Federal raids hit medical marijuana shops from Columbia Falls to Billings on Monday, spreading “a horrible mixture of fear and rage” through a community already roiled by high-profile attempts to regulate it.
“The reckless and cruel disregard for the patients that count on these shops is going to cause a lot of heartache,” said John Masterson of Missoula, who heads Montana NORML (National Organization for the Reform of Marijuana Laws), which live-blogged information about the raids throughout the day Monday.
Advocates for medical marijuana noted that federal agents executed their search warrants even as a Montana Senate panel collected testimony on a bill to repeal the state’s 2004 voter initiative legalizing medicinal use of marijuana. (See related story.)
“It sure feels like a blatant, obvious, calculated, bullying interference by the federal government in Montana decision-making,” said Tom Daubert, a leading medical marijuana advocate, who was in the committee hearing Monday morning when he heard about the raids.
Wait. Didn’t Barack Obama repeatedly promise to call off the DEA’s medical marijuana raids when he was running for president, and didn’t his attorney general instruct federal prosecutors to leave patients and providers alone as long as they are complying with state law? Sort of. Under a policy change announced by the Justice Department in October 2009, U.S. attorneys were told that, “as a general matter,” they “should not focus federal resources” on “individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.” In practice, this policy means the feds reserve the right to interpret state law and decide whether patients and providers are following it, as illustrated by continued raids in California, Colorado, and Michigan.
Montana, like California and Michigan, allows “caregivers” as well as patients to grow marijuana. Montana’s Medical Marijuana Act (PDF) defines a caregiver as an individual “who has agreed to undertake responsibility for managing the well-being of a person with respect to the medical use of marijuana.” A patient with a doctor’s recommendation may grow up to six plants and possess up to one ounce of usable marijuana for his own consumption, or he can designate a caregiver, who may grow up to six plants on his behalf. Are patients or caregivers allowed to form “cooperatives,” as they do in California, and grow marijuana together? According to the state Department of Public Health & Human Services, which keeps track of registered patients and their caregivers, “the law is silent on this issue.” And although the law specifies that “a qualifying patient may have only one caregiver at any one time,” it does not seem to address the question of whether a caregiver may grow marijuana for more than one patient.
The upshot is that the DEA can always argue that any individual or group of people with more than six plants (or more than one ounce of usable marijuana) in one place is not “in clear and unambiguous compliance” with Montana law. That would be the case even if state courts explicitly approved grow operations and dispensaries operated by patients or caregivers. Federal raids have continued in California even though the state attorney general (now the governor) said dispensaries are permitted.
[The]Drug Enforcement Administration, Immigration and Customs Enforcement, Internal Revenue Service, the Bureau of Alcohol, Tobacco, Firearms and Explosives, and the Federal Bureau of Investigation.
It sure sounds like the raids were timed to coincide with the consideration of the repeal bill. These raids occurred all over the state, including: Belgrade, Big Sky, Billings, Bozeman, Columbia Falls, Dillon, Great Falls, Helena, Kalispell, Miles City, Missoula, Olney and Whitefish.
[T]he patient community has quickly responded by planning coordinated vigils at various city halls across the state at 5pm on Wednesday. Tomorrow’s vigils are being organized by Americans for Safe Access and sponsored by Patients and Families United and Montana Medical Growers Association, which are both statewide medical marijuana groups.
The Obama Administration is not committed to allowing medical marijuana in states with laws that allow it. As I wrote here,
[T]he Holder statements and Ogden Memo are not enough protection. Short of legalization, Congress at least needs to pass a law disallowing prosecution of medical marijuana patients and providers who are in compliance with state law — or at a minimum, a law that expressly allows patients, caregivers and providers to raise compliance with state law as an affirmative defense to a federal prosecution.
The raids raise questions about the legitimacy of state marijuana laws in the face of a federal government that considers any production and sale of the substance to be illegal. They also highlight two particular areas where the difference between federal and state marijuana laws collide.
Drug trafficking: Possession was not the issue in Monday’s Montana raids nor Tuesday’s in California. Rather, agents targeted marijuana providers. These raids have elicited outrage from those who recall President Obama’s promise that the Justice Department would be more “hands off” with regard to prosecuting marijuana users and distributors in states that have legalized the medical use of pot. Just last month, AOL News’ Jacob Sullum analyzed the instructions U.S. attorney’s received in November to apply said lenience only to “individuals whose actions are in clear and unambiguous compliance with existing state laws.” He notes that states like California may allow patients or their “caregivers” to grow their pot collectively and sell it to other patients at dispensaries, but to U.S. attorneys or the DEA, dispensaries themselves “are completely illegal” regardless of the state’s law, “because they exchange pot for money.” Tax evasion: The raided growers and dispensaries is Montana and California are all being charged with tax evasion. In states that have legalized medical marijuana use, medical marijuana dispensaries should be considered legal businesses. But, according to the I.R.S., “no deductable credit shall be allowed for any amount paid or incurred during the taxable year in carrying on any trade or business if such trade or business…consists of trafficking in controlled substances…which is prohibited by Federal Law or the law of any State in which such trade or business is conducted.” That would, of course, pose quite a problem for filing taxes.
It’s possible in these two raids that there were other crimes suspected of the operators than just the sale of pot. Until the courts unseal the records, we won’t know the answer to that, as apparently no one in the DoJ wants to talk about it at the moment. If not, though, one can certainly argue that the statements of Obama and Holder about leaving state-licensed vendors alone amount to a moral case of entrapment, if not a legal case.
What is the actual Obama administration policy on licensed marijuana vendors in states like California? Shouldn’t they make that clear so that the operators of these clinics have a chance to adapt to a clear legal environment?
On a smaller platform than some may have hoped, President Obama wrote an op-ed in today’s Arizona Daily Star launching his intention to tackle serious and “common sense” gun control. Two months after the Tucson, Arizona shooting tragedy, Obama seems to be searching for middle ground on the issue in an effort to protect “our children’s futures.”Obama first reaffirmed he has no intention of confiscating guns:
Now, like the majority of Americans, I believe that the Second Amendment guarantees an individual right to bear arms. . . . And, in fact, my administration has not curtailed the rights of gun owners – it has expanded them, including allowing people to carry their guns in national parks and wildlife refuges.
And Obama discussed his awareness of how difficult it will be to approach an issue that both sides feel so passionately about:
I know that every time we try to talk about guns, it can reinforce stark divides. People shout at one another, which makes it impossible to listen. We mire ourselves in stalemate, which makes it impossible to get to where we need to go as a country.
Then Obama outlined a few practical beginning steps, including “enforcing laws that are already on the books,” strengthening the National Instant Criminal Background Check System, rewarding states that provide the best data, and making the background check system “faster and nimbler” so that criminals can’t escape it.
In an Arizona Daily Star op-ed piece (which Jesse Walker noted this morning), President Obama urges “an instant, accurate, comprehensive and consistent system for background checks” in response to the Tucson massacre. But since there is no reason to think such a system would have stopped Jared Lee Loughner from buying a gun, this recommendation seems like a non sequitur (as gun control proposals often do).
Obama regrets that “a man our Army rejected as unfit for service; a man one of our colleges deemed too unstable for studies; a man apparently bent on violence, was able to walk into a store and buy a gun.” But people who are rejected for military service or thrown out of community college are still allowed to own firearms, and Obama does not propose changing the factors that disqualify people from buying guns. As for his description of Loughner as “a man apparently bent on violence,” that is true mainly in retrospect; the school officials and police officers who encountered him prior to his crime seem to have viewed him more as a nuisance than a menace. In any case, Loughner was never “adjudicated as a mental defective” or “committed to a mental institution,” which would have made his gun purchase illegal.
In short, the president’s solution would not have stopped Loughner, and it would not stop similar assailants in the future. Yet Obama not only says the current system of background checks is “supposed to stop the wrong people from getting their hands on a gun”; he claims beefing up the system (primarily by incorporating more state data regarding disqualifying criteria) “will actually keep those irresponsible, law-breaking few from getting their hands on a gun in the first place.” Which is worse: that Obama believes this (assuming he does) or that he expects us to believe it?
The National Rifle Association is declining to meet with the Obama administration to discuss gun control, signaling that the nation’s largest gun lobby isn’t willing to come to the table on a Democratic president’s terms.
“Why should I or the NRA go sit down with a group of people that have spent a lifetime trying to destroy the Second Amendment in the United States?” said Wayne LaPierre, the NRA’s executive vice president, in an interview with The New York Times on Monday. He cited Attorney General Eric Holder and Secretary of State Hillary Clinton — the latter of whom has little to do with gun policy — as examples.
However, NRA executive vice president Wayne LaPierre immediately rejected that offer. “Why should I or the N.R.A. go sit down with a group of people that have spent a lifetime trying to destroy the Second Amendment in the United States?” he asked, adding, “It shouldn’t be a dialogue about guns; it really should be a dialogue about dangerous people.”
