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Proposition 8 at the Supreme Court-Marriage Equality-Part I

March 27, 2013

Proposition 8 at the Supreme Court-Marriage Equality -Part I

 

By R Tamara de Silva

March 27, 2013

 

       The Supreme Court has not delved into marriage lightly, tending to defer to state governments.  While marriage is one of the most democratic and universal states shared across almost all cultures, socio-economic strata, ethnicities and religions, it remains withheld to one group in America.  In the United States, marriage is a legal contract that confers specific treatment in tax, probate and property law. This week, the United States Supreme Court begins to consider the constitutionality of marriage between people of the same gender.  The first topic on marriage equality to be covered this week is Proposition 8 followed by the Defense of Marriage Act ("DOMA") on Wednesday.  The Court may potentially decide whether one specific group of people can be treated differently when it comes to one right.  Perhaps it may even consider whether marriage is an unenumerated right.  Alternatively, the Court may defer the issue and rule on narrow grounds of the standing -that the Petitioners cannot bring their defense of Proposition 8 to the Court.     Yesterday, the highest Court heard oral arguments on California's ban on same sex marriages called Proposition 8 in the case of Hollingsworth v. Perry.[1]

       Gay marriage is more polarizing than any other of the other social issues that divide the political right and left except abortion.  In Hollingsworth v. Perry, the Court considers whether California's Proposition 8, which prohibits marriage between people of the same sex or gender, violates the United States Constitution and whether the advocates of Proposition 8 have legal standing to speak on the matter.  

       Prior to November 8, 2008 when Proposition became law by amending the Constitution of the State of California to eliminate the right to same-sex couples to marry, same sex marriage was, albeit briefly, legal in California.  The District Court struck down Proposition 8 finding that it violated the Fourteenth Amendment's Equal Protection Clause because there was no rational basis for the state to deny the status of marriage to same-sex couples and also because Proposition 8 violated the Due Process Clause in that California had no compelling interest in denying the right of marriage to same-sex couples.

       States can legally enact laws, which treat different people differently, under the Fourteenth Amendment so long as there is a legitimate governmental interest or a rational interest for their doing so.   This is not a particularly high standard to meet.  However, when the government enacts measures to treat people differently based upon differences between them like, their race, the courts have applied a higher standard of scrutiny upon the laws, one which is called "heightened scrutiny," this is more than having to merely show a rational interest.  It is unclear under which standard the Court will scrutinize Proposition 8, which is clearly discriminatory to same-sex couples, based upon their being same-sex couples.

       Proposition 8 allows same-sex couples to do pretty much everything the status of being married in California confers such as; raising children together, constructive parentage, being able to adopt each other's children, becoming foster parents, filing joint state taxes, enjoying group health plans, having rights to hospital visitation, making medical decisions, being able to sue for wrongful death, and being conservator on their same-sex partner's estate.  Same sex couples in California can do everything married couples can do under Proposition 8, except be given the title of "married."

       Proponents of Proposition 8 argued that its purposes were to advance California's interest in responsible procreation and childrearing.  They argued that this interest justified giving same-sex couples all the activities and interests of married couples, save for the title and stature of marriage. 

       The Court of Appeals did not rule over whether the goals and rationale for Proposition 8 were legitimate state interests that though discriminatory, survived an analysis of the Fourteenth Amendment because it pointed out that Proposition 8 did not remove all the childrearing rights of same-sex couples that existed prior to its enactment.  The Court of Appeals upheld the District Court's ruling but in an extremely narrow manner-without addressing the rationale for discrimination under Proposition 8.  They did use some interesting language in the background referring back to previous laws against marriage which were struck down,

 

If tradition alone is insufficient to justify maintaining a prohibition with a discriminatory effect, then it is necessarily insufficient to justify changing the law to revert to a previous state. A preference for the way things were before same-sex couples were allowed to marry, without any identifiable good that a return to the past would produce, amounts to an impermissible preference against same-sex couples themselves, as well as their families.[2]

 

 

       The Court of Appeals was referring to the last time the Supreme Court looked at a comparably important and discriminatory law against marriage- almost 46 years ago in Loving v. Virginia.  In the Loving v. Virginia, 388 U.S.1 (1967)., the Supreme Court struck down Virginia's anti-miscegenation law which prohibited inter-racial marriage for the sake of protecting racial purity and preserving segregation.  The trial judge in the Loving case had a simple rationale that invoked God,

 

Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.

 

 

       Whether discrimination based on sexual orientation is on a par with discrimination based on race is deeply contested among the American people.  In an extraordinary move, the United States Justice Department has taken a stand in this question and this case, by filing an amicus brief with the Court on February 28, 2013.[3]  

            I have heard both proponents and opponents of same-sex marriage cite the decidedly higher authority, as in Loving.  For example, Cardinal Dolan and many others, who oppose legalizing same-sex marriage cite the unquestionable authority,

 

"Our country's founding principles speak of rights given by God, not invented by government, and certain noble values - life, home, family, marriage, children, faith - that are protected, not re-defined, by a state presuming omnipotence.

 

Please, not here!  We cherish true freedom, not as the license to do whatever we want, but the liberty to do what we ought; we acknowledge that not every desire, urge, want, or chic cause is automatically a "right."  And, what about other rights, like that of a child to be raised in a family with a mom and a dad?

 

Our beliefs should not be viewed as discrimination against homosexual people.  The Church affirms the basic human rights of gay men and women, and the state has rightly changed many laws to offer these men and women hospital visitation rights, bereavement leave, death benefits, insurance benefits, and the like.  This is not about denying rights. It is about upholding a truth about the human condition.  Marriage is not simply a mechanism for delivering benefits:  It is the union of a man and a woman in a loving, permanent, life-giving union to pro-create children.  Please don't vote to change that.  If you do, you are claiming the power to change what is not into what is, simply because you say so.  This is false, it is wrong, and it defies logic and common sense.

 

Yes, I admit, I come at this as a believer, who, along with other citizens of a diversity of creeds believe that God, not Albany, has settled the definition of marriage a long time ago."[4]

 

 

       There are legal weaknesses with Cardinal Dolan's position, or any religious one for that matter- the principal one being that the Church's position on marriage lacks relevance on the laws of the United States or its Constitution.  The Courts and the Legislature are sovereign from the theological realm because America is not like Iran, or other countries, a theocracy. 

       When political groups speak of religion and the Christian roots of America as evidenced by reference to God in the Declaration of Independence for example, they tend almost never to also refer to the suspicion of any established religion by the state that was so deeply held by the Founding Fathers.  For example, the historical and cultural anti-Catholicism of many of the Founding Fathers, whether carried over from the Church of England or not, was profound and pervasive.  Yet what was agreed ab initio about America was that it must never be allowed to be a theocracy where anyone's religious freedom would be curtailed by the joining of the state and a church.

