Far be it from me to sit in judgement on the Supreme Court, but then playing armchair judge is a pastime for most of America. And the case of American Legion v. American Humanist Association practically begs for review (pardon the pun), particularly with so many individual opinions being written in spite of the 7-2 ruling (to be honest I wasn’t aware the Court could even issue anything other than a 5-4 ruling anymore). In this case I think the Court got it exactly wrong largely based on those express opinions as reported in the Washington Post, which I will be referencing throughout this piece, so feel free to call me out if there is some nuance of legal thought I am overlooking by not reading the entirety of their opinions. However I do believe the underlying premise is sound.
The initial argument is basically that a cross on public land favors a specific religious point of view, which is unconstitutional. The mental gymnastics that the justices who voted to allow the cross to stay had to go through are particularly astounding, and the fact that so many of them took so many paths to get there shows that there really isn’t any clear logic or reasoning to support it, unlike the opposition argument. Note that this in itself does not indicate they are wrong; there can be several good arguments in favor of something, and reasonable people can disagree about which one is the best. However the fact is that none of the arguments put forward by the justices are good or even sufficient arguments, particularly as a matter of practical law when considering that they will be used as precedent in other cases.
What sort of cases? Consider for a moment the issue of Civil War memorials. While many of these memorials may not have a religious component, some may, and all of them are subject to First Amendment challenges (either by those who want to tear them down or those who want to keep them up). Let’s consider the justices opinions in terms of these memorials:
Justice Alito, from the main opinion (WP):
“For some, that monument is a symbolic resting place for ancestors who never returned home. For others, it is a place for the community to gather and honor all veterans and their sacrifices for our Nation. For others still, it is a historical landmark. For many of these people, destroying or defacing the Cross that has stood undisturbed for nearly a century would not be neutral and would not further the ideals of respect and tolerance embodied in the First Amendment.”
Alito was joined in deciding that the cross may remain by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Stephen G. Breyer, Elena Kagan, Neil M. Gorsuch and Brett M. Kavanaugh.
Take out “the Cross” and replace it with “the monument” and this passage would apply equally well to every Civil War memorial in the country. I know from personal experience it would apply to the entirety of Monument Avenue in Richmond, VA.
Justice Gorsuch, according to the Washington Post, “would have dismissed the case because he believes the “offended observer” has no legal standing to sue.” So if you’re offended by Civil War memorials… tough titty.
“Breyer said he was persuaded by the specifics of the case: that crosses are specifically linked to World War I sacrifice and that the cross had stood for 94 years without controversy.” (WP) Oh, good. Because the Civil War happened before WWI, and many of those monuments stood even longer than that without controversy. Because, y’know, a lack of controversy in the past totally trumps any present controversy. Or future controversy. Just ask Dred Scott.
To be fair, a couple of justices did give me hope of nuance, even if I didn’t love the way they decided. “Kagan praised Alito’s ruling, but said she refused to join it in full “out of perhaps an excess of caution.” “Although I too look to history for guidance, I prefer at least for now to do so case-by-case, rather than to sign on to any broader statements about history’s role in Establishment Clause analysis,” she wrote. Kavanaugh said that the decision allows the cross to remain on public land but does not require it. Maryland officials could make other arrangements, he said, such as transferring the land to a private group.” (WP) From reading these comments, I’m almost persuaded to believe they might be thinking about the same sort of issues I am. Of course I might be flattering myself (wouldn’t be the first time), but it is nice to see a bit of judicial restraint even in the face of a poorly decided issue.
I understand that reasoning by analogy is flawed, but I am only using an analogy to highlight my point, not to establish it. And the point is this: decisions coming out of the Supreme Court, particularly ones that have a sizable majority such as this one, set a strong precedent for the entire country. I am a fan of stare decisis and history as much as the next Court watcher, but even more I am a fan of an awareness of the future and what it might hold. While nobody can predict that with even a reasonable modicum of accuracy, it’s not too hard to draw reasonable conclusions from the present, and a bit of restraint in current decisions could yield significant room to maneuver in future cases.
