Tuesday, June 8, 2010


I wanted to do a follow-up Post restating or amplifying for clarity what I was driving at in the Nussbaum Post. I covered a lot of ground and there were – I think – some important points.

Before doing that, I have to make note of the Ohio Supreme Court Opinion in Bodyke and the US Supreme Court’s (happily surprising) Opinion in Carr. The cases are discussed at length on the several fine SO sites, and as so often, the Constitutional Fights site is an excellent gateway.

In both cases the Courts have decided against AWA and in favor of the SOs. (And there is a further piece there about how States are still concerned about the financial costs of implementing AWA even with Obama’s sly addition of law-enforcement funding to cover some of the expenses; the start-up and projected expansion and maintenance costs have been – surprise! – understated by supporters of AWA, and the States – I wonder about the public – are shrewd enough to realize that they are going to get stuck not only with a big bill, but an ever-expanding bill for the whole thing.)

In Bodyke the increasingly interesting Ohio Supreme Court ruled that SOs cannot be reclassified by AWA if they have already been classified by court action (i.e. they were classified as part of the judgment that convicted them); this is a Separation of Powers ground (i.e. the Legislative and Executive cannot ‘decree’ changes to established Judicial Branch decisions).

Now this doesn’t reach – and the Court seems purposely to avoid the thorny thing – the issue of Retroactivity: can you retroactively add punishments to a crime for which one has already been convicted? As you may know, to raise the Retroactivity issue a Court would then have to formally decide whether AWA (and perhaps all of the Registration and Notification regime) is ‘criminal’ rather than ‘civil’; and that would be a truly huge decision.

As it stands, there are now 26, 000 or so Ohio SOs who must immediately be put back to their original conviction-classification on the AWA-compliant Ohio registry. Constitutional Fights reports that it actually called the Ohio Attorney General’s office and was put on hold and then given a run-around as to when the AG was going to get around to completing that now Court-mandated task; if the SOs’ names are left on the internet Registry in their new (and enhanced) AWA classification then the State itself will be committing an illegal act.

This will only have ramifications for SOs in States where the classification is actually part of the conviction sentence by the trial court. But Ohio is not the only State where that is done, and so this case will set a most happy precedent.

In a larger sense, of course, the Ohio Bodyke case signals a judicial unease with the AWA (and perhaps entire SORNA) regime. And while the more professional SO sites, where attorneys make comments, are right to note that the actual legal effects are not large, yet still there is the unmistakable sense that the winds are changing.

There was a Dissent in the case where one of the Ohio Justices opined that reclassification is merely administrative and not a ‘further punishment’ – but that’s the old song.

In the even more surprising Carr case, the US Supreme Court, although divided 6-3, said that Carr could not be charged with a SORNA violation for an act that took place before the AWA law took effect. Again, the Court here does not clearly reach the Ex Post Facto or Retroactivity issues, which – if decided against AWA – would be lethal to the SO Mania law regime.

Instead, the Court simply states that Congress did not expressly authorize Retroactive application in the AWA enabling legislation. So it’s something of a ‘technicality’ – the Court leaves for another day the heavy-lifting involved in tackling head-on the Constitutionality of the regime. Congress could re-write AWA to expressly order retroactive application, and then the matter would have to make its way back up to the Supreme Court on those grounds.

Of interest here is that Justice Sotomayor wrote the majority Opinion, while Justice Ginsburg – the other woman on the Court – Dissented. Sotomayor is deploying a bit of feminist-law thinking: that you have to consider not simply the formal law in question, but also take into account the effect upon those who must bear the burden of the law.

Ginsburg – true to a form that has not been sufficiently examined – seems to be writing from an older feminist-law thread whereby ‘women’ must be aggressively protected from male sex aggression and any law that works toward that must be upheld. I also note that Ginsburg operates well within the Nussbaum vision: since it is a ‘given’ that males ‘aggress’ against women sexually, then women’s rights are thereby violated and the government must use its sovereign legislative and police powers immediately and aggressively to put a stop to that. (Although the SO community is well aware of how ineffective the SO regime laws really are even in achieving their stated purposes of public and women’s purported safety.)

See my thoughts further on in this Post where I discuss that thread and its approach a bit more.

All in all, I am verrrrry leery of the feminist-law approach and the mind-set that underlies it.

(Which is not at all to say that I support genuine sexual offending by anybody of any age or gender against anybody of any age or gender; nor am I anti-woman or misogynist or in favor of female Citizens being deprived of Constitutional protections.)

