Republicans have basically made themselves a political nullity in presidential politics by consistently taking hard stances on social issues that most Americans no longer support. The Southern Strategy and the Silent Majority tactics worked for awhile, but there aren't enough racist or conservative Christian white people left to make that work. The GOP is taking a long time to catch on though. The Democrats should be able to take advantage of this and ride to easy victories for the foreseeable future, just as President Obama did in 2012 over Mitt Romney despite the fact that the economy was not doing well (almost always a death sentence for a presidency), and he was a black man named Barack Obama. However, on Saturday, the Democrats (or more precisely, a segment of their voters) showed hope to the GOP at the Netroots Nation event (basically the liberal version of CPAC).
Bernie Sanders and Martin O'Malley were speaking before what should have been a friendly audience when the event was disrupted by Black Lives Matter protesters who, as is their custom, demanded that the candidates only say that black lives matter. They booed and jeered when O'Malley said, "[b]lack lives matter. White lives matter. All lives matter." One of the activists shouted to the crowd that if she dies in police custody, everyone else should "burn everything down. That's the only way you motherfuckers listen." Then, the protesters disrupted Bernie Sanders' portion of the event and wouldn't let him speak. He became exasperated, and after pointing out that he'd been fighting for civil rights for fifty years, told the Black Lives Matter activists that if they didn't want him there, he'd leave. In the aftermath, Martin O'Malley has apologized for saying that all lives matter and called his remarks insensitive. So in one afternoon, a bunch of black people lived up to basically every negative stereotype that white people have of them (being loud, rude, and disruptive in public spaces and inciting riots), and a candidate (who has no chance of winning but still) for the Democratic nomination apologized for saying that white lives matter too. Awesome.
I want to make it clear that I sympathize with the grievances of the Black Lives Matter groups. There is no question that in any interaction with the police, it is far better to be white or Asian than it is to be black. That is beyond dispute. If you work in criminal justice in any capacity, you've seen how the system is slanted against black people. To the issue here, black people are much more likely to be viewed as dangerous than are white people. Police, consequently, are more likely to shoot a black person who is unarmed than a white person who is unarmed. So I am not writing to discredit the claims of Black Lives Matter people. However, their message is counter-productive, and their methods of disseminating that message are even worse.
Here are a few realities, political and otherwise, that we need to come to terms with because, as usual, reality is important. Any political change in America will always have to happen with the consent of at least some white people. Whether or not you think white people are the scourge of humanity, they dominate American politics and will do so for a long time. This isn't South Africa.
Yes, there are a lot of Hispanics in America, but many of them are white, and the fact that their last names are Spanish isn't going to matter to them when they are fifth generation anymore than it matters to me that my last name is German. Additionally, Hispanics are not necessarily known for their brotherly love towards black people. So bottom line, if you are black in America, and you want the system to change, you have to rely on people who are not black to help you. Additionally, while it is true that black people are probably killed by police at a higher rate relative to their share of the US population, unarmed white people get killed by police too. So there is a bridge to reach out to the broader population. If the issue is framed as a battle to get the police to stop killing American civilians who are unarmed, then everyone will be more willing to help, and if the police stop shooting every unarmed citizen, that will help the black people too.
However, that help will never be forthcoming on a large enough scale so long as white people continue to see black people as different, as "other," and the issue of police shootings is seen in the public eye as a "black problem." The reason these structural problems exist is because we have chosen to arbitrarily separate ourselves based on the color of our skin. Martin Luther King's most famous words in his "I Have A Dream" speech specifically addressed this problem. His dream was to live in a world where his children weren't judged by the color of their skin but by the content of their character. Modern critical race theorists would call him a "colorblind racist" for saying that (if he were white). If we all see each other as people first or even as Americans first, we would indisputably be in a better world (unless you are a critical race theorist or profit from identity politics).
Well, that's never going to happen if people insist on saying that black lives matter and getting mad if someone says that all lives matter. Instead, it makes white people feel like they are the enemy. If you are black in America, you do NOT want white people to go back to having racial pride and identifying primarily as whites on a large scale. You aren't going to win that fight. You make up less than 15% of the entire population, and a significant chunk of that 15% can't vote because of GOP chicanery and the ridiculous war on drugs (another problem that needs to be framed as one that isn't only about black people). If inequalities in the justice system are seen as black problems, the hard reality is that most people are just going to ignore them (for reference, see the pathetic state of public schools where the majority of students are black).
If Republicans can succeed in portraying the Democrats as the party of angry black people who just want to "burn this place down," then their anemic electoral chances will be revived. Bernie Sanders is the best candidate in the field if you want criminal justice reform and a better country for black people to live in. There can be no question about that. Hillary Clinton is a milk-toast moderate, at best, and the Republicans, well, I don't think I have to go into detail on them. So if you really want to get some change in the system, do not shout down the only realistic chance you have for that change, and stop trying to win people to your side by telling them that they are racists. That just isn't going to work, no matter how good it might make you feel or how much your critical race theory professor convinced you that you are in the right. Yes, it sucks that black people are still getting the shaft in America, but if the majority of people cared about that, we wouldn't be where we are now.
Finally, the President of the United States has very little to do with local police shootings anyway so when you go to a campaign event for a presidential race and make a scene about police shootings (unless you are mad at the FBI), it really feels like you are doing it more for yourself than for your cause.
