• Negotiations Continue on Guns and Abortions

    August 1, 2022 // 1 Comment »

    We don’t really negotiate much in the U.S. and so we’re bad at it. Even when we are forced to “haggle,” we employ rituals, like the salesperson at a used car dealership “checking with his manager” on our offers, or the dance between real estate agents that goes along with buying a house. Car offers come back from the mysterious manager as impossible, and offers on a house are just refused, no chance to talk because two layers of agents stand in the way. That’s why we cannot find any common ground on abortion and gun control. We do not know how to be reasonable.

    The American style of negotiating is to demand everything and settle for nothing less. So we’re taught to make our first offer the final offer (it works a little different when the issue is simply money, then we ask for an outrageous amount and “bargain down” after the other side offers an equally outrageous small amount. Starting anywhere near your actual price is considered a sign of weakness.) We don’t like gray areas and we don’t like to feel we’ve lost out on something. So being asked to support something on its face reasonable like allowing two people in love living together in a home they co-own to marry means buying into a whole LGBTQIA2+ agenda that somehow includes forcing kids to listen to drag queens read stories aloud about sexually ambitious caterpillars and their same-sex tadpole pals. Seeking restrictions on abortion ends up cruelly forcing rape and incest victims to carry to term.

    We do the same thing in broader swathes, when reporters who misuse pronouns or support the Harry Potter author are not just sidelined or argued with, but canceled, deleted, defunded, disenfranchised, literally thrown down the memory hole to just take their opinion and go away, leaving only your opinion standing. The presumption is even on the most ideological of arguments there is a clear right and wrong only. We have evolved speech to match this mindset, things like “my way or the highway,” “all or nothing,” and “in or out.”

    Back in the day when I worked for the State Department every summer embassies abroad had to ask for funding for summer hires to help us catch up on clerical work. There was only so much money around and not everyone could get all they wanted. At first I did what was standard, ask for ten people knowing I only needed five, with all sorts of silly justifications I had to eventually walk back. One year I played it different. I wrote in detail what five people would do, what would not get done with only four, and why six would be a waste of personnel. That year and the ones that followed were the easiest ever; Washington and I jumped right to the meat of the problem and nobody was forced to belittle the other on the road to negotiating a compromise.

    That’s what did not happen recently in overturning Roe v. Wade. Though Roe was poor jurisprudence and Constitutionally hilarious, it was the product of negotiation. First trimester abortions were basically allowed, second term were generally allowed, and third was more or less up to the states.  Roe produced a workable solution to a very complex problem, uniquely American as it combined religious, moral, and Red and Blue thought into what was often falsely presented as a binary decision — abortion was legal or not. The compromises in Roe were far from perfect or widely accepted, simply the output of a beleaguered Court willing to talk about something the rest of America would not.

    The problem was Roe’s supporters and opponents almost from day one set about trying to take a compromise solution and make it an absolute. States latched on to their freedom to dictate third semester rules by gleefully promoting gory end term abortions where a viable baby was aborted. There can be good medical reasons to consider this, but the issue was not presented that way, it was “a woman’s right.” Same on the other side. Clever legal tricks were deployed so that, sure, you can get a first trimester abortion, only not where clinic regulations and hospital affiliations were manipulated to make it near impossible to meet the standards. As was intended. No one was going to sit back and allow compromise to stand.

    The Court itself is not immune; in combination with the gutting of Roe (another all or nothing type decision) Judge Clarence Thomas opened the door to ending Federal law allowing for same sex marriage. If you can’t have all the rights you should have none of them he seems to be saying to the Left. Specifically, Thomas was threatening Griswold v. Connecticut, a 1965 decision that declared married couples had a right to contraception; Lawrence v. Texas, a 2003 case invalidating sodomy laws and making same-sex sexual activity legal across the country; and Obergefell v. Hodges, the 2015 case establishing the right of gay couples to marry. How again are those directly related to the hyper-complex issue of abortion?

    More importantly, has anything changed in society that requires a new look, something gone amiss? No, the only thing that has changed is a different side now holds a majority on the Court and wants to run with it. They have no more interest in compromise than the demonstrators massing around Justices’ homes in hopes of harassing them into compliance with the mob, or AOC on TV screaming people are going to die.

