"Why isn’t undermining one’s job from the inside, in the service of a larger moral goal, an acceptable form of revolution?"

Asks Sasha Volokh, in the context of the Kim Davis controversy. 

"Acceptable" is a weak word. It's not going to be acceptable to a court that has decided what the law is and ordered you to follow it, and Volokh isn't trying to say that it is. He's really only asking us to look at the Kim Davis problem from the perspective of those who think that the acceptance — there's that word again — of gay marriage is an evil on the scale of slavery or Nazi Germany.

Not that we have to agree with that view, but the question is whether the (possibly oath-based) proceduralist argument (“do your job or engage in revolution, but if you do that you have to quit, because OMG the oath”) should carry any logical weight with adherents of that view. While I think acceptable resistance against Nazis differs from acceptable resistance against liberal democratic governments, the reason I think that has nothing to do with oaths, and it’s not clear to me how an oath-based theory would successfully distinguish between the two situations.

Bottom line: I’m fine continuing to criticize Davis on substantive moral grounds. And I’m fine showing why Davis’s actions are illegal under the positive law; but once you get to the point where you’re making the illegality serve a normative goal, you have to confront issues of legitimate disobedience, and I’m not sure that a purely procedural (“quit or do your job”) argument will work to exclude Davis’s “keep your job but follow your ideals” strategy of disobedience.

Also at Volokh Conspiracy and getting much more attention (ranking high on WaPo's most-read list), is Eugene Volokh's "When does your religion legally excuse you from doing part of your job?," which focuses on law as it is, as opposed to morality, revolution, and disobedience.

I'm using my tag "civil disobedience," even though Sasha Volokh eschews the adjective and speaks only of "disobedience." I think "civil" is inappropriate because Davis is not a citizen resisting the government. She's a government official. "Civil" denotes a connection to ordinary citizens. There's something much fishier about someone working within the government, not following the rules.

Should we accept (there's that word again) IRS agents resisting tax-exemption applications from groups that represent politics they think are evil? Think of resistance from the inside by police officers, teachers, judges, social workers, prison wardens, and the rest of the immense cast of characters that make up the government and against whom we, the citizens, assert our civil rights. 

ADDED: For what it's worth, here's the (unlinkable) OED entry for "civil disobedience":

civil disobedience n. rebellion of the populace against a governing power; (in later use) spec. refusal to obey the laws, commands, etc., of a government or authority as part of an organized, non-violent political protest or campaign.

"The answer to #3 is #3."

A delightful payoff for research prompted by random curiosity about language.

Sasha Volokh is bemused by the phrase "still and all" in Supreme Court cases.

It sounds slang-y because "and all" occurs in casual speech (like "and stuff"), but it's actually old-timey (like "It cannot be gainsaid").

Sasha consults the OED and finds the the phrase goes back to 1829. And he searches the entire Supreme Court archive to find that there is — after 2 recent iterations of the phrase "still and all" — only one other appearance of those 3 words in sequence, a 1961 case about the search of a distillery:

Indeed, the officers here could have abated the nuisance without judicial help by destroying the still and all of its paraphernalia....

"We have come to a strange place in our separation-of-powers jurisprudence."

"Confronted with a statute that authorizes a putatively private market participant to work hand-in-hand with an executive agency to craft rules that have the force and effect of law, our primary question—indeed, the primary question the parties ask us to answer—is whether that market participant is subject to an adequate measure of control by the Federal Government. We never even glance at the Constitution to see what it says about how this authority must be exercised and by whom."

So begins the concurring opinion by Clarence Thomas in the just-issued Department of Transportation v. Association of American Railroads. 

Here's Sasha Volokh with some detail on the case, in which he'd filed an amicus brief:

I argued in my brief that, regardless whether Amtrak is public or private, the delegation is fine under conventional non-delegation doctrine: Currin v. Wallace (1939) validated a delegation to a private actor, and so the usual “intelligible principle” test applies. Under that test, the delegation is valid because Amtrak’s power is sufficiently constrained by the requirement that it act to maximize profits....