       Speaking of looking back, an interesting exchange took place between the Court's originalist jurist, Justice Antonin Scalia and the former Republican Solicitor General Ted Olsen,


Scalia: "When did it become unconstitutional to exclude homosexual couples from marriage?"   "1791? 1868, when the 14th Amendment was adopted?"

Olsen: "When did it become unconstitutional to prohibit interracial marriage?" Olson asked. "When did it become unconstitutional to assign children to separate schools?"  [Referring to Loving v. Virginia and Brown v. Board of Education].

Scalia: "At the time that the equal protection clause was adopted," he said, before adding, "but don't give me a question to my question."

Olsen: "You've never required that before."

 

Advantage Ted Olsen.

       From an historical perspective, marriage has been a secular institution; longer than it has been a religious one-with state recognition of marriage going back to Roman times and in other parts of the world preceding the Roman Empire.  The early church in Roman times did not have a marriage rite.  In fact in much of the ancient world, marriage was to secure social and political alliances and for economic purposes as much as for procreation.  In England, until 1753 and the Marriage Act of Lord Hardwicke became law, the Church of England permitted what we would consider very irregular marriages (where one of the parties was a child, one of the parties was already married, or the parents did not know) so long as they were performed by an ordained clergyman of the Church of England.  Your idea of "traditional marriage" may depend quite a bit on the length of your historical memory.

       The Supreme Court hears oral arguments on DOMA latter this morning.  Stay tuned for what may be the most interesting and important ruling of the high court in a very long time.@

R. Tamara de Silva



[2] Perry v. Brown, 671 F.3d 1052, 1101 (9th Cir. 2012)

[4] http://blog.archny.org/index.php/the-true-meaning-of-marriage/

The President as Executioner

March 6, 2013

The President As Executioner; the Unconstitutionality of Targeted Killings of Americans on American Soil

By R. Tamara de Silva

March 6, 2013

 

       In the 2004 decision of Hamdi v. Rumsfeld, the Supreme Court of the United States reminded President George W. Bush's administration that, "we are heirs to a tradition given voice over 800 years ago" by the signing of the Magna Carta and the idea insisted upon by the barons to their king, that his power and that of any subsequent executive would be confined to the rule of the law.  America was founded on this one idea above any other-that we are a country ruled by law as opposed to the historical alternative we had determined to get away from-the rule of men, unanswerable to law and capable of wielding power that would never be unchecked and therefore in its application, absolute.  So it was that American began-in a deeply held commitment to avoid tyranny.  A fair part of this stubborn legacy was set aside yesterday by Attorney General Eric Holder in a letter, which was released in answer to Senator Rand Paul's questions about the Administration's nominee for director of the Central Intelligence Agency, John Brennan.[1]  Mr. Holder's letter dated March 4, 2005 stated that while very unlikely, the President, after conferring with him, could kill an American citizen by drone even within the United States if he thought he must.  

       Mr. Holder's letter clarifies the White House's position on the extra-judicial killing of Americans contained in what has come to be called, the Drone Memo.   I have written more extensively about what the Drone Memo means here.  The import of the Drone Memo is that a high ranking official of the Executive Branch can now kill an American if he deems that American a "continuing threat to the country."  No actual evidence prior to killing is deemed necessary by the Drone Memo.  In fact, there need not be an imminent threat to the United States nor even, "clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future."[2]

       What Mr. Holder's letter states is that it is within the sole power of the President to kill Americans on American soil, without providing them a trial, a jury, any due process, notice, or their death justified by the existence of any concrete and articulated standard.  

       This is unconstitutional for many reasons, foremost among which is that the Fourth and Fifth Amendments exist... the seeming unwillingness of Congress to exercise its Constitutionally mandated duty to serve as check on the Executive and prevent Executive overreach, especially when it comes to matters as monumental as taking American lives, is another matter entirely.  The Drone Memo makes it clear that the Executive Branch does not need to have clear evidence of an imminent threat or any evidence of imminent harm to make a targeted killing of an American-this plainly violates the Fourth Amendment's guarantee of protection against unreasonable searches and seizures.  The Fifth Amendment grants upon all Americans the right not to be deprived of life or liberty without due process of law.  No notice of warning is given to an American before they can be killed according to the Drone Memo-again violating the Fifth Amendment's due process clause. 

       Article I, Section 9, Clause 3 of the United States Constitution also prohibits the federal government from passing bills of attainder-this is alternately termed the Bill of Attainder clause.  This was put into the Constitution to prevent the federal government, as had been the practice in common law, from passing a law or act stating that a certain person would be executed because they were deemed by their government to have committed treason.  The founding fathers wanted to ensure that in America, there would never be the equivalent of the English Law of Treason whereby the state or a tyrannous legislature would dispose of a dissenter or critic by declaring them an enemy of the sovereign-without trial or hearing.   There are only two civil liberties that are protected in the Constitution against infringement by the federal government and the state governments, liberty against ex post facto laws and bills of attainder. 

       The United States Supreme Court has viewed the Bill of Attainder clause as an important separation of powers issue-one that prohibits legislative acts that affect the life or property of an American and call for punishment without a judicial trial.[3] James Madison in Federalist No. 44 wrote that, "Bills of attainder, ex post facto laws and laws impairing the obligation of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation."

 

Concocting Executive due process

       Attorney General Eric Holder had set the stage for making an end run around the Constitution last year when he invented, absent even the most gossamer thread of Constitutional authority, something called "Executive Due Process."  On March 5, 2012, he delivered a speech at Northwestern University Law School where he declared that the Constitution's guarantee of due process does not necessarily mean judicial due process (actually it does)-that it now can mean something called Executive due process.  Mr. Holder said that for a President to now deprive an American of life or liberty, that American did not first have to be provided with due process of law, the President just had to check with his Attorney General first.  That checking, according to Mr. Holder, constitutes due process.   

       Unchecked power allows for abuse and in its worst iteration, tyranny.  Getting away from unchecked Executive power was to a large extent, the impetus behind the American experiment. Mr. Holder would have the few bulwarks against pernicious law enforcement and illegal prosecution like trial by law, a jury, the right to counsel, the right to confront witnesses against you all supplanted by two men conferring about another, with no check on whether either of them could be in error or have any reason to be less than objective in deciding whether an American will be killed.  Mr. Holder's reassurances about the use of targeted killings through Executive due process are well intentioned and reassuring but they are not checks and balances against the potential misuse of an extraordinarily terrifying power. 

