23 March 2005

A few (slightly random) thoughts regarding Terry Schiavo' s murder

First: Her husband is a scumbag; I hope that Terry doesn't know that. I fear that she does. Poor woman. When Michael Schiavo filed that malpractice suit, he didn't mention Terri's wish to die.

Second: If starving and dehydrating people to death is so compassionate, then it is just impossible to see why Democrats spend so much time worrying about all the starving children, and, especially, accusing Republicans of wanting to starve children and the elderly. It is difficult to see how liberals complain that the U.S. sanctions against Iraq killed children by starving them to death. Never again, after this, ought Democrats to accuse Repuplicans of trying to starve children and old people as if it's a bad thing.

Three: I think we really need to know what happened the night before, or in the morning, Terri was found unconscious in her home. There was a violent argument the night before, and at least one person has asserted that she was planning to divorce her scumbag husband. (Interview with Barbara Weller [Schindlers' attorney](1st hour), Dennis Prager Show, (Mark Taylor, guest hosting), 21 March 2005.) I heard on the radio (either on Bill Bennet's show, Morning In America or Laura Ingraham) that the paramedics on the scene called the police to report a homicide; but I haven't had a moment to confirm this.

Four: Once again, Democrats demonstrate that for them, logic is simple: If conservatives are for it, then Democrats are against it. It seems to me that their goal has nothing to do with Terri, or right to die, or the privacy of the marital relationship. It's all about not allowing any kind, type, manner, fashion, or species of victory to the "religious right". The people trying to save Terri's life are--let's face it--those "pro-life fanatics" and no way are Democrats going to allow them a victory in this, or any other life vs. death, matter; and if Terri has to die, well, sacrifices must be made. It's right to die (i.e., culture of death) vs. right to life (i.e., culture of life).

Five: The Democrats' fellow travellers in the media insist on referring to Terri as being in a vegetative state, which she isn't. (Barbara Weller, "Last Visit Narrative," Fight4Terri, 20 March 2005.) This assistance is no doubt behind the polls which show that most Americans favor the removal of the feeding tube.

Six: Democrats love it when the fed usurps states' rights--until now. (You know, like when the Supreme Court usurps state authority in telling states that they cannot execute minors who are found guilty of capital crimes, or that they cannot prohibit abortion, or sodomy.) Suddenly, they are concerned out states' rights! As if these people really believe that states' rights trump the life of a single human being. Actually, I agree with Rush Limbaugh: what really has the Dems angry is having a court decision questioned; they believe in "government by judiciary." (Rush Limbaugh (2nd hour), 21 March 2005.) Democrats believe in judicial supremacy. (That's why they need to maintain control of judicial appointments.) The idea of having Congress questioning a court is anathema to them. (As long as they control the courts, of course.)

Seven: Democrats, who normally align with feminists, are concerned about the right of Michael Schiavo, a husband who has authority over his wife's life, to kill his wife.

Eight: Democrats are interested in everything about this matter--state's rights, sanctity of marriage, husband's authority, the supposed hypocrisy of Republicans, etc--except Terri Schiavo.

Nine: Michael Schiavo is going to get away with killing his wife, with the help of the judiciary. He has, if some nurses are to be believed, wanted her dead for years; and he is going to have his way. Thanks to the courts, of course.

Ten: I have been reading Walter Prescott Webb, The Texas Rangers, a history of the combination law enforcement/military organization up to the 1930s. Men like them would know how to save Terri from her husband and they wouldn't trouble the courts; and few would have what it would take to stop them, certainly not a black-robed, prophet-playing, egghead.

Eleven: Some--and we know where they stand--see what is happening to Terri as allowing her to die, not killing her. Some of these same people (James Carville?), I would bet money, have said that we (i.e., the U.S.) killed children in Iraq. No, we didn't actually kill them: our policies did; we allowed them to die. A policy is killing Terri. Years ago, I owned some property down in Texas. One of my tenants turned part of my land into his own person landfill. The county health department notified me that I was soon to be charged with creating a health hazard. When I informed the health department that, although I would see to it that the "landfill" was cleared, I did not believe that I had created the hazard since I never, at any time, in any way, gave my permission for any of my tenants to create a landfill and it was done without my knowledge, I was informed that I was liable because the law stipulated that one "shall not suffer, permit or allow" a health hazard to be created or to continue to exist on his property. "Suffer, permit or allow" was tantamount to creating the hazard myself! I do not see how anyone can not, logically, see that "sufferring, permitting and allowing" (in fact, requiring by judicial order) that Terri Schiavo be deprived of food and water until she dies is killing her. What, after all, is the difference between, say, telling a guilty man, "You shall be hanged from the neck until you are dead," and telling him, "You shall be deprived of food and water until you are dead"? Both are death sentences.

Twelve: It would be nice to know what was the "convincing evidence" that Michael Schiavo gave to Judge Greer, which made Greer confident about Terri's desire to die. I hope when this is all over, some journalist writes the story of how Michael Schiavo finally succeeded in using the courts to get rid of "the bitch". In fact, that journalist could title his book, All The Scumbag's Judges: When and How "The Bitch" Finally Died. (The subtitle is a reference to an assertion by CARLA SAUER IYER, R.N.,, in her sworn affidavit, that Michael wondered aloud, at least once, when "the bitch" would finally die.)

Finally: Nothing in this blog should be understood as communicating that I believe that Michael is, as of yet, actually guilty of anything. HOWEVER, some of the claims in many of the affadavits do lead me to believe that the matter should be heard de novo. (They also lead me to question either Judge Greer's ability as a finder of fact, or her legal counsels' ability.) I do not take them at face value, but they have not so much as been examined and cross-examined in a trial. This much at least should take place. And if some of the assertions about Michael are discovered to be in fact true, then the man ought to go to jail. It is his obstruction of every move that her parents make that have me angry with him. In the same shoes, and even with a living will and durable power of attorney, I would grant my in-laws as many second and third opinions as they could pay for. And I wouldn't try to keep them from having a day in court. We would, after all, be talking about their beloved daughter!
16 March 2005

Judge Kramer isn't the problem

The recent decision by San Francisco Superior Court Judge Richard A. Kramer, that California's ban on same-sex marriage is unconstitutional, seems to smack of judicial activism. (Kramer Opionion, at http://www.sftc.org/Docs/marriage.pdf.) Actually, it is a good example of what can happen when people advance legislation which is based on morality, while at the same time avoiding a discussion of morality.

Many are complaining that in finding no rational basis for the ban, Kramer advances his own subjective view. (E.g., Dennis Prager (3rd hour), The Dennis Prager Show, 15 March 2005.) But this isn't exactly what happened. What happened was that Kramer applied what is known as the "rational basis test", one of two tests for determining whether the equal protection requirement is violated. (The other is "strict scrutiny." Kramer applies both tests.) In applying that test (which we'll get to in a moment), Judge Kramer found that the law (i.e., California Family Code section 300, which states that a marriage is a union of a man and a woman, and section 308.5, which states that only a marriage between a man and a woman is valid) is unconstitutional. The law is unconstitutional because it violates the "equal protection and privacy provisions of the California Constitution." And it violates this protection because it fails both "rational basis" and "strict scrutiny."

