I figure that instead of writing discursive entries about my two day-one night stop in New York, I'd just lay out some of the thoughts I had during the time I was there. This is my record for Tuesday.

12:15 pm - I arrive in New York's Penn Station and walk crosstown to Hotel 31, just east of Park Avenue in Murray Hill. I don't want to take a cab - that would decrease the amount of money for eating.

12:45 - I'm at the hotel. It's hot. A couple is being kept apart by a policewoman in a sort of untelevised episode of Jerry Springer. "Sir, are you from Pittsburgh? - Oh, no. Not Pittsurgh - So your wife is lying when she says you've been arrested three times for domestic abuse in Pittsburgh? - No, she's telling the truth. We're just moving away." A good start to my trip.

1:15 - Starving, since I'd only eaten some Total brand cereal at six in the morning. I run into a small chinese restaurant. There seem to be chinese people within. This bodes well.

1:30 - Alas. The chinese people are eating from some sort of hidden menu. But the glop they keep for Americans is pretty good glop. It's also four dollars, and comes with a pile of white rice. Also, I got yelled at by the lady behind the counter - "you think I have time for you? Choose second choice! Choose!".

2:00 - I stop by Toys R US in Times Square to see what kids are playing with these days. Am discouraged by wretched plastic toys featuring more than usually unattractive heroes. But there's one stubborn little boy playing with a wooden train set, making spaceship noises. Not coincidentally, he seems quiet and well mannered.

2:30 - Stop by lincoln center for tickets to Mostly Mozart concert at night. They're expensive! I almost ask for the student price, but then realize that I'm no longer a student.

4:00 - I've arrived an hour early to meet Jeremy for what was already supposed to be an early dinner. But I'm exhausted, so I take refuge in a small park and buy an iced tea. Nattily attired people come
in and out of the big building anchoring the park. They look like lawyers. I stagger over to the building and look up. It says Cravath, Swaine, & Moore LLP.

5:00 - I meet Jeremy, but our plan to eat Greek food at Uncle's Nick's is foiled by an exhaust problem. We repair instead to Grand Sichuan International Midtown, part of a chain recommended by readers. Jeremy points out that the menu has a strange essay in back, in between puzzling Halloween and New Year's menus. Essay is unhelpful, but we both get dishes made with "freshly killed chicken". I find my own choice delicious, and laced powerfully with characteristic Sichuan heat, but am unsure whether the freshly killed nature of the chicken helped the taste, or whether I just like the idea of a continuing massacre of chickens taking place in the back. Are they actually killing these chickens in the back? I hope so.

Also, we share a plate of soup dumplings, filled with hot broth within. They're good, but I note that the dough is rather thick. I wonder if thin dough is a sign of a good dumpling, like it is in so many other cases (Lebanese Kibbeh [meat football filled with meat], ravioli, spanakopita, etc, etc). Decide to find more soup dumplings tomorrow at somewhere more famous for them.

7:00 p.m - Jeremy leaves for his improv comedy class, and I turn north to catch my concert at the Lincoln Center. I stop by the Amish Market for chocolate to eat during intermission. The amish market turns out not to be amish.

8:00 p.m - The concert is pleasant, reinforcing my belief that music took a definitive turn for the worse in about 1800, and has degenerated steadily since. Normally, I have real trouble figuring out if the orchestra has made a mistake. Not so tonight, because pianist Emmanuel Ax, playing heroically despite a broken rib, stared directly at the culprit after every blown note. He did a fair bit of staring.

10:15 p.m. - concert over, I head up to 72nd street to find Gray's Papaya. I down the hot dog, and then turn east - sweet papaya drink in hand- and grab 5th Avenue south to 31st. A good day, but I'm tired. Much more food tomorrow.

Time my train was scheduled to leave New York - 6:45 p.m
Time my train was meant to arrive in DC - 10:05 pm.
Time my train actually did arrive in DC - 5:15 a.m

I obviously don't expect perfection from train operators. Things truly do go wrong, and they take time to fix. I, at least, was pretty calm all night, and I got through most of Jonathan Strange & Mr. Norrell. But one does have a right to expect that when things do go wrong on the train, the operating company makes some effort to let customers know what has gone wrong, when the trains will get moving again, and what customers might do in the meantime.

Amtrak did none of those things. In fact, as I told someone on the platform in Trenton, NJ - after the powers that be had ordered us off the second of three trains, and had sent one bus to transport 300 people to philadelphia, where, incidentally, the trains were running no more quickly forward than at Trenton - that the chief characteristic of all the suggestions Amtrak had made during the night was that they got you in more trouble than you were in before. My favorite, though, was when a member of the local bus service in Trenton, masquerading as an Amtrak official in the presence of actual Amtrak officials, told everyone to take cabs into Camden, from where there might be either buses or trains running,but certainly not both and probably neither. Great.

Anyway, blogging about New York soon.

Apparently it is illegal to sell alumnium foil to somebody who says he is "doing a cook". The New York Times informs me that this is a slang term for the manufacture of methamphetamine, and it is apparently illegal to sell legal products to somebody who one knows or ought to know will use them to make drugs.

Anyway, apparently several dozen immigrant store clerks are as ignorant as drug slang as I am, and are fighting their arrests by arguing that when undercover agents said they needed things like lighter fluid to "do a cook" they just assumed hamburgers and hot dogs:

"This is not even slang language like 'gonna,' 'wanna,' " said Malvika Patel, who spent three days in jail before being cleared this month. " 'Cook' is very clear; it means food." And in this context, she said, some of the items the government wants stores to monitor would not set off any alarms. "When I do barbecue, I have four families. I never have enough aluminum foil."

