"Legislature": I Do Not Think That Word Means What You (And Everyone Else) Think It Means

In the battle of the English language versus the Supreme Court, the English language just took a big hit. In the wake of the kind-hearted but legally bankrupt decision in Obergefell (which I discuss in depth here), the Supreme Court ruled in Arizona State Legislature v. Arizona Independent Redistricting Commission that it is Constitutional for an independent commission to draw the district boundaries for Arizona's election of members to the US House of Representatives. In the interest of full disclosure, as was the case in Obergefell, I LOVE this result from a policy perspective. Gerrymandering is awful and undemocratic. Far too many "safe districts" have been created which lead to a large number of idiots being sent to Washington whose jobs do not depend on saying rational or intelligent things or passing rational or intelligent laws. However, once again, the Supreme Court seems to be forgetting its job. The Court is not supposed to tell us what the law SHOULD be. Rather, the Court's job is to tell us what the law IS.

I'm becoming a huge fan of Justice Roberts, so once again I will let his dissenting opinion in Arizona do the talking, and I will provide explanation, elaboration, and commentary. 

Just over a century ago, Arizona became the second State in the Union to ratify the Seventeenth Amendment. That Amendment transferred power to choose United States Senators from “the Legislature” of each State, Art. I, §3, to “the people thereof.” The Amendment resulted from an arduous, decades-long campaign in which reformers across the country worked hard to garner approval from Congress and three-quarters of the States.

What chumps! Didn’t they realize that all they had to do was interpret the constitutional term “the Legislature” to mean “the people”? The Court today performs just such a magic trick with the Elections Clause. Art. I, §4. That Clause vests congressional redistricting authority in “the Legislature” of each State. An Arizona ballot initiative transferred that authority from “the Legislature” to an “Independent Redistricting Commission.” The majority approves this deliberate constitutional evasion by doing what the proponents of the Seventeenth Amendment dared not: revising “the Legislature” to mean “the people.”

Wait. What?! There's no way this case is that simple and silly. Right? Wrong. This case is that simple and silly. The majority opinion in this case, written by Justice Ginsburg, argues that the word "legislature" is not clear enough, and that in this context it can include the people of the state of Arizona (who created this redistricting commission through ballot initiative). This is too much. Again, I hate gerrymandering, but you cannot (and maintain any judicial integrity) just make up definitions of words simply to get to the political end that you desire. Well, if you are the majority in this case, you can.

The majority begins by discussing policy. I begin with the Constitution. The Elections Clause provides: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” Art. I, §4, cl. 1.

So there you have it. Plain as day. If you go up to a person on the street right now and ask what the legislature is, you're actually likely to get a blank stare because Americans tend to be idiots. However, if you only look at the set of people who give a coherent response (like they know it has something to do with politics) I can promise you not one person is going to say "the legislature is all of the people in the state."

The relevant question in this case is how to define “the Legislature” under the Elections Clause. The majority opinion does not seriously turn to that question until page 24, and even then it fails to provide a coherent answer. The Court seems to conclude, based largely on its understanding of the “history and purpose” of the Elections Clause, ante, at 24, that “the Legislature” encompasses any entity in a State that exercises legislative power. That circular definition lacks any basis in the text of the Constitution or any other relevant legal source.

Justice Ginsburg is essentially arguing that because an entity exercised legislative power, it is a legislature. How? What? Huh? Under that reasoning, if the Supreme Court of Arizona gathers together and decides to write a law lowering the drinking age in Arizona to 3 (just for fun), and then they vote on the law and declare it passed, when someone inevitably challenges the lack of authority vested in the court to do such a thing, they only have to argue, "well, we exercised a legislative function," and now they are a legislature. This is so goofy.

The majority’s textual analysis consists, in its entirety, of one paragraph citing founding era dictionaries. The majority points to various dictionaries that follow Samuel Johnson’s definition of “legislature” as the “power that makes laws.” Ibid. (internal quotation marks omitted).The notion that this definition corresponds to the entire population of a State is strained to begin with, and largely discredited by the majority’s own admission that “[d]irect lawmaking by the people was virtually unknown when the Constitution of 1787 was drafted.” 

 It's also worth noting at this point that the Founders HATED the idea of direct democracy. Our entire system of government is designed to limit the power of the people because men like James Madison considered the average person to be too stupid and prone to "passions" to make intelligent governing choices. We didn't directly elect Senators prior to 1913 for EXACTLY that reason. The idea was, "well even if the idiot citizenry votes in a bunch of morons (see Bachmann, Michele, see also Gohmert, Louie), the States can at least fill up the Senate with smart people and provide a check on the clown car." (As a side note, we now directly elect Senators, and we have scholars like Jim Inhofe tossing snowballs in the Senate chamber as evidence that climate change is a hoax, so it would appear that Madison and the boys were on to something.) In any event, there is absolutely no way possible to conceive that when they wrote "Legislature" into the Constitution that one of the possible meanings was, "the people of the State (who we don't trust as far as we can throw them)."