Kramer begins his analysis by recognizing that "most legislation creates classifications for one purpose or another, and then differentiates upon the classifications." (Opinion, 3.) (This is an important consideration, since the law in question has to do with the classifying of parties who may and who may not marry, especially on the basis of gender.) Kramer further recognizes that this power "emanates from the police power under the United States Constitution...." But this power must be "reconciled with the equal protect clause, which provides that no person shall be denied equal protection under the law."

Reconciliation of police power with equal protection is "manifested in two tests that depend on the nature of the classification created by the legislation." (Opinion, 4.) The first test concerns legislation which creates classifications but does not "implicate fundamental rights." Here, the legislative act is presumed to be valid "as long as there exists a rational relationship between the disparity of treatment and some legitimate government purpose." And the burden is on the one who challenges the legislation. This is the "rational basis test." And this is the test Kramer asserts that the Family Code fails. The second test, "strict scrutiny," involves legislation which does implicate fundamental human rights or which create "suspect" classifications. On this test, the burden is upon the state, not the challenger, to demontrate both that a compelling state interest justifies the law and that the classifications created by the law are necessary. (Opinion, 5.)

It was disputed which of these tests ought to apply, but in the end it didn't matter. After stating that the strict scrutiny test applied to the case, Kramer said that Family Code sections 300 and 305.8 failed both tests.

How does the California law fail the rational basis test? In looking into the matter, courts look into "the correspondence between the classification [i.e., created by the law] and the legislative goals." (Opinion, 5.) We know what are the classifications involved (i.e., man, woman, same-sex, opposite sex, etc). What are the legislative goals?

The state offered two arguments supporting the law: (1) "opposite-sex marriage is deelply rooted in [California's] history, culture, tradition and...courts should not redefine marriage to be what it has never been before." (Opinion, 6); (2) "California has granted to same-sex couples virtually all of the rights that marriage entails." (Opinion, 8.) Quite frankly, one is hard-pressed to see how these two arguments, even if sound, constitute a statement of the purposes of the legislation.

To this first argument, Kramer replied that tradition alone cannot constitutionally justify a law. The argument just fails to explain the legitimate governmental purpose for the law. (Opinion, 8.) Now, much as I disagree with same-sex marriage, I find it difficult not to agree with Kramer here. (He'd be so proud to know that, I'm sure.) When someone asks you the purpose behind something, "Tradition" just isn't an answer. An answer might explain why something is a tradition, but tradition doesn't explain why. And to the second argument, he said it sounded like the old "separate but equal" doctrine that the Supreme Court rejected in Brown v. Board of Education of Topeka, et al.. (347 U.S. 483 [1952]) (Opinion, 9.)

So, when Judge Kramer, asserted that "it appears that no rational purpose exists for limiting marriage in this State to opposite-sex partners," (Opinion, 6) he was not talking about "rational" as if the term meant "makes sense to me, Judge Kramer." It seems clear that, when asked for one, the State offered no explanation of legislative purpose. When a judge asks for a statement of purpose behind a legislative act and doesn't get one, what else can he conclude but that the State does not have a purpose that it can articulate? And if one is looking at the rational basis test, and a statement of legislative purpose is missing, what else can one conclude about the relation between an act and a legislative purpose but that there is no relation between the act and some purpose?

There is one thing though. It doesn't look, upon reading Kramer's opinion, as if challengers had to work all that hard at making their case. Despite his acknowledgment that the challengers had the burden, the only arguments he reviews are the state's arguments in defense of the Family Code sections 300 and 308.5. Legal minds will know better, of course, but it just seems like he gave only lip service to the rule that challengers had the burden. It certainly looks for all the world as if all a challenger has to do to meet his burden (at least in Kramer's court!) under the rational basis test, is assert that no rational relation exists between a law he challenges and some legislative intent.

How does the California law fail strict scrutiny? Recall that strict scrutiny is the test applied when legislation creates a "suspect" class (nothing subjective there!) or implicates a fundamental human right. (Opinion, 16.) According to Kramer, California Family Code sections 300 and 308.5, do precisely these two things. First, the Code discriminates on the basis of gender. "The marriage laws establish classifications (same gender vs. opposite gender) and discriminate based on those gender-based classifications. As such, for the purpose of an equal protection analysis, the legislative scheme creates a gender-based classification." (Opinion, 17.) Now, the state responded to this by saying that the law doesn't discriminate because it applies to both males and females in prohibiting them from marrying members of the same sex. Kramer pointed out that this was the same sort of logic used in miscegenation legislation once upon a time (i.e., that miscengenation does not discriminate because it applies to both blacks and whites).

Oh, and Kramer also noted that the Code implicated a fundamental human right: the right to marry. (Opinion, 19.)

As I've already pointed out, I am no lawyer. But given what seems to be the applicable law and the way that the lines of the debate have been drawn, Kramer, I think, could have done little else even had he wanted to. The only valid argument for prohibiting same-sex marriage is the religious-moral one. The One who created them male and female did, in creating, define them and set limits to--among other things--their sexual behavior. One of those limits is the prohibition of sexual intercourse between members of the same sex. Apart from that concern, there isn't much in the way of argument that proponents of same-sex marriage cannot overcome.

It seems to me that one of the basic issues in this matter is, In a constitutional republic, can a majority of the people of a state give to their values the force of law? Can this be a legitimage legislative purpose? The short answer is: Yes. (All laws are little more than a reflection of a society's values, wherever those values may come from.) But the expanded answer is: Yes, so long as the majority do not trample the constitutional rights of the minority. So the question is: Is there a constitutional right to marry? Frankly, I don't see anything in the Constitution which would forbid a state outlawing marriage period. (I'm an originalist. That means that I also don't think, for example, that the Constitution would prohibit a state from executing a seven year old for a capital crime. I think it would be wrong; and so I would try to pursuade my fellow citizens. But it would not be unconstitutional.) Now, I doubt any state would be foolish enough to outlaw marriage; but I don't think the Constitution prohibits it. The problem with Constitutional exegesis these days is that most people tend to think that the Constitution--somehow--protects everything we deem worthy of protection (e.g., marriage) and prohibits everything we don't think worthy of protection (e.g., laws against abortion). All it does is create a system of government in which the values of a majority are given expression in the laws, without exterminating those in the minority who do not share the majority's values. Should those values change over time so will the laws enacted by the government under the Constitution, without the Constitution needing to undergo much change. But ultimately the Constitution will not protect the minority from a lawless majority; nor will it protect the majority from a lawless minority. This is especially the case when the lawless are finding rights which are "implied" by "penumbras" of other rights.

Be all this as it may, Kramer really isn't the problem. He is a lower court judge, duty bound to abide by the decisions of higher courts. Those higher courts have created the two tests he applied. The real problem is the whole notion of judicial review. That is where the power behind "judicial tyranny" is. But I've already blogged about that.

Having said that Kramer isn't the problem, it will be interesting to see what happens when this is appealed. That is to say, it will be interesting to see what reasoning is given for over-turning Kramer--if he is over-turned. I'd like to see Kramer over-turned on this just because I don't believe in same-sex marriage. I think it will still come to the rational basis test and the strict scrutiny test and whether Kramer erred in his application of the two.
15 March 2005

"He who cites his source..."

