I met with a law school buddy yesterday. She’s taking over a case for me, bailing me out in the process. We talked about the old times (1996-1999 in Chicago) and how for me law school was the “college experience” I never had as an undergraduate. It was the only time in my life where I really drank alcohol and partied hard, but I loved the law school experience, even when I was stone cold sober. Overall, the practice of law has been a disappointment for me, but I can remedy that if I can get myself a teaching position. In any case, I miss Chicago, and I miss my friends. I hope Amy isn’t the only one I get to see again. People like Amy made law school the best years of my life. This is not an overstatement. I was never happier, and for someone who has suffered from depression, that’s a profound statement. I owe her for more than just taking this case off my hands.
By the way, if you need a criminal defense attorney in Virginia, let me know. I’ll point you to Amy. She’s awesome.
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Word is spreading through the internet about the Sony patent for interactive advertising. Figure 9 of the application involves a person being prompted to shout “McDonalds!” in order to end the television commercial and get back to his violent TV programming. The picture in question is here:
I haven’t read the patent, so maybe this is explained, but I’m unsure why the guy in the picture has to stand up and throw his hands in the air. Maybe there are motion detectors involved, but if so, it’s probably just to play a joke on the public, making them look like idiots while they yell at their TVs. If I were using this technology, I’d be scanning it for hidden micro-cameras designed to record me acting like a fool for your YouTube viewing pleasure.
This gave me an idea, though. Whenever someone is rambling, instead of politely excusing yourself or trying to get them to change the subject, just stand up, throw your hands in the air, and shout, “McDonalds!” Feel free to use the same technique in movie theaters while they’re playing the commercials and trailers for bad movies.
After you’re done, tweet that you did it, and cite me as your inspiration. Please. I need this.
Based on the lengths of my posts, I’m sure this will be used against me soon.
As I’ve pointed out in a prior post, I don’t discuss the right to keep and bear arms publicly. I’ve been published on the subject (76 CHI-KENT L. REV. 2 (2000)), and while my views have become even more complex, if you want to know where I stand, that will have to do. Nevertheless, the Aurora tragedy has the political talking heads making an argument that’s always bothered me: “Because [some country] has had success with [some policy], we would too.”
Nonsense. Whether any policy is going to work is complicated because both our society, and the issues it faces, are complex. Assuming that the best policy can be determined by superficial evidence shows a lack of respect for that complexity, as well as a lack of respect for the work of every sociologist and psychologist that uses actual science to analyze such phenomenon. However, it isn’t just that the issues a complicated, or that society has a lot of factions. There are deep-rooted cultural differences between people of different cultures, some of which actually affect the way we think. As much as we view ourselves in America as divided, at its deepest levels, our political philosophies are much closer in thinking to one another than to many of these other countries whose policies we want to adopt.
This last point on cultural differences is my focus in this article.
German Landlords Are Crazy
My older brother’s second assignment in the U.S. Army was in West Germany. (For the kiddies, Germany was actually two countries between World War 2 and my time as an undergraduate student.) Only one of the stories he brought back resonated with me. He rented a room in a single family home in what appeared to be a typical American suburban community, though it was an authentic German community (as opposed to some American enclave in Germany). Every Wednesday morning, his landlord would pop his head out the front door, look up the street, look down the street, and then come back inside. Though he found this strange, my brother didn’t find it strange enough to ask why. During his last week in Germany, he went into work late enough to find out, finally, what was happening.
The landlord was checking to see if everyone else on the street had put out their garbage. After checking several times, everyone got in sync. Within (an estimated) two minutes of the first person putting out their garbage, everyone on the block had put out their garbage. This was done about an hour or so before the garbage truck came to collect the garbage. Moreover, looking up and down the block, as well as across the street, the garbage cans were lined up precisely with one another.
Neither the timing nor the precision of placement were required by German law. Their laws weren’t much different than ours in this regard. You couldn’t put out your garbage before sunset the night before, and you had to have your garbage cans within 6 to 18 inches (or so) from the street to avoid blocking the street. Putting the garbage out simultaneously and with such order was a condition imposed on the people by themselves, and they didn’t get together and have a meeting to decide it. It’s what they did because it’s how they think, so it just happened organically.
A recent study provides further proof of a cultural phenomenon that’s been considered dogmatic in the field of psychology for some time now: “Western culture emphasizes the individual and focuses on the forefront, and that East Asian culture de-emphasizes the self and is more cognizant of context.” The study compared Facebook profile photos of people from western and eastern cultures and found that western profile photos (like mine, actually) were often head shots, but in most cases emphasized the person over the background. Moreover, there was a greater tendency for the person to be smiling (again, like mine) or making a goofy face. The opposite was true for profile pictures of people from eastern cultures, where the person was often no more important to the scene than a chair that was just as much in the background.
This is measuring individuality vs. collectivism, and I remind you that this study did nothing more than confirm that the widely-accepted theory applied to online identity. It’s well-known that these differences clearly exist.
