Monday, July 28, 2014

Freedom of Speech

The 1st amendment’s guarantee of freedom of speech is a pretty simple affair to anyone who has not thought about it too deeply.  “I can say what I want to and too bad if you don’t like it; you can’t stop me, ‘cause it’s a free country.” That pretty much sums it up.  To a 1st amendment scholar or to any lawyer or to a legal mind, it is not quite that simple.  “I can say anything I want to except for the following: 1) I can’t slander or libel anyone and get away with it (both of these require the statement of an untruth, malice, and damage to a person or his reputation or his financial security).  2) I can’t yell fire in a crowded theater, thereby provoking an unnecessary panic with possible consequent damage to persons or property.  And 3) I can’t be obscene, whatever that means ('but I know it when I see it').”  That’s what freedom of speech means to a person familiar with how the law works.

But things have gotten interesting lately.  The already infamous Supreme Court decision Citizens United v. Federal Election Commission has introduced another wrinkle in the fabric of just exactly what speech is protected by the Constitution.  Now corporations are persons whose free speech rights are protected by the Constitution and, as it may cost money to place a political ad on a network TV station, now money is protected as speech without limit too.  And a lot of people are upset with this decision, without knowing really how to get around the issues of just exactly what speech is really FREE and protected.

So, this essay is my 2c worth.

Friday, July 11, 2014

Texas After Roe v Wade

Let’s indulge a thought experiment.  Let’s imagine the repeal of Roe v. Wade, effectively returning to each state complete sovereignty over the abortion issue.  Let’s further suppose that Texas, not wishing to be outdone, legislates abortion to be the same as first degree murder (far from impossible – if abortion is murder – and no abortion is ever not pre-meditated – then abortion is pre-meditated murder, 1st degree murder), punishable by death or life in prison without hope of parole.  Let’s further suppose a Texan Jane Roe who just found out that she is pregnant and for whatever reason does not want to have a baby, Texas law notwithstanding.

What does Jane do?  Real easy!  Jane travels to neighboring Colorado where they have not legislated against abortions, and she has an abortion.  Jane then returns to her home in Texas.

Now what?  What does Texas do?  Does Texas arrest her?  How does Texas know that Jane had an abortion?  Are all Texas women who leave the state followed?  Will a work colleague or a neighbor snitch on Jane?   The state will need better evidence than a snitch to prosecute Jane for the crime of abortion.  Will the Colorado doctor who performed the abortion cooperate with Texas law enforcement and appear to testify against his former client?  Will Colorado state law compel the doctor to help Texas make its case?  How does Texas go about proving Jane had an abortion – where it was legal to do so?

Let’s imagine instead that Jane does not dare to risk returning to her home state where she might be arrested, even if it might be difficult to prove her guilt.  Jane takes up residence in Colorado.  Does Texas then seek to extradite Jane for murder of an unborn child?  Would Colorado respect such an assault on their proper sovereignty?

If you say that Texas will be content not allowing abortions within its borders and not providing a home for those women who were careless enough to need an abortion, an unintended but absolutely certain consequence of such thinking will be the slow but steady emigration from Texas of women who would rather not take the chance of running afoul of Texas law.  You may speculate whether that would be a net positive or a net negative, but it will be a loss, guaranteed.

One of the biggest hurdles that Pro-Life forces face is coming up with a workable legal response to a woman having an abortion.  Before Roe v. Wade made it legal everywhere to have an abortion in the first trimester, women had abortions that were performed illegally.  Outlawing abortions does not stop abortions; it just makes abortions difficult and ugly and dangerous.

Addendum: Thursday, 12/10/2015
A few paragraphs above I suggested that rigidity on abortion would cause an emigration of women from Texas, and I suggested it would be a loss to Texas.  It looks like Texas is committed to brain drains.  See this news flash!

Wednesday, July 9, 2014

The BIG Question

The Big Question for the 20th Century is whether a critical mass of humanity will realize by the start of the 21st Century that it has been on a path of self-annihilation for a long time and that it may be too late to save itself by changing course; so why bother?

Thursday, July 3, 2014

Open Carry Gun Rights

Apparently it is Constitutional to openly carry firearms.  So here is my question: May a business prohibit you from openly carrying your firearm into their place of business?  May a business prohibit you from carrying a firearm into their place of business at all?  Prohibit you LEGALLY?  The answer is remarkably simple: yes and yes.

The 2nd Amendment prevents Congress – and the federal government and state and local governments – from infringing your right to keep and bear firearms.  It does nothing to prevent a private entity from prohibiting you from entering its privately owned space.  The private entity makes up its own rules as to who may enter and who may not and – except rarely (as in cases of discrimination) – may enforce those prohibitions.

Here’s the rub though.  By the above, it would seem that your right to bear should allow you to bear arms into government buildings, right?   Hmmm.  Not so quick, Charlie!  Logic may be on your side, but you will have to sue.  And don’t bet that logic and rights will help you to win your case.

Every now and again, common sense needs to trump what someone thinks is Constitutional.  Not often enough if you ask me.

If someone can find an official and somewhat comprehensive list of companies on one side of this “issue” or another, please let me know.  I will publish a link to it, to the delight of all those on either side of this issue.

Hobby Lobby

The Burwell v. Hobby Lobby case is yet one more case that the Supreme Court has decided that remains controversial.  Whose rights are we to protect anyhow?  Are we going to protect the "religious rights" of owners of a corporation, their rights to refuse to allow some health-care coverage to their own employees, even if they do not have to pay for it?  Or ought we to fight for the protection of the rights of the many more American citizens who work for them, who do not share the religious biases of their employers?  Whose freedom is it anyway?  The Roberts court affirms that the freedom they will protect is the freedom of the employers.  The Roberts Court has a long and consistent history of imagining that corporations have Constitutional Rights.  <Sigh>

But here is something that I believe is incontrovertible, uncontroversial.  The Supreme Court – the Roberts Court, the Kennedy Court, the Scalia Court, whoEVER owns this court – is suffering from a loss of respect from the American people.  Yes, I know all about all those 9-0 decisions (and their oftentimes angry "concurrent opinions"), but most of the “important” decisions seem to be decided by one justice named Anthony Kennedy, everyone else voting “predictably.”  The people are right when they think that the Supreme Court is putting political ideology above justice.

And when that so-called political "ideology" maintains that corporations have protected Constitutional Rights, on a par with you and me having protected Constitutional Rights, that ideology is stupid, it is wrong and it is evil.

Addendum: Thursday, 08/13/2015
You can tell that I didn't like that SCOTUS decision, can't you?  It was a decision that was based on an understanding that corporations are persons under the Constitution and thereby entitled to Constitutional Rights, a proposition that I abhor with all my might and that underlies all my work, my book and my blog.  If you are unfamiliar with my argument, or need convincing, read my book, To My Countrymen.  Or look at my Corporate ... What? blog post.  Here are two other more technical responses to check out, Property v. Liberty: The Supreme Court’s Radical Break with Its Historical Treatment of Corporations and Getting the History Right: Tracking the real history of corporate rights in American constitutional thought.