Some genealogy and some bad analogies.

My maternal great-grandfather was Samuel Visnow.  Samuel was born in Quebec in 1847. I do not know exactly how they ended up there but by 1860, Samuel, his mother Matilda, and his sister Lydia were living in Black River Falls, Wisconsin where Matilda worked as a cook in a lumber camp.  In 1864, Samuel enlisted in the Union Army at the age of 17 and was assigned to Company G of the Fifth Wisconsin Infantry. It's not specified in his war record, but family lore is that Samuel was a color bearer. During the Civil War, this meant carrying the flag in front of one's company as the company was charging the enemy. Soldiers were instructed to follow the colors so that they knew where to go in a battle. Of course, the side being charged knew that soldiers followed color bearers, so the color bearer was a popular target of soldiers on the defense because a fallen color bearer would slow a charge as someone else would have to pick up the flag and get going.

Whatchu talkin'bout Perfessor?

I have been reading The Passage of Power: The Years of Lyndon Johnson, Robert A. Caro's fourth volume in his biography of former President Lyndon Baines Johnson. It is fantastic as are the other three volumes that have been published so far.

On page 352 of the book there is a scene in which President Johnson gets angry at Horace Busby. Mr. Busby was a longtime aide of President Johnson. What had Mr. Busby done?  He had questioned the conclusions reached by two economists on President Johnson's staff, Kermit Gordon and Walter Heller. Unlike Mr. Busby, Mr. Gordon and Mr. Heller did not work for President Johnson before he became president. Instead, Mr. Gordon and Mr. Heller were brought into government by President Kennedy. President Kennedy favored hiring people from Harvard because he felt "you can't beat brains."

A few things Justice Scalia and I have in common

1.  We are both humans alive in the United States in the 21st Century;
2.  We are both inolved in the legal business;
3.  Our first names begin with A;
4.  Our last names end in a vowel;
5.  We belong to the same religion; and
6.  If the ABA Law Journal is correct, neither of us watched President Obama's State of the Union Address.  We differed on the reasons for not watching. I wanted to do a little reading and he thinks the address is a "childish spectacle."  As for not actually attending the speech, Justice Scalia also did not want to "lend dignity" to it by attending.  I did not go because my invitation-I assume-was lost in the mail. 

A note for any criminally inclined readers who doodle

If you are going to rob someone don't make a doodle of the crime. Ariel Jasso discovered this the hard way when the Oregon Court of Appeals affirmed Mr. Jasso's conviction for robbery and burglary. Mr. Jasso appealed his conviction arguing that the trial court mistakenly allowed the jury to see a doodle he drew of a robbery. The Oregon Court of Appeals helpfully included a copy of the drawing in its opinion. You can see the opinion here.

The drawing is of a masked man holding a gun and robbing a woman. The man says "Gimme tha jewelry bitch" while a thought balloon shows the man thinking "ew". The woman has her hands over her head and appears to be standing on a heart. The opinion doesn't discuss this symbolism. Not to kick Mr. Jasso when he is down but I feel safe in saying that no one will confuse Mr. Jasso's work with the work of Walt Kelly. Note that the drawing doesn't include the words "me" by the gunman.

Anyway, Mr. Jasso argued that allowing the jury to see the drawing would prejudice the jury beyond whatever probative value the drawing might have. The prosecution argued that under Rule 404(4) of the Oregon Evidence Code, the drawing was relevant as "evidence of other crimes, wrongs or acts by the defendant." Under Oregon law, the court is not required to balance the probative value of such evidence. The trial court and Court of Appeals agreed with the prosecution. The drawing, the court said, was admissible because it was evidence of another crime, wrong or act by Mr. Jasso.

The opinion is only 4 pages long so the court doesn't really offer a lot of explanation. So the reader should be forgiven if they find the decision very strange. A doodle of a robbery is considered evidence that Mr. Jasso robbed a woman on some other occasion than the time for which he was convicted. Jack Kirby used to draw pictures of Galactus devouring worlds. Steve Ditko, most notably during the origin story of Spiderman, drew pictures of people being robbed. It never occurred to me that these pictures could be viewed as evidence of crimes committed by Messrs. Kirby and Ditko. Perhaps we distinguish them because they are drawing works for hire. Mr. Jasso's doodle, in contrast, is viewed as a sort of artistic confession by Mr. Jasso of another crime he committed. Sort of like "Blood on the Tracks" or "Rise to Me" but not about Bob Dylan's divorce or Colin Meloy's autistic son.

I don't often doodle. But when I do, I draw pictures of boxes. The Oregon Court of Appeals thinks Mr. Jasso should have had a similar practice.