But What About England?
England is a western society, aren’t they? They’re democratic, and they have a decent sense of individuality, right? Can we model ourselves after them?
They have a queen, and under the Firearms Act of 1968, their cops usually aren’t granted permits to carry firearms. How would that last one work in Detroit?
Americans Don’t Think Like That
Can you imagine people arranging their garbage cans so precisely and within 120 seconds of one another? I couldn’t care less what you did with your garbage, but if hell froze over and I actually bothered to care for a second, I’d probably go out of my way to keep my garbage cans unaligned and bring them out at a different time. It’s typical for Americans to prize our individuality so highly as to affect even the smallest of life’s experiences. Technically, Germany, Japan, and the other countries cited are democracies, but you wouldn’t know it by watching them work and listening to them speak. To us, they look like insect colonies, seemingly doing things for the sake of just doing them, as if they’re all aware of secret laws and just haven’t told us.
Please note that this isn’t a value-judgment on my part. It’s merely an observation, and it’s tough to make. I have a high-and-mighty view of how important the American ideal for individuality is, but what this demonstrates is that democracy and totalitarianism don’t necessarily depend on individuality. That’s a tough pill to swallow at times, but I make no apologies for the fact that I feel so strongly about my individuality. It can make things hard, but it’s become a necessary aspect of my life because of the 44 years of experiences I’ve had that have made me the person I am.
Where Does That Leave Us?
. . . and therefore, I’ll be damned if you’re going to take that away from me without a fight . . . at the ballot box. I’m not threatening anyone.
Dammit, people! Just compare Texas to Connecticut and tell me that we aren’t extremely individualistic in this country. If policies in Texas don’t work in Connecticut (and vice versa), don’t you think that going to the other side of the world to see what they do is a bit reckless?
I submit to you that because all of us, consciously or subconsciously, think this way (granted, to varying degrees), we wouldn’t necessarily enjoy the same benefits of policies that might work wonderfully overseas. A change might not make things better (i.e., “crooks will always find a way to do [something horrible]”), and might actually make things worse by frustrating the hell out of us. To make a prediction one way or the other requires a professional analysis that most of us can’t perform. Stop trying.
Remember a common theme I have for my writing: It’s not enough to be right for the wrong reasons. You have to be right for the right reasons. If you want to do the job of a sociologist, spend a few years to become one. Otherwise, let them do their job. Hopefully the politicians will place science over politics, which brings me to another common theme of mine:
(Though that’s only because we reward politicians for playing politics. Our fate is still technically in our own hands.)
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I’ve heard a lot of rhetoric on the controversial Texas voter ID law claiming that it’s politically and racially biased. Because I attacked a Republican on this topic, I figured I’d give some equal time. This law was passed long before the election itself (last year), allowing ample time for a court challenge (ongoing) and then ample time after that to comply with however the court rules. As a result, my bullshit alert went off when I heard how this was a backdoor, racist attempt at suppressing minority votes.
The requirement that voters prove they are legally permitted to vote seems reasonable on its face – in fact, it’s almost certainly required under the Equal Protection clause (q.v.) – and it wasn’t a last minute attempt to change the law. So, I decided to research just a couple of the suspicious issues that were raised. It’s amazing how some simple internet research completely changes the picture painted by the talking heads.
Why Are Concealed Carry Permits Acceptable IDs, but University IDs Aren’t?
In short, because concealed carry permits provide proof of identity, residency, and the right to vote, whereas student IDs provide only proof of identity.
As of January, 2008, obtaining a concealed carry permit in Texas requires:
- A completed application form.
- Two Recent Color Passport Photographs. (That is, the permit is a photo ID.)
- Proof of age (at least 21).
- Proof of residency in Texas.
- A handgun proficiency certificate from a qualified handgun instructor.
- An affidavit stating that applicant has read and understands the law concerning a license to carry and the laws on use of deadly force and that the applicant fulfills all eligibility requirements.
- And an authorization to access records. (This relates to the fact that a criminal background check is always performed.)
So, having a carry permit is proof that you’re eligible to vote in the state election (i.e., you’re a resident that has no serious criminal record or other restriction of rights) and has your photograph on it (i.e., is proof of identity).
On the other hand, as of today, getting a University of Texas student ID requires:
- You’re a student; and
- A government-issued photo ID. (Note, foreign governments are governments.)
So, the ID proves your identity, but there’s absolutely no indication that your right to vote hasn’t been legally taken away, and there’s absolutely no indication whether you’re actually a Texas resident. In fact, it doesn’t even require that you’re a US citizen!
Similarly, Social Security cards are also not accepted, but everyone should know that these aren’t photo IDs, so there’s no proof of identity with them. You might as well be asking them to accept your library card.
