CALawMama's Blog


Experiences at the interface of life, law, and motherhood in Cali

“Against the Curing of Womanhood”

The following is an excerpt from Wendy Shalit’s book, A Return to Modesty, which I highly recommend.

Shortly after opening the chapter, bearing the name of the title of this post, the author presents a quotation from Edward Sandford Martin (1899):

“There is nothing the matter with girls…They are a good invention of the kind, and the kind is indispensable and has never been beaten. If you don’t think so, there is something the matter with you. When a race or nation doesn’t think so, it is an infallible symptom that there is something amiss with that nation. There isn’t any surer test of the progress of any people in civilization than its appreciation of girls.”



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Antonin Scalia, Professor at Law

“To live for the moment is the prevailing passion– to live for
yourself, not for your predecessors or posterity. We are fast losing a
sense of historical continuity, the sense of belonging to a succession
of generations originating in the past and stretching into the

Christopher Lasch, The Culture of Narcissism: American Life in an Age
of Diminishing Expectations. W. W. Norton & Company; Revised edition
(May 17, 1991)

In the days following his unfortunate passing, stories of how Justice
Scalia affected the lives of well known law professors and high
powered lawyers, among others, have filled the legal news headlines.
But, as any cursory glance of social media sites, where lawyers, law
students, scholars and other legal professionals regularly congregate,
will show, his influence did not stop there, it had a ripple affect
across the country. It seems everyone has their own Scalia story. Here
is mine:

As a Political Science undergraduate, I recall fondly the shock that I
felt upon my initial readings of Scalia’s opinions. Undoubtedly, as a
dutiful progressive-bleeding-heart-liberal, my mouth probably fell
open, followed shortly thereafter by some reactionary insults or curse
words. However, as with the mark of any truly liberal education, in
the traditional sense of that phrase, my perception grew from pure
disdain into unwavering curiosity. I had to learn more about this
pithy Justice and his ardently held views of constitutional
interpretation, and of life.

I was in first semester at University of San Diego School of Law, a
fresh faced 1L, when I learned that Justice Scalia would be visiting
our school. USD has the Nation’s first Center for Constitutional
Originalism, and also happens to be Catholic, i.e. the perfect
confluence of factors to attract a devoutly Catholic Originalist

Thus, when the opportunity to actually hear him lecture arose, I
emailed the proper contact person immediately, and hoped that maybe,
just maybe they would let a contemptible 1L attend. To my surprise, I
ended up getting into not one but two of his lectures. To be honest, I
cannot remember what it was exactly that he said, but I’ll never
forget how it made me feel. Just like that cliché Maya Angelou quote.

I felt surprised that I could agree with anything that anyone so
ideologically opposed to me had said. And yet, his opinions were so
well considered and so well rooted firmly in the Constitution, they
could not simply be ignored.

It wasn’t until my 2L year, when I had the absolute blessing to attend
a condensed Separation of Powers course that Justice Scalia co-taught
with his former clerk, Professor Michael Ramsey, that I would have the
opportunity to experience the true depth of his wisdom, personality,
and unique humor. He was by far one of the most compelling lecturers
that I had ever had the privilege of witnessing– the temptation to
play solitaire or facebook never even entered my mind.

Although he taught many important substantive principles and points of
law, there were two resounding lessons that left a lasting impression
on me as a lawyer:

(1) Americans should be required to memorize the Constitution.

While I believe this statement was said in his playful jesting manner,
I believe underneath that facade he was being serious. He was truly
dissatisfied with the notion that our country has such limited
interaction with our founding document. Imagine the difference it
would make if our central text became worshipped half as much as
entertainment celebrities! Imagine the impact on legislative and
everyday discourse! No one can dispute that Scalia’s legacy was rooted
deeply in the commitment to honoring the Constitution, and inspiring
others to do likewise.

The other lesson, which seems to reflect a timeless guideline for
American jurisprudence:

(2) Just because a law seems like a good idea, does not mean that it
is constitutional.

Or perhaps, the more well known inverse of this principle: “STUPID BUT
CONSTITUTIONAL,” for which he was reportedly gifted a stamp, stating
the same.

Scalia’s message was always clear: follow the Constitution. However,
the statement that typically followed this statement, which has not
been reported as heftily by the media, was that if you don’t like it,
then change it– pass a constitutional amendment.

The impetus of that message deeply affected the way that I see the law
and legislative process. It sheds light on the issue that even well
intentioned laws may fall without of the bounds of constitutionality.
The message appears clear: do better, try harder. And I think that’s
all Scalia ever wanted from all of us to do better and be better.
Strive to meet a higher standard.

Scalia was one of my personal heroes for his passion, his committment
to honor the Constitution, and his uncanny ability to inspire us all
to do the same. There are few stars in the legal profession, but he
was indisputably one of them, and he will be deeply missed by us all.

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Legislation as the Sine Qua Non in American Law

freedom quoteBruno Leoni began his book, Freedom and the Law, with the premise that it is the destiny of individual freedom in modernity, to be defended almost exclusively by economists.

