“the scope of federal citizenship and corresponding powers of the federal government in this light”

1. We have had a modern welfare state (as have other developed nations) since the 1930s.

2. This is not a general, unlimited grant of power to the federal government. Federalism remains; the enumeration of powers in the Constitution, and the Tenth Amendment, continue to make this clear, even if it continues to be dishonored all the time. (We've moved over decades to a de facto if not de jure unitary nation with Washington as a national capital with complete supremacy and few limits.)

3. No, “privileges and immunities” don't apply with so much, including entitlement programs.

4. “Rights” are liberties, freedoms, not claims as in “rights” to things like income support or health care. (Informed and concerned people have always worried that the Ninth Amendment “genie” would be “uncorked” in this dishonest manner someday, such as during the earliest 1990s Clinton years.)

5. Obviously the General Welfare clause doesn't justify entitlement programs (the most stupid kind of equivocation), nor does the Interstate Commerce clause (badly abused in previous years), much less the Preamble (which has no applicability whatsoever).

The “federal citizenship” approach has been badly neglected (in favor of the earlier listed examples).

“federal citizenship and just what the federal government could do nation-wide to its citizens (we have a modern welfare state, associated with the modern concept of citizenship that probably lets some of it slip past any Constitutional filter”

This is where an honest line of legal (and otherwise!) reasoning should be taken with so much today.

And while it involves the obvious threat of activism (all but killing what's left of the Tenth Amendment and what remnants remain of correct construction of the Constitution and constitutional federalism beyond Bob Dole in 1996 carrying the Tenth Amendment in his pocket for campaign appearances), a ruling clarifying (it's risky to say “establishing”) the scope of federal citizenship and corresponding powers of the federal government in this light is long, long overdue. (Ideally this would have happened in the 1930s.)

What is the content of the speech in question? I'm assuming it's not anything and everything people demand be constitutionally protected as “art,” or in personal [mis]conduct as “speech.”

“Speech” here typically means expression and notably political expression (and within that, most important of all being the right to dissent or to criticize government).

If it's political advertising, as a rule it should be protected. (There's no “right” of libel, slander, fraud…)

That advertising costs money is merely a fact of existence, like everything else that costs money. (“Life is classist,” I say to activists on the far Left.)

Note that the federal government routinely suppresses advertising for tobacco and alcohol in what used to be common ways (something I wish were done with prescription drugs, by the way), which is far closer to “speech” than junk claimed to be “art,” for example.

http://books.google.com/books?id=j4ZnFy3f8sAC&d…

http://www.amazon.com/Keep-Bear-Arms-Origins-An…

If it's outmoded, then repeal the Second Amendment and you're free to have states and localities legislate on gun control to their hearts' content. It would remain an open question about the scope of federal citizenship and just what the federal government could do nation-wide to its citizens (we have a modern welfare state, associated with the modern concept of citizenship that probably lets some of it slip past any Constitutional filter, but federalism remains alive in spirit as well as in letter and retains limits or constraints on what Washington should be permitted (NOTE) to do.

There's a difference between truly, honestly interpreting the law (which includes in its scope the extension of words and their correct meanings to apply to things not named or even foreseen by those who wrote and enacted the law, such as air traffic control and air travel and aircraft) and inventing things out of thin air without any legitimate basis (but rather, from views or desires).

It's a shame that the jucidiary has chosen to overreach rather than remain merely a court, and primarily if not exclusively (in practice) an appellate court, concerned with “due process” (were things done legally) rather than “due process” (what someone thinks the law should be).

“2. Do you believe poor defendants should have court appointed attorneys. The Constitution says only they have right to counsel…not a right to publicly paid counsel. The activist case that 'extended' that right is Gideon v. Wainwright.”

Not everything that “extends” meaning is “activist,” and this isn't. (Nor are federal laws which rightly are implied or whose details materialize under the “reasonable and proper” clause. Example: If the feds can create a Post Office, they can also define laws about use of it, and crimes and penalties for harmful conduct against it.) Obviously “shall” implies the requirement to pay for something that must be done. (It's true any time the federal government chooses to do what it “may” do.)

“3. Do you believe in the integration of schools, as opposed to the separate-but-equal doctrine. The activist case that integrated our schools was Brown v. Board of Education.”

??? I believe in societal integration. (I'm surprised you'd ask that.) Brown is somewhat activist but could have been reworded to address the problems here (nobody actually believed that “separate but equal” was truly honored.) Had Brown not been decided, this problem would have been corrected later, eventually, no later than during the Civil Rights era after passage of the Civil Rights act.

