74th Anniversary of Breedlove v. Suttles (302 U.S. 277): A Missed Opportunity for Justice

In 1937, the Supreme Court of the United States declared that poll taxes, as a prerequisite to voting, to be constitutional.  In Breedlove v. Suttles, 302 U.S. 277, (1937), Breedlove, a 28 year old white male, asked the Court strike Georgia's poll tax for violating the Equal Protection Clause of the Federal Constitution.  The Georgia law required a levy against men from the ages of 21-60.  Women were excluded unless they actually registered to vote.  Regarding the equal protection clause, Court promptly retreated to familiar territory: "The equal protection clause does not require absolute equality."  Interestingly, there are no citations for this principal, perhaps its truth is self-evident.  Most cases prior to Breedlove which emphatically stated that equal protection does not require absolute equality concerned equality with regards to taxation.  (See FS Royster Guano Co. v. Virginia, 253 U.S. 412 (1920); Colgate v. Harvey, 296 U.S.404 (1935); Maxwell v. Bugbee, 302 U.S. 277 (1937); Travellers' Ins. Co. v. Connecticut, (1902)).  In Breedlove, the issue of suffrage took a back seat to taxation.

The Court also offered additional arguments in support of Georgia's law.  The reasoning offered by Justice Butler was two-fold.  First, many countries, for a long time, have used poll taxes.  Second, the privilege of voting is not derived from the federal Constitution, but from the State. Thus, poll taxes are a tried and true method of taxation and States have the power to condition the right to vote such that it does not conflict with the 15th and 19th Amendments and "other provisions of the Federal Constitution."

Thirty-two years later, the Supreme Court could no longer ignore the voices of those excluded from the democratic process.  In Harper v. Virgina Board of Elections, 383 U.S. 663, (1966), the Court reversed its decision in Breedlove.

In 1963, the 24th Amendment was ratified making poll taxes in Federal elections unconstitutional.  The Harper decision found poll taxes in both State and Federal elections to be in violation of the Equal Protection clause.

Sexism in a Professional Marketplace

Since we were talking about getting "disrobed," I thought I would pick up a prior inquiry into sexism in advertising (see vintage 1, vintage 2, & general discussion).  Not so sadly, the title "JurisPrudes" has already been taken by Dahlia Lithwick for her post on the "Custom-Tailored" ad by Jiwani.  The ad, picturing a woman pulling a man towards her by his leash tie, was published in Massachusetts Lawyers Weekly.  The ad states, without citations, that "A custom-tailored suit is a natural aphrodisiac."  Since "suit" references clothing instead of litigation, this ad is less disturbing than Dr. B. Blake Bradley's ad in Bourbon Magazine for his OB/GYN services in Lexington, Kentucky.  Also making an allusion to the magazine's theme, the ad states with freshman enthusiasm, "Bottoms Up!"

The Custom-Tailored ad is more problematic for contemporary feminists than the "Bottoms Up!" ad which is merely creepy. Lithwick raises the interesting issue of whether "sex" is inherently "sexist."  Is the ad demeaning just because the ad has an erotic theme?

At some point in the evolution of feminism, three distinct concepts -- sex, sexuality, and femininity -- became interwoven with the feminist critique of the marketplace.  As Dr. Lenore Wright explains, a backlash against feminism emerged from the gender wars and this backlash wants nothing to do with a feminist philosophy that tells women to reject the power of sexuality and the softness of femininity.  (see "The Wonder of Barbie: Popular Culture and the Making of Female Identity").  Perhaps this is why self-proclaimed feminists would say that this ad is not demeaning of women... it is just about sex, which is everywhere. For this same reason, argues Dr. Wright, many young women bristle at being identified as a "feminist."