Putting aside LaPierre’s posturing on the Second Amendment, it’s telling the NRA is not willing to state a substantive disagreement with Obama. The Post reported:
LaPierre said he favored much of what Obama endorsed in his op-ed, but he charged that the president was targeting gun ownership for political reasons rather than addressing the “underlying issue” of “madmen in the streets.”
Despite his opposition to joining the administration’s table, by his comments in an interview Mr. LaPierre sounded at times like the White House.
Echoing NRA arguments, an Obama administration official told the NYT they want to redefine the gun debate to “focus on the people, not the guns” and they want to “begin by enforcing laws that are already on the books.” Nevertheless, the NRA is unwilling to be appeased.
So why is Wayne LaPierre misrepresenting Obama’s views and rejecting his olive branch? Since everyone seems to agree on a path forward, the answer seems to be quite clear: money and self-preservation. Since President Obama took office, the NRA has benefitedsignificantly in increased membership, due primarily to baseless and unfounded fears actively promoted by NRA officials, supporters and sympathizers, that Obama wants to eliminate the Second Amendment and take away everyone’s guns.
The NRA tells its members not to believe Obama when he says he supports the Second Amendment. It’s no wonder then that rank-and-file NRA members think Obama wants to “get rid of all the guns,” “has no respect for the country,” is “an idiot,” and “anti-American.”
Former United States Senator Ted Stevens was killed in a plane crash in southwestern Alaska on Monday night. Five of the nine people on board the small plane headed to a remote fishing lodge were killed in the crash, Gov. Sean Parnell of Alaska said.
Mr. Stevens, who had been the longest-serving Republican in the United States Senate while representing Alaska, was 86.
Sean O’Keefe, 54, a former NASA administrator who now is an executive with the European aerospace firm EADS, was also on the plane with his son, but they both survived, according to an official briefed on the crash who spoke on the condition of anonymity because the investigation was ongoing.
Mr. O’Keefe, the official said, was “badly injured,” and was among three passengers airlifted to an Anchorage hospital. The body of Mr. Stevens was found just after daylight, according to a former aide to Mr. Stevens who spoke on the condition of anonymity out of respect to the family.
“Though small of stature, Ted Stevens seemed larger than life, and anybody who knew him, knew him that way, for he built for Alaska and he stood for Alaska and he fought for Alaskans,” Mr. Parnell said at a news conference in Anchorage. President Obama, in a statement, praised Mr. Stevens on Tuesday afternoon, when word of his death was made official:
“A decorated World War II veteran, Senator Ted Stevens devoted his career to serving the people of Alaska and fighting for our men and women in uniform. Michelle and I extend our condolences to the entire Stevens family and to the families of those who perished alongside Senator Stevens in this terrible accident.”
Stevens represented the state for seven terms in the U.S. Senate and was revered as a patriarch of Alaska politics; he nearly won reelection in 2008 despite a federal corruption trial that unfolded during the campaign but was defeated by Democrat Mark Begich. The downed plane was owned by IT corporation CGI.
Ted Stevens never worried much about making friends in Washington. “I’m a mean, miserable S.O.B.,” he once declared. He wasn’t speaking with contrition; he was bragging. Stevens was a tough character—brusque, short-tempered, and even vindictive. To underscore the point, he sometimes wore an Incredible Hulk necktie when he fought battles on the Senate floor. Those may not sound like winning qualities in a politician, but Stevens—who was killed in a plane crash in southwestern Alaska last night— harnessed them in the service of an epic, combative, and ultimately severely tarnished political career.
In the home stretch of a Senate career that began in 1968, Stevens was a titan in both Washington and Alaska. Over four decades he emerged as part of an old guard of power brokers who mastered the Senate’s arcane rules and gathered enormous institutional power. At the peak of his influence, Stevens chaired the Senate Appropriations Committee in the Republican Senate that reigned for most of the Bush years, making him one of the most powerful men in Washington.
But Stevens rarely used that power in the service of grand ideology. Though he was a reliable conservative vote, Stevens’s his true ideology was the promotion of Alaska. Few things animated him more than his ferocious battles to allow oil drilling in the state’s national wildlife reserve, known as ANWR (Stevens once pronounced himself “seriously depressed” about his failure to end the drilling ban). And as appropriations chairman, a job that offered him vast control over the federal budget, he steered billions of dollars in pork spending back home, dollars that he referred to as “Stevens money.” As a supporter of projects like Alaska’s infamous $278 million Bridge to Nowhere, Stevens was second only to the late Senator Robert Byrd as an advocate of projects often indefensible beyond the borders of his home state. (Stevens was a frequent target of the watchdog group Citizens Against Government Waste, which calculates that he secured 1,452 projects totaling $3.4 billion from 1995 to 2008.)
The Bridge to Nowhere champion, who lost his 2008 re-election bid after being convicted of lying to conceal gifts he was legally required to report, won a post-defeat victory five months later, when the Justice Department withdrew the charges against him, effectively nullifying his convictions, because of prosecutorial misconduct. As I argued after his indictment, Stevens’ real crime was his record of “service” to the people of Alaska, which in any other context would be recognized as theft on a grand scale.
But around the Internet, Stevens is best known for the meme he helped create: “series of tubes.” I note that the timing of Stevens’ plane crash is odd because that phrase Stevens coined was done so in the context of net neutrality — a subject which is obviously very much in the news today due to the Google/Verizon dealings. Stevens was actually the Chairman of the Senate Commerce Committee which was debating the issue in 2006. At that time, he gave an 11 minute speech about the topic that compared the Internet to a “series of tubes.” The rest is history.
Stevens’ key quotes (from Wikipedia):
Ten movies streaming across that, that Internet, and what happens to your own personal Internet? I just the other day got…an Internet was sent by my staff at 10 o’clock in the morning on Friday. I got it yesterday [Tuesday]. Why? Because it got tangled up with all these things going on the Internet commercially.
[…] They want to deliver vast amounts of information over the Internet. And again, the Internet is not something that you just dump something on. It’s not a big truck. It’s a series of tubes. And if you don’t understand, those tubes can be filled and if they are filled, when you put your message in, it gets in line and it’s going to be delayed by anyone that puts into that tube enormous amounts of material, enormous amounts of material.
Soon we had dance remixes on YouTube, and it became a go-to gag for Jon Stewart on the Daily Show. Incidentally, Google has even poked fun at the statement a few times — notably, an older version of the Chrome web browser would launch a tubes screen saver or a gray page stating “The Tubes are Clogged” if you entered “about: internets” into the address bar.
“Ted Stevens” is currently the top Trending Topic on Twitter, with about half the tweets noting his “series of tubes” comment. The meme will go on.
Our deepest sympathies go out to Stevens’ family in this difficult time. Hopefully they understand that the Internet had a soft spot for the Senator, despite his stance on net neutrality — even Google and Verizon seem to have a hard time understanding it, judging from their actions the past few days.
Here’s what you need to know about Judge Vaughn Walker’s decision invalidating California’s Proposition 8, a referendum, passed by voters, that banned same-sex marriage. The decision itself will be appealed, and Walker’s reasoning could serve as the basis for argument at the appellate level — or, the appeals court could decide to argue the case a completely different way.
What matters are the facts that Walker finds. Why? As Chris Geidner notes, “[the] judge or jury who makes the findings of fact, however, is given deference because factual determinations are aided by the direct benefit of the judge or jury at trial. On appeal, Judge Walker’s findings of fact will only be disturbed if the appellate court finds any to be clearly erroneous.”
Walker, in his decision, writes that “Proposition 8 fails to advance any rational basis in singling out gays and lesbians for denial of a marriage license.” He evaluates as credible witnesses the panel of experts who testified against Proposition 8, and finds fault with the credentials of several witnesses who testified against same-sex marriage, including David Blankenhorn, President of the Institute for American Values.
“Blankenhorn’s testimony constitutes inadmissible opinion testimony that should be given essentially no weight,” Walker writes. “Blankenhorn gave absolutely no explanation why
manifestations of the deinstitutionalization of marriage would be exacerbated (and not, for example, ameliorated) by the presence of marriage for same-sex couples. His opinion lacks reliability, as there is simply too great an analytical gap between the data and the opinion Blankenhorn proffered.”
The arguments for banning gay marriage are so weak, Walker said, that they fail even the highly deferential “rational basis” test, which applies in equal protection cases that do not involve a “suspect classification” such as race. “Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians,” he wrote. “The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite sex couples.”
The decision is bound to be appealed and may ultimately reach the Supreme Court. The text of Walker’s opinion is available here. The Los Angeles Times has excerpts here. I discussed the equal protection argument for federal recognition of state-approved gay marriages here and here. More to come.
In his findings of fact, Walker pointed out that California “has never required that individuals entering a marriage be willing or able to procreate.”
He also notes that slaves were unable to marry.
