Thursday, July 30, 2015

Aviation in Alaska


We recently went through the  Alaska Aviation Museum, and posted about that here:

Holscher's Hub: Alaska Aviation Museum:

It wasn't news to me that aviation is far more critical in Alaska than in the lower 48 (is this also true of northern Canada?  I'd guess it would have to be).  But the extent to which this is true, and has been for some time, is something that has to be seen to be believed.  Truly amazing.  Aircraft are a constant feature of any town in a way that simply doesn't occur elsewhere.  And quite clearly, this has been true for some time.

Indeed, we're going to be taking a look at transportation topics in relation to Alaska here in the near future. The treatment wont' be all that in depth, but it's revealing for a variety of reasons.

Anyhow, aviation in Alaska is amazing, and obviously has been for quite awhile.

Lex Anteinternet: What's with all those dire warnings

I was out of town this past week, so came home to a collection of newspapers.

One of them related that Wyoming had lost 3,000+ oilfield jobs.

We've had a variety of posts on this topic.  As we've been doing that, occasionally we'd read the articles that would relate that this down turn wouldn't be that bad.  At one time, we felt compelled to post an item entitled:
Lex Anteinternet: What's with all those dire warnings. . . .: and why are they on a blog that supposedly looks at history around the turn of the prior century? St. Francis Mission, Midwest Wyomin...
Well, the loss was higher than anticipated.

And now that a deal with Iran of some sort has been reached, and we can anticipate that the embargo on Iranian oil will cease, the trend is likely to amplify.

Monday, July 20, 2015

The Press and Statute of Limitations Bogusity

I keep hearing press reports connected with one asserted crime or another, that because the allegations happened long ago, they are "past the statute of limitations", as if there's a national criminal statute of limitations that pertains to state criminal cases..

There isn't.

Many states do have statute of limitations for criminal acts.  But not all. Wyoming doesn't.  I'm sure we're not alone in that either.

Most recently, this has come up concerning the various news stories about Bill Cosby.  I won't go into that, but a common report is "the alleged actions are past the statute of limitations".  Maybe they are, but if they are, they're past the statute of limitations in California, presumably.  They wouldn't be past the statute of limitations in other locations, if the alleged acts allegedly occurred there, depending upon the location.

Monday at the Bar: Courthouses of the West: Joseph C. O'Mahoney Federal Courthouse, Cheyenne W...

Joseph C. O'Mahoney Federal Courthouse, Cheyenne Wyoming

Cheyenne's modern Federal courthouse.

I'm sorry, but these newer courthouses (this one must have been built in the 1970s, really just leave a lot to be desired externally.  Inside, it's very nice.  but outside, it looks just like a Federal office building.

Saturday, July 18, 2015

It's All Natural! Except for us.

Just a second ago, on television, there was an advertisement for a dog food that was "natural".  It had no "chicken byproducts".

I wasn't aware that chickens were, ispo facto, unnatural, although I'll concede that they are a rather weird bird, but that's besides the point.  What's so fascinating is that we live in an era, and one that stretches back quite a few decades now, that's obsessed with the natural, even while we ourselves don't apply the same logic to ourselves.  It's really odd.  Either we like nature and accept it, or we don't. You can't really have cafeteria naturalism.

Evidence on our obsession with what's natural is everywhere, and frankly, I'm not criticizing it.  There's is indeed a lot of reason to be focused on the natural. We ourselves are part of nature, and there's better and better evidence that the more we depart from nature, the worst off we are (even as we strive to continue to create a very unnatural world). 

So eating a more natural diet makes a great deal of sense, and we know what the loose parameters of a natural diet are (and it isn't, by the way, vegan or vegetarian, which are highly unnatural diets for people who are uncomfortable with nature).  And getting out in nature, we know, is not only a good idea, it might actually be necessarily for our well being.

 A fellow with an actually natural diet.

So we've developed a lot of "natural foods". Some people have become "locavores", eating only what they can acquire locally, and thereby bypassing the unnatural food distribution system.  "Grass fed" beef is in, and I'm down with that, as I've been eating grass fed beef (and antelope, and deer, etc.) for decades.  Quite a few people insist their clothes be "natural", which means not a petroleum byproduct.  People buy vegetables that are "organic", by which they mean free of unnatural chemical exposure.

The Amish must be looking around thinking; "Ach, was ist das?"

 Amish, who live pretty natural, although that's not usually what non Amish backers of "natural" mean by natural.

Some of us, many of us now, join one or more organizations devoted to natural causes.  The Sierra Club, Ducks Unlimited, the Theodore Roosevelt Conservation Initiative, are just a few.  Radicals look towards Green Peace or the Earth Justice League.

But we omit nature from ourselves. That is, our own selves. And the more radically natural we are, the more likely we are to do that. Why is that?

What do I mean?

Well, the most natural thing a person encounters every day is themselves.  No matter how unnatural of environment you live in, you are natural.

For most of us, that probably doesn't impact us in any particular way, but we should consider this.  We are, no matter how a person conceives of it, as certain type of animal.  We may be, and I'd argue we are, a very special animal with an immortal soul, but nonetheless, we're an animal.  More particularly, we're a mammal, and a primate, with very special attributes.

And those attributes are governed to a fairly large extent by our DNA. That is, our genes determine much of what we are.

This has been, of course, argued about for decades.  Is it nature or nurture that determines our personalities, etc.  Both, no doubt. But that our genetic makeup determines much of what we are in some very fundamental ways cannot be doubted.  Included amongst these are our genders, and what that means.

That's a hugely unpopular readily right now, in certain quarters, but it's a reality nonetheless.  There are no "men trapped insides of women's bodies", or vice versa. There are men, and women.  That's biology.

That doesn't mean that some women and some men, in fairly low statistical numbers, don't have inclinations that are contrary to their genetic makeup in terms of gender in varying degrees that cause them to think they want to be the other.  It may very well be the case that they do.  And that doesn't make them inhuman, nor should it subject them to abuse. But it also should be required that such inclinations are part of their natural animal nature.  Pretending that they are is going against nature.  And at the point where society is providing people with "therapies" to achieve a gender transformation (to the extent that can actually occur), it's doing something deeply unnatural.  If it requires chemistry or surgery to achieve (and maintain), it isn't natural.

Indeed, we know that human beings are afflicted in varying numbers with all sorts of unnatural inclinations and impulses, some harmless, and some not.  For example, some people actually seek surgery to remove a limb, seized by the belief, somehow, that they'd be happier without it.  This is a self detructive belief, and unnatural, but they have it.

Of course, it could be argued that medicine itself is unnatural, and some do, but I don't think that's really the case.  Human desires to cure maladies are a human trait, and demonstrably go back to ancient times, indeed far back into our ancient origins.  Ancient humans with knit bones demonstrate that we were setting breaks as far back as we've existed, and occasionally an ancient skeleton will show up with evidence at an attempt for fairly exotic surgery.  That people can develop, and synthesize, medicines is not unnatural.

But it does lead to some oddities in this area.  One is that there's a big business in for "natural remedies". These are all sorts of herbs and whatever that are supposedly natural.  Near my work there's a store that sells such things and some of the impacts of them that are claimed are simply amazing.  One recently claimed to do something at the "cellular" level.  I hope not, that would be scary indeed.  The point here however, is that people will buy something that's only barely less natural than the stuff they're trying to avoid at the doctor's office or the pharmacy.  Lots of medicines are, actually, fairly natural. 

Not all are in impact, however.  That's an interesting thing to.  Modern westerners (Americans and Europeans) spend a lot of money on pharmaceuticals that are designed to frustrate a certain natural cycle.  That's interesting, as that's a medicine that's actually anti-natural.  It's weird to think that there are, undoubtedly, women who eat all natural foods, wear organic cotton, maybe go the "natural remedies store", but take an anti natural pharmaceutical.  Indeed, I have to suspect that the fact such pharmaceuticals are so widely accepted now is that they were introduced in the early 1960s, when there was a huge admiration for anything chemical or medical and people didn't worry much about the impact of anything of that type.  It took Silent Spring and DDT to take us there.

In another area, we've written a lot recently about the "natural law".  Now some would maintain that there's no such thing as a natural law, but the best evidence would certainly be contrary to that. As Chief Justice John Marshall noted in The Antelope, the state can and does create statutes that contravene or stand opposed to the natural law.  But we seem not to even note that, which is interesting.

