That Justice Antonin Scalia does not believe that the Equal Protection Clause of the 14th amendment does not prohibit discrimination on the basis of gender should not come as a surprise to anyone. Via Huffington Post, in an interview with California Lawyer magazine, Justice Scalia confirms what most of us who thought about the question, already knew:

[Q:]In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don't think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we've gone off in error by applying the 14th Amendment to both?

[SCALIA:] Yes, yes. Sorry, to tell you that. ... Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't.

This has been a central point to the discussion of originalism, original understanding and original purpose constitutional interpretation which I have written about a lot here. But this specific question on gender discrimination and Scalia's view was the subject of a Daily Kos post I wrote in 2006:

Stanley Fish writes about the latest bout of handwringing from the usual suspects about the "anonymous" Internet. The centerpiece of his discussion is a new collection of essays edited by University of Chicago law professor Martha Nussbaum titled The Offensive Internet: Speech, Privacy and Reputation.

According to Fish (I have not and will not buy the book at $23), Nussbaum asks "“what can be done about irresponsible information” spread by the Internet, a medium that allows slander to “be done with a few keystrokes, with complete anonymity, and . . . with no fear that the Internet provider on whose website the slur is found will somehow be held responsible for incorrect . . . or defamatory statements”? " Before Nussbaum and her cohorts answer that question, perhaps they can deal with the problem of irresponsible information spread through respectable outlets by named persons that recklessly lead us to wars, irresponsible tax policy and nonsensical public discourse, like this volume and Fish's column. More . . .

ABC's The Bachelor returns tonight, with Brad Womack getting his second chance at love. He was The Bachelor in 2007, and when it came time to choose between his final two, Deanna and Jenni, he stunned viewers by picking neither. Both Deanna and Jenni will be on tonight's show for a few minutes to confront Brad yet one more time. Both look beautiful -- Jenni is married and Deanna is engaged -- to the twin brother of one of the contestants on Jillian's Bachelorette season.

The theme of the season is redemption --Brad's second chance. He does end up with one of the women this season. I won't say who here, but if you want the lowdown, you can go over to PopLeft to see who he picks. How do we know? Reality Steve, of course. He breaks down the season date by date with who goes home here.

So why watch if we know the outcome? For the journey and the spectacular locations and hotels, which this season will include Costa Rica, St. Martins/Anguilla and South Africa. And because it's fun.

For those of you not interested in The Bachelor, which I expect is all but three or four of you, here's an open thread, all topics welcome.

Via Pro Publica: President Obama plans to include a signing statement in the funding bill passed by Congress pertaining to the restrictions on transfers of Guantanamo detainees.

The spending measure effectively bars the president from prosecuting any detainees in federal court or conducting military commission trials on U.S. soil. The bill makes it increasingly difficult to transfer detainees to foreign countries, even if the administration deems them safe to release. And it complicates the review process Obama plans in the executive order for nearly 50 detainees the administration has designated as too dangerous to free.

It's not clear whether his statement will express opposition to all of the provisions, or just some of them. Nor is it clear whether he will merely state his objection to the provisions or assert at least some unconstitutionally infringe on prosecutorial discretion, an executive power. [More...]

Via the Innocence Project: Cornelius Dupree served 30 years in prison for a rape and robbery new DNA tests show he did not commit. A judge is expected to exonerate him tomorrow. He was paroled in July.

His co-defendant, Anthony Massingill, is also expected to be cleared at a later hearing tomorrow. The primary cause of the wrongful conviction: Faulty eyewitness identification. Misidentifications account for 75% of wrongful convictions. Innocence co-director Barry Scheck says:

Cornelius Dupree spent the prime of his life behind bars because of mistaken identification that probably would have been avoided if the best practices now used in Dallas had been employed.... most counties in Texas do not have these best practices in place.

This must be remedied in the next legislative session by the adoption of an eyewitness identification reform bill that had the votes needed for passage last session but not enough time to get enacted. Let us never forget that, as in the heartbreaking case of Cornelius Dupree, a staggering 75% of wrongful convictions of people later cleared by DNA evidence resulted from misidentifications.”

Republicans in the House show they know how to waste time. At their insistence, next week the House will vote on whether to repeal the new health care law. Republican's complaint with the bill:

Further, Obamacare failed to lower costs as the president promised that it would and does not allow people to keep the care they currently have if they like it. That is why the House will repeal it next week.”

Since it's unlikely to pass a Democrat-controlled Senate, and Obama would surely veto it if it did manage to pass, this is pure posturing and a waste of resources.

One of those days.

For those keeping score, I'm having a good college bowl season, with my major plays (Boise, Alabama, Miss St., Notre Dame, and Wisconsin (+3)) coming through. I am +20 units so far. Tonight, I have Stanford (-3.5) over Va. Tech (4 units).

Open Thread.

La Familia cartel in Mexico is tired of being blamed for the massive violence in Mexico. It says it's not to blame. So it's making Mexico an offer. It's calling a truce on all criminal activity for the month of January.

In the one-page message, distributed by e-mail and in some cities door by door, the gang claims it will halt all crime activity during January to demonstrate that the cartel "is not responsible for the criminal acts federal authorities are reporting to the media."

Three weeks ago, Mexico said La Familia had been totally dismemebered and turned from drugs to robberies to make money. For Christmas, La Familia sent out a message saying Federal Police and the Zetas were behind the violence.

“La Familia Michoacana disavows it self of all criminal acts that occurred in the state of Michoacán, they are acts done and fabricated by the Federal Police. They seem to be only dedicated to making false claims and then killing those they implicate in crimes.”

Update: Gov. Arnie also commuted the sentence of a woman serving life for killing her former pimp to 25 years with parole, and 7 pardons, 1 conditional pardon and one additional commutation. The full list is here.

Today is California Governor Arnold Schwarzenegger's final day in office. On this final day, he granted a commutation of sentence to the son of the son of former Assembly Speaker Fabian Nuñez, who had pleaded guilty to participating in the stabbling death of a college student. He was not the stabber, and had no priors, but received a maximum 16 year sentence. Schwarzenegger said the sentence was excessive and reduced it to 7 years. [More...]

What's on your mind? Here's an open thread, all topics welcome.

The New York Times takes a well-deserved shot at Republican Peter King. So does Marcy (Empty Wheel.) The Albany Project reports redistricting could jeopardize his seat in 2012. Let's hope so.

King is about to become Chair of the House Homeland Security Committee. He's on an anti-immigrant kick, promising legislation to arrest more undocumented residents. [More...]

Colorado Representative Jared Polis says the feds should stay away from marijuana enforcement in states that allow its use.

He's going to introduce a bill to keep marijuana laws at the local level.

Under Polis' structure, marijuana laws would be extremely local — similar to states that have so-called dry, alcohol- free counties. "It's not in the federal government's realm," Polis said.

[More...]