“The states have always required the parties to give their free consent to a marriage. Because slaves were considered property of others at the time, they lacked the legal capacity to consent and were thus unable to marry. After emancipation, former slaves viewed their ability to marry as one of the most important new rights they had gained,” he wrote.
Walker also noted that past marriage inequalities have included the prohibition of interracial marriage and coverture, in which a woman’s identity is subsumed by her husband’s.
Great news for real conservatives who believe in the U.S. Constitution and its guarantee of equal protection under the law! A U.S. District Court Judge, first nominated by Ronald Reagan and then appointed under George H.W. Bush, has struck down CA’s Prop 8 which added an amendment to the state constitution banning same-sex marriage equality. The state’s majority Republican-appointed Supreme Court had previously found no basis for banning same-sex marriage in the CA constitution. That finding was, in effect, overturned at the ballot box in November 2008 by Prop 8 which ended same-sex marriage in the state and left thousands of marriages in limbo until today’s finding.
CNN is going to gay bars in San Francisco on TV right now, for reactions. (Update: No one was in the gay bars so they stopped. Lame empty gay bars!)
You can read the full decision here. The judge found it unconstitutional under both the due process and equal protection clauses. The ruling is expected to be appealed and could end up at the Supreme Court.
Looking ahead, it will be interesting to see what kind of role the issue of same-sex marriage, so incendiary in California in 2008, will play in the midterm elections in the state this November. The Courage Campaign, a progressive online organizing network based in California and formed partly in response to the passage of Prop 8, has been busy pointing out the role of the National Organization of Marriage (NOM), the main nonprofit behind the passage of Prop 8, in backing California candidates like GOP senate hopeful Carly Fiorina.
“In NOM, Carly Fiorina has aligned herself with a fringe group that relies on lies and fear to advocate discrimination and second-class citizenship for millions of loving American families,” Courage Campaign Chairman and Founder Rick Jacobs said in a press release. “Bigotry is not a family value and it has no place in the United States Senate.”
The National Organization of Marriage, already under fire for failing to disclose its donors to state election officials in Iowa and Maine, has now joined up with the Latino Partnership for Conservative Principles, an initiative of American Principles in Action, and the Susan B. Anthony List, a pro-life women’s network, to back Fiorina through the “Tus Valories” (Your Values) Campaign, an independent expenditure on the part of American Principles in Action.
The common wisdom is that the prospects for upholding Judge Walker’s decision in the 9th Circuit are good. I agree. However, the common fear is that the ever more conservative and dogmatic Roberts Court will reverse and ingrain the discrimination, inequality and hatred of Proposition 8 and its supporters deep into American law and lore. I am much more optimistic this is not the case.
As the inestimable Linda Greenhouse noted recently, although the Roberts Court is increasingly dogmatically conservative, and Kagan will move it further in that direction, the overarching influence of Justice Anthony Kennedy is changing and, in some ways, declining. However, there is one irreducible characteristic of Justice Kennedy that still seems to hold true; she wrote of Kennedy:
…he embraces whichever side he is on with full rhetorical force. Much more than Justice O’Connor, whose position at the center of the court fell to him when she left, Justice Kennedy tends to think in broad categories. It has always seemed to me that he divides the world, at least the world of government action — which is what situates a case in a constitutional framework — between the fair and the not-fair.
The money quotes of the future consideration of the certain appeal and certiorari to come on Judge Walker’s decision today in Perry v. Schwarzenegger are:
Laws designed to bar gay men and lesbians from achieving their goals through the political process are not fair (he wrote the majority opinion striking down such a measure in a 1996 case, Romer v. Evans) because “central both to the idea of the rule of law and to our own Constitution’s guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance.”
In a book titled “Justice Kennedy’s Jurisprudence,” a political scientist, Frank J. Colucci, wrote last year that Justice Kennedy is animated by an “ideal of liberty“ that “independently considers whether government actions have the effect of preventing an individual from developing his or her distinctive personality or acting according to conscience, demean a person’s standing in the community, or violate essential elements of human dignity.” That is, I think, a more academically elegant way of saying fair versus not-fair.
So the challenge for anyone arguing to Justice Kennedy in the courtroom, or with him as a colleague in the conference room, would seem to be to persuade him to see your case on the fair (or not-fair, depending) side of the line.
I believe that Linda is spot on the money with her analysis of what drives Anthony Kennedy in his jurisprudence. And this is exactly what his longtime friend, and Supreme Court advocate extraordinaire, Ted Olson will play on and argue when the day arrives. It is exactly what Vaughn Walker has ingrained in to and framed his extraordinary decision today on.
Today is one of those rare seminal days where something important and something good has occurred. Fantastic. The beauty and joy of equality, due process and equal protection under the Constitution of the United States of America.
Congress passed a bill Wednesday that would narrow the disparity between mandatory sentences for crack and powder cocaine possession, changing a 24-year-old law that critics said unfairly subjected blacks to longer prison terms than whites.
The measure was approved by voice vote in the House and sent to President Obama, who is expected to sign it into law, The Associated Press reported. The bill made it through the Senate in March.
The legislation would overhaul a 1986 law that mandated a person convicted of crack cocaine possession get the same mandatory prison term as someone with 100 times the same amount of cocaine in powder form. The bill passed Wednesday reduces that ratio to about 18-1, the AP said.
Twenty-four years ago, at the height of America’s crack epidemic, Congress enacted legislation that saw persons convicted of possessing crack receive prison sentences equal to persons possessing 100 times that amount in powder cocaine. This was problematic for many reasons, the most glaring being that African Americans possessing crack went to jail in droves while white defendants, who more often dabbled in expensive powder cocaine, escaped without prison bids. After the Senate passed the bill in March, Attorney General Eric Holder commented, “There is no law enforcement or sentencing rationale for the current disparity between crack and cocaine powder offenses.”
Unfortunately, today’s vote makes the ratio between crack and powder cocaine sentences 18-to-1—still not perfectly equal. But it’s a step, and a bipartisan one at that. Six Republicans co-sponsored the bill, including Lindsay Graham and Orrin Hatch.
Under current law, five grams of crack triggers the same five-year mandatory minimum sentence as 500 grams of powder; likewise, 50 grams of crack triggers the same 10-year mandatory minimum sentence as five kilograms of powder. The bill passed today, which President Obama is expected to sign soon, will reduce those 100-to-1 ratios by 82 percent. From now on, a drug offender will need only 18 times as much powder to get the same sentence he would get for crack. That’s still crazy, but substantially less so. In addition to reducing the sentencing disparity, the bill abolishes the five-year mandatory minimum sentence for simple possession of crack (as opposed to possession with intent to distribute), another way in which federal law treats smokable cocaine with unusual severity. Families Against Mandatory Minimums says this is “the first time that Congress has repealed a mandatory minimum drug sentence since the Nixon administration.”
This time, the bill had lots of conservative Republican support, but the ranking Republican on House Judiciary demonstrated why it’s taken more than 20 years to change the law by pulling out the usual demoagogic warnings about rampant drug abuse. The Fraternal Order of Police also weighed in on the wrong side.
Sens. Dick Durbin and Jeff Sessions and Rep. Bobby Scott all deserve congratulations, though I think an administrative fix – regulating the conditions under which the mandatory could be invoked by federal prosecutors so that only worthwhile cases could be brought – would have been cleaner and quicker.
This is one more indication that at least marginally sensible drug policy is now politically discusable.
I agree entirely with Adam Serwer when he says that this passage makes the crack disparity “only one fifth as racist as it used to be.” But you know what we don’t do a lot of in this country? Reduce sentences. Check out the makeup of the world’s largest prison population and you’ll see what I mean. “Law ‘n’ Order” and “Tough on Crime” remain shibboleths used by politicians to hammer away at criminal sentencing reformists. So ANY change in a positive direction takes a ridiculous amount of work and struggle. This is a small step, but it’s a step in the right direction.
The Leadership Conference on Civil Rights has a backgrounder on the law change. And the Houston Chronicle spoke out in a very good editorial today. Now, the next step is to eliminate this disparity entirely, so we actually have equal justice under the law.
Don’t get me wrong: I would not recommend crack cocaine usage and there were (and are) still social costs of some significance associated with its usage. The problem with the reaction in the 1980s was that, like much of our drug laws, we overreact and make rules based on fear and the drama of the moment rather than rational consideration of the problem. We paint each new drug as practically the end of the world and react accordingly (the current drug of fear is meth-in the past it was heroin). Again: all of these are substances that cause substantial harm, but we tend to lack a sense of proportion in dealing with them.
Senate Democrats will be one vote down when they consider sweeping campaign finance disclosure legislation this afternoon as Senator Joseph Lieberman (I-Conn) has told party leadership he will miss the vote to attend a friend’s funeral.
