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January 03, 2006

The Supremacy Mistake

Over at Prawfsblawg, Steve Vladeck expresses shock and outrage at this op-ed by AL S.Ct. Justice Parker. The basics: Parker criticizes the Alabama Supreme Court for following the Supreme Court's decision in Roper v. Simmons (which I criticize here), since he thinks the decision was wrongly decided and therefore unconstitutional.

Steve raises two separate questions, but unfortunately fails to make clear how separate they are.

1: Does Parker's demand that the Alabama Supreme Court uphold a juvenile execution violate the Supremacy Clause? Not necessarily. Article VI of the Constitution provides that the Constitution, laws of the U.S., and treaties are all the supreme law of the land, but it notably fails to provide the same thing to be true of pronouncements by the Supreme Court. That means that Supreme Court Decisions are only the Supreme Law of the Land per the Supremacy Clause if they are accurate descriptions of what the Constitution requires. It is the Constitution, not the U.S. reports, that is named by the Supremacy clause. That means that Parker is preaching a violation of the Supremacy Clause only if he is wrong on the merits of the case-- the Supremacy Clause declares the supremacy of federal law, not of federal interpretations of it.

Of course, one might think that there are structural or statutory reasons that the pronouncements of the U.S. Supreme Court ought to be considered supreme anyway, but that brings us to question 2:

2: Does the Parker proposal violate Cooper v. Aaron? Most certainly. Cooper says that Supreme Court decisions-- notwithstanding the text of Article VI-- are also eligible for Supreme Law of the Land treatment. The argument is that since the Constitution is supreme, and since Marbury can be read (inaccurately) to suggest that the judiciary is the true voice of the Constitution, that the judiciary is supreme as well. Of course, this is a house of cards. Anybody who disagrees with Cooper's reading of Marbury thinks that Cooper is wrong, but since it is Cooper, not the Supremacy Clause, that says that Cooper is supreme, there is no argument to convince the skeptic.

Note further that Justice Parker's argument is really just a re-reading of Marbury v. Madison. Marbury says that when the legislature enacts a thing that purports to be a Law of the United States (eligible for Supreme Law of the Land status under Article VI) that it cannot be a real Law unless it conforms to the Constitution. Parker simply says that the same thing is true of Supreme Court decisions-- if they violate the constitution (e.g., Amendment 10), he says, then they simply lack any status as binding law, just like unconstitutional laws that Congress attempts to adopt.

Now, there may be valid structural, pragmatic, statutory, or historical reasons to reject the Parker program and require state Supreme Courts to treat U.S. Supreme Court decisions as binding precedent, but those reasons have nothing to do with Article VI of the U.S. Constitution, or with Marbury v. Madison.

In other words, nothing in the U.S. Constitution alone suggests that states can't nullify decisions of the U.S. Supreme Court.

Comments are open.


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English Suites

Cross-posted back home.

I hated Bach the first time I encountered him. That was the tragedy, I suppose. I was supposed to like him, I knew that much, but I just didn't get it.

That was nearly twelve years ago--more, probably. I was playing the Gavotte I & Gavotte II (ou la Musette) from the third English Suite. The melody wasn't all that great, this was the first time I had to play a trill (with both hands!) and I simply didn't see the dramatic flare that Beethoven had, or (yes) even Mozart.

Things only got worse when I was assigned the Prelude to the Third Suite. G minor, in a rompous three, almost like a Gigue, only--well, less fun. It took me a full year to get through it, and by the end of it, I promised that I'd never touch Bach and the English suites again.

Thank God my piano teacher was persistent. Over the next three years, I was dragged, yelling and screaming, through the remainder of the suite (I played other stuff during this time too, but this was the most traumatic).

I can now begin to understand why: counterpoint is the twelve-tone of the Baroque world. Maybe that's too cruel (and somewhat inverted), but I stand by my claim at its surface value. Bach's counterpoint isn't about the melody at all (very little counterpoint, as far as I can tell, is). It's about what he does with melody he provides in the first place.

And it's hard--magnificently hard--to figure out where it all goes, especially if you're just listening to it, and even more so if you're not only listening to it, but also playing to it. They're intellectual excercises--little snippets of musical "Where's Waldo," or suddenly (shocking, out of the blue, struck by lightning) gorgeous fortspinnung. And they're really hard to understand, precisely because they don't leave you much to hold on to other than sonata-allegro form.

I like the English Suites now. The English, in my humble opinion are somehow much better thought out than its French counterparts.1 How to say? There's some sort of weight to them--a maturity to them, a heft maybe, that I can't find in the more (dare I say) flippant French Suites. But that's not to say that the French Suites are bad per se. Certainly not--maybe because of historic reasons, or (simply) personal preference, I prefer the English Suites.

And what a preference--I've gotten past my phobia of the Suites and have taken to playing them when I'm more stressed than I generally like to be. This past holiday season qualifies, and qualifies with the Prelude to the Fourth English Suite.

My first exposure to this movement was the Gould recording, when I was a eighteen. I remember being disgusted and devastated: Gould is divinity--not an aspiration. I remember thinking it was a bit weird--F Major, of all things: the bucolic key signature of rippling waves of wheat, lowing oxen and farm-hands named George, which momentarily false-steps on the third degree of the scale to bring us to the skull and sickle, and finally back to the dancing nymphs and shepherds.

But this was Bach, and I expected Beethoven: I wanted heavy open fifths in the bass, I wanted hunting horns, and--to be sure--the Bach was somewhat offensive to this Romantic sensibility: a dry melody, the counterpoint, as usual, confusing and the piece itself, shameful to say now, weird. There was nothing F Major about it, as far as I was concerned.

