Saturday, December 29, 2012
Andrew Sullivan for whom I have great respect writes this week about cannabis and its use among high school students in the US. I have read the article and I am not sure I agree with it. First of all he cites a study cited in an article in USA Today in which the author of the article says “As states increasingly adopt laws allowing medical marijuana, fewer teens see occasional marijuana use as harmful, the largest national survey of youth drug use has found.” That is all well and good and I am not questioning the numbers set out in the article respecting the views of adolescent responders.
What causes me pause however is Andrew's take on the study. One of its basic assumptions both in Andrew's comment and in the USA Today article,without citation to authority other than the 'everyone knows' argument is that pot is harmful to the adolescent brain. I am not willing to accept that without reference to some science. I refuse to accept the argument that “everyone knows” this or that thing. That argument is fallacious ab initio for the simple reason that 'everyone' does not know this or that article of presumed fact. I understand that there have been very few studies of cannabis and its harmful effects on the human brain generally, if any there are. I also understand that the paucity of such studies results from the institutional corruption of the federal agency charged with regulation of cannabis and its use. The Drug Enforcement Administration doesn't want studies about cannabis. Studies inhibit the administration's mission which is the total prohibition of the cultivation, preparation, transportation, transfer, possession and use of a plant by anyone. In short DEA is the occupying army in our 75 year old failed War on Drugs.
Remember in a free society we need a good and substantial reason to criminalize an action, an activity or a thing, we do not need a reason to make such an action, activity or thing legal. In a free society the default setting is or should be 'lawful.'
Monday, December 17, 2012
When I heard Friday's news of the shooting at Sandy Hook Elementary I sort of put it out of my mind because the news report I heard said that all the children had been evacuated to the safety of a nearby fire station. I had errands to run and people to see. It was only later when I returned home that the extent of the devastation wrought by the lone gunman became known and the enormity of the tragedy hit home. Later that day I posted something of my grief and my frustration on one of the social media sites. It was a true feeling of impotence and all I could do, all I could think to do was to not turn on my holiday lights and I lit a single votive light in a blue holder in the window and wept for the children, for their martyred teachers and for my countrymen. I could not think of anything else I could do even though my heart was breaking in sorrow. Since then I have pretty much been alone with myself wondering what I should do and what we should do as a society to attempt somehow to prevent these insane massacres by obviously insane and angry people.
My first thought was that we should repeal the Second Amendment, that it was no longer necessary because we no longer have citizen militias. We have moved beyond the need for groups of armed citizens called to training with their flintlocks. I played with idea for awhile and while playing with it I re-read Antonin Scalia's opinion in District of Columbia vs Heller in which Justice Scalia the intellectual leader of the Four Horsemen of the Court in which he attempted in tortured prose and logic to explain how the Second Amendment prefaced with prefatory language that a “well regulated militia” is essential to the security of a free state somehow protects a citizen's right to own a weapon for personal protection and the protection of that citizen's property. Scalia is one of the proponents of a nonsensical theory of constitutional interpretation known as Originalism which holds that the Constitution must be interpreted according to intent of the drafters of it. Or as Scalia said recently in one his public speeches touting his book, that the Constitution is “dead, dead, dead.”
Logically according to Originalism it would seem that since the Second Amendment was adopted in 1791 that it should mean that every citizen is entitled constitutionally to own and possess a flintlock, a bowie-type knife and perhaps even a primitive cannon. Scalia didn't discuss that in his opinion for the Court in the Heller case. I was thinking that the amendment should be repealed so that we could as a society make 'war' on firearms and destroy as many of them as we can. I have since abandoned that position as not very practical and as not very effective and as destructive of other constitutional rights. Now my position is that we should keep the amendment and limit it to flintlocks and bowie knives and small cannons of the like hauled around by Washington's rag tag army during the Revolutionary War.
A better read is the dissenting opinion of Justice Stevens in the Heller case. In his opinion Stevens points out that the Second Amendment grew out of the constitutional convention dispute over allowing the Congress to organize a standing army and the fear that the states had that such standing armies were a threat to the very existence of the rights of the states to maintain, arm and train their own militias and even possibly to the sovereignty of those constituent states at the time of the Nation's birth. The amendment was an 18th century solution to an 18th century constitutional problem. We no longer have state militias as they were in the 18th century. We fight wars in far away places like Afghanistan and Pakistan with their successors, national guard troops that have been federalized and brought into the service of the Nation. We no longer have 18th century problems. We have 21st century problems, great big 21st century problems like wing nut crazies such as Adam Lanza who murdered 26 people on Friday for reasons known only to himself.
