Saturday, September 02, 2006

Of Beards and Vultures

My good friend, John* (all names are pseudonyms) wished to relive his halcyon days by returning to Voodoo on gay night last night. His sister Clara and her boyfriend have been wanting to visit a gay bar for the longest time, and finally succeeded in rounding up the gays (a harder job than it sounds-ever tried herding your gay friends into a car after a gb party while they're trying to collect phone numbers?: 'Yes darling, I'll see you Thursday week, no darling, you're fabulous, Hunnnnnnyyyyy-where have you been these last few millenia? And that hair! it's simply awful!), and getting us to town.

In spite of efforts that would make any sheepdog proud, we had to make a diversion - to Theo Brohma's - anyone knows that a gay man has three tragic loves which make his life sooo much more complicated...Ferragamo (or similar) shoes, creamy, mousse-y desserts, and his mother. We walked in, only to encounter tables filled with the 'we're cool enough to have gone to a club on Ganesh Chaturti night, but we're sooo cool that we ended up making our own little party at a coffee shop' crowd. After attempting to eat a cream cheese pastry sans cream cheese, and a fabulous vodka-chocolate-green chilli mousse, I got distracted by a vulture - stuck to a man's face.

Imagine, if you will, a vulture, gyps atratus even, with two, long, tapering, pointed wings, extending from a solid body. Flatten this image, and affix it to the chin of a man, with curly hair just on the chin, with two wings extending,and tapering to a precise point just below the ears, in a precise triangle, like the wings of a Boeing 777. Facial hirsuteness in India never fails to edify, entertain, and emotionally distress. The hair, in short, disagreed with the vodka chilli mousse, and I had to get myself home.

The image of the beard (if you can call it that) kept appending itself, in my imagination, to the faces of every man, and several women (who seemed, as a point of interest, to have faces more suited to that shape) that I saw. Jumping into one of the last trains, and grabbing a window seat I found myself sitting opposite someone chewing paan (or supari-I'm not sure which). I watched in horrified fascination as he carefully avoided his imaginary beard (or my imaginary beard on him) and spat out the red contents of his mouth from two feet away, through window bars 3 inches away from one another. The US just needs to replace their soldiers in Iraq with a few ranks of these spitting stalwarts - no rebel born of a woman could withstand what could easily qualify as a highly hazardous biological weapon, shot with unerring aim. He and I happened to get out at the same station, and, licking residual gun powder from his lips, like a true gentleman, he introduced himself as Peter Roberts. About to politely inquire into his relationship with John Roberts, I decided to refrain. Marrying as he did at the senile age of 41, bringing up the name of the Chief Justice could not but bring shame to an honorable family, who had all their other sons at least, married at half that age, to girls half their age.

I returned home, called Clara, who confirmed that her boyfriend had had an 'interesting' time in the bar: the clever boy, who had his girlfriend keep herself covered from view in the men's compartment of the train when surrounded by the rest of us, had cleverly worn a tight, stretchable, black T-shirt to a bar filled with people who - lets just charitably say, would make my spitting soldier look like Mr. Big (with a vulture shaped beard). He stood, ass to wall, the entire night.

Poetry...I think...

Worse poetry: 1:41am

The sun through the curtains
Of gossamer white
The light filters through
The lids of my eyes

The warmth on my cheeks
The sheets 'gainst my skin
My head on his chest
Tucked beneath his chin

The purdah of a smiling face
Conceals the person inside
As well as those worn
By any sheikhs bride

For whom do you wai
tWith your sly, sad smile
With lie upon lie
-no substance, just style?

Are you who
You say you are?
Do you trust me
More than I trust thee?

Do I want you to go?
Do you like
What I have said?
Do you want to go?

The eyes open
The curtain drops
The heart beats

Above written as a response to something over at Kunal's blog...not quite sure why...possibly because its 3:40 am, and friends are dancing over at a bar, and I'm not as I'm rather sleepy

night...and Happy Birthday David S...Dunno where I'd be without your AIM advice when stewing in Japan...


Hi All

I've had to repost all the posts as I changed profiles...just to explain the seeming practically simultaneous posting...

