Begging The Question

Howard Bashman links to a National Law Journal essay by Gregory J. Wallace criticizing the DC Circuit for citing Dred Scott in the big gun rights case a few weeks ago. I can see not wanting to cite Dred Scott as a matter of course, but it’s an important case, and noting its existence doesn’t revive it as good law. It would be one thing to cite it for the scope of Fifth Amendment property rights, but I don’t see a big problem quoting its dicta about the scope of the Second Amendment right. First, the court was careful to disavow any broader reliance on the case. And second, there just aren’t a lot of Supreme Court cases discussing the Second Amendment; beggars can’t be choosers.

And imagine the counterexample. What if Dred Scott was good for the collective rights argument? What if it listed a bunch of individual rights protected in the constitution but omitted the right to bear arms? If that had been the case, and the court declined to cite Dred Scott out of sensitivity, wouldn’t that look dishonest? Wouldn’t gun control advocates accuse the court of manipulating the precedents? I think it should work the same the other way. There’s a mention of the Second Amendment in this otherwise bad case, but it’s clearly dicta and wasn’t the reason for the outcome, and in the interest of completeness it’s fine to cite it.

When I was in law school, I was reading something about the master-servant relationship in agency law, and noticed a citation to an 1850s case from one of the Confederate states. Out of curiosity, I looked it up. Sure enough, it arose from a master-slave relationship. As I recall, it had to do with who’s liable when the master lends his slaves to another and the slave commits a tort. It read like a defective product case. It was bizarre. I checked, and the state court didn’t cite it often, but there were cites as late as the 1950s for the agency principles involved, without mentioning the precise facts. But that isn’t what the DC Circuit did at all. It wasn’t glossing over or defending Dred Scott. The case exists, and it is an important window into pre-14th Amendment constitutional theory, and the DC Circuit cited it for what it was worth. We shouldn’t airbrush Dred Scott out of the U.S. Reports.

In today’s oral argument in the “Bong Hits 4 Jesus” case, the school district was represented by Kenneth Starr, former Solicitor General and D.C. Circuit Judge. According to the transcript (71-page pdf), Chief Justice Roberts referred to Starr as “Mr. Starr,” both in calling him to the podium and during the course of the argument.

I cringe when judges refer to Solicitors General or Attorneys General as “General” mostly because it’s incorrect as a title. So I’m glad no one referred to Starr as “General Starr.” But I was a little surprised that no one referred to him as “Judge Starr.” Am I just unaware of some sort of protocol here? Does Starr’s resignation from the court mean he isn’t entitled to be called “Judge” anymore? To be sure, I’d have no problem if he were simply so unassuming and humble that he preferred not to be called “Judge.” (He’s probably called “Dean Starr” most often these days.) But for a group that typically stands on such formalism (such as the “General” thing), it surprised me a bit that none of the Justices (including Starr’s two former colleagues on the bench) used the title. But perhaps they simply agree with the DC Circuit about the use of the title “Judge” in litigation. Is that all there is to it? I don’t want to make a mountain out of a molehill, but it just struck me, and any thoughts on the matter would be appreciated.

UPDATE: In the very next argument, Wilkie v. Robbins (73-page pdf), the attorney for the government was Deputy Solicitor General Gregory Garre. At least two Justices called him “General.” Sigh.

PG talks a bit at De Novo about the push for card-check union elections. The unions argue that they need card-check elections because employers engage in anti-union harassment, legal and otherwise. Employers, they say, can hold mandatory anti-union meetings, fire organizers, and scare employees with threats to close up shop in the event of a union election. Whenever these tactics cross the line into unfair labor practices, the resulting fines are often worth keeping the union out. I won’t state a preference for the outcome of this bill (a certain dead letter either in the Senate or by veto), but I will share a story.

Back in college, I took a labor history class. I enjoyed it a lot. I wrote my final paper on the theme of labor in country music. The highlight was a field trip we took to a textile plant. The professor called around, and only one would let us come. I guess the others were afraid of another Greensboro Massacre or something. So we carpooled over the to the plant. (Here’s a David Lat-style piece of trivia: a future Supreme Court clerk was on this trip!) I’m not keeping the company anonymous out of ethics; I honestly can’t remember its name.

The original plant had been built before the turn of the 20th Century. They had pictures of horse-drawn wagons hauling bricks to the site. It was a loud, hot facility, and you could almost feel yourself getting the brown lung disease. The machines had dangerous-looking moving parts that looked quite capable of taking a finger off. There were foul-smelling dyes in barrels. A lot of the employees weren’t wearing masks, and although I’m sure that was their choice, they were working in an environment where a mask probably would have been a good idea.