The senator’s absence reduces the caucus’s numbers from 59 to 58 voting members, all but assuring that the DICLOSE Act won’t pass when it comes up for a cloture vote Tuesday afternoon. The legislation’s authors were already having difficulty finding a 60th vote to break a likely Republican filibuster. Without Lieberman, they will need two Republicans to cross party lines as opposed to one. Already two of the three most likely defectors — Sens. Scott Brown (R-Mass.) and Susan Collins (R-Maine) — have said they will oppose the measure.
The concern, said the leadership aide, “is that it will allow [Senator Olympia] Snowe (R-Maine) to vote yes and yet we fall short.”
Senate Democratic leaders have received a commitment from Independent Joe Lieberman of Connecticut to vote “yes” to invoke cloture on the DISCLOSE Act when he returns after attending a funeral, according to two senior Democratic aides.
UPDATE: Lieberman spokesman Marshall Wittmann confirms: “Sen. Lieberman told Sen. [Harry] Reid this morning that he will vote for the cloture motion, but says he cannot vote for the bill itself in its current form.”
Lieberman hadn’t publicly staked out a position on the controversial campaign finance measure — and he won’t be in the chamber to vote on the cloture motion today — but he told leadership he would be with them in the likely event of a revote later, sources said.
That doesn’t mean that Lieberman will ultimately vote for the measure.
His office had no immediate comment other than to say Lieberman could not be immediately reached.
Senator Ben Nelson’s spokesman, Jake Thompson, confirms that Nelson will vote Yes. “He will vote for cloture on the Disclose Act,” Thompson emails. “It’s all about transparency.”
That removes one more element of suspense. And a quick clarification on what I wrote below: Senator Lieberman is in fact not in the Senate today, so it can’t get the 60 votes it needs today. But here’s where it gets interesting.
Snowe, who is up for reelection in two years and is expected to face blowback if she votes No, can in fact vote Yes today. Because of Lieberman’s absence, she would not be ensuring that it would pass, sparing her the wrath of Mitch McConnell, who is trying to keep the GOP caucus united against it.
But: A senior Dem Senate aide tells me that if Snowe does this, the measure could be brought up for a vote again when Lieberman is present, putting pressure on her to maintain her Yes vote. So again, as long as the odds are, this could still end up passing.
Fox News reports that “the DISCLOSE Act appears to stand no chance of passage this session” now that the Republican senators deemed most likely to support the bill, Maine’s Olympia Snow and Susan Collins, have announced their opposition. The Democrats are yet another vote short on today’s motion to proceed with debate because Sen. Joe Lieberman (I-Conn.) is attending a funeral. And to really rub it in, the AFL-CIO officially turned against the bill today:
William Samuel, director of the union’s government affairs department, makes clear in a strongly-worded statement to members that though the AFL-CIO opposes the measure “reluctantly,” it nevertheless feels the bill “imposes extraordinary new, costly, and impractical record-keeping and reporting obligations on thousands of labor (and other non-profit) organizations,” adding that the bill “would disrupt the operation of thousands of organizations without any corresponding public benefit.”
In a vote that could have a tangible effect on midterm elections in November, the Senate today denied cloture to the DISCLOSE Act, which would increase transparency of corporate spending in political campaigns. With the August recess drawing nearer and midterm elections around the corner, this vote has been built up as a political play for both sides. Democrats want to discourage corporate backing of Republican candidates, and Republicans want to smooth the way for corporate donors as midterm campaigns heat up.
Obama rallied for the bill in a Rose Garden speech yesterday, chiding Republicans for obstructing its passage. “You would think that reducing corporate and even foreign influence over our elections would not be a partisan issue,” Obama said. “But of course this is Washington in 2010.”
Democrats needed 60 votes today to ensure that the bill would reach the floor for debate. Nebraska’s Ben Nelson, who voted against the McCain-Feingold campaign finance act in 2002, had his fellow Democrats on their toes until his spokesman announced this morning that he would vote yes. Republicans Susan Collins, Olympia Snowe, and Scott Brown were all potential yes votes that did not come through. John McCain, despite his prior advocacy of campaign finance reform, voted no. Without a single Republican vote, Democrats could not reach 60.
A United States appeals court tossed out the indecency policy of the Federal Communications Commission on Tuesday, calling it a violation of the First Amendment.
An appeals panel said the F.C.C. policy was “unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives at issue here.”
The ruling was immediately characterized as a victory for big broadcasters like ABC, CBS, Fox and NBC, which have been fighting the indecency policy for years.
Tuesday’s ruling vacates a 2004 decision by the Bush administration F.C.C. to step up enforcement of the indecency policy on the broadcast airwaves. Earlier that year, the singer Janet Jackson’s breast was bared during the Super Bowl halftime show on CBS, reigniting a decades-old debate about broadcast standards.
But Tuesday’s ruling deals more specifically with the F.C.C. policy toward so-called fleeting expletives. After several curse words were uttered during awards shows in 2002 and 2003, the F.C.C. concluded that a single use of an expletive “could be actionably indecent,” triggering fines against broadcasters.
Also in 2004, Congress said that the F.C.C. could fine stations up to $325,000 for each instance of indecent speech, substantially raising the penalties for a profanity that was not bleeped.
On Tuesday, the United States Court of Appeals for the Second Circuit in New York found that the policy toward fleeting expletives effectively chills speech in part “because broadcasters have no way of knowing what the F.C.C. will find offensive.”
The court’s decision will not only be a boon to awards shows, which will now be less fearful of the late-bleeped curse word, but also scripted series like Family Guy, which can now make horse-semen jokes with no fear of retribution.
The legendary Grammy-winning comedian, who died in 2008, was slapped down by the Federal Communications Commission in the 1970s for his “Seven Dirty Words” monologue. The U.S. Supreme Court gravely concluded that the 12-minute monologue was illegal to broadcast.
But a funny thing happened on the way to the year 2010. The Internet grew even faster than the federal deficit, wireless devices sprouted like Obama stickers on Priuses, and American consumers were forced to pay for V-chips in their televisions, whether or not they wanted any.
Which is why a federal appeals court on Tuesday said that technological advances have ripped away the underpinnings of the FCC’s “indecency” regulations. Forget Nipplegate: FCC attorneys have insisted for decades that they have the constitutional authority to punish radio and TV broadcasters who dare to transmit even a few syllables from Carlin’s list of naughty words.
The decision cites evidence that the FCC’s arbitrary application of its vague, subjective standards has deterred broadcasters from airing constitutionally protected material, including political debates, live news feeds, novel readings, and award-winning shows dealing with sexual themes. “By prohibiting all ‘patently offensive’ references to sex, sexual organs, and excretion without giving adequate guidance as to what ‘patently offensive’ means,” the court concludes, “the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive. To place any discussion of these vast topics at the broadcaster’s peril has the effect of promoting wide self-censorship of valuable material which should be completely protected under the First Amendment.”
Although the court leaves open the possibility that the FCC could come up with a new indecency policy that would pass constitutional muster, it strongly suggests that the Supreme Court’s justification for allowing the regulation of content on broadcast TV and radio, set forth in the 1978 case FCC v. Pacifica, is no longer valid. Given the enormous changes in the media environment since then, the 2nd Circuit notes, broadcasting is no longer “uniquely pervasive” or uniquely accessible to children: It is but one of many media options, and parents can exercise the same sort of control over their children’s viewing regardless of whether programming arrives over the air, by cable, by phone line, or by satellite. In light of these realities, it is long past time (as Jesse and I have argued) to overturn Pacifica, a step the 2nd Circuit leaves to the Supreme Court.
The decision is quite interesting, in that it notes that one of the reasons why the FCC was allowed to fine indecency on TV and radio was the “pervasiveness” of those media, but that in today’s internet-connected world, it makes less and less sense, since people who don’t hear cursing on TV will almost certainly hear it online or elsewhere. On top of that, it notes that technology has given new power to parents to block access to “mature” content, such that the FCC might not have to watch over everything so carefully anymore.
Furthermore, it focuses on the “vagueness doctrine,” in noting that if a rule against certain types of speech is too vague, it can create a real chilling effect on speech, as people don’t know where the boundaries are located. And here’s where it gets fun. The decision explores how the FCC decided that some words were indecent and others weren’t without explaining why:
The first problem arises in the FCC’s determination as to which words or expressions are patently offensive. For instance, while the FCC concluded that “bullshit” in a “NYPD Blue” episode was patently offensive, it concluded that “dick” and “dickhead” were not…. Other expletives such as “pissed off,” “up yours,” “kiss my ass,” and “wiping his ass” were also not found to be patently offensive. … The Commission argues that its three-factor “patently offensive” test gives broadcasters fair notice of what it will find indecent. However, in each of these cases, the Commission’s reasoning consisted of repetition of one or more of the factors without any discussion of how it applied them. Thus, the word “bullshit” is indecent because it is “vulgar, graphic and explicit” while the words “dickhead” was not indecent because it was “not sufficiently vulgar, explicit, or graphic.” This hardly gives broadcasters notice of how the Commission will apply the factors in the future.