The original version of the manuscript, as published in 1961, devolves into an extensive discussion of the prevailing view that legislation is the end all be all of solutions. In fact, Leoni states, the profound increase of legislative response throughout the world, “is probably the most striking feature of our era, besides technological and scientific progress.”

And yet, anticipating the argument that such scientific and technological advancements dictate an ever broader legislative response, Leoni recognizes one of the most compelling issues infecting scientific discourse today:

“Scientific and technical research needed and still needs individuals initiative and individual freedom to allow the conclusions and results reached by individuals, possibly against contrary authority, to prevail.” Increasingly restrictive laws and regulations do not allow for creativity an invention to flourish. Rather, the greater the legal barrier, the likelier the status quo becomes maintained or derided. Presumably allusions to communism stifling the development of the sciences is not necessary at this juncture.

As a general matter, “legislation, especially today, always reflects the will of a contingent authority within a committee of legislators who are not necessarily more learned or enlightened than the dissenters.” The majority is always only a contingent majority, because they could lose their collective voting power at any minute, shifting power into the hands of another contingent majority. The process of oppressive lawmaking potentially, and most likely, disadvantaging whomever has the smaller collective political voice.

The contemporary vision of the the legislative body, and any other authoritative body, for that matter, is to continually churn out new material. New “solutions,” new “answers.” And yet, the fact that the legislatures are able to continually create new laws seems to prove by it infinite march into the future that there is no end in sight. Imagine, that instead of the obsession with crafting new laws, ever increasing in length, legalese, and utter verbosity, moving farther and farther from the grasp of the common man whom they are supposed to be protecting and representing, the governing authorities instead allocated that time on actually debating the merits of the laws that they were considering.

Instead of “fast tracking,” imagine extensively reasoned and impassioned debates, relying upon the underlying authorities and countervailing concerns. Imagine, if instead of failing to address that a law may have constitutional issues, and deferring the matter to the judiciary to be solved if and only if a disparate third party has the financial ability and willingness to bring a legal challenge, the legislators themselves actually engaged in discussion of the opposing constitutional arguments themselves, just as their oaths of office are supposed to ensure.

Contemporary legislators seem to believe that legislation is “always a good in itself and that the burden of the proof is upon the people who do not agree.” And yet, it’s alarming for how many thousands of years human beings were able to coexist and thrive without the thumb of the legislature crushing them under increasing pressure, squeezing out to anything resembling freedom. Freedom of expression is but one illustrative example that anyone on Twitter, for example, will readily recognize. True, this is not a governmental agent, but the squashing of impassioned discourse is clearly representative of a broader systematic oppression.

If you think this is an overstatement, I invite you to review the recommendations from the U.S. Departments of Health and Human Services (HHS) and Education (ED) on systematically engaging families in their children’s development, learning, and wellness, across early childhood and elementary education settings.

The term “family” is used to include all the people who play a role in a child’s life and interact with a child’s early childhood program or school. This may include fathers, mothers, grandparents, foster parents, formal and informal guardians, and siblings, among others.

The report “recognize(s) families as equal partners in improving children’s development.” Translation: the government believes it holds equal standing to families in relation to the direction and upbringing of a child. If this sounds familiar, you may recall Germany’s high courts have made similar declarations, “The state has an equal interest in the education of children.” German Federal Constitutional Court, Konrad, 2003. In Germany, for example, parents were sent to prison for their desire to homeschool their children, rather than send them to the government’s schools.

This position exists in glaring contravention to extensive Supreme Court precedent. See, e.g. Meyer v. Nebraska, 262 U. S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1925)

Specific recommendations include data gathering, tracking, extensive and intrusive inquiries into childrens’ home lives, and regular periodic home visits as a general matter. There is no evidence that child protective services or other federally mandated social services or delinquency agencies are insufficient to address any potential abuse. In fact, the issue may be that those agencies are in need of additional funding, in order to be executed properly, rather than adding on an additional bureaucracy.

“Without doubt, [liberty] denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. Slaughter-House Cases, 16 Wall. 36;Butchers’ Union Co. v. Crescent City Co., 111 U. S. 746; Yick Wo v. Hopkins, 118 U. S. 356; Minnesota v. Barber, 136 U. S. 313;Allgeyer v. Louisiana, 165 U. S. 578; Lochner v. New York, 198 U. S. 45; Twining v. New Jersey, 211 U. S. 78; Chicago, Burlington & Quincy R.R. Co. v. McGuire, 219 U. S. 549; Truax v. Raich, 239 U. S. 33; Adams v. Tanner, 244 U. S. 590; New York Life Ins. Co. v. Dodge, 246 U. S. 357; Truax v. Corrigan, 257 U. S. 312; Adkins v. Children’s Hospital, 261 U. S. 525; Wyeth v. Cambridge Board of Health, 200 Mass. 474. Meyer v. Nebraskaid. at 399.