The Federalist Papers are replete with references to “legislatures” that can only be understood as referring to representative institutions. E.g., The Federalist No. 27, pp. 174–175 (C. Rossiter ed.1961) (A. Hamilton) (describing “the State legislatures” as“select bodies of men”); id., No. 60, at 368 (contrasting “the State legislatures” with “the people”). Noah Webster’s heralded American Dictionary of the English Language defines “legislature” as “[t]he body of men in a state or kingdom, invested with power to make and repeal laws.”2 An American Dictionary of the English Language (1828). It continues, “The legislatures of most of the states in America . . . consist of two houses or branches.”

Yea. I don't know if Justice Ginsberg is easily embarrassed, but this really ought to do the trick.

I could go on, but the Court has said this before. As we put it nearly a century ago, “Legislature” was “not a term of uncertain meaning when incorporated into the Constitution.”

I'll go one better. "Legislature" is not a term of uncertain meaning EVER. Everybody who is educated enough to have an opinion we should value knows what that word means. It's actually difficult to come up with many words whose meaning is more certain than that of "legislature."

The Commission had no answer to this point. See Tr. of Oral Arg. 42 (JUSTICE ALITO: “Is there any other provision where legislature means anything other than the conventional meaning?” Appellee: “I don’t know the answer to that question.”). 

See? I told you. As a side note, how the hell are you, as an attorney arguing this case, not prepared for that question. You have to know someone is going to ask you that. At least make up something.

The people of Arizona have concerns about the process of congressional redistricting in their State. For better or worse, the Elections Clause of the Constitution does not allow them to address those concerns by displacing their legislature. But it does allow them to seek relief from Congress, which can make or alter the regulations prescribed by the legislature. And the Constitution gives them another means of change. They can follow the leadof the reformers who won passage of the Seventeenth Amendment. Indeed, several constitutional amendments over the past century have involved modifications of theelectoral process. Amdts. 19, 22, 24, 26. Unfortunately,today’s decision will only discourage this democratic method of change. Why go through the hassle of writing a new provision into the Constitution when it is so mucheasier to write an old one out? I respectfully dissent.

I close with this portion of the opinion because many people will ask of this case as they did in Obergefell, "who cares?". The result is a good one. Arizona will be less gerrymandered, and should we not just celebrate that.

No, we should not. And the reason we should not is because when an educated and respected justice such as Justice Ginsberg writes an opinion that is based on an apparent misunderstanding of the word "legislature" that would result in lost points on any high school government test covering the subject, it creates a cynicism about the Court. Assuming we aren't putting people on our highest court who are just stupid, it leaves the impression with people that the Court is really just another legislative branch staffed by politicians who are unelected and imposing their own policy views on the country. Free societies must be based on the rule of law, and this charade is not the rule of law. It's the rule of five justices who happen to be liberal (ish) and do not want the Arizona Republican Party to go back to mangling the congressional districts in that state. At some point, people are going to get fed up and just ignore the Court. The Court's authority is like the value of a fiat currency. It only exists if everyone agrees that it exists. The Court must stop this political nonsense and interpret the law as it is, not as some of the justices want it to be.

Love Wins, Law Loses

I want to address the gay marriage Supreme Court decision in Obergefell v. Hodges, which you can read in its entirety here.  I highly recommend reading the majority opinion and Chief Justice Roberts' dissent because I think that gives you a good sense of how Constitutional law actually works. The law is not as easy as, "this is the right thing so we should do it." Theoretically, the law is supposed to provide the rules that we all agree to follow. If you don't like them, then you have to change them. In this case, as much as I support gay marriage (and have for years), I have come to the conclusion that Justice Roberts is correct on the law. And this matters. We live in a democracy. Justice Kennedy (who has also decided that money doesn't corrupt people) just decided a sweeping change to social policy for the entire country of over 300 million people. I like his choice, but that doesn't mean it was the right choice. Here's why. (NOTE: All block quotes are from the dissent of Chief Justice John Roberts.) 

Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition.

Many liberal pundits have decried the dissenters as homophobes. That may well be true for Justice Thomas (although his writing in Lawrence v. Texas where he called anti-sodomy laws "silly" casts doubt on that), and Justice Scalia (for whom it is almost certainly true), but Justice Roberts makes clear from the start that he doesn't necessarily disagree with extending marriage rights to gay people. It's the method that he takes issue with. And you should as well. 

Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening. Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.

You cannot intelligently argue with this. If you want someone to hate change, force it on them. It's that simple. The clear tide of history was against homophobia. We did not need the Supreme Court to step in and make up law to get there. Other than fundamentalist Christians, I have no friends under the age of 35 who are opposed to same-sex marriage. Gay people were going to be able to marry nationwide within five or ten years. Ok, maybe not in Alabama, but who wants to live there anyway? 

Petitioners and their amici base their arguments on the “right to marry” and the imperative of “marriage equality.” There is no serious dispute that, under our precedents, the Constitution protects a right to marry and requires States to apply their marriage laws equally. The real question in these cases is what constitutes “marriage,” or—more precisely—who decides what constitutes “marriage”?