I guarantee you that the talking heads making such a big deal out of this are fully aware of these significant differences, but convention wisdom suggests that criminals and non-citizens have a tendency to vote democratic, so they’re trying to (mis)characterize this as “getting Republican votes” because gun owners are Republican. In Texas, almost everyone’s a gun owner.
I have nothing against, for example, Japanese nationals, but they shouldn’t be voting in America simply because they’re taking classes at one of our universities. Am I a racist for saying so?
Besides, almost everyone is going to prove their age and residency in Texas using their driver’s license or state ID card, so allowing the use of the concealed carry permit isn’t going to increase the number of voters anyway. This is nothing more that cheap politicking.
If People Aren’t Required to Provide ID for Absentee Voting, Why Does the Requirement Exist for in Person Voting?
Good question. You do have to provide an ID for absentee voting. Sort of.
In order to vote via absentee ballot in Texas, you must fill out an application. If you’re out of the country because of a death in the family, you’re required to sign an affidavit as part of the application, and notarizations require IDs to perform. However, there are three other situations in which you may vote absentee, and none of them require you to include a copy of your ID unless you’re a first time voter in Texas.
Cutting to the chase, this is a huge loophole. It’s possible that you could fill out an absentee ballot and not provide an ID in order to vote. My guess as to why this loophole isn’t closed is because there’s an application process, which in turn raises a red flag on your name. In other words, they’ll be watching for you. If you show up to the voting site, they’ll know you already voted absentee. Additionally, you had to have voted in Texas before, and to have done that, you would have had to prove residency and identity. If you’re subsequently convicted of a serious crime or otherwise have your right to vote taken away, Texas is relying on their Department of Corrections or State’s Attorney office to notify the relevant County Clerk of the change. Okay, I can live with that assuming it’s done reliably, and none of us are in a position to deny that it is.
However, the laws don’t prevent a fake voter from mailing or faxing an application to the County Clerk with a real voter’s name, as no copy of an ID or proof of current residency would be required, nor would a notarized statement be required. The ballot could be sent to the fake voter’s address, and then the fake voter could vote on behalf of the real voter without the real voter’s knowledge. Seriously, why isn’t this happening in every election? (I bet it is in very small numbers.)
In the end, this loophole means that the new voter ID law isn’t going to accomplish what it wants to accomplish because some people can vote without any ID. That should bother you, but only because you should want people to prove who they are, where they live, and whether they retain the right to vote. Currently, even the new Texas voter ID law doesn’t accomplish that. That is, Texas (and so many other states) hasn’t done enough to protect the right to vote. Why do you oppose the measures they actually have taken?
Oh right. Fraudulent voting generally favors Democrats. Well, I guess that makes it right.
What Did You Mean by the Equal Protection Clause Reference?
I haven’t read it in a while, but the Bush v. Gore case, at its heart, was an Equal Protection case. It stood for the proposition that election processes must be fair and orderly because it would violate your right to Equal Protection if someone were able to vote more than once. If they did, your right to vote would mean less than their right to vote, and that’s not equal protection. Maybe you disagree with how that principle was applied in Bush v. Gore – a silly concern considering that most of you didn’t bother to read the case and learn the facts – but that’s an important legal requirement. Requiring identification of a voter certainly goes a long way toward providing a fair and orderly election process.
So What’s the Problem?
Let’s, for once, be straight with one another. Suppressing votes generally favors Republicans, and adding extra votes generally favors Democrats. How much of an impact each has, I don’t know, and I doubt most of my readers do, so let’s not pretend we know. The point here is that Texas Republicans are trying to cut down on the extra votes, and Democrats are claiming that this suppresses legitimate votes. Based on what I’ve gone over here, the only votes that are being suppressed are lazy votes. It’s not hard to get IDs, and stop pretending it is just because there’s a few people who have medical conditions that make them immobile. (By the way, there are exceptions for legitimate hurdles such as immobility, so really, that’s a weak argument.) If a legitimate voter wants to vote, they don’t have to do much to make that happen, and the cost of letting them get out of that responsibility is far too high. It’s the illegitimate voters that are going to have some real trouble under this law. Good.
You should be spending your time fighting for this in your state, not opposing it in other states. If anything, Texas hasn’t gone far enough. We’ll soon find out whether the courts have legitimate reasons for striking down this law. I haven’t researched the law deeply enough to determine where I stand on other potential issues with it. However, the real message here is that the talking heads on the news programs are misrepresenting the facts on the types of ID allowed, which is meant to serve their own political interests.
Yes, I know . . . .
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To all my Facebook friends that love to comment or ask questions without actually reading my articles, please don’t bother to do so. I won’t respond because your words are probably irrelevant to what I’m going to say or have already been answered. I have to lead with this request because only the first couple sentences of a post will show up on Facebook. Sorry for the distraction.
