Constitutional Daily

Founding Principles

The Tenure Paradox - Robot pimp

Slap on the Wrist for "Non-Consensual Sex" - Lampshade, Esq.

Intelligence: The Gathering - Graphic and Gratuitous

Grads are the New Illegals - Robot Pimp

Meet Entitlement Eric - Robot Pimp

Wherein I Solve World Peace - Lampshade, Esq.

A Necessary Delusion - Shadow Hand

Do you even need to shave overhead? - Lawyerlite

LSAT Jenga - Publius Picasso

http://www.constitutionaldaily.com/index.php?option=com_content&view=article&id=1573:legal-reasoning-redux-5&catid=38:there-and-never-back-again&Itemid=65

Time, Place, and Manner

...Should have some links here or something.

Banner

Should we care if people know where rights come from?

E-mail Print PDF

Over on Prawfsblawg yesterday, Roll Tide Law prof Frederick Vars noted that a recent survey found only 29% of Americans could name one of the five rights guaranteed by the First Amendment. He then asked the obvious question:

[B]ut should we care?

Well asked, professor. His reasoning is that another survey found that 99% of Americans think the right is very important, and if you want to argue First Amendment protection in court, saying "Free Speech" will get you there, you don't need to name the amendment.

Comments were closed on his post, so no one got to offer an alternative answer to the "should we care" question, but we think perhaps the answer is yes.

There are a lot of rights out there, they don't exist in a vacuum, and unlike folks, not all rights are created equal. There are God-given natural inalienable rights, and their close relative the Constitutional rights (ie: the God-given natural inalienable rights deemed important enough to be mentioned in the Bill of Rights). Then there are statutory rights, which you have only by virtue of the government saying so, things like social security benefits or early voting. These things can be taken away without violating your core natural rights. And then there's other rights existing out in the aether, like the right not to be offended, or to walk from your dorm to class without hearing something you deem to be hate speech. When you start throwing the word "right" around (round round) willy nilly, weird and stupid things happen.

For instance, in a HuffPo op-ed, Celia Buckman writes regarding the Hobby Lobby decision:

What someone should or should not do for their health is between them and their physician, not their boss. This also specifically targets female workers' rights to their bodies, as Hobby Lobby exclusively refuses to pay for female contraceptives.

For a brief period between the implementation of the ACA and the ruling in Hobby Lobby, women did have a right to have their employer provide specific types of contraceptives. But that's a statutory right. The outrage coming from the Hobby Lobby decision though acts as if it infringed on one of the more important God-given natural inalienable rights, specifically the right to control your own body. But women still have the right to control their body, what they've lost is the right to make someone else fund their control.

If you're familiar with the Motte and Bailey style of argument, this is it at work. The insurance coverage right is a weak right, it's the Bailey, and it's very hard to defend. When attacked, women retreat into the bodily autonomy argument, that's the Motte, the fortified keep in the center of the Bailey that's virtually impregnable (har!). Without understanding how rights can differ, women like Celia Buckman (and like a hundred million others) will think that the Bailey is just as defensible as the Motte. Fortunately for Ms. Buckman, she's just a rising high school sophomore. We can forgive the lack of nuance in her case.

But then there's people like Nan Aron, President of the Alliance for Justice, "a national association of over 100 organizations, representing a broad array of groups committed to progressive values and the creation of an equitable, just, and free society" with an annual budget of four million dollars. She writes for HuffPo regarding the McCullen decision (the abortion clinic buffer zone one people stopped talking about once Hobby Lobby came down):

The Chief Justice gives away the game when he writes that the anti-abortion activists bringing the case "are not protestors," and expresses sympathy with their complaint that they haven't been as successful in persuading women to change their minds as they would be if the buffer zone didn't prevent them from sidling up to within an arm's length and whispering their gentle words of persuasion. Ah, you see, anti-abortion activists aren't actual protestors, like you might see outside a political event or on the public sidewalk in front of, let's say, a bank. Those kinds of people can be forced into far-distant "buffer zones" that have chain-link fence around them. But when it comes to abortion and women trying to enter a medical clinic to exercise their constitutional rights, well, that's another story. [Emphasis added]

Alright folks, get out your Constitutions and find for me the right to an abortion.

