Judicial activism and Individual Rights

Obviously I think the California Supreme Court’s ruling on same-sex marriage is the correct outcome. I’ll leave the legal analysis of how the Court got there for others to judge. Still, this is an interesting, positive development.

I wish to comment on one factor that will appear in the coming weeks, and will probably quickly grow within the presidential election. Many will claim judicial activism, as if that’s a valid claim. Our courts do not exist to rubber stamp any and every rule a legislature can dream up. Enforcement is the Executive’s job. The Judiciary must interpret. Bowing to the mythical “will of the people” gets us no closer to the truth than waiting for a new constellation to appear in the sky with the correct outcome spelled in the stars.

An Andrew Sullivan reader wrote this to Mr. Sullivan:

The decision is an arrogant, impatient one. My gay friends are impatient, and I understand their impatience. But the Court should have trusted the people.

It was only a matter of time. A democratic consensus, based on reason and persuasion, is much better for everyone, in all the states, in the long run.

Mr. Sullivan responds with the perfect rebuttal:

Yes, and it has been building. But a republic is not just a democracy. It is a confluence of constitutions, laws, legislatures, executives and courts. In 1948, the California court ruled against miscegenation bans. It took three decades for that act of “judicial activism” to gain consensus nationally.

Exactly. And constitutions are first. Where the laws of the legislature violate that, the courts must reject the laws. Anything else is mob rule.


This fits into the discussion on how civil law should treat medically unnecessary circumcision of male children in America. The procedure is ethically and scientifically flawed. It should not be permitted. Legislatures have already shown an willingness to exclude male children from this protection acknowledged for every other American. Democracy (i.e. mob rule), with a nod to social and religious justifications before individual rights protected by constitutions, should prevail, some say. What parents want is worth defending because altering the healthy genitals of their male children is their choice. It is a right that supersedes the rights of the child, both in individual religious freedom and bodily integrity/freedom from harm.

The political side of the issue is an unprincipled, anti-constitutional mess in America. The concept of individual liberty is lost. The court’s role is to uphold constitutional protections for every individual. It is critical to defend the rights of the minority against the tyranny of the perceived majority. Where tradition and social expectations conflict with individual rights, tradition and social expectations have no merit. The role of the court is to set these legal excuses aside in favor of individual rights. This is not activism.

Courts are not infallible. Yet, as Mr. Sullivan’s example shows, society has a way of catching up to the “activism” of courts, with an eventual understanding that wisdom and logic demanded the outcome. History will show that with same-sex marriage. It will show that with medically unnecessary child circumcision. The former before the latter, but the day for both will arrive.

The ABC of HIV prevention means “Always Be Cutting”?

I don’t know which is more frustrating, stupid “science” articles or the reporting on those articles. Last week, my news world was filled with various regurgitations of this nonsense:

According to a new policy analysis led by researchers at the Harvard School of Public Health (HSPH) and the University of California, Berkeley, the most common HIV prevention strategies-condom promotion, HIV testing, treatment of other sexually transmitted infections (STIs), vaccine and microbicide research, and abstinence-are having a limited impact on the predominantly heterosexual epidemics found in Africa. Furthermore, some of the assumptions underlying such strategies-such as poverty or war being major causes of AIDS in Africa-are unsupported by rigorous scientific evidence. The researchers argue that two interventions currently getting less attention and resources-male circumcision and reducing multiple sexual partnerships-would have a greater impact on the AIDS pandemic and should become the cornerstone of HIV prevention efforts in the high-HIV-prevalence parts of Africa.

Hold off on assessing the validity of such claims. Wouldn’t it be appropriate if they put the two key words – voluntary, adult – in front of male circumcision? That’s all that the studies being cited as gospel looked at. The press release does later invoke voluntary, so I wonder if the omission of adult implies that children consent. Perhaps a look back at past writings from one of the studies authors, Daniel Halperin, might reveal anything:

As Holbrooke noted, circumcision has indisputably been proven to prevent HIV. It reduces the risk of male infection during intercourse by at least 60 percent and, unlike a condom, cannot be forgotten during a moment of passion. Nearly all of 15 studies conducted throughout Africa found that most uncircumcised men would want the service if it were affordable and safe, and even more women prefer it for their partners and children.

Excerpted from Halperin’s essay referenced in my original entry.

How convenient. Even more women prefer it for their partners and children. Regarding the former, I don’t care what influences or reasons adult males use if the decision to undergo circumcision is voluntary. But with the latter, that simply isn’t the case. And how is it sexually relevant to (male) children what their mothers prefer regarding their genitals? (Also notice how nearly all of the studies revealed that most intact males would want circumcision. Contradictory evidence is still evidence.) Obviously I don’t come to this report with any pre-established respect for circumcision promoter Daniel Halperin. But continuing from the new article.

