Sunday, June 30, 2013

In which I find myself almost agreeing with Tony Perkins

I was watching Sunday Morning on CBS this morning, and I managed not to pay enough attention at the end to turn off the television when Face the Nation appeared onscreen.  I have nothing against the Sunday morning political talk shows, except that they are hosted by mostly brainless Washington insider would-be journalist types; feature mostly brainless, agenda-driven Washington insider politicians and professional opinionators (as opposed to me, an amateur opinionator); and are sponsored by malevolent large multinational corporations like ADM, Boeing, BP, and the like, who use their advertising time to tell us all how their next great screw job is so good for America.

(No, tell us how you really feel, Harrington.)

The genuinely evil Tony Perkins, head of the bizarrely named Family Research Council (not to be confused with the character actor Anthony Perkins, original portrayer of Norman Bates, who merely most famously played an evil character), was bloviating to professional Texan Bob Schieffer about how horrible for Americans it is that DOMA is dead and Ellen DeGeneres is alive.

And then it happened.

Perkins made a point that I almost agreed with. 

If I had already had my breakfast at that point I might have thrown up.  Perkins's point was that now that marriage equality is the law of (some parts of) the land, service providers like cake bakers, florists, and the like are finding themselves on the wrong end of some pretty tough anti-discrimination laws.  Essentially, these service providers find themselves facing a choice:  Do business with gay couples getting married and ignore your religious conviction against gay marriage, or face lawsuits and enforcement actions from those whom you won't serve or, worse, from the government acting on their behalf.

One of the arguments I have heard against legalization of gay marriage is that it might force churches to open their doors to recognition of such marriages even though they have a religious conviction against them.  I have always said that no one was arguing for that, and that churches would be free to tell gay couples to go pound sand if they expected a church to provide them with a minister, a chapel, or a reception hall.

(I still think that is and should be the case.  The First Amendment matters.)

This is kind of halfway to that concept, and it's kind of a gray area.

To his credit, Schieffer questioned Perkins pretty intently about what he was saying.  Whereas David Gregory will usually accept whatever pap his guests are spoon-feeding him, Schieffer does have some shred of journalistic tendencies left, and it was easy to see that his BS detector was flashing red.  But it turns out that Perkins does have most of his facts straight.  There have been lawsuits.  No one has gone to jail (and it's hard to imagine that being a serious possibility), but that's maybe a bit of a rhetorical flourish on Perkins's part.
But here is the problem with Perkins's point:  It really has nothing to do with the legalization of gay marriage per se.  It has to do with the application of anti-discrimination laws, coupled with an expected increase (due to legalization) in the kinds of activities that will bring those anti-discrimination laws into conflict with the religious sensibilities that Perkins wants to protect.

Religious freedom is an important part of what makes America work.  If I believed for one second that Tony Perkins cared about the religious freedom of all Americans, and not just those who meet his narrow definition of worthiness, I might give his views more consideration.  But there does seem to be something just a bit unfair about forcing a devoutly Catholic florist to sell flower arrangements to someone whose wedding she deems to be an abomination unto God--just to pick one example.

The reality is that Tony Perkins, culture warrior, is using the fact of increasing legalization of marriage equality as an excuse to push a broader "conscientious objector" status to a whole raft of laws he deems to conflict with proper Christianity.  The First Amendment gives you the right to be a religious nutbag.  That's fine; if you want to be that way, go ahead. 

But I'm pretty sure that this is not about protecting religious extremism.  Call me cynical, but I gotta ask:  Does the florist make inquiries about the purpose of every purchase?  Does she ask the man wearing a wedding ring and a business suit whether the flowers he's buying are for his wife or his mistress?  I doubt it.  And for that reason--that nobody is that genuinely conscientious when it comes to business--this really amounts to support for bigotry, masquerading as religious belief.  The florist merely finds it easier to identify the supposed sins of her gay potential customers, or maybe she finds the idea frightening that her work would be publicly associated with gays.  Maybe she doesn't want to endure the whispers of her follow congregants that she put her stamp of approval on something so icky.  But that's not conviction.  It's pride, or hate, or convenience. 

