It looks like the presidential election is going to be haunted by the ghost of Estelle Griswold. She was the director of Planned Parenthood in Connecticut when she was fined $100 for violating laws of the Nutmeg State against disseminating contraceptives. It was in her appeal that the Supreme Court discovered, among the penumbras, emanations, and shadows in the Constitution, a right to privacy. Nearly 50 years later, it seems the questions she raised are again at the center of our political debate—not because anyone wants to ban contraception, but because the government wants everyone to pay for it. These questions burst into the presidential debates in January at Saint Anselm College in Manchester, New Hampshire. ABC’s moderator, George Stephanopoulos, kept pressing Mitt Romney to explain whether he thinks states have the right to outlaw contraception. “Or,” Stephanopoulos asked, “is that trumped by a constitutional right to privacy?” Mr. Romney tried to dodge the question, and complained it was silly and hypothetical, given that no state wants to ban contraception. The exchange went on until Mr. Romney suggested referring the matter to “our constitutionalist here”—and gestured to Ron Paul. In an editorial at the time, the New York Sun suggested the governor should have confronted the substance of the question, even if Mr. Stephanopoulos’s intent was to make trouble. Mr. Romney is, after all, a graduate of Harvard Law School, and he had to know all about Mrs. Griswold. The court’s opinion, written by one of the most radical judges ever to sit on the bench, William O. Douglas, declared that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” Connecticut’s ban on contraception, the official case summary says, violated “the right of marital privacy which is written in the penumbra of specific guarantees of the Bill of Rights.” The right to privacy, established in a seven-to-two decision, has proven hard to assail. Connecticut was defeated even though its people had been exercising the power to regulate birth control for more than a century. In and of itself, that doesn’t make the court’s ruling wrong. It does put a premium on parsing the dissent, which was written by one of the plainest-spoken judges on the court, Potter Stewart. Stewart was a moderate Republican from Ohio who had once been the youngest judge on the federal bench. President Eisenhower used a recess appointment to raise him to the high court, though he was later confirmed by a wide margin. He was a common-sense man. It was Stewart who uttered the formulation that although he mightn’t be able to define pornography, he knew it when he saw it. When it came to Mrs. Griswold and the question of contraceptives, he delivered a dissent that, even though it was joined only by Justice Hugo Black, is remembered as a classic. Stewart quoted an earlier case about how “courts do not substitute their social and economic beliefs for the judgment of legislative bodies…” He reckoned the law that had snared Mrs. Griswold was “uncommonly silly,” but he mocked the notion that the First, Third, Fourth, and Fifth Amendments, which were cited by the majority, prohibited the Connecticut legislature from regulating birth control. He noted that no one even argued Connecticut’s was a law respecting an establishment of religion or prohibiting the free exercise thereof. Nor, he wrote, “unless the solemn process of constitutional adjudication is to descend to the level of a play on words,” was there any abridgement of the rights to speech, the press, peaceable assembly, or petition. He seemed astounded that one of the constitutional articles in which the majority found a right to privacy affecting birth control was the Third Amendment, which prohibits the quartering of soldiers in a private home in time of peace without the owner’s consent. “No soldier,” he exclaimed in his dissent, “has been quartered in any house.” “What provision of the Constitution, then, does make this state law invalid?” Stewart demanded. “The Court says it is the right of privacy ‘created by several fundamental constitutional guarantees.’ With all deference, I can find no such general right of privacy in the Bill of Rights, in any other part of the Constitution, or in any case ever before decided by this Court. At the oral argument in this case, we were told that the Connecticut law does not ‘conform to current community standards.’ But it is not the function of this Court to decide cases on the basis of community standards. We are here to decide cases ‘agreeably to the Constitution and laws of the United States.’” Finally, Stewart noted, it was “the essence of judicial duty to subordinate our own personal views, our own ideas of what legislation is wise and what is not.” He remarked that powers not delegated to the federal government by the Constitution are reserved to the states and to the people. “If, as I should surely hope, the law before us does not reflect the standards of the people of Connecticut, the people of Connecticut can freely exercise their true Ninth and Tenth Amendment rights to persuade their elected representatives to repeal it. That is the constitutional way to take this law off the books.” How all this might have gone had the court left Connecticut to deal with the question is something to think about right now. The right to privacy the court discovered in Griswold was one of the bases on which Norma McCorvey, being heard as Jane Roe, pressed her case against the district attorney of Dallas County, Henry Wade, in the appeal that became Roe v. Wade . Instead of resolving the great conflict, Griswold has extended it for decades. We have reached a point where the question is no longer whether contraception is protected by a right to privacy, but whether the government may require private companies to pay for it, whether they want to or not. One can only imagine what Potter Stewart would have made of all this. Having been outvoted in Griswold , he fell in with the majority in Roe v. Wade . He stepped down from the high bench in the first summer of the Reagan administration and was succeeded by Justice Sandra Day O’Connor. He died in 1985, four years after Mrs. Griswold herself passed away in Florida. It may be that by the time this column is published, Senator Santorum will have dropped out of the Republican primaries, and the social issues of which he is a tribune will have abated. But it may also be that Mrs. Griswold’s ghost will flit in and out of the courts for some time, along with the spirit of Potter Stewart.
