"Lots of people are opposed to the kind of late-term abortion that preceded the death of a woman in Maryland last week...."

"But everyone should be opposed to the blatantly illegal violation of her privacy and the exploitation of her death by protesters using it to make their point."

Writes Petula Dvorak in the WaPo.

I don't understand the "blatantly illegal" part. Dvorak is only guessing that someone in the clinic leaked the information, so shouldn't "blatantly" be something like "possibly"? Dvorak's opinion goes beyond the question of whether any law was broken. She portrays what happened to the woman as something intensely private that ought to have been mourned within her circle of family and friends and never disclosed to the rest of us, who have various opinions about a matter of important public concern related to this death.

To shift the topic slightly: Remember the immediate aftermath of the Benghazi attacks, when we kept hearing — from Hillary Clinton and others — that the primary concern is for the families of the men who died.

I think we need to be a little skeptical when we hear the argument this is private, this is for the families.

What belongs securely in the private realm and what should come out into the public light? Consider the old slogan: The personal is political.

When we hear the statement this is private, we need to test its truth with the opposite proposition: This belongs in the public debate. And consider whether we are looking at something that can be divided up into private and public. We can be respectful to the family, we can avoid using the woman's name and photographs and and so forth, and extract the part of the story that properly belongs in the public debate. Those who demand absolute privacy may have complex motives. They may say: What I care about is the very personal suffering of the victim's family and friends. Why would they give voice to less admirable motivations?

Why are gun-death statistics inflated with gun-suicide numbers?

"I thought we had a right to die...."

Obviously, one reason is: to get bigger numbers. But I think the people that lump gun deaths together believe (or want others to believe) that guns are really dangerous. When it comes to suicide, there are 2 ways to think about the deadly effectiveness of guns: 1. For those who really want to kill themselves, guns are a sensible choice, or 2. The scary deadliness of a gun tempts weak/impulsive persons to go ahead and do something that wouldn't happen otherwise.

You can easily see that those 2 ways to think represent the mindsets that lead to libertarian or authoritarian answers to all sorts of questions. #1 would allow the individual to make his own decisions and to take care of himself, and #2 thinks the individual — call her Julia — needs to be helped and protected (even from herself).

Sorry to go all gender-y, but I'm interested in talking about suicide and attitudes about guns in the context of gender difference, because 4x as many men as women commit suicide and 56% of male suicides use firearms compared to only 30% of female suicides. Those statistics are skewed by the fact that guns are an effective method. It might be that the gender disproportion is because men choose the method that leaves fewer survivors of attempts at suicide. I note that 40% of female suicides use "poisoning" (presumably, that includes drug overdosing). What's the proportion of females attempting suicide by poisoning to females succeeding in killing themselves with poison?

If you have a fantasy of rescuing those who are in the process of committing suicide, you might think taking guns away will give you a better shot.

ADDED: It occurred to me, after the Sandy Hook murders, that blaming guns is a secular substitute for blaming the devil. People find it too challenging to figure out why a human being would do this terrible thing and they latch on to the idea that the gun made it happen. Suicide presents a similar challenge, and one way to fathom it is to say: It was the gun. Isn't it like saying the devil made him do it? The gun/the devil is a great go-to answer, freeing you from wracking your brain about the workings of the human mind.

"I’m not so sure why we want more people on our crowded, overheated planet..."

"... where world population is projected to increase by 2 billion before finally beginning to fall. But if [NYT conservative columnist Ross] Douthat really thought through what it means to have and raise a child these days, I’m sure he could come up with a lot of great ways to help women and families. The trouble is, he couldn’t be a Republican anymore. He’d be a socialist."

That's Katha Pollitt over at The Nation, reacting to Douthat's reaction to the plummeting birthrate in the United States, which we were talking about here. I'd asked:

If it is an emergency, what could be done? Is there a role for government? What if government wanted to get involved, really deeply involved? Suggestions? Don't violate any rights. This is a government of laws, in which women have reproductive freedom. But there is the taxing power and the spending power and so forth.

So I agree with Pollitt on where the solution to the problem lies... except that she's not ready to see how it's a problem.

"U.S. birthrate plummets to its lowest level since 1920."

"The decline could have far-reaching implications for U.S. economic and social policy."

Is this an emergency? Like global warming, it's simultaneously slow and fast. It's so slow, you may think it's not real — alarmism — or not a problem — we'll adjust. But it's fast too, because if we're going to attempt to control the trend, we need to get cracking.

