Violence In America

The more I read – especially American history and the news about modern America – the less I understand. We are a society built on violence, from our Revolution and our use of weapons to ensure our “manifest destiny,” to the present situation. Add to that some wars and the use of firearms to oppress those of our people who were weaker than we. More recently there have been mass killings of American citizens using such weapons, and yet we are surprised.

Our founders were also concerned about firearms, but their fear was that the government might dominate us and take away our weapons. To prevent that from happening they passed the Bill of Rights – specifically the Second Amendment – that guaranteed that “the right of the people to keep and bear Arms, shall not be infringed.” The Supreme Court, discounting the language that “A well regulated Militia (emphasis added), being necessary to the security of a free State …,” which was the justification for the guarantee, ruled that we all had the right to guns. I don't agree with that decision but it is the law of the land and I must respect it. It is my view that, while, perhaps, gun ownership cannot be denied, it should be far better regulated than it is at present. But that should be accomplished by legal means.

The latest massacres, most recently in Orlando, make it clear that we have failed to take the proper steps to limit the availability of firearms – actions I believe we must take. Those actions, however, should honor our heritage and our laws, and we cannot use extralegal means to assuage our hysteria.

According to today's Wall Street Journal, two bills to achieve some gun control, which had the support of a majority of Senators, failed to receive “the 60 votes needed to clear procedural hurdles.” I'm unclear what “procedural hurdles” prevent the forwarding of a bill to the President for signature or veto, but the majority no longer seems to rule. And many of the opponents of the bills, demanding the limitation of Constitutional rights without any judicial review, a limitation based on FBI “suspicion” of terrorism, were among those arguing against the review of e-mail on on the basis of “suspicion” of terrorism, often also opposing, simply on the basis of police “suspicion,” the use of “stop and frisk” laws which likewise had the potential to yield weapons and prevent violence.

The two problems I see are the inconsistent regard for judicial review on the basis of suspicion, and the idea that a majority vote isn't adequate. It appears there are many who are troubled by the existence of Constitutional requirements for a separation of powers and checks and balances when the guarantees in our founding documents don't favor their own political perspectives.

In the 1780 Massachusetts Constitution, John Adams declared that we had a “government of laws, not of men,” but the concept that our officials are responsible for following the law is not currently in vogue. We have reached a point where “interpretation” of the laws is more important than the observance of what legislators have written, and when a strong executive has unilaterally arrogated the power of decision-making – limiting the choices of the legislative branch and of the people whom they represent. Perhaps the President's instincts are correct (I personally don't think so) but voters don't get the chance to make that decision. The best they can hope for is the opportunity to include his executive decisions along with the many other factors they consider in the next Presidential election, and by that time they are already faits accompli.

But it's too late then. If we need to change the Constitution, let's do it. If we need to pass legislation that will better regulate our practices, we deserve the right to encourage our legislators to do so. In the meantime, however, we should follow the laws and practices that we now have on the books. We need government of laws. And we need our elected legislators to take whatever steps are necessary to protect their prerogatives and our freedom.

He Who Pays The Piper

A fascinating – and, to a degree amusing – article appeared on the front page of today's (May 23, 2016) New York Times. Its title was “Adelson's Era: Do Billions Erode Press Freedom?” and it was written by Sydney Ember. The article contends that the owner is putting pressure on the Las Vegas Review-Journal staff to conform to his views in the publication of the news. A specific concern is that newspaper management is guilty of “editorial interference.” The owner himself denies any participation in the nature of the stories carried, and the editors also state that he has played no part in their decisions, but it would be naïve to claim that the same editors, knowing a little about their boss, weren't eager to please him.

It's certainly a significant fear, but perhaps it is unwarranted. Before I discuss its validity, however, let me digress.

I mentioned my wedding last week, but let me make one additional comment which is apropos in light of my discussion today. We chose the band. And while we didn't have a precise play list, we let them know what kind of music we liked, and they were happy to present it for us. By and large the specifics were their choice. Not a big surprise. At least it wasn't then. But times change.

Courts have taken to deciding the nature of a baker's or a photographer's services, and who is entitled to them. Specifically the LGBTQ community. The Supreme Court argues that various aspects of cohabitation are covered by the Constitution under the rubric of “privacy” (which, however, is not a right identified in the Constitution). Based on those views it's hard to claim that the choice of music at our wedding might not be considered by the Judiciary to be just as much a Constitutional issue as “Press Freedom.”

The concept of a free press began in this country with the acquittal of John Peter Zenger, in 1733. His trial established the right of a newspaper publisher to air his views. That was before there was a First Amendment or, indeed, a Constitution, but it was a freedom needed then, one that's still the basis of our liberty. And it is a freedom that includes the right of property [newspaper ownership and the right of the owner to publish what he wants], also viewed by our founders as a basic principle upon which our country was grounded.

Press freedom, as I said, is one of the pillars on which our country and our liberty stand. (Some restrictions on it exist but they are limited and governed by, among other things, the laws of libel, sedition, and public safety.) All of the media enjoy it, but it doesn't guarantee that all press organs will be objective – nor should it. They needn't all be fair and balanced. And they're not. All have editorial policies which reflect the biases of their management. And all observe the five esses (in addition to the five double-u's) of journalistic messaging: selection, size, space, slant, and spin. (It's funny to see one paper accuse another of tampering with the news. They all do it. Even on-line, “trending,” and “social media” sites. So we have a lot of sources available and can choose the point of view to which we already adhere.)

The New York Times is a good example. It's a “liberal” paper (reflecting the views of those who own and run it), which means that it is left-leaning, anti-Republican, and anti-Israel (pro-Palestinian – favoring the “weak minority” of Muslims in the Middle East). That's not an accusation, it's a fact. [Adelson is a Pro-Israel conservative Republican which justifies his selection for a front-page condemnation.] And that's what the Times's readers want. It's been in business long enough that the staff knows what is expected of them. Applicants are likely to share the same philosophy, and those hired can be relied on to tell the stories that management wants, and tell them in a way that is desired. (Indeed, they may be “advocacy journalists” who include opinion in what readers assume is objective reporting.) The staff has been selected. Of course when there is new management of a paper the shaking-out process has not yet occurred and staff, who might not have sought employment under the old ownership, are not yet in place. And when such a change occurs current members of the staff may decide that they don't want to hew to the new line.

Selection plays another part in the process. The choice of stories, and their placement, also reflects the paper's (management's) perspective, and is aimed at getting the “right” message to those who only read the front page or the editorials. Those stories that cannot be ignored, but which may conflict with the approved message, are likely to be buried inside or otherwise inconspicuously. The same is true of (small-print) corrections which, though undesirable, must be made when the (prominent large-print) news presented is in conflict with reality.

Size is another criterion considered when a story is published. More space (including number of or articles as well as their length) is devoted to what carries the preferred message, and less to what opposes that viewpoint – if it is published at all. Look at the letters to the editor and you'll see that those questioning the paper's view tend to be short, and they are overwhelmed by those that support the agenda. Strange, then, that the Times was critical of the Review-Journal for shortening stories critical