One of the big ones we live with every day is the institution of the "corporation".  Corporations are legal creatures of the state, and basically they evolve out of the partnership.  Partnerships do comport with nature, ad people combining to act in concert with partners is clearly a natural human activity. But corporations are deemed by law to be "persons" before the law.  I'm not saying that's good, or bad, but it is rather weird, and clearly not natural.

The fact that we've built such big cities that are seperated from nature is unnatural.  Indeed, this entire era in which we are so concerned about living naturally would have had a hard time coming about if this wasn't the case, as people who live more closely to nature, aren't cognizant of that in the same way or to the same extent.  That is not to say that they aren't aware of it, just differently.

It's also not to say that towns and villages aren't natural. They are, and have existed since time immemorial.  But super huge cites, such as we have now, that can only exist with the technological advances we have now, aren't really natural.  They have existed for quite some time, but that doesn't make them natural really.  And certainly the modern cubicle life isn't natural.  Indeed the separation from nature that the city life creates is one of the sources of modern depression and potentially the cause of much that we see in human stress and oddity.

So the point?

To offend everyone in the western world?

No, this is simply one of those observational posts.   I'm afflicted with an analytical mind, by nature, and therefore I'll take an analytical thread where it goes.  And this one amuses me.  We live in an era when people can be really aggressive about being "natural".  But we live in a very unnatural society.  I think it ought to be more natural, truly I do.  But in making that observation, I'm well aware that a lot of the people stomping their feet about being "natural", are hugely unnatural.  A person can be, I suppose, selectively natural.  But you have to be aware of that.  Wearing Birkenstocks while eating a free range yogurt vegan diet makes you anti natural, not natural.  And if you choose going natural, and demand that we go natural as far as possible, you have to separate your politics from your nature, and go where that leads you.  Otherwise, what you have to do is to admit that you feel that accommodations against nature should be made, which is fine, but you should admit that you're doing it so that you are clear and honest about what you are doing, at least to yourself.

Tufts Magazine / fall 2013. "American nations"

Tufts Magazine / fall 2013

Interesting view.  Is it correct?

Friday, July 17, 2015

Feebleness in war; muddled thinking in the face of domestic terrorism

The Republic of Vietnam feared its population for most of the war, but following the defeat of the Communist forces in the Tet Offensive of 1968, it realized that, militarily, the tide had turned and started to plan to issue military weapons to the population out in the countryside, much like Switzerland does with its own population.  It didn't get around to it, but it planned to do it, as it realized at that point, with the war effectively won, as long as the United States continued to supply air power in the event of a North Vietnamese assault, it could trust its population to repel local aggression.  The fact that South Vietnam fell in the face of a massive North Vietnamese assault in 1975, when the United States failed to supply air power, doesn't moot the point, but actually tends to support it.

Switzerland has, of course, done just that for eons.  Israel does something similar, allowing the issuance of military type arms to some of its population in hostile areas, leading to some fairly incongruous photographs of that occurring in some areas, on occasion.  The same policy was pretty effectively followed, no matter what you think of its cause or government, by South Africa before apartheid was thankfully ended, when it faced a domestic terrorism problem in the countryside.

Which leads me to the bonehead comment of the New York Daily News today that today's domestic terrorist attack in Tennessee should lead to tighter gun control.


Terrorism isn't the same as conventional crime, no matter how violent.  It's not even the same as organized crime.  It may be criminal, but it's character is entirely different.

Terrorism is a type of guerrilla war.  Just because it's vile doesn't make it any less so. That's what it is.  Crime is a violation of the law.  War is the extension of politics by other means.  While a terrorist act may be criminal, they're done in the furtherance of political goals.  That's why they occur.  Moreover, no matter how loosely organized, they're done in the furtherance of political goals by some sort of organized entity.  The terrorist acts we've seen recently have been organized, at least in terms of influence, by the Islamic State in Syria and the Levant.  They don't need to have a central command to be responsible for them.  Their goal and means are clear, and the people who sign up as soldiers in their cause can enlist at any time, any where, without ISIL ever knowing it.  And they're not irrational or insane when they do so.

Gun control as a means of controlling violence is of highly dubious utility no matter what so many New Yorkers like to imagine. But as a means of controlling terrorism, it's insane.

The proof is more than ample.  Terrorist have never had any problem obtaining arms. The examples are too numerous to dispute.  The first example of modern terrorism is provided by the Irish Republican Army, with Michael Collins being the architect of a modern terrorist war.   The IRA had no trouble at any point in obtaining small arms, nor did its successor the Provisional IRA.  Nor did the Red Brigades or the Bader Meinhoff Gang.  Nor did the Viet Cong.  Nor did the Front de Libération Nationale.  Nor did the Irgun, Nor has ISIL in France.  Nor will ISIL, and ISIL inspired groups, here.  Such laws may, at best, require a terrorist to undergo more effort, but what they mostly do in this context is disarm the population that that terrorists propose to attack.

And why would they.  Unlike conventional criminals, terrorist share with dedicated volunteer soldiers a willingness to die for their cause, no matter what their cause might be. That's a distinction that's quite different from conventional criminals, which to seek to perpetuate their crimes for personal gain.  Terrorist do not, and often don't expect to live to see the victory they hope for.

With that being their mindset, no obstacle to obtaining arms will be effective. So, in contrast, society has to be prepared to suffer without recourse, surrender, or effectively resist.  We're doing the first right now.

The Second Amendment to the United States Constitution provides that American have the right to keep and bear arms, a right that eastern states in particular like to attack.  It's sometimes snarkily noted that "we don't live on the Frontier anymore, and people don't have to protect themselves against Indian attacks".

Well, perhaps we do.

Average people in Paris found themselves effectively in that situation recently, with no ability to act.  In France, the average citizen can't carry a handgun for protection.  France was ideally set up for an ISIL inspired attack.  Its not that easy in a lot of the United States. And in at least Massachusetts the recent terrorist attack by two individuals had the impact of shutting the city down, something that may have been contributed to by an effectively disarmed population.

Such events are, of course, rare.  Even when they do occur, they actually impact very few people. But they will become more common. This won't be the last domestic terrorist attack that ISIL or ISIL inspired people launch in the United States, or in Europe.  For Americans, those who want to blame everything on the easy availablity of guns should realize that this is a situation that no police force can protect us from, and the military cannot either.  We have to do it ourselves, or be prepared to do it. For European nations that have so effectively disarmed the population, this is even more the case.

Most people, given the option of carrying something, would not.  Indeed, the overwhelming majority of people will not, or even cannot due to occupations that make it impractical.  Even people who might be totally qualified to do so by training, etc., generally will not. But calls to ban things are naive in the extreme.  Mao said that in the guerilla war, the geurilla swam amongst the population like fish.  They do, and even though most of us will never encounter one of the fish, some undoubtedly will in the future.  If even a tiny percentage of the population was capable of defending itself, it would make a difference for everyone.  Not might, it would.  At some point, an armed population is just hard to attack.  That doesn't mean such attacks would stop, but they might be stopped more quickly, or even deterred in some instances.  Day long spectacles like we had in Boston or Paris would likely be rarer.

Or at a bare minimum, government offices, and particularly recruiting stations, ought to have armed men. Why it hasn't become a policy, during a time of terrorist war, to require recruiters to have sidearms in their stations is beyond me.  That's crazy.  Members of the military are now targets everywhere, but they're also amongst the least likely to be armed while in the US.  That policy should end.

Random Snippets: The most dreaded domestic question a lawyer can be asked.

I have matters scheduled out for years, and in a typical day I have things from beginning of the day to the end. And not just the workday, the day.

None the less, like every other lawyer, I get this question at home:  "What's your schedule like today?"

The atomic bomb of interrupting questions.  The day's been planned out time wise like a Swiss watch, and somebody who had something planned is. . . .attempting to pass it on to you at the lat moment.


I suppose it was always so.

Wednesday, July 15, 2015

Is anyone going to read Go Set A Watchman?

I really like the book To Kill A Mockingbird.

