Arlington, Va.—The Ninth U.S. Circuit Court of Appeals today issued a unanimous opinion granting victory to cancer patients and their supporters from across the nation in a landmark constitutional challenge brought against the U.S. Attorney General. The lawsuit, filed by the Institute for Justice on behalf of cancer patients, their families, an internationally renowned marrow-transplant surgeon, and a California nonprofit group, seeks to allow individuals to create a pilot program that would encourage more bone-marrow donations by offering modest compensation—such as a scholarship or housing allowance—to donors. The program had been blocked by a federal law, the National Organ Transplant Act (NOTA), which makes compensating donors of these renewable cells a major felony punishable by up to five years in prison.

Under today’s decision, this pilot program will be perfectly legal, provided the donated cells are taken from a donor’s bloodstream rather than the hip. (Approximately 70 percent of all bone marrow donations are offered through the arm in a manner similar to donating whole blood.) Now, as a result of this legal victory, not only will the pilot programs the plaintiffs looked to create be considered legal, but any form of compensation for marrow donors would be legal within the boundaries of the Ninth Circuit, which includes California, Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon, Washington and various other U.S. territories.

[...]

Rowes concluded, “This case isn’t about medicine; everyone agrees that bone marrow transplants save lives. This case is about whether individuals can make choices about compensating someone or receiving compensation for making a bone marrow donation without the government stopping them.”

Isn’t it interesting that “1%er” Ron Paul has won several straw polls and has even cracked the top 3 or 4 at various points during the campaign and is almost always polling in the double digits? Ron Paul is hardly a 1%er despite efforts on the part of the sponsors to limit his exposure (in the most recent debate, Paul had a whopping 89 seconds to make his case on national television).

Then there’s Herman Cain the other “marginal” candidate who until the most recent couple of weeks following accusations (whether legitimate or not) of sexual harassment along with some other missteps on foreign policy was neck and neck with the establishment favorite Mitt Romney. Cain may have fallen from grace but he isn’t a 1%er without a prayer of winning neither.

The only one of the three who is truly a 1%er unfortunately is Gov. Gary Johnson. Of the three Johnson is the only one who has been successfully excluded from all but two of the nationally televised debates. Up to this point, the Johnson campaign has encouraged supporters to write and call the debate sponsors to encourage them to reconsider but to no avail. In true libertarian freedom of association fashion, Johnson, though disappointed with his exclusion, respected the right of the debate sponsors to exclude him.

Now it seems the Johnson campaign has had enough with The Gary Johnson Rule and it’s no more Mr. Nice Guy. The Johnson campaign has now filed complaints with the Federal Election Commission (FEC) and the Federal Communications Commission (FCC) in response to Johnson’s most recent exclusion from the South Carolina CBS debate.

Here are some excerpts from the complaint filed with the FEC:

On Saturday, November 12, 2011 Respondent CBS televised on its national network another debate, but instead of including all leading candidates has elected to arbitrarily and capriciously exclude some candidates and include others. In so doing, CBS is, without any other explanation, choosing to support certain candidates. By excluding viable candidates like Complainant, who has been included by cable networks in their debates CBS is directly and significantly supporting those candidates it favors, and advocating the nomination of one of their favorites and opposing the nomination of Complainant, whom CBS evidently disfavors. In so doing, CBS is making an illegal corporate in-kind contribution to those favored candidates. The value of this contribution vastly exceeds the contribution limit that applies to any category of lawful donor.

2 U.S.C. §431 (8) (A) (i) defines a “contribution” as “any gift, subscription, loan, advance, or deposit of money or anything of value made by any person for the purpose of influencing any election for Federal office.” No rational person could possibly argue that exposure during an hour-long debate televised in prime time on the CBS network is NOT something of value. Indeed, CBS sells advertising spots during prime time for huge sums, and makes and reaps significant revenues in doing so. By any standard, this airtime is a thing of value within the ambit of that phrase in this statute. If all viable candidates were being included in the debate that might lead to a different conclusion, but by excluding candidates CBS disfavors –opposes—and including those it favors –supports—Respondent is violating the Act.

I believe the Johnson campaign has a very valid point in this complaint to the FEC. Whether we like the campaign finance laws or not, Johnson is bound by them and must abide by them; it only seems fair that CBS must be legally obligated to follow them as well.

Gov. Johnson’s complaint to the FCC, however; is much more bothersome IMHO.

Here are some excerpts (from the same link as above) from the FCC complaint [Much of the language in the FCC complaint is identical to that of the FEC so I’ve omitted those parts]:

The Federal Communications Commission has the authority to regulate fair access to the airwaves of broadcast by network television networks.

[…]

The public owns the airways over which CBS broadcasts, and the public deserves to be free from bias- favoring some candidates over others- as well as illegal support of certain presidential candidates on national network television. Unfair access to the airwaves of broadcast by network television is clearly an issue within the FCC’s mandate. The illegal corporate contribution CBS is making in including some candidates and not others is addressed in a separate formal complaint to the Federal Elections Commission. The FCC should take appropriate action against CBS.

The public owns the airwaves? Yes, I understand that this is the accepted conventional wisdom but this is not something I would have expected from perhaps** the most libertarian leaning candidate to ever seek the nomination for the Republican Party!

I fully and completely understand the frustration because as a Gary Johnson supporter, I too am frustrated with how the Johnson campaign has been treated by the establishment. I take it damn personally that the candidate who best advocates and represents my views has been excluded from these debates while big government, freedom hating, torture supporting, war mongering fools like Rick Perry and Rick Santorum make idiotic assertion after idiotic assertion on national television often unchallenged . I often wonder if Johnson might have had similar success as Ron Paul or Herman Cain had his (and by extension, my) voice been heard in these debates.

We will probably never know.

But to write the FCC and make the argument that Gov. Johnson has some sort of right to participate in the debate because the public “owns” the airwaves just makes me cringe. This comes far too close to the so-called “Fairness Doctrine” for my comfort. The public doesn’t own the airwaves, the broadcasters do. CBS buys the licenses and is supported by advertisers – not the public.

If the debate was sponsored and aired on PBS and/or NPR the Johnson campaign would have a legitimate point because those stations are supported by the public (i.e. taxpayers and viewers like you) but this is not what we are talking about here.

Maybe the Johnson campaign believes the ends justify the means but I would rather Gary Johnson lose following his small government principles than win by compromising them.

*Unrelated to the Occupy Wall Street movement

**Though I’m sure Ron Paul supporters would disagree

Before I was aware of and became a supporter of the Fair Tax (a 23% consumption tax that would replace the income tax, payroll tax and all other federal taxes; Gary Johnson and Herman Cain* both support the Fair Tax) I was a supporter of the Flat Tax as proposed by Steve Forbes in his 2000 presidential bid. If we must be subject to an income tax, it seems only fair that everyone pay the same tax rate. None of these proposed plans are perfect but at least everyone is subject to the same rates.

But apparently my definition of “fair” differs quite a bit from those who think a “progressive” tax (i.e. the more you make, the more the government will take) is fair. Take this article from Politico for example:

The class warfare blather continues:

This article was written before the details of Gov. Perry’s plan were released. If the author had waited for the details, s/he would have learned that Gov. Perry’s 20% tax doesn’t apply to the $30,000 and lower s/he mentioned above.A family of four would pay no taxes on the first $50,000 of income; too progressive and less “fair” for my liking but should somewhat satisfy those who believe that low income individuals should escape paying income taxes…at least in theory.

Also, Social Security taxes are eliminated in the Perry plan. One less burden for the working poor.

The Perry plan does have its problems (especially because the 20% plan is optional which means the existing system would remain) but this won’t be the part that will draw too much criticism from the Left. I doubt that the details of the Perry plan has done anything to pacify those who think the top tax rate should be north of 40% because there is a fundamental disagreement about the notion of fairness and different understandings of basic economic principles between progressives and fiscal conservatives.

The author of the cited article laments that 95% of those who earn over $1 million annually would get an average tax break of $487,300 with the 9-9-9 plan. What does s/he think the average $1 million annual do with this extra cash, bury it in the back yard or hide it under a mattress?