The public reaction to Citizens United v. Federal Election Commission , 558 U.S. 50 (2010), is another shining example of what’s wrong with political discourse in America, and as such, the soundest argument ever made won’t sway people’s views. Americans view the decision as favoring Republicans, which means Republicans love it, and Democrats hate it. As with most political issues, the “why” of the decision is irrelevant to most of us. We believe what we want to believe, logic be damned! Nevertheless, I’m going to give my take on it, hoping that only those that actually care about the “why” will respond (and also hoping I don’t violate item #3 in the list to which I linked in the prior sentence). A man can dream, can’t he?
What pains me the most about those that comment on Citizens United isn’t their substantive viewpoint. Reasonable minds can disagree, and – contrary to what most Americans appear to think – with the issue in play, there’s really no objectively correct answer. This isn’t a scientific question as much as it is a philosophical question, and that’s a key point lost on everyone. I’m not talking about methods for constitutional interpretation, though, so I promise you won’t be getting a lecture on that.
Aside (for context): While there is always a “political” conflict among members of the Supreme Court, it’s not – again, contrary to what most Americans appear to think – a Republican v. Democratic conflict. Instead, it’s a conflict as to how to interpret the Constitution. While there’s clearly a favorite method among each of the political parties, those favorites were picked for historical reasons, and those choices have probably influenced party positions more than the party positions influenced the choice if method. The point of this aside is simply to say that, while there’s a serious philosophical divide between the justices, this isn’t a case of favoring one political party over the other, so the justices really aren’t “playing politics.” I’ve been outspoken in my criticism of various Supreme Court cases (Eldred v. Ashcroft, anyone?), and it’s okay to do that, but we all really need to get past this political scapegoating of the Supreme Court. That scapegoating is motivated by our own political zealotry more so than by knowledge or reason.
So, what kinds of cases get to the Supreme Court? As you probably know, the Supreme Court is free to ignore most cases brought to it. That is, you usually have to request permission for your case to be heard. With the overwhelming number of cases requesting Supreme Court review, a small percentage (currently about 0.8%) actually gets heard.
Sometimes, cases before the Supreme Court are easy, and the result is a unanimous (or near-unanimous) decision. One of the many reasons a case might be easy, yet the Supreme Court has granted permission for it to be heard anyway, is that the case is very important, dealing with a Constitutional right. If the lower courts got it wrong, that’s all the more reason the Supreme Court will take it. For example, in Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988), Jerry Falwell sued Hustler magazine for an advertisement in which, among other things, Falwell was portrayed as having engaged in a drunken sex with his mother in an outhouse. So, what was at stake? On the one hand, you had the fundamental, First Amendment right to freedom of speech, a right that prevents democracy from becoming a sham by allowing us to complain whenever we think it’s appropriate.
On the other hand, you had a public figure whose feelings were hurt.
Needless to say, the Supreme Court ruled unanimously in favor of a magazine that probably all of the justices found distasteful. Why? Simply put, free speech is pretty damned important. Their personal views, political leanings, and even methods of constitutional interpretation were irrelevant. This was just too easy, and Falwell’s loss in the case was total.
Another great example is a bit more recent. In United States v. Jones, 565 U.S. ___ (2012), the police exceed the scope of their warrant by monitoring a suspect’s movements by way of a GPS device installed in his wife’s car without their knowledge (that is, without the suspect’s knowledge or the wife’s knowledge). So, what was at stake? On the one hand, you had the fundamental, Fourth Amendment right to be free from unreasonable searches and seizures, a right that protects us from intrusions into our privacy and lessens the ability of the government to plant evidence in places where such evidence would be most damning.
On the other hand, the cops really wanted to get their guy.
Again, the Supreme Court ruled 9-0 in favor of the suspect. It was another really easy case, and so the loser (i.e., the cops) suffered total loss, just like Falwell.
To summarize, cases involving fundamental, constitutional rights pitted against some lesser interest are easy and usually result in unanimous or near-unanimous rulings by the Supreme Court. It’s also important to remember that the loser in both cases suffers total loss. It’s just the way things usually go in Constitutional cases.
Citizens United Is Not an Easy Case
Sticking with this theme, what about constitutional cases involving two Constitutional rights in conflict with one another? Which one wins? If a case arose in which the right to free speech and the right to be safe from unreasonable searches and seizures, which would you choose? This question is impossible to answer without me giving you a set of facts, so don’t try. My point is that, considering one side is most likely going to suffer total loss, and that “side” is a Constitutional right, there’s a lot at stake here, isn’t there?
So how do you strike that balance?
If that seems like a tough question, it’s because it is, and that’s no minor point. I’ll revisit it later. For now, think of this as a pendulum. If we swing it to the right, free speech wins. If we swing it to the left, the right to vote wins. (Do you see that I did there?)
What does the Constitution say about how we should handle this? Let’s say we were able to bring the Constitution to life as a human being and ask him, Fred Constitution, how we should handle Citizens United. Here’s how that conversation would go.
Justice Kennedy: Hey, Fred. Glad you could stop by. We have a case and need your help.