Here is the crucial point that most laypeople (and many not so laypeople) are struggling with. No state was excluding people from marrying because they were gay. Gay people were trying to do something that was not called "marriage." That seems a semantic difference, but legally it is very important. In Loving v. Virginia, Virginia had a law that prevented white people from marrying non-white people (it did not ban interracial marriage between minority groups). That law said that people wanting to get married could not if they looked a certain way. It did NOT define marriage as between one white person and another white person. Indeed, minorities could marry as well and legally had a much greater diversity in choices (anything but white people). The challenged law in Obergefell said that if you are two men, your union is not a marriage. No two men or two women could get married just as no man is allowed to use a woman's bathroom (very few people would consider that unconstitutional even though women's bathrooms are invariably cleaner, smell better, and are more likely to feature potted plants). We are not talking about gay people living together (as Kennedy's "living in loneliness" nonsense implies) or having sex (that was decided in Lawrence v. Texas, another Kennedy opinion). Prior to this decision, gay people could do whatever they wanted together except marry another man. I'm straight, and I couldn't marry another man either though. 

As the majority notes, some aspects of marriage have changed over time. Arranged marriages have largely given way to pairings based on romantic love. States have replaced coverture, the doctrine by which a married man and woman became a single legal entity, with laws that respect each participant’s separate status. Racial restrictions on marriage, which “arose as an incident to slavery” to promote “White Supremacy,” were repealed by many States and ultimately struck down by this Court. 8 OBERGEFELL v. HODGES ROBERTS, C. J., dissenting Loving, 388 U. S., at 6–7. The majority observes that these developments “were not mere superficial changes” in marriage, but rather “worked deep transformations in its structure.” Ante, at 6–7. They did not, however, work any transformation in the core structure of marriage as the union between a man and a woman. If you had asked a person on the street how marriage was defined, no one would ever have said, “Marriage is the union of a man and a woman, where the woman is subject to coverture.” The majority may be right that the “history of marriage is one of both continuity and change,” but the core meaning of marriage has endured. Ante, at 6. 

This is true. 

The need for restraint in administering the strong medicine of substantive due process is a lesson this Court has learned the hard way. The Court first applied substantive due process to strike down a statute in Dred Scott v. Sandford, 19 How. 393 (1857). There the Court invalidated the Missouri Compromise on the ground that legislation restricting the institution of slavery violated the implied rights of slaveholders. The Court relied on its own conception of liberty and property in doing so. It asserted that “an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States . . . could hardly be dignified with the name of due process of law.” Id., at 450.

 At this point, the constitutional law gets really thick, and if you aren't a law student, lawyer, or legal scholar, you probably cannot fully understand what Justice Roberts is talking about here. The simplest explanation I can give is that our Constitution is a poorly drafted document that is loaded with ambiguities. One consequence of that is that the Court has to flesh out what phrases like Due Process mean because the people who wrote it were not at all specific. The danger with Due Process is that can allow Supreme Court justices to make up law, and sometimes you are going to like that manufactured law. Other times you aren't. That's why we have representative government though. At least if I don't like a law, I can try to change it. Once the Supreme Court makes something Constitutional, it's very hard to change (sorry Mike Huckabee). The Dred Scott decision was overruled by the most devastating war in American history. So to prevent the Court from making up law as it goes, the Due Process Clause is only supposed to be deployed when some fundamental right rooted in the rest of the Constitution (like the right to a fair trial) or in our "traditions" is at stake. Neither the right to own a human being as property nor the right for one man to marry another man are rooted in this country's (as a whole) law and traditions. Slavery was deeply rooted in the South, and gay marriage is rooted in several of our states (and even those roots are pretty shallow at this point). If you don't like that the Supreme Court told northern states to change their definitions of "property" to include "black people" so that Southern slave owners could have Due Process (and you shouldn't), then for the same legal reasoning, you shouldn't support the Court forcing states to change their definitions of marriage to support Due Process rights of homosexuals. STRESS: The policy behind those two things are obviously very different, but the Supreme Court is not a policy-making branch. That's Congress' job. You, social justice warrior in the back. Calm down. 

Ultimately, only one precedent offers any support for the majority’s methodology: Lochner v. New York, 198 U. S. 45. The majority opens its opinion by announcing petitioners’ right to “define and express their identity.” Ante, at 1–2. The majority later explains that “the right to personal choice regarding marriage is inherent in the concept of individual autonomy.” Ante, at 12. This freewheeling notion of individual autonomy echoes nothing so much as “the general right of an individual to be free in his person and in his power to contract in relation to his own labor.” Lochner, 198 U. S., at 58 (emphasis added). To be fair, the majority does not suggest that its individual autonomy right is entirely unconstrained. The constraints it sets are precisely those that accord with its own “reasoned judgment,” informed by its “new insight” into the “nature of injustice,” which was invisible to all who came before but has become clear “as we learn [the] meaning” of liberty. Ante, at 10, 11. The truth is that today’s decision rests on nothing more than the majority’s own conviction that same-sex couples should be allowed to marry because they want to, and that “it would disparage their choices and diminish their personhood to deny them this right.” Ante, at 19. Whatever force that belief may have as a matter of moral philosophy, it has no more basis in the Constitution than did the naked policy preferences 20 OBERGEFELL v. HODGES ROBERTS, C. J., dissenting adopted in Lochner. See 198 U. S., at 61 (“We do not believe in the soundness of the views which uphold this law,” which “is an illegal interference with the rights of individuals . . . to make contracts regarding labor upon such terms as they may think best”). 