A previous post dealt with the issue of bloggers and sources. "A Citation System For Bloggers". In case it's necessary, a single example of a blog which cites no source will serve to demonstrate the need.

Ed Brayton doubts that the Prayer Book attributed to George Washington really should be. Ed Brayton, "George Washington's Mythical Prayer Journal," Dispatches from the Culture Wars, 13 December 2004, at http://www.stcynic.com/blog/archives/2004/12/george_washingt.php. He is certainly entitled to do so. In commenting on Brayton's post, Jon Rowe, attorney and professor, has this to say:

"To be fair, Washington respected how orthodox Christianity kept the masses moral--but there is no evidence that he himself was one. Washington kept his mouth shut about his beliefs." Comment by Jon Rowe, 13 December 2004, at http://www.stcynic.com/blog/archives/2004/12/george_washingt.php.

Since he cites no source for his claim, I suppose I must take Rowe's word for it that Washington respected Christianty's ability to keep "the masses moral." But, since Washmington, supposedly, kept his mouth shut about his beliefs, we could turn Rowe's argument on its head by saying that we have no evidence that Washington was not an orthodox Christian.

Rowe's fellow traveller, "raj" offers this correction of Rowe:
"Sorry, Jon, Washington recgonized how orthodox christianity kept the masses in line. There is a difference--a big difference." Comment by raj 14 December 14 2004 at http://www.stcynic.com/blog/archives/2004/12/george_washingt.php.
So, according to "raj" it was not that Christianity kept the people moral that Washington appreciated, but that it kept them in line. But again, since he cites no source, I suppose I must take his word for it that this is true.

These two people (i.e., Rowe and raj), by failing to cite sources, simply do nothing for the discussion. It moves neither forwards not backwards. Maybe Washington was not an orthdox Christian. Maybe he appreciated Christianity only because it served the politically expedient purpose of keeping the people in line. These statements may be true; but we don't know it from these two because they have cited no sources. (And one of them asserts that Washington was silent about his beliefs. So how do they know what Washington supposedly believed about orthodox Christianity and the masses?) We shall have to go elsewhere to learn the truth. Really, we shall have to read everything Washington wrote. (But it won't matter because he was silent about his beliefs!) It would be nice if these two had cited a particular passage in the Washingtonian corpus. At least, had they cited secondary sources, we could see what primary sources were relied upon. At this time, we have nothing. Perhaps it is just this situation from which the world is delivered by "he who cites his source." See Mishna, Avot., 6.
14 March 2005

By hatchet, axe and saw

I'm taking a break from constitutional matters for the moment.

Sen. Kennedy and others want to increase the minimum wage again. Senate Amendment "To amend the Fair Labor Standards Act of 1938 to provide for an increase in the Federal minimum wage", S.AMDT.44, at , amends "A bill to amend title 11 of the United States Code, and for other purposes," S.256, at ; see also Jared Bernstein, others, "The Next Step; the minimum wage proposals and the old opposition," Economic Policy Institute, 8 March 2000, at . One thing that bothers me about this is that these people do not have to live, or more especially work, with the consequences of raising the minimum wage. Of course that, logically, is not much of an argument against a wage hike. So let me offer two brief arguments against it.

1. The first thing that will happen is that people who actually work for minimum wage will work less; this means that, while their wage will increase, their actual income will decrease. Now, how can this be? Get your calculator handy: we have some math to do.

In another life, I was a restaurant manager. As such, I had three highly controllable costs: food, paper products, and labor. Forgetting the first two as irrelevant to our present purpose, in order to be profitable with respect to my labor costs, that cost could not exceed 16 percent of my adjusted gross sales. So, if I was planning my week, and I projected my sales as $32,000, then my labor cost was going to have to be not more than $5,120. To calculate the number of hours I need to schedule no more than in order to reach this goal, I divide this figure (i.e., $5120.00) by my average hourly wage. (I arrive at this average by totalling the hourly amounts each of my employees are paid and dividing this total by the number of employees.) Let's say that this average wage is $5.90. Dividing $5120.00 by $5.90 I see that I can schedule no more than 867.80 hours (rounding of course). If I actually do $32,000.00 in sales, then I shall make my labor budget.

Let us say, now, that an increase in the minimum wage increases my average hourly wage to just $6.15. Using the same sales and labor budget figures, the number of hours I can schedule comes to 832.52. This means that I shall have to decrease the number of hours that I schedule by 35.27 hours. 35.27 hours. That's near 40 hours; that's almost one experienced, full-time employee's job! Now, am I going to let a full-time, experienced employee go? Not on your life. So where I am going to cut this 35.27 hours? From those minimum wage workers, of course. You know the ones: they just got a raise from the federal government. Their hours just got cut.

The only other way I can make my labor budget is to increase my sales, which I can do only by either increasing the number of people who choose to eat in my establishment (something I was never very good at, honestly) or by raising my prices just enough to cover the average wage increase I just experienced thanks to Congress. Of course, I'll have to raise my prices eventually; so will all of my competitors, who are having the same problem. It's just a matter of which of us will raise his prices first. Since none of us want to go first, all of us are going to cut hours from our minimum wage workers until one of us just has to start increasing prices. This problem will affect anyone who has minimum wage employees; and as employers increase prices to offset the cost of the hike, the benefit will disappear. And when it does, there will be more demands to increase the minimum wage yet again...and again...and again; and so on. And when the wage is increased yet again employers will be faced with the problem the solution to which "caused" the need for the increase.

So, the only way that Congress can make the minimum wage increase of any lasting value will be to forbid employers from cutting the number of hours worked. Not only that, but it occurs to me that Congress will also have to add a price freeze to the wage hike.

2. Another problem with artificial increases in the minimum wage is inflation. Now, I am no economist, so I am more than willing, with respect to the following, to be corrected, but only by an economist. (I will accept a BA or better, in Economics, as qualifying one as an economist.)

In 1983 I bought a Nissan pickup truck for around $10,000. If I had bought that same, or a comparable auto, in 2000, then (utilizing Gross Domestic Product deflator method at http://www1.jsc.nasa.gov/bu2/inflateGDP.html it would have cost me $15,375. Here's a funny thing: when I bought a new car in 2000 it cost right around $15,000! So the amount I was charged for my auto in 2000 was keeping up with inflation.

Now let's look at the artificially (and arbitrarily) set (as opposed to market set) minimum wage. When I first started working, in 1982, the minimum wage was $3.35 per hour. It is now $5.15. Adjusting for inflation, using GDP deflator, that $3.35 would be the equivalent of $5.84 today. Clearly, this seems to bolster the argument for increasing the minimum wage. What it actually does is demonstrate the problem with setting the wage by law: the law itself is not keeping up with inflation. To keep pace with inflation would require new minimum wage legislation every year or so. As I've said, I'm no economist, but I find it difficult to understand how automobile prices have managed to keep up with inflation, and how minimum wages won't if we let market forces set the wage.