Brady Hobbs

When Miranda, our gutsy, cynical lawyer from Sex and the City, decided not to go the abortion way, and decided, instead, to have the baby, (besides shocking the be-jaayzuz out of us) the issues that were brought up implicated nearly every single one of the points brought up by Jack Balkin in his recent, excellent, discussion of the issue. The delectable associate, Max, ( those 'brunets' with the flowing locks) proved that beautiful hair may not grow from the best brains, by 'outing' her as a pregnant women at work. Even worse, of course Miranda had to head back home during FLEET WEEK to take care of Brady...Job (of Jehoval wrath), in my opinion, had a party compared to this.(Vince may or may not remember the time when, while walking through Times Square during this time of the year, with him explaining some abstruse point or the other, he realised he was talking to empty air - without his realising, I had reflexively turned around, and begun following a couple of sailors across Times Square). Her flatulence problems, enforced celibacy from the fourth season, and her various maternal crises in the 5th all point to the terrors of pregnancy and motherhood respectively.

The hardship of pregnancy and motherhood therefore, even for a rich, 'liberated', NYC mother, who gets to give her child her own last name, and hire both a nanny and a cleaning lady is hard. How much harder, Balkin points out (though not exactly by citing Sex and the City -though he should have) is it for women not so fortunately situated. And how much harder still, is it for those, who are forced to undergo the experience involuntarily, implicating both liberty interests as well as equal protection issues, by forcibly relegating them to a 'second class' of citizens (by deprival of said liberty) who cannot, like normal citizens fulfilling their 'patriotic duty', take part in the pursuit of sailors on fleet week. (See Section 4, which includes an intersting discussion of the intertwining of liberty (due process) and equal protection interests).

That pregnancy (Correction: abortion!) has become an accepted 'privilege and immunity' under a 'dynamic declatory rights' doctrine (Sec 2, or at least, under an evolving expected application of substantive due process doctrine), at least in NYC, is undeniable. When she found out it was pregnant, it was taken for granted that Miranda would abort - she changed her mind, not because she felt she didn't have the right to abort, but because she exercised a right (perhaps as controversial, and therefore equally profound in New York single society as its opposite would be in Texas married society) NOT to abort.

Balkin is a hero of mine. There are certain issues with his expected applications doctrine, but it is the most convincing theory of constitutional interpretation I have yet come across in my limited experience. In spite of not citing Sex and the City, against all odds, he establishes the claim that the right to abortion comes under the protective umbrella of both liberty and equality claims of the 14th Amendment. However, after reading possibly the most persuasive justification of the rights of abortion I have until date, I realised that I still wasn't persuaded by one part of his argument, namely, his complete refutation of the rights of an unborn Brady Hobbs.

Let's get it straight at the outset. I don't personally believe that the unborn have constitutional rights. However, the fundamental confusion I find in Balkin's paper is that he confuses the fact that the constitution does not say that foetuses are citizens with the fact that the constitution says that foetuses are not citizens.

Balkin presents a persuasive case that foetuses are not considered as ‘persons’ under the constitution. When one applies the text of the 14th Amendment referring to persons to today’s conception of personhood, there is indeed nothing to suggest that it, or any other section of the constitution protects the life of the foetus. Thus, the Court cannot, as Balkin rightly notes, extend federal constitutional protection to foetuses which may be aborted under State law.

However, Balkin goes further. He claims that the Court may deny the foetuses such protection; that from reading the Constitution, the Court can conclude that the foetuses have nonexistent or minimal rights, allowing the right of the mother to trump theirs. As per Balkin’s own theory of constitutional interpretation however, there must be some text in the Constitution, the application of which, leads to Balkin’s conclusion. However, as he successfully proves- there is no such text in the first place, that can be construed to apply to foetuses at all.

Foetuses then are in legal limbo: someone has to determine what rights they have. My little sister could tell you that the Constitution is not subject to inferential rules of statutory interpretation. Balkin could have claimed that a foetus has NO rights iff he had provided some theory under which the federal government would have the power to state whether the foetus is a life, and (at least in 1973) if the federal government had actually done so. (Whether the government has done so today, I’ll leave up to you). Balkin has not attempted at providing such a theory. If he had, it is my contention that he would have fallen at the first hurdle: the federal government does have the power to make this determination. (Where that leaves various federal laws today, I’ll leave up to you to decide.)

You can see where I’m leading with this: the states get to tell you whether the foetus is a life-we have to leave the realm of sole federal jurisdiction. Now, if a state (through adjudication by its court, or clear statement in its laws) agrees that the foetus has no rights, then, again, there is no issue – each girl can have an abortion at 16. However, if a state claims that a foetus is a person then we have a situation in which one party enjoys rights conferred on it by the state, acting within its powers, and another party has rights conferred by the federal government. I honestly don’t know much about torts, but I suspect that the correct referee at this point would be a state court, who would have to weigh the rights of both parties against each other.