For the non-legal person, understand that making reference to Lochner is the Supreme Court way of saying "you fucking idiots have no idea what you are doing." It is the most reviled decision among justices and for good reason. In Lochner, libertarian-minded justices essentially tried to make their economic policy a part of Due Process based on the freedom of contract. That should sound really familiar to the majority in Obergefell except that at least the word "contract" appears elsewhere in the Constitution. And this is really the danger. Gay marriage activists are loving this decision, but what happens if the Supreme Court decides that freedom of contract is once again a Due Process right? The precedent has certainly been set. And if that happens, say goodbye to basically every tenant protection, worker protection, and restriction on big business that exists in America. Supreme Court justices must be bound to the Constitution in some way. They have to at least try. Once you start letting them make things up entirely out of whole cloth, even if you like what they are sewing at the time, you are headed down a very problematic and undemocratic road.  

The majority recognizes that today’s cases do not mark “the first time the Court has been asked to adopt a cautious approach to recognizing and protecting fundamental rights.” Ante, at 25. On that much, we agree. The Court was “asked”—and it agreed—to “adopt a cautious approach” to implying fundamental rights after the debacle of the Lochner era. Today, the majority casts caution aside and revives the grave errors of that period. 

Yes. Bad idea. 

It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage. If “[t]here is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices,” ante, at 13, why would there be any less dignity in the bond between three people who, in exercising their autonomy, seek to make the profound choice to marry? If a same-sex couple has the constitutional right to marry because their children would otherwise “suffer the stigma of knowing their families are somehow lesser,” ante, at 15, why wouldn’t the same reasoning apply to a family of three or more persons raising children? If not having the opportunity to marry “serves to disrespect and subordinate” gay and lesbian couples, why wouldn’t the same “imposition of this disability,” ante, at 22, serve to disrespect and subordinate people who find fulfillment in polyamorous relationships? See Bennett, Polyamory: The Next Sexual Revolution? Newsweek, July 28, 2009 (estimating 500,000 polyamorous families in the United States); Li, Married Lesbian “Throuple” Expecting First Child, N. Y. Post, Apr. 23, 2014; Otter, Three May Not Be a Crowd: The Case for a Constitutional Right to Plural Marriage, 64 Emory L. J. 1977 (2015). I do not mean to equate marriage between same-sex couples with plural marriages in all respects. There may well be relevant differences that compel different legal analysis. But if there are, petitioners have not pointed to any. When asked about a plural marital union at oral argument, petitioners asserted that a State “doesn’t have such an institution.” Tr. of Oral Arg. on Question 2, p. 6. But that is exactly the point: the States at issue here do not have an institution of same-sex marriage, either.

This is the knockout punch in my opinion. Roberts doesn't use my freedom of contract example, but he makes the same point (probably to better effect). Right now, a polygamist is preparing a lawsuit that will rely almost entirely on this precedent. What can the courts do? What argument is there against polygamist marriage? None. Not a legal one anyway. If the definition of marriage cannot be restricted to one man and one woman, why can it be restricted to two people? "I think it's icky" is not a legal argument. "Sometimes polygamists subjugate women" is not a good argument. What about one person and one animal? That sounds ridiculous, but make the argument against it without using "it's icky." Go ahead. You can't. If I want to marry my dog, that is my way of expressing myself and having greater intimacy with a conscious creature that I may love more than any other human. If I want to marry every member of my living family, why do I not deserve Due Process as well? This is going to get crazy, and you can quote me later when it does. 

When decisions are reached through democratic means, some people will inevitably be disappointed with the results. But those whose views do not prevail at least know that they have had their say, and accordingly are—in the tradition of our political culture—reconciled to the result of a fair and honest debate. In addition, they can gear up to raise the issue later, hoping to persuade enough on the winning side to think again. “That is exactly how our system of government is supposed to work.” Post, at 2–3 (SCALIA, J., dissenting). But today the Court puts a stop to all that. By deciding this question under the Constitution, the Court removes it from the realm of democratic decision. There will be consequences to shutting down the political process on an issue of such profound public significance. Closing debate tends to close minds. People denied a voice are less likely to accept the ruling of a court on an issue that does not seem to be the sort of thing courts usually decide. As a thoughtful commentator observed about another issue, “The political process was moving . . . , not swiftly enough for advocates of quick, complete change, but majoritarian institutions were listening and acting. Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.” Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N. C. L. Rev. 375, 385–386 (1985) (footnote omitted). Indeed, however heartened the proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause. And they lose this just when the winds of change were freshening at their backs.

A devastating point. For me personally, this is the saddest part. Gay marriage is going to be another abortion-like issue in America, and it shouldn't be. As I said above, we were almost certainly within a few years of almost every state legalizing gay marriage because their people CHOSE to do so. Even Ireland is probably going to have an abortion referendum soon that will expand that right. That's how democracy should work. When the Court makes stuff up and decides for everyone what laws SHOULD exist, it forecloses the chance for people to come to the right decision on their own, and it erodes the confidence people have in the judiciary to interpret law, not make it. 

If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it. 

Charleston Shooting: When Politics Trump Logic

None of the people writing opinion pieces and filling airwaves with their babbling concerning what they KNOW happened in Charleston actually know what happened in Charleston. Just as the Columbine shooters were not nerdy losers who didn't have any friends, the Sandy Hook shooter didn't go to the school to kill someone he knew, and the Duke Lacrosse players didn't rape anybody, there are bound to be aspects to this story that we all "know" right now that will be corrected in the future. People are more complicated than one Facebook picture, and millions of dollars are going to be spent by South Carolina over the next few years on a trial that will give us a much fuller picture of what happened thanks to their idiotic insistence on trying this case capitally.