“4. Do you believe in a woman's right to choose (maybe you don't).”

This is incorrect language. To choose what? Abortion, obviously.

Do I believe in a woman's right to have an abortion (to abort a pregnancy)? Overall, yes; the later it happens, the more I am bothered by it, as are most people, but to me this is something that has been happening since women have been getting pregnant (it's related to contraception in that light). Is there an unlimited, absolute right to abortion? No; it's the legitimate object of regulation by state and local governments, where it belongs. And there's no “right” as a claim to government-provided or paid-for abortion. That is something for publics and legislatures to decide if it's to be done, or not.

” If you do, the activist case that made choice a possibility and took abortions out of back alleys was Roe v. Wade. (the right to purchase contraceptives is also the result of an activist decsion, btw)”

Both are activist. Roe v. Wade is particularly insulting to honest, intelligent people. While there are others, the most glaring incontrovertible detail of that ruling exemplifying and proving activism is the “trimester rule” portion.

Also activist is, for example, Reynolds v. Sims (successor to Baker v. Carr). It not only is an insult in the choice to rule like this, and to impose whim in place of actual law and legitimacy, and to add to this with sappy sentiment (“Legislators represent people, not trees or acres”). It was not only illegitimate, but was also inconsistent: it only ordered state legislatures fully apportioned on a population basis. It said nothing about local governments, or more notably, the U.S. Senate, all in addition to state legislatures which were and remain fully constitutional.

Back then the Court admitted that it didn't know precisely how to apportion the seats. But with Roe v. Wade the Court actually chose to craft its own law precisely defining the “trimester rules.”

In no way is this anything legitimate such as, for example, clarifying what a law actually means, or resolving a dispute between conflicting laws that have been legitimately enacted.

“Last year the SC made an activist conservative interpretation of the Second Amendment, ignoring the 'militia' clause and holding that the right to bear arms was individual right and not related to a 'well regulated militia'. Do you agree with that activist decision? “

It isn't an activist decision, and of course I agree with it, because it's correct. Not only is the right itself an individual right (see Joyce Lee Malcom's book for the history of it in our English-heritage context, in particular), but in addition, the amendment has never been repealed, so it remains in effect. The only question that actually is raised by it is its scope, and specifically the issue of most (and nearly all) importance is if or to what extent it applies to the federal government (the object of it, by normal understanding) versus the state and local governments, which would be able to legislate on this subject as they saw fit. (But, we have federal citizenship, and states cannot infringe on our rights as federal citizens, can they?.)

Unfortunately, a history decades long of liberal judicial activism has led to the use of the courts as a lefty political weapon, and it goes beyond that to encompass the commonplace and disgusting practice of people not seeking to get laws changed as they should, through elections and the legislatures, but rushing to the courts in hopes of finding a friendly judge who will vote — not “rule” — their way.

I hope more comes out about the trial court situation but I think Tidbits is correct re: the attorny shouldn't have tried to stick with the disability angle – though Cincy can be awfully conservative. Who knows.

I agree with all you've written here – thanks for commenting on the case. I was on a radio show talking about it last night with people in California and wow, their state has just an entirely different approach to women, babies, pregnancy and work. Of course, their budget woes are a lot like Ohio's…:)

1. Do you believe the US Supreme Court should interpret the Constitution? In our early history that was actually a serious debate until the Supreme Court (in probably the most activist decision in its history) took that power unto itself in Marbury v. Madison. Only by capitulation of the other two branches of government did we avoid a constitutional crisis.
2. Do you believe poor defendants should have court appointed attorneys. The Constitution says only they have right to counsel…not a right to publicly paid counsel. The activist case that “extended” that right is Gideon v. Wainwright.
3. Do you believe in the integration of schools, as opposed to the separate-but-equal doctrine. The activist case that integrated our schools was Brown v. Board of Education.
4. Do you believe in a woman's right to choose (maybe you don't). If you do, the activist case that made choice a possibility and took abortions out of back alleys was Roe v. Wade. (the right to purchase contraceptives is also the result of an activist decsion, btw)

And not all activist decisions are liberal or civil liberties related. Last year the SC made an activist conservative interpretation of the Second Amendment, ignoring the “militia” clause and holding that the right to bear arms was individual right and not related to a “well regulated militia”. Do you agree with that activist decision?

In another series of decisions the SC, beginning in the late 70's, recognized commercial speech, not mentioned in the Constitution, as being the equivilent of free speech guaranteed to individuals. Pretty darned activist. Do you agree with that line of decisions?