The thing here is to not conceive of the issue solely as the State impinging on the fundamental civil liberties of an individual, with the usual doctrinal constitutional safeguards being applied – in this case requiring a compelling state interest, to trump the liberty. The State and the woman are the only actors only in those states where the foetus is clearly NOT a person. In those states where a foetus is considered a person, we are entering the realm of balancing the rights of individuals or entities against each other, thus invoking a different set of doctrinal rules.

Finally, Balkin’s last few points regarding the fact that State laws often do not conform to the perception that a foetus is a person may weigh heavily in favor of the belief that states believe, in fact that foetuses are NOT persons, allowing the constitutional rights of women to trump their rights.

However, the determination is for a state court to make (or a federal court, if the latter get jurisdiction if one of the parties has federal rights at stake). Now, what a judge on such a tribunal may actually explain away this non-uniformity quite convincingly. To assign rights to foetuses, one does not have to conceive of them as ‘persons’, either before quickening or after quickening (as many others, more citable than me, have already pointed out). Corporations, for example, enjoy several of the rights of persons, though under no theory of expected application are they truly ‘persons’ (a quality they share with several of my dates :p ). Different entities can have a different level of rights from fully fledged persons. Thus, a society may believe that a foetus has a certain right to life less than that of a person, but fundamental nevertheless. It can value that right higher than that of a woman to have a regular abortion, unless there are circumstances that increases the burden on the woman to bear the child – one could quite conceivably make a claim that bearing a child conceived through rape or incest is heavier than that of bearing a child conceived through consensual adult sex, and that the weight of the former burden may trump rights that the latter cannot.

A final note to this LONG, LONG post is basically a thought that if Dworkin is right and foetuses do not have rights, but simply ‘detached’ value, then the action may be in federal court, as technically, the foetus would have no rights claims to assert, and it would essentially be the woman suing for her rights against alleged State interest. But that I leave for more expert minds who will hopefully comment.

Strange Bedfellows: Sex and Another Constitution

It is a truth universally acknowledged that a man in possession of a good fortune and faculties must, generally be in want of a similarly situated man. A Jewish friend of mine notes that Eve (of Adam and...) was created, not from Adam's head to be higher than him, or from his foot to be lower, but from his rib to be his equal. What I'm trying to get at is that if, in a relationship, there is no unity of sense or sensibility, (seriously, I need to be exorcised of Jane Austen) if there is no similarity of personality, or moral code, or family background, or interest, or occupation, or manner, or common goals it is doubtful that a friendship, much less a marriage (see Charlotte and Eric), will succeed.

What is true for a marriage of people, then, is no doubt also true of a marriage of states...if states that come together under the chupah of a constitution, it is necessary that they have at least something thing in common, else be small enough to see themselves as a single 'individual' state. Again this all seems to be a bit of a truism...

A few days ago, I was speaking to a good friend of mine about India, its problems and its future. India has many problems - bribery, corruption, poverty, overpopulation, supersitition (which goes along with female subjugation). It's good bits have to do with its variety and diversity. The obvious solution then, would be to have a government in place to solve all these problems. Why, you may ask, has the government not been able to do so until now, in a country where democractic participation (in polls) is among the highest in the world.

One reason at least, is that India is massive. It's the 7th largest country in the world and has the 2nd largest population. It is impossible for Parliamentary representatives to truly represent the people of India. The number of representatives (lower house): 545, the number of people: 1 billion plus. You may or may not be Indian-but you should be able to do the math. It is impossible that all the members of a constituency of nearly 2 million will have homogenous interests,or be able to communicate those interests to their representative. Thus, a large percentage of Indians are not effectively represented.

To gain the votes of their massive constituency, many representatives rely on force, most rely on middle men, who may be village leaders or the localities' mafia lords. These middle men can get the votes of the people they rule. (For a comparatively realistic situation of politics in rural North India, see Omkara, an adaptation of Othello). In turn, if the representative himself is not the 'overlord', he is coerced into following these demands of these middle men, rather than what he believes to be those of the people who should be represented. These demands are, to a large extent, those of a semi-educated, conservative, feudal group, who eschew social reformation, and wish to maintain rigid hierarchy, both for self preservation, and as a moral imperative. In this way, the basic needs of the people-education, health, food and shelter are either not provided, or if provided, are done so to local lords in a way that solidify their own position in local society, who neither knows, nor cares about a distant government in Delhi.