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Mrs. Griswold’s Ghost
From The Hill: Warren found listed as a minority professor at second law school By Josh Lederman – 05/10/12 Elizabeth Warren was listed as a minority professor by a second law school in a report detailing the school’s progress in creating a diverse faculty. In addition to Harvard University, where Warren is on faculty, the Read more: 2nd Law School Listed Warren As A Minority
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2nd Law School Listed Warren As A Minority
So this morning the Washington Post runs a story detailing what kind of a jerk Mitt Romney was in high school. This is a surprise, right? A high school kid being a jerk. This has never ever happened before. Why, you might well ask, would the Washington Post devote valuable time and space to writing about this event? And why, you might well follow up, is this worth posting about when everyone should be talking about the environment? The answer is easy. It builds a meme and it translates Obama’s endorsement of gay marriage from a liability into a perceived strength. If you missed this is the graf that has the left exercised: BLOOMFIELD HILLS, Mich. — Mitt Romney returned from a three-week spring break in 1965 to resume his studies as a high school senior at the prestigious Cranbrook School. Back on the handsome campus, studded with Tudor brick buildings and manicured fields, he spotted something he thought did not belong at a school where the boys wore ties and carried briefcases. John Lauber, a soft-spoken new student one year behind Romney, was perpetually teased for his nonconformity and presumed homosexuality. Now he was walking around the all-boys school with bleached-blond hair that draped over one eye, and Romney wasn’t having it. “He can’t look like that. That’s wrong. Just look at him!” an incensed Romney told Matthew Friedemann, his close friend in the Stevens Hall dorm, according to Friedemann’s recollection. Mitt, the teenaged son of Michigan Gov. George Romney, kept complaining about Lauber’s look, Friedemann recalled. A few days later, Friedemann entered Stevens Hall off the school’s collegiate quad to find Romney marching out of his own room ahead of a prep school posse shouting about their plan to cut Lauber’s hair. Friedemann followed them to a nearby room where they came upon Lauber, tackled him and pinned him to the ground. As Lauber, his eyes filling with tears, screamed for help, Romney repeatedly clipped his hair with a pair of scissors. Of course the story gets much sadder with Romney presumably responsible for the guy’s failed life and death from cancer. He came out as gay to his family and close friends and led a vagabond life, taking dressage lessons in England and touring with the Royal Lipizzaner Stallion riders. After an extreme fit of temper in front of his mother and sister at home in South Bend, he checked into the Menninger Clinic psychiatric hospital in Topeka, Kan. Later he received his embalmer’s license, worked as a chef aboard big freighters and fishing trawlers, and cooked for civilian contractors during the war in Bosnia and then, a decade later, in Iraq. His hair thinned as he aged, and in the winter of 2004 he returned to Seattle, the closest thing he had to a base. He died there of liver cancer that December. He kept his hair blond until he died, said his sister Chris. “He never stopped bleaching it.” There are unanswered questions here, like what this has to do with anything, how a high school dropout bummed around Europe taking dressage lessons and, my favorite, how getting an “embalmer’s license” led to a culinary career? But the Post doesn’t address them. The main source for this vignette is a former classmate of Romney’s named Stu White. According to the Washington Post: “I always enjoyed his pranks,” said Stu White, a popular friend of Romney’s who went on to a career as a public school teacher and has long been bothered by the Lauber incident.” But ABC News reports “White was not present for the prank, in which Romney is said to have forcefully cut a student’s long hair and was not aware of it until this year when he was contacted by the Washington Post.” From this it is pretty clear that the Lauber incident did not unfold in the way the Washington Post describes, if, indeed, it happened at all. ( h/t to the Daily Caller ) Why this and why now? As we’ve mentioned before this is all part of a process to brand Romney as a vicious, thoughtless, out-of-touch rich guy. It is really Obama’s only hope as he can’t possibly win if he runs on his objective accomplishments. This story has obviously been in the works for a while but the news value of it is questionable. It is the basic oppo dump material that the Washington Post obediently churns out on Republicans. As Major Garrett reports in National Journal , the whole Biden-evolving postion idea was a scam to allow Obama to support gay marriage: Did Obama sacrifice huge swaths of swing voters? Probably not. The polls have shifted to net favorable on the question of same-sex marriage and independents are unlikely to punish Obama for a policy position consistent with everything else he’s done on gay issues. Social conservatives will, of course, be aggrieved. But they were already. Also, consider this on the gay-marriage pronouncements: Biden was first, Obama second. That the two happily reversed the common order of things ought to tell you something about their relationship (solid), their