The real issue is that we are a warlike people. We make war in faraway places and we make war at home. We even make up reasons to go to war, reasons that are untrue. We are enamored of violent solutions to all sorts of problems. We carry on a love affair with things like capital punishment. We make war on all sorts of things from drugs to poverty. Violence and violent imagery are a way of life to us. We play violent games both privately on computers and publicly in huge arenas and on television. I was shocked at the violent and racist reactions last night of some people to a network's preemption of the first quarter of Sunday's football game between the San Francisco 49ers and the New England Patriots to televise President Obama's speech at the Sandy Hook memorial. American football is nothing more than a violent fight to acquire the opposing team's land.
This orientation toward violence is what has to change. There can be no doubt about that. The big question is how do we change it? We need to have a really big, really serious national conversation among honest and serious people. We need to talk it out and figure out how we change the violence that is a cancer on our Nation. Let us reason together in good faith and solve that issue for ourselves and for our posterity.
Tuesday, December 11, 2012
Since Mitt Romney's defeat in his entitlement-based campaign to move into the White House there has been a lot of talk among GOP pundits and consultants about the reasons for his defeat. All that punditry seems to focus on outside factors instead of the simplest and most logical reasons that the apologist for a Dickensian society lost: the majority of people voting simply didn't like him or his 'ideas' nor did they like or approve of the general message of the GOP. What I find interesting however is the recent plan by the pundits to fix the misidentified problem. Their problem is that they are going to continue to lose presidential elections as they continue to pander to what's left of a society and its social mores that have begun a mad rush to the exits. This country is not the same country demographically or politically it was fifty years ago, as one can easily see in the sea change between 2008 and this past election at least in the national debate that has been boiling around marriage equality in the four states where it was on the ballot this past month. In the analyses presented by GOP pundits they have urged that the cumbersome Electoral College systems (there are really 51 separate systems) that we use to actually elect our president isn't itself the problem. They see the problem in how those electoral votes are distributed and divvied up between the two major party candidates. There is very little hope under the current 'winner take all' system most states use to select presidential and vice presidential electors that the candidates of minor parties, such as Greens or Libertarians will ever win any electoral votes for their presidential candidates and this lack of hope will be cemented in place under the GOPer fixit plan. That problem flows naturally from the two party system we use. If the GOPers were really sincere in their desire to fix what they see as the evils of the present system they would push an amendment to our Constitution that eliminated the electoral college systems altogether so that presidents and vice presidents would be elected at large by the entire voting population. This action at least in theory would allow for that elusive condition, a level playing field on which to compete electorally and give minor parties and their candidates some hope of actually winning an election some day.
Article II, Section 1 of the Constitution and the 12th Amendment describe the electoral college and its duties and the manner of its selection and how and where they vote on the day specified by Congress. Our Constitution says that the electors of each state are chosen as their respective state legislatures determine. Currently the overwhelming majority of states and commonwealths that make up the Union use a winner take all system in which the candidate who gets the greatest number of popular votes earns all of that state's electoral votes. A few states award electoral votes by congressional district, this is the 'fix' being proposed by the GOP. Under this system a state would award its votes according to which candidate wins the most votes in each congressional district. On its face that sounds fair because it appears to be a local election where Joe Citizen gets a more direct impact on the selection of the president. It appears to bring democracy home to your own neighborhood. They say it removes the 'evils' from the current system which awards all a state's electoral votes to which ever candidate wins the most votes in the popular election. Their system just converts a statewide winner take all election to the same effect in each congressional district in the state.
The major failure of this plan, along with permanently freezing minor parties out of a chance ever to have their candidates elected is that assigning presidential electors in this fashion suffers from the same liberty defects that plague electing our congressional representatives by congressional district: apportionment and decennial re-apportionment and the gerrymanders they always create. The determination of your representation in the House closely tracks in time the decennial census the federal government conducts. Congressional and state legislative districts are generally reapportioned in the year after the census. These reapportioned districts are generally created by legislators who will run for re-election in the next election and the electoral maps tend to favor the re-election of the fellows who drew the districts. And of course there is great cooperation among the legislators participating in such shenanigans. It's another example of the play out and operation of the old adage that 'one hand washes the other'. Each congress critter represents approximately six hundred thousand people in order to keep faith with the Supreme Court's 'one man one vote' jurisprudence. As a result of this rural districts tend to be geographically large and urban districts to be much smaller and more compact. Rural areas tend to be more conservative than the residents of urban areas. The result is that rural areas tend to elect the same people to the same office year after year and those persons tend to be conservative in large part because of the demographics of rural districts. If each of those districts elect presidential electors they will be conservative too and will tend to vote that way when electing the chief executive. The GOPer plan is a new paint job on an old broken vehicle: divide and conquer.