[The majority Court decided] the case based on the boringest, most Amtrak-specific grounds... Justice Alito’s concurrence is interesting and deserves a separate post. Justice Thomas’s concurrence in the judgment provides the complete rethinking of the non-delegation doctrine on originalist grounds....

"Michelle makes me tidy up, admits messy President Obama."

Actual headline at The NY Post for an article about how the First Lady is on the cover of Vogue again.

“I had this little bachelor apartment that Michelle refused to stay in because she thought it was a little, uh . . . you know, pizza boxes everywhere... When she came, I had to get her a hotel room.”

That's a very casual revelation that she would have slept overnight with him if only he'd had a nicer looking place. There's zero regard for the folks in this country (and world) who think you shouldn't have sex until you're married. And he's going out of his way to make her sound snooty. I had to get her a hotel room.

“And what Michelle has done is to remind me every day of the virtues of order,” the chief executive said. “Being on time. Hanging up your clothes. Being intentional about planning time with your kids.”

Why would a man say that about his wife? It makes it sound like they have a mother-and-son relationship. And what woman wants to be thought of as a stickler for order? It's not sexy, and it's not  respectful. Plus, from a political standpoint, it sounds fascist, and it prompts us to think about her efforts to tell us what we're allowed to eat. Does she care about our health, or is it — as the right-wingers like to say — all about control?

He added, “We’re very different people, and some of that’s temperamental, some of it is how we grew up. Michelle grew up in a model nuclear family: mom, dad, brother. I had this far-flung family — father left at a very young age, a stepfather who ended up passing away as well. My mother was this wonderful spirit, and she was adventurous but not always very well organized.”

So your wife is the mother you never had, and your mother sounds like the sex partner an adult male would want!

“Ninety percent of our conversation is about these girls: What are they doing? And who’s got what practice? And what birthday party is coming up? And did we get a gift for this person?” the first lady said.

90%? If true, that's terrible. Where is their relationship as adults? I have trouble believing it's true, since I assume Michelle has people to handle the girls' social schedule and gift-buying. Whether it's true or not, it's a choice to present us with this picture of their relationship, all about fussy household details, short on wide-ranging conversation, and utterly unsexy. It's in Vogue, so it must be what they think women want to hear. They must think women love the idea of a man tamed by his woman. Or maybe they are revealing how they think ordinary couples behave and they're posing as just like you.

President Obama admitted that he benefited politically coming into the public’s eye as a young parent. He and Michelle looked like any other husband and wife struggling to make ends meet:

“We had to figure out how to make a mortgage, payin’ the bills, goin’ to Target, and freakin’ out when . . . the woman who’s looking after your girls while Michelle’s working suddenly decides she’s quittin’.”

You've got to give him some credit for genuineness amid the fakery. He admits he's using this material for political benefit, and the pose is so exaggerated that only a nitwit would fail to see that it's posing. In that sense, we can see that he is an ordinary guy... if the ordinary guy is a self-advantaging faker. But is that what women want? A man who exploits his family life for careerist goals?

The individual mandate "may violate the constitution of Ayn Rand, but they do not violate the Constitution of the United States."

Said Acting Solicitor General Neal Katyal said today, in oral arguments before the Eleventh Circuit, as reported by Sasha Volokh, who quips "Mr. Herbert Spencer, call your office."

***

The quip refers to the Oliver Wendell Holmes Jr. dissent in Lochner v. New York:

The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well known writers, is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not. The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics.

Lochner is a much-deprecated case from 1905.

"This is why I've often said that legal ethics is to actual ethics as Madison, Wisconsin is to James Madison..."

"... the former is vaguely inspired by the idea of the latter."

Sasha Volokh disses Madison in the comments to a Volokh Conspiracy post by Judge Paul Cassell.

