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.
Tuesday, June 30, 2015
"Legislature": I Do Not Think That Word Means What You (And Everyone Else) Think It Means
In the battle of the English language versus the Supreme Court, the English language just took a big hit. In the wake of the kind-hearted but legally bankrupt decision in Obergefell (which I discuss in depth here), the Supreme Court ruled in Arizona State Legislature v. Arizona Independent Redistricting Commission that it is Constitutional for an independent commission to draw the district boundaries for Arizona's election of members to the US House of Representatives. In the interest of full disclosure, as was the case in Obergefell, I LOVE this result from a policy perspective. Gerrymandering is awful and undemocratic. Far too many "safe districts" have been created which lead to a large number of idiots being sent to Washington whose jobs do not depend on saying rational or intelligent things or passing rational or intelligent laws. However, once again, the Supreme Court seems to be forgetting its job. The Court is not supposed to tell us what the law SHOULD be. Rather, the Court's job is to tell us what the law IS.
No, we should not. And the reason we should not is because when an educated and respected justice such as Justice Ginsberg writes an opinion that is based on an apparent misunderstanding of the word "legislature" that would result in lost points on any high school government test covering the subject, it creates a cynicism about the Court. Assuming we aren't putting people on our highest court who are just stupid, it leaves the impression with people that the Court is really just another legislative branch staffed by politicians who are unelected and imposing their own policy views on the country. Free societies must be based on the rule of law, and this charade is not the rule of law. It's the rule of five justices who happen to be liberal (ish) and do not want the Arizona Republican Party to go back to mangling the congressional districts in that state. At some point, people are going to get fed up and just ignore the Court. The Court's authority is like the value of a fiat currency. It only exists if everyone agrees that it exists. The Court must stop this political nonsense and interpret the law as it is, not as some of the justices want it to be.
I'm becoming a huge fan of Justice Roberts, so once again I will let his dissenting opinion in Arizona do the talking, and I will provide explanation, elaboration, and commentary.
Just over a century ago, Arizona became the second State in the Union to ratify the Seventeenth Amendment. That Amendment transferred power to choose United States Senators from “the Legislature” of each State, Art. I, §3, to “the people thereof.” The Amendment resulted from an arduous, decades-long campaign in which reformers across the country worked hard to garner approval from Congress and three-quarters of the States.
What chumps! Didn’t they realize that all they had to do was interpret the constitutional term “the Legislature” to mean “the people”? The Court today performs just such a magic trick with the Elections Clause. Art. I, §4. That Clause vests congressional redistricting authority in “the Legislature” of each State. An Arizona ballot initiative transferred that authority from “the Legislature” to an “Independent Redistricting Commission.” The majority approves this deliberate constitutional evasion by doing what the proponents of the Seventeenth Amendment dared not: revising “the Legislature” to mean “the people.”Wait. What?! There's no way this case is that simple and silly. Right? Wrong. This case is that simple and silly. The majority opinion in this case, written by Justice Ginsburg, argues that the word "legislature" is not clear enough, and that in this context it can include the people of the state of Arizona (who created this redistricting commission through ballot initiative). This is too much. Again, I hate gerrymandering, but you cannot (and maintain any judicial integrity) just make up definitions of words simply to get to the political end that you desire. Well, if you are the majority in this case, you can.
The majority begins by discussing policy. I begin with the Constitution. The Elections Clause provides: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” Art. I, §4, cl. 1.So there you have it. Plain as day. If you go up to a person on the street right now and ask what the legislature is, you're actually likely to get a blank stare because Americans tend to be idiots. However, if you only look at the set of people who give a coherent response (like they know it has something to do with politics) I can promise you not one person is going to say "the legislature is all of the people in the state."
The relevant question in this case is how to define “the Legislature” under the Elections Clause. The majority opinion does not seriously turn to that question until page 24, and even then it fails to provide a coherent answer. The Court seems to conclude, based largely on its understanding of the “history and purpose” of the Elections Clause, ante, at 24, that “the Legislature” encompasses any entity in a State that exercises legislative power. That circular definition lacks any basis in the text of the Constitution or any other relevant legal source.Justice Ginsburg is essentially arguing that because an entity exercised legislative power, it is a legislature. How? What? Huh? Under that reasoning, if the Supreme Court of Arizona gathers together and decides to write a law lowering the drinking age in Arizona to 3 (just for fun), and then they vote on the law and declare it passed, when someone inevitably challenges the lack of authority vested in the court to do such a thing, they only have to argue, "well, we exercised a legislative function," and now they are a legislature. This is so goofy.