    Same for gun control, the other recent Supreme Court decision. In New York State Rifle v. Bruen, the Supreme Court again swung widely. The existing law, basically saying the right to bear arms in the 2A did not automatically mean a right to openly carry arms in public, had been misused by anti-gun states. In Hawaii, for example, every single open carry permit had to be approved personally by the chief of police. Multiple chiefs over a period of recent years found no reason to approve even a single permit and in the past 22 years there have been four open carry permits issued in Hawaii; all or nothing, as if somehow not one applicant in recent memory was capable of safely openly carrying a weapon. So the response from the now-conservative Supreme Court was to do away with provisions governing carrying a weapon. The counter-response from those states who are anti-gun, such as Hawaii, is to promise to jerry-rig their laws with outrageous training requirements or exorbitant fees to somehow get around the Court’s perceived free-for-all, and to cite recent mass shootings (which had nothing to do with handguns or open carry laws) as fear-inducing excuses. Nobody sees any of the middle ground of reality.

    And that is why the Supreme Court’s rulings on abortion and gun carry law resolve nothing. In the extreme progressives will simply wait it out until it is 1973 again, and the Court will have turned over to a more liberal group of jurists who will reinstate black to replace white or vice-versa. The real answer on abortion, a rough and robust debate in Congress followed by a set of compromises, or an equally rough and robust debate at the state level, will never come. Americans are not very good at negotiating and so usually pay more at the car dealer than they should. The same problems plagues us on much more serious issues regarding abortion and the Second Amendment and that ends up costing us a lot more.

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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Democracy, Post-Constitution America, Uncategorized

    Five Important Things About the Abortion Decision

    July 6, 2022 // 6 Comments »

    — Abortion rights are guaranteed by the Constitution.

    In 1973 the Supreme Court handed down a judicially creative interpretation of the 14th Amendment to the Constitution in the case Roe v. Wade to claim abortion was like other privacy-based rights (such as the right to contraception, right to same-sex marriage, right to adult sexual acts with consenting partner, and right to interracial marriage); that is, unenumerated rights, rights inherent in the Constitution but not listed by name like the right to free speech and the right to bear arms.

    — So that’s it. The current decision is illegitimate. Abortion is constitutional!

    The Supreme Court in its decisions creates precedents, meaning judgement they’re supposed to follow in the future. That’s the doctrine of stare decisis. But the Court is also allowed to revisit itself and overturn what it felt was a bad decision. Some of these are famous, for example, Plessy v. Ferguson, which said separate but equal was the law of the land, leading to black kids going to one school and white kids going to another supposedly equal school. Plessy held stare decisis for nearly 60 years, until the case of Brown v. Board of Education in 1953 overturned it. Like Roe, society was structured around Plessy and decisions were made keeping with it, until it was no longer the law of the land. Today almost everyone sees Plessy as something that discriminated against blacks, but that does not change the principle, just how we feel. Bottom line: respect for precedent does not preclude the Supreme Court from overturning its past rulings, even if that means big changes like societal desegregation.

    — I’m still stuck on how the 14th Amendment could say something to one group of justices, but not to another group of justices.

    Because the Constitution was written mostly in the 18th century, a lot could not be anticipated by the Founders. So the Supreme Court exists to interpret the meaning as one of its jobs. The 14A was ratified in 1868 and extended civil and legal rights to everyone, specifically formerly enslaved blacks, granted citizenship to all persons born or naturalized in the United States, ensured rights to those in states where discriminatory laws were in place, and said the right to due process of law and equal protection of the law applied at both the federal and state levels of government. The 14A says “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

    The Court found in 1965 in that text the right to privacy, specifically the right of married couples to get contraceptive advice from their doctor. The Court said that even though the Constitution did not explicitly lay out a right to privacy, “We deal with a right of privacy older than the Bill of Rights, older than our political parties, older than our school system,” so it there without needing to be written out like with free speech or bearing arms. This is where the 2022 Dobbs decision draws its line “the inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions.”

    Then in 1973 amid a national debate over abortion, the Court found a woman’s right to an abortion was implicit in the right to privacy. At the same time it also acknowledged the state’s interest in protecting the “potential of human life” and so Roe’s trimester-based system for abortion restriction was created. As with same-sex marriage, since the right was in the Constitution, America needed a Federal-level decision on how that would be broadly carried out, with a compromise of leaving room for states’ interpretation.

    In 1992, the trimester system was reviewed in Planned Parenthood v. Casey. The justices reaffirmed a woman’s right to abortion but gave states more leeway in regulating it as long as the states did not create an “undue burden.” For example, some states legally implemented a 72-hour waiting period and mandatory counseling

    In 2022 Dobbs v. Jackson the Court changed its mind. It said abortion was not a Constitutional right, and thus the Constitution does not prevent state legislatures from banning abortion. Since abortion is not a Constitutional issue, they concluded, and because the issue is contentious, it requires states’ debate and create their own laws.