If it is an emergency, what could be done? Is there a role for government? What if government wanted to get involved, really deeply involved? Suggestions? Don't violate any rights. This is a government of laws, in which women have reproductive freedom. But there is the taxing power and the spending power and so forth. 

In the style of the environmentalists — who would have us radically reorder life to stave off the perceived calamity — devise some policy. I encourage comic/dystopian brainstorming here, but please keep the foundation of reproductive freedom and other basic American liberties. I'm not asking for "The Handmaid's Tale." That's been done.

"'I am not particularly happy with Obama,' the retired auto-parts storeowner said of the man he supported in 2008."

"His wife, walking beside him on the Military Ridge state trail, overheard him voicing doubt. 'What about my reproductive rights?' she asked, clearly upset. 'No, we are voting for Obama!'"

Auto-parts... lady parts... somewhere in Wisconsin. 

Discussing his uncertainty, the retired couple walked off along the popular recreational trail in this small town...

How old does a woman have to be before she stops thinking first and above all about her reproductive rights? Well, at least they are still "discussing his uncertainty" as they walk away, even though she made a declarative statement about how the 2 of them are voting. Maybe he needed to work through his feelings to understand why he is so fuzzy about his reasons for doing what he is going to do.

German court says a boy's right to physical integrity trumps his parents' religious interest in having him circumcised.

Jewish and Muslim groups are reportedly outraged.

"Alleged proposals to allow Egyptian husbands to legally have sex with their dead wives for up to 6 hours after their death have been branded a 'complete nonsense.'"

"The controversial new 'farewell intercourse' law was claimed, in Arab media, to be part of a raft of measures being introduced by the Islamist-dominated parliament."

Who even thinks about making laws on this subject?

But now that we are thinking about it, what do you think: How much physical love may a husband express toward his newly dead wife (or a wife to her husband)? Clearly, kissing the dead loved one is considered normal, but where is the line? If you had to make a law defining what constitutes a crime with respect to the treatment of a dead body, how much leeway would you give to the new widowers and widows?

Let's not get all embroiled in what the Egyptian Islamists do. Let's look at our own values. We're talking about when the state should prosecute somebody. Who should go to prison? Take into account that, under the Constitution, we have a right of privacy:

We deal with a right of privacy older than the Bill of Rights — older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects.

ADDED: This subject makes me want to reprint the last paragraph of "The Hunchback of Notre Dame":

About eighteen months or two years after the events which terminate this story, when search was made in that cavern for the body of Olivier le Daim, who had been hanged two days previously, and to whom Charles VIII. had granted the favor of being buried in Saint Laurent, in better company, they found among all those hideous carcasses two skeletons, one of which held the other in its embrace. One of these skeletons, which was that of a woman, still had a few strips of a garment which had once been white, and around her neck was to be seen a string of adrézarach beads with a little silk bag ornamented with green glass, which was open and empty. These objects were of so little value that the executioner had probably not cared for them. The other, which held this one in a close embrace, was the skeleton of a man. It was noticed that his spinal column was crooked, his head seated on his shoulder blades, and that one leg was shorter than the other. Moreover, there was no fracture of the vertebrae at the nape of the neck, and it was evident that he had not been hanged. Hence, the man to whom it had belonged had come thither and had died there. When they tried to detach the skeleton which he held in his embrace, he fell to dust.

"Obama Punks the GOP on Contraception."

That's the spin from Slate's Amanda Marcotte (and I think she may have it right!):

After two solid weeks of Republicans rapidly escalating attacks on contraception access under the banner of "religous [sic] freedom," Obama finally announced what the White House is proposing an accomodation [sic] of religiously affiliated employers who don't want to offer birth control coverage as part of their insurance plans. 

Yeah, rotten spelling/proofreading, but give her a chance. Normally, I can't stand Marcotte, but I think she's homing in on the truth:

In those situations, the insurance companies will have to reach out directly to employees and offer contraception coverage for free, without going through the employer. Insurance companies are down with the plan... contraception actually saves insurance companies money, since it's cheaper than abortion and far cheaper than childbirth. 