The English language is rife with creative ways of depicting sexual or excretory organs or activities, and even if the FCC were able to provide a complete list of all such expressions, new offensive and indecent words are invented every day.
The court also notes that back when the FCC’s enforcement focused on George Carlin’s famous “seven dirty words,” no indecency actions were brought, because everyone knew what was and was not allowed — even if other terms were used instead:
This strategy had its limitations — it meant that some indecent speech that did not employ these seven words slipped through the cracks. However, it had the advantage of providing broadcasters with a clear list of words that were prohibited. Not surprisingly, in the nine years between Pacifica and the FCC’s abandonment of this policy, not a single enforcement action was brought. This could be because we lived in a simpler time before such foul language was common. Or, it could be that the FCC’s policy was sufficiently clear that broadcasters knew what was prohibited.
The court doesn’t buy the FCC’s argument that because broadcasters used other words instead, it had to make it’s policy more vague, and notes that this shows “a certain futility” in the FCC’s quixotic campaign against indecency. And then it adds that if things are always changing, it’s not fair for broadcasters:
The observation that people will always find a way to subvert censorship laws may expose a certain futility in the FCC’s crusade against indecent speech, but it does not provide a justification for implementing a vague, indiscernible standard. If the FCC cannot anticipate what will be considered indecent under its policy, then it can hardly expect broadcasters to do so. And while the FCC characterizes all broadcasters as consciously trying to push the envelope on what is permitted, much like a petulant teenager angling for a later curfew, the Networks have expressed a good faith desire to comply with the FCC’s indecency regime. They simply want to know with some degree of certainty what the policy is so that they can comply with it. The First Amendment requires nothing less.
The decision also notes that the FCC seems to randomly enforce its own rules:
Even the risk of such subjective, content-based decision-making raises grave concerns under the First Amendment. Take, for example, the disparate treatment of “Saving Private Ryan” and the documentary, “The Blues.” The FCC decided that the words “fuck” and “shit” were integral to the “realism and immediacy of the film experience for viewers” in “Saving Private Ryan,” but not in “The Blues.” …. We query how fleeting expletives could be more essential to the “realism” of a fictional movie than to the “realism” of interviews with real people about real life events, and it is hard not to speculate that the FCC was simply more comfortable with the themes in “Saving Private Ryan,” a mainstream movie with a familiar cultural milieu, than it was with “The Blues,” which largely profiled an outsider genre of musical experience. But even if there were a perfectly benign way of explaining these particular outcomes, nothing would prevent the FCC from applying its indecency policy in a discriminatory manner in the future.
Finally, the court notes that these chilling effects are very, very real and can already be seen:
For instance, several CBS affiliates declined to air the Peabody Award-winning “9/11” documentary, which contains real audio footage — including occasional expletives — of firefighters in the World Trade Center on September 11th. Although the documentary had previously aired twice without complaint, following the Golden Globes Order affiliates could no longer be sure whether the expletives contained in the documentary could be found indecent.
The court says it’s possible the FCC could create a policy that is acceptable under the First Amendment, but this one does not qualify. I’m sure this will be appealed to the Supreme Court as well, but in the meantime, it’s a pretty big smackdown for the FCC’s attempt to fine indecency.
On the whole this strikes me as the correct decision. Leaving aside for the moment the issue of whether the FCC should even have the power to regulate decency on broadcast and cable television, a matter on which I happen to have some rather strong opinions in the negative, it seems wholly unfair to punish broadcasters for something said on a live broadcast by someone not under their control. It is, in fact, the verbal equivalent of the whole Janet Jackson Super Bowl mess, for which Viacom paid out more than $ 3.5 million in absurdly administered “indecency” fines.
Even if you believe that broadcasters should be held to “decency” standards, holding them responsible for things they have no control over is both unfair and, as the Court found today, a violation of the First Amendment.
In Holder v. Humanitarian Law Project (08-1498; 09-89), the Court affirms in part, reverses in part, and remands on a 6-3 vote. Chief Justice Roberts writes the Court’s opinion, while Justice Breyer dissents, joined by Justices Ginsburg and Sotomayor.
Holding: The federal material-support statute is constitutional as applied to the particular kinds of support that the parties in this case seek to provide to foreign terrorist organizations. The Court concludes that, as applied to these individuals and groups, the statute does not violate the free speech clause of the First Amendment.
Note: On the bench, Justice Breyer read from his dissent.
The full texts of the four opinions, and the briefs in the granted cases, appear after the jump.
The Supreme Court, voting 6-3, upheld a federal law that bars “material support” of groups the government deems are terrorist organizations. The Associated Pressreports that the majority opinion, written by Chief Justice John Roberts, finds that the government “may prohibit all forms for aid to designated terrorist groups, even if the support consists of training and advice about entirely peaceful and legal activities.” Roberts wrote that the “material-support statute is constitutional as applied to the particular activities plaintiffs have told us they wish to pursue. We do not, however, address the resolution of more difficult cases that may arise under the statute in the future.”In Holder v. Humanitarian Law Project a group of individuals and nonprofit organizations, including the Los Angeles-based Humanitarian Law Project challenged the constitutionality of the material support provision. The groups sought to provide financial support and legal and political training to the Kurdistan Workers’ Party (PKK) and the Liberation Tigers of Tamil Eelam (LTTE). Both of those groups had been designated by the State Department as foreign terrorist organizations. Roberts wrote that the government “has presented evidence that both groups have also committed numerous terrorist attacks, some of which have harmed American citizens.”
The groups and individuals who wanted to provide financial support and training for peaceful political purposes to the PKK and LTTE argued that the material support law violated their free speech rights and association rights, and that the law is unconstitutionally vague.
Hamas would be one such example. It conducts terrorist attacks against Israel with one part of its organization while running charitable endeavors with another. Fundraising for Hamas to support its outreach programs would allow Hamas to use the money elsewhere, or even if the specific money was applied to the charitable work, it would allow Hamas to not have to dip into the charity funds for its terrorist activities.
That has long been accepted legal theory in the US, but until now it hasn’t been applied to non-monetary support. It’s a murkier question, as “advice” is not a fungible commodity. Assistance in building a proposal to the UN doesn’t translate into terrorist activity as easily as money does, mainly because it’s specific to the task. However, the Supreme Court has wisely decided that the basic issue is one of terrorist intent on the organization as a whole, and not the subordinate intentions of its internal agencies. Supporting a designated terrorist group in anything is in essence material support for terrorism.
Justice Stephen Breyer, the AP reports, read his dissent aloud in a show of frustration with the majority opinion, rather than just release the written brief. Breyer was joined by Sonia Sotomayor and Ruth Bader Ginsburg, in what would be no great shock. The report fails to mention that John Paul Stevens, soon to retire from the Court, joined the conservative majority on this question. That seems rather newsworthy, and the AP’s failure to mention it seems equally newsworthy.
Today the Supreme Court upheld the federal ban on providing “material support” to groups identified as “foreign terrorist organizations” by the secretary of state. The activists challenging the statute feared prosecution for encouraging the Kurdistan Workers Party (PKK) and the Liberation Tigers of Tamil Eelam, both of which appear on the State Department’s list, to pursue their goals through nonviolent means. As described by the district court, the plaintiffs wanted to “train members of [the] PKK on how to use humanitarian and international law to peacefully resolve disputes,” “engage in political advocacy on behalf of Kurds who live in Turkey,” “teach PKK members how to petition various representative bodies such as the United Nations for relief,” and “engage in political advocacy on behalf of Tamils who live in Sri Lanka.” The Supreme Court’s ruling (PDF) says the activists were correct to worry that such projects, though speech aimed at promoting lawful activities, would be considered “material support,” which includes the broad categories of “training,” “expert advice or assistance,” “personnel,” and “service.” But in the view of six justices, this restriction on freedom of speech is justified as part of the fight against terrorism. While not ruling out the possibility that future applications of the law might violate the First Amendment, the majority opinion by Chief Justice John Roberts says the Constitution allows Congress to criminalize the speech contemplated by the plaintiffs in this case, based on the premise that any assistance to terrorist groups, no matter its nature or aim, helps legitimize them and continue their violent activities.
Let’s look at the general problem: American speakers can do many things that help foreign terrorist organizations, both those that are directly fighting us, such as al Qaeda, and those that aren’t, such as the Kurdish separatist PKK and the Tamil separatist LTTE. They can train them to more effectively engage in terrorism. They can train them to deal with international bodies (one of the issues involved in the Humanitarian Law Project case). They can coordinate publicity campaigns with them.
Speakers can also independently write newspaper editorials or op-eds praising the PKK and the LTTE, and arguing that they should be taken off the foreign terrorist organization list, or even be supported by the U.S. government. They can independently organize demonstrations making the same arguments. They can independently write academic papers making the same argument, or appear on television making it. Politicians and candidate for office can make the same arguments.