See also, Parham v. J.R., 442 U.S. 584 (1979): “Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course; our constitutional system long ago rejected any notion that a child is “the mere creature of the State” and, on the contrary, asserted that parents generally “have the right, coupled with the high duty, to recognize and prepare [their children] for additional obligations.” Pierce v. Society of Sisters, 268 U. S. 510, 268 U. S. 535 (1925). See also Wisconsin v. Yoder, 406 U. S. 205, 406 U. S. 213 (1972); Prince v. Massachusetts, 321 U. S. 158, 321 U. S. 166 (1944); Meyer v. Nebraska, 262 U. S. 390, 262 U. S. 400 (1923).” id., at 602.

As far as legislative paternalism goes, as Leoni so brilliantly put it:

“Machiavelli himself would not have been able to contrive a more ingenious device to dignify the will of a tyrant who pretends to be a simple official acting within the framework of a perfectly legal system.”

I hasten to mention any particular piece of legislation here, as its not the particular legislation at issue, but rather the mindset that legislators will somehow solve all ills. If we are honest with ourselves, we know this is not true.

It is no longer a matter of defending a particular freedom or another, but rather, “a question of deciding whether individual freedom is compatible in principle with the present system centered on and almost completely identified with legislation.”

Perhaps the larger issue is the retreat of Americans from communities in real life, to those on social media, which has led to an increased sense of isolation, and in turn a further degradation of human connection. In relying on legislators to get things done, we are delegating any responsibility to take accountability for ourselves, our interpersonal relations, and our communities. We are no longer an active and engaged democracy. Instead of focusing on what is going on in our state houses, we are preoccupied with the superficial gold calves of the day, in whatever form they may manifest themselves.

On every occasion a law is penned, every additional piece of regulatory tape added to the infinitely growing Leviathan, we move further down the spectrum away from freedom and towards rhetorical, if not literal, slavery. The government currently employs some 20% of the American work force, and Democratic candidates seem unapologetic about increasing this offering.

“[R]adical views are sometimes more fruitful than syncretistic theories that serve to conceal the problems more than they solve them.”


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On the prejudices of philosophers: Kant

“The honeymoon of German philosophy had arrived; all the younger theologians of the Tübingen seminary [ref. to Hegel, Hölderlin, and Schelling] ran off into the bushes — they were looking for “faculties.” [referring to his immediately preceding discussion of (1) judgments a priori; and (2) moral faculties].

[/] And what didn’t they find– in that innocent, abundant, still youthful age of the German spirit, when Romanticism, that malicious fairy, whispered, whistled, and sang, when people did not know how to tell the difference between “discovering” and “inventing”! Above all, a faculty of the “supersensible”: Schelling christened it intellectual intuition, and thus gratified the heart’s desire of his basically piety-craving Germans.

[/] We can do no greater injustice to this whole high-spirited and enthusiastic movement (which was just youthfulness, however boldly it might have clothed itself in gray and hoary concepts) than to take it seriously or especially treat it with moral indignation.

[/] Enough, we grew up, — the dream faded away. There came a time when people scratched their heads: some still scratch them today. There had been dreamers: first and foremost- the old Kant. “By virtue of a faculty: — he had said, or at least meant. But is that really– an answer? An explanation? Or instead just a repetition of the question? So how does opium cause sleep? “By virtue of a faculty,” namely the virtus dormitiva— replies the doctor in Molière,

                            quia est in eo virtus dormitiva

                            cujus est natura sensus assoupire.*


*”Because there is a dormative virtue in it/ whose nature is to put the senses to sleep.” From Molière’s La Malade imaginaire (The Hypochondriac) (1673).

Translations and text from Beyond Good and Evil, Nietzsche, Cambridge, edited by Horstmann & Norman. Content of footnotes also inserted into text, where appropriate.


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Experimental Science

“Only the unashamed dogmatist would dare to assert that the issue has finally been resolved now in favor of the view that, outside of logic or mathematics, the method of modern science is the only method to employ in seeking knowledge. The dogmatist who made this assertion would have to be more than unashamed. He would have to be blind himself to the fact that his own assertion was not established by the experimental method, nor made as an indisputable conclusion of mathematical reasoning or of purely logical analysis.”

The Great Conversation

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What is Liberal Education Essay, Denouement

“Liberal education, which consists in the constant intercourse with the greatest minds, is a training in the highest form of modesty, not to say of humility. It is at the same time a training in boldness: it demands from us the complete break with the noise, the rush, the thoughtlessness, the cheapness of the Vanity Fair of the intellectuals as well as their enemies. It demands from us the boldness implied in the resolve to regard the accepted views as mere opinions, or to regard the average opinions as extreme opinions which are at least as likely to be wrong as the most strange or the least popular opinions. Liberal education is liberation from vulgarity. The Greeks had a beautiful word for “vulgarity”; they called it apeirokalia, lack of experience in things beautiful. Liberal education supplies us with experience in things beautiful.”


From Ten Essays by Leo Strauss

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