Remember the economies of the "blue pill" and the don't-call-them-death-panels for end-of-life human beings? There's lots of money to be saved at life's onset. Insurance companies (and the safety-net-providing government) stand to save lots of money through pregnancy — and child! — prevention. It makes economic sense to incentivize the use of birth control. A woman has a right to choose whether to have children or not, but the government may nudge the woman toward its preferred choice. It is good economic policy to push women to avoid having babies until they've got a stable relationship and a solid economic foundation, so clear the path to the relatively inexpensive pills and poisons and devices that keep the sperm and the egg from acquiring a will of their own.

Another point, which Marcotte doesn't make, is that many, many healthy individuals are about to be forced to spend thousands of dollars a year on health insurance, and there needs to be a decent flow of seemingly "free" things so that they don't get too upset about it. Birth control is perfect for this. It's something women use — continually — when they are perfectly healthy. Face it: Birth control is about preventing an important bodily function from working. Now, the birth control won't be free, because everyone paying into the insurance pool will be covering the cost, but the women who use the birth control will have the feeling that they're getting something. That's a special kind of palliative care that the designers of Obamacare are going to want to cover.

So did Obama "pull a fast one" on conservatives, as Marcotte surmises?

He drew this out for two weeks, letting Republicans work themselves into a frenzy of anti-contraception rhetoric, all thinly disguised as concern for religious liberty, and then created a compromise that addressed their purported concerns but without actually reducing women's access to contraception, which is what this has always been about....

Now, those who complained about the old rule have a choice whether to move on to some other traditional-values issue or to find a way to say that the problem is still there. If they do the latter — as Rush Limbaugh did a series of semi-coherent rants on his show yesterday — they're going to annoy/scare the millions of women who use contraception and the millions and millions of women and men who want other people to use contraception. (Don't forget the "Freakonomics" theory connecting the avoidance of unwanted pregnancy to a reduction in crime.)

Marcotte thinks the conservatives will give up on this issue and exults that "the damage has already been done."

[W]hat most people will remember is that Republicans picked a fight with Obama over contraception coverage and lost. This also gave Obama a chance to highlight this benefit and take full credit for it. Obama needs young female voters to turn out at the polls in November, and hijacking two weeks of the news cycle to send the message that he's going to get you your birth control for free is a big win for him in that department.

And let's not forget — Marcotte doesn't mention this — that the birth control fracas peaked precisely when a story was breaking that should have made the administration look weak on a women's rights issues: the decision limiting women in the military. As I noted yesterday, Michelle Obama was deployed on a nutrition-in-the-military mission on the very day that decision was announced. So there is good reason to think the Obama campaign is sharply focused on manipulating the minds of constituents who care about women's issues.

As Marcotte said: "It's all so perfect that I'm inclined to think this was Obama's plan all along."

Evidence that 34% of likely voters are irrational.

Here are 2 questions from the same Rasmussen poll, conducted in the last 2 days, of 1,000 likely voters:

1* Should health insurance companies be required by law to cover all government-approved contraceptives for women, without co-payments or other charges to the patient?
43% Yes
46% No
11% Not sure...

4* Should individuals have the right to choose between different types of health insurance plans, including some that cost more and cover just about all medical procedures and some that cost less while covering only major medical procedures?
77% Yes
9% No
14% Not sure

If you answered "yes" to question 1, you can't rationally turn around and say "yes" to question 4! How are these individuals supposed to buy something that the insurance companies are not allowed to offer? Apparently, people feel sympathetic to individuals but not to insurance companies, and they reflexively decide to push the companies around and respect individual freedom.

Anyway... speaking of things people get emotional about... there's also sex and religion, which naturally go together, since "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life."

Trent Arsenault — devoted sperm donor, virgin father — hounded by the FDA.

Here is a man who has — as I read this truly fascinating article — devoted himself to sperm donation for altruistic, religious reasons. He gives the sperm, only to couples, and he maintains a rigorous health regime designed to produce the best quality product.

And I use the word "product" to highlight the fact that the FDA has filed a "cease manufacture" order against him.

Although sperm is neither a food nor a drug, the FDA’s Center for Biologics Evaluation and Research regulates those who traffic in it, enforcing frequent and comprehensive tests designed to curb the spread of communicable diseases and genetic disorders. Historically the agency has focused only on traditional sperm banks, not private donors, but Trent was unprecedentedly public about what he was doing. When the FDA first contacted him, he had naïvely signed a piece of paper confirming that he was “an establishment.” In August 2010, using that as a pretext, the FDA sent three agents to his house, where for several days they interviewed him and copied his records. Trent had by then made 340 donations to some 46 different recipients. The scrutiny was time-consuming and stressful; he didn’t have a lawyer and worried than he might land in prison.

