Is Nudity Legal?

Thoroughgood v. Tinkerson

Judge Whiner delivered the opinion of the court:

That indefatigable protector of our Nation’s moral fiber, Marjorie Thoroughgood, is before this court once again.  This time she asks the court to issue an injunction ordering her neighbors, the Tinkersons, to stop walking around their own house naked.

This contretemps began when the Tinkersons first moved to “Fawn Acres,” the gated community in which Mr. And Mrs. Thoroughgood have resided for many years.  Each of the houses – nay, estates – in Fawn Acres sit on lots that are at least five acres in size.  Although their properties abut each other, the evidence before the court is that the Tinkerson’s house is almost one mile away from the Thoroughgood house and is visible to the Thoroughgoods only from their roof.  Access to the Tinkerson estate is via a road that traverses the front edge of the Thoroughgood estate.  Mr. and Mrs. Tinkerson drive by the Thoroughgood property each day.

Soon after the Tinkersons moved in, Ms. Thoroughgood was out collecting her mail when Ms. Tinkerson drove by. Ms.Thoroughgood noticed that the Tinkerson car had prestige license plates.  Such license plates allow the owner of the car – for an additional annual fee – to put whatever she wants on the license plate.  These prestige plates are legal in this state and quite popular with the inhabitants of Fawn Acres, most of whom drive Mercedes-Benz automobiles and are rich.  Fawn Acre residents use the prestige license plates to drive home the message of their richness to those outside Fawn Acres who are not rich.

The meaning of the Tinkerson plate stumped Ms.Thoroughgood. The letters on the license plate were, “NDBUFF.”  It took a few days before Ms. Thoroughgood ascertained their meaning.  She accomplished this by pronouncing the first two letters out loud and adding the correct pronunciation of “buff.”  Ms. Thoroughgood’s suspicions were aroused.  She surmised that the license plate carried the not so subtle implication that Mr. and Mrs. Tinkerson approved of nudity and might even be practicing nudists, parading around their private estate without any clothes on.

Ms. Thoroughgood immediately sought confirmation of her dark misgivings.  The reader will remember that almost a mile separates the Thoroughgood residence and the Tinkerson house.  Ms. Thoroughgood could not see that far with the only aid available to her, a small pair of opera glasses.  She accosted her husband, demanding that he immediately purchase a more powerful pair of binoculars.  The evidence is that he was only too happy to comply,  Ms. Tinkerson is quite attractive physically as the court itself noticed during the trial of this matter.  Mr. Thoroughgood returned home, not only with a pair of powerful binoculars, but also a small telescope and tripod to hold it.

That evening Ms. Thoroughgood’s worst suspicions were confirmed.  By erecting the telescope on their roof, the Thoroughgoods were able to see all the way into the Tinkerson house and, to Ms. Thoroughgood’s disgust, saw both Mr. and Mrs. Tinkerson in their own living room absolutely naked.

Ms. Thoroughgood filed this action the next day, asking this court to order (1) the Tinkersons to cease and desist from nakedness; (2) make them replace the offending license plate; and (3) force Mr. Thoroughgood to come down from the roof.

Not surprisingly, the Tinkersons claim that they possess a right to privacy in their own home.  The basis for this claim rests in a line of United States Supreme Court decisions pretending to find such a “right to privacy” in the venerated Constitution of the United States.  It is true that, for a short while in the late 1960’s and early 1970’s, people known as “liberals” held seats on the Supreme Court. Those “liberal” justices discovered in the Constitution a supposed right to privacy.   They called it a “penumbra.”  Of course, that is an aberration in the long history of Puritanism in this country; those liberal justices are long gone and their “penumbras” relegated to jurisprudential shadows.

Regarding the Tinkerson’s claim to privacy in their own home, I myself have read the Constitution from cover to cover and the word “privacy” appears no where in it.  Obviously the Founding Fathers knew the meaning of the word and if they intended for us to have privacy they would have told us.  Because they did not, I must conclude that no such right to privacy exists.  Our houses provide us shelter, not privacy.  There is no telling what people would get up to in their own homes if they thought houses were private.  It is a pernicious idea and I am well pleased that I have the opportunity to strike it down.

Remembering Mark Twain’s dictum that “Naked people have little or no influence in society,” I hereby order the Tinkersons to put some clothes on.  It is for their own good as well as the Nation’s.  The offending license plate must be replaced with something less salacious.  As for Mr. Thoroughgood, he can either come down from his roof or take up bird watching.  That is no business of this court – unless he starts enjoying himself.

IT IS SO ORDERED.