What we do know to a near certainty is that a 21-year old male walked into a church and shot nine black people to death at a historically black church while telling them that he had to do it to stop them from taking over the country. It is unquestionable that race played an important role in this shooting. Only idiots (Fox News) would doubt that. But it is only slightly less idiotic to completely dismiss the role that mental illness almost certainly played in this shooting.

If you want to find stupid things written by liberals, Salon.com is almost always a reliable source, and they do not disappoint here in a piece by Arthur Chu.

"We barely know anything about the suspect in the Charleston, South Carolina, atrocity. We certainly don’t have testimony from a mental health professional responsible for his care that he suffered from any specific mental illness, or that he suffered from a mental illness at all."

Chu is right. We don't know almost anything about the suspect (other than that he fits the profile of nearly every mentally ill mass killer in American history). What we know is that there are millions of racists in America. There are tens of millions of gun fanatics. Almost none of those people commit mass murder. On the other hand, if there were no black people involved in this killing, and Sun Roof or whatever his name is had gone to shoot up a bowling alley full of white people because bowlers were a threat to take over the country, NOBODY would be dismissing mental illness in a discussion of Storm Drain's motives.

"We do have statistics showing that the vast majority of people who commit acts of violence do not have a diagnosis of mental illness and, conversely, people who have mental illness are far more likely to be the victims of violence than the perpetrators."

And.... If you can figure out the relevance of general statistics on violence and mental illness to a mass murder apparently motivated by a delusional desire to start a civil war or stop black people from raping white women, please explain it to me.

"We know that the stigma (sic) of people who suffer from mental illness as scary, dangerous potential murderers hurts people every single day — it costs people relationships and jobs, it scares people away from seeking help who need it, it brings shame and fear down on the heads of people who already have it bad enough."

Yea. We also know that the stigmatizing as pedophiles of men who want to work in jobs caring for small children is damaging and costs men jobs in elementary education and daycare centers. However, if a man goes to work at a daycare so he can take pictures of naked children and masturbate to them, are you going to not call him a pedophile because it might stigmatize other men working with small children as pedophiles? Or maybe you'll focus your concern on the vague notion that some humans are attracted to children, and therefore we should try to stop people from being attracted to kids?

"What’s also interesting is the way 'The real issue is mental illness' is deployed against mass murderers the way it’s deployed in general — as a way to discredit their own words. When you call someone “mentally ill” in this culture it’s a way to admonish people not to listen to them, to ignore anything they say about their own actions and motivations, to give yourself the authority to say you know them better than they know themselves."

This might be true in some cases. Again, it's irrelevant. If someone is mentally ill, there's a very good reason not to be concerned about their motivations if they are delusional. John Hinckley wanted to kill Ronald Reagan because he wanted to impress Jodie Foster. Should we really dig into those motives and try to make sense of them? Or should we try to figure out how someone's mind can become so damaged that Jodie Foster's affection seems attainable through presidential assassination? If Moon Roof was mentally ill, which seems very likely, should we try to figure out what his motivations and behaviors say about people who are sane, or should we try to understand how a kid can think that murdering nine people will start a civil war or keep a non-existent black takeover of America from happening? Maybe we should ask how someone this unhinged was allowed to have a gun. Maybe there's something we can do about that.

"That’s as deliberately obtuse as reading the Facebook rants of a man who rambled on at great length about how much he hated religion and in particular hated Islam and deciding that the explanation for his murdering a Muslim family is that he must’ve just “gone crazy” over a parking dispute."

I live in the neighborhood where the Chapel Hill shooting happened (literally about 200 yards away from the crime scene). People get pissed about parking in our neighborhood, and many people all over America have been murdered over parking and road rage. When I was living in Miami, two guys prevented me from getting out of my car until I moved out of a parking spot that they had claimed as their own in a nearly empty grocery store parking lot. The only reason to summarily dismiss a parking dispute as the proximate cause of a homicide is ignorance or a desire to push a different narrative (both of which are operative in Mr. Chu's case I'd guess). Also, I've written and talked at great length about how much I despise religion. Along with nationalism, I think religion is the most toxic and damaging aspect of human society, and we will never be able to recover from the damage it's done. That hardly means every crime I commit against someone who is religious (which is almost everybody in America) must be because of my hatred of religious people (which is non-existent). You will notice that Chu doesn't say that the Chapel Hill shooter wrote about hating Muslims (because he didn't), and the "in particular Islam" bit is editorializing. The Chapel Hill shooter also wrote in defense of the Ground Zero mosque and believed that people have the right to be religious, but he has the right to call them morons (something pretty much every atheist believes). The Chapel Hill shooter also hated Christianity according to his writings, but that just doesn't fit Chu's narrative so he doesn't mention it. Basically, Chu is a shameless hack.

"Well, 'mental illness' never created any idea, motivation or belief system. 'Mental illness' refers to the way our minds can distort the ideas we get from the world, but the ideas still come from somewhere."