I don't doubt that Tony Perkins has a problem with anti-discrimination laws.  But I don't. We wouldn't allow it if a hotel owner refused to rent a room to a biracial couple because his particular flavor of Christianity interprets the Bible as prohibiting the mixing of races.  This is no different, substantively. 

When you enter the commercial world, and you run a business that is a public accommodation, you are expected to leave your own value judgments at the door.  If you can't handle that, then you should find another business or profession that does not involve dealing with the public.

More importantly, the legalization of gay marriage is not to blame in the first place.  Gay couples have been having weddings for a lot longer than gay marriage has been legal anywhere in the U.S.  If you are a fan of Seinfeld, you might recall the episode (appropriately titled "The Subway") in which Elaine was stuck on the subway while en route to a lesbian wedding.  That episode first aired on January 8, 1992--more than four years before DOMA was enacted.  I'm pretty sure that gay weddings in 1992 featured flowers and cakes, even if no marriage license was filed.

So I can breathe a sigh of relief.  I don't agree with Tony Perkins after all.  But these issues are going to come up, and we need to resolve them in a way that respects the rights of everyone involved.

Friday, June 28, 2013

Decision Day, part II

So, I'm coming in a bit later than I wanted to on this one, but the best laid plans of mice and men, and all...

By now, you've heard that on Wednesday the Supreme Court, by a 5-4 majority, struck down section 3 of the so-called Defense of Marriage Act, or DOMA, as unconstitutional.  Section 3 is the part of DOMA that prohibited the federal government from recognizing same-sex marriages, regardless of whether those marriages were legal in the state in which they occurred.

In a little over three weeks, the Supreme Court's decision will become final with the issuance of a mandate (which is just a formality), and the federal government will be required to recognize lawful same-sex marriages and treat them on equal footing with different-sex marriages for all purposes. Because there are more than 1,000 ways in which marital status can affect the application of various federal laws, regulations, and benefits, this is an important development for same-sex couples.

The same Court, by the same 5-4 majority but with a wildly different composition, determined that it did not have jurisdiction to weigh in on California's Proposition 8, which banned the recognition of same-sex marriages by the state government.  The district court had issued an injunction against enforcement of Prop 8, at which point state officials elected not to appeal.  Their cause was taken up by a group of private citizens who had advocated for Prop 8.  Same-sex marriages are expected to resume in California after the issuance of the Supreme Court's mandate, although the 9th Circuit must act to dissolve a stay of the injunction before the injunction can come into force.

For those of you whose eyes glazed over at all of the convoluted legal process, time to re-focus.

These decisions show that the tide has indeed turned for same-sex marriage in the U.S.  The argument against DOMA is that it singles out for special, different, and offensive treatment a certain class of otherwise legal marriages. 

It is important to recognize that the Court said nothing at all about Section 2 of DOMA, which allows states to decline to recognize same-sex marriages from other states.  However, in my considered view, putting on my lawyer is only a matter of time before Section 2 comes up for review, and when it does, it will have to go down.

(I should really tag this part of the post "GC Explains:  the Full Faith and Credit Clause," as part of that recurring feature, but I won't.)

One of the most important features of the Constitution is the Full Faith and Credit Clause, article IV, section 1, which provides:

Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.

What this means is that the things that are done officially by one state--most importantly, the judicial proceedings, but other official acts as well--then the other states must recognize and give force to those acts.  Whether marriage is one of those things or not is somewhat an open question.  The only other serious legal debate we have ever had about marriage laws was when the "anti-miscegenation" laws of some states prevented them from recognizing different-race marriages performed in other states.  Those laws were apparently never challenged on a Full Faith and Credit basis.  Ultimately, laws that discriminate against different-race couples were struck down nationwide, in Loving v. Virginia, so there was no longer a need to challenge such laws on a Full Faith and Credit basis.

But I think marriage is one of those things that other states must recognize, and apparently so does the Congress.  The Clause gives Congress the express authority to regulate Full Faith and Credit, and Congress used that authority to enact section 2 of DOMA, which is a regulation on Full Faith and Credit.

