Morning Fog

Straighten Out The Supreme Court

Tired of the constant wrangling in Congress about the selection and confirmation of justices for the U.S. Supreme Court?  Think it's unreasonable for the highest court in the land to be subject to sudden wild swings of opinion literally from one day to the next?  Concerned that the politicization of the Court and its decisions, and the concomitant erosion of respect for the Court, are not good for the country in the long run?

Me too.

As a recent piece in The New Yorker by Hendrik Hertzberg points out, even a bad politician can make a good suggestion now and again.  Rick Perry, when he was running, had refloated an old idea for a Constitutional amendment by which justices would have 18-year terms staggered to expire every two years.  This would give each President the chance to pick two new Justices during a four-year term, and reduce "stretching" a particular ideology across decades or more. 

The devil is in the details, of course (would Congress still have to confirm choices, and if so, wouldn't we still have deadlock?).  And one argument against is that it would make the Court's decisions subject to more frequent back-and-forth swings, rather than less.

Nevertheless, on balance, I like the idea.  Justices would still be shielded from the hurly-burly of day-to-day politics, and free to focus on purely legal issues.  

Amendments aren't easy to achieve.  Maybe impossible, in today's bitterly divided, ideologically infused Congress.  But it might be worth a try.   And while we're at it, maybe we could also patch up the Constitutional oversight that denies residents of the District of Columbia the right to be represented in Congress in the same way as all other citizens.

A Death Worth Noting - Richard Grossman

I had never heard of Richard L. Grossman until I read his obit today in the Washington Post, but it turns out that he was a leader of a number of progressive causes, based in particular on his opposition to the concept of "corporate personhood," which he reportedly found "repugnant and destructive." 

Morning Fog has often expressed the view that corporations are not, and should not be considered, "people" in the sense that they have all the rights of individuals.  Admittedly, there is a longstanding body of law on the other side of this issue, which established early on - and for good reasons - that corporations have certain of the attributes of individuals.  Grossman, it seems, was more radical than I, challenging even those early interpretations. 

In recent years, however, it seems courts, the Roberts Court in particular, have sought to expand the equation of individual and corporate rights far beyond what makes sense.  For that reason, I'd like to draw attention, belatedly, to Grossman's life, and his concerns about the same doctrine.

Let The Supremes Be Supreme

Political interest groups and some members of Congress are now suggesting that either Clarence Thomas or Elena Kagan (depending of course on their political point of view) should recuse themselves from consideration of the legal challenges to the new health care law.

This is just another manifestation of the current tendency for everything to be turned into a political issue.  But it's silly, and might do more harm than good.

I agree with the "experts" and court historians who suggest there are no grounds for suggesting recusal, either for Thomas or Kagan.  The rule is that each Justice decides whether there is any conflict of interest.  Let's not try to meddle in that.  Despite some really wacky decisions from the Roberts court (e.g., the grant of unlimited political spending to corporations), I believe that if we are to have any confidence in our Supreme Court, and in our government institutions generally, we must collectively assume two precepts to be valid:

• Those who serve generally take their oath of office seriously and seek to serve, defend, and uphold the Constitution.
• Those who serve attempt to perform their tasks without political or other bias, and recognize that, whatever their previous experience, their higher calling requires a different standard.

Without these underpinnings, we could have no confidence whatever in our courts or government agencies.  I would argue that the current climate, in which many people appear in fact to have lost that confidence, stems in part from the willingness of partisan politicans to throw our trust under a bus if it helps them make political points.  It's in that sense that those pushing for recusal now may be doing more harm than good.

Through history, it has become almost an adage that Presidents are often fooled by their Supreme Court nominees.  This occurs as a result of the second precept above.  More than once, a solidly "Democratic" or "Republican" justice, once having reached the bench, has dashed the expectations of those who appointed him/her by taking an unexpected juridical tack.  This Court, too, may harbor some surprises.  Let's give them the chance to prove they are above politics.

Robocalls - Coming Soon To A Phone Too Near You?

A reader recently asked me if I'd heard of legislation being proposed that would permit automated phoning to people's cell phones.   I hadn't, and it took a little while to track down (not a mention of it on the FCC website, for example), but I did find a pretty thorough rundown on it at TheInternetPatrol.com. 

The basics are that a coterie of companies and their Congressional friends are sponsoring legislation to roll back some of the protections against annoyance calls to cell phones that have existed since at least 1991.  They propose to legalize "information calls" to cell phones.  I recommend reading the full letter that supporters sent to the House Committee on Energy and Commerce, which is carried at the link above. 

A letter to a Committee chairman, of course, is far from a done deal.  The legislation, known as H.R. 3035, might not get voted out of committee; it might not pass the House; it might get a thumbs down from the Senate.   Still, the potential for invasion of privacy is clear, so we owe "Internet Patrol" a hats-off for helping bring the matter to public awareness.

