Tuesday, June 30, 2015

My family's Fourth of July celebrations were.....desultory, at best. Most years, my parents would haul the family to my maternal grandparents' home in Watford City, North Dakota, (population 1,250) the last week of June. I had few cousins living there, and almost none of them my own age. My parents mostly went so that they could see my dad's two brothers and my mom's aunts, uncles, and cousins.

Watford was a small town with nothing to do during the summer. My parents were terrified that us kids would go down the hill below my grandparents' house and run into the high-speed traffic on Highway 85. Just why they thought we'd be so stupid is beyond me...

There was, however, a really old, decrepit Dairy Twist stand down at the bottom of the hill (a good two blocks from the highway), and sometimes my parents or grandparents would give us a dollar to go down and buy ice cream cones.

The real high point of Independence Day in Watford was fireworks. North Dakota had one of the most lax fireworks laws in the nation, and they permitted M-80s, firecrackers, lady-fingers, bottle rockets, Roman candles, much more. (That's no longer true, but it once was.) Fireworks were cheap, but my parents' income was even cheaper, so we kids mostly had to hoard our cash for months in order to afford them. (I got $2 a week for vacuuming the back stairs, taking out garbage, and mowing the lawn. My next-younger brother did nothing, and also got $2 a week.)

The fireworks stand opened 10 days before the Fourth of July, and stayed open until July 5.

On Independence Day itself, we'd sleep in late. There was generally no lunch, as my grandfather would start up the grill about 3 PM. It was a brick grill he'd built himself in the back yard. Around a tree in the front yard, he'd built a picnic table. Hamburgers, hot dogs, grilled buns, and grilled ears of corn would come off the grill about 4 PM. My grandmother would make potato salad, green salad, and apple pie. The hot food had to be carted around the house to the picnic table, which usually meant that a couple hot dogs and burger patties fell to the ground (where our dog gorged on them).

Dinner was done about 6 PM, and we got vanilla ice cream with apple pie.

Then it was an interminable wait for dark, as my parents and grandparents sat around on lawn chairs and enjoyed the summer heat, after-dinner coffee, and conversation.

We'd start lighting off firecrackers and explosives about 8 PM, and the fountains, Roman candles, and bottle rockets about 9 PM. It was all over by 11 PM.... We'd get another small piece of pie and a small scoop of ice cream, and then it was off to bed.

In my late teens, my parents would sometimes delay the trip to Watford until after Independence Day, largely because they were concerned we'd blow off our fingers with fireworks. (During one such stay-at-home Independence Day, my next-youngest brother decided to set off a Whistling Jupiter rocket with a match. It severely burned his hand, and he had to be taken to the hospital.) By this time, I had a part-time job and could afford a lot more fireworks. My brother was wheedling a hundred dollars a month out of my parents, too, so we always had stuff to shoot off.

Montana had stricter fireworks laws, but still permitted things like smoking capsticks (if you opened them up, you could retrieve the lady-finger inside), smoke bombs, black magic snakes, endless kinds of fountains, and rockets like Jupiters and Silver Jets and parachutes (smoking, Army man, and fizzing). Montana used to allow firework stands to open 14 days before the Fourth, so we had plenty of time to buy stuff, blow it off, and buy more stuff. The best firework stands were on the outskirts of town, where they sold stuff that really pushed the limits of the law.

Beginning in 1976, my home town of Great Falls, Montana, started having an annual fireworks display. My parents would generally ignore the Independence Day holiday, refusing to cook anything except the regular fare we had in the house. If I wanted to, I could fire up the gas grill on the deck and make hamburgers, but that was the extent of our food preparations.

Just before dusk, my parents would then load us into the car, and we'd drive out 38th Street N. until there weren't any houses (there are tons there now), pull off on the west side of the road, and sit among the hundreds of other cars to watch the fireworks display.

Then it was back home, to light off the remainder of our fireworks in the driveway and street until 1 AM.





An American rubyspot damselfly. Despite being one of the most common damseflies in North America, they are incredibly hard to photograph as they heartily dislike being approached.

Damselflies are similar to dragonflies, but are smaller and have slimmer bodies. Most damselflies fold the wings along the body when at rest. Damselflies have existed since at least the Lower Permian era (300 million 252 million years ago), and are found on every continent except Antarctica.


June 30, 1865 -- The United States Army military tribunal overseeing the trial of the Lincoln assassination conspirators handed down its verdit: Mary Surratt, Lewis Powell, David Herold, and George Atzerodt were guilty, and should suffer death by hanging.

The trial of the alleged conspirators began on May 9. They included Mary Surratt (in whose boarding house the men had met, and whose home in Surrattsvile, Md., had been used as a safehouse by John Wilkes Booth as he fled D.C.), Lewis Powell (who had attempted but failed to kill Secretary of State Seward), David Herold (who assisted Powell, and fled with Booth), George Atzerodt (who was to have killed Vice President Johnson, but instead got drunk in a bar), Dr. Samuel Mudd (who treated Booth's broken leg at his home in Maryland), Samuel Arnold (an original conspirator who dropped out before Booth proposed murder), Michael O'Laughlen (another earlier conspiracy drop-out, like Arnold), and Edmund Spangler (a stagehand at Ford's Theatre who unwittingly aided Booth the night Lincoln died).

Most of the conspirators had been arrested within days of Lincoln's death, except for Booth (who died in Virginia) and Herold.

A military tribunal, rather than a civilian court, was chosen as the venue because government officials thought that its more lenient rules of evidence would enable the court to get to the bottom of what was then perceived by the public as a vast conspiracy. All eight alleged conspirators were tried simultaneously.

Initially, all the male prisoners were housed aboard ironclad monitors in the Potomac River so as to make it impossible for them to escape or be freed. On April 22, Lewis Powell repeatedly banged his head into the iron walls of his cell aboard the "USS Saugus". Whether this was a suicide attempt (as his jailers believed) or not, it deeply alarmed military officials. A canvas padded hood, with only a slit for the mouth and nostrils, was fashioned. Powell and all the other prisoners aboard the monitors were forced to wear them 24 hours a day, seven days a week, to prevent any further suicide attempts. Only Mary Surratt and Dr. Mudd were not required to wear the hoods. The hoods were hot, claustrophobic, and uncomfortable, and in the humid confines of the monitors in the steaming Washington summer the prisoners suffered immensely. On June 6, Hartranft ordered them removed -- except for Powell's.

On April 29, the prisoners were moved to the Washington Arsenal (now Ft. Lesley J. McNair), where a former dormitory was rigged as a prison. Two armed guards stood before the door of each cell, which was sparsely furnished with a straw mattress, table, wash basin, chair, and a bucket. Food was served four times a day, and consisted of the same thing each time: Soft bread; salt pork, salt beef, or beef soup; and coffee or water.

All the male prisoners were constantly shackled with a form of manacles known as "lily irons", a riveted handcuff that had two separate iron bands on each wrist that prevented bending of the wrist or use of the hands independently. A heavy iron ball at the end of a 6-foot-long chain was manacled to one leg. Shackles were riveted closed about the ankles, which caused the feet to swell considerably.

The prisoners were not permitted to bathe or wash until May 4, at which time all bindings and clothes were removed and they were permitted to bathe in cold water in the presence of a soldier. About this same time, General John F. Hartranft, special provost marshal overseeing the prisoners, began improving the living conditions. The prisoners began to receive fresh clothing (including undergarments) more frequently, more food, and writing instruments (paper, pen, ink). Living conditions improved again on June 18, when the prisoners were given a box to sit on, outdoor exercise time each day, and reading material and (for the men) chewing tobacco after each meal.

A room on the northeast corner of the third floor of the Arsenal building was made into a courtroom, and the prisoners were brought into the room through a side door -- which prevented them from passing by or being harassed by spectators. An armed guard sat on either side of each prisoner (except for Mrs. Surratt), and all the male prisoners wore wrist and ankle manacles in the courtroom. Surratt was so ill the last four days of the trial that she was permitted to stay in her cell.