I'm not as keen on the film. The movie has achieved iconic status, but frankly it isn't as good as its reputation.  It's not horrible, but frankly it cheapens the book.  All the characters in it, except for Scout, as played by Mary Badham, and Boo Radley, played by Robert Duval, just aren't played that well.  The set, except for the courtroom interiors, aren't done that well either.  Gregory Peck's Atticus Finch practically lacks a human dimension, he's so noble, which isn't the case for Atticus Finch in the novel.  I'd be tempted to say that he's too saintly in the movie, but that's not right either, as an examination of the lives of the saints shows them to be pretty human as well (St. Jerome had a problem with his temper and kept a pet lion, St. Augustine of Hippo had to judge civil matters all day long and then wrote at night, St. Bernadette came from an extremely poor family and struggled with a secret ailment that caused severe pain, St. Peter was married and according to some had a daughter who had a crippling condition, St. Peter and St. Paul had a big falling out and then came back together after reconciling).  Atticus Finch is all noble in a seersucker suit in the movie, but in the book he's a middle class widower who is a lawyer who takes in food items for pay and doesn't always do very well in court.  He's a real lawyer in the book.

And I do like the book.

Which is why I'm not going to read Go Set A Watchman.

Anyone who has been following this story knows that Go Set A Watchman features the same father and daughter that To Kill A Mockingbird does.  Set in the late 1950s, this book, however, we are told, portrays the father differently.  It portrays him as a racist.

Some are arguing that this changes their view of the portrayal of Atticus Finch in To Kill A Mockingbird, but they're missing the point entirely.  The real point is that this book, Go Set A Watchman, isn't a sequel (it was written first).  It's a rejected novel using a character with the same name. But that doesn't make it the same character.

Anyone who has ever written knows that an author rejects some of his own work.  Editors reject more, and when they do that, qutie frankly, they're usually right.  In this case, Harper Lee's editors rejected the novel, and sent her back with suggestions to write a new one.  That new one became To Kill A Mockingbird. This book was intended to be published, and in this form it shouldn't have been.

It's not that a later book by Lee, often wished for, or an earlier book by Lee, isn't worth publishing.  But a rejected work that uses the same names, but not the same characters, is damaging to the better work.  Lee, in writing her second, published, novel apparently rethought her topics and it is widely believed that she based the character of Atticus Finch, in that novel, on her father.  There's no suggestion that the Finch character in the second book was intended to do that, and to do so, would suggest she had a very complicated relationship with her father.

Indeed, one of the things known, but not often really appreciated, is that almost all of the characters in To Kill A Mockingbird are very closely based on real people.  Finch was based on her father.  Scout was based on Lee herself.  Scout's young friend was based on Truman Capote (who based a character in one of his books on her).  Boo Radley, according to Capote, was  based on a young man who in fact lived in their neighborhood.  Lee was a very good writer, but a lot of the effectiveness of her writing in To Kill A Mockingbird was based on the fact that she was writing about people who were extremely familiar to her.  I'd question whether that's true of Go Set A Watchman, which in contrast was written about near contemporary events that I suspect Lee hadn't personally observed to the same extent, and in the same way, that her first published work did.

One of the things about great artists is that not everything they produce is great, but because they are great, we wish to relate everything they do to their greatness.  The best artists of any kind, writers, painters, etc., destroy their failed or inferior works.  There's a reason for that.  This novel, Go Set A Watchman, was written first, and it wasn't worth publishing, according to the original publisher.  She used the same names, but basically new characters, in a new setting, for her new, and now classic, novel.  Go Set A Watchman was intended to be, by the publisher, nothing more than a writing exercise never to see publication.  Lee's later greatness doesn't overcome that fact, and this novel should have been left unpublished.

Railhead: The Coal Train

Railhead: The Coal Train

Something we'll be seeing less of in the future? 

Law Student Rebate

From the New York Times:
Beginning with students entering this year — whether in two-, three- or four-year programs — Brooklyn Law School is offering to repay 15 percent of total tuition costs to those who have not found full-time jobs nine months after graduating. That, according to school officials, is how long it typically takes graduates to get such jobs and, if necessary, to obtain the requisite licenses.
“Knowing you have a little extra security is very comforting and helpful,” said Ms. Friedman, who is from Fair Lawn, N.J.
The introduction of the program, called Bridge to Success, comes as law school graduates across the country face increasing competition in a depressed job market that is only slowly recovering from the economic downturn.
I've read some commentary that the slow down in legal employment is over, but this sure wouldn't seem to support that.

Of course, she can also take comfort that New York has gone to the UBE, so now if she passes the bar she can practice in the over 14 states that have adopted it, more or less, no matter how little she may know about the the law of those states, thereby helping to keep the state of legal employment depressed everywhere, and aiding in the process of spreading less informed legal practice through out the country.

Mid Week At Work: Free classes: Trade and technical

Tuesday, July 14, 2015

But is it a Power Wagon?

The Legacy Power Wagon was written up in Auto Week.

But is it a real Power Wagon?

I have my doubts.  Indeed, as much as I hate to say it, as it looks so nice, I don't think it is.  Indeed, I think this defines it:

And power? Oh man. On most conversions, the original engine is swapped out for a 585-hp, 550-lb-ft supercharged 6.2-liter Chevy LSA V8 retuned for mid-range torque.
“From 2,000 to 4,500 rpm, it pulls like an animal,” said Bent.  
There are other engines available, too. For instance, there are those who claim putting a Chevy engine in a Dodge Power Wagon is sacrilege.
“So for them we offer a stroked small-block Chrysler. It’s available, but not one customer of the 60 we’ve delivered has asked for the Chrysler.”

You can also order a 6.2-liter, 430-hp, 420-lb-ft Chevrolet LS3; a 7.0-liter, 430-hp, 500-lb-ft Chrysler 426; or a 170-hp, 480-lb-ft 3.9-liter Cummins turbo-diesel. The Chevies get a four-speed automatic, while the Chrysler and Cummins get five-speed manuals. But most people get the LSA Chevy V8.
“The LSA engine, transmission and computers come straight from Chevy Performance,” Bent said. “They’re simple, they have a ‘connect-and-cruise’ package that makes them easy and simple to install and they come with a two-year, 50,000-mile warranty that they actually stand behind.”
If the engine and transmission come from Chevy Performance, well, isn't it a Chevrolet?  It would seem to be just a Power Wagon body and set of axles.  Same with the other conversions, it seems to go to far.

Perhaps that's because I like the original trucks. They were slow, with flathead 6 cylinder engines as a rule, but they were low geared and had piles of torque. They weren't fast as they didn't need to be.

I feel like these miss the point.

Monday, July 13, 2015

And then there's Will: Lex Anteinternet: The Natural Law

Interestingly, on the same morning that this appeared here on our blog; Lex Anteinternet: The Natural Law: (which appears immediately below this), George F. Will actually argued a similar position in his column.  Unfortunately, I'm not paid by the Washington Post for the opinions expressed here.

I was just going to note this as a comment to the just published item, but because Will's position comes from a different angle, I'll just make a brief post here instead.  Will's column focuses on a line in Justice Robert's Obegefell dissent  in which he criticizes the majority for taking a position he related to the Lochner v. New York decision of 1905.  That case came to the Supreme Court when Lochner, a small baker, challenged a New York working hours law.   The Court struck down the law as unconstitutional but in 1936 came back and overturned Lochner.

Will doesn't like that Lochner was overturned and has written on that before, his concept being that its a trampling on individual rights without constitutional authority.  As a true Conservative, that position on Will's part makes sense, although I frankly think his reasoning is weak here.  At any rate, he notes in his current article that Robert's fails to appreciate that Lochner, which Roberts doesn't like and has cited in a negative fashion before, is based on "natural rights", i.e., Natural Law.

I disagree with Will that the type of law reflected in Lochner is unconstitutional, or that its necessarily against the Natural Law.  But it's interesting to see somebody else citing Natural Law in the public venue.  Will would even go so far as to ask any future Supreme Court nominees if they agree with the natural rights concept expressed in Lochner.

The Natural Law

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
The Declaration of Independence, which specifically cited Natural Law as a basis for declaring the colonies to be independent from the United Kingdom.
One of the things that has become pretty evident due to the Obegefell decision, but which was really evident before (this draft started about a month ago, before the recent Supreme Court decisions came out) is how anemic American legal education and thinking has become.  Law Schools are pretty much trade schools nowadays, and they're producing technicians.  I suppose that's why law schools are generally enthusiastic about the UBE, as a school that educated machinists or mechanics, fine occupations I'd note, would want their graduates to have "transportable" degrees.  The law is pretty much viewed that way as a profession now.  Not a "learned profession", as it once was, but a technical skill without a philosophic origin or inclination.

