In a New York Times op-ed criticizing president Obama's past attempt to gain support for an invasion of Syria, the Russian president Vladimir Putin assailed an idea close to many Americans as part of a larger criticism of American foreign policy, particularly towards intervention in the Middle East. He directly blamed the idea of American exceptionalism as a reason why the United States is so willing to intervene in the affairs of countries who have not threatened it. American exceptionalism as told by Putin is the idea that America is unique among nations for being responsible to spread freedom around the world. Since we are the oldest continuous democratic government in the world, our freedoms are ingrained in our institutions like nowhere else. His use of the phrase came as a shock to most Americans who today hear it from those on the pseudo-nationalist right like Newt Gingrich and Rick Santorum. They too share the definition of American exceptionalism to mean America has, or a at least believes so, a responsibility to spread freedom around the world due to its exceptional history as a democratic nation.
But this is not what American exceptionalism really is, or at least was originally meant. The exact origins of that phrase date to Putin`s country of origin, Russia, and to its most legendary leader in recent centuries, Joseph Stalin. The phrase originates from a 1929 conversation American Communist leader Jay Lovestone had with the General Secretary. In Moscow Lovestone argued that socialism wouldn´t happen in America because the proletariat who would benefit the most from socialism are not interested in revolutionary change. America had a uniquely individualistic culture without the class antagonism of a feudal/monarchical past. Growing imperialist ventures opened up foreign markets to bring more riches to buy off the working class and shift the worst exploitation overseas. Stalin during this conversation demanded Lovestone end this ¨heresy of American exceptionalism¨ and the phrase was born. Stalin used the phrase a a term of derision for the blinding of the proletarians from their true class interests. The phrase stayed within leftist circles and faded away as the American Communist movement lost its thunder after the New Deal erected a great compromise between labor and capital by use of the state and the economy rose to new highs after World War 2. It gained its current connotation after the 1980´s where its meaning was transmuted into a positive affirmation of Americas inherent faith in individualism and the role it had in spreading those values throughout the world. At that time, America´s economy hit the worst recession since the Depression and lost its first war in Vietnam. Confidence in Americas optimistic individualism was challenged further by Socialist insurrections in Nicaragua, Angola, and Afghanistan during the 1970´s.
What makes America exceptional is the fact that no socialist movement has ever been viable on a national scale. The most common definition today of what makes America exceptional fails to explain what continues to make America unique today as democracy has become established in more and more countries since the 19th century, and as formerly monarchical Europe has become far more left-wing than the United States on just about every major issue. Russia itself has a representative government and a similar federal system to the United States. These countries are more left-wing because they have organized and successful socialist movements. one of France´s major parties is the Socialist Party who in 2012 won control of the presidency and the National Assembly. Germany´s Social Democratic Party is one of two major parties, which is actually the first Marxist political party in the entire world. Even Great Britain which is much closer to the United States in its political-economy has the Labour Party as one of its three major parties, a party which describes itself today as Democratic-Socialist. Our neighbor to the south Mexico has the Party of the Democratic Revolution (PRD) which is aligned with the Socialist International and is one of three major parties. Americans scoff at Socialism by associating it with poor despotic countries like the Cuba or North Korea and claim Marx was dead wrong when he claimed that the wealthy capitalist countries would soon see revolution, but this is myopic since each advanced capitalist economy has developed a welfare state, and most have a socialist movement based historically around labor unions. The lack of successful socialist parties makes Americans think that Socialism can only succeed by violent revolutionary means and makes it even harder for left-wing movements to gain ground.
The failure of socialist organizing explains itself. A movement doesn´t succeed without prior successes. The fact that from the beginning no serious challenge to liberal capitalism has succeeded in open opposition suggests that there is something inherent in American society itself that prohibits that kind of criticism. Socialism is defined in opposition to capitalism and as a larger critique of Classical Liberalism which unlike in Europe forms the basis of Americas values. Left-wing politics developed as an anti-thesis to the class structure and had a decidedly more radical character in Europe. In America there didn´t develop a feudal class system to ingrain a dislike of wealth in itself, and its association with political oppression.
The larger problem that prevents socialists from gaining ground is that our system isn´t friendly to outsider ideologies period. This has its advantages for the even the most dedicated leftist because it means the far-right doesn´t succeed either. They do affect the political system but never from within and are usually co-opted. This sacrifice is what has allowed the United States democracy to last so long. A basic consensus that liberal democracy is the best system of government can over power what problems afflict the application of those principles. In this way by accepting liberalism carte blanche we have been able to approach issues on a pragmatic basis accepting socialist solutions for some and laissez-faire for others. America is exceptional in the modern era because it doesn´t have a strong socialist movement, but it is exceptional against human history because it has a strong devotion to liberal ideals.
Monday, October 21, 2013
Sunday, October 13, 2013
The Latino Vote: Historical Considerations
The 1960 campaign, as close as it was between Richard Nixon and John Kennedy, can be seen as the closing of one door and the opening of another in American politics. Kennedy was the first Irish Catholic to be elected president, and the last Irish Catholic candidate for whom that mattered. Before him was Al Smith, the first Irish Catholic to be nominated for president of either major party, back in 1928 for the Democratic Party. Unlike Kennedy he had no shot at winning running against Herbert Hoover who was the air apparent to the prior two Republican presidents of the 1920´s, but what he did was to solidify the ¨ethnic¨ white vote, consisting of largely Catholic descendants of immigrants from Ireland, Italy, and Poland. Before Smith the ¨immigrant¨ vote was actually split according to region and nationality. Afterwards it became off-limits for Republicans for about four decades.
Just like how Al Smith´s success bringing in a new constituency for the Democratic party proved latent, Kennedy´s greatest success would prove to be tapping into the Latino vote. Kennedy´s campaign was ahead of its time by bringing Latino voters into national politics because of how small a proportion of the population they were. In 1960 Latino´s were 3.6% of the population, compared to 16.4% in 2010. They were such a small percentage of the population that the Census Bureau didn´t even list Latino/Hispanic as a separate racial category until 1970. However the closeness of the 1960 election meant that every vote counted. Mexican-American voters helped tip over Texas and New Mexico to Democrats. The first Spanish political ad was done by Jacqueline Kennedy, and the slogan Viva Kennedy was adopted. In fact a day before his assassination on November 22nd 1963, he made the first speech acknowledging Hispanic-Americans as an important voting block speaking to a group of Mexican-American civil rights activists in Houston, and convinced his wife to speak to them in Spanish. In 1960 Kennedy won 85% of the Latino vote. A Democrat has not won the presidency since without at least 60% of Latinos.
At the same time, twilight had been reached with white ethnic voters. As soon as 1964 working class and urban whites began casting ballots for right-wing candidates like George Wallace and Barry Goldwater as the old political loyalties to the Democratic Party faded away and were replaced with the ¨New Politics¨ of appealing to younger and minority voters. The linchpin of ethnic white support for Democrats was economic. By the 1920´s the Republican Party had purged most of its progressive wing and the Democratic Party had by way of Woodrow Wilson´s efforts brought those progressives into the fold as well as trying to reduce the influence of the reactionary elements of the Solid South. When the Great Depression hit its worst in the early 1930´s, the previously progressive Herbert Hoover opposed federal relief efforts and as the unemployment rate passed double digits was routed in a landslide by Franklin Roosevelt in 1932. Roosevelt´s strong support of labor rights ensured the largely blue-collar ethnic whites would opt to re-elect him to serve a total of four consecutive terms. This voting pattern continued for decades until after World War 2 when the nation suffering over a decade and a half of depression found itself into unprecedented levels of prosperity. Thanks to the GI Bill and federal investments in national infrastructure as well as strong labor rights, working class whites finally were able to join the middle class. Becoming middle class meant moving out of the urban environment and from the influence of Democratic political machines and restrictions on immigration passed in the 1920´s cut off the influence of immigrants from the Old World who might pressure their Americanized counterparts to stick to their ethnic roots.
The significance for today is whether Kennedy´s courtship of Latinos into the Democratic coalition will end some time in the future like Al Smith´s efforts did by the 1960´s, resulting in Latino´s voting more or less like white Americans. This goes beyond politics as a ¨normalization¨ of voting patterns may also coincide with full assimilation into American society meaning Latino´s will cease to be a distinct demographic. Already Latinos vote slightly more Republican than they used to, but still overwhelmingly choose the Democratic Party. They have gone from a high of 90% for Lyndon Johnson in 1964 to a low of 53% in 2004. When controlling for general waves in the whole electorate, the Latino vote has been 30-40% for Republicans since the 1980`s. By Bush 43`s administration, Latinos appeared to be leaving the Democratic Party as Bush won a staggering 44% of their vote in his close re-election. When looking at American-born Hispanics, they lean more Republican than their predecessors and were set to continue this trend. During the 2000`s Latinos replaced Blacks as the largest minority group in the United States and became a large source of new small businesses. It seemed likely that the ¨race card¨ that Democrats have used with Blacks since the passage of the 1964 Civil Rights Act would not work with a population arriving after the chaos of the 1960`s became the norm and when being Catholic wasn`t special, possibly neutralizing race and cultural issues. Republicans after Reagan to Bush Jr. further neutralized the immigration issues by backing amnesty plans in 1986 and 2006 respectively.
But alas this shift didn`t continue as conservatives realized how Republicans were trying to co-opt Latinos by moderating their tone and policies on illegal immigration, and lashed out creating grassroots movements led by AM talk-radio to kill the 2006 and 2007 attempts at comprehensive immigration reform. Even though Republicans ran John McCain for president in 2008, who was a leading advocate of immigration reform, they won only 31% of the vote nationwide reversing much of their gains only four years prior. In between 2008 and 2012 the Tea Party wave of the 2010 midterms elected at the state level governors and legislatures which would reverse any support for a more lax immigration policy and aggressively go after illegal immigration. In 2011 Arizona passed SB1070 which required law enforcement to inquire the citizenship status of someone they pulled over on suspicion for a crime. Several other states like Georgia followed suit and invited federal prosecution from the Justice Department. Nationally Republicans conspired in the Senate to kill the DREAM Act which would give citizenship to undocumented youths who finish High School or join the military. During the 2012 primary for their presidential, Texas Governor Rick Perry who signed a bill similar to the DREAM Act was attacked from all sides as supporting amnesty, and received the harshest attacks from Mitt Romney who would go on to win the nomination. Romney did this as part of a larger strategy to win over hard-right holdouts who preferred just about anybody to the Governor who signed a healthcare bill in Massachusetts which served as the basis for the Affordable Care Act. In addition to lambasting Rick Perry, he also gave his support to self-deportation. Self-deportation is the idea that making life for illegal immigrants harder by barring them from government benefits will incentivize them to go back to their home country and apply for citizenship. This was included in the 2012 GOP platform and sealed the Republicans performance with Latinos. Romney received 27% of the Latino vote nationwide and lost the popular vote in total by 5 million. The decades long gradual drift towards the Republicans reversed itself within four years.