The post is about whether it's ethical for a judge to perform a marriage ceremony for the defendant he's just sentenced. Lawprof Stephen Gillers had said "It would show very poor judgment for the court to perform this ceremony or even to entertain the possibility. He should have shot this down as soon as they asked. He's not there to perform weddings; he's there to send a man to jail" and "I suspect that in 232 years of American history, it's never happened that a [federal] judge has performed a marriage ceremony for a defendant awaiting sentencing in a serious felony case in his own court."

But Cassell himself had performed such a marriage. He says: "I thought it was important to honor the request for the defendant for the service because I thought it would improve his prospects for rehabilitation if he knew he had lovely wife willing to wait for him." But he concedes that it might be a ploy for leniency or inadvisable for some other reason. (Gillers was commenting on a child pornography case where the 42-year-old defendant was marrying a 21-year-old.) In classic judicial fashion, Cassell thinks the matter can be trusted to the discretion of the trial judge.

So that's the post. It's interesting.

But what's with dissing Madison? If we could reanimate James Madison and show him this place, would he really have such a problem with us?

***

Several other commenters at VC bring up "The African Queen." I couldn't find a YouTube clip for the glorious scene they were referring to, but I did run across the trailer, which might make you want to rewatch the whole movie to get to the part the commenters were talking about. (Not sure what they meant to prove there, as the ethics are demonstrated by a Nazi.)



AND: Thanks to commenter Bearbee, here's that marriage scene (a big spoiler if you haven't seen the movie):



AND: Just watched the clip. "By the authority vested in me by Kaiser William II, I pronounce you man and wife. Proceed with the execution." So those weren't Nazis. The movie takes place in 1914, at the outset of WWI. Sorry for the vague memory. So Rosie's dress wasn't all that old-fashioned. Note too that it's the ship captain who performs the marriage (and gives the sentence), not a judge.

MORE: In the comments, Sasha denies that he dissed Madison, I argue with him, and he responds. Also, Sasha's analogy inspires a contest.

AND: Eugene enters the fray.

After an absence, "absent."

Sasha Volokh is back at Volokh Conspiracy after an absence of 2 years. It's nice to see him back and nice to get a chance to see what's the first thing he wants to talk about when he gets back. It's the surpassingly nerdy dual topic of the way anyone can contribute information about word usage to the Oxford English Dictionary and whether the use of the word "absent" as a preposition is really, as some blog commenter recently said, just a lawyer's tic.

Don't get me wrong. I love this subject matter. The lawyer's "absent" has been driving me crazy for years, and I love almost any sort of discussion of the OED. My iPod Shuffle contains Simon Winchester's unabridged reading of "The Meaning of Everything: The Story of the Oxford English Dictionary." So I'm completely on board with the nerdiness Sasha brings to his reemergence as a VConspirator.

Anyway, Sasha came up with some info on the prepositional use of "absent," which he puts in OED style:

1888 South Western Reporter VIII. 898 If the deed had been made by a stranger to the wife, then a separate estate in her would not have been created, absent the necessary words; but, being made to the wife by the husband, a separate estate, as against him, was the result. 

1893 South Western Reporter XII. 629 Absent any evidence to the contrary, a proper and legitimate purpose will be presumed. 

1898 South Western Reporter XLV. 303 Absent any one of these ingredients, there is no contract. 

1906 South Western Reporter XCIV. 591 Absent one of these ingredients, there is no contract. 

1914 South Western Reporter CLXXII. 17 A mere barren and abandoned conspiracy sounding in words, but jejune of acts or results, is not actionable, absent a statute so declaring. 

1929 South Western Reporter (2d series) XVIII. 490 Absent a tender of an instruction properly defining said words, it was not error for the court to fail to do so. 

1938 Federal Suppl. XXV. 861-62 The design, absent the color and display thereby created, is not more ornamental than many types of similar shoes.

This doesn't refute the blog commenter, of course. It demonstrates the ugly lawyer's use of the word. Is it limited to lawyers? It's so often used by lawyers that it's hard to believe it hasn't infected nonlegal writing, but it's still ugly and feels abnormal. I'd recommend avoiding it even in legal writing, precisely because it sounds like legalese.