The AIDS pandemic continues to devastate some populations worldwide. In most countries, HIV transmission remains concentrated among sex workers, men who have sex with men and/or injecting drug users and their sexual partners. In some parts of Africa, HIV has jumped outside these high-risk groups, creating “generalized” epidemics spread mainly among people who are having multiple and typically “concurrent” (overlapping, longer-term) sexual relationships. In nine countries in southern Africa, more than 12% of adults are infected with HIV.

For example, condom use is widely promoted as an HIV prevention measure and is effective in countries such as Thailand, where the epidemic is spread primarily through sex work. However, studies have found no evidence that condom use has played a primary role in HIV decline in generalized, primarily heterosexual epidemics, such as those in southern Africa, the authors note. This is mainly because most HIV transmission there occurs in more regular sexual relationships, in which achieving consistent condom use has proved extremely difficult.

I want to pound my head on my desk until I can’t think any more. Where HIV transmission occurs, it occurs because the couple is engaging in unprotected sex where one partner is HIV-positive. If a condom is not used, that is not an indictment on condoms as a prevention technique. It’s not even about condom use in a relationship. It’s obviously about unsafe promiscuity. It does not take a genius to figure out that, if behavior remains consistently immune to logic, circumcision will not matter. HIV will spread. The only potential difference under discussion is the rate at which the disease spreads. Have unsafe sex with HIV-positive partners and you will become infected. It may take an extra encounter, but it will occur.

Circumcision also has the potential to encourage “just this once” disregard for safe sex practices. “I’m circumcised, so just this once, I’ll ignore the condom.” How many times will be “just this once”?

Under this focus on the rate, though, the true implication becomes clear. This is best shown in the poor reporting regurgitation of articles like this. For example:

In western Africa, were male circumcision is high for cultural and religious reasons, the prevalence of HIV is low and controlled trials have shown that the operation can stem the rate of infection, said Professor Malcolm Potts, of the University of California, Berkeley. “It is tragic that we did not act on male circumcision in 2000, when the evidence was already very compelling,” he said. “Large numbers of people will die as a result of this error.”

Because we didn’t implement mass circumcision of males in Africa, large numbers of people will die. As opposed to saying that, because many individuals¹ aren’t engaging in safe sex practices, large numbers of people will die? Which is more accurate at portraying a direct cause? Which advocates speculation that can’t be verified? Which is scientific?

Individual actions matter. If We&#153 are going to intervene, we must provide nothing more than the tools for individuals to choose for themselves. Where individuals ignore known risks and engage in dangerous behavior, there will be consequences. Suggesting that we shift from truly voluntary prevention techniques such as ABC (Abstinence, Be Faithful, Condoms) and voluntary, adult male circumcision to involuntary male child circumcision is little more than an indication that We will save Them. Because They do not partake of the known methods to protect themselves as individuals, we must do it for them.

Of course, there’s the giant elephant in the room. “Reducing multiple sexual partnerships” sounds a lot like Be Faithful. So we’re left with only one different approach the authors believe should receive more funding. New articles and studies like this always have the goal² of pushing mass male circumcision, voluntary and involuntary, adult and child. Always.³

¹ I know that the issues of consent in sexual relations are more complicated than assuming every sexual encounter is voluntary and free from any pressure. Conceded. But that does not change the point that involuntary circumcision is not an answer to this problem. Correcting a wrong with a wrong is not valid. Individuals have rights, not collective groups.

² If you look at what the article is saying, you’ll also note that the validity of ABC instead of a collectivist, utilitarian perspective on male circumcision applies to the United States. Our HIV problem is not caused by what circumcision is supposed to protect against. That hasn’t stopped circumcision advocates from promoting (infant) male circumcision in
the United States as a way to reduce the risk of female-to-male HIV transmission.

³ It would require its own blog entry, but I don’t think any of this is some mass conspiracy by any group or profession. A mindset closed to a full set of facts, maybe, but not groups. Still, the point remains: it’s always about circumcision first, even if the stated justification is “public” health or some other goal perceived to be noble.

There is one outcome that can’t be corrected.

Heartland Regional Medical Center in Marion, Illinois had a problem recently where two babies were mixed up after being circumcised. Both sets of parents consented to violating their sons, so there wasn’t much to blog about beyond the obvious point that no one should be surprised at any incompetence found in a hospital that routinely performs unnecessary surgery on the genitals of healthy male children. That alone is sufficient proof of incompetence.