Rules for Writing – Prepositions

The Little Book

Never end a sentence with a preposition. That rule is hammered on writers everywhere. The most famous statement of the injunction comes from Winston Churchill who said – supposedly – to someone who insisted on the rule, “This is the kind of pedantic nonsense up with which I will not put!” But William Safire, in his little book, Fumblerules, suggests, “Rigidity is out, flexibility is in.”

Sometimes an ending preposition is useful and I don’t have an editor, so I do it occasionally. But I’ve never done it as well as E.B. White did in a letter to the editor of The Elements of Style, the famous little book which White updated. (“The constant use of the adjective little (except to indicate size) is particularly depleting, we should all try to do a little better . . .”)

To his editor, White wrote that,in his next grammar book, he wanted to tell how to end a sentence with five prepositions:

A father of a little boy goes upstairs after supper to read to his son,but he brings the wrong book. The boys says, “ What did you bring that book that I don’t want to be read to out of up for?”

That is a good quote to end this post with.

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If you are seeing two different fonts on this post, so am I. I don’t know why. How should I? I don’t have an editor.

The Supreme Court’s Campaign Finance Decision

After making us wait for months, the Supreme Court did exactly what almost all observers predicted, ruling in a 5-4 split decision that corporations can spend as much money as they want in political campaigns. Not surprisingly, the opinion got a lot of news coverage, and, more surprising, a visible reaction from Justice Alito when President Obama lambasted the opinion during the State of the Union speech. (Frank Rich of the New York Times referred to Alito’s “delicate sensibilities.”)

2010 State of the Union Message

Speculating about what the Court does behind its closed doors is like metaphysical conjecture: Nobody knows for sure.

But, like metaphysical speculation, it can be fun to guess. For instance, why did the Chief Justice, Justice Thomas, and Justice Scalia feel a need to write separately, adding pages and pages to Justice Kennedy’s already long majority opinion? The answer almost certainly lies in their knowledge that the majority opinion is a breathtaking exercise in judicial activism. These are the justices who falsely proclaim their judicial modesty, but in this case go far out of their way to decide the constitutional issue on the broadest basis possible.

To summarize, they wrote, “We had to decide this case as broadly as possible because we had to.” And, yes, that is a tautology. On the merits, the majority said, “Money is speech, corporations are people; therefore, corporate money gets First Amendment protection.”  Seriously. That is the Readers’ Digest version of the holding. (I don’t know why they don’t put me on the Court. I don’t use nearly as many words to get to a result. “Omit needless words,” said Professor Strunk.)

Justice O'Connor

And the only member of the majority who chose not to write, Justice Alito, was the one visibly offended when the President took the Court to task for upending American political campaigns. In the realm of fascinating speculation must go, “What does Sandra Day O’Connor think of her replacement (Alito) and does she regret resigning from the Court?” I’m guessing the answers are, “not much” and “yes.”

Less speculation is required about the dissent. As the senior member of the dissenting minority, Justice Stevens assigned the writing of the dissent to himself. He probably will retire at the end of this Term and the dissent may be the last opinion on a major issue that Stevens writes. Moreover, he clearly has the better legal argument, so knows that his opinion will one day — when good political sense again commands a majority of the Court — be the law of the land. Dissenting opinions are often written for the future, the author assuming that his view will prevail eventually.

Justice Stevens was more persuasive than Justice Kennedy for another reason: None of the dissenters felt a need to write separately. In that regard, Stevens is better than Chief Justice Roberts at keeping his troops in line.

Being Chief Justice is like herding cats. Unless you are a Border Collie, there is little hope. We haven’t really had a Chief Justice since Earl Warren who was much good at it. In fact, the Chief Justice gave us a clue about the frustrations of the job recently. During an oral argument this month, Solicitor General Elena Kagan inadvertently called Justice Scalia, “Mr. Chief Justice.” She immediately caught the mistake and said to Scalia, “I didn’t mean to promote you.” The Chief Justice jumped in, “I’m glad someone thinks of it as a promotion.”  I imagine he’s having a hard time with his brethren.

He needs some Border Collies.

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For a thoughtful, serious analysis of the President’s words about the opinion and Justice Alito’s response, look at this from SCOTUSblog.  Here is the opinion itself, all 183 pages of it.

Puritans and Pickpockets

The Cobbe Portrait

The golden age of theater began shortly before Shakespeare’s birth and lasted until shortly after his death when the Puritans shut down England’s theaters. Puritans have always opposed fun and joy and bliss. That’s why Americans have such a hard time enjoying themselves; the Puritans bequeathed us their culture, their religion, their politics, and their fears.

One of the reasons the Puritans hated the theater was the convention in those days of not allowing women to act on stage. Since young boys had to play the female roles, the Puritans worried about sodomy at the theater and all the other things their fevered imaginations could conjure.