Antarctica Disrobed

If one were to remove all of the ice from Antarctica, this is what the polar continent would look like according to Hamish Pritchard of the British Antarctic Survey.  But, what would the coastlines of the world look like if the Antarctic Ice Shelf were to melt.  Approximately 70% of all of the fresh water in the world in currently cuddling the jagged land mass at the South Pole.  If the ice melted, the sea level would rise approximately 200ft. (Note: Death Valley is currently 200ft below sea level.) That is not enough to make Waco, Texas (elevation 550ft) beach front property, but it would shorten the drive to the coast by a third.  This map shows the Texas coastline after a 229 ft. (70m) increase in sea level.

43 Anniversary of Durfee v. Duke, 375 U.S. 106, or " What you can do, we can do better"

Some swamp land is worth fighting for, even across state boundaries.  The dispute begins on the border of Nebraska and Missouri.  The river forms the border.  When the river moves, the border moves.  Durfee filed suit in Nebraska to quiet title, securing her claim through a tax foreclosure deed issued by Nebraska.  Duke claimed her title through a "swamp land patent" from the State of Missouri and through adverse possession.    The Nebraska Supreme Court, surprisingly, found that a Nebraska tax deed trumps a Missouri swamp land patent.  Durfee v. Keiffer, 95 NW 2d 618, (Neb. 1959).

Duke responded by filing suit in Missouri.  The case was removed to Federal Court where it was decided that the land was actually in Missouri, but since the issue of ownership had already been decided by the Nebraska Supreme Court, it could not rule on the issue of ownership.  The Appeals Court disagreed, saying that the issue of ownership could be retried in Missouri because Nebraska never had subject matter jurisdiction: the land was in Missouri.

The U.S. Supreme Court jumped into the fray on the issue of "The Doctrine of Jurisdictional Finality."  Durfee v. Duke, 375 U.S. 106 (1963).  In other words, if you fully and fairly litigate the jurisdictional issues to conclusion, even in a district that does not have jurisdiction, the final ruling will stick.

Where is Ai Wei-Wei?

Online.

In support of Ai Wei-Wei, his fans have rallied in a digital protest... in the NUDE.  Ai Wei's photograph, One Tiger, Eight Breasts has been deemed "pornography" by Chinese authorities.  When confronted by the police, Ai Wei said "Nudity is not pornography." 

As acknowledged by Justice Stewart in Jacobellis v. Ohio, 378 U.S. 184 (1964) (concurring opinion), defining pornography is difficult. Mere nudity would be harsh test for pornography since most people, other than some baptists, are born nude.  Some courts have proposed that nudity becomes pornography when it is created with an "intent to arouse."  See U.S. v. One Book Called Ulysses, 72 F.2d 705, 706 (2d Cir. 1934).  That may help a bit, but "intent" and "arousal" are also difficult concepts to define.

i

Manet Olympia (1863)

Titan Venus of Urbino (1583)

Going the other direction on the scale, consider the difference between being "nude" and "naked." This has been fertile dissertation material in the field of art history.  A classic contrast of the nude and the naked is found in the comparison of Titian's Venus of Urbino and Manet's Olympia.  In the juxtaposition of these two images, viewers have found two different modes of representing an unclothed female.  Foucault suggests that the difference arises from the nature of the gaze from and between the subject of the painting and the viewer.

The Day of "Talking Leaves"

On November 28, 1785, the United States and the Cherokee People entered into the aptly titled Treaty of Hopewell.  In exchange for "protection" from the nascent United States, the Cherokee agreed to release prisoners.  The treaty also set the boundary lines between the two nations and acknowledged, indirectly, that each shall have independent jurisdiction over their land.  More out of hope than reality, the treaty concluded with the following proclamation, "The hatchet shall be forever buried, and the peace given by the United States, and friendship re-established between the said states on the one part, and all the Cherokees on the other, shall be universal; and the contracting parties shall use their utmost endeavors to maintain the peace given as aforesaid, and friendship re-established." (see text of treaty)

Historical marker at Hopewell

As many know, "jurisdiction" is a two-edged sword.  Forty-three years later, Georgia passed a series of laws to expel the Cherokee from the "historical boundaries" of Georgia.  In response, the Cherokee Nation filed an original action with the Supreme Court of the United States asking the Court to enjoin the enforcement of Georgia's laws on the grounds that the laws violated the U.S. Constitution and prior treaties, namely Hopewell and Holston. Cherokee Nation v. Georgia, 30 U.S. 1 (1832).

