At some point we will be judged for our inaction.

In the U.S. we quite frankly have a shit ton of guns, excuse my French.  In fact we have 265 million guns for 242 million adults, more than one per person [1].  We have so many guns and they are so easy to get that terrorists come here to buy guns and send them back to the Middle East [2].  We have just as many guns as cars, and they kill similar numbers of people every year [3-4].  Almost 1300 children under the age of 17 die every year in gun related deaths in the U.S. and in 2010 91% of the children who died in gun related deaths worldwide were American [5].  We have so many guns that toddlers frequently find loaded weapons laying around and shoot either themselves or another person.  In fact in 2015 toddlers killed more people on American soil than terrorists did [6].  And while the frequency and death toll of mass shootings continues to climb [7], the number of gun sales roughly doubled between 2010 and 2013 [8]. All of this is not an argument against the 2^nd Amendment, but it is an argument for common sense reforms to our gun laws.  Here are a few suggestions:

1. We should implement universal background checks. Law abiding gun owners have nothing to fear from an FBI background check, and a slight delay in getting your new toy won’t really hurt you.  I mean it’s not as if you’ve got a bank to rob or something is it?
2. We should ban or at least severely restrict the sales of semi-automatic assault rifles like AK-47’s or AR-15’s. Machine guns are already difficult to purchase and require extra licensing, but semi-automatic assault rifles which are generally weapons designed to be fired in automatic mode as well can be purchased relatively easily, and can easily be converted by any dedicated hobbyist or terrorist to enable automatic firing.  This is exactly the kind of weapon that was used to spray bullets on the crowd in Las Vegas [9-10].  And even without converting them to be automatic, these guns are really only designed for killing people, they are not hunting guns.  They are the weapons of choice for mass shooters, from Sandy Hook and Orlando to San Bernadino and Las Vegas [11].

• We should implement nationwide safe storage laws. Leaving a loaded gun lying around for a toddler to find and shoot themselves should be treated as an equivalent crime to vehicular manslaughter- or killing someone while D.U.I.  These deaths are entirely preventable, and it should be the responsibility of the gun owner to secure their weapons in a safe manner.  The risks of having a gun in your house far outweigh the benefits [12], but if you really need to have a 9mm locked and loaded at any time in your home then you can at least agree to store it safely.  Fingerprint and key code gun safes are readily available and sold almost anywhere that guns are sold legally.  If taxpayer funded fingerprint gun safes are the price we need to pay to get you to store your gun safely then I would happily pay that price to save 20 toddlers per year.  One per home, and you are on your own for gun safes and trigger locks for all your other guns- just like you pay for the seat belts, Nader bolts, and air bags in your car- as well as car insurance.  You should not be storing your guns in such a way that they can be easily found and used or stolen- that’s just plain common sense and benefits everyone.

That being said, I don’t expect anything to happen any time soon.  Sandy Hook proved that the gun lobby was strong enough to resist gun law reform even in the face of innocent children being slaughtered.  The argument that any one reform will not prevent the current incident in the news is a cherry picked straw man.  The point is to make future incidents less likely, we cannot expect to prevent them entirely as we are already awash in guns.  But reducing the availability of guns, and especially the deadliest kinds of guns, can reduce the incidence of mass shootings [13].  And there are common sense ways to make gun storage in the home safer for yourself and your family- I’m even willing to pay for it with tax dollars because it makes my family safer as well.  Congress will once again do nothing, but they should also realize that voting against common sense gun reform will only add more blood on their hands when future historians judge their legacy.  If there is one thing we’ve learned in the past decade, the solution to gun violence is not more guns.

 

 

1. http://fortune.com/2016/09/19/us-gun-ownership/
2. https://archives.fbi.gov/archives/louisville/press-releases/2013/former-iraqi-terrorists-living-in-kentucky-sentenced-for-terrorist-activities
3. According to CDC data in 2015 there were 36,252 Firearm related deaths and 38,022 Motor Vehicle related deaths. https://webappa.cdc.gov/sasweb/ncipc/mortrate10_us.html
4. https://en.wikipedia.org/wiki/Passenger_vehicles_in_the_United_States
5. http://www.snopes.com/toddlers-killed-americans-terrorists/
6. http://www.snopes.com/toddlers-killed-americans-terrorists/
7. https://www.washingtonpost.com/news/politics/wp/2017/10/02/americas-deadliest-shooting-incidents-are-getting-much-more-deadly/?tid=a_inl&utm_term=.13404126a4ea
8. http://www.npr.org/2016/01/05/462017461/guns-in-america-by-the-numbers
9. http://www.phoenixnewtimes.com/news/machine-gun-las-vegas-harvest-festival-massacre-easy-to-make-9743612
10. http://www.motherjones.com/politics/2012/12/how-make-your-gun-shoot-fully-automatic-one-easy-step/
11. https://www.washingtonpost.com/news/wonk/wp/2016/06/12/the-gun-used-in-the-orlando-shooting-is-becoming-mass-shooters-weapon-of-choice/?utm_term=.1aed70375d2c
12. http://journals.sagepub.com/doi/pdf/10.1177/1559827610396294

https://www.theatlantic.com/international/archive/2017/10/australia-gun-control/541710/

Nuclear Weather- the Hiroshima Scale

Why does it seem like the weather has gone Nuclear?  How is it that some parts of Houston are seeing their third 500 year (or worse) rain event in the past three years (1)?  Maybe it’s all part of an elaborate hoax by the Chinese designed to sell cheap umbrellas, or maybe there is something real, and dangerous, behind all of this.  For all the attempted communication by climate scientists it seems people are still failing to understand why it all matters.  To accomplish that, I’ve always found taking a step back and looking at the big picture in relatable terms is helpful- but to do that we need to handle some really big numbers and put them in terms people can appreciate.  When dealing with big numbers, it’s convenient to use the scientific E notation.  E notation represents powers of 10 in a very simple form where m x 10ⁿ becomes mEn, so 4 billion, which is 4 x 10⁹ becomes 4E9 or 4E+09 in E notation.  You will need that to read the graph below.