So, you might ask, doesn't that end the inquiry?  If Congress can regulate Full Faith and Credit, doesn't that mean section 2 of DOMA is constitutional?

Not quite.  Congress still must provide equal treatment in the laws it prescribes, even under the Full Faith and Credit Clause.  (Readers of the Constitution will note that there is no Constitutional provision that expressly hold Congress to that standard, but there is a long line of cases that holds that equal protection is fundamental to the concept of ordered liberty that is inherent in the Constitution, and therefore that the federal government is bound to it implicitly even if it is not explicitly.)

And for the same reason that Section 3 was unconstitutional, so too must section 2.

Without that regulation, states are generally bound to recognize the same-sex marriages performed in states where such marriages are legal.  And if they choose not to, well, they are going to have to defend an awful lot of lawsuits that they'll lose because the Fourteenth Amendment is explicit as to the states.

Really, if you take the "same-sex" part out of it, is recognition of marriages from other states something anyone really questions?  Since my wife and I were married in 1997, we have moved from Arkansas to Maryland, then to North Carolina, and back to Arkansas.  Our Arkansas marriage was automatically recognized as valid by each of the states, without anyone questioning it at all.  That is as it should be.

So, for a lot of reasons, I think that the way that same-sex marriage takes hold in states where it is currently illegal is because the courts will strike down section 2 of DOMA, and same-sex couples will travel to states where it is legal to get married and return, asking for (and getting) recognition from their home states.  (I am sure that pro-marriage-equality forces are hard at work looking for test cases right now.)

At that point, people will tire of fighting it and realize that the world didn't end because Steve made an honest man out of Adam.

Now, enough law talk.  I commented on Facebook Wednesday that yesterday was a red-letter day for all Americans, because we have been made more free.  It turns out that Thursday was even better for one American I know, a good friend.  My friend is in his 50s and lived all of that time with a pretty big secret that he had worked hard to conceal for most of his life.  With the support of some pretty brave people who risked a lot themselves, my friend came out of the closet.

I am happy that he is free.

And I am proud to know him.

And I admire his courage.

And maybe most of all I hope that one day it won't require any sort of courage to come out.

Tuesday, June 25, 2013

A fair trial needed

I don't spend a lot of time keeping up with local news, so I was not aware over the weekend just exactly how big a deal it was that the jury hung, 10-2 for conviction, in the Josh Hastings trial here in Little Rock.  A good friend asked me to comment.  I don't particularly feel qualified to make a judgment about Officer Hastings's guilt or innocence, but over the last couple of days I have read reporting from a number of sources about the case, and I have also read some of the commentary from others, professional and...not professional, and there are some questions to be raised.

First, a bit of background for those who haven't been following.  In the early morning hours of August 12, 2012, Officer Josh Hastings of the Little Rock Police Department responded to a call about "suspicious persons" at a west Little Rock apartment complex.  What is known with certainty is that Officer Hastings, who was on foot, fired his weapon three times at a car, killing Bobby Moore, 15; and that two other occupants of the vehicle fled on foot after the car crashed into a vehicle parked behind it.  What is less certain are the circumstances that led to the shooting.

Officer Hastings contends that the car was driving at him at a high rate of speed (for a parking lot); that he identified himself and warned the driver to stop; that when it did not stop, he fired three times; and that he then narrowly dodged the vehicle, which continued traveling past him before rolling back and into the parked car.

The other two occupants contend that Moore, who was driving, stopped the vehicle about five feet short of Officer Hastings and put the vehicle into reverse, and that Officer Hastings began shooting at the car, killing Moore.

When the LRPD's investigations--two of them, including one by Internal Affairs--concluded that Officer Hastings's description of the incident did not match the physical evidence, the LRPD recommended that he be charged with manslaughter based upon a reckless discharge of his firearm.  The prosecuting attorney's office obliged.