By November, the FDA determined that Trent wasn’t screening for diseases nearly often enough, and it issued its cease-­manufacture order. Trent replied that he wished to contest it. He wasn’t charging money, as he explained, and he was helping people. He knew that he was celibate, that he was disease-free, and that he took extraordinary measures to safeguard his DNA. He considered his relationship with his recipients to be “intimate.” Why should the government regulate what he was doing, when anyone, with who knew what health issues, could walk into a bar and have a one-night stand? A government-accountability public-interest group, Cause of Action, agreed, seeing the FDA action as a ringing example of regulatory overreach, and filed a brief on Trent’s behalf. “We questioned him as to the parameters of his relationship with recipients,” Amber Taylor, the chief counsel for Cause of Action, says. “We took away that he’s a very generous, helpful person who sees people in need who could not have children without some form of assistance, who are often lower income or underserved by the fertility-medicine industry.” Trent is currently awaiting a decision by the FDA on whether to grant him a hearing, and in the meantime, the cease-manufacture order has been suspended.

I'm sure that, after this high-profile article, the FDA will back off. But let's talk about the legal issues here. Does Arsenault have a right of privacy in his relationship with the couples he assists? "He describes himself as a 'donorsexual,' with all of his libidinal energy channeled in service of others." Consider that he has 15 — and counting — children through this activity, which had deep religious and emotional meaning to him:

Many of the recipients who have successfully become pregnant have maintained contact with Trent; the lack of anonymity has always been part of his appeal. They send him ultrasounds and arrange to have Trent meet the child. He has a bag ready to go containing his own old toys, which he gives away, and items he uses to observe childhood development....

Trent sits at his desk and pulls up Facebook, where he clicks through photographs of many of his biological children....

Even if he were to stop donating—which he would do immediately if, for instance, he learned that one of his children was autistic or had another genetic problem—Trent says he would stick with his extreme health regimen. “I want to be alive for the children. They will want to know about me. It may not be until they turn 18, or later in life, that they decide they want to meet me, so I want to be in a good capacity to meet them.”

Quite aside from whether he has a constitutional right of privacy with respect to these intimate relationships, why does the federal government have power over his activity? Because it regulates the sperm bank business and this is like the way it can regulate growing one marijuana plant even one that isn't intended for the commercial market? But marijuana is a commodity, and — as the Supreme Court said in Gonzales v. Raich — "the regulation is squarely within Congress’ commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity."

Be it wheat or marijuana... or sperm?

Judge Posner includes a photograph of Bob Marley in an opinion and sloughs off worries about copyright.

The case was about dreadlocks (and the prison officials who cut them off), and Posner said his use of the photo fit the "fair use" doctrine:

"It's not as if we're selling our opinions in competition with a photographer... Using the photo in a judicial opinion couldn't conceivably be hurting the copyright holder."

Posner did not give the photographer credit, though it's a commercial photographer who uses Getty Images to collect fees. But Posner just grabbed the photo from the internet. He says "With the Internet, it's extraordinarily easy to find photographs of anything," so there's a good chance he encountered the photograph on a website that didn't name the photographer.

Posner seems to think it's quite fun to toss photographs into judicial opinions. It reminds me of the way some judges like to quote song lyrics or lines from movies. Blogging, I always feel that it's more questionable to use an image that someone else created than it is to cut and paste a block of text, but why should that be? I quote blocks of text all the time, but I remember, when I started blogging, worrying quite a bit about whether it was acceptable to copy that much text, so I'm relieved to hear a judge take a broad view of fair use and set an example.

Here's an opinion where Posner includes a picture of an ostrich with its head in the sand and a picture of (presumably) a lawyer with his head in the sand as he criticizes a lawyer who failed to cite a case that should have been cited. The lawyer filed a grievance against Posner for funning with him like that. The grievance was dismissed, and Posner offers the classic nonapology "I'm sorry he was upset by it."

There's more going on here than copyright. There's also the idea that judges are supposed to be neutral and sober. They wield power against real individuals, and it's a power that's supposed to come solely from law, not from any will of the judge's own. In that light, when the judge displays that he's enjoying the experience or playing to the crowd, entertaining the audience, we may fear that he's doing something wrong. This is why most judicial opinions are so godawful tedious, as the judges all sound alike and phrase everything in the dullest possible way. And there are no pictures!