understanding of tactics (advanced), and how they can play Washington’s chattering class for fools (easily). But suddenly, the nothingburger story developed by the Post had a hook. In fact it had a hook that could effectively frame the entire story to fit into the overarching Obama campaign. Obama was against gay marriage, but then he met parents of friends of his daughters who were gay and the subject was discussed at family dinners and he changed his mind. Another “gutsy call” in which he took an unpopular position after carefully weighing everything, and, of course, consulting his deeply held Christian faith. Romney, on the other hand, when he went to an elite private school for elite rich kids relentlessly bullied a kid who was gay and continues his bullying and homophobia to this day by not supporting homosexual marriage. It all fit. And the Post was able to make good on its investment. The ABC story makes it clear that there are other Romney classmates lining up to dish on him, presumably after they sign with a literary agent: One former classmate and old friend of Romney’s – who refused to be identified by name – said there are “a lot of guys” who went to Cranbrook who have “really negative memories” of Romney’s behavior in the dorms, behavior this classmate describes as “evil” and “like Lord of the Flies.” The classmate believes Romney is lying when he claims to not remember it. “It makes these fellows [who have owned up to it] very remorseful. For [Romney] not to remember it? It doesn’t ring true. How could the fellow with the scissors forget it?” the former classmate said.
Will Some Evil European History Repeat Itself? We think single currencies really require single governments…There’s nowhere in the world that has more of a single currency without having more of a single government. British PM David Cameron (HT: The Daily Mail). In 2006, The Duke Law School sponsored an academic paper written by Buchheit , Gulati and Thompson. The paper, The Dilemma of Odious Debts, discussed how to handle an international incurred by an iniquitous government and them bequeathed to a less pestilential successor. A portion of the abstract defines the term “Odious Debt.” Public international law requires that states and governments inherit (“succeed to”) the debts incurred by their predecessors, ….Among the purported exceptions to the general rule of state succession are what have been labeled “odious debts”, defined in the early twentieth century as debts incurred by a despotic regime that do not benefit the people bound to repay the loans. In the aftermath of the bizarre, amusing and scary Greek Election this past weekend, Alexis Tsipras, the head of the Greek Party Syriza has been tasked with forming a Greek Government. He wants this New Greek government to repudiate all the debts that were run up by the Big Fat Old Greek Government. He is insisting that the banks of Greece be nationalized and that all of the debt that they owe under the terms of the EU-IMF bailout be declared odious. The ECB* predictably slapped hard on the wrist of Tsipras. Jorg Asmussen (An important ECB official) explained that the Greeks could open their wallets and zip their soup-coolers. Greece must be clear that it agreed to this rehabilitation program is no alternative, if it wants to remain a member of the Euro-zone Asmussen, like British PM Cameron above has hit upon something vital. Economic cooperation pre-supposes a significant level of dare I say it, nationalism. People are either in on the deal to the bloody hilt, or they are completely and totally out. So the ECB can collect off of Greece or it can ostracize them in toto. The dramatic repudiation of the center in Greek politics has made this impossible. There will be no “work-out” session between “reasonable men.” Tsipras gains strength in his inanity from the total deracination that surrounds him in Athens. If Chancellor Merkel and President Hollande have no interest in making a deal with Mr. Tsipras, permit me to introduce their alternative negotiating partners. As for the debts, Greece is bound and determined not to pay back one red Euro. That money is probably gonesville unless the ECB wants to assume a more forceful posture in their efforts to recover the funds owed by Greece to the rest of Europe. Do the Greeks care if they are ostracized? The Golden Dawn (pictured above) doesn’t believe in cruelty to animals. Rather than putting moats filled with alligators on Greece’s borders, they believe in landmines instead. The also publicly and openly declare their hatred for Germany and its “banksters.”** So yes, the Far Right’s version of Occupy Wall Street now has 21 seats in the Greek Parliament. While Golden Dawners in no way support the government of Hardline Leftist Alexis Tsipras; they certainly give him a serviceable boogeyman anytime he feels like making bankster-like minions of the Brussels bureaucracy dance to his tune. Thus, Europe gets to make The Devil’s Choice – cut a profligate Southern European EU member loose or militarily force their compliance. The decision made in Brussels will give us keen insight as to whether Francis Fukuyama was in any way right about history being over in Europe. * – The ECB is Europe’s less lovable version of the FED. ** – “Bankster” – the new litmus test for idiots. Say this word w/o appropriate html sarcasm tags and I can classify your IQ as no greater than about 85.
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Do Welfare States Incur Odious Debts?
