Scalia’s Problem

Recently, Justice Antonin Scalia shot his mouth off about another bit of “social” judicial opinion and managed to be correct to a fault again. Here is the article. Basically, he is of the opinion that if a specific term or phrase does not appear in the Constitution, then that subject is simply not covered. Most famously, this goes to the continuing argument over privacy. There is, by Scalia’s reasoning (and I must add he is by no means alone in this—it is not merely his private opinion), no Constitutionally-protected right to privacy. As far as it goes, this is correct, but beside the point. The word “private” certainly appears, in the Fifth Amendment, and it would seem absurd to suggest the framers had no thought for what that word meant. It refers here to private property, of course, but just that opens the debate to the fact that there is a concept of privacy underlying it. The modern debate over privacy concerns contraception and the first case where matters of privacy are discussed is Griswold v. Connecticut, 1965. That case concerned the right of a married couple to purchase and use contraception, which was against the law in that state (and others). The Court had to define an arena of privacy within which people enjoy a presumed right of autonomous decision-making and into which the state had no brief to interfere. Prior to this, the Court relied on a “freedom of contract” concept to define protected areas of conduct. Notice, we’re back in the realm of property law here. People who insist that there is no “right to privacy” that is Constitutionally protected seem intent on dismissing any concept of privacy with which they disagree, but no doubt would squeal should their own self-defined concept be violated. Therein lies the problem, one we continue to struggle with. But it does, at least in Court tradition, come down to some variation of ownership rights—which is what has made the abortion debate so difficult, since implicit in it is the question of whether or not a woman “owns” her body and may therefore, in some construction of freedom of contract, determine its use under any and all circumstances. [More . . . ]

Continue ReadingScalia’s Problem

What 2010 Meant

The Lame Duck Congress has ended the year with a Marathon of Epic Legislation.  I can't help being impressed.  Obama said he wanted Congress to do with Don't Ask Don't Tell, to repeal it legislatively, and not have it end up as a court-mandated order.  I can understand this, especially given the rightward shift of the judiciary.  But the way in which he went about it seemed doomed and certainly angered a lot of people who thought he was breaking a campaign promise.  (The puzzling lunacy of his own justice department challenging a court-led effort must have looked like one more instance of Obama backing off from what he'd said he was going to do.)  I am a bit astonished that he got his way. A great deal of the apparent confusion over Obama's actions could stem from his seeming insistence that Congress do the heavy lifting for much of his agenda.  And while there's a lot to be said for going this route, what's troubling is his failure to effectively use the bully pulpit in his own causes.  And the fact that he has fallen short on much.   It would be, perhaps, reassuring to think that his strategy is something well-considered, that things the public knows little about will come to fruition by, say, his second term. (Will he have a second term?  Unless Republicans can front someone with more brains and less novelty than a Sarah Palin and more weight than a Mitt Romney, probably.  I have seen no one among the GOP ranks who looks even remotely electable.  The thing that might snuff Obama's chances would be a challenge from the Democrats themselves, but that would require a show of conviction the party has been unwilling overall to muster.) The Crash of 2008 caused a panic of identity.  Unemployment had been creeping upward prior to that due to a number of factors, not least of which is the chronic outsourcing that has become, hand-in-glove, as derided a practice as CEO compensation packages and "golden parachutes," and just as protected in practice by a persistent nostalgia that refuses to consider practical solutions that might result in actual interventions in the way we do business.  No one wants the jobs to go overseas but no one wants to impose protectionist policies on companies that outsource.  Just as no one likes the fact that top management is absurdly paid for jobs apparently done better 40 years ago by people drawing a tenth the amount, but no one wants to impose corrective policies that might curtail what amounts to corporate pillage.  It is the nostalgia for an America everyone believes once existed that functioned by the good will of its custodians and did not require laws to force people to do the morally right thing.  After a couple decades of hearing the refrain "You can't legislate morality" it has finally sunk in but for the wrong segment of social practice. [More . . . ]

Continue ReadingWhat 2010 Meant

…Like I’m Eight

In the movie Philadelphia, Denzel Washington plays a savvy courtroom litigator whose catch-phrase in front of a jury is "Explain it to me like I'm eight-years-old." It's a great line and maybe I'm looking for that kind of clarity now. I really don't know what to make of this. Obama---who won election with a very solid majority of the popular vote and a most impressive majority of the electoral---has managed to be reasonable to the point of impotence. He's on the verge of validating every cliche about spineless intellectuals. The man is smart, erudite, has charisma, and can't seem to say no to the Right. It is possible that this is another one of those situations where we the people simply don't know what's going on and cannot therefore grasp the tactics or strategy. Maybe this is cleverness at such a level that it looks clumsy and gutless. I don't believe that for a second, though. (The only thing that makes any kind of sense in that vein is the idea that he is handing the GOP more and more rope with which to hang themselves. The problem with that is any rope, in order to work in an execution, has to be tied to something substantial on one end.) [more . . .]

Continue Reading…Like I’m Eight

Justice Isn’t Boring

I'd heard about this Boring case a couple of years ago, and it finally has reached a verdict. In essence, Google's Street View crew accidentally drove up and filmed a private road, and the owners had nothing better to do than sue. I'm picturing some legal adviser drooling over Google's coffers and thinking they had an angle to get something substantial in the form of a settlement. But the case was pretty weak, with several judges simply stripping off charges, until they were left with second degree trespass. But they won! They beat Google! As Geek.com puts it: Boring couple win $1 compensation for Street View trespassing.

Continue ReadingJustice Isn’t Boring

Can Future Censorship Be Regulated?

The question at hand is, who decides what you find on the web? I recently read Regulating the Information Gatekeepers about search engines. This article focused mainly on commercial implications of search engines changing their rules, and the ongoing arms race between companies that sell the service of tweaking web pages and links and click farms to optimize search engine ranking positions, and the search engines trying to filter out such bare toadying in favor of actual useful pages. On my MrTitanium.com site, I ignore all those search engine games and just provide solid content and current items for sale. In 2002, MrTitanium was usually in the first dozen results when Googling for "titanium jewelry". In 2003, Google decided that the number of links to a page was the primary sign of its usefulness. Within days, link farms popped up, and my site dropped from view. I waited it out, and in 2004, Google changed the rules again, and MrTitanium reappeared in the top 30. Top five for "titanium earrings". But the real question is, should someone be regulating these gatekeepers of information? Who decides whether a search for "antidepressants" should feature vendors, medical texts, or Scientology anti-psychiatry essays? There are two ways to censor information: Try to block and suppress it, or try to bury it. The forces of disinformation and counterknowledge are prolific and tireless. A search engine could (intentionally or inadvertently) favor certain well represented but misleading positions (such as Truthers or anti-vaxxers) over proven science, and give all comers the impression of validity and authority to "bad" ideas. But the question of regulation is a dangerous one. The best access to information is open. But if a well meaning legislature decides that there needs to be an oversight board, this board could evolve into information police and be taken over by populist electors who choose to suppress good information. On the other hand, the unregulated and essentially monopolistic search industry began with great ideals, and so far has been doing a good job at a hard task. But it, too, could become malignant if there is no oversight. Another facet is, whose jurisdiction would this fall under? If the U.S. congress passes laws that Google doesn't like, they simply move offshore. There are designs for, and even prototypes of, data centers that float beyond any countries jurisdiction, powered by waves and sun, and connected via fibers and satellites. If the U.N. starts regulating, then whose rules apply? North Korea? Iran? China? And who could enforce it? The information revolution is just beginning: We do live in interesting times.

Continue ReadingCan Future Censorship Be Regulated?