The trial ended on June 28, 1865.



The military tribunal considered guilt and sentencing on June 29 and 30. A death sentence required six of the nine votes of the judges. Surratt's guilt was the second-to-last considered, because her case presented problems of evidence and witness reliability. Sentence was handed down June 30, and the sentences announced publicly on July 5.

Captain Christian Rath oversaw the execution. Construction of the gallows began immediately on July 5 after the execution order was signed by President Andrew Johnson. It was constructed against the east wall of the Arsenal courtyard, somewhat close to the Arsenal Building. The gallows were 12 feet high and about 200 square feet in size. Captain Rath made the nooses. Tired of making nooses and thinking that the government would never hang a woman, he made Surratt's noose the night before the execution with five loops rather than the regulation seven. He tested the nooses that night by tying them to a tree limb and a bag of buckshot, then tossing the bag to the ground (the ropes held). Civilian workers did not want to dig the graves out of superstitious fear, so Rath asked for volunteers among the soldiers at the Arsenal and received more help than he needed.

The prisoners were informed of their execution at noon on July 6.

The soldiers began testing the gallows about 11:25 A.M. on July 7; the sound of the tests unnerved all the condemned. The heat in the city that day was oppressive. By noon, it had already reached 92.3°F (33.5°C). The guards ordered all visitors to leave at 12:30 P.M.

On July 7, 1865, at 1:15 P.M., a procession led by General Hartranft escorted the four condemned prisoners through the courtyard and up the steps to the gallows. Each prisoner's ankles and wrists were bound by manacles (including Surratt's), and Surratt led the way. More than 1,000 people -- including government officials, members of the U.S. armed forces, friends and family of the accused, official witnesses, and reporters -- watched. General Hancock limited attendance to those who had a ticket, and only those who had a good reason to be present were given a ticket. (Most of those present were military officers and soldiers, as fewer than 200 tickets had been printed.)

Alexander Gardner, who had photographed the body of Booth and taken portraits of several of the male conspirators while they were imprisoned aboard naval ships, photographed the execution for the government. Hartranft read the order for execution. Surratt, either weak from her illness or swooning in fear (perhaps both), had to be supported by two soldiers and two priests. The condemned were seated in chairs, Surratt almost collapsing into hers. She was seated to the right of the others, the traditional "seat of honor" in an execution. White cloth was used to bind their arms to their sides, and their ankles and thighs together. Each person was ministered to by a member of the clergy. About 16 minutes elapsed from the time the prisoners entered the courtyard until they were ready for execution.



A white bag was placed over the head of each prisoner after the noose was put in place. Surratt complained that the bindings about her arms hurt, and the officer preparing her said, "Well, it won't hurt long." Finally, the prisoners were asked to stand and move forward a few feet to the nooses. The chairs were removed.

The condemned stood on the drop for about 10 seconds, and then Captain Rath clapped his hands. Four soldiers of Company F of the 14th Veteran Reserves knocked out the supports holding the drops in place, and the condemned fell. Surratt slid partway down the drop, her body snapping tight at the end of the rope. Then she was still. Atzerodt's stomach heaved once and his legs quivered, and then he was still. Herold and Powell struggled for nearly five minutes, strangling to death.

The bodies of the executed were allowed to hang for about 30 minutes, and then each body was inspected by a physician to ensure that death had occurred. The bodies began to be cut down at 1:53 P.M. A corporal raced to the top of the gallows and cut down Atzerodt's body, which fell to the ground with a thud. He was reprimanded, and the other bodies cut down more gently. Herold's body was next, followed by Powell's. Surratt's body was cut down at 1:58 P.M. As Surratt was cut loose, her head fell forward. A soldier joked, "She makes a good bow" and was rebuked by an officer for his poor use of humor.

Upon examination, the military surgeons determined that no one's neck had been broken by the fall. The manacles and cloth bindings were removed (but not the white execution masks), and the bodies were placed into the pine coffins. The name of each person was written on a piece of paper by acting Assistant Adjutant R. A. Watts, and inserted in a glass vial (which was placed into the coffin). The coffins were buried against the prison wall in shallow graves, just a few feet from the gallows. A white picket fence marked the burial site. (Booth's body was laid in a room in the Old Penitentiary, near the U.S. Capitol. The body of Capt. Henry Wirz , commander of the notorious Confederate prison camp at Andersonville, was buried next to the conspirators in November 1865.)

In 1867, the War Department decided to tear down the portion of the Washington Arsenal where the bodies of Surratt and the other executed conspirators lay. On October 1, 1867, the coffins were disinterred and reburied in Warehouse No. 1 at the Arsenal, with a wooden marker placed at the head of each burial vault. (Booth's body was laid there, too.) In February 1869, Edwin Booth asked President Johnson for the body of his brother. Johnson agreed to turn the bodies over to each family.

It's unclear what happened to Powell's body. But the most likelyl scenario has Powell buried at Holmead's Burying Ground in D.C. (just south of what is now the Capital Hilton) in either June 1869 or February 1870. A.H. Gawler of Gawler's Funeral Home handled the reburial. The burial site was unmarked, and only Gawler and a few Army personnel knew where Powell was interred at Holmead's. Holmead's closed in 1874, and for the next decade bodies were disinterred and reburied elsewhere. According to the "Washington Evening Star" newspaper, Powell's body was exhumed by Gawler's on December 16, 1884. The identifying glass vial was recovered, but the paper it was supposed to contain was missing. Historian Wesley Pippenger asserts that Powell's remains were then buried at Graceland Cemetery in Georgetown. When Graceland closed in 1894, unclaimed white remains were moved to mass graves at Rock Creek Cemetery. Powell's remains may lay there in Section K, Lot 23. Much more certain: Gawler removed the skull at the time of its 1869/1870 interment. The skull was then donated in 1885 to the Army Medical Museum. At that time, it was stenciled with the accession number 2244 and the capital letter "P". The museum's documentation shows that the skull came from "Payne', a criminal who had been executed by hanging. The Army gave the skull to the Smithsonian on May 7, 1898, and somehow it became mixed with the Native American collection. In 1991, a Smithsonian Institution researcher discovered Powell's skull, and it was returned to the Powell family. On November 12, 1994, Lewis Powell's skull was buried next to the grave of his mother, Caroline Patience Powell, at Geneva Cemetery in Geneva, Florida.

Mary Surratt was buried in Mount Olivet Cemetery in Washington, D.C., on February 9, 1869. (Her primary accuser, John M. Lloyd, is buried 100 yards from her grave in the same cemetery.)

George Atzerodt was interred in Glenwood Cemetery in Washington, D.C., but the site of his burial is not known.

David Herold's remains were placed in an unmarked grave next to his father, Adam, in Congressional Cemetery in Washington, D. C. A gravestone was finally erected over him in July 1917, at the time of the burial of his sister Mary Alice (nee Herold) Nelson.

What remains of the Arsenal Building is now Ulysses S. Grant Hall at Ft. McNair. A replica of the courtroom, in its original location, was constructed there in 2014.

The site of the scaffold and original burial plots is a now grassy space located between the tennis courts and 3rd Avenue, south of Grant Hall.

Warehouse 1 was located southeast of the penitentiary. It is now a parking lot bounded by 4th Avenue on the west and the James Creek Marina on the east.

What's wrong with Firefox????? Every time I have multiple tabs open and close one of them, the browser freezes for up to 30 seconds....sometimes longer.
I refuse to post these to the front page of Wikipedia any more. But I will post them here. The article I wrote or assisted with is in bold.
Did You Know ... that unlike most roadways named after states in the District of Columbia, Ohio Drive is not an avenue, nor it is heavily used like Wisconsin or Rhode Island Avenues?
WHOOOOOOOOOOOOOOOOOOOOOOOOOOO!!!!!!!!!!!!!!!!!!!!!!!!!!!

