damnum absque injuria

July 7, 2010

A Partial Defense of Substantive Due Process

Filed under:   by Xrlq @ 12:30 am

NK asks, I presume rhetorically, if every stupid law is unconstitutional. This brings me to a topic I’ve been meaning to blog about since the McDonald decision: was the reasoning of the Alito plurality really that bad, or even all that different from Justice Thomas’s position? In other words, is a law forbidding law-abiding residents to exercise one of their constitutionally protected liberties really any more consistent with this:

No State shall …. deprive any person of life, liberty, or property, without due process of law[.]

Than it is with this:

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

And if so, why? Because it would seem to me that any law that arbitrarily deprives citizens of their freedom, without so much as the pretense that they’ve committed any crime (let alone due process to determine whether or not they have) is every bit as problematic under the Due Process Clause as it is under the Privileges or Immunities Clause – unless you think there’s some reason why freedoms secured by the Constitution are properly described as “privileges or immunities” but not simply as “liberty.”

Tell me why I’m wrong.

July 4, 2010

Waiting Periods

Filed under:   by Xrlq @ 5:53 pm

Gaston County is considering a 30-day waiting period on marriages performed by magistrates, unless the couple can show they’ve received premarital counseling. That strikes me as a very reasonable idea, particularly if Kinston Free Press’s editorial against it is the best its opponents can do:

The proposal originated from a pro-marriage advocacy group in Gaston County and is based on the premise that counseling will help couples, when faced with marital struggles, work through their differences rather than take them to divorce court. Fewer divorces will mean fewer single-parent families, and two-parent families are generally good for raising children.

Ah, it’s intended as a pro-marriage measure, rather than a deterrent to the same (think waiting periods on guns?). In that case, surely it’s the duty of every good newspaper to oppose the measure vociferously. Oh wait, there’s more:

It’s important to note that while the idea has been floated, no such bill has been introduced in the General Assembly. And the idea that’s floating around would have the program initially operate as a pilot program in Gaston County.

However, pilot programs have a way of spreading like wildfire. Once they catch on in one county, they tend to spread across the state.

Translation: the real problem with this proposal is that it might actually, like, work.

We’re not here to argue against couples getting counseling or lots of advice before getting hitched. But we don’t think it’s wise for the government to make such counseling a stipulation for getting married by a magistrate.

Ah yes, the old “don’t let big government go paternalistic on you” argument against government imposing its own restrictions on a government institution. In a state that requires divorcing couples to wait an entire year before they can get out of a bad marriage, is it that much to ask that they obtain counseling or wait 30 days before rushing into one in the first place?

The waiting period wouldn’t apply to weddings officiated by ministers. The thinking there, legislators say, is that ministers won’t join a couple in matrimony unless he or she has counseled the couple first.

While some ministers do make premarital counseling a practice, not all do.

OK, then. Let’s make the requirement apply to religious and non-religious weddings alike.

Having such a requirement could put kinks in couples’ wedding plans.

Correction: having such a requirement could put kinks in foolish and immature couples’ impulsive wedding plans. It imposes no kinks whatsoever on the plan of any couple wishing to remain engaged for one whole month – or even on those who don’t but are willing to obtain premarital counseling.

Making getting married more complicated could likely lead to more couples going to other states — states with less-restrictive marriage laws — to get married.

Here we find the limits to the domino theory. What gets tried on a pilot basis in one NC county will spread like wildfire to the other 99 counties within the state, but will stop in its tracks as soon as it hits a state line. If there’s one thing worse than slippery slope logic, it’s the “slippery to a point, after which it will magically cease slipping at all” logic employed here. Besides, if the real problem is other states’ laws not being restrictive enough for our tastes, the answer is to change our marriage law so as not to recognize out of state marriages between NC residents that do not comport to our standards. We don’t let residents get divorced in other states or countries, so why should marriage be any different?

Good intentions are behind the idea to impose the waiting period for people getting married by magistrates. But good intentions don’t always make good law.

