Sense And Sensibility

Sense And Sensibility

When I was growing up there was a spate of r0ad signs demanding the impeachment of Warren. The target was Earl Warren, the Chief Justice of the United States Supreme Court. Governor of California, he had been appointed to the position by Dwight Eisenhower, President of the United States – his nomination having been approved by the Senate and then by Congress. He was, however, more liberal – and he led the Court in a far more liberal direction – than had been anticipated.

Had the choice been a bad one? Was Governor Warren unqualified for the position? Absolutely not. Was he the right man for the job? Perhaps not. The two criteria don't necessarily go together. Chief Justice Warren was well-schooled in the law, the Constitution. and in American government, but his political philosophy – whether you view it as right or wrong – was not shared by large segments of the population. And the principal advocate of our judicial system differed in many of his views from those for whom he judged the law.

The Constitution was written at the end of the eighteenth century when our country was founded, and the document contained the compromises expected in such a contract. Not everything was agreeable to all our Founding Fathers, but it was a good start. It was the basis for all our laws, although there has been a lot of debate about some of their wisdom. Our outlook has changed regarding many subjects over the years, including the contents of our founding rulebook. Fair enough. Times change, and with them ideas. Over the years there have been numerous laws, at all levels, that have aroused the dismay of citizens – often dismay reflecting changes that simply mirror a reaction to societal differences over time rather than some political quibbling. And even moreso court decisions – especially those of the Supreme Court.

It's not a surprise. Since the beginning there was a call for a a regular review and updating of the Constitution. Thomas Jefferson was among the group favoring frequent change, feeling that children should not be bound by the views of their parents – moral or legal. In addition, however, perhaps nine eminent legal scholars should consider the perspectives of the American population – both the majority and significant portions of the minority – when they decide upon the “established law” that will govern our society. It's sad for example, that Roe v Wade, a decision long ago repudiated by the plaintiff, should still be inspiring invective and hostility so long after it became the law of the land, over the protests of so many. And it is surprising that “Doe,” of Doe v Bolton, whose suit accompanied Roe's and, according to the nine sages, supported its conclusions, disclaimed it and maintained that it was brought in her name without her knowledge, but was contrary to her wishes and beliefs.

And there are other issues about which we ask the enlightened nine to decide right and wrong although they are making sociological as well as legal decisions. The original Founding Fathers (all men) accepted the concepts of slavery, and the limitation of the franchise to certain men. Yet we manage to nullify these features of the “law of the land,” features with which the nine disagreed and which violated societal norms, by simply “interpreting” them out of existence. The Constitution is not inviolable when we want to change it.

Perhaps our Justices should consider how the American people feel and how they they'd vote when they consider the cases before them. More is involved in the law than the law than the law.

The Decline Of Congress And Our Citizens

I recently sent the following letter to the New York Times:

Date: May 13, 2016 8:33:07 AM
Subject: U.S. ISSUES NOTICE ON STUDENTS WHO ARE TRANSGENDER
To: letters@nytimes.com

May 13, 2016

Dear Editor:

The President is showing his resolve. At home if not abroad.

The Supreme Court, having discovered the right of privacy (not mentioned in the Constitution) to guarantee the right of contraception (not mentioned in the Constitution), it seems perverse that the President would arbitrarily deny privacy to the majority of students in order to satisfy the demands of the transgender (not mentioned in the Constitution) minority and their supporters. Is the next step unisex toilets or the imposition of the policy on the military?

When do the people get a say? Will our next chance be when we evaluate Secretary Clinton's agreement with the President's views?

Not surprisingly the letter was not published.

The Supreme Court has, for many years, arrogated the rights of Congress by deciding what they meant, what they should have meant, and the general acceptability of the laws they have passed. Congress has abrogated the obligation to legislate by authorizing Executive branch committees to interpret what they mean and to make regulations which have the force of law.

And the President has all but assumed the power to legislate by directing the implementation of such rules with little effective oversight. Political decision have taken precedence over any other considerations.

The only unrepresented group has been the American People – in whose name these actions are being taken.

In the case mentioned above the new rule (transgender “rights” – minority “rights” – which I've discussed in other essays) was imposed unilaterally by the President without consultation with Congress, and certainly without any determination of its acceptability by the American People. And the President's assumption of “Executive Power” has resulted in the imposition of numerous rules and policies, though Congress should have been the decision maker. When necessary, the President has bullied Congress into passing legislation that he can use to justify his positions, and which he believes will provide cover for him when he is challenged in court. At the moment, the Supreme Court is weakened by the absence of one member and is unlikely to make any momentous decisions. Since so many of them have been political in origin that's not entirely a bad thing, but it is contrary to checks and balances system set up in our Constitution. In this instance it's likely that a decision won't be reached for many years and then only when it's a moot point. That's often the case with the court system, but it's probable that the delays will be even greater now (and, since the President will nominate a new Justice, the composition of the Court must be an important consideration for voters).