    — So can’t the Court now go back and do away with our rights to contraception, same-sex marriage, interracial marriage, deciding variously that those are not unenumerated rights?

    Technically yes, in reality hardly likely. While Justice Thomas wrote separately that other “substantive precedents” decided by the Court should be re-examined, no other justice agreed. More importantly, Justice Alito, who wrote the 2022 opinion, specifically cited those rights and said the instant decision had nothing to do with them. Among other reasons, abortion stands alone in that the government has an interest in protecting the “potential of human life.” And even Justice Thomas did not place interracial marriage (Loving v. Virginia) on the chopping block, even though it has many of the same judicial roots as the other unenumerated rights. Justice Alito wrote plainly “None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion. They are therefore inapposite. They do not support the right to obtain an abortion, and by the same token, our conclusion that the Constitution does not confer such a right does not undermine them in any way.” That would make citing Dobbs as precedent to overturn say same-sex marriage nearly impossible.

    — So blah-blah, bottom line is the Supreme Court says women cannot have abortions.

    The Court did not make abortion illegal. Instead, the Court said abortion (already regulated by Roe’s trimester system) would instead be regulated by each state individually. This is to acknowledge the lack of consensus in America on what is morally right. Seven states, for example, have no plans to change their laws and allow for up to third trimester abortions, among the most liberal globally. These include populous states like California and New York with huge metro areas, so that a majority of women will live in states where surgical abortion is accessible (the majority of abortions even pre-Dobbs took place in Blue states.) Other states, such as Mississippi, which pre-Dobbs had only one abortion clinic, have made the procedure illegal though at little overall change. Some 13 states will make abortion illegal, and the change to women in those areas who cannot travel may be more significant. The point is for each state to consider what is right for itself.

    Potential harm to women will be mitigated by “abortion pills,” which did not exist in 1973 and will help eliminate so-called coat hanger abortions (there is no case in America of a woman being prosecuted for seeking an abortion since 1922.) Even before the recent decision, over 42 percent of abortions were “medical abortions,” by pill. While there is no way to downplay the significance of Dobbs, it does not create a black or white landscape for reproductive rights its critics try and paint.

     

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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Democracy, Post-Constitution America, Uncategorized

    Social Media Legally Falls Under the First Amendment; Here’s How

    January 18, 2019 // 14 Comments »


     
    A court just came close to acknowledging the First Amendment applies to social media. But there is still a lot of ground to cover to protect our free speech rights online.
     
    In Davison v Randall, a local government official blocked a constituent from an “official” Facebook page. The court held this to be viewpoint discrimination, a 1A violation in a long-recognized category of unconstitutional speech restraint. Advocates like the ACLU and Knight Institute supported the case to bolster the argument Trump cannot block people on his Twitter feed; lower courts have agreed it is unconstitutional under the 1A for Trump to silence his critics this way. The Department of Justice is appealing, and the ACLU is happy to build precedent with smaller cases like Davison v Randall, as the Trump case almost certainly will wind its way to the Supreme Court.

    The ACLU is likely to continue to prevail against Trump. The problem is while narrowly focusing on an individual politician’s responsibility not to block users with unpopular opinions, the courts continue to allow Facebook, et al, to do exactly the same thing on a much larger scale.
     
    In the age of Trump, social media companies’ suspensions skew against conservative and libertarian commentators (I am permanently banned from Twitter) but Facebook could just as easily block all Sanders supporters, or anyone left handed for that matter. Despite this, and driven in part by the ACLU’s apparent desire to only disadvantage Trump and not enlarge 1A protections in ways that might empower his critics, the broader issues are being bypassed in favor of a narrower one.

    The struggle to grow the 1A to cover social media has a history of piecemeal progress. One victory confirmed the status of social media, when the Supreme Court struck down a law making it a crime for registered sex offenders to use Facebook. Justice Kennedy wrote in Packingham v North Carolina social media is now part of “the modern public square.” Denying access violated the First Amendment.

    But the decision made clear unconstitutional denial still has to come from the government. Facebook and others may deny those speech rights any time they want. The argument only the government is covered by the 1A seems to have reached its limit with technology that so grossly delineates whose literal finger clicks the mouse when the results and implications for free speech in our society are exactly the same.