Right now, the wage set by Congress is not keeping pace with inflation. So right now, that wage works well for employers. But we are being mentally lazy if we truly believe that a minimum wage can be effectively prescribed by law. When the minimun wage does go up, as it inevitably must, that new wage will not keep up with inflation.

This, I think, explains much of the problem with executive salaries. The minimum wage is meant to be a wage paid to unskilled laborers. The unskilled have nothing to negotiate over. Executives are not unskilled. When companies are competing for executives whose skills they need, those applicants are able to negotiate better packages than the relatively unskilled. And, unlike hourly wage employees, whose wages are a function of the minimum wage, executive salaries, like auto prices, are likely keeping pace with inflation. As with auto prices, I find it difficult to understand how executive salaries--without legislative interference--are able to keep up with inflation, but hourly wages can't. In other words, hourly wages for skilled laborers are likely kept lower than they might otherwise be because they are all a function of the minimum wage; executive salaries, because they are relatively unrelated to the minimum wage, are free to grow with inflation.

There is another problem with the minimum wage. The last minimum wage increase (to $5.15) was in 1996, if memory serves. To keep up with inflation it should be about $5.95. But it isn't $5.95; it's still $5.15. Let's say that Congress raises the minimum wage tomorrow to the $7.00 that John Kerry and others want. E.g., Paul Farhi, "Kerry Backs $7-an-Hour Minimum Wage," Washington Post, 19 June 2004, at http://www.washingtonpost.com/wp-dyn/articles/A51863-2004Jun18.html. That $7.00 will be ahead of inflation, which means that employers will be paying more than even inflation requires. (Raises the question: If they are already paying too much for their unskilled labor, why should they increase wages for their skilled labor?) Fortunately, for employers, this situation will not last long: in 2006, at present rates of increase, inflation will require that the minimum be raised to at least $7.10.

Minimum wage talk is a part of the whole politics of envy. It constitutes little more than a transfer of wealth. There is little difference between my putting a gun to you and telling you to give $5.15 to your neighbor and putting a gun to you to force you to give me $5.15 which I then give to your neighbor. In both cases, I have succeeded in robbing you of $5.15.

The whole politics of envy always makes me think of a song by one of my favorite rock groups of all time: Rush. (Hey, Greg Bahnsen liked the Beatles.) Here are the lyrics to that song:

The Trees

There is unrest in the forest
There is trouble with the trees
For the maples want more sunlight
And the oaks ignore their pleas

The trouble with the maples
(and they’re quite convinced they’re right)
They say the oaks are just too lofty
And they grab up all the light
But the oaks can’t help their feelings
If they like the way they’re made
And they wonder why the maples
Can’t be happy in their shade?

There is trouble in the forest
And the creatures all have fled
As the maples scream `oppression!`
And the oaks just shake their heads

So the maples formed a union
And demanded equal rights
’the oaks are just too greedy
We will make them give us light’
Now there’s no more oak oppression
For they passed a noble law
And the trees are all kept equal
By hatchet,
Axe,
And saw ... .

Rush, "The Trees" (lyrics by Neil Peart), Hemispheres, (Mercury/Polygram 1978).


To my mind, "equality" sought--or enforced--by means of "hatchet, axe and saw" is fascism.
11 March 2005

A Citation System For Bloggers

"He who cites his source, brings deliverance to the world." Mishna, Avot. 6.


In the wake of Dan Rather's undoing by bloggers, there have been many attempts to call into question the integrity of bloggers. E.g., Nightline, ABC-TV, 8 March 2005. Bloggers, the argument goes, can make baseless assertions and can assert facts relying on sources that no one can double check. Nightline. A sourceless rumor can traverse the blogospere many times before the true facts are awake, much less putting their shoes on. And even when bloggers try to credit sources, the manner is so slip-shod as to be unintelligible. Then there are those of us who blog more for the sake more of scholarship than of being news hounds. We bloggers, especially those of us who enjoy scholarship, might like to cite sources liberally; and we try to do. We also like to quote--or would like to quote--each other's blogs. But how to do so?

I think we need a system for citing sources, and each other, that approaches uniformity, but without being so rule-laden that one spends more time worrying about how to cite a source than about how to write one's blog. I proffer the following system of citation to the blogging world.

Because the method I am adapting is inspired, in large part, by the system used by lawyers, as outlined in The Bluebook: A Uniform System of Citation, (Harvard Law Review Association), I call this The Blogger's Bluebook.

Should you care to do so, please cite this source as "The Blogger's Bluebook," (Philologous Lector, ed., March 2005), at Philologous Lector, "A Citation System For Bloggers," Philologous, 11 March 2005, http://www.philologous.blogspot.com.

The Blogger's Bluebook
A Manual Of Citation For Bloggers

INITIAL CITATION
1. Single Volume Book

1a. single author:

Author Name (i.e.,John Doe, not Doe, John), Book Title (helpful information about the source, year of publication), page number(s).

Ex: Francis Schaeffer, The God Who Is There (1969), 13-22.

Note that the book title is neither italicized nor underlined. The reasons for this are: (1) the format of citation is not as important as the accuracy of the information, and the appropriateness of the blogger's choice of the cited source. (2) To save time. In writing blogs, time is usually of the essence and can be lost worrying about and acutally doing formatting, especially in writing html tags every time one wishes to cite a book. If the title of a work is not in quotations, then let it be understood as being the title of a book, or a magazine, or journal.

1b. two authors

Ex: William Flint Thrall and Addison Hibbard, A Handbook To Literature (1936), 150.

1c. more than two authors

Ex: John W. Doe, others,...

2. Multi-volume Book:

Author's Name, Volume number Title (helpful information about the source, year of publication), page number(s).

Ex 1: Francis Schaeffer, Art And The Bible, 2 Complete Works (1982), 395.

Ex 2: Francis Turretin, 1 Institutes of Elenctic Theology (Dennison, ed., Giger, tr., 1992), 182. (See also intructions for classical texts below.)

Ex3: Charles Hodge, 1 Systematic Theology (reprinted 1986), 41.

Note that the volume number comes before volume title. There are three reasons for this: (1) to signal immediately that reference is made to a multi-volume work; and (2) to distinguish between citations of multi-volume works and classical texts (q.v., below); (3) this method resembles that use by scripture (e.g., 2 Samuel 3:4).

3. Classical Texts

Author Name, Title of Work (helpful information about the source, year of publication if applicable or known), book number:chapter number (or other specific location), paragraph number

Ex 1: Augustine, Confessions (Jones, ed., Smith, tr., 1959), 3:4, para. 6.

Ex 2a: Plato, Republic, 517b.

Ex 2b: Plato, Republic, 517b, in Complete Works (John M. Cooper, ed., G.M.A. Grube, tr., 1997), 1135.

Ex3: Francis Turretin, Institutes of Elenctic Theology, Topic 3, Question 3, para. IX.

4. Print periodical

Author name, "Article Title", Volume number Journal Name Issue number (Month Year), referenced page number.

Ex: Kenneth Perszyk, "Molinism And The Consequence Argument: A Challenge," 20 Faith And Philosophy 2 (April 2003), 137.

Ex: Damon Linker, "Philosophy And Tyranny," First Things 119 (January 2002), 42.