One of the best moments of Monsieur Lazhar by the Québécois writer-director Philippe Falardeau comes when 12-year-old Marie-Frédérique (Marie-Eve Beauregard) rises in the midst of an impromptu (and forbidden) class discussion about the suicide of a teacher and says this: “Everyone thinks we’re traumatized by Martine’s suicide, but it’s the adults who are really.” The discussion has been forbidden on the advice of the school psychologist (Nicole-Sylvie Lagarde), acting as specialist grief counselor. She, by teaching them that grief is the province of some “expert” prepared to treat it as a pathological condition, would have robbed these children of the vital experience of learning how to deal with a normal but painful part of life. That the discussion breaks out anyway is thanks to their new Algerian teacher, the eponymous Monsieur Lazhar (Fellag) who, uncorrupted by specialist educational training, is generally prepared to disregard unnecessary and harmful rules laid down by those more expert than he. To get the full impact of Marie-Frédérique’s moment of blinding insight, you have to take it in the context of an earlier discussion between her insufferable yuppie parents (Stéphane Demers and Nathalie Costa) and Monsieur Lazhar at a parents’ evening. Clearly, they have not come to learn anything from him about their daughter but rather to instruct him, in an offensively patronizing way, about how he should do his job. Equally clearly, Marie-Frédérique understands her parents and the adult world generally far better than they understand her or the educational process that must increasingly take place out of their sight, if it is to take place at all. One gathers that parents like these are not untypical these days, though they or anything like them would have been almost unheard of when I was a teacher. This is just one of the ways in which the film shows us how the inevitably two-way process of educating the young has been narrowed and restricted to the point where it is being utterly stifled, all supposedly in the interests of the young, and for their better protection from the shocks and hazards of the adult world, but in fact to their very considerable detriment. In fact, Monsieur Lazhar is really a critique of today’s educational orthodoxies but one which is well-disguised from the dominant culture that routinely defers to those orthodoxies. The disguise takes the form of the twin emotional traumas at the movie’s heart: the suicide of the former teacher and the terrible, searing bereavement suffered by the new teacher, M. Lazhar, whose whole family (a wife and two daughters) have been murdered by terrorists in Algeria on the eve of their departure for Canada. Emotionally, the bond that develops between teacher and pupils as a result of their shared experience of grief is so compelling that it may be easy to overlook the film’s scathing criticism of received opinion — which must be why it even gets the imprimatur, sort of, of the New York Times : Although it looks askance at the extreme measures parents and teachers take to protect children, often more knowledgeable and resilient than they’re given credit for, it acknowledges that some do need protection. It especially calls into question the strict modern rules that forbid any physical contact between teachers and students who in moments of crisis feel a desperate need for the comfort and reassurance that a hug can provide. This even though, writes Stephen Holden with the same patronizing tone as Marie-Frédérique’s parents, there are “glitches” in Bachir Lazar’s understanding of the ways of the enlightened West. “Most important” among these is that “he doesn’t know the rules about physical contact and lightly cuffs an unruly student.” On the contrary, there is every indication that he does know the rules — and that he is prepared to disregard them when necessary, and when they richly deserve to be disregarded. Count them up: there is hardly an educational shibboleth that goes unassailed here, beginning with the no touching, no hitting rule. “We handle kids like radioactive waste,” says the otherwise comic P.E. teacher Gaston (Jules Philip) who, with M. Lazhar, makes up two-thirds of the school’s male faculty: “Touch them and you get burned.” It emerges that Simon (Émilien Néron), the boy M. Lazhar cuffs, had also been hugged by his predecessor and, with the mischievous officiousness of youth, had reported her to the principal (Danielle Proulx) for it. He had then also been the one to discover her body, hanging from a pipe in their classroom. Both his classmate Alice (Sophie Nélisse) and his own smitten conscience suggest that he may be guilty in her death, and there is an immensely moving scene in which poor Simon, in the course of the forbidden discussion mentioned above, gives vent to his anguished feelings — and is comforted by M. Lazhar with a caress. The suggestion is that both the cuff and the caress, like Martine’s fatal hug and the forbidden discussion of it, are natural and necessary parts of the educational process which can now only take place surreptitiously and out of the eye of authority — mainly because the teacher’s own organically-grown and well-earned authority over those he teaches, as a result of being contemptuously treated by law and officialdom and divorced in the name of “professionalism” from the love that naturally attends it, has been so far eroded. How has this happened? By cowardice, social snobbery, legalism, over-protectiveness, bureaucracy, feminist ideology, credentialism and the dumbing down of the curriculum, among other ills, none of which can be discussed frankly, as Bachir and his kids defiantly discuss the suicide of Martine, and all of which are at least alluded to in the course of Monsieur Lazhar . It’s a very clever way of smuggling that discussion in under the cultural radar, but I wonder how many of those who see it will find it there, under the surface of this beautiful and moving film?
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Monsieur Lazhar