Anybody who passed through high school without cheating at some point learned about conservation of energy.  And they also learned that warm ocean waters are the driving force behind big rainstorms like hurricanes, monsoons, etcetera (2).  In this case the energy contained in the oceans (in the form of heat) is the driving force for hurricanes like Harvey- and the ocean’s heat energy content is something we can measure and quantify.  One of the reasons that Harvey strengthened so much and is so devastating is that the water in the Gulf of Mexico where it strengthened and reached Category 4 status was about 4 degrees (F) warmer than normal for this time of year (3).  That extra heat provides more energy, in the form of water vapor, for the storm.  Now, 4 degrees F (2.22 C) may not seem like a huge difference to most people, so why does it matter?  The answer is that it matters for the same reason scientists are so focused on keeping global warming below 2 C.  Because it takes a huge amount of energy to heat the surface of something the size of the Gulf of Mexico- or the surface of the Earth’s oceans for that matter- by even a measly 2 degrees C (~4 degrees F).

How can we relate that to something everyone can understand?  Well, let’s start with the most devastating weapons that the human race has ever developed, namely nuclear weapons.  The first and thankfully only nuclear war the world has ever experienced was World War II, during which the United States dropped two atomic bombs, called Little Boy and Fat Man, on Hiroshima and Nagasaki respectively.  Almost everyone has seen some version of the film of the devastation the atom bombs caused (4) and in Hiroshima alone the death toll was somewhere between 90,000 and 146,000 people (5).  Hiroshima got the smaller bomb (Little Boy) with a 15 kiloton yield (6) versus the 21 kiloton yield of Fat Man (7), but ultimately there were more casualties in Hiroshima due to the geography.  So, Hiroshima holds the record for the single most devastating bomb in terms of human life lost.  Now, let’s make up a fictitious energy unit called a Hiroshima equivalent to 15 kilotons of TNT (6.3E13 Joules)- which is representative of the amount of energy released when the United States dropped Little Boy on Hiroshima, and let’s examine how much energy we are currently pumping into the Earth’s oceans via manmade global warming.

It turns out that the National Oceanic and Atmospheric Administration (NOAA) has collected data going back to 1955 on the heat content of the oceans in terms of energy (Joules).  Of course very few non-scientists can relate to how much energy a Joule represents, but we can all easily relate to the devastating amount of energy a Hiroshima represents.  It turns out that it’s much easier to measure the change in heat content (due to the change in Temperature) than it is to figure out the total heat content (which is really incredibly huge and would vary slightly depending on temperate scales and methods)- and since we are only worried about the extra energy anyway the change in heat content is what should concern us.  The graph above shows the change in heat content of the oceans of the earth at depths from 0-2000m as quantified by NOAA from 1955 to 2016 in 5 year averages or pentads (8,9).  I’ve converted the graph from the original Joules to Hiroshimas to make it relatable.  You can view a comparison of the NOAA graph (9) with similar graphs made by Australian and Japanese agencies here (10).  To give another reference for comparison, in 2013 the global total energy supply (the total amount of energy used by human society) was 5.7E20 Joules (10,11) or 9.1 million Hiroshimas.  From the graph you can see that global warming has added >4.7 billion Hiroshimas worth of heat to the oceans since 1955; and while the rate seems to be accelerating, if we just assume a linear increase based on this data we are adding about 70 million Hiroshimas per year to the total ocean heat content on Earth.  In other words, every year we are adding almost 10 times as much energy into the oceans through global warming as we consume in a year.  I know that seems like a lot, but it is only about 93% of the total energy we are adding to the Earth (including the atmosphere)- so the actual total add is even bigger.

How is that possible?  How could we possibly be capturing so much energy from the Sun?  First you have to understand how greenhouse gasses work, which scientists have understood for more than a century.  Every year the Earth is hit with about 88 billion Hiroshimas of energy from the sun (5.5E24 Joules) and roughly 30% is reflected back into space, the rest is absorbed (12).  If we absorb a little bit more in the form of heat and reflect back a little less the earth gets warmer than it otherwise would have been (conservation of energy).  That is exactly what greenhouse gases in our atmosphere do, they absorb heat energy (infrared light) that would get reflected back into space if they weren’t there.  If we had no greenhouse gases in the atmosphere we would be a frozen wasteland, so they aren’t really a bad thing in and of themselves, but as we keep adding more of them to the atmosphere the planet gets warmer- which isn’t so much a problem for the planet as it is for the humans, plants, animals, etc. that call the planet home.  The main greenhouse gas we worry about is CO2 and that only accounts for about 400ppm (ppm is parts per million) of our atmosphere currently, but it is a very important 400ppm for the temperature of our planet, and that 400ppm represents a pretty big relative increase from the ~280 ppm level we were at from 1000-1800 AD .  After all, the 70 million Hiroshimas (4.4E21 Joules) we are adding to the oceans every year only represents capturing an additional 0.08% of the Sun’s energy annually.  So by reducing total amount of reflected solar energy from the Earth by about 0.1% we have succeeded in warming the planet by ~2 degrees F (or 1 C) in a very short time, and supercharging the weather to boot.  That’s a lot of Hiroshimas in a very short time.