Short. Very very cute. Muscular. Incredible legs. Incredible shoulders. Incredibly fat, bulging package. Brunette. Small, hard-as-diamond nipples. Great eyes.

I bet he's got his long, thick cock into some boy or girl every day of the week at the college he attends.


Sunday, June 28, 2015

That's going to require a tetanus shot, I'm sure. And some antibiotics. A couple rounds, at least.


Saturday, June 27, 2015

John Roberts' dissent in Obergefell v. Hodges, PART TWO................

We know the history of Lochner-era jurisprudence. Does Chief Justice John Roberts?



Roberts begins with a three-page long rant about judicial restraint and how male-female marriage underlies the concept of marriage everwhere, thoughout time. Leaving aside from the hundreds of cultures throughout history which have accepted same-sex marriage, what you'll hear over and over from commentators and news sources is how Roberts' dissent is all about judicial restraint. And it is. But what's unsaid is just how revolutionary Robert's approach is.

Over in the Scalia dissent, we get the same frothing-at-the-mouth that Scalia is famous for. There's little in the way of legal analysis, but a lot of hoo-hah about "tradition" and "religion". Over in the Thomas dissent, what little there is of it, we get a Justice of the Supreme Court attempting to explain that the Holocaust and slavery were not demeaning. (What planet does he live on?) Over in the Alito dissent, we get a wild legal tangent that Roberts cannot bring himself to join.

The whole "judicial restraint" idea is nice and all. But how in the world does one actually determine that X is judicial activism and Y is judicial restraint? Up to now, all we've had are fits from Scalia/Thomas/Alito appealing to "tradition". But tradition itself is hardly an appropriate measure of constitutionality, is it? For it has long been traditional to discriminate against blacks, Asians, and Latinos in this country. It has long been traditional to deprive criminals of their rights. It has long been traditional to discriminate against women, and traditionally this country never permitted uncontrolled weapons ownership and display of the type authorized by the Supreme Court in District of Columbia v. Heller, 554 U.S. 570 (2008).

There has long been a tension between what is right, and what is tradition. In America, rights have evolved as society has revolved, and it has long been a legal maxim that "justice delayed is justice denied." Thus, at times, the courts have gotten ahead of the democratic process, and established rights which have only recently emerged or gained currency with the public. Brown v. Board of Education, 347 U.S. 483 (1954), is one such case. MANual Enterprises v. Day, 370 U.S. 478 (1962), in which the Supreme Court held that nude photographs of men are not per se obscene is another. Griswold v. Connecticut, 381 U.S. 479 (1965), in which the Supreme Court overtuned a ban on condom sales after finding a right to privacy, is another. Roe v. Wade, 410 U.S. 113 (1973), in which the Supreme Court found that the right to privacy included the right to an abortion, is another.

We immediately encounter another tension, however: Just how far out in front can the Supreme Court get? The "rule of law" is the idea that we all agree to respect a court's decisions. After all, a court does not have an army to enforce its rulings. As President Andrew Jackson, ignoring a Supreme Court decision, once said, "If the Supreme Court wants to enforce its ruling, it can come on down here and do so." The legitimacy of courts must remain above question if the rule of law is to remain intact.

Legal scholars have long worried about the effect of Brown v. Board of Education. To judges and legal scholars, it was clearly coming: For three decades, the NAACP had been winning court cases which desegregated law schools... then all professional schools.... then all graduate schools.... then all undergraduate schools.... It was just a matter of time before the Supreme Court barred segregation in elementary and secondary school. To the public, however, Brown v. Board of Education was shocking and new. It created a huge backlash against the civil rights movement which undoubtedly led to the death of the movement in the late 1960s. Roe v. Wade is another example. This was a decision that was way, way ahead of its time. To this day, there is a roiling national debate over abortion, and even the courts have been whittling the right down to next to nothing.

If you're a "judicial restrainer", you have a pat answer: The Court never gets out ahead of the public. It waits for broad, unassailable consensus, and then acts.

But "justice delayed is justice denied". The role of the courts is not, and never has been, to protect the rights of the majority. It has been to protect the rights of the minority, the downtrodden, the oppressed, the dispossesed, those to whom justice -- as an abstract principle, not a vote by majority rule -- has been denied.

So let's see how John Roberts deals with this.



* * * * * * * * *



Section I(A) of the Roberts dissent begins with unsubstantiated claims about how marriage has only been between a man and a woman "for millennia", and how it arose merely to encourage procreation and the raising of children in a stable home. "Society...," he claims, even goes so far as to encourage "men and women to conduct sexual relations within marriage rather than without." Roberts quotes several sources, all several hundred years old, as to the importance of male-female, procreative, child-rearing marriage.

It's fallacious, of course. The term "marriage" is only of somewhat recent vintage in the long history of mankind, and its meaning and form have varied immensely "for millenia" and across the world. Similarly, procreation has also occurred far outside the distinctly Western European Judeo-Christian tradition of marriage, and the acceptance of adoption and the development of a vast array of medical procedures to allow single people to procreate have fundamentally changed what it means to "have children".

Roberts acknowledges that changes to the definition of marriage have occurred in the past two centuries. He claims none of these -- such as treating women as property, or miscegenation (interracial marriage) were central to the definition of marriage as one man, one woman. That's nonsense, of course: Ask the state of Virginia in 1967 whether same-race-only marriage was "core" to the definition of marriage (Loving v. Virginia, 388 U.S. 1 [1967]), and they'd have said yes. Roberts is fond of asking, "If you had asked a person on the street how marriage was defined, no one would ever have said, 'Marriage is the union of a man and a man'". But then, prior to 1865, no one would have said "Blacks are people" or "slavery is wrong".

But notice how there's no legal analysis here? Just whining. Just pontificating.



* * * * * * * * *



Section I(B), Roberts briefly reviews the recent history of the gay marriage debate, including how many states banned it (statutorily and constitutionally) while others did not. Roberts ignores the effects of the Supreme Court's own ruling in Lawrence v. Texas, 539 U.S. 558 (2003), which gave impetus to the movement toward approval of gay marriage. And he ignores the larger question as to whether it is appropriate, in a democracy where rights are constitutionally protected, or seemly to have states voting on the human and civil rights of a large minority of its people.



* * * * * * * * *



Section II(A) of the Roberts dissent is the craziest, but it's the one where he lays out the core of his new conservative ideal.

Roberts acknowledges that certain rights -- like freedom of association -- are enumerated in the constitution, but are useless with other, unenumerated rights (such as the right to privacy). Identifying these unenumerated rights is what's called "Substantive Due Process", and Roberts doesn't like it one damn bit.

Roberts correctly decries Supreme Court cases like Dred Scott v. Sandford, 60 U.S. 393 (1857) (holding that a slave-owner does not relinquish his property interest in slave merely by taking that slave into a state where such property rights are barred) and Lochner. He even notes that, in the three decades after Lochner, the Supreme Court struck down nearly 200 laws using its "freedom of contract" theory.

But now Roberts grossly misconstrues Lochner. Lochner was about the application of a single right ("freedom of contract") generated by Substantive Due Process. Even assuming that right existed, the application of that right was routinely held to trump every other right in the Constitution. There was no balancing of rights; there was no possible way for the right to be burdened. "Freedom of contract" won every time. That's why Lochner is so vilified today.

Since NLRB v. Jones & Laughlin Steel, the Supreme Court has understood that Substantive Due Process still has a role to play. But the Court has fashioned two rules to ensure that any rights identified using Substantive Due Process are balanced with other rights. When it comes to economic liberty, the Court has applied a "rational basis test" to any burden on the right. When it comes to civil and human rights, the Court has fashioned a "strict scrutiny" test. Under strict scrutiny, the burden is on the government to prove that the infringement was based on a compelling governmental interest, the policy was narrowly tailored to achieve that goal, and the policy is the least restrictive means for achieving that interest.

Roberts ignores all of that.

