wordsworth

I did my first segment of MIT Calculus classes. Differentiation. Super fun time. The videos where not all that bad. It was just weird that one class would be split up so much. Each video was about 5-6 minutes. But they built on top of each other. Each video after the first contained all the previous information. It was weird. The videos created by the “teaching assisances” ( at least that’s what I think they were)  where a lot more helpful then the teachers video.  I don’t really know what to do with the homework. I just did any problems that where in the videos before the solutions where given. It took me longer then it should. Guess I’m a little rusty at math.

Derivatives seem pretty easy. It is nice to have a specific formula for problems. Number theory is really hard because there are no real formulas. It is all about proofs. Really hard to understand.

Anyway, the teacher went over two overarching questions. One: what is a derivative and Two: How to differentiate anything? Apparently derivatives are useful for all the subject having to do with measuring, especially economics it seems. The teacher tried to say that a tangent line could intersect another line at two points. This did not make any sense because, if I remembered correctly, a tangent line only barely grazed a line at one point. Then he started calling this first line a secant line. Which made more sense but still confusing. Was it a secant or a tangent? Other than that he was pretty good at the whole teaching thing.

The black boards at that time seemed really cool to, one behind the other.  Instead of having to earase all the time the teacher could just move them up and down.

The teacher for number theory uses a chalk board, which is weird. And the eraser really sucks sometimes because it does not erase all of the notes all of the time.

This morning I woke early with a couple new defenses for our due process claims.

The first relies on the reservation of "executive" authority in FWC by Art.IV,§9,Fla.Const. This argument would focus on the second portion of the "rational basis" test of legislation. The first part of the "rational basis" test requires the legislation be rationally related to its purpose – in our case, the Court claims incorrectly that the aviculture ordinances do relate to their purpose. The second part of the "rational basis" test requires that the legislature enacting the legislation have a reasonable belief that the legislation can achieve that purpose. The argument relying on this later part of the test is simple – without executive authority to enforce the legislation, the legislature (defendants) could not reasonably believe that the legislation could achieve its purpose.

The second defense of our due process claims particularizes the property right we claim Orange County is depriving. This should entirely change the due process analysis. This approach takes its lead from Perry v. Brown, 671 F.3d 1052 (9th Circ. 2012), in which the Ninth Circuit applied an unusual due process analysis to a right that was granted by the California legislature and then taken away by a popular (non-legislative)  amendment to the California Constitution. Perry is hardly a perfect fit for our purposes. Nevertheless, the Ninth Circuit’s decision in that case to shift its analysis from the amendment’s general purpose to a specific effect, helps me to imagine a similar shift of the analytical focus in our case.

In our case the Court’s due process analysis focused on the real property right and not the personal property right. While we claim the defendants have infringed upon real property rights in our home granted to us generally by the State of Florida in Art.I,§2,Fla.Const., we more pointedly claim that the defendants have infringed upon personal property interests in our birds that are granted, not generally by the State of Florida as a basic right, but specifically to us by the State’s executive agent FWC. The Court failed entirely to apply a due process analysis to defendants’ deprivation of our personal property interests in our birds. Such an analysis would require this be asked: Is rejecting the restraint of Art. IV, §9, Fla. Const., rationally related to the County’s (legitimate) purpose?

John Harrison of the University of Virginia in his 1997 Virginia Law Review article Substantive Due Process and the Constitutional Text compares the text of the Due Process Clauses in the Fifth and Fourteenth Amendments to the decisions of the U.S. Supreme Court and several State supreme courts. His conclusion is that the text of the Due Process Clauses does not explain any of these decisions or the courts’ evolving theory of substantive due process; substantive due process flows from a source other than the text of the Fourteenth Amendment.

To define what substantive due process is, Harrison defines in brief what it is not – it is not either of two types of procedural due process. The first type of procedural due process requires that judges and executive officers "follow the rule of law" – any deprivation of life, liberty, or property must be "in accordance with established law." Procedural due process, per Harrison, also requires the "rule of law" be fair.  Harrison concedes this second type of procedural due process – fairness – is an attack on the substance or content of legislated procedure but distinguishes this (without immediate explanation) from substantive due process which attacks the substance or content of other types of legislation.

… I must end this post without completing it.

Ultimately, I disagree with Harrison’s premise that the Fourteenth Amendment is superfluous. Harrison concludes that the large body of constitutional common law the Supreme Court claims is grounded in the Fourteenth Amendment’s due process and equal protection clauses is better understood by reference to other fundamental elements of the Constitution.

I believe the Fourteenth Amendment’s use of the word "person" does something that the other fundamental elements of the Constitution do not – I believe the use of the word "person" removes from dispute that the restraints elsewhere in the Constitution – clearly applicable to conflicts between the States and the Union, and between the branches of the federal government – are also applicable to conflicts between a person and her government.

I sent Harrison an email (2/19/14) asking if the word "person" – a word he never included in his textual analysis – changed his conclusion. I haven’t heard from him (2/25).