Chief Justice John Marshall

Art. III Sec. II of the U.S. Constitution gives the Supreme Court original jurisdiction over disputes between a state and foreign states.  There lies the rub.  Chief Justice Marshall asked whether the Cherokee Nation is a "foreign state" as the term was used in the "constitution."  The answer...  "No."  The Cherokee Nation, albeit a nation that was foreign, was deemed a different type of entity altogether.  Cherokee Nation v. Georgia declared the Cherokee to be a type of sub-nation, dependent on the United States.  Cherokee, 30 U.S. at 26-27 ("They may more correctly perhaps be denominated domestic dependent nations.").  The Treaty of Hopewell and Holston, despite using the word "treaty" were mere contracts, distinct from a treaty with a proper nation such as France.

As far as the intentions of the framers of the Constitution, Marshall had this to say:
At the time the constitution was framed, the idea of appealing to an American court of justice for an assertion of right or a redress of wrong, had perhaps never entered the mind of an Indian or of his tribe. Their appeal was to the tomahawk, or to the government. This was well understood by the statesmen who framed the constitution of the United States, and might furnish some reason for omitting to enumerate them among the parties who might sue in the courts of the union.  Cherokee, 30 U.S. at 34.

If Ai Wei-wei can do it, so can I...

Sunset over the Atlantic.

After a long detention, activist Asian artist Ai Wei re-emerged from his social media silence to say, "Greetings, I am here." 
Since June 24, 2011, Waco has experienced the following:
- Record Heat: 44 days straight of over 100F temp.
- Federal hearing on another person trying to injure Ft. Hood soldiers
- $150,000 grant to Salvation Army to help homeless veterans
- Dwight Yokum performed at the Cattle Baron's Ball
- Baylor student was detained in India for having a bullet in her bag

Off the Grid

The Edge will be off the grid for the next 11 days.

UPDATE - Ai Weiwei finally released from secret jail

Internationally famous Ai Weiwei [designed the Bird Nest Stadium for the 2008 Olympics] was arrested over two months ago in China as part of a country-wide crackdown on political dissidents.  Ai was released today on bond after pleading guilty to charges of tax evasion.  After his arrest, Ai Weiwei was detained in an undisclosed facility and prevented from contacting his attorney.
Ai Weiwei is also famous for giving the "bird" to various political monumentts.

Martin Museum "Selections from the Permanent Collection"

Painting by Walter McCown at the Martin Museum

The Martin Museum of Art, at Baylor University, is currently showing selections from its permanent collection.  Included in the show is a painting by Walter McCown, a local artist who was very talented and prolific during his life.  For those enthusiastic about mid-century art, abstracts and landscapes, it is not unusual to find his paintings at antique shops from Corpus Christi to Dallas.  McCown also painted under the pseudonyms "Josh Bass" and "Talman."  Walter McCown was born in Whitney, Texas in 1932 and died in Waco, Texas (while teaching painting classes) in 1994.  He showed paintings at exhibitions and galleries across the country.

Painting by Walter McCown in the
law offices of Tekell & Atkins, LLP.

Lady Blunt Increases 100 fold

A fifteen million dollar violin.

The original Lady Blunt.

As discussed before on the Edge, the famous Lady Blunt Stradivarius violin was donated by the Nippon Music Foundation in order to raise money to fund relief efforts in Northern Japan.  The auction house Tarisio conducted the acution today.  The Lady Blunt was the last item on the list at No. 126: "A FINE AND IMPORTANT ITALIAN VIOLIN BY ANTONIO STRADIVARI, CREMONA, 1721."  The violin sold for $15,894,000 (£8,750,000).  By way of comparison, the next highest priced item was a  French violin by Nicolas Lupot, 1799, which sold for £150,000.