On paper Congress is a powerful body. The Constitution says so. We the People have made it so. But in reality it has surrendered much of its power, and much has been taken from it, so that it has diminished from the dominant body to the most dependent. Perhaps that's not what we wanted, but we were never asked. Has the time come for us to make our voices heard?

A Few Political Thoughts

Antonin Scalia died yesterday. He was a Justice of the Supreme Court and had served since 1986. He prided himself as being an “originalist,” one who considered the original intent and meaning of the Constitution as the principles by which cases should be understood and decided. It's a conservative view – one that frowns on the use of modern social concepts in the interpretation of the law. He was one of the conservative voices on a Court that alternated between liberal and conservative opinions with alarming irregularity. Its positions were not completely satisfactory to either constituency. Which was the cause of much anxiety among citizens whenever a case was to be decided about which they had strong opinions.

Antonin Scalia died yesterday. The President will now have the opportunity to nominate another candidate for the Court. He has already appointed two members – both staunch liberals reflecting his own political philosophy. Because they replaced one moderate liberal and one moderate conservative (though both had been appointed by Republicans) his appointments changed the nature of the Court. In all likelihood he will nominate another liberal to replace the conservative Scalia in an attempt to establish a firm liberal majority before his term in office ends. Because the Justices serve for life, such an appointment appointment would affect our society for many years.

President Obama will assert his right and responsibility to do so. It is his Constitutional duty. And he will contend that he is the only official elected by all the people and, thus, representative of their wishes. And he will remind us that it the duty of the Senate to pass judgment on his appointee. “Advice and consent” of the Senate are Constitutional requirements, and the Senators must not shirk their responsibilities. And if they do pass on his candidate, refusing to accept him or her, he will make a political year issue of their “obstructionism.”

President Obama will not mention that while he received 51.2% of the popular vote in 2012, he only had the approval of 43% of the population in 2014 (Pew). Any claim to his popularity and representativeness should be taken with those numbers in mind. And it is hard to ignore the fact that voters have since chosen Republican (conservative) majorities in both the House of Representatives and the Senate. The latter is more of a problem for the President who will challenge them to perform their mandated responsibilities as he performs his. He will not mention his end run around the Senate when he declared the treaty with Iran to be an “agreement” which does not require the Senate's consent. Indeed, he cajoled the Democratic minority in the Senate to prevent a vote there so he wouldn't have to veto Congress's will (and the will of the American people) which would lower his popularity still further. Put differently, he prevented the Senate from performing its Constitutional responsibility when it helped him to do so, but he will insist they perform it when he believes that this will be to his advantage.

It is my hope that they will remain firm and wait to see the will of the people in 2016 before making any decision on candidates put forth by the President.

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For better or worse, the United States, which was, at one time, the leader of the “free” world, has abandoned that designation. We once thought of ourselves as the world's “policemen” with the responsibility for protecting the weak from the tyranny of their leaders (primarily, of course, ones who disagreed with our policies). Our stance now is to defer to the United Nations and the European Union, and to the leaders of countries we once viewed as enemies. We talk and discuss problems. Perhaps that is better than taking a stand or taking action. As Churchill said, “To jaw-jaw always is better than to war-war.” But the recognition by other nations that we will only “jaw-jaw” gives them reason not to take our threats, red-lines, and deadlines seriously. In many senses we have returned to the isolationism of our past. Perhaps that is wise, but it implies the acceptance of injustices which we will permit to exist irrespective of our proclamation of American ideals.

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At the moment, the leaders in the race for the Presidential nominations are Donald Trump and Senator Bernard Sanders. Because they are both disliked by so many voters, former New York City Mayor Michael Bloomberg may enter the race. It would be an interesting lineup. In a country that spawned the “Occupy Wall Street” movement and numerous other similar crusades against the oppression by the rich of all of the rest of us, in addition to an avowed socialist our choice would be between two billionaires. And in a country with (according to the ADL) more than 10% antisemites among the adult population – a country that has always had a Christian President (we can debate about President Obama at another time) – two of the three candidates would be Jewish.

What a country.

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It's “silly season.” It's campaign time. That really started a long time ago and it's clear that some candidates for high office start planning their strategies many cycles in advance of their actual goals. Some countries limit the hullabaloo to a few weeks, but politics is an American obsession. We may not agree on anything else, but we love the time when we can argue. We all agree on that.

I'll probably discuss these issues again at another time, but I couldn't help commenting on them now. Silly season is contagious.

I Am What I Am

Give me Affirmative Action credit. I may be white outside, but I feel black inside.

Let me be a fireman. Perhaps I'm quadriplegic, but I feel strong inside, strong enough to rescue people.