Fred Constitution: Sure. I’ll do what I can.
JK: Well, these guys are trying to dilute the right to vote . . .
FC: Are you kidding? You can’t do that! The existence of the right to vote defines democracy!
JK: Oh, sure. That’s obvious. So, we can infringe the right to speak one’s . . .
FC: Whoa! Stop right there. How dare you suggest that! The right to speech is in the First Amendment. The first one! Without free speech, all the other rights are a sham! It defines the American concept of democracy!
JK: Yeah, so it’s important, but it’s going to trample over the right to vote, and . . .
FC: Why aren’t you listening to me, Tony? Voting is a sacred right, and you’re going to allow it to be trampled? Who appointed you to the bench?
JK: Wait, you’re not listening. Political speech is the problem . . .
FC: Political speech is a problem? Are you out of your mind? That’s the entire point of the Free Speech clause. Sure, it’s a broad right, but ultimately, its purpose is to protect political speech!
JK: You’re not helping.
FC: That’s not possible. They’re my rules.
This would go on until Justice Kennedy put a gun to Fred’s head or to his own. Either way, someone’s coming out of this maddening conversation dead. In other words, the Constitution, by itself, isn’t going to help. It tells us what’s really important, but it doesn’t tell us how to balance those things when they come into conflict. Moreover, it’s become somewhat accepted in legal circles that no one constitutional right is more important than another, so as interpreted, the Constitution would just say, “Both are equally important. You’re screwed either way.”
Why do I feel the Supreme Court was correct in choosing free speech over the right to vote?
The key is that the right to free speech, while no more important than any other constitutional right, is more sensitive to infringement than the others. That is, if we take away (or just chip away) the right to free speech, the effect will be permanent, while taking away (or chipping away) at other rights can be only temporary thanks to, not surprisingly, our continued right to free speech. That’s confusing as hell, so let’s try a couple of examples.
Scenario #1: It’s September 12, 2001, and we’re all pissed off at Muslims because 19 out of 1.5 billion of them participated in a terrorist attack on United States soil. What do we do? We repeal the Fifteenth Amendment. The next day, September 13, 2001, Congress passes a (now-Constitutional) law saying, “Muslims can’t vote.” So what happens on September 14, 2001? Every single Muslim American says, “Hey, I’m a US citizen! Why can’t I vote?” Because we’re angry, and by assumption our emotion is getting better of us, we tell them to go to hell, and nothing changes. However, on September 15, and on every day after that, we still hear them complaining, until finally we come to our senses and repeal the law.
Scenario #2: It’s September 12, 2001, and we’re all pissed off at Muslims because 19 out of 1.5 billion of them participated in a terrorist attack on United States soil. What do we do? We strike the Free Speech clause from the First Amendment. The next day, September 13, 2001, Congress passes an unconstitutional law saying, “Muslims can’t vote,” and a now-Constitutional law saying, “Muslims can be executed for complaining about the US government.” (Let’s just ignore the Eighth Amendment’s prohibition against cruel punishment for now.) So what happens on September 14, 2001? Every single Muslim American says . . . nothing. Why? Because without the right to free speech, any Muslim that opens his or her mouth will be beheaded. By September 14, 2001, the issue is out of sight and out of mind, and may not ever be corrected. Do Muslims still have a Constitutional right to vote? Yes, but it doesn’t matter. They can’t complain when we take it from them.
Clearly, these are extreme and over-simplified examples, but given enough time, even the infringement of our Constitutional rights become accepted (see, e.g., that our economic rights that were devastated by FDR’s New Deal, and most of you don’t seem to care because you’ve always lived like that). The only thing that could possibly stop this atrocity is our right to speak our minds. The right to dissent prevents us from ever losing sight of the injustice. As long as we can speak, we can remind our leaders and each other of our rights, or at least of what our rights should be. All of these rights are important, but free speech prevents them from being reduced to a sham.
To further strengthen this point, it’s advisable to note that the Framers of the US Constitution knew what they were doing. When they identified a potential problem – for example, King George loving to punish his critics – they didn’t just address the problem directly. They knew that every government could cleverly get around a specific restriction, including the limited nature of federal power (see my New Deal comment). In other words, as an example, the purpose of the Free Speech clause was to protect political speech, but having the “right to political speech” wouldn’t be enough. The government would find away to punish political speech by characterizing it as non-political. Accordingly, they had only one solution: grant a broad right of protecting all speech. That way, while we’re bickering over whether Larry Flynt can say “fuck” in Hustler magazine, the right to political dissent would be safely hidden at the center of the free speech right. Put another way, as long as we can say “fuck,” we can certainly say, “fuck the President.”
Citizens United dealt with political speech that was directly under attack. The Court had to protect it. At the risk of trivializing the simultaneous attack on our right to vote, I’ll mention that the attack on our right to vote was indirect. No one was being told, “You can’t vote anymore.” This is yet another reason the Court should have gone the way it did.