Feel free to enslave an orca.

On the rare occasions that we aren't ruminating on the nature of reality, we sometimes discuss the Constitution. As far as I can recall, we yet to discuss the applicability of Reconstruction Amendments to animals. I can't speak for Mr. Torvik, but the reason that I have never posted on this topic was that it had never occurred to me that the Civil War was fought over animals rights. This is not to say that animals weren't involved in the Civil War. According to this, more than a million horses died during the conflict.

Yesterday, Judge Jeffrey T. Miller, United States District Court Judge for the Southern District of California, ruled that Tilikum. Katina, Corky, Kasatka, and Ulises, five orcas at Sea World San Diego, were not entitled to sue Sea World under a theory that Sea World has enslaved the orcas in violation of the Thirteenth Amendment. A copy of the order is here.

The Thirteenth Amendment essentially says that "Neither slavery nor involuntary servitude . . . shall exist in the United States, or any place subject to their jurisdiction." The sole exception to the amendment is if the slavery or involuntary servitude is a punishment for being convicted of a crime. Some people will think that of that as being on a chain gain. Others might think of this episdoe of "Seinfeld." But I digress.

The 5 orcas brought suit seeking a declaration that they were being held by Sea World in violation of the Thirteenth Amendment. Apparently, each of the orcas was capture in the wild and brought to Sea World. The orcas, through PETA which filed the suit on their behalf, allege that they are being deprived their, and I am not making this up, "cultural traditions" as well as their "ability to make conscious choices." One thing that may surprise readers, according to the order, orcas in captivity live around 8.5 years, while orcas in the wild live 65 years.

Judge Miller found that the Thirteenth Amendment didn't apply to non-humans. To reach this conclusion, the judge looked at a dictionary from the time the amendment was written. Order at 5. In 1864, Noah Webster's dictionary defined slavery as "the state of entire subjection of one person to the will of another." Also, in the Slaughter-House Cases the Supreme Court stated that involuntary servitude, can "only apply to human beings." The judge also noted that the Emancipation Proclamation discussed slavery only in the context of persons. (Order at 6.) Finally, the judge noted that the references to punishment for a crime also indicated the amendment applies only to humans because only humans are punished for crimes. (Order at 5.) Although the judge didn't mention it, not being able to be punished for a crime arguably benefited Tilikum who killed a Sea World trainer in 2010 and apparently also helped drown a trainer in 1991. (if you are wondering how Tilikum has been at Sea World for over 20 years when orcas only live 8.5 years in captivity, that is not explained in the order. Perhaps they only live 8.5 years on average).

Recognizing this problem, PETA argued that the court should find a new right for orcas in the Thirteenth Amendment. (Order at 6.) To make support this argument, PETA pointed to several famous civil rights cases, Griswold v. Connecticut (recognizing humans have a right to privacy in the context of using contraception), Brown v. Board of Education (racial segragation in schools violates the Fourteenth Amendment), United States v. Virginia (state run college cannot refuse to admit women), Thompsen v Oklahoma (Eighth Amendment prohibits the execution of children under 16), and Miranda v. Arizona (police must notify suspects of their right to remain silent and right to counsel). People who like sex, African-Americans, women, children, and criminal suspects, can argue amongst themselves as to who should be more offended about being compared (perhaps unfavorably) to an orca.

The judge rejected these arguments by analogy because he felt that the various amendments at issue were more susceptible to an "expansive interpretation" than the Thirteenth Amendment which deals with a single issue. (Order at 6-7.) I would have rejected this argument by analogy because the rights expanded in the other cases were rights given to (or perhaps held by) humans.

While PETA's complaint was only trying to create "new rights for orcas," I don't think their attempted limitation makes any sense. Sea World San Diego has a lot of different animals. Why would enslaving orcas be a constitutional violation but enslaving bottlenose dolphins, beluga whales, sharks, sea lions, and others be acceptable under the Constitution? Moreover, what would be the distinction between orcas at Sea World and guide dogs or other service animals. Those animals don't exercise a conscious choice either. While the complaint certainly makes it seem like the orcas are kept in pretty horrible conditions (I've never been to Sea World San Diego so I don't have any firsthand knowledge of the place), the only logical stopping point to PETA's argument would be that no animals could be kept by anyone for any purpose without violating the Thirteenth Amendment. I suspect that the lack of a logical stopping point was on the judge's mind when he decided to dismiss the case.

The wet side of the moon

It's pretty much a full moon tonight.  And the moon has been in the news.  According to NASA, the moon is wetter than the Sahara desert. According to my independent study, the moon is also drier than the Pacific ocean.   So, you know, somewhere in between there.