And while it is nice to see how even feminist-inspired legal thinking can actually work in favor of SOs, I also realize that the entire SO Mania is profoundly inspired by the general feminist-law approach as it has evolved in this country over the past few decades.

So much for the cases. Let me move on to some further discussion of Nussbaum – since her vision is a major element in the theoretical underpinning of the feminist-law agenda.

As I had said in my previous Post, it seems to me that the 1970s saw feminist-law thinking and strategizing adopt the Black Civil Rights paradigm. In that paradigm, it was simply (and generally) accepted as true and as a given that the South of the Jim Crow Era (between roughly 1875 and 1965) clearly discriminated against Blacks in the South in such profound and clearly un-Constitutional ways that the government was justified in stepping in and vigorously re-arranging Southern culture and society in order to finally put an end to the whole Jim Crow regime.

Thus the government would be ‘regulating’ the South and its laws and its culture through aggressive action. So there was a ‘presumption of guilt’ – and that presumption was made against all Southerners such that you pretty much could and had to presume that everyone and everything down there was ‘tainted’ with Jim Crow thinking.

Nor did you have to presume that Southerners were individually and consciously seeking to abrogate or suppress the Constitutional rights of Blacks in the South: Jim Crow was so much a part of the warp and woof of Southern culture of that Era that even ‘decent’ white Southerners who had no conscious and deliberate ill or malicious intentions could grow up in that culture simply assuming the ‘normality’ (and even Constitutionality) of Jim Crow.

Thus ‘regulatory’ law would be the paradigm: the government would literally re-form or re-shape Southern culture so that it would no longer provide a seed-ground for Jim Crow-type suppression of Black Constitutional rights. And, as I said, this ‘regulation’ presumed the tainted nature of Southern culture and of the mind-set of most Southerners.

And Southern law – though ‘legal’ – and Southern legal thought had to be overridden in any instance where it operated to effectively deprive Southern Blacks of their Constitutional rights.
This might work in a ‘regulatory’ law approach.

But you can see where it bodes hugely dangerous trouble if applied to the practice of Constitutional criminal law: you cannot, in Constitutional criminal law, ‘presume’ the ‘guilt’ of an accused defendant. Indeed, such a presumption is not only un-Constitutional but profoundly anti-Constitutional.

Feminist law – and Nussbaum insofar as she codifies feminist-law thinking and underpins the feminist-law agenda – adopted the Black Civil Rights approach as it sought (and seeks) to re-shape American culture.

Thus, according to the paradigm: American culture is as hostile to women - and even more so - as Jim Crow culture was to Blacks; and since then the entire American culture is ‘tainted’ with those habits of thinking and acting, and since American law and jurispraxis is so tainted as well, then the government sovereign power must be deployed against American culture and the ‘male’ mind-set just as aggressively as it had been against the anti-Black Jim Crow culture and mind-set in the South.

Thus much of the ‘culture war’ dynamic as it has played out in the country for the past decades. Although most media and public attention was focused on ‘instances’ of such deprivation, rather than on the deeper legal thinking that was starting to flood in with ‘feminist law’.

But then in the Domestic Violence and Sex Offense legislation, you start to see the migration of this ‘regulatory’ approach into the criminal law.

Thus for example, the ‘male’ is ‘presumed’ to be violating the rights of the female, and the government power thus must be exercised not to determine guilt (which is already presumed) but rather to ‘vindicate’ the rights of the female (increasingly cast as ‘the victim’).

You can see this clearly and quickly in the Domestic Violence entry in the massive “Corpus Juris Secundum”*, the legal encyclopedia that amasses all of the case law in a given area of legal practice. A 1987 Pennsylvania case is cited** wherein a court upholds the Domestic Violence legislation against Constitutional challenge by stating that such (at that time) apparently un-Constitutional novelties as ex parte court procedures, deprivation of access to property and family, warrantless arrests on the say-so of one person, and many of the other elements of Domestic Violence law were justified because of a) the ‘emergency’ of (male) violence and b) “to compensate for deficiencies in the criminal justice system”.

Note the ‘emergency’ bit. The SO community will recognize it.

Note too that the “deficiencies” the court refers to are actually the Constitutional principles precisely set up by the Framers to prevent the hasty and emotional misapplication of the sovereign police power against a Citizen. IT WAS PRECISELY TO GET AROUND THEM that the feminist-law approach – with its incessant trumpeting of ‘emergencies’ that precisely DO require ‘hasty’ action – selected the ‘back-door’ paradigm of Civil and Constitutional Rights in order to insinuate itself into the American legal system.