The majority’s textual analysis consists, in its entirety, of one paragraph citing founding era dictionaries. The majority points to various dictionaries that follow Samuel Johnson’s definition of “legislature” as the “power that makes laws.” Ibid. (internal quotation marks omitted).The notion that this definition corresponds to the entire population of a State is strained to begin with, and largely discredited by the majority’s own admission that “[d]irect lawmaking by the people was virtually unknown when the Constitution of 1787 was drafted.”It's also worth noting at this point that the Founders HATED the idea of direct democracy. Our entire system of government is designed to limit the power of the people because men like James Madison considered the average person to be too stupid and prone to "passions" to make intelligent governing choices. We didn't directly elect Senators prior to 1913 for EXACTLY that reason. The idea was, "well even if the idiot citizenry votes in a bunch of morons (see Bachmann, Michele, see also Gohmert, Louie), the States can at least fill up the Senate with smart people and provide a check on the clown car." (As a side note, we now directly elect Senators, and we have scholars like Jim Inhofe tossing snowballs in the Senate chamber as evidence that climate change is a hoax, so it would appear that Madison and the boys were on to something.) In any event, there is absolutely no way possible to conceive that when they wrote "Legislature" into the Constitution that one of the possible meanings was, "the people of the State (who we don't trust as far as we can throw them)."
The Federalist Papers are replete with references to “legislatures” that can only be understood as referring to representative institutions. E.g., The Federalist No. 27, pp. 174–175 (C. Rossiter ed.1961) (A. Hamilton) (describing “the State legislatures” as“select bodies of men”); id., No. 60, at 368 (contrasting “the State legislatures” with “the people”). Noah Webster’s heralded American Dictionary of the English Language defines “legislature” as “[t]he body of men in a state or kingdom, invested with power to make and repeal laws.”2 An American Dictionary of the English Language (1828). It continues, “The legislatures of most of the states in America . . . consist of two houses or branches.”Yea. I don't know if Justice Ginsberg is easily embarrassed, but this really ought to do the trick.
I could go on, but the Court has said this before. As we put it nearly a century ago, “Legislature” was “not a term of uncertain meaning when incorporated into the Constitution.”I'll go one better. "Legislature" is not a term of uncertain meaning EVER. Everybody who is educated enough to have an opinion we should value knows what that word means. It's actually difficult to come up with many words whose meaning is more certain than that of "legislature."
The Commission had no answer to this point. See Tr. of Oral Arg. 42 (JUSTICE ALITO: “Is there any other provision where legislature means anything other than the conventional meaning?” Appellee: “I don’t know the answer to that question.”).See? I told you. As a side note, how the hell are you, as an attorney arguing this case, not prepared for that question. You have to know someone is going to ask you that. At least make up something.
The people of Arizona have concerns about the process of congressional redistricting in their State. For better or worse, the Elections Clause of the Constitution does not allow them to address those concerns by displacing their legislature. But it does allow them to seek relief from Congress, which can make or alter the regulations prescribed by the legislature. And the Constitution gives them another means of change. They can follow the leadof the reformers who won passage of the Seventeenth Amendment. Indeed, several constitutional amendments over the past century have involved modifications of theelectoral process. Amdts. 19, 22, 24, 26. Unfortunately,today’s decision will only discourage this democratic method of change. Why go through the hassle of writing a new provision into the Constitution when it is so mucheasier to write an old one out? I respectfully dissent.I close with this portion of the opinion because many people will ask of this case as they did in Obergefell, "who cares?". The result is a good one. Arizona will be less gerrymandered, and should we not just celebrate that.
