(I am not opposed to same-sex marriage on principle, but my position is much more complicated than can be expressed by a simple answer to a “are you for it or against it” question. I will fully describe my, so far as I can tell, unique position on same-sex marriage in another post.)

Recently, another issue has caught my attention. This one is not a legal issue, but a conceptual one. I have always found myself a bit nonplussed whenever I hear someone mention his husband, or her wife. Despite the fact that I know that the speaker is gay and may even actually have gone to the trouble of going somewhere to get legally married (same-sex marriage is not legal or recognized in Key Midwestern Swing State), it still strikes me as odd that a man should use the term “husband” to refer to his spouse, or a woman can be married to a “wife.” The reaction I have is one that, could it be summed up in a phrase would be “but he’s not really your husband, even though you two are married.” In other words, I feel like the speaker is or ought to be raising his hands above his shoulders to the level of his ears and repeatedly curling the middle and index fingers of both hands in a downward motion while saying the word “husband” or “wife”.

There’s a video on YouTube for everything:
www.youtube.com/watch?v=PzRPiFXMKpg

This mental response of “there’s something not quite right about that usage” is subtle, but consistent, which makes me think it is not inconsequential and deserves investigation. There are two possibilities: either I subconsciously do not accept a man in a same-sex marriage as a proper unit of the concept “husband”; or such a person is not properly a unit of the concept.

The simple definition of “husband” is “a married man”. And if definitions were interchangeable with concepts the matter would be closed. But the concept actually subsumes all the fundamental properties shared by its units. So the question is: is having a wife part of being a “husband”? Is being possessed by her husband part of being a “wife”? Other conceptual evidence suggests that it is. A gender neutral concept for a married person exists: “spouse”. It doesn’t carry all the fine points of the masculine-feminine relationship and so is a broader concept than “husband” or “wife”.

Here’s where Rand’s Razor comes in. It directs to conceptualize only to the point necessary, then stop. Further groupings should be identified descriptively. Leonard Peikoff, “The Analytic-Synthetic Dichotomy” in Introduction to Objectivist Epistemology 94-96 (Plume 1990). Assuming “husband”, “wife” and “spouse” are all proper concepts, then there must be something essential and fundamental to the concept “wife” other than the fact that wives are women. If not, then there would be no need for the concept “wife,” because this grouping of female spouses could be identified more easily in the descriptive terms I just used.

Additionally, I am reminded of Hank Rearden’s walk home with the bracelet in Atlas Shrugged — the bracelet which he intended for his wife, but not the woman to whom he was married. These concepts “husband” and “wife” carry with them a great deal of other very significant features that deal with the interplay of the masculine with the feminine. These features are, both in my experience and, I believe, as a matter of principle, fundamentally different in and, in some instances absent from, same-sex relationships. In short, these concepts do not apply merely because a unit to which they are applied meets the definition. Men and women in same-sex marriages do not seem to belong in the concepts “husband” and “wife” because same-sex marriages have very different relationships and interpersonal dynamics than opposite-sex marriages. There is certainly a masculinity-femininity dynamic at work in same-sex relationships, but it is very different from the masculinity-femininity dynamic that is part of the heterosexual marriage.

I see a few possible conclusions:

1. Expand the concepts “husband” and “wife” by dropping those concepts’ current references to the gender of the unit’s spouse and the heterosexual masculinity-femininity dynamic, effectively rendering them fully equivalent to the phrases “male spouse” and “female spouse”, even though Rand’s Razor would then dictate abandoning the concepts “husband” and “wife” altogether in both gay or straight relationships in favor of the descriptive identifications within the master concept “spouse”;

2. Assume that “husband” and “wife” did not include the gender of the unit’s spouse and the heterosexual masculinity-femininity dynamic as an essential and fundamental feature of all units in the concepts in the first place, and then adhere to Rand’s Razor and abandon “husband” and “wife” for gay and straight married people and use “spouse” as the concept and identify subsets descriptively, despite the fact that “husband” and “wife” have venerable conceptual pedigrees;

3. Describe gay married men as “gay husbands” (or some other descriptive variant on the concept “husband”), even though this would be like saying “this is a husband, except that it lacks several essential fundamental features of husbands” and reads to me like a stolen concept;

4. Develop entirely new concepts for gay spouses, which would need to have a lot more distinguishing features than a simple gender-specification, such as implications about the sexual dynamics involved, in order to justify treating them as concepts in their own rights;

5. Use the existing concept “spouse”, which does not include gender or sexual dynamics, and merely use the descriptive “gay spouse” if further specificity is needed.