Instead, Roberts relies almost exclusively on a single phrase found in Washington v. Glucksberg, 521 U.S. 702, a 1997 case in which the Supreme Court found that there was not constitutionally guaranteed right-to-die. Justice Samuel "NO! NO! NO!" Alito wrote that Substantive Due Process protects only those rights "objectively, deeply rooted in this Nation's history and tradition" and "implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed." Interestingly, the first, and critical, part of Alito's test is not integral to the ruling in Glucksberg. It's nice phraseology, but not important to the ruling itself. It's what legal scholars call dicta, and can't be relied on to guide future legal reasoning. Yet, Roberts blatantly violates this rule, and relies once more on an indefinable, unrecognizable, tainted view of what constitutes "tradition".



* * * * * * * * *



In Section II(B)(1), Roberts whines that the majority in Obergefell v. Hodges fails to acknowledge his flawed analysis. He correctly observes that the majority opinion relies heavily on three cases: Loving v. Virginia; Zablocki v. Redhail, 434 U.S. 374 (1978); and Turner v. Safley, 482 U.S. 78 (1987). Loving overturned a state's prohibition on interracial marriage. Zablocki said Wisconsin could not stop a person (in arrers on child support) from marrying. Turner said a prison could not prevent an inmate from marrying. Roberts claims these three cases "require a State to justify barriers to marriage as that institution has always been understood." But that's not what they say at all. They mere require a State to justify barriers to marriage PERIOD. Not "as that institution has always been understood."

Roberts consistently reads into the cases something that is not there. He argues that these three cases define marriage as a certain way, and that government's barriers to marriage did not challenge the "core" definition of marriage as a man and a woman.

But he's just dead-wrong. The cases said NOTHING about the definition of marriage. They merely addressed whether government's burden on the right to marry passed the "strict scrutiny" test. In none of the three cases could that burden be justified.

Roberts claims "These precedents say nothing at all about a right to make a State change its definition of marriage", and yet that's exactly what was at issue in Loving. He's dead, straight, outright incorrect and in error.



* * * * * * * * *



In Section II(B)(2), Roberts tries to attack the right to privacy. His bald-faced claim is that "the marriage laws at issue here involve no government intrusion." But they do. Roberts conceives of governmental burden only in terms of crime and punishment. He cannot see that marriage pre-existed the state and its laws, and that state regulation of marriage expressly burdens that right.

Roberts denies that Obergefell at al. sought privacy from state intrusion. Rather, Roberts sees only greedy, grasping fags trying to snuffle into the trough of government largesse.



* * * * * * * * *



Section II(B)(3) of the Roberts dissent returns to Glucksberg, which Roberts horribly mischaracterizes as the "leading" case on modern Substantive Due Process. Roberts tries to tie the majority's ruling to Lochner, accusing the majority (once again) of engaging in unrestrained Substantive Due Process. The problem for Roberts (which he can't bring himself to acknowledge) is that the majority quite clearly applied the strict scrutiny test -- as outlined in prior marriage cases -- and found the government's intrusion into marriage offensive to the Constitution. The problem for Roberts is that Lochner applied only one specific kind of liberty -- "freedom of contract" -- to government intrusion, and then misapplied that liberty to find the governmental intrusion unconstitutional. The majority in Obergefell did not apply "freedom of contract", nor did it apply it without restraint (e.g., it used the strict scrutiny standard).

Roberts then goes on to argue that gay marriage will lead to polygamy. It's claim even Roberts then admits is nonsense, but he raises the bugaboo anyway.



* * * * * * * * *



Section II(B)(4) of the Roberts dissent addresses the issue of harm. Remember how, in Section I(A), Roberts talked about how the sole purposes of marriage were to (i) encourage procreation and (ii) encourage the raising of children in a stable environment? He forgets this now, but in fact religious conservatives said in their amicus briefs that gay marriage would, in fact, lead to a drop-off in procreation and lead to the raising of childre in unstable gay environments. These two goals could be a "compelling governmental interest" (as defined by the "strict scrutiny" test), but the majority found that no harm existed.

Roberts, however, pooh-poohs the "strict scrutiny" test by calling "this assertion of the 'harm principle'...more...philosophy than law."

Roberts essentially rejects the "strict scrutiny" test. To his peril.



* * * * * * * * *





Section III of the Roberts dissent addresses the issue of the "Full Faith and Credit Clause" (FFCC) of the Constitution. Article IV, Section 1 of the Constitution reads: "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state." Thus, a marriage recognized in one state should be recognized by another.

Now, oddly, right at the top of Section I(A), Roberts says, "There is no serious dispute that, under our precedents, the Constitution protects a right to marry and requires States to apply their marriage laws equally." Loving not only struck down interracial marriage as an impermissible burden on the right to marry, but ordered states to recognize interracial marriages made in other states.

Yet, here, Roberts ignored both Loving and his own assertion about the FFCC. Instead, he relies on a concurrence by Sandra Day O'Connor in Lawrence in which she asserts, in a conclusory fashion, that preserving the traditional definition of marriage was a legitimate state interest. This "conclusory" statement was something Roberts snarled at just three sentences earlier, but I guess it's OK when someone does it in a way that justifies his own line of thinking... Huh.



* * * * * * * * *



In Section III of his dissent, Roberts goes on a long, five-and-a-half page rant about how the Supreme Court can't too far out ahead of the public without undermining its legitimacy and the rule of law. Roberts characterizes the majority decision as "drastic", "extravagant", undemocratic, "demeaning", close-minded, and more. He never establishes a legal, policy, or even constitutional -- much less common sense -- rule for deciding when a court goes too far.

Instead, Roberts establishes a view of civil rights in which society creates rights by mob rule, and just as easily destroys them. He has a vision of the debate over gay marriage as one that is serious, deliberative, and thoughtful. He characterizes the homophobic activities of Russia and several African dictatorships engaged in gay-bashing and the executiion of homosexuals as "democratic". Judges should act.... well, he never quite says when they should act. The courts, in his conception of things, is utterly reactive and merely ratifies what mob rule has established (or dis-established).

Roberts excoriates the majority for opening up new avenues for lawsuits over the "new right" established by the majority. Somehow, that's a bad thing, this expansion of freedom...

Friday, June 26, 2015

The U.S. Supreme Court issued its ruling in Obergefell v. Hodges, the gay marriage cases. Court rulings are not intended to be good literature; they're intended to be sound legal documents. yet, Justice Anthony Kennedy's majority opinion Obergefell v. Hodges is not only good law but a powerful, ringing endorsement of liberty. It's good reading.

Interestingly, there is a huge split among the Supreme Court's conservative justices. Chief Justice John Roberts wrote a dissent -- but only Antonin Scalia and Clarence Thomas joined it. Not Samuel Alito. Scalia wrote a typical foaming-at-the-mouth dissent, but could only get Thomas to join it. Thomas wrote a pathetic dissent in which he said being in Auschwitz or slavery was equal to homosexuality, and Scalia joined it. Alito wrote an oddball, but in a way typical, dissent, in which Scalia and Thomas joined. But Roberts refused to.

What's going on?

What's going on is that John Roberts is trying to lay the ground for a new kind of conservative jurisprudence. He's tired to the religious rantings of Scalia and Alito. He wants the Court to rely on a new, legally minded, powerful conservative legal theory that could last a hundred years -- and Roberts thinks he's the one to found this new era.

You'll be hearing a lot in the coming weeks about "Lochner-era jurisprudence". Much of Roberts' dissent talks about Lochner, why it's bad, and why the Supreme Court majority in Obergefell v. Hodges is like Lochner. Most of what you'll hear is that Roberts gave a stinging critique of "judicial activism", and that's where the mainstream press will leave it.

But that's not really what Roberts did. PART ONE FOLLOWS................



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Let's go back now to the 1870s. A major change was occuring in American society, one which profoundly altered the course of American history. It involved railroads and steel.