Tuesday, July 21, 2015
Tuesday, July 14, 2015
You Should Oppose Capital Punishment, Whoever You Are
Capital punishment has been in the news quite a bit recently. The Supreme Court decided to uphold Oklahoma's risky lethal injection protocol, and Nebraska decided to dump the death penalty entirely (unless the state's bloodthirsty governor has his way).
If you support the death penalty, you shouldn't. No matter who you are, it's a bad idea, and below I will explain why. First, I want to establish my own bias. Formerly, I supported the death penalty. Now, I do not. I have worked on capital appeals for the last two summers for my summer internships (I am a law student), and along with the War on Drugs, I believe that capital punishment is the most inhumane and stupid policy our government prosecutes. I should also note that I am not a bleeding heart liberal. I think there are people who deserve to die. The question is, who should make that determination? Below, I will describe different types of people and ideologies. If you'd like, you can skip to the description that most closely fits you and read why you should oppose capital punishment. Maybe, like I was, you are a mix of several different positions, in which case, please read the whole thing. People's lives literally depend on the American public knowing the facts of the death penalty.
The Death Penalty Saves Lives By Deterring Crime
This is the most common canard thrown out by pro-death penalty advocates, and it has a great deal of surface appeal. What I mean by that is that if you only think about it momentarily, it makes sense that threatening people with execution would keep them from committing crimes. Incidentally, this is the horse Nebraska's pro-death penalty people will ride. It's the 'ol "agree with us or you will die" argument, which was also used to justify the Iraq War and the CIA's torture program operated from 2002 until 2008 (if you haven't read the Senate report on their investigation of this program, you should). Here's the problem. The death penalty does not deter crime, and you shouldn't expect it to either.
Capital punishment in the United States is only used for first-degree murder (or in some states, felony murder that is legally equivalent but morally miles apart). It is unconstitutional, as of 2008, to use it in any other circumstances. When someone murders someone else with what the law calls "malice aforethought" (they planned it in advance-ish), that person is not banking on getting caught. This is actually a general problem with deterring crime. It is shocking the number of criminals who don't know a thing about the law. But let's take the example of the totally rational first-degree murderer who is weighing all of his (it is almost always a man) options.
If you commit a crime that is eligible for the death penalty, your options for punishment are going to be death or life without the possibility of parole (LWOP). Most people outside of prison do not care whether or not they serve LWOP or are executed. Why would they? Almost everything I want to do in my life is impossible if I am locked up in prison or if I am dead, so there's little difference to me between the two. In order for capital punishment to deter crime, you would have to have a potential killer who thinks to himself, "I really want to murder my cheating wife, and I don't mind if I spend the rest of my life in a maximum security prison, I just really don't want to be lethally injected." That's not a very likely scenario.
The other problem with deterrence is that most people who are sentenced to death in America die in prison of natural causes anyway because the appeals process takes so long (more on this later).
Are there ways that the death penalty could be structured to deter crime? Yes. We could use it as a punishment for property crimes. Nobody sane is going to spray paint a wall if he thinks he's gonna get the needle for it. The cost-benefit just isn't there. However, do we really want to execute vandals? Also, LWOP would almost certainly deter vandals just as well.
The Death Penalty Saves Money, and I Don't Want to Pay to Feed and House Scum
This is another common argument that cannot survive deep thought. Again, on the surface, this makes a lot of sense. If someone is in prison for life, why wouldn't that cost more money than killing him (we'll assume for the moment that killing people to save money isn't more than a bit creepy)? The answer is Due Process. In America, we accept the fact that sometimes trials don't go well, and sometimes juries make mistakes (and by "we" I mean everyone but Justice Antonin Scalia). Sometimes prosecutors are corrupt, and sometimes defense attorneys are incompetent, asleep, or drunk during the trial. That is why we allow appeals. Unfortunately, the appeals process is VERY expensive for the taxpayer because almost nobody who is sentenced to death has the money to afford an attorney. The Constitution requires that someone sentenced to death get an attorney (Sixth Amendment) and get appeals, and those appeals will be paid for by the taxpayer.
Why? Because innocent people have been sentenced to death. Hundreds of them. And that only includes those we know of as a result of DNA testing, blatant misconduct, or recanted testimony. Who knows how many people we've killed who were innocent but whose crimes involved no DNA evidence or recanted testimony. Courts are very stingy about overturning convictions. Appeals are the only way to reduce the number of innocents we kill as long as we insist on killing people at all.
Therefore, if you want to make the death penalty cheap, you have to reduce the access to appeals of those sentenced to die, which will indisputably lead to more innocent people being murdered by their own government. Even if you decided to shoot defendants out back immediately after their sentencing (which would maximize the number of innocent people executed), the trial itself often will cost hundreds of thousands of dollars because, again, the State will be paying all of the legal costs, and death cases are more complicated and take much longer than normal trials. It is also important to consider that death trials take plea bargaining off the table because very few people will plead guilty when doing so will get them executed anyway. No matter how guilty you are, if you are facing a death penalty sentence, you might as well roll the dice with the jury and see what happens.
All of this expense might be justified if capital punishment were saving lives, but as I've explained above, it isn't.
