological crisis."

[ 4 ] January 19, 2008 |

Blustain and Friedman on “men’s post-abortion syndrome.” You can all but read the “moderate” Kennedy opinion now: “Although we have no reliable data to measure this phenomenon, it seems unexceptionable based on a few random anecdotes collected in amicus briefs to restore coverture to its proper place in American law, just like Sam always wanted.”

But Al Gore Said He Invented The Internet!

[ 11 ] January 19, 2008 |

As one of the old-timers who prefer to read the Times in the dead tree edition, I almost spit out my coffee when I saw that Maverick McStraighttalk had claimed that[e]very time in history we have raised taxes it has cut revenues. [my emphasis]” Jon Chait points out the obvious facts that 1)you have to go all the way back to the previous administration to find a straightforward refutation of this baldfaced lie, and 2)the Times is grossly irresponsible to have let that lie stand without correction. If someone doesn’t even know about the shrinking deficits/surplus following the tax increase in the 1990s, it’s outrageous that they’re reporting about politics for a major newspaper, and if they knew it was erroneous and let it stand it’s even worse.

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