Maybe Mr. Moneybags decides to buy a new Beverly Hills mansion, a yacht, a private jet or a Rolls Royce or two.

Alternatively, maybe Mr. Moneybags decides to start his own business or gets his own McDonalds franchise, invest in an existing business, or makes some other investment.

What difference does it make, really? In any of these scenarios, there is an increase in economic activity. Mansions must be first designed by an architectural firm (not to mention other trades such as structural, geotechnical, and electrical engineers etc.) then built by crews of construction workers. Similar economic activity would result from the purchase of the yacht, jet, or Rolls Royce. Starting or investing in a business obviously also means more economic activity.

Now multiply this economic activity by the number of individuals who would get to keep this additional $487,300. How much might this grow the economy?

And by economic activity, I’m referring to something virtually everyone in this country wants to see more of: J-O-B-S.

Part 2

*Rather than using Cain’s 9-9-9 plan as a bridge to the Fair Tax (which cannot be implemented until the 16th Amendment is repealed), I think the better approach would be to go “Flat” then “Fair.”

**Example: Payroll taxes. The amount that you see on your pay stub is only your half of the tax; your employer picks up the other half.

His spokesman Hogan Gidley emails me in response to Mark Miners comments: “Senator Santorum is certainly an advocate for states’ rights, but he believes as Abraham Lincoln – that states do not have the right to legalize moral wrongs. The Senator has been clear and consistent – and he believes that marriage is and can only be: between one man and one woman.”

Now, it’s easy to see where Santorum is coming from — the Lincoln-Douglas debates. Lincoln at the time was arguing, as so many libertarians argue, that there are some rights which are not to be voted on. Popular sovereignty can be good for making some decisions, but that in the case of slavery, it is used to uphold a moral wrong. Infringements upon rights granted by natural law cannot be justified by majority vote:

Lincoln’s strategy was to isolate Douglas’s doctrine of popular sovereignty from the national mainstream as a form of moral dereliction for its indifference to the corrupting effect of slavery in republican society. Douglas insisted that in his official capacity as a United States senator he did not care whether the people in a territory voted slavery up or down. Lincoln admonished: “Any man can say that who does not see anything wrong in slavery, but no man can logically say it who does see a wrong in it; because no man can logically say he don’t care whether a wrong is voted up or voted down.” Douglas argued that the people of a political community, like any individual, had a right to have slaves if they wanted them. Lincoln reasoned: “So they have if it is not a wrong. But if it is a wrong, he cannot say people have a right to do wrong.”

Lincoln and Douglas were coming from different first principles. In fact, the argument is not at all unlike modern arguments about abortion, a point I’ve made before. The question is not whether abortion should be allowed, the question is whether a fetus is inherently “person” enough to have natural rights. If it is, abortion is murder. If it is not, abortion is no different morally from removing a cancerous growth from one’s uterus. Yet both sides constantly talk past each other without acknowledging that they are working from wildly different first principles.

Abraham Lincoln, contrary to what Santorum suggests, is not suggesting that all men must be forcibly stopped by government from engaging in moral wrongs. He explicitly acknoledges the libertarian right of natural law — you can do what you wish with what is yours. You may self-govern; the nanny state is not there to stop you from acting within your personal domain. From his 1854 speech in Peoria, IL (same source link as above, italics original, bold added by me, and one sentence from the original speech inserted into the below passage for continuity):

The South claimed a right of equality with the North in opening national territory to the expansion of slavery. Rejecting the claim, Lincoln denounced slavery as a “monstrous injustice” and a direct contradiction of “the very principles of civil liberty” in the Declaration of Independence. Lincoln said that the right of republican self-government “lies at the foundation of the sense of justice,” both in political communities and in individuals. It meant that “each man should do precisely as he pleases with all that is exclusively his own.” Declared Lincoln: “The doctrine of self-government is right—absolutely and eternally right—but it has no just application” as attempted in the Nebraska Act. Spelling out the natural-law premises of his argument, Lincoln continued: “Or perhaps I should rather say that whether it has just application depends upon whether a negro is not or is a man. If he is not a man, why in that case, he who is a man may, as a matter of self-government, do just as he pleases with him. But if the negro is a man, is it not to that extent, a total destruction of self-government, to say that he too shall not govern himself? When the white man governs himself that is self-government; but when he governs himself, and also governs another man, that is more than self-government—that is despotism.” Recurring to the nation’s founding principles, Lincoln summarized: “If the negro is a man, why then my ancient faith teaches me that ‘all men are created equal’; and that there can be no more moral right in connection with one man’s making a slave of another.”

Note my bolded portion on self-government. It seems that Abraham Lincoln and Rick Santorum have some agreement that a state cannot legalize a moral wrong — they merely happen to have WILDLY different definitions of what constitutes a moral wrong.

Abraham Lincoln is following the traditions of natural law and natural rights. Each man is his own, and barring his attempts to coerce others to do his bidding, he should have freedom to operate as he sees fit. Slavery is an attempt to coerce others to do his bidding, and therefore it is an abhorrent moral wrong that has no place in a free society.

Rick Santorum is following a different tradition, one that states that man is NOT his own, and should forcibly be stopped from operating in his own domain if his actions violate no ones natural rights, but violate Santorum’s own sensibilities. If two members of the same sex, wholly consensually and within the bounds of their natural rights, want to engage in a right of contract such that they bound themselves together for all the legal purposes we generally associate with marriage, they must be barred from doing so. This consensual and voluntary action must not be permitted!

Abraham Lincoln says that the government must not condone the violation of one man’s natural rights by another, and that democracy is not an adequate justification for doing so. Rick Santorum says that government must be in the job of actively violating those natural rights, even if the people of a territory choose to vote to recognize those rights! Abraham Lincoln says that slavery is wrong because it takes away the right of self-government; Rick Santorum says that we must all be slaves of the state, because he doesn’t like what we choose to do with our freedom.

Abraham Lincoln decries a situation which denies the equality before the law of human beings; Rick Santorum claims the mantle of Abraham Lincoln while cheering laws that deny that equality! In doing so, Rick Santorum misses the irony: he’s replaying the Lincoln-Douglas debates in modern times, but he doesn’t realize that he’s taking Douglas’ side, not Lincoln’s.

Recently, Frank Turek, an employee for computer networking firm Cisco Systems, was fired for authoring a book titled “Correct, not Politically Correct: How Same-Sex Marriage Hurts Everyone.” Turek had a stellar work record and never talked about his religious or political views on the job.

But after a homosexual manager at Cisco Googled Turek’s name, learned about his views and complained to a human resources professional at Cisco, Turek was immediately fired.

Also recently, Canadian sportscaster Damian Goddard was fired for declaring his opposition to gay marriage. Rogers Communications fired Goddard after he tweeted his support for Todd Reynolds, a hockey agent, who had earlier voiced his opposition to the activism of Sean Avery , a New York Rangers player who was part of the New Yorkers for Marriage Equality campaign in the lead-up to the same-sex marriage vote in the New York State Legislature.

Now, I don’t know the workplace policies of either corporation, but I would assume that in the first case, Turek violated some section of his employment contract with Cisco. I might call that an overreaction, but I wouldn’t call it a violation of his freedom of speech. It was, rather, an exercise in freedom of association (or, in this case, disassociation). The second case, the sportscaster is a public figure, and I think it’s quite likely that Rogers Communications might believe that his thoughts on gay marriage would impact ratings or the bottom line.

Should either corporation be forced to retain an employee that publicly espouses values — values that I’d call bigoted — inconsistent with those of the corporation? Cisco is a multinational company with highly diverse employees, and it’s quite possible that someone hired to put together leadership seminars [as Kurek was] may not be seen as a leader himself if he publicly advocates legal oppression against people who he is to lead.

But let’s take it a step farther. Let’s assume instead that either Kurek or Goddard were advocating against interracial marriage. Let’s say that Kurek was writing books claiming interracial marriage hurts families, and that the races shouldn’t mix. After all, many of the arguments at the time of Loving v. Virginia were based on religious beliefs. Would Gary Bauer be defending either? I fail to see any difference in principle here — in both cases, one would be arguing against legal equality based upon one owns religious convictions of what defines a proper marriage. And in both cases, the issue at hand LEGALLY [not morally] is whether the state can withhold access to a LEGAL CONTRACT between two adults.

