Positive Liberty

It’s a rare enough occurrence, although not unknown, that it’s worth pointing out. The judge allegedly lied under oath and accepted payoffs. The vote in the House was unanimous, which is gratifying. He was appointed by Clinton, but the Democrats aren’t about to take a fall for a mere District Court judge.

Eugene Volokh posts the articles of impeachment at the Conspiracy.

Will Porteous resign before there can be a trial in the Senate? I’m sure the Senators would appreciate not having to take time to prepare for and conduct a trial. As would Obama, presumably, since it would be just one more obstacle in the path of accomplishing his legislative agenda.

Based on this report from the Congressional Research Service, it looks as though Porteous would retain his pension if he resigned, but not if he is convicted in the Senate. However that judgment seems to be based only on a DOJ opinion from 1974, concerning Nixon. Since the Constitution is silent on the issue of pensions, and there’s been no authoritative Court ruling, I’d say the jury–so to speak–is still out on that issue.

Friend and co-blogger Jason Kuznicki was quoted in the Richmond Times-Dispatch on the Fred Phelps/hate speech case:

The only remaining rationale for censoring hate speech — or a similar incendiary expression of opinion, such as flag-burning — is that it inflicts emotional pain. But the Cato Institutes’ Jason Kuznicki makes quick work of this by asking a few simple questions: How are we supposed to measure emotional pain? If we could measure it, what level of pain would be sufficient to trigger punishment? If a news organization broadcasts a hateful message to Jews and gays simply by reporting on a demonstration by the WBC, then should the news organization also be held liable for damages? What else should we ban? Continue Reading »

Here is my friend, blogfather, and former co-blogger, Timothy Sandefur speaking on the Privileges Or Immunities Clause at Cato’s forum on on McDonald v. Chicago. (He wrote Cato’s brief for the McDonald case.)

Also, if you watch Sandefur, please stick around for Doug Kendall’s speech. See Doug on McDonald’s oral argument at Balkinization here.

Finally, the Volokh Conspiracy did outstanding work blogging the Privileges or Immunities Clause. See here.

I despise federalists of convenience. NPR this morning had a section on a challenge to Chicago’s gun control rules to be heard in the Supreme Court today, and it features a notable role reversal.

A lawyer for the City of Chicago makes this deliciously boll weevilish states’ rights argument.

Benna Soloman, deputy corporation counsel for the city of Chicago, says that all the talk about the Second Amendment ignores the basic framework of the Constitution. Continue Reading »

The Volokh Conspiracy discusses legal scholar Philip Hamburger’s work in progress that argues the 14th Amendment doesn’t properly incorporate the Bill of Rights against the states.

This particular thread has an illuminating discussion on the matter.

Hamburger’s article is timely because SCOTUS may decide whether the Second Amendment incorporates against the states. And he is a heavyweight (he currently teaches at Columbia Law, formerly of U. Chicago) who has been cited by the Supreme Court. Continue Reading »

According to a class action complaint filed in the U.S. District Court for the Eastern District of Pennsylvania, the Lower Merion School District issued laptop computers equipped with webcams on a one to one basis to all high school students. Unbeknown to students or their families, the school district had and used:

… the capability to remotely activate the embedded webcam at any time the school district wished to intercept images from that webcam of anyone or anything appearing in front of the camera at the time of the activation.

On November 11, 2009, Plaintiffs were for the first time informed of the above-mentioned capability and practice by the School District when … an Assistant Principal at Harriton High School informed minor Plaintiff that the school was of the belief that minor Plaintiff was engaged in improper behavior in his home, and cited as evidence a photograph from the webcam embedded in minor Plaintiff’s personal laptop issued by the School District.

[Emphasis added.]

This is, of course, only one side of the story. If, however, the plaintiff’s allegations are true, this outrage constitutes perhaps the most egregious recent example of the incipient police state America is increasingly becoming.

Indeed, the fact that this school official, that any public school official would think it permissible to surveil student’s homes — where, if any reader has any doubt whatsoever, both the student and other family members unquestionably have a reasonable expectation of privacy — and, further, to think the practice is so unobjectionable that he would freely admit to photographing allegedly “improper behavior in [the student's] home” to attempt to discipline that student for conduct inside his home is simply breathtaking.

How many other school systems across the country, I wonder, are engaged this very minute in the very same practice?