Most people prior to the 1870s relied on horse-and-buggy to get around. But during the Civil War, thousands of miles of new, standard-gauge railroads were laid across the nation. The Age of Rail began, as light and heavy rail began to connect even the smallest towns and villages with urban centers. Streetcars became the standard way of moving about cities, and roughly half the nation stopped owning horses.

Railroads were something people had never seen before. Most jobs prior to the 1860s had been craft jobs. A single person made a shoe. A single person made a gun. A single person made a cooking pot. There was no assembly line. But the railroad changed that. Conductor, engineer, brakeman, stoker: Each train had a large number of jobs, most of them highly skilled. A single enterprise had never before employed so many people. In the past, though, if an employer got mad at his highly-skilled cobbler, the cobbler would leave the shop and set up his own store (like you see in the movie Hobson's Choice). Employers couldn't be too abusive to good craftsmen, because that would merely drive them out -- and the good craftsman would then steal business from the employer, even driving him into bankruptcy.

But the railroads....... They were different. There were so many rail workers, and so many of them were seeking jobs at any one time, that a "labor market" existed even for the most highly skilled jobs on the railroad. This enabled employers to abuse or fire even the best workers, as there was usually someone almost as equally skilled looking for work. Working conditions on the railroads plummeted, and abuse, pettiness, and cruelty became widespread.

Steel was much the same. Although steel had been invented in the ancient world, this skill had been lost. A means of making brittle steel was rediscovered in the 1830s, but it wasn't until 1856 that Englishman Henry Bessemer discovered a way of changing the chemical make-up of steel so it was no longer brittle. The Bessemer Process revolutionized iron- and steel-making, and industrialized what was once a craft industry. Americans later stole Bessemer's discovery, and during the 1870s the United States became the steel-making capital of the world.

Steel-making, like running a railroad, involved highly skilled workers in a wide array of jobs. But, like the railroads, there arose a labor market in which tens of thousands of highly skilled workers each sought employment in the steel industry. Soon, mill owners were engaged in the same sort of cruelty, disempowerment, and abuse that typified the railroads.



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The response of railroad and steel workers was unionization. Suddenly, strikes broke out across the country as workers sought to unionize and get employers to recognize their union. Emnployers retaliated by hiring thousands of thugs to beat workers into submission. Employers hired tens of thousands of lesser-skilled workers ("scabs") to take the jobs of those who went on strike. If a worker joined a union, the employer fired him -- on the spot. Major corporations funneled tens of thousands of dollars in political campaign donations into the coffers of any politician willing to oppose unionization. It worked: When a strike hit, the governor of the state would call out the National Guard to beat and even shoot at striking workers (thousands of union members died), break up picket lines with concussion bombs and tear and vomit gas, protect scabs as they filed into the plants or rail yards, and generally intimidate the entire community into ending the strike.

Strikes were sometimes violent, as workers retaliated against state-sponsored gangsterism. It wasn't uncommon to hear of state militias machine-gunning workers' camps, killing women and children huddled in tents for protection. "Detective" agencies like Pinkerton, Thiel, and Baldwin–Felts arose to provide spies to infiltrate unions, dig up dirt on union leaders, even incite peaceful union meetings to violence.

Employers also employed other means to ensure that unions didn't protect workers. If you wanted employment, you had to sign a "yellow-dog contract", in which a worker pledged not to support or join a union. Break the contract, and you could end up in jail and heavily fined. Employer-dominated "unions" were set up, which gave workers tiny amounts of power or met their least demands -- helping to strip away support for the union.



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Employers didn't just turn to violence. They also turned to the courts for help.

In the 1870s, state and federal courts began adopting what later became known as Lochner-era decisions. When unions formed and tried to get the employer to agree to a contract, or when workers struck to win better pay and working conditions, employers began arguing that this violated the "contract" between the employer and employee. Whether the employee signed a yellow-dog contract or a regular employment contract, the result was the same, employers said: The worker agreed to a certain wage, certain hours, and specified working conditions. To seek a different contract, or to strike and essentially break that contract... that struck at the heart of contract law. No one can break a contract and get away with it!

State and federal courts quickly agreed: The right of contract was sacrosanct. Courts interpreted this "right" to be one held by the worker as well as the employer. Unions "forced" workers to accept contracts negotiated by the union, courts said. But workers should retain the "freedom" to negotiate contracts of their own. That workers held no power to force an employer to agree to anything was ignored. That the employer-employee relationship was completely imbalanced was ignored. That only employers held power was ignored. Workers were free, courts said -- even if this freedom amounted to nothing.

The 14th Amendment to the United States Constitution was adopted on July 9, 1868, to ensure that the rights of black former slaves freed by the 1863 Emancipation Proclamation and the 1865 Thirteenth Amendment were not abridged. Section 1 of the amendment reads, in part; "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Equal protection and due process are two different things, and Congress drafted the 14th Amendment to protect them both.

The problem is: How do you protect Due Process? What does that mean, anyway?

It's not an academic discussion. For example, the 1st Amendment explicitly protects freedom of association. But if you don't have a right to privacy, how effective is your freedom of association? Not very. In the 1870s, courts were beginning to realize that Due Process was a constitutional right that wasn't self-enforcing. There were other rights, not enumerated in the Constitution or its amendments, which needed to be protected if the Due Process rights of the people were to be upheld.



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Protecting these unenumerated rights became known as "Substantive Due Process". Begining with Munn v. Illinois, 94 U.S. 113 (1877), the Supreme Court began to define the term "liberty" in the 14th Amendment to mean "economic liberty". In part, this was by accident, as the cases in question involved government regulation of private enterprise (Munn v. Illinois involved a state's right to set meximum railroad freight charges; Mugler v. Kansas, 123 U.S. 623 (1887), involved a state's ability to ban alcohol manufacture and transportation).

But soon Substantive Due Process was hijacked by extremist capitalists. State and federal district courts began to hold that freedom of contract was protected by the 14th Amendment. This culminated in a landmark Supreme Court ruling, Allgeyer v. Louisiana, 165 U.S. 578 (1897), in which the court struck down Louisiana's attempt to regulate insurance companies. The state had enacted a law preventing its citizens from doing business with insurance companies located out of the state. In-state companies could be inspected by the State Insurance Commissioner, and thus the state could prevent fraud. The Allgeyer company did business with a New York insurer; when it was fined, it sued to have the state law struck down under the "freedom of contract" provisions. The Supreme Court agreed.

Nothing in Allgeyer v. Louisiana limited freedom of contract. Was there any regulation the state could engage in that would pass muster? Apparently not, for the Supreme Court swiftly struck down maximum working hours (Lochner v. New York), minimum wage laws (Adkins v. Children's Hospital), a ban on the yellow-dog contract (Adair v. United States; Coppage v. Kansas), and the regulation of private schools (Pierce v. Society of Sisters). The Court even went further, outlawing boycotts aimed at companies that supplied raw materials to the employer (the so-called "secondary boycott"; Loewe v. Lawlor), picketing "associated" with violence (even if the violence is not caused by the union; Milk Wagon Drivers' Union v. Meadowmoor Dairies), and strikes that interfered with "the general welfare" (In re Debs,).



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At the heart of Lochner-era jurisprudence were labor unions.

Courts now began to argue that unions were a conspiracy to illegally boost wages (just as employers were prohibited from conspiring to boost prices). The Sherman Anti-Trust Act was used to break unions which engaged in national strikes. And time and time again, the Supreme Court upheld state and federal court injunctions breaking strikes. By even the most conservative estimate, at least 4,300 anti-union injunctions were issued between 1880 and 1930. By the 1920s, 25 percent of also strikes were limited by court-ordered injunctions.

Organized labor was being decimated. By 1932, just 2.5 million Americans were members of labor unions, down from 4 million just 12 years earlier.

Then the Great Depression hit. Initially, people loved it. Prices were dropping so fast, people could afford many of the luxury items they had previously only dreamed of. But soon employers began laying off 10 percent, 20 percent, then 30 percent of their workforce. A third of all banks closed their doors. More than a third of all Americans were out of work. Industrial production dropped by half. Farmers left their crops to rot in the fields, because the price of food could not cover the cost of transporting them to market. Prices for milk were so low, ranchers poured milk onto the roads in protest. Meanwhile, nearly a third of the population was going hungry.