No, but last time I checked, they didn’t automatically make bad law, either. If the worst thing its opponents can say against this proposal is that it is motivated by good intentions, I think it’s well worth a try.

February 14, 2010

Weather is Not Climate…

Filed under:   by Xrlq @ 11:47 am

… but air conditioners, waste treatment plants, incinerators, heat-generating buildings where open fields used to be, and random fluctuations are neither.

H/t: Jeff Soyer.

February 13, 2010

Secondhand Booze

Filed under:   by Xrlq @ 10:14 am

Time to play “spot the disconnect.” Sam Isaac Edwards (‘hat tip: Uncle) argues that since he himself is a dumbass who got liquored up and shot his fridge, no stone cold sober individual should ever be allowed to carry a weapon in any location where others might consume alcohol.

Coming next: a ban on driving cars while others on the road may be intoxicated.

February 12, 2010

“Money Is Not Speech”

Filed under:   by Xrlq @ 9:58 pm

One of the most oft-quoted – and IMNSHO lamest – arguments in support of First Amendment “Reform” is that draconian restrictions on campaign contributions and ads are okey dokey under the First Amendment because “money is not speech.” Technically, of course, it’s not, but has anyone seriously considered the implications of the theory that money can be divorced from what it is spent on? Let’s try applying McCain-Feingold logic to other cherished constitutional rights:

  1. Congress can pass a law forbidding any resident of a state that voted for McCain/Palin in 2008 to spend any money on a marriage license or any aspect of a wedding. Courts have ruled that marriage is a fundamental right. May sound a bit tough on marriage, but no matter: money is not marriage!
  2. DC and Chicago find a clever way around the ruling in Heller and the expected ruling in McDonald. Can’t ban handguns? No problem. Just pass an ordinance forbidding any resident to spend any money on any guns, ammunition, etc. No constitutional defect there; money is not guns!
  3. No one likes a justice system that works for the rich but not the poor, so rather than having justice for The Rich (TM), let’s tax the hell out of everyone to pay for free legal services for all who meet specified criteria, and then make it illegal for anyone to pay an attorney on his own. No problem there; money is not due process!
  4. OK, so maybe this “Money is not X” theory doesn’t work well outside the confines of the First Amendment. Well, surely it applies to the rest of the First Amendment itself, right? To test that theory, let’s pass a law providing for “clean” religion. To keep religions “clean,” the government will provide public funds to every religious organization that meets certain criteria, and then forbid every citizen to donate any of his own money to any of these organizations. No problem with that proposal, right? Money is not religion!
  5. Last but by no means least, let’s not forget the most important constitutional right of all, the one the framers considered too important to even mention in the Constitution, the right to choose so long as that choice is to obtain an abortion. South Dakota gives up the losing battle of trying to ban it outright, and instead passes a new law making it illegal to spend any money on an abortion, or on transportation to or from another state for purposes of obtaining an abortion. Surely Justices Stevens, Breyer, Ginsburg and Sotomayor would have no problem with that law, right? Money is not abortion!

Or we can use a teensy bit of common sense and recognize, as only a bare majority of our nation’s top court did, that while money technically is only property, it is fungible property which, as a practical matter, embodies whatever it is you choose to spend it on. And when a restriction on money specifically targets money spent on the expression of political ideas, then money sure as hell is speech. Thank God that a bare minimum of Supreme Court Justices understand this.

January 14, 2010

Gay Marriage Prevents Divorce?

Filed under:   by Xrlq @ 7:31 am

So implies Nate Silver of 538 (h/t: Uncle) though he doesn’t quite come out and say that. Nate writes:

The table below details the divorce rates for the 43 states that reported their divorce statistics to the CDC in both 2003 and 2008. It is calculated by taking the total number of divorces in the state that year, and dividing it by the number of married persons, as reported by the Census Bureau. The result is then multiplied by two, since each divorce involves two people. This is different than how the divorce rate is sometimes calculated, which may be as a share of the overall population rather than the number of married persons; I prefer my approach because it will not penalize a state for having a lot of marriages (and therefore more opportunities for divorce).