If there is in fact a conceptual problem with including men married to other men in the concept “husband”, then number 5 is my preferred solution. I would appreciate comments, but only if they deal with the conceptualization issue I am discussing. I do not need comments telling me that I’m a homophobe because I refuse to treat gay marriages as conceptually equal to straight ones. I’ve already told you that I agree that they should be politically and legally equal, and that’s not the issue I’m discussing in this post.

Dear Resident:

About one week from now, you will receive a 2010 Census form in the mail. When you receive your form, please fill it out and mail it in promptly.

Your response is important. Results from the 2010 Census will be used to help each community get its fair share of government funds for highways, schools, health facilities, and many other programs you and your neighbors need. Without a complete, accurate census, your community may not receive its fair share.

Thank you in advance for your help.

Sincerely,

Robert M. Groves
Director, U.S. Census Bureau

This letter literally made me throw up a little in my mouth. Gone is even the pretense that the census will only be used for its proper, constitutional purpose. If filling out the census form means I’ll be helping my community get its “fair share” of stolen loot, then I won’t be filling it out at all.

1. I use forms but charge you as if I did it from scratch.

Lawyers who create and sell operative legal documents (wills, contracts, trusts, &c.) do use forms. They are forms the lawyer has created himself using many different sources and his skill and knowledge of the law. The first time a lawyer creates a document, he may spend hours on it, researching how to draft it properly to meet the client’s needs. The next time, he will spend less time on it, because many of the particulars are the same for the second client as for the first. But some things will change, and a good lawyer will add those changes into his form, making the form better and more flexible. Eventually, the lawyer has a robust form that takes only a few minutes to fill in and create a document of equal or better quality than the first one he drafted. At this point, many lawyers will use a document assembly program like HotDocs (now a LexisNexis product) to complete forms dynamically and rapidly.

The lawyer certainly spends less time creating subsequent versions of the document than he did in first developing the form. Yet he charges each client the same. Why? Because he is selling a product, not his time. The article implies that a lawyer should bill based on how long something took. But if lawyers did this, they’d never get that first client to swallow a $5000 bill for a $250 document! The document is worth exactly the same to the client whether the lawyer spent 20 hours or 20 minutes drafting it. Because the document is worth $250 to the client, there is absolutely nothing wrong with this practice. The article, on the other hand, implies that lawyers should not take the value of the service or product to the client into account when setting prices, something that is a perfectly acceptable practice in any other business transaction, with the possible exception of doctor-patient transactions (but that’s a topic for another day.)

2. I hand off work to peons but charge you a lawyer’s rate.

This one is misleading on two counts, one minor and one major. The minor one is that a lawyer would never refer to his staff as “peons”. The major one is that it fails to define what work lawyers delegate to non-lawyer office staff. Typing. Filing. File retrieval. Data entry. Mailing. Proofreading. Sometimes paralegals will pull, read, and analyze case law or statutes or do other basic legal research, which is then submitted to the lawyer, who then uses his skill and knowledge to apply the law to the client’s situation and advise the client accordingly. Contrary to the article’s suggestion, lawyers do not bill clients a lawyer’s fee for work not done by the lawyer. The lawyer charges a fee for a service, and oversees the non-lawyers assisting him in providing that service, reviewing and (most importantly) integrating their work into the whole service package. Again, the piece wants lawyers to bill only on the basis of how much physical labor they perform, without accounting for added value to the client generated by the lawyer’s other skills. The piece suggests that lawyers should be required to do all their own typing. (Interestingly, doctors are forced by law to do a lot of secretarial work themselves, such as filling out billing sheets, wasting a lot of time that could better be spent with patients.)

8. I don’t know much about the law.

This is the only point the article admits, albeit only implicitly, is misleading. The article is talking about specialization. No lawyer practices equally in every area of the law. Every lawyer knows more about some areas of the law than others. This does not mean that every lawyer “[doesn't] know much about the law.” Knowing about law isn’t just knowing about statutes and case law in a particular area, but also knowing how they fit in with the legal system, how they impact society, and how all of it is evolving. Few lawyers can rattle off case names and statutes without looking them up, because there is no need to memorize such things in most areas. The law changes constantly, and even specialists must expend a great deal of mental energy to keep up with the latest developments in their fields. (Last I checked, a cardiologist who has to refer clients to an oncologist for cancer treatment doesn’t get smeared with the claim that he doesn’t know much about medicine.)