No, we should not. And the reason we should not is because when an educated and respected justice such as Justice Ginsberg writes an opinion that is based on an apparent misunderstanding of the word "legislature" that would result in lost points on any high school government test covering the subject, it creates a cynicism about the Court. Assuming we aren't putting people on our highest court who are just stupid, it leaves the impression with people that the Court is really just another legislative branch staffed by politicians who are unelected and imposing their own policy views on the country. Free societies must be based on the rule of law, and this charade is not the rule of law. It's the rule of five justices who happen to be liberal (ish) and do not want the Arizona Republican Party to go back to mangling the congressional districts in that state. At some point, people are going to get fed up and just ignore the Court. The Court's authority is like the value of a fiat currency. It only exists if everyone agrees that it exists. The Court must stop this political nonsense and interpret the law as it is, not as some of the justices want it to be.
Saturday, June 27, 2015
Love Wins, Law Loses
I want to address the gay marriage Supreme Court decision in Obergefell v. Hodges, which you can read in its entirety here. I highly recommend reading the majority opinion and Chief Justice Roberts' dissent because I think that gives you a good sense of how Constitutional law actually works. The law is not as easy as, "this is the right thing so we should do it." Theoretically, the law is supposed to provide the rules that we all agree to follow. If you don't like them, then you have to change them. In this case, as much as I support gay marriage (and have for years), I have come to the conclusion that Justice Roberts is correct on the law. And this matters. We live in a democracy. Justice Kennedy (who has also decided that money doesn't corrupt people) just decided a sweeping change to social policy for the entire country of over 300 million people. I like his choice, but that doesn't mean it was the right choice. Here's why. (NOTE: All block quotes are from the dissent of Chief Justice John Roberts.)
Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition.Many liberal pundits have decried the dissenters as homophobes. That may well be true for Justice Thomas (although his writing in Lawrence v. Texas where he called anti-sodomy laws "silly" casts doubt on that), and Justice Scalia (for whom it is almost certainly true), but Justice Roberts makes clear from the start that he doesn't necessarily disagree with extending marriage rights to gay people. It's the method that he takes issue with. And you should as well.
Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening. Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.You cannot intelligently argue with this. If you want someone to hate change, force it on them. It's that simple. The clear tide of history was against homophobia. We did not need the Supreme Court to step in and make up law to get there. Other than fundamentalist Christians, I have no friends under the age of 35 who are opposed to same-sex marriage. Gay people were going to be able to marry nationwide within five or ten years. Ok, maybe not in Alabama, but who wants to live there anyway?
Petitioners and their amici base their arguments on the “right to marry” and the imperative of “marriage equality.” There is no serious dispute that, under our precedents, the Constitution protects a right to marry and requires States to apply their marriage laws equally. The real question in these cases is what constitutes “marriage,” or—more precisely—who decides what constitutes “marriage”?Here is the crucial point that most laypeople (and many not so laypeople) are struggling with. No state was excluding people from marrying because they were gay. Gay people were trying to do something that was not called "marriage." That seems a semantic difference, but legally it is very important. In Loving v. Virginia, Virginia had a law that prevented white people from marrying non-white people (it did not ban interracial marriage between minority groups). That law said that people wanting to get married could not if they looked a certain way. It did NOT define marriage as between one white person and another white person. Indeed, minorities could marry as well and legally had a much greater diversity in choices (anything but white people). The challenged law in Obergefell said that if you are two men, your union is not a marriage. No two men or two women could get married just as no man is allowed to use a woman's bathroom (very few people would consider that unconstitutional even though women's bathrooms are invariably cleaner, smell better, and are more likely to feature potted plants). We are not talking about gay people living together (as Kennedy's "living in loneliness" nonsense implies) or having sex (that was decided in Lawrence v. Texas, another Kennedy opinion). Prior to this decision, gay people could do whatever they wanted together except marry another man. I'm straight, and I couldn't marry another man either though.
As the majority notes, some aspects of marriage have changed over time. Arranged marriages have largely given way to pairings based on romantic love. States have replaced coverture, the doctrine by which a married man and woman became a single legal entity, with laws that respect each participant’s separate status. Racial restrictions on marriage, which “arose as an incident to slavery” to promote “White Supremacy,” were repealed by many States and ultimately struck down by this Court. 8 OBERGEFELL v. HODGES ROBERTS, C. J., dissenting Loving, 388 U. S., at 6–7. The majority observes that these developments “were not mere superficial changes” in marriage, but rather “worked deep transformations in its structure.” Ante, at 6–7. They did not, however, work any transformation in the core structure of marriage as the union between a man and a woman. If you had asked a person on the street how marriage was defined, no one would ever have said, “Marriage is the union of a man and a woman, where the woman is subject to coverture.” The majority may be right that the “history of marriage is one of both continuity and change,” but the core meaning of marriage has endured. Ante, at 6.This is true.
