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2 with their ordinary public meaning at the time of their enactment resolves these cases. Pp. 4–12.

(b) Three leading precedents confirm what the statute’s plain terms suggest. In Phillips v. Martin Marietta Corp., 400 U. S. 542, a company was held to have violated Title VII by refusing to hire women with young children, despite the fact that the discrimination also depended on being a parent of young children and the fact that the company favored hiring women over men. In Los Angeles Dept. of Water and Power v. Manhart, 435 U. S. 702, an employer’s policy of requiring women to make larger pension fund contributions than men because women tend to live longer was held to violate Title VII, notwithstanding the policy’s evenhandedness between men and women as groups.


text: The Battle of the Books; with selections from the literature of the Phalaris controversy/Appendix 4

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


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 which, during the course of several centuries, the turbulence of the Roman clergy was continually occasioning in every part of Europe, sufficiently demonstrate how precarious and insecure must always be the situation of the sovereign who has no proper means of influencing the clergy of the established and governing religion of his country.

Articles of faith, as well as all other spiritual matters, it is evident enough, are not within the proper department of a temporal sovereign, who, though he may be very well qualified for protecting, is seldom supposed to be so for instructing the people. With regard to such matters, therefore, his authority can seldom be sufficient to counterbalance the united authority of the clergy of the established church. The public tranquillity, however, and his own security, may frequently depend upon the doctrines which they may think proper to propagate concerning such matters. As he can seldom directly oppose their decision, therefore, with proper weight and authority, it is necessary that he should be able to influence it; and he can influence it only by the fears and expectations which he may excite in the greater part of the individuals of the order. Those fears and expectations may consist in the fear of deprivation or other punishment, and in the expectation of further preferment.

In all Christian churches the benefices of the clergy are a sort of freeholds which they enjoy, not during pleasure, but during life or good behavior. If they held them by a more precarious tenure, and were liable to be turned out upon every slight disobligation either of the sovereign or of his ministers, it would perhaps be impossible for them to maintain their authority with the people, who would then consider them as mercenary dependants upon the


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 court, in the sincerity of whose instructions they could no longer have any confidence. But should the sovereign attempt irregularly, and by violence, to deprive any number of clergymen of their freeholds, on account, perhaps, of their having propagated, with more than ordinary zeal, some factious or seditious doctrine, he would only render, by such persecution, both them and their doctrine ten times more popular, and therefore ten times more troublesome and dangerous, than they had been before. Fear is in almost all cases a wretched instrument of government, and ought in particular never to be employed against any order of men who have the smallest pretensions to independence. To attempt to terrify them serves only to irritate their bad humor, and to confirm them in an opposition which more gentle usage perhaps might easily induce them, either to soften or to lay aside altogether. The violence which the French Government usually employed in order to oblige all their Parliaments, or sovereign courts of justice, to enregister any unpopular edict, very seldom succeeded. The means commonly employed, however, the imprisonment of all the refractory members, one would think were forcible enough. The princes of the House of Stuart sometimes employed the like means in order to influence some of the members of the Parliament of England; and they generally found them equally intractable. The Parliament of England is now managed in another manner; and a very small experiment, which the Duke of Choiseul made about twelve years ago upon the Parliament of Paris, demonstrated sufficiently that all the Parliaments of France might have been managed still more easily in the same manner. That experiment was not pursued. For though management and persuasion are always the easiest and safest in-


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 struments of government, as force and violence are the worst and the most dangerous, yet such, it seems, is the natural insolence of man that he almost always disdains to use the good instrument, except when he cannot or dare not use the bad one. The French Government could and durst use force, and therefore disdained to use management and persuasion. But there is no order of men, it appears, I believe, from the experience of all ages, upon whom it is so dangerous, or rather so perfectly ruinous, to employ force and violence, as upon the respected clergy of an established church. The rights, the privileges, the personal liberty of every individual ecclesiastic, who is upon good terms with his own order, are, even in the most despotic governments, more respected than those of any other person of nearly equal rank and fortune. It is so in every gradation of despotism, from that of the gentle and mild government of Paris, to that of the violent and furious government of Constantinople. But though this order of men can scarce ever be forced, they may be managed as easily as any other; and the security of the sovereign, as well as the public tranquillity, seems to depend very much upon the means which he has of managing them; and those means seem to consist altogether in the preferment which he has to bestow upon them.

In the ancient constitution of the Christian Church, the bishop of each diocese was elected by the joint votes of the clergy and of the people of the episcopal city. The people did not long retain their right of election; and while they did retain it, they almost always acted under the influence of the clergy, who in such spiritual matters appeared to be their natural guides. The clergy, however, soon grew weary of the trouble of managing them, and


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 found it easier to elect their own bishops themselves. The abbot, in the same manner, was elected by the monks of the monastery, at least in the greater part of abbacies. All the inferior ecclesiastical benefices comprehended within the diocese were collated by the bishop, who bestowed them upon such ecclesiastics as he thought proper. All church preferments were in this manner in the disposal of the church. The sovereign, though he might have some indirect influence in those elections, and though it was sometimes usual to ask both his consent to elect, and his approbation of the election, yet had no direct or sufficient means of managing the clergy. The ambition of every clergyman naturally led him to pay court, not so much to his sovereign, as to his own order, from which only he could expect preferment.

Through the greater part of Europe the Pope gradually drew to himself first the collation of almost ail bishoprics and abbacies, or of what were called Consistorial benefices, and afterward, by various machinations and pretences, of the greater part of inferior benefices comprehended within each diocese; little more being left to the bishop than what was barely necessary to give him a decent authority with his own clergy. By this arrangement the condition of the sovereign was still worse than it had been before. The clergy of all the different countries of Europe were thus formed into a sort of spiritual army, dispersed in different quarters, indeed, but of which all the movements and operations could now be directed by one head, and conducted upon one uniform plan. The clergy of each particular country might be considered as a particular detachment of that army, of which the operations could easily be supported and seconded by all the other detachments


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128 STAT. 3154 In accepting those services, the Secretary shall not permit the use of volunteers in hazardous duty or law enforcement work or in policymaking processes, or to displace any employee. The services of individuals whom the Secretary determines are skilled in performing hazardous activities may be accepted.

(b) —The Secretary may provide for incidental expenses of volunteers, such as transportation, uniforms, lodging, and subsistence.

(c) —
 * (1) —Except as otherwise provided in this section, a volunteer shall not be deemed a Federal employee and shall not be subject to the provisions of law relating to Federal employment, including those relating to hours of work, rates of compensation, leave, unemployment compensation, and Federal employee benefits.
 * (2) —For the purpose of sections 1346(b) and 2401(b) and chapter 171 of title 28, a volunteer under this chapter shall be deemed a Federal employee.
 * (3) —For the purposes of subchapter I of chapter 81 of title 5, volunteers under this chapter shall be deemed civil employees of the United States within the meaning of the term “employee” as defined in section 8101 of title 5, and subchapter I of chapter 81 of title 5 shall apply.
 * (4) —For the purpose of claims relating to damage to, or loss of, personal property of a volunteer incident to volunteer service, a volunteer under this chapter shall be deemed a Federal employee, and section 3721 of title 31 shall apply.

(d) —There is authorized to be appropriated to carry out this section not more than $3,500,000 for each fiscal year.

§ 102302. National Capital region arts and cultural affairs

(a) —There is under the direction of the Service a program to support and enhance artistic and cultural activities in the National Capital region.

(b) —
 * (1) —Eligibility for grants shall be limited to organizations—
 * (A) that are of demonstrated national significance; and
 * (B) that meet at least 2 of the criteria stated in paragraph (2).
 * (2) —The criteria referred to in paragraph (1) are the following:
 * (A) The organization has an annual operating budget in excess of $1,000,000.
 * (B) The organization has an annual audience or visitation of at least 200,000 people.
 * (C) The organization has a paid staff of at least 100 individuals.
 * (D) The organization is eligible under (f) of this title.
 * (3) —Public or private colleges and universities are not eligible for grants under the program under this section.


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 quartered in the different countries roundabout. Each detachment was not only independent of the sovereign of the country in which it was quartered, and by which it was maintained, but dependent upon a foreign sovereign, who could at any time turn its arms against the sovereign of that particular country, and support them by the arms of all the other detachments.

Those arms were the most formidable that can well be imagined. In the ancient state of Europe, before the establishment of arts and manufactures, the wealth of the clergy gave them the same sort of influence over the common people which that of the great barons gave them over their respective vassals, tenants and retainers. In the great landed estates, which the mistaken piety both of princes and private persons bad bestowed upon the church, jurisdictions were established of the same kind with those of the great barons; and for the same reason. In those great landed estates, the clergy, or their bailiffs, could easily keep the peace without the support or assistance either of the king or of any other person; and neither the king nor any other person could keep the peace there without the support and assistance of the clergy. The jurisdictions of the clergy, therefore, in their particular baronies or manors, were equally independent, and equally exclusive of the authority of the king's courts, as those of the great temporal lords. The tenants of the clergy were, like those of the great barons, almost all tenants at will, entirely dependent upon their immediate lords, and therefore liable to be called out at pleasure, in order to fight in any quarrel in which the clergy might think proper to engage them. Over and above the rents of those estates, the clergy possessed, in the tithes, a very large portion of the rents of


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I am commencing an undertaking, hitherto without precedent, and which will never find an imitator. I desire to set before my fellows the likeness of a man in all the truth of nature, and that man myself.