Of course, the legislation appears reasonable on its face.  They only want permission for "informational calls," like aircraft arrivals, overdue bills, or a breach of your credit card.  Many people probably find these services convenient and desirable.  But concerns arise for a number of reasons:

• Sure, just "informational" and not "telemarketing," but does anyone really believe that many firms (OK, even if it's just the "unscrupulous" ones) will limit themselves to that?  How would the line between information and selling be drawn?
• Proponents argue that earlier restrictions were motivated primarily by the high per-call costs of incoming cell phone calls at the time, and suggest this is no longer a concern.  However, the proposed law ignores the second reason for the 1991 legislation, which was privacy from telemarketers.  For most of us that's still a concern.
• A phone call is not the only way this information can be delivered.  It can be sent by e-mail, a channel of communication that is already polluted by the noxious fog of advertising (not to mention scamming).  Anyone who has a cell phone has e-mail on it (and is constantly checking it - while driving, while in a job interview, while standing at the altar.  Phoning is not necessary.
• The bill would allow automated calls to anyone who had ever provided their phone number before, in any context.  Consumers have a right to be suspicious if no provision is made requiring a new opt-in for "information" calls, and one for each specific company.

This proposed legislation seems fairly typical of the topsy-turvy way rulemaking is approached these days.  Special interest groups write their own legislation, line up a few malleable Congresspersons to sponsor it, create a story line to go with it, and try to sell it before the public can become aware, or government agencies can react. 

The Internet Patrol suggests writing the Congressmen who are sponsoring H.R. 3035.  But as they point out, most Congressmen don't read or accept mail from people who aren't their constituents.  So I'd suggest writing your own Congressman.  If you find phone calls about such things as overdues bills convenient and welcome, maybe you should at least call for appropriate definitions and safeguards against abuse, which there most certainly will be.

 

Whacking "American Citizens"

Just yesterday, I mentioned that there might be cases where it's legitimate for immigrants not to have exactly the same rights as U.S. citizens - but equality under the law  wasn't one of them.

Now let's put the shoe on the other foot.   Do U.S. citizens have superrights that grant them some godlike status to enjoy even when they themselves have spurned the protections of the U.S. Constitution?   That's really the argument that the ACLU and other critics are making regarding the nonaccidental droning death of Anwar al-Aulaqi (or al-Awlaki - it seems we can take our pick of spellings of Arabic names these days) and his pal Samir Khan, both of whom, apparently, were at one time American citizens.

I say "at one time," because surely even the ACLU does not suppose that either of these gents was really an "American" in any but the most meaningless, bureaucratic, de jure sense, i.e., by virtue of having been born in the U.S.  (Incidentally, very few countries of the world choose to define citizenship by place of birth; most define it by the nationality of the parents).

U.S. citizenship law is complex, and I know it has changed in some ways since the days when I was schooled to interpret it as a consular officer, but I do recall there are provisions for a citizen born in the U.S. of foreign parents to choose his citizenship at age 18; there are provisions for any U.S. citizen to renounce his citizenship.  Bureaucrat-lawyers may want to argue that because Anwar and Samir had not stopped by their local U.S. consulate in Sanaa to fill out the paperwork for that, they were still "Americans."  But I think realistically we all understand how this pair of terrorists probably couldn't find time in their busy schedules to make the trek to the Yemeni capital from their mountain hideout.  I think we also understand that fulfilling the niceties of U.S. regulation probably was not high on this dynamic duo's list of priorities.  (Or shall we suppose that they treasured their U.S. citizenship and planned to come back and live in the U.S. after it became a Muslim state?)

In fact, both had clearly chosen to define themselves as belligerents in the war of terror against the U.S.  That to me is all we need to know.  In World War II I'm certain there were some American-born Germans fighting on the German side; I'm going to go out a limb here and guess that our troops storming Omaha beach did not wait to return fire until they had seen the passports of the soldiers firing at them.  The ACLU's concern for legal niceties may be valuable at times but it seems out of place here: quixotic but not noble, pedantic and not useful. 

Jousting With State Immigration Laws

For the Justice Department to be challenging various new state immigration laws in court is an unusual step. 

Undoubtedly the decision to do so has political roots.  The Obama administration would like to reinforce its credentials as the chief defender of the rights of immigrants (and it must be stressed, of all immigrants - not just "illegals" but the many more numerous legals).  Certainly the current challenges should do that, demonstrating a clear distinction between our two major parties.  And the political motivation, even if brazen, is unassailable since most of the laws in question are being passed by mostly Republican state legislators for the purpose of political pandering to their pasty constituents.