As I said earlier, many of the rights and privileges we take for granted are the result of activist decisions. Interestingly, probably the most activist judge currently on the SC is Antonin Scalia.

That's what most if not all laws actually should be about, in addition to being tempered by such things as economics (including cost-benefit analysis) and demographics, in this case.

“as reality of population growth and demands press harder on all of us across the globe”

While there's reason for concern about future “resource wars” and other issues related to the development of the lesser developed nations, the reality for our future is that of aging and decline. (The USA is in better shape than other nations because its fertility levels are, and should remain, higher.) The aging will ruin the situation we face (and it will be worse in Europe) with retirement-related government programs. “Replacement [im]migration” at sufficient levels to ameliorate the problem will not be politically possible (and it will be worse in Europe).

One of the books I've linked to before and did so again today, by a realistic 1990s Democrat, used as an example of government-provided day care here in the USA. Already, at that time, it was not possible.

* * *

“Judges today, being so skittish about being labeled “activist”, tend to look for technical grounds to decide cases rather than looking to justice or the societal value of reaching decisions on the merits.”

That's because it's never the correct role of judges to ignore the actual law, and the actual meaning of the law (as intended by those who wrote and enacted it), in favor of their desires or wishes, or to ask instead, “Is it good?” “Is it right?” (And it's far from hypothetical to say what they want can be bad or wrong.) To create law is a legislative task and function alone, not that of the judiciary. The example I've used of a judge creatively “interpreting” your parents' will to say something much different (or even the opposite) of what they've said, written, and obviously mean, will always be illustrative here. Another example is a sports official who believes there's something unjust about the rules of a sport or game and substitutes something “better.”

Because of the “subject matter” indicated by the title of your post, I have been reluctant to even read your post—you see, I am very prudish male.

However once I got the courage to wade in, I found it surprisingly interesting and thought provoking—as proven by the many excellent comments you have received.

Having come in the water so late, there is not much to add, except perhaps that had we had a few wise old (Latinas or not) women on the court with lots of true life experience, the decision might have been different.

By the way, just kidding (a little bit) a bout the “subject matter”.

Dorian

Please stop bringing up the days of Spanish galleon running. I'm still mad about the horse.

z of c

It does appear to me, and I'm reading between the lines, that the trial lwyer tried to depend too much on an ADA claim (disability) and that cost considerable credibility. I agree that partisanship may play a role here, and, perhaps we make a similar point from different directions. Republicans tend to be most acute in their desire to avoid the activist label. They are also, as you point, more “pro-business” in their leanings. If any received campaign contributions from Isotoner and did not recuse him/herself from the case, notice to the Ohio Judicial Fitness Committee may be order, though I don't pretend to know the intricacies of Ohio's ethical standards for judges.

Btw, the term “post pregnancy lactation” was lifted verbatim from the case.

I'm not clear where you think I went overboard.

“The court” in the personas of Justice O'Connor and Chief Justice Moyer absolutely does address whether what you term “post-pregnancy lactation” (there is no such thing as pre-pregnancy lactation that I know of!) is covered under Ohio employment discrimination law and they say yes, it is covered. Likewise Pfeifer says it is, in his dissent. You point that out too.

I honestly don't think this case is about being skittish on being activist – the court is 100% Republican – all judges in Ohio are elected and the laws about mixing party with judges has been loosened over the years. So, I think the party persuasion is part of the issue.

Additionally, I see a “pro-business interpretation where possible” bias in the Ohio Sup Crt and others have over the years as well.

I accept that people will disagree with this interpretation of mine, but I don't see it as reading too much into the opinion. This is all common knowledge about the Ohio Sup Crt.

The only thing I haven't done yet is search who has given money to which judges – I'd like to see if any of the totes/Isotoner folks in Cincy have.

dr.e

The case was decided based on the plaintiff having failed to prove a “discriminatory motive” on the part of Isotoner or that that the reasons for her fring were a “pretext” for discrimination. Understand that an “at will” employee can be fired for any reason or for no reason, just not for the wrong reason.

The concurring opinion suggests the court should reach the issue and would hold that lactation is covered under the employment discrimination law, noting however that it is not a disability, and that they (two judges) would uphold the trial court's dismissal in this particular case because of the lack of proof issue. The dissent also would find lactation within the employment discrimination statute.

The math is this: 3 judges would find lactation to be within Ohio's employment-discrimination statute; 3 judges take no position on the question; and one judge bailed out of the case.