Moreover, thieves, cutpurses, and pickpockets, worked the theaters so the Puritans worried about that too.  But, even then, people made jokes about the theaters. Bill Bryson relates one in his new, lively little book about Shakespeare. A woman wants to go to a play but has to convince her husband it will be all right. He relents but with a warning: “Watch out for thieves and keep your purse deep in your petticoats.” Late that afternoon — plays were in the afternoon in those days — she returns in tears and tells him that her purse was stolen.

“Did you keep it your petticoats, like I told you?” he asks.

“Oh, yes.” she replies.

“Well, didn’t you feel a hand up your dress?” he wants to know.

“Yes, but I didn’t think he’d come for the purse.”

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The Bryson book is Shakespeare and it is an excellent overview of what we know — and, more to the point — what we don’t know about Shakespeare. It is a fine introduction to the subject for non-specialists and I recommend it.

Footnotes in American History – Corporations are Just Like You and Me, only with More Money

This continues our series of footnotes in American history, footnotes we imagine will appear one day in the future when the definitive history of our time is written. Based on this week’s opinion of the United States Supreme Court in the campaign finance case, this footnote will appear in the Oxford-Kindle History of America series.   The case turned out exactly as the cats and I predicted back in September, a 5-4 win for corporations.

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Ftnt. 43

The Supreme Court, in 2010, announced its 5-4 decision in the case of Citizens United. The Court held, in that case, that corporations had exactly the same free speech rights as real people.

Because corporations, like regular people, had First Amendment rights to run for political office and become judges, corporations soon dispensed with the subterfuge of buying judges and politicians and began running for office themselves. That is what comes of anthropomorphizing corporations. Due to the trillions of dollars available to the largest corporations, real humans could not compete and corporations, exercising their god-given First Amendment rights, took over America’s entire government. By the end of the Obama Administration in 2016, hardly any real people were left in government and the presidential election that year pitted the Bank of America against Exxon-Mobil. The election was close and eventually came down to a few disputed votes in Florida. The Supreme Court was called upon to choose the new president. Here, from ancient archives, is a copy of the news story that ran in the New York Times ( a defunct “newspaper” corporation. Historians are unsure what  “newspapers” were, but they seem to have been “paper” based.)

The New President

Dateline  2010 – Washington D.C.

Supreme Court Chief Justice NBC announced the decision of the Supreme Court today in the contested presidential election between Bank of America and Exxon-Mobil. The Bank of America wins and will become the Nation’s 45th president. Speaking on behalf of the president-elect, Simon Toady – corporate spokesman for the Bank of America — said that the bank was delighted with the result and looked forward to four years of record-breaking profits. “Our shareholders are going to see their stocks go through the roof! And the bonuses!” he announced happily. Toady said the new president would immediately introduce legislation requiring all Americans to deposit all their money in the Bank of America. He also announced that all Americans would be required to carry credit cards issued by the Bank of America and that their credit card fees would be raised to pay for the inauguration.

Simon Legree, spokesman for Exxon-Mobil, said, “We congratulate the Bank of America on its win. But what goes around, comes around and corporations live forever. We’ll get our chance at the presidency and, when we do, look for the price of gasoline to go through the ceiling. We take care of our shareholders!”

The 2016 Loser

The Supreme Court’s decision relied heavily on its earlier case of Bush v. Gore, the first time in the Nation’s history that the Supreme Court elected a president. That case was decided in the olden times of 2000, before the Court realized that corporations had exactly the same First Amendment rights as regular persons, which meant that corporations could run for office and become judges. Chief Justice NBC wrote the Court’s opinion and was joined by Justices Microsoft, Verizon, Goldman-Sachs, Wal-Mart, Toyota, China First, and Scalia (the last remaining human on the Court). Justice AFL-CIO dissented but, as the majority opinion noted, “Nobody pays any attention to unions anymore.”

In a related matter, the Chief Justice announced that Justice AFL-CIO would shortly leave the Court. “We had a higher bid from Blue-Cross for that seat,” said the Chief Justice.

In other political news of the day, House speaker Nancy Pelosi announced her retirement. She will be replaced by JP Morgan Chase Corporation which announced that it would fiercely oppose the new president’s attempt to “steal all our deposits.” Political analysts doubted that the new Speaker’s efforts would amount to much since Bank of America’s stocks went up 500% on the announcement of the Supreme Court’s decision. Spokesman Toady said, “The stock market will decide what is best for America, not ordinary citizens or some backwater corporation like JP Morgan Chase.”

Analysts said the election results ensured that Americans would, once again, be deprived of health care reform.

NBC and “The Tonight Show”

Rumor has it that NBC will pay Conan O’Brien thirty million dollars to stop doing “The Tonight Show.”  I guess he will take it.

If somebody offered me thirty million dollars to stop writing this blog, I’d probably take it.