Myself alone! I know the feelings of my heart, and I know men. I am not made like any of those I have seen; I venture to believe that I am not made like any of those who are in existence. If I am not better, at least I am different. Whether Nature has acted rightly or wrongly in destroying the mould in which she cast me, can only be decided after I have been read.

Let the trumpet of the Day of Judgment sound when it will, I will present myself before the Sovereign Judge with this book in my hand. I will say boldly: "This is what I have done, what I have thought, what I was. I have told the good and the bad with equal frankness. I have neither omitted anything bad, nor interpolated anything good. If I have occasionally made use of some immaterial embellishments, this has only been in order to fill a gap caused by lack of memory. I may have assumed the truth of that which I knew might have been true, never of that which I knew to be false. I have shown myself as I was: mean and contemptible, good, high-minded and sublime, according as I was one or the other. I have unveiled my inmost self, even Rh


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 all the other estates in every kingdom of Europe. The revenues arising from both those species of rents were, the greater part of them, paid in kind, in corn, wine, cattle, poultry, etc. The quantity exceeded greatly what the clergy could themselves consume; and there were neither arts nor manufactures for the produce of which they could exchange the surplus. The clergy could derive advantage from this immense surplus in no other way than by employing it, as the great barons employed the like surplus of their revenues, in the most profuse hospitality, and in the most extensive charity. Both the hospitality and the charity of the ancient clergy, accordingly, are said to have been very great. They not only maintained almost the whole poor of every kingdom, but many knights and gentlemen had frequently no other means of subsistence than by travelling about from monastery to monastery, under pretence of devotion, but in reality to enjoy the hospitality of the clergy. The retainers of some particular prelates were often as numerous as those of the greatest lay lords; and the retainers of all the clergy taken together were, perhaps, more numerous than those of all the lay lords. There was always much more union among the clergy than among the lay lords. The former were under a regular discipline and subordination to the papal authority. The latter were under no regular discipline or subordination, but almost always equally jealous of one another, and of the king. Though the tenants and retainers of the clergy, therefore, had both together been less numerous than those of the great lay lords, and their tenants were probably much less numerous, yet their union would have rendered them more formidable. The hospitality and charity of the clergy,


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 too, not only gave them the command of a great temporal force, but increased very much the weight of their spiritual weapons. Those virtues procured them the highest respect and veneration among all the inferior ranks of people, of whom many were constantly, and almost all occasionally, fed by them. Everything belonging or related to so popular an order, its possessions, its privileges, its doctrines, necessarily appeared sacred in the eyes of the common people, and every violation of them, whether real or pretended, the highest act of sacrilegious wickedness and profaneness. In this state of things, if the sovereign frequently found it difficult to resist the confederacy of a few of the great nobility, we cannot wonder that he should find it still more so to resist the united force of the clergy of his own dominions, supported by that of the clergy of all the neighboring dominions. In such circumstances the wonder is, not that he was sometimes obliged to yield, but that he ever was able to resist.

The privileges of the clergy in those ancient times (which to us who live in the present times appear the most absurd), their total exemption from the secular jurisdiction, for example, or what in England was called the benefit of clergy, were the natural or rather the necessary consequences of this state of things. How dangerous must it have been for the sovereign to attempt to punish a clergyman for any crime whatever, if his own order were disposed to protect him, and to represent either the proof as insufficient for convicting so holy a man, or the punishment as too severe to be inflicted upon one whose person had been rendered sacred by religion! The sovereign could, in such circumstances, do no better than leave him to be tried by the ecclesiastical courts, who, for the honor of their own


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Rh And in Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75, a male plaintiff alleged a triable Title VII claim for sexual harassment by co-workers who were members of the same sex.

(1) The employers assert that it should make a difference that plaintiffs would likely respond in conversation that they were fired for being gay or transgender and not because of sex. But conversational conventions do not control Title VII’s legal analysis, which asks simply whether sex is a but-for cause. Nor is it a defense to insist that intentional discrimination based on homosexuality or transgender status is not intentional discrimination based on sex. An employer who discriminates against homosexual or transgender employees necessarily and intentionally applies sex-based rules. Nor does it make a difference


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Rh (c) —Grants awarded under this section may be used to support general operations and maintenance, security, or special projects. No organization may receive a grant in excess of $500,000 in a single year.

(d) —The Director shall—
 * (1) establish an application process;
 * (2) appoint a review panel of 5 qualified individuals, at least a majority of whom reside in the National Capital region; and
 * (3) develop other program guidelines and definitions as required.

(e) —The contractual amounts required for the support of Ford’s Theater and Wolf Trap National Park for the Performing Arts shall be available within the amount provided in this section without regard to any other provision of this section.

§ 102303. National Park System Advisory Board

(a) —In this section, the term “Board” means the National Park System Advisory Board established under subsection (b).

(b) —There is established a National Park System Advisory Board, whose purpose is to advise the Director on matters relating to the Service, the System, and programs administered by the Service. The Board shall advise the Director on matters submitted to the Board by the Director as well as any other issues identified by the Board.

(c) —
 * (1) —Members of the Board shall be appointed on a staggered term basis by the Secretary for a term not to exceed 4 years and shall serve at the pleasure of the Secretary.
 * (2) —The Board shall be composed of no more than 12 persons, appointed from among citizens of the United States having a demonstrated commitment to the mission of the Service. Board members shall be selected to represent various geographic regions, including each of the administrative regions of the Service. At least 6 of the members shall have outstanding expertise in one or more of the following fields: history, archeology, anthropology, historical or landscape architecture, biology, ecology, geology, marine science, or social science. At least 4 of the members shall have outstanding expertise and prior experience in the management of national or State parks or protected areas, or natural or cultural resources management. The remaining members shall have outstanding expertise in one or more of the areas described above or in another professional or scientific discipline, such as financial management, recreation use management, land use planning, or business management, important to the mission of the Service. At least one individual shall be a locally elected official from an area adjacent to a park.
 * (3) —The Board shall hold its 1st meeting no later than 60 days after the date on which all members of the Board who are to be appointed have been appointed.
 * (4) —Any vacancy in the Board shall not affect its powers, but shall be filled in the same manner in which the original appointment was made.


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128 STAT. 3156 :(5) —All members of the Board shall be reimbursed for travel and per diem in lieu of subsistence expenses during the performance of duties of the Board while away from home or their regular place of business, in accordance with subchapter I of chapter 57 of title 5. With the exception of travel and per diem, a member of the Board who otherwise is an officer or employee of the United States Government shall serve on the Board without additional compensation.

(d) —
 * (1) —The Board may adopt such rules as may be necessary to establish its procedures and to govern the manner of its operations, organization, and personnel.
 * (2) —The Board shall advise the Secretary on matters relating to the System, to other related areas, and to the administration of of this title, including matters submitted to it for consideration by the Secretary, but it shall not be required to provide recommendations as to the suitability or desirability of surplus real and related personal property for use as a historic monument. The Board shall also provide recommendations on the designation of national historic landmarks and national natural landmarks. The Board is strongly encouraged to consult with the major scholarly and professional organizations in the appropriate disciplines in making the recommendations.
 * (3) —On request of the Director, the Board is authorized to—
 * (A) hold such hearings and sit and act at such times;
 * (B) take such testimony;
 * (C) have such printing and binding done;
 * (D) enter into such contracts and other arrangements;
 * (E) make such expenditures; and
 * (F) take such other actions
 * as the Board may consider advisable.
 * (4) —Any member of the Board may administer oaths or affirmations to witnesses appearing before the Board.
 * (5) —The Board may establish committees or subcommittees. The subcommittees or committees shall be chaired by a voting member of the Board.
 * (6) —The Board may use the United States mails in the same manner and under the same conditions as other departments and agencies in the United States.

(e) —The Secretary may hire 2 full-time staffers to meet the needs of the Board.

(f) —Service as a member of the Board shall not be deemed service or employment bringing the individual within the provisions of any Federal law relating to conflicts of interest or otherwise imposing restrictions, requirements, or penalties relating to the employment of individuals, the performance of services, or the payment or receipt of compensation in connection with claims, proceedings, or matters involving the United States. Service as a member or an employee of the Board shall not be deemed service in an appointive or elective position in the Federal Government for purposes of section 8344 of title 5 or comparable provisions of Federal law.