The need for restraint in administering the strong medicine of substantive due process is a lesson this Court has learned the hard way. The Court first applied substantive due process to strike down a statute in Dred Scott v. Sandford, 19 How. 393 (1857). There the Court invalidated the Missouri Compromise on the ground that legislation restricting the institution of slavery violated the implied rights of slaveholders. The Court relied on its own conception of liberty and property in doing so. It asserted that “an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States . . . could hardly be dignified with the name of due process of law.” Id., at 450.At this point, the constitutional law gets really thick, and if you aren't a law student, lawyer, or legal scholar, you probably cannot fully understand what Justice Roberts is talking about here. The simplest explanation I can give is that our Constitution is a poorly drafted document that is loaded with ambiguities. One consequence of that is that the Court has to flesh out what phrases like Due Process mean because the people who wrote it were not at all specific. The danger with Due Process is that can allow Supreme Court justices to make up law, and sometimes you are going to like that manufactured law. Other times you aren't. That's why we have representative government though. At least if I don't like a law, I can try to change it. Once the Supreme Court makes something Constitutional, it's very hard to change (sorry Mike Huckabee). The Dred Scott decision was overruled by the most devastating war in American history. So to prevent the Court from making up law as it goes, the Due Process Clause is only supposed to be deployed when some fundamental right rooted in the rest of the Constitution (like the right to a fair trial) or in our "traditions" is at stake. Neither the right to own a human being as property nor the right for one man to marry another man are rooted in this country's (as a whole) law and traditions. Slavery was deeply rooted in the South, and gay marriage is rooted in several of our states (and even those roots are pretty shallow at this point). If you don't like that the Supreme Court told northern states to change their definitions of "property" to include "black people" so that Southern slave owners could have Due Process (and you shouldn't), then for the same legal reasoning, you shouldn't support the Court forcing states to change their definitions of marriage to support Due Process rights of homosexuals. STRESS: The policy behind those two things are obviously very different, but the Supreme Court is not a policy-making branch. That's Congress' job. You, social justice warrior in the back. Calm down.
Ultimately, only one precedent offers any support for the majority’s methodology: Lochner v. New York, 198 U. S. 45. The majority opens its opinion by announcing petitioners’ right to “define and express their identity.” Ante, at 1–2. The majority later explains that “the right to personal choice regarding marriage is inherent in the concept of individual autonomy.” Ante, at 12. This freewheeling notion of individual autonomy echoes nothing so much as “the general right of an individual to be free in his person and in his power to contract in relation to his own labor.” Lochner, 198 U. S., at 58 (emphasis added). To be fair, the majority does not suggest that its individual autonomy right is entirely unconstrained. The constraints it sets are precisely those that accord with its own “reasoned judgment,” informed by its “new insight” into the “nature of injustice,” which was invisible to all who came before but has become clear “as we learn [the] meaning” of liberty. Ante, at 10, 11. The truth is that today’s decision rests on nothing more than the majority’s own conviction that same-sex couples should be allowed to marry because they want to, and that “it would disparage their choices and diminish their personhood to deny them this right.” Ante, at 19. Whatever force that belief may have as a matter of moral philosophy, it has no more basis in the Constitution than did the naked policy preferences 20 OBERGEFELL v. HODGES ROBERTS, C. J., dissenting adopted in Lochner. See 198 U. S., at 61 (“We do not believe in the soundness of the views which uphold this law,” which “is an illegal interference with the rights of individuals . . . to make contracts regarding labor upon such terms as they may think best”).For the non-legal person, understand that making reference to Lochner is the Supreme Court way of saying "you fucking idiots have no idea what you are doing." It is the most reviled decision among justices and for good reason. In Lochner, libertarian-minded justices essentially tried to make their economic policy a part of Due Process based on the freedom of contract. That should sound really familiar to the majority in Obergefell except that at least the word "contract" appears elsewhere in the Constitution. And this is really the danger. Gay marriage activists are loving this decision, but what happens if the Supreme Court decides that freedom of contract is once again a Due Process right? The precedent has certainly been set. And if that happens, say goodbye to basically every tenant protection, worker protection, and restriction on big business that exists in America. Supreme Court justices must be bound to the Constitution in some way. They have to at least try. Once you start letting them make things up entirely out of whole cloth, even if you like what they are sewing at the time, you are headed down a very problematic and undemocratic road.