In November 1932, Franklin D. Roosevelt swept into power. Roosevelt, a former electricity trade association lawyer, believed that boosting prices was the answer. If prices rose, employers would have more money...and more money meant more hiring. Roosevelt had fundamentally misdiagnosed the problem: The real problem was a liquidity trap (well-defined by economist John Maynard Keynes a decade earlier), in which both businesses and consumers were so afraid of the future that no amount of cash could induce banks to loan money or businesses to borrow it or consumers to spend their income. The solution was government spending -- which would "prime the pump" and start money flowing in the system again. But no one was listening yet to Keynes...

Monopolies charge much higher prices than business which are faced with competition. Could creating monopolies be the answer? Roosevelt didn't want to overturn anti-trust law, though, so he came up with a solution: Voluntary restriction of trade. He proposed a National Industrial Recovery Act, a law which would allow companies to restrain trade and create monopolies. In exchange, businesses would have to agree to standards of production to boost both the quality of the goods and services sold (no more shoddy half-assed gimcrack) as well as improve working conditions for laborers. These standards would be negotiated, under the auspicies of the National Recovery Administration (NRA), and both labor and management would participate. Companies that agreed to be part of this voluntary process would be permitted to fly the symbol of the NRA -- the Blue Eagle.



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And then the Supreme Court struck it down.

One NIRA code governed the sale of kosher chickens, and banned the transport and sale of sick animals. The Schechter Poultry Corp. sold two sick chickens to a butcher in Brooklyn. His Blue Eagle was withdrawn, and Schechter was fined. Schechter sued, and in Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), the Supreme Court held that "freedom of contract" had been abridged by the NIRA.

It was only the start of many such rulings. Emboldened, the Supreme Court struck down a wide range of laws designed to help pull the United States out of the Great Depression.

Roosevelt was frantic. The proto-fascist Father Charles Coughlin had a weekly radio program listened to by tens of millions, and he was calling for dictatorship to pull the United States out of the depression. Huey Long, governor of Louisiana, had risen to power by using thuggery, bribery, murder, and more to gain power -- power which he used to build roads, hospitals, and schools, to be sure, but power which he intended to share with no one else. Even the National Chamber of Commerce had called for emergency dictatorial powers to be given to the president. In Europe, Italy, Poland, Spain, and Germany had already fallen to the fascist siren-song, and France and England seemed ready to go next. Worldwide, people believed that the "democratic experiment" had failed, and that dictatorship was the only way out.

Roosevelt needed the Supreme Court to approve his "New Deal" legislation. But how? Justices were appointed for life, and the "nine old men" of the Court, while aged, didn't seem likely to die off any time soon.

So Roosevelt came up with a scheme. He proposed a "term limit" for Supreme Court justices. His scheme -- the Judicial Reform Bill of 1937 -- allowed the president to appoint one justice for each member of the Supreme Court with at least 10 years service who did not retire or resign within six months after reaching the age of 70. No president could use the scheme to appoint more than six Supreme Court justices, however. There were six justices over the age of 70: Louis Brandeis (80), Willis Van Devanter (77), Charles Evans Hughes (75), James Clark McReynolds (75), George Sutherland (75), and Pierce Butler (71). Van Devanter, McReynolds, Sutherland, and Butler were known as the "Four Horsemen", ultra-conservative judges who loathed Roosevelt and loathed the New Deal. Just three -- Owen Roberts (62), Harlan F. Stone (64), and Benjamin N. Cardozo (67) -- were not. Along with the aged Brandeis, Cardozo and Stone formed the "Three Musketeers", liberal judges who approved of the New Deal. The swing voters were Roberts and Chief Justice Hughes. Roberts was seen as the more powerful legal mind, and Hughes largely did what Roberts asked him to do.

Roberts had been the deciding vote in several 5-4 decisions invalidating New Deal legislation. Sutherland, Van Devanter, McReynolds, and Butler had all helped form the majority in Adkins v. Children's Hospital, and were loathe to overturn it. Roosevelt would have to pack the court with at least three, and perhaps as many as four, new justices to ensure that he had a reliable majority in favor of the New Deal.

Then came "the switch in time that saved nine". Elsie Parrish was a maid working at the Cascadian Hotel in Wenatchee, Washington. The business was owned by the West Coast Hotel Company, which paid Parrish $13 a week. But the state of Washington had recently enacted a minimum wage law for women, "to protect the weaker sex". Parrish asked for $14.50 a week, the minimum established by the state. West Coast Hotel refused, and fired her. Parrish sued to recover the $1.50 a week she was owed. Just what happened behind the scenes at the Supreme Court is unclear. According to Chief Justice Hughes, he had a private conversation with Roberts shortly after the Novembeer 1936 presidential election, in which Roosevelt had won a massive majority in Congress and in the popular vote. Hughes convinced Roberts that it was futile to resist Rooseelt or the country any longer. So far, Roosevelt had only talked about a "court-packing" bill, but one was sure to come. Oral argument was heard December 16-17. On Decmeber 19, Roberts joined with Hughes, Brandeis, and Cardozo to uphold the Washington law. The "Four Horsemen" opposed it. But Justice Stone was out ill, and Chief Justice Hughes wanted a full vote on the issue. So he persuaded the Court to wait until Stone returned before deciding the case. Stone -- who'd fallen ill with bacillary dysentery on October 12 and almost died -- returned to the Court on February 1. Suddenly there was a 5-to-4 majority in favor of the minimum wage. Roosevelt formally introduced his court-packing bill on February 5, 1937.

An immense furor arose over Roosevelt's court-packing scheme. But then, on March 29, the Supreme Court announced in West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), that the Constitution permitted the restriction of freedom of contract by state law where such restriction protected the community, health and safety, or vulnerable groups.

It was an astonishing decision, especially since Roberts was widely (and correctly) viewed as the deciding vote. Roberts had voted to overturn a similar New York state minimum wage law just six months earlier in Morehead v. New York ex rel. Tipaldo, and his "switch in time" was credited with giving Democrats in Congress pause and leading to the defeat of the court-packing plan.



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But West Coast Hotel wasn't the win it seemed to be. The Court had previouisly upheld an Oregon minimum wage law for women almost 30 years earlier in Muller v. Oregon, 208 U.S. 412 (1908). The critical, defining element in West Coast Hotel was that Parrish was a woman. The law was designed to protect women, widely and misogynistically viewed at the time as weak and fragile, incapable of making common-sense decisions. Patriarchal misogyny demanded the protection of women.

West Coast Hotel wasn't a far-reaching decision.

But NLRB v. Jones & Laughlin Steel Corp. would be.

Tucked innocuously in Title I, Section 7(a) of the National Industrial Recovery Act were words which guaranteed the right of workers to form unions and banned yellow-dog contracts: "...employees shall have the right to organize and bargain collectively through representatives of their own choosing, and shall be free from the interference restraint, or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection".

This was provocative language. Labor historians have called it the Magna Carta of the labor movement. And it set off a massive wave of union organizing punctuated by employer and union violence, general strikes, and recognition strikes. Union membership jumped from 6.9 percent of the labor force in 1933 to 15.1 percent in 1937 and 19.2 percent by 1939.

But not in steel. The Amalgamated Association of Iron and Steel Workers (the "AA") had formed in 1876 to represent skilled workers in both the iron and steel industries. It was brutally suppressed during the Homestead Strike of 1892 in Homestead, Pennsylvania; suffered a major setback when U.S. Steel broke the union during the U.S. Steel Recognition Strike of 1901; and was shattered when federal troops broke the nationwide steel strike of 1919. By mid-1933, the AA had only 5,000 members and less than $30,000 in the bank. Union president Michael F. Tighe, 76, was referred to as "Grandmother" due to his advanced age and timidity. In 1934, an opposition group known as the Rank and File Movement formed within the AA. They advocated militantcy, blitzekrieg organizing, and -- most importantly -- the organizatino of all workers in the steel industry, not just skilled ones.