(g) —


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Rh :(1) —The Board may secure directly from any office, department, agency, establishment, or instrumentality of the Federal Government such information as the Board may require for the purpose of this section, and each office, department, agency, establishment, or instrumentality shall furnish, to the extent permitted by law, the information, suggestions, estimates, and statistics directly to the Board, on request made by a member of the Board.
 * (2) —On request of the Board, the head of any Federal department, agency, or instrumentality may make any of the facilities and services of the department, agency, or instrumentality available to the Board, on a nonreimbursable basis, to assist the Board in carrying out its duties under this section.

(h) —The Federal Advisory Committee Act (5 U.S.C. App.), with the exception of section 14(b), applies to the Board.

(i) —The Board continues to exist until January 1, 2010.

§ 102304. National Park Service Advisory Council

(a) —In this section:
 * (1) —The term “Board” means the National Park System Advisory Board established under.
 * (2) —The term “Council” means the National Park Service Advisory Council established under subsection (b).

(b) —There is established a National Park Service Advisory Council that shall provide advice and counsel to the Board.

(c) —
 * (1) —Membership on the Council shall be limited to individuals whose term on the Board has expired. Those individuals may serve as long as they remain active except that not more than 12 members may serve on the Council at any one time.
 * (2) —Members of the Council shall receive no salary but may be paid expenses incidental to travel when engaged in discharging their duties as members.

(d) —Members of the Council shall not have a vote on the Board.

§ 102501. Purpose

The purpose of this chapter is to increase the public benefits from museums established within System units as a means of informing the public concerning the areas and preserving valuable objects and relics relating to the areas.

§ 102502. Definition of museum object

In this chapter:


text: Public Law 113-287/Chapter 1023

title: Public Law 113-287/Chapter 1023


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Giving an account of Robin Hood and his adventure with the Kings foresters. Also telling how his Band gathered around him; and of the merry adventure that gained him his good right-hand man, the famous Little John.

N merry England in the time of old, when good King Henry the Second ruled the land, there lived within the green glades of Sherwood Forest, near Nottingham Town, a famous outlaw whose name was Robin Hood. No archer ever lived that could speed a gray goose shaft with such skill and cunning as his, nor were there ever such yeomen as the sevenscore merry men that roamed with him through the greenwood shades. Right merrily they dwelt within the depths of Sherwood Forest, suffering neither care nor want, but passing the time in merry games of archery or bouts of cudgel play, living upon the King's venison, washed down with draughts of ale of October brewing.

Not only Robin himself but all the band were outlaws and dwelt apart from other men, yet they were beloved by the country people round about, for no one ever came to jolly Robin for help in time of need and went away again with an empty fist.

And now I will tell how it first came about that Robin Hood fell afoul of the law.


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national love of sport has made Highland shootings such an important element in the value of estates, that it is surprising moors are so generally neglected. Since grouse disease depreciates this class of property, we will define its cause or causes and remedies. We do not agree with those who hold that the malady is a mystery beyond solution; but, on the contrary, that moors are in many cases sacrificed by carelessness, indifference, and the unwise policy of destroying all birds and beasts of prey alike, and not burning the old heather periodically.

We are convinced that were landowners to apply the same careful attention to moors as they do to

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2 farms, very little would be heard of grouse disease. The marvel is that it is not more prevalent considering how many of the grouse ranges are mismanaged by allowing the growth of unwholesome food for the birds and upsetting the organization of nature, instead of being guided by her unerring laws. The penalty of such folly is, as a matter of course, grouse disease.

We took a great deal of trouble to get trustworthy information as to the prospects of the moors for 1882, and we published the result in the Press in July. Since then the tidings as to the crop of grouse have fully confirmed our predictions; and the gloomy forebodings of some discontented persons have been proved to have been greatly exaggerated. Spread over so large an area of the British Islands as the red grouse is, the reports naturally vary considerably. The accounts received by us, together with the consignments of birds to the South, and the Press reports, testify that on the high grounds sport has been fairly good, whilst on the low-lying moors grouse were not only plentiful but in excellent condition, with few exceptions,—all, in short, that the most cynical gunner could have desired. On some of the very high lands the birds were not altogether free from disease, which was more prevalent in Ayrshire, Perthshire, Invernessshire, and Caithness. On the English and Welsh moors sport has been much above the average, and

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Rh far better than in 1881. A few birds were found dead, which the sportsmen attributed to indigestion.

There is hardly any kind of rural sport of which the characteristics are so picturesque as those of grouse shooting. It is at the golden time of the year, when everything in nature is so beautiful, that we seek out the heath-frequenting broods; when the dear old straths and glens, the sweet heather air, and the birch and hazel, the ferns and ash saplings, the wild lakes and streams and foaming falls, the hills and mountains, are at their best. Truly "Caledonia stern and wild" is the El Dorado—the happy chosen land of the grouse shooter.

Even in the depth of winter shooting has its attractions. The world of nature is more open to us. Especially lovely are the lakes and meres when frost has bound the land in its iron chain, when the hills and vales are clad in snow, and the wild fowl peal

forth sweet music to the whistling winds as they

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 VOL. III.

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rapid ! thy waves are swollen by the snows of a thousand hills—but for whom are thy leaping waters fed?—Is it for the ?

Calmly, oh! placid, does thy blue stream glide through thy vine-clad vales—but calmer seems thy course when it touches the rushing !

How fragrant are the banks which are cooled by thy dark-green waters, thou tranquil !—but is not the perfume sweeter of the gardens of the ?

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Rh From Nature’s face, that simple flower
 * The lilies of sin and sadness swept;

And Magian pile and Paynim bower
 * In peace like that of Eden slept.

Each Moslem tomb, and cypress old,
 * Looked holy through the sunset air;

And, angel-like, the Muezzin told
 * From tower and mosque the hour of prayer.

With cheerful steps, the morrow’s dawn
 * From Shiraz saw the stranger part;

The Star-flower of the Virgin-Born
 * Still blooming in his hopeful heart!

always as the whirlwind’s rush
 * On Horeb’s mount of fear,

Not always as the burning bush
 * To Midian’s shepherd seer,


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418   Nor as the awful voice which came
 * To Israel’s prophet bards,

Nor as the tongues of cloven flame,
 * Nor gift of fearful words,—

Not always thus, with outward sign
 * Of fire or voice from Heaven,

The message of a truth divine,
 * The call of God is given!

Awaking in the human heart
 * Love for the true and right,—

Zeal for the Christian’s better part,
 * Strength for the Christian’s fight.

Nor unto manhood’s heart alone
 * The holy influence steals:

Warm with a rapture not its own,
 * The heart of woman feels!

As she who by Samaria’s wall
 * The Saviour’s errand sought,—

As those who with the fervent Paul
 * And meek Aquila wrought:

Or those meek ones whose martyrdom
 * Rome’s gathered grandeur saw:

Or those who in their Alpine home
 * Braved the Crusader’s war,

When the green Vaudois, trembling, heard,
 * Through all its vales of death,

The martyr’s song of triumph poured
 * From woman’s failing breath.

And gently, by a thousand things
 * Which o’er our spirits pass,

Like breezes o’er the harp’s fine strings,
 * Or vapors o’er a glass,

Leaving their token strange and new
 * Of music or of shade,

The summons to the right and true
 * And merciful is made.

Oh, then, if gleams of truth and light
 * Flash o’er thy waiting mind,

Unfolding to thy mental sight
 * The wants of human-kind;

If, brooding over human grief,
 * The earnest wish is known

To soothe and gladden with relief
 * An anguish not thine own;

Though heralded with naught of fear,
 * Or outward sign or show;

Though only to the inward ear
 * It whispers soft and low;

Though dropping, as the manna fell,
 * Unseen, yet from above,

Noiseless as dew-fall, heed it well,—
 * Thy Father’s call of love!

upon Judæa’s hills!
 * And on the waves of Galilee;

On Jordan’s stream, and on the rills
 * That feed the dead and sleeping sea!

Most freshly from the green wood springs The light breeze on its scented wings; And gayly quiver in the sun The cedar tops of Lebanon!

A few more hours,—a change hath come!
 * The sky is dark without a cloud!

The shouts of wrath and joy are dumb,
 * And proud knees unto earth are bowed.

A change is on the hill of Death, The helmed watchers pant for breath, And turn with wild and maniac eyes From the dark scene of sacrifice!

That Sacrifice!—the death of Him,—
 * The Christ of God, the holy One!

Well may the conscious Heaven grow dim,
 * And blacken the beholding Sun.

The wonted light hath fled away, Night settles on the middle day, And earthquake from his caverned bed Is waking with a thrill of dread!

The dead are waking underneath!
 * Their prison door is rent away!

And, ghastly with the seal of death
 * They wander in the eye of day!

The temple of the Cherubim, The House of God is cold and dim; A curse is on its trembling walls, Its mighty veil asunder falls!

Well may the cavern-depths of Earth
 * Be shaken, and her mountains nod;

Well may the sheeted dead come forth
 * To see the suffering son of God!

Well may the temple-shrine grow dim, And shadows veil the Cherubim, When He, the chosen one of Heaven,
 * A sacrifice for guilt is given!