I want a Senior Citizen's discount. I may have been born only thirty years ago, but I feel like I'm seventy.

Admit me to medical school. Everyone says I'm dumb, but I feel smart.

Bizarre requests, aren't they? No one would take those self-identifications seriously and no one would act on any of them, but here's another.

PORTLAND, Maine — The Maine Supreme Judicial Court on Thursday guaranteed the right of a transgender child to use the school bathroom designated for the gender with which he or she identifies.... ⁱ

Actually, that item is a little old, dating back to January 30, 2014 so I'm adding the following from the Portland Press Herald on December 2, 2014:

Court orders Orono school district to pay $75,000 award in transgender girl’s lawsuit Nicole Maines and her attorneys will share the payment, concluding a precedent-setting case over denied access to a student bathroom.

The original suit stemmed from a complaint by another boy that he wasn't allowed to use the girl's bathroom at the school, although the child named in the suit (not the complainant but the one he used as an example), who identified as a girl despite his/her birth sex, was permitted to do so. That other child felt like a girl and wanted to be treated as one. And the court agreed.

The case, not surprisingly raises many important questions. One relates to the feelings of others, and to their rights – both those of the other boy and those of the girls using the bathroom. Only the “rights” of the transgender child, however, seem to have been supported by the court. And that leads to the question of whether the courts have (or should have) the authority to make such a decision – to decide that feelings rise to the level of legal realities, and that such feelings are accompanied by rights. And, it appears, they take precedence over the rightsⁱⁱ of others. It seems that wishing will make it so.

What is reality? And who decides what it is? All of our laws are based on it. If, for example, a thief believes that his act is just,ⁱⁱⁱ if his “self-identification” is that of an honest man fighting for the rights of the poor, does that make it reality? Are the thief's rights to freedom, and to the money he may have stolen, the new reality that takes precedence over the views of the victim and of others who may have been involved in the situation?

My intent is not to belittle the feelings of this, or any other, transgender individual but to inquire about whether the problem belongs on the court docket or the schedule of the psychiatrist. The American Psychiatric Association (APA), however, has concluded that gender dysphoria is not a psychiatric disorder,^iv so I can only conclude that the courts are right to act. I'm not sure if the APA considers gender dysphoria a normal condition, but they have concluded that it is not a psychiatric disorder. And, as I noted earlier, the courts have decided that those with such dysphoria have rights which trump those of others who lack it.

There is a song in “La Cage aux Folles,” a 1983 Broadway musical, entitled “I Am What I Am.” In that song Albin, a drag queen, expresses pride in his feelings and disdain for the views of those who question that perspective. But the song is not completely true. It really proclaims “I am what I feel I am.” That's not reality.

“Self-identification” can be a denial of society and its rules and norms. We cannot all make our own definitions and laws. And society – we – cannot accept that position without risk. A system in which every individual has a right to decide who he is, what he wants and what's good for him, irrespective of what others may want, isn't democracy. In a way it returns us to the state of nature. It may not be anarchy, but it's a world in which we all make our own rules and we cannot accept all it implies.

Indeed, we have taken that position in the past. Does a smoker have the right to smoke in the workplace? The courts say no. While the smoker may have the right to pursue his passion, the smoke offends and threatens others. People may drink. They have that right. We've rejected prohibition. But drunk driving isn't permitted. The benchmark is not the drinker's right, but the concerns of others. “Your right to swing your arms ends just where the other man's nose begins.”^v When your action affects me negatively, it is no longer a victimless one. Self-definition isn't good enough. A problem exists when that definition impacts negatively on others. And that impact may be psychological or it may involve the “right” of privacy.

In Roe v Wade, the United States Supreme Court identified a right of privacy by reading between the lines of the Constitution. And, as an extension, in Lawrence v Texas it was their view, and hence the law of the land, that actions in private between two consenting adults are legal. They're no one else's business – especially not the government. I'm hard put to find it in our founding legal document, but I cannot fault the principle.

Two consenting adults. Makes sense. But in this particular case the privacy of others was not considered. The “rights” of only one, the transgender child, were involved. Whether some or all of the others who used the rest room consented to his/her presence was not the issue. And the people who might consider their privacy compromised were children. The court was not considering any act of two consenting adults. Clearly privacy could not be invoked as the origin of this “right.”

So the lower court in Maine didn't follow the lead of the “higher authority” unless it believed that it was being led to expand rights and find them where they had never been seen before. And that seems to be what happened. “Lawyers representing Nicole Maines, who is now 16, said the decision could lay a foundation for other states’ courts that are facing questions about the emerging rights of people who identify as the opposite of their birth gender.”^vi Reality must give way to “the emerging rights of people who identify as [whatever].”