This isn't a surprise however. Even before the backlash in 2006 and 2007, at the state level in the 1990´s conservatives were already honing their attack. Independent 1992 presidential candidate Ross Perot ran a populist campaign against the North American Free Trade Agreement and argued that passing NAFTA would increase illegal immigration, bringing the issue of Mexican illegal immigration to national attention. Patrick Buchanan was the first to run a populist movement against immigration as he gave a serious challenge to George Bush Sr. in the 1992 presidential primaries winning 38% in New Hampshire and getting the high profile keynote speech at the Republican nominating convention, and again performed very well in the 1996 primaries actually winning the New Hampshire primary and coming second in the Iowa caucus. The turning point came in 1994 in California when then Republican governor Pete Wilson visibly supported Proposition 187 which prohibited illegal immigrants from accessing state social services. This and other propositions like Prop. 209 in 1996 which banned affirmative action were the first instances of self-deportation and the backlash against comprehensive immigration reform. Prop. 187 incidentally was the first time immigration policy was dealt with on the state level, setting the stage for Arizona in 2011. It was also the first time Latinos mobilized as a political block of consequence. Their efforts bore fruit when in 1999 the Proposition was ruled unconstitutional. Since the 1990´s the Republican Party has fallen into minority party status in California and after 2010 holds no statewide office.
While Romney was extolling self-deportation, Obama made amends with Latino voters. Obama won big with Latinos partly by promising to pass immigration reform in his first term. As this didn´t happen due to the primacy of the faltering economy and Congressional opposition, Latinos began to sour on him. This was made worse as the recovery in his second term still saw higher unemployment rates among Hispanics than the total population. As 2012 approached Obama knew he needed every vote he could get in what seemed to be a close re-election. In the summer of 2011 he announced that the Department of Homeland Security would defer deportations of minors, enacting a sort of DREAM Act. Now he had something to show for Latino voters. He and his wife Michelle also appeared on Spanish-language television and ran campaign ads in Spanish. This combined with the outright hostile rhetoric of the Republicans garnered him 70% of the Latino vote.
Voter trends are not deterministic, and depend a lot on how parties can adapt to rising demographics. Such reactions can accelerate or reverse even linear trends. So far Latinos have followed the pattern laid by previous ethnic groups, but have reversed course recently due to Republicans doing just about everything they can to lose as many Latino voters as possible. It would seem that 2012 would signal a reverse of this, but besides some encouraging words about outreach efforts, Republicans again have fought to kill an effort to reform immigration. Comments by Iowa Congressman Steve King describing immigrants as dogs have seen heavy rotation on Spanish media. And so Democrats continue to reap the gains of the Hispanic vote. An extended childhood period seems to be the foreseeable future. What is interesting is that this phenomena seems to be effecting all minority groups, even Asians who despite assimilating rapidly vote overwhelmingly for the Democratic Party. What seems to be happening is that the current crop of immigrants have the additional aspect of being racial minorities and are affected by the concentration of White voters into the Republican Party since the 1960´s when White Ethnics pulled the lever for Richard Nixon in ´68. With the first non-White president being a liberal Democrat this exodus has reached completion. But still this isn´t inevitable as Asians like Latinos were slowly leaning more Republican before the Nativists emerged post 1990´s. The future will be either a return to a linear progression or a sharp reversal, the first over decades and the latter in maybe a few years.
(Written for Latino politics class)
But alas this shift didn`t continue as conservatives realized how Republicans were trying to co-opt Latinos by moderating their tone and policies on illegal immigration, and lashed out creating grassroots movements led by AM talk-radio to kill the 2006 and 2007 attempts at comprehensive immigration reform. Even though Republicans ran John McCain for president in 2008, who was a leading advocate of immigration reform, they won only 31% of the vote nationwide reversing much of their gains only four years prior. In between 2008 and 2012 the Tea Party wave of the 2010 midterms elected at the state level governors and legislatures which would reverse any support for a more lax immigration policy and aggressively go after illegal immigration. In 2011 Arizona passed SB1070 which required law enforcement to inquire the citizenship status of someone they pulled over on suspicion for a crime. Several other states like Georgia followed suit and invited federal prosecution from the Justice Department. Nationally Republicans conspired in the Senate to kill the DREAM Act which would give citizenship to undocumented youths who finish High School or join the military. During the 2012 primary for their presidential, Texas Governor Rick Perry who signed a bill similar to the DREAM Act was attacked from all sides as supporting amnesty, and received the harshest attacks from Mitt Romney who would go on to win the nomination. Romney did this as part of a larger strategy to win over hard-right holdouts who preferred just about anybody to the Governor who signed a healthcare bill in Massachusetts which served as the basis for the Affordable Care Act. In addition to lambasting Rick Perry, he also gave his support to self-deportation. Self-deportation is the idea that making life for illegal immigrants harder by barring them from government benefits will incentivize them to go back to their home country and apply for citizenship. This was included in the 2012 GOP platform and sealed the Republicans performance with Latinos. Romney received 27% of the Latino vote nationwide and lost the popular vote in total by 5 million. The decades long gradual drift towards the Republicans reversed itself within four years.
This isn't a surprise however. Even before the backlash in 2006 and 2007, at the state level in the 1990´s conservatives were already honing their attack. Independent 1992 presidential candidate Ross Perot ran a populist campaign against the North American Free Trade Agreement and argued that passing NAFTA would increase illegal immigration, bringing the issue of Mexican illegal immigration to national attention. Patrick Buchanan was the first to run a populist movement against immigration as he gave a serious challenge to George Bush Sr. in the 1992 presidential primaries winning 38% in New Hampshire and getting the high profile keynote speech at the Republican nominating convention, and again performed very well in the 1996 primaries actually winning the New Hampshire primary and coming second in the Iowa caucus. The turning point came in 1994 in California when then Republican governor Pete Wilson visibly supported Proposition 187 which prohibited illegal immigrants from accessing state social services. This and other propositions like Prop. 209 in 1996 which banned affirmative action were the first instances of self-deportation and the backlash against comprehensive immigration reform. Prop. 187 incidentally was the first time immigration policy was dealt with on the state level, setting the stage for Arizona in 2011. It was also the first time Latinos mobilized as a political block of consequence. Their efforts bore fruit when in 1999 the Proposition was ruled unconstitutional. Since the 1990´s the Republican Party has fallen into minority party status in California and after 2010 holds no statewide office.
While Romney was extolling self-deportation, Obama made amends with Latino voters. Obama won big with Latinos partly by promising to pass immigration reform in his first term. As this didn´t happen due to the primacy of the faltering economy and Congressional opposition, Latinos began to sour on him. This was made worse as the recovery in his second term still saw higher unemployment rates among Hispanics than the total population. As 2012 approached Obama knew he needed every vote he could get in what seemed to be a close re-election. In the summer of 2011 he announced that the Department of Homeland Security would defer deportations of minors, enacting a sort of DREAM Act. Now he had something to show for Latino voters. He and his wife Michelle also appeared on Spanish-language television and ran campaign ads in Spanish. This combined with the outright hostile rhetoric of the Republicans garnered him 70% of the Latino vote.
Voter trends are not deterministic, and depend a lot on how parties can adapt to rising demographics. Such reactions can accelerate or reverse even linear trends. So far Latinos have followed the pattern laid by previous ethnic groups, but have reversed course recently due to Republicans doing just about everything they can to lose as many Latino voters as possible. It would seem that 2012 would signal a reverse of this, but besides some encouraging words about outreach efforts, Republicans again have fought to kill an effort to reform immigration. Comments by Iowa Congressman Steve King describing immigrants as dogs have seen heavy rotation on Spanish media. And so Democrats continue to reap the gains of the Hispanic vote. An extended childhood period seems to be the foreseeable future. What is interesting is that this phenomena seems to be effecting all minority groups, even Asians who despite assimilating rapidly vote overwhelmingly for the Democratic Party. What seems to be happening is that the current crop of immigrants have the additional aspect of being racial minorities and are affected by the concentration of White voters into the Republican Party since the 1960´s when White Ethnics pulled the lever for Richard Nixon in ´68. With the first non-White president being a liberal Democrat this exodus has reached completion. But still this isn´t inevitable as Asians like Latinos were slowly leaning more Republican before the Nativists emerged post 1990´s. The future will be either a return to a linear progression or a sharp reversal, the first over decades and the latter in maybe a few years.
(Written for Latino politics class)
Saturday, August 3, 2013
How Semantics Wins in Politics
Prior to the Republican sweep of Congress in 1994, Newt Gingrich distributed a memo, from the political action committee GOPAC called Language: A Key Mechanism of Control, that helped extend his party´s rule of congress for 12 years, 1995-2007. It wasn't based on the traditional gaining more voters from non-Republican constituencies, but actually polarizing politics on purpose to rally the GOP base and win more votes by demonizing their opponents. It was negative campaigning to the extreme. However it wasn't based on passing techniques like radio or newspaper, but more abstract; language itself. What Gingrich wanted was to change the way Americans thought about the two major parties and politics in general. The strategy was to use the pulpit of mass media, any kind, to attach positive words to oneself and negative words to your opponent. This has always been done, but the kicker was not just to attack the person but the organization they represented. In previous elections, Republicans and Democrats would still have a basic respect for each other´s party because they knew they would have to work with them to pass legislation. So attacking a whole party, which was made of millions of voters you wanted to peel off in the future, was seen as foolhardy.
But Gingrich had a new plan, Congress should be transformed into what the parliaments of Europe where political parties are united by ideology and work to stop any bills they do not favor regardless if they are popular. Many Parliaments have what is called proportional representation, where no matter how small a percentage a party gets it will still win seats (usually a percentage same as their vote total, 5% vote means 5% of the seats). This proliferates multitudes of radical, fringe parties who can simply refuse to join coalitions and prevent working governments from being formed. Further, this creates a system where no party can be large enough to pass anything unless it wins a clear 51% majority, meaning that the goal becomes not to forge compromise but try to destroy the opposition parties and ram through legislation on close party-line votes. That is why Margaret Thatcher could push though far more right-wing bills in Britain than Ronald Reagan in the United States, despite Britain being significantly more left-wing. So, if the more conservative United States adopted such a model, the liberal victories of the 30s and the 60s could finally be rolled back.
Gingrich did not begin the fight to create a fringe party system the way they were set up in Europe. The European Parliaments are that way because of the written law, by their Constitutions or subsequent legislation. Gingrich in contrast did not intend to use any formal routes. One reason is that for most of his tenure in Congress he couldn´t. From his start in Congress in 1979 to his ascension as House Speaker in 1995, his party was in the minority to the Democrats. And the Republican leadership, chiefly Bob Michel who was House Minority Leader 1981-1995, did not share his views of polarization. Even when he did become leader of the House Republicans, it was only for four years from 1995-1999 meaning he had to make a strategy which would outlive him and create a body of viable successors.What Gingrich had to do was an internal, de-facto coup. This had to be done he thought with the power of language which connects with ordinary Americans much better than pragmatic, ¨establishment¨ compromise.