To this point I have (with great restraint) avoided voicing any sort of opinion on the Kavanaugh controversy, and I will continue to do so, except to say that I believe very strongly that the best course of action is to investigate the allegations seriously so as to avoid any uncertainty in the event that Judge Kavanaugh is confirmed.
Democrats also need to accept the reality before them, which is that even if Kavanaugh is not confirmed (whether he withdraws or is down-voted), the very real likelihood is that there will be another conservative justice on the court. The only way this wouldn’t happen is the near-impossible confluence of events whereby the current nomination is dragged out past the current election cycle, Democrats take over the Senate, they manage to keep any and all vacancies open for two full years, and then keep control of the Senate and win the White House. Impossible? Stranger things may have happened, but not by much.
What I am interested in however is the discussion that is not happening. Once again we are being presented, by both sides, with the rankest sort of hypocrisy, and nobody is being called out on it because it is politically unfeasible to do so. Without getting into the specifics of “did he or didn’t he”, “is she telling the truth or is she lying”, my concern is with the way both sides have already taken a stance on whether a person’s actions as a teenager should determine their fitness for higher office (much) later in life. This is particularly galling as in their standard approach to criminal justice the left and the right tend to have opposite stances to the approach they are taking in this case.
Liberals tend to be very much in favor of rehabilitation over incarceration, with the eventual goal being reintegration into society. Judging someone in their fifties by a crime they committed in their teens, let alone something they were merely accused of committing, is seen as a horrendous offense…usually.
Lest anyone think I am letting Conservatives off the hook, think again. Conservatives cast themselves as “law and order”, with incarceration being the law and “paying your debt to society” being the order. Like a loan shark that debt never seems to quite get paid in full for most people once you get under the thumb of Johnny Law… unless you happen to be of the privileged class. “Pearl clutching” and “NIMBY” are phrases that seem to have been tailor-made to go hand-in-hand for these folks.
Consider then that this year and in the years to follow we have hundreds if not thousands of individuals on both sides of the political divide who could be considered nominees for political office. With that in mind, I have a few questions I would like to pose to them:
- If someone were accused of a misdemeanor as a minor, should they be able to vote?
- Should they be able to hold any public office?
- What if it was a nonviolent felony?
- What if it was a violent felony?
- What if they were convicted?
- Same questions as above, only the crimes occurred when they were an adult.
- If you answered “yes” to any of the above questions, is there any specific limit of time they need to wait? Are there any actions they need to take beyond serving their sentence if any (e.g. restitution) before they would be eligible?
Feel free to make your answers as short or as long as you like, but please none of the usual dodging or bloviating. Everyone seems both eager and capable enough to take a clear stand on whether or not they believe and support either Judge Kavanaugh or his accusers. Just this once it would be nice to get that kind of clarity on something else.
A lot of folks are upset about the outcome of the Masterpiece Bakery case, on both sides. Considering my feeling on the case was “a plague on both your houses”, I’m actually quite content with it. (You may now all commence throwing rotten vegetables and fruit.) Yes, I hated all parties involved. Why you may ask? Because this was a case where there could be no winners since they were all losers.
The couple involved threw a fit because they were denied a specific kind of cake (not any service at all, just that one kind of cake). Rather than just go somewhere else and write a nasty review on Yelp, they quite literally made a Federal case about it. Meanwhile, the baker involved decided that his personal beliefs prevented him from crafting a cake and pretending it was for Adam and Eve instead of Adam and Steve. Look, I have had to do a lot of things I object to at jobs in the past, and likely will have to in the future, so I have zero sympathy for him. Instead of shutting up and taking their money, he quite literally made a Federal case about it.
Cases like these tend to push me back toward my libertarian roots. My preferred method of resolving such things is to say “vote with your feet”, or better yet, “vote with your wallet.” Some jerk won’t provide you with the service you want? Find someone who will, and let everyone know why you won’t be patronizing his business anymore. Don’t be crude, but spell out exactly what happened in no uncertain terms. If the community backs you, they’ll avoid his business like the plague, and pretty soon he won’t have a business anymore. Customers making what you consider to be unreasonable demands? Either you’re right and the community will back you, or you’ll be appealing to a smaller and smaller niche market… assuming there’s a large enough niche to support you.
You will notice this doesn’t create immediate, clear and simple “Gotcha!” victories for either side. And that’s kind of the point.