9. I don’t refer you to the best lawyers.

True. I refer you to the specialists most likely to be able to help you. “The best”, is as much as they exist, typically charge huge fees, or have caseloads that won’t allow them to take on your case. I’m going to refer you to someone who knows the area of law better than I do, and who I think or know will take your case. I’m not going to waste your time. All referral fee arrangements require client authorization, and most of the time clients are happy to agree to them.

10. Your bill is only a guesstimate.

Attorneys bill clients in six-minute intervals. But don’t let this level of precision fool you—not all lawyers are fanatically staring at their stopwatches to ensure you are not getting overbilled.

The article takes two common, but exclusive practices and ignores their exclusivity. A lawyer who bills by six-minute increments (usually only the largest firms bill this way) are fanatical about recording times. Lawyers who bill in larger time increments are able to be less fanatical. Lawyers who bill by the service, rather than by the hour (the vast majority of your solo and small-firm lawyers) don’t have to worry about time because they don’t bill by it. They charge a flat fee for a phone call or a document or a deposition, as the situation allows. Your bill is no more a “guesstimate” than a doctor’s bill is, or the bill of any other service provider. Your bill will be a reasonable one for the services provided.

11. I don’t have to tell you how I screwed up in the past.

Lawyers, like doctors, engineers and architects, are often subject to complaints from clients. Clients will file ethics charges with the state, and then the state will evaluate them. As with complaints about doctors, engineers and architects, the vast majority of complaints to state officials about attorneys do not go anywhere because they are frivolous. On the occasions where something is amiss, the lawyer (like the doctor, engineer or architect) will be disciplined by the state bar, and that discipline will be a matter of public record. And like doctors, engineers and architects, lawyers are not required to announce every complaint or disciplinary action against them to every potential client. The article is extremely misleading in how this is worded, because it suggests that lawyers don’t have to tell you these things even if you ask, which is completely false.

13. Mediation might be the better choice.

Actually, it is far more often the case that the client will be the one trying to avoid alternative dispute resolution. Litigation is expensive for the lawyer, too. Not just for the client. But clients are usually the ones pushing for their day in court when the choice is between ADR and litigation. Your lawyer will advise litigation in a situation where both would be appropriate only if he honestly believes the ADR will not vindicate your rights. This is most common in arbitration situations, not mediation. Many courts across the country now require the parties to attempt mediation prior to advancing litigation.

15. I’m training junior attorneys on your dime.

This one suffers the same problems as #2. Firms that charge by the hour do not bill senior attorney rates for junior attorney work. Firms that charge by the service are not charging by the hour. They produce a uniform quality product and charge uniform prices accordingly, regardless of how the work is generated.

So many lawyers are good people, but they get such an insanely bad reputation. It cannot be simply that people believe they are entitled to the services of lawyers (a belief perpetuated by bad law that actually says they are) because people also believe they are entitled to the services of doctors, and doctors aren’t nearly so maligned as lawyers. Like doctors, lawyers help people every day, making their lives incalculably better. Like doctors, they ask for compensation for this help — compensation to which they are morally entitled — and yet, for this, they are hated. Don’t get me started on lawyer jokes. You already know how I feel about those.

Lawyers and doctors both save lives, though in different ways. What do people expect? That young people should put themselves through the hell of law school and the bar exam, incur in excess of $100,000 in student loan debt, work tirelessly in a field that is constantly changing and frequently extremely stressful, and receive nothing, or merely enough on which to survive, in exchange? That’s certainly what Congress intends to do to doctors. Clearly, this is the work of pervasive altruism. But here is something I do not understand — Why has it attacked the professions so disproportionately?

Update: Comments closed due to their complete inappropriateness for publication. None will be posted.

The references are to the Orange County Codified Ordinances. The ordinances read:

Sec. 2-5-49. – Diving/jumping.

No person shall dive or jump into any body of water in park, beach or any recreational area from any pier, bridge, rock or precipice other than at those places designated and posted for diving or jumping by the Director, as authorized by resolution of the Board of Supervisors. Violation of this section shall be an infraction.

Sec. 2-5-49.1. – Landing in water after having jumped or dived.