In the memo, which is of course simplistic, the key is to "speak like Newt.¨ There´s good reason as to why he is the only former Speaker to continue being a relevant figure in American politics, over a decade after he was disgracefully ousted from the failed impeachment of Bill Clinton. All his style consists of is using emotionally charged words, positive for his side and negative for the other, to speak to the powerful irrational side of human nature. Phrases like honest, strong, liberty, freedom, abusive, cheater, weak, and bureaucracy are common words ingrained into our minds with meanings reinforced by our education with very specific unambiguous meanings. In the political sense, this is used to make unpopular or immoral ideas popular. Popular and good ideas do not need to be attached to these words to be what they are, which is their weakness. Aid to the poor, peace in the Middle East, and human rights are commonly held as socially desirable. Tax cuts for the wealthy, bank de-regulation, pre-emptive war, and austerity do need to be augmented because they are unpopular. Language defends the "indefensible" by using a Trojan horse, sneaking in policies with an appearance of being beneficial for all. For example, Ronald Reagan sold tax cuts to the wealthy which is not popular as ¨across the board tax cuts¨, going not just to the wealthy but to the poor. I am not making this up, Reagan´s own budget director David Stockman used the phrase Trojan horse in an interview with The Atlantic to describe how the Reagan administration sold supply side economics to the public.
The concept of the politicization of language was popularized by the well known novelist George Orwell. In 1946, before his magnum opus 1984, he published Politics and the English Language. Orwell argued that Totalitarian regimes justified their oppression by debasing language into simple emotional phrases that are either totally positive or totally negative. Ideas can be condescending into unambiguous phrases and ideally into single words which will invert the natural human suspicion of power into total submission, convincing people that freedom is slavery and ignorance is strength. He described it thus:
¨In our time, political speech and writing are largely the defence of the indefensible. Things like the continuance of British rule in India, the Russian purges and deportations, the dropping of the atom bombs on Japan, can indeed be defended, but only by arguments which are too brutal for most people to face, and which do not square with the professed aims of political parties. Thus political language has to consist largely of euphemism, question-begging and sheer cloudy vagueness. Defenceless villages are bombarded from the air, the inhabitants driven out into the countryside, the cattle machine-gunned, the huts set on fire with incendiary bullets: this is called pacification. Millions of peasants are robbed of their farms and sent trudging along the roads with no more than they can carry: this is called transfer of population or rectification of frontiers. People are imprisoned for years without trial, or shot in the back of the neck or sent to die of scurvy in Arctic lumber camps: this is called elimination of unreliable elements. Such phraseology is needed if one wants to name things without calling up mental pictures of them.¨
Readers of 1984 will notice how the English language in the novel´s dystopian future is further simplified to the combination of larger words into smaller phrases. Instead of English Socialism, it is ingsoc.
Orwell´s conclusion on the politicization of language was thoroughly negative, it should never be tried because it aids tyrants. But Newt Gingrich would discover Orwell´s writings and re-interpret it to be positive in the direction of human liberty. He came upon this by way of Frank Luntz, a pollster for Patrick Buchanan and Ross Perot in the 1992 presidential election. Luntz became Newt Gingrich´s pollster for the Contract of America. Gingrich discovered Luntz at a Republican retreat:
¨The concept of it was hatched in Salisbury, MD, at a Republican retreat. I was fortunate enough to have been invited to do a presentation about how the American people didn't trust politicians in general and, quite frankly, didn't trust Republicans in particular. And Newt Gingrich was there, and he listened to the presentation, and he said: "We have to do it differently in this election. We have to find a way to communicate that takes all of these policies that we believe in, that the Democrats don't, and articulates that difference. How can we do it?" I presented at that presentation a proclamation. I got the idea from a Massachusetts campaign I was involved with. Gingrich saw that, and he came up with the phrase "contract."
I didn't create the "Contract with America;" I was the pollster for it.¨
Luntz was hired by the Republican National Committee and during that time helped Gingrich produce the GOPAC memo Language: A Key Mechanism of Control. One fact is important to establish, Luntz and Gingrich did not start the semantic game in the Republican Party. The groundwork was laid by Richard Nixon and his Vice President Spiro Agnew who built a winning campaign in 1968 by claiming Conservatives stood for the ¨silent majority¨ and against the ¨liberal elites¨ in the media and universities. Ronald Reagan, using his acting experience, made the harsh Barry Goldwater attack on government into art by actually using quotations from Democrats Franklin Roosevelt and John Kennedy like ¨we have a rendezvous with destiny¨. Institutionally it was Lee Atwater, strategist for Reagan and Bush´s campaigns in the 80s and future RNC chairman, who figured out how to translate the ugly, racist appeal to southern states founded on attacking civil rights legislation socially acceptable. It is done by using abstract positive language:
¨You start out in 1954 by saying, “Nigger, nigger, nigger.” By 1968 you can’t say “nigger”—that hurts you, backfires. So you say stuff like, uh, forced busing, states’ rights, and all that stuff, and you’re getting so abstract. Now, you’re talking about cutting taxes, and all these things you’re talking about are totally economic things and a byproduct of them is, blacks get hurt worse than whites.… “We want to cut this,” is much more abstract than even the busing thing, uh, and a hell of a lot more abstract than “Nigger, nigger.¨
The lesson for contemporary politics is that the right-wing wins not merely on policy, but on semantics. This is how even though a majority of Americans favor expanding background checks for gun purchases and raising taxes on the wealthy the Republicans can oppose them unilaterally and get elected. And further, lose and still be respected. When Mitt Romney lost the 2012 to Barack Obama convincingly, exit polls still showed a majority of voters still felt that Mitt Romney was closer to them ideologically than Obama. If this was not so Obama probably would have got more of the vote easily. Obama then only won by appealing to the self interest of at least some of voters who choose to vote against their personal beliefs.
Luntz and Gingrich´s strategy has been so successful that a plurality of Americans consider themselves Conservative even as they report favoring Liberal positions on important issues. Polling firm Gallup claims that about 40% of voters consider themselves Conservative, 35% moderate, and 20% Liberal. Gallup has measured this since 1992 when moderates were the majority with 43%. They remained the majority until about 2009 when Obama became president, but were declining slowly since 1992 around when Gingrich´s Republicans emerged.
Liberals and Democrats have fought these tactics by essentially playing into them. Instead of combating Conservative ideology head on, they have tried to convince voters that it is their policies that are truly Conservative. Bill Clinton proclaimed the era of big government over in 1996 and proceeded to sign center-right policies on welfare, taxes, trade, and regulation for fear of doing anything that would imply he is on the wrong side of the right. Today Democrats sold healthcare reform as being the true Conservative plan, stressing its past support from Bob Dole and the Heritage Foundation. The same goes for Cap and Trade which is argued for by saying it is a market-based model inspired by George H.W. Bush´s handling of acid rain. The hope is to act Conservative enough to provide cover to pass truly Liberal reforms. But this has failed with the above and even more examples because the opposition knows the game and instead moves further to the right (which is automatically defined as good, the more the better) and votes against it. Republicans gave no votes to ¨Obamacare¨ and filibustered Cap and Trade in the Senate. The same goes even for legislation that gets passed. Democrats loaded up the 2009 stimulus with tax cuts, included no tax increases whatsoever, and less spending than many Liberal economists believed was necessary to fill the immense gap of consumer spending. But with all these giveaways, the overwhelming majority of Republicans voted against it. Even though it became law because Democrats had Congress in 2009, their fear of being too Liberal made them water down the bill to get votes that the strategy promises should never be given.
The only way out of this bait and switch is to change the semantic game. Trying to play it the way the Republicans do will fail because they have been successful in demonizing Liberal groups and causes.
But Gingrich had a new plan, Congress should be transformed into what the parliaments of Europe where political parties are united by ideology and work to stop any bills they do not favor regardless if they are popular. Many Parliaments have what is called proportional representation, where no matter how small a percentage a party gets it will still win seats (usually a percentage same as their vote total, 5% vote means 5% of the seats). This proliferates multitudes of radical, fringe parties who can simply refuse to join coalitions and prevent working governments from being formed. Further, this creates a system where no party can be large enough to pass anything unless it wins a clear 51% majority, meaning that the goal becomes not to forge compromise but try to destroy the opposition parties and ram through legislation on close party-line votes. That is why Margaret Thatcher could push though far more right-wing bills in Britain than Ronald Reagan in the United States, despite Britain being significantly more left-wing. So, if the more conservative United States adopted such a model, the liberal victories of the 30s and the 60s could finally be rolled back.
Gingrich did not begin the fight to create a fringe party system the way they were set up in Europe. The European Parliaments are that way because of the written law, by their Constitutions or subsequent legislation. Gingrich in contrast did not intend to use any formal routes. One reason is that for most of his tenure in Congress he couldn´t. From his start in Congress in 1979 to his ascension as House Speaker in 1995, his party was in the minority to the Democrats. And the Republican leadership, chiefly Bob Michel who was House Minority Leader 1981-1995, did not share his views of polarization. Even when he did become leader of the House Republicans, it was only for four years from 1995-1999 meaning he had to make a strategy which would outlive him and create a body of viable successors.What Gingrich had to do was an internal, de-facto coup. This had to be done he thought with the power of language which connects with ordinary Americans much better than pragmatic, ¨establishment¨ compromise.
In the memo, which is of course simplistic, the key is to "speak like Newt.¨ There´s good reason as to why he is the only former Speaker to continue being a relevant figure in American politics, over a decade after he was disgracefully ousted from the failed impeachment of Bill Clinton. All his style consists of is using emotionally charged words, positive for his side and negative for the other, to speak to the powerful irrational side of human nature. Phrases like honest, strong, liberty, freedom, abusive, cheater, weak, and bureaucracy are common words ingrained into our minds with meanings reinforced by our education with very specific unambiguous meanings. In the political sense, this is used to make unpopular or immoral ideas popular. Popular and good ideas do not need to be attached to these words to be what they are, which is their weakness. Aid to the poor, peace in the Middle East, and human rights are commonly held as socially desirable. Tax cuts for the wealthy, bank de-regulation, pre-emptive war, and austerity do need to be augmented because they are unpopular. Language defends the "indefensible" by using a Trojan horse, sneaking in policies with an appearance of being beneficial for all. For example, Ronald Reagan sold tax cuts to the wealthy which is not popular as ¨across the board tax cuts¨, going not just to the wealthy but to the poor. I am not making this up, Reagan´s own budget director David Stockman used the phrase Trojan horse in an interview with The Atlantic to describe how the Reagan administration sold supply side economics to the public.