With NIRA unconstitutional and yet massive strikes and union organizing occurring at a rapid pace nationwide, leaders in Congress decided the nation needed a new federal labor law to keep "labor peace" in America (and to prevent strikes from undermining the minimal economic recovery). Proposed immediately after the decision in Schechter Poultry, the National Labor Relations Act was signed into law by President Roosevelt on July 5, 1935. It provided for federal supervision of union elections to ensure fairness, penalties for employers who broke the law, and more.

The NLRA was not favored by American labor. The American Federation of Labor (AFL) believed in a completely voluntary form of unionism, one restricted only to highly skilled, highly paid "craft" workers. (Most of these were WASPs, which perfectly suited the racist, anti-immigrant AFL.) But there were some in the AFL who believed that "craft unionism" was dead, if not dying. They wanted to unionize entire industries, not select job categories within each industry. This new kind of union movement, "industrial unionism", was anathema to the racist, ethnocentric AFL. Nevertheless, a Committee for Industrial Organization (CIO) formed within the AFL on November 8, 1935.

CIO leaders wanted to start a steel organizing campaign. But CIO leaders also did not want to break with the AFL, which was politically powerful (in some quarters) and wealthy. So the CIO resolved to work through the AA instead. John Brophy, the newly hired organizing director of the CIO, infiltrated the AA convention of 1936 and proposed that the union merge with a body to be created by the CIO. In return, the CIO would spend millions organizing in the steel industry. Rank and File Movement members didn't yet have a majority of the AA delegates, but they were able to push through a resolution agreeing to study the CIO's proposal. Tighe sent a representative to consult with AFL President William Green. Green could not match the CIO's monetary offer, as AFL member union didn't want to engage in industrial uninoism. CIO leaders then told Tighe that the CIO would move ahead with an organizing drive in the steel industry with or without the AA. Confronted with a choice between irrelvance or collusion, AA officials accepted the CIO proposal, affiliated with the CIO on June 4, and agreed to make the AA an administrative unit of CIO's new Steel Workers Organizing Committee (SWOC). SWOC was formally announced in Pittsburgh on June 7, 1936. Green was outraged, and the AFL suspended the 10 unions which belonged to the CIO in November 1936.

SWOC didn't care: By then, it was rapidly signing up hundreds of thousands of steelworkers nationwide. SWOC made a dramatic breakthrough when, on March 2, 1937, the union signed a collective bargaining agreement with U.S. Steel. SWOC had effectively infiltrated the employer's company unions and turned them against the employer. CIO President John L. Lewis (also president of the United Mine Workers) then secretly met with U.S. Steel President Myron Taylor, whom he knew well socially. Confronted with a fait accompli, Taylor agreed to recognize the union and sign a contract.

U.S. Steel had roughly 40 percent of the market. SWOC then attempted to organize the 186,000 workers laboring for "Little Steel", the seven companies which represented the majority of the remaining steel market in the United States: Jones & Laughlin Steel, Republic Steel, Bethlehem Steel, Youngstown Sheet and Tube, National Steel, Inland Steel, and American Rolling Mills.

Aliquippa, Pennsylvania, was home to the largest mill owned by Jones & Laughlin Steel. For decades, the steel industry's Coal and Iron Police (a private militia) showed up to beat people senseless whenever union organizers had shown up. In Pennsylvania, Jones & Laughlin could always count on the state sending in the National Guard to back up the Coal and Iron Police whenever a strike occurred. But no longer. Pennsylvania's new progressive governor, Gifford Pinchot, had no intention of doing the steel companies' bidding any longer.

To counter the union organizing drive, Jones & Laughlin fired everyone who supported the union. SWOC filed a complaint with the National Labor Relations Board (NLRB). The NLRB ruled that the company had acted illegally, and ordered the workers reinstated.

Jones & Lauglin Steel appealed to the U.S. Supreme Court. Oral arguments were heard February 10–11, 1937, a full month before the ruling in West Coast Hotel. Jones & Laughlin Steel had every reason to expect that it would win. After all, the National Labor Relations Act was an unconstitutional infringement on the freedom of contract.

But then on April 12, 1937, in NLRB v. Jones & Laughlin Steel Corporation, 301 U.S. 1 (1937), the Supreme Court upheld the NLRA.

The Lochner era was over. From then on, the Supreme Court upheld every single New Deal act on the books, as well as every single piece of New Deal legislation promulgated by Congress.
The historic document.


Scene in front of the U.S. Supreme Court this morning, just prior to the announcement in Obergefell v. Hodges.


Victory Day.


Wednesday, June 24, 2015

And people ask me why I like football...




When I started out on my own sexual journey in life, I didn't care if anal sex hurt. Oh, it did hurt. A lot, especially my first time -- when a boy much older than me shoved his monstrously huge penis inside me without using lube, and then proceeded to fuck the shit out of me for an hour. But one I learned about lubricant, I didn't care about the pain.

Indeed, my attitude was that I wasn't a good lover unless I was taking another man's penis as deep, fast, and rough as he wanted to give it. I didn't really realize I was a bottom, not yet. I thought that bottoms were effeminate, queeny, and lazy, and I didn't want to be those things. Nevertheless, I REALLY enjoyed anal sex, especially with a man whose erect penis was extremely large, extremely long and extremely thick. I remember one blue-eyed, blond-haired muscle-boy (let's call him "Jed") had a cringe-inducing thick one that had significantly above-average length to it as well. We first fucked in the dark, me face-down on his bed and him supporting himself on locked elbows above me. It took him nearly 45 minutes of really brutal pounding to get enough stimulation to ejaculate inside me. (Big boys take time.) Afterward, we turned on the lights. He wanted me on my back, and I was happy to oblige. He knelt, stroking his still-erect penis, and gently fingered my hole to see how much of his semen could spill out of me. (A lot, since there was a really huge amount inside me.) Then he pulled back his foreskin, pushed his huge red knob against me, and violated me again.

"Jed" sort of continued kneeling, rocking back and forth and watching his obscenely thick monster slide in and out of my stretched-to-the-limit asshole. I whimpered, I was stretched so tightly.

And this time, "Jed" got off on seeing his huge club buried into a tightly-stretched anus. He came in under five minutes, asked if he could continue (I said yes), and he came again in under five minutes.

We had sex a lot with the lights on after that.

I remember watching gay adult film in my late teens and in my 20s, and seeing these 18 to 27 year old twinks and frat-boys riding cock the way I rode cock. They enjoyed it. The bigger the better! The more excited, the more physical, the more energetic the sex -- the better the film was. You might hear a sex worker shout "Oh fuck!!" as a really long or thick one slid into his sex worker's hole. But there wasn't any pretending that this was "his first time" or that it hurt. There was none of the "bottom's reach" -- that oh-too-common signal in modern gay adult film in which a bottom reaches to touch his top's thigh, the signal that the top should slow down, take it out, not fuck him as deep.

No, back then -- sex workers were sex workers. They knew what you wanted to see. They knew it wasn't going to work if they faked being in pain. And pain wasn't what got viewers off: Good, old, solid gay sex was. Happy gay sex. Ecstatic gay sex.

When John Davenport shoved his nine inches into Michael Gere's sex-worker asshole in Powertool, Gere whined and whimpered. Not because it hurt, but because it felt so good!

I often seek out twink porn today, to recapture some of that magic. Some of it (like the Staxus scene here), is good. Good, because the porn star knows that sex should be enjoyed and be energetic and not contain fake fake fake protestations of "it hurts" and "please stop".


I wrote a big article about the White House Executive Chef yesterday.