Still, the hospital felt the need to implement solutions to prevent the mistaken identity. If you’re going to violate a child, you should do it as few times as possible, I suppose. Part of the solution:

  • Only one baby, one doctor and one circumcision at a time. …
  • The RN whose mother/baby couplet requires a circumcision will be the same RN who does the time out, accompanies the baby to the surgery and assists the physician with the surgery. That RN is also responsible for band verification and the time out.

Concerning operating room policies, Lang said surgical services must be consistent with needs and resources. Policies governing surgical care must be designed to assure the achievement and maintenance of high standards of medical practice and patient care.

Thirty circumcisions a month will be observed for the next four months to insure time outs are performed according to the hospital’s policy and procedure.

Concerning patients’ rights, Lang stated that the patient has the right to receive care in a safe setting.

All that attention, and the only concern for the actual patient’s rights is that the patient has the right to receive care in a safe setting. How about the more fundamental right to receive “care” only when it’s medically necessary and indicated? Is that not a right? Would it be okay to amputate a child’s arms, as long as it’s done in a safe setting? Have rights really regressed to the point that we view a clean scalpel as the ceiling of a patient’s rights?

Does Bob Barr hurt Obama’s chances?

This entry by John Scalzi on Bob Barr’s announcement that he is officially running for the Libertarian Party nomination for president is one of the better takes I’ve read on the prospects of Barr’s candidacy.

But let’s be real, here: the question [sic] not really whether I put Barr ahead of McCain in my voting queue, since I had no intention of voting for McCain in the first place. The question is whether some folks who might otherwise vote for McCain will do so, and whether there will be enough of them to constitute a genuine drag on McCain in the election. …

That’s certainly the case to an extent, but I wonder why no one seems to be talking about the other possibility, that Obama’s vote totals will also fall. I know I’ve encountered libertarians who are considering voting for Obama because they’d never vote for McCain. If they now vote for Barr if he wins the LP nomination, how much will that matter to Obama’s chances? I don’t have the answer, but it’s a question at least as worthy when considering the possibility that McCain is auditioning for a third Bush term. I know of few libertarians who would consider that for a moment, so Barr just isn’t stealing votes from there.

The liberaltarian meme is mostly policy crap designed to push libertarians to embrace a progressive agenda rather than a (classical) liberal approach to government. But it has adherents. How will they vote?

For what it’s worth, the quick link Mr. Scalzi provides to Barr’s policy positions reminds me why I’m very skeptical of Barr. The anti-immigration stance is troubling, at best, but throwing his support behind the Fair Tax as a “well-researched alternative” leaves me cold. Well-researched, maybe, but accurately marketed? Not so much.

It’s time to step into the confessional.

I left the W2 world and became an independent consultant more than four years ago. Professionally, these have been the best four years, although I haven’t gained significant new skills or progressed higher. As an independent, that’s difficult to begin with because you’re hired for a role with a defined boundary. It’s possible to get more, of course, but you have to be proactive because no one is pushing from behind, or pulling from above. (Pick one.) I wasn’t overly proactive in the roles I had because I didn’t want to be.

I like that, personally. I jumped out of the W2 world because I’m not interested in the “Up or Out” career path. Lateral moves are fine because I like the behind the scenes tasks and mental challenges. Digging in code to find mistakes suits me much better than managing people who will dig in code.

Blogging is a perfect example of this. You don’t see me on YouTube and only a select few of you even know my full name. I don’t blog anonymously because I’m ashamed of my ideas. I just like my ideas more than I care for accolades. There is also the desire to block out my professional life from Rolling Doughnut, although I clearly give enough personal information that anyone who knows me even remotely could place the two together.

Before I go too far on this tangent, let it suffice that I like the mind more than the mouth. That’s probably the most pithy-yet-accurate way to assess my interests. It’s why I intend to be a professional writer at some point. I’m working on it. but I’m not ready. Not because of my words. I know I’m good enough there. I’m still looking for the entryway into a published gig, but that’s also not the problem. More on this in a moment.

This has been the long way of saying that I finished up my last consulting project in April 2007. I took a little bit of time off because I could. And then I took a lot of time off because I couldn’t find a new role. I had a few leads that seemed to die right before fruition. I had another that died a very strange death, though hindsight left me unsurprised. (This is the role that allowed me to buy my MINI before I should have. Rather than a dearth of intelligence, it was an overabundance of faith. Lesson learned.)