Call it “developing community standards”. Call it “winning hearts and minds”. Hell, call it “the tide of history” if you want. The idea is that people make their own choices individually, as individuals, and the sum total of those choices show us what we value as a community. Not “who can shout the loudest”, “who has the most followers on Twitter”, or “who’s the most photogenic teenager on the news this week”. It also doesn’t involve who can win the largest segment of a quickly shrinking electorate so they can appoint the right judges to swing the case their way.
It may not result in moments of immediate gratification, but those moments of immediate gratification tend to be overshadowed by the decades of blowback they generate. The decades of gradual progress that come from individual choices tend to be slower but not nearly as messy or painful in the long run.
This post is a long overdue promise to The Frazzled Slacker outlining my views on gay marriage. All opinions are my own. No legal advice is intended or implied. Not taking my advice is a good idea in any case.
So at long last the Supreme Court is addressing the issue of gay marriage. I for one am thrilled, since it’s about time we get some clarity and put this issue to rest once and for all, as we have with other contention issues before.
All joking aside, I do think it’s time the high court stepped in. We have a plurality of answers on this question in different jurisdictions, and it is a matter that has implications both nationally and across state lines, which is a proper role for the Supreme Court. More so, it is a civil rights question, in that the heart of the matter is to what extent the State can and should regulate the institution of marriage.
And that right there is the first point I believe needs to be made in this debate, and one that seems to be lost in much of the heated rhetoric. Before anyone makes demands about what should and should not happen, we need to draw the lines very clearly: this is, and should remain, strictly about the role of the State in the institution of marriage. No person or group’s personal beliefs should impact, or be impacted by, these cases. If a particular religious organization wants to refuse to marry a gay couple, they should maintain the right to do so; it is theirs to decide, in the same way they can decide not to marry a straight couple on any grounds (IMNSHO).
With that out of the way, we are led to the question of “what exactly is the role of the State in the institution of marriage?” As I understand it, the State has traditionally had a handful of roles, and in recent history (the last hundred years or so) has taken on a few additional roles as well. Once we define those roles, it should be relatively easy to tease out the question as to whether or not (a) homosexuals share those rights with heterosexuals, (b) whether heterosexuals would suffer any significant harm in sharing those rights with homosexuals, and (c) whether society writ large would suffer any harm from allowing homosexuals to exercise those rights.
The traditional roles, as I understand them, are to encourage child rearing, social stability, and guide the process of inheritance. End of line. The additional roles that the government has taken on have been to grant certain rights such as tax benefits, Social Security benefits, and various and sundry other spousal benefits such as visitation rights, next of kin in medical matters, etc. to married couples.
To the first question: do homosexuals even have these rights? According to the state of Kansas, a lesbian can be a single parent, so by logical extension, a homosexual can have parental rights. While Kansas has in this case proven they prefer not to encourage child rearing, one would think it would be desirable to support couples that prefer to rear children together rather than attempt to sue someone in an iffy court case, and that’s of course assuming there was no proper waiver and doctor present to even allow a lawsuit to move forward.
As for social stability, setting aside the obvious counter-argument that rhymes with “fifty percent bivorce rate” there is the simpler counter-argument: given a choice between encouraging couples to be monogamous and stay together rather than NOT encouraging them to do so, when your purported goal is a more stable society, why wouldn’t you?
Finally, the question of inheritance is, again, simple on the face of it. Any individual has the right to assign their estate as they see fit in a will; simply assuming that next of kin would be the logical beneficiaries in the absence of such is a grace and mercy to a bereaved family, as well as relieving an overburdened court system. Insisting that one segment of the population does not have that right and must go through an onerous process by virtue of who they love is demeaning and unbefitting of a civilized society.
Most spousal benefits are in the same category as inheritance; they can, with time, money and effort be resolved through other legal means (power of attorney, etc.). It is simply demeaning to insist that one segment of the population is required to climb an extra hurdle because they have a consensual relationship between two adults that others do not approve of (c.f. miscegenation). The only exceptions are such things as Social Security and tax benefits, so I shall address them as such: are homosexuals exempt from paying Social Security and other taxes in ways I am not aware of, or do they receive other special benefits to compensate them for their inability to access these benefits?