The majority recognizes that today’s cases do not mark “the first time the Court has been asked to adopt a cautious approach to recognizing and protecting fundamental rights.” Ante, at 25. On that much, we agree. The Court was “asked”—and it agreed—to “adopt a cautious approach” to implying fundamental rights after the debacle of the Lochner era. Today, the majority casts caution aside and revives the grave errors of that period.Yes. Bad idea.
It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage. If “[t]here is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices,” ante, at 13, why would there be any less dignity in the bond between three people who, in exercising their autonomy, seek to make the profound choice to marry? If a same-sex couple has the constitutional right to marry because their children would otherwise “suffer the stigma of knowing their families are somehow lesser,” ante, at 15, why wouldn’t the same reasoning apply to a family of three or more persons raising children? If not having the opportunity to marry “serves to disrespect and subordinate” gay and lesbian couples, why wouldn’t the same “imposition of this disability,” ante, at 22, serve to disrespect and subordinate people who find fulfillment in polyamorous relationships? See Bennett, Polyamory: The Next Sexual Revolution? Newsweek, July 28, 2009 (estimating 500,000 polyamorous families in the United States); Li, Married Lesbian “Throuple” Expecting First Child, N. Y. Post, Apr. 23, 2014; Otter, Three May Not Be a Crowd: The Case for a Constitutional Right to Plural Marriage, 64 Emory L. J. 1977 (2015). I do not mean to equate marriage between same-sex couples with plural marriages in all respects. There may well be relevant differences that compel different legal analysis. But if there are, petitioners have not pointed to any. When asked about a plural marital union at oral argument, petitioners asserted that a State “doesn’t have such an institution.” Tr. of Oral Arg. on Question 2, p. 6. But that is exactly the point: the States at issue here do not have an institution of same-sex marriage, either.This is the knockout punch in my opinion. Roberts doesn't use my freedom of contract example, but he makes the same point (probably to better effect). Right now, a polygamist is preparing a lawsuit that will rely almost entirely on this precedent. What can the courts do? What argument is there against polygamist marriage? None. Not a legal one anyway. If the definition of marriage cannot be restricted to one man and one woman, why can it be restricted to two people? "I think it's icky" is not a legal argument. "Sometimes polygamists subjugate women" is not a good argument. What about one person and one animal? That sounds ridiculous, but make the argument against it without using "it's icky." Go ahead. You can't. If I want to marry my dog, that is my way of expressing myself and having greater intimacy with a conscious creature that I may love more than any other human. If I want to marry every member of my living family, why do I not deserve Due Process as well? This is going to get crazy, and you can quote me later when it does.
When decisions are reached through democratic means, some people will inevitably be disappointed with the results. But those whose views do not prevail at least know that they have had their say, and accordingly are—in the tradition of our political culture—reconciled to the result of a fair and honest debate. In addition, they can gear up to raise the issue later, hoping to persuade enough on the winning side to think again. “That is exactly how our system of government is supposed to work.” Post, at 2–3 (SCALIA, J., dissenting). But today the Court puts a stop to all that. By deciding this question under the Constitution, the Court removes it from the realm of democratic decision. There will be consequences to shutting down the political process on an issue of such profound public significance. Closing debate tends to close minds. People denied a voice are less likely to accept the ruling of a court on an issue that does not seem to be the sort of thing courts usually decide. As a thoughtful commentator observed about another issue, “The political process was moving . . . , not swiftly enough for advocates of quick, complete change, but majoritarian institutions were listening and acting. Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.” Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N. C. L. Rev. 375, 385–386 (1985) (footnote omitted). Indeed, however heartened the proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause. And they lose this just when the winds of change were freshening at their backs.A devastating point. For me personally, this is the saddest part. Gay marriage is going to be another abortion-like issue in America, and it shouldn't be. As I said above, we were almost certainly within a few years of almost every state legalizing gay marriage because their people CHOSE to do so. Even Ireland is probably going to have an abortion referendum soon that will expand that right. That's how democracy should work. When the Court makes stuff up and decides for everyone what laws SHOULD exist, it forecloses the chance for people to come to the right decision on their own, and it erodes the confidence people have in the judiciary to interpret law, not make it.