Supreme Court Service of Justice Stevens

Justice John Paul Stevens

Today marks an event of some note in the long history of the United States Supreme Court: Justice John Paul Stevens passes Justice Black to become the fourth longest-serving member of the Court. Justice Stevens has now served on the Court for 12,447 days. Only Justices Douglas, Field and Chief Justice John Marshall served longer and Stevens is only 123 days behind Marshall and only 167 days short of passing Justice Field to move into second place. Unlike Field at the end of his career, Justice Stevens is still in full command of his brain.

Assuming both that he does retire at the end of this term and that the term ends on June 30, Stevens will have surpassed Marshall and will be only three days short of passing Justice Field and moving into second place. So, if you are reading this Mr. Justice, don’t allow your retirement to become effective until after you pass Justice Field. You are a nicer human being than he was and a much better justice.

Stevens would still be two years and two weeks short of Justice Douglas’s record. Douglas sat for almost thirty-seven years.

Coincidently, Justice Sotomayor, currently last on the list of  111 justices will move into 110th place tomorrow when she passes Justice Thomas Johnson who served for only 163 days back in 1792. And in four days, Justice Breyer moves into 57th place, passing Lewis Powell.

Adjectives at the Supreme Court

Despite the great anticipation of the political chattering class the Supreme Court did not issue its opinions in the campaign finance case this week.  But the Court was not idle, issuing two opinions and hearing arguments in several cases.  One of those cases, Briscoe v. Virginia, involves laboratory tests in criminal cases. That argument derailed momentarily when one of the lawyers used an unusual adjective.

MR. FRIEDMAN: . . . I think that issue is entirely orthogonal to the issue here because the Commonwealth is acknowledging -

CHIEF JUSTICE ROBERTS: I’m sorry. Entirely what?

MR. FRIEDMAN: Orthogonal. Right angle.  Unrelated. Irrelevant.

CHIEF JUSTICE ROBERTS: Oh.

JUSTICE SCALIA: What was that adjective? I liked that.

MR. FRIEDMAN: Orthogonal.

CHIEF JUSTICE ROBERTS: Orthogonal.

MR. FRIEDMAN: Right, right.

JUSTICE SCALIA: Orthogonal, ooh.
(Laughter.)
JUSTICE KENNEDY: I knew this case presented us a problem.
(Laughter.)
MR. FRIEDMAN: I should have — I probably should have said -

JUSTICE SCALIA: I think we should use that in the opinion.
(Laughter.)
MR. FRIEDMAN: I thought — I thought I had seen it before.

CHIEF JUSTICE ROBERTS: Or the dissent.
(Laughter.)

The Supreme Court Returns

The Supreme Court’s Christmas vacation comes to an end this week. (They get longer vacations than the rest of us.) The clerk’s office has indicated that opinions will be issued on Tuesday and Wednesday of this week, probably because the justices are feeling a little guilty that they got a month off and we only got a few days. They won’t take another long break now until the end of June when they’ll take three months off which, if you do the math, means they get four months a year of vacation.

Actually, I’m being unfair. The Court works even when not in session and they are busy. Justice Souter once noted that coming to work at the Supreme Court was a like walking into a tidal wave. Justice Douglas, on the other hand, once remarked that the Justices wouldn’t be nearly as busy if they would just read the Constitution from time to time. Still, I imagine that Justice Scalia worked in a tennis game or two during the last month.

The political classes are on pins and needles because they are expecting a decision in the campaign finance case this week, the one that was argued — for the second time — back in September.

If you think — as I do — that big money now plays a baleful role in the Nation’s politics, look to be disappointed again. The Court is likely to strike down more attempts at campaign finance reform and hand America’s biggest corporations and unions another victory.

Those of us who think serious reform is required to get our political system back on track will do well to remember the words of the tennis star Vitas Gerulaitis. He lost sixteen consecutive matches to Jimmy Connors before finally winning one. Gerulaitis said afterward,

“And let that be a lesson to you all. Nobody beats Vitas Gerulaitis 17 times in a row!”

We’ll win one someday.
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The photo of the U.S. Open was taken by  Stan Wiechers.

A Dust Speck

This video from the American Museum of Natural History is making the rounds. It reminds me of a “Calvin and Hobbes” cartoon. In the first frame Calvin is outside gazing up at an immense sky, full of stars. In the second frame he yells, “I’M SIGNIFICANT!” In the third Calvin still gazes upward in silence. In the last frame, still looking up, he says, “. . .screamed the dust speck.”

Maybe so, but we are the universe conscious of itself and able to stand in awed silence at its beauty and immensity. And our own smallness.

(The video has sound but only background music which is unnecessary for watching it. Watch it full screen, if you can.)