I'm a Christian, and My Faith Demands Capital Punishment to Fulfill Justice
No. Jesus (you know, god in human form) had the opportunity to participate in an execution and declined. He told the crowd that anyone who was without sin could go ahead (keep in mind Jesus is the only man who lived without sin according to your religion) and throw the first stone. The Bible specifically calls those who deny their own sin fools. So logically, if you are a Christian you must acknowledge that you are not without sin, and consequently, if you follow Jesus' example and words, you cannot support capital punishment.
Yes, it's true that the Old Testament records that the Jews were told to use capital punishment. You know what else they were told to do? Avoid shellfish and wearing of clothes of mixed fabrics. Jesus trumps Jewish history if you are a Christian. So eat that lobster and stop supporting state-sponsored murder.
Monsters Just Deserve To Die
This one is the hardest to argue with. If you think that the death penalty is right because it is right, your argument is circular (and therefore bad) but not easy to contest. However, even if you think that people sentenced to death are monsters and "deserve" to die in the interest of retributive justice, there are some things you should still consider.
First, juries mess up. The person you think is a "monster" might be innocent. Henry McCollum was on death row in North Carolina for around 30 years, and lots of people thought he was a rapist who brutally killed a young girl (I will spare you the facts of her death because they will ruin your day). However, he was released and pardoned by the very conservative governor of North Carolina, Pat McCrory, because DNA testing later confirmed that another man (already in prison for raping and killing another girl) was almost certainly responsible. Henry is mentally challenged, and the only evidence against him had been a coerced confession. If Henry had been on death row in Texas, a state that prides itself on how fast it murders its own people, he would almost certainly have been killed.
But let's assume that juries always get it right or that you don't care about innocents being killed by the government sworn to protect them because you are just that bloodthirsty (if this is the case, you may have more in common with those you want to execute than you should be comfortable with). A common question asked by pro death penalty people is: what if it were your daughter who was raped and murdered? Well, I'd like to ask a return question. What if it were your daughter who was convicted of murdering two kids during an armed robbery gone bad and was sentenced to die? Would you want your daughter executed?
The core of support for the death penalty is an inability to empathize with our fellow humans. You wouldn't want your kid to be executed because you know her. You understand her complexities. Well, guess what. Every person has complexities, and the majority of people on death row who are guilty of their crimes are not bloodthirsty psychopaths. They are mostly all people who made really awful decisions before their brains were fully formed (meaning they were younger than 25 when they committed their crimes). Many of them grew up in environments that make Hell look like a playground.
So here is my challenge to anyone who supports the death penalty. Write to a death row inmate; not out of prurient interest, but from a desire to know what you are talking about. Learn about him and then decide for yourself. When you see him for who he is, and you are still willing to tell him to his face (or even in a letter) that you think he is scum and deserves to die, then so be it. But I am willing to bet that you, like everyone I know who actually knows what they are talking about on this issue, will decide that people are people, and we shouldn't be putting down our fellow men like rabid dogs because they made mistakes, no matter how terrible those mistakes were. Every person is more than his or her worst moment. And even if you don't believe that, who are you to decide who should live and who should die?
I'm A Conservative Who Believes in Small Government Except When the Government Wants to Kill Someone...
If you don't see why this is a logically incoherent and stupid argument, then I can't help you. No true conservative can possibly support giving the incompetent State the power over life and death. You don't think the feds can pick a solar power company to give subsidies to, but you think they can devise a system that fairly kills people? C'mon.
Closing Argument
Because of the way the death penalty is administered in America, the average juror on a death penalty jury is very likely to also be someone who thought George W. Bush would make a good president or who thinks the Sun revolves around the Earth or who thinks the world is 10,000 years old. Are you really comfortable giving those people the power over life and death? I'm not.
If you support the death penalty, you shouldn't. No matter who you are, it's a bad idea, and below I will explain why. First, I want to establish my own bias. Formerly, I supported the death penalty. Now, I do not. I have worked on capital appeals for the last two summers for my summer internships (I am a law student), and along with the War on Drugs, I believe that capital punishment is the most inhumane and stupid policy our government prosecutes. I should also note that I am not a bleeding heart liberal. I think there are people who deserve to die. The question is, who should make that determination? Below, I will describe different types of people and ideologies. If you'd like, you can skip to the description that most closely fits you and read why you should oppose capital punishment. Maybe, like I was, you are a mix of several different positions, in which case, please read the whole thing. People's lives literally depend on the American public knowing the facts of the death penalty.
The Death Penalty Saves Lives By Deterring Crime
This is the most common canard thrown out by pro-death penalty advocates, and it has a great deal of surface appeal. What I mean by that is that if you only think about it momentarily, it makes sense that threatening people with execution would keep them from committing crimes. Incidentally, this is the horse Nebraska's pro-death penalty people will ride. It's the 'ol "agree with us or you will die" argument, which was also used to justify the Iraq War and the CIA's torture program operated from 2002 until 2008 (if you haven't read the Senate report on their investigation of this program, you should). Here's the problem. The death penalty does not deter crime, and you shouldn't expect it to either.