I didn't intend to. I wanted to do an article about the White House kitchen, which kind of interests me. But when I stumbled on the 15-line piece of crap what was the White House Executive Chef, I couldn't stand it. Worse, Walter Scheib -- the Executive Chef from 1994 to 2005 -- died in a hiking accident last week, and I figured the article could get a major boost as the topic was in the news.

Someone also did a redirect for long-time White House Executive Chef Henry Haller. I'm sorry, no. So I whipped up an article about Haller in less than four hours.

I learned more about the White House Executive Chef in one day than I'll ever use in a lifetime. **sigh**
Cinema composer James Horner died this week in a small plane crash. He did a wide range of motion picture soundtracks, including Star Trek II: The Wrath of Khan, Star Trek III: The Search for Spock, Cocoon, Volunteers, Aliens, *batteries not included, Willow, Field of Dreams, Glory, The Rocketeer, Jumanji, Titanic, Avatar, and The Amazing Spider-Man.

But I found "The Launch", from Apollo 13, incredibly effective.

Monday, June 22, 2015

My boy Zac...


June 22, 1633 – Galileo Galilei was forced to recant his heliocentric view of the Solar System by the Roman Catholic Church's Inquisition.

Legend has it that, as he left the room, he muttered under his breath, "And yet it moves..."






For some reason, I remembered Reader's Digest Condensed Books today. I think it's because my parents subscribed to this service (although I never saw them crack a volume), and I first read Jaws in Condensed Book form. (I'm off to see Jaws on the big screen on Wednesday.)

Reader's Digest was founded in 1924 by US Army soldier DeWitt Wallace, who wanted something to read while convalescing from shrapnel wounds. His idea was to take existing content from popular magazines, and edit it down or even rewrite it into condensed form. Wallace was conservative and anti-communist, and the articles he chose for the magazine reflected this.

Each issue contained 30 articles (one per day), as well as a lengthier article (usually an excerpt from a recent fiction novel). Original content included "Word Power" (a vocabulary page), "Amazing Anecdotes" (seven or eight believe-it-or-not paragraphs), "Personal Glimpses" (seven or eight paragraphs of pithy personal observation from well-known authors), "Laughter the Best Medicine" (seven or eight paragraphs of real-life humorous occurrences), ("Humor in Uniform" (seven or eight paragraphs of funny stories from military life), "Life in these United States" (seven or eight paragraphs of folksy occurrences). The table of contents was on the front page, and the back page was usually a popular piece of 20th century art.

In 1950, Reader's Digest began abridging current novels and publishing them as Reader's Digest Condensed Books. Each volume contained five novels, although a large minority of volumes contained three, four, or six novels. Nearly all the novels were American, although a few were not. Nearly all the novels were recent, although occasionally there would be abridgements of new editions of older works.

Initially, there were four volumes a year, but in 1973 this expanded to five volumes a year and six volumes a year in 1991. The name was changed to Reader's Digest Select Editions in 1997.

Sunday, June 21, 2015


Typical condition of the Cuyahoga River in 1952, with massive amounts of oil leaking into the river and standing on the surface for days or weeks.


Cleveland is a city without community.

The city was founded as a trading post in 1796. But unlike most early American settlements, which established a rich architectural, legal, and industrial history, Cleveland languished. The city didn't really begin to grow until the 1850s, and what really turned things around was the invention of modern steelmaking (known as the Bessemer process) in England in 1856. Steel took over Cleveland in the 1870s, dominating the Cuyahoga River valley. "Cleveland City", up on the bluffs overlooking the Cuyahoga east of the river, had a plan for a downtown built around Public Square. Ohio City, on the left bluffs, had no such urban planning. From the 1870s to the 1920s, more than 100 millionaires built magnificent mansions on Cleveland's Euclid Avenue.

But, as a community, Cleveland had little to bring it together. Take a look at any Google Map of the city: Notice the lack of public parks, like Boston's Emerald Necklace or D.C.'s National Mall or San Francisco's Candlestick Park or New York City's Central Park. Cleveland had nothing.

Cleveland's wealthy industrialists, sucking at the teat of libertarian mercantilism, loathed urban planning and zoning laws. And then, one day, they discovered that the lack of zoning meant that pawn shops, beauty salons, car dealerships, and motels had invaded Euclid Avenue. So the rich fled further east, into Euclid Heights and Shaker Heights and Cleveland Heights. And they tore down Cleveland's great architectural legacy along Euclid Avenue.

By 1920, Cleveland was America's fourth-largest city. But what did it have to show for it? A vast industrial scar running down its center. No connection to the Lake Erie waterfront. No architectural history. Vast amounts of shoddy worker housing in the heart of the city. No cultural institutions to speak of.

Cleveland's greatest achievement were the vast steel mills lining the Cuyahoga River. The huge coal dumps churning out coke -- and smoke and ash and soot -- along the lakeshore. The automobile plants, with their 300-acre sheds.

But even that achievement didn't last. Cleveland's industry began dying in the 1950s. The city began losing hundreds of thousands of residents. By the 1970s, Cleveland had shed half its population, and nearly all its industry.

The legacy of Cleveland's -- well, somewhat twisted and awful pact with the Devil Known As Industry was a polluted and vile Cuyahoga River.

At least 13 fires are known to have occured on the Cuyahoga River. The first occurred in 1868, but the most famous is the 1969 fire, which appeared on the cover of Time magazine. It sparked passage of the Clean Water Act and the Environmental Protection Act. Former EPA Administrator Carol Browner even remembers seeing photos of the fire, and recalling how deep an impact it had on her. At least two well-regarded environmental journals declared the eight-day fire was the worst in the nation's history.

It's all bunkum. Hooey. A myth. There are no known photographs of the 1969 fire, as it was fairly minor and was doused so quickly that local media never got a change to film or photograph it. The photograph that Time ran was from a 1952 fire -- not the June 1969 fire.

That the Cuyahoga -- that any industrial river -- catches fire is not news. Many rivers in America have caught fire, and the Cuyahoga did so because it had ridiculously steep bends in its lower 15 miles that allowed surface debris to accummulate easily and slowed the movement of oil and other pollutants. Before the end of the Civil War, there were 20 oil refineries in the Cleveland area, and only about 35 percent of crude oil was useable. The rest was considered "unusable" -- and this included what we now known as gasoline. This "unusable" portion was simply dumped into the Cuyahoga.

In the 1870s and 1880s, steamboat captains were warned not to shovel coals overboard, lest the water erupt in flames. The Cuyahoga caught fire at least three times in the latter half of the 19th century: 1868, 1883, and 1887. In 1912, a spark from a tugboat ignited oil leaking from the Standard Oil refinery. The gasoline-soaked soil caught fire, too, and the several explosions occurred at the refinery. Five men died, and several cargo ships and fireboats were destroyed in the conflagration. Another blaze hit the same spot in 1922, and there was another oil-caused river fire in 1930. In 1936, oil and floating debris on the river ignited and burned for five days. A patch of oil scum on the river was ignited by ash in 1941 and damaged an ore carrier, and a second such fire occured in 1948.

The worst Cuyahoga River fire was the 1952 blaze. Once more, Standard Oil was at fault. For years, the Standard Oil refinery had been leaking. At the time of the fire, a two-inch thick scum of oil existed shore-to-shroe on the river. On the afternoon of November 1, a patch of this oil ignited near the Great Lakes Towing Company shipyard. The exact cause of the blaze has never been determined. The river quickly spread, nearly reaching the opposite shore. The fire also spread downstream, burning the Jefferson Avenue Bridge. Flames reached nearly 50 feet into the air, and dense black smoke flowed into downtown. Thankfully, it was a Sunday, and there were almost no workers in the area (or scores of people could have been killed). The fire caused $1.5 million in damages, mostly to the shipyard and the bridge. Several boats docked at the shipyard and other nearby docks burned to the waterline, and a riverfront office building was gutted.

In comparison, the famous June 22, 1969, fire caused just $50,000 in damage, mostly to an adjacent railroad bridge.

Here are images from the 1952 fire.









Below is the site of the 1952 fire, as it looks today.