The concept of the politicization of language was popularized by the well known novelist George Orwell. In 1946, before his magnum opus 1984, he published Politics and the English Language. Orwell argued that Totalitarian regimes justified their oppression by debasing language into simple emotional phrases that are either totally positive or totally negative. Ideas can be condescending into unambiguous phrases and ideally into single words which will invert the natural human suspicion of power into total submission, convincing people that freedom is slavery and ignorance is strength. He described it thus:
¨In our time, political speech and writing are largely the defence of the indefensible. Things like the continuance of British rule in India, the Russian purges and deportations, the dropping of the atom bombs on Japan, can indeed be defended, but only by arguments which are too brutal for most people to face, and which do not square with the professed aims of political parties. Thus political language has to consist largely of euphemism, question-begging and sheer cloudy vagueness. Defenceless villages are bombarded from the air, the inhabitants driven out into the countryside, the cattle machine-gunned, the huts set on fire with incendiary bullets: this is called pacification. Millions of peasants are robbed of their farms and sent trudging along the roads with no more than they can carry: this is called transfer of population or rectification of frontiers. People are imprisoned for years without trial, or shot in the back of the neck or sent to die of scurvy in Arctic lumber camps: this is called elimination of unreliable elements. Such phraseology is needed if one wants to name things without calling up mental pictures of them.¨
Readers of 1984 will notice how the English language in the novel´s dystopian future is further simplified to the combination of larger words into smaller phrases. Instead of English Socialism, it is ingsoc.
Orwell´s conclusion on the politicization of language was thoroughly negative, it should never be tried because it aids tyrants. But Newt Gingrich would discover Orwell´s writings and re-interpret it to be positive in the direction of human liberty. He came upon this by way of Frank Luntz, a pollster for Patrick Buchanan and Ross Perot in the 1992 presidential election. Luntz became Newt Gingrich´s pollster for the Contract of America. Gingrich discovered Luntz at a Republican retreat:
¨The concept of it was hatched in Salisbury, MD, at a Republican retreat. I was fortunate enough to have been invited to do a presentation about how the American people didn't trust politicians in general and, quite frankly, didn't trust Republicans in particular. And Newt Gingrich was there, and he listened to the presentation, and he said: "We have to do it differently in this election. We have to find a way to communicate that takes all of these policies that we believe in, that the Democrats don't, and articulates that difference. How can we do it?" I presented at that presentation a proclamation. I got the idea from a Massachusetts campaign I was involved with. Gingrich saw that, and he came up with the phrase "contract."
I didn't create the "Contract with America;" I was the pollster for it.¨
Luntz was hired by the Republican National Committee and during that time helped Gingrich produce the GOPAC memo Language: A Key Mechanism of Control. One fact is important to establish, Luntz and Gingrich did not start the semantic game in the Republican Party. The groundwork was laid by Richard Nixon and his Vice President Spiro Agnew who built a winning campaign in 1968 by claiming Conservatives stood for the ¨silent majority¨ and against the ¨liberal elites¨ in the media and universities. Ronald Reagan, using his acting experience, made the harsh Barry Goldwater attack on government into art by actually using quotations from Democrats Franklin Roosevelt and John Kennedy like ¨we have a rendezvous with destiny¨. Institutionally it was Lee Atwater, strategist for Reagan and Bush´s campaigns in the 80s and future RNC chairman, who figured out how to translate the ugly, racist appeal to southern states founded on attacking civil rights legislation socially acceptable. It is done by using abstract positive language:
¨You start out in 1954 by saying, “Nigger, nigger, nigger.” By 1968 you can’t say “nigger”—that hurts you, backfires. So you say stuff like, uh, forced busing, states’ rights, and all that stuff, and you’re getting so abstract. Now, you’re talking about cutting taxes, and all these things you’re talking about are totally economic things and a byproduct of them is, blacks get hurt worse than whites.… “We want to cut this,” is much more abstract than even the busing thing, uh, and a hell of a lot more abstract than “Nigger, nigger.¨
The lesson for contemporary politics is that the right-wing wins not merely on policy, but on semantics. This is how even though a majority of Americans favor expanding background checks for gun purchases and raising taxes on the wealthy the Republicans can oppose them unilaterally and get elected. And further, lose and still be respected. When Mitt Romney lost the 2012 to Barack Obama convincingly, exit polls still showed a majority of voters still felt that Mitt Romney was closer to them ideologically than Obama. If this was not so Obama probably would have got more of the vote easily. Obama then only won by appealing to the self interest of at least some of voters who choose to vote against their personal beliefs.
Luntz and Gingrich´s strategy has been so successful that a plurality of Americans consider themselves Conservative even as they report favoring Liberal positions on important issues. Polling firm Gallup claims that about 40% of voters consider themselves Conservative, 35% moderate, and 20% Liberal. Gallup has measured this since 1992 when moderates were the majority with 43%. They remained the majority until about 2009 when Obama became president, but were declining slowly since 1992 around when Gingrich´s Republicans emerged.
Liberals and Democrats have fought these tactics by essentially playing into them. Instead of combating Conservative ideology head on, they have tried to convince voters that it is their policies that are truly Conservative. Bill Clinton proclaimed the era of big government over in 1996 and proceeded to sign center-right policies on welfare, taxes, trade, and regulation for fear of doing anything that would imply he is on the wrong side of the right. Today Democrats sold healthcare reform as being the true Conservative plan, stressing its past support from Bob Dole and the Heritage Foundation. The same goes for Cap and Trade which is argued for by saying it is a market-based model inspired by George H.W. Bush´s handling of acid rain. The hope is to act Conservative enough to provide cover to pass truly Liberal reforms. But this has failed with the above and even more examples because the opposition knows the game and instead moves further to the right (which is automatically defined as good, the more the better) and votes against it. Republicans gave no votes to ¨Obamacare¨ and filibustered Cap and Trade in the Senate. The same goes even for legislation that gets passed. Democrats loaded up the 2009 stimulus with tax cuts, included no tax increases whatsoever, and less spending than many Liberal economists believed was necessary to fill the immense gap of consumer spending. But with all these giveaways, the overwhelming majority of Republicans voted against it. Even though it became law because Democrats had Congress in 2009, their fear of being too Liberal made them water down the bill to get votes that the strategy promises should never be given.
The only way out of this bait and switch is to change the semantic game. Trying to play it the way the Republicans do will fail because they have been successful in demonizing Liberal groups and causes.
Wednesday, July 10, 2013
The Right to Privacy is Not a Thing of the Past
America has a deep tradition of distrust toward the federal government, and a sometimes fundamentalist worship of its founding fathers. These two cultural strands combine to form a common narrative, that we are moving from an idyllic time when America was a truly free nation and are heading toward an era where the government and/or corporations are examining everything we are doing and using that knowledge to shut down dissenting political views, almost always the views of those repeating this narrative. The growth of the domestic surveillance state after 9/11 under both Presidents Bush and Obama has fed what sociologist Richard Hofstadter called the Paranoid Style in American Politics. Elements of left-wing populism, civil libertarianism and nativism have merged into a movement which not only dislikes government but sees an active conspiracy to strip away constitutional freedoms in the name of political power.
Ignoring the question of whether we are currently or will be living under a police state, the whole argument assumes precisely that we are moving away from a past that had strong protections on personal civil liberties. The right to privacy is presupposed to have always been a foundational legal protection, underwriting the spirit of the Bill of Rights. It is also thought to be above partisan politics, with both the anti-government right and the anti-authoritarian left disagreeing only to its extent. The right to privacy also faces its only opposition from the ¨elites¨, as civil libertarians take a page from populist movements which monolithically put the ¨elite¨ into the evil category and the ¨people¨ into the good category.
This view is ahistorical. The right to privacy in terms of court interpretation of the fourth amendment is relatively recent. That says nothing about whether it is a fundamental right, but like most of today´s civil rights protections American society took a while to apply them in a substantive way. Incidentally the right to privacy was firmly established by the Supreme Court at about the same time of the civil rights movement in the 1960´s. To claim that today´s challenges to the fourth amendment are unprecedented is simply not true. The right to privacy took a long time to develop, and has always been denied in some way, right or wrong. What makes today´s surveillance different from that of the past is how much the federal government has gotten involved and on such a large scale. Before the twentieth century, technological limitations prevented widespread government intrusion and the small size of government prevented an ability to exercise that power. The same goes with corporations, which started the violations of privacy not seen when the Bill of Rights was being ratified.
To begin, neither the Bill of Rights nor the Constitution contain the phrase right to privacy or even the word privacy. From a strict textual point of view, there is no general right to privacy. The case for privacy rights then lies not in the direct language of the Constitution, but in the underlying purpose of four amendments, the third, the fourth,the fifth and the ninth. The third and the fourth deal with a specific limitation on government intrusion into the home, the fifth on how it is done, and the ninth species the nature of whether rights no written in the Constitution exist. Together these four reveal that without a general right to privacy none of the stipulations would have any teeth or grounding in any legal principle.
The Third Amendment reads ¨No soldier, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.¨ Quartering occurs when a soldier takes residence in a civilian´s home without their permission, a practice very relevant to the Founders. British troops began quartering after the French and Indian War in Canada where soldiers needed housing to stay in America. The colonial governments were uncooperative, so Parliament passed the Quartering Act of 1765 which gave British troops authority to take over colonists homes and make them provide food and lodging free of charge. Colonial legislatures were still uncooperative, so Parliament passed another quartering act in 1774 in response to the Boston Tea Party of 1773, where colonists dumped British tea into the harbor in protest of colonial trade policy. This act gave enforcement power to Governors loyal to Britain. After the Revolutionary War, Americans generally agreed they did not want a military with unlimited powers and sought to circumscribe its role. This was especially important since the Constitution repacing the previous government under the Articles of Confederation gave congress the power to raise a standing army, an ability the previous government lacked. As part of the original Bill of Rights, the anti-quartering third amendment was ratified. Clearly underlying its language is the concept that during times of peace citizens should be free of government intrusion into their homes.
A much broader protection of the right to be king of ones castle is the Fourth Amendment, ¨the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.¨ This extends the privacy of the home to be protected from all government agents and further puts the burden of proof on the government. The intrusion that occurred from unlimited searches and seizures was more common and deeper than that of quartering soldiers. Although home privacy and the requirement of a search warrant was established in Britain since at least the time of Sir Edward Coke and the famous Seymane´s Case of 1604, the protections did not apply to the colonies. The main government officials searching homes were tax collectors, never popular in any civilization. They obtained general warrants and could search just about any home they wanted to seize prohibited and uncustomed goods. The warrants were known as Writs of Assistance which were made to enforce laws and not tailor made to go after individual violators. These general warrants were the more egregious because they did not expire. Colonists were guilty until proven innocent. The powers were given under the Excise Act of 1754 which also gave tax collectors ability to conduct interrogations. The Massachusetts legislature acted in 1756 and forbade general warrants. This was the first act in America that curtailed seizure efforts. Things became complicated when in 1760 King George II died. With the death of a king, all warrants expire six months after his death unless renewed by his successor, George III. The next year in 1761, over 50 merchants in Massachusetts petitioned for a hearing on the warrants. Lawyer James Otis represented their interests for a five hour hearing where he denounced the general warrants in favor of limitations. The court did not rule in his favor. Dismayed, Otis was elected the the Massachusetts legislature and helped pass a law limiting the power of warrant issue. It was overturned by the governor, due to its defiance of parliament.