This reminds me. We lawprofs have to make students read these texts, and we use casebooks that have edited the tediously verbose writings down, but the casebooks are still ponderous — in more ways that one. I'd like to take iBooks Author — an amusing new app — throw all the cases I assign into it. (All the judicial opinions are in the public domain, so there's no copyright issue at all.) Edit the cases down, summarize some things, and embed some pictures in a Posneresque way.

For example, take Griswold v. Connecticut (the old birth control case that flummoxed Mitt Romney in the debate the other day). There's a point in Justice Harlan's concurring opinion where he writes:

The Due Process Clause of the Fourteenth Amendment stands, in my opinion, on its own bottom.

That's just begging for a photograph grabbed from the internet.

Should Althouse use iBooks Author to write a Posneresquely amusing Constitutional Law casebook?
	No. It would be undignified and unserious and thus not usable in a real law school class.
	Yes. Students (and other readers) will love it.
	No. It won't be that good. It might be annoying. And Althouse has better things to spend time on.
	Yes. I'd like to see Althouse's creative energy drained away in this idiotic project.
pollcode.com free polls

IN THE COMMENTS: Freeman Hunt said:

Posner is The Crack Emcee of judicial opinions?

"Los Angeles Makes Condom Use Mandatory for Adult Film Actors."

The NYT reports:

“Clearly this is about the government overreaching and intruding into consenting adults’ decisions,” said Diane Duke, the chief executive of the Free Speech Coalition, a trade group for the pornography business. “Our standards and protocols are extremely effective and are working. They are taking something they know nothing about and imposing their morality on our industry.”

Can you make the argument that constitutional rights are violated?

Did Romney — who went to Harvard Law School — display ignorance of the Supreme Court's decisions on the right of privacy and contraception?

Here's the transcript from last night's debate:

STEPHANOPOULOS: Governor Romney, do you believe that states have the right to ban contraception? Or is that trumped by a constitutional right to privacy?

ROMNEY: George, this is an unusual topic that you’re raising. States have a right to ban contraception? I can’t imagine a state banning contraception. I can’t imagine the circumstances where a state would want to do so, and if I were a governor of a state or...

So Romney begins by avoiding the question. No law professor would accept a student's responding that way. The question is about whether the states have the power to do something or whether there is a constitutional right supervening that power. It's a separate question whether the state would want to use that power.

You could say: Actually, the states do have the power, and the Supreme Court was wrong when it said there was a constitutional right of privacy, but it's not something to worry about, because the states aren't going to use this power. It's not going to happen.

But Romney went straight for the second point, that the states won't use this power. Implicitly, perhaps, he's saying it's not worth discussing the question of the state's power, because this issue won't come up in the real world. There's some justification in keeping it simple. This isn't a law school class, and the point I've just made is a bit difficult for the average person to catch on the fly.

Stephanopoulos drags Romney back to the question whether there is an individual right that supervenes the state's power:

STEPHANOPOULOS: Well, the Supreme Court has ruled --

ROMNEY: ... or a -- or a legislature of a state -- I would totally and completely oppose any effort to ban contraception. So you’re asking -- given the fact that there’s no state that wants to do so, and I don’t know of any candidate that wants to do so, you’re asking could it constitutionally be done? We can ask our constitutionalist here.

Romney acknowledges that he can see the question Stephanopoulos is asking, but he still doesn't want to answer it. Let Ron Paul answer it. Ron Paul is always going on about the Constitution. There's something clever and cagey about what Romney is saying: I don't make a constitutional question out of everything; I live in the real world, where I deal with real problems.

As a constitutional law professor, let me say that this is the way a lot of judges and scholars talk about law. Romney's engagement with law at this point is actually sophisticated, even as it looks simple. Ron Paul's continual pronouncements about constitutional law, by contrast, feel like political rhetoric to me.

STEPHANOPOULOS: I’m sure Congressman Paul...

(CROSSTALK)

ROMNEY: OK, come on -- come on back...

(CROSSTALK)

Now, to me, Romney got the better of that. I'm reading the cold transcript now, but I did glimpse this part on TV last night. The humor and adeptness of what Romney was doing there is much more apparent in text. There is a seeming lightness and modesty to Romney when you're watching him, but, in writing, I see the cleverness. 

STEPHANOPOULOS: ... asking you, do you believe that states have that right or not?

