I seem to recall Justice Scalia saying sometime that if people really want the privacy rights recognized by the Supreme Court (but not Scalia), why not just amend the Constitution to establish those rights? It seemed like a fair question. I'm not convinced about its chances for passage, but the referendum would at least settle some matters now left to the vagaries of the Court. Plus, I would think that even people who opposed the amendment would prefer to clean up some of the doctrinal muddles and provide an explicit source for these rights. (Okay, some people would prefer some theoretical coherence even if they don't like the result.) Anyway, let's assume there was a serious debate afoot over a privacy amendment to the Constitution. What would it look like? I'm no expert, but I thought I would try my hand at drafting. How about this:

Section 1. The people shall have a right to privacy, which neither the United States nor any state may abridge without due process of law, and only when the abridgement is the least restrictive means available to further a compelling government interest.
Seection 2. The Congress shall have the power to enforce this article by appropriate legislation.

Okay, so that's probably not perfect. I purposefully avoided trying to codify particular rights. I'll leave that to the courts. But at least it does provide a starting point for those arguments. Future litigation would clear up whether the already-existing privacy rights are subsumed into this amendment, and/or whether it gives constitutional protection to any rights we don't have now.

So, let's assume you want the full panoply of privacy rights up to Lawrence -- does this amendment go far enough to ensure those rights? What if you wanted even more, like a right to assisted suicide? On the other hand, let's assume you wanted to codify the privacy right recognized in Meyer and Pierce, but not Griswold or any of its progeny -- how would you alter the text of the amendment? On a tangential note, would this amendment constitutionalize state law invasion of privacy tort claims, at least against state actor defendants? (Is that a problem?)

Finally, does anybody want to speculate on the chances of this amendment actually passing? That's the easy question.

I was getting a haircut recently, and may have committed malpractice.

As I was getting situated in the chair, the stylist asked me if I had just gotten off from work. I said, "A little while ago." It was after 7:30, and I was wearing shorts and a casual shirt, so I wondered she thought I did. Apparently seeking to allay her curiosity, she asked me, "What do you do?" I took a breath and mumbled, "I'm a lawyer." Her: "Oh really? What type of law?" That's kind of a difficult question for me to answer easily for non-lawyers, so I just said, "A little bit of everything."

Big mistake.

She stopped cutting and turned me around to face her. She then went into a long, involved story about a dispute she and her husband were having with a former landlord. I won't get into all the details here, but it concerned differing interpretations of the length of a lease, based on the parties' attaching different meanings to the fact that the landlord had prorated one month's rent. I hemmed and hawed, because whatever my "little bit of everything" entails, it certainly does not include landlord-tenant disputes. I basically said that it all depended on the language of the lease, but the couple didn't have a copy of it. I didn't want to say that not retaining a copy of the lease might have been a poor decision (or that based on her description, my gut sense is that the landlord was right) for three reasons.

First, I really don't know much about that area of the law. Perhaps I shouldn't have passed myself off as a quasi-generalist, but I don't think a reasonable listener would really think that "a little bit of everything" is literal enough to encompass every legal matter under the sun. Second, I really didn't want to get into the specifics of her case and give anything that could be mistaken for legal advice. She mentioned an ongoing lawsuit in another state concerning a contract dispute, and yet another landlord problem that had not yet led to litigation. I got the feeling that she wouldn't hesitate to complain about a lawyer's bad advice. Writing this, I'm kicking myself for not paying cash, and hoping she doesn't use my credit card paper trail to track me down. Finally, I wanted to end the delightful journey into property law as soon as possible because this woman was holding my hair hostage. I didn't want to dash out of there with half a haircut, so I mainly just "mm-hmmed" along until she went back to cutting my hair.

I thought about making a reference to the Clint Eastwood movie High Plains Drifter, along the lines of "At least it didn't go as badly as Clint's trip to the barber in High Plains Drifter," but I wasn't sure how many people would get it. In any event, I think I need a new answer to the question, "What do you do?"

I'd like to thank Sebastian for keeping the BTQ boat afloat during my latest dry spell. I think I'm getting my mojo back, though.

His post about homelessness got me thinking. I run into a lot of homeless people here in downtown Crackton. Commenter "John Smallberries" pointed out some of the semantic and definition problems: "To me, the 'homeless' tag implies someone has the desire and will to escape their current situation and once again have a home. But there are a lot of folks out there who are living on the street because that's what they want, or perhaps because they don't hope for more." JS would call this latter group "hobos" and lumps them in with panhandlers.

