Some tiny creature, mad with wrath,

Is coming nearer on the path.

--Edward Gorey

Location: Pittsburgh, Pennsylvania, U.S. Outlying Islands

Writer, lawyer, cyclist, rock climber, wanderer of dark residential streets, friend.

Friday, January 20, 2006

Miscellany, Breaking My Vow & c.

So, not long ago I recanted my year-long ever-increasing fascination with law and policy on this site. Recently, however, I have collected a few things notable enough to warrant recordation, with brief attendant thoughts closely in tow. These are they.

First, plenty of people have talked about Al Gore's Martin Luther King Day speech, which evidently was quite the stemwinder. Bloodless provides a link on topic with an interesting thread, and the text of the remarks as prepared are posted here. I have only one question: what if a presidential candidate, any candidate spoke so candidly, so passionately, and so non-condescendingly to the country? Could we handle it, or are we too far gone? This is not the only powerful, eloquent, stemwinder Gore has delivered in the past few years. I really do wonder.

In law, there's Dahlia, in rare form with Please Don't Feed the Federalists, a series of myths debunked. The first is the most critical to those on the left, and is also the easiest to forget:

1.) Federalists are teeming with hate and rage: This is one of the most central, pervasive Democratic myths about federalists; particularly those who sit on the bench. It leads you Senate Democrats to believe that if you can just ask the right question of a federalist, he will erupt into a hissing, spitting parody of Bill O'Reilly and then try to strangle you with his bow tie on C-SPAN. As you observe the federalists here today, you will learn that they love their families and do not devote their careers to systematically holding back women, persecuting minorities, and stealing wheelchairs from the disabled. In their own offices, many of them have even worked to advance the careers of specific women and minorities. Attempts to tar the federalist as having dedicated his career to raging misogyny or racism will likely backfire. Most of them have better things to do.

Also, care of Publius (by way of Bloodless), one of the funniest parodies of Justice Scalie's jurisprudence I've ever read.

Article I, Section 8 grants Congress the power to regulate interstate commerce. In recent years, the Court’s commerce clause analysis has been accused of being “unclear” and “results-driven.” See Bork, R., What the Fuck Is Up With Scalia in Raich?, 118 Harv. L. Rev 211, 213-14 (2005). Specifically, critics have pointed to the seeming inconsistency between the Court’s decision in Morrison and its decision in Raich (cases coincidentally involving similar facts at the case at issue here). Id. at 215. See also Aging Hippy Liberal Douche, A Post-Modernist Perspective on the Habermasian Dialectic Inherent in Scalia’s Commerce Clause Analysis, 98 Yale L.J. 1201, 1210-11 (2004).

The lower courts have also failed to find a meaningful distinction between the laws struck down by the Court and those upheld. See, e.g., Vedder v. Cobain, 321 F.3d 12, 15 (2004) (Posner, J., dissenting) (“What the fuck is up with Scalia in Raich?”).

In light of this criticism, the Court today announces a new clear standard to guide lower courts in their application of the commerce clause. This new standard will govern when a law exceeds Congress’s power under the commerce clause and when it does not. The new standard is this – a law passed pursuant to the commerce clause is constitutional if Justice Scalia likes the law and unconstitutional if he does not. Similarly, if the law is regulating things that Justice Scalia wants regulated, it is constitutional. If it does not, it is not.

Even in its silliness, and n.b. its impeccable bluebooking, I really think this mockery is onto something, and I definitely ought to read Law and Politics more often.

In non-law-related areas, there are also a couple of things. First, David has posted yet another brilliant little piece that suggests his almost freakish spelling incompetence belies his intrinsically British ability to craft a lovely, pitch-perfect vignette.

In other news, Pittsburgh is finally in the top 20 at something other than football: in meanness to the homeless. When I clicked on the headline, I thought I'd find us second only to, say, Salt Lake City and the like, and second to no cold-weather cities. So I guess I'm happy that we're not that bad. Even so, it's a pet peeve of mind, how insensitive we are in this country to our own untouchables, the couple of percent of the population the structure of capitalism pretty much guarantees will exist. A civilization's virtue is or ought to be measured by how it treats its meanest citizens. That we're in the top 20 crappiest cities to the homeless in a country that doesn't measure up especially well (among developed nations) in its treatment of the homeless generally is disappointing to say the least.

Still with me? Wow.

Okay, next up is a really disturbing story about immigrant mistreatment based on racial profiling. It's also really damned funny in a disheartening sort of way. And the story is all kinds of New York, which is part of why I like it. Posthumously Arrested for Assaulting Myself, and yes, that title is exactly what the post is about.

Also from 3QuarksDaily, a wonderful thought piece on the truly high stature the polymathic and brilliant author Vladimir Vladimirovich Nabokov achieved as a lepidopterist, a field to which Nabokov's substantial contribution is too often overlooked.


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