(I wish everyone would say "power" and not "right" in that context of what governments may do.)

ROMNEY: George, I -- I don’t know whether a state has a right to ban contraception. No state wants to. I mean, the idea of you putting forward things that states might want to do that no -- no state wants to do and asking me whether they could do it or not is kind of a silly thing, I think.

Romney recommits to his original response, but he drops in the statement that he doesn't know whether the states have that power, which is to say, he doesn't know whether individuals have a right that trumps the exercise of that power.

STEPHANOPOULOS: Hold on a second. Governor, you went to Harvard Law School. You know very well this is based on...

ROMNEY: Has the Supreme Court -- has the Supreme Court decided that states do not have the right to provide contraception? I...

STEPHANOPOULOS: Yes, they have. In 1965, Griswold v. Connecticut.

This is the weird part of the interchange. In Griswold, the Supreme Court found the right of privacy that trumps the state's effort to ban contraceptives (used by married couples. A later case, based on Equal Protection, protects unmarried persons as well). But when Romney restates the question, he changes it to whether the states "do not have the right to provide contraception," an issue that no one was even talking about. My best guess is that Romney is stumbling here, and he needs the prompt about Griswold.

ROMNEY: The -- I believe in the -- that the law of the land is as spoken by the Supreme Court, and that if we disagree with the Supreme Court -- and occasionally I do -- then we have a process under the Constitution to change that decision. And it’s -- it’s known as the amendment process.

Here, he's resorting to generalities about the Supreme Court's authority and the supremacy of constitutional law.

And -- and where we have -- for instance, right now we’re having issues that relate to same-sex marriage. My view is, we should have a federal amendment of the Constitution defining marriage as a relationship between a man and a woman. But I know of -- of no reason to talk about contraception in this regard.

He comes back once again to his original point, that as a real-world matter, contraception is a nonissue. We shouldn't even be talking about it.

STEPHANOPOULOS: But you’ve got the Supreme Court decision finding a right to privacy in the Constitution.

ROMNEY: I don’t believe they decided that correctly. In my view, Roe v. Wade was improperly decided. It was based upon that same principle. And in my view, if we had justices like Roberts, Alito, Thomas, and Scalia, and more justices like that, they might well decide to return this issue to states as opposed to saying it’s in the federal Constitution.

Now, he's clear that he doesn't think there is such a right. Either he finally has to talk about it, or he actually didn't realize that the Court first articulated the right of privacy in a case about contraception. Also, in addition to noting that a Supreme Court opinion can be overcome with a constitutional amendment, he's talking about something the President of the United States can do: Appoint new Justices who will overrule the case.

And by the way, if the people say it should be in the federal Constitution, then instead of having unelected judges stuff it in there when it’s not there, we should allow the people to express their own views through amendment and add it to the Constitution. But this idea that justice...

STEPHANOPOULOS: But should that be done in this case?

ROMNEY: Pardon?

STEPHANOPOULOS: Should that be done in this case?

ROMNEY: Should this be done in the case -- this case to allow states to ban contraception? No. States don’t want to ban contraception. So why would we try and put it in the Constitution?

With regards to gay marriage, I’ve told you, that’s when I would amend the Constitution. Contraception, it’s working just fine, just leave it alone.

This gets a laugh and applause from the audience — proving perhaps that Romney is playing it the right way for his purposes — but it still doesn't deflect Stephanopoulos, who restates his question again.

STEPHANOPOULOS: I understand that. But you’ve given two answers to the question. Do you believe that the Supreme Court should overturn it or not?...

ROMNEY: Do I believe the Supreme Court should overturn Roe v. Wade? Yes, I do.

Stephanopoulos shouldn't have said "it." He should have said Griswold, but, seriously, do American voters worry about Griswold? Stephanopoulos might be trying to get people worried about contraception, which nearly everyone wants to have available, instead of abortion, which lots of people want to ban, and Romney isn't allowing himself to be dragged into Stephanopoulos's agenda. Romney pulled the discussion in a different direction, a direction that served his political goals and probably won the favor of the actual voters in the audience. In short, he succeeded in making Stephanopoulos look like a pest.

"I believe an individual has the right to use force as a means of protecting themselves, their families, and their homes from aggressors."

So says Wisconsin recall candidate Kim Simac, as quoted in a Capital Times editorial titled "Unlike Simac, Holperin respects the whole Constitution." (Jim Holperin is the Democratic incumbent, representing the Northwoods, where a recall election will take place tomorrow.)