       Under the Constitution, no authority has ever been given to the Executive Branch to kill an American without due process of law, unchecked, unquestioned and unanswerable to any other branch of government.   Our system of government was intended to be established so that we would never find ourselves having to rely on the good nature of one or two men.  We are heirs to the Magna Carta because we instituted a government of checks and balances designed to guard against overreach by any one branch of government and to preserve the rule of law-not blind faith in a handful of men.  Our system of government was established on far more substantial foundations.  The ability to authorize targeted killings unchecked by any independent overseer, invites an abuse that is counter to our way of government-it is quintessentially, un-American.

 

Authorization for Use of Military Force

       What is the source of the President's newly stated authority to kill Americans? Congress passed the Authorization for Use of Military Force against Terrorists ("AUMF") in the wake of 9-11.  The AUMF has been invoked as the source of authority for the President to use targeted killings in other nations.  Pursuant to the AUMF, the President is authorized to use "all necessary and proper force" against those "he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001."[4]  What is unclear is how this act provides the President authority to kill Americans suspected of terrorism who have nothing to do with 9-11--a premise of the act itself that circumscribes its application?

       This becomes a critical question because the government's definition of "associated forces" has never been defined.   What is worse, we invite the very possibility for abuse, which the Constitution's Bill of Attainder clause was designed to prevent--a shifting definition of terrorism.   This does not seem an impossible scenario if you consider a study funded by the Department of Homeland Security entitled, "Hot Spots of Terrorism and Other Crimes in the United States, 1970-2008," which found that terrorists were people, "reverent of individual liberty...suspicious of centralized federal authority or anti-government."[5]  This definition would include so many engaging people I know and respect specifically for their outspoken views on politics and their government.

 

Commander-in-Chief

       Article II Section II of the Constitution names the President as Commander-in-Chief of the armed forces.  This section vests the Office of the President with powers over the military that are to be shared with Congress-the degree of sharing has historically varied with Congress latterly taking a turn for the lackadaisical.  In the case of Al-Aulaqi v. Panetta, civil rights groups including the ACLU, filed suit against the government for the killings of United States citizens Al-Aulaqi, Samir Khan and the 16-year-old Abdulrahman Al-Aulaqi who were killed under President Obama's program of targeted killings in Yemen.[6]  In their briefings, the government stated that its authority to kill Americans abroad stemmed from the AUMF and more broadly, the President's war powers under Article II Section II.

       In their analysis, the government pointed out that the Supreme Court has permitted the use of lethal force in domestic law enforcement settings where a suspect poses a serious threat of physical injury to police officers.   The problems with using the law enforcement model for killings by drone in Yemen are numerous but I do not have to cover them because in the Drone Memo released on February 5, 2013, the Department of Justice stated that it found the President able to kill Americans even if there was no imminent threat of harm posed to the United States or evidence of a prospective harm.

       Why not simply send the Judiciary packing now?  Admittedly their inscrutability, when at times so much seems to rest on them-is likely irksome.  According to Mr. Holder that other branch does not have a say in the matter of targeted killings anyhow.  But before you toss your copy of the Constitution with the debris of the spring's cleaning, take heart-  I doubt these newfound and self-granted extra-Constitutional powers will survive judicial review.  And last I checked, no executive order had been directed at Marbury v. Madison.

       The Supreme Court made it clear to the Bush administration in Hamdi v. Rumsfeld that the War on Terror did not give the Executive Branch a blank check to violate the separation of powers doctrine or due process, "We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens."[7]   It is simply not as simple as Mr. Holder's letter or memo would suggest.@

R. Tamara de Silva

March 6, 2013



[3] See Fletcher v. Peck (1810), United States v. Brown (1965) and Marbury v. Madison (1803)

[4] Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001) (codified at 50 U.S.C. § 1541 note (2006))

[5] http://start.umd.edu/start/publications/research_briefs/LaFree_Bersani_HotSpotsOfUSTerrorism.pdf

[6] http://www.aclu.org/files/assets/tk_complaint_to_file.pdf

[7] Hamdi v. Rumsfeld, 542 U.S. 507, 5

UPDATE:

Senator Rand Paul holds a filibuster against John Brennan on Senate floor.  While he will not ultimately prevail, he remains committed to principle that the Constitution prohibits the President from assassinating Americans on American soil without any due process of law.

Sen. Paul speaking on Senate floor


What the Department of Justice's Drone Memo Means

February 7, 2013

 

What the Drone Memo Means

By R. Tamara de Silva

February 7, 2013

 

[W]e are heirs to a tradition given voice 800 years ago by Magna Carta, which, on the barons' insistence, confined executive power by "the law of the land."  Justice Souter and Justice Ginsburg, Hamdi v. Rumsfeld 542 U.S. 507 (2004)

 

       On February 5, 2013, a Department of Justice memo ("Drone Memo") was released to NBC justifying the President's killing of Americans by lethal force, such as by drones.[1]  The targeted killing of Americans as justified in this memo gives the Executive Branch a power over American lives that is at once unprecedented and terrifying in scope.   The idea of a government unilaterally assassinating its citizenry is fundamentally at war with America's Constitutional legacy, which was established with separate and equal branches of power specifically to limit the possibility of an abuse of government power or outright tyranny.  The issues presented in the memo have Constitutional implications that cease due process rights based upon what may be unsubstantiated accusations and go against traditions of justice dating back to the Magna Carta.  Americans need to understand what is at stake.  The Drone Memo justifies the assassination of Americans by the Executive Branch based on the equating of terror (a term and concept that is not defined in the memo) with war and making Americans into enemy combatants without any due process of legal proceedings for actions and associations that are similarly ill-defined.  This memo does outline an enlargement of Executive power over due process that is without historical precedent in American history.  It bears note, that the Drone Memo asserts for the first time in American history, the power of a President to assassinate Americans, unchecked and unanswerable to anyone, including the Judiciary and the Legislature.

       The legitimacy of a government that would kill its citizenry has been portrayed and accepted by many Americans as merely a political issue the idea being-if our guy is doing it, we must stand by him because after all he's not the other party's guy.  After all, the same people who once complained bitterly about renditions and enhanced interrogation techniques have no objection to mass killings by unmaned drones-with civilian and child casualties in the hundreds.  But this is not a political issue and looking at it in simplistic tribal terms will prevent the public from understanding its import to them.  It may be an unwritten rule to fall in line behind your party's line, but this is one instance worthy of exception.  According to a senior legal official in President George W. Bush's administration, no other President of any political stripe has ever before authorized the targeted killing of Americans.[2]  The import of this memo, on the heels of the Patriot Act, and the NDAA's striving for a permanent suspension of habeas corpus, among other recent laws, is nothing less than the crossing of a legal Rubicon that would now permanently allow for the suspension of the due process of law.  At a minimum, this memo strips Americans of the protections of Fifth Amendment and in so doing, alters what it means to be an American.  This administration's authorization to use deadly force upon Americans without any legal safeguard of due process has a legal and moral significance that is difficult to comprehend or quite honestly, believe.