    Technology and market dominance complicate the 1A environment by giving greater power to a handful of global companies (currently all American but imagine the successor to Twitter based in Hong Kong with Chinese censors at the helm) even as the law seeks to crave the simplicity of the 19th century. That way of thinking requires willful ignorance that Facebook would never act as a proxy for the government, unconstitutionally barring viewpoints on behalf of a politician who would not be allowed to do it themselves.

    Except it already happened. Following a hazy intelligence community assessment accusing the Russians of influencing the 2016 presidential election, Twitter and Facebook punished Russian media RT and Sputnik by banning their advertising in line with the government’s position the two did not deserve the protections of the 1A. Senator Chris Murphy got it. He demanded social media censor more aggressively for the “survival of our democracy,” with companies acting as proxies for those still held back by the First Amendment.
     
    It may even seem to some a valid argument in the realm of social media. But when the same proxy idea appears in the flesh, the underpinning seems less acceptable. It is easy to see how the government using federal law enforcement to bar entry to opposition supporters at a town hall meeting held at some theater is unconstitutional. It is equally easy to see the president’s best friend hiring private security guards to do exactly the same thing would not pass a court challenge, yet that is basically what is currently allowed online.

    The sub-argument the theater is private property and thus outside the 1A (just like Twitter!) does not hold up. The Supreme Court recognizes two categories of public fora: traditional and limited public forums. Traditional public forums are places like streets, sidewalks, and parks. Limited public forums are not traditionally public, but ones the government has purposefully opened to some segment of the public for “expressive activity.” Like that town hall meeting held in a private theater.

    By inviting the public to Facebook for comment, the government transforms a private place into a limited public forum covered by the 1A. The Court only requires a “forum” for 1A purposes “to be private property dedicated to public use” or when the government “retains substantial control over the private property.” Like how the government cannot censor public library books even if the library is located in a private storefront. Like a Facebook page set up and administered by the government.

    The most analogous example of how shallow the debate is comes from a technology of the 1980s, one originally expected to change the nature of debate: public access television. Before the Internet, it was envisioned privately-owned cable TV companies would make air time available to the public as “the video equivalent of the speaker’s soapbox.” Even though the channel and equipment used to produce the programming was privately owned, the programming fell under the 1A. The Court concluded “public access channels constituted a public forum, notwithstanding that they were operated by a private company,” the dead solid perfect equivalent of social media.

    The faux public-private argument is being double-plus used as a work-around to prohibit disagreeable speech, say by labeling a conservative viewpoint as hate speech and letting @jack banish it. Millennials who celebrate Twitter not being held back by the 1A believe that power will always be used in their favor. But back to the law, which sees further than the millennial obsession with Trump. In City of Lakewood v Plain Dealer the Court held all that power was itself a 1A problem: “The mere existence of the licensor’s unfettered discretion, coupled with the power of prior restraint, intimidates parties into censoring their own speech, even if the discretion and power are never actually abused.”

    The once-upon-a-time solution was to take one’s free speech business elsewhere. The 2019 problem is the scale of the most popular social media platforms, near global monopolies all. Pretending Facebook, which claims it influences elections, is just another company is to pretend the role of unfettered debate in a free society is outdated. Technology changed the nature of censorship so free speech is as much about finding an audience as it is about having some place to speak. In 1776 you went to the town square. In 2019 that’s on popular social media. Your unknown blog is as free, and irrelevant, as a Colonist making an impassioned speech alone in his barn.
     
    Asking for the 1A to reach now to social media is in line with the flexibility and expansion the 1A has shown historically. For example, it wasn’t until the post-Civil War incorporation doctrine that the 1A applied equally to the states and not just the federal government. Some private institutions accepting federal funding are already covered by the 1A. The Supreme Court has regularly extended 1A protection to new and non-traditional speech, including nudity and advertising.

    Facebook and others like it have become the censors the Founding Fathers feared. The problem is the ACLU and other advocates today apply political litmus tests to what speech they will defend. And so they aggressively seek to force the 1A into social media to prevent Trump from blocking users he dislikes, but they have not taken on cases which would force the 1A into social media to prevent Facebook and Twitter from blocking users whose conservative and libertarian ideas upset their own viewpoints.

    The greater First Amendment challenge is thus stymied by politics, even while the problem only grows with the greater impact of social media. Yet the cornerstone of free speech, the critical need to have all views represented in a marketplace of ideas, has not changed. One hopes these core elements of our democracy will collide inside the Supreme Court in the near future. If not, the dangers of narrow, short term thinking, that Trump is the problem, not the one of access to free speech, will become more obvious.
     

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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Democracy, Post-Constitution America, Uncategorized