Bauer continues with a slightly more thorny issue:

Same-sex marriage is already having a chilling effect on religious freedom. In states that have legalized civil unions or gay marriage, Catholic adoption agencies have been shuttered or lost their tax-exempt status for refusing to let gay couples adopt children.

Last week in Illinois, Gov. Pat Quinn affirmed a decision by the Illinois Department of Children and Family Services not to renew adoption contracts with Catholic Charities for the same reason because of the state’s law recognizing same-sex civil unions.

This seems like outright state hostility to religion, when viewed through Gary Bauer’s eyes. However, from a legal perspective, the 14th amendment demands equality before the law. If gay marriage is legal, then gays should be allowed the same rights as straights when it comes to adoption. And if an agency looking to work with the state on adoptions refuses to comply with equal protection clauses, those agencies should not get state funding.

Again, this can be greatly simplified if we refer back to other cases of equality before the law. Should adoption agencies be free to take state funds and refuse to allow interracial straight couples to adopt? Should state charter school funds be given to schools which admit white and asian students, but bar blacks and hispanics? The state itself is barred from discrimination in most cases, and while some wholly private organizations can discriminate, state adoption contracts and state school funding are most certainly not wholly private. If a religion wants to work WITH the government, they have to do so on the government’s terms.

I would think that if the arguments were advanced today, Gary Bauer would call the person advocating against interracial marriage a bigot. I think if someone were arguing for re-segregating the schools, Gary Bauer would call that person a bigot. A Gary Bauer of 50 years ago, I’m not so sure.

Of course, a Gary Bauer of only 3 years ago might give us a different tone:

Last week, a few days before Pope Benedict XVI’s visit to America, TV talk show host Bill Maher went on a profanity-laden tirade against the Pope and the Catholic Church. On his HBO Real Time program, Maher claimed that the Pope “used to be a Nazi,” and called the Catholic Church a “child-abusing religious cult” and “the Bear Stearns of organized pedophilia.”

The result: (Cue sound of crickets chirping.)

…

Maher believes he can get away with such overt bigotry under the pretext of “creative license.” As Maher said in his non-apology apology: “Now first of all, it was a joke, during a comedic context…”

And when the Catholic League confronted HBO about why it continues to give Maher airtime, the station insisted that his anti-Catholicism was a matter of “creative freedom.” Needless to say, such “creative freedom” would not be extended to those who make racist, anti-gay or anti-Muslim remarks. Ask Don Imus.

Based on a *very* charitable reading of that op-ed, one can potentially infer that Bauer things nobody should be fired for bigoted remarks, and that he’s merely upset at the double standard of the left. It seems, based on my reading of his article, that his concern with the double standard is that Bill Maher isn’t punished, not that right-wingers who make bigoted statements are.

Gary Bauer is not fighting for religious freedom, he’s fighting for the right to espouse bigoted politics with no social cost. Sorry, Gary, that’s just not how it works. You might not think that treating gays like they’re not worthy of the same legal rights is bigotry, but I’m afraid that an ever-growing portion of the country disagrees with you on that. If we call you on it, that doesn’t mean you’ve lost your right to free speech. It means we think you’re a bigot.

Officer Sashay Brown returned to work in May after having her second child. At first, she worked a desk job. Soon after, though, she was forced to patrol the city streets under a new department policy that was meant to force officers who had made dubious claims of health issues back to the street. The Washington Examiner first reported the new policy last week.

“Because of my condition, I am unable to wear my [bulletproof] vest,” Brown wrote in her June 12 request to be detailed back to her station on limited duty. “Wearing my vest is extremely painful and could clog my ducts and slow down the production of my milk supply.” She was then checked out by a department doctor, who advised that Brown be given a limited-duty desk job.

In a June 24 memo to Brown, medical services branch director William Sarvis wrote, “I have reviewed your case and determined that you will not receive authorization to participate in the limited duty work program.”

Sarvis said that until department doctors determine Brown is fit for full duty, she’d either have to take sick leave, or unpaid leave if she didn’t have sick days left.

I’ve been known to offer criticism for some police policies, such as the paid vacations administrative leave that officers often get placed on after shooting someone in a questionable fashion. Or, of the viability at all of public sector unions that work to allow “spiking” of pensions to ensure that officers retire at higher pensions than they ever received in salary. That goes without even getting into the militarization of police in the drug war and the “thin blue line” mentality towards whistleblowers that seems to pervade the industry.

I just don’t understand how you can have a workplace where all that goes on, but if a woman who wants to continue working, and has been advised by the department’s own doctor to go on limited duty, she gets told she has to take sick time or unpaid leave.

I simply can’t imagine such a double standard to be evidence of anything other than outright discrimination.

My family and I spent the past weekend with some friends in northern California, both of whom are police officers. We were discussing work, vacation time, etc, and the husband asked me how my employer accounts for sick time, and I told him that sick time is paid, accounted for separately from vacation time, and generally not really worried about unless someone abuses it to the point where it needs to be addressed. His response: “At least in the private sector you’re allowed to address it. We have some guys taking the max 25-30 days sick every year and can’t do a thing.”

I’m sure the new department policy in this case was put in place to crack down on people abusing the system — something that likely has been going on for many years. Applying the policy in what appears to be such a tone-deaf discriminatory manner is not likely to win them any PR points, and might get them slapped with a lawsuit. Well done, morons!

The post below is one I originally posted back in November of 2007 and my first post of any substance here at The Liberty Papers. I’m also very honored to say that this post was chosen by my peers (who I have such a great deal of respect for as thinkers, writers, and individuals) as #5 on the list of the “Top 10 Liberty Papers Posts of the last 5 Years” marking The Liberty Papers 5 year blogiversary. At the time I wrote this post, I had never even heard of The Innocence Project nor its aims to make one of the very reforms suggested in this post: compensation for the wrongfully convicted. The Duke Lacrosse case was also one of the hot issues when I wrote the post (and therefore may seem somewhat dated).

As ‘unbalanced’ as I thought the scales of justice were back then, I now know its much worse than I realized even back then. The Innocence Project is working hard to correct this imbalance but they cannot do it alone. Be part of the solution and help us reach our goal and if you feel so motivated, you can even set up your own page to help The Innocence Project reach their $20,000 goal by April 7, 2011.

Disclaimer: The views expressed here at The Liberty Papers either by the post authors or views found in the comments section do not necessarily reflect the views of The Innocence Project nor its affiliates.

The Scales of Justice Need Rebalancing

In civics class, we are taught a few lessons about the American criminal justice system: the accused is innocent until proven guilty in a court of law, has the right to a court-appointed attorney if the accused wishes not to pay for his or her own, has a right to a trial by a jury of his or her peers, and jurors can only convict the accused if there is a lack of reasonable doubt in their minds. We are told that the accused is guaranteed a fair and speedy trial. We are told the burden of proof falls on the state; the accused only has to provide reasonable doubt (meaning the accused ‘probably’ did not commit the crime). We are to believe that an individual who is innocent would rarely (if ever) be wrongfully convicted because our criminal justice system is about finding the truth and rendering justice.

What the civics classes usually fail to mention is that regardless of the fact that jurors are supposed to consider the accused innocent until proven guilty, it is human nature to assume the worst of someone who is accused of committing a heinous crime. Jurors come with their own biases and world views and may find it difficult to suppress their inclinations and deal with the facts of the case. The civics lesson also usually fails to point out that if the accused chooses to go with a court-appointed lawyer, he or she will not be as likely to have an as aggressive and competent advocate as the state will. If the accused makes the wise decision to pay for his or her own defense, he or she can expect to spend his or her entire life’s savings (and perhaps the life’s savings of other friends and family members) just to have competent representation. Even if the accused has the means to pay for such a competent lawyer, there are no guarantees that he or she will be found not guilty regardless of the evidence or whether or not the accused committed the crime. And if the jury finds the defendant not guilty, then what? Sure, he or she is technically cleared of the crime but he or she still has to pay all the legal fees for his or her lawyer and the fact that he or she was ever charged will remain on his or her criminal record.