No person shall land in any body of water in any park, beach or recreational area after having jumped or dived from any pier, bridge, rock or precipice above such body of water, other than at those places designated and posted for diving and jumping by the Director, as authorized by resolution of the Board of Supervisors. Violation of this section shall be an infraction.

Despite the similar construction, I think the two statutes prohibit two different acts. I added bold to the ordinances to try to make some sense out of them. The first prohibits jumping from an undesignated pier, while the second prohibits jumping into an undesignated body of water from any pier, designated or not. For example, a pier may be designated as appropriate for diving, but only in the deep water off the end. It would not be an infraction to jump from the middle of the pier, but it would be an infraction to enter the water under the middle of the pier after having jumped therefrom, because that water was not also designated for jumping.

At least, that’s the only way the second ordinance makes any sense to me. These are still wrecks of legislation, and this is still a wreck of a sign. Orange County lawmakers need to get off their lazy asses and write laws that clearly indicate what is prohibited. Or better, sell the parks and public beaches to private entities and let those entities make the rules and signs.

www.youtube.com/watch?v=E56B1939EE6AF857

I’ve set up a Flickr account because I need a safe place to store all the hundreds and hundreds of photos I’m going to take this Christmas. I am going to Italy for two weeks: December 19th through January 1st. I will visit Rome, Florence and Venice, with day trips to Vatican City, Pompeii, Orvieto, Pisa, San Gimignano, Assisi, Siena, and Maranello, where the Galleria Ferrari is. I will be doing all the classic touristy stuff — climbing the Duomo at the Florence Cathedral, visiting the Sistine Chapel, touring the Roman Catacombs, posing like an idiot in front of the Leaning Tower of Pisa (here are some examples), and riding in a Venetian gondola. Except in winter. At Christmastime. Which is not the tourist season (excluding Catholics who like to go to Vatican City around that time of year).

I’ll be taking along with me my new spiffy Christmas present to myself: a nicely equipped DSLR package:

• Body: Nikon D90
• Wide Zoom: AF-S DX Nikkor 18-55mm f/3.5-5.6G VR
• Telephoto Zoom: AF-S DX 55-200mm f/4-5.6G ED-IF VR
• Fisheye: AF DX Fisheye Nikkor 10.5mm f/2.8G ED
• Sticks: Manfrotto 055XPROB
• Panorama Head: Nodal Ninja 3 MkII w/RD3L 6-8-30 Rotator & EZ Leveler II
• Geotagger: di-GPS Mini 3L-SD90

You will notice the fisheye and the panorama head in there. I plan to make some lovely panoramic photos of the very best things to see in Italy. I will be using PTGui Pro to make the panoramas. I probably won’t make them until I get back, though, because they require quite a bit of processing. If you see one in the Flickr, consider yourself very lucky.

(For the petty tyrants at the FTC, I didn’t get anything for free. I paid full price for everything myself. Anything good or bad I have to say about any products mentioned here should be taken as the remarks of an ordinary consumer, not of a paid reviewer.)

I will probably review some or all of the camera stuff when I get back, after I see how well it performs.

Pisa Photos (I didn’t take those photographs):

1. Starts with a Bang » A Free-Fall Follow-Up
2. All Things Kendall + Carolina » Tradition!
3. Starts with a Bang » How Stable are Skyscrapers?
4. Royal Navy » RFA Cardigan Bay » A Group Visit to the Leaning Tower of Pisa

Mr. President, after reviewing the remarks made in this Chamber, and the testimony regarding the proposed limited nuclear test ban treaty, I am impressed by three arguments–one in its favor, two in opposition.

In favor of it, after all is said and done, is a hope, usually described as a faint glimmer, that this may be the first step toward easing tension in the world. It is difficult, if not impossible, to argue with a hope. It is an emotional thing; and in its soft and gentle glow, arguments appear harsh. The more fragile an illusion, the more rude must seem the attempts to shatter it.

I have warned, and will continue to warn, that nuclear weapons are not the cause of tension in this world; that if all were to disappear magically overnight, the tension would remain, so long as world communism remains dedicated to aggression and obsessed by its irrational vision of man as a mere cog in the machine of history.