But law is supposed to be different.  The degree purports to be a "doctorate" after all, and the old theory was that lawyers were educated not only in the law, but also in the philosophy and theory of law.  Oh, most or at least a lot of, law schools probably have a class on jurisprudence (UW did not when I was there), but as jurisprudence doesn't make it to the UBE, I doubt very many people take it.  It's really a gaping hole in our legal education.

In contrast, there was a time when lawyers actually pondered such things.  Justice Bloom, a long ago Wyoming Supreme Court justice, left his diaries to UW and they're filled with his pondering on Roman Law.  Now, I'm not advocating adopting the Code Justinian (the Corpus Juris Civilis), but I am advocating knowing the history and origin of law, and its theories.  If a person doesn't understand the concept of Roman Law, the concept of Common Law, and their origins, they ought to, assuming they are lawyers, and particularly if they are judges.

And I'm also advocating that lawyers at a bare minimum be taught and required to learn, and understand, the theory of law.  If they don't, then there is really no law at all. And right now, that pretty much seems to be the case.  Recent opinions by the United States Supreme Court are disappointing in these regards, and seem to suggest that the Court has no concept of the law beyond vague grasping of trying to do, what it thinks is the right thing, or the next thing, or what people would want to do if they knew what they should want.

So, I think they should learn about Natural Law.

Natural Law is an ancient concept, and frankly probably goes back as far as man.  In writings, however, we can see it referred to at least as early as Plato, and we also see it at work amongst the Romans.  It's famously associated with St. Thomas Aquinas, but contrary to what some sneering commenters, who hold a "progressive" authoritarian concept of the law, it vastly predates him as a concept.

There are entire treatises on Natural Law, and this isn't intended to be one, but the basic concept is simple enough. We observe, by merely existing, that there is a nature and that nature has a natural order.  That natural order is the Natural Law.  Things sometimes within that order depart from it, but those exceptions, unless widespread enough to constitute part of nature themselves, do not redefine it. Indeed, as this is a legal concept, we accept that there things which are disordered as they depart from the Natural Law.

This applies to the affairs of man in the context of observed behavior.  All men, in all societies, everywhere, have a concept that unrestricted homicide is wrong.  They also all have the concept that homicide in defense of themselves or their family (tribe) is not.  All have a concept of property ownership, and that taking a person's property is generally wrong, but all also have a concept that certain property belongs to nobody, or rather everybody.  All societies have a concept of a male/female union that's inviolate under normal circumstances, and which trespassing upon can result in severe consequences. 

This isn't all, by any means, but it provides a common assortment. Whether a person is a cafe crawler in France, or a jungle dweller in the Philippines, this basic set of laws is recognized.  Where not written into the law, it's strongly written into social custom to the point of being the law.  Indeed, from time to time here I've mentioned "the old law", which is an aspect of this.

The origin of the Natural Law, in modern times, has been what has upset social liberals and caused the Natural Law to be forgotten.  In Thomistic Theology, or theology in general, the Natural Law is divine in origin and inscribed on the hearts of every human being.  The signors of the Declaration of Independence, and the drafters of the Constitution, understood it in that context, although loosely as they were not all of the same religion, and living during the Enlightenment, as they did, some were not Christians at all. Starting with Karl Marx and Frederic Engels, social liberals have been at war with that concept and have, indeed, sanctioned huge departures from the Natural Law.  But that's confusing the thesis.  Philosophers who predated St. Thomas, and indeed who predated Christ, wrote on the Natural Law, and indeed there really isn't any ancient philosophy anywhere that didn't recognize it.  A principal difference, in fact, of European philosophy and Oriental philosophy is that Europeans held that the Natural Law could be observed, and hence discerned, while Orientals held that the Natural Law could be observed, and need not be further discerned.

Natural Law was universally understood to exist and form a citable form of law by the early philosophers, and perhaps more importantly for our discussion here, the Courts and lawyers of the United States early in its history.  Frequent citation to the Natural Law can be found in the briefs submitted for argument in front of the United States Supreme Court in the 19th Century and there was no real effort to describe what it was, as it was widely understood to both exist and have a common meaning.

Citations to natural law at that point in time cited three types as clearly existing, only one of which tends to be still cited by the Court now, that being physical laws (as in water flows down hill).  The Courts, outside of physical laws, spoke frequently of "the natural law of nations" and "natural law", with the latter being what we are speaking about here, and the former of which was a common law of nations which also included natural law elements.

Interestingly the Court felt just the opposite of today's court.  It not only recognized Natural Law, but it also recognized that a nation's law could violate Natural Law, and where the United State's laws violated Natural Law, no matter how repugnant the violation, the Court had no choice but to uphold the written law of the United States.  For example, in a case called The Antelope, which involved a slave ship of that name, the Court held:
The question, whether the slave trade is prohibited by the law of nations has been seriously propounded, and both the affirmative and negative of the proposition have been maintained with equal earnestness. 
That it is contrary to the law of nature will scarcely be denied. That every man has a natural right to the fruits of his own labour, is generally admitted; and that no other person can rightfully deprive him of those fruits, and appropriate them against his will, seems to be the necessary result of this admission. But from the earliest times war has existed, and war confers rights in which all have acquiesced. Among the most enlightened nations of antiquity, one of these was, that the victor might enslave the vanquished. This, which was the usage of all, could not be pronounced repugnant to the law of nations, which is certainly to be tried by the test of neral usage. That which has received the assent of all, must be the law of all. 
Slavery, then, has its origin in force; but as the world has agreed that it is a legitimate result of force, the state of things which is thus produced by general consent, cannot be pronounced unlawful. 
Throughout Christendom, this harsh rule has been exploded, and war is no longer considered as giving a right to enslave captives. But this triumph of humanity has not been universal. The parties to the modern law of nations do not propagate their principles by force; and Africa has not yet adopted them. Throughout the whole extent of that immense continent, so far as we know its history, it is still the law of nations that prisoners are slaves. Can those who have themselves renounced this law, be permitted to participate in its effects by purchasing the beings who are its victims? 
Whatever might be the answer of a moralist to this question, a jurist must search for its legal solution, in those principles of action which are sanctioned by the usages, the national acts, and the general assent, of that portion of the world of which he considers himself as a part, and to whose law the appeal is made.
The Antelope, 23 U.S. 66 (1825), John Marshall, holding, amongst other things, that slavery was contrary to the natural law, but not the statutory law of the United States.  

That's a remarkable opinion.  Marshall clearly knew natural law, and without citing any religious text at all, he held that slavery was contrary to it.  He also didn't feel shy about noting the expansion of the phenomenon of the written law evolving to comport with the natural law, but he didn't feel the Court could take that into account.  Therefore, not only did Marshall recognize a natural law, but he also rejected the "evolution" of the law theory recently espoused by Justice Kennedy in the Obegefell decision.  The decision here was not unique in early US  Supreme Court opinions.
Thus, it may happen, that the occupant, who may have enriched himself to any amount, by the natural, as well as the industrial products of land, to which he had no legal title, (as by the sale of timber, coal, ore, or the like,) is accountable for no part of those profits but such as accrued after suit brought; and, on the other hand, may demand full remuneration for all the improvements made upon the land, although they were placed there by means of those very profits, in violation of that maxim of equity, and of natural law, nemo debet locupletari aliena jactura.
Green v. Biddle, 23 US 1 (1823).
The positive law of nations has ordained the rule; the natural law of nations has assigned the reasons on which it is founded; and Rutherforth, in his Institutes, explains those reasons, which arise from the amenability of governments to each other. A cruiser is amenable only to the government by whom he is commissioned; that government is amenable to the power whose subjects are injured by him; and after the ordinary prize judicature is exhausted, they are to apply to their own sovereign for redress. The principal object of that judicature is the examination into the conduct of the captors. The question of property is merely incidental
L'Invincible, 14 US 238 (1816).

After the turn of the Century, citations to Natural Law really start to drop off. I'm not sure of why, but two notable features of this era was the rise of efforts to regularize legal education, lead by the American Bar Association, and the onset of the Progressive Era.  The latter probably had more to do with it than the former.