If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.
Friday, June 19, 2015
Charleston Shooting: When Politics Trump Logic
None of the people writing opinion pieces and filling airwaves with their babbling concerning what they KNOW happened in Charleston actually know what happened in Charleston. Just as the Columbine shooters were not nerdy losers who didn't have any friends, the Sandy Hook shooter didn't go to the school to kill someone he knew, and the Duke Lacrosse players didn't rape anybody, there are bound to be aspects to this story that we all "know" right now that will be corrected in the future. People are more complicated than one Facebook picture, and millions of dollars are going to be spent by South Carolina over the next few years on a trial that will give us a much fuller picture of what happened thanks to their idiotic insistence on trying this case capitally.
What we do know to a near certainty is that a 21-year old male walked into a church and shot nine black people to death at a historically black church while telling them that he had to do it to stop them from taking over the country. It is unquestionable that race played an important role in this shooting. Only idiots (Fox News) would doubt that. But it is only slightly less idiotic to completely dismiss the role that mental illness almost certainly played in this shooting.
If you want to find stupid things written by liberals, Salon.com is almost always a reliable source, and they do not disappoint here in a piece by Arthur Chu.
There's no question that racism is a problem in America, and there are people with demented ideas about black people. However, IF (if if if) it turns out that Mr. Storm Cloud is suffering from a mental illness that creates delusions in his mind regarding the necessity of applying lethal force to black people to save America (which seems likely to be the case here), then it seems to make sense to try and figure out how we can identify people like him who need help BEFORE something like this happens and maybe prevent people like him from having guns. Talking about racism isn't going to stop insane people from doing insane things because there will always be some idea that a damaged mind can latch onto. If racism really was the proximate cause of this killing, then every black person in America should move to another country yesterday because there are a shitload of racists in this country and a shitload of guns.
You can't stop people from being racist. You can have a health system that treats mental illness like any other illness and provides help to people who need it before awful things like a mass shooting happen.
What we do know to a near certainty is that a 21-year old male walked into a church and shot nine black people to death at a historically black church while telling them that he had to do it to stop them from taking over the country. It is unquestionable that race played an important role in this shooting. Only idiots (Fox News) would doubt that. But it is only slightly less idiotic to completely dismiss the role that mental illness almost certainly played in this shooting.
If you want to find stupid things written by liberals, Salon.com is almost always a reliable source, and they do not disappoint here in a piece by Arthur Chu.
"We barely know anything about the suspect in the Charleston, South Carolina, atrocity. We certainly don’t have testimony from a mental health professional responsible for his care that he suffered from any specific mental illness, or that he suffered from a mental illness at all."Chu is right. We don't know almost anything about the suspect (other than that he fits the profile of nearly every mentally ill mass killer in American history). What we know is that there are millions of racists in America. There are tens of millions of gun fanatics. Almost none of those people commit mass murder. On the other hand, if there were no black people involved in this killing, and Sun Roof or whatever his name is had gone to shoot up a bowling alley full of white people because bowlers were a threat to take over the country, NOBODY would be dismissing mental illness in a discussion of Storm Drain's motives.
"We do have statistics showing that the vast majority of people who commit acts of violence do not have a diagnosis of mental illness and, conversely, people who have mental illness are far more likely to be the victims of violence than the perpetrators."And.... If you can figure out the relevance of general statistics on violence and mental illness to a mass murder apparently motivated by a delusional desire to start a civil war or stop black people from raping white women, please explain it to me.