After touring the original plant, we went to a brand-new facility, and we could immediately see what difference a hundred years makes. The new plant was clean and (relatively) quiet, with gleaming new equipment. They were large, enclosed machines with the moving parts well-guarded. The old plant required the textiles to take a circuitous path upstairs and downstairs and even outside and around the back before they could be finished. The new one, in contrast, was built to allow the process to work in a smooth straight line. You could watch the raw materials be turned into finished products in one room. It must have been a thousand times more efficient.

And I might mean that literally. The old plant required many more workers to operate its old-fashioned machines and move the textiles along the line. The new one, as I recall, could be operated by as few as eight workers, and run around the clock. So upgrading the facilities allowed the plant to downgrade the workforce. And hey, that happens — I’m not advocating keeping workers cooped up in unsafe, unclean, inefficient facilities just for the sake of saving jobs. But what was unsettling was the glee the mill owners took in all this.

It started when we showed up and saw those old pictures. The mill’s p.r. person was telling us the company’s history, and made sure to mention how fiercely anti-union the mill was. He credited the company’s success to its non-union status. He proudly told us a story about union organizers trying to visit the workers during the Depression, and how the mill’s owners (probably the parents or grandparents of the current owners) had stood on top of the plant with shotguns, firing at the union men if they got too close. This tale was recounted as if it was the favorite family knee-slapper. I believe the punch line was something like, “And a few of those union boys were limping on their way out of here!”

That event was probably before the passage of the NLRA, but the company’s opinion of unions didn’t change. The new facility was smoke-free, which seemed pretty sensible, given that you probably wouldn’t want cigarette smoke to contaminate the product. (The whole area was smoke-free, so they couldn’t even go outside for a smoke break, as I remember.) But the spokesman grew somber when telling us how controversial that move was, noting that “We almost got a union over that decision.” He had no doubt that was an existential threat. It’s almost funny to think about how the workers were almost willing to unionize in order to be able to smoke, but not to save all the jobs that were going to be lost. But the mill owners assured the employees that if they organized, the mill would have to close up shop. And, of course, there’s no union.

I guess, in the bigger picture, it’s kind of amazing there were any jobs left, given how many textile mills have closed and moved overseas. And it wouldn’t surprise me if much of the labor force was now immigrants. And, like I said, I don’t believe in unions for the sake of unions. But I’m no so quick to dismiss the need for labor-friendly legislation, because shady practices by employers aren’t vestiges of movies like Norma Rae (the source for the picture). Given how eager the company was to tell us what it did about its history, it makes me wonder a little about what we didn’t hear. Naturally, we weren’t allowed to talk to any employees.

(This post’s title from the Woody Guthrie tune “Union Maid,” recently covered very nicely by Old Crow Medicine Show.)

Dan Savage has a provocative post here at the Slog discussing the recent increase in anti-gay rhetoric and bashing. He cites a few examples, including comments by that actor on “Grey’s Anatomy” and Tim Hardaway, as well as Ann Coulter’s warm regards for John Edwards. Some events that have gotten less notoriety are gay-bashing incidents and a weird tale from Florida where a city is going to fire its City Manager because he is preparing to undergo a sex-change procedure.

Savage suggests that some (much?) of the blame for these events should be on conservatives who have made demonizing gays part of their political platform. If one sows fear and loathing of gays, Savage says, well, one day those chicken will come home to roost. Okay, maybe I’m mixing metaphors there. But you get the idea. Savage really churns the waters when he compares all this to the conservatives spewing anti-federal-government fervor in the eighties and nineties and the perhaps not entirely unrelated bombing of the Murrah federal building in Oklahoma City.

Now, that’s a controversial position itself, and I’m not trying to re-argue that case. But it got me curious about what the Tim McVeigh equivalent of gay-bashing would be. I don’t think Savage is implying that these events are the equivalent of McVeigh’s crime, but he may be saying we’re headed there. And of course I don’t want to see something like a truck bomb in the Castro district or anything.

But where I think Savage’s comparison might be a little off is not only that we don’t want the anti-gay sentiment to get that heated, but also that the Oklahoma City bombing didn’t seem to usher in an era of big government-loving good feelings, Bill Clinton’s re-election notwithstanding. So I think maybe the better comparison might be with the civil rights movement.

I think there are plenty of differences between the gay rights movement and the black civil rights movement. But events like the incident at the Edmund Pettus Bridge (in the news again this weekend) and people like Bull Connor evoked sympathy and support for the movement. And of course, there were events that were even more tragic, like bombings and assassinations. But the end result, both from the rightness of the cause and the wrongness of their opponents’ tactics, is that nowadays it’s unthinkable to suggest Bull Connor was right.

On the other hand, people are probably always going to debate the proper scope of federal government power, not to mention whether the government is acting intentionally maliciously against us. Tim McVeigh didn’t really change that. So maybe, instead, Dan Savage should compare Tim Hardaway to Bull Connor. Again, the analogy isn’t perfect, but I think in the long run it would better serve the gay rights movement.