The state, on the other hand, has virtually unlimited access to technology, witnesses, forensic, medical, psychological, and other expert witnesses and a virtually unlimited budget to pay for other resources necessary to prove to a jury the accused is guilty. The state also has its own lawyers; prosecutors from the District Attorney’s office. To some, DAs have a little more clout than a criminal defense lawyer (court appointed or not). After all, the DA’s job is to ‘put the bad guys behind bars’ while the criminal defense attorney ‘gets the bad guys off the hook’ by finding some sort of legal loophole.

In many parts of the country, the DA is elected to office. What do voters want in a good DA? The answer is usually someone who pledges s/he will be ‘tough on crime’. A DA who is running for another term in office will want to have a solid conviction record; otherwise his or her opponent will attack him or her for being ‘soft’ on crime. The DA’s position is now compromised to remain in office. No longer is it his or her job to necessarily pursue ‘justice’ but to secure a conviction—regardless of whether or not they convict a guilty person.

Now enter the media. If the case becomes a compelling enough story, the media becomes a factor. The media is something of a wild card because the media can help or hurt the accused based on whatever the media wants the storyline to be. Now the job of finding an impartial jury has become infinitely more difficult. Ideally, prospective jurors should know nothing about the case other than what has been presented them by the judge. If this proves impossible, some jurors may already have an opinion based on what they have seen or read in the news.

After considering all these factors that the civics class likely did not teach us, can anyone truthfully say the process is fair? I conclude that the process is not fair, neither for the accused nor for the victims. The scales of justice need to be rebalanced.

Certainly, there is no perfect system nor will there ever be but our system can be improved. One way the system can be improved is by correcting the imbalance between the prosecution and the defense. If the DA has access to all the experts, forensics, technology, with a virtually limitless budget, so should the defense regardless of if the defense is court-appointed or not. If the government wants to continue to tell us that the goal of the criminal justice system is justice, then the accused should have the ability to have a competent lawyer of comparable competence of the prosecutor regardless of the defendant’s ability to pay. In addition to this, every time the state discovers it has wrongfully convicted an individual, the state should be required to pay that individual for every year spent in prison (something on the order of $1 million a year), reimburse his or her lost wages, and expunge both the conviction and the original charges. Putting an innocent person in prison should be very expensive for the state.

I realize that some of my fellow contributors as well as others who read this might see this as a form of welfare. To you I want you to consider the following: the Sixth Amendment of the Constitution guarantees everyone the right to a fair trial complete with legal council provided by the government if the defendant wishes not or cannot provide his or her own lawyer. I cannot imagine the founders intended a system that would allow the government to overwhelm an accused citizen with money, power, intimidation, and influence while the accused is forced to either spend his or her life’s savings or risk being represented by inferior council. Unlike most welfare programs that we are opposed to, when a person is put on trial, his or her very liberty, and life in some cases, is at stake (Note, I would not approve of government funded council for civil matters. Civil matters should be handled with a ‘loser pays’ approach). If it is truly one of government’s few legitimate functions to aid citizens in protecting their life, liberty, and property from those who would take these basic freedoms away, this seems to fall under that umbrella.

The so-called Duke Rape Case has many of these unfortunate elements of our criminal justice system. The MSM had largely made up its mind that the Duke lacrosse players David Evans, Collin Finnerty, and Reade Seligmann had raped and/or sexually assaulted a stripper by the name of Crystal Gail Magnum (the name has largely been not mentioned in the MSM). Without any trial or any kind of finding of facts, Duke students and faculty protested in favor of Magnum’s allegations holding up signs and shouting about how these boys should be neutered. The president of Duke University also reacted by canceling the remainder of the team’s games.

By March 2006, the Duke case was a big story with the following narrative: rich white lacrosse boys brutally sexually assault poor, black stripper at a drunken party. The MSM ran with this narrative without spending much time looking into the accuser’s background or the possibility that the accuser was lying. Michael Nifong, the DA who was to prosecute the case faced an upcoming election. Nifong saw this as an opportunity to prove to the voters that these privileged athletes would not get away with what they had allegedly done. Convicting Evans, Finnerty, and Seligmann was so important to Nifong that he with held crucial DNA evidence from the defense and allowed the accuser to identify her attackers in a photo lineup which only included Duke lacrosse players. Nifong even failed to personally interview the accuser!

With the MSM and any overly zealous DA, the odds of receiving a fair trial were stacked against the accused players. To receive competent council which could hold up against the media and the state, the families of the players hired defense attorneys which cost $80,000 per month. This case is already almost into its 11th month. Though Nifong is facing the possibility of disbarment and possible criminal charges, the rape charges against the players have been dropped, and that the accuser’s story continues to change, the players still face other charges. Thanks in-part to talk radio, bloggers, and others in the alternative media asking questions the MSM failed to ask, everything seems to be swinging in the defendants’ favor. Evans, Finnerty, and Seligmann may receive justice after all but no one ever said justice was free.

The Duke case is but one high-profile example of a more widespread problem. Most individuals who are accused of a crime cannot afford to shell our $80 grand a month for quality representation. In Cory Maye’s case (for details of his story click here, here, here and here), he nor his family had the means to pay for quality representation which may be the reason he is spending his life behind bars now. Justice should not be reserved only for the O.J. Simpsons and Michael Jacksons of the world and denied to the indigent. In a just society, the scales of justice should not be weighed based on affluence, influence, or the lack thereof but should be blind and balanced…just as our civics teachers promised us.

This brings me to the question I want to pose to readers: what top 3 amendments would you make if you could and why?

Here are my top 3 in no particular order:

1. Rebalancing the Scales of Justice Amendment: The 4th 6th Amendment’s guarantee for the accused to have a court appointed [see comments below] lawyer is a wonderful idea but incomplete. Sure, the accused can be represented by a public defender but does not have nearly the resources available as the prosecution. My proposed amendment would go further than the 4th 6th Amendment and state that the accused would be guaranteed the same resources in his or her defense as the prosecution. For every tax dollar spent to prosecute a dollar would be made available for the defense (whether or not the accused uses a court appointed attorney). This amendment would also guarantee compensation for the wrongfully accused, hold prosecutors criminally and civilly responsible for withholding exculpatory evidence from the jury, and clearly state that a compelling claim of “actual innocence” (due to newly discovered evidence or technological breakthroughs) would be reason enough for a new trial for the previously convicted.

2. Term Limits Amendment: A single 6 year term for president, 2 terms for senators (keep the current 6 year term), 6 terms for representatives (keep the current 2 year term). These terms would be limited for consecutive terms only; if a president wants to make another run, s/he could do so after sitting out a term while senators and representatives would have to sit out a full 12 years (and make them deal with the consequences of their laws as private citizens for awhile) or run for a different office.

3. Accident of Birth Amendment: This would revise Article II, Section 1 removing the requirement that the president must be a natural born citizen and changing the requirement to match that of a U.S. senator. While this requirement might have made sense 223 years ago when the nation was getting started, we are now to a point to where we can do away with it. I don’t like the idea of disqualifying an individual for something s/he had absolutely no control over. Also, this would force the birthers to think about something else other than Obama’s birth certificate : )

Now it’s your turn.

On my Facebook feed this evening, I found this snibbet:

Every student deserves the opportunity to attend school and learn free of fear; however, this is not the reality for many LGBT young people in schools across the country. Jamie [Nabozny] experienced the kind of antigay verbal and physical abuse in his school in rural Ashland, Wisconsin, in the late 1980s and early 1990s that can only be described as the stuff of nightmares.

I know what you’re thinking. Michael, I thought you were a liberal. Or a libertarian. Are you about to become a conservative and attack the ACLU for supporting gay people?

No, not at all. What I will criticize the ACLU for is its segmenting the problem of school intimidation into being a “gay” thing instead of it becoming a larger social issue. Children have to face bullying in many of America’s schools that goes way beyond the jabbing that adults have to face, often with adults showing little compassion and instead speaking down to them.

