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.

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.

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.

So.

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 will...do 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.

No Strings Attached

I've learned something new today: the origin of the phrase "no strings attached".

Paging John Galt

Making Light on Kieran Healy on Thomas Friedman

It’s impossible to divorce The World Is Flat from its rhetorical approach. It’s not for nothing that Thomas Friedman is called "the most important columnist in America today." That it’s Friedman’s own colleague at the New York Times (Walter Russell Mead) calling him this, on the back of Friedman’s own book, is immaterial. Friedman is an important American. He is the perfect symbol of our culture of emboldened stupidity. Like George Bush, he’s in the reality-making business. In the new flat world, argument is no longer a two-way street for people like the president and the country’s most important columnist. You no longer have to worry about actually convincing anyone; the process ends when you make the case.

Things are true because you say they are. The only thing that matters is how sure you sound when you say it. In politics, this allows America to invade a castrated Iraq in self-defense. In the intellectual world, Friedman is now probing the outer limits of this trick’s potential, and it’s absolutely perfect, a stroke of genius, that he’s choosing to argue that the world is flat. [Emphasis added.]

I...I...I don't know to say this...but I think I'm having an Ayn Rand flashback to Atlas Shrugged.

I know I'm paging John Galt in my title, but I fear the only ones who'll answer are Cherry Taggert and Eddie Willers.

This is What I Don't Understand

Threats to the Judiciary

Here's what I don't get:

The federal courts are weighted Republican. Since Reagan, they've been shoehorning 'em in. I don't know the stats, I just know the law-school gossip, okay? Knee deep in Republicans.

So. What, did they manage to pick the wrong people? Is that why some fundamentalist yahoo feels the need to threaten a Supreme Court Justice*? To quote Stalin and say "no man, no problem"? (The full quote is, "Death solves all problems: no man, no problem".)

Yeah, because Stalin is the kind of pro-democracy, freedom-liberty-and-apple-pie kind of thinker all patriotic Americans should look to. Not.

[*] In fact, the Supreme Court Justice who talked to my class just yesterday.

Moderation is Coming!

THe Unitarian Jihad

Personal Update-type Blog Entry

Forthcoming publications:

Online magazine Peridot Books will be publishing my science fiction story "It's the Smell" in May 2005.

The Writers of the Future 2005 anthology, due out in August 2005, will include my science fiction novelette, "My Daughter, the Martian".

The more things change

The more they stay the same. It's stupid, I know, but yeah, I had the same moment of naivete that I'm sure a lot of people who already knew about RAWA did: Oh, now that the Taleban is deposed, we don't have to worry about them.

Not true.

Afghan women need your help, as much as they did before the US invaded.

Revolutionary Association of Women in Afghanistan:

RAWA was founded in 1977, and they've been fighting for women in Afghanistan every day since. I've known about them since 1997 or so, when a RAWA rep contacted us at the 3rd WWWave of Feminism to ask for help. Not being a foundation or trust-funded .org or anything, all we could do was publicize their plight and give money out of our own pockets, which we did.

I can still do that.

You could do that, too.

Help them fight.

Terri Schiavo, Bulimic.

Brutal Woman steps up to the plate. Pun intended. Martyr Yourself for Christian America.

Quoting Paul Campos in a column in the Rocky Mountain News:

As I write these words, Terri Schiavo is being starved to death because she was once a chubby little girl.

You should go read the Campos article in situ. While you do, let your gaze drift to the right of the text, just a little, where the ad for the health club is. Then try and deny the message sent every minute of the day to American women: be thin, be thin, be thin.

Kill yourself, so long as you're thin.

(More at The 3rd WWWave.)

Culture of Life? Party of Life? Prove it.

I agree with Echidne

The U.S. government doesn't usually act as if every life were infinitely valuable. If it did, there would be no mercury in the tuna that is being fed to our children. If it did, there wouldn't be a single bridge that needs maintenance work. If it did, there wouldn't be a single product sold in the country that fails the highest safety requirements. For the mercury in the tuna may kill a child one day, a bridge may collapse with cars on it and a faulty product may murder people one day. Even a traffic junction without lights can cause a deathly accident.