So, bottom line: the $40 I earned for my day of jury duty is my sole income in the last 13 months. Don’t fret for me because I saved well enough in the preceding years. I haven’t had to sell blood or possessions or cancel luxuries like Netflix. My mortgage is not delinquent, and my revolving credit card balances are $0. Nor should you read this as an indictment of the economy. I am not caught in that, directly. (Indirectly, probably.) There are market forces at work in my industry that started long before trouble in the economy. I won’t bore you with details.

Unfortunately, and perhaps usefully instructional, I must redirect my career in the short-term. I’ve accepted a W2 position. I can’t say I’m overjoyed at the prospect. The opportunity is good because, apart from providing income (!), I will learn new software skills. My software methodology skills are excellent and will always be marketable, but as good as my software skills are, they won’t be marketable forever. Creative destruction is at work. I can’t champion capitalism and not expect to get the (alleged) short end of it. But apart from having to go back to being an employee, calling this the short end would be nothing more than whining that change happens. No, thanks.

Now, back to writing. As I mentioned, that’s where I want my career to go. I’m already working in that direction. But I learned something in the last 13 months. I’m scared. I know I can write, but I don’t know if I can write professionally. While I had free days and nights to toil away at making the blank page not blank, I surfed the Internet. I blogged, which is useful, but not completely. I played video games. I watched television. I did everything but write.

Before I convey too much self-loathing, I’ve enjoyed the last 13 months like no other time in my life. I bought a year of retirement and it was wonderful. I loved not reporting to anyone for anything. I learned not to apologize for being who I am. I learned that I could explain a 13 month absence from the workforce and not feel the least bit of concern for how that truth is received. That will be useful.

I also learned I could live on less money than I thought. I learned where I need to focus my pursuits to be the kind of happy I want. A friend of mine is also unemployed right now. He is a workaholic. I can’t imagine how much the time off is messing with his head. I have no such misfortune. Not because I don’t like to work, but the work matters more than working. And 13 months of being disengaged taught me that in a way I didn’t comprehend before.

What does this all mean? First, the obvious. Blogging here is going to be disrupted for a bit while I readjust to a structured schedule and my new employer. I haven’t posted in a week and I’m telling you that when I have somewhere to go every day, I’ll have to figure out how to make this work. Duh. Seriously, though, Rolling Doughnut isn’t going anywhere. Without it, I wouldn’t have written more than 100,000 words on circumcision in the last three years. That matters to me.

Second, my blogging will probably change a little once I’ve readjusted to having a job. I want to write for publication. I’m interested in policy questions and political theory, for example. I also have a book on circumcision tumbling around in my brain. It needs to get out.

But I also want to write fiction. I have no idea if I can write a novel worth publishing. That can no longer deter me. I listened to that for the last 13 months. Years, really, but I can’t excuse away the last 13 months. I had the time. I have the ideas. The two must meet. Again, I don’t know how to do this, but I will in the coming weeks and months. Perhaps I’ll write nothing but shit. Probably I will. But I can’t edit the blank page.

Finally, as to my career, it bums me out a little. I love the freedom that comes with being independent. The money is great, sure, although Congress takes away much of that gain directly through taxes and indirectly through stupid policies like incentives for employer-based health insurance. But dictating when I take a vacation, within professional bounds, is better than asking. Not worrying about accumulated vacation time is also nice, even though vacation was just unpaid time off. That’s a better-than-fair trade in practice.

Still, I’m not worried. I’ll get back to independent eventually. Not in the short-term because my reputation in my industry is important, so I’m not going to screw over my new employer by treating them as a place-holder. However, it would be silly for anyone to assume I’ll eventually retire from this company. Until then, I’ll learn new skills while providing a valuable service in return for a paycheck. As much as I love independence, I’m not interested in losing my house.

I’ll probably return to independent consulting. But maybe not. I’m going to attempt to pull off a writing career. I doubt I’ll make as much money if when I become published, but I don’t care. The money didn’t drive me before, I thought, but I was wrong. It did. Through the last 13 months, it doesn’t now, at least not to the same extent. Not being able to spend money frivolously has been frustrating. I get the urge to spend just to spend. But material things don’t hold the same sway over me now. I need less. (Last night I went to Best Buy to celebrate my new job with a minor shopping spree. I spent $10 on the new Jason Mraz cd. Hey, big spender.)

That’s what’s up with me, and what will be up with me in the near future.

I like tofu, I swear.

The linked article is amusing enough, although I have disagreements. But this FARK headline sent me into a minor fit of giggles, a not-fun predicament as I go through the coughing phase of a brief cold. It was worth it.