Of course, reasonable, informed minds could disagree, but not on an objective level. This is why I said that the real issue is more philosophical than scientific. You can’t add up a bunch of numbers, solve a differential equation, and calculate whether I’m right or you’re right. This is a matter of what you subjectively think is more important: protecting the right to vote or protecting the right to free speech. I’ve formed my opinion; feel free to form and share yours.
One thing you shouldn’t be doing, though, is claiming this case was trivial, and that’s the first lesson of this post. This was a difficult balancing act to perform, and you shouldn’t be trivializing that difficulty.
You might be asking, “But Rob, why do we have to swing that pendulum so hard? Why couldn’t the court just nudge it a little, letting free speech win, but only a little bit? After all, the pendulum is just a metaphor.”
The problem is in how the Supreme Court works. When you request their permission to appeal your case, you submit questions for them to answer (the “Questions Presented”). These are questions that have to be phrased such that the answer is “yes” or “no.” So, when answering the questions you’ve presented to them, the court, in a very real sense, answers with either a “yes” or “no.” Of course, I’m oversimplifying a bit – the PDF of the Citizens United case is 183 pages long – but it’s certainly true that while their analysis justifying their yes/no answer may be long, and may be helpful in predicting the outcome of future cases, ultimately it answers a simple question in a single case. This results in a massive swing of the pendulum in the winning direction.
This could be mitigated by way of the Supreme Court adding hypothetical situations, going outside the case on hand to explain how the case should be applied in the future to other fact patterns. This would be an unrealistic expectation to have of the Court. There are simply too many hypothetical cases for the court to address, some of which may never arise at all, and even the known important ones would take up too much space. (If you support that idea anyway, I guess a 183-page document is too short for you, so don’t complain that my posts are too long.) Also, keep in mind that many of these hypothetical cases are based on fact patterns the court couldn’t necessarily anticipate. Their decision in the present case was necessary in order for these new circumstances to come into existence.
The result in Citizens United is that the right to vote in this country has been trampled, and it’s shameful that those that support the decision don’t seem to recognize that. The First Amendment trampled on it, so the offense taken by those opposing the decision is greatly overblown, but it has been trampled, and it’s a pretty important right, so we really shouldn’t be celebrating our free speech victory. So, now we have a mess. What can we do about it?
Well, despite the average American’s (unfounded) accusations that the Supreme Court plays politics, the truth is that each of the nine Justices is well aware of what’s happened. They see the damage done to the right to vote, and you can bet your ass that at least a couple of majority justices are chomping at the bit for a case that will allow them to swing the pendulum back towards the left drain some of the water from our diluted voting rights. (It may surprise you to know that I believe Alito, the one that shook his head during President Obama’s Citizens United rant, is one of those justices.)
This will happen.
The ACLU and others will look at the current state of things and say,
Okay, Citizens United led to 7 bad things: A, B, C, D, E, F, and G. If we took away C and F, would that be in violation of Citizens United? In other words, would A, B, D, E, and G be enough to provide for an adequate avenue for political speech even without the presence of C and F? Yes? Then let’s sue!
The result would be a swing of the pendulum back to the left. While the sensitivity of free speech would always give it an advantage, thus leaving the pendulum hanging a little bit to the right, the result of subsequent Supreme Court cases should undo the massive damage done to voting rights. Of course, everyone will still be left unsatisfied, but only because they’re giving way to political zealotry without respecting that both sides of the argument have an important interest at heart, and these are interests we all share.
This is the second lesson I want you to take away from this post: The Supreme Court will eventually strike a balance, because there are two fundamental rights at stake.
Aside: As I always reminded the judges in my moot court competitions in law school, constitutional rights “are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary.” Miller v. California, 413 U.S. 15, 24-25 (1973). I loved this case because it was about pornography, which I found amusing to cite in a formal discussion on constitutional rights, but it’s an important point nonetheless. Shit happens, and there’s no way to avoid it, but if you’re patient, the Supreme Court will eventually set things straight. Usually, it does, especially where the First Amendment is concerned.
What could A, B, C, D, E, F, and G be in the example above? I’m not confident I know all the aspects to this issue that those letters could represent, but one obvious example is transparency. Behind every dollar spent must be the name of a human being (or several). If company A donates $1,000, then its shareholders should be named. If the shareholder of company A is company B, then company B’s shareholders should be named. We could play this game ad infinitum, but eventually, at least one human name will have to be disclosed for every company in the chain. Companies can own companies, but eventually that chain of ownership must end with a human being (or several). Every human being with an ownership interest anywhere in the chain could be exposed, though I could see alternate ways to deal with publicly traded companies “owned” by thousands of people.
Would this chill free speech? Yes, a bit – people might be less willing to speak politically if they knew they’d be identified – but free speech isn’t absolute, and undoing some of the damage done to the right to vote would certainly be a noble cause justifying that slight infringement on free speech. Remember, this is a balancing act.