There are many who rail at those who speak out for “law and order.” They attribute it to Tea Party members and other fundamentalists. If we don't jettison our standards entirely though, does that mean we won't punish what we consider wrong? Does it mean that we change our standards with the times, in the name of “sensitivity,” so that unorthodox behavior is acceptable? Do we force others to accept that behavior and agree that it is more important than their own?

It is our tradition to prevent the majority from suppressing the minority, but it is not our tradition to give the minority the right to subdue the majority. And it is certainly not our tradition to ignore reality in order to do so.

Next episode: “Testing – One, Two, Three … Ten” – Musar time.”

I        Dispatch from the Bangor (Maine) Daily News. There are many other stories you can read on the subject. Just do an internet search.

ii       That may be an overstatement. It's not clear that those who are not transgender have any comparable rights.

iii      Clearly Robin Hood was so persuaded.

iv      http://thinkprogress.org/lgbt/2012/12/03/1271431/apa-revises-manual-being-transgender-is-no-longer-a-mental-disorder/

v        Zechariah Chafee, "Freedom of Speech in Wartime," 32 Harvard Law Review 932, 957 (1919)

vi       Portland (Maine) Press Herald, January 30, 2014.

Amazing Greece

                                                                                                                      

A few weeks ago, on November 7, 2013, a meeting was held of the Town Board. They have those meetings regularly as the governing body of the town in Greece, New York. I guess it's not unusual that they should do so, and it's not worthy of special notice. On the agenda, however, was a “Moment of Prayer,” which was given by the Reverend Frank Falletta. That's worthy of comment.

According to the First Amendment to our Constitution,

“Congress shall make no law respecting an establishment of religion …”

and while that might simply seem to apply to the nation's Congress, the Fourteenth Amendment states

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States...”

so it's clear that that the prohibition is not one solely applying to the Federal Government.

Does this apply to local governments as well? I don't know. My prejudice would be that even though this is not spelled out explicitly, it does. But that's an issue for wiser minds than mine, and, as I had learned a day earlier, the practice in Greece regarding prayers opening public meetings, was a question that the Supreme Court was considering this term. Many – and not just atheists – consider this to be an intrusion of religion on the citizenry contrary to the Bill of Rights.

Different groups have different objections to the practice which, in this case, involves the presentation of clearly Christian prayers as an intrinsic part of a governmental meeting. It is likely that the original intent of the First Amendment related to the protection of the people from the imposition of a particular doctrine as a state religion – a protection of the population from a specific religionⁱ – but over the years it came to be understood also as a protection of our various religions from state influences. There is no belief system to which they are required to conform.

The current construction, however, is that instead of protecting the population from a specific state religion, the government should have nothing whatever to do with religion or any religious practice. It should “protect” the people from religion.ⁱⁱ Although some exceptions are made – like the military chaplaincy, religious mottoes on our currency and in the Pledge of Allegiance, and tax exemptions for religious institutions – by and large we have banished religion from the “public square.” It's simply not a matter for public discussion. And anyone who considers what someone else views as a religious teaching when evaluating any aspect of our society is engaging in an unconstitutional practice. We see as sacred the “wall of separation between church and state” of which Thomas Jefferson wrote in 1802.^{iii iv} And a colleague of his, George Washington, wrote “We should be very cautious of violating the Rights of Conscience in others,” and “religious controversies are always productive of more acrimony and irreconcilable hatreds than those which spring from any other cause.”

Well, I believe President Washington's latter statement – if it is understood to refer not to the theological differences between members of different sects, but to the vituperative behavior which occurs when a non-believer meets a believer. But I also wonder how his view relates to other “Rights of Conscience,” the controversies, for example, between liberals and conservatives which are “always productive of [extreme] acrimony and irreconcilable hatred,” or those who favor and those who oppose the death penalty.^v

One of the main issues in any such discussion is a definition of “religion.” It's not possible to be sure what the Founding Fathers meant by the term, but in all likelihood they were referring to “organized” religion, a system of beliefs centered on a deity. By and large, most people at that time didn't question the existence of G-d, although they may have disagreed on His^vi nature and the ways to serve Him.

The first definition in the Random House Dictionary, however, refers to the term's spiritual and divine natures without mentioning G-d.^vii I'm more interested in the second, though, which characterizes religion as “a specific fundamental set of beliefs and practices generally agreed upon by a number of persons or sects.” As such, the definition includes atheists as well as church members. Most of them do not argue about the issue of beliefs,^viii even if they deny the existence of any deity or of existence after death.

And that appears to be the current issue: is there or isn't there a G-d? Opinions based on the concept that there is no deity are legitimate, but a corollary is that no spiritual feelings can be discussed or used as the basis of constitutional arguments. So, according to that perspective, if you accept the constitutional view probably held by those who wrote the Constitution, you had better be careful what you say. There are many who would bar you from using such ideas as a basis for political or legal positions, or for the public practice of your religion. Certainly the display of religious symbols on public property is considered a blasphemy on the secular religion we practice. The individual who argues a point that may be supported by religious teaching – even if his motives have nothing to do with any religious view – is viewed as a fanatic, and there are many who argue that he is not entitled to use his First Amendment rights irrespective both of his intent and that of our founding document's authors. They wrote “Congress shall make no law ... abridging the freedom of speech, or of the press ...” That, however, appears to relate only to the use of speech educated by the secular religion we observe, not by any other faith.

