If you look hard enough, and are willing to violently bludgeon any notion of context, you can find a quote from a respected authority to support most any proposition, from adult circumcision to zoophilia.

  Having said that, allow me to present a sentiment that I found particularly resonant in light of the recent furor over reproductive rights.

“[A] Constitution… is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar, or novel, and even shocking, ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.”

  - Oliver Wendell Holmes, Jr. (1841-1935)
  Associate Justice of the United States Supreme Court, 1902-1932

One Thing Athiests Never Do:
Pray for the deaths of people who disagree with them.

When Wiley Drake, pastor of a Baptist church in Buena Park, California, used church letterhead and a church-affiliated radio show to endorse former Arkansas Governor Mike Huckabee’s candidacy for president, it raised some red flags. Under federal tax law, non-profit organizations (religious or not) aren’t allowed to endorse candidates. Those that do so risk losing their non-profit status, and the attending tax benefits.

There’s a minor piece of oft-ignored legal jargon called the Establishment Clause of the First Amendment to the Constitution of the United States. It’s supposed to keep religious zealots from interfering in government, and vice versa. Despite the creeping theocratic bent of the current administration, maintaining federal tax benefits for a religious organization that endorses candidates is still a no-no. So, a group called Americans United for Separation of Church and State asked the IRS to investigate the church’s non-profit status.

Instead of defending his actions, Drake called on his flock to join him in praying to their god for the deaths of two of Americans United’s leaders. While I’m pretty confident that there’s no grumpy bearded man in the sky, grinding fresh points onto a pair of lightning bolts and aiming for Americans United’s headquarters, it does raise some interesting questions.

Drake is asking for help to petition the omnipotent creator of the Universe to kill two human beings. How is that substantively different from trying to hire a hitman? The question of there actually being an omnipotent creator of the Universe is immaterial; Drake believes a god exists, and he’s asked that god to pop a cap in his enemies.

It’s the belief that is the key here. If I believe that I’ve hired a hitman to kill someone, I’ve committed a crime. It doesn’t matter if my “hitman” is an undercover FBI agent, and my intended target was never in any real danger. I’ve engaged in a conspiracy to commit murder. In many jurisdictions, the penalty for this crime is on par with what I’d face if I’d actually done some killing.

I’ll say it again, because I think it bears repeating. Drake believes that he and his followers are asking an omnipotent (and not at all imaginary) being to kill his enemies. He has clearly shown the intent to cause the deaths of two people. This has to be a criminal act. If it wasn’t all so laughably stupid, I’d say Drake should be prosecuted for his threats.

ReligionNewsBlog
Americans United for Separation of Church and State
LA Times (registration required)

Dear Little Bald Bastard,
  What do you do for fun?
- I Need A New Hobby

Dear I Need A New Hobby,
  Your question presupposes that I have any significant leisure time. I’m a second year law student, so this “fun” you speak of doesn’t sound familiar

  Okay, so I’m being a little facetious. I do occasionally have an unscheduled minute in which to contemplate my bastardly existence. I try to fill these fleeting moments of nagging purposelessness by reading, drawing and drifting bodiless through the fetid, stagnant intellectual morass of the Interwebs.

  Come to think of it, I’m not at all interesting. Not even a bit. You’d better try some other blog for tips on hobbies. The only really cool thing I do is talk to my wife, who took theoretical physics as an elective because “it sounded fun.” Unfortunately, one jackass nodding along like he’s smart enough to keep up with her is more than enough, so you’re going to have to find your own brilliant woman to talk to. Good luck.

LAW SCHOOL MUSICAL

Please scrupulously
honor the invocation
of Miranda rights.

Right to be silent
is invoked for each offense.
Ask about past crimes.

Right to have counsel
is custody specific.
No further questions.

EDIT: Okay, so this isn’t entirely correct. Under some circumstances, police can resume questioning about a crime even after the suspect invokes her right to remain silent, so the right isn’t purely crime-specific. The preceding stupid poem makes no representation of accuracy.

  When applying the Rational Basis standard of review, the Court seems to be giving the government ever-wider freedom to act as it sees fit, without any meaningful check from the judiciary. In 1949, Justice Jackson’s concurrence in Railway Express v. New York lauds the “salutary doctrine that cities, states and the Federal Government must exercise their powers so as not to discriminate between their inhabitants except upon some reasonable differentiation fairly related to the object of regulation.”

  In 1973, the Court said that a suspect classification would be “examined to determine whether it rationally furthers some legitimate, articulated state purpose.” San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 17 (1973).

  By 1980, United States Railroad Retirement Bd. v. Fritz saw Justice Rehnquist proclaiming that “where, as here, there are plausible reasons for Congress’ actions, our inquiry is at an end.” The Court no longer required that the actual reason for a law be rational. Rather, any sufficiently convincing post hoc justification that could be conceived of would suffice.

  In 1993, the Court in FCC v. Beach gave up all pretense of oversight, and instead placed the burden on litigants challenging a discriminatory law “to negate every conceivable basis which might support it.” One pictures competing attorneys filling up notebooks with possible justifications and counterarguments. If the government attorney manages to think of just one more than the challenger, it’s a check in the win column.