       Never before have an American president and his Attorney General openly stated that the Executive Branch can bypass Due Process of law to kill an American-if they (solely at their discretion), think they have a good enough reason because they have invented something called, "Executive Due Process."  It is the Executive Branch, boldly asserting an absolute power to suspend a significant portion of the Bill or Rights, unchecked by any other branch of government and unfettered in the scope or protocols used in the exercise of this new power.

       It is not as I write this that I do not understand first principles.  A nation must exist before it can provide its citizens any rights, liberties or anything.  A nation must also be allowed broad latitude to protect its citizens.  Security was a large part of the bargain described by Hobbes for leaving a state of nature and war to enter into a social contract.  It is the function of the Executive Branch to protect the security of Americans.  Terrorism remains a tremendous threat and after two wars in Iraq and Afghanistan, it would be naïve to think that the sentiments behind terror groups like Al-Qaeda have diminished because of our war on terror-there is evidence to suggest the opposite case. 

       As the late Allan Bloom often remarked, the first principle of any nation state was no different from that of any individual's-it is and must always be, self-preservation.  With this understood, most Americans have accepted an implicit tradeoff and the loss of some civil liberties and privacy for the sake of national security.   However, what the Drone Memo does is give away two entire Amendments and the bedrock of the freedoms that are uniquely American.  It is as if Americans have become so cowered of terrorists after 9/11 that we would as a country surrender the soul of America and its most deeply held values for the promise of a hope of a bit more security.  

        But in giving absolute authority to kill an American to any one man, President, CIA director or intelligence officer, unfettered by the United States Constitution's prohibition of such, we are making America into a country of rule by the men who would wield this power-no longer is it a country of rule by law.  We cannot just rest on knowing we are protected by a Bill of Rights- we now have to hope for the good characters of those we elect because we have surrendered the laws that would have kept their power over our freedom in check.   In America, the protections of the Bill of Rights were never to be handed over to an elected official with whom we were told to just "trust" them.  This is not America- nor is it consistent with the historical point of the American experiment in the first place.

       In fact, the United States Supreme Court in Hamdi v. Rumsfeld ruled that we are not required to "just trust" the government in matters of indefinite detention either.  The Court in Hamdi reiterated the principle that the Executive Branch cannot detain an American citizen without some form of due process.[3]   Hamdi was a United States citizen arrested in Afghanistan and taken into the custody of a military prison in Virginia.  From there he filed a petition for habeas corpus that ended up in the Court, which ruled that Mr. Hamdi did have a right as an American to be heard before an impartial judge.  President George W. Bush's administration had argued that Mr. Hamdi had no rights as an enemy combatant and that it could dispense with Hamdi as they saw fit.

       Ironically, it is the decision in Hamdi on which much of the Drone Memo relies.  This is a spectacle of legal gymnastics whose logic is ephemeral.  The Obama Administration's lawyers try to make the case that Hamdi is distinguishable because he was detained-that it was feasible to detain him.  The Drone Memo asserts a right to kill an American if he cannot feasibly be detained, because he cannot feasibly be detained.  They are wrong.  If the Supreme Court believes an American has the right to appear before an impartial fact-finder before being deprived of his liberty, then that American should at least have that right before being deprived of his life. 

       The Fifth Amendment guarantees on all Americans the right to due process of law before the taking of life or liberty.  The taking of an American's life by the government legally, as common-sensically, demands a higher level of due process than being imprisoned or detained--not less. Does the separation of powers doctrine require federal courts to defer to Executive Branch determinations that an American citizen is an "enemy combatant"?   Not according to the Court in Hamdi,

 

Finally, even if history had spared us the cautionary example of the internments in World War II, even if there had been no Korematsu,  there would be a compelling reason to read §4001(a) to demand manifest authority to detain before detention is authorized. The defining character of American constitutional government is its constant tension between security and liberty, serving both by partial helpings of each. In a government of separated powers, deciding finally on what is a reasonable degree of guaranteed liberty whether in peace or war (or some condition in between) is not well entrusted to the Executive Branch of Government, whose particular responsibility is to maintain security. For reasons of inescapable human nature, the branch of the Government asked to counter a serious threat is not the branch on which to rest the Nation's entire reliance in striking the balance between the will to win and the cost in liberty on the way to victory; the responsibility for security will naturally amplify the claim that security legitimately raises. A reasonable balance is more likely to be reached on the judgment of a different branch, just as Madison said in remarking that "the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other-that the private interest of every individual may be a sentinel over the public rights." Hence the need for an assessment by Congress before citizens are subject to lockup, and likewise the need for a clearly expressed congressional resolution of the competing claims.[4]

 

 

       Societies have normative values and also ones that are pre-textual--designed to mask far baser values.  Historically, one nation that has effectively used the pretext of danger to the state to imprison all who would criticize it is the Soviet Union.  All societies have normative values and at times some of them are pretextual-designed to mask much baser values.  Security was a value with which the Soviet system used to hide the interests of its leaders from Nikita Khrushchev to Vladimir Putin.  A pretextual interest in security is used to control not only an entire population but also its public opinion.  Vladimir Putin has his own record of repressive psychiatry and the imprisonment of anyone whose only crime appears to be the insult of his vanity.

       America was established to guard against the assertion of pretextual values on the people by any one branch of government.  The American system of government has several ingenuous structural safeguards such as having three branches of government where each is in theory at least powerful enough to keep the other in check.  In writing down what rights a people had and suggesting the existence of many others, unenumerated like the right to privacy or to travel-America's founders established a system of rule by law and not men.  If for example a tyrant came into power, his power would be curtailed at the boundaries of the rights retained by the people, subject of course to Constitutional amendment, within the Constitution and specifically, the Bill of Rights.  In theory, as long as you could freely associate and assemble and speak, and your life and liberty were still protected by due process of law, there would be very real checks on the harm to be caused by any one elected official with pretextual values.  It is specifically because of our legal system and Constitution that we have, within our own borders, enjoyed being the freest people in the world.  The greatness of America and its attraction to so many immigrants has in large part always been its core values, tracing back to the Magna Carta, of human dignity, freedom of expression and individual liberty.