Yet while the legal challenge may serve the administration's political ends, it does so by serving its stated policy goals and philosophy of government.  Its first strength is to remind us what our heritage is.  Politicians have long loved to describe us as a "nation of immigrants," which is certainly true, or a "melting pot," which is far less honest. 

A digression: "Cookie dough" is a more apt metaphor - ethnic groups have usually remained in clusters or lumps, like the bits in a chocolate chip cookie, melting only slightly on the edges at first, perhaps dissolving entirely over many years (we don't know what cookies do over longer periods, since they seldom survive that long). 

Far from dragging down the economy, our nation's ability to attract those huddled masses has always served to rejuvenate our population and bolster our economy. That is no different today, and we need to keep in mind how many in our country are either naturalized citizens, or first-generation natives, who can nolens volens be detrimentally affected by restrictions supposedly intended only for "illegal" aliens.

The second strength is that what the DoJ is doing should also serve to reinforce our common sense of what we want the country to be.   Other common tropes we have long used to describe ourselves are "a nation of laws" and "a nation of equality."  I would not argue that immigrants, especially illegal ones, ought to have all the same rights as citizens - there can be some legitimate differences in status.

But surely one of the places where there can't be differences is in the equal application of the law to everyone.  This is an important international principle of human rights.  Further, if we fail to provide it, we contribute to the breakdown of society; those who see that the law discriminates against them, those who must fear any encounter with law-enforcement officials even if they haven't "done" anything, won't develop the habits of good citizenship that we (used to) expect.

"Used to" is a key phrase because the third strength of this legal jousting over immigration is to help clarify our thinking about whether we want America looking forward, or whether we want to reverse the progress of a century or more and return to the mid-1950s for our models of immigration, assimilation, and social and legal justice.    

 

The Right To Bear Arms - The Cosmic/Historic View

Yesterday I noted how issues of guns, gun control, and the right to bear arms had become politicized... no surprise there, right?

What is surprising, though, is the extent to which the politicization of the issue over time has completely turned the historical record on its ear.  Adam Winkler, a UCLA professor of Constitutional law, writing recently in The Atlantic ("The Secret History of Guns") makes this clear. 

(Note: the article is based on Winkler's new book, Gunfight: The Battle Over the Right to Bear Arms in America, appearing soon.  You can order the book from the right margin.)>>>>>>>>>

Winkler points out that - contrary to what many of us might suppose in the context of the contemporary heated debate - not so long ago, the NRA and Ronald Reagan and the Ku Klux Klan all supported restrictions on gun ownership in varying degree, while the Black Panthers were zealous advocates of the unrestricted possession of loaded weapons.  As the professor also argues, until recently in the U.S. (about 1977), the right to bear arms for self-defense (in addition to service in a "militia") has never been challenged, yet on the other hand, neither has the general understanding that some controls, such as registration, were not only fitting, but necessary. 

To some degree, Winkler may be channeling some of the same thoughts that color Justice Clarence Thomas's approach to the Second Amendment here ... (see the interesting piece in this week's New Yorker regarding Thomas), but at least from this summary piece of Winkler's book, it appears to go deeper and broader than that.

In any case, there is a pendulum effect swinging through the history on this issue, as on others where balance has historically characterized our approach to an issue, and where balance has been lost.  To quote Winkler:

The Fourteenth Amendment illustrates a common dynamic in America’s gun culture: extremism stirs a strong reaction. The aggressive Southern effort to disarm the freedmen prompted a constitutional amendment to better protect their rights. A hundred years later, the Black Panthers’ brazen insistence on the right to bear arms led whites, including conservative Republicans, to support new gun control. Then the pendulum swung back. The gun-control laws of the late 1960s, designed to restrict the use of guns by urban black leftist radicals, fueled the rise of the present-day gun-rights movement—one that, in an ironic reversal, is predominantly white, rural, and politically conservative.

 How times change! 

 

 

The Right To Bear Arms - A Microcosmic Story

Recently Congressman Leonard Boswell and his family fought off an intruder on their Iowa farm.  It's an interesting story that presents in microcosm almost all the Second Amendment issues that fester in the body politic today.  It has:

• An intruder who was eventually driven away by the threat of a loaded shotgun. (NRAnians can rejoice over this "proof" that guns save lives and everybody ought to own a couple of assault rifles.)
• An intruder, however, who could have been shot and wasn't.  (Those who know and use guns will suggest he should have been killed - "don't pull a loaded gun if you don't intend to use it.")
• A family of several people who acted incautiously and incoherently, clearly endangering themselves as they grappled with the intruder, if his gun had been real.  (Those who fear guns and think nobody should ever own one can point to the dangers of attempting to resist an armed intruder.)
• Just plain foolishness, such as having two rottweiler guard dogs who were regularly locked up at night.  (Citizens of common sense may ask, why have the dogs at all, then?)