Second, India truly is a divided country, divided between the rich and the poor, between barriers of religion, caste, and class. The problems of one part of the country differ completely from those of other parts of the country. Thus, some parts of the country may need economic protection and quotas ('affirmative action'); some may need the government to focus on programs providing basic food, health and education; some may need to focus on cultural reformation, and eradication of practices like sati, female infanticide, etc. Others can afford to make their primary considerations foreign dictators and sexual deviancy.

Now, this would not be an issue if our politicians realised the need for a policy domestically tailored to meet the precise needs of various areas. However, the ideologues in our government are more harmful than the ideologues of other large democracies, such as the United States. The US, compared to India, is a largely homogenous country. Disparities in income, while increasing, (since, the 1970s-so much for Reaganomics) certainly are not even comparative to that of India. Cultural differences are practically, (comparatively) nonexistent. Most people can speak the same language. In India, my neighbors speak only English, the shop keeper downstairs speaks only Hindi, my maid addresses me in Marathi with Hindi grammar (as I don't speak Marathi), go 200 km south and you enter areas where they speak neither national language, but various regional languages which are further away from Hindi than Hindi is from English, with scripts as similar to Hindi, as Japanese. Furthermore, America has remained (despite the best efforts of Earl Warren) a Christian country, whose Supreme Court justices do not sodomise their wives. While India cannot boast of sodomitical SC justices, (to my knowledge), it does boast of some of the largest religious minorities, with more Muslims than any middle-east country, as many Christians as several smaller European countries, and several indigenous religions to boot.

Given these facts, when left-wing members of a coalition demand that the government create national policies (such as increasing quotas for ethnic minorities in universities), some areas which do not need these policies, are disserviced. Similarly, with greater disparities in income and education between states than any elected government its size, states that are more financially independent are held back by policies designed for poorer states, and have to bear unequal support of a national economy. Finally, because of this 'diversity', India faces more known separatist movements than any other country its size, with demands from and terrorism in the north, south, east, and (until lately) west for separate states for regional and religious minorities. States themselves often obstruct the policies of the national government which they (often, rightly) believe will hinder the interests of their people.

The solution which I'm leading up to is drastic, but practical - split India. While it troubles the conscience of every Indian, indoctrinated with myths of unification and legends of Indian brotherhood, it seems to provide a solution to many of the problems I have listed, and have few reasons against it. Of course, instead of a complete split, one could always look at looser political union instead, along the lines of the EU (which is, arguably, more homogenous than India), in which states would have autonomous domestic policies and agendas and coordinate (if not the same) foreign policy.

For one thing, more representation. With greater access to political leaders, with the corollary of more visibility of political leaders to the populace there will be greater accountability for political leaders, while the power of unelected mafia lords will decrease. Constituency sizes will decrease, and governments will better be able to adress the unique problems and solutions regarding education and poverty. Furthermore, smaller democracies generally have greater political transparency, having smaller bureaucracies and greater media concentration on smaller government, which would help clean up government.

Finally, even if this argument is not accepted-if readers believe that poor states will remain poor and rich states (i.e.,the South) will get richer, the fact is that today, rich states are, by international standards, still poor, often because they are held back by policies and burdens unsuitable for them. I suggest it would be better for them to first develop completely, and then help poorer neighboring states, rather than trying to limp along, while trying to carry the carcass of a dead elephant at the same time...

What are the reasons then to oppose this loosening of ties? History? The fact is,that India never was a single country. Unification happened because of a unified struggle against the British,not through common culture. However, unifying a country because of a common enemy, while following to some extent, along the lines of the German and Italian unifications, is hardly healthy or sustainable when dealing with a country with greater heterogeneity than either of the other two.Religion? While Hinduism is the main religion, and some people undoubtedly would prefer it to be the state religion, as shown by frequent massacres of Muslims (and Hindus in Muslim neighborhoods) as well as harassment of Christians etc., there are sizeable minorities in the country. In fact, such an argument would play into my hands - it would be better to let those areas that want to form Hindu states form Hindu States (e.g. Gujarat) thus letting the minorities living there know exactly what they are in for. Arguably, even if minorities chose to remain in those states, the majority in the area, having had their superior status acknowledged, would reduce persecution. For example, the Ayodhya/Babri Masjid conflict: if Ayodhya fell within a Hindu State, there could be no conflict regarding its disposal, as the state religion would dictate the result, and while there would possibly be dissatisfaction among the Muslim minority, there could hardly be contention among the general population, and indecision as to what should be done, as the issue would have been handled according to the legal dictates of the State. Most Muslims, knowing that they could not affect the issue would not bother agitating in the first place: behavior theory tells us that we will only fight for an issue, if the issue is undecided, not if it already decided in one way or the other.

