Saturday, April 30, 2005

Guilt me, Baby

Oh, those poor white people!

"White children are often installed with guilt and a feeling of being ashamed because of the way that whites have dealt with minorities in the past, such as black slavery and the killing of Indians," McGuire said in a telephone interview. "Past discrimination should not result in present-day reverse discrimination against white kids."

Is educating - and let's face it, shaming - whites for the sins of our predecessors in power (you know, those who built this nation on the backs of African slaves and Chinese coolies and Mexicano peons and anyone else not white and not the right flavor of Christianity - Catholics, for example) is that reverse discrimination?

No, "reverse discrimination against white kids" is more than making you feel bad about what other white people did with their power.

"Reverse discrimination" would be refusing to let white men run for Congress for the next 200 years.

"Reverse discrimination" would be "Johnny Gull" laws that keep whites from voting or buying homes in non-white neighborhoods, a la Jim Crow. Put the whites in the tatty, poorly kept train car, not the nice one.

"Reverse discrimination" would replace the white Republican upper-class monied types with brown or red people, and women, and those "inscrutable" types with their slanty eyes.

"Reverse discrimination" would mean white men earned $.60-.80 for every dollar a woman did.

That's reverse discrimination. Reversed. Discrimination.

This? This shaming? That's called teaching history, my friends. And history ain't always pretty. But you have to learn it, or risk repeating it.

From Shakespeare's Sister.

Friday, April 29, 2005

Ohio tries to ban all abortions

A bill to BAN abortions in Ohio was introduced yesterday in the Ohio House of representatives. (PDF text of bill).

Such a bill would be

Violating procedural due process of the woman under the 14th Amendment

A person has the right, under the 14th Amendment to not have their life, liberty, or property taken from them without due process of law. In the case of life this translates to a criminal trial, in the case of liberty, it depends on the liberty, but the more fundamental the right in question (i.e., the right to one's body) the more "process" required.

The state cannot force a woman to carry a child to term by fiat, with no hearing, no notice, no *nothing*.

Mathews v. Eldridge offers some guidelines to determining process due, and they specifically require weighing the private interest, say, that of deciding whether to increase one's family, against the state's interest, and the burdens (that's *cost*) of implementing a substitute procedural requirement:

  • the private interest that will be affected by the official action (decisions to have and raise children);
  • the risk of an erroneous deprivation of such interest throught the procedures used, and the probably value , if any, of additional or substitute procedural safeguards;
  • the Gov't's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

The government's interest here is what? The health, welfare, and safety of citizens? It seems the Mathews analysis would find that if the previous statute adhered to the requirements of Griswold, Roe, and Casey - that is, early-term abortions permitted, and medical exceptions for any bans of aborting late-term pregnancies, in order to not prefer the potential life over that of the woman carrying it, etc., then obviously the state would not incur too great a burden providing such procedural requirements, if it's labored under the burden just fine before now.

Violating the substantive due process of the woman under the 14th Amendment

If the state can't bar people from deciding how to educate their children (Myers v. Nebraska or Society of Sisters), how can they force people to have their children in the first place? If Skinner tells us we have a "body" right, that the State can't just take your body and do with it what it will, then that's it, the State can't force you to carry a fetus. Or castrate you. Any more than it can require or ban the use of contraception (which would be a deep and abiding infringement of the rights of the couple deciding to create, or not, a family - see Griswold).

Note that both of these really address *who* gets to make these decisions. Traditionally, the person gets to make such intimate decisions, those that are so fundamental to the conduct of their own lives. To our ordered concept of liberty.

Discriminatory against women, or against pregnant women?

This ban is probably overinclusive and underinclusive, though it's hard to say since I don't know what the state's stated purpose really is. In my Mathews analysis above I handwave some health/welfare/safety jazz, but I don't actually know.

But in an equal protection analysis based on gender classifications, and since this is a law that on it's face puts women (or pregnant women) in a category of their own, I'm going to call that a gender classification, the law must satisfy an important state purpose, and the means of meeting that purpose must be substantially related to that purpose. (If this isn't a gender classification, then it may not warrant the intermediate level of scrutiny, but...since what happens to your physcal body (detention, death, forced breeding) might be a fundamental right, that could warrant a high level of judicial scrutiny, not an intermediate one. In such case, the ends pursued must be a "compelling state interest" and the means must be narrowly tailored to meet that interest. If neither case applies, the rational level of scrutiny is used, such that the end must be a legitimate state purpose and the means must be rationally related to it.)

