| Wednesday,
May 27, 2009 I suppose I have to write about this.
California Constitution and Prop 8
Jerry,
When you write
"The California Supreme Court has decided
that the California State Constitution is Constitutional under
California State Constitutional Law. Hardly a surprise."
you are, I think, being a bit ingenuous. The
question was not whether a provision in the State Constitution is
constitutional (which invites infinite loops of self-reference and
thoughts of Godel) but whether a proposed provision is consonant with
existing and unquestioned provisions of the State Constitution.
Many have argued that it is not.
That is what the court needed to consider.
Obviously, you agree with the court's decision. But we should be clear as
to what was at issue.
Sincerely,
Joseph
I will confess to being arch, but hardly disingenuous. The Court,
having revised the Constitution by judicial fiat without any legislative
action whatever, was now asked to decide whether an amendment passed by a
vote of the people was an amendment or a revision. That was
the point of law on which the opponents of Proposition 8 sued. But note
that the Court first revised the Constitution by overturning what had been
considered pretty well settled for over a hundred years.
This has nothing to do with the propriety or merits of gay marriage; it
has to do with law. The legislature of the State of California had already
made civil union pretty well equivalent to marriage so far as the rights
of the two parties were concerned. Had the legislature then simply
declared it public law that a civil union could be called a marriage and
that the state could issue a marriage license, that would have been one
thing, and it might even have been possible to maintain that an amendment
overturning that legislation was in fact a revision. It is not an argument
I would support, but it could be argued with some persuasiveness; but
since the whole thing was begun by a drastic revision by the courts
without legislative action, it was a different situation entirely.
We now have to consider what happens if a state of the union decides to
allow polygamy and/or polyandry and/or multiple marriage as in say
Heinlein's "Line Marriage" as described in The Moon is a Harsh Mistress.
If a state does that, what must the other states do regarding full faith
and credit? And is it constitutional? Utah wrote into its state
constitution that it would not allow polygamy, but state constitutions can
be amended; what if Utah does that? Or, less likely but not impossible, a
Muslim group manages to get a law allowing polygamy? Or if a state
legislature, possibly in jest, authorizes marriage at age 10 (I believe
marriage at age 14 with parental consent was legal in several states when
I was growing up)?
The problem with allowing state and federal courts to amend
constitutions without action of the legislature or people is that there
seems to be no limit to what they can do; and once the notion is out that
anything can be legal, the society may not be able to recover from the
resulting loss of respect and awe for constitutions and the amending
process.
The dread secret is that almost any form of government can work, and
there is little a priori to show which is better. "Your fathers swore
allegiance to my father, and you to me, and I am the son of the king" is
no less absurd than "Fifty percent plus one of those who bothered to vote
have chosen me to rule," and neither proposition has more apparent merit
than "We are the best and the brightest, as were our parents; we are the
natural rulers of this land, don't you agree?" Or "The Army has chosen me
to be Emperor. Hail me, or dread the fury of the Legions."
Governments work so long as people will allow them to work. The primary
-- elemental -- political act is that someone gives an order and it
is obeyed. The primary necessity for government is that the loser of the
selection process -- whether election by adult suffrage, election by
manhood suffrage, election by an aristocratic elite, hereditary
aristocracy, monarchy -- that the losers of the selection process stand
down and submit. There is a certain degree of magic in that. The United
States has been fortunate that for most of its history the losers of
elections have submitted, and they did so back in the times when there
were qualifications for being a voter as well as in more "progressive"
times when place of birth and age are the only qualifications. When people
begin to question the reason for obedience, a republic is in danger,
because there will inevitably arise an issue people feel very strongly
about.
Abortion is one of those: a court, without any legislative authority,
found that not only had there been a "right to choose" lurking in the
Constitution of 1789 as Amended, but that this right superseded the
Constitution itself which gave no authority to Congress or the Federal
Government on the subject of abortion -- and when that Constitution was
adopted and the relevant amendments were adopted, every state in the land
and the Federal government as well had severe restrictions or absolute
prohibition on abortion.
Clearly any state could have simply repealed all its laws against
abortion; but none had done so. The Court acted without legislation. The
result may have been right and proper and moral; but it did not strengthen
faith in constitutional rule.
Gay marriage is another of those issues best left to state legislatures
-- and, we note, at least one state has acted legislatively in the matter.
The proponents and opponents of Proposition 8 (which for those few who
don't know, successfully overturned a California Supreme Court finding of
a right to gay marriage in the state constitution by amending the state
constitution to forbid gay marriage) all feel very strongly on the issue.
I am far more concerned that there be a rule of law, and that matters be
settled by constitutional means, and bringing up a law suit to find an
amendment to the constitution unconstitutional is not, in my judgment,
helpful.
================
On Sotomayor
She is likely to be about as good as we are likely to get, and far
better than I had expected. Of course she leans liberal; anyone Obama
nominates will. But she appears to have a legal turn of mind and be sound
in reasoning.
I did find this:
COPYRIGHT CASE
* Freelance journalists had sued the New York
Times Company for copyright infringement because the Times included in an
electronic database the work of the authors it had published.
Sotomayor as a trial judge ruled that the
publisher had the right to license the work of the freelancers, in a
decision that limited the copyright rights of the authors.
Her decision was reversed on appeal, and the
Supreme Court in 2001 upheld the reversal.
and
The case was initially heard in the district
court of judge Sonia Sotomayor, who held that the publishers were within
their rights according to the Copyright Act of 1976. This decision was
reversed on appeal, and the Supreme Court affirmed the appellate court's
reversal.
This is the Tasini case. Francis Hamit knows far more than I do. I have
asked him for a comment.