Commentary on this Washington Post article brings out all these threads of the "gun debate."  I'd agree with the fellow who suggests it wouldn't have been a bad thing if the intruder had been shot and killed, but who also concedes this whole incident proves nothing about the desirability or legality of having some reasonable controls on who can obtain them.  E.g., the intruder in this case lived to become a -- let us hope -- convicted felon; should he be able to arm himself, after serving a short term being supported by the state, so that his next attempt will be more successful?

Commentary also demonstrates how politicized the right to bear arms has become, with one angry reader assuming that because Congressman Boswell is a Democrat, he must be "anti-gun," and needs to learn a lesson from his experience.  Actually, though Boswell is a Democrat, he's a rural one, and sports an A rating from the NRA. 

(More soon on the politics and legal issues of guns.)

Checks And Balances

Once upon a time, when princes and dragons roamed the land, they used to teach "civics" in school, and when they did, we learned about the "checks and balances" that had been cleverly built into our political system by giving each "branch" separate powers and by making legislation subject to the agreement of two differently constituted legislative bodies.  

Does our current political logjam illustrate that this system is broken, or that it's working as it should? 

Answer A:  It's the latter.  Since the electorate seems to be very closely divided in opinion on many issues, it seems we only have the "checks" anymore:  A Rabid Republican minority can commandeer its party's entire agenda; a Diehard Democratic cabal can have critical effect by withholding its approval of some initiative the rest of its party supports.  But it can be argued that this is what the Founders intended; in the absence of consensus, action should wait (years, if necessary) until consensus exists. 

I'm sometimes nonplussed by modern-day public figures who claim those who penned the Constitution were rip-roaring democrats; in fact, many were worried about where full one-man one-vote democracy would lead, and the concept they came up with was really intended to hold democratic enthusiasms in check, and to balance the will of the people with that of the supposedly wiser and more learned elite. 

A lot of people today don't want to acknowledge this historical circumstance, but if we DO acknowledge it, the crux of our current problem becomes a little more evident.  Our Constitution may have been an ideal one for a slower-paced world and a mostly rural and agrarian society, with a small population spread across a land area that a fraction of what it is today.   Some among us today still imagine that we live in such a place (or wish that we did).   

The rest of us, however, might ask:  Could Thomas Jefferson, Alexander Hamilton, James Madison, and all the other leading lights of that period possibly have conceived of a time when a single Representative in the U.S. House Thereof would represent on average 640,000 people, or that one state (California) might have 37 times the population of another (Wyoming), making a democratic travesty of the "two Senators-per-state" rule?  Can we imagine that they foresaw an electorate so bitterly divided on fundamental points, or elected representatives who would be so irresponsible as to pursue (out of concern for self-preservation), an agenda clearly working to the nation's detriment?   I somehow doubt it (after all, they had that crazy formula about the representation of slaves in there, and they seem to have forgotten entirely to provide denizens of the federal district any voting rights at all).  No, indeed, the Founders weren't perfect, and they certainly weren't prescient.  Which brings us to: 

Answer B:   No, the system really is broken.  It may produce exactly what the Founders intended, but we shouldn't fool ourselves about what -- or why -- their intentions were what they were.  Instead, we should ask whether their vision is a valid framework for the twenty-first century United States of America.

For The Roberts Court, Money Talks

The Roberts Supreme Court this week struck another blow for the Bill of Rights - the Corporate Bill of Rights.  (Don't hunt for these in your copy of the Constitution -- they're not there, even though conservative jurists and politicians pretend they are.)   Building on earlier decisions in which the court has sought to further the preposterous notion that corporations have all the rights of individuals, a majority of five (guess who!), declared unconstitutional an Arizona law that sought to equalize the effects of big money on elections.  

In this case, and in the infamous earlier one (Citizens United v. Federal Election Commission) in which the same Supremes gave corporations the right to spend in support of political candidates pretty much without restraint, I think we're seeing a real distortion of what "free speech" entails.   If Exxon-Mobil and Microsoft and their ilk do have First Amendment rights (which is very disputable), then free speech would mean their running their own ads for a political candidate, e.g.:  "GE supports Joe Smith for President."  

But it offends my rationality to suggest, as the court does, that unlimited amounts of money may be spent secretly (or with only after-the-fact revelation) to support someone else's free speech.  If I give money to a candidate whose views I like, it never occurs to me that's "free speech."  Free speech engages if I decide to stand on a soapbox to extol the virtues of my candidate, or write a letter to the editor of my newspaper about him.  If we think about it, don't we really believe that free speech means free public speech? 

So let the big spenders stand up and be counted in the light of day, let the politicians who accept their donations be prepared to be judged by the company they keep, and let the voters decide what that corporate support really means.