And all these things, both those coordinated with the groups (the first paragraph) and those done entirely independently will undermine “the Government’s interest in combating terrorism[, which] is an urgent objective of the highest order.” The undermining will be indirect, and will happen through means such as increasing the groups’ perceived legitimacy, helping them acquire more resources to engage in terrorism, and letting them reroute their already-acquired resources to terrorism. (It might even embolden the groups to keep fighting, in the hopes that if they hold out long enough, the politicians who praise them might gain power and change American foreign policy in a way that supports the groups.) But as the Court pointed out in Holder v. Humanitarian Law Project, such indirect threats to the compelling government interest may nonetheless be real threats. Therefore, if one really takes seriously the Court’s assertion — which has often been made in other cases — that content-based speech restrictions are constitutional if they are “narrowly tailored to serve a compelling state interest,” all this speech, including the independent advocacy, could be criminalized.
But this can’t be so, it seems to me — which is why the majority (1) took pains on several occasions to note that the law didn’t apply to independent advocacy, (2) said that “In particular, we in no way suggest that a regulation of independent speech would pass constitutional muster, even if the Government were to show that such speech benefits foreign terrorist organizations,” and (3) stressed that, “Finally, and most importantly, Congress has avoided any restriction on independent advocacy, or indeed any activities not directed to, coordinated with, or controlled by foreign terrorist groups.” We Americans must have the right to try to persuade our fellow citizens, and our government, that our government is on the wrong side in various foreign policy controversies, that groups that the government says are bad guys are actually good guys (or at least less bad than the really bad guys), or that we should change our policies about which kinds of support to the bad guys are barred and which are allowed. To do that, we need to be able to make arguments defending or even praising those groups, even when such arguments help designated foreign terrorist organizations, and thus interfere with “the Government’s interest in combating terrorism[, which] is an urgent objective of the highest order.”
If I’m right, then this means that in this situation speech can’t be restricted even when the restriction is indeed necessary to serve a compelling government interest. The free speech rule there isn’t that the restriction is valid only if it passes strict scrutiny — it’s that the restriction is per se invalid. That’s the argument I make as to other restrictions in my Freedom of Speech, Permissible Tailoring and Transcending Strict Scrutiny, 144 U. Pa. L. Rev. 2417 (1997); and I think that the majority’s ruling in Holder v. Humanitarian Law Project is not inconsistent with that argument. To be sure, the majority doesn’t hold that a ban on independent advocacy would be unconstitutional even though such a ban might be necessary to serve a compelling government interest; it expressly reserves that question. But I think that the majority’s repeated stress that the law doesn’t restrict independent advocacy suggests that the Court would indeed strike down such a ban that applied to independent advocacy. And I think it would have to do that, if it takes seriously the importance of speech to democratic self-government (which I think the Court has indeed done in recent decades).
The bottom line is that money is now considered equivalent to speech in more ways than just electioneering. If you believe that multi-national corporations are exercising a right to free speech by spending unlimited funds to influence elections to their benefit, then you would naturally assume that exercising your right to free speech to influence organizations is equivalent to giving them money. The consistent concept for this court isn’t free speech at all, it’s their belief that money equals speech. I don’t find this outcome surprising in the least. Once you make the leap then this is the logical outcome. And I would guess it won’t be the last time we see this.
If we use “gaffe” in its proper, Kinsleyan form, that’s what U.S. Senate candidate Rand Paul issued to NPR yesterday, and that’s what he defended on Rachel Maddow’s show last night. He told the truth about his stance on the Civil Rights Act. I’ve posted the video and transcript below the fold, because I find it fascinating to watch Paul stand by his philosophical and legal stance and refuse to dissemble in a way that would, you know, get people to stop accusing him of some archaic form of racism. It reminds me of the way his father, Rep. Ron Paul (R-Tex.), stuck by his belief that the Civil War didn’t need to be fought even when he appeared on “Meet the Press.” The stakes were lower for Ron Paul, though — he stood no chance of winning the GOP’s presidential nomination, while Rand Paul stands a good chance of being elected to Senate.
So is Rand Paul a racist? No, and it’s irritating to watch his out-of-context quotes — this and a comment about how golf was no longer for elitists because Tiger Woods plays golf — splashed on the Web to make that point. Paul believes, as many conservatives believe, that the government should ban bias in all of its institutions but cannot intervene in the policies of private businesses. Those businesses, as Paul argues, take a risk by maintaining, in this example, racist policies. Patrons can decide whether or not to give them their money, or whether or not to make a fuss about their policies. That, not government regulation and intervention, is how bias should be eliminated in the private sector. And in this belief Paul is joined by some conservatives who resent that liberals seek government intervention for every unequal outcome.
Of course, Paul was pretty clear that he supports the federal desegregation of public schools and the federal enforcement of voting rights, as well as most of the other provisions in the 1964 Civil Rights Act, so it’s unlikely we’ll see any wholesale re-segregating if his “world view” ever reaches the commanding heights. Maddow can rest easy.
But this controversy does raise the very important topic of the government’s central role in American racism. First and foremost, Jim Crow was a legal regime, one that relied on state and local laws to restrict the political, social, and economic liberty of African Americans. Those laws interfered with the right to vote, to acquire property, to contract, to travel, to associate, to marry, and to keep and bear arms. Under the 14th Amendment, state and local governments are forbidden from violating such rights. Yet as we all know, the courts only selectively enforced the 14th Amendment during the Jim Crow era. Indeed, the Supreme Court has yet to enforce the 14th Amendment when it comes to gun rights. But none of that changes the fact that we’re talking primarily about state action, not about some failure of the free market.
It’s also important to acknowledge that economic rights are not in some inherent conflict with civil rights. In fact, we have significant historical evidence showing that legally enforced property rights (and other forms of economic liberty) actually undermined the Jim Crow regime. Most famously, the NAACP won its first Supreme Court victory in 1917 by arguing that a residential segregation law was a racist interference with property rights under the 14th Amendment.
Finally, keep in mind that Plessy v. Ferguson, the notorious 1896 Supreme Court decision that enshrined “separate but equal” into law and become a symbol of the Jim Crow era, dealt with a Louisiana law that forbid railroad companies from selling first-class tickets to blacks. That’s not a market failure, it’s a racist government assault on economic liberty.
A few years ago, I was at a conference with libertarians, and I was confronted with exactly this point of view. I expressed my concern that they were putting an extreme and abstract idea above things that really matter in the world. I challenged them — in what I thought was a friendly conversation — to explain to me how I could know that their commitment to the extreme abstraction did not, in fact, have an origin in racism. Which came first, the proud defense of private property or the shameful prejudices that polite people don’t admit to anymore?
I am struck — you may think it is absurd for me to be suddenly struck by this — but I am struck by how deeply and seriously libertarians and conservatives believe in their ideas. I’m used to the way lefties and liberals take themselves seriously and how deeply they believe. Me, I find true believers strange and — if they have power — frightening.I appreciate libertarians up to a point, but the extreme ones are missing something that is needed if you are to be trusted with power. I’m glad Rand Paul is on the scene, but I’m going to hold him to his own statements, and it is plain to me that Allahpundit has misunderstood or misrepresented what he said. I’m certainly not saying he’s a racist, but he seems to support a legal position that would place racist private businesses beyond the power of anti-discrimination statutes.
There is something unusual happening in the blogosphere and the Twitterverse as I write. In response to Rand Paul’s problematic take on federal authority and racial segregation, self-avowed libertarians like Washington Post’s Dave Weigel and The Atlantic’s Megan McArdle are falling all over themselves to say things like “for the record, I would have voted for the Civil Rights Act.”
Well, of course you would have. De jure racism is an evil. I would have voted for the Civil Rights Act too. And while we’re at it I would have never signed off on the Corrupt Bargain that ended Reconstruction by installing Rutherford B. Hayes in the Presidency. Better yet, I would have killed John Wilkes Booth during one of his early performances of Richard III or vacated the appointment of Roger B. Taney to the Supreme Court.
But at the end of the day, isn’t this counterfactual game sort of pointless? There is certainly a “correct” answer to all these historical questions — side with the angels on every significant civil rights debate since the founding — but that’s not the same as the thoughtful answer.
See, as far as I’m concerned, the whole point of asking historical counterfactuals is that our distance from the events gives us an opportunity to test our principles against the data in a context that isn’t clouded by the preoccupations of our own time and place. I think that’s what Rand Paul was trying to do when he talked about the Civil Rights era and the reach of the government — though he bungled the job to be sure. But liberals and progressives like Matt Yglesias, who think that Paul is at best stupid and at worst evil for using the abstractions of libertarian theory to justify the great historical crime of segregation are missing the point that the whole exercise is an abstraction, and one that doesn’t map neatly to current policy debates. In other words, my opinion that the Three-Fifths Compromise and the 1808 stuff in the Constitution were probably justified, because forging a union was worth a temporary compromise on slavery, does not mean that I’d rather there have been slavery. Just as my belief that the conspirators in the Roman Senate were wrong to assassinate Caesar doesn’t mean that I support dictatorship.