Thus, Domestic Violence law is ‘civil’ and ‘regulatory’ in nature and not ‘criminal’ (although, neatly, if you violate a DV protection order then you are subject to criminal penalties).

And it ‘presumes’ the ongoing offenses on the part of the ‘male’ just as the Civil Rights Era anti-Jim Crow regulatory approach presumed the racism of the Southern culture and population, regardless of whether any of those folks thought they were committing, or intended willfully to commit, a crime.

And in the 1980s Domestic Violence law you start to see verrrry queasy ‘reforms’ that – by the way – are not at all unfamiliar to the SO community: these are ‘civil’ and not ‘criminal’ procedures (although – tee hee – criminal sanctions apply if you violate the Protective Orders); the ‘emergency’ is soooo great that SOMEthing must be done without any further delay; the goal is not ‘punishment’ but MERELY ‘prevention’; the now-traditional promise that the whole regime will ‘end’ something (in the Domestic Violence scheme, ending ‘family disruption’); and the grab-bag of dangerous tactics: ex parte issuance of Orders, warrantless arrests even on one’s own property, accepting the ‘word’ of the reporting party as sufficient to deploy the police power, as well as the de facto presumption of guilt.

Now what starts with Domestic Violence is taken to a dangerously aggressive new level in the 1990s Sex Offense regime – you are seeing an even clearer migration of the ‘regulatory’ into the ‘criminal law’ arena. And that’s on top of the whole invasive government-power paradigm derived from the Civil Rights Era.

The effect – and I believe the intent – of the feminist-law approach here is to sidestep or get-around the Constitutional safeguards that protect individual Citizens from the invasive and hasty application of the sovereign government police power through the criminal law.

Thus, SOs, like the Southerners of the Jim Crow Era paradigm, are presumed to be violent and dangerous; and thus they must be ‘regulated’ in the interests of an aggrieved group whose rights are already known to have been violated such that the government is not creating a ‘new’ level of invasiveness but rather is merely stepping-in to redress a long-standing abrogation of ‘rights’.

And thus SOs are not so much individual Citizens who – at most – have deliberately committed a crime; rather, like those Jim Crow Southerners, they are a deeply misguided group that has – whether deliberately or otherwise – been violating ‘rights’ and have to be stopped through ‘regulation’.

AND you can presume as a given that they indeed are doing the violating. And so any ‘trial’ is going to be a ‘show trial’ in the formal sense: a trial not to ascertain guilt or innocence, but rather to ‘show’ that the government power will redress, prevent, avenge against actions that are so abusive of others’ rights that the actions must be stopped immediately.

THIS, I think, helps explain the profound intransigence of legislators and jurists in the matter of establishing and critically analyzing the SO Mania regime of laws. They are not simply politically pandering to vocal ‘interests’ (although that too now is a major element in this thing). Rather, they are convinced by this ‘regulatory’ paradigm (long espoused by Justice Ginsburg, and codified in the law schools by Professor Nussbaum) that they are doing The Right Thing, the same way that the legislators of the 1960s did The Right Thing by putting an end to Jim Crow culture in the South.

So the ‘regulatory’ and ‘civil’ aspects of the SO regime are actually vital elements of the Mania, specifically and deliberately (I would say) selected precisely as a way of circumventing ‘traditional’ American Constitutional safeguards.

To put it another way: if you have a ‘right’ not to have a crime committed against you, then any crime committed against you can be construed as a violation of your purported ‘Constitutional right’ not to have a crime committed against you (or, put another way, your ‘right’ not-to-live-in-fear-of-a-crime-being-committed-against-you). THIS THEN triggers the Southern Jim Crow paradigm, whereby you are having your ‘Constitutional rights’ violated and the ‘defendant’ or alleged perpetrator is now also an ongoing civil-rights violator.

AND ONCE THAT paradigm is accepted, then the classic and traditional (and indispensable) Constitutional rights accorded to accused Citizens that are enshrined in the Constitution are effectively sidestepped and you can be treated by the government not as the classic ‘defendant’ but rather as an already-presumed civil-rights-violator; and there go your rights.

And since the whole thing is a matter of ‘civil rights’ and not of a specific alleged crime, then not only are your Constitutional protections sidestepped but you are subjected to the tripwire jurisprudence and legislation that are the consequence and legacy of the anti-Jim Crow campaign of the Civil Rights Era.

Verrrrry neat. Verrrrrrrrrrrrrry dangerous.