At this point, I should probably say that I have a great deal of respect for police officers generally.  Indeed, I have on three occasions represented police officers who were accused of misconduct and disciplined.  On all three occasions, I undertook those representations pro bono.  Police officers do a dangerous job for low pay and should enjoy broad latitude and the benefit of the doubt where we can do so reasonably.

That being said, I do believe that there are instances in which police officers do use excessive force and should be disciplined, and when they act egregiously, criminal charges are sometimes appropriate.  Just as Officer Hastings is entitled to some deference, so are the higher-ups in the LRPD who concluded that his conduct was criminal in nature.  If we can entrust this kind of responsibility to the LRPD with regard to regular citizens, perhaps on the rare occasion when they conclude their officer crossed the line into criminal misconduct, we should take them at their word, at least with regard to the charge.

Officer Hastings was no model cop, having been disciplined several times in 5 years on the force, but his jacket doesn't reflect the kinds of misconduct that would make it easy to believe he was predisposed to violence.

His victim, Bobby Moore, was no model citizen either.  He had already been arrested several times and was actively engaged in the commission of a property crime--grand theft auto.  But property crimes do not by themselves justify the use of deadly force.  Surely we live in a society in which one does not assume the risk of being shot by the police when one makes the mistake of stealing a car.  Consequences for that activity are appropriate...but death should not be one of them.

After two days of deliberation, the jury hung.  Conviction, of course, requires a unanimous verdict.  It has been reported that the split was 10-2, the 10 being in favor of conviction on the lesser included offense of reckless homicide.  Reportedly, the 2 holdouts simply would not convict a police officer of any crime predicated on acts committed while on duty.

I think that the jury system is sound as a general principle, and requiring a unanimous verdict is an important part of that.  If two of the jurors couldn't vote to convict, then a mistrial is appropriate.

But there are two aspects of this case that trouble me.  Before I discuss them, I am put in mind of yet another conclusively established fact that I omitted above:  Officer Hastings is white.  Bobby Moore was black.  That is not an unusual occurrence in Little Rock.  The crime rate among blacks is higher than among whites.  I believe that LRPD is whiter than the general population, but I have not checked it and am willing to be corrected on the point.

The first aspect that troubles me is that the jury that hung was entirely white.  In a truly random grouping of jurors, it is hardly impossible to draw 12 white people.  The twelve who were selected may well be perfectly able to set aside any biases they may have, and I do not think that a jury that was more representative of the color of the community would necessarily reach a different result.  To his credit, the prosecutor dismissed any question that the racial makeup of the jury had anything to do with the outcome.  But it is not enough that the justice system actually be fair (to defendants and to the capital-P People).  It must also carry the appearance of being fair in order to gain the confidence of everyone involved...and we are all involved, because what is being done there is being done in all our names.  Surely a jury can be empaneled at the retrial that looks more like Pulaski County.   

That first aspect bears heavily on the second aspect of this case that I find troubling.  Apparently, at the conclusion of the trial, the presiding judge fined Bill James, the defense attorney, some $25,000 for ten violations of an evidentiary order regarding the use of juvenile records of the occupants of the vehicle.  The judge had ruled that James could refer to those records only to show the bias of the witnesses against the police; James apparently far exceeded that order. 

For his part, James has moved to have the fine tossed out, arguing that he was not afforded a hearing--and he may have a point; the imposition of sanctions for contempt usually requires a hearing, however brief it might be.  I do not care about that issue as it relates to this case.  It's between him and the judge.

What I do care about is the impact of that information on the case itself.  Clearly a part of the defense's strategy was to portray Officer Hastings's act as having taken a career petty criminal (and perhaps a future serious criminal) off the streets permanently.  Who knows whether that played a part in the holdouts' position in the jury room?  The problem with that strategy is that Officer Hastings did not know who he was shooting at.  His acts may have stopped a lot of future crimes.  Or it may have ended the life of a model citizen who was headed to work early in the morning.  He couldn't have known that when he fired those shots.