Every action has an equal and opposite reaction, so you can’t just keep pumping energy into the Earth’s oceans without generating some pretty big and destructive storms.  That is just the nature of the beast.  It’s really not that difficult to understand after all.

 

1. https://www.washingtonpost.com/news/wonk/wp/2017/08/29/houston-is-experiencing-its-third-500-year-flood-in-3-years-how-is-that-possible/?utm_term=.09cf47503fbd
2. http://www.weatherquestions.com/What_causes_hurricanes.htm
3. http://www.npr.org/sections/thetwo-way/2017/08/28/546748502/how-a-warmer-climate-helped-shape-harvey
4. https://www.youtube.com/watch?v=b2rEhYS46EA
5. https://en.wikipedia.org/wiki/Atomic_bombings_of_Hiroshima_and_Nagasaki
6. https://en.wikipedia.org/wiki/Little_Boy
7. https://en.wikipedia.org/wiki/Fat_Man
8. Levitus, S. et. al. (2012),World ocean heat content and thermosteric sea level change (0–2000 m), 1955–2010, Geophys. Res. Lett., 39, L10603, doi:10.1029/ 2012GL051106.
9. https://www.nodc.noaa.gov/OC5/3M_HEAT_CONTENT/
10. https://www.epa.gov/climate-indicators/climate-change-indicators-ocean-heat
11. http://www.iea.org/publications/freepublications/publication/key-world-energy-statistics.html
12. https://en.wikipedia.org/wiki/Solar_energy
13. https://en.wikipedia.org/wiki/Carbon_dioxide_in_Earth%27s_atmosphere

The Abuser

The bruises hardly hurt at all- and not so painful at the time- maybe that’s why it’s ok?  Because I am not afraid and I can handle myself- I could fight back easily and give worse than I got.  The fault lies with the one who pushed… the limit and the buttons, not with the one who exploded into rage.  Not with the one who lost control.  Never there- no it cannot be.  Because that is how the world works- just ask the judge- he will put you in your place.

Legacy

A letter to my father:

I will one day have to explain to my children and grandchildren why there is no living great barrier reef, why the sea level rose so high, why bigotry, misogyny and racism continue into their lifetime, why the world suffers under water and food shortages, storms and droughts; and why we didn’t do more to stop it.  That explanation will be your legacy.  I will tell them their grandfather voted to make those things happen because he did not consider or care about the future they would face.  You may believe those things will not happen, but you are wrong, and that is your responsibility.  Motivated reasoning, inability to accept the truth, and denial of facts due to cognitive dissonance are not excuses anybody living in their world will accept.  The reasoning behind an immoral act can never excuse the act itself- you must take responsibility for your actions regardless.

When you voted for a racist, you voted for racism

When you voted for a womanizer, you voted for mysogyny

When you voted for a bigot, you voted for bigotry

When you voted for an anti-intellectual science denier, you voted against objective and informed governance

When you voted for a liar, you voted against objective facts

When you voted for a climate change denier, you voted to destroy the environment

When you voted for a Demagogue, you voted out of fear, not reason or forethought, and you proved yourself a coward

When you voted for a Nationalist, you voted for conflict and against compromise

When you voted for an Authoritarian, you voted against freedom

When you voted for a philistine, you voted against the Christian values you claim to hold so dear

When you voted for Trump, you voted to demean the country I love, and what it has stood for since it’s founding

I will never forgive those votes.  When you made the judgement to vote for Trump, that is the judgement you made, even if you deny it, and even if you did not realize that is what your were doing.  You cannot claim there was no way to know, because I knew and I told you- in fact half the country knew and you could not possibly escape awareness.  You made your own judgement, even if you try to deny it, the record is sound.  And when you are gone, despite my love for you and all the wonderful things you did in life, that is the legacy you will leave behind for your descendants.  I hope they have bigger hearts than I do, and one day perhaps they will say, despite the hardships your votes inflicted on the world, that they forgive you where I could not.

 

 

 

Small Hands, Small Brain…

…Small chance of success.

On Scalian Originalism

By now everyone in the United States, even those living under a rock, has at least heard of the death of Associate Justice of the Supreme Court Antonin Scalia.  It appears to have been a death by natural causes and was ruled as such remotely by a Texas Justice of the Peace, all of which ensures that there will be conspiracy theories swirling around Scalia’s death for the foreseeable future.  The family reportedly was steadfast in not wanting an autopsy performed- and the esteemed Justice was laid down to rest in peace.  I disagreed with Scalia’s dogmatic philosophy and quite frequently with his rulings, but he was a giant of the law- and probably ranks among a handful of the most influential Associate Justices of the Supreme Court.  His shoulders were broad enough that the entire modern Federalist Society stood upon them and grew throughout the legal profession.  And many of his opinions, and even dissents, are likely to be studied far into the future by legal scholars.  His ideas will surely outlive anyone who ever reads this blog- so by that measure- he has attained a level of greatness that few aspire to and very few ever reach.  He was one of the world’s great men of ideas and principle in his day.