Finally, there is the major issue of sentiment. I do not heartlessly dismantle the structure created with the loving care, and blessed with the martyred blood of so many freedom fighters and historical statesmen. Instead, I look at the yawning abyss into which this structure is leaning, into which it will topple and slide, if it not, as lovingly, albeit heartrendingly taken apart, brick by brick, piece by piece, hopefully one day to be reconstructed on firmer ground. This is a solution in which India as a whole can be glued back together again, rather than splintering and foundering in oblivion.

Disclaimer: I'm not an expert on India or developing countries. Also, as a wannabe historian, I know the dangers of talking in counterfactuals. Thus, please correct facts and opinions you think should

Sex and the Supreme Court

I could be optimistic and hope that this blog reaches out to the cake (or brioche)-eating multitudes out there, but I suspect that very few people (including my mother who gets schocked by sex and bored by the Constitution) will read this. So, thank you, if you're here.

I have asked myself, time and time again - why do people write blogs. There are people I know with busy busy lives, who cannot read anything (because of time constraints) who still blog voluminously. The answer I suspect lies somewhere in between the need Beethoven had to write music even when he couldn't hear it, and the need some of us feel (as I have begun to) to produce written work even after we leave college

...and what will I write about? About people and politics, focusing on the title subjects therein, I suspect. There will definitely be those who write about both subjects, singly or together, better than I (see example, Underneath Their Robes, on the right of this blog). Do send me such links, and be forgiving...

So moving on to sex and the constitution - I don't know if any of you out there noticed it, but the Constitution is sexy. Besides embracing all races, all sexes, to perform all sorts of sexual acts (in privacy) and getting rid of the consequences, it is also mysterious and resists interpretation, even when it is handled by 8 men and 1 woman at the same time.

So, let us say HBO realised the potential for this new show, whom should they cast? Well, surely, a few of the members of our current Court would want to move onto the silver screen...

Charlotte: Scalia
Justification: Much like Charlotte, Scalia seems not to have masturbated, and is shocked that anyone else can. Furthermore, like Scalia, I suspect that Charlotte has never sodomised her spouse (or have they). Like Charlotte, Scalia also likes high art (i.e., the opera), but is decidedly, not as sweet.

Samantha: Stevens
Justification: The only thing standard about Stevens is his constitutional liberation, and openness to new like his namesake. He often chooses novel takes on issues that you and I would see in a more...sober...light.
Other close contenders...: Clarence Thomas, for gettin' it on, and Sandy O'Connor for being such a babe.Miranda:

Justification: Like Miranda, O'Connor is a practical, clever woman, who is independent, and goes her own way. She is Carrie's (Kennedy's) closest ally, and like Miranda, has also delivered babies (grasping at straws here). Like Miranda, she nearly justified getting rid of the baby but not quite.
Other Contenders: Scalia, for being the bitchiest SOB around...but then Miranda ain't that bad. Also, as noted above, I suspect that Scalia does like the tookus, which Miranda decidedly does not.

Carrie: Kennedy
Justification: Some may gasp, some may grimace, there may be wailing and gnashing of teeth. "How," some inquiring minds will want to know "with 6 perfectly good justices left to choose from, did you get him!" Well, like Carrie, Kennedy has spent ages flitting from one guy, to the next, back to the previous one, searching for the perfect judicial doctrine, (and the perfect pair of foreign laws to go with his handbag). His writing has the same level of rigid reasoning and precision (though, it just isn't Vogue). And no one who has seen his smiling face can deny that he is just the cutest thing alive...
Supporting Cast:Well, we're left with a few more Justices, and while we can't satisfy all of them... (suggestions to do so are welcome of course), here's what we can do with some...

Stanford Blach-Souter....Res ipsa loquitur
Mr. above,but I must add:

Suggestions for the remaining three?