Moving on to the question of whether heterosexuals would be significantly harmed by sharing these rights with heterosexuals. That’s a bit of a tricky one, because there are two important words there: significant and harm. Would I be “harmed” if someone else were paying lower taxes? Arguably, yes. Would it be significant? If they did so in large enough numbers, maybe. Does that mean I should be able to deny them their rights? I do not see how. True harm is if I were to lose something I were otherwise entitled to, and I am not entitled to having first claim on someone else’s life, their labor, or their choices, so long as those choices do not interfere directly with my ability to make choices. And seriously, I don’t see how homosexuals choosing to marry impacts any heterosexual’s choices, unless they have secrets they aren’t sharing (in which case the statement is still valid).
Would society suffer any significant harm in allowing homosexuals to exercise their rights? Again, it depends on how you define society and how you define harm. Considering the potential good outlined above, and the societal purposes that marriage serves in the first place, I see no evidence that expanding the civil tradition of marriage could bring. There will be those who will not be able to accept this gracefully, and they may even commit violent acts in response. This would not be a direct result of allowing homosexuals to exercise their rights; this would be a result of people who are unable to accept change attempting to use violence and fear to coerce others when all else fails. There is a word for that: terrorism. It should be dealt with as such.
In the final analysis, there is no good reason to continue to deny a significant portion of our population the same rights that the majority have enjoyed for so long. The Supreme Court should step in and, as it has a few times in its long history, strike down the laws of oppression and let liberty carry the day.
It has recently come to my attention that the kidney transplantation committee of the United Network for Organ Sharing has issued a proposal to change the way in which donated kidneys are distributed to those who are currently waiting for kidneys. Apparently the current system is as much of a lottery as… well, the lottery, only the winners in this lottery receive a few more years of life, while the losers receive a lovely floral arrangement. The new system looks to improve this by extending the total number of years of life saved, and perhaps even reduce the number of lost donations.
While I understand this is an admirable goal, I feel it is incumbent upon myself, your humble public servant, to point out the logical fallacy in this plan. While they are at least considering improving the efficient use of the resources at hand, they are not in fact addressing the core issue: the scarcity of viable kidneys, and by extension the further scarcity of other organs, tissues, and various donations that up to this point have only been left behind by that handful of Good Samaritans who are willing to sacrifice for the greater good.
Now, far be it from me to suggest something so vulgar as to taint the system by introducing monetary recompense for the donors. Certainly the doctors, the hospitals, and others involved along the way need to have their palms greased with filthy lucre in order to entice them to participate in what would otherwise be a noble calling, but the very idea of incentivizing people to participate in organ donation after they pass on is so far beyond the pale as to not deserve further mention. Even if it would relieve the burden on the system and enrich some few souls along the way, life itself is far too precious a commodity to put a price tag on, unlike something common like food, shelter, or health insurance.
No, I believe the answer is instead to appeal to the better nature of our fellow citizens, and instead follow in the path of our recent Supreme Court decision regarding health care. If it is mandatory that we all participate in the health care of our nation by carrying health insurance, surely it is no great leap to suggest that we make it compulsory to participate in organ donation? Just think of the benefits! No more long waiting lists, no more years desperately hoping for a match; just one bad pile-up on the highway and everyone is a winner (well, except maybe the poor souls on the highway, but you can’t make an omelet without breaking a few eggs).
I understand there may be a few initial objections to my plan, but they can all be easily addressed. After all, our country has a long and distinguished history of compulsory service in the military for young men, and that’s hardly ever given us any trouble. For those who may have religious objections, while I can understand their hesitation, I’m afraid we simply cannot oblige. In days of yore when a corpse was no more than the husk of a departed soul the disposition of such was irrelevant, but science moves ever forward, and while there may have been a time when we could indulge quaint flights of fancy and superstitious notions, those days are long gone. For those who would claim a “right to privacy”, I say the body public has a use for the body private and it must not be denied.
If you think my solution unjust, if you believe my methods unfair, I ask you: is it just to leave people on machines for years on end, hoping against hope to beat the odds? Is their suffering worth nothing? Do we, as a society, not care? What other alternative do we have? A few extra years is not enough; why save one when we can save them all?