I can attest to this myself. During the zenith of Seattle’s race-based quota system, I found my family relocating to the central part of Seattle, after living in northern Seattle. The cultural shock was extreme. While I’ve become far more knowledgeable of urban culture (I hesitate to say “black culture,” because it’s really more of an urban attitude that represents all colors), the bullying is still extreme in retrospect. The incidents were numerous: buying a pair of shoes I saw a cool kid wearing, that cool kid taunting me for copying him and hitting me upside the head with a metal object, causing my head to bleed and being falsely accused of sexual harassment by a girl in one of my classes I didn’t even know or ever talk to.

There was also bullying in the suburban school I had been to before, as there is everywhere. It was just more extreme at the inner city school. With incidents like Columbine and Virginia Tech, bullying really needs to be addressed on a large scale. Schools can’t have teachers on the payroll that could literally abuse a child and still be protected by a union. Teachers also should be made aware from day one that that kid in the back who is silent and sits alone at a lunchtable isn’t an antisocial troublemaker. He’s scared shitless. Chances are that most of the bullying he’s experienced will be summed up in his adult years as little more than childishness, but at the time, that’s certainly not how he feels. Having an arm around him and someone actually listening to him will change his life.

I certainly was that scared little boy, and I’m a straight white male. As long as public schools perpetuate more as prisons and forms of societal control than places of education, alienated young men will be produced. Utopia, being non-existent and likely impossible, is a very long way off but problems will never be solved with the ACLU approach of “school is hell for LGBT youth.” School is hell for youth period. Do something about it.

As the project has neared breaking ground, opponents and supporters have taken to the streets. “It’s an affront to the freedom that NARAL protects that these Christo-fascists would try to base their hate so close to our headquarters,” said Susan Colona, a NARAL employee. “It’s clear that they’re moving so close in order to threaten and intimidate the workers here at NARAL. It’s chilling, in the wake of the senseless murder of Dr. George Tiller, that they’re willing to escalate their actions.”

Protesters carrying signs with slogans such as “Go Back To Kansas” and “Keep Your God Out Of My Uterus” marched outside the headquarters. Supporters of the church countered nearby with opposing signs, “Abortion Is Murder — An Eye For An Eye” and “We Protect Those Who Can’t Protect Themselves.”

Pro-choice US Representative Donna Edwards (D-MD) sides with NARAL. “The actions of the picketers in support of this church are a clear example of hate speech. We are a country that values freedom of religion, and I don’t believe we can legally stop this congregation from forming, but I am deeply saddened that the church would choose such a site for their home.”

Pastor Elijah Williams, who would be heading the proposed church, doesn’t understand the fight. “While we as a church are generally against the practice of abortion, many within the ELCA are willing to make exceptions for circumstances such as rape and the health of the mother. In fact, Dr. George Tiller was a member of the ELCA, and we have publicly condemned Scott Roeder for his unconscionable actions. We are a peaceful church, and chose the site of our church because we thought it was the best place for our home, not because of its proximity to NARAL.”

Pastor Williams even suggested that the extremist protestors antagonizing NARAL were not from the ELCA, but rather sent by the Westboro Baptist Church, an organization known for sending protestors to funerals of US Servicemen killed in combat.

The fight doesn’t appear to be waning. NARAL has been searching for legal ways to fight the church, including potentially having the entire block declared a historic landmark due to its age. Stephen Simpson, a lawyer who had previously advised the ELCA on other matters, doesn’t see this as cause for hope. “What should have been a very simple process of building a home for a budding congretation is now likely to be derailed. Once national politics and the legal system become involved, this will become a circus. I hope the church and NARAL can come to some agreement to avoid this outcome.”

Given the contention between the parties, though, this appears unlikely at this time.

Even as shocking and outrageous as this footage was, I cautioned readers at the time that the videos only tell part of the story (the videos aren’t exactly of the best quality either). Officer Mehserle’s defenders at the time said that he was likely reaching for his tazer rather than his gun. If this could be argued to the satisfaction of a jury pursuant to California law, then Officer Mehserle’s actions do not satisfy the conditions necessary to convict him of second-degree murder but involuntary manslaughter*.

And that is exactly the conclusion the jury ultimately reached. I can imagine a very contentious deliberation where several believed Mehserle acted with intent to kill while several others believed the shooting to be accidental. Those who believed the former must have been outnumbered by those who believed the latter and decided to agree to the lesser charge to prevent the jury from being hung and take the risk that another jury would find him not guilty.

This is pure speculation on my part, of course, but involuntary manslaughter is the verdict. The more important question: is it possible that the jury arrived at a ‘right’ and/or ‘just’ verdict?

For regular readers of The Agitator, you may be a little surprised that none other than Radley Balko believes the jury reached the right conclusion, however unpopular. While I’m not in total agreement with Balko’s reasoning in his recent article in Reason, he does make a persuasive case.**

At the very end of the article, Balko speaks directly to those of us who are a little less than satisfied with the outcome of this case:

The anger at Mehserle’s conviction on a charge short of murder stems from the perception that cops who allegedly commit crimes are held to a lower standard than regular citizens accused of the same crimes […]

[…]

There’s also the appearance of a double standard. Mehserle’s defense is that he made a mistake. In the heat of the moment, Mehserle inadvertently reached for the wrong weapon. But Mehserle had training. He had other cops there backing him up. If we’re going to be sympathetic to him, we should also show some sympathy and understanding for people like Cory Maye and Ryan Frederick, both of whom were tried for murder for killing police officers who broke into their homes at night. Both Maye and Frederick say they mistook the raiding cops for criminal intruders. Maye was convicted of capital murder. Frederick’s jury opted for voluntary manslaughter.

That said, Mehserle shouldn’t be required to suffer the accumulated anger stemming from other problems in the criminal justice system. He should be convicted of—and punished for—the crime the evidence presented at his trial proves he committed, nothing more. His jury did the right thing.

I can’t fault the jury for doing the ‘right thing’ as I am sure this was a very difficult case for each individual. And technically, Balko has a very good point that it was the jury’s job to make a decision on the facts of this case rather than consider the injustices that have befell many individuals such as Cory Maye and Ryan Fredrick. And because each of these cases took place in different states each with different legal standards, we probably aren’t exactly comparing apples to apples.

The jury may have reached the ‘right’ or ‘just’ decision but damn it, it sure doesn’t feel*** like the right decision. It seems to me that if a police officer can be convicted with a lesser penalty for an accidental killing**** that those who don’t have the benefits of wearing a badge should be judged similarly.

I really wish jury instructions for defendants who happen to be police officers or other government agents would include something I like to call the ‘average person’ test. Put simply, the jury would be asked to consider if the actions of the defendant would fit the definition of the charge if the individual was neither a cop nor government agent. If it’s a crime for an average person to act a certain way than surely the same action is a crime regardless of his or her chosen profession (no matter how difficult).

This case was about whether Johannes Mehserle’s actions met these definitions not whether BART Officer Mehserle’s actions met these definitions.

See the difference? It wasn’t a uniform that was on trial but a man. Nothing more, nothing less.

If the jury decided that Johannes Mehserle, the individual, committed involuntary manslaughter, then I would be much more inclined to agree with Balko.

But as long as the perception (which is reality, I believe) remains that the double standard exists for the badges and the badge-nots, there will be jurors who will deliberate accordingly whether or not their decisions are ‘right’ or ‘just.’

* These were the only two options available to the jury other than ‘not guilty’ in this case.

** Read the whole thing; he makes some very good points that I haven’t mentioned here.

*** I prefer to approach these cases logically rather than emotionally (as Balko has) and I realize emotions are not a good substitute for reason. That said, it’s sometimes difficult for me to divorce myself from emotion entirely as I read of the injustices of our criminal justice system on a very regular basis. This Libertarian does have a heart despite rumors of the contrary. (Though don’t misunderstand, I am not saying that those who disagree with me on this are heartless)

**** I’m not at all convinced that this was an accident.

I had meant to get this post out yesterday, but I had to take the time to read the entire opinion… all 214 pages of it… and think about it for a bit.

This judgment is notable, both for what it does, and for what it does not do; and I want to go into that in some depth… and I want to go into some of the background and issues surrounding the decision that aren’t necessarily about the right to keep and bear arms

However, that is going to get long…. and if you aren’t interested in constitutional law and the nature and exercise of the rights and powers of the states, it’s going to be boring. There’s only so much you can do to make enumeration and separation of powers issues over more than two hundred years, all that interesting.