However, as I mentioned, I frequently disagreed with many of his opinions and his reasoning- in short, many of his ideas.  I wish to address those ideas- with the acknowledgement that I could not compete with him in any way on his favored grounds of jurisprudence and legal theory.  I would also like to discuss the way Scalia is portrayed by some of his biggest fans- conservative commentators.  And whether they really paint a true picture of the man’s ideas along with the conclusions they draw from their characterizations.  Partially, this is in order to introduce how Scalia thought the Constitution and Statutes should be interpreted.  And partially it is to address the idea of the man, rather than just the man’s ideas because of his iconic status in the conservative movement.  First, though, it is worth holding up the man as a man- and in this Scalia was a person that in many ways all people should like to emulate.  He was never afraid to express his opinion- or to correct a questioner about the premise of their question.  He was a dedicated public servant.  He was, by all accounts, a fierce and dedicated friend and parent.  He disagreed wholeheartedly and repeatedly with Justice Ruth Bader Ginsburg yet even though they were ideological opposites, they became great friends and he was treasured an admired by many of his fellow justices, liberals and conservatives alike.  The friendship between Ginsburg and Scalia is an echo through centuries of the friendship between Adams and Jefferson.  This type of friendship is sorely missing in politics today- and is perhaps the primary reason for our polarization.  When you look at Scalia the man in addition to his cases you cannot help but recognize that he was the epitome of the “Happy Warrior” much like the President who nominated him for the Supreme Court, Ronald Reagan.  His ideology did not dictate his friendships and he never demonized or slandered those who thought differently.  He might dismiss their opinion as invalid, but he didn’t need to call them names to do it- though he had no problem calling their ideas names.  He might have been uncompromising in court, but he was also generous with his time, congenial, and just plain funny.  There is no better, more poignant tribute of the man as a man than the column Christopher Scalia, his son, wrote eulogizing his father.

Before dealing with Scalia’s ideas per se, let’s deal with how those ideas are popularly portrayed and what they really were.  I will rely heavily on two of Scalia’s speeches that are summarized here as an explanation of what he actually believed.  I have no doubt that Scalia will retain his iconic status in conservative circles for the remainder of my lifetime.  And, as with Reagan, many who claim to worship Scalia will mischaracterize his life and works to mirror and justify their own perceptions and beliefs.  Reagan compromised frequently with a Democratic legislature, and raised taxes on several occasions- two sins that would be unforgivable in the pre-Trump Republican party.  Let’s take an example of how Scalia is being mis-characterized from the column George Will wrote.  Will writes that Scalia adhered to principals including “textualism and originalism: A justice’s job is to construe the text of the Constitution or of statutes by discerning and accepting the original meaning the words had to those who ratified or wrote them.”  In fairness to George Will and other conservative thinkers who have been using this trope, I have also heard Jeffrey Toobin and Wolf Blitzer of CNN repeat essentially this same summation.  And I would note, that many in the modern conservative movement would like to hold up Scalia while proclaiming that they are trying to return the country to “what the Founder’s intended.” But Scalia expressly rejected the idea of construing the Constitution or any statute according to the meaning of the words intended by those who “ratified or wrote them.”  Will seems to consider himself to be a student of the court, but he is apparently unaware that Scalia was famous for denigrating anyone who tried to make an argument based on legislative intent or how the lawmakers themselves, in their own words, viewed the meaning of the law they enacted.  Here Scalia does a better job refuting Will’s assertion than I ever could saying:

I belong to a school, a small but hardy school, called “textualists,” or “originalists.” That school used to be “constitutional orthodoxy” in the United States.

The theory of originalism treats a constitution like a statute, giving the constitution the meaning that its words were understood to bear at the time they were promulgated.

You will sometimes hear it described as the theory of original intent. You will never hear me refer to original intent, because I am first of all a textualist, and secondly an original- ist. If you are a textualist, you don’t care about the intent, and I don’t care if the Framers of the U.S. Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.

So Scalia did not actually care about what the founders or lawmakers understood or intended by their own words and he explicitly said so. Not only that, but his actions in court bore this out- the intention of those who wrote and ratified the statute in question was something Scalia considered as irrelevant.  Rather, Scalia’s idea was to construct a sort of historical Babbit in his head and interrogate that person as to what the statute meant at the time- and the way to do that was to dig up legal and historical precedents contemporary to the statute, or the Constitution.  He said the Constitution has the “meaning it had when it was adopted.”  In other words, the Constitution means what it originally meant when it was adopted.  In fairness to George Will, because the constitution was ratified by each of the states individually by popular vote- Scalia did allow that the Constitution (but not statutes which were ratified by legislatures) means what it meant to those who ratified it, so that one part of his summary statement is correct.  And the amendments mean what they meant when they were ratified.  And laws mean what they meant when they were enacted.  So, if you have a question about what a particular word meant in 1815, you could for instance find a dictionary from 1815 and look it up.  Or you could go to contemporary laws or judgements from the time to find legal examples of how the statute was interpreted.

Scalia also argued that Originalism was the traditional way that the Constitution was interpreted up until about 1950.  One example he used repeatedly to support this position was the 19th Amendment:

Consider the 19th Amendment, which is the amendment that gave women the vote. It was adopted by the American people in 1920. Why did we adopt a constitutional amendment for that purpose? The Equal Protection Clause existed in 1920; it was adopted right after the Civil War. And you know that if the issue of the franchise for women came up today, we would not have to have a constitutional amendment. Someone would come to the Supreme Court and say, “Your Honors, in a democracy, what could be a greater denial of equal protection than denial of the franchise?” And the Court would say, “Yes! Even though it never meant it before, the Equal Protection Clause means that women have to have the vote.” But that’s not how the American people thought in 1920. In 1920, they looked at the Equal Protection Clause and said, “What does it mean?” Well, it clearly doesn’t mean that you can’t discriminate in the franchise — not only on the basis of sex, but on the basis of property ownership, on the basis of literacy. None of that is unconstitutional. And therefore, since it wasn’t unconstitutional, and we wanted it to be, we did things the good old fashioned way and adopted an amendment.