All of this raises the really sensient point that you make. Judges today, being so skittish about being labeled “activist”, tend to look for technical grounds to decide cases rather than looking to justice or the societal value of reaching decisions on the merits. This case is a classic example of that mindset as represented by the three who joined in the main opinion…(paraphrasing) “since we don't need to reach the key issue to decide this particular case, we will punt” (they call it not wanting to issue an advisory opinion). What you see here is the fallout from years of demonizing “activist judges”.

Not just accomodation, but support?

Don't flinch. Pro-natal and pro-family policies might get more support than the low level they have now, as part of our demographic and economic future. Why, even if the expenses are huge? To add to the number of taxpayers and ease the growth in dependency ratios in the future, that is why.

Ben Wattenberg is the guy here in the States formerly best known for bringing attention to “the Birth Dearth” and aging in general long before it become a big issue elsewhere, including at the UN and CSIS, for example; Phillip Longman (“The Empty Cradle”) is a more recent author on this subject.

Just don't be naive about where government or “societal” policies have the potential to take us.

http://www.washingtonmonthly.com/features/2004/…

http://www.newamerica.net/events/2008/family_based

Very good points. One thing first – the court did not treat this is an accommodation case and in part that derives from not viewing pregnancy as a disability. There's a bit more on that below and also in the separate opinion written by Justice O'Connor.

Here's the opinion for anyone interested in reading it – it's not that long.

http://bit.ly/tgQBe

I've read the court's opinion a few times, highlighted and red-markered it, circled sections and starred others.

Here's what I read:

1. The employer said that she's fired for unauthorized breaks. All agree she took unauthorized breaks. Employee then does not adequately defend against that being a pretext and therefore the trial court granted summary judgement, the appellate affirmed and the OH Sup Crt split: they ruled 5-1 in the judgement with a seventh saying she'd dismiss the appeal; 3-2-1-1 in opinion (3 for a per curiam opinion, two for a separate opinion of Judge O'Connor, then the judge who would dismiss and then one judge in dissent)

2. The three concurring judges say that the question about whether breastfeeding is covered by Ohio pregnancy discrimination law need not be answered by the Sup Crt and that they can stop at just affirming the lower courts re: she took unauthorized breaks and can be fired.

5. Justice Maureen O'Connor (joined by Chief Justice Tom Moyer) writes a separate opinion and says that those three judges are wrong and that the court DOES have a duty to answer that question. Furthermore, she finds that they used the wrong precendent (federal instead of state) and that breastfeeding IS covered in Ohio pregnancy discrimination law and IS gender-based discrimination. Still, she found that the plaintiff failed to show disparate treatment discrimination given the facts that she produced and that is why O'Connor does say that summary judgement against plaintiff was proper at the lower courts.

Finally, O'Connor says that she does not find lactation to be a disability for purposes of disability discrimination analysis. She's very specific that pregnancy is not a disability and should not be seen as such.

6. Justice Paul Pfeifer dissents in judgement and opinion and would have sent this back to the trial court. He writes,

The appellate court does not explain why Allen’s trips to the
restroom outside scheduled break times were different from the restroom trips
other employees made outside scheduled break times. There is no evidence in the
record about any limit on the length of unscheduled restroom breaks and no
evidence that employees had to seek permission from a supervisor to take an
unscheduled restroom break. There is evidence only that unscheduled bathroom
breaks were allowed and that LaNisa Allen was fired for taking them. What made
her breaks different?
{¶ 54} We accept cases not necessarily because of how the result might
affect the parties in the individual case, but because of how a holding might affect
other persons similarly situated. Ohio’s working mothers who endure the
uncomfortable sacrifice of privacy that almost necessarily accompanies their
attempt to remain on the job and nourish their children deserve to know whether
Ohio’s pregnancy-discrimination laws protect them.
{¶ 55} I would hold in this case that employment discrimination due to
lactation is unlawful pursuant to R.C. 4112.01(B), that clear public policy justifies
an exception to the employment-at-will doctrine for women fired for reasons
relating to lactation, and that LaNisa Allen deserves the opportunity—due to the
state of the record—to prove her claim before a jury.

So – he feels that she never got the chance to prove her claim. Frankly, I'm not 100% sure that that's true – I need to know an awful lot more about the trial level and her attorney – I'm a bit concerned that something didn't go well with her representation but I just don't know anything about that level's proceedings beyond this opinion and some news items. There should have been instructions or something I would think at the trial court level. But I'm also thinking that totes/Isotoner knew a good thing when they had it re: her facts and legal argument not stepping up to the level the separate opinion and dissent suggest and so this was the result.

Hindsight is 20/20 but here's hoping that the Ohio legislature will get this taken care of re: lactation is part of pregnancy, is covered by those discrimination laws and is gender-based!