And since, presumably, they are surveilling minors whose laptops could well be sitting open in their bedrooms as they dress or undress, etc., how many of these school officials could and should be charged with criminal possession of child pornography?

(H/T to Boing Boing.)

…just may be Hillsdale County, Michigan.

In response to finding out that I was called to jury duty, a friend, whom I’ll call B to preserve his anonymity, expressed surprise that we actually had jury trials in my county. In Hillsdale County, he explained, a jury trial was exceedingly rare, because the county prosecutor pled out 98% of cases. That’s not a typo–98%.

How do you get 90% of suspects to cop a guilty plea? Well, it’s not by ordeal, and it’s not by torture, either. It’s by giving them such a sweet deal that only a fool would refuse (talk about the economics of law!). For example, the guy who pled guilty to cooking meth in his house, in front of his two young daughters was probably ecstatic to be offered only a 30 day sentence. Having already spent 90 days in jail awaiting trial, he was immediately released, and presumably the County owes him 60 days the next time he’s busted.

And the guy who kidnapped his girlfriend, dumped her unconscious in a cornfield, then repeatedly drove his car over her? I’m sure he isn’t complaining too much about his two year sentence. (Fortunately she lived, but with extremely severe injuries.)

The prosecutor’s justification? He’s saving the county money. Of course the county could probably just eliminate the police force. They’d save more, and justice would hardly be less served.

In response to my “Lying About the Citizens United Case” post, commenter MarkusR asked questions that I think are important enough to deserve a blog post of their own.

First, he quotes me in the piece, previewing a “must-see” video that very quickly encapsulates how damaging the campaign finance laws are to everyday people…

Participatory democracy suffers under such a regime, as in very real, down-to-earth case of Karen Sampson, who found that “passing a hat” was legally insufficient for neighbors engaged in local activism.

Then, he asks two questions (which I’ve numbered for convenience)…

1) Is this an admission that the bottom half of America’s economic ladder is politically powerless? 2) And that they should rely on those with the wealth and the corporations to look out after them during election cycles?

My answers… Continue Reading »

There are two obvious alternatives to asking God to …find facts in doubtful cases. Justiciars could ask accused persons if they’re guilty. Alternatively, they could threaten to torture accused persons to encourage them to tell the truth. The trouble with these approaches is that they produce significant mistakes. Every accused person asked about his guilt proclaims his innocence. Torture has the opposite problem: if it’s threat is ominous enough to prompt guilty persons to confess, it’s ominous enough to prompt innocent persons to confess too.

In contrast, ordeals could correctly identify defendants’ guilt or innocence because they imposed different expected costs on guilty and innocent defendants. Consider how a medieval citizen’s belief that ordeals were iudicia Dei influenced his incentive to undergo or decline an ordeal.

Suppose a medieval farmer accuses his neighbor, Frithogar, of stealing his beast. Frithogar denies it. The farmer has no witnesses but is well respected. Frithogar isn’t. The court doesn’t believe the farmer would accuse Frithogar for no reason. It orders Frithogar to the hot water ordeal.

Frithogar believes in iudicium Dei. He believes that by performing the appropriate rituals, priests can ask God to reveal his guilt or innocence through the hot water ordeal and that God will do so. To evidence his innocence, God will perform a miracle, preventing his arm from being harmed by the boiling water. To evidence his guilt, God will let the boiling water harm him…

What will Frithogar do? Suppose Frithogar stole the farmer’s beast. He knows this, but nobody else knows. In this case, if Frithogar undergoes the ordeal, he expects to burn his arm. What’s more, by doing so, he expects to reveal his guilt and thus to suffer the legal punishment for stealing beasts: a large …fine. Frithogar’s other option is to decline the ordeal. He can avoid the ordeal by confessing to the crime or settling with the farmer. Both alternatives “punish” him.

But neither is as punishing as the …fine for stealing beasts. By declining the ordeal, Frithogar suffers less punishment than if he undergoes it. He also saves his arm. Thus, if he’s guilty, Frithogar will choose to decline the ordeal.

Now suppose Frithogar is innocent. The farmer’s beast wandered off. Frithogar knows he didn’t steal it, but nobody else knows. In this case, if Frithogar undergoes the ordeal, he expects to deliver his arm from the boiling water unharmed. What’s more, by doing so, he expects to reveal his innocence and thus to avoid legal punishment. If Frithogar declines the ordeal and confesses or settles instead, he suffers a punishment for a crime he didn’t commit. Thus, if he’s innocent, Frithogar will choose to undergo the ordeal.