Of course a trial finding in a copyright case is not definitive; and
being reversed is not a disgrace. I found it interesting when I heard that
she had presided over Tasini.
================
I wish Rush Limbaugh would find himself a physicist advisor. Or at
least someone who took college physics. Some of his political analysis of
the environmental movement is correct -- see Pournelle's Iron Law of
Bureaucracy -- but his rant on painting roofs and roads white or at least
a lighter color betrays a rather profound misunderstanding. At least this
is a misunderstanding: I doubt it's the willful ignorance we get from many
of the global warming alarmists. Rush ought to know better, but many of
the global warming alarmists do know better.
He asks where the reflected heat from white roads would go. The answer,
of course, is that the UV and visible light components of solar radiation
would not be absorbed into the road to be turned in to heat but rather
returned to outer space, after which we don't really care where it goes.
With darker roads and roofs the UV and visible light components are
absorbed and become heat. Now some of that heat is re-radiated toward
space. If there is water vapor, methane, or CO2 in the atmosphere over the
re-radiating surface, then some or all of the IR radiation will be
absorbed as heat; this is the theory of CO2-caused global warming. (It's
also how greenhouses work, sort of: visible light and UV come in, are
absorbed as heat, and the resulting IR is absorbed by the glass before it
can get out. (I say sort of because the insulation and lack of wind in the
greenhouse plays a very important part of keeping it warm.)
That theory of CO2-caused warming is known to be flawed: Historically,
CO2 levels rise after warming, not before, which isn't astonishing
given that the oceans are CO2 sinks, and warm liquids hold less dissolved
CO2 than cold ones (as you know from leaving a carbonated drink out to go
flat). Freeman Dyson points out that water vapor is so much more efficient
as a green-house gas than CO2 that CO2 cannot have much effect in any but
cold, dry areas.
Limbaugh is right in saying that many of those on the "climate change"
bandwagon are actually motivated by rent and power seeking schemes and
neither know nor care about the actual science. I doubt that is true of
Chu, who is in a very uncomfortable situation. Of course he wants grants
for the national laboratories, and to get those he has to sail pretty
close to the edge of real science. I'd like to see the national
laboratories kept together too. They're national treasures. But I would
fund them through a different process rather than making the Energy
Secretary dance to political tunes.
=================
There is
considerable mail
today, on many subjects including
a ramble -- it's not well enough organized to be called an essay -- on
rights and courts.
===================
The following is a press release. I do not usually run press
releases here, but this may be of interest.
New PHP/SQL Programming Certificate Series
available from the O'Reilly School of Technology
Full Press Release: <http://www.oreilly.com/emails/press/php-sql-programming.html>
.
New PHP/SQL Programming Certificate Series
available from the O'Reilly School of Technology PHP/SQL Certification
Arms Aspiring Software Developers with Valuable Skills for a Web 2.0 World
<http://www.oreillyschool.com/> Sebastopol,
CA—Some people dismiss the term "Web 2.0" as meaningless buzz or hype--or
even yesterday's outmoded concept--but the reality is that the concepts
behind Web 2.0 are in full-force in the real world right now. From the
smallest start-up business to the 2008 Presidential campaign, many are
actively seeking a way to harness these still-relatively-new
ideas--collective intelligence, rich user interface, lightweight
programming models, and user-contributed data, among others--to
revolutionize how they engage the public toward their own goals.
The O'Reilly School of Technology (OST)
<http://www.oreillyschool.com> has announced a new PHP/SQL Programming
Certificate <http://www.oreillyschool.com/certificates/php-sql-programming.php>
designed to help students move into the Web 2.0 world. The series is
comprised of four courses that take students from an introduction to PHP
and database programming through seamless Web 2.0 integration.
"Because the Web has evolved to this point,
it's not enough to be a web developer with knowledge of only one or two
isolated skills. Rather, developing for a Web 2.0 world requires a
complete understanding of how the back end, front end, databases, and web
services all fit together within the overall business goals of a website
or application," says Trish Gray, developer of the new series.
According to Gray, the successful web
developer ends up being far more than a programmer--graphic design,
database theory, and system administration all begin to bleed over into
the traditional tasks of building clean, reusable and portable code. "Add
to that the high-level concepts behind Web 2.0 itself, and suddenly the
idea of breaking into Web development--or even updating the skills of a
current developer--seems daunting," she adds. "Job descriptions give a
laundry-list of skills and use the nebulous Web 2.0 term liberally,
assuming everyone knows what it means. But where do you begin?"
Gray designed the new OST Certificate Series
with these ideas in mind. Many languages and frameworks can add to the
skill set she describes, but PHP and SQL were selected because they form
part of the open source LAMP-stack framework (specifically, PHP and MySQL:
Linux-Apache-MySQL-PHP), a framework that's easy to use, flexible, and
free. In addition, they've been around for a relatively long time, they
fit perfectly within a web developer's toolbox of web services, APIs,
lightweight programming models, AJAX, and other shared code and/or
protocols. <snip>
=======================
I received mail about one of the items in the Chaos Manor
Reports section of this blog; I had sort of forgotten those were there. This
place does get complicated. If you have nothing better to do, you might look
at the Summary Page for Chaos
Manor Reports. If anyone is curious about where Niven and I take our
walk when we go up the hill,
there's a long photo essay in the reports. It includes pictures of the
Dragon House where Carmen Dragon grew up and where his son Daryl ("the
Captain") married Toni Tennille.
===============
There are also photos and noted about my trip to Japan, and
other such matters. I have just read over the Japan trip notes and pictures,
(1) and
(2), and I found them
interesting. I had forgotten much of this.
Wednesday TOP
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