Note: the page numbers refer only to the exact page(s) of the article being cited. The page of the journal that the article begins is ommited because the article can be found, once the journal is located, simply by referring to the journal's table of contents.

5. Online sources

5a. Blogs

Ex: Author/blogger's name( if known), Article title (if any), name of blog, date posted, http://www.url.com/org/edu, etc

Ex: Andrew McIntyre, "A Helpless Cry From a Vile Heart," Dead Men's Voices, 27 February 2005, http://www.deadmensvoices.blogspot.com.

5b. Personal homepage

Name of person, Type of page (if any), Month and Year cited, http://www.url.com etc.

Joe Smith, Homepage, May 2001, http://www.someplaceonline.com/~joesmith06.

5c. Online periodical articles

Author name, "Article Title", Periodical Name, Date, url.

Ex: Rich Lowry, "Soak The Rich," National Review Online, 11 March 2005, http://www.nationalreview.com/lowry/lowry200503110746.asp...

Why not just link to the site where the source is located? Quite simply, not all bloggers are equally adept at linking. And it can be time consuming to link. Our goal is the give readers the ability quickly and effectively to identify, locate and appraise sources for themselves. But at the same time, many of us who blog have limited time to blog, much less to spend creating links to sources we cite. At least, providing the url allows readers to cut and paste the url into their browsers. However, if one does successfully link to a web page, one may exclude an in-text citation of the url.

6. Television/Radio broadcast

6a. Television Series (including newsmagazines)

"Episode/Segment Name"(if known), Series Name, Network Name (or Station call sign and channel and city) Broadcast Date (if availiable or relelvant).

Ex: "Avengers", Bonanza, NBC.

Ex: "In The Grip of Fear," 48 Hours, CBS, 8 May 2003.

Ex. of TV News broadcast: Eyewitness News, KKTV-11, Colorado Springs, Co., 7 April 2001.

6b. Radio talkshow

Identification of segment (if applicable), Name of talk show, Station call sign, frequencey, city, date of broadcast (if known, available or relevant)

Ex1: Interview with Thomas Sowell (2d hour), Rush Limbaugh Show (Walter E. Williams, guest-hosting), KOA 850-AM, Denver, Co., 7 March 2005.

Ex2: Interview with Governor Owens (3d hour), Mike Rosen Show, KAO 850-AM, Denver, Co., 28 February 2005;

What we need is simply any iformation which would enable the reader to identify and (if possible) to locate the source and utilize it himself.

7. Recordings

Name of artist, "Item Name", Tape/CD/Album title, (Label and year of release, if they are known)

Ex: Rush, "Closer To The Heart," A Farewell to Kings, (Mercury Records 1977); or, even perhaps Rush, "Closer To The Heart."

8. Legislative Acts

Many of us bloggers like to discuss or share news about legislation, especially pending legislation. Citation should tell us something about the bill/amendment, its name or description of purpose, its senate and/or house bill/amendment number, and where readers can locate it to read it for themselves.

Ex: Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (Introduced in House), HR 658, at http://www.congress.gov/cgi-bin/query/z?c109:H.R.685:

Ex: Senate Amendment "To amend the Fair Labor Standards Act of 1938 to provide for an increase in the Federal minimum wage", S.AMDT.44, at http://www.congress.gov/cgi-bin/bdquery/z?d109:S.A.44:, which amends "A bill to amend title 11 of the United States Code, and for other purposes," S.256, at http://www.congress.gov/cgi-bin/bdquery/z?d109:SN00256:


9. The Bible

Book title Chapter.verse (Version)

Ex: 1 Corinthians 3.6-7 (NKJV, or UBS 4TH, if citation is to the Greek text).

10. UNKNOWNS (i.e., to the blogger)

If we do not know something about our source, we should indicate that in the citation. I recommend:

10a. ~auth or auth unk if the author is unknown
10b. ~wk or wk unk if the name of the work we wish to cite is unknown to us
10c. ~loc or loc unk if we do not know, in the source we have cited, the exact location we wish to cite
10d ~ed or ed unk if the editor is unknown
10e ~tr or tr unk if the translator is unknown
10f ~date or date unk if the date is unknown
10g ~url or url unk if the url is unknown

Note that, for our purposes, "unknown" does not mean that no one knows the item. It means only that the blogger does not know, or cannot presently recall, the item. Note also that, whatever we know or do not know about a source, we should provide as much information about a source as we can.

SUBSEQUENT CITATIONS

Once a source has been cited in a citation sentence, subsequent citations should be as brief as possible. Use of words like "ibid" (or "id", for lawyers) should be avoided: the reader has to scroll back up on the page to see what the "ibid" is referring to. And we are trying to make things easier for the reader. Therefore subsequent citations should include Author last name, Abbreviated title, page number. If for example, one has cited Francis Schaeffer, The God Who Is There (1969), 13-22, all subsequent citations could appear as: Schaeffer, God, 55. If, for example, one has already cited Andrew McIntyre, "A Helpless Cry From a Vile Heart," Dead Men's Voices, 27 February 2005, http://www.deadmensvoices.blogspot.com/, all subsequent citations should appear as McIntyre, "Helpless Cry".

METHOD OF CITATION

Now that we have something of a system of source citations, how, exactly do we cite our sources? Ought we to try to use footnotes? Citations should be in-text citation sentences (for initial citations) or clauses (for subsequent citations), which follow immediately after the relevant sentence in your blog. The reason is a footnote is cumbersome as a citation apparatus. This is especially the case when one is reading a web page. One may like to know immediately what source an author is citing; having to scroll down to the end of a page, or wait until reaching the end, is not very convenient. True, the blogger could link to the footnote so that readers have only to click on the link in order to read the footnote. But our interest as bloggers is to utilize a method of citation that is convenient for both blogger and reader, especially in terms of time spent writing a web page which would include source citations and in terms of reading such pages and being able immediately to identify, locate and appraise sources.

SIGNALS IN BLOG CITATION

Signals are words or terms that give your reader additional information about the sources you are citing. Signals tell the reader about the type and degree of support your sources provide. For example, some sources provide indirect support for an assertion. Some sources provide general background rather than direct support for a specific proposition.

Signals are not always necessary. You do not need a signal if your source directly supports the preceding text, or to identify the source of a direct quotation.

You should use a signal in all other situations.

The choice of signal depends entirely on context. What are you hoping to convey to the reader? The choice of signal is not related to whether your citation is initial or subsequent (i.e., full or abbreviated). The frequency with which you use signals will vary from one project to the next, according to the type of support you find in a particular source.

Signals

E.g.: indicates that the source is an example from a number of sources that stand for the same proposition or argument, or that agree to the facts as you have stated them.

See: means this source implicitly supports your position or argument, or agrees with the facts as you have stated them. What you are conveying to the reader is that your source doesn’t say anything about the subject you are discussing and doesn’t directly say the same thing that you are saying, but clearly supports your argument, or the proposition you have just stated, or agrees with the facts as you have stated them.

See, e.g.: means much the same thing as "see" but indicates that the source(s) you cite is one of many which support your position.