"We know that the stigma (sic) of people who suffer from mental illness as scary, dangerous potential murderers hurts people every single day — it costs people relationships and jobs, it scares people away from seeking help who need it, it brings shame and fear down on the heads of people who already have it bad enough."Yea. We also know that the stigmatizing as pedophiles of men who want to work in jobs caring for small children is damaging and costs men jobs in elementary education and daycare centers. However, if a man goes to work at a daycare so he can take pictures of naked children and masturbate to them, are you going to not call him a pedophile because it might stigmatize other men working with small children as pedophiles? Or maybe you'll focus your concern on the vague notion that some humans are attracted to children, and therefore we should try to stop people from being attracted to kids?
"What’s also interesting is the way 'The real issue is mental illness' is deployed against mass murderers the way it’s deployed in general — as a way to discredit their own words. When you call someone “mentally ill” in this culture it’s a way to admonish people not to listen to them, to ignore anything they say about their own actions and motivations, to give yourself the authority to say you know them better than they know themselves."This might be true in some cases. Again, it's irrelevant. If someone is mentally ill, there's a very good reason not to be concerned about their motivations if they are delusional. John Hinckley wanted to kill Ronald Reagan because he wanted to impress Jodie Foster. Should we really dig into those motives and try to make sense of them? Or should we try to figure out how someone's mind can become so damaged that Jodie Foster's affection seems attainable through presidential assassination? If Moon Roof was mentally ill, which seems very likely, should we try to figure out what his motivations and behaviors say about people who are sane, or should we try to understand how a kid can think that murdering nine people will start a civil war or keep a non-existent black takeover of America from happening? Maybe we should ask how someone this unhinged was allowed to have a gun. Maybe there's something we can do about that.
"That’s as deliberately obtuse as reading the Facebook rants of a man who rambled on at great length about how much he hated religion and in particular hated Islam and deciding that the explanation for his murdering a Muslim family is that he must’ve just “gone crazy” over a parking dispute."I live in the neighborhood where the Chapel Hill shooting happened (literally about 200 yards away from the crime scene). People get pissed about parking in our neighborhood, and many people all over America have been murdered over parking and road rage. When I was living in Miami, two guys prevented me from getting out of my car until I moved out of a parking spot that they had claimed as their own in a nearly empty grocery store parking lot. The only reason to summarily dismiss a parking dispute as the proximate cause of a homicide is ignorance or a desire to push a different narrative (both of which are operative in Mr. Chu's case I'd guess). Also, I've written and talked at great length about how much I despise religion. Along with nationalism, I think religion is the most toxic and damaging aspect of human society, and we will never be able to recover from the damage it's done. That hardly means every crime I commit against someone who is religious (which is almost everybody in America) must be because of my hatred of religious people (which is non-existent). You will notice that Chu doesn't say that the Chapel Hill shooter wrote about hating Muslims (because he didn't), and the "in particular Islam" bit is editorializing. The Chapel Hill shooter also wrote in defense of the Ground Zero mosque and believed that people have the right to be religious, but he has the right to call them morons (something pretty much every atheist believes). The Chapel Hill shooter also hated Christianity according to his writings, but that just doesn't fit Chu's narrative so he doesn't mention it. Basically, Chu is a shameless hack.
"Well, 'mental illness' never created any idea, motivation or belief system. 'Mental illness' refers to the way our minds can distort the ideas we get from the world, but the ideas still come from somewhere."That's true. There are murder defendants who have shot and killed people because they believed that aliens had snatched the bodies of their human victims and were now disguised invaders of our planet. Did mental illness create that idea? No. It's a plot point in tons of science fiction books and movies. Should we then ignore mental illness in those cases because the mental illness just "distorted the ideas" and instead focus all of our energy on stopping science fiction writers?
There's no question that racism is a problem in America, and there are people with demented ideas about black people. However, IF (if if if) it turns out that Mr. Storm Cloud is suffering from a mental illness that creates delusions in his mind regarding the necessity of applying lethal force to black people to save America (which seems likely to be the case here), then it seems to make sense to try and figure out how we can identify people like him who need help BEFORE something like this happens and maybe prevent people like him from having guns. Talking about racism isn't going to stop insane people from doing insane things because there will always be some idea that a damaged mind can latch onto. If racism really was the proximate cause of this killing, then every black person in America should move to another country yesterday because there are a shitload of racists in this country and a shitload of guns.
You can't stop people from being racist. You can have a health system that treats mental illness like any other illness and provides help to people who need it before awful things like a mass shooting happen.
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