Yeah. You want to tell me the Republicans are a Party of Life? Prove it. Don't shitcan Social Security for the old folks. Don't cut Medicare and Medicaid. Make abortion unnecessary by providing an actual *support network* for pregnant women and those raising children. Up pollution standards and improve our toxic cleanup programs. Get rid of the mercury in our tuna, the lead in our paint, and the asbestos in our old school buildings.

But, they're not *that* party of life, are they?

Pointing out the Blindingly Obvious About 'Women's Issues'

Big Brass Blog

"I’ve seen the argument made by male bloggers that an issue like Social Security is of concern to everyone because it affects everyone’s bottom line, but that "women’s issues" are somehow distinct to women. I would argue that women still making $.80 on the $1 affects the bottom line of every household that’s got a working woman in it".

Simple. Succinct. Beautiful.

Hey, who couldn't use more money? If you are married to a woman who works, wouldn't you want to have more money, via the no-work-required-on-your-part method of having her be paid more? Doesn't that sound nice?

If your mom and dad both work, and are looking ahead to their retirement, and you're looking ahead to their retirement, too, to how you might be offering them some support at some point, wouldn't more money, because Mom gets paid a decent wage, be helpful?

Don't you think?

One Size Does Not Fit All

For the purposes of this discussion, I want you to pretend the author of this article is a woman who is 4 feet, 11 inches tall, and weighs 170 pounds.

It's become fashionable recently to do things like fire smokers from their jobs, or propose "sin taxes".

Workplace Smoking Bans:

Weyco banned smokers from its payroll, began testing employees for nicotine and fired four workers who refused to take the test after the policy was enacted in January.

Today, it's smoking.

Tomorrow? Tomorrow, it's legislation to protect people from The Obesity Epidemic. If you're not within the national weight norms for your gender and height, maybe you'll be fined. Or maybe you'll lose your job. And I'll bet you won't get any assistance in helping you lose weight, because this is the Bush Ownership Society. You're On Your Own. But you'll be nicely penalized.

Now, the actuarial tables say that women who are 4 feet, 11 inches tall, should weigh something around 100 lbs.

So, turn and take a look at me. Of course, you can't, because this is the Internet. I'm overweight. But not by 70 lbs. More like 25-30. I'm not obese, though I might fit that formal height/weight definition. I feel good. I exercise every day and I eat a very healthy diet: no processed foods, little/no caffeine, and little/no alcohol. I don't get shortness of breath going up the stairs to my apartment unless something is dragging my metabolism down, like overfatigue or dehydration or something, and I can feel it when it does.

I have an Olympic gymnast's thighs - thicker! - and Tour de France calves. I can leg-press a small to medium-sized car. I have the shoulders of a man. A specific man, actually, my twin, a man who is about a foot taller than me. I measured, once, on a photo of the two of us.

Let's face it, I'm built like a tiny, somewhat curvy, top-heavy, tank. With big knockers.

I'm 4 feet, 11 inches tall. But I don't weigh 100 pounds.

So, according to the actuarial tables, you shouldn't hire me, or insure me, or take any other kind of risk on me. You should fire me or refuse me or fine me, until I meet the national health norm.

A one-size-fits-all law would say I need to lose about 70 lbs to fit a standardized idea of "healthy". A company adhering to one-size-fits-all federal or state guidelines might say to me, "lose 70 lbs or lose your job".

I don't need to lose 70 lbs. 30, max, to get back to my fighting weight, and I mean "fighting" quite literally.

But I'm screwed, because I don't fit "the standard".

Human beings are really standardized only to the extent that we are more-or-less suited for walking upright, have binocular vision, and are bilaterally symmetric (one of each limb on each side of the body, basically).

As for the rest of it - height, weight, muscle mass, fat, metabolic speed - we all vary significantly. The people who are best qualified to aim directives at each of us for the benefit of our health are those who know us as individuals, not statistical groupings or witnesses testifying before Congressional subcommittees. The people who have weighed, poked, prodded, drained, probed, and inspected us, personally, from stem to stern.

You know, our doctors.

Because MY doctor would say, "70 pounds?! You lose seventy pounds, and I'll put you in the hospital on an IV." For some other woman, 70 pounds might be just what the doctor ordered.

But that's the doctor's orders, working directly with a single patient, together, to achieve their best health and welfare.