Cf.: means this source supports your argument, or the proposition you have just stated, by analogy. What you are conveying to the reader is that your source provides an analogy that supports your position in some way (you may need to offer a parenthetical explanation of how).

See also: means this source [or these sources] also stands for the proposition you have just stated or the argument you are making, or agrees with the facts as you have stated them. It is typically used after you have cited one or more directly supporting sources.

See generally: means this authority provides helpful background information related to your argument.
03 March 2005

More legislation without representation

Speaking of legislation without representation: here go the Prophets again. Now the death penalty for juviniles is unconstitutional because it violates the Eight Amendment to the Constitution (which is applicable to the States by virtue of the 14th Amend., you will recall). Here are a few gems from the prophecy in Roper v. Simmons (i.e., Justice Kennedy, for the majority):

"...30 States prohibit the juvenile death penalty, comprising 12 that have rejected the death penalty altogether and 18 that maintain it but, by express provision or judicial interpretation, exclude juveniles from its reach."

So the state tally, is 30 states opposed to the juvinile death penalty, 20 states in favor. Wow. Interesting statistic, if true (Scalia answers this in his dissent). This is irrelevant. Constitutionality ought not be decided by the laws of the states, especially when you consider that those very laws can be struck down by the Prophets, at their whim.

"A majority of States have rejected the imposition of the death penalty on juvenile offenders under 18"

Irrelevant. The touchstone of constutionality is the constitution, at least according to Justice Frankfurter--once upon a time. If the touchstone of constitutionality is the laws of a majority of the states, then why does the court now assert that a future change in this consensus is unconstitutional? For that is what the court does: Even if we stipulate that the court is correct, that a consensus does exist, the court now says that it would be unconstitutional for these same states to change their minds, to change this putative consensus. So they were free to form this putative consensus; but now they must pass a constitutional amendment in order to change their minds. Clearly, the Prophets think we're stupid. (Besides, are we to believe that if a majority of the states provided for juvinile death penalty that the Prophets would be upholding the constitutionality of such laws? If so, then what of the constitution? If a majority of the states decided, figuratively speaking, to jump off a cliff, would the rest be constitutionally required to follow suit? Apparently so!!!)

"Three general differences between juveniles under 18 and adults demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders. First, as any parent knows and as the scientific and sociological studies respondent and his amici cite tend to confirm, "[a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions".... The second area of difference is that juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure.... The third broad difference is that the character of a juvenile is not as well formed as that of an adult. The personality traits of juveniles are more transitory, less fixed. These differences render suspect any conclusion that a juvenile falls among the worst offenders. The susceptibility of juveniles to immature and irresponsible behavior means "their irresponsible conduct is not as morally reprehensible as that of an adult."

Here, according to the court itself, is the behavior that that these immature, underdeveloped, vulnerable, and not completely well formed teenagers did: "At the age of 17, when he was still a junior in high school, Christopher Simmons, the respondent here, committed murder. About nine months later, after he had turned 18, he was tried and sentenced to death. There is little doubt that Simmons was the instigator of the crime. Before its commission Simmons said he wanted to murder someone. In chilling, callous terms he talked about his plan, discussing it for the most part with two friends, Charles Benjamin and John Tessmer, then aged 15 and 16 respectively. Simmons proposed to commit burglary and murder by breaking and entering, tying up a victim, and throwing the victim off a bridge. Simmons assured his friends they could "get away with it" because they were minors.

The three met at about 2 a.m. on the night of the murder, but Tessmer left before the other two set out. (The State later charged Tessmer with conspiracy, but dropped the charge in exchange for his testimony against Simmons.) Simmons and Benjamin entered the home of the victim, Shirley Crook, after reaching through an open window and unlocking the back door. Simmons turned on a hallway light. Awakened, Mrs. Crook called out, "Who's there?" In response Simmons entered Mrs. Crook's bedroom, where he recognized her from a previous car accident involving them both. Simmons later admitted this confirmed his resolve to murder her.

Using duct tape to cover her eyes and mouth and bind her hands, the two perpetrators put Mrs. Crook in her minivan and drove to a state park. They reinforced the bindings, covered her head with a towel, and walked her to a railroad trestle spanning the Meramec River. There they tied her hands and feet together with electrical wire, wrapped her whole face in duct tape and threw her from the bridge, drowning her in the waters below."


"The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character"

No one is punished for having "irretrievably depraved character". One is punished for committing a crime.

"Our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty."

Here we go again: If the rest of the world decided to jump off a cliff, must the United States follow along? If the actions of other nations are instructive for us, then whose actions were instructive for all those other nations whose actions are instructive for us?

"Respondent and his amici have submitted, and petitioner does not contest, that only seven countries other than the United States have executed juvenile offenders since 1990: Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic Republic of Congo, and China. Since then each of these countries has either abolished capital punishment for juveniles or made public disavowal of the practice. Brief for Respondent 49-50. In sum, it is fair to say that the United States now stands alone in a world that has turned its face against the juvenile death penalty."

Forget the cliff. If the United States were alone as the only country in the world that fails to convert to Islam, would the United States be obligated to consider the rest of the world's embrace of Islam as somehow "instructive"? I haven't gone to law school, so of course I am an idiot, but when I took Logic in college this sort of reasoning, called ad populem was logically fallacious. That the rest of the world is foolish ought not to be our problem!

Justices Stevens and Ginsburg, concurring
"If the meaning of [the 8th Amendment] had been frozen when it was originally drafted, it would impose no impediment to the execution of 7-year-old children today."

Even so, setting the age is a matter for state legislatures to decide. Also: we are not talking here of 7-year-old; we are talking about a 17-year-old.

Justice O'Connor, dissenting:

"[B]ecause '[t]he basic concept underlying the Eighth Amendment is nothing less than the dignity of man,' the Amendment 'must draw its meaning from the evolving standards of decency that mark the progress of a maturing society'" (quoting from Trop v. Dulles, 356 U. S. 86, 100-101 [1958] [plurality opinion]).

First it is not quite philosophically sound to talk about "the basic concept" being "the dignity of man." There are different conceptions of the dignity of man. It is not very clear which one of them is basic to the Eighth Amendment. This is the problem when lawyers try to do philosophy from the bench. My own conception of the so-called dignity of man would not exclude the execution of a seventeen year old; in fact, my conception would require it, in the name of the dignity of the victim. Second, "the evolving standards of decency" are best reflected in legislative acts, not judicial decisions. If the role of judges is to apply the law, or to say what the law is--and if the laws we live under are to be enacted by the people through their legislatures, or Congress--then these "evolving standards of decency" are best reflected in the laws passed by those legislatures, or Congress, and not the courts.

"Granting the premise 'that adolescents are generally less blameworthy than adults who commit similar crimes...it does not necessarily follow that all 15-year-olds are incapable of the moral culpability that would justify the imposition of capital punishment'"

All right, she's quoting her own (concurring) opinion in Thompson v. Oklahoma, 487 U. S. 815 (1988), but she makes a good, philosophically sound point, I think.