As we know from history, the free market did not lead to a breakdown of segregation. Indeed, it got much worse, not just because it was enforced by law but because it was mandated by self-reinforcing societal pressure. Any store owner in the South who chose to serve blacks would certainly have lost far more business among whites than he gained. There is no reason to believe that this system wouldn’t have perpetuated itself absent outside pressure for change.
In short, the libertarian philosophy of Rand Paul and the Supreme Court of the 1880s and 1890s gave us almost 100 years of segregation, white supremacy, lynchings, chain gangs, the KKK, and discrimination of African Americans for no other reason except their skin color. The gains made by the former slaves in the years after the Civil War were completely reversed once the Supreme Court effectively prevented the federal government from protecting them. Thus we have a perfect test of the libertarian philosophy and an indisputable conclusion: it didn’t work. Freedom did not lead to a decline in racism; it only got worse.
Sadly, it took the Supreme Court more than 50 years after Plessy before it began to undo its mistake in Brown. This led to repeated efforts by the Eisenhower administration to enact civil rights legislation, which was opposed and gutted by Senate Democrats led by Lyndon Johnson. But by 1964, it was clear to Johnson that the tide had turned. The federal courts were moving to dismantle segregation to the extent they could, and the 1963 March on Washington, the murder and beating of civil rights demonstrators in the South and growing awareness of such atrocities changed the political climate and made the Civil Rights Act of 1964 possible–despite the filibuster against it by Senator Robert C. Byrd, who still serves in the Senate today.
If Rand Paul were saying that he agrees with the Goldwater-Rehnquist-Bork view that the Civil Rights Act of 1964 was unconstitutional and that the Supreme Court was wrong to subsequently find it constitutional, that would be an eccentric but defensible position. If he were saying that the Civil Rights Act were no longer necessary because of the great strides we have made as a country in eradicating racism, that would also be defensible. But Rand’s position is that it was wrong in principle in 1964. There is no other way of interpreting this except as an endorsement of all the things the Civil Rights Act was designed to prohibit, as favoring the status quo throughout the South that would have led to a continuation of segregation and discrimination against African Americans at least for many more years. Undoubtedly, changing mores would have broken down some of this over time, but there is no reason to believe that it would have been quick or that vestiges wouldn’t still remain today. Indeed, vestiges remain despite the Civil Rights Act.
I don’t believe Rand is a racist; I think he is a fool who is suffering from the foolish consistency syndrome that affects all libertarians. They believe that freedom consists of one thing and one thing only–freedom from governmental constraint. Therefore, it is illogical to them that any increase in government power could ever expand freedom. Yet it is clear that African Americans were far from free in 1964 and that the Civil Rights Act greatly expanded their freedom while diminishing that of racists. To defend the rights of racists to discriminate is reprehensible and especially so when it is done by a major party nominee for the U.S. Senate. I believe that Rand should admit that he was wrong as quickly as possible.
What’s most troubling about this interview is not that Paul opposes a portion of the Civil Rights Act of 1964, it’s that it’s clear Paul hasn’t thought much about his position. Lacking a rigorous intellectual framework for his opposition, Paul is wobbly on defense. So what you see, in the main, is Paul trying to change the subject–at one point, I think he actually asks (rhetorically), “Am I a bad person?”
But Paul never settles down and to make the argument. Rachel Maddow repeatedly raises lunch counters, and it would have really pleased me if Paul had just made the case for private sector discrimination. Frankly, I can see the outlines of the argument and am not totally unsympathetic to it. Indeed, I think there’s a beautiful justice that’s visited upon the random politician who, to this very day, is routinely exposed as belonging to a white country club. There’s a kind of social sanction in that embarrassment that I don’t think the law can bring. (That said, I trust the people who were actually there more than my own abstract theorizing.)
But what about red-lining? Does Paul know anything about blockbusting? Does he think banks should be able to have a policy of not lending to black businesses? Does he think real-estate agents should be able to discriminate? Does he think private homeowner groups should be able to band together and keep out blacks? Jews? Gays? Latinos?
I think there’s this sense that it’s OK to be ignorant about the Civil Rights Act because it’s a “black issue.” I’m not a lawyer, but my sense is that for a senator to be ignorant of the Civil Rights Act, is not simply to be ignorant of a “black issue,” but to be ignorant of one of the most important pieces of legislation ever passed. This isn’t like not knowing the days of Kwanzaa, this is like not knowing what caused the Civil War. It’s just embarrassing–except Paul is too ignorant to be embarrassed.
Paul’s defense of himself is that his take on the Civil Rights Act has nothing to do with race and so he is not a racist. But by the same token, the fact that Paul’s view on the Civil Rights Act is so dominated by his libertarian ideology that he cannot even admit race and segregation into the calculus is exactly why this is relevant to Paul’s candidacy, why it’s an issue and why it’s among the best evidence we have in understanding how he’ll vote on legislation that comes before him. If this isn’t about race, then it is about all questions relating to federal regulation of private enterprise. As a senator, Paul will be faced with that question frequently. And his views on it are clearly very, very far from the mainstream.
On the Laura Ingraham show this morning, Rand Paul decided to announce: “Yes, I would have voted for the Civil Rights Act.” (You have to wonder why he couldn’t answer “yes” last night when Rachel Maddow repeatedly asked this very question.)
“These are settled issues in the Civil Rights Act,” he said. “I have no intention of bringing up anything related to the Civil Rights Act… I think [segregation] is sort of a stain and blight on our history — so, no, I have never really favored any change in the Civil Rights Act or any of that. But they have seemed to unleash the loony left on me.”
“Sort of a stain?” Is there some question about this?
Paul also says his appearance on the Maddow show was a “mistake,” which is indisputably true, and says he does not favor repealing theCivil Rights Act, which no one accused him of.
Notice, however, that even when he’s trying to walk back his disastrous statements, he still slips in those little weasel phrases that make the far right’s hearts rejoice.
“Let me be clear: I support the Civil Rights Act because I overwhelmingly agree with the intent of the legislation, which was to stop discrimination in the public sphere and halt the abhorrent practice of segregation and Jim Crow laws.”
“As I have said in previous statements, sections of the Civil Rights Act were debated on Constitutional grounds when the legislation was passed. Those issues have been settled by federal courts in the intervening years.”
“My opponent’s statement on MSNBC Wednesday that I favor repeal of the Civil Rights Act was irresponsible and knowingly false. I hope he will correct the record and retract his claims.”
That, quite honestly, should be the end of this entire episode. Opponents will continue to bring the matter up, of course, but the only responsible answer should be to refer them back to these statements and say that the the campaign considers the matters closed.
Welcome to the world of big time politics, Dr. Paul.
The Democrats and President Obama faced a huge negative in this election cycle: the failure of their economic policy to deliver positive results to date for young people and minorities, who so enthusiastically voted for them in 2008. Unemployment translates into voter demoralization and demobilization. Many have suspected that the Obama administration has raised the immigration issue now – not with a view actually to enacting a measure – but in hopes of entrapping Republicans into saying something that might rev Latino anger. I participated recently in a political panel at which a Democratic strategist said, “We don’t have a hero on the ballot this year. So let’s give our people a villain instead.”
Thus far, Democratic efforts to create a vote-enhancing villain had failed. Now Rand Paul has contrived to volunteer himself. It’s as if his mission had been to walk across an empty room without tripping. Instead, he stepped out of the room, rummaged through a hall closet, found a vacuum cleaner, plugged it in, extended the wire, took a dozen steps backward, and then raced forward to catch his ankle, plunge face forward and break his nose. As unforced errors go, this may be one of the most impressively self-destroying in recent U.S. electoral history.
As a libertarian, Rand is likely in favor of the right of suicide. But thanks to him, the damage will now be felt by others too, who will now be called upon to explain where they stand on every fruitbat idea ever aired in back issues of the Ron Paul newsletter.
The Court issued four opinions today, including two in the long-awaited cases about juvenile imprisonment without parole, Graham and Sullivan v. Florida. The rulings are:
In United States v. Comstock(08-1224), in an opinion by Justice Breyer, the Court reverses and remands the lower court’s decision. The vote is 7-2, with Justice Thomas dissenting, joined by Justice Scalia. Justice Kennedy concurs in the judgment only, joined by Justice Alito.
Holding: The Court upholds the law passed by Congress to order the civil commitment of a mentally ill federal prisoner who is a sex offender with the commitment to continue beyond the date the inmate otherwise would be released.
In Graham v. Florida(08-7412), the Court reverses and remands, in an opinion again by Justice Kennedy. The vote is 6-3, with Justice Thomas dissenting, joined by Justice Scalia and in part by Justice Alito. Justice Alito files a separate dissenting opinion for himself. Justice Stevens, joined by Justices Ginsburg and Sotomayor, concurs, even though all three join the majority opinion, and the Chief Justice concurs in the result alone.