This entire dynamic is reinforced by Nussbaum’s long held belief that ‘emotions’ are themselves a form of ‘reasoning’ rather than a potentially dangerous rival to ‘reasoning’. (Which is a curious position for a feminist, who might reliably be imagined to refuse any such equation of ‘female’ and ‘emotionality’ as opposed to ‘rationality’ – but Nussbaum tries to solve that problem for herself by claiming that ‘emotionality’ is a form of ‘rationality’ … neat.)

And of course, one of the primary emotions is Fear – and once that is introduced as a primary element in jurisprudence and in the justification for sweeping police-power legislation (even when costumed in ‘civil’ or ‘regulatory’ sheeps-clothing) – then any Constitutional ethos is in a heepa trubble.

Ditto ‘outrage’ if you presume or discover yourself to have been denied your ‘rights’ all along.

Ditto raging impatience as you feel yourself justified to ‘demand’ immediate redress and vengeance.

Ditto the legislators and jurists who then want to mollify all these raging feelings and yet still claim to be acting (legislating, adjudicating) ‘rationally’.


And further, I had mentioned in the previous Post that Nussbaum wants to see her concept of ‘rights’ imposed by courts – especially the Supreme Court, because she doesn’t really trust ‘politicians’ or the ‘political process’ any more. But of course, you couldn’t trust the Jim Crow Era Southerners to clean up their own culture because they were so thoroughly used to it that they would neither be motivated to change nor able to see what had to be changed in the first place.

In the Nussbaum-Ginsburg vision, American culture (and – even more sweepingly – human culture) is as profoundly besotted and deformed by ‘male’ and ‘macho’ thinking and acting (especially in matters sexual) as Jim Crow culture was besotted and deformed by anti-Black racism.

And that therefore, in terms of the paradigm, American and world culture must be as vigorously and aggressively ‘changed’ as the culture of the Jim Crow South was.

Hence you get a Beltway, now, that considers itself empowered to do all of that.

And – since the trouble is not so much a ‘criminal’ act as it is a thoroughly tainted and debased 'white and male' cultural outlook and way of living and thinking and being – then the government sovereign power must be deployed against the most profound core of the national culture itself.

This is a recipe for a lot of things, not all of them good. But it certainly requires something more than a ‘limited government’ in the Constitutional and Framing vision – which is precisely why the Constitution has been under sustained and lethally profound assault not only from the Right but from the Left (which was supposed to be the ‘liberal’ and pro-people side).

And, I think, it is the profound un-ease evinced in the hearts and minds of the Citizenry that has constituted so much sustained hesitation about embracing this vision that Nussbaum now (in her 2007 article) effectively declares that ‘democracy’ cannot be trusted to ensure her vision of ‘rights’! So she looks to the courts. (And thus you can see why, on a much deeper level than is usually noticed, it is essential that persons (and not necessarily female) who buy into this vision are appointed to the Supreme Court.)


Which brings me to my last point: defining ‘rights’ in all of this. There are, I would suggest, three overall conceptions of American Constitutional rights: the first is the 1787 vision: Americans as individuals and as a civil society have a right to be free from any excessive government (National even more than State) intrusion or aggressive action that is not most clearly and undeniably justified. In this vision, the government police power and sovereign authority must be bound so as not to flood like the Mississippi and wreck everything built up along its banks and flood-plain.

The second vision is FDR’s rather overly capacious ‘Second Bill of Rights’ of 1944: every American should have a right to a job with a living wage, a home, freedom from unfair competition and monopolies, medical care and education. Now the government power is envisioned not simply as keeping the boundaries of the national ‘playing field’ steady and level and clear but is actually going to be running the national ‘game’ – this suggestion of FDR’s was a huge (and not altogether workable) change from the 1787 vision.

Even more so was his Four Freedoms: freedom OF speech and expression and freedom OF religion; but also freedom FROM want and FROM fear. You can see quickly that any government that would seek to implement the provision of such Freedoms as FDR proposes was going to have to be a verrrry busy government indeed.

And to stay relevant to SO matters, this Freedom From Fear: if a government has guaranteed to its people that it will protect them from all Fear, then that government is going to need the wisdom and organizational ability and authority of ‘God’. And if you watch the development of feminism and victimism through the last few decades in this country – where ‘fear’ seems to be the primary characteristic of Citizens … then you can see where this all can go.

And if on top of that you accept the vision that one group of your own Citizens is by very nature and cultural upbringing the greatest source of ‘fear’ among the rest of the Citizens … you can see quickly where the Sex Offender becomes not simply a Problem, but a Necessary Demon that has to be invented in order to keep the Fear Factor up. Oy.