The protection against general warrants did become codified in the 1776 Virginia Declaration of Rights, which provided inspiration for the Declaration of Independence and the Constitution.
¨That general warrants, whereby any officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive and ought not to be granted.¨
The 1780 Massachusetts Declaration of Rights, of the same state that fought against unreasonable search and seizure, put the closest thing to a right to privacy before the fourth amendment.
¨Every subject has a right to be secure from all unreasonable searches, and seizures of his person, his houses, his papers, and all his possessions.¨
Here, it is the person and their property regardless of suspicion who is protected. Notice the broad language of every subject and all unreasonable searches.
The fourth amendment became part of the constitution as part of the broader compromise of the Bill of Rights. Several states withheld ratification because of their fear that the new government would not be respectful of individual rights. Supporters of the constitution sans the Bill of Rights like James Madison eventually changed their minds and agreed specific protections were needed. On June 8, 1789, James Madison proposed to the First Congress twenty amendments to be added to the Constitution. One of these amendments eventually became the 4th Amendment. Congress approved twelve of the original amendments first suggested by Madison and ten of those were eventually ratified by the states. The First Ten Amendments, also known as the Bill of Rights, became law on December 15, 1791.
In terms of privacy, the relevant passage of the Fifth Amendment is the most well known, ¨no person... shall be deprived of life, liberty, or property without due process of law.¨ The relevant history in its defense of a general right against government intrusion occurs in the early 20th century in Lochner vs. New York. The court struck down a New York statute which limited working hours, because it was seen as a violation of the protection of life, liberty, and property and not justified by due process. This was an early instance of carving out a general principle not listed in the constitution. The principle would become known as Substantive Due Process, the idea that certain government actions are outside of its authority to regulate and cannot be justified by even a fair legal process. A sphere of individual liberty has to be assumed when crafting laws. Although the court threw out this ruling later as being decided in the interest of businesses fighting regulation, it went on to define other rights which could not be violated
One of the amendments not as well known, but important to interpreting a right of privacy from the Fourth Amendment is the ninth. The Ninth Amendment to the constitution reads ¨the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.¨ This was a concern, ironically, of the Federalists who did not favor a Bill of Rights. Their argument, summed up by Alexander Hamilton in the Federalist Paper 84 was "why declare that things shall not be done which there is no power to do?" Their concern was that listing rights would imply to future lawmakers that if other rights were not directly listed they did not exist and could be denied. The solution even more ironic was to ad an amendment listing the Federalists objection to the concept of enumerated rights. The Virginia state convention drafted the original language in their amendment proposal reading ¨that those clauses which declare that Congress shall not exercise certain powers be not interpreted in any manner whatsoever to extend the powers of Congress. It was ratified likewise with the other amendments.
Although the term right to privacy or the word privacy itself are not in the constitution, the ninth amendment makes it clear that just because it is not listed does not mean that it does not exist. The amendments are limitations on government, and not grants of power implying other rights may be denied. The underlying philosophy is that under the terms which a free government is formed in the social compact, which is to protect liberty, limitation of freedom must be justified. Without government, we are in a state of natural liberty. That state of absolute liberty is unworkable due to human frailty, so we create government to limit freedoms so society can function. But this agreement is only made out of necessity. Remember Thomas Paine´s dictum that government is a necessary evil. After overthrowing British colonial rule and having the chance to govern ourselves, we did not intend to create a government ignorant of liberty. The assumption that the individual out to be left alone unless there is good reason, and not the other way around. The burden of proof is on the government, the reversal of the principle of general warrants. Helpful in understanding this is the fifth amendment which prohibits the taking of life, liberty, or property without due process. Without good reason, there is a basic right to be left alone as part of being a party to the social contract that is the constitution. The legal principle of Substantive Due Process says that certain government actions are not allowed even if they have some practical reason because part of due process is considering the rights which will be denied. If there are not sufficient safeguards, it is not following the spirit of the law.
Privacy rights germinated in legal scholarship long before they became legal precedent. Writing in the Harvard Law Review in 1890, law partners Samuel Warren and future Supreme Court justice Louis Brandeis published “The Right to Privacy,” one of the most influential law articles ever written and the first well read defense of a general right to privacy.
The impetus for the article was the prominence of Sam Warren´s family in Boston which made them a target of the late nineteenth century version of paparazzi, who exploited what the article called “instantaneous photographs.” The recent development of photography allowed individuals to keep a visual record of the inside of a persons home and display it to people who did not disturb anyone´s privacy but still could invade it by buying a newspaper. Beginning with “the individual shall have full protection in person and in property is a principle as old as the common law…,” Warren and Brandeis build a case for extending the means to seek recourse for privacy infringement, no matter what the means.
The authors definitely had legal standing to justify arguing for individual privacy. It is not arbitrary that they wrote ¨if you may not reproduce a woman’s face photographically without her consent, how much less should be tolerated the reproduction of her face, her form and her actions, by graphic descriptions colored to suit a gross and depraved imagination.” Warren’s daughter had recently been married, and tabloid reporters had disrupted the otherwise happy occasion.
The article concludes with a provocative question that foreshadows Brandeis’s future role in constitutional issues of privacy making reference to English Common Law and its protection of privacy in ones home.
¨The common law has always recognized a man’s house as his castle, impregnable, often, even to its own officers engaged in the execution of its commands. Shall the courts thus close the front entrance to the constituted authority, and open wide the back door to idle or prurient curiosity?¨
Louis Brandeis became associate justice of the Supreme Court in 1916 due to patronage from president Woodrow Wilson, who he was a close advisor to. He would remain until 1939, in the meantime unsuccessfully fighting for his ¨right to be let alone¨ to become jurisprudence. Although he would not live to see the fruits of his labor, he laid the intellectual groundwork for future courts to establish what is now as American as baseball.
The era of alcohol prohibition brought privacy issues to the Supreme Court in a case concerning wiretapping, Olmstead v. United States (1928). Roy Olmstead was convicted of bootlegging, using evidence obtained from a wiretap on his personal phone line. This case returned Brandeis to the privacy cause. The Court narrowly interpreted the Fourth Amendment as applying to only searches and seizures involving tangible objects. But in dissent and drawing from his and Warrens article, Justice Brandeis contended that the Constitution conferred upon each individual a general right of privacy, and foreshadowed the modern constitutional right to privacy. Brandeis recognized that more subtle and more far-reaching means of invading privacy have become available to Governments. Discovery and invention of skeletons in the closet have made it possible for the Government, by means far more effective than physical coercion, to obtain disclosure in court of whatever is whispered in the closet.
The constitutional right of privacy as we know it today was not part of the law of the land until 1965, when the Court ruled in Griswold v. Connecticut. As far back as the late nineteenth century the Court categorized certain unlisted rights as fundamental and immunized them from governmental encroachment. Surprisingly, one of these rights is the subject another historical misconception, which is that the presumption of innocence and the standard of proof beyond a reasonable doubt are foundational principles in the American judicial system; not so. Actually the case that established those rights was not decided until 1895, over a century after the Bill of Rights.
In his very brief majority opinion in Griswold of only a few hundred words, Justice Douglas wrote that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy.” Douglas cites the First, Third, Fourth and Fifth Amendments, and finally the all-encompassing Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
The closing paragraph of Douglas makes reference to rights which precede governments by way of our consent to the social contact by using the metaphor of marriage.
¨We deal with a right of privacy older than the Bill of Rights – older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet is an association for as noble a purpose as any involved in our prior decisions.¨
Griswold was cited in the Court’s future opinion in Roe v. Wade, and considering the controversy that still surrounds that 1973 case, it’s safe to say that privacy issues will be a frequent cause of disagreement for as long as anyone can foresee. Atlanta civil rights attorney Chris Balch pointed out in an email that “Griswold and Roe both arise from the 14th Amendment’s due process clause and are founded in substantive due process analysis created for certain rights deemed by the Court as fundamental to any notion of freedom.” Balch helpfully offers a concise summary of that intimidating phrase, “substantive due process.”
¨It defines the Court's understanding of what is involved in life, liberty and property which may not be infringed without due process of law. Life is not just the mere act of existing, eating, breathing, and walking around. Life involves our human relationships as well. Thus, the substance of life is the right to be free from interference by the Government or the State without due process. It is also a concept that the Constitution limits the substance of what the legislature may direct, not just the process by which it directs such edicts.¨
A few years later in 1967´s Katz v. United States, the court took Brandeis´s side and officially overruled Olmstead and made his dissent the law by arguing that individuals have a ¨reasonable expectation of privacy.¨
Privacy as a constitutional right was a late arrival, first adopted by the Supreme Court almost two centuries after the Bill of Rights. Its long history should put to rest the common belief that it has always been clear that we even have a right to privacy. Today´s post-Patriot Act and FISA courts world may seem as a blatant rejection of the fourth amendment, but that is only when taking a modern view. In reality the pendulum is swaying back to more limitations, but even the most staunch defenders of current surveillance use the language of privacy rights when making public arguments. This swing is mostly due to the rise of Strict Constructionism, a conservative legal interpretation which claims the only rights protected are those actually written. The job of a judge they argue is not to reinterpret the past laws in light of societal change, but to allow elected representatives to change them unless they do something directly prescribed against. Civil liberties like the right to privacy are islands in an ocean of government authority when it comes to judges. This view has become widespread because American voters elected Republican presidents a majority of the time from 1968 to 2008, and the president nominates and appoints judges. A majority of the Supreme Court has been Republican appointed since the 1970´s and has opted to limit privacy rights on issues like abortion. FISA courts which hear privacy cases and approve warrants for government surveillance are appointed by the president alone are majority Republican. The challenge to privacy is in a way democratic and most certainly deliberate by opponents of Griswold and Roe.*
If you want more robust safeguards for privacy, vote for civil libertarians.
2/4/2017: I agree with this view. Glad I articulated it so well over 2 years ago.
