The Reality-Based Community

Yesterday, a British journalist asked me how the supporting technology was at Washington Post since Jeff Bezos bought it. I replied “Quite good” and his expression told me I had been misunderstood. So I said “I meant American quite good not British quite good”.

This reminded me of a common problem of the heterosexual couples I counselled back in the day. The wildly popular 1970 film Love Story taught Americans that “Love means never having to say you are sorry.” No wonder the divorce rate was so high in what Garry Trudeau called a kidney stone of a decade. Of course you sometimes have to say you are sorry to keep an intimate relationship going. But what do you mean when you say it?

For most of the men I saw in counseling, saying sorry meant that you had done something wrong and were apologizing. For most of the women, sorry more often meant “I feel you”. A common resulting scenario for misunderstanding would be that the husband would complain about, say, his awful boss and his wife would say “I’m sorry about that”, leading the man to reject this expression of sympathy with “Why? It’s not your fault.” Even more painfully, when the wife would describe her own troubles she might feel hurt that her husband didn’t express any sorrow. Meanwhile, he would be thinking “I feel bad for it, but it’s not my fault, so I’m not going to say I’m sorry”.

A way past this that seemed to help was to teach the couples the difference and help them become comfortable in emotional exchanges to refer to “woman sorry” and “man sorry”, e.g., “I’m not saying it’s your fault, I’m asking you to be woman sorry for me” and “I’m man sorry that I didn’t understand until this moment what you needed from me”.

In his dissent in New State Ice Co. v. Liebmann, 285 U.S. 262 (1932), Justice Brandeis wrote:

[T]he advances in the exact sciences and the achievements in invention remind us that the seemingly impossible sometimes happens. There are many men now living who were in the habit of using the age-old expression: ‘It is as impossible as flying.’ The discoveries in physical science, the triumphs in invention, attest the value of the process of trial and error. In large measure, these advances have been due to experimentation. In those fields experimentation has, for two centuries, been not only free but encouraged. Some people assert that our present plight is due, in part, to the limitations set by courts upon experimentation in the fields of social and economic science; and to the discouragement to which proposals for betterment there have been subjected otherwise. There must be power in the states and the nation to remould, through experimentation, our economic practices and institutions to meet changing social and economic needs. I cannot believe that the framers of the Fourteenth Amendment, or the states which ratified it, intended to deprive us of the power to correct the evils of technological unemployment and excess productive capacity which have attended progress in the useful arts.

To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the nation. It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.

Id., 285 U.S. at 310-311.

The states either supported by their courts or, in some cases, lead by their courts, have been doing a good deal of experimentation.

For instance, in League of Women Voters v. Pennsylvania, __ Pa. __ (February 18, 2018), the Pennsylvania Supreme Court held that a Republican attempt to gerrymander congressional districts violated the Pennsylvania state constitution. The U.S. Supreme Court refused to block the Pennsylvania ruling. Thus, the Pennsylvania ruling is impervious to the sort of attack I recognized as a possibility with respect to the various federal cases holding gerrymandering unconstitutional under the federal constitution.

Earlier, I posted a report on a Kansas decision based on that state’s constitution, upholding, at least temporarily, a woman’s right to an abortion.

Finally, this week, the Maryland Court of Special Appeals, Maryland’s intermediate appellate court, in Montgomery County v. Complete Lawn Care, Inc., fended off an attack on a county ordinance restricting the use of certain pesticides for cosmetic purposes in the county. The attack was based upon a claim that the county enactment was preempted by state law. (Among the plaintiffs seeking to block the law was the misleadingly named “Responsible Industry for a Sound Environment, a Committee of Croplife America,” a pesticide trade organization.)

I suppose that it could be argued that the current round of cases differs from the situation presented in New State Ice Co. There, the courts were blocking progressive legislative actions. In the Pennsylvania and Kansas cases above, the courts were acting as bulwarks against legislative attacks on progressive positions. Of course, this gives a somewhat different take on the concept of states’ rights.