I want to remind you of the very difficult question I raised earlier:
So how the hell do you strike that balance? (The “balance” in question is between two Constitutional rights.)
If it’s such a tough question, why are you so angry/happy at the outcome? To those that support the decision, I remind you that your right to vote has been seriously diluted, even if you’re a Republican. Corporations don’t speak for you as individuals, even if you’re one of their employees. In such a case, your financial contribution to a company (through your hard work) might be used to support causes you oppose. Why is that anything to cheer?
To those that oppose the decision, the Supreme Court would like to say, “You’re welcome,” because they just protected not merely your First Amendment right to free speech, but your right to free political speech, which is the whole point of having a right to free speech in the first place. Why are you so enthusiastic about giving up that right? Is it because you perceive this particular speech to oppose your own? That’s called hypocrisy, and if that’s the way you think, you really don’t support free speech, so I couldn’t care less what you think. That’s a very un-American way to think.
I place everyone who claims this was an easy decision (whether good or bad) falls into one or more of the following three categories.
1. Stupid (there are plenty of people not capable of grasping these concepts; it’s not their fault);
2. Ignorant (you haven’t educated yourself on the case, but insist on talking about it like you have); or
3. Dishonest (i.e., a political zealot, industry member, or other person who has something to gain directly from the outcome of the case).
As an example of category #2, many of you complain that Citizens United 1) gave personhood to corporations; or 2) gave free speech rights to corporations. Those are ignorant positions. Corporate personhood was first recognized in 1819 in Trustees of Dartmouth College v. Woodward, and free speech rights were first recognized when my mother was in first grade, with the relevant test for whether speech was “corporate” in character being created two years before A Flock of Seagulls released “I Ran (So Far away)”). Those that have ever uttered either of those claims squarely fit in category two, leaving them with no justification for taking offense to the decision.
As for category #3, if you truly understand the issues and consequently have formed a knowledgeable opinion on that matter, that’s great, but if you’ve done so and are still oversimplifying what’s at stake or predicting gloom and doom for the future, that suggests you’re in category three.
People falling in either category #2 or #3 are part of the problem with public discourse, but category #3 people are helping to maintain that sad state of affairs, making them bad people as far as I’m concerned. There’s too much at stake here for you to make your money by maintaining America’s level of ignorance. You’re a bad man. A very, very bad man.
Babu would not approve.
This was not an easy case, and it was probably correctly decided, but eventually, things should level out to some extent. You need to be patient and stop acting as if the system has failed you.
Follow me on Twitter @RobertEBodine
ESPN reported yesterday that Floyd Mayweather, Jr. was seeking early release from prison. Specifically, they report that Mayweather’s attorneys have filed
an emergency motion asking the court to move Mayweather into the general jail population — something that jail officials had avoided out of fear for the celebrity’s safety — or put him in house arrest for the rest of his three-month sentence.
The court knows that the offering the option of moving Mayweather into general population is an empty gesture, because the likely result of doing so would subject the state to a huge lawsuit. The ESPN report goes on to note that Mayweather’s attorney, Richard Wright,
said he’d be willing to have the boxer serve the sentence in an apartment or somewhere less luxurious than Mayweather’s posh Las Vegas-area home. But prosecutor Lisa Luzaich said softening the sentence would be just another accommodation, similar to when Mayweather’s jail surrender date was postponed for months after sentencing so he could fight Miguel Cotto in May.
Mayweather’s strongest argument in favor of early release appears to be that serving out the remainder of his term could threaten his career by limiting his access to proper exercise and nutrition. I sincerely hope that Justice of the Peace Melissa Saragosa doesn’t accept this argument. Many people lose their livelihood because they go to jail. I admit that Mayweather’s job is much more sensitive to even short jail sentences, being that he’s an elite athlete, but the solution isn’t disparate treatment. The solution is not committing the crime. For the same reason his job is so sensitive to jail sentences, he has a higher burden of behaving himself. He’s a public figure, and if you want a job in the public spotlight, you have to answer to the public, whether or not they’re being reasonable. He received a 90-day sentence despite having the means to employ top-notched attorneys, which suggests he’d be facing a longer sentence if he could afford only what most of us can.
I hope he serves the full term, and if that costs him his career, it’s his own damn fault.
My cousin, KesselJunkie, has a blog over at, not surprisingly, KesselJunkie.com. He posted a note on why he doesn’t like recall elections. Not liking them is okay, but I wanted to let him know why I thought they need to exist. In order to double the number of people that might read my comment (from 10 to 20 people), I decided to reprint it here, though I’ve edited it after doing a little research (not much research, but some). I hope you enjoy it.
BTW, for those that don’t understand his online moniker, it’s a Star Wars reference, which is why I emphasize my X-Wing reference. He’s a nerd, but I’m not one to talk, so let’s just leave it at that.