That was nearly five years ago, and I've come to a new appreciation of the suites by now. It takes time (or perhaps simply a couple of hours with a score, a piano a pencil for the fingerings--I don't know) to hear the milkmaid's song in the fourth suite, and much of it is in context of the other suites: the fourth suite is georgic just as the sixth suite plays like the rattling of bones, the second suite anger personified, the first suite, the sun rising. Whatever it is, there's something I've come to learn about that suite that gets me so bad and holds me transfixed.

1I guess now's a good time to mention that I consider it one of the great shortcomings of my life and my what-I-like-to-call-education that I just don't know how to articulate what I'm about to say in more rigorous and better-defined vocabulary. Forgive me.


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Quotation of the Day

"April is the cruellest month, breeding
Lilacs out of the dead land, mixing
Memory and desire, stirring
Dull roots with spring rain.
Winter kept us warm, covering
Earth in forgetful snow, feeding
A little life with dried tubers.
[...]"


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Charting the Difficult Path

Art De Vany writes with power and elegance about his coming year.


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Arby's Reuben

Sadly, the Reuben sandwich is still capitalized, meaning it is absent from the Official Scrabble Dictionary (4th ed.) meaning that my BEENRSU couldn't be played for a 50-point bonus in my last game of scrabble.

In other Reuben news, my father and I decided to make a trip to Arby's for lunch to examine their alleged offering of a Reuben sandwich. (We steered clear of the roast turkey reuben, also a new offering). The Palm Beach Post loves it, and so does the Houston Chronicle. I came out with a slightly more mixed review.

The cheese and the dressing were just fine-- Arby's made the wise decision to keep them on the stingy side, so the result is a sandwich that actually tastes like flavored meat rather than a morass of goops. Good. The meat was also surprisingly good. It wouldn't make you mistake Indiana for the Lower East Side, but it was real, tasty, comparatively fresh, etc.

That leaves two failings, one more severe than the other. One-- the saurekraut. It wasn't really saur, indeed it didn't taste like much of anything. I suppose once upon a time it was softened flavored cabbage of some sort, but owing to the paltry quantity and paltry flavor, it's presence was really pretty much cosmetic.

That leaves two-- the bread. I believe what we had was a sort of wonderbread marble rye, which did indeed have a little bit of rye flavor to it, but which was very soft and sort of mushy, rather than having real structure as the bread supporting a Reuben really has to. This panel of folks examined Arby's Reuben in Indianapolis and discovered that the bread is indeed nominally toasted once, but that you have to ask for it to be double-toasted for the bread to stand much of a chance against the sandwich. Now, even if you did this, you'd still only have toasted marble-rye wonderbread, but that seems to me the top of what is reasonable to expect from a fast-food sandwich.

So you wouldn't mistake Arby's Reuben for the real thing, but you could do a whole lot worse. And it's hard to beat the price or the convenience.

Speaking of price and convenience, if you are willing to wait several days and pay 20-30 dollars per person, you can instead get Zingerman's mail-order Ruben kit. I vaguely remember that the New York Times discovered (to their own shock and dismay) that Zingerman's corned beef beat any they could find in Manhattan, so it might well be worth it.


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Handfuls of Dust

Nate Oman has a pair of posts about "Finding God" in the structural beauty of chess and appellate briefing here and here. Now, as a lover of structural beauty, I sympathize. I am also wowed by the structural beauty of a great jazz piece or a really good integral over complex variables.

But, and I do mean this non-contentiously, why God, particularly? As he puts it in his second post:

Rather, I wanted to point out that a well-written brief exhibits a kind of beauty, the beauty of reason. A well-played game of chess shows the same sort beauty. My point is that this beauty can be taken by the believer as a trace of the presence of God. Not, mind you, as evidence of God's exclusive handiwork, nor as evidence of superior moral or even intellectual merit. Rather, it is simply another trace of divine beauty in the world.

I had always taken the structural beauty of human creations (like the brief, the chess game, or the City of Chicago) to be evidence of the presence and the reason of Mankind. I suppose as an empirical matter this tends to be a circle-- those who believe in God think beauty confirms their world while those who believe that the world is chaotic or manmade or whatever else find their own structural theories confirmed.

But what strikes me as odd about chess and the appellate brief is that these are unquestionably the handiwork of man (divinely inspired or not). It always made more sense to me when people took the existence of golden-ratio snail-shells, or certain quantum physical equations, etc., as evidence of some mystic order and orderer of the universe (right or wrong). But here, that explanation doesn't even seem necessary. So why find God rather than Paul Clement?

UPDATE: Nate has a typically thoughtful update to his post, distinguishing between evidence and manifestation. Obviously since he and I have different religious beliefs, the beauties of life seem to us to be manifestations of different things, but that just points up that this whole thing isn't an empirical debate. Fair enough.


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McKay

On the advice of Julian Sanchez, I purchased Nellie McKay's sassy debut album, "Get Away From Me" last year. Despite finding the politics and sentiments that animate the songs foolish and puerile, I find myself listening to it again and again. (Bad politics frequently make good art.)

Today was supposed to be the release of McKay's second album, "Pretty Little Head", but I noticed in today's paper that it has now been put in indefinite limbo. McKay is trying to buy back the rights to her songs, but it is not clear from the article precisely which rights she gave away in the first place. I will have to buy some other music to tide me over.


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