Note: Also, for those of you who DO closely follow con law, this is going to be a gross simplification in some ways. I don’t have time to write a book here, and a book is what it would take to cover this comprehensively (actually several… there are a few out there already, and Heller and its progeny are sure to generate more).

At any rate, I’m going to break it out into another posts, and I’ll update this post with a link when I finish the other one.

… I should warn you, I’m already 5,000 words in, and I’m probably less than half done…

McDonald vs. Chicago is the first major gun rights case brought before the supreme court under the clarified Heller doctrine, to wit:

The right to keep and bear arms for all lawful purposes is an individual right, possessed by all citizens and lawful residents of this country (provided this right has not been statutorily stripped from them, with due process of law); and the core of that right, is the fundamental right to defense of self, and others.

Actually, McDonald is a bit more than just “first”… In fact, the case was prepared in advance, and filed immediately on the handing down of the Heller ruling; by the lead counsel on the Heller case, Alan Gura.

The issue at hand in Heller was to affirm and clarify the basic right; something which those on the left in general, and in the gun control lobby in particular, had been trying to deny for something like the last 40 years

Note: The modern gun control movement as currently constituted really began in the late 60s; roughly coinciding with accelerating decay of civil order and rise in civil unrest, the rise of the drug and counterculture, and dramatically rising crime rates.

More than anything else, it was the assassination of Robert Kennedy, and Martin Luther King that kick-started the gun control movement as it exists today.

The gun control movement in the U.S. as a whole has its roots in racial discrimination against immigrants in the pre-civil war northern cites, and blacks in the post civil war south.

Up until the late 1950s, the left as a whole actually advocated gun ownership, as a bulwark against the state… a position generally ascribed these days to the “far right”; but as the left post 1932 increasingly BECAME the state, their position on civilian non-police gun ownership changed.

The issue at hand in McDonald is substantially identical to Heller, with a crucial difference we’ll discuss in a moment; that of incorporation of the second amendment against state and local governments, as other rights enumerated in the bill of rights have been.

In Heller, the substance and nature of the right were affirmed. However, though the assertion of the right is very clear; it’s application is potentially limited.

Because the Heller case pertained to a federal enclave (Washington D.C. is not a part of any state. It is a federal enclave. Precedent in DC cases applies federally, but not necessarily to issues in the several states), the ruling only explicitly applied to the federal government.

In principle the right could be asserted against the states, or it could not be… depending on judicial interpretation. Either way a judge decided, it would almost be certain to be appealed… as indeed it was (in at least four cases so far, all of which were delayed pending the McDonald ruling).

Also, Heller left various questions open to interpretation, such as the standard of review for laws pertaining to the right to keep and bear arms, and whether interest balancing tests could be made.. or for that matter just what types of laws would be acceptable short of outright bans on firearms in the home (which were explicitly forbidden).

In Mondays decision on McDonald, it was affirmed (quite strongly), that the rights protected by the second amendment are equal in stature to the rights protected by the first amendment, and all the others.

In both the majority opinion, and the concurrences, the court made it explicit that the protections afforded by the second amendment applied against the state. Further, they made it clear that a strict standard of review was to be applied to any law regarding the right to keep and bear arms (though they do not by any means disallow all regulation. In both Heller and McDonald, it is acknowledged that some regulation of any right can be acceptable, but must be strictly scrutinized).

There is still one set of questions to be resolved, what exact restrictions against keeping and bearing arms will be acceptable under this standard of review. Just as there are many limitations against speech permitted by current jurisprudence, including many which probably should not be allowed under the constitution (such as most of what is called “campaign finance reform”); there will likely still be substantial restrictions allowed by the court. In any case, it will be years… likely decades… before the whole issue is settled law, and in the mean time, there will be a lot of contradiction and chaos.

The fight is certainly not over… in fact it’s really just getting started.

This is where we get into the theoretical discussion about the constitution, so I think I’m going to end here and pick it up in the next, much longer, post.

When I saw Michael’s post this morning, I was a little bit surprised. I was expecting him to make the argument that States’ Rights don’t exist. In fact, I was waiting for one specific statement that I’ve heard from those who attack the notion of states’ rights many times over. Thankfully, two comments in, commenter John222 made the point:

States don’t have rights, individuals do. Better would be to say, “The interest of the State in protecting the rights of it’s citizens”.

This is a common statement among libertarians, and although I’ve probably used it in the past, there have been points where I’ve become troubled by it.

Michael made some very important points in his post, and these are points that must be answered. However, to begin, we must have an understanding of the origin, the nature, and the limitations of states’ rights. Only by setting this groundwork may I refute Michael. But first, a caveat. In order to make the points I must make, I must work with two critical assumptions:

1. Natural rights of individuals exist.
2. Constitutional democratic government is legitimate.

For those that have read my previous work, it should be understood that I believe neither of these assumptions. I am a philosophical anarchist, and while I can construct a non-theistic basis for natural rights theory, I view them as artificial constructs, not incontrovertible truths. However, we must work within the framework we have, and thus I will concede these points for the purposes of this post. For the purposes of discussion and comments, please try to take these two premises at true, and if you have a problem with the argument flowing from those premises, attack the argument.

Let’s start at the beginning:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just Powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Here’s the base. Natural rights are the area where we say to government: “Over this line you may not tread.”

Individuals have certain natural rights, and they empower governments to help them protect these rights. The statement that “States don’t have rights, only individuals do” does not account for what we consider the social contract. Individuals enter into an implicit contract with their government, offering to entrust some of the rights they hold in the “state of nature” to their government in order for cooperation and protection of those rights. Those governments do not gain *new* rights as governments, but they inherit the rights of those they are designed to protect.

Natural rights theory does not hold that individuals give up their rights to the government, the rights are retained. It is best to be understood as a legal contract — individuals freely, by exercise of their rights, create their government. They voluntarily empower their society — their government — to protect their rights. A government that reaches beyond the legitimate power of protection of those rights, as Jefferson himself states, deserves no longer our assent or our support. If said government treads beyond the lines defined above, that government has violated the social contract.

“Government”, of course, is not a singular entity. Governments are hierarchical, competitive, and numerous. In many cases, we are under the jurisdiction of several governments — entities within entities. In many cases, the governments we live under must make compacts with other governments outside our territory — treaties — in order to help complete the tasks which we have empowered them. Each of these agreements are contracts or compacts. Rights of the citizens of the government are not abridged, they are retained — at least if the government empowered to act on behalf of its inhabitants are legitimate.

How, then, do we describe the relationships between these levels of government or between competing governments? How do we define the lines over which they may not tread? Let’s take one example: borders. What are borders, other than the territorial lines defining the government which protects the rights of its inhabitants? What do we call a government’s relation to its borders? Territorial rights! Now, of course, these rights are not that of “the government”, but they are the territorial rights of which the individuals supporting that government have ceded to their government to protect.

Likewise, how do we define our US Government’s relationship to the United Nations and the nations of the world? We use the term sovereignty: the inviolability of our government to the others of the world — the statement that our government has “rights”, i.e. lines over which those other governments may not tread.

The nature of the United States Government and its relationship to its constituent States is a tricky one, historically. The United States Constitution — our governing document — is a compact between states, not a contract directly between the federal government and the people. Historically, the people of the several States entrusted their governments — the entities to which they had entrusted their rights for protection — to form a federal republic. One may support the claim — at least until 1865 — that the States retained sovereignty, and that they had contractual RIGHTS as constituent members of that federation.

These rights are not inherent to them, as States. These rights are the rights entrusted to them by their inhabitants, and the rights they are protecting are not the rights of the State as State, but a collective bargaining arrangement to protect the rights of their inhabitants. Regardless of how you define this, though, the rights exercised are contractual rights exercised by the States on behalf of their inhabitants. The States drew a line, and told the United States Government “over this line you may not cross.” For the United States Government to cross that line would allow the State, if it so chose, to exercise its sovereignty and break the contract — secede.