I’ve been watching CNN coverage of the Scott Walker recall election for about 7 hours now. I’ve heard Kessel Junkie’s concerns about the concept of a special election echoed by both the left and the right, and I really want to respond to what a lot of these political experts are saying. Unfortunately, a comment on KesselJunkie.com will have to do, so please pay attention you 10 people. I expand on what I wrote above.
Recall elections serve an important place in our political process, though only 19-1/2 states allow for it at the state level (Virginia “sort of” does, so they count for 1/2). Like anything, they can be abused, and that’s what’s happened in Wisconsin, but that doesn’t sway me against supporting their existence. If a politician commits a crime, the impeachment/conviction process resolves it (relatively cheaply, I might add), though the recall election might replace the impeachment/conviction process for any given state. On the other hand, if you elect an [X]-wing (see what I did there?) politician, and he governs from the [X] (this is what’s happened in Wisconsin), then you should simply stick it out. We aren’t talking about 10- year terms; we’re talking about 2- or 4-year terms, and if you elected an [X]-winger and got what you wanted, you should save the economy some money and not waste it on your sour grapes and the w[h]ine they produce.
There’s a small sliver of factual circumstances in between those two situations. That is, there are legal actions that a politician can take that warrant his or her reevaluation. For example, what if the politician’s family members own several businesses that are getting all the government contracts? If these are legitimate businesses, then no one award of a contract can be seen as illegal, or even inadvisable, but on the whole, it’s troublesome.
What about a politician that breaks promises? What if you elect an [X]-wing politician, but he governs from the [Y]? Yes, the resulting recall election would be “all about politics,” but we’re talking politics. You can’t remove the politics from politics. In this case, the political concern is legitimate, and it speaks to the trustworthiness of a person in whom the public has placed its trust. I’d say that this certainly qualifies as justification for a recall election, depending on the degree.
One reason you could reasonably disagree, however, is that there’s no way to enforce this. How do you evaluate whether people are requesting the recall on the basis of legitimate public concerns or sour grapes? I’ve accused the supporters of the Wisconsin recall election of sour grapes, which would be perfectly in line with the American sense of entitlement about which I often complain on this blog, but do I really know that with 100% certainty? I haven’t even been to Wisconsin in over 10 years, and I certainly haven’t immersed myself in this particular recall election until tonight. Further, my reference to the “degree” of lying shows that there’s a subjective dimension to recall elections, making it even tougher to determine who’s going too far. Lastly, I note that the existence of recall elections doesn’t even address the motives of those drafting, let alone signing, the petitions that make recalls possible, except in those few states where the state constitution requires specific grounds for recall elections. I infer that those states are saying, “Hey, if it isn’t for one of these specific reasons, it’s probably crap, so it shouldn’t be allowed.” I wouldn’t be surprised if those states use the recall election to replace the impeachment/conviction process, which could mean that they really don’t have a recall election as I envision it, though I haven’t researched whether this is true. In any case, Wisconsin isn’t among those states, which includes only Alaska, Georgia, Kansas, Minnesota, Montana, Rhode Island, and Washington.
The fact that recalls are so rare keeps me on the side of keeping them legal. In 2011, there were only 12 recall elections I could find that addressed political officials at the state level (as opposed to local level), with 11 state legislators facing recall (the previous single-year was 3, so this was an unusual year). There were no recall elections for federal officials. I haven’t even considered whether they’re constitutionally required by the Wisconsin case law, as opposed to merely provided for in the state constitution. The abuse that’s occurred in Wisconsin concerns me, as I suspect it might encourage similar tactics (from both the right and left) in other states. Until that happens, though, I won’t stand against their existence, and would actually like to see them allowed at the national level, albeit only for circumstances expressly listed in an amendment to the US Constitution. Again, reasonable minds can disagree.
There was an adult guy interviewed by CNN after the results were announced. He broke into tears, claiming that their election was sold out by outside money, and dramatically declaring that this was the, “end of democracy,” and that, “democracy is dead.” (My next post will address why people are so over-dramatic about politics.) While I’d love to discuss Citizens United with the guy to help him see the light (he probably hasn’t read it) – not to mention that exit polls show that 86% of voters made up their mind well before outside money became significant — for now let’s assume that this outspending indeed cost Mayor Barrett the election. So what? It’s a bit hard to sympathize with someone about a corrupt process when that person inappropriately invoked the process in the first place. Also, keep in mind that this politically devastating event wouldn’t have been possible if it weren’t a recall election. There’s rarely enough outside money available to spend on elections when they’re occurring simultaneously across the country. The only times outside money could have any significant impact in a state like Wisconsin is where, as here, there is a single election occurring across the entire country allowing the entire country to focus on it. The fact that there’s a presidential reelection bid on its heels assures national focus and outside dollars.
You picked this fight, cry-baby, and you lost. Move on.