Moreover, it has been truly sickening to read commentary that suggests that because Bobby Moore and his passengers were criminals, Officer Hastings was completely justified in taking Moore, and possibly all of them, out.  Likewise the theory that Bobby Moore got what was coming to him, from whatever source, because he had committed, was committing, and likely in the future would commit crimes.  These are not the positions a civilized society takes.  It is not the path of justice. 

I hope that the retrial, when it comes, is marked by fairness, and that at its conclusion, all sides can agree that a just result was reached, even if it is not the one they wanted.  In the end, that is the justice that we all deserve--defendant, victim, and society alike.

Decision day, part I

This morning, the Supreme Court handed down the first of three decisions I have been awaiting for most of the term.  This first one, Shelby County v. Holder, is a case concerning the provision of the Voting Rights Act of 1965 (section 4(b)) that identifies certain jurisdictions that must seek "preclearance" from the Justice Department (or the courts) before implementing any changes they make to the voting structure, in order to ensure that the proposed changes are not racially discriminatory in purpose or effect.

(The other two cases I am following concern marriage equality; those opinions will be handed down tomorrow.)

The Voting Rights Act bans racial discrimination in voting and elections, nationwide.  However, in 1965, Congress recognized that there were some jurisdictions that acted so perniciously to prevent minorities, especially blacks, from voting that special attention was needed to prevent those jurisdictions from enacting changes to their voting laws that evaded the more general protections that the VRA provided.  In those jurisdictions, all changes were to be submitted to the Justice Department for review; if the Attorney General determined that the changes were discriminatory in purpose or effect, he could block the changes.  In order to implement a blocked change, a jurisdiction would have to prove in court that the change was not discriminatory.

Since the original enactment, which was set to expire in five years, Congress has repeatedly renewed and extended the Act, and on several occasions has expanded the criteria for the preclearance requirement.  Each time, Congress has gathered extensive evidence of continuing efforts in covered jurisdictions to enact discriminatory policies.  And there is no more compelling evidence that preclearance continues to be needed--and, frankly, to be expanded--than that the Justice Department has blocked nearly 2,000 proposed changes to voting, districting, and elections-related laws in the 48 years since the original VRA.  Lest you think that number is front-loaded, with rejected changes being relatively rare--think again.  The pace of rejected changes has increased, not slowed.

And the forces of racial discrimination are again on the move.  It is no secret that Republicans need desperately to suppress the vote of minorities in order to ensure electoral success.  That is the impetus behind voter ID laws.  There is no epidemic of actual voter fraud affecting elections, but Republicans know that the poorer you are and the darker your skin, the more likely it is that you don't have a state-issued ID and won't waste money getting one.  That is also the impetus behind extreme gerrymandering at the last cycle--which resulted in the GOP obtaining a 33-seat majority in the House of Representatives even though votes for Democratic candidates exceeded votes for Republican candidates by more than 1 million votes, some 1% of those cast.  GOP legislatures have been busy cutting back early voting and weekend voting hours in the hope that making it harder to vote will keep those for whom it is harder to exercise the franchise to begin with--poorer, darker-skinned people who have less reliable transportation, less flexibility in work schedules, and other impediments--will simply not vote.

In the context of all of that, I am profoundly disgusted by the Supreme Court's action today.  Because by some metrics the VRA, and specifically the portion of the act that requires preclearance in some jurisdictions, has been so effective at preventing discrimination, the Supreme Court says now that preclearance must be set aside, at least until Congress can devise a new test to determine whether preclearance should apply.

And we all know that Congress is wholly dysfunctional at present precisely because the House is out of step with the expressed will of the people, due to the actions of a party that draws its power from the very acts the VRA was designed to prevent.

Within a few years, this decision will expose the situation as it is:  That the pro-discrimination forces have had their thumbs on the scale all along, and that only the equalizing force of preclearance stood as an effective tool to produce a just result.  As the Supreme Court said more than a century ago in Yick Wo v. Hopkins, the vote is "preservative of all rights."  In a nation governed increasingly by those motivated by self-interest, fraud, graft, and greed, we cannot afford to set aside the protections that the vote provides.  This means nothing less than ensuring that government of the people, by the people, for the people, shall not perish from the earth.