Ignoring the question of whether we are currently or will be living under a police state, the whole argument assumes precisely that we are moving away from a past that had strong protections on personal civil liberties. The right to privacy is presupposed to have always been a foundational legal protection, underwriting the spirit of the Bill of Rights. It is also thought to be above partisan politics, with both the anti-government right and the anti-authoritarian left disagreeing only to its extent. The right to privacy also faces its only opposition from the ¨elites¨, as civil libertarians take a page from populist movements which monolithically put the ¨elite¨ into the evil category and the ¨people¨ into the good category.
This view is ahistorical. The right to privacy in terms of court interpretation of the fourth amendment is relatively recent. That says nothing about whether it is a fundamental right, but like most of today´s civil rights protections American society took a while to apply them in a substantive way. Incidentally the right to privacy was firmly established by the Supreme Court at about the same time of the civil rights movement in the 1960´s. To claim that today´s challenges to the fourth amendment are unprecedented is simply not true. The right to privacy took a long time to develop, and has always been denied in some way, right or wrong. What makes today´s surveillance different from that of the past is how much the federal government has gotten involved and on such a large scale. Before the twentieth century, technological limitations prevented widespread government intrusion and the small size of government prevented an ability to exercise that power. The same goes with corporations, which started the violations of privacy not seen when the Bill of Rights was being ratified.
To begin, neither the Bill of Rights nor the Constitution contain the phrase right to privacy or even the word privacy. From a strict textual point of view, there is no general right to privacy. The case for privacy rights then lies not in the direct language of the Constitution, but in the underlying purpose of four amendments, the third, the fourth,the fifth and the ninth. The third and the fourth deal with a specific limitation on government intrusion into the home, the fifth on how it is done, and the ninth species the nature of whether rights no written in the Constitution exist. Together these four reveal that without a general right to privacy none of the stipulations would have any teeth or grounding in any legal principle.
The Third Amendment reads ¨No soldier, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.¨ Quartering occurs when a soldier takes residence in a civilian´s home without their permission, a practice very relevant to the Founders. British troops began quartering after the French and Indian War in Canada where soldiers needed housing to stay in America. The colonial governments were uncooperative, so Parliament passed the Quartering Act of 1765 which gave British troops authority to take over colonists homes and make them provide food and lodging free of charge. Colonial legislatures were still uncooperative, so Parliament passed another quartering act in 1774 in response to the Boston Tea Party of 1773, where colonists dumped British tea into the harbor in protest of colonial trade policy. This act gave enforcement power to Governors loyal to Britain. After the Revolutionary War, Americans generally agreed they did not want a military with unlimited powers and sought to circumscribe its role. This was especially important since the Constitution repacing the previous government under the Articles of Confederation gave congress the power to raise a standing army, an ability the previous government lacked. As part of the original Bill of Rights, the anti-quartering third amendment was ratified. Clearly underlying its language is the concept that during times of peace citizens should be free of government intrusion into their homes.
A much broader protection of the right to be king of ones castle is the Fourth Amendment, ¨the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.¨ This extends the privacy of the home to be protected from all government agents and further puts the burden of proof on the government. The intrusion that occurred from unlimited searches and seizures was more common and deeper than that of quartering soldiers. Although home privacy and the requirement of a search warrant was established in Britain since at least the time of Sir Edward Coke and the famous Seymane´s Case of 1604, the protections did not apply to the colonies. The main government officials searching homes were tax collectors, never popular in any civilization. They obtained general warrants and could search just about any home they wanted to seize prohibited and uncustomed goods. The warrants were known as Writs of Assistance which were made to enforce laws and not tailor made to go after individual violators. These general warrants were the more egregious because they did not expire. Colonists were guilty until proven innocent. The powers were given under the Excise Act of 1754 which also gave tax collectors ability to conduct interrogations. The Massachusetts legislature acted in 1756 and forbade general warrants. This was the first act in America that curtailed seizure efforts. Things became complicated when in 1760 King George II died. With the death of a king, all warrants expire six months after his death unless renewed by his successor, George III. The next year in 1761, over 50 merchants in Massachusetts petitioned for a hearing on the warrants. Lawyer James Otis represented their interests for a five hour hearing where he denounced the general warrants in favor of limitations. The court did not rule in his favor. Dismayed, Otis was elected the the Massachusetts legislature and helped pass a law limiting the power of warrant issue. It was overturned by the governor, due to its defiance of parliament.
The protection against general warrants did become codified in the 1776 Virginia Declaration of Rights, which provided inspiration for the Declaration of Independence and the Constitution.
¨That general warrants, whereby any officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive and ought not to be granted.¨
The 1780 Massachusetts Declaration of Rights, of the same state that fought against unreasonable search and seizure, put the closest thing to a right to privacy before the fourth amendment.
¨Every subject has a right to be secure from all unreasonable searches, and seizures of his person, his houses, his papers, and all his possessions.¨
Here, it is the person and their property regardless of suspicion who is protected. Notice the broad language of every subject and all unreasonable searches.
The fourth amendment became part of the constitution as part of the broader compromise of the Bill of Rights. Several states withheld ratification because of their fear that the new government would not be respectful of individual rights. Supporters of the constitution sans the Bill of Rights like James Madison eventually changed their minds and agreed specific protections were needed. On June 8, 1789, James Madison proposed to the First Congress twenty amendments to be added to the Constitution. One of these amendments eventually became the 4th Amendment. Congress approved twelve of the original amendments first suggested by Madison and ten of those were eventually ratified by the states. The First Ten Amendments, also known as the Bill of Rights, became law on December 15, 1791.
In terms of privacy, the relevant passage of the Fifth Amendment is the most well known, ¨no person... shall be deprived of life, liberty, or property without due process of law.¨ The relevant history in its defense of a general right against government intrusion occurs in the early 20th century in Lochner vs. New York. The court struck down a New York statute which limited working hours, because it was seen as a violation of the protection of life, liberty, and property and not justified by due process. This was an early instance of carving out a general principle not listed in the constitution. The principle would become known as Substantive Due Process, the idea that certain government actions are outside of its authority to regulate and cannot be justified by even a fair legal process. A sphere of individual liberty has to be assumed when crafting laws. Although the court threw out this ruling later as being decided in the interest of businesses fighting regulation, it went on to define other rights which could not be violated
One of the amendments not as well known, but important to interpreting a right of privacy from the Fourth Amendment is the ninth. The Ninth Amendment to the constitution reads ¨the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.¨ This was a concern, ironically, of the Federalists who did not favor a Bill of Rights. Their argument, summed up by Alexander Hamilton in the Federalist Paper 84 was "why declare that things shall not be done which there is no power to do?" Their concern was that listing rights would imply to future lawmakers that if other rights were not directly listed they did not exist and could be denied. The solution even more ironic was to ad an amendment listing the Federalists objection to the concept of enumerated rights. The Virginia state convention drafted the original language in their amendment proposal reading ¨that those clauses which declare that Congress shall not exercise certain powers be not interpreted in any manner whatsoever to extend the powers of Congress. It was ratified likewise with the other amendments.
Although the term right to privacy or the word privacy itself are not in the constitution, the ninth amendment makes it clear that just because it is not listed does not mean that it does not exist. The amendments are limitations on government, and not grants of power implying other rights may be denied. The underlying philosophy is that under the terms which a free government is formed in the social compact, which is to protect liberty, limitation of freedom must be justified. Without government, we are in a state of natural liberty. That state of absolute liberty is unworkable due to human frailty, so we create government to limit freedoms so society can function. But this agreement is only made out of necessity. Remember Thomas Paine´s dictum that government is a necessary evil. After overthrowing British colonial rule and having the chance to govern ourselves, we did not intend to create a government ignorant of liberty. The assumption that the individual out to be left alone unless there is good reason, and not the other way around. The burden of proof is on the government, the reversal of the principle of general warrants. Helpful in understanding this is the fifth amendment which prohibits the taking of life, liberty, or property without due process. Without good reason, there is a basic right to be left alone as part of being a party to the social contract that is the constitution. The legal principle of Substantive Due Process says that certain government actions are not allowed even if they have some practical reason because part of due process is considering the rights which will be denied. If there are not sufficient safeguards, it is not following the spirit of the law.
Privacy rights germinated in legal scholarship long before they became legal precedent. Writing in the Harvard Law Review in 1890, law partners Samuel Warren and future Supreme Court justice Louis Brandeis published “The Right to Privacy,” one of the most influential law articles ever written and the first well read defense of a general right to privacy.
The impetus for the article was the prominence of Sam Warren´s family in Boston which made them a target of the late nineteenth century version of paparazzi, who exploited what the article called “instantaneous photographs.” The recent development of photography allowed individuals to keep a visual record of the inside of a persons home and display it to people who did not disturb anyone´s privacy but still could invade it by buying a newspaper. Beginning with “the individual shall have full protection in person and in property is a principle as old as the common law…,” Warren and Brandeis build a case for extending the means to seek recourse for privacy infringement, no matter what the means.
The authors definitely had legal standing to justify arguing for individual privacy. It is not arbitrary that they wrote ¨if you may not reproduce a woman’s face photographically without her consent, how much less should be tolerated the reproduction of her face, her form and her actions, by graphic descriptions colored to suit a gross and depraved imagination.” Warren’s daughter had recently been married, and tabloid reporters had disrupted the otherwise happy occasion.
The article concludes with a provocative question that foreshadows Brandeis’s future role in constitutional issues of privacy making reference to English Common Law and its protection of privacy in ones home.
¨The common law has always recognized a man’s house as his castle, impregnable, often, even to its own officers engaged in the execution of its commands. Shall the courts thus close the front entrance to the constituted authority, and open wide the back door to idle or prurient curiosity?¨
Louis Brandeis became associate justice of the Supreme Court in 1916 due to patronage from president Woodrow Wilson, who he was a close advisor to. He would remain until 1939, in the meantime unsuccessfully fighting for his ¨right to be let alone¨ to become jurisprudence. Although he would not live to see the fruits of his labor, he laid the intellectual groundwork for future courts to establish what is now as American as baseball.
The era of alcohol prohibition brought privacy issues to the Supreme Court in a case concerning wiretapping, Olmstead v. United States (1928). Roy Olmstead was convicted of bootlegging, using evidence obtained from a wiretap on his personal phone line. This case returned Brandeis to the privacy cause. The Court narrowly interpreted the Fourth Amendment as applying to only searches and seizures involving tangible objects. But in dissent and drawing from his and Warrens article, Justice Brandeis contended that the Constitution conferred upon each individual a general right of privacy, and foreshadowed the modern constitutional right to privacy. Brandeis recognized that more subtle and more far-reaching means of invading privacy have become available to Governments. Discovery and invention of skeletons in the closet have made it possible for the Government, by means far more effective than physical coercion, to obtain disclosure in court of whatever is whispered in the closet.
The constitutional right of privacy as we know it today was not part of the law of the land until 1965, when the Court ruled in Griswold v. Connecticut. As far back as the late nineteenth century the Court categorized certain unlisted rights as fundamental and immunized them from governmental encroachment. Surprisingly, one of these rights is the subject another historical misconception, which is that the presumption of innocence and the standard of proof beyond a reasonable doubt are foundational principles in the American judicial system; not so. Actually the case that established those rights was not decided until 1895, over a century after the Bill of Rights.