 

Here Scalia is doing many things at once, and it is evidence of his brilliance.  He is giving an example to support his contention that the equal protection clause within the 14th Amendment was generally accepted to mean in 1920 what it meant in 1868.  He is supporting his assertion that Originalism was simply Constitutional orthodoxy until about the 1950’s because an Orginalist would say that in 1920, and even today, the 14th amendment means what it meant in 1868- the meaning of the 14th amendment hasn’t evolved or changed.  He is supporting his own dissents in multiple cases where the equal protection clause was used to extend protections to classes of people (e.g. homosexuals) that had not previously received that protection.  He is also saying that up until the passage of the 19th amendment it was clearly constitutional to deny women the right to vote because the 14th amendment was generally accepted in 1868 to not apply to women’s right to vote.  And finally, he is providing an example of how Originalism should be applied by judges.

 

Scalia went on to argue that Originalism was not just the traditional way to interpret the constitution, and not just the best way, but in his view it was the only way.  He said:  “The non-originalist judge, who decides what the modern Constitution ought to mean — perhaps by applying his favorite principles of moral philosophy, or perhaps only by applying his own brilliant analysis of what the times require — escapes the application of any clear standard, by which we may conclude that he is a charlatan.”  It’s important to note the wording here, and Scalia as a textualist used words carefully, he says that any judge that is not an originalist is using an invalid method of interpreting the Constitution.  Michael Gerson quoted this passage and then stated that, “In exposing this scheme, Scalia — the strongest of Catholics — was thoroughly Protestant in his disposition. He viewed the advocates of a “living Constitution” in much the same way that Martin Luther viewed the Roman Catholic priesthood — as a class maintaining its power through mystification and the claim that only it can interpret sacred texts. Scalia argued for the plain meaning of texts, available to everyday people.” I have a great deal of respect for the opinions and reasoning of Michael Gerson, but in this case I think he got it wrong.  Scalia was indeed “the strongest of Catholics”- he reportedly drove his family quite a distance each week in order to attend a mass given in the traditional Latin.  And he certainly did not hold proponents of a living Constitution in high regard (see below), but in this passage he generalizes his normal disdain for living constitutionalism to include any “non-originalist” philosophy.  Furthermore, alluding to Scalia’s originalism as Protestant in disposition is, in my opinion exactly wrong, and I would argue that it is exactly wrong because Scalia did not argue for the “plain meaning of texts, available to everyday people.”  In fact, he argued for a historical meaning as understood at the time a statute, an amendment, or the Constitution was enacted.  That is a thoroughly Catholic stance- and Catholic priests argued for centuries that in order to understand the text of the bible you needed to read it in the official Latin- the starting language of the Roman Catholic church.  So, they insisted, it was their job to interpret what the bible meant and deliver that meaning to the masses.  Martin Luther, did indeed push to allow people to read the bible, or listen to its text, in a language they could understand in order that they could interpret it for themselves.  But that is expressly what Scalia argues against when he skewers living constitutionalism by saying that the Constitution cannot be reinterpreted according to the standards of the time.

 

Here is Justice Scalia again:

If you don’t believe in originalism, then you need some other principle of interpretation. Being a non-originalist is not enough. You see, I have my rules that confine me. I know what I’m looking for. When I find it — the original meaning of the Constitution — I am handcuffed. If I believe that the First Amendment meant when it was adopted that you are entitled to burn the American flag, I have to come out that way even though I don’t like to come out that way. When I find that the original meaning of the jury trial guarantee is that any additional time you spend in prison which depends upon a fact must depend upon a fact found by a jury — once I find that’s what the jury trial guarantee means, I am handcuffed. Though I’m a law-and-order type, I cannot do all the mean conservative things I would like to do to this society. You got me.

Now, if you’re not going to control your judges that way, what other criterion are you going to place before them? What is the criterion that governs the Living Constitutional judge? What can you possibly use, besides original meaning? Think about that. Natural law? We all agree on that, don’t we? The philosophy of John Rawls? That’s easy. There really is nothing else. You either tell your judges, “Look, this is a law, like all laws, give it the meaning it had when it was adopted.” Or, you tell your judges, “Govern us. You tell us whether people under 18, who committed their crimes when they were under 18, should be executed. You tell us whether there ought to be an unlimited right to abortion or a partial right to abortion. You make these decisions for us.” I have put this question — you know I speak at law schools with some frequency just to make trouble — and I put this question to the faculty all the time, or incite the students to ask their Living Constitutional professors: “Okay professor, you are not an originalist, what is your criterion?” There is none other.

 

Scalia again stated that anything non-originalist doesn’t work, and that you have to return to the original meaning.  I would argue that when Scalia says non-originalist, he is including people who would like to refer to original intent, in other words anything different from his own textualist and originalist approach.  As I showed above Scalia directly rejected the intent of the Founders with respect to the Constitution or lawmakers with respect to statute.  He wished to hold up the Unknown Citizen of the time at which the statute took force as the ultimate judge of what the statute meant.  And he further asserted that without an Originalist standard you have no standard at all.