"[T]he Court adduces no evidence whatsoever in support of its sweeping conclusion...that it is only in "rare" cases, if ever, that 17-year-old murderers are sufficiently mature and act with sufficient depravity to warrant the death penalty. The fact that juveniles are generally less culpable for their misconduct than adults does not necessarily mean that a 17-year-old murderer cannot be sufficiently culpable to merit the death penalty. At most, the Court's argument suggests that the average 17-year-old murderer is not as culpable as the average adult murderer. But an especially depraved juvenile offender may nevertheless be just as culpable as many adult offenders considered bad enough to deserve the death penalty."

Good point! But this sort of logic is probably lost on the liberals on the court.

"[A] legislature may reasonably conclude that at least some 17-year-olds can act with sufficient moral culpability, and can be sufficiently deterred by the threat of execution, that capital punishment may be warranted in an appropriate case."

Could Christopher Simmons have acted with "sufficient moral culpability"? Here, you be the judge (so to speak):

"Christopher Simmons' murder of Shirley Crook was premeditated, wanton, and cruel in the extreme. Well before he committed this crime, Simmons declared that he wanted to kill someone. On several occasions, he discussed with two friends (ages 15 and 16) his plan to burglarize a house and to murder the victim by tying the victim up and pushing him from a bridge. Simmons said they could 'get away with it' because they were minors. In accord with this plan, Simmons and his 15-year-old accomplice broke into Mrs. Crook's home in the middle of the night, forced her from her bed, bound her, and drove her to a state park. There, they walked her to a railroad trestle spanning a river, 'hog-tied' her with electrical cable, bound her face completely with duct tape, and pushed her, still alive, from the trestle. She drowned in the water below. One can scarcely imagine the terror that this woman must have suffered throughout the ordeal leading to her death. Whatever can be said about the comparative moral culpability of 17-year-olds as a general matter, Simmons' actions unquestionably reflect 'a consciousness materially more "depraved" than that of' ... the average murderer' [quoting Godfrey v. Georgia, 446 U. S. 420, 433 (1980)]. And Simmons' prediction that he could murder with impunity because he had not yet turned 18--though inaccurate--suggests that he did take into account the perceived risk of punishment in deciding whether to commit the crime. Based on this evidence, the sentencing jury certainly had reasonable grounds for concluding that, despite Simmons' youth, he 'ha[d] sufficient psychological maturity' when he committed this horrific murder, and 'at the same time demonstrate[d] sufficient depravity, to merit a sentence of death'" (emphases mine).

"Chronological age is not an unfailing measure of psychological development, and common experience suggests that many 17-year-olds are more mature than the average young 'adult.' In short, the class of offenders exempted from capital punishment by today's decision is too broad and too diverse to warrant a categorical prohibition. Indeed, the age-based line drawn by the Court is indefensibly arbitrary--it quite likely will protect a number of offenders who are mature enough to deserve the death penalty and may well leave vulnerable many who are not."

Good point, philosophically speaking. The court here assumes that the members of one class (i.e., those who are younger than 18 years) are also members of another class (i.e., those who are not able to act with "sufficient moral culpability"). The court does not explain how membership in the first class is automatic membership in the second. All we need, to serve as a counter-example, is one person, under the age of 17, to demonstrate moral maturity. O'Connor is right to point out the fallacious logic which the majority embraces.

"I disagree with Justice Scalia's contention...that foreign and international law have no place in our Eighth Amendment jurisprudence. Over the course of nearly half a century, the Court has consistently referred to foreign and international law as relevant to its assessment of evolving standards of decency."

It hardly stands to reason, even if true, that the fact that one has always, or even only frequently, done something means that one is required, or even justified in continuing the practice. This may especially be so, if there is argument being made that the practice is improper. O'Connor's silly position is: We've been doing this for t amount of time, therefore we should continue doing this. This is why I rarely appreciate her logic: it is much like the sun on a partly cloudy day, visible only for the briefest of moments.

****************************************************
It would be nice to post some gems in the Scalia dissent(joined by The Chief Justice and Justice Thomas). But the whole thing, including many of the footnotes, is a gem.

PS

As the Supreme Council of Prophets hears oral argument on the Ten Commandments, one has to wonder how many nations either establish or "endorse" a religion. If a majority of nations do so, I bet we can expect the Prophets to ignore this. Oh, yes: this establishment, or "endorsement" of religion by other nations is one of the issues which Scalia points out in his Roper dissent.
01 March 2005

Incorporated?

On 23 February 2005, The Council of Supreme Prophets (a.k.a., The United States Supreme Court) in Johnson v. California et al, (posted here) decided that "[t]he California Department of Corrections' (CDC) unwritten policy of racially segregating prisoners in double cells for up to 60 days each time they enter a new correctional facility" is unconstitutional because it violates inmates' Fourteenth Amendment right to equal protection.

Now, California has--I'm sorry, had--an unwritten policy of racially segregating prisoners in double cells for up to 60 days each time they enter a new correctional facility. Has overtones of the segregation of the past century, doesn't it? But this policy was based on the rationale that it prevents violence caused by racial gangs. Golly gee. If you're having problems with race-centered gang violence in your prison system, and you want to assess a new prisoner with respect to his race-gang potential, maybe having him bunk with a member of his own race could be a good idea. You'd think. But no. As has happened so many times before, The Council of Supreme Prophets, translating for us poor distracted masses the will of the "living, breathing document", have decided that what the people who actually work in prisons think could be plain common sense does not pass what the Prophets, in their divinely given supreme wisdom, call "strict scrutiny" and does not serve a "compelling state interest."

(Now, of course, neither "strict scrutiny" nor "compelling state interest" appear in the constitution. But don't you worry your simple little head about that, mortal. The constitution, recall, is a living, breathing document, and use of these two terms has a great deal of case law behind it.)

What we are dealing with here is that tired notion that the Fourteenth Amendment wraps up the Bill of Rights in a beautiful little bundle of joy wrapped in swaddling cloths, and applies it against the states. This is what I think is the second leg upon which judicial tyranny stands (the other one being the notion of judicial review). This notion also has a great deal of case law behind it.

But early 14th Amendment jurisprudence did not see it this way:

Take the Slaughterhouse cases (1873). On March 8th, 1869, the State of Louisiana passed a statute called "An act to protect the health of the city of New Orleans, to locate the stock landings and slaughterhouses, and to incorporate the Crescent City Livestock Landing aud Slaughter-House Company." Like most things politicians do it sounds great. What the act did, in fact was to create a monopoly. The act (1) forbade "[t]he landing or slaughtering of animals whose flesh is intended for food within the city of New Orleans and other parishes and boundaries named and defined, or the keeping or establishing any slaughterhouses or abattoirs within those limits except by the corporation" created by the act ("suitable penalties" were also enacted for violations of this prohibition); (2) designated the incorporators, gave the name to the corporation, and conferred on it the usual corporate powers; (3) authorized the incorporated company "to establish and erect...one or more stockyards, stock landings, and slaughterhouses," including "one grand slaughterhouse of sufficient capacity for slaughtering five hundred animals per day;" (4) granted this single company "the sole and exclusive privilege of conducting and carrying on the livestock landing and slaughterhouse business" in the parishes of Orleans, Jefferson, and St. Bernard; (5) stipulated "that all such animals shall be landed at the stock landings and slaughtered at the slaughterhouses of the company, and nowhere else; (6) enacted penalties violations of this statute; (7) fixed prices "for the maximum charges of the company for each steamboat and for each animal landed;" (8) required "the closing up of all other stock landings and slaughterhouses...in the parishes of Orleans, Jefferson, and St. Bernard, and [made] it the duty of the company to permit any person to slaughter animals in their slaughterhouses under a heavy penalty for each refusal;" (9) fixed "a limit to the charges to be made by the company for each animal so slaughtered in their building, and...provide[d] for an inspection of all animals intended to be so slaughtered by an officer appointed by the governor of the State for that purpose."