And shall the sinful heart, alone,
 * Behold unmoved the fearful hour,


text: Page:Le Lutrin - An Heroick Poem (1682).djvu/43


text: The Complete Poetical Works of John Greenleaf Whittier/The Cities of the Plain


text: The Complete Poetical Works of John Greenleaf Whittier/The Call of the Christian


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text:
Page:The Educational Screen - Volume 1.djvu/15

Rh URING recent years, in the relatively new field of visual education there have appeared various enterprises and organizations whose. greatest visible asset at the start was a formidable array of eminent names. Such names undoubtedly—and very properly—command quick attention from the educational and educated public, which makes for an early start toward success for the organization or enterprise so inaugurated. These names, however, while they suggest value in the forthcoming results or productions, cannot create it. The proof of such value must always wait for the public's examination of the product itself; and the public's final judgment, whether favorable or unfavorable, will depend upon the results achieved, not upon the names behind the enterprise.

, Inc.—as the newest development in the new field—proposes to follow a new procedure. We shall offer the product first, and the names afterward. The product is this magazine—and nothing else. The names, when they appear a few numbers later, will show a personnel of about 30, comprising a Directorate and a Producing Staff.

The Directorate is composed of educators—from University professors to grade school principals—and of business executives and experts in the publishing field who have long been connected with established publications.—The members of the Producing Staff—many of whom have already worked character—are college graduates, with the single exception of the office-boy, and have all had substantial experience in formal teaching as well as in the special field of the new magazine.

Therefore, to the friends of American education, we offer this first number of to be judged solely on its merits, without the fictitious value that could be gained by the glamour of printed names.

There is a host of intelligent readers in this country who will recognize at once the new note struck in these pages—who will feel the sincerity that is behind our efforts—who will realize the immediate value and the future possibilities of such a publication. These are the readers whose approval we are after. When we get it, we shall be on the only sure road to winning the approval of everybody else.


text:
Page:United States Statutes at Large Volume 128.pdf/3182

128 STAT. 3158 :(1) —The term “museum object” means an object that—
 * (A) typically is movable; and
 * (B) is eligible to be, or is made part of, a museum, library, or archive collection through a formal procedure, such as accessioning.
 * (2) —The term “museum object” includes a prehistoric or historic artifact, work of art, book, document, photograph, or natural history specimen.

§ 102503. Authority of Secretary

(a) —Notwithstanding other provisions or limitations of law, the Secretary may perform the functions described in this section in the manner that the Secretary considers to be in the public interest.

(b) —The Secretary may accept donations and bequests of money or other personal property, and hold, use, expend, and administer the money or other personal property for purposes of this chapter.

(c) —The Secretary may purchase museum objects and other personal property at prices that the Secretary considers to be reasonable.

(d) —The Secretary may make exchanges by accepting museum objects and other personal property and by granting in exchange for the museum objects or other personal property museum property under the administrative jurisdiction of the Secretary that no longer is needed or that may be held in duplicate among the museum properties administered by the Secretary. Exchanges shall be consummated on a basis that the Secretary considers to be equitable and in the public interest.

(e) —The Secretary may accept the loan of museum objects and other personal property and pay transportation costs incidental to the museum objects or other personal property. Loans shall be accepted on terms and conditions that the Secretary considers necessary.

(f) —The Secretary may loan to responsible public or private organizations, institutions, or agencies, without cost to the United States, such museum objects and other personal property as the Secretary shall consider advisable. Loans shall be made on terms and conditions that the Secretary considers necessary to protect the public interest in those properties.

(g) —The Secretary may transfer museum objects that the Secretary determines are no longer needed for museum purposes to qualified Federal agencies, including the Smithsonian Institution, that have programs to preserve and interpret cultural or natural heritage, and accept the transfer of museum objects for the purposes of this chapter from any other Federal agency, without reimbursement. The head of any other Federal agency may transfer, without reimbursement, museum objects directly to the administrative jurisdiction of the Secretary for the purpose of this chapter.

(h) —The Secretary may convey museum objects that the Secretary determines are no longer needed for museum purposes, without monetary consideration but subject to such terms and conditions as the Secretary considers necessary, to private institutions exempt from Federal taxation under section 501(c)(3) of the Internal Revenue Code of 1986 (26


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Page:The Educational Screen - Volume 1.djvu/16

T is with. considerable satisfaction that we, who are constantly dealing with schools and communities, note a decided reaction on the part of school authorities and community leaders against the poorer class of non-theatrical films. Not so long ago, those in charge of schools and communities were prone to accept any sort of motion pictures that did not offend with vulgar situations or suggestive titles.

This state of things has changed, or at least is changing rapidly. Today, these same leaders are demanding that the non-theatrical film shall be the equal to the theatrical film in every way, but without the offensive elements sometimes found in theatrical productions. They are not content with certain films formerly effectively dubbed "non-theatrical," yet which most often were a cut-and-patch-product begot from films that in their first days of existence were wearily ground out by hand in the loft of the dime theatre. Indeed, it is most gratifying that individuals have learned to say about these films: "Requiescant in pace." Seemingly, many community leaders are learning to lave nothing to do with such material, however it may be padded here and cut there, and-prefer to leave the old theatrical films in some silent graveyard where they belong. What is more surprising, such leaders are doing this in spite of the efforts of certain individuals, who must have derived their publicity graces from kissing the Blarney stone, and are still endeavoring to sell or rent these old releases by dubbing them "non-theatrical films, suitable for community recreation."

Despite this wholesome wariness as to what is offered to them for community recreation, many school and community leaders could still go to their library and read the life of Barnum with considerable benefit. There still remain many educators who buy or rent motion pictures under the influence of the title of the release. They are under the sway of names and if the name be that of a classic, so much easier is the tendency to be taken in. There is nothing in the name of an English classic, for example, to prove that it is in good physical condition and that it has not scenes and dramatic situations at constant variance with the principles of art or with the literary subject matter. Nothing can quite take the pleasure out of a motion picture performance as can mis-frames and broken films. Again, if the picture be a colorless something, giving nothing but the empty husk of the classic whose name it bears, it cannot fail to offend an intelligent viewer.


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 met successfully. I hold that a people too spiritless to defend themselves against unjust imputations, are not worth defending, and are not worthy to defend anything else.

Without boasting in advance, but relying upon the goodness of my cause, I will say here I am ready to confront Chamberlain, Bishop Fitzgerald, Bishop Haygood and good Miss Frances Willard and all others, singly, or altogether, who bring this charge against the coloured people as a class.

But I want however, to be clearly understood at the outset. I do not pretend that Negroes are saints and angels. I do not deny that they are capable of committing the crime imputed to them, but utterly deny that they are any more addicted to the commission of that crime than is true of any other variety of the human family. In entering upon my argument, I may be allowed to say again what should be taken for granted at the start, that I am not a defender of any man guilty of this atrocious crime, but a defender of the coloured people as a class.

In answer, then, to the terrible indictment thus read, and speaking for the coloured people as a class, I venture in their name and in their stead, here and now, to plead "not guilty," and shall submit my case with confidence of acquittal by good men and women, North and South, before whom we are, as a class, now being tried. In daring to do this I know that the moral atmosphere about me is not favourable to my cause. The sentiment left by slavery is still with us, and the moral vision of the American people is still darkened by its presence.

It is the misfortune of the coloured people of this country that the sins of the few are visited more or less upon the many. In respect to the offenders, I am with General Grant and every other honest man. My motto is, "Let no guilty man escape." But while I say this, and mean to say it strongly, I am also here to say, let no guilty man be condemned and killed by the mob, or crushed under the weight of a charge of which he is not guilty.

I need not be told that the cause I have undertaken to


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 support is not to be maintained by any mere confident assertions or general denials, however strongly worded. If I had no better ground to stand upon than this, I would at once leave the field of controversy and give up the coloured man's cause to his accusers. I am also aware that I am here to do in some measure what the masters of logic say is impossible to be done. I know that I cannot prove a negative; there is one thing that I can and will do. I will call in question the affirmative. I can and will show that there are sound reasons for doubting and denying this horrible charge of rape as the special and peculiar crime of the coloured people of the South. I doubt it, and deny it with all my soul. My doubt and denial are based upon three fundamental grounds.

The first ground is, the and  character of the Negro on the very point upon which he is now so violently and persistently accused. I contend that his whole history in bondage and out of bondage contradicts and gives the lie to the allegation. My second ground for doubt and denial is based upon what I know of the character and antecedents of the men and women who bring this charge against him. My third ground is the palpable unfitness of the mob to testify and which is the main witness in the case.