Naturally, priests had wide latitude to fix the results of the ordeal, and so justice (for want of a better word) was served.

Maybe I’m taking this ultra-contrarian law and economics stuff too literally, but…

Most people today seem to believe (a) that torture is efficacious at finding the truth, and (b) that if they personally have nothing to hide, they will not crack under, e.g., waterboarding.

Just like the ordeal, these procedures can also be fixed by our benevolent, all-knowing inquisitors. We can therefore presume that anyone who really believed himself innocent would (read should!) stick around and let the government torture him.

So… Should we not incorporate torture into our ordinary criminal justice system? And conclude that anyone who runs away must be guilty? This would be more economically efficient than just asking them, right?

“What wonderful delectation,” says the Academic.

“I always prefer efficiency over liberty,” says the Cynic.

But wait, there’s more…

“Every accused person asked about his guilt proclaims his innocence,” says Professor Leeson. Really? Not only does this fly in the face of all prosecutorial experience, ever, anywhere, but there’s a particular reason to believe that “asking about guilt” was very, very effective in the middle ages.

That’s because the accused were never simply asked. They were asked to swear to God, in public, on a Bible, in various procedures that, from the sacred standpoint, look a whole lot like an ordeal: May God strike me down if I tell a lie, may he afflict my family, may he cause me to choke on my next bite of bread, even. The “ordeal” that we think of as a discrete judicial procedure was rather the extreme end of a continuum that included “just asking,” and torture too. Famously, it was known as the question, and the first step in the procedure was often simply to show the implements of torture to the accused. And ask him again, under oath.

There simply weren’t the clear lines between asking, ordeal, and torture that Prof. Leeson wants us to use in our reasoning. Asking, ordeal, and torture were all part of the mix, and authorities commonly had wide discretion to apply whatever specific methods they had in mind. In each case, the matter was already in God’s hands, and the stakes were very real.

The medieval inquisitorial system wasn’t neatly separated out into different methods of inquiry, and exhausting one method didn’t mean that the others were off the list. The motto was, rather, if at first you don’t succeed… and inquisitors were rarely satisfied with failure. The idea of a regular, algorithmic process, which the whole argument seems to rest on, is a later creation.

At some point, and I do hate to say this, contrarian economics just runs away with itself. We only get to our delightful gee-whiz conclusions through a lot of glib assumptions, the very sort that rigorous social science ought to challenge. I worry that in doing work like this, economists only make economics look silly.

I’ve been called to jury duty. Ugh. I am fully aware of the history of the development of jury trials, and I fully support the institution. And I don’t actually have any objection to sitting on a jury, other than the general unpleasantness of the task, and have done so once before.

But I literally have no one to take over all my classes for me, and I have no flex built into my research methods course schedule because there’s so damn much to cover.

With any luck, I’ll just sit around for a few hours until they decide to bounce me because I’ve taught law courses and they’ll conclude I won’t be amenable to the trial lawyers telling me how to interpret the law.

CREDO Action sent out an alert, echoing media talking points I’ve heard from many mainstream media sources, regarding last week’s Citizens United campaign finance decision…

We deserve a country where our elected officials are not bought and paid for by Big Business. But last week’s Supreme Court decision in the case Citizens United vs. FEC overturned over a century of precedent and opened the floodgates for unlimited amounts of corporate money to flow into our political system.

That paragraph is profuse prevarication. But I’ll only focus on one lie in this piece.

FACT: The Citizens United decision (CU) overturned only one case, plus the most heinous part of another.

Congressman Alan Grayson takes the lie further and makes it more explicit.

By gutting the 100-year-old Tillman Act ban on corporate contributions, the U.S. Supreme Court has opened the door to political bribery and corruption on the largest scale imaginable.

The Tillman Act wasn’t even considered in this case. It remains in effect. Corporations still can’t make direct contributions to candidates.