Monday, June 24, 2013

5 things I know

(First in a series)

1. In the game of rock-paper-scissors, rock clearly got the best end of the bargain.

2. Stepping barefoot on a LEGO is the most painful non-harmful thing you can do. But stepping barefoot on an extension cord is a pretty close second.

3. An indoor hotel pool sounds like a really good idea, until you remember:  teenagers.

4. "The devil you don't know" is probably pretty lonely.

5. It's not impossible, but it is really hard to trust someone who doesn't like bacon.

Short shot

Thinking about Paula Deen, Southern culture, and what-not put me in mind of the comment of a fellow Southerner, a friend of mine, years ago, that "if we'd won the [Civil] War we'd have been a lot better off."

To which my response was, "We did."

Not sure if he ever figured out my point.

In defense of Paula Deen (?)

For reasons that I don't need to get into, but wholly unrelated to the late controversy, I'm not a fan of Paula Deen.

I can usually deal with that by turning to a different channel, or turning away from the magazine rack at the checkout stand.  And since we gave up cable a couple of years ago and gave up the Today Show last September (when we discovered CBS This Morning--really, if you watch a morning news program, you should be watching that one), very little channel-turning has been required.

But somebody went and sued her for racial discrimination, and my Good Counsel duties require that I take a position on that.  As often happens in lawsuits, the opposing attorney took her deposition.  Uncomfortable questions were asked.  Being like most people, she was anxious to tell the truth and ended up admitting to having held some opinions and undertaken some acts a long time ago that she may or may not be proud of today.

I can't see into her head and discern how she actually thinks on these issues.  She may well be a racist, privately unrepentant, who has a public persona that is oh-so-apologetic when an ugly past came to light.  Or, like many people of her generation, she may have come around to the right side of things later than she maybe should have.  Or she may just be a dunderheaded relic who speaks without thinking, emphasis on the without thinking.

Put me solidly in the column of people who find racism repugnant as a general principle.  There is no excuse for casual use of the term that modern communications mores require that we render as "N-word" or "n*****."  And there is something very odd about a person whose sincerest dream wedding is attended by black people dressed and acting as slaves, in an antebellum travesty that borders on farce.

But we are, of course, talking about allegations made by a plaintiff who is seeking money from Ms. Deen.  In such suits, remarks made sarcastically, in jest, often read as monstrous.  Context matters, and history matters, and it only takes a slight tweak, an unreported wry smile or eye roll, to turn a droll comment into something nefarious and discriminatory. For that reason, I cannot seem to summon the outrage necessary for me to agree that the public Paula Deen should be dismantled and fed to a hungry Mario Batali.

Certainly not solely on what has been alleged in the complaint against her.

And, good grief, I'm a lawyer who has most often represented plaintiffs in lawsuits.  The truth is that not all plaintiffs tell the whole truth, especially when there are so many dollar signs trailing the defendant around like dogs after a pan-fried pork chop.

That's not to say she should be off the hook entirely. 

Ms. Deen has certainly not made things better with her apologies.  I really don't understand what she's talking about--it's almost as though she's apologizing for current conduct, or maybe even apologizing for allowing the PR aspects of this situation to spin out of control.  Really, if
the problem is that she used a racial epithet in anger thirty years ago and has sometimes harbored fond feelings for the images conjured by Al Jolson singing "Swanee," the needed apology doesn't sound like what she said.  What it sounds like is, I told the truth in my deposition because that's the right thing to do.  Thirty years ago I said something in anger and fear that I shouldn't have said and that I wouldn't say today.  I'm sorry that I said it then because of how much pain it causes people.  The truth is that I wouldn't be where I am today without the love and support of people of all races.  My life today is about good food, cooked well, and that's something we should all be able to agree on.

Then she should settle the lawsuit and say, We have a difference of opinion about something I said. Instead of fighting this, I should have made it right from the beginning, because the last thing I want to do is hurt somebody else.  I didn't realize that what we were doing could be seen this way, but we're going to make some changes starting now.