Progressivism had its origins prior to the Civil War with the abolitionist movement, and perhaps ultimately ironically, it found much of its philosophic base in both Natural Law and religion.  After Emancipation the movement split, however, with the core of the group remaining focused on the plight of freed slaves, but with the more radical elements taking up other causes.  By the late 19th Century it was achieving results and it really came into full flower when Theodore Roosevelt became President.

In my mind, TR was a great President, but he's poorly understood in many ways and he never had a great respect for the law.  Indeed, when he was a law student, which he was only briefly, he was notorious for interrupting discussions on the law with inquiries about what should be regarded as justice.  TR skirted the Constitution in many instances and did not feel retrained or guilty in doing so.  Following him, the Supreme Court began to be more of an active institution itself, although it would take decades for that to really come fully into effect.  However, by mid 20th Century the Court was rejecting appeals to Natural Law and seemingly basing its decisions on other things, with that other thing being its concept of what the law ought to be.

Ironically, at the same time that the Natural Law has been retreating from the Court and forgotten by the law, it's been adopted to some degree by the population.  Citations to Natural Law in some quarters are common.  Aldo Leopold's The Land Ethic is a citation to Natural Law, in nature and human affairs.  Conservation organizations, like The Sierra Club, or The Theodore Roosevelt Conservation Initiative, or The Land Conservatory, are based on a concept of Natural Law.  Indeed, some radical ones, such as Greenpeace, are entirely based on that concept to a very radical degree, adopting the thesis that Natural Law trumps human law where the two do not agree.  Philosophers like Michael Pollin basically argue for a concept of the Natural Law.  Very loosely, some statutory law, like The Clean Water Act or The Endangered Species Act, exist with a concept of Natural Law in the background.  People who were debating same gender marriage, up until the Court attempted to end the debate, often argued based on concepts of the Natural Law.

The Court, however, oddly can't seem to find it.

Most recently, of course, we've seen this in Obegefell, which is pretty much based on theory that concepts of fairness and marriage have evolved, even if the electorate in a large number of states has expressly rejected that idea, and therefore the Court will force it.  The opinion comes very close to suggesting that the opinions of the right thinking people have evolved, and the Court therefore is going to do for the country what the country would do for itself, and would do soon anyway, if the country knew what was good for it.  In essence, the Court here acts in the role of Plato's ideal king against the rude mob, for the rude mob's benefit.  A pretty scary proposition.  In essence it adopts the thesis that there is no law, save the law the Court says exists. 

But how does that hold up under natural law?

Not well at all.

The ultimate problem with this is that our entire system of laws is based on a concept of Natural Law, and if we take that out, the law lacks a foundation.  At that point, attempts to substitute one such as the Court has done rely, at best, on a heavily weakened Social Contract theory of law.  While that theory is at least some sort of a theory, it's a weak one at best.  Social Contract advocates argue that the law is one vast contract between all of us human beings, or at least all of us human beings in the country, and the law ought to be determined from that.  The problem with that theory, besides that the Court doesn't begin to apply that evenly, is that the Court only uses "evolving concept" type logic when it wants to alter the state of the law from what a majority of people in some places want to do. It would actually make much more sense to argue Natural Law at that point, as Marshall did in The Antelope, but do what Marshall didn't do and over ride the statutory law, than it does to rely on some sort of social contract theory.  

Some may ask why any of this matters, of course.  But law is somewhat like currency.  It has to be based on something in order to be worth anything.  I know that this is a poor argument in terms of our current currency, which is based only on a promise that it's worth something, but it is nonetheless true.  Natural Law provides a basis for the law, and its something that almost everyone concedes existing at some level.  If it doesn't exist, all law is actually wholly meaningless, and based only on who can punish us and who cannot, which is the pure application of both the Economic Theory of Law and the Marxist Theory of Law.  Might makes right, in other words.  That's the antithesis of the American concept of law and stands squarely against what we think we stand for.  The Social Contract Theory of Law, while less vile, basically is an argument for Athenian democracy, which the Constitution actually was drafted in part to restrain.

All of this goes to argue that the current state of legal knowledge is a bit sad, and in need of reform if law is to be a "learned profession", rather than a mere economic based trade.

Wednesday, July 8, 2015

Travelling through (on) time.

I recently had the occasion to ride in a Ford Trimotor airplane.

Ford Trimotor at the Natrona County International Airport.

I don't like flying much.  I do a lot of it, and it's not like I'm fearful of doing it, but I get tired of being cramped in planes and I generally do not enjoy riding in them.  I've flown too much to like riding in passenger planes which is in part as I've had too many rides that were pretty rough, so I don't have the comfort of the illusion that rough skies are an abnormality.

I like airplanes a lot, however, and I couldn't have passed up on the opportunity to ride such a classic aircraft.  My son in particular finds it odd that I like aircraft, which I do a great deal, but I don't like flying at all, and personally have no desire to learn how to fly, or to even ride as a passenger, normally.  I couldn't pass up on a Trimotor however.  The Ford was one of the really classic early airliners, maybe the earliest really substantial ones along with the Fokker Trimotor.  The Ford, however, being built by the automobile company, was really innovative and was the first such airplane to have all metal construction. The Fokker, which saw a fair amount of use in the United States, did not.  It had a wood laminate frame, which is what failed in the crash that resulted in the death of Knute Rockne.

Ford Trimotors served Casper in the early days of air travel, flying out of Wardwell Field, which is now the town of Bar Nunn. The old runways are streets. So it occurred to me after riding in the plane, and taking photographs of Casper as we flew over it, that we were truly riding on history, and in a way riding through history.  The plane offers an interesting comparison and contrast.

Former railroad bridge across the North Platte River which is now a foot bridge. This bridge entered the former Standard Oil Refinery, which is now a golf course.  The refinery closed down in the 1980s, a closure that was economical devastating to an already suffering Casper.

Above is  the area of Mills and Casper where a former railroad bridge now serves as a footbridge into the Three Crowns Golf Course. This is a scene that has definitely changed since the late 20s and early 30s.  Three Crowns is where the former Standard Oil Refinery was, which was once so large it was on both sides of the North Platte River.  It wouldn't have surprised me if a Ford Trimotor serving Casper would have flown over this in its day, but the passengers wouldn't have seen the same thing here at that time, when there were three refineries operating in Casper.  Now there's just one.

Former railroad bridge across the North Platte linking the footpath on the Platte River Parkway between Casper and Mills. The Parkway runs for miles along the North Platte, and here it runs on part of the old rail line.  On the other side of the Platte River Parkway, in Casper, a footpath resumes on what had been the same rail line.

The former Standard Oil Refiner was huge.  I'm not certain how the rail service for the refinery worked, but I do think that in this view, we're basically looking at what had been a Great Northwestern line.  That line was abandoned quite some time ago, and now most of it, in Casper, is a footpath, including this railroad bridge. So, if we'd been looking down in, say, 1930, we'd be seeing a rail line that we no longer can.  The Burlington Northern must have served the refinery as well, but I'm not sure how.  In its heyday, the refinery was on both sides of the river, so perhaps that's how.

Casper, east of Three Crowns, and what was east of the Standard Oil Refinery.  Much of this would have looked the same in the 1920s and 30s.

Natrona County High School, where I, my wife, and my father, all went to high school.  My kids go there now.  The houses in the surrounding neighborhood are as old as, or older than, the school.

The flight also went over the area of residential Casper that is where many older houses, and Natrona County High School, are located. The school itself is particularly interesting in this context, as it was built in 1923 so it predates the Ford Trimotor by a few years.  A person flying over Casper at any time after 1923 may very well have seen the school.  However, the grounds haven't remained exactly the same over that time.  A road that originally went directly in front of the school was wisely removed.  The parking lots have expanded significantly over time, as more and more students started driving to school (I walked to school when I went t here in the late 1970s and early 1980s).  And now a huge addition to the school is being built, which is visible in this photograph. An enormous field house has already been built.  However, in one way this view of NC is more like that of 1923 than at any time up until last year, as the swimming pool, which was added a few years after it was built, has been sadly torn down for the new addition.  Voters turned down a bond to include a new pool in the huge new field house that's been built, although it could easily have housed it.  Ironically, the original indoor pool was completely funded by taxes passed by the voters of that era.

Washington Park

The flight also went over Washington Park, one of the largest parks in Casper and one of the town's oldest.  The park includes, as can be seen, a swimming pool, a band shell, tennis courts, and a baseball field.