In summary, I leave you with a paraphrase of the great John F. Kennedy: “Think not what your country can do for you, think what your organs can do for your country.”
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
In many ways I consider this to be the red-headed stepchild of the Bill of Rights. Nobody really wants it except when they do, and the only time they want it is when they want to use it as a weapon against somebody else. It only exists as a means of quieting down people who were nervous about centralized power, and since then it’s done little to no good despite the lofty goals it was originally envisioned to provide for.
The original purpose of the amendment was, as James Madison phrased it:
[F]rom looking into the amendments proposed by the State conventions, that several are particularly anxious that it should be declared in the Constitution, that the powers not therein delegated should be reserved to the several States. Perhaps words which may define this more precisely than the whole of the instrument now does, may be considered as superfluous. I admit they may be deemed unnecessary: but there can be no harm in making such a declaration, if gentlemen will allow that the fact is as stated. I am sure I understand it so, and do therefore propose it.
Considering that within the twentieth century we were witness to Supreme Court cases that allowed the federal government to decide how much wheat you could grow on your own land for your own personal consumption (Wickard v Filburn), your house can be taken for private use (Kelo v City of New London), and the federales can kick in your door and snatch up your medicinal marijuana crops, even if it is legal to grow and use in your state (Gonzales v Raich). And these are all just abuses of the Commerce Clause, but I’ve harped on that one before. What I find far more interesting is the abuse of the other side of the equation.
The concern, as I see it, that was being addressed by the tenth amendment was not one of states being able to retain the powers they had enjoyed up to this point. Rather I think it is, as Madison points out, a continuation of the thread that runs throughout the Constitution and the rest of the Bill of Rights: people who had fought to free themselves from what they perceived to be an aggressive, oppressive regime and not wanting to re-create it in the new government they were now defining. One of the chief concerns and problems they had seen was that, being so far away from the seat of power, their concerns were not addressed and their complaints were ignored, and they believed that their local (and by extension state) governments would be more responsive in the event that government action would be needed at all (hence that little clause at the end “or to the people”).
This was never intended to be a carte blanche for state governments to violate the rights of citizens where the federal government couldn’t, and yet so many times that is exactly how some groups have attempted to interpret it. Waving the banner of “states’ rights”, they have tried to circumvent laws and statutes they didn’t like, usually ones that were intended to protect the rights of minority populations. While there are those who attempt to argue the historical implications of the North versus the South and economic issues that extend beyond slavery (some of which does have validity), the core of the issue was that Southern states wanted slavery and Northern states didn’t. This has come forward to us through the years as Jim Crow laws, “separate but equal”, and other forms of government imposed racism, which are times when federal power should intervene to protect the rights of minority populations against the will of the majority in a given area.
Unfortunately this same sort of abuse flows downhill in many ways; states use their power to impose all sorts of laws on their people, such as smoking bans, labor laws, property usage laws, and other means of restricting the free use of property and control over one’s own body. These laws can be and often are popular in the localities where they are passed, or at least popular enough with a large enough majority of the citizenry for that given issue (hence the phrase “tyranny of the majority”). Unfortunately there doesn’t seem to be as much of a groundswell from either the left or the right as yet to protect against these abuses.
I believe the original intent of the tenth amendment was to try to bring power closer to the people. The idea was that each state would have a limiting document similar to the Constitution (as I believe they all do) that was decided upon by the people of that state; by bringing power closer to the people, it would be more responsive, but also the limits on state power would have the same effect as the limits on federal power. This recursive limitation would flow down the chain of government power, so that ultimately the people would have power over themselves. Instead what we are finding is a constant tug of war between government actors at the state and federal level to determine who gets to make the decisions about our lives, whether any given action falls under ” powers … delegated to the United States by the Constitution” or those ” reserved to the States respectively”. Somewhere along the line the last bit about “the people” got edited out.
(With apologies to Edgar Allen Poe)
Once upon a web page I saw, that was dedicated to law,
(I do not recall if it was blog or wiki or something more,)
While I tried to keep from snoring (face it that stuff’s kind of boring),
There came a tapping, as of someone rapping at my study door.