The quote is sound, and I'll bet a lot of people of the Northwoods love it, but the Cap Times is using it to leverage a whole theory that Simac only cares about the Second Amendment.

The pathetic Madison newspaper — does anyone in the Northwoods read it? — begins by joking that Simac is "apparently a graduate of the Sharron Angle School of Constitutional Scholarship" and reminds us that Angle — the Nevadan who tried to unseat Harry Reid in 2010 — once referred to using “Second Amendment solutions” to deal with the excesses of government.  Note, Simac didn't say "Second Amendment solutions." Her quote is about defending life and property from "aggressors," which would make most people think of criminals — attackers and home invaders. If "aggressors" makes you think of the government... you might want to think about joining the Tea Party yourself.

The Cap Times touts Holperin's "record of taking the whole Constitution seriously."

He has championed the right to speak, to assemble and to petition for the redress of grievances. 

Is there any evidence that Simac doesn't respect First Amendment rights? Of course, Holperin has a record: He's been the Northwoods senator for decades. But what has Simac ever done to deserve this smear?

He has worked to protect the right to privacy.

Now, that's a specific aspect of constitutional law that conservatives and liberals disagree on. But it has nothing to do with "the Sharron Angle School of Constitutional Scholarship" and whether one loves some clauses of the Constitution and ignores others. It has to do with how expansively one ought to interpret the Due Process Clause and whether one supports finding constitutional rights when there is no explicit constitutional text. That's a difficult area of constitutional law that is a perennial issue in American political debate. It has nothing to do with Sharron Angle, enthusiasm for gun rights, and the failure to respect the entire Constitution.

The Capital Times — I've said it before — is a rag. It should be ashamed of itself. As we say in Wisconsin: "Shame. Shame. Shame. Shame. Shame."

"Regardless of whether it is a gay or plural relationship, the struggle and the issue remains the same..."

"... the right to live your life according to your own values and faith."

A NYT op-ed from Jonathan Turley, who is the lawyer for Kody Brown, the "Sister Wives" guy who has 4 wives and is suing for the right to be left alone. Note that he's not asking for the state to recognize plural marriage as marriage. He just wants to be rid of the threat of criminal prosecution.

One might expect the civil liberties community to defend those cases as a natural extension of its campaign for greater privacy and personal choice. But too many have either been silent or outright hostile to demands from polygamists for the same protections provided to other groups under [the Supreme Court’s 2003 decision in Lawrence v. Texas].

The reason might be strategic: some view the effort to decriminalize polygamy as a threat to the recognition of same-sex marriages or gay rights generally. After all, many who opposed the decriminalization of homosexual relations used polygamy as the culmination of a parade of horribles. In his dissent in Lawrence, Justice Antonin Scalia said the case would mean the legalization of “bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality and obscenity.”

In his last paragraph Turley says don't be like Justice Scalia. I suspect Turley is reaching out to liberal readers, who presumably would be horrified by sounding like Justice Scalia. That's a good rhetorical move if what's really going on is that liberals resist showing favor to polygamy because it's done by people they don't like: Christianity-motivated traditionalists. 

Turley isn't trying to talk to conservatives, who generally don't mind sounding like Justice Scalia. Indeed, they get ideas about how to think from Justice Scalia.  Conservatives aren't supporting the constitutional right of privacy in other contexts, so there's no hypocrisy to point out.

Turley also isn't talking to libertarians, who should find this issue so easy that no argument is needed. He does say "Civil libertarians should not be scared away by the arguments of people like Justice Scalia," but that usage of the word "libertarian" is different. It means something like liberals who take pride in thinking of themselves as supporting the kind of legal rights that good people are supposed to believe in. That's why — in a NYT op-ed — ugh, you sound like Scalia! is a good argument

A lawsuit challenging Utah's anti-polygamy law, premised on Lawrence v. Texas.

To be filed by Kody Brown, the husband of 4 wives (who starred in the reality show "Sister Wives"):

The lawsuit is not demanding that states recognize polygamous marriage. Instead, the lawsuit builds on a 2003 United States Supreme Court decision, Lawrence v. Texas, which struck down state sodomy laws as unconstitutional intrusions on the “intimate conduct” of consenting adults. It will ask the federal courts to tell states that they cannot punish polygamists for their own “intimate conduct” so long as they are not breaking other laws, like those regarding child abuse, incest or seeking multiple marriage licenses.