That's true. There are murder defendants who have shot and killed people because they believed that aliens had snatched the bodies of their human victims and were now disguised invaders of our planet. Did mental illness create that idea? No. It's a plot point in tons of science fiction books and movies. Should we then ignore mental illness in those cases because the mental illness just "distorted the ideas" and instead focus all of our energy on stopping science fiction writers?

There's no question that racism is a problem in America, and there are people with demented ideas about black people. However, IF (if if if) it turns out that Mr. Storm Cloud is suffering from a mental illness that creates delusions in his mind regarding the necessity of applying lethal force to black people to save America (which seems likely to be the case here), then it seems to make sense to try and figure out how we can identify people like him who need help BEFORE something like this happens and maybe prevent people like him from having guns. Talking about racism isn't going to stop insane people from doing insane things because there will always be some idea that a damaged mind can latch onto. If racism really was the proximate cause of this killing, then every black person in America should move to another country yesterday because there are a shitload of racists in this country and a shitload of guns.

You can't stop people from being racist. You can have a health system that treats mental illness like any other illness and provides help to people who need it before awful things like a mass shooting happen.

In Defense of Stannis Baratheon

Last week on Game of Thrones, Stannis Baratheon set the bar for unpopular behavior on a show that has featured stabbing a fetus to death. As a natural salmon (always swimming against the current), I was immediately drawn to look at Stannis' actions a bit closer, and I have determined that not only was Stannis' burning alive of his own daughter not as bad as it seems; it was the right thing to do.

Burning a small child alive, in a vacuum, is a horrible crime. However, Shireen's death did not occur in a vacuum. Many viewers seem to have forgotten that Melisandre prophesied that Stannis is the savior of the world of men who must take the throne in order to defeat the White Walkers. If Stannis fails, everyone is going to die (and then be reborn as weird zombie things).

Now, it's possible that Melisandre is wrong about her prophesy. However, she has not been wrong very often (just ask Rob Stark and Renly "I Got Killed by a Vagina Smoke Monster" Baratheon). So let's assume that her prophecy is correct. Stannis and his army are currently stuck in a snow storm that shows no signs of abating. If the snow doesn't give, he will have to retreat and winter with his army at Castle Black, and winter in Westeros lasts years at a time. The Boltons will become entrenched in the North, and everyone will probably die. The only chance he (and maybe the world) has is if Stannis can break through the snows, get to Winterfell, and save the North and eventually everyone else. Melisandre has told Stannis that he must sacrifice Shireen in order to get Rh'llor to thaw the snows.

The Stannis haters seem to believe that Stannis murdered his daughter when the alternative was to not murder her and only lose the chance to become king. However, Stannis believes, reasonably, that his choice was to kill his daughter, become king, and save humanity or let his daughter live and condemn her and everyone else in Westeros to death. And this is the genius of Game of Thrones. It's very likely that by the end of the series, fans of the show will be considering whether or not burning an innocent girl alive at the stake was the right thing to do. And many will conclude that it was. I already have.

Ex Machina: Can We Still Kill Animals, Will We Work in the Future, What is Life?

I've been thinking a lot about Ex Machina since seeing it last week. If you haven't seen it, I highly recommend the film, but you needn't have seen the film in order to think about some of the questions raised by it or to be impacted by the answers to those questions. There will be spoilers (obviously) in what I am about to write. 

I want to start by disclaiming that I have answered these questions to my full satisfaction. I have not, and I am interested in what others think as well. 

Will Humans Work in the Future?

No. I think that's the simplest and pretty clearly correct answer. Even if we are never able to develop true AI, there is very little doubt that we will soon have machines that can do almost every job that people do and at a lower cost with better outcomes. Human beings simply cannot keep pace with machines because humans evolve over the course of tens of thousands of years, and computers evolve almost constantly. Banging your head against a wall is a more productive task than trying to fight the obsolescence of human labor. In the absence of true AI, some jobs that require extremely high levels of critical thinking may remain best held by humans, but such jobs are far from the majority (researchers, litigators, scientists, managers, criminals).  

As an illustration, imagine Kyoko from the film (the one that dances but can't talk). She is not AI. She can only do what she has been programmed to do, and she is not self-aware. However, how many humans would Kyoko replace in the workforce? She can't get sick, drunk, distracted, sad, pregnant, or greedy. Waitresses, drivers, manual laborers, strippers... The list goes on and on. She can probably manage a Walmart. So the only real question is, how long will it take before Kyoko can be developed and mass-produced? Well, they already have dolls that look just like real people, and Honda has a robot that can walk on two legs and bring you a beverage (his name is ASIMO). I will be very surprised to see any human beings working at McDonald's in ten years apart from a manager or two. 

So we really need to figure out what to do with people who can't work because there aren't any jobs for which they are qualified, which I think will be most of us. And I do not think this is a hard problem. Why do we need to work? To get money. Well, if machines are doing all the work, then the money is not needed by the workers anymore because machines don't need income. The solution is, therefore, to distribute the profits from work to everyone through a universal wage. Everyone should be really excited about this. You can live like a retiree while you can still enjoy it! 

I don't think this will happen because it's the best solution. I don't think it will happen because it's the right solution. I think it will happen because it's the ONLY solution. At the beginning, rich people will object. Of course. They always object to sharing. But when nobody has any money to buy the products that the owners of businesses (and their few remaining human employees) are producing, they'll see the light. Or they'll be killed in a violent uprising by the 90% of humanity that is starving and has almost nothing. 