However, corporations used to be able, even under the Tillman Act, Continue Reading »

Expert witness David Blankenhorn, testifying in favor of Prop. 8, seems to have completely crumbled on the stand. Among the interesting tweets from an observer:

On cross, “expert” Blankenhorn revealing lack of familiarity with materials listed in his own expert report produced for this trial

Blankenhorn testifies “we would be more American on the day we permitted same-sex marriage than the day before”

Blankenhorn testifies that allowing gays & lesbians to marry would improve the well-being of their households & their children

Blankenhorn acknowledges that gays and lesbians are raising biological and adoptive children

Blankenhorn admits research shows biological and adoptive parents capable of raising children well

Blankenhorn: has not engaged in a “scientific” study of the affects of same-sex marriage in countries where it’s permitted

Blankenhorn testifies he has never taught at a college or university

Blankenhorn testifies that he has only published one other outside peer-reviewed piece, also not about same-sex marriage

Boies notes that Blankenhorn’s Master’s thesis (he has no doctorate) was about two Victorian cabinetmakers

An interesting question to pose to supporters of Prop. 8 and similar: If banning same-sex marriage hurt 1,000 children in gay and lesbian families, and helped 1,000 children in straight families, each by an equal amount, and if it had no other effects — would you still want to do it? If so, why?

What if banning same-sex marriage helped one child in a straight family, but hurt 1,000 children in gay and lesbian families? And if it had no other effects? Still want to do it?

In other words, is it really about the children?

From Justice Scalia’s opinion in the 2009 case of Melendez-Diaz v. Massachusetts. The facts of the case are irrelevant. This priceless gem of legal reasoning stands on its own. I can only wonder if Scalia has any sense of irony.

It is the dissent that seeks to overturn precedent by resurrecting Roberts a mere five years after it was rejected in Crawford.

Those interested in following the story my colleague Mr. Kuznicki discusses below should read Scott Horton’s lengthy report in Harper’s entitled “The Guantánamo ‘Suicides’: A Camp Delta sergeant blows the whistle.”

I take no position on the particulars of Mr. Horton’s story. I have not read the “heavily redacted” 1,700 page U.S. Naval Criminal Investigative Service report following the deaths officially described as suicides of three prisoners at Guantánamo on June 9,2006. Nor have I examined any of the evidence either Mr. Horton or the NCIS has apparently relied upon.

Thus, I will say only this. If the United States wishes to hold its system of justice up as an example to the rest of the world, then at the very least we must hold both our military and our civilian officials to the same standards we purport to uphold. Nothing less will suffice for the rest of the world to take us seriously and nothing less should suffice for us, either.

Corporations, unions, advocacy groups, nongovernmental organizations and the like are not people. Yes, I know, that sentence merely proves what a keen grasp of the obvious I have. But such organizations are ‘persons,’ at least for certain legal purposes and, more importantly, they are comprised of real people, people who join or participate in or contribute to such organizations for various purposes. Not the least of which are political purposes.

Understood as such, it should come as no surprise that the Supreme Court ruled on Thursday that key provisions of the Bipartisan Campaign Reform Act of 2002, better known as McCain-Feingold (and more properly understood as the Collusive Incumbent Elected Officials’ Protection Act), violated the First Amendment’s prohibition against restrictions on free speech in general and political speech in particular. Continue Reading »

Connor Friedersdorf writes:

[I]t is penny wise and pound foolish to worry about creeping tyranny via government-run health care or gun control when we’re another terrorist attack away from popular support for an archipelago of secret prisons where anyone can be whisked away and tortured without any evidence against them. Look to Europe if you doubt whether government-run health care or black sites run by secret police are a more immediate threat to the liberty of innocents.

Do you think that I exaggerate?

Know that one of the Gitmo Three was arrested at age 17, held for some years without being charged, and scheduled for release at the time of his death due to the military’s conclusion that no evidence linked him to al Qaeda or the Taliban. We may never know exactly how he and his fellow detainees died: A conclusive, independent autopsy is impossible because their bodies were returned to their families with their throats missing.

I fully expect he will be written out of the conservative movement for this. Good for him, bad for it.

I do wish people would understand: While life goes on, and we may always chatter about films, or about What Ayn Rand Means to Me, this is what’s really important. In thirty years, no one will care about anything we say or do, except insofar as it bears on this question. Did you support or oppose these gross attacks on civil liberties?

Today is the day when pro-lifers nash their teeth in anguish over the 1973 Roe v. Wade decision, and when pro-choicers gnash their teeth in anguish over the fact that pro-lifers haven’t yet acquiesced to the Supreme Court’s ruling.