Capital punishment in the United States is only used for first-degree murder (or in some states, felony murder that is legally equivalent but morally miles apart). It is unconstitutional, as of 2008, to use it in any other circumstances. When someone murders someone else with what the law calls "malice aforethought" (they planned it in advance-ish), that person is not banking on getting caught. This is actually a general problem with deterring crime. It is shocking the number of criminals who don't know a thing about the law. But let's take the example of the totally rational first-degree murderer who is weighing all of his (it is almost always a man) options.
If you commit a crime that is eligible for the death penalty, your options for punishment are going to be death or life without the possibility of parole (LWOP). Most people outside of prison do not care whether or not they serve LWOP or are executed. Why would they? Almost everything I want to do in my life is impossible if I am locked up in prison or if I am dead, so there's little difference to me between the two. In order for capital punishment to deter crime, you would have to have a potential killer who thinks to himself, "I really want to murder my cheating wife, and I don't mind if I spend the rest of my life in a maximum security prison, I just really don't want to be lethally injected." That's not a very likely scenario.
The other problem with deterrence is that most people who are sentenced to death in America die in prison of natural causes anyway because the appeals process takes so long (more on this later).
Are there ways that the death penalty could be structured to deter crime? Yes. We could use it as a punishment for property crimes. Nobody sane is going to spray paint a wall if he thinks he's gonna get the needle for it. The cost-benefit just isn't there. However, do we really want to execute vandals? Also, LWOP would almost certainly deter vandals just as well.
The Death Penalty Saves Money, and I Don't Want to Pay to Feed and House Scum
This is another common argument that cannot survive deep thought. Again, on the surface, this makes a lot of sense. If someone is in prison for life, why wouldn't that cost more money than killing him (we'll assume for the moment that killing people to save money isn't more than a bit creepy)? The answer is Due Process. In America, we accept the fact that sometimes trials don't go well, and sometimes juries make mistakes (and by "we" I mean everyone but Justice Antonin Scalia). Sometimes prosecutors are corrupt, and sometimes defense attorneys are incompetent, asleep, or drunk during the trial. That is why we allow appeals. Unfortunately, the appeals process is VERY expensive for the taxpayer because almost nobody who is sentenced to death has the money to afford an attorney. The Constitution requires that someone sentenced to death get an attorney (Sixth Amendment) and get appeals, and those appeals will be paid for by the taxpayer.
Why? Because innocent people have been sentenced to death. Hundreds of them. And that only includes those we know of as a result of DNA testing, blatant misconduct, or recanted testimony. Who knows how many people we've killed who were innocent but whose crimes involved no DNA evidence or recanted testimony. Courts are very stingy about overturning convictions. Appeals are the only way to reduce the number of innocents we kill as long as we insist on killing people at all.
Therefore, if you want to make the death penalty cheap, you have to reduce the access to appeals of those sentenced to die, which will indisputably lead to more innocent people being murdered by their own government. Even if you decided to shoot defendants out back immediately after their sentencing (which would maximize the number of innocent people executed), the trial itself often will cost hundreds of thousands of dollars because, again, the State will be paying all of the legal costs, and death cases are more complicated and take much longer than normal trials. It is also important to consider that death trials take plea bargaining off the table because very few people will plead guilty when doing so will get them executed anyway. No matter how guilty you are, if you are facing a death penalty sentence, you might as well roll the dice with the jury and see what happens.
All of this expense might be justified if capital punishment were saving lives, but as I've explained above, it isn't.
I'm a Christian, and My Faith Demands Capital Punishment to Fulfill Justice
No. Jesus (you know, god in human form) had the opportunity to participate in an execution and declined. He told the crowd that anyone who was without sin could go ahead (keep in mind Jesus is the only man who lived without sin according to your religion) and throw the first stone. The Bible specifically calls those who deny their own sin fools. So logically, if you are a Christian you must acknowledge that you are not without sin, and consequently, if you follow Jesus' example and words, you cannot support capital punishment.
Yes, it's true that the Old Testament records that the Jews were told to use capital punishment. You know what else they were told to do? Avoid shellfish and wearing of clothes of mixed fabrics. Jesus trumps Jewish history if you are a Christian. So eat that lobster and stop supporting state-sponsored murder.
Monsters Just Deserve To Die
This one is the hardest to argue with. If you think that the death penalty is right because it is right, your argument is circular (and therefore bad) but not easy to contest. However, even if you think that people sentenced to death are monsters and "deserve" to die in the interest of retributive justice, there are some things you should still consider.
First, juries mess up. The person you think is a "monster" might be innocent. Henry McCollum was on death row in North Carolina for around 30 years, and lots of people thought he was a rapist who brutally killed a young girl (I will spare you the facts of her death because they will ruin your day). However, he was released and pardoned by the very conservative governor of North Carolina, Pat McCrory, because DNA testing later confirmed that another man (already in prison for raping and killing another girl) was almost certainly responsible. Henry is mentally challenged, and the only evidence against him had been a coerced confession. If Henry had been on death row in Texas, a state that prides itself on how fast it murders its own people, he would almost certainly have been killed.
But let's assume that juries always get it right or that you don't care about innocents being killed by the government sworn to protect them because you are just that bloodthirsty (if this is the case, you may have more in common with those you want to execute than you should be comfortable with). A common question asked by pro death penalty people is: what if it were your daughter who was raped and murdered? Well, I'd like to ask a return question. What if it were your daughter who was convicted of murdering two kids during an armed robbery gone bad and was sentenced to die? Would you want your daughter executed?