"It's in the penumbra!" ...Go fuck yourself.

Calling it a constitutional right doesn't make a lot of sense, with or without the penumbra. When we say "constitutional right" we mean the enumerated ones, not the penumbra. The penumbra has a whole other name, and it's God-given natural inalienable rights. The only difference between natural rights and constitutional rights is that the constitutional ones have been written down. An unwritten constitutional right is a meaningless term. It'd be like referring to the IMDB top 100 movies not listed on the IMDB top 100 movies list (and not just the films bumped off over time).

So why does McCullen refer to constitutional rights in her op-ed? Probably because it makes for good rhetoric, and because she hasn't stopped to consider what it means for something to be a constitutional right versus a natural right.

Going back to professor Vars's question, should we care? We think so. The origin of rights matters when it comes to how we treat them, and we're moving towards a society where people think the hierarchy of rights comes down to nothing more than how passionate they are about the issue. If you're going to make more use out of your free contraception than your religious freedom, then you know which right trumps the others. Next you'll be saying your right to not be offended trumps another's right to free speech, not based on any concrete theory of rights, but just on how you feel about their relative importance.

Don't Have Sex In New Zealand

E-mail Print PDF

We shouldn't say don't have sex in New Zealand. Instead, if you're going to have sex in New Zealand, do it now. Do not wait.

The NZ Labor Party has introduced a bill that would radically change the way rape prosecutions are handled, using the time dishonored burden of proof known as Guilty Until Proven Innocent. The innovation's sponsor, Andrew Little, says not to worry because the state (down under the call it the "Crown") still bears a significant burden of proof:

The Crown has to prove more than just sex; the issue of consent has to be raised by the Crown, they have to prove the identity of the offender. They would have to bear that burden of proof before a switch to the defence to prove consent. [NZ Herald]

See, no need to worry. The Crown still bears the burden of proving that sex happens (she says so) and the identity of the offender (she says him). Your ball, Mr. Defendant.

And why shift the burden? Well because rape cases are really hard to prosecute. Do you know how hard it is to prove lack of consent? Just about as hard as it is to prove consent. And since consent is so hard to prove either way, the NZ standard would basically be Guilty If Accused.

Guilty If Accused?! Surely we're exaggerating. After all, plenty of people do get convicted of rape. In fact, in New Zealand 46% of defendants brought to trial for rape are convicted. If the Crown is able to so often prove a lack of consent then surely the defendant will have a fair shake.

 

Oh, except that the defendant isn't allowed to question the accuser.

The accuser will only be questioned by the judge, a judge working under a Ministry of Justice with an official policy of increasing rape conviction rates.

Planned Parenthood Needs to Chillax About Hobby Lobby

E-mail Print PDF

As soon as the Supreme Court reached its decision in Hobby Lobby vs. The Crushing Ennui That Accompanies Spending Time At Hobby Lobby, Planned Parenthood released this image on their Facebook page:

 

Your boss can decide if you have access to birth control coverage! Now as far as we know, Planned Parenthood has some sort of expertise when it comes to birth control, so if they say this is the case, it must actually be the case, right?

Of course not. It's a knee-jerk reaction to a hot-button issue, which basically tells you right away that it's completely wrong and without any basis in fact or reasoning. In fact, Planned Parenthood doesn't seem to have gotten as far as the first paragraph of the majority opinion.