I therefore affirm that a fierce and frenzied mob is not and ought not to be deemed a competent witness against any man accused of any crime whatever, and especially the crime now in question. The ease with which a mob ean be collected, the slight causes by which it can be set in motion, and the element of which it is composed, deprives its testimony of the qualities necessary to sound judgment and that which should inspire confidence and command belief. Blinded by its own fury, it is moved by impulses utterly unfavourable to a clear perception of facts and the ability to make an impartial statement of the simple truth. At the outset, I challenge the credibility of the mob, and as the mob is the main witness in the case against the Negro I appeal from the judgment of the mob to the judgment of men, in support of my challenge. I lay special emphasis on the fact that it is the mob and the mob only that the country has recognised and accepted as its accredited witness against the Negro. The mob is its law, its judge, jury and


text:
Page:Bostock v. Clayton County (2020).pdf/4

4 that an employer could refuse to hire a gay or transgender individual without learning that person’s sex. By intentionally setting out a rule that makes hiring turn on sex, the employer violates the law, whatever he might know or not know about individual applicants. The employers also stress that homosexuality and transgender status are distinct concepts from sex, and that if Congress wanted to address these matters in Title VII, it would have referenced them specifically. But when Congress chooses not to include any exceptions to a broad rule, this Court applies the broad rule. Finally, the employers suggest that because the policies at issue have the same adverse consequences for men and women, a stricter causation test should apply. That argument unavoidably comes down to a suggestion that sex must be the sole or primary cause of an adverse employment action under Title VII, a suggestion at odds with the statute. Pp. 16–23.

, delivered of the Court, in which, and , , , and , joined. , filed, in which , joined. , filed.


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Rh

17–1618

17–1623

18–107

, with whom joins, dissenting.

There is only one word for what the Court has done today: legislation. The document that the Court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive.


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Page:Studies in the art of rat-catching (IA studiesinartofra00barkrich).pdf/18

4 voice spoke at last, and my destiny was settled.

With the modest capital of five shillings given me by my father, and a mongrel terrier, given me by a poacher who had to go into retirement for killing a pheasant and half killing a keeper, I began my career as a—but I had better give you one of my professional cards. Here it is—

I had a struggle at first. Rats, full-grown ones, only fetched twopence each, and the system adopted by farmers of letting their


text:
Page:Bostock v. Clayton County (2020).pdf/39

2 Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on any of five specified grounds: “race, color, religion, sex, [and] national origin.” 42 U. S. C. §2000e–2(a)(1). Neither “sexual orientation” nor “gender identity” appears on that list. For the past 45 years, bills have been introduced in Congress to add “sexual orientation” to the list, and in recent years, bills have included “gender identity” as well. But to date, none has passed both Houses.

Last year, the House of Representatives passed a bill that would amend Title VII by defining sex discrimination to include both “sexual orientation” and “gender identity,” H. R. 5, 116th Cong., 1st Sess. (2019), but the bill has stalled in the Senate. An alternative bill, H. R. 5331, 116th Cong., 1st Sess. (2019), would add similar prohibitions but contains provisions to protect religious liberty. This bill remains before a House Subcommittee. Because no such amendment of Title VII has been enacted in accordance with the requirements in the Constitution (passage in both Houses and presentment to the President, Art. I, §7, cl. 2), Title VII’s prohibition of


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Rh rat-killing, for, say, three pounds a year for a farm of 400 acres, almost broke me; but I stuck to my profession, and do not regret having done so.

In those days, and during all my active life, I have had to work to live, owing to the constant scarcity of rats; but if I managed to make a living then, what might not be done now, when Nature has sent the rat to our homesteads by thousands, and farmers and others are being eaten off the face of the earth by them?

Why, my dear young friends, your fortune stares you in the face, and you have only to stretch out your hand and grasp it—no! I have made a mistake: you have a little more to do—you have, first, to learn your profession, which is no easy matter; and to enable you to do this, I intend writing the following book for the use of schools (which I herewith dedicate to the Head Masters of Eton,


text:
California v. Trombetta

When stopped in unrelated incidents on suspicion of drunken driving on California highways, each respondent submitted to a Intoxilyzer (breath-analysis) test and registered a blood-alcohol concentration high enough to be presumed to be intoxicated under California law. Although it was technically feasible to preserve samples of respondents' breath, the arresting officers, as was their ordinary practice, did not do so. Respondents were then all charged with driving while intoxicated. Prior to trial, the Municipal Court denied each respondent's motion to suppress the Intoxilyzer test results on the ground that the arresting officers had failed to preserve samples of respondents' breath that the respondents claim would have enabled them to impeach the incriminating test results. Ultimately, in consolidated proceedings, the California Court of Appeal ruled in respondents' favor, concluding that due process demanded that the arresting officers preserve the breath samples.

Held: The Due Process Clause of the Fourteenth Amendment does not require that law enforcement agencies preserve breath samples in order to introduce the results of breath-analysis tests at trial, and thus here the State's failure to preserve breath samples for respondents did not constitute a violation of the Federal Constitution. Pp. 485–491.

(a) To the extent that respondents' breath samples came into the California authorities' possession, it was for the limited purpose of providing raw data to the Intoxilyzer. The evidence to be presented at trial was not the breath itself but rather the Intoxilyzer results obtained from the breath samples. The authorities did not destroy the breath samples in a calculated effort to circumvent the due process requirement of Brady v. Maryland, 373 U.S. 83, and its progeny that the State disclose to criminal defendants material evidence in its possession, but in failing to preserve the samples the authorities acted in good faith and in accord with their normal practice. Pp. 485–488.

(b) More importantly, California's policy of not preserving breath samples is without constitutional defect. The constitutional duty of the States to preserve evidence is limited to evidence that might be expected to play a role in the suspect's defense. The evidence must possess an exculpatory value that was apparent before it was destroyed, and must also be of such a nature that the defendant would be unable to obtain [p480] comparable evidence by other reasonably available means. Neither of these conditions was met on the facts of this case. Pp. 488–490.

142 Cal. App. 3d 138, 190 Cal. Rptr. 319, reversed and remanded.

, delivered the opinion for a unanimous Court. , filed a concurring opinion, post, p. 491.

Charles R. B. Kirk, Deputy Attorney General of California, argued the cause for petitioner. With him on the briefs were John K. Van De Kamp, Attorney General, William D. Stein, Assistant Attorney General, and Gloria F. De Hart, Deputy Attorney General.

John F. DeMeo argued the cause for respondents. With him on the brief were Thomas R. Kenney, J. Frederick Haley, and John A. Pettis.

title: California v. Trombetta


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Page:Studies in the art of rat-catching (IA studiesinartofra00barkrich).pdf/20

6 Harrow, Westminster, Rugby, and all other schools); but in placing this book on your school-desk, allow me to say that it is no good having it there through the long school hours unless you open it, read it, and deeply ponder over it; and more, my dear boys, let me pray that you will take it home with you, and, casting aside your usual holiday task, study it well, and, as far as possible, actively put in practice what I am going to try and teach you. Some fathers may wish their sons to enter on a more humble course of life, but this I rather doubt. However, should they do so, it will be only so much the better for those who take it up: there will be more room for them. Most mothers, I fear, will object to it on the ground that rats and ferrets don't smell nice; but this objection is not reasonable, They might as well say that the whiff of a fox on a soft December morning as you ride to covert is not delicious!


text:
California v. Trombetta/Concurrence O'Connor

, concurring.

Rules concerning preservation of evidence are generally matters of state, not federal constitutional law. See United States v. Augenblick, 393 U.S. 348, 352–353 (1969). The failure to preserve breath samples does not render a prosecution fundamentally unfair, and thus cannot render breath-analysis tests inadmissible as evidence against the accused. Id., at 356. Similarly, the failure to employ alternative methods of testing blood-alcohol concentrations is of no due [p492] process concern, both because persons are presumed to know their rights under the law and because the existence of tests not used in no way affects the fundamental fairness of the convictions actually obtained. I understand the Court to state no more than these well-settled propositions. Accordingly, I join both its opinion and judgment.


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Page:Bostock v. Clayton County (2020).pdf/40

Rh discrimination because of “sex” still means what it has always meant. But the Court is not deterred by these constitutional niceties. Usurping the constitutional authority of the other branches, the Court has essentially taken H. R. 5’s provision on employment discrimination and issued it under the guise of statutory interpretation. A more brazen abuse of our authority to interpret statutes is hard to recall.

The Court tries to convince readers that it is merely enforcing the terms of the statute, but that is preposterous. Even as understood today, the concept of discrimination because of “sex” is different from discrimination because of “sexual orientation” or “gender identity.” And in any event, our duty is to interpret statutory terms to “mean what they conveyed to reasonable people at the time they were written.” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 16 (2012) (emphasis added). If every single living American had been surveyed in 1964, it would have been hard to find any who thought that discrimination because of sex meant discrimination because of sexual orientation—not to mention gender identity, a concept that was essentially unknown at the time.

The Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice Scalia, but no one should be fooled. The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated—the theory that courts should “update” old statutes so that they better reflect the current values of society. See A. Scalia, A Matter of Interpretation 22


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Page:Studies in the art of rat-catching (IA studiesinartofra00barkrich).pdf/21

Rh Respect your parents, respect even their prejudices; gently point out to your father that you are ambitious and wish for a career in which you can distinguish yourself. Above all, respect your mother, and show your respect by not taking ferrets or dead rats in your pockets into her drawing-room, and by washing your hands a little between fondling them and cuddling her. But to finish this sermon, let me point out that though in this great profession you will be everlastingly mixed up with dogs of all sorts, always make them come to you, and never go to them.