The last time the Blunt went to auction, in 1971, she sold for a mere £84,000.

Marion to Bermuda Race Update

Lilla at the Start.

As of this morning, five boats have completed the race. The Lilla set a new time record for the race, completing the journey from Buzzard Bay to Bermuda in 69 hours.  The Oronoco, Adrian Ravenscroft's boat, is 117 miles from Bermuda and the next in line to cross the finish line... assuming Running Tide, Lynley III, and the Kyrie cannot overcome the 15 mile lead.

Lilla at the Finish.

Partial Nudity More Powerful

Many have said that being partially clothed is sexier than the full monty.  Now, it is true to say that partial nudity is more powerful.  When you are hot, you might as well take advantage of it... with the iKini, you can use the suns rays to charge your ipod or mobile phone.  Andrew Schneider has invented a solar panel bikini, with usb ports, that can harness your beauty and the sun all at once.

Marion to Bermuda Yacht Race

The first boats should arrive today in the Marion to Bermuda race.  The fleet left out of Buzzard Bay on Friday in less than pleasant conditions.  Lilla, a 76 Briand, is less than 20 nautical miles from St. David's Head, Bermuda.  The bulk of the fleet has 300 miles to go.  Waco, Texas is represented by Adrian Ravenscroft sailing the Oronoco, a Sabre 42.6.  The Oronoco 230 miles from the finish.

Zombies chew the brains of Leicester City Council

BBC

Despite fair warning [see this Edge entry], the town of Leicester was not perpared for a zombie attack today.  City officials and journalists mocked a letter from a concerned citizen asking about whether the city had in place an emgergency plan for zombie attacks.  "No," was the answer.  After much moaning and shuffling, the 150 zombies dispersed to quinch their thirst with a pint and to update their facebook and twitter feeds.

Great News for Attorneys and Politicians

Scientists are developing a procedure to implant a brain into a brain. "I am two minds about that," will no longer be cop-out phrase but an accurate description of inter-brain discord.  The possibilities are endless. The current technology only points at the ability of translating thoughts into movements, but one day the empathy-challenged may be able to implant a second brain that translates thoughts into emotions and feelings... perhaps even love.  "The ultimate goal is to be able to reactivate paralyzed limbs," said Euisik Yoon, a professor in the U-M College of Engineering.  But, Dr. Yoon, why not use the BioBolt to "reactivate paralyzed emotions?"

"These handcuffs look better on you than me..."

... a beleaguered Strauss-Kahn silently said to himself.  Despite an enthusiasm for domination, the former IMF chief shies away from the passive role:

Detective: "Please have a seat."
S-K: "Is that [handcuffing] necessary?"
Detective: "Yes, it is."
S-K: "I have diplomatic immunity."
Detective: "Where is you passport?"
S-K: "I need to make a call and let them know I won't be at my meeting tomorrow. These handcuffs are tight."

Or, he could just be "playing the role."

Ready To Be An Environmentalist? It is all about the marketing.

**** for Forests, or FFF, was founded in Norway to protest the destruction of rainforests worldwide.  The group's first appearance on the world's stage was at the Quartz Festival in 2004 when two members "shared their love" on stage.  More recently, FFF staged a two person protest in front of the alter at Oslo Cathedral, during service.  Some have suggested that the FFF website is merely a porn site; others have suggested that FFFers are actually Swedes and not Norwegians.

Rowdy Waco Boys Disrupt Church (in 1874)

Continuing with a review of 19th century life in Waco, Texas, the Waco Daily Examiner, on this day in 1874, reported that a group of boys gathered beneath the Baptist church windows on Sunday and conversed at such a volume that it disrupted the service.  The article admonished the boys, saying, "This sort of thing is very reprehensible, and the boys should go inside next time.  We are sorry to have to make this complaint."