” ‘Probably my wife,” I mumbled, “tapping at my study door;
Only this, and nothing more.”
Ah, distinctly I remember, it was a bleak and cold November,
The High Court’s term starting on the first Monday month before.
Desperately I wished the morrow; foolishly I sought to borrow
From Jack Daniels surcease of sorrow, sorrow caused by culture war.
Caused by the endless bickering that had been dubbed the culture war,
Discussed here nevermore.
And the monitor light glowing with new lawsuits overflowing
Thrilled me—filled me with fantastic terrors never felt before;
So that now to stop the throbbing of my head, I stood there sobbing,
“It’s just the puppy trying to get in at my study door,
It must be my little puppy pawing at my study door.
That must be it; nothing more.”
Eventually I took a nip, with liquid courage got a grip,
“Whoever’s there,” I said, “I hope you don’t mind about before;
But the truth is I was… napping, when you came so gently rapping,
When you came so gently tapping, tapping at my study door.
Wasn’t really sure I heard you.” Then I opened wide the door;
Darkness there, and nothing more.
I don’t know how long I stood there, staring out at nothing but air
Questioning my sanity like so many who came before;
But there was no sound but silence, and my only sign of guidance
And the only words there spoken were the whispered words,
“Culture war?” This I whispered, and an echo murmured back the words,
“Five to four!” Just this, and nothing more.
Back into my study turning, all my heart within me burning,
Soon again I heard a banging, something louder than before,
“Huh,” I said, I thought that I’d seen something just above my flat screen.
It’s outside the study window, so this mystery I’ll explore.
Let me just chill out a minute, and this mystery explore.
“It’s the wind, and nothing more.”
So I opened up the window, and suddenly what do you know?
Right in comes these nine ravens that I had never seen before.
Not a word or gesture to me; not a single “An it please thee”;
But with mien of lord and lady, perched beside my study door.
Perched upon a bench that was sitting inside my study door,
Perched, and sat, and nothing more.
Decked with feathers black as robes, sitting with patience to match Job’s,
I attempted to establish some semblance of rapport.
“An unkindness some might call you, yes, and a conspiracy too,
To be honest that’s the sort of name-calling that I deplore.
Tell me, pray, how I should know you, oh great Scions of Baltimore.”
Quoth the ravens, “Five to four.”
I was stunned at these ungainly fowl to hear discourse so plainly,
Though their answer little meaning, use, or relevancy bore;
For we cannot help agreeing that no living human being
Ever yet was given help by birds within their chamber door,
Birds or beasts sitting upon their bench within their chamber door,
With such words as “five to four.”
But the ravens, having spoken, would not let that be their token,
Instead they had to further discourse on matters more and more.
Topics timely and political; both trivial and critical;
Till my rage was near biblical, “I should show you to the door!
I want none of this, please, leave me be, get out of here, no more!”
Then the birds said, “Five to four.”
There’s nothing that they won’t debate, from abortion to speech of hate
Taking their sides from established ideologies of yore.
Though they might each strut and posture, give an enigmatic gesture,
Make us wonder if the outcome might be different from before
In the end there’s no cause for surprise about the final score;
The score is 5 to 4.
But the ravens still sat judging, so with grace ill and begrudging
I sat down, tried to ignore them and work as I was before.
But one thing there was no budging, no, never sufficient nudging
To shift the awful balance that had been previously foreswore–
That these awful birds of omen held over from the days of yore
Had doomed us with “Five to four.”
Each single word I was weighing, the game D.C.’s always playing,
Despite myself, taken in by the vile back and forth once more.
On this law there’ll be no bending, the back and forth is never ending,
Though we cry out for unity, it’s victory we look for,
But when that ugly fool’s gold is the prize that we all opt for
Then the prize is, “Five to four.”
Turning then to my oppressors, I became the new aggressor
Unleashing on them all the wrath I had pent up heretofore.
“Were you not all nine delighted when the citizens united
Or you sat in judgment o’er the case of Bush v. Gore?
Uninsured were not deplored, racial preferences galore?”
Quoth the ravens, “Five to four.”
“Jurists!” said I, “all divided!– never one, though sit united!