We must decide in these cases whether the Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488,42 U. S. C. §2000bb et seq., permits the United States Department of Health and Human Services (HHS) to demand that three closely held corporations provide health-insurance coverage for methods of contraception that violate the sincerely held religious beliefs of the companies’ owners. We hold that the regulations that impose this obligation violate RFRA, which prohibits the Federal Government from taking any action that substantially burdens the exercise of religion unless that action constitutes the least restrictive means of serving a compelling government interest.

And then a little further into the opinion:

For all these reasons, we hold that a federal regulation’s restriction on the activities of a for-profit closely held corporation must comply with RFRA.

Emphasis added. But only kinda added. The bold was added, but the court keeps saying "closely held" over and over again, making it very clear that the opinion applies only to closely held corporations.

Might it be a precedent that will allow the decision to later apply to all corporations, slippery slope style? Probably not. It makes some sense (to some people, we can think of at least 5) that a closely held corporation could have a sincerely held religious belief. It makes absolutely no sense to say that a widely held corporation can have the same sort of belief. If the decision will apply anywhere else, it's most likely going to extend to sole-proprietorships, and maybe some partnerships.

So, can "your boss" decide if you can have birth control coverage?

Probably not. If you work for Hobby Lobby they can make some decisions, but most employers will still have to provide it.

 

But wait, there's still more wrong with the Planned Parenthood message!

Even Hobby Lobby can't decide if you can have access to birth control coverage. What Hobby Lobby can decide is if Hobby Lobby is going to provide it. That's not the end of the access question because there's thing you may have heard about in the news called THE OBAMACARE. Or you know, the health care exchange marketplace communism Obamacare. If you work for a Hobby Lobby and want birth control to be covered, you can just buy a different plan on an exchange.

But buying it on the exchange could be cost-prohibitive. The exchanges work by giving people discounts, but you don't qualify for a discount if you're already getting coverage from work. Hobby Lobby isn't exactly paying upper-middle class wages. By not getting it from their employer, aren't employees effectively cost-prohibited from obtaining birth control?

Excellent question! Let's see what the government has to say about it:

Whether you qualify for lower costs based on your income will depend on the coverage the employer offers. You won't be able to get lower costs if your job-based coverage is considered affordable and meets minimum value.

Meets the minimum value. We suspect it'll be about two more minutes before some interpretive guidance comes down saying that plans without birth control aren't minimally acceptable and that if you have such a plan you will quality for lower costs. Just a guess, but we think it's a pretty damn good one.

 

But wait, there's still more!

Not my boss's business.

Your reproductive health decisions are you own business, not your boss's. And that's exactly the position Hobby Lobby has taken. You want birth control? Not their business. By demanding that employers provide it, they're making it quite literally their boss's business.

Georgetown law prof asks: But what about the wimmin?

E-mail Print PDF

Obama recently rolled out the My Brother's Keeper initiative aimed at helping minority boys and young men. The goal is basically to get them education, employed, and out of trouble -- and if they're in trouble, to get them back on the right track. So naturally, Georgetown Law pof Paul Butler is asking, "But what about the wimmin?" Here's a bit from an article he wrote for CNN:

There's a myth that girls of color are doing better than boys. But that's not supported by the facts. Indeed the White House website attempts to justify MBK's exclusion of females by stating that "boys of color are too often born into poverty and live with a single parent."

But don't African-American girls live in the same single-parent households as African-American boys? Don't Latina girls attend the same failing schools as Latino boys? Isn't a teenage girl on a reservation in California as afraid of being a victim of rape as a teenage boy in Chicago is afraid of being a victim of gun violence?

It would actually be quite surprising if the odds of a girl being raped on an Indian reservation was the same as a boy being shot in Chicago, and we're sure the stats are out there somewhere, but we're not going to look into that particular one because frankly, it'd take too much time, not to mention problems with rapes being under-reported --  gunshots on the other hand tend to draw police attention.

But what we will look at are the more easily comparable stats. Is is a myth that girls of color are doing better than boys of color?