The reality is that America is a Christian nation. I'm not a Christian and there are times when I'm offended by its flaunting and its display. But as long as it is not imposed on me and I am free to practice my own religion in the way I consider appropriate, I can live with reality. I can ignore public prayers like those in Greece or even argue for equal time for members of other religions. Perhaps town meetings, like school classrooms, should be deemed off-limits for prayers, because there are captive audiences present, but it seems to me that the suppression of other opinions simply because they reflect, or are coincidentally consistent with, religious doctrines, contravenes the First Amendment rather than promotes it.

So the Justices will evaluate the arguments and rule on the glory that is Greece. Was Reverend Falletta violating the Constitution?

To be continued.^ix

Next episode: “Time And Again” – Slow down. You go too fast.

i       Indeed, those who reject any divinity believe that the population should be shielded from any manifestation of religion. They do not accept the idea that there can be “non-denominational” prayers, though this would be a satisfactory solution for many of those who oppose the “establishment of [a state] religion” by the government.

ii      Free choice is accepted. Indeed, “choice” is the watchword of our times. We worship it. A democratic society like ours is a staunch believer in such a position. In certain areas it is the law of the land – like abortion and the exercise of majority rule. But it is lionized, primarily when it concerns sexual mores, and the expression of favorable opinions regarding any practice that is considered unacceptable in the Bible – whether it is abortion, suicide, homosexuality, ritual slaughter, or other similar matters. Those ideas are praiseworthy, but views supporting religious practices are not tolerated well. (It is hard not to wonder how a secular government that enforces its views on the religious differs from a religious government that enforces its beliefs on the secular.)
iii     It was in a letter to the Danbury Baptist Association and ended, “I reciprocate your kind prayers for the protection and blessing of the common Father and creator of man ...” He was not opposed to private expressions of belief.

iv     Also of interest is President Jefferson's reluctance to declare a Thanksgiving. While as Governor of Virginia he promoted a day of Thanksgiving and Prayer, yet as President, in a letter to Reverend Samuel Miller on January 23, 1808 he wrote, “I consider the government of the United States as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises...” Most Americans now would see Thanksgiving as a secular holiday, but that was not his view.

v       Or circumcision.

vi     Its(?) Assigning a sex (gender?) to G-d is obviously inappropriate, even though it makes the discussion easier.

vii    The Random House Dictionary of the English Language (The Unabridged Edition), 1967, New York. Page 1212.

viii   Actually, they usually proclaim their beliefs loudly and proudly. They consider it as a lack of belief, but in reality it is only a lack of belief in a deity. They firmly believe in His absence. And they have a strong belief in “good,” which they claim characterizes all their positions, and is achieveable by human means alone.

ix      Or concluded. Depending on what the losing side chooses to do, and what variations on the case they can bring before the Court.

Rights And Wrongs

                                                                                            

According to Protagoras (490-430 BCE), “Man is the measure of all things.” Protagoras was a Greek and, according to Plato, a professional sophist. In view of his history, he qualifies as a dead white European male. Thus we reject everything he says. While that's not my automatic response, in this instance I accept the rejection of this particular declaration of the primacy of Man for several reasons. The most obvious is religious, but I won't get into that at this time. Rather I shall begin with Teddy Roosevelt.

It was the late President who said, in a State of the Union address,ⁱ “No man is above the law ... ”ⁱⁱ And that is the way our country is supposed to operate. Although crime exists and there are many who place themselves above the law, there are many who, less schooled in avoidance of the system and less able to afford sophisticated legal protection, come before what we term “the bar of justice.”

That's the way we work. According to the Constitution, Congress makes the laws and the courts decide on their just enforcement. In between is the executive power which provides the tools for the overall system, and it includes the mechanisms for bringing suspected violators to justice. But the bottom line is that the courts decide what the law is and what the law means. The courts (not Man) are the measure of all things. We know that is true because the Supreme Court has told us that it is.ⁱⁱⁱ

Sometimes it is difficult^iv to see the justice in a court decision. In one case,^v for example, the Supreme Court decided that it was in violation of interstate commerce laws for a farmer to grow wheat for his family's use if that exceeded what the government permitted. The Justices, however, decided that the part for his own consumption was illegal and the decision of the Secretary of Agriculture to fine him was proper and in keeping with the Constitution.