       America was the birthplace of sedition.  Born out of the fury and ideals of those who were then considered religious kooks, fanatics, terrorists and worse.  Not surprisingly, we became a nation, the envy of the world, where unlike everywhere else, you could say anything and not be locked up as a political prisoner because you have annoyed someone in elected office.  The First Amendment protects your speech and the Fifth Amendment guarantees that your life and liberty cannot be dispensed with just on the whim of someone in power.

       Due process of law is the most American of all civil liberties-it is nothing less in the American law to civil liberty than everything.  It is only because of the Fifth Amendment that you have a presumption of innocence.  Governments mean well and are filled with honorable prosecutors who care deeply about civil liberties.  However, they also make mistakes.  We have jailed people for decades only to find them exonerated by DNA evidence-we have even made erroneous executions.  If the justice system, with all the protections of due process intact can make mistakes, what can one man or two do without any check on their judgment and without affording the alleged target, any due process or notice whatsoever?  Is it possible that the Executive Branch can err in declaring someone an enemy combatant?  Why are its determinations unchecked by any other branch of government, as the Drone Memo would have them be?  Is this not in itself for such an enormous power claimed, so obviously at odds with the principle of a separation of powers? 

       Targeted killings of non-Americans have proven themselves to hit wide of their marks.  CIA Director, John O. Brennan once stated that there were no civilian casualties in drone strikes and then admitted that there were casualties but then stated that they were "exceedingly rare."  Many independent sources confirm over 3,000 militants and civilians have been killed by drones. Drone strikes have killed over 176 children in one country alone and unless this was the Administration's intention, how can it be argued that drone strikes do not make mistakes?  

       The Drone Memo also uses terms like "associated forces" and "imminent threat" that are nowhere defined and capable of shifting interpretation depending on who is using them and to fit what purpose.   What constitutes being an associated force?  Is intention required, or mens rea required or is this a crime that can be stumbled into?  For example, if an American is a social acquaintance of someone who looks at a website that is later considered to offer, "material support" (again a term undefined) by expressing opinions, does that American become an associated force of the offending American?  Are his family also in danger?  If they can be killed without any due process, these questions will never be answered.

       What about the shifting definitions of terrorism?  Is it that difficult to envision the power to kill Americans without due process being abused?  If you think so, then you may not be aware of whom the Department of Homeland Security considers a likely terrorist.

       In a study by the National Consortium for the Study of Terrorism and Responses to Terrorism entitled, "Hot Spots of Terrorism and Other Crimes in the United States, 1970-2008," which was funded by the Department of Homeland Security, terrorists are likely people, "reverent of individual liberty...suspicious of centralized federal authority or anti-government," including people who are extremely liberal or extremely conservative.  What about people who belong to the NRA or are against gun control-at what point do their convictions constitute a resistance that is deemed intolerable to their government?[5] 

       The Drone Memo asserts that questions about definitions like enemy combatants and imminent harm are the exclusive province of the Executive Branch, that they are not legal matters and hence not subject to judicial review of the courts.  The Supreme Court made it abundantly clear in Hamdi that the Executive Branch, despite the exigencies of the War on Terror, did not have a blank supra-Constitutional check, nor did get to violate the separation of powers,

 

In sum, while the full protections that accompany challenges to detentions in other settings may prove unworkable and inappropriate in the enemy-combatant setting, the threats to military operations posed by a basic system of independent review are not so weighty as to trump a citizen's core rights to challenge meaningfully the Government's case and to be heard by an impartial adjudicator.

    In so holding, we necessarily reject the Government's assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances. Indeed, the position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens. Youngstown Sheet & Tube. Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.....

    Because we conclude that due process demands some system for a citizen detainee to refute his classification, the proposed "some evidence" standard is inadequate. Any process in which the Executive's factual assertions go wholly unchallenged or are simply presumed correct without any opportunity for the alleged combatant to demonstrate otherwise falls constitutionally short.....[6] 

 

       The targeted killing of Americans poses an unprecedented threat to due process.   Fortunately, I am convinced the arguments advanced in the Drone Memo would not pass Constitutional muster with the same Supreme Court that ruled in Hamdi.  But it has to get there and if it does not, Congress and the American people must act.  Congress should clarify what this memo means and identify the protocols in which it will be used with enough specificity so that the awesome power it assumes is not abused-and it is at least checked. The argument advanced in the Drone Memo is that the government should be taken at its word that it will be rigorous about identifying terror targets, which are American.  This is not a legally sufficient basis for eliminating due process for American citizens because the Executive Branch is not unbiased and as such it cannot be expected to be an impartial check on itself.  We were established as a nation of laws and not of men.  There is ample historical precedent against trusting any one branch of government or ruler with absolute power to take the lives of its citizenry-by the way, America was established in part to avoid the type of government in which such a power would be exerted unchecked upon its citizenry- remember?@

R. Tamara de Silva

February 7, 2013



[2] http://www.nytimes.com/2010/04/07/world/middleeast/07yemen.html?hp&_r=0

[3] Hamdi v. Rumsfeld, 542 U.S. 507, 521

[4] Id., Justice Souter and Justice Ginsberg opinion

[5] http://start.umd.edu/start/publications/research_briefs/LaFree_Bersani_HotSpotsOfUSTerrorism.pdf

[6] Hamdi v. Rumsfeld, 542 U.S. 507, 52-

Prosecutorial Discretion, Cambyses and Aaron Swartz

January 15, 2013

 

Prosecutorial Discretion, Cambyses and Aaron Swartz

By R Tamara de Silva

January 15, 2013

 

The Optimist thinks this is the best of all worlds.  The pessimist fears it is true

J. Robert Oppenheimer

 

       The prosecutor of the late Aaron Swartz and Sisamnes have something to tell us about the purpose of those who have the awesome task of administering justice. The power of the prosecutor in modern times is absolute and as such unlike in the case of King Cambyses and judge Sisamnes, unchecked when it is abused.   All the more reason to ask at these times, what is the purpose of prosecution?  Is prosecution in all instances moral?  And is prosecution the same as justice?  In answer to the latter, in the case of Aaron Swartz, the answer is resoundingly in the negative.  The prosecution of Aaron Swartz may have followed the letter of the law and fit an omnibus catchall federal charge like wire-fraud, but it makes mincemeat out of Justice.  Aaron Swartz's prosecution also highlights some of the many problems with our criminal justice system.

       One of the more memorable stories in the fifth book of Herodotus' Histories takes place in the sixth century BC and it tells the fate of judge Sisamnes.  The Persian King Cambyses discovered that Sisamnes had diverted justice and rendered a verdict in a case based upon his acceptance of a bribe.  King Cambyses understood the majesty and power of justice and his retribution for Sisamnes' abuse of it is unforgettable in its brutality.  King Cambyses had Sisamnes stripped of his flesh, while alive and used the strips of flesh to upholster the court's judge's chair.  But Cambyses' retribution for the abuse of justice did not end there for he made Sisamnes' son Otanes sit on the grisly judge's chair as he was made the replacement justice with the lesson that he must always remember his father's fate when administering justice.