Or, to put this point another way: the massive post-1965 Second Reconstruction of Southern culture and laws could not have happened unless there was the 'emergency' and 'outrage' posed by the ongoing and violent 'taint' shared by Southern culture and by - for all practical purposes - all Southerners; the Southerners were the ongoing evil perps whose existence was essential to catalyze and justify the massively intrusive extension of Federal authority in those States. So too, I would say that the existence of the ongoing, uncontrollable and irredeemable 'sex offender' is essential to the massive extension of Federal authority in the Sex Offense Mania and its regime of frakkulent laws.

And, of course, all of this dovetails with feminism's Deconstruction-Reconstruction of 'tainted' American culture and society and - oy! - the American Constitutional ethos and even the democratic and deliberative process. (After all: according to Nussbaum, it's not the 'process' but the 'outcome' that is important here: the 'taint' has to be thoroughly uprooted like the Biblical weeds among the wheat - and it has to be done RIGHT NOW because, neatly and slyly if also somewhat incoherently, it is a 'constitutional rights' problem.)

But then there is also this third vision of ‘rights’: Nussbaum’s Capabilities Approach. Here, as I noted in the previous Post, she is claiming that ‘formal rights’ aren’t at all enough: government must do whatever it takes in order to make sure that everyone has AN EQUAL CHANCE to exercise those rights. And once again: when government is not only tasked with keeping itself from intruding into the polity, and not only tasked with ensuring protections that not even Divine Providence has historically guaranteed in this life, but is also tasked with ensuring that absolutely nothing interferes with the Capability to Exercise the Rights that the Constitution guarantees … then you have a Benevolent Despot from hell.

So when the term ‘equal rights’ is thrown around, you have to understand that there are hugely different ‘loads’ that the phrase might be made to bear. And you have to ask the speaker of the phrase just how s/he defines ‘rights’ in order to get an inkling of just how much government power will be necessary to guarantee that they are ‘equal’.

And you can’t ignore the question as to whether any earthly government has a reasonable chance of doing so much. And doing it well.

And whether the government of 1787 – not because it was ‘male’ or ‘majority’ or ‘white’ but simply because it was HUMAN – has any possibility of undertaking such a huge agenda and yet still remaining a limited government.

Thus when you hear folks saying that the Constitution is ‘defective’ or ‘quaint’ or ‘inadequate’ you have to ask yourself some very serious questions as to just what the speaker expects the government and the Constitution to be doing.

Because if feminist law is essentially implying (though slyly not saying it in so many words) that if 'limited Constitutional government' doesn't meet its demands (couched as 'equal rights' arguments) then 'limited Constitutional government' has to go ... if THAT is the core dynamic of their programme, then We most surely have a huge national discussion to conduct.

(And if several decades of generations of law students, law professors, attorneys, prosecutors, and judges at all levels have already been produced under the illusion that this type of dreck is 'cutting edge' and 'progressive' and 'reform' thinking, then We most surely are in a heepa trubble.)

So then, I see after reading Nussbaum , that Sex Offenders and the Mania and its regime are not simply a cynical and duplicitous effort of a failing government to pander to certain ‘interests’ in the hopes of securing electoral support and distracting public attention from its own short-comings. Rather, the SO Mania is simply a step in the deliberate effort, grounded and guided by Nussbaum’s game-plan (Ginsburg the most successful quarterback), to profoundly alter the role of government by seducing it into taking on Objectives and Goals that no human, let alone limited, government can ever realize.

To imagine that such a plan is merely ‘optimistic’ and ‘progressive’ is to imagine that a rhinoceros can fly – or even dance ballet in a tutu.

And the SO community is on the cutting edge of this frightening shift in American governance as it attempts to move the tectonic plates upon which the whole polity rests.

We have a job of work to do.

And the country needs the help more desperately than it knows.


*The CJS is a 100-plus volume copyrighted legal encyclopedia. I can’t find its material online; a large public library or university or law school library would have a set (about $7,000 for the whole). The ‘Domestic Violence’ section starts off Volume 28. . [Verry interestingly, while the CJS has specific article entries for Domestic Violence and for Rape and for Sodomy, it has no article-category for ‘Sex Offenses’; perhaps the editors consider the subject too incoherent to organize; or too changeable to keep up with; or – could it be? – not a real legal category worthy of inclusion in their encyclopedia at all.]

****Yankoskie v. Lenker, 526 A.2d. 429.

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