Whether Donkey sat or Elephant deposited before,
Determined though you are to lead us by example not at all–
In this land that’s so torn by strife– tell me truly, I implore:
What’s the chance for peace and brotherhood–tell me I implore!”
Quoth the ravens, “Five to four.”
Jurists!” said I, “still divided! Still deserve to be derided!
By that space that bends above us–by that God (that you won’t let His commandments be posted in a government building but somehow a six foot tall monument on government property is okay and how are those not blatantly conflicting rulings?) that we all adore–
Tell this soul with strife encumbered, if these days of pain are numbered,
Will the time come when we at last can put out the last flame war?
I beg you, can you tell me I will have the peace that I yearn for?”
Quoth the ravens, “Five to four.”
“Be that phrase our sign of parting, birds or fiends!” I shrieked, upstarting–
“Get thee back unto the night and to Baltimore’s polluted shores!
Leave no writ or other token of the cruel words you have spoken!
Leave my solitude unbroken!– quit the bench beside my door!
Take your damn conspiracy elsewhere and haunt me nevermore!”
Quoth the ravens, “Five to four.”
And the nation stands divided, never to be reunited,
Cursing politicians from north to south and from shore to shore,
Though we think they’ll keep us guessing, ain’t it really quite distressing
We’ve found out as Ackbar warned us that “it’s a trap!” to be sure,
We may all try to hope for change but we see forevermore
That the score stays 5 to 4.
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
At last we get to the most popular amendment, and yet the one that people seem to know the least about. This clause is basically about preventing the State from using its power to abuse the rights of individuals. Everyone is aware of their right against self-incrimination (although good luck explaining it to your parents when you try to sneak in late at night), and most everyone knows what double jeopardy is (the Ashley Judd version, not the Alex Trebek version), but that last clause about eminent domain is a bit of a ringer, and the one that seems to be getting abused more and more of late. I’ll address each one in turn, along with my thoughts on each.
Grand juries show up in almost every court room drama, but we rarely think about them. One line an old buddy of mine was very fond of was “I can get a ham sandwich indicted”. Fortunately, it’s not quite that simple. This is the first line of defense against the overwhelming power of the State. “The prosecutor must recognize that the grand jury is an independent body, whose functions include not only the investigation of crime and the initiation of criminal prosecution but also the protection of the citizenry from unfounded criminal charges.” (US Attorneys Criminal Resource Manual)
Double jeopardy is another important defense against the power of the state for innocent people. It makes sure we don’t get dragged into court time and time again, constantly harassed just because the police or DA has managed to find (or “find”) some new evidence. I understand it can be daunting and even nerve-wracking sometimes to only have one chance to get it right, and there are a lot of good people on the job trying to get it right. But that’s the point, isn’t it? With all the resources dedicated to getting it right, how many resources are there dedicated to protecting the guy they decided is guilty who isn’t? How many times do they get to come after him before they finally say, “huh, maybe we should look into someone else?” This clause basically says “get your act together before you take your best shot, and no means no”. Nothing wrong with that.
Next, let’s talk about self-incrimination. This is central to the defense of innocent people in the power of the State. I know, I know, “if you’re innocent you have nothing to fear.” Sure. Just tell that to every person who’s been exonerated through DNA testing. Imagine that you’ve been arrested, and you can be compelled to testify against yourself. Where were you between two and four a.m. on the night of November 4, 2011? Don’t remember? Why not? You’re not hiding something, are you? Maybe I believe you, maybe I don’t. Or maybe you were at home, sleeping. Alone. With no witnesses… Or maybe you were doing something just a little illegal, but you don’t want to cop to it because it would implicate a friend. There’s any number of reasons you might not want to testify that I could turn against you if you have no choice in the matter. So yeah, I think this one is pretty important.
The one other thing I have to say on this is tangential, and it’s more of a pop culture pet peeve. It seems every time it comes up on a court room drama, someone is invoking their “Fifth Amendment privilege.” It’s not a privilege, it’s a right. A privilege is ice cream before bed, or hanging out with your friends at the mall. It’s something that can be taken away from you for not behaving the way you are supposed to. A right is something that is yours, and nobody can take it away. Get it straight, Hollywood.