       There is no King Cambysis to check the power of the Executive Branch's Department of Justice. The criminal law and the office of the prosecutor was originally meant to punish actual wrongdoing that would harm society and in so doing deter conduct, intentionally and severely harmful to civil society- like murder, theft, burglary, treason.  The Executive Branch and its Department of Justice is given wide latitude and immunity to bring about justice.

       Prosecutors have an immense amount of power-nothing less than the full force and power of the federal government and all its resources.  The power of the prosecutor to charge and the power to offer plea bargain sets the course of justice in America.  Most people indicted by federal prosecutors are convicted and most take plea bargains.   But it is not a fair fight, not even if you can afford the best lawyers money can buy because after all, a federal prosecutor has a theoretically unlimited budget.

       Most people who take plea bargains are poor and contrary to what those ignorant of the legal system would more comfortably believe, they are not necessarily guilty.   Prosecutors use varying degrees of coercion and intimidation in the process of plea bargains.  They can threaten to increase the counts in an indictment, demand higher sentences, or as in the Giuliani's prosecution of Michael Milken, intimidate Milken's 92 year old grandmother, threaten to indict your spouse, keep you locked up before trial, and add obstruction of justice if your defense is anything other than continual and literal silence by invocation of the Fifth Amendment.  We have come along way from Torquemada and yet if you look closely enough, not exactly far enough.

       Aaron Swartz took his life on Friday January 11, 2013.  In the fall of 2011, his lawyer had tried to work out a plea bargain with Assistant United States Attorney Stephen Heymann but was told that Swartz would have to plead guilty to all 13 indictments and would also have to do jail time.  On Wednesday January 9, 2013, his lawyer tried again to work out some deal on the eve of trial and as Swartz worried about the costs of his defense and having his friends be made to testify- the prosecutor refused to budge. 

       Unceremoniously on January 14, 2014, the United States Attorney who had brought charges against Swartz (Case: 11-cr-10260), Carmen M. Ortiz, dismissed them citing his death as the reason for her doing so.[1]  Carmen Ortiz had filed a 13 count superceding indictment of Aaron Swartz on September 12, 2012 charging him with wire fraud, computer fraud, theft of information from a computer, recklessly damaging a computer, forfeiture and aiding and abetting.[2] 

       Aaron Swartz accomplished a lot in 26 years and one gets the impression he would have done a great deal more.  He was only 14 when he developed RSS and later co-founded Reddit.  He was a powerful force in the fight to keep the Internet free and free of government censorship.  In 2008, he wrote a program that extracted twenty percent of the court documents (all public records), on the government's PACER system and put them online so that they would be available to the public for free.  His death is a real loss and a sad commentary on overzealous prosecutors who not once considered the importance of their obtaining a win against the value of young Aaron's life and the actual harm he had done. 

       While the indictment appears facially solid, the charges are less so.  The indictment charges theft because it states that Swartz stole, "a major portion of JSTOR's archive of digitized academic journal articles" through MIT's computer network.  Yet, Swartz was a fellow at Harvard's Safra Center for Ethics and in this capacity allowed to access MIT's computer network-at least as a guest.  If he was allowed to access the network as a guest, then the allegation of computer fraud and theft in using the network become vulnerable.  Also, JSTOR had settled with Swartz and did not want any part in prosecuting him criminally especially after they had recovered their files from Swartz.  JSTOR has also stated it would not have been a complaining witness in this case.

       The government was able to allege wire fraud because JSTOR's computers were not in Massachusetts-this fact is less meaningful considering that JSTOR did not want to prosecute Swartz.  Moreover, wire-fraud does not translate well in the age of cloud computing because information does not exist merely within a state line-its locations are generally closely guarded and sometimes outside the jurisdiction of the United States calling into question, which laws even apply.

 

Prosecutorial Discretion in the Backdrop of Burgeoning Laws

       Unfortunately, the practice of administering justice has systemic fragility-at least from the perspective of the Bill of Rights.  Lawmakers hurriedly make new laws and federal agencies invent new regulations that taken together give prosecutors more ways to prosecute Americans. 

       Prosecutors in turn are given an expanding arsenal of tools for use in prosecution on top of their already unfettered and unchecked authority.  Some prosecutions are entered into because they are high profile.  Many prosecutors like Giuliani and Spitzer used high profile cases as stepping-stones for their political ambitions.[3] Congress and many states, cave to political and media pressures to "do something" about virtually any adverse event, and in the process invent new criminal statutes and environmental regulations at a relatively breakneck speed.  This of course results not just in a stunning enlargement of the government's power over the individual (there is no commensurate enlargement in a person's Constitutional rights), but a dilution of Federal power to enforce important criminal laws.  Another consequence is the invitation to abuse the power of the prosecutor to select which criminal statutes to enforce and on whom to enforce them.   The power of the prosecutor in America has never been greater than it is today because of the greater resources of the federal government and the sheer volume of criminal statutes and criminal offenses, which is greater than it has ever been.

       In an actual case, I came across a multi-state drug dealer, who had been well represented by an experienced defense lawyer and who had trafficked in kilograms of cocaine never even got indicted.  He walks free without being indicted because a prosecutor allowed him to escape decades of federal jail time in exchange for ratting out his co-conspirators.   He even went on to be awarded multi-million dollar contracts with the City of Chicago. Arguably, it is alright that the drug dealer walks away free because the government was able to prosecute at least two of his colleagues.  

       A crime is a crime is a crime-or as Carmen Ortiz was once said about her indictment of Swartz, "Stealing is stealing whether you use a computer command or a crowbar, and whether you take documents, data or dollars...It is equally harmful to the victim whether you sell what you have stolen or give it away."   Or is it?

       When a drug dealer peddles pounds of cocaine from New York to Chicago and never gets indicted, can anyone argue that no one was harmed?  By contrast, who was actually harmed in the case of Aaron Swartz?  Why was it so much more important to make him a felon and place him in jail for 35 years? 

       What content from JSTOR did Aaron Swartz give away for free much less sell?

       All guarantees of individual liberty and freedom protected by the United States Constitution under due process, equal protection and the presumption of innocence have remained as they were written by the Constitution's drafters in the first fourteen amendments, yet the reasons the Government may use to exercise it power to deprive its citizens of their liberty have grown several hundred thousand fold.   This would be as if instead of every side getting one chance at bat in a baseball game, one team would get ten thousand chances at bat for every single time the other team went to bat. 