Now, if you were in the animal slaughtering business, what would you think of this law? Why, you would accuse the governor and the Republican-dominated legislature of having ties to Big Slaughterhouse. Then you would argue that the law creates a monopoly and confers "odious and exclusive privileges" on a small number of persons at the expense of the larger community of New Orleans. And, as if that were not bad enough, you would argue, it deprives a large and law abiding class of citizens (i.e., all of the butchers in the city) of the right to exercise their trade. They are no longer free to engage in the business for which they have been trained and on which they rely to support their families. In short, you would argue that you, being a butcher, are being deprived of either life, liberty, or property without due process of law, as guaranteed to you by the 14th Amendment of the United States Constitution. And you would take the case all the way to the Supreme Court if necessary.

Well, that's what a whole herd of butchers did in the parishes of Orleans, Jefferson, and St. Bernard, in the State of Louisiana. But the Court did not buy their argument.

First, the Court held that the legislative act in question was consistent with the police powers of a state government:

It is not, and cannot be successfully controverted that it is both the right and the duty of the legislative body -- the supreme power of the State or municipality -- to prescribe and determine the localities where the business of slaughtering for a great city may be conducted. To do this effectively, it is indispensable that all persons who slaughter animals for food shall do it in those places and nowhere else.

The statute under consideration defines these localities and forbids slaughtering in any other. It does not, as has been asserted, prevent the butcher from doing his own slaughtering. On the contrary, the Slaughter-House Company is required, under a heavy penalty, to permit any person who wishes to do so to slaughter in their houses, and they are bound to make ample provision for the convenience of all the slaughtering for the entire city. The butcher then is still permitted to slaughter, to prepare, and to sell his own meats; but he is required to slaughter at a specified place, and to pay a reasonable compensation for the use of the accommodations furnished him at that place.

The wisdom of the monopoly granted by the legislature may be open to question, but it is difficult to see a justification for the assertion that the butchers are deprived of the right to labor in their occupation, or the people of their daily service in preparing food, or how this statute, with the duties and guards imposed upon the company, can be said to destroy the business of the butcher, or seriously interfere with its pursuit.

The power here exercised by the legislature of Louisiana is, in its essential nature, one which has been, up to the present period in the constitutional history of this country, always conceded to belong to the States, however it may now be questioned in some of its details.

Unwholesome trades, slaughterhouses, operations offensive to the senses, the deposit of powder, the application of steam power to propel cars, the building with combustible materials, and the burial of the dead, may all, says Chancellor Kent, be interdicted by law, in the midst of dense masses of population, on the general and rational principle that every person ought so to use his property as not to injure his neighbors, and that private interests must be made subservient to the general interests of the community. (Slaughterhouse cases, at p. 61-2.)


In short, the legislation was a traditionally legitimate exercise of state power.

Second, on the question of whether the "privileges and immunities" clause incorporated and applied against the states the entire Bill of Rights, the Court had a rather lengthy discussion, but I qoute what I believe to be the relevant part of that discussion:

Its [i.e., the "privileges and immunities" clause] sole purpose was to declare to the several States that, whatever those rights, as you grant or establish them to your own citizens, or as you limit or qualify or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction.

It would be the vainest show of learning to attempt to prove by citations of authority that, up to the adoption of the recent amendments, no claim or pretence was set up that those rights depended on the Federal government for their existence or protection beyond the very few express limitations which the Federal Constitution imposed upon the States -- such, for instance, as the prohibition against ex post facto laws, bills of attainder, and laws impairing the obligation of contracts. But, with the exception of these and a few other restrictions, the entire domain of the privileges and immunities of citizens of the States, as above defined, lay within the constitutional and legislative power of the States, and without that of the Federal government. Was it the purpose of the fourteenth amendment, by the simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government? And where it is declared that Congress Shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States?

All this and more must follow if the proposition of the plaintiffs in error be sound. For not only are these rights subject to the control of Congress whenever, in its discretion, any of them are supposed to be abridged by State legislation, but that body may also pass laws in advance, limiting and restricting the exercise of legislative power by the States, in their most ordinary and usual functions, as in its judgment it may think proper on all such subjects. And still further, such a construction followed by the reversal of the judgments of the Supreme Court of Louisiana in these cases, would constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment. The argument, we admit, is not always the most conclusive which is drawn from the consequences urged against the adoption of a particular construction of an instrument. But when, as in the case before us, these consequences are so serious, so far-reaching and pervading, so great a departure from the structure and spirit of our institutions; when the effect is to fetter and degrade the State governments by subjecting them to the control of Congress in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character; when, in fact, it radically changes the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people, the argument has a force that is irresistible in the absence of language which expresses such a purpose too clearly to admit of doubt.

We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them. (Slaughterhouse cases, at pp. 77-8, empases mine.)


After reading an opinion like that, one might be tempted to sigh and long for the good old days. But let's just remember that those good old days included states depriving black Americans their newly won civil rights. Still, the Court knew and acknowledged what the law was.

I believe that Judge Bork, in The Tempting of America, wrote that although this notion of the 14th Amendment incorporating the Bill of Rights is in error, we'll have to live with it because undoing it would require as much in the way of judical activism as its creation. Besides, I think some others have said, it has become a settled legal principle. But, if this settled legal principle is a means by which judicial tyranny is exercised, is this not just to say that we shall have to live with a certain amount of judicial tyranny? I think it is. (Besides, at one time Dred Scott, an opinion so long and tedious it would be not worth reading except for its historical significance, was once settled legal principle; and now so is Roe v. Wade.)

Another interesting case on early 14th Amendment jurisprudence is Hurtado v. California, but we don't have time for all here. (It would be time well spent in reading it. It includes an educational discussion of the history of the phrase "due process" going back to Magna Charta.) It involves a man who claimed that his California trail violated the 14th Amendment's due process clause because it proceeded without benefit of a grand jury indictment. The Supreme Court, back in 1884, ruled against him.

I reject the notion that the 14th Amendment incorporates the Bill of Rights. The notion is one of the many things that makes judicial tyranny possible, and "settled legal principle" or not, we need to get rid of the notion. This "settled legal principle" only means that some amount of judicial tyranny is a settled legal principle. "Incorporation" ought to talked about as if it were as bad as "taxation with no representation", because it is. It is legislation without representation.

No legislation without representation!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

About Me

James Frank SolĂ­s
Former soldier (USA). Graduate-level educated. Married 26 years. Texas ex-patriate. Ruling elder in the Presbyterian Church in America.
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