But I find the abortion debate particularly unenlightening. It consist of little more than two sides iteratively reciting a very limited set of very familiar arguments. There are no arguments pro or con which are less than 25 years old, yet each side continues to ritualistically invoke them as though mere repetition alone can change minds. My perspective is that neither side can convince the other because both side’s arguments have real power. Each has announced their own set of legitimate interests, but neither side has ever successfully rebutted the other side’s claim of legitimate interests, nor successfully demonstrated that their interests should always trump the other’s interests.

I want to examine the issue from a different perspective; a biological history perspective. I make no claim that this perspective will resolve the debate, but I believe both sides would benefit–intellectually, and perhaps morally, but not necessarily politically–from looking at abortion in this way. This is a bit long, as the biological argument requires quite a bit of setup, but if you’re game, please click the “continue reading” button. Continue Reading »

Here are some replies about rational basis and the gender dyad.

This one line that I wrote seems to be getting a lot of pushback:

Perhaps the idea of men mating with women is instinctive to the animals, but to humans it is not.

Admittedly I wrote this from a position of ignorance. I am the most entirely homosexual person you are ever likely to meet. I’ve never, not even once, had a significant sexual attraction to a woman. I therefore do not know what it takes to instantiate heterosexuality. A significant gap in my knowledge.

This gap corresponds frighteningly well with what I hear from the other side of the SSM debate, namely that getting to heterosexuality is really really difficult. It seems that people are constantly falling off the wagon, and if we don’t make public, social, coercive efforts to enforce heterosexuality, then everyone will just turn gay. Or get a latex fetish. Or a boob job. Or something equally horrible.

Now, a cynic will say that all this is just reboiled Leviticus with a tinge of Freud, but it happens to fit my own subjective experience of the world, in which I would probably not think to invent heterosexuality at all, nor guess its importance, if I were placed in the state of nature with all of my proclivities but none of my knowledge intact.

That doesn’t mean that Jason-plus-Leviticus-via-Freud is necessarily right. (Thank goodness.) Given the vast panoply of cultural differences all across the world, and the unmistakable fact that somehow all these people end up overwhelmingly heterosexual anyway, I have a hard time believing the thesis that it’s difficult to wind up a heterosexual. Clearly it’s very easy. Even if we don’t know the exact mechanism by which it happens, one thing we can say with confidence about that mechanism is that it’s robust as all hell.

Saying that it’s weak may make intuitive sense to me, and it may be strategically useful for the other side, but overall, the data just doesn’t support the thesis. Men mating with women is instinctive to the vast majority of humans, and there seems to be very, very little we can do to change it.

Tom van dyke writes,

Still, procreation will remain the easy part, until at least the year 6565. It’s keeping the parents [usually the men] around to raise and provide for their spawn. I imagine the marriage equation would look quite different — if it existed at all — if there were no such thing as children. As it stands, especially after Lawrence, the state has no compelling interest in anything but procreative sex, and marriage laws hang on that hook.

I am unmoved by the appeal to a counterfactual here. Sure, marriage would look different if we didn’t all start out as helpless, crying, drooling infants. (Tell me about it. I go home to one of those creatures every evening, and I love her to death. Besides drooling, she’s also super cuddly.)

But marriage would also look different under a host of other counterfactual scenarios. Many species typically die during childbirth, or even during mating. What would marriage look like if humans were one of them? What would marriage look like if human lifespans were radically extended — say, to 10,000 years? Would we still feel the same about “till death do us part”?

Marriage wouldn’t even be the same if there were no private property, as Marx candidly admitted. And I can think of a gentler counterfactual still, but one that would have a radical effect on marriage: Suppose it were the law that no one paid taxes during life, but that on death, all estates went to the government. Never mind the merits or demerits of this idea, which I’ll pass on for now. Marriage as we know it would be radically altered.

But the interesting thing about all of these counterfactuals is that they are purely imaginary, at least for the moment. What do they prove about marriage today? Not much from what I can tell. Yes, heterosexuality produces children. Sometimes it happens unintentionally. As a homosexual man, in a homosexual marriage, who is raising an adopted child who wasn’t produced intentionally, you don’t have to tell me twice. Heterosexuals: I am well aware of your tendency toward irresponsibility. I just don’t get how it follows from this that my family can’t get married. Particularly given how we, in our family, are being responsible, and given how we are raising a child who is wanted and loved. [n.b.: I was accused, I think rightly, of being unkind to heterosexuals in the final sentence of this paragraph as it formerly read.]