The core of support for the death penalty is an inability to empathize with our fellow humans. You wouldn't want your kid to be executed because you know her. You understand her complexities. Well, guess what. Every person has complexities, and the majority of people on death row who are guilty of their crimes are not bloodthirsty psychopaths. They are mostly all people who made really awful decisions before their brains were fully formed (meaning they were younger than 25 when they committed their crimes). Many of them grew up in environments that make Hell look like a playground.
So here is my challenge to anyone who supports the death penalty. Write to a death row inmate; not out of prurient interest, but from a desire to know what you are talking about. Learn about him and then decide for yourself. When you see him for who he is, and you are still willing to tell him to his face (or even in a letter) that you think he is scum and deserves to die, then so be it. But I am willing to bet that you, like everyone I know who actually knows what they are talking about on this issue, will decide that people are people, and we shouldn't be putting down our fellow men like rabid dogs because they made mistakes, no matter how terrible those mistakes were. Every person is more than his or her worst moment. And even if you don't believe that, who are you to decide who should live and who should die?
I'm A Conservative Who Believes in Small Government Except When the Government Wants to Kill Someone...
If you don't see why this is a logically incoherent and stupid argument, then I can't help you. No true conservative can possibly support giving the incompetent State the power over life and death. You don't think the feds can pick a solar power company to give subsidies to, but you think they can devise a system that fairly kills people? C'mon.
Closing Argument
Because of the way the death penalty is administered in America, the average juror on a death penalty jury is very likely to also be someone who thought George W. Bush would make a good president or who thinks the Sun revolves around the Earth or who thinks the world is 10,000 years old. Are you really comfortable giving those people the power over life and death? I'm not.
Monday, July 6, 2015
We Could Have Had Gay Marriage Without Shredding the Constitution
When the Obergefell ruling came out announcing that gay marriage would be legal across the United States, there was much rejoicing. Initially, I was amongst those who were unconditionally pleased with the ruling. However, I read the opinions, and I found Chief Justice Roberts' opinion to be unassailable. So I changed my mind. I explained why here. I tried to make it clear that my problem with the decision was not the policy behind it (I am 100% in favor of allowing same-sex marriages) but rather the mangling of the Constitution that occurred in the majority's attempt to implement that policy. So I think it's only sensible for me to explain how we could have achieved same-sex marriage nationwide without making a mockery of the Constitution in the process and opening the door for all sorts of bad policy to be enforced in the future through the Due Process clause of the 14th Amendment.
Prior to Obergefell, the overwhelming momentum was towards redefining marriage to allow any two people to marry. Even Iowa had same-sex marriage. Iowa! The land of corn and ... musical theater, apparently. The voters who were against same-sex marriage were old and getting older by the day (still are). In short, gay marriage was going to win a war of attrition. I taught high school government classes before I started law school, and I told the first class of seniors that I ever had (in 2007) that they had better make their peace with same-sex marriage if they hadn't already because it was inevitable. At the time, only Massachusetts allowed same-sex couples to marry.
The rapid expansion of same-sex marriage to more than ten states within a few years surprised many people, myself included. So for me, the clear method of nationalizing gay marriage was to keep pushing through laws to legalize marriage for any two people. It was working. There was no reason to stop. Hooray democracy! I don't think there is any question that within ten years from now, nearly every state would have had legal same-sex marriages protected in their constitutions or by statute.
The other option, which could have been pursued concurrently, would have been to amend the Constitution to create marriage as a freedom that must be given to any two people not related by blood and of the age of consent. I know that amendments are not easy to get, but again, people of my generation and younger are overwhelmingly in favor of same-sex marriage. It was only a matter of time before we could have gotten this. And really, if we hadn't and Alabama and Mississippi were holding out until the end, would that really have been so horrible? If you are gay, what the hell are you doing in Mississippi anyway?
And that's how I would have done it. Why? First, because it's legitimate. Thanks to the Supreme Court, we've got another Roe v. Wade style mess on our hands. People against gay marriage will feel (rightly) that their voice was ignored and over-ridden by one person, Anthony Kennedy. That tends to make people resentful and bunker down rather than opening their minds or at least producing acquiescence. Don't believe me? Look at how people have reacted to this decision. Presidential candidates are talking about overthrowing the Supreme Court in one way or another. Texas is telling county clerks that it's okay not to issue marriage licenses to gays or anyone else.
Do you remember anyone in Iowa saying that the State of Iowa was corrupt and needed to be put in its place after they voted to legalize gay marriage? I don't. There was no uproar like we are seeing now. And it's not like Iowa doesn't have any goofball homophobic conservatives. You would have thought that everyone in Iowa just woke up one morning wearing rainbow pajamas and feasting on Lucky Charms (but only eating the rainbow marshmallows) and singing the Rent soundtrack from the top of their collective lungs. People have a way of accepting democratic decisions. The Supreme Court, however, is not democratic.