Professor Strahilevitz has a fascinating reply to my post about zoning sex offenders. [His first post is here, Professor Berman's newest post is here.] I will add that I have finally read the Iowa Supreme Court's decision upholding the same decision, which is jurisprudentially unhelpful on many scores.

In particular let's consider the question that Professor Strahilevitz and I are both fascinated by, whether or not there is a "fundamental right," as the Supreme Court likes to call it, to live where one likes if one can afford the property. (And let us bracket for now the usual hot topics, like whether fundamental rights ought to create federal questions, and so on.)

In support of its contention that "freedom of choice in residence ... is not a fundamental interest entitled to the highest constitutional protection," the Iowa Supreme Court cites so far as I can tell only one case, Prostrollo v. University of South Dakota, 507 F.2d 775, from the 8th Circuit.

Prostrollo turns out to have considered only whether college regulations that required students to live in university housing was unconstitutional, and I confess that the cases seem quite different to me. Prostollo even explicitly noted that "this is not, it must be noted, a case in which the right to live in a given geographic area is affected ... " so one might think that the Iowa Supreme Court should have at least discussed whether Iowa's Sex-Offender-Free-School-Zones-Act in affected "the right to live in a given geographic area."

The Prostrollo citation turns out to be even more unhelpful because the Prostrollo court also made much of the need to be very deferential in 14th Amendment cases about matters of state concern. I tend to agree that federal courts should not be careful about overruling state legislatures on policy grounds; but the concerns that afflict a state court interpreting its own state's constitution are surely different, and state courts might have good reasons to be more "activist", as I have argued before. Unfortunately, because the Iowa Supreme Court has decided to peg the Iowa due process clause to the federal one, federal judicial decisions about the proper relationship between federal courts and state legislatures are automatically incorporated as decisions about the proper relationship between state courts and state legislatures.

But all of this criticism is only prefatory to saying that the Iowa Court and 8th Circuit may well be right that there is no historically-recognized fundamental right to live on one's land. Like Professor Strahilevitz, I would like to see (and perhaps do) more research on this point, but the Prostrollo court does cite the obvious point about zoning ordinances. It is true enough that the original zoning ordinances ratified by The Supreme Court in Euclid v. Ambler Realty restricted only business and multifamily uses while allowing individual homeowners to locate anyplace they want. Those zoning statutes restricted the right to work where you wanted but not to live where you wanted.

But a great number municipal statutes do create "exclusive commercial/industrial zoning" which forbids people from living on commercial- or industrial-zoned real estate, even if they own. See, e.g. Roney v. Board of Supervisors (1956) 138 CA2d 740 and the things cited therein. In other words, the right to live where one wants to, even on land one owns, seems unlikely to be a fundamental right, given how common and relatively uncontested are the ordinances which infringe it.

On the other hand, many of these exclusive zoning ordinances are newish (dating to sometime in the early 20th century, I think), so even though there is unlikely to be a general right to live where you want to, there is indeed something unpleasantly totalitarian about laws that tells people "despite what the landowner says, thou shalt not live here."

And more importantly, they are uniform. The state does not say that right-handed people can live in the industrial park where left-handed people must stay in the suburbs, but rather excludes them uniformly. I take it from Professor Stahilevitz's newest post about zoning obese people that what rankles him most about sex-offender laws is that they tell some landowners "keep out" while letting other landowners in. Of course, in constitutional parlance this is an equal protection problem, not a fundamental-rights problem, and no court thinks that fat people or sex-offenders are a "suspect class", just as felons, burglars, and traitors are not. This means that laws that discriminate against them face no heightened scrutiny.

But something still seems wrong with this picture. If we believe in this kind of equal protection analysis and fundamental rights analysis in the first place (maybe we do not, but let us work with what we have for a moment), there still seems something fishy about the on/off nature of the inquiries here. The solution, for those who seek a federal constitutional solution, might be to invoke something like Thurgood Marshall's sliding scale analysis from his dissent in San Antonio Independent School District v. Rodriguez. Rather than asking whether a right is fundamental (if yes, strict scrutiny, if not, rational basis) and whether a classification is suspect (if yes, strict scrutiny, if not, rational basis), Marshall would have somehow multiplied the two together, so that progressively less sane classifications become more suspect the more important of a right they infringe. This gets at, anyway, what seems to bother Professor Strahilevitz so much, that there does seem to be something deeply unAmerican and untraditional (racial ghettoes aside) about a telling certain people to Keep Out of one area, whether they own the land or not, while telling others to do as they please. I happen to think that Justice Marshall's dissent in San Antonio is eminently wrong in just about every respect, but that does not necessarily mean his sliding-scale theory is.

In this case, that might mean that "zoning Cartman" is unconstitutional but that "zoning sex offenders" is more reasonable, assuming that the class of people who have been convicted of certain felonies in a state court is a less suspect class than the obese; but it might also mean that public health care programs would be constitutional even if they burden both sex-offenders and the obese.

Myself, I am still not convinced that the Iowa statute violated the federal constitution, and while I share some of Professor Strahilevitz's constitutional doubts I think his are greater than mine. That said, I think it is wrong, wrong, wrong, for a state to use its land use regulations to pick on people, even when it thinks it has a pretty good reason for picking on them. I think there are a wide variety of tactics, some heavy-handed, some reasonable, that a state might use to alleviate the fear of recidivist felons, but I do not think residential ghettoization should be in the regulatory quiver.