The US has 10 million vegetarians and 290 million normal people

In a bitter mood, I’d probably file this under Ranting and discuss the definition of “normal”. I’m not in a bitter mood. You’re welcome.

Rights, Science, Tradition. Not Tradition, Science, Rights.

Last week I wrote about baby tossing, making a comparison to infant male circumcision. Today, via Kevin, M.D., here’s a story that includes a debate among doctors.

“Of course there is risk of injury in this practice. Missing the stretched cloth might be fatal and even landing on it wrong might cause a limb fracture,” said Dr. Joseph R. Zanga, past president of the American Academy of Pediatrics and a professor at the Brody School of Medicine, Greenville, N.C.

Objectively identifiable risk for a subjective, perceived benefit. End of discussion. Yet:

“I would not suggest that we try it in the U.S., but if they have been doing it for 500 years without any injury I’d be wary of stopping them,” Zanga said.

When faced with a tradition of stupidity, it’s best to focus on the stupidity, not the tradition. Science over superstition.

Dr. Michael Wasserman, of the Ochsner Health System in New Orleans, felt the same pull toward cultural sensitivity. “It is hard for one to disagree with religious rituals, as they are private choices, at the same time, there is a real danger?” Wasserman said.

This is not about disagreeing with religious rituals. If people want to toss themselves over a building’s edge in a “controlled” manner, have at it. This is not that. This is people intentionally endangering another person – a child – for no objective gain to the person being tossed. Jumping and being tossed are quite distinct. The former is a ritual. The latter is madness.

However, some doctors thought the health risks trumped cultural sensitivity in this case.

“The idea that parents would participate in such a harmful practice and that no one would point out the dangers to them seems inconceivable,” said Dr. Astrid Heppenstall Heger, professor of clinical pediatrics and executive director of the Violence Intervention Program at the University of Southern California, Los Angeles.

While this sentiment is based in logic, it’s not really inconceivable. American parents participate in a harmful practice that disregards risk in favor of cultural sensitivity more than one million times each year. The parents have “rights”, you know. As long as the tosser¹ finds value in the act, the tossed is merely the necessary pawn assumed to value the subjective gain more than the objective risk. He or she² isn’t completely worthy of individual protection because the group finds some benefit.

¹ No derogatory pun intended.

² Except for genital cutting, of course. There the comparison allegedly breaks down. Cutting healthy boys is valid tradition, but cutting healthy girls, that’s barbaric, even when it’s tradition. Half of that rationale is wrong. Would doctors suggest it’s okay to toss only male children from a building?

They will fall in line. Mostly.

Consider this:

Now consider this:

I can’t believe smart people are implying that Republicans voting against Senator McCain in the ongoing primaries somehow spells specific, devastating trouble for McCain’s chances in November. Yet, with Senator Obama’s far lesser percentage support, the logic is somehow obvious that Democrats who voted for Senator Clinton will automatically back Obama in November. Of course they will, on both sides.

Being a partisan is generally the key point of someone’s political identity. Whatever policy disagreements exist matter, but rarely enough to fracture support for the party in the short-term. Witness George W. Bush in 2004. But it does not rule out a desire and willingness to cast a meaningless protest vote that indicates support for whatever distinction another candidates has from the inevitable nominee.

For consideration: Are we to believe that, even if Clinton’s supporters stay home, Obama will crush McCain because Obama’s vote total outstrips the entire Republican turnout by a margin of almost 2-to-1?

“I don’t look at your bum, bum-looker! Cheeky monkey!”

Via Boing Boing, speed cameras in England are clearly not automated or tied to any sort of radar. Rather, the only conclusion is that someone receives a paycheck to observe every moment the camera captures. How else would it capture – much less alert authorities – a passenger in a car traveling within the speed limit mooning the camera? (mildly NSFW link)

Police may take action against the man for public order offences and not wearing a seat belt.

The police lineup should be interesting.

Jeremy Forsberg, of the Northumbria Safer Roads Initiative, said: “This behaviour is simply ridiculous – it’s clear what he was thinking with what he had on show.

“Not only is it disrespectful, but distasteful and offensive, particularly to children who may have been exposed to this nonsense.

Of course the behavior is ridiculous. And as a driver, I’m sure it would’ve been distracting. But it takes a special kind of “liberty-minded” authoritarian mentality to express moral outrage at such an action by releasing a photo for broadcast all over the world – where our fragile children will see the offensive image – because children may have been exposed to the man’s bum. They’re certainly exposed now, genius. Although I suppose the government censor the BBC. For the children.

Post Script: Obvious title reference here.