Let’s not forget that due process gets covered here, too. This is particularly important in these days of terrorism, cyber-crime, and other horrific crimes such as mass shootings that get the public blood up. The “justice” of the lynch mob can be awfully tempting, but it is in truth simply awful, and the fact is that if we stoop to becoming that which we are fighting against, we lose the very thing we are fighting to protect. More to the point, there is no word here that says “citizen”, it is “person”. When we no longer hold ourselves to that high standard, acknowledging that people are born with rights, not granted them by a government, we lose the moral high ground and it becomes a simple matter of who has the biggest stick.
Finally we come to eminent domain, the “right” of the State to take property for “public use”. This is the one that seems to be getting the most abuse lately, as the definition of “public use” becomes more flexible with every passing day, as does the concept of “just compensation”. What exactly is “public use”? Is it a highway? A new school? According to the Supreme Court, it’s a forced transfer of private property from one private individual to another. As far as “just compensation”, that’s basically whatever the government says it is. It doesn’t matter if you wouldn’t take a million dollars for your home that your family has lived in for five generations, if the government says it is worth exactly $300,000, that’s what you get, and the city gets its new highway. Suck it up, it’s for the good of the community. You know, the community you were so proud to be a part of… until they bulldozed your house.
So maybe this last clause of the Fifth Amendment is not living up to what it should be. The rest are doing okay, although I still have concerns about self-incrimination in a world where the government is trying to compel people to turn over encrypted hard drives and get ISPs to give up your data even when you do everything in your power to keep it private (which also smacks of violating the First and Fourth Amendments, but hey, why not go for the hat trick?) At least we still have the Miranda decision working for us, which is something, and that brings up the best defense against government power: educate yourself. Not just on your rights, but on how to protect them, and on how they can be violated (and sometime are being violated). No piece of paper will do better than that.
Recently the FCC got slapped, although not spanked (and certainly not tied up and paddled on primetime television) by the Supreme Court. Well, yippee. I know I should be more excited by this, especially considering my vast love for the First Amendment in all its forms, but the truth is this ruling was about as mamby-pamby as any I’ve ever heard out of the Supreme Court, which considering it was a unanimous ruling in a strongly divided court isn’t much of a surprise. Still, at least we got a little something, which is to say a small shred of common sense in government: hey look, you can’t just decide post facto that something is indecent and levy fines here but not there for the same activity.
But why shouldn’t we be grateful for the FCC? I mean, after all, won’t somebody please think of the children? If it weren’t for the FCC, public television might look more like cable, what with the sex, violence, and bad language. And we all know nobody actually wants to watch shows like The Sopranos, Sex in the City, True Blood, or anything like that. And even if there were a few sick bastards out there who did, the rest of us would be helpless in the face of their Vast Media Empire. It’s not like we could, I dunno:
- change the channel
- turn the TV off
- go read a book
- play outside
- go for a walk
- build a model
- play a board game
- call a friend
- go to the theater
- look at lolcatz on the interwebs
- read a blog
So yeah, we’re pretty much stuck looking at the same handful of channels, making sure we all have the same culture. One might even call it “popular culture.” Not because it’s all that popular, but just because everyone is familiar with it, and because it appeals to the lowest common denominator, and it never challenges us. If we didn’t have that, if our entertainment somehow became fractured, we might not all have the same basic outlook on things, and what would that do to our society? Our politics? Our country?
We might all start finding things that appeal to our deepest beliefs rather than the muddy middle, and then we’d have to go one of two ways. The one would be a cultural and political revolution, but in a good way: we would have to honestly start to engage with one another, and stop pretending that father knows best, admit eight isn’t enough, and we just can’t leave it to beaver. We would need to go to a place where everybody doesn’t know your name, and start to lean each other’s’ names, as well as each other’s hopes and dreams and deepest beliefs. Then we would need to work out our conflicts in a meaningful way, and not just try to force our own ideas of what’s right and wrong on each other, either through blatantly through the political machine or subtly through the mass media.
The other would be a disaster: some sort of bipolar system in which we become horribly polarized, swinging back and forth politically and socially until the entire system cracks apart from the stress because we keep talking past each other instead of talking to each other. But that could never happen, right?