Mr. Brown has a civil marriage with only one of his wives; the rest are “sister wives,” not formally wedded. The Browns are members of the Apostolic United Brethren Church, a fundamentalist offshoot of the Mormon Church, which gave up polygamy around 1890 as Utah was seeking statehood.

Making polygamous unions illegal, they argue, violates the due process and equal protection clauses of the 14th Amendment, as well as the free exercise, establishment, free speech and freedom of association clauses of the First Amendment.

“We only wish to live our private lives according to our beliefs,” Mr. Brown said in a statement provided by his lead attorney, Jonathan Turley, who is a law professor at George Washington University.

The connection with Lawrence v. Texas, a case that broadened legal rights for gay people, is sensitive for those who have sought the right of same-sex marriage. Opponents of such unions often refer to polygamy as one of the all-but-inevitable outcomes of allowing same-sex marriage. In his dissenting opinion in the Lawrence case, Justice Antonin Scalia cited a threat to state laws “based on moral choices” against “bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality and obscenity.”

I think the Lawrence-based argument for decriminalizing polygamy is much stronger than the Lawrence-based argument for requiring the government to give legal recognition to same-sex marriage. One is an argument demanding only that the government leave them alone as they pursue their "own concept of existence, of meaning, of the universe, and of the mystery of human life." The other is a demand that the government alter its treatment of its citizens, giving them access to to the benefits of having the official status as a married couple.

"[I]n case you were wondering where the domestic-surveillance component of Wisconsin's continued slouch toward East Berlin was, there you are."

Anti-Walkerites are disturbed that Wisconsin law enforcement is monitoring social media to learn of plans to for direct action like storming the state Capitol. But I think it would be incompetent not to pay attention to these things.

Hey, people, Twitter and Facebook are public speech — quite visible and searchable. The notion that you have an expectation of privacy there is sheer lunacy.

Ask Anthony Weiner.

72-hour wait between consultation and abortion...

... just enacted in South Dakota.

"I think everyone agrees with the goal of reducing abortion by encouraging consideration of other alternatives,” the Republican governor said the statement. “I hope that women who are considering an abortion will use this three-day period to make good choices.”

Lawsuit forthcoming. Under the case law, "the means chosen by the State to further the interest in potential life must be calculated to inform the woman's free choice, not hinder it." So you tell me, why 3 days?

"I’m sad... They’re already talking online, so they don’t need a club."

So said "event organizer" Darwin Bebo, quoted in this article about the obsolescence of "social groups" for gay people.

The tug of war between the virtual and physical worlds is happening in every strata of society, but in the gay community the shift has been especially poignant and with significant implications. Social groups helped start the gay civil rights movement, and in recent decades they have raised millions of dollars for causes like same-sex marriage and the battle against H.I.V./AIDS....

The roots of many gay and lesbian social groups date to when homosexuality was a crime and gatherings were illegal.

“Social groups and networks founded the G.L.B.T. community as early as the 1950s,” said Paul Boneberg, executive director of the GLBT Historical Society. “It represented an ability to find each other.”

I wonder how the gay rights movement would have unfolded if the internet had been available all along. I imagine that gay people would have remained more physically dispersed if they could have found each other and formed relationships on a much more decentralized level. I'm guessing there would have been far less intertwining of gay rights issues and liberal/left politics. The core rights have to do with individual expression in the private sphere. These would have been won without forming large groups that meet in person.

The linked article ends with a second quote from Boneberg: "I don’t see the transition as a weakening of the community." Life on the internet is different. It's weaker in some ways and stronger in others. The "event organizer" is sad. People who used terms like "community" are equivocal. But I'm sure there are plenty of people who don't want to be organized and don't feel like they're in a community just because they have a particular sexual preference. The internet makes you stronger, if you're inclined toward individualism.

If the internet had been around all along, then, many private persons would have created satisfying lives for themselves, and some expressive, individualistic voices would have gained immense influence. And the amassers of groups would have had a lot less to do.

More sex. More speech. Less community organizing.

"The fundamental theory of liberty... excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only."

"The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations."

Pierce v. Society of Sisters (1925).

That's a quote that always jumps out at my when I start into the right of privacy materials in Constitutional Law II, which is what I'm doing this afternoon. The state of Oregon required parents to send their children to public school, and the Supreme Court said they had a substantive due process right to pick private school.