In his very brief majority opinion in Griswold of only a few hundred words, Justice Douglas wrote that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy.” Douglas cites the First, Third, Fourth and Fifth Amendments, and finally the all-encompassing Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
The closing paragraph of Douglas makes reference to rights which precede governments by way of our consent to the social contact by using the metaphor of marriage.
¨We deal with a right of privacy older than the Bill of Rights – older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet is an association for as noble a purpose as any involved in our prior decisions.¨
Griswold was cited in the Court’s future opinion in Roe v. Wade, and considering the controversy that still surrounds that 1973 case, it’s safe to say that privacy issues will be a frequent cause of disagreement for as long as anyone can foresee. Atlanta civil rights attorney Chris Balch pointed out in an email that “Griswold and Roe both arise from the 14th Amendment’s due process clause and are founded in substantive due process analysis created for certain rights deemed by the Court as fundamental to any notion of freedom.” Balch helpfully offers a concise summary of that intimidating phrase, “substantive due process.”
¨It defines the Court's understanding of what is involved in life, liberty and property which may not be infringed without due process of law. Life is not just the mere act of existing, eating, breathing, and walking around. Life involves our human relationships as well. Thus, the substance of life is the right to be free from interference by the Government or the State without due process. It is also a concept that the Constitution limits the substance of what the legislature may direct, not just the process by which it directs such edicts.¨
A few years later in 1967´s Katz v. United States, the court took Brandeis´s side and officially overruled Olmstead and made his dissent the law by arguing that individuals have a ¨reasonable expectation of privacy.¨
Privacy as a constitutional right was a late arrival, first adopted by the Supreme Court almost two centuries after the Bill of Rights. Its long history should put to rest the common belief that it has always been clear that we even have a right to privacy. Today´s post-Patriot Act and FISA courts world may seem as a blatant rejection of the fourth amendment, but that is only when taking a modern view. In reality the pendulum is swaying back to more limitations, but even the most staunch defenders of current surveillance use the language of privacy rights when making public arguments. This swing is mostly due to the rise of Strict Constructionism, a conservative legal interpretation which claims the only rights protected are those actually written. The job of a judge they argue is not to reinterpret the past laws in light of societal change, but to allow elected representatives to change them unless they do something directly prescribed against. Civil liberties like the right to privacy are islands in an ocean of government authority when it comes to judges. This view has become widespread because American voters elected Republican presidents a majority of the time from 1968 to 2008, and the president nominates and appoints judges. A majority of the Supreme Court has been Republican appointed since the 1970´s and has opted to limit privacy rights on issues like abortion. FISA courts which hear privacy cases and approve warrants for government surveillance are appointed by the president alone are majority Republican. The challenge to privacy is in a way democratic and most certainly deliberate by opponents of Griswold and Roe.*
If you want more robust safeguards for privacy, vote for civil libertarians.
2/4/2017: I agree with this view. Glad I articulated it so well over 2 years ago.
Thursday, July 4, 2013
What America Really Means
¨There is no American history, only a frontier¨
-Don Draper
This is the first Fourth of July that I really am celebrating for the right reasons. The previous Fourth of July´s were either celebrated in honor of mindless indulgence or for disgust over the state of American society. Hot dogs, fireworks, and the Twilight Zone marathon provided cause enough to mark the day in my mental calendar. As I came of age intellectually, I first saw the day as celebrating the efforts of wealthy white slave owners who didn´t want to pay taxes. It was a day of consumerism and worship of a questionable past. As I became a more conservative, I appreciated the holiday and its origins, but did not enjoy the day as it was then a reminder of how I thought America had left those principles of 1776.
I know the errors of the past and fallibility of our founding generation, but still hold them in high regard. The biggest change is that I have a new faith in the America of today. That is because I know what the promise of America really is. It is not to follow an immutable destiny laid out in the past, bound to a deterministic future. America was not founded on that. Our revolution was based on the idea that we should all have a say about what country we want to live in and be able to make a world that fits our ideals and not the other way around. The promise of America is what lies in the future, as we make that world, together.
We are the nation of experimentation in the most radical idea in human history, of liberty. We brought with us what worked from classical and European civilization. The rule of law, judeo-christian ethics, representative government, large scale commerce, and its languages and family customs. But we threw away what did not work. Religious control of government and its subsequent wars, monarchical government, a landed aristocracy based on birth, and an intolerance of new cultures. On top of that through over two centuries of living together, we extended rights for all races and both genders and recognized the positive role of government in extending equal rights.
America´s history has seen a progression of human liberty. More and more formerly disenfranchised peoples get rights. The American community is one of expansion. By our experimental spirit however, we have avoided the pitfalls of proceeding to fast in the extension of rights. The revolutions in France and Russia had the same spirit we had, but ended with drastically different results. The former took more than a century after the revolution to catch up to us and the latter still falls behind us. The willingness to reform over constant revolt means that everyone can be assured of a peaceful transfer or power. While France has had five republics since 1789, we have had one. There is good reason why we are the oldest free state in the entire world.
Herbert Croly in his book The Promise of American Life contrasted American patriotism with that of Europe. There to be a nationalist meant to revere the past and bemoan present. In America it is to look forward to a better future and work to fix the errors of the past. We are an optimistic people tempered with an understanding of the struggles that put us where we are. The motto of the LGBT movement fits us well.
¨It gets better.¨
Wednesday, June 26, 2013
DOMA is DOA
Today, June 23rd 2013, the Supreme Court overturned section 3 of the Defense of Marriage Act in United States vs. Windsor. That section is the one barring married gay couples access to federal benefits. The case dealt with the widow New York resident Edith Windsor who inherited her wife´s estate after her death in 2009. To inherit the estate, she would have to pay the estate tax or ¨death tax¨ of 363,000$. Such a large amount could be deducted as part of the spousal tax deduction if they had been a straight couple, but section 3 of DOMA prevented such an action. The two had been married in Canada, but New York state although not having legalized gay marriage in 2009 (they did in 2011), they did recognize gay marriages from other states or countries. Not wishing to be discriminated from federal benefits due to sexual orientation, she chose to litigate. She was joined by Roberta Kaplan of Paul, Weiss, Rifkind, Wharton & Garrison LLP who argued for gay marriage in 2006 and the American Civil Liberties Union.
Windsor´s case went to the federal U.S. District Court for the Southern District of New York where on June 6 2012 section 3 was ruled unconstitutional under the Fifth Amendment´s due process clause, which ruled that the federal government cannot deprive citizens of life, liberty, and property without due process and must allow Windsor to collect the tax benefit.
Behind the scenes, the Obama administration through its justice department was embracing Windsor´s argument and decided not to defend DOMA in federal courts, but would still enforce it until either Congress repealed it or the Supreme Court struck it down.
After their victory in the District Court, the case was filed all the way up to the Supreme Court. Windsor´s age and health made her want to get the case over with quickly. But before the highest court would get its turn, the House of Representatives under control by Republicans displeased with the Obama administration´s decision not to to litigate against Windsor wanted to defend DOMA´s constitutionality and so sent the Bipartisan Legal Advisory Group represented by Paul Clement to the Second Circuit Court of Appeals. The majority held the District´s decision and declared that because homosexuals have a long history of discrimination, they are subject to intermediate scrutiny. Basically, any laws restricting the rights of homosexuals need to be made in only extremely necessary circumstances. Because DOMA could not pass that scrutiny, it was not permissible.
The Department of Justice on behalf of the House of Representatives wanting to defend DOMA also filed with the Supreme Court. On December 7th 2012 the court agreed to hear the case as United States vs. Windsor. The question was "whether Section 3 of DOMA violates the Fifth Amendment's guarantee of equal protection.¨ Oral arguments were heard March 27th 2013.
The decision was handed down today June 23rd 2013. In a 5-4 decision, Justices Anthony Kennedy, Stephen Breyer, Elena Kagan, Sonia Sotomayor, and Ruth Bader Ginsberg ruled section 3 of DOMA unconstitutional. Kennedy writing the decision used the same reasoning of the lower courts. The Fifth Amendment prevents the denial of life, liberty, and property without due process of law.
Kennedy starts the decision by arguing that first the regulation of marriage is traditionally left to the states, saying “the Federal Government, throughout our history, has deferred to state-law policy decisions with respect to domestic relations,” and “the significance of state responsibilities for the definition and regulation of marriage dates to the Nation’s beginning.”
But federalism wasn't at issue here. “It is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution... though Congress has great authority to design laws to fit its own conception of sound national policy, it cannot deny the liberty protected by the Due Process Clause of the Fifth Amendment.” He clearly states that at issue isn´t states rights but the nature of liberty itself. DOMA did not pass muster in terms of being necessary to the general welfare of the country, and so served to be a flat out denial of equal protection. "The principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage," which is not a rational reason to deny legal rights.
United States vs. Windsor is about what is called substantive due process. Substantive due process treats certain laws, even if technically legal, as unconstitutional because they infringe on basic freedoms that are not the business of government and are what government is supposed to protect. These rights while not enumerated in the Constitution still exist and are rooted in the fabric of American society. They are implicit "of the very essence of a scheme of ordered liberty." United States vs. Carolene Products Co. in 1938 established a three part test to determine what rights were protected under due process. 1. they are derived from the first 8 amendments, 2. they protect the right to participate in the political process, and 3. they protect the rights of minorities. All of these rights must be rooted in American traditions, or must pass the rational basis test which is what DOMA was about. The rational basis test asks if the violation of the right can be rationally related to a legitimate government purpose. Defenders of DOMA would have to argue that denying federal benefits to same sex couple somehow strengthens the legitimacy of straight marriages. If it did not pass the test then it would in denial of the fundamental right of equal protection.
Anthony Kennedy used the concept of substantive due process a decade ago when he joined the majority in Lawrence vs. Texas and invalidated the Texas state ban on sodomy. “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.¨ While a state can pass laws regulating pretty much whatever it wants under the Tenth Amendment, it cannot deny fundamental rights.
Keeping in mind that states where gay marriage is illegal still can deny benefits to partners, it is still a victory for human rights and a sign that America is going to continue the course of slowly but inevitably expanding the rights of citizenship to everybody. With all the cynicism over our inability to solve national problems, this is a huge step toward getting to a bipartisan consensus on this issue. Like Martin Luther King said, the arc of history is long, but it bends towards justice.
Windsor´s case went to the federal U.S. District Court for the Southern District of New York where on June 6 2012 section 3 was ruled unconstitutional under the Fifth Amendment´s due process clause, which ruled that the federal government cannot deprive citizens of life, liberty, and property without due process and must allow Windsor to collect the tax benefit.