I know that he features of this park are old, in the context of Casper, but I"m not quite sure how old. The band shell was a WPA project as was a wall with battlements, so perhaps most of the features of this park date from the 1930s.  I suspect so.  If so, then this view is one that a passenger in a plane of this type might have seen as well.  The residential neighborhood is also old, so this view hasn't changed much.

Here we start to see a really old section of Casper, including the Burlington Northern Railway Depot, which was built in 1916 during a construction boom in Casper caused by the First World War. This scene depicts a fair number of buildings that dated back to that time, but quite a few have also come down, to make room for parking lots, and some new ones have been built over time.  One of the buildings in this photographs is hte Casper Creamery, which my family once owned.

Part of the Burlington rail yard, including a bridge over the North Platte.

The scene immediately above shows a fair amount of Casper's lower downtown, including the BN depot.  It also shows a number of "high rise" buildings that date back to the teens, although some have been substantially reworked and one is a newer building, the Federal building, that was built in the 1970s.  A fountain on the City of Casper's lot, at the city hall built in the 1970s, is visible.  The green area in the middle of the photograph is Pioneer Park, which dates back quite some time and existed well before the teens. The courthouse looking building across from it is the old Natrona County Courthouse built by the WPA in the 1930s, and a five story brick building to its upper left is the current courthouse, which ironically was built in 1923, and so it predates this airplane.  Another five or so story building across from it was originally a hotel of the same general vintage.  At least one really old three story building appears that was built in the 1890s.  Of course, many other older buildings have been torn down, and new ones have been built up.

Here too we see the old Natrona County Courthouse, but we also see immediately behind it the Hall of Justice, which was built in the 1970s for the county courts and the jail.  The jail is no longer there, and county court has yielded to circuit court, which is not in this building but rather in the Townsend.  To the right, the "Sandbar" district of Casper is visible, which is now business and housing, but in its heyday was a really seedy and infamous area of Casper. Even when I was a kid, it was dicey until it was generally torn down in the 1970s for housing projects.

Sandbar district, but all new construction except for the rail line.

But some things haven't changed much, as in the shot above of the prairie just outside of Casper.

Cattle grazing just outside of town.

Lex Anteinternet: Random Snippets: The stuff in the cellar

Lex Anteinternet: Random Snippets: The stuff in the cellar: The BBC reports that German police have removed a Panther tank from some fellow's cellar:   Police in northern Germany have seized a Wo...
For those who seek to take up this collecting challenge and not let the North Germans win. . :

Sherman Tank For Sale.

Mid Week At Work: Free Classes for Adults

Monday, July 6, 2015

Random Snippets: The stuff in the cellar

The BBC reports that German police have removed a Panther tank from some fellow's cellar:  
Police in northern Germany have seized a World War Two tank which was being kept in a pensioner's cellar.
The Panther tank was removed from the 78-year-old's house in the town of Heikendorf, along with a variety of other military equipment, including a torpedo and an anti-aircraft gun, Der Tagesspiegel website reports. It wasn't an easy job to get it all out - the army had to be called in with modern-day tanks to haul the Panther from its cellar. It took about 20 soldiers almost nine hours to extract the tank - which was without its tracks - and push it onto a low-loader, the report says. As the surreal scene unfolded, local residents gathered at the end of the driveway to watch.
Prosecutors in the nearby city of Kiel are investigating whether the man's military collection violates Germany's War Weapons Control Act. But his lawyer says the weapons are no longer functional, therefore shouldn't be restricted.
He also had a 88 on an anti aircraft gun mount. 

Man, what a bunch of spoil sports. If you have a Panther in your basement, I think they ought to let you keep it. He'd apparently fired it up and driven it around town about 30 years ago in heavy snow fall.

4th of July Music

4th of July Music

From 1916 and 1917.

The Big Picture: The River

Lex Anteinternet: Judical Coup D'Etat. Why every American, irrespec...

Lex Anteinternet: Judical Coup D'Etat. Why every American, irrespec...: SPQR Senātus Populus que Rōmānus Translated, the Senate and People of Rome.  The motto of the Roman Empire, w hose legions marched un...
Following on Obegefell, the Supreme Court, again by a 5 to 4 vote, acted again clearly outside the Constitution in Arizona State Legislature v. Arizona Independent Redistricting Commission.

This case surrounds an Arizona referendum in which Arizona's voters determined to create a non partisan commission for election distracting.  Frankly, I think that was a very good move, as election redistricting in many states has achieved absurd anti democratic results. But the Constitution is quite clear, this is undoubtedly something only Congress can do.

Not to worry, said the five.  Where the Constitution says "legislature", it doesn't mean it, but any process by the states.

That's baloney.

As opposed to Obegefell, at least this baloney is sliced in favor of democracy, where the Court chooses to allow us to have it. But it's baloney nonetheless.

Sparring Jurist: The Federal bench blogs it out.

For those who wonder if a lawyer should be writing a blog (blawg?) let me note that several Federal judges do and others write op-eds.

That's right, the appointed for life members of the quasi ruling class, post Obegefell, blog and write, which is a comforting thing in some ways, and certainly interesting.  And they're duking it out with each other in print in some circumstances.

First we have Judge Posner, one of the most quoted, stuck on the bench never going to the Supreme Court jurists of all time, who wrote an oped in Slate in which he accused Roberts, in his dissent, of being bigoted and heartless.  In fairness, Posner is frequently cited as a great jurist for some reason (I'm not entirely sure why, but he is).  Posner was for years considered a potential Supreme Court nominee, but he's never been nominated, and at this point, he's not going to be.  He occupies a position as an appellate judge on the 7th Circuit Court of Appeals, at age 76 (yes, once again, a geriatric Federal judge).  Posner got owly about Justice Scalia's dissent in Obegefall.  Posner, falling into The White Man's Burden logic, got upset about Justice Robert's citation to ancient peoples as having the same concept of marriage as we did, up until last week.  In so doing, Judge Posner stated:
We’re pretty sure we’re not any of the above. And most of us are not convinced that what’s good enough for the Bushmen, the Carthaginians, and the Aztecs should be good enough for us. Ah, the millennia! Ah, the wisdom of ages! How arrogant it would be to think we knew more than the Aztecs—we who don’t even know how to cut a person’s heart out of his chest while’s he still alive, a maneuver they were experts at.
Posner was, in my mind, being petty and misleading in this comment, and apparently I'm not the only one who thought that regarding his article.   U.S. District Judge Richard Kopf of the 5th Circuit, who blogs, who admits unabashed admiration for Posner, commented on his blog:
No heartlessness. No bigotry. Instead, as Barrett stresses, “Roberts was notably gracious toward the gay couples who challenged state same-sex marriage bans.”

Posner’s assertion that Chief Robert’s dissent reflects a cold heart plus bigotry is a vicious lie–and Posner knows it. Why he lied in the Slate article is a mystery.
Judge Kopf also had interesting words for the Justice Sutton, of the 6th Circuit, however, as he noted: 
I continue to be enraged by Judge Sutton’s decision. He unnecessarily forced the Supreme Court to take this case. In doing so, Sutton harmed the Court as an institution. He should have cared more about the legitimacy of the Supreme Court than he cared about his idiosyncratic beliefs that were shared by no one else in the other Circuits.
I disagree with Kopf in Sutton's views being idiosyncratic, and actually Sutton wasn't alone in his views in judicial opinions   But Kopf here has noted what I did, that the Supreme Court was harmed by this decision. And that harm, in my view, extends not only to the Supreme Court, but the entire country.

It's always assumed that Supreme Court decisions have a certain fini quality to them. That isn't always true.  It's already proving not to be true in this instance, with Federal judges now making comments about one another in print, and even one Supreme Court justice mentioning this case a second time in a second oral dissent following this case.  In the end, we're going to get less of a court, or more of one, and it will be the fault of this decision.  This court should have re-read John Marshall.

Monday at the Bar: Courthouses of the West: Wyoming Supreme Court

Wyoming Supreme Court

Sunday, July 5, 2015

The Greek Secret Weapon?

In the lead up on the Greek referendum on the Greek debt, I saw this fairly amazing headline:
Greek villagers’ secret weapon: Grow your own food 
Wow, I thought, what will the Greeks think of next.  One of the oldest farming cultures in the Mediterranean and they can grow their own food.