One last word. If in the following pages you come across a bit of grammar or spelling calculated to make a Head Master sit up, excuse it, and remember that I have been a rat-catcher all my life, and as a class we are not quite A1 at book learning.


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4 (1997). If the Court finds it appropriate to adopt this theory, it should own up to what it is doing.

Many will applaud today’s decision because they agree on policy grounds with the Court’s updating of Title VII. But the question in these cases is not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964.

It indisputably did not.

Title VII, as noted, prohibits discrimination “because of ... sex,” §2000e–2(a)(1), and in 1964, it was as clear as clear could be that this meant discrimination because of the genetic and anatomical characteristics that men and women have at the time of birth. Determined searching has not found a single dictionary from that time that defined “sex” to mean sexual orientation, gender identity, or “transgender status.” Ante, at 2. (Appendix A, infra, to


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text: Page:The Chronicle of Henry of Huntingdon.djvu/481


text:
California v. Trombetta/Opinion of the Court

delivered the opinion of the Court.

The Due Process Clause of the Fourteenth Amendment requires the State to disclose to criminal defendants favorable evidence that is material either to guilt or to punishment. United States v. Agurs, 427 U.S. 97 (1976); [p481] Brady v. Maryland, 373 U.S. 83 (1963). This case raises the question whether the Fourteenth Amendment also demands that the State preserve potentially exculpatory evidence on behalf of defendants. In particular, the question presented is whether the Due Process Clause requires law enforcement agencies to preserve breath samples of suspected drunken drivers in order for the results of breath-analysis tests to be admissible in criminal prosecutions.

= I =

The Omicron Intoxilyzer (Intoxilyzer) is a device used in California to measure the concentration of alcohol in the blood of motorists suspected of driving while under the influence of intoxicating liquor. The Intoxilyzer analyzes the suspect's breath. To operate the device, law enforcement officers follow these procedures:

"Prior to any test, the device is purged by pumping clean air through it until readings of 0.00 are obtained. The breath test requires a sample of 'alveolar' (deep lung) air; to assure that such a sample is obtained, the subject is required to blow air into the intoxilyzer at a constant pressure for a period of several seconds. A breath sample is captured in the intoxilyzer's chamber and infrared light is used to sense the alcohol level. Two samples are taken, and the result of each is indicated on a printout card. The two tests must register within 0.02 of each other in order to be admissible in court. After each test, the chamber is purged with clean air and then [p482] checked for a reading of zero alcohol. The machine is calibrated weekly, and the calibration results, as well as a portion of the calibration samples, are available to the defendant." 142 Cal. App. 3d 138, 141–142, 190 Cal. Rptr. 319, 321 (1983) (citations omitted).

In unrelated incidents in 1980 and 1981, each of the respondents in this case was stopped on suspicion of drunken driving on California highways. Each respondent submitted to an Intoxilyzer test. Each respondent registered a blood-alcohol concentration substantially higher than 0.10 percent. Under California law at that time, drivers with higher than 0.10 percent blood-alcohol concentrations were presumed to be intoxicated. Cal. Veh. Code Ann. § 23126(a)(3) (West 1971) (amended 1981). Respondents were all charged with driving while intoxicated in violation of Cal. Veh. Code Ann. § 23102 (West 1971) (amended 1981).

Prior to trial in municipal court, each respondent filed a motion to suppress the Intoxilyzer test results on the ground that the arresting officers had failed to preserve samples of respondents' breath. Although preservation of breath samples is technically feasible, California law enforcement officers [p483] do not ordinarily preserve breath samples, and made no effort to do so in these cases. Respondents each claimed that, had a breath sample been preserved, he would have been able to impeach the incriminating Intoxilyzer results. All of respondents' motions to suppress were denied. Respondents Ward and Berry then submitted their cases on the police records and were convicted. Ward and Berry subsequently petitioned the California Court of Appeal for writs of habeas corpus. Respondents Trombetta and Cox did not submit to trial. They sought direct appeal from the Municipal Court orders, and their appeals were eventually transferred to the Court of Appeal to be consolidated with the Ward and Berry petitions.

The California Court of Appeal ruled in favor of respondents. After implicitly accepting that breath samples would be useful to respondents' defenses, the Court reviewed the available technologies and determined that the arresting officers had the capacity to preserve breath samples for respondents. 142 Cal. App. 3d, at 141–142, 190 Cal. Rptr., at 320–321. Relying heavily on the California Supreme Court's decision in People v. Hitch, 12 Cal. 3d 641, 527 P.2d 361 (1974), the Court of Appeal concluded: "Due process demands simply that where evidence is collected by the state, as it is with the intoxilyzer, or any other breath testing device, law enforcement agencies must establish and follow rigorous and [p484] systematic procedures to preserve the captured evidence or its equivalent for the use of the defendant." 142 Cal. App. 3d, at 144, 190 Cal. Rptr., at 323. The court granted respondents Ward and Berry new trials, and ordered that the Intoxilyzer results not be admitted as evidence against the other two respondents. The State unsuccessfully petitioned for certiorari in the California Supreme Court, and then petitioned for review in this Court. We granted certiorari, 464 U.S. 1037 (1984), and now reverse. [p485]

= II =

Under the Due Process Clause of the Fourteenth Amendment, criminal prosecutions must comport with prevailing notions of fundamental fairness. We have long interpreted this standard of fairness to require that criminal defendants be afforded a meaningful opportunity to present a complete defense. To safeguard that right, the Court has developed "what might loosely be called the area of constitutionally guaranteed access to evidence." United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982). Taken together, this group of constitutional privileges delivers exculpatory evidence into the hands of the accused, thereby protecting the innocent from erroneous conviction and ensuring the integrity of our criminal justice system.

The most rudimentary of the access-to-evidence cases impose upon the prosecution a constitutional obligation to report to the defendant and to the trial court whenever government witnesses lie under oath. Napue v. Illinois, 360 U.S. 264, 269–272 (1959); see also Mooney v. Holohan, 294 U.S. 103 (1935). But criminal defendants are entitled to much more than protection against perjury. A defendant has a constitutionally protected privilege to request and obtain from the prosecution evidence that is either material to the guilt of the defendant or relevant to the punishment to be imposed. Brady v. Maryland, 373 U.S., at 87. Even in the absence of a specific request, the prosecution has a constitutional duty to turn over exculpatory evidence that would raise a reasonable doubt about the defendant's guilt. United States v. Agurs, 427 U.S., at 112. The prosecution must also reveal the contents of plea agreements with key government witnesses, see Giglio v. United States, 405 U.S. 150 (1972), and under some circumstances may be required to disclose the identity of undercover informants who possess evidence critical to the defense, Roviaro v. United States, 353 U.S. 53 (1957).

[p486] Less clear from our access-to-evidence cases is the extent to which the Due Process Clause imposes on the government the additional responsibility of guaranteeing criminal defendants access to exculpatory evidence beyond the government's possession. On a few occasions, we have suggested that the Federal Government might transgress constitutional limitations if it exercised its sovereign powers so as to hamper a criminal defendant's preparation for trial. For instance, in United States v. Marion, 404 U.S. 307, 324 (1971), and in United States v. Lovasco, 431 U.S. 783, 795, n. 17 (1977), we intimated that a due process violation might occur if the Government delayed an indictment for so long that the defendant's ability to mount an effective defense was impaired. Similarly, in United States v. Valenzuela-Bernal, supra, we acknowledged that the Government could offend the Due Process Clause of the Fifth Amendment if, by deporting potential witnesses, it diminished a defendant's opportunity to put on an effective defense. 458 U.S., at 873.

We have, however, never squarely addressed the government's duty to take affirmative steps to preserve evidence on behalf of criminal defendants. The absence of doctrinal development in this area reflects, in part, the difficulty of developing rules to deal with evidence destroyed through prosecutorial neglect or oversight. Whenever potentially exculpatory evidence is permanently lost, courts face the treacherous task of divining the import of materials whose contents are unknown and, very often, disputed. Cf. United States v. Valenzuela-Bernal, supra, at 870. Moreover, fashioning remedies for the illegal destruction of evidence can pose troubling choices. In nondisclosure cases, a court can [p487] grant the defendant a new trial at which the previously suppressed evidence may be introduced. But when evidence has been destroyed in violation of the Constitution, the court must choose between barring further prosecution or suppressing—as the California Court of Appeal did in this case—the State's most probative evidence.