I would suggest some different distinctions. I would call anyone without a home "homeless," whether that's their permanent condition or if they want to change it. On the other side of the coin, some panhandlers are homeless and some aren't. There's one woman in particular whom I see often. She's always wearing something different (implying she has somewhere to leave her clothes), looks healthy, and makes money at every light cycle by walking up to stopped cars. She always asks for money "to get something on my stomach," but she doesn't look like's missed many meals, and keeps collecting long after she has enough money for food. That woman is a panhandler, but I don't think she's homeless. On the contrary, the guy who sleeps in the bushes behind the bank is homeless, even though he never asks for money.

I got a very useful look at homelessness in Malcolm Gladwell's fascinating New Yorker story from a few months ago about chronic homelessness. Studies have shown that homelessness obeys a power law distribution, also known as the "long tail." (For more on the long tail phenomenon, see Chris Anderson's blog. This image is from his site.)


In our case, the vertical axis would be "number of homeless," and the horizontal would be "days homeless." From Gladwell's article:

"We found that eighty per cent of the homeless were in and out really quickly," he [Culhane, a researcher] said. "In Philadelphia, the most common length of time that someone is homeless is one day. And the second most common length is two days. And they never come back. Anyone who ever has to stay in a shelter involuntarily knows that all you think about is how to make sure you never come back."

The next ten per cent were what Culhane calls episodic users. They would come for three weeks at a time, and return periodically, particularly in the winter. They were quite young, and they were often heavy drug users. It was the last ten per cent - the group at the farthest edge of the curve - that interested Culhane the most. They were the chronically homeless, who lived in the shelters, sometimes for years at a time. They were older. Many were mentally ill or physically disabled, and when we think about homelessness as a social problem - the people sleeping on the sidewalk, aggressively panhandling, lying drunk in doorways, huddled on subway grates and under bridges - it's this group that we have in mind.

The research further demonstrated that the chronic homeless were using a tremendous amount of public resources, in the form of police and health care intervention. Denver decided it would be cheaper to give some of its hardest cases small apartments than to keep spending money to arrest them or house them in the hospital every week or so.

I haven't looked into the political arena Sebastian points to. You'll probably learn more reading Gladwell's article than you would on some politician's website, anyway. But, like Seb, I can clearly recall a time when homelessness seemed to be overwhelming and intractable. Those were the days of Comic Relief (I hear they're getting back together for Katrina relief). Now, as Gladwell notes, we can really start to get a sense of the true scope of the chronic homeless problem. Given that the vast majority of homeless people aren't homeless for long, it's clear that the problem is solvable -- if only we decide to put the resources into solving it.

I'm not saying that throwing money or apartments at the problem is the best idea, or that we need a big government bureaucracy, or that church groups are the best way to go. And, we may of course, as a society, decide that our time and effort and money is better spend elsewhere. Maybe that's the reason politicians don't talk about homelessness as much anymore: it would require hard decisions, and we all know how much they want to avoid those.

It's not often that the morning show of the local sports talk radio station spawns deeper political thought, but that's what happened a few weeks back.

They were discussing the Showtime documentary Reversal of Fortune, where a homeless man is given $100,000. I don't think it's too much of a spoiler to tell you that the man did nothing but play video games and drink, and was broke and homeless again in 6 months. The host who provides the comedy relief on the radio show talked about an event they had done where he had the chance to talk to a few homeless guys. He asked them what they would need to get back on their feet, and if they would take a job if it was offered. Both homeless guys said no, they wouldn't take a job. All they wanted to do was drink. The host, who is liberal and grew up in liberal household, was understandably disillusioned. His parents and friends had drilled into him the often repeated mantra that homeless people were regular folks who had just fallen on really hard times, and that given some help, they could jump back up into society.

His disillusionment that many homeless people can't/won't be helped out of their situation got me to thinking that I haven't heard a big name politician mention homelessness as an issue in a long time. Lots of Democrats like John Edwards talk about poverty, but not homelessness in particular. A quick search of "homeless" on the Democratic Party's website returned exactly 5 results. Three were about Katrina, 1 was about immigration, and 1 was about a local mayoral race. Not a single thing about the party's stance on the issue, or plans to combat the problem. Have the Democrats given up on this issue? Is it an issue that has been removed from the national agenda to become the sole property of local government and charities? Or have they, like the radio host, become disillusioned that the majority of homeless can be helped?

I didn't bother searching on the RNC's website.