Sometimes the Court sees “rights” in the Constitution that are not obvious to those like me who are uninitiated.^vi Many designate it as “judicial activism.” That's a nice way of saying that it's politics for Justices. So it's important to be sure the right ones are on the bench – a high priority for every President.

Perhaps the courts shouldn't insert themselves in such matters. Perhaps they should. But one could surely argue that the court shouldn't “see” rights simply because they think they ought to be there. One might fear that such a procedure contradicts the idea of the rule of law. He might be concerned that however right a new “right” might be, it has been established wrongly. Perhaps this supports Protagoras's view: In this instance, Man (or Woman^vii) is the measure of all things. One of the more important issues each time there is a presidential election is the knowledge that the President (with the approval of the Senate) will choose candidates for open Supreme Court positions. Since the law is whatever the Justices say it is, choosing one with a particular political philosophy is an important means of making law conform to your own agenda. So an unelected Justice gets a lifetime appointment as a potential creator of rights. The original authors of the Constitution required ratification of their document. They needed to have their ideas approved. Supreme Court Justices do not.^viii

But that's enough quibbling. Back to the issue.

Okay. Griswold v. Connecticut taught us all some important lessons.^ix Privacy. Behind closed doors. Consenting adults. Keeping the government from intruding on our private beliefs and practices makes sense. You don't have to be a libertarian to want to keep public officials from deciding issues that you view as matters of morality. That, however, is coming to pass.^x More and more there is intrusion by the courts on matters of privacy and belief. The issues are no longer privacy and closed doors, or consent, or even adults. The key word is “rights.” The courts have discovered constitutional rights where they may not be apparent to most of us.

The Colorado Division of Civil Rights,^xi a civil rights court, has decided that it is discrimination to require that a transgender student – born a boy but identifying as a girl^xii – be denied use of the girl's bathroom. The use of the teachers' rest room or that of the nurse was deemed to be discriminatory. Fear was expressed that the child would be stigmatized. The consent of the other children in the bathroom was not the issue. Their privacy was not the determining factor even in a public bathroom.

What are the rights of the other children (and their parents) who are embarrassed by the presence in the bathroom of one they considers of the opposite sex? Suppose one of those children has been subject to sexual abuse and is traumatized by the presence of what she considers a member (sic) of the opposite. And what if parents simply don't want their children exposed (literally, figuratively, or both) to the anatomy of the opposite sex?^xiii

Does the ruling apply only to children or also to adults of what some might consider the opposite sex? If only children with “gender dysphoria” are involved, what is the upper limit of age? Do older individuals who identify with the opposite sex have any rights. Should those who object to the ruling or are not covered by it be permitted^xiv to use an alternative bathroom?

This is not the only case of its type but it is the first to specify that the rights of the transgender student trump the rights and beliefs of others. Various courts have affirmed the idea of equal rights for homosexuals, while the New Mexico Supreme Court has ruled that a photographic studio has no right to refuse the business of a same sex couple that wants their ceremony photographed. The personal and religious beliefs of the photographers are secondary issues. As the New York Times put it, “One of the justices, Richard C. Bosson, wrote: 'At its heart, this case teaches that at some point in our lives, all of us must compromise, if only a little, to accommodate the contrasting values of others.'”

The issue is not any particular moral opinion. And the issue is not minority versus majority rights. The issue is whether the state has the right to impose its own morality on the rest of us. Notwithstanding “compromise … to accommodate the contrasting values of others,” however, at some point civil “rights” become “wrongs,” and the weight of judicial authority doesn't automatically mean that some rights can be sacrificed because of the current social milieu. It's a complicated balancing act in which the rights of the victims must be considered too. But it may be difficult to decide who is the victim. Too often there are instances in which the deciders of the law decide that President Roosevelt (Theodore) was wrong and their social agendas are (above) the law, and are guaranteed by the Constitution whether or not there is any mention of the issue in that document. And the rights that are clearly delineated are secondary to the ones they have “discerned” there, irrespective of what others may think. The judges too often view themselves^xv as the measure of all things.

There was once a view in the military: “Don't ask, don't tell.” It was a view that acknowledged that there was a right of privacy, and it was no one's business what consenting adults did behind closed doors. (The Supreme Court had already decided that what you did on your farm was the government's business.) It was, however, viewed as discriminatory because many considered it as denying their right to declare openly their sexual orientation. They took pride in their views and resented anything that might discourage their declaration. They won their point, and now the courts seem to have decided that their rights take precedence over others.

Score one for civil rights and for the measurers of all things.