But hope heeds only itself. How does one remind hope that, hitherto, on-site inspection has been the qualification of our trust of any arms control scheme? How does one remind hope that the technology of remote detection still has not developed fully to a point where it can replace such inspection? Or how does one tell hope, sprung from fear, that fallout is less a present threat than smog and fumes of everyday life? If we say these things, hope–revulsed–shrinks from our harsh words. One who says these things stands alone, a sad, somber, and unwelcome guest in a house of celebrants.

We are, apparently, well past arguing with hope. The future will shatter the hope and will sober the celebrants. But we must wait.

For my part, and the part of the other few who must heed other voices in their conscience, there is only the time now to say why we will vote, as we must, to oppose approval of this treaty. I perceive two reasons, basically; and I have based my decisions upon one.

First, there is the reason that this treaty is a political ambush, baited by the necessity of the Soviet to ease the many pressures upon its tyranny. This has been discussed on this floor. The argument impresses me; and I share, with those who have made it, bewilderment at why freedom is aided by putting salve on the wounds of tyranny. But that is not the argument which, alone, moves me to vote as I must and as I will.

I will vote “no,” because of how I read history and perceive the future. I see in our history, in this nuclear age, that what peace we have had has been possible because of our strength. I see in our history the clear course of Soviet aggressions and breaches of the peace: They have poured through gaps in our strength. They have been stopped when those gaps are closed or were precluded when our guard remained high.

I see no change in the future until or unless the objectives of communism, not merely their weapons, change. And not even hope has spoken to us so far of a change in those objectives. Rather, all say that the objectives remain unchanged. But hope, it seems, can hear that truth and still proceed, whistling past the graveyard of experience.

Thus, if strength is the shield of peace and weakness the way to war and defeat, it is the impact upon our strength that concerns me most.

What is that impact? have we not heard assurance after assurance that our strength will be upheld under this treaty? We have, indeed.

But assurances are not facts, promises are not performances and I do not feel that freedom’s strength, in a time of freedom’s peril, can be armored by either. Such strength is a matter of here and now, not of “if and when.” Real hope must be founded upon real strength.

There is a catalog that has been laid before us of the price in strength we will pay under this treaty. Have we seen a similar catalog of a Soviet price? Hope may see such a catalog; reality does not.

The major heading of this catalog of America’s price, America’s strength, is that the treaty, perhaps gently but nonetheless firmly, closes the door of knowledge.

Now the Senate must pardon me for speaking of real weapons in the real world. As I have said, the words sound harsh in the glow of hope. Truth often does.

There has been work underway in our laboratories toward the design, development and test of a device with a yield of 80 to 100 megatons. Now the door will close on that, if this treaty is ratified. Does it close on similar knowledge for the Soviets? We only know that they have tested–tested, mind you, not just conjectured–devices with yields approaching that range, and we have not, and we will not under this treaty.

[Editor's note: Tsar Bomba, the largest nuclear device ever detonated, with a yield of 50 megatons, was detonated by the U.S.S.R. on October 30, 1961. The device had a design yield of 100 megatons, but was dialed back for fear of excessive fallout.]

We have never tested fully the stamina of our hardened missile emplacements. The treaty will close the door against such tests. Will it close such a door for the Soviets? We only know that there is evidence that they have tested–have tested, not theorized–hardened structures.

Not knowing whether our missile emplacements or missile sites will withstand a severe blast, how can we be sure of our great deterrent, which is a second-strike capability? How can we ever be sure that any missiles will leave their sites with the lack of knowledge that we have of the environments to which they will be subjected?

Through the eyes of hope, of course, we see tests of major weapons and systems as unnecessary. Hope says that what we have is enough, that these high-yield devices are of minimum military efficiency. Lapsing only for a moment into the language of harsh fact, it is asked if several 20-megaton devices are not far better than one 60- or 100-megaton device. Again, the answer must be along the horizons of knowledge and not along the edges of the statisticians ledger sheet.

It is the knowledge of the effect, the environmental effect, of high-yield explosions, the sort we have not tested and will not test under this treaty–it is in such knowledge that we will be weakened by this treaty.

Prompt gamma pulses from high-yield explosions are known devastatingly to distort electronic circuitry.

[Editor's note: A beautiful example of refusal to split the infinitive!]

We know very little about that subject. We know that megaton yields of which the enemy is capable could render unusable our entire communications system. It would even render unusable our entire domestic electric systems at astonishingly high distances. Since my colleagues have not been to well informed in that field, at the end of my remarks I shall ask consent to have printed in the Record some information that I have gathered on that subject, but I shall not offer it now.