       The Government has hundreds of thousands of ways to deprive an American of his life and liberty, and yet the number of amendments protecting your civil liberty have remained the same.

       If you think that following the law is simple and you will never run afoul of it and all this I write is pablum, you do not know the law.  Keep in mind that federal law touches upon every facet of an American's everyday life.   All Americans engage in conduct, which falls under the penumbra of use of the United States wire or mails.  Americans are regulated by a myriad of laws, at times obscure, and yet their ignorance of them offers no protection. 

       The federal government spends billions of dollars on prosecutions based upon theories of strict liability for obscure crimes honored more in their breach than by their rule because the crimes lack definition.  There are many examples of obscure but actual and costly prosecutions based upon relatively new criminal statutes: Prosecution of four men for bringing lobsters back that were not packed properly according to a foreign law (Lacey Act); prosecution of handicapped elderly woman who had not trimmed her garden hedges that abutted a side street to the required level of under two feet; criminal prosecutions of manufacturing companies for not being able to label their products for uses, wholly unintended by the manufacturer and not capable of being foreseen; growing orchids according to laws of another country (Lacey Act); registering under false name on Facebook or Myspace; filling out any federal form and making a mistake; running out of gas in a blizzard and abandoning your snowmobile, the list of actual prosecutions is much longer.

       To put this in perspective, in 1790 there were about 6 crimes in America, treason, piracy, murder, maiming, robbery and counterfeiting.  In 2011, there were over 4,500 Federal crimes and hundreds of thousands of regulations whose breach would incur criminal penalties.  Congress invents a new crime on average every week for every week of the year.[4]  Congress is not however, simultaneously repealing existing bad, redundant or conflicting criminal laws.  Basic crimes like murder, robbery and theft are regurgitated into new forms, but what is far more worrisome than the explosion of Federal legislation, whose reach touches every aspect of everyday life, is the invention of crimes lacking any wrongful intent-this phenomenon is called, overcriminalization. 

       There are steep economic costs in overcriminalization but the injustice of criminalizing and prosecuting innocuous conduct is far more disconcerting. This said, the economic costs are staggeringly immense in terms of the growth in the Federal prison population and the tens of millions of dollars per case for the cost of high profile prosecutions based upon amorphous statutes, as in the trial of a Martha Stewart, Roger Clemens or even a Lord Conrad Black.  

       There is a culture of prosecution that regards conviction as a benchmark for success to be rewarded with re-election and advancement, even to the Judiciary.  Along with plea-bargainning (something never envisioned by the Constitution's drafters) we seem to be more concerned with securing convictions than making sure the actual guilty are punished and that the innocent and disenfranchised are never placed behind bars in an already over-crowded and expanding prison population.

       Prosecutors often play to the media and the media affects high profile cases to the point of driving prosecutions and hastening indictments-making a circus side-show of the justice system.  If they get it wrong and destroy lives in the process, as so often happens in the prosecution of vague statutes, prosecutors are never held accountable because of absolute and qualified immunity.  There is effectively no check or balance on the powers of the prosecution.

        Things like the presumption of innocence are tossed aside for ratings or marketing for prosecutors with political ambitions.  Very much akin to the idea that there is no such thing as a bad arrest or a bad conviction, the culture of prosecution measures success by the number of convictions-it is very much a numbers game-unless of course a very high profile defendant comes along.  What suffers in all of this the equal administration of justice.  And let us make no mistake about it Aaron Swartz was a high profile defendant.

       Another contrast to Aaron Swartz's prosecution within the same year is a notable non-prosecution and also of an high profile figure- Jon Corzine.   Corzine engineered the eighth largest bankruptcy in United States history and caused over $1.2 billion in customer funds to go missing when MF Global was supposed to keep their customer funds safeguarded, segregated and not touch them.  Mr. Corzine, like the drug dealer, was never indicted and never will be.  He did not fight against government censorship or control of the Internet, he was not unlike Swartz determined to change the world-he was one of the largest campaign donors to a sitting President and a close friend of the Chairman of the SEC. 

       At the same time that the Department of Justice began its indictment of Aaron Swartz, it announced it would not prosecute Jon Corzine.  You must also keep in mind that prosecutorial discretion is not always discrete.@

R. Tamara de Silva

January 15, 2013

Chicago, Illinois



[3] It is the coolest of ironies that Spitzer was indicted because he asked a bank teller not to put his name on a wire transfer (a request that would have meant violating anti-money laundering laws)-the same action he had prosecuted so many people of doing.

[4] From 2000 through 2007, Congress enacted 452 new criminal offenses. http://www.heritage.org/Research/Factsheets/2011/04/OVERCRIMINALIZATION-An-Explosion-of-Federal-Criminal-Law

 

Bob Costas' NFL Gun Speech Deconstructed

December 3, 2012

Bob Costas' NFL Gun Speech Deconstructed

 

December 3, 2012

By R. Tamara de Silva



"This year will go down in history. For the first time, a civilised nation has full gun registration! Our streets will be safer, our police more efficient, and the world will follow our lead into the future!"

                                  Adolf Hitler

"Among the many misdeeds of British rule in India, history will look upon the Act depriving a whole nation of arms as the blackest."

                    Mahatma Mohandas K. Gandhi 



       Bob Costas used the incident of Kansas City Chief's Linebacker, Jovan Belcher's murder of the mother of his three-month-old daughter on Saturday before taking his own life as call for more gun control.  In Chicago, eight people also died from gun violence over the weekend. 

       The causes of murder and suicide, especially inner-city violence are numerous and complex.  The causes of gang related shootings involve suboptimal societal and economic factors that have no easy remedy.  What is predictable and easy, is to blame the guns used either by a low-life gang-banger or a cold-blooded murderous NFL linebacker.  It is easier than blaming the parents of the murderer, his family, teachers, pastor, genetics, mental illness, economic factors, cultural influences, randomness or societal failure in raising yet another psychopathic killer.  As is often the norm, whatever the premeditation, mental illness or depravity of the murderer, we shift our blame towards the object used by the murderer-the gun.  It happens after almost every publicized shooting, and with a high degree of predictability.  Politicians clamor, as they do in Cook County, to abridge the plain language and intent of the Second Amendment of the United States Constitution, to appear like they are "doing something" and to ostensibly express their profound empathy for the victims of murderers by imposing yet more regulations on gun ownership and taxes.