Like, maybe the state's purpose is to protect teens from adult sexual predators (see previous post). But, if its stated purpose is to protect some subset of women (i.e., teens) then it's overinclusive because it bars abortions for all women, not just that subset. If the purpose, say, is to somehow protect citizens from sexual predators, then it's underinclusive because barring abortions is not going to affect all sexual predators, or even all sexual predators that prey upon women, because an act of sexual violence does not always result in a pregnancy.

Peepshido: The Way of the Warrior Peep

What I have learned of The Way, from Peep Jousting:

A true follower of peepshido must be prepared at any moment for the heat of the battleground and his enemy to destroy him.

A true follower of peepshido does not care if he is Purple or Pink.

A true follower of peepshido will joust with any enemy who challenges him.

A true follower of peepshido will wait carefully for his opponent to impale himself upon his lance.

Thursday, April 28, 2005

The Sidra Roundup

I'm busy. I'm actually not busy enough. If I were busy enough, I'd do an even better job at managing my time. Reading period for finals is officially started, and I'm studying the 14th Amendment today.

(That's one of the the ones that gives you, you know, actual rights and stuff. Like equal protection under the law.)

Hence the not posting much whilst year one of law school draws itself to a close.


1. If you're not reading twistedchick, you should be.

2. Al Gore is singing out the truth, as usual. I tell you, now that he's relaxed a bit, I think he and Howard Dean will be two of the most influential non-presidents we ever have. In the aforementioned link, he tackles the filibuster and what it means to have a deliberative democracy.

3. I can't believe we read Korematsu in my Constitutional Law class, and I dug into the relevant executive orders and whatnot*, and the evacuations and exclusions of Italian Americans (see Una Storia Segreta for more info), and still NOT ONCE did it cross my mind that there might be, hey, Tokyo War Crimes Trial transcripts, just like Nuremberg, my god I'm so stupid. (Thanks, Robin!) Not that they have anything, per se, to do with detentions at Manzanar and other camps, it's just *thwaps forehead* - aigh! Stupid! (*I've been to Manzanar and was already more-than-passingly interested in the subject.)

4. Claiming to be tolerant of differing views, Microsoft kowtowed to the right on its support for gay rights. God damn it, I remember when the right was the party of rights.

5. Oh, I love this twist:
The House of Representatives passed legislation on Wednesday that would make it a crime to take a minor across state lines for an abortion and create a national requirement for parental notification for underage women seeking to terminate a pregnancy.
The White House said in a statement the bill "is consistent with the administration's view that parents' efforts to be involved in their children's lives should be protected and the widespread belief ... that the parents of pregnant minors are best suited to provide them with counsel, guidance, and support."
Supporters of the bill said it was necessary to protect young women because an adult predator could impregnate a girl and then force her to have an abortion to hide the crime.

Yes, because if a girl gets pregnant thanks to an adult predator, she would, of course, be absolutely dying to have that baby. There wouldn't be any argument on her part against having it. Like, she may have been physically mature enough to impregnate, but not really big enough to carry and birth a child. And, she wouldn't be afraid that the child would grow up and become the next prey, would she? Once she's too old to hold the predator's attention? Heavens, no.

This is so overinclusive it's stupid. Keeping all minors from crossing state lines to get abortions without their parents will stop adult predators from taking minors across state lines to get legal abortions. It'll just stop everyone else, too. And keep girls from asking for help when their parents are the source of the problem in the first place.

So, now all the girls who feel they can't approach their parents what? Exactly?

Here's a question: will this legislation decrease the number of abortions? Or just the number of legal ones?

6. In related news, Fla. Agency Gets Teen's Abortion Blocked.

As Bitch, Ph.D put it, ever so succinctly:

Yes! Too young and immature to make an informed medical decision, but not too young and immature to become a mama!

7.Americans mandate: Bush Lied about WMDs Hey, if Bush can call "half" a mandate, so can I.

8. When it comes to the death penalty, I'm of a very pragmatic class: Does it work? And, can it be implemented reliably? The answer to the latter, it seems, is 'no'. Sister Helen Prejean has witnessed, and come back to tell us what's wrong with capital punishment today.

9. Rolling Stone has an article on the Dominionists, who want to claim America for Christ. If you're a christian, when you read this article, put yourself in the shoes of someone who's not, if you can.

10. Kate Orman has inagurated a new rule for LiveJournal. When the news mentions a country and you don't know where the hell it is, look it up, and post three facts about it in your LJ. She starts with Angola, currently suffering an outbreak of Marburg (it's an hemorraghic disease similar to Ebola. You bleed out. This particular outbreak has a very high mortality rate.)

I heartily approve of this idea. If you'd like to learn more about Burkina Faso,Tonga, or Aruba, I'm your woman.

11. You should read The Revealer.