Interference with electronic triggers is an area of grave concern. So is the effect upon missile guidance systems. so grave is the concern, that our military men must ask if the Soviets do not have the capability, with the knowledge gained in their exclusive high-yield tests, of thoroughly disrupting our retaliatory missile systems. They must ask if their systems can survive the melt-down of fissionable materials by neutron impact, the effect of X-rays, the disruption of communications and radar blackout from beta rays, from gamma rays, from fireball effects.

Ask the men who must man the missiles and they say tests are needed. Ask if the Soviets have not already tested in this area and we find that we do not know–but there is ample evidence upon which to presume that they have.

Ask the man upon whose command rests 90 percent of the strategic striking power of this Nation: Ask General Power the impact of this treaty upon the strength about which he knows as much as any man. We have all heard his answer. This treaty is not in the national interest.

Ask the man whose job it has been to work with the most advanced weapons system: ask General Schriever the impact of this treaty. We all have heard his answer. He felt he could protect his country better without the treaty.

And what of the Joint Chiefs of Staff altogether? Remember now, if you will, only that they finally supported the treaty because of many safeguards, many promises, and political advantages of which other had spoken. But remember every other day of your life, every day that the time bomb of Communist treachery ticks closer to detonation, that they spoke and spoke clearly of military disadvantages under this treaty.

Pray God that we do not have to remember that under attack, weakened and unprepared.

Remember also their warning that a state of euphoria would be the most deadly consequence of the treaty. Remember that as we now officially study increased trade with the Soviets. Remember it when the next steps are taken, the pacts proposed, the agreements signed. It is not too late to remember those things now, but other, more popular tunes seem to dance in the air.

I shall not recite the page after page of cataloging of the U.S. price in strength that this treaty exacts. Senators know of them; they have heard or read them. They can restudy them. Let me just sum up the price: Under this treaty we close the door on sure knowledge of the survivability of our second-strike capability, the very capability which, until know, has been the shield of peace in this world. We halt the search for the widest span of nuclear know-how at a point where the total test yields of the Soviet are a full third greater than our own.

If I had no knowledge of weapons and of the enemy, then I would wish also to vote for this treaty and share the brief illusion that it brings. But I have lived too long with reality, too long with the men who are dedicated to our defense, too long with the facts of the enemy’s dedication, to discard all that I am and all that I know.
I will vote against this treaty because it will erode our military strength. I will vote against this treaty because it preserves the enemy’s advances in high-yield weaponry while freeing them to overtake our lead in low-yield research. We pay a price; they do not.

I do not vote against the hope of peace, but only against the illusion of it. I do not vote for war, but for the strength to prevent it.

I have been told, as have others, I am sure, that to vote against this treaty is to commit political suicide.

I will vote against this treaty because in my heart, mind, soul and conscience, I feel it detrimental to the strength of my country.

If it means political suicide to vote for my country and against this treaty, then I commit it gladly. It is not my future that concerns me. It is my country-and what my conscience tells me is now best I may preserve it.

The Senator then asked and was granted unanimous consent to include additional written materials in the Record, and then responded to questions from the floor.

Source: 1963 Cong. Rec. 17557-58.

Any typos are my own. I typed it rather quickly.

Applying the protections of the Bill of Rights (which on their face apply only to the Federal government) to the states is a legal process called incorporation, because these protections are, one by one, deemed to have been “incorporated” into the 14th Amendment’s Due Process Clause. Due Process incorporation is a messy, convoluted business because it requires finding that a protection found in the Bill of Rights is essential to the concept of ordered liberty and deeply ingrained in our nation’s history and tradition, such that not restraining the states would deny citizens of a fair day in court. Due Process is a clunky way for the Federal government to go about protecting individual rights at the state level. A much better way would have been to use the 14th Amendment’s Privileges or Immunities Clause.

The Privileges or Immunities Clause is little-known by the general public. The public knows about Equal Protection and Due Process, but not Privileges or Immunities. It reads:

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

It sounds like an amazingly powerful tool for the Federal government to use to keep state governments from violating individual rights protected by the U.S. Constitution. But it isn’t.