 

Here is another example in Scalia’s own words:

Now, there’s several vices to a non-originalist approach to the text of the Constitution. The first and most important difficulty with it pertains to the question of legitimacy. The Constitution of the United States nowhere says that the Supreme Court shall be the last word on what the Constitution means, or that the Supreme Court shall have the authority to disregard statutes enacted by the Congress of the United States on the ground that, in the Court’s view, the statutes do not comport with the Constitution. It doesn’t say that anywhere the Constitution. We made it up.

Now, we made it up very sensibly, because we reasoned that “a constitution is a law, sort of a super-law.” This is what Marbury vs. Madison (1803) said. And determining what the law means is the job of courts. They have to do this all the time. They have to say what the law means

Courts frequently have to try to reconcile conflicting statutes, for example. In doing so, they have to interpret the statutes. If they cannot reconcile them, they simply say the more recent law prevails over the older law. And in the case of a “super-law” such as the Constitution, when the courts can’t reconcile the law and the “super-law”, the Constitu- tion prevails. And, said John Marshall in Marbury vs. Madison, “That’s what courts do. It is assuredly the function of the courts to say what the law is.” It’s lawyer’s work.

But what happens if that is not what the Constitution is, if it is not a text, like a statute, which means what it meant when it was passed? What happens if the Constitution is, rather, a sort of an empty bottle that contains the aspirations of the society, just all sorts of wonderful aspirations, the precise content of which is quite indeterminate? Today, the Eighth Amendment ban against “cruel and unusual punishment” may mean the death penalty is ok, but tomorrow it won’t mean that. “Due process of law,” whatever that means will vary over time, the due process clauses in the Fifth and Fourteenth Amend- ments meaning one thing today and something else tomorrow. We’re so in love with these abstractions, and, in the future, the Supreme Court shall decree for us what these abstractions mean. Now, if that’s what the Constitution is, sort of a list of aspirations, not a real law, then Marbury v. Madison is wrong.

This is an important passage in terms of understanding where Scalia diverges from the current conservative orthodoxy present in the Republican party.  And I admit that point is not obvious so I will attempt to explain.  Gerson is representing current conservative orthodoxy when he tries to characterize Scalia as “Protestant in disposition” not because Scalia was so, but because the current Republican party would like to represent him as having been so.  You would be hard pressed to find any conservative writer or politician who doesn’t praise Scalia’s legal opinions extensively.  And you would be equally hard pressed to find a current conservative politician or writer who doesn’t frequently expound on what the Founders intended when speaking about the constitution, and most especially when railing against activist judges.  They frequently at that point hold up Scalia as an example of a judge who upholds the Constitution as the Founders intended, but Scalia explicitly rejected intent, and he did so for good reason.  Why?  Well, for starters Scalia knew where the principle of judicial review comes from, and it does not come from the text of the Constitution.  As he says above, the judges of the Marshall court “made it up” in 1803 in Marbury v. Madison.   That doesn’t mean they fabricated it wholesale.  It means Marshall, with the support of the other three justices on the opinion argued they had that authority and that it could be inferred from the Constitution.  Now, the principle of judicial Constitutional review has come to be accepted (by both living constitutionalists and originalists), and really the only way to question it would be to make an argument based on the Framers’ original intent.  The intent of the founding fathers is somewhat questionable- in that Jefferson, who was president at the time, essentially said about this principle that it is not rooted in the Constitution, that each of the branches are co-equal and none of them can tell the other what is or is not Constitutional.  And that “When the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity.”   Of course, that is precisely the opposite of how Scalia believes it should work, and in this case I wholeheartedly agree with him that having interpretation of the Constitution open to majority rule would be dangerous- we do need judges to decide when the majority should take a hike based on the Constitution.  Note that Scalia says, it is Lawyers work- but I think he would agree it is not just for any lawyer- rather for a Judge to decide.  Scalia neatly sidesteps any problems with the Framers’ intent for the Constitution by saying intent doesn’t matter.  And since John Marshall was essentially contemporary with the Constitution, he was appointed in 1801 after all by John Adams after he lost his re-election as President to Thomas Jefferson, then to Scalia the Constitution means what Marshall said it meant in his decision.  It’s worth noting that an Originalist like Scalia- or even one who subscribes to original intent- would probably point to John Marshall’s appointment by a lame duck President and confirmation by a lame duck Senate to be the best precedent for what the Constitution means with respect to lame duck appointments to the Supreme Court- contrary to the idea current conservative politicians have about citing recent precedents.  You can’t have it both ways with respect to Constitutional issues.  If you are an Originalist you have to prefer precedent from the time of the ratification because that tells you what it actually meant then and therefore what it means now- or as Scalia put it, once you arrive at the original meaning you don’t get to do all the nasty conservative things you might want to if they conflict with the original meaning you determined.  To his credit, Jefferson acted to repeal the midnight judges act but never tried to remove John Marshall despite the clearly political nature of his double duck appointment (for lack of a better word).  Of course, Marshall went on to become the most influential Chief Justice of the Supreme Court in American history, with the possible exception of Earl Warren.  Jefferson believed in his principles even when they cut against him, just as Scalia upheld flag burning as protected speech despite despising the practice himself.  One thing nobody can argue with respect to Scalia is that his principle criterion was unclear or inconsistently held.  Although, he was still human and arguably did go against his own principles in some very important cases.