These rights are not without limit, though. We previously stated that government is created by individuals in order to secure their natural rights. But those rights are retained. A government which does not secure those rights — a government in fact which violates them, is not a legitimate government at all and may be disbanded. Likewise, federal governments or supra-national bodies do not have super-natural powers — they are still only as legitimate as the rights of their constituent states (and thus the rights of their constituent inhabitants). If the United States Government attempts to violate the sovereignty of the states in order to violate the natural rights of its constituent inhabitants, it is just as illegitimate as if the individual state takes that action…

…which finally brings me back to Michael’s post!

Specifically, this country is, and always has been, a work in progress. I said it was illegitimate for a federal government to violate the sovereignty of its constituent States and if a federal government were to do so, it would justify secession. However, while Michael says he wouldn’t cry crocodile tears if the South had been allowed to secede, the South’s secession would not have been justified under States’ Rights theory. Why? Because slavery — a State deliberately violating the natural rights of its inhabitants — is not a legitimate government, and thus the Southern States did not have true sovereignty. A government which violates the natural rights of its inhabitants as a matter of design cannot be granted the authority to act on behalf of its citizens.

The Fourteenth Amendment, in the wake of the Civil War, finally codified this statement. Prior to this, the United States Constitution did not have a method for the Federal government to impede the States from abridging the natural rights of its citizens. (Of course, one can infer from this that the Civil War was illegal, but the destruction of slavery in the South can hardly be described as immoral). It should be stated that Michael’s quote from George Wallace was not truly a defense of States Rights. Those rights of States to discriminate by law against their citizens had long been removed via the Fourteenth Amendment. If he truly believed that the right of the State was inviolable (I doubt this to be the case — I personally think it likely that “States’ Rights”, like patriotism, just happened to be the last refuge of a scoundrel), he was simply wrong.

Michael is correct, of course, that in the intervening century, the term “States’ Rights” was used by all manner of racists, supporters of Jim Crow, and people who are “defiant of settled law”. In American politics, terminology tends to have this problem — terms become appropriated by unsavory characters, and the terms themselves pick up unsavory connotations. We “libertarians” constantly bemoan the fact that our previous label, “liberal”, as appropriated by big-government Democrats. We had to abandon the term completely and build a new one. States’ Rights has some of that connotation, but by definition that doesn’t not negate the concept of those rights.

The term “States’ Rights” may, in fact, be coming into a renaissance. As Michael points out, individual states are fighting the Feds on medical marijuana, and California — the state where we both live — has a ballot measure in November to legalize marijuana entirely. This is in direct contravention of the Controlled Substances Act, but more importantly, this is a state protecting its citizens from the overreaches of Washington!

But again, look at the nature of government. A State government that violates the natural rights of its inhabitants is acting illegitimately. At the same time, a Federal government that violates the natural rights of its inhabitants is acting legitimately. In this case, it is right for the inhabitants of a State to pool to their rights collectively — using their States’ rights — to protect themselves from the Federal government on their behalf. Individuals often have little recourse against the Federal leviathan. They need all the help they can get.

Either way, I think that Michael did not prove, as I thought he would attempt, that states don’t have rights. He did make some valid points that the terminology of states rights had been hijacked for the last century by those State governments who wished to protect their racist fiefdoms. But he belied his own point by bringing up the fact that the very same terms are also being used by States to protect the liberty of their inhabitants from Federal overreach.

That might be an awkward day, but it’s a great chance to teach my kids about respect, and to treat people as individuals rather than by some “group identity”. In some ways, I think they’ve got an advantage. Growing up in a very sheltered environment as I did, I met them (through my wife) as “gay Manny & Chuck” instead of “Manny & Chuck, who happen to be gay”. It took me time to learn to treat them as individuals first and as members of a “group” second. My kids will be lucky enough to know them as individuals first, and then as they become old enough to understand a little bit more about the world can put the rest of the pieces together.

But Congressman Ike Skelton of Missouri would prefer that his constituents and their children grow up in a world of ostracizing those who are different. Here’s why he’s going to push against the repeal of DADT:

“What do mommas and daddies say to a seven-year-old child about this issue? I don’t know,” Skelton said. “I think it would be a family issue that would concern me the most … What they might see in their discussions among the kids.”

Really? That’s why you’re going to block DADT?

First things first. The whole argument is a red herring. I can’t imagine that some 7 year old is going to ask their parents question about some hypothetical gay soldier. They’re probably going to ask questions about some classmate who’s getting teased every day because he’s got two daddies who hopped the border to Iowa to get married, or because he overheard someone singing Katy Perry’s song, “I kissed a girl”. DADT is going to be a non-starter.

The truth is that it’s not going to be possible for Skelton to shelter all the parents of Missouri from these questions. The only way for Skelton to be sure that parents don’t have to have these discussions with their children is for gays to not exist at all. That’s may be his ideal world, but it’s certainly not reality.

But let’s say the question comes up. Let’s say that some politically astute 7 year old asks his parents whether gay people should be allowed to serve in the army. And just for the sake of argument, I’m going to try to put myself in the character of a typical conservative, red-blooded, patriotic Christian parent from Missouri. This certainly isn’t the answer that I would give, but I think it’s an answer that would allow them to teach their kids true American values without impinging on the morality they’re trying to instill.

Kid: Daddy, why is it that they let gays in the Army? Doesn’t Jesus say it’s wrong?

MO Parent: Yes, son, that’s correct. But this is America. It’s a free country, and even though it’s not something we approve of, it’s not something that we can or should make illegal. Soldiers exist to protect freedoms, even some freedoms that we don’t approve of. There’s no reason that we should discriminate to stop gays from joining in the fight to protect those freedoms, is there? They may have to answer to God someday, but they shouldn’t have to answer to Washington.

Was that so hard?

Hat Tip: Kevin Drum

First, from the New York Times:

NO MORE LIFE SENTENCES FOR MINORS WHO HAVEN’T MURDERED…. In yet another 5-4 ruling, the Supreme Court said this morning that incarcerated minors can’t receive life sentences if they haven’t killed anyone.

By a 5-4 vote Monday, the court says the Constitution requires that young people serving life sentences must at least be considered for release.

The court ruled in the case of Terrance Graham, who was implicated in armed robberies when he was 16 and 17. Graham, now 22, is in prison in Florida, which holds more than 70 percent of juvenile defendants locked up for life for crimes other than homicide.

“The state has denied him any chance to later demonstrate that he is fit to rejoin society based solely on a nonhomicide crime that he committed while he was a child in the eyes of the law,” Justice Anthony Kennedy wrote in his majority opinion. “This the Eighth Amendment does not permit.”

The Eighth Amendment, of course, prohibits cruel and unusual punishments.

Justices Alito, Scalia, and Thomas dissented. Chief Justice John Roberts also sided with the minority, though he agreed with the majority on the specific case of Terrance Graham’s fate.

In Justice Kennedy’s majority ruling, he made note of the “global consensus” against life-sentences for youths who haven’t committed murder. The sentence will likely enrage the far-right, which tends to throw a fit when justices take note of international developments.

In a concurrence, Stevens, joined by Ginsburg and Sotomayor, threw an elbow at one of their colleagues: “While Justice Thomas would apparently not rule out a death sentence for a $50 theft by a 7-year-old … Court wisely rejects his static approach to the law. Standards of decency have evolved since 1980. They will never stop doing so.”

and in a complete reversal of logic, this judgement:

AP: High Court: ‘Sexually Dangerous’ Can Be Kept in Prison

WASHINGTON (May 17) — The Supreme Court ruled Monday that federal officials can indefinitely hold inmates considered “sexually dangerous” after their prison terms are complete.

The high court reversed a lower court decision that said Congress overstepped its authority in allowing indefinite detentions of considered “sexually dangerous.”

“The statute is a ‘necessary and proper’ means of exercising the federal authority that permits Congress to create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those imprisoned and to maintain the security of those who are not imprisoned by who may be affected by the federal imprisonment of others,” said Justice Stephen Breyer, writing the majority opinion.

President George W. Bush in 2006 signed the Adam Walsh Child Protection and Safety Act, which authorized the civil commitment of sexually dangerous federal inmates.