I’ll grant Nate this much: calculating a state’s divorce rate as a percentage of the total population, rather than as a percentage of married people, is too stupid to consider. Of course the only divorce rate that means anything is the rate among those who could get divorced if they wanted to. Xrlq 2.0 and 3.0 both have zero divorce rates amongst them, but so what? The greater point, which Nate seems to overlook, is that the decision of certain couples to marry in the first place, and of others not to, is not random. In State A, where cohabitation is largely frowned upon, a marginally committed couple may choose to marry whilst a similarly situated couple in State B, where cohabitation is commonplace, may not. The likelihood of both couples breaking up is roughly the same, and probably much higher than the odds of a breakup between a more committed couple who would be married either way, but if both couples break up, the first couple will artificially inflate State A’s divorce rate vis a vis B.

Where Nate really goes off the deep end, though, is in distinguishing states whose laws simply do not provide for gay marriage from states whose voters have affirmatively acted to prohibit it:

Overall, the states which had enacted a constitutional ban on same-sex marriage as of 1/1/08 saw their divorce rates rise by 0.9 percent over the five-year interval. States which had not adopted a constitutional ban, on the other hand, experienced an 8.0 percent decline, on average, in their divorce rates. Eleven of the 24 states (46 percent) to have altered their constitutions by 1/1/08 to ban gay marriage experienced an overall decline in their divorce rates, but 13 of the 19 which hadn’t did (68 percent).

The differences are highly statistically significant. Nevertheless, they do not necessarily imply causation. The decision to ban same-sex marriage does not occur randomly throughout the states, but instead is strongly correlated with other factors, such as religiosity and political ideology, which we have made no attempt to account for. Nor do we know in which way the causal arrow might point. It could be that voters who have more marital problems of their own are more inclined to deny the right of marriage to same-sex couples.

The elephant in the room, which Nate scoots right by, is that constitutional bans on gay marriage have passed handily in every single state whose voters have been allowed to vote on them. Religiosity, political ideology, concerns about one’s own marriage, etc. may all play some role in determining the margin by which a constitutional or initiative ban on gay marriage may have passed in any particular state (a factor Nate does not examine) but the only factor determining whether a state has a ban gay marriage is the extent to which voters are or aren’t allowed to choose. Perhaps Nate’s real point is that if you allow people too much freedom of choice, they may choose to get a divorce?

It’s too bad that California is not included in the chart, as it would be the perfect state to prove whose theory is right. If mine is right, California should have a relatively low or declining divorce rate, as it’s a liberal state where uncommitted couples are free to shack up with little or no pressure to marry. If Nate is right, California’s divorce rate should be heading through the roof, as it’s the one state whose voters have acted not once but twice to prohibit gay marriage (though strictly speaking, CA hadn’t enacted a single constitutional ban as of 1/1/08, so perhaps Nate would skate on a technicality).

November 30, 2009

Insurance Mandates vs. Insurance Mandates

Filed under:   by Xrlq @ 9:33 pm

Easily the dumbest argument I’ve heard on the health care debate is that we should mandate health insurance because we mandate auto insurance. WS Journal letter writer Laura Young recently wrote:

People are required to have car insurance; why not health insurance? Personally, I’d rather insure my health than my auto. I can always get a new car, but my life is not as replaceable.

Neat, but no law requires you to insure your auto. If anyone requires you to insure your auto, it’s your lender or your lessor, and they’re doing it to protect their own interest, not yours. Apparently Ms. Young forgot that the mandatory part of auto insurance in most states is liability insurance, not comp or collision. And your liability insurance isn’t mandated to protect you; it’s mandated to protect the rest of us from you. Big difference. However, there does appear to be one important parallel between mandatory auto insurance and mandatory health insurance after all: neither mandate works.

Lameness points to the Ass. Press for noting that Massachusetts’s mandated health insurance “has passed legal muster” in the context of a discussion over whether a federal mandate would. Last time I checked, Massachusetts was a state, not a branch of the federal government.