There is another good reason why Scalia may not have wanted to consider original intent.  Because the original intent of the Founders was not always clear.  Despite the perception based on the quote on his monument, Jefferson believed similar to Scalia that the Constitution should be interpreted according to its meaning when it was ratified.  That is strong support for Scalian Originalism as Jefferson made those comments after the ratification of the Constitution and in his role as President.  However, Alexander Hamilton, another Founding father was not so enamored of that view.  Thus, there was a difference of opinion among the Founders as to how the Constitution should be interpreted.  And please note above that while Scalian Originalism allowed Scalia to accept Marbury, Jefferson argued against Marbury on Originalist grounds.  That is an interesting conundrum but it is neatly sidestepped if Warren’s opinion, joined by a unanimous quorum of the Supreme Court justices of the time is taken as a Contemporary precedent- and therefore guiding for Scalian Originalist Constitutional interpretation.  This is a fairly good argument as to why Scalia’s brand of Originalism makes more sense than trying to divine original intent.  In the case of original intent- you could argue that Jefferson’s view was in fact the correct one, and eliminate the entire system of judicial review.  Of course the best argument for interpreting the Constitution according to its original meaning, and not the intent of the Framers, is that it was the people, the citizens of the time, who ratified the Constitution.  They are the ones who gave the document its power, and they are the ones for whom the meaning mattered most.  The Framers may have had more input as to the actual text, but they each only got one vote within their states, the same as any other man of the time, when it came time to make it law.

And then Marbury v. Madison established the precedent that the Constitution meant for the Judicial Branch to be able to render an act of the legislature void if they found it did not comport with the Constitution.  Thus, it is up to the judges to decide if something is Constitutional or not.  And if Marbury v. Madison is wrong, as Jefferson suggested, then the legislature can supersede the Constitution by passing unconstitutional laws that the courts are bound to enforce- in conflict with their oath to uphold the Constitution.  That renders the Constitution ineffective and cannot be supported.  It also would have the effect of burning the Judicial house to the ground making the Courts subservient to, not Co-equal with, the legislature.  Now, we get to the point where, in contrast to Gerson’s assertion, Scalia is shown to be a true Catholic in Disposition.  Because the Judges are tasked with deciding what the law is.  To a lesser extent they are allowed to decide how they should test what is or isn’t a law.  Scalia doesn’t subscribe to that theory though, he says it must be done based on what the law meant when it was enacted because that is the only clear standard by which we can constrain the Judicial Branch- otherwise Judges like him would have too much power.  Now, this criterion doesn’t always give him the result he wants, and it isn’t always easy, but it is the only one he can find that works.  Instead of arguing for the plain meaning of the Constitutional texts according to everyday people as Gerson asserted, Scalia says it is up to the Judges to decide what the Constitution means, and that they should find its meaning based on what it meant to those who ratified it, 230 years ago.  Just as the Catholic priests argued that it was up to them to say what the Bible means, and they should find it based on the Latin Bible, the Bible they used at the founding of the Roman Catholic church.  To Scalia it was irrelevant what a modern reader thinks the Constitution means unless they can support it with a historical reading of a similar meaning.

Now the thing that Scalia never addresses, and I think this is because he would argue it doesn’t matter, is just how originalism works for or against women or minorities or any other underprivileged class.  He does say that the 14^th amendment, for instance, doesn’t prohibit sexism.  Scalia would argue that the death penalty is not cruel and unusual punishment because people in the 18^th century did not consider it to be so.  That is Scalian Originalism.  And he would argue as well that if there were no laws against gay bashing in the 18^th century then that is proof positive that gay bashing is not unconstitutional unless there is some amendment that expressly prohibits gay bashing.  That doesn’t mean you can’t pass laws against gay bashing, but it does mean that any law that can be shown to discriminate only against gay people, while not discriminating against white heterosexual males, is probably not unconstitutional under Scalian originalist interpretation.  That may seem flippant, but it is not.  There is no contemporary 18^th century legal precedent representing the views of women or slaves to which anyone can refer- and certainly not enough of it to make a stand against the Federalist papers.  I will grant that Alexander Hamilton was a man ahead of his time, but behind his own closed doors I suspect Thomas Jefferson was more egalitarian- at least in bed.  That is obviously a problem for Scalian Originalism.  Even if it is not the intent, the effect is to negate the opinion of any group that did not have the franchise when the nation was founded.  We can never know what the average slave would have thought that the Constitution meant because they couldn’t write and they couldn’t vote, and even if they could have, nobody would have cared or listened to them anyway.  And women, both white and black, waited years beyond the 14^th amendment to gain their franchise.  In fact the effect of Scalian originalism is to disenfranchise about two thirds of the current electorate from the interpretation of the Constitution.

But that is not the only problem.  The other problem is that the thing Justice Scalia seems to hold up as his principle is also unattainable.  I am not sure of how to characterize the defect in Justice Scalia’s makeup that made him blind to this.  I suspect is it some form of Dunning-Kruger complex combined with inordinate self-confidence.  Justice Scalia would frequently note that he himself was out of touch with modern times.  And I cannot resist pointing out that he should therefore have recused himself from judgement on any modern statute since he could not interpret it according to the modern sensibilities of the current electorate.  But he seems never to have acknowledged that he was always, inexorably, hopelessly out of touch with contemporary sensibilities at the time of the founding.  And I mean that quite literally.  There is no way that a modern American, no matter how backwards and out of touch, could in any way understand how an 18^th century man would view an AR-15 assault rifle.  He might shrug and say “Oh well, just like a musket” until he saw it fired- then we would see that whole armies from his day could be mowed down by a single well trained marine with an assault rifle and unlimited ammunition.  How would our historical Babbit react to that knowledge.  Would he point to the second amendment and say “Yep, everyone should have one!” Or would he recoil at the thought of the carnage such a weapon can create and shout “we were talking about fucking muzzle loading Muskets for Christ’s sake!”.  We have no way to know- mass shootings were uncommon then because it was very difficult to carry 20 muskets into a school in one trip and still more difficult to hit any kind of moving target at any distance using an unrifled, handmade barrel.  As a scientist, I would scoff at the idea that anybody, no matter how out of touch, was so backwards that they could willingly channel the opinions of 18^th century white men.  Donald Trump is backwards enough, and he is only channeling from the 1950’s.  I shudder to think of what Aaron Burr might do under the mantle of #MAGA.