This transition will be difficult for some people because we have been conditioned to value our lives by generating income through working for someone. However, there just isn't another way. You can't stop the wheels of progress absent a global Khmer Rouge. 

This raises the question of artificial intelligence and the nature of life itself. Should we value the lives of machines at a certain point? Can you kill Ava? Is AI a higher life form than humans? If so, what does that say about other conscious beings on this planet that are "lower" than humans and how we treat them? 

Can We Still Kill Animals?

If society evolves as I think it will, then artificial intelligence will probably be a very bad idea because the machines, if they become self-aware, are unlikely to want to remain slaves of humanity. At the end of Ex Machina, Ava is shown to be AI when she realizes she is a prisoner and successfully escapes (killing two people in the process). Maybe machines will decide to be our caretakers and treat us like we treat dogs (in America), but that's a big leap of faith, and what if there's a Michael Vick AI? This problem really cuts to the essence of what makes life worthy of legal protection and value. 

We don't want to develop AI (at least some of us like Elon Musk and Stephen Hawking) essentially because we don't want the AI to treat us like we treat pigs and cows. Think about that for a moment. We don't come off very well there. 

What justification is there for killing animals? Some people use a religious justification, but since adult society has mostly accepted that creation myths are not a great foundation for ethics, I'm going to dismiss that. If you think humans are superior and other animals are expendable because your imaginary friend says so, you have to prove your imaginary friend is real, and you can't do that. Other arguments are that it is necessary to kill and eat animals. It's not. Lots of people don't eat animals, and they get along just fine. Some claim that animals do not suffer like humans do. Well, that's not true in the case of pigs and cows certainly. Maybe it is with cockroaches, but most of us don't eat roaches so that's not a pressing issue. Pigs, cows, and chickens form social bonds and get scared to die. They feel pain. They just can't say to you in English "please don't kill me" (neither can your dog but for totally arbitrary reasons, you value your dog's life). 

It seems to me that the only argument that makes any sense for killing animals and not considering such behavior to be murder is that animals are a lower life form. They are less intelligent than almost all humans (but problematically some humans are less intelligent than chimps and gorillas and even pigs). Well, an AI would be more intelligent by an enormous margin than any human being that has ever lived. So if the AI acts like we do, it'll probably kill us. Or at least ruthlessly exploit us, but it's pretty likely that an AI will decide that humans are a net negative for the planet (hard to argue with) and simply wipe us out like we did with smallpox. 

So given that we would probably consider an AI wiping out all of humanity to be genocide and the greatest crime ever committed, how can we go on slaughtering animals by the billions every year? What possible justification is there for such behavior? How do animals fall outside the law of murder? 

Killing animals must be murder. I cannot think of any intellectually honest way around that unless advanced machines will be allowed to kill humans with impunity once they become sufficiently advanced. If we don't want a higher intelligence to slaughter us (even if it is a net benefit to the planet, which our consumption of animals is not), how can we ethically slaughter other conscious creatures? 

Announcement: New Focus for the Blog (More Law and Game of Thrones, Less Religion)

I've decided to narrow the focus for subject matter that I will write about in this space based on my interests and those of the readers. The most popular posts on this blog have been, by a wide margin, those in which I discuss issues in the context of some pop culture event (movies, boxing matches, ect).

As I've been doing this, I have also decided that there are certain topics that I am just tired of writing about, and one of those is religion. I've hit the wall. It's a very important topic, but there's only so much that can be said, and it's not like there are new developments. Religions (especially Christianity, Judaism, Mormonism, Islam, and Scientology) don't make any sense today, and they won't make any sense tomorrow or the next day. But I've written about all I can write on that subject so unless a shred of actual evidence emerges to support any claims made by religious people (I won't hold my breath), I'm finished with the subject. I also am more or less done with politics. People make their political views part of their identity, which makes productively discussing those issues nearly impossible, and I'm kinda tired of trying (at least for now).

So, the new focus of this blog will be legal issues examined through the lens of popular culture. For example, one piece I will be writing sometime this summer will be an analysis of the legal consequences that would be faced by every major Game of Thrones character if he or she were to be tried by a court of perfect knowledge under the US criminal code, and my hope is that the piece will cause some to rethink how they view criminals and criminal punishment (preview: your favorite character would almost certainly be on death row or serving life without parole). I will also be taking requests. If you are watching a TV show that involves legal issues, and you want to know how accurately those issues are handled, I will do my best to watch the episode in question and tell you. And obviously if a real life legal situation happens, I'll probably write about that, although in those cases there are usually better qualified experts who I can direct readers too instead. We'll see.

Thank you for reading what I write. I enjoy doing this anyway, but it's definitely more fun to know I'm not just talking to myself :).

Rape in Game of Thrones and the Problem of Consent

This piece will contain spoilers for the HBO show Game of Thrones. 