October 19, 2009

Doing vs. Inducing

Filed under:   by Xrlq @ 8:42 pm

My post on tortious interference with contract vs. alienation of affection led to an interesting discussion, but not really the one I was aiming for here, so let’s try one more time, taking this to a more abstract level. This is NOT about whether you support or oppose alienation of affection laws. If you want to weigh in on that issue, feel free to do so here, here or here (though if you do, know that A of A does not require the defendant to be romantically involved with a married person; anyone who encourages anyone else to divorce a third party is potentially liable). Setting aside the specific topics of divorce and breach of contract per se, is there any other X for which it can reasonably said that either:

  1. It is morally acceptable to X, but morally unacceptable to encourage others to X; or
  2. It is morally unacceptable to X, but worse to encourage others to X.

And if the answer to either #1 or #2 is “yes,” I’d really, really like to know why.

Bonus question: is there any other area of law apart from divorce and breach of contract, where either of the above principles is public policy? For example, does any state impose a stiffer penalty on those who suborn perjury than on those who commit it themselves? Punish the person who solicited a murder with death while the person who actually carries it out can only get life? Etc. The only other examples I can think of are drugs and prostitution. The former rests on the mildly paternalistic but perhaps defensible view that people who throw good money at a a bad habit don’t know what they’re doing, while those who profit from this bad habit do. The latter rests on the equally paternalistic, but fundamentally much sillier, notion that people who throw good money at a different bad habit do know what they’re doing, while those who manage to profit off that bad habit somehow don’t. Or is there some other, less ridiculous rationale for this disparate treatment that I’m missing?

October 16, 2009

Drugs Are Bad

Filed under:   by Xrlq @ 2:34 pm

Professor Louisa Degenhardt of the University of New South Wales has conducted a study determining that Australia, New Zealand and North America are the countries that consume the most pot. The study does not, however, say how much pot one must consume to think North America is a country.

October 3, 2009

Gay Divorce

Filed under:   by Xrlq @ 12:34 am

A recent Texas case raises an interesting issue: if your home state says you aren’t married, but another state where you don’t reside says you are, can you get divorced anywhere?

[Pete] Schulte said Texas was the only place where they could file for divorce because they live in the state and have established residency.

“I have a feeling there are going to be opponents who say this is going to allow the floodgates of gay marriage to open, and I disagree with that,” he said. “Gay marriage and gay divorce are two seperate [sic] things.”

Indeed they are. Whoever came up with the brilliant idea that any young and stupid couple can marry anywhere in the world and have it recognized everywhere, but the same older and wiser couple can’t undo that marriage in any state but their state of residence – not even the state that solemnized the marriage in the first place?

And since I’m ranting about stupid laws aimed at inconveniencing the dissolution of marriages that weren’t going anywhere, anyway, maybe now is a good time to ask a question I’ve been sitting on for a while. For those dinosaurs who still support “alienation of affection” lawsuits on the theory that they protect marriage, which of the following best summarizes your position?

  1. Allowing the ex to sue the next preserves the original marriage because we’d all divorce someone who annoys us slightly, but no one would ever divorce someone vindictive enough to sue your next SO.
  2. Allowing the ex to sue the next protects marriage because North Carolina’s divorce rate is __% lower than that of South Carolina, Southwestern Virginia or Tennessee, which don’t have alienation of affection laws anymore [or a similar comparison between downstate Illinois and Indiana or Iowa.]
  3. Allowing the ex to sue the next – but not to sue the departing spouse – makes sense because if the cheating spouse is a woman, well, women can’t really make choices for themselves, anyway. And if the cheating spouse is a man, well hell, what man could resist a chance to bang some hot chick who wants to lure him away from his wife. It’s not his fault for violating his own wedding vows, it’s her fault for giving him an opportunity to violate vows she herself never agreed to at all.
  4. OK, I admit it, allowing the ex to sue the next but not the cheater himself is downright retarded, and there’s no evidence that allowing anyone to sue either his ex or his ex’s next will do a fracking thing to preserve the institution of marriage. Never mind that. The law is meant to protect marriage, so who cares what the frack it actually does?
  5. Other (specify).
 

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