Finally, as 37 new states joined the Union, did their citizens really join understanding that their reading of the Constitution at the time was completely invalid?  Or did they each, individually, ratify the Constitution according to its meaning at the time?  I’m not sure of the answer, but I wish Justice Scalia had at some point addressed that point.  But as that is the least of the counter-arguments it probably doesn’t need an answer.

What I do need to address, however, is how to answer Scalia’s charge that anything that is not Originalist is no standard at all.  It is quite easy to argue only against originalism, as he points out, but he says you also need to have a clear standard yourself, that is not just “the Constitution means whatever I want it to.”  The answer I would give is that the Constitution means what it means now, in the moment.  Scalia would probably argue that is no standard at all, but I say it is not.  I cannot possibly know what an 18^th Century Hamilton or Jefferson would think about cell phones, and neither can the good Justice Scalia.  It would be the height of arrogance to argue differently- and I’m sure he would.  But I can know what the Constitution means to me, what it means RIGHT NOW to me.  I am not a Supreme Court Justice with years of legal study, so that really doesn’t matter.  But it is the only thing we can actually attempt to get at for interpretation.  Justice Scalia was a Justice, so it did at least sometimes mean what he thought it meant- when he was in the majority.  But it also meant what Ginsberg thought it meant when she wrote for the majority.  It means what it means to the people we have confirmed as Justices- and generally we don’t do that lightly.  That is the timeless standard that John Marshall used, and Scalia got to put his mark on it too.  But it doesn’t mean just whatever Scalia would have liked either, because he was only one of nine after all.  Our predecessors have made sure that no single opinion dominates.  I believe original meaning and intent do play a large role in interpreting the Constitution, but I also think that we cannot rigidly adhere to the barbarities of our forbearers either.  Imagine, if under Scalian Originalist interpretation, we decided to Simply amend the Constitution to have exactly the same wording as it does now.  That would neatly update all of the sentiments to modern times in his view while granting franchise to all the groups that have since been recognized explicitly and implicitly within the Constitution.  But by what Jiggery Pokery does he require us to do that while keeping a straight face?

 

Now is the Time to Rise Up

Now is the time for all people of good conscience to Rise Up and show they will not cower in fear as their rights a put under assault.

(That is a brave sentiment, but will you put your money where your mouth is tough guy?)

I’m already giving to the ACLU.

(Right, that costs you like 10 bucks a month and total anonymity.  You’re a pussy is what you are.)

I’ll take that as a compliment.  In fact, I’m not just a pussy, I’m an Angry Pussy!

(Angry or Afraid?)

Both.  Angry because I am afraid- of saying something loud enough to be heard.  Angry because I am even more afraid of not saying something, and taking a tax break while others lose their right to vote, to speak freely, to healthcare, to herd immunity.  While my kids rights are threatened before they even have a voice.

(Still here though, aren’t you pussy?  Little old ladies are less afraid than you! lmfao)

I have a family with kids to worry about.

(What is the world coming to when a fully grown all american white middle class man, son of a vet and a nurse, is so afraid to exercise his rights that he will sit quietly rather than speak up.  There are kids with their whole lives ahead of them that are less timid!)

I think it’s time to open a new channel and see if Daphnis can make a wave or two.  Wait for it… I’m an Angry Pussy after all.

Can you hear it now

If you can’t here it now then you must be deaf.

People are Saying…

I would never say it because I don’t traffic in unsubstantiated reports and rumors, but still there are a lot of people talking about it.  A lot of very smart people too.  People who know things, lots of things that I don’t know about.  People are saying that Trump has deep ties to Russia.  And they are some of the smartest people in the world, so you have to wonder if maybe it’s true.  So, some very smart people are talking about it and they are saying there is a report from a competent and reliable intelligence source.  They are saying that the Russians have the goods on Trump.  I would never say it, but a lot of very smart people who know a lot of things are saying it folks.  They are even saying that the FBI knew about it and kept it covered up.  It isn’t me, because how would I know?  I mean maybe we should believe it.  They are saying the Russians have video of Trump in orgies where he gets golden showers from Russian prostitutes.  Now, I’m not saying it’s true, but a lot of people are talking about it.  And how the Russian’s plan to blackmail Trump with it.  And that’s just the start folks.  But remember, we just don’t know, it could be true.  Who knows?  People are saying that Trump and the Russians colluded to defame Hillary Clinton with leaks and innuendo.  It’s very worrying if it’s true.  They are saying that Paul Manafort coordinated the meetings and the information releases.  Of course, I don’t know, I would never say it’s true without some more evidence.  But a lot of people are talking about it and it’s very worrying indeed.

2016

One thing is for sure, it’s going to be one hell of a great New Year’s Eve Party in Heaven this year.