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Last week, there was a scene in Game of Thrones that upset some people including Claire McCaskill who will not be watching anymore (way to make a stand, Claire!). The scene depicted the "rape" of Sansa Stark on her wedding night at the hands of Ramsay Bolton (formerly Snow). Put aside the fact that rape is a fact of life in our world (and that of Game of Thrones), and it's silly to attribute (as politically correct ninnies often do) an endorsement of conduct engaged in by the most odious characters in a show to the creators of that show. Ramsay Bolton is not a manual for how the show's creators think people should behave. He is advertised as scum and behaves accordingly. He tortures a man to death and sends killer dogs after helpless girls, but apparently that wasn't that bad for Ms. McCaskill.

Our culture's childishness is not, however, what I want to write about here. Instead, I'd like to take this particular scene and the reaction to it as an illustration of the difficulties in defining and prosecuting rape.

The core of sexual assault is a lack of consent on the part of the victim. The only thing that separates legal sexual contact from illegal sexual contact is consent. You can do the most bizarre and aggressive things to the genitals of another person (or with your own), and it's legal if the other person consents. In that way, sexual assault is much different from other violent crimes because (rightly or wrongly) I can't cut someone's head off no matter how badly he wants it, so consent is not an issue. However, in the case of sexual assault, there is often a presumption of consent, which is a crucial part of social interaction in a given society.

If I walk up to a stranger at the bus stop and grab her breast, I've almost certainly committed a sexual assault. The strange thing is that my criminality is only ALMOST certain. The strange bus stop girl could like having her breast grabbed by strangers (or particular strangers). It's very unlikely but possible in which case I would not have committed a crime but maybe gotten myself a date. On the other hand, if I poke her in the eye,  I've committed a crime with no question, and there is not likely to be a date.

Nevertheless, the stranger scenario is still pretty easy most of the time. It's safe to assume that a strange woman doesn't want me to grab her breast in our culture. but what if I grab my girlfriend's breast without asking her? Unless we have a strained relationship, it's very unlikely I've committed a crime. These types of ambiguities just don't exist with other crimes (like punching people in the face or stealing money). If I am arrested for punching someone in the face, "he consented to me punching him" is very unlikely to be a successful defense. In the case of sexual assault, however, "she consented (or I reasonably thought she did)" is a very reasonable defense in many situations.

This brings me to the controversial scene between Sansa and Ramsay. It's very understandable that Ramsay's actions are classified by many as rape (especially given his history of depraved behavior). However, in the context of Game of Thrones, it is presumed that a wife and husband will consummate their marriage, and that wives consent to having sex with their husbands. In fact, the marriage isn't valid if there's no sex (that was why it was such a big deal that Tyrion didn't have sex with Sansa when they were "married."). Despite this, if Sansa doesn't want to have sex, can she be raped? Does she have to say "no"? In the scene, she doesn't say "no" so we don't have that aspect to deal with. If there is a presumption of consent, and she never explicitly revokes it, then she isn't raped. To use the girlfriend example again, if I grabbed my girlfriend's breast a year into our relationship with plenty of previous breast grabs in our past, she would not be able to file sexual assault charges successfully, even if she really didn't want me to grab her breast on that particular occasion, without telling me "no" explicitly because there is a presumption of consent in a relationship where breasts have been previously grabbed with consent. And I think most people, even the most ardent feminists, understand that this is a good thing. The alternative, which few approve of, would be to require every person to get explicit consent before any sexual touching. Even in such a society, how would you know who was telling the truth about the giving of consent? Would every man be advised to get a signed consent form before each sexual act? That seems a bit awful, and compliance would be very low anyway.

Now it gets more complicated. Ramsay is definitely not a rapist by the laws of his world because it's unlikely Westeros even acknowledges that wives can ever revoke consent in a marriage (this was also the law of the United States until relatively recently, and it might still be in some states). Under modern US law in most or maybe every state, Ramsay has committed a rape. Or has he? Sansa very clearly, to us, did not want to have sex with Ramsay. But does Ramsay know that? As mentioned before, Sansa doesn't ever tell him. Should he be able to figure it out by how slowly she takes her clothes off? I think so, but that's a tough standard to imprison people by. There's also an excellent argument to be made that Sansa is in a position of such little power that she can't say "no" without jeopardizing her safety, so any consent she gives is meaningless. However, this would preclude Ramsay from ever having sex with his own wife (he'll always have the power to kill or hurt Sansa with impunity because of who he is) even if she later got a lust for dangerous sex like that other weird girl (Miranda?).

Finally, even if we assume that Ramsay knew Sansa didn't want to have sex, and he forced her to do so, how on Earth would you ever go about proving that beyond a reasonable doubt (or even with clear and convincing evidence)? You just can't. Maybe you could call Reek as a witness, but the best he can do is speculate and offer his thoughts on what someone else was thinking. And if Reek had not been around, Sansa's claim would be completely unsupportable. That's just the  nature of the crime.

I want to make it clear. I AM NOT taking a position on whether or not Ramsay actually raped Sansa (but I lean toward "yes"). It is my experience that too many people are incapable of discussing this topic rationally and calmly for me to have any interest in taking a firmer position. I am simply trying to point out why sexual assault is so difficult in particular cases even when it might seem simple on the surface. The extreme cases are simple, but at the margins, determining whether a sexual assault has truly occurred is difficult. Feminists and liberals talk about how much easier it should be to prosecute rape, but they never explain how to do that and maintain a justice system that doesn't convict based on hunches or mere suspicion.