In 1865, Louisiana passed a law granting to the City of New Orleans to charter an exclusive slaughterhouse operator. The goal was to reduce slaughterhouse waste ending up in the Mississippi, and its effect was the confiscation of private slaughterhouses in and around the city and the creation of a politically powerful, government sponsored slaughterhouse monopoly. Independent butchers, now out of jobs by government fiat, sued under the new 14th Amendment, arguing that all three clauses (Privileges or Immunities, Equal Protection, and Due Process) independently prohibited the State of Louisiana from doing what it had done. The suits were addressed together by the Court and are today collectively referred to as the Slaughterhouse Cases, decided in 1873.

The Court upheld the monopoly. It ruled that Equal Protection did not protect the butchers because they were not being discriminated against on the basis of race, and that Due Process did not protect the butchers because they had not been excluded from the political process. (Substantive Due Process, the modern doctrine of incorporating substantive rights into the 14th Amendment, arose much later in response to the Slaughterhouse Cases.) And most depressingly, it ruled that Privileges or Immunities only protected rights peculiar to being a citizen of the United States (as against state citizenship). The clause has been effectively meaningless ever since. Substantive Due Process doctrine arose later as a way to shoehorn Federal Constitutional rights into the still-operative Due Process Clause. Had the Privileges or Immunities Clause remained viable, there would have been no need to individually examine each protection in the Bill of Rights to see whether the rights they protect are “essential to the concept of ordered liberty” and “deeply ingrained in our nation’s history and tradition” before requiring state governments to observe them. The Privileges or Immunities Clause should have done this automatically.

The protections of the Second (right to bear arms), Third (against quartering of soldiers), and Seventh Amendments (right to trial by jury in civil cases in excess of $20) have never been incorporated into the 14th Amendment’s Due Process Clause and therefore do not apply against the states. If the Privileges or Immunities Clause were viable, most scholars agree that it would include all the rights protected by the first eight Amendments.

Mr. Gura will be arguing in McDonald v. Chicago, inter alia, that the Court should reverse its ruling on the Privileges or Immunities Clause from the Slaughterhouse Cases.

Popehat has excellent commentary on the case and its possible implications.

While I dislike the rule from Slaughterhouse and would love to see it reversed, I do not think the current Court will like this argument very much. Substantive Due Process doctrine is too old and established to get tossed out by this Court. I will remain quietly hopeful, though, because I know that if anyone can convince the Court to make a change, Mr. Gura can.

[Royal personages] do not have the right to receive physical obeisance from American citizens. Miss Manners has had to issue the decree many times now that American ladies should not curtsy [ed: nor should American gentlemen bow] to royalty, and there are still those who do so at every available opportunity. They are in error, not only in the matter of world etiquette, but of geography, physics and ancient and modern history.

. . .

Bending the knee is the traditional gesture of an inferior to a superior. . . . The curtsy is but one form of the gesture of adoring a sovereign. . . .

Thus, those who believe that curtsying demonstrates their own high social rank or breeding are mistaken. Their geography is faulty if they think that bending down will elevate them; the notion that there is a law of physics stating that what goes down must come up is erroneous.

As for history, Miss Manners considers that the matter was settled by the philosopher Callisthenes, who disabused Alexander the Great of the notion that the Persian custom of groveling to royalty could be established in Macedonia and Greece. . . .

If you require more recent history, there is that matter of the war that we Americans fought to free ourselves of subjugation to the British Crown. . . .

How, then, do we Americans properly treat royalty? With the dignity and respect we naturally show to heads of state and other foreign officials. Our traditional form of greeting is to shake the hand. This gesture is not interchangeable with that of the curtsy [ed: or bow, or genuflection], as the State Department once tried to suggest when obfuscating the matter, claiming that the word “curtsy” being derived from “courtsey,” it signified no more. Your government should not have to inform you that the word “courtesy” derives from behavior in the courts of royalty, which is no business of ours.

Judith A. Martin, Miss Manners’ Guide to Excruciatingly Correct Behavior 692-94. (2d Ed. 2005).

www.youtube.com/watch?v=9WlqW6UCeaY

~U.S. President Barack Obama visits King Abdullah bin Abdul Aziz Al Saud in Saudi Arabia in June, 2009

www.youtube.com/watch?v=3kyD_e0Y7FQ

~U.S. President Barack Obama visits Emperor Akihito and Empress Michiko in Japan in November, 2009

Update, 24 Nov. 2009:

~U.S. President Barack Obama visits Chinese Premier Wen Jiabao in China in November, 2009