Not a legislature's orders. Not an employer's orders. Because one size does not fit all.

Want to hear a funny thing?

All this time, I've been talking about abortion.

When a legislature promulgates a rule saying that women may only have abortions under specific conditions, no matter how hard they try, they will leave out case-by-case situations where they themselves would, if fully apprised of the circumstances, dash tears from their eyes and say, "yes, you should abort". They'll leave those out because you can't imagine every single variation on a theme.

It's One Size Fits All.

But One Size can never Fit All women across the United States. Because we're all different. Each one of us lives in a different economic situation, with different health needs or medical problems, different levels of social and familial support, different stressors, different risks, different advantages. We're all different. Not standard. You cannot foresee every single situation.

So, instead of putting the power to determine who does or does not have an abortion in the hands of the people most removed from the specific circumstances, and therefore least-qualified to decide whether you should have one, why not keep that power in the hands of those in the field? On the ground. In the trenches. The ones with the test results and medical history right in front of them. You know, doctors and their patients.

Calling back Guards?

I read somewhere a couple weeks ago that a bunch of cities/townships in Vermont had moved to bring their Guard units currently in Iraq home. And it occurred to me to ask if this were a binding resolution, would it be enforceable?

(Wait, I found a 'somewhere'. Here. Read this. 57 communities pondered some form of this resolution, and 48 passed it, 3 voted it down, one tied, and the other 4 tabled it for later.)

The resolution, as introduced, calls for the Vermont Legislature to study the effect of National Guard deployments on the state; implores the state's congressional delegation to work to restore a "proper balance" between state and federal control of the Guard; and asks Congress and the administration of President Bush to withdraw U.S. forces from Iraq at a quick but "humanitarian" pace.

So, the bulk of Vermont has just passed a nonbinding resolution that their Guard units should come home. What happens if, say, tomorrow, they pass a binding resolution? I guess the real question is, does a state still have control over its Guard units, when they've been called up for Federal service? Note that I'm assuming the state has some control over its Guard units at all.

Well, OK. Let's address the latter note first. Article 1, Section 8, clauses 15 and 16 of the Constitution talk about providing "for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;" and providing "for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States..."

(Now, to back up an even further step: State and National Guardsmen are not Navy, not Army (the two types of forces explicitly mentioned in the Constitution). They must be something. Therefore, militia.)

If the Congress has to "call forth" the militia, and provide for organizing, arming, and disciplining the part of the militia employed in the service of the US, then when the militia or a part of it has not been called forth, that militia must be in the service of the State, not the United States.

Otherwise, there wouldn't be any calling forth to begin with, because the Guard has to be under some authority, somewhere.

What isn't clear from the Constitution is whether a State can simply demand its Guard back. I doubt, structurally, that it could.

If the Militia has been called forth into federal service (service of the United States rather than service of its own State), they're placed under the command of the Executive branch in the Executive's role as Commander in Chief of the Armed Forces. ("The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States..." Const. Art. II, §2, cl. 1.)

The President can't make use of these forces as forces - strategically and tactically - if a State were permitted to reclaim them without the Executive's permission or at least acknowledgement. To do so would diminish the Executive's authority on the battlefield, by permitting another authority to supersede his in the direction of troop movements, which directly contradicts the Constitutional delegation of power to the President as Commander in Chief.

Furthermore, the Congress has the authority to "make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers" -- a list of powers which included the power of calling up and providing for militias in US service. Const. Art. I, §8, cl. 18. The power to call up, to hold, should also include the power to release, should it not?

However, there's another problem. What if the Militia's use is unConstitutional?

Art. I, §8, cl. 15 lists the tasks for which the Militia may be called up: to "execute the Laws of the Union, suppress Insurrections and repel Invasions". Is invading and occupying another country on that list? Is that list exclusive? (Expressio unias est exclusio alterius. Specifying one is to the exclusion of others.) And even if that list is not comprehensive, all three elements are of a domestic nature - internal regulation, policing, and defense from physical invasion by an enemy. All tasks for which you need to be here, in the US, to perform. Deployment on the other side of the world in a war against and occupation of another country certainly sounds like foreign, not domestic affairs.

So, I am not at all certain that even if this list of jobs for the Militia is just a starting point, that non-domestic tasks should be included.