  The Court has done a neat job of ruling itself into a corner. When the Court found that the challenged Amendment in Romer v. Evans was discriminatory and motivated purely by hatred for homosexuals, the Court had to bludgeon the Rational Basis standard into a nearly unrecognizable state to enable it to strike the Amendment down. Critics who say that the Court was actually engaging in a stricter review are right. Unfortunately, the Court had very little choice. The Rational Basis standard has so little practical power to invalidate a law that the Court had to choose between dressing Intermediate Scrutiny in a hand-me-down Rational Basis t-shirt, or declaring sexual orientation a quasi-suspect classification and granting it the automatic protection of that stricter standard.

  Comparisons to the sexist reasoning in Muller v. Oregon immediately spring to mind. Again, the Court granted a much-needed protection, while (albeit a tad more subtly) endorsing intolerance toward the class it was protecting by upholding a particular discriminatory perception, namely that sexual orientation is a voluntary, rather than immutable, characteristic.

  All of that was the long way around to the following question; can the Rational Basis standard of review possibly get any more deferential? Is the chance to argue about the justification for the challenged legislation a certain thing, or will we see a day where the Court will simply deny certiorari if the government’s list of justifications is longer than the challenger’s list of arguments against them?

  Here’s why it pays to be skeptical, guys. It turns out that the makers of the “male enhancement” pill Enzyte weren’t inflating anything but their claims. The government is prosecuting company officials for conspiring to defraud its customers out of 100 million desperate, small-wanged dollars. From Cincinnati.com:

James Teegarden Jr., the former vice president of operations at Berkeley Premium Nutraceuticals, explained Tuesday in U.S. District Court how he and others at the company made up much of the content that appeared in Enzyte ads.

He said employees of the Forest Park company created fictitious doctors to endorse the pills, fabricated a customer satisfaction survey and made up numbers to back up claims about Enzyte’s effectiveness.

  There are a few things about this situation that really stick out.

1) PAY ATTENTION. Slick marketing and customer satisfaction surveys are fine, but if a company can’t or won’t explain to you how its product works, DON’T GIVE THEM MONEY.

2) This is especially true when the company makes “health” claims that are so sensitive. The harder you want something to be true, the easier it is to let yourself believe dubious claims. If a pill claims to fix a heretofore unfixable problem, it’s time to be even more diligent.

3) The only thing classier than conspiring to sell millions of dollars of dubious dick drugs is cutting your mom in on the action. From the article:

Several other company employees, including [the founder's] mother, Harriet, also are charged with participating in the conspiracy.

  I also find it insane that, as of February 1st, 2008, the company’s website it still up and running, making the same claims and apparently still taking orders. Why hasn’t the District Court issued an temporary injunction to stop the company from making these (allegedly) fraudulent claims?

  Nobody needs an herbal penis pump so badly that they can’t wait a few months. If the Court rules in favor of the company, then let them go back to peddling their pills. In the meantime, why risk letting the company defraud more innocent men? They’re already upset about the size of their junk. The court shouldn’t allow their wallets to be deflated as well.

  On the plus side, I finally have a reason to use the “dick” tag non-euphemistically.

  The Virginia Supreme Court upheld the conviction of a notorious spammer under Virginia’s anti-spam law. A divided court said that spam isn’t protected speech under the First Amendment. Associated Press.

  Personally, I wouldn’t bet on this being the definitive word. The Supreme Court may not weigh in on this particular case, but it will likely have to rule on the issue some time in the near future. I lean toward the argument that spam is often fraudulent and causes economic harm, and spammers should be boiled in penis-enhancement cream. The debate is an interesting one, though.

Dilbert

Dear Little Bald Bastard,
  How do you spend your time when you aren’t being a tool on the Internets?
- Devil in the Details

Dear Devil in the Details,
  Although my voluminous post count belies it, I actually do have interests that don’t involve telling strangers how stupid I think they are on the Internet. I like to read, I play a video game or two, and I have a lucrative business waxing badgers for private collectors.*

  The biggest chunk of my non-bastardly day is taken up by my studies. I’m in my second year of law school, which means I spend approximately eleventy million hours a week poring over casebooks.

  As part of my laws school experience, I lucked into an internship with Pennsylvanians For Modern Courts. PMC is a policy group working to reform the judiciary in Pennsylvania, and to educate citizens about how to access and navigate the courts.

  Coincidentally, we just launched a new blog, called JudgesOnMerit.org, which is all about our campaign to replace partisan election of appellate judges with a Merit Selection plan. I’ll spare you my pro-Merit screed. I’ll just say that I hadn’t ever thought about judicial elections before November of 2007. Now I love Merit Selection like a pirate loves booty.

  If you like politics, if you’re concerned about judicial fairness, or if you just want to help a bastard out, go take a look at JudgesOnMerit.org. See if you can recognize my writing when I’m not allowed to use profanity.

*You don’t want to know how hard it is to get insurance.