Behind the scenes, the Obama administration through its justice department was embracing Windsor´s argument and decided not to defend DOMA in federal courts, but would still enforce it until either Congress repealed it or the Supreme Court struck it down.
After their victory in the District Court, the case was filed all the way up to the Supreme Court. Windsor´s age and health made her want to get the case over with quickly. But before the highest court would get its turn, the House of Representatives under control by Republicans displeased with the Obama administration´s decision not to to litigate against Windsor wanted to defend DOMA´s constitutionality and so sent the Bipartisan Legal Advisory Group represented by Paul Clement to the Second Circuit Court of Appeals. The majority held the District´s decision and declared that because homosexuals have a long history of discrimination, they are subject to intermediate scrutiny. Basically, any laws restricting the rights of homosexuals need to be made in only extremely necessary circumstances. Because DOMA could not pass that scrutiny, it was not permissible.
The Department of Justice on behalf of the House of Representatives wanting to defend DOMA also filed with the Supreme Court. On December 7th 2012 the court agreed to hear the case as United States vs. Windsor. The question was "whether Section 3 of DOMA violates the Fifth Amendment's guarantee of equal protection.¨ Oral arguments were heard March 27th 2013.
The decision was handed down today June 23rd 2013. In a 5-4 decision, Justices Anthony Kennedy, Stephen Breyer, Elena Kagan, Sonia Sotomayor, and Ruth Bader Ginsberg ruled section 3 of DOMA unconstitutional. Kennedy writing the decision used the same reasoning of the lower courts. The Fifth Amendment prevents the denial of life, liberty, and property without due process of law.
Kennedy starts the decision by arguing that first the regulation of marriage is traditionally left to the states, saying “the Federal Government, throughout our history, has deferred to state-law policy decisions with respect to domestic relations,” and “the significance of state responsibilities for the definition and regulation of marriage dates to the Nation’s beginning.”
But federalism wasn't at issue here. “It is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution... though Congress has great authority to design laws to fit its own conception of sound national policy, it cannot deny the liberty protected by the Due Process Clause of the Fifth Amendment.” He clearly states that at issue isn´t states rights but the nature of liberty itself. DOMA did not pass muster in terms of being necessary to the general welfare of the country, and so served to be a flat out denial of equal protection. "The principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage," which is not a rational reason to deny legal rights.
United States vs. Windsor is about what is called substantive due process. Substantive due process treats certain laws, even if technically legal, as unconstitutional because they infringe on basic freedoms that are not the business of government and are what government is supposed to protect. These rights while not enumerated in the Constitution still exist and are rooted in the fabric of American society. They are implicit "of the very essence of a scheme of ordered liberty." United States vs. Carolene Products Co. in 1938 established a three part test to determine what rights were protected under due process. 1. they are derived from the first 8 amendments, 2. they protect the right to participate in the political process, and 3. they protect the rights of minorities. All of these rights must be rooted in American traditions, or must pass the rational basis test which is what DOMA was about. The rational basis test asks if the violation of the right can be rationally related to a legitimate government purpose. Defenders of DOMA would have to argue that denying federal benefits to same sex couple somehow strengthens the legitimacy of straight marriages. If it did not pass the test then it would in denial of the fundamental right of equal protection.
Anthony Kennedy used the concept of substantive due process a decade ago when he joined the majority in Lawrence vs. Texas and invalidated the Texas state ban on sodomy. “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.¨ While a state can pass laws regulating pretty much whatever it wants under the Tenth Amendment, it cannot deny fundamental rights.
Keeping in mind that states where gay marriage is illegal still can deny benefits to partners, it is still a victory for human rights and a sign that America is going to continue the course of slowly but inevitably expanding the rights of citizenship to everybody. With all the cynicism over our inability to solve national problems, this is a huge step toward getting to a bipartisan consensus on this issue. Like Martin Luther King said, the arc of history is long, but it bends towards justice.
Wednesday, April 3, 2013
There Are No Missing Links (The Case for Human Equality)
Evolution actually disproves the idea of missing links. The argument goes that if man came from apes, then why don't we find ape-men fossils? All we find are either apes or humans, but never anything in-between (actually is true, beside Bigfoot myths, there are none to be found). Since evolution works by gradual change, they say then where are all the ape-men who each were slightly more human than the last one?
This is not how evolution works. First off, a species is an absolute definition. A species is two or more organisms that can reproduce. A fish is a fish and a dog is a dog. There can never be a fish-dog missing link because a fish cannot mate with a dog to produce such a hybrid. So an ape-man could never exist, because an ape and a human are two different species and by definition cannot reproduce with each other. So any fossil must either be an ape or a man. Evolution says two species are related because of common descent from an older ancestor, they are not related because some of their species mated with another in the past because species by definition cannot mate with each other. Apes and humans are related because a past primate (primate is an order of common descent, not a species classification) had offspring who evolved two different paths into apes and humans. And when they evolved they lost the ability to reproduce with the common ancestor primate and thus are a completely separate animal with no hybrid stages. So you are either an ape or a human, there's no in between.
You may say that its true that apes evolved off a separate path from our common ancestor, but if we ourselves are related to the ancestral primate, then we should be able to mate with it right? Wrong. By becoming a separate path we have lost the ability to have vital offspring with the ancestral ape because we have changed so mush that we are completely different species. Notice how even even two very close animals like horses and donkeys can only at best produce an mule that is sterile. Since it is sterile it doesn't meet the definition of a species of two or more organisms able to reproduce. Mules don't reproduce so they are not some kind of hybrid species. A mule is not even labeled in binomial nomenclature (those two Latin words like Homo Sapiens used as a species name)
So that gives us an argument for equal rights for all humans: created equal, by the blind forces of natural selection. So a human is a human no matter how unintelligent. You cannot call a stupid person as being biologically closer to a monkey. A lesser human still is a human because it cannot mate with apes, so it must be considered human. My argument if you would like to look it up is based on two concepts, the biological definition of a species and cladistic taxonomy (classification based of common ancestor).
Note: This was originally posted on my Facebook page back in December 2012. It was inspired by a chapter from Richard Dawkins' book The Blind Watchmaker where he discusses the "one true path" of evolution among other alternative theories.
From Dawkins himself:
Chapter 10 The one true tree of life
"there is one unique system, unique in the sense that words like 'correct' and 'incorrect' can be applied to it with perfect agreement given perfect information. That unique system is the system based on evolutionary relationships. To avoid confusion I shall give this system the name that biologists give to its strictest form: cladistic taxonomy.
"True cladistic taxonomy is strictly hierarchical, an expression which I shall use again to mean that it can be represented as a tree whose branches always diverge and never converge again...A group of organisms that has this property of being descended from a common ancestor, which is not an ancestor of any non-member of the group is called a clade, after the Greek for a tree branch.
"Never, on a single solitary occasion, will the rings that we draw intersect each other.
"In the taxonomy of living creatures these filing problems do not arise. There are no 'miscellaneous' animals. As long as we stay above the level of the species, and as long as we study only modern animals (or animals in any given time slice: see below) there are no awkward intermediates. If an animal appears to be an awkward intermediate, say it seems to be exactly intermediate between a mammal and a bird, an evolutionist can be confident that it must definitely be one or the other.
"The myth that mammals, for instance, form a ladder or 'scale', with 'lower' ones being closer to fish than 'higher' ones, is a piece of snobbery that owes nothing to evolution. It is an ancient, pre-evolutionary notion, sometimes called the 'great chain of being' which should have been destroyed by evolution but which was, mysteriously, absorbed into the way many people thought about evolution."
This is not how evolution works. First off, a species is an absolute definition. A species is two or more organisms that can reproduce. A fish is a fish and a dog is a dog. There can never be a fish-dog missing link because a fish cannot mate with a dog to produce such a hybrid. So an ape-man could never exist, because an ape and a human are two different species and by definition cannot reproduce with each other. So any fossil must either be an ape or a man. Evolution says two species are related because of common descent from an older ancestor, they are not related because some of their species mated with another in the past because species by definition cannot mate with each other. Apes and humans are related because a past primate (primate is an order of common descent, not a species classification) had offspring who evolved two different paths into apes and humans. And when they evolved they lost the ability to reproduce with the common ancestor primate and thus are a completely separate animal with no hybrid stages. So you are either an ape or a human, there's no in between.
You may say that its true that apes evolved off a separate path from our common ancestor, but if we ourselves are related to the ancestral primate, then we should be able to mate with it right? Wrong. By becoming a separate path we have lost the ability to have vital offspring with the ancestral ape because we have changed so mush that we are completely different species. Notice how even even two very close animals like horses and donkeys can only at best produce an mule that is sterile. Since it is sterile it doesn't meet the definition of a species of two or more organisms able to reproduce. Mules don't reproduce so they are not some kind of hybrid species. A mule is not even labeled in binomial nomenclature (those two Latin words like Homo Sapiens used as a species name)
So that gives us an argument for equal rights for all humans: created equal, by the blind forces of natural selection. So a human is a human no matter how unintelligent. You cannot call a stupid person as being biologically closer to a monkey. A lesser human still is a human because it cannot mate with apes, so it must be considered human. My argument if you would like to look it up is based on two concepts, the biological definition of a species and cladistic taxonomy (classification based of common ancestor).
Note: This was originally posted on my Facebook page back in December 2012. It was inspired by a chapter from Richard Dawkins' book The Blind Watchmaker where he discusses the "one true path" of evolution among other alternative theories.
From Dawkins himself:
Chapter 10 The one true tree of life
"there is one unique system, unique in the sense that words like 'correct' and 'incorrect' can be applied to it with perfect agreement given perfect information. That unique system is the system based on evolutionary relationships. To avoid confusion I shall give this system the name that biologists give to its strictest form: cladistic taxonomy.
"True cladistic taxonomy is strictly hierarchical, an expression which I shall use again to mean that it can be represented as a tree whose branches always diverge and never converge again...A group of organisms that has this property of being descended from a common ancestor, which is not an ancestor of any non-member of the group is called a clade, after the Greek for a tree branch.
"Never, on a single solitary occasion, will the rings that we draw intersect each other.
"In the taxonomy of living creatures these filing problems do not arise. There are no 'miscellaneous' animals. As long as we stay above the level of the species, and as long as we study only modern animals (or animals in any given time slice: see below) there are no awkward intermediates. If an animal appears to be an awkward intermediate, say it seems to be exactly intermediate between a mammal and a bird, an evolutionist can be confident that it must definitely be one or the other.
"The myth that mammals, for instance, form a ladder or 'scale', with 'lower' ones being closer to fish than 'higher' ones, is a piece of snobbery that owes nothing to evolution. It is an ancient, pre-evolutionary notion, sometimes called the 'great chain of being' which should have been destroyed by evolution but which was, mysteriously, absorbed into the way many people thought about evolution."
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