Next episode: “Prometheus Bound” – Adam bound?

i       December 7, 1903.

ii       The same idea was expressed in various ways in earlier times (eg by Plato, Aristotle, and Cicero among others).

iii       Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 2 L. Ed. 60 (1803).

iv      At least for me.

v       Wickard v. Filburn, 317 U.S. 111, 63 S. Ct. 82, 87 L. Ed. 122 (1942).

vi      When my wife and I were courting (it's like dating but if you've never heard the word it's not at all similar to “hooking up,” “shacking up,” “doing it,” or whatever the current slang is, since the risks of pregnancy, AIDS, or other STD don't exist) contraception was illegal in many states. Then came Griswold v. Connecticut 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed 2d 510 (1965) and the rules changed. Griswold v. Connecticut established the constitutional right of privacy, a treasured and ineradicable right ever since, even though no such right can be found in the Constitution as it is written. It is hard to argue with a decision that sanctioned the use of contraceptives by a married couple – two consenting adults – behind closed doors, but it's harder to find that “right” in the words of the Founding Fathers. And labeling the decision permitting contraception as being supported by the constitutional “right of privacy” is hard for the layman to understand. It's established law now, however, and beyond question.

vii     Justice Ruth Bader Ginsburg, was quoted in the New York Times (August 25, 2013) as declaring proudly, and positively, that the current Supreme Court was “one of the most activist courts in history ... stunning in terms of activism.” It is clear that Justice Ginsburg, and others, favor an activist approach and the establishment of their own social agenda as law, whether it corresponds to the Constitution they're sworn to uphold or not.

viii     As I noted earlier, if the Supreme Court says so it's true and we're all bound by it. In a few weeks I'll discuss the issue of our obligation to the words and thoughts of those who preceded us.

ix       See footnote vi.

x         I'll also offer an essay on secular religion in the near future.

xi       June 24, 2013,

xii      The syndrome is not limited to boys, but that was the case decided.

xiii     What should be the policy for the inevitable gym showers?

xiv     Or obligated? Or should they be forbidden because that, too, would stigmatize others?

xv      And their ideas about what ought to be.

Mom, Spinach, And The Supreme Court

                           

“Put on a sweater. I'm cold.”

I bet your mother said that to you. And she insisted that you eat your spinach because Popeye and other trained nutritionists said it was good for you.ⁱ And besides, there were children starving in Europe.ⁱⁱ That's what I was told, and I did as I was told, but I never really understood the ideas behind these pronouncements. I knew it was “for [my] own good,” but the details were a little hazy. And she also wanted me to get a good education. She wanted me to do better than herⁱⁱⁱ and my father.

Now I know it was a little like an insurance policy. If I paid the price^iv I might get the benefit. Might. There were no guarantees. It was gambling. Like the stock market. Or the lottery.

If you're going to gamble, though, the lottery's the way to go. The cost is low and the payoff could be humongous.^v But the chance of winning is infinitesimal.^vi Wishing won't make it so.^vii

Well, maybe it will. The issue may have more to do with intent and wish than with fact. At least that seems to be the Supreme Court's stand, and since they make the laws we have to take their decisions seriously.

Last June, when it rendered a judgment on the “Affordable Care Act,”^viii the Court ruled that, for the most part, the legislation passed muster.^ix Specifically the decision was made that the “individual mandate” was defensible, even if not the way Congress wanted the law. But to do so – to make the act Constitutional – it was necessary to “interpret” the law in a way contradictory to what Congress and the President expressly wanted. The Court decides what's legal, though, so they can do that, and substitute whatever suits their philosophy.^x

In this instance the bill was constructed in a manner which was expressly intended not to raise taxes. The individual mandate would result from Congress’s commerce clause powers^xi and the act contained a requirement that those who elected not to have health insurance, as was their right, would be subject to a “penalty” – a “shared responsibility payment.” But there would be no tax. This was specifically stated because raising taxes was viewed as unwise politically. According to the Huffington Post, “the actual text of the bill^xii uses the word 'penalty' – not 'tax.' Even Obama, while the law was still being debated in Congress, insisted in a September 2009 interview with ABC's George Stephanopoulos that his health care overhaul was 'absolutely not [emphasis added] a tax increase.'"^xiii But, as Derek Thompson, a senior editor of the Atlantic, noted in the publication's June 28, 2012 edition, “five Justices agreed that the penalty that someone must pay if he refuses to buy insurance is a kind of tax that Congress can impose^xiv using its taxing power. That is all that matters.” Consequently, in terms of legislation, the will of Congress – the Legislative Branch of government – is not relevant. Nor is that of the President. Congress could have legislated a tax if they wanted to, so even if they didn't want to do that, the Supreme Court has decided that what they view as Congress's intent trumps what it actually said and did.^xv Wishing can make it so. Congress wanted universal insurance and they could have legislated it. Therefore it's legal. It's also good for the individuals involved – whether they think so or not.

That was mom's view. She honestly believed that the sweater and the spinach were good for me and the children in Europe. They were a good insurance policy. Whether what she said made any sense, she could have made a logical case for her decision if she had chosen to. After all, she had the right to do so.^xvi And “That is all that matters.”