Second, my way would not have opened up the door for judicial idiocy. There's no intelligent argument that the people who wrote the 14th Amendment wanted it to protect gay marriage. That's absurd. So now, what else can we make up that the 14th Amendment protects? What about the right to pay your workers whatever you want? What about the right to polygamist marriage? What about the right to listen to any music you desire regardless of the copyright protection? It's just a silly idea to have the Supreme Court manufacture what the Constitution says because although you might have liked their bullshit this time, the next time they do it, the bullshit might not smell so nice. The era of Lochner was supposed to be behind the Court. Well, now it's back. And we could have done right by gay Americans without re-animating that corpse. I hope I am wrong, but given that polygamists are already heading to city halls to get married, I don't think I am.
NOTE: It has been pointed out to me that Iowa achieved marriage equality through a unanimous decision of the Iowa Supreme Court. I forgot and should have looked that up. My point is the same. Any state that voted for gay marriage has conservatives, and it hasn't broken apart. Also, a unanimous decision of a state's high court is still better and more democratic than Anthony Kennedy unilaterally making the choice for the entire country (Iowa has retention elections for their justices). Shout out to Chris Bagley for the correction :).
Prior to Obergefell, the overwhelming momentum was towards redefining marriage to allow any two people to marry. Even Iowa had same-sex marriage. Iowa! The land of corn and ... musical theater, apparently. The voters who were against same-sex marriage were old and getting older by the day (still are). In short, gay marriage was going to win a war of attrition. I taught high school government classes before I started law school, and I told the first class of seniors that I ever had (in 2007) that they had better make their peace with same-sex marriage if they hadn't already because it was inevitable. At the time, only Massachusetts allowed same-sex couples to marry.
The rapid expansion of same-sex marriage to more than ten states within a few years surprised many people, myself included. So for me, the clear method of nationalizing gay marriage was to keep pushing through laws to legalize marriage for any two people. It was working. There was no reason to stop. Hooray democracy! I don't think there is any question that within ten years from now, nearly every state would have had legal same-sex marriages protected in their constitutions or by statute.
The other option, which could have been pursued concurrently, would have been to amend the Constitution to create marriage as a freedom that must be given to any two people not related by blood and of the age of consent. I know that amendments are not easy to get, but again, people of my generation and younger are overwhelmingly in favor of same-sex marriage. It was only a matter of time before we could have gotten this. And really, if we hadn't and Alabama and Mississippi were holding out until the end, would that really have been so horrible? If you are gay, what the hell are you doing in Mississippi anyway?
And that's how I would have done it. Why? First, because it's legitimate. Thanks to the Supreme Court, we've got another Roe v. Wade style mess on our hands. People against gay marriage will feel (rightly) that their voice was ignored and over-ridden by one person, Anthony Kennedy. That tends to make people resentful and bunker down rather than opening their minds or at least producing acquiescence. Don't believe me? Look at how people have reacted to this decision. Presidential candidates are talking about overthrowing the Supreme Court in one way or another. Texas is telling county clerks that it's okay not to issue marriage licenses to gays or anyone else.
Do you remember anyone in Iowa saying that the State of Iowa was corrupt and needed to be put in its place after they voted to legalize gay marriage? I don't. There was no uproar like we are seeing now. And it's not like Iowa doesn't have any goofball homophobic conservatives. You would have thought that everyone in Iowa just woke up one morning wearing rainbow pajamas and feasting on Lucky Charms (but only eating the rainbow marshmallows) and singing the Rent soundtrack from the top of their collective lungs. People have a way of accepting democratic decisions. The Supreme Court, however, is not democratic.
Second, my way would not have opened up the door for judicial idiocy. There's no intelligent argument that the people who wrote the 14th Amendment wanted it to protect gay marriage. That's absurd. So now, what else can we make up that the 14th Amendment protects? What about the right to pay your workers whatever you want? What about the right to polygamist marriage? What about the right to listen to any music you desire regardless of the copyright protection? It's just a silly idea to have the Supreme Court manufacture what the Constitution says because although you might have liked their bullshit this time, the next time they do it, the bullshit might not smell so nice. The era of Lochner was supposed to be behind the Court. Well, now it's back. And we could have done right by gay Americans without re-animating that corpse. I hope I am wrong, but given that polygamists are already heading to city halls to get married, I don't think I am.
NOTE: It has been pointed out to me that Iowa achieved marriage equality through a unanimous decision of the Iowa Supreme Court. I forgot and should have looked that up. My point is the same. Any state that voted for gay marriage has conservatives, and it hasn't broken apart. Also, a unanimous decision of a state's high court is still better and more democratic than Anthony Kennedy unilaterally making the choice for the entire country (Iowa has retention elections for their justices). Shout out to Chris Bagley for the correction :).
Saturday, July 4, 2015
Why You Should Hug A Lawyer on Independence Day
Today is July 4th. Happy Birthday, America! Because America is one of the most militaristic countries on the planet, if you pay attention to the media at all today, you will no doubt see that America will be celebrated for our freedoms (rightly so), and the military will be given credit for those freedoms (wrongly so). The United States does have some truly unique freedoms, particularly the First Amendment protections for freedom of expression and our criminal procedure protections. However, does it really make any sense to give credit for "freedom" to the military? Not really. Here's why.
The reason why people constantly thank the military for our freedom is because most Americans have this G.I. Joe view of the armed forces. They seem to imagine that there is constantly an evil force in the world (Cobra?) that is just a moment away from invading our shores and crushing our freedoms. If it were not for the American military standing vigilant guard and fighting them off, we'd all be speaking another language and working in slave labor camps (or something like that).