Quetzal asks:

To what extent must one show that the proposed rational basis is actually consistent with objective fact?

To which I’d answer, not much.

Earlier I cited Railway Express v. New York (1949) as a case that typifies rational basis review. That case challenged a New York law holding that advertising was forbidden from streetcars, unless it was advertising for the streetcar company itself. The rationale for the law was that advertising causes traffic accidents. The streetcar company argued in response, basically, that streetcar-company advertising causes traffic accidents that can kill you just as dead. And besides, Times fucking Square. The Court was unmoved.

Jon Rowe writes:

If it’s about “sexual orientation” discrimination, rational basis is triggered at the US Fed. constitutional level. However, if it’s about “gender” discrimination, intermediate scrutiny is triggered.

I believe that this is correct, as far as it goes, but (in my perhaps idealized understanding) the courts are to use the strictest test that is applicable. Because marriage is a fundamental right, I believe that strict scrutiny applies.

Still, a finding based on intermediate scrutiny is entirely possible. It also strikes me as the correct result, provided that we somehow reason our way out of the marriage/fundamental right/strict scrutiny paradigm.

I say this because homosexuals as a class already do have the right to marry: If male, they can marry a female. If female, they can marry a male. Their rights as a class are precisely equal to heterosexuals’ rights as a class.

And just in the act of explaining something quite elementary, we’ve stumbled on an important truth — this isn’t a question of discrimination against homosexuals. It’s a question of gender discrimination, and of two interlocking, complementary regimes thereof, one for males and one for females.

Does this regime pass intermediate scrutiny? Under intermediate scrutiny, a law must be “substantially related” to an “important” government purpose. But my blogging time for today is up, and I see that I will have to discuss this later, possibly in the comments.

New commenter Johnny writes:

I have a question regarding rational relation. I am an attorney, although I have not studied the Court’s levels of scrutiny since I was in school 6-8 years ago. What is the rational relation between a limitation of the marriage right and procreation? Why is it rational to believe that limiting [marriage] to opposite-sex couples will promote the goal? I just don’t see it. Further, I believe it could be argued that human beings, as with other species, need no extra incentive to procreate. We are hard-wired to do so, and will continue to do so, whether or not the state protects any right to marry at all. Thus I don’t see how this is rational at all.

For example, would segregation laws meet a rational-basis review, if that were the level of scrutiny applied? Would a rational person believe that separating the races would promote public safety? What if I wanted fruits and vegetables to be sold in separate stores because I thought their demons would mix in the air? Certainly absurd to ME, but would such a law pass rational basis review? Perhaps you know of some other cases that discuss rationality, and I will be looking as well.

At what point do we stop and ask – is this really rational? Doesn’t rationality require at least a modicum of support? And if so, what support can the [same]-sex-opponents provide?

One claim made by clearly rational people is that gender duality is important, and that it needs to be taught and re-taught to each succeeding generation. If we lose the idea that men and women are distinctive, then we will lose procreation, and with it all of society itself. Perhaps the idea of men mating with women is instinctive to the animals, but to humans it is not. For us, at least so I infer, the gender dyad is more like language — if you never teach it, it’s lost in the rising generations.

This is actually the strongest argument I can find for prohibiting same-sex marriage. It convinces people where many other arguments fail. The trouble I personally see with it is that it proves too much. Similar claims were made about women earning more money than men, about women in higher education, about women’s legal status after marriage, and lots of other things besides. It seems to prove too much, and to have been falsified too often.

But is it rational to think this way? By my understanding of the law, it meets the test.

The life of the law has not been logic; it has been experience. – Oliver Wendell Holmes, Jr.

My colleague, Mr. Kuznicki’s recent posts on the Supreme Court’s varying Equal Protection Clause jurisprudence and several of the comments those posts have generated exemplify several salient points in the philosophy of law in general. I don’t criticize his attempts to bring order out of chaos or to ponder the relative strengths and weaknesses of arguing whether homosexual marriage is a fundamental right or liberty interest or whether homosexuals do or should constitute a suspect classification or how one might mount a compelling legal argument under the Court’s rational relationship standard or some intermediate standard. That’s what policy wonks and legal scholars do, and while he offers the usual disclaimer of not, himself, being a lawyer, I’ve found no evidence to date that he has misunderstood the topic. (Assuming, that is, that I understand it, myself.)

But there is an underlying question, Continue Reading »