Black women are twice as likely to get a 4 year college degree than black men. [Dep't Ed] The numbers are similarly skewed for Hispanic and Native Americans and at all levels of education except when it comes to blacks getting master's degrees (black women get 71%) and Hispanics getting PhDs (Latinas only get 55%). Nowhere on the spectrum are girls of color not doing better than boys.

According to the National Criminal Justice Reference Service, black males are about 30% more likely to be the victim of a violent crime than black females. [NCJRS]

Black men are 50% more likely to have been arrested than black women. They're six times as likely to have been charged in federal court. [BJS]

The black unemployment rate for men is 30% higher than for women, though Hispanic men are doing slightly better than Hispanic women overall. For youth the numbers are much worse. Black men aged 16-19 have a 42.8% unemployment rate, while it's 27.5% for women. At age 20-24 it's 25.5% for black men, 18.5% for black women. Hispanic youth were at a virtual tie at these ages. [BLS]

But don't African-American girls live in the same single-parent households as African-American boys?

It would appear not. That won't stop a Georgetown law profess though, and why should it? You see, law school teach you to think like a lawyer, and what does that mean? Cheat To Win. Your loyalty is to your client, to your cause, not to some higher notions of truth or justice. All that matters is winning the argument.

PS: There's this little thing called the White House Council on Women and Girls, but no corresponding op-ed from Paul Butler demanding that men and boys be included. And they shouldn't be. Including boys in programs designed to help girls is like giving them a mastectomy to cure prostate cancer. Doesn't mean there shouldn't also be prostate cancer treatments, but we shouldn't have the Paul Butlers of the world complaining that the woman in the next exam room isn't all getting a finger up her rectum.

Page 1 of 338

  • «
  •  Start 
  •  Prev 
  •  1 
  •  2 
  •  3 
  •  4 
  •  5 
  •  6 
  •  7 
  •  8 
  •  9 
  •  10 
  •  Next 
  •  End 
  • »

Philadelphia Lawyer, Unfiltered

The finest blend of analysis, advice, and fury on the internet. Sour mash, oak barrel aged, published at cask strength.

 


Most Recent Article:

In Defense of Risk (Happy Fourth of July)


All Articles from The Philadelphia Lawyer

Author Profile

The Robot Pimp

An in depth look at the emerging intersection of law, behavioral economics, and robots.


Most Recent Article:

The Tenure Paradox


All Articles from The Robot Pimp

Author Profile

Practice Makes Putrid

Legal practice would be all rainbows and buttercups, if it weren't for the clients, and opposing counsel, and co-counsel, and judges, and the law.


Most Recent Article:

Eat Mor Fiv Freedums


All Articles from The Namby Pamby

Author Profile

Gin and Glannon's

As Shadow Hand suffers through law school, the rest of us get a little Schadenfreude.


Most Recent Article:

I Just Work Here


All Articles From Shadow Hand

Author Profile

Irresistible Impulse

Dr. Rob Dobrenski's daring expedition into the psychology of lawyers and the law. (Not a substitute for a life well lived.)


Most Recent Article:

You're Not a Failure, You're a Narcissist


All Articles from Dr. Rob

Author Profile

Graphic and Gratuitous

Sometimes cartoons are the highest form of communication. Those times are known as "most of the time."


Most Recent Cartoons:

Intelligence: The Gathering


All Cartoons

There And Never Back Again

Defunct Big Law attorney BL1Y shares his misadventures as a writer who accidentally went to law school.

 


Most Recent Article:

JD vs MFA


All Articles from BL1Y

Author Profile

Lampshade, Esquire

We're dealing with some technical difficulties here. Hold up a minute.


All Articles From Lampshade, Esq.

Staff Infections

News, humor, and other non-billables from our underpaid, uncredited, unsexy staff.

 


News Articles

Smaller News Bits

Large Numbers of Law

Mixed Bag of Lawesome

Reviews

Scofflaw Multistate Bar Review

Lawyerlite