The idea that America is in danger of foreign occupation is nonsense. The closest the United States of America ever came to being conquered by a foreign power was in the War of 1812. The British whooped our asses, burned our capitol, and then signed a truce and went home. Why? Because you can't occupy the United States. The most powerful military of the day couldn't do it when America was a military midget (alliteration trumps political correctness on this blog). It's too big. Period.
Those who advocate the military hero worship will usually point to World War Two as the defining freedom fight. Certainly, the Second World War seems like the most justifiable and noble of America's many military conflicts, but did it have anything to do with America's freedoms? No. Japan attacked Pearl Harbor, which at the time was not part of America, and had no intention or capability of invading the United States. The Japanese wanted to cripple our Navy so that they could secure there interests in Asia unmolested and mitigate the oil embargo we were enforcing against them. The Nazis did not seem to have any interest in us until we declared war on their ally, Japan, but even if they had wanted to conquer the world, Germany couldn't get across the English Channel. How exactly were they going to get across the Atlantic Ocean and conquer us?
Now, it's true that many Americans' rights were severely infringed upon during World War Two, but those Americans were the people of Japanese and German descent who were imprisoned without Due Process in violation of basically every freedom we claim to hold dear. Who violated those freedoms? The military. One of the most amusing arguments made for the military-as-liberty-defenders side of the debate is that our men and women are fighting overseas to protect our liberty at home. Yea, I that's probably true, but let's assume we get hit by a big terrorist attack (which statistically speaking is inevitable regardless of how many Pakistani peasants we bomb). Whose freedom does that take away? Nobody's. We can all continue to live our lives the same way we did before the attack. Terrorists aren't trying to conquer the government and enslave us. They can't. The only threat that terrorists pose to our liberties is that they will succeed in an attack, and OUR government will respond by taking away OUR freedoms. And rest assured, the military will do nothing to stop that when it happens. So the military is fighting overseas in a futile effort to protect us from our own government's overreaction? That's interesting logic.
And this brings me to my most important point. Whenever American freedoms have been threatened, it has been because our own government wanted to take them away from us. No foreign power violated the dignity and liberty of Japanese Americans in World War Two. We did that. No foreign power enslaved black people in America. We did that. No foreign power forces us to take off all our clothes and get groped just to fly on an airplane. We do that. America has a higher percentage of its citizens in prison than any other country on Earth (more bitching about that here). We do that. No foreign power is depriving our citizens of their liberty on such a massive scale. Our government is doing it to us, and the military is either actively helping or doing nothing to oppose it.
The fact is, if you are an American citizen and your freedoms have been taken away, there is almost no chance that any man or woman in a military uniform has done anything to help you. The military is the enforcement arm of the State, and the State has the most power to deprive people of their freedom. Military men and women aren't bad people. They are just doing their jobs. But the job of the military is not to protect freedom. Their job is to be the instruments of government policy. Sometimes that policy might promote the liberty interests of American citizens, but most of the time it will not.
So who do you owe for all of your freedoms? Lawyers. Yes. The people you make jokes about murdering on a genocidal scale and whose vilification has become a meme in our popular culture are the only people standing between you and losing your freedoms.
First, there is the literal defense of liberty. If you are ever suspected of a crime, the agents of the State will try to lock you up whether you are guilty or not. The ONLY person who will be fighting to keep that from happening will be your lawyer. The supposedly liberty-loving American public will always assume you are guilty and will clamor for your incarceration or death (assuming your suspected offense is high profile). No member of the US military will lift a finger to preserve your freedom. In fact, if you are suspected of being a terrorist, the military will want to torture you and imprison you without a trial in lovely Guantanamo Bay (or they may just predator drone you). Your lawyer will be the only person trying to help you. If you are a murdering scumbag trying to take the life and liberty away from others, the person who will see you brought to justice is, you guessed it, a lawyer.
Second, there's the preservation of liberties for everyone. Yes, we have a First Amendment that protects our freedoms to associate and express ourselves, but the people who insist that the government actually abide by the First Amendment are lawyers. When the government has passed and enforced laws criminalizing certain political speech, how many American military members stepped in to defend liberty? None. Why are those laws now unconstitutional and off the books? Why does the First Amendment now apply to every state in the Union? Lawyers. If you try to assemble and protest a government policy, who will be locking you up or spraying you with gas? The military (or their domestic arm, the police). Who will fight for your rights to peaceably assemble? Lawyers.
You have the right not to be beaten until you confess and then have that confession used in court against you. Now. But for most of American history, such behavior was practiced in many states throughout the country. Did a Marine ever do anything to stop it? No. Lawyers stopped it and continue to do so.
My point in making this post is not to demean the military. It's to uplift the people who really do defend and define the liberties that we all enjoy. The men and women who fight in the armed services are not to be blamed for not helping out people whose liberty is threatened. That is not their job. There are enough holidays where we worship the military. Let's give this holiday to the people who wrote the Declaration of Independence and defend liberty every day. To the lawyers! Enjoy your Independence Day.