Which brings me to the lottery and my fortune. I'm sure the Supreme Court will support my contention that since I could have chosen the winning numbers – I was legally entitled to do so – I should be awarded all the prizes to date. My intent and my wish were to win. Wishing makes it so. Consequently I claim the $550 or so million up in the next^xvii “Power Ball” lottery. Even if I lack the luck to pick the right numbers, I'm certainly permitted to do so and “[t]hat is all that matters.”^xviii The Fourteenth Amendment, and all that's said about equal protection, make my claim as valid as those who favored the Affordable Care Act. At least according to the precedent set in deciding its validity. The Court will certainly see that my intent was to win, so even if I didn't choose the right numbers, I certainly could have chosen them, so it will be hard for the Justices to deny me the prizes without retracting their decision on Obamacare. They may not want to, but they've already decided that wishing, intent, and legal ability are what really count.

Oh. You have to buy a ticket? Well that shouldn't affect anything. I could have bought one.

Thanks mom. You were right about the sweater and the education. (I'm less sure about the spinach.) And some time soon I'll be able to buy a very expensive sweater. And one for you, too. There's no reason you should be cold.

Next episode: “Thank You Eve” – The Devil made me do it.

i      Spinach was believed to be very high in iron. As it turns out, the original calculations may not be accurate. In addition, the high oxalic acid content limits the absorption of iron. There are, however, high levels of vitamin A and antioxidants present, though the significance of their addition to a well rounded diet is not clear.

ii      Of course there were children starving elsewhere as well, but our focus was on the continent that had just gone through a world war, and we were Eurocentric – even though the word had not yet been coined. But we weren't self-conscious, nor were we guilt-ridden about our focus. Now you're more likely to hear a reference to somewhere in the “Third World” as we strive to prove that we are diverse, multicultural, sensitive, and inclusionary, in keeping with the modern vogue.

iii      Or is it “she?” I always have trouble with that construction.

iv      In these instances the price was directed at modifying my behavior (after all, how likely was it that my spinach would actually help the children in Europe, and who wants to get out of bed and go to school anyway – but mom's reassurance made it all worthwhile) rather than any fiscal layout, however to some even this seemed to be a little high in view of the negligible chance that there would be a specific payout. And if there were, we probably wouldn't recognize it.

v      Slang. It's not in my copy of the OED (Second Edition – 1991) but someday will Well not in mine, but in a new edition.

vi     Perhaps not. I think that it's possible to win every time. Legally. In fact, I could be a billionaire. And so could you. But more about that shortly.

vii    This, too, may need reevaluation.

viii   ACA and “Obamacare” are two ways that the more polite among us refer to this program. Others are not so generous, citing issues of individual liberty as the reasons for their concerns about the legislation.

ix    It was decided that the Federal Government could not withdraw existing Medicaid support from states that balked at significantly increasing the number of those eligible to receive this entitlement. Otherwise everything was copacetic.

x     The concepts of “checks and balances” and “separation of powers” no longer apply. The Supreme Court, like mom, is in charge, and there is no appeal from its decisions.

xi     Of course nothing in this clause (Article 1, Section 8, Clause 3 of the Constitution) that deals with this issue or even implies any connection to health care, but the Court has expanded its scope at will. According to Wikipedia, “During the post-1937 era, the use of the Commerce Clause by Congress to authorize federal control of economic matters became effectively unlimited.”

xii    I must admit that I never read the bill. It's far too long. In all likelihood, though, it wasn't read by most of the people who voted for it. They simply did what they were told.

xiii  June 26, 2009. Of course Congress's position, and that of the President, were well reported elsewhere as well, so that taxpayers would know that no one was raising their taxes.

xiv    If it wants to.

xv     What makes it a little harder for me to understand, however, is that the Court decided, when ruling on the legality of the individual mandate, that, despite Congress's wishes, which it ignored, this was a tax (intent was not relvant) and the commerce clause didn't apply, but, when dealing with the argument that the case should not then have been in court and decided, because taxes cannot be challenged until they have been paid (as per the Anti-Injunction Act of 1867) – and that has not happened yet – ruled on the case because, according to the Court, the act does not apply in this case since Congress used the word “penalty” instead of “tax,” signaling Congress’s intent that the Anti-Injunction Act should not apply in this case. The Court ignored Congress's wish that it not a tax, but after deciding it was a tax ruled that laws regarding taxes didn't apply to it because Congress didn't want a tax (intent was all that was relevant). I guess I don't understand because I have no legal education and lack the legal sophistication (sophistry?) to appreciate the nuances of the decision.

xvi     Some children's rights advocates might not accept this view. 

xvii    As well as the prizes in all previous lotteries.

xviii   Everyone else is equally entitled to win, so don't tell them my plan. At least not until I collect my fortune. After that I won't care and they can divide it all among themselves.