Okay, that was snarky, and unfair too. The headline writers for stuff usually are the same people as the authors, and the article didn't really mean to suggest that gardening was a Greek secret.

Still, it's surprising that this would have been regarded as really sort of amazing, and perhaps it tells us something about the extent to which Greece, traditionally an agrarian society, still is.  One Greek interviewed stated:
“I have my lettuce, my onions, I have my hens, my birds, I will manage,” he said, even though he can no longer access his full pension payment because of government controls imposed six days ago. “We will manage for a period of time, I don’t know, two months, maybe three months, because I also want to give to our relatives. If they are suffering, I cannot leave them like this, isn’t that so?”
Most Americans couldn't do that.  It's interesting that fair number of Greeks, apparently, can.

Read more here:

Sunday Morning Scene: Churches of the West: Salvation Army Church, Salt Lake City Utah

Churches of the West: Salvation Army Church, Salt Lake City Utah:

This poor photograph was taken from a moving car. It depicts the Salvation Army Church in Salt Lake City Utah. I believe this to be the only classically styled church belonging to the Salvation Army that I have ever seen.

Thursday, July 2, 2015

Judical Coup D'Etat. Why every American, irrespective of position, ought to cringe over Obergefell

Senātus Populus que Rōmānus
Translated, the Senate and People of Rome. 
The motto of the Roman Empire, whose legions marched under that banner in service of its Emperors.


This isn't a post about same gender marriage.

If a person wants to debate that, go elsewhere, as this isn't that post.

This is a post about a court usurping legislative power.

As anyone following the news well knows, in a five to four decision, the United States Supreme Court decided in Obergefell v. Hodges that the United States Constitution, which doesn't include the word "marriage" anywhere within it, and which was written at a time when same gender attraction was uniformly regarded as a horrible personal vice, guarantees the rights of people with that inclination to contract a marriage to a person of the same gender.   The decision, which everyone knows is not really based on a true reading of the Constitution but on a liberal interpretation of what ought to be done, is being widely celebrated by those who have been backing this fairly radical social experiment.  In some ways the most telling comment in the case was the following:
The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era
That's innocuous language presents a stunning proposition.  Rights come not from history an tradition, and the court doesn't even mention the Natural Law, which is where the drafters of all of our original organic documents understood them to come from.  No, they "rise" from "a better informed understanding of how constitutional imperatives define a liberty. . . "  And who has that "better informed understanding"?  Not the national or state legislatures, apparently, which we understood to be able to legally create rights and privileges.  No, nine, or in this case five, mostly very old people who have very little connection with the average lives of Americans whose rights they purport to be creating, or which they may be destroying.  Or, as Chief Justice John Roberts noted:
Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise ‘neither force nor will but merely judgment.
Or as the much castigated Justice Scalia stated, in keeping with the anniversary we note here today:
This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.
Those to whom this new right is conferred, perhaps most of all, ought to pause to consider what has occurred. 

Indeed, it ought to frighten every American.  There ought not to be a parade by any group of people on the street, there ought to be some really sober reflection on what's occurred, as its really scary.  As Justice Alito noted:
Today’s decision will also have a fundamental effect on this Court and its ability to uphold the rule of law. If a bare majority of Justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate
A common claim is that this now makes same gender marriage "the law of the land".  And so it does.  But the next common claim, that this has been decided "forever" (even excusing the human folly to believe that the trends of their own era or even the governments and nations of the era in which they live are somehow permanent), is far from true.  Many Supreme Court pronouncements barely outlive the justices who wrote them, and if history in this country has shown us anything, there isn't a single Constitutional "right" of any kind that isn't subject to being rewritten, reduced, and eliminated.

And this has proven to be most particularly the case concerning social decisions, which are so thinly based on the law in the first place.  Indeed, Justice Roberts cited a blistering legal analysis of the folly of Wade doing that, by none other than Ruther Bader Ginsberg, in his dissent.

It's easy to see why.  Nobody likes to have the vote taken from them.  When the vote is taken in a coup, the lousing side sits and stews until it has the chance to vote again, and that chance usually comes.

The case that this is most analogous to is of course the legendary Wade decision which, at the time, overrode the law of many states and advanced a controversial view that had gained traction in some states concerning the point at which life began vs the rights of an individual.  The case concerned a massive metaphysical and philosophical question of the type that no court can really handle, and the Court handled it really badly.  The case did indeed seem to have worked a permanent change for about the first ten years, or maybe even twenty, of its existence, but after that, the weak logic of the case began to erode on its own accord.  The only thing that keeps the decision in place at all is the basic fact that everyone feels the current five to four split on the Court, in which Anthony Kennedy is the repeated tie breaker, probably operates so that if the matter returned to the court, some preservation of its holding would remain, but not all of it. The whole case might, in fact, fall, and Legislatures now have little trepidation about passing laws in this area which 20 years ago they would have feared to.  Even liberal publications, such as The New Republic, have urged its complete repeal, recognizing that the main function of the decision has been to make their view appear to be anemic and anti democratic, while the opposition has effectively organized and has taken it on. What political liberals of the era deemed in impossible has become a reality, the decision holds by a thread, most people don't like the impact, and in the society, the opposing view has become the majority one.

My prediction, which I know is contrary to the current belief, is that the same will effectively happen here.  The Obergefell case is really part of a long standing trend in American law which has weakened the institution of marriage and what being married means.  Without going into it in depth, the first blows were really struck when no fault divorce laws became common in the United States, making obtaining a divorce much easier but also making it much easier for people to escape responsibility for everything in this arena.. The second came when social programs had the unintended effect of allowing men to easily escape the burdens of caring for children they hadn't planned for.  Combined, the institution of marriage has been eroding for some time.  This most recent development really reflects that, as it reflects a current faddish view of marriage that it exist in order to bring fulfillment or happiness, or has something to do with love.  All of that might reflect the conditions that marriage may bring (or might not), but it doesn't go to the reason for the institution, which exists in order to promote the relationship between couples that are engaged in activities that naturally lead to children.  That's in the interest of the state, the rest of it really isn't.  That fact has indeed begun to come back into focus in recent years, but like the back side of a wave, it hasn't risen to the crest yet.  The crest of the wave is still at the happiness and fulfillment peak, although certainly not exclusively so.

Where this all leads isn't really yet known, and whether a person likes the reality of the history of marriage or not, or feels it should be something else or not. as a legal matter, the facts are what they are.  Now five of the justices of the U.S. Supreme Court have terminated the debate, they think, and chosen to force a social view on a nation that was debating it.  If the current trend had held, ironically, the view now forced on the nation by judicial fiat would have become the dominant law anyhow, by legislative process.  Now, however, the court had killed the legislative process and taken the matter out of the hands of legislators and voters.  Why they did this, when they clearly did not have to, is a question that has to be asked.

That's happened, of course, before, but when it does, the trend is uniformly bad for the nation. Those who are deprived of the vote feel, justifiably, cheated, and they don't accept the view that the "majority" wants this.  They struggle against it.  And in that process, those who have achieved victory by judicial fiat at first loudly proclaim their victory, and then loudly complaint about those who will not accept it.  If the prior examples are applicable, they then begin to loose ground, although its usually a slow process.

I'm not sure that the process will be that slow here.  The Obergefell decision comes as close to a coup in the United States as we've ever seen.  We've never had an instance in this country before in which the Court has actually ruled on a definition of an institution that most humans participate in, which is so fundamental to us, and which grossly predates the existence of our own country. That they'd do so is stunningly arrogant, even if you view that the achieved result is the one that should have happened legislatively.


Liberty, Equality, Fraternity 
The battle cry of the French revolution, and the ideals under which Imperial France under a military dictator marched under the revolutionary Tri Color on Europe. 


The common wisdom right now is that the public will now accept this, where it hadn't.  I doubt it will, and already those who appeared defeated are beginning to resist and rally, with proposals that will have to be taken seriously in short order.  A real reaction is likely to be a massive level of contempt for a Court which was already not particularly well liked by much of the nation, and which now shows itself capable of acting in a Napoleonic fashion.  Like the little emperor, who marched on Europe in the name of liberal ideals, liberty, quality and fraternity, five robed emperors, likewise sitting for life, have decreed that legislatures don't matter in something in which they very much do. And, just like the little emperor, these emperors amazingly do so in interrupting what was seemingly a trend in the same direction they went anyhow.  They clearly need not have done it under the law, and even if they felt their decision to be a socially correct one, they could have waited for it to unfold.  A person doesn't need to be hasty in overturning a norm that's as old as human history.