Saturday, December 8, 2012
Yesterday's decision by SCOTUS to grant certiorari in both the Perry case and the Windsor case is noteworthy. Perry is the case that seeks to overturn the ruling in the 9th Circuit that upheld the decision of former Chief Judge Vaughn Walker of California's Eastern District court that California's 2008 Proposition 8 violated the federal Constitution. Windsor is the case out of the 2nd Circuit holding that the 1996 Defense of Marriage Act popularly called DOMA was itself violative of the Fifth Amendment to the Constitution.
These two cases combined constitute a 'perfect storm' of Constitutional dimension. No one other than the nine justices on the Court know which justice voted which way. The writ of certiorari from the Latin 'to make more certain' may be granted by the affirmative vote of four justices of the court. A decision to grant the writ and set a case for briefing, argument and hearing is made 'at conference.' The members of the court meet in secret periodically during any given term in their conference room in the presence only of their consciences. The term of the court runs from the first Monday in October until they finish their business in late June, whether or not that business is in reality finished. The justices themselves determine when their business is finished. It is commonly believed (with no evidence to support that belief) that 'cert' was granted by the affirmative vote of the four 'conservative' justices including the Chief Justice and justices Scalia, Thomas, and Alito and it is commonly believed by court watchers that the four 'liberal' justices along with Justice Anthony Kennedy did not vote for cert. Since the conference was held in secret no one but the nine justices knows for certain and everything else is simply speculation. Not even the legal staffs of the justices know what transpired at conference. All we know is the result. Both cases will be heard and in theory decided before the end of June.
Every partisan in the Nation has predictably announced how happy each is that SCOTUS has decided to take up both Perry and Windsor. I caution restraint in those announcements of support for the action of the justices yesterday at conference. Potentially these cases can be the greatest civil rights cases of the legal careers of both the justices and the lawyers participating in those cases and whose names will forever appear on the briefs and in the case books and in the history books of this Nation. These cases can go down history as the legal equals of Brown vs Board of Education in which a unanimous court outlawed the practice of compelled racial discrimination in our public schools and the other great marriage case Loving vs Virginia which unanimously overturned racial restrictions on marriage in the United States.
A decision of SCOTUS upholding both the 9th circuit decision and the 2nd Circuit decision would mark great progress in the slow struggle to democratize our society and to extend the blessings of liberty that has been undertaken in the 221 years since the adoption of the Constitution. As a partisan in this struggle I must say that I fully support this struggle for what is being called Marriage Equality. I am not going to go into the reasons. Hundreds and perhaps thousands perhaps even tens of thousands of people have already set out those arguments and reasons. What I fear however is that SCOTUS will not advance this struggle for liberty but in fact will craft an opinion in form and substance equal to the opinion written by Chief Justice Roger Taney in Dred Scott vs Sanford decided in 1857 that “negroes”, even those who had been manumitted by their 'owners', were not and could not ever become citizens of this country or of any of the states in which they lived or were present and which was overruled both by the Civil War and the enactment of the Civil War Amendments to the Constitution and of course the case of Plessy vs Ferguson decided in 1896 in an opinion written by Justice Henry Billings Brown holding that compelled separation of the races is somehow equality under the law.
A decision reversing either the Perry case or the Windsor case would destroy our constitutional jurisprudence so painstakingly crafted over the 221 years of our constitutional history and create a constitutional crisis unseen since the secession of the confederate states. In my view it is time to educate the members of the court not just through the briefs filed in these causes but through popular education. There is no doubt that the the justices of the Court read not only the briefs filed but also newspapers and other organs of popular education including I suspect the writings that appear in the blogosphere. There must be a great clamor arising from the People educating the justices including the mossbacks who inhabit the conservative side of the court to the reality of what is at stake in these two cases. Are we marching forward, however slowly is that march, or are we heading back to the days when we created not only classes of citizens but classes of people who in the words of Chief Justice Taney were not and could not be citizens and who were excluded from the benefits civil society and equal protection under the law? SCOTUS is going to answer that question for us, for better or worse, in the next six months.