One case in which we have discussed due process constraints on the Government's failure to preserve potentially exculpatory evidence is Killian v. United States, 368 U.S. 231 (1961). In Killian, the petitioner had been convicted of giving false testimony in violation of 18 U.S.C. § 1001. A key element of the Government's case was an investigatory report prepared by the Federal Bureau of Investigation. The Solicitor General conceded that, prior to petitioner's trial, the F.B.I. agents who prepared the investigatory report destroyed the preliminary notes they had made while interviewing witnesses. The petitioner argued that these notes would have been helpful to his defense and that the agents had violated the Due Process Clause by destroying this exculpatory evidence. While not denying that the notes might have contributed to the petitioner's defense, the Court ruled that their destruction did not rise to the level of constitutional violation:

"If the agents' notes were made only for the purpose of transferring the data thereon  and if, having served that purpose, they were destroyed by the agents in good faith and in accord with their normal practices, it would be clear that their destruction did not constitute an impermissible destruction of evidence nor deprive petitioner of any right." Id., at 242.

In many respects the instant case is reminiscent of Killian v. United States. To the extent that respondents' breath samples came into the possession of California authorities, it was for the limited purpose of providing raw data to the [p488] Intoxilyzer. The evidence to be presented at trial was not the breath itself but rather the Intoxilyzer results obtained from the breath samples. As the petitioner in Killian wanted the agents' notes in order to impeach their final reports, respondents here seek the breath samples in order to challenge incriminating tests results produced with the Intoxilyzer.

Given our precedents in this area, we cannot agree with the California Court of Appeal that the State's failure to retain breath samples for respondents constitutes a violation of the Federal Constitution. To begin with, California authorities in this case did not destroy respondents' breath samples in a calculated effort to circumvent the disclosure requirements established by Brady v. Maryland and its progeny. In failing to preserve breath samples for respondents, the officers here were acting "in good faith and in accord with their normal practice." Killian v. United States, supra, at 242. The record contains no allegation of official animus towards respondents or of a conscious effort to suppress exculpatory evidence.

More importantly, California's policy of not preserving breath samples is without constitutional defect. Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect's defense. [p489] To meet this standard of constitutional materiality, see United States v. Agurs, 427 U.S., at 109–110, evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. Neither of these conditions is met on the facts of this case.

Although the preservation of breath samples might conceivably have contributed to respondents' defenses, a dispassionate review of the Intoxilyzer and the California testing procedures can only lead one to conclude that the chances are extremely low that preserved samples would have been exculpatory. The accuracy of the Intoxilyzer has been reviewed and certified by the California Department of Health. To protect suspects against machine malfunctions, the Department has developed test procedures that include two independent measurements (which must be closely correlated for the results to be admissible) bracketed by blank runs designed to ensure that the machine is purged of alcohol traces from previous tests. See supra, at 481–482. In all but a tiny fraction of cases, preserved breath samples would simply confirm the Intoxilyzer's determination that the defendant had a high level of blood-alcohol concentration at the time of the test. Once the Intoxilyzer indicated that respondents were legally drunk, breath samples were much more likely to provide inculpatory than exculpatory evidence.

[p490] Even if one were to assume that the Intoxilyzer results in this case were inaccurate and that breath samples might therefore have been exculpatory, it does not follow that respondents were without alternative means of demonstrating their innocence. Respondents and amici have identified only a limited number of ways in which an Intoxilyzer might malfunction: faulty calibration, extraneous interference with machine measurements, and operator error. See Brief for Respondents 32–34; Brief for California Public Defender's Association et al. as Amici Curiae 25–40. Respondents were perfectly capable of raising these issues without resort to preserved breath samples. To protect against faulty calibration, California gives drunken driving defendants the opportunity to inspect the machine used to test their breath as well as that machine's weekly calibration results and the breath samples used in the calibrations. See supra, at 481–482. Respondents could have utilized these data to impeach the machine's reliability. As to improper measurements, the parties have identified only two sources capable of interfering with test results: radio waves and chemicals that appear in the blood of those who are dieting. For defendants whose test results might have been affected by either of these factors, it remains possible to introduce at trial evidence demonstrating that the defendant was dieting at the time of the test or that the test was conducted near a source of radio waves. Finally, as to operator error, the defendant retains the right to cross-examine the law enforcement officer who administered the Intoxilyzer test, and to attempt to raise doubts in the mind of the factfinder whether the test was properly administered. [p491]

= III =

We conclude, therefore, that the Due Process Clause of the Fourteenth Amendment does not require that law enforcement agencies preserve breath samples in order to introduce the results of breath-analysis tests at trial. Accordingly, the judgment of the California Court of Appeal is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.


text:
User talk:Prospectprospekt

Beeswaxcandle (talk) 03:56, 22 February 2024 (UTC)

Anti-Homosexuality Act, 2023
Thanks for transcribing the Anti-Homosexuality Act, 2023! For your information there's also a gazetted version on ULII. May consider to do the gazetted version later.廣九直通車 (talk) 03:41, 23 April 2024 (UTC)

Index:Iola Leroy.djvu
In case you put sdelete on it because it was broken, I fixed it. If that was it, remember to remove the template before it gets deleted. Cheers, — Alien333 (what I did & why I did it wrong) 16:55, 14 July 2024 (UTC)

 * I created the index page because Help:Match and split says it only works with djvu files, but it turns out that SodiumBot can also match and split pdf files, so it's now just a duplicate of Index:Iola Leroy, or, Shadows uplifted (IA lolaleroyshadow00harprich).pdf. Prospectprospekt (talk) 18:32, 14 July 2024 (UTC)
 * OK then, sorry for the inconvenience. — Alien333 (what I did & why I did it wrong) 18:43, 14 July 2024 (UTC)

title: User talk:Prospectprospekt


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in the afternoon of a chilly day in February, two gentlemen were sitting alone over their wine, in a well-furnished dining parlor, in the town of P, in Kentucky. There were no servants present, and the gentlemen, with chairs closely approaching, seemed to be discussing some subject with great earnestness.

For convenience sake, we have said, hitherto, two gentlemen. One of the parties, however, when critically examined, did not seem, strictly speaking, to come under the species.

He was a short, thick-set man, with coarse, commonplace features, and that swaggering air of pretension which marks a low man who is trying to elbow his way upward in the world. He was much over-dressed, in a gaudy vest of many colors, a blue neckerchief, bedropped gayly with yellow spots, and arranged with a flaunting tie, quite in keeping with the general air of the man. His hands, large and coarse, were plentifully bedecked with rings; and he wore a heavy gold watchchain, with a bundle of seals of portentous size, and a great


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Rh this opinion includes the full definitions of “sex” in the unabridged dictionaries in use in the 1960s.)

In all those dictionaries, the primary definition of “sex” was essentially the same as that in the then-most recent edition of Webster’s New International Dictionary 2296 (def. 1) (2d ed. 1953): “[o]ne of the two divisions of organisms formed on the distinction of male and female.” See also American Heritage Dictionary 1187 (def. 1(a)) (1969) (“The property or quality by which organisms are classified according to their reproductive functions”); Random House Dictionary of the English Language 1307 (def. 1) (1966) (Random House Dictionary) (“the fact or character of being either male or female”); 9 Oxford English Dictionary 577 (def. 1) (1933) (“Either of the two divisions of organic beings distinguished as male and female respectively”).

The Court does not dispute that this is what “sex” means in Title VII, although it coyly suggests that there is at least some support for a different and potentially relevant definition. Ante, at 5. (I address alternative definitions below. See Part I–B–3, infra.) But the Court declines to stand on that ground and instead “proceed[s] on the assumption that ‘sex’ ... refer[s] only to biological distinctions between male and female.” Ante, at 5.

If that is so, it should be perfectly clear that Title VII does not reach discrimination because of sexual orientation or gender identity. If “sex” in Title VII means biologically male or female, then discrimination because of sex means discrimination because the person in question is biologically male or biologically female, not because that person is sexually attracted to members of the same sex or identifies as a member of a particular gender.

How then does the Court claim to avoid that conclusion?


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''Military missiles of the 1950s provided both the technology and the first-generation boosters for the nascent space program. The Air Force's Navaho (left) was a long-range cruise missile overtaken by the onrush of technology; though it was canceled as a project, it had pioneered the development of large rocket engines and guidance systems. The Atlas missile (center) had a hectic on-and-off career in the early 1950s but became the first operational ICBM and the major "large" boost vehicle for manned and unmanned space missions in the first decade of the space age. Thor (right), the sturdy, reliable baby of the Atlas technology, served an interim military role as an operational IRBM and a longer and more illustrious role as the workhorse booster of the first decade of payloads for military and nonmilitary space projects. Shown here with an Able second stage, it accepted a variety of second stages and payloads.'' 24


text: Buddenbrooks/Volume 1/Part 1

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6 The Court tries to cloud the issue by spending many pages discussing matters that are beside the point. The Court observes that a Title VII plaintiff need not show that “sex” was the sole or primary motive for a challenged employment decision or its sole or primary cause; that Title VII is limited to discrimination with respect to a list of specified actions (such as hiring, firing, etc.); and that Title VII protects individual rights, not group rights. See ante, at 5–9, 11.