Holding: It is unconstitutional to sentence a juvenile offender to life in prison without parole when the crime does not involve murder, given the Eighth Amendment’s ban on “cruel and unusual” punishment.
This morning the Supreme Court handed down its opinion in United States v. Comstock, a challenge to the federal government’s authority to civilly commit a “sexually dangerous” federal prisoner beyond the time of his sentence. The U.S. Court of Appeals for the Fourth Circuit held that the federal government lacked such authority within its enumerated powers. The Supreme Court disagreed, voting 7–2 to uphold the federal government’s commitment power under the Necessary & Proper Clause. Justice Breyer wrote for the majority. Justices Kennedy & Alito concurred in the judgment, and Justice Thomas dissented, joined by Justice Scalia. The opinions are here. Some earlier VC posts on the case are here and here. I haven’t had a chance to read the opinions yet, but given that Justice Breyer wrote the majority — and that he is such an avowed advocate of broad federal power — I suspect this decision is a major setback for those seeking to limit the federal government to its constitutionally enumerated powers.
The Court, which in 1997 rejected a challenge to a similar Kansas law based on the Double Jeopardy, Due Process, and Ex Post Facto Clauses, did not deal with the usual constitutional objections in this case. Instead it addressed the question of whether the federal government, as opposed to the states, is authorized to detain people based on sex crimes they might commit in the future. The seven-justice majority concluded that it is, finding that civil commitment of “sexually dangerous” prisoners is a “necessary and proper” means of “carrying into execution” the federal government’s enumerated powers. Yet the majority opinion by Justice Stephen Breyer never identifies the powers that provide the authority for this law. The omission is telling, especially since all nine justices agree that the Necessary and Proper Clause does not give Congress any independent powers.
Instead of citing specific powers, Breyer says the civil commitment law is justified by whatever enumerated powers underlie the federal criminal statutes that sexually dangerous prisoners are convicted of violating. Three of the five prisoners in this case, for example, were convicted of possessing child pornography, which Congress banned based on its authority to “regulate commerce…among the several states.” Other cases might involve people whose crimes were treated as federal offenses because of a case-specific connection to interstate commerce, such as a bias-motivated assault committed with a baseball bat manufactured in another state. (I kid you not.) As Breyer notes, “the Constitution…nowhere speaks explicitly about the creation of federal crimes beyond those related to ‘counterfeiting,’ ‘treason,’ or ‘Piracies and Felonies committed on the high Seas’ or ‘against the Law of Nations.'” But that has not stopped Congress from criminalizing a wide range of offenses (including many already addressed by state laws), based on thin or nonexistent constitutional pretexts.
Dissenters were Justices Scalia and Thomas, who said that yes, sexual violence is a terrible thing, but there is simply nothing in the Constitution giving Congress the right to infringe an individual’s liberty to this degree. As Justice Thomas wrote in his dissent, “[T]he Constitution does not vest in Congress the authority to protect society from every bad act that might befall it.” Justice Thomas noted the potential for abuse in expanding the state’s police powers over individuals. He also said that what’s at issue is not what powers the Constitution should have granted to Congress, but what powers the Constitution actually has granted to Congress.
It’s a principled stand, to be sure, but I find myself pleased that the Court ruled as it did, given the dangers that certain sex criminals (e.g., child molesters) pose to society. Solicitor General Elena Kagan, in successfully arguing the government’s case before the Court, said this is analogous to the government’s right to hold prisoners who have a deadly and highly contagious disease after they finish their sentences, for the common good. That makes sense to me, but Justice Thomas’s dissent makes me worried that I’m too willing to yield on a key principle because I like the result of this judgement.
Deciding an appalling case in which a 17-year old was given life without parole for a violating parole, the Supreme Court held today that life-without-parole sentences for juvenile offenders violate the Eight Amendment to the Constitution. And while I had feared a “minimalist” opinion that would create a balancing test that state courts would always resolve in favor of the state, in the majority opinion (see Part III C) Justice Kennedy argues convincingly that a categorical rule is necessary in this case. Chief Justice Roberts — in what I’m guessing was an attempt, if not to get a minimalist majority opinion, at least to prevent 5 votes for a categorical rule — wrote a concurring opinion arguing that the sentence should be ruled unconstitutional based on a case-by-case balancing test, but didn’t find any takers.
Clarence Thomas’s dissent — joined entirely by Scalia and in its most important aspects by reasonable, moderate, thinking person’s conservative Sam Alito — does make one convincing point: Kennedy’s argument that there’s an “emerging consensus” against life-without-parole for juveniles is unconvincing. The Court’s majority opinion does indeed reflect an “independent judgment” that the Eighth Amendment bans such sentences. Where I disagree with Thomas is that there’s something wrong with this. Exercising independent judgment is what courts do when exercising judicial review. And, of course, when policy outcomes they cherish are at stake Thomas and Scalia are perfectly happy to exercise their “independent judgment” that decisions made by electorally accountable officials are unconstitutional even in the absence of an emerging consensus or a compelling argument that as originally understood the Constitution forbade those practices. And sentencing is one area where where the normative unattractiveness of originalism is particularly stark. Reminding me again while I’ll miss him, Stevens sums it up devastatingly in his brief concurrence:
Society changes. Knowledge accumulates. We learn, sometimes, from our mistakes. Punishments that did not seem cruel and unusual at one time may, in the light of reason and experience, be found cruel and unusual at a later time; unless we are to abandon the moral commitment embodied in the Eighth Amendment , proportionality review must never become effectively obsolete.
While Justice Thomas would apparently not rule out a death sentence for a $50 theft by a 7-year-old, the Court wisely rejects his static approach to the law. Standards of decency have evolved since 1980. They will never stop doing so.
And you know who agrees with this in his more candid moments? Antonin Scalia, who has expressly said that he would not uphold a sentence for flogging even though it would seem to be permitted under an originalist understanding of the Eight Amendment was right. Not only is that Scalia right, but it’s impossible to explain why the framers wrote the Eighth Amendment the way they did if they meant only to proscribe a small, specific set of punishments that were illegal at the time the Bill of Rights was ratified.
The justices should realize that it is the age of reason, not adulthood, that applies here. I will grant that legislatures can void locking someone up for life for a crime that was not murder and committed two days before his 18th birthday. But it is a legislative, not a judicial, determination.
The only way to recognize “evolving standards of decency” is by constitutional amendment.
That is not the case here. This decision is a fraud.
Justice Kennedy and the 4 liberal justices voted to ignore the Constitution once again. Cruel and unusual? At the time the Constitution was written, we hung horse thieves even if they were not 18. There was no cruelty then and this is not cruel now. And it must be both cruel AND unusual to be unconstitutional.
So today, twice the court overstepped its bounds.
The first in allowing people to remain in jail for longer than the statue calls, and in letting people go free early. There is no rhyme or reason or reconciliation of these two decisions.
Too much power and too little resistance by our Supreme Court.
It is difficult indeed to reconcile these two simultaneous rulings. Legislatures are now permitted to hold already convicted criminals past the end of their sentences, but they may not make the subjective determination that near-adults convicted of heinous crimes may be permanently removed from civil society.
In most cases, I prefer bright-line rules to “balancing tests.” But I don’t make a fetish of it. Thus, even leaving aside the jarring contrast between these rulings, it is inexplicable to me how the Court could have thrown out its longstanding rule that balancing competing societal interests in making sentencing decisions is the proper province of legislatures to reach the result in Comstock. But substituting one bright line for another, more clement one at least has the small advantage of erring on the side of prudence where lifetime sentences are concerned. That only serves to highlight the immense wrongness of the Graham ruling.
For decades we have seen sex offender punishments spiral out of control. Until today, the Constitutional excesses have mainly been in the form of ever-increasing post hoc sentencing enhancements related to how long someone convicted of peeing in public years ago will continue being treated the same as a a newly convicted child rapist. Today’s ruling will pour gasoline on the conflagration. Juxtaposed against the stripping away of the legislature’s longstanding power to send child rapists away for life if they happened to commit the crime the day before their 18th birthday, this farcical, results-based judicial activism (which will only allow them to be held permanently by extra-constitutionally extending whatever sentences they can now be given) is beyond comprehension.
Great Goldwater’s Ghost!
Damon Root at Reason:
Daniel Foster at The Corner:
Charles Johnson at Little Green Footballs:
David Frum at FrumForum:
UPDATE: Julian Sanchez at Newsweek
Byron Tau at AOL
Joshua Green at The Atlantic
UPDATE #2: Ross Douthat
Peter Wehner at Commentary
UPDATE #3: Douthat responds to Larison
Larison responds to Douthat
Joan Walsh and Dave Weigel at Bloggingheads
UPDATE #4: Douthat responds to Larison
Weigel on Friedersdorf
UPDATE #5: Jacob Sullum at Reason
More Julian Sanchez
UPDATE #6: Joshua Cohen and Brink Lindsey at Bloggingheads
Filed under Political Figures, Race
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