The act, named after the son of “America’s Most Wanted” television host John Walsh, was challenged by four men who served prison terms ranging from three to eight years for possession of child pornography or sexual abuse of a minor. Their confinement was supposed to end more than two years ago, but prison officials said there would be a risk of sexually violent conduct or child molestation if they were released.

A fifth man who also was part of the legal challenge was charged with child sex abuse, but declared incompetent to stand trial.

The 4th U.S. Circuit Court of Appeals in Richmond, Va., ruled last year that Congress overstepped its authority when it enacted a law allowing the government to hold indefinitely people who are considered “sexually dangerous.”

But “we conclude that the Constitution grants Congress legislative power sufficient to enact” this law, Breyer said.

Justice Clarence Thomas dissented, saying Congress can only pass laws that deal with the federal powers listed in the Constitution.

Nothing in the Constitution “expressly delegates to Congress the power to enact a civil commitment regime for sexually dangerous persons, nor does any other provision in the Constitution vest Congress or the other branches of the federal government with such a power,” Thomas said.

Thomas was joined in part on his dissent by Justice Antonin Scalia.

It seems clear to me, that both of these decisions are examples where justices are deciding a case based on what they want to do and finding a way to justify it, rather than a considered opinion of the law and the constitution.

In the first case, the majority came to what I believe is the right decision on constitutional ground, but for what appear to be the wrong reasons. The minority on the other hand are supporting an unconstitutional practice, based on pragmatic considerations.

In the second case, the majority supported a CLEARLY unconstitutional practice for pragmatic reasons; and the minority dissented based on the constitution.

Both cases however, highlight a major problem with our “justice system” today: We can’t deal effectively with our criminals, our prisoners, or our prisons.

There are many reasons for this of course, but what it comes down to, is that there are too many crimes, too many criminals, and too little honesty in how we deal with either.

Both of these cases are about recidivism. The plain fact is, more than 40% of people who go to prison, go back. More than 60% who go to prison for violent crimes go back. More than 80% who go to prison for sex crimes go back.

There have been a number of attempts at dealing with these difficult facts; none of them effective, and most of them unconstitutional.

In the case of the criminals under 18 being imprisoned for life because of sentence enhancements… The problem here isn’t that it’s a 17 year old in prison for life for something other than rape or murder… Its that “sentence enhancements” even exist at all.

Firstly, I think the whole “global consensus” thing is not only irrelevant, but dangerous and unconstitutional (interpretation of American law should ONLY be based on the Constitution, and the constitutions of the several states)

Yes, the law evolves, and yes it is influenced by changing moral standards, which is influenced by world culture.

When we wrote our constitution, it was in large part based on principles inherent in English common law; as was the early constitutional scholarship and interpretation until we built up our own body of case law. The goes further back to the greeks, romans, even the Assyrians. Certain basic principles of law and justice are universal; or have filtered up through from the earliest formalized conceptions of both rights, and laws.

However, it is important that case law be consistent with the written constitution; and that any case law which is not be ignored in interpretation of future cases, and hopefully be reversed.

If the American people want to change their constitutions, they can. There is a mechanism for that. Until they do, there should be no other arbiter for American law than the constitution.

One of the fundamental principles of jurisprudence is that the law should be knowable, and predictable; not arbitrary and capricious. One should not need to follow “evolving moral standards” and case law in other countries, to know whether one is violating the law.

In a system where ignorance of the law is no defense, the law must be written and knowable. The fact that in todays world it is not; is not an indication that we have evolved morally, it is an indication that modern jurisprudence is profoundly broken.

All that said however I agree that the law in question should have been struck down, just for a different reason.

I believe that “sentence enhancement” conditions are themselves a bad thing. They are invalid and unconstitutional as far as I am concerned. A crime is a crime, and one should be punished the same way for the same crime, as everyone else.

Certainly, there can be special circumstances, but they shouldn’t increase punishment; a maximum punishment should be set, and that’s it. There should be discretion for judges to reduce sentences, but not to increase them. Three strikes laws, hate crime enhancements, all of them need to go.

The problem that three strikes laws are intended to solve (high recidivism rates), is more properly addressed by longer or more harsh initial sentences, combined with better rehabilitation and reintegration efforts, and a better running of our penal system.

In the second case, we again have an issue of inappropriate sentencing.

Genuine sexual predators (rapists, molestors etc..) need to be put away for life without parole, or they need to die (though I have grave reservations about the death penalty). Either way, they need to be permanently removed from society.

For some reason, we treat sex crimes as far less serious than major property crimes, or other violent crimes; as if rape were not every bit as serious as attempted murder (believe me, it is).

Some things require ultimate sanction, and serious sex crimes are among those things.

On the other hand though, we now classify the most piddling things as sex crimes. Right now, we have hundreds of 18 and 19 year old young men in prison around this country, for having consensual sex with their 17 year old girlfriends (somehow, we almost never imprison older young women for sex with teenage boys). We make people register as sex offenders for having consensual sex in the back of their cars in a parking lot…

Which just reinforces the point: We’re broken both ways. We are far too harsh on one side, and far too lenient on the other; and just plain broken all the way around, because a sentence doesn’t mean what it says it means.

The very idea that a state official can simply decide you are too dangerous to be let out of prison, EVEN THOUGH YOUR JUDICIAL SENTENCE IS OVER… It’s disgusting. It’s abhorrent to the very nature of our country, and our constitution.

Three strikes laws, sentence enhancements, sex crime laws… All are seriously broke; because they are attempting to deal with practical problems, in an impossible way. You can’t achieve the goals they’re trying to achieve, with the techniques and tools they are using.

We’re broken. We need to fix it. We need to protect society from real criminals, real dangerous people, real evil people; and we need to provide a strong incentive for the “casual criminal” (and we are all “Casual Criminals” now). But we need to do it, without destroying what it means to be American.

In order to do this, we must first reduce our prison population, not by releasing the truly dangerous; but by DRAMATICALLY slashing the amount of people we imprison (both today, and in the future).

The first thing we need to acknowledge, is that the so called “war on drugs” has not only failed, but was wrongly conceived in the first place.

Imprisoning people for drug use simply does not achieve the goals it is intended to achieve. It doesn’t reduce drug use at all. It doesn’t reduce crime at all, in fact it increases it. It turns people who might otherwise be productive… or at least LESS of a drag on our society; into total dependents. It frequently makes them into “harder” criminals.

It just doesn’t work.

Frankly, I think we should entirely decriminalize drug use and possession; even if we choose to maintain prohibition on importation, sales, and distribution.

Then there is the question of the proliferation of felonies… Damn near everything is a felony these days. Two students in Virgina were charged with felonies last year for THROWING SNOW BALLS. Schoolchildren have been charge with felonies for drawing pictures with guns in them…

Felonies are supposed to be reserved for “high crimes”. Those things which must be punished by long term removal from society.

Does anyone really believe it is necessary to send someone to prison for two years, for serving hotdogs wrapped with bacon out of a cart (yes, that is a felony in several jurisdictions in this country).

The fact is, we classify far too many things as felonies, which simply should not be. We need to eliminate most of those felonies.

What it comes down to, is that we should reclassify most non-violent felonies as misdemeanors, and eliminate custodial sentences for them; substituting EXTREMELY HIGH fines, and supervised restricted release (ankle bracelets etc…).

Combined, that would reduce our prison population by more than three quarters immediately (the drug changes alone would cover 60%). This would allow us to deal with the remainder of that population more appropriately. More harshly for those who need it, and with a higher focus on rehabilitation for those who are willing to make the effort.

Importantly, it would allow us to eliminate early release for those who have not made serious and genuine rehabilitation efforts; allowing prison officials and judges to exercise discretion appropriately.

Perhaps when we no longer have to be so concerned about overcrowding, and inappropriate early releases, and imprisoning those who should not be; we can restore some sanity to the system as a whole.

But that’s all related to the practical issue.. The pragamatic justice as it were..

The bigger issue here, is that under todays conception of jurisprudence, it is impossible to know or understand whether you are breaking the law or not. Whether your crime is a felony or not. Exactly what that crime might be, or what the punishment for it might be.

That isn’t law, or justice; and it isn’t what our country is supposed to be.