That would win her more fans, of all races (I think), than spinning three fuzzy, out-of-control YouTube apologies in a desperate attempt to hang onto her empire.  And if it had been handled correctly from the get-go, this would blow over with an Oprah interview and a 60 Minutes profile.

Monday, June 10, 2013

The discrete individual, choosing

Last week, concrete proof surfaced showing that the National Security Agency has been engaged in the collection of vast amounts of data from telephone calls placed and emails sent by Americans; that this data has been gathered in some cases under the auspices of secret court orders; and that the amount of data collection far exceeds what was previously believed.

It is no longer implausible to believe that the NSA records not only the metadata of these communications (essentially, who, when, where, and how) but also the contents, and that it captures that data from every American.

I am disturbed by this on a number of levels.  These kinds of communications are considered by most people to be private and inviolate.  My calls and emails in particular often contain information that is the subject of legal privilege, such as the attorney-client communication privilege.  For me, the intercepting of these kinds of communications is an enormous intrusion into the sanctity of those communications and carries Constitutional implications regarding the right to counsel, the right to petition the government, and the freedom of speech.  But on a broader level, this news is troublesome because limitations on the scope of the government's ability to know what its citizens are doing are an important, and perhaps the most important, foundational part of our system of governance.  Those limitations appear to have been violated, repeatedly and forcefully and with little to no recourse and with no apparent purpose other than that it can be done.

I have long been a critic of the American government's response to the terrorist attacks on 9/11/2001.  The mass murder of nearly 3,000 people is a heinous act, but the reality is that as a cause of death, terrorism barely moves the needle.  Two hundred times that many Americans die each year from heart disease, and no one is talking seriously about banning bacon.  (Anyone who tried would have to fight me.)  The government's response to terrorism was not to tout the virtues of freedom but to limit it.  We went along--and, really, what choice did we have?--and made ourselves worse off.

That the NSA news has not yet resulted in mass demonstrations and angry posturing from Congressmen and women, many of whom swear fealty to freedom as our highest value, is symptomatic of just how broken down the last twelve years have made us.

I do not care how many terrorist attacks have been stopped through this program.  I suspect it's truly zero, but even if it were a hundred or a thousand, I would still say it:  It's just not worth it.  Our freedom is too precious to squander on little temporary reprieves from the malevolence of misguided madmen.

American freedom exists and consists in the sovereignty of the individual.  The things we think of when we try to enumerate our freedoms--freedom of expression, freedom of conscience, the right against self-incrimination, the right against cruel punishments--these things are only shadows and symptoms of what American freedom is.  American freedom is, at its root, the discrete individual, choosing.  What I mean is that we individuals, ourselves, by ourselves, are the owners of the right to plot and plan and execute our own lives.  A government, rightly instituted and constituted, exists for only two core purposes:  One, to manage, prevent, and remedy the conflicts that occur between two individuals, equally free; two, to provide those things that are necessary to make civilized, free society possible, which individuals cannot easily provide for themselves.

Consider for a moment a heavily traveled stretch of roadway.  The government provides regulations for the use of that roadway--speed limits, equipment requirements, protocols--that make it possible for free people to use the roadway efficiently and conveniently.  These things facilitate freedom by minimizing conflicts.

Now imagine a scenario in which the government, using cameras and RFIDs, and various other technology, monitors your compliance with regulations on a zero-tolerance basis.  Drive 61 mph in a 60-mph zone?  That's a fine.  Change lanes without signaling?  That's a fine.  Mis-time the light and run the red slightly?  A fine.  Never mind that no one was harmed or put in the possibility of harm.

I'm sure we can all agree that these things are against the law on a technical basis. And if they generated problems that endangered others, fines may well be appropriate.  But a scheme for constant monitoring at all times, in which the smallest infraction is punished, without fail?  The creation of a surveillance state in that situation would rob us of the pleasure of living, and force us to stifle and restrict ourselves for fear of inciting the fine-collecting authority of the government against us.  Who would want to live that way, under constant accountability for our activities, always subject to question by a government ready to punish us?