All that is true, but so what? In cases like those before us, a plaintiff must show that sex was a “motivating factor” in the challenged employment action, 42 U. S. C. §2000e–2(m), so the question we must decide comes down to this: if an individual employee or applicant for employment shows that his or her sexual orientation or gender identity was a “motivating factor” in a hiring or discharge decision, for example, is that enough to establish that the employer discriminated “because of ... sex”? Or, to put the same question in different terms, if an employer takes an employment action solely because of the sexual orientation or gender identity of an employee or applicant, has that employer necessarily discriminated because of biological sex?

The answers to those questions must be no, unless discrimination because of sexual orientation or gender identity inherently constitutes discrimination because of sex. The Court attempts to prove that point, and it argues, not merely that the terms of Title VII can be interpreted that way but that they cannot reasonably be interpreted any other way. According to the Court, the text is unambiguous. See ante, at 24, 27, 30.

The arrogance of this argument is breathtaking. As I will show, there is not a shred of evidence that any Member of Congress interpreted the statutory text that way when Title VII was enacted. See Part III–B, infra. But the Court apparently thinks that this was because the Members were not “smart enough to realize” what its language means.


text: Buddenbrooks/Volume 1/Part 1/Chapter 1

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all the sense of partisanship that the Women's Movement in England may arouse in certain natures, there is one occasional feature of it (a feature far more infrequent than has been alleged) that some of us deprecate. It is the assumption that men have consciously and deliberately initiated all the injustices from which women suffer. To assume this is at once to suppose men more powerful than they have ever been, and more wrong-headed.

So far as I know them, the great majority of the women leaders in reform, share a sense of painful wincing when they hear women talking as if all men were in a conscious conspiracy against the other sex.

Realising our own imperfections, a sense of something very like shame descends upon us on those occasions when we are asked to listen to pleas that would make out all women to be Angels of Light and all men Princes of Darkness.

Looking as far into the matter as we are able, we find the chief difference between ourselves and men to lie in the fact that men are expected to struggle against adverse circumstance, whereas they have made it our chief virtue not to struggle.

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text: Buddenbrooks/Volume 1/Part 1/Chapter 2

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2 Nevertheless, when we begin to inquire into the origin of the order under which we live, we cannot believe in our hearts that men really ever got together and said: "Go to! we'll enslave the women!" On the contrary, we find a difficulty in doubting that we all merely followed our lines of least resistance, and that these lines brought women so constantly to the exercise of patience at the cradle and the hearth, and brought men so constantly to the exercise of physical force on the battlefield or in the chase, that the hands of each became subdued to that they worked in.

Women's hands, as civilisation advanced, grew softer and smaller; man's grew larger and more muscular as they exercised their power to grip or strike. The arrangement between the sexes seems to have come about without blame or credit on either side. It was the best working arrangement the uncivilised could devise. The trouble with it to-day is that it long ago served its purpose, and became outworn. We all, men and women alike, have arrived at a place where we must devise something better. But we shall not come by any fair understanding of the past, nor by any helpful scheme of betterment for the future, till women realise and frankly admit that men, equally wath themselves, are victims of circumstance.

The object of these pages is twofold. One is to put forward a plea which, if it were generally allowed, might serve better than anything else to do

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Rh away with age-old misunderstanding. My second object is to set forth what seems to be the chief reason for the too long continuance of the situation in which we find ourselves, and to suggest that the cause of it is woman's inarticulateness in the past.

To speak of her as inarticulate is not to forget that she has long been called the voluble sex. Her supposed inability to keep a secret is with many an unchallenged article of faith. Yet no secret has ever been better kept than the woman's, as those may dimly have divined who speak of the sex as enigmatic.

In every tongue, at various stages of the world's progress, we have had the man's views upon every subject within sight—including woman. What the woman thought of it all, no deepest delver in dusty archives, or among ruins of dead cities, has ever brought to light. The sagas, the histories, song, epitaph, and story—the world's garnered treasure of record, whether it be of the life of action or the life of the spirit—they are all but so many reflections of the mind of man.

From India to Egypt, from Greece to Yucatan, the learned are labouring to bring the Past to light. All over the civilised world are those who wait with eagerness to hear of the recovery of some lost master-piece—thrilling when the cable tells of a Menander speaking for himself at last, instead of through the mouths of others. All the learned world waits to hear what men of the Minoan

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text: Buddenbrooks/Volume 1/Part 1/Chapter 3

title: Buddenbrooks/Volume 1/Part 1/Chapter 3


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4 felt and thought. But the living may wait till they, too, are dust; or, while their brief day lasts, they may read all the books in all the tongues of earth, con every record in clay or stone or papyrus, and still know only half the story. Schliemann may uncover one Troy after another, six separate cities deep, and never come the nearer to what Helen thought. All that is not silence is the voice of man.

Some would wrest the significance of this to a reproach against woman, seeing in it the most sweeping of all the indictments against her belated claim to stand—in civilised communities—on an equal footing with her brother man. But to read history so is to understand man's part in it as little as woman's.

If I were one of the "dominant sex," J think I would not be so sure, as many good men seem to be, that they are competent to speak for women. If I were a man, and cared to know the world I live in, I almost think it would make me a shade uneasy—the weight of that long silence of one-half the world; even more uneasy, if, being a man, I should come to realise the strange persistence of the woman in her immemorial role. When I should hear women chattering, I almost think I might not feel it so acute in me to note that with all their words they so seldom "say anything." What if they know better? What if it is by that means they have kept their secret? For let no one think the old rule of feminine dissimulation is even yet superseded.

Some measure we get of the profundity of that

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text: Buddenbrooks/Volume 1/Part 1/Chapter 4

title: Buddenbrooks/Volume 1/Part 1/Chapter 4


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 abyss of silence when we see, even in these emancipated times, how little of what woman really thinks and feels gets over the footlights of the world's big stage.

Let us remember it was only yesterday that women in any number began to write for the public prints. But in taking up the pen, what did this new recruit conceive to be her task? 'To proclaim her own or other women's actual thoughts and feelings? Far from it. Her task, as she naturally and even inevitably conceived it, was to imitate as nearly as possible the method, but above all the point of view, of man.

She wrote her stories as she fashioned her gowns and formed her manners, and for the same reasons; in literature following meekly in the steps of the forgotten Master, the first tribal story-teller, inventor of that chimera, "the man's woman."

There was no insuperable difficulty in the way of her playing "the sedulous ape," as is amply demonstrated by the serried ranks of competent and popular woman-novelists.

She is still held to be in no way so highly flattered as by hearing that men can hardly credit her book to be the work of a woman.

The realisation that she had access to a rich and as. yet unrifled storehouse may have crossed her mind, but there were cogent reasons for concealing her knowledge. With that wariness of ages, which has come to be instinct, she contented herself with

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 echoing the old fables, presenting to a man-governed world puppets as nearly as possible like those that had from the beginning found such favour in men's sight.

Contrary to the popular impression, to say in print what she thinks is the last thing the womannovelist or journalist 1s commonly so rash as to attempt. In print, even more than elsewhere (unless she is reckless), she must wear the aspect that shall have the best chance of pleasing her brothers. Her publishers are not women. Even the professional readers and advisers of publishers are men. The critics in the world outside, men. Money, reputation—these are vested in men. If a woman would win a little at their hands, she must walk warily, and not too much displease them. But I put it to my brothers: Is that the spirit of the faithful chronicler? Is it not far more the spirit of the notorious flatterers and liars who, in the times gone by, addressed those abject prefaces to powerful patrons—testimonials which make us laugh or blush according to our temper? Little as we can judge of those princes and nobles from the starving men of letters who licked their boots, hardly more can men discover to-day what women really think of them from the fairy-tales of feminine spinning, however much the spinster "makes faces," as Stevenson would say, and pretends, "Now I am being Realistic!"

What she is really doing is her level best to play

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text: Buddenbrooks/Volume 1/Part 1/Chapter 5

title: Buddenbrooks/Volume 1/Part 1/Chapter 5


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 the man's game, and seeing how nearly like him she can do it. So conscious is she it is his game she is trying her hand at, that she is prone to borrow his very name to set upon her title-page. She does so, not only that she may get courage from it to talk deep and go a-swashbuckling now and then, but for the purpose of reassuring the man. Here is something quite in your line, she implies; for lo! my name is " George."

Her instinct for the mask is abundantly justified.

No view is more widely accepted than that every woman's book is but a naïve attempt to extend her own little personality.

We do not commonly find the man-made hero confounded with the author. When a man takes some small section of the arc of a character or a dramatic situation, and (capable of intellectual honesty, and precisely of leaving himself out of the Saga) if he follows the curve so rigidly that he describes the complete circle, his faithful projection of the illusion of life is rewarded by his critics' saying: "What a power of imagination the fellow has!"

If a woman but attempts this honourable task——an affair of strong self-control and of almost mathematical accuracy—if she happens to bring it off, her critics pat her on the back with an absentminded air, while they look about for "personal experience."

Or they do not even look about. They are content to say: "This is so like the real thing it must

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