       True to the playbook, yesterday, NBC's ubiquitous sports commentator Bob Costas used the half-time segment of the Sunday Night Football to call for more gun control, "In the coming days, Jovan Belcher's actions and their possible connection to football will be analyzed. Who knows?  But here, wrote Jason Whitlock, is what I believe.  If Jovan Belcher didn't possess a gun, he and Kasandra Perkins would both be alive today."  Or he would have found another way to kill her...but this would not have been newsworthy.  Blaming an inanimate object also subtly removes a layer of culpability and provides an easier answer, as if the problem of the existence of the murderer and his intent would be erased just as particles in Heisenberg's uncertainty principle appear and then disappear on the quantum scale- in this instance somehow leaving the presence of the more culpable gun.

       According to a report by the Federal Bureau of Investigation, guns were involved in roughly over 65% of violent crimes in 2008.[1] There are in the aggregate of all municipal, state and federal gun regulations, well over 14,000 to 19,000 gun regulations on the books.  Gun ownership is well regulated.  The United States has the highest gun ownership rate in the world but is 28th in the world in the rate of murders committed by firearms.[2] Most people that own guns never commit gun violence.  Do all these regulations have the effect of reducing deaths by gun?

       In Illinois, the answer would be resoundingly in the negative.  Illinois is arguably the most gun restrictive state in terms of the sheer number and nature of its gun regulations.  Chicago is also, in 2012, on track to being the nation's murder capital.  Do we have too few gun regulations or too many murderous criminals? 

       There is an unwritten law in politics at any level, if you are going to bring up a problem, pretend you can solve it-certainly at least say you know how.  There is no profit for any candidate running for elective office in Chicago or anywhere else to simply say that we have too many really nasty unsocial people in Cook County and that they will kill you and there is almost nothing, short of moving and trying to avoid these people, that would save you from them and their unsocial behaviors, in all their possible iterations.   In order to win tell Logic: drop dead.  Blame the gun. 

       Costas could have blamed Blecher and the fact that athletic ability is prized more than character or psychopathic temperament in the NFL but then again he is hosting an NFL half-time show and this may have been tantamount to going to a dinner party and denigrating all the food.  He could have said that if you are one of the statistically improbably gifted athletes that can play at the level of the NFL, and attract the sponsorship revenue of a prime-time NFL game, when you murder your daughter's mother, someone will offer to blame the gun you used. 

       However, there are problems with the "but for" theory of gun accountability.  Its principal problem is a failure of its logic.  We cannot blame knives and forks for the epidemic of obesity that caused the greatest toll on our health care system or can we?  But for, the knife, a 300 lb, 5"10 man would not have eaten so much because he would have lacked the means to eat so much macaroni and cheese.  But for the glass manufacturer, some would never have become alcoholics and destroyed their families.  But for cars, we would be perfectly protected from DUIs.  But for cars, we would also be unable to have traffic accidents.  But for the sale of paint, we would not have graffiti.  But for the Internet, we would not have online pornography.  When you think upon it, inanimate objects, were you to suspend logic, are pretty nasty social actors-albeit in varying degrees of accompanying passivity.


Statism v. Individual Responsibility

       The Government can and does legislate desirable social behavior already-often using inanimate objects.  For example, Mayor Michael Bloomberg banned the sale of super big sugary soft drinks like super-sized purple Slurpees.  He had good reason-they are very sugary and excess sugar causes weight gain, diabetes and associated and resultant health problems. 

       If the government could rely on you to act rationally at all times, poor Mr. Bloomberg would not have had to bother to make a law to prohibit you from ingesting larger sized Slurpees.

       His was not a novel idea.  From mortgage deductions to marriage deductions to restrictions on the purchase of guns, the government already tries to engineer what it considers socially more acceptable behavior through the tax code.  But the evidence of its efficacy is mixed, at best.  For example, Canada does not have a mortgage interest deduction and yet more Canadians own their homes than Americans.  Cook County Illinois proposed a gun tax to prevent in part the "illegal use of guns in murders."  Murder is already illegal-at the state and federal level.  Also, it is not likely, though possible, that gang bangers would be so off-put by having to pay a tax on gun ownership that they would switch to machetes.  Were the politicians in Cook County a more thoughtful and upstanding cross-section of the populace than their tendency to commit crime (we do after all have and have had more alderpeople, commissioners, and governors in jail than any other North American city), and take to graft, to engage in bribery and other creative means of "pay for play," to refine the art of nepotism- as they do would suggest they are, (albeit a counterfactual hypothesis)--they would realize that people inclined to murder other people in gangs are simply not going to think about the silly tax that has theoretically been imposed upon them.

       The other silent but more massive cost to the governments' various attempts to engineer social behavior either by the tax code or by threat of imprisonment, is that individual freedom and government regulation of social behavior are to a great extent a zero-sum game.  The more authority the government aggregates to itself to get into the private lives and lifestyles of its citizens, even to promote "good" and rational individual behavior, the commensurately less choice the citizen has in choosing how to live. 

       Conceivably, I ought to have a right to be irrational.  I may simply prefer pizza to broccoli and may wish to drink single malt scotch everyday over kale juice.  My enjoyment value in ingesting French fries everyday may outweigh the utility I place in living to be a skinny octogenarian.

        It is not meaningful what opinion a sportscaster has about a right guaranteed by the Second Amendment any more than it matters what Mr. Costas thinks about positron emission tomography's alleged ability to produce an accurate "picture" of the human brain.  What is troublesome is that Mr. Costas, like so many politicians who would offer simple solutions to seemingly insolvable problems, is that he has a pulpit to propagate false solutions and impoverished notions.

       This comes at a time when all branches of government in America today, more than at any time in its brief history, are determined to assault the Bill of Rights-because your fundamental liberties as an American cannot defend themselves, now is not the time to be silent.  My father is a history professor and I learned the value of history early on.  But in studying human nature more directly, I also learned that history, whether read or not, will repeat itself.

       It was not that long ago that the governments of Nazi Germany, Socialist Russia and Fascist Italy disarmed their citizenry.  There was no one to defend themselves, their old, their minorities or their children and neighbors from the atrocities that followed.  Were we to utter that the odds of this scenario ever repeating itself were greater than nil, we may be called right-wing extremists or "nuts."  Yet just seventy years ago, disarming the people was exactly what the governments had engineered, ostensibly in some cases, for the goal of greater safety and social stability.  A trade-off no thinking person ought to acquiescence to ever again. @

R. Tamara de Silva

Chicago, Illinois

December 3, 2012

R. Tamara de Silva is a trial lawyer and independent trader

 



[1] http://www2.fbi.gov/ucr/cius2008/offenses/violent_crime/index.html

[2] http://www.guardian.co.uk/news/datablog/2012/jul/22/gun-homicides-ownership-world-list