It is not that I want to break the law.  It is that the government, properly constituted should not maintain such a tight surveillance and accountability.  Some lawbreaking must be tolerated; it is the price of living in a free society.

In the very first post to this blog, I quoted a long section of which I consider to be among the greatest Supreme Court opinions ever written, a concurring opinion from Justice Louis Brandeis in Whitney v. California.  In fact, astute observers will note that the name of this blog was inspired by that very opinion.  I'll set it out again:

Those who won our independence believed that the final end of the State was to make men free to develop their faculties, and that, in its government, the deliberative forces should prevail over the arbitrary. They valued liberty both as an end, and as a means. They believed liberty to be the secret of happiness, and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that, without free speech and assembly, discussion would be futile; that, with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty, and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies, and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law -- the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.
This latest revelation, about the NSA's activities, is one in a long string of governmental acts that, though probably not designed to that purpose, are clearly arranged in such a manner to maximize fear among Americans.  Whether it is Ari Fleischer saying that "You'd better watch what you say," or a Charlotte-area congresswoman wondering, "If you haven't done anything wrong, what are you worried about?" to body scanners and baggies of liquids and shoe removal at airports, or the constant surveillance of public places by police, to "shelter-in-place" orders when a terrorist is being pursued, we have tolerated and acquiesced and stepped our freedoms back to calibrate to the new normal state of affairs.  But this?  This is wrong.  It is evil.  It is un-American.  It must be stopped.  Who will step up to stop it?  Anyone?

Tuesday, June 4, 2013

A mystery explained

Regular readers of this blog will recall that I travel a lot for work.  As a result, I stay in a lot of hotels.  I tend to stay in nicer places when I'm traveling on the client's dime, but that is mainly because I am pretty proficient at Priceline.  For example, as I write this, I'm sitting in a hotel room at a mid-level resort in the Phoenix area (Priceline rates it at 3-and-a-half stars out of five) that regularly charges as much as $179 per night.  I paid $40.  Because I come to Phoenix fairly often, I stay here regularly, I don't think I've ever paid more than $85 even in the peak season.  One of these days I will share my secrets.

A lot of the places I stay in have room service, as does this one.  It is rare for me to order from room service.  If I want something delivered to the room, I am much more likely to order a pizza or Chinese.  Even more likely, I'll just pick something up before I retire for the evening.  This is true even though I'm not paying for it personally and I should not care, in theory, about the one thing that makes me skip the room service:  the price.

(I am pretty conscientious about how I spend my clients' money, just for the record.)

If you have ever spent time looking over the room service menu, as I do (if only to remind me of why I don't order from it), you're no doubt aware of the ridiculous prices they charge.  Sometimes I play a game where I try to guess the price of a hamburger (which almost every room service menu features), and even though I guess an outlandishly high number I have never, not even once, "overbid the burger."  It's not unreasonable to pay perhaps $10 for a burger (with sides) at a casual dining restaurant.  I simply cannot make myself pay the $19 demanded by one hotel I recently stayed at.  Cheese?  Add $4.

And then there is the "service charge" (18% to 25%) and the delivery fee ($6 per person).  And the tip.  And tax.

Bill Cosby had a stand-up bit, years ago, riffing on this theme.  For breakfast, one egg, $1.35. Two eggs, $1.65.  (Even though this bit is from 42 years ago, the prices are still amazing to me.)  That arrangement caused him to wonder "what's wrong with second egg?"

So, as I peruse menus I know I will never order from (not even if I had the money), I have to ask...why is it so freaking expensive?  (And who's the moneybags who's paying $23 plus service charge, delivery fee, tip, and tax for a cheeseburger?)

The answer, it seems, is that it's expensive because it has to be.  In this New York Times article about a hotel that's ending room service, one manager is quoted as saying that nearly every hotel in New York loses money on room service, because it is apparently pretty expensive to maintain the staff necessary to provide the service. I'm not sure I buy that reasoning, especially for hotels that have an in-house restaurant.  But it does make sense that they aren't exactly raking it in on room service, because otherwise they would not believe they could charge prices that are so beyond the norm of what things cost in the world.