The reason why people constantly thank the military for our freedom is because most Americans have this G.I. Joe view of the armed forces. They seem to imagine that there is constantly an evil force in the world (Cobra?) that is just a moment away from invading our shores and crushing our freedoms. If it were not for the American military standing vigilant guard and fighting them off, we'd all be speaking another language and working in slave labor camps (or something like that).
The idea that America is in danger of foreign occupation is nonsense. The closest the United States of America ever came to being conquered by a foreign power was in the War of 1812. The British whooped our asses, burned our capitol, and then signed a truce and went home. Why? Because you can't occupy the United States. The most powerful military of the day couldn't do it when America was a military midget (alliteration trumps political correctness on this blog). It's too big. Period.
Those who advocate the military hero worship will usually point to World War Two as the defining freedom fight. Certainly, the Second World War seems like the most justifiable and noble of America's many military conflicts, but did it have anything to do with America's freedoms? No. Japan attacked Pearl Harbor, which at the time was not part of America, and had no intention or capability of invading the United States. The Japanese wanted to cripple our Navy so that they could secure there interests in Asia unmolested and mitigate the oil embargo we were enforcing against them. The Nazis did not seem to have any interest in us until we declared war on their ally, Japan, but even if they had wanted to conquer the world, Germany couldn't get across the English Channel. How exactly were they going to get across the Atlantic Ocean and conquer us?
Now, it's true that many Americans' rights were severely infringed upon during World War Two, but those Americans were the people of Japanese and German descent who were imprisoned without Due Process in violation of basically every freedom we claim to hold dear. Who violated those freedoms? The military. One of the most amusing arguments made for the military-as-liberty-defenders side of the debate is that our men and women are fighting overseas to protect our liberty at home. Yea, I that's probably true, but let's assume we get hit by a big terrorist attack (which statistically speaking is inevitable regardless of how many Pakistani peasants we bomb). Whose freedom does that take away? Nobody's. We can all continue to live our lives the same way we did before the attack. Terrorists aren't trying to conquer the government and enslave us. They can't. The only threat that terrorists pose to our liberties is that they will succeed in an attack, and OUR government will respond by taking away OUR freedoms. And rest assured, the military will do nothing to stop that when it happens. So the military is fighting overseas in a futile effort to protect us from our own government's overreaction? That's interesting logic.
And this brings me to my most important point. Whenever American freedoms have been threatened, it has been because our own government wanted to take them away from us. No foreign power violated the dignity and liberty of Japanese Americans in World War Two. We did that. No foreign power enslaved black people in America. We did that. No foreign power forces us to take off all our clothes and get groped just to fly on an airplane. We do that. America has a higher percentage of its citizens in prison than any other country on Earth (more bitching about that here). We do that. No foreign power is depriving our citizens of their liberty on such a massive scale. Our government is doing it to us, and the military is either actively helping or doing nothing to oppose it.
The fact is, if you are an American citizen and your freedoms have been taken away, there is almost no chance that any man or woman in a military uniform has done anything to help you. The military is the enforcement arm of the State, and the State has the most power to deprive people of their freedom. Military men and women aren't bad people. They are just doing their jobs. But the job of the military is not to protect freedom. Their job is to be the instruments of government policy. Sometimes that policy might promote the liberty interests of American citizens, but most of the time it will not.
So who do you owe for all of your freedoms? Lawyers. Yes. The people you make jokes about murdering on a genocidal scale and whose vilification has become a meme in our popular culture are the only people standing between you and losing your freedoms.
First, there is the literal defense of liberty. If you are ever suspected of a crime, the agents of the State will try to lock you up whether you are guilty or not. The ONLY person who will be fighting to keep that from happening will be your lawyer. The supposedly liberty-loving American public will always assume you are guilty and will clamor for your incarceration or death (assuming your suspected offense is high profile). No member of the US military will lift a finger to preserve your freedom. In fact, if you are suspected of being a terrorist, the military will want to torture you and imprison you without a trial in lovely Guantanamo Bay (or they may just predator drone you). Your lawyer will be the only person trying to help you. If you are a murdering scumbag trying to take the life and liberty away from others, the person who will see you brought to justice is, you guessed it, a lawyer.
Second, there's the preservation of liberties for everyone. Yes, we have a First Amendment that protects our freedoms to associate and express ourselves, but the people who insist that the government actually abide by the First Amendment are lawyers. When the government has passed and enforced laws criminalizing certain political speech, how many American military members stepped in to defend liberty? None. Why are those laws now unconstitutional and off the books? Why does the First Amendment now apply to every state in the Union? Lawyers. If you try to assemble and protest a government policy, who will be locking you up or spraying you with gas? The military (or their domestic arm, the police). Who will fight for your rights to peaceably assemble? Lawyers.
You have the right not to be beaten until you confess and then have that confession used in court against you. Now. But for most of American history, such behavior was practiced in many states throughout the country. Did a Marine ever do anything to stop it? No. Lawyers stopped it and continue to do so.
My point in making this post is not to demean the military. It's to uplift the people who really do defend and define the liberties that we all enjoy. The men and women who fight in the armed services are not to be blamed for not helping out people whose liberty is threatened. That is not their job. There are enough holidays where we worship the military. Let's give this holiday to the people who wrote the Declaration of Independence and defend liberty every day. To the lawyers! Enjoy your Independence Day.
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