Unless, of course, you are at death's door yourself and feel that the world cannot progress without you.  Does the Court feel that way?  I hope not, but at least Ruth Bader Ginsberg has made a statement reminiscent of  Charles D'Gaulle to the effect that if she was to step down, who would replace her. Well, that likely wouldn't be a problem. And frankly, if she's to keep the balance of the body as it is, she probably should have done that earlier in President Obama's administration when a liberal replacement was assured.  Now that would be pretty questionable.

Indeed, one thing we know for certain about the current Supreme Court is that the current nine members cannot possibly all live through the next Presidential term.  Death will claim at least one of them, if not more (and it will probably be more).  Four of the justices are over 70 years old, with Ginsberg being 82.  Only one is under 60.  Three out of the four justices over 70 voted in the majority which effectively means that the oldest section of the court, and the section most likely to be removed by death or illness, is the majority (but the youngest justice also voted with the majority, it should be noted).  Three out of the four in the minority voted against it, with the second to youngest on the court included in that group.  Should all nine live through the next Presidential term, particularly a two term Presidency, would be a stunning run contrary to the law of averages.  It'd be more likely that one or two of them will pass on to eternity during that time, and indeed given the really geriatric nature of this court, we could see a huge turnover in the next eight years fairly easily.  Only one of them is really in the demographic group where we're truly surprised if they pass.

So, what's that mean?  Well, just as the court's decision in District of Columbia v. Heller, decided in 2008, has spawned repeated court cases as to its meaning every since, with no end in sight, in spite of its seemingly clear text, this decision will inevitably do so as well.  When some county clerk refuses to issue a marriage license on moral belief grounds, and gets sued, will that clerk be able to argue freedom on conscience?   We're going to find out in the courts. When a judge refuses to preform a marriage and gets sued, will he be able to claim the same?  We're going to find out.  When a case presently on hold in Utah on polygamous marriage goes to decision in the next year (and it will now), and others like it follow, will that be governed by this decision (I can't see how it could not be).  When an immigrant migrant from North Africa claims a cultural right to marry a 14 year old, or perhaps two, or brings in a child bride,will that be protected if state law has prohibited it, but the culture he's part of consents? We're going to find that out too.  And if it is the case that a man married to a child bride in Afghanistan can import his 14 year old bride, does that mean an American man can demand the same "right".  Well, a reasonable holding of this decision would be yes, and at some point I suppose well find out if it does.

And, as always, what will happen, at a bare minimum, is the Court wills slowly start with the "the decision didn't mean that", with a series of specious distinctions.  They'll look bogus, because they will be.  In the meantime, the debate will evolve with "we told you so, we told you so", and there will be no good counter to it.  The Court, in turn, will look absurd, and once that's the case (and we've been through some bouts of that since the early 1970s), nobody respects what it has to say save for the fact that the Executive branch can back the opinions up with action, if they feel inclined to.  

But, and perhaps quite likely, if  the next President is a conservative, and Ruth Bader Ginsberg passes, or Kennedy, the next Supreme Court justice is unlikely to really believe that Obergefell means anything and either repeal it or define it out of existence.  People will say, "oh no, they won't reverse themselves". Read the descents, they most certainly would.  Justice Scalia, who is another octogenarian on the court it should be noted, so disdains the majority opinion that he's noted it again in a dissent for another case, an extraordinary thing to do.  And justice Robert's dissent flatly stated that, in regards to the decision, "The Constitution had nothing to do with it."  So this could be returned to the legislatures, after having been taken away from them, quite easily.  My guess is that some state legislatures in some places will start reacting nearly immediately in any event, which makes such a reversal all the more likely. Indeed, the Attorney General's Office of Texas has already indicated moral support for at least clerks and judges who refuse to go along.

And it should be returned to the legislatures, frankly, to preserve the Court.  The point of a democracy is to be democratic.  A person who doesn't like the results of a vote doesn't have to like it, but at least that person can argue for another day. The point of the Court here is to keep legislatures from acting unconstitutionally without restraint (like an Athenian democracy) but not to legislate itself, as its effectively done here. The victim of a coup, moreoever, stews in bitterness until their day comes.  And that day always does, sooner or later.  And when that counter reaction comes, the oppressing institution gets slapped.

When that comes, those who leaped on to a bandwagon that preempted a democratic development rarely fair well in preserving their argument.  In pre World War Two France, for example conservative right wing political movements were taken serious and participated democratically.  When Germany supplanted their government with one more of its liking, they were quick to sign on.  It wasn't that the French right was uniformly fascist, or even uniformly wrong, but having allied themselves with that which seemed give them a quick result, the result of World War Two has been something they have not been able to overcome.  "Pro choice" elements in the US were so over comforted by their Supreme Court victory in 1973 that they've never been able to learn how to act really democratically once the debate resumed. Here, a movement that was doing well in the polls will now be associated with a the actions of a geriatric Supreme Court.

Already in this area there's been a proposal that Supreme Court justices should be made to stand for retention.  Maybe they really ought to, or be subject to some sort of oversight short of impeachment.  Other concepts that are not far from the surface would be to impose a mandatory retirement age on the Federal bench, which frankly I'd be in favor of, as I can't grasp why nine people from some generation that the majority of Americans are not, should hold such power.  Justices could be selected by some other process as well, and I wonder if that will come about.  There's no reason that they couldn't be rotated out of the Circuit Courts on an annual basis, thereby eliminating the need for a standing Supreme Court at all.  Or the process could require input from the states.  Or, frighteningly, Congress could act simply to deprive the Supreme Court of appellate review of the laws which it passes or even specificlaws, or just things it doesn't want the Supreme Court to review, as, while little realized, this is within the power of Congress.

Section 2.

The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.
In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
Quite clearly, while this Court would be likely to attempt to attack it and say it isn't so, Congress could in fact pass laws and provide that the Supreme Court had no appellate review.  If the Court determined that it did, and it would be likely to hold that it did, then what? The only reason that this hasn't happened to date in our country's history, is that Congress has tended to respect the court, and the court's been careful not to provoke Congress. They've done that now.

None of this appears likely right now, but any time the Court makes a decision like this, they start to be in varying degrees.  Indeed, this opinion aside, it ought to be apparent that a Federal judiciary made up of life time appointments is more than a little bizarre.The thought that lawyers who formed their views decades ago and who are in the age in which mental deterioration is the norm should have absolute power over the affairs of the nation makes no sense whatsoever.

In the meantime, Americans in general ought to be worried.  Our politics have descended over the past twenty years to where our legislatures, including the national one, are not functioning as well as they should be.  The Democratic and Republican parties are increasingly at odds with each other, and increasingly more extreme (although here, as with some other social issues, they tended to be heading towards each other). The Supreme Court has now issued a decision that strays badly from the law, as the law would have been understood in any former area, and now sets itself up as an un-appealable legislature of social change.  That's outright scary.

And because it's scary, this is appearing on the July 4 weekend.  On that date, the Continental Congress, in rebellion against the Crown, declared the nation to be independent basically because the English Parliament had seemed to usurp the power of the sovereign colonies by taking acts without consulting the assemblies of those colonies.  The "intolerable acts" were varied, but that was the gist of it.  Quite frankly, if you look back and read them, a lot of the things they were doing that seemed intolerable were not all that bad, including taxing the colonies to help pay for a war in which the Crown defended them.  But the not consulting part was pretty bad.  Now, nine, or rather five, lawyers in a body that has been appointed for life has essentially done the same thing.  When Chief Justice John Marshall crafted the early court to have judicial review of acts of Congress, he was careful not to anger it, as he knew that was dicey.  These justices have perhaps assumed too much if they've assumed that they can now act so far that Marshall would be horrified, and I'd be surprised if, long term, this decision doesn't either mark the beginning of a Cesarian court and a retreat of American democracy, or the point at which the roles of the Court began to massively erode in favor of a more Athenian democracy.

Either result is really scary.


Equal Justice Under Law
The motto of the United States Supreme Court.  
Interestingly, on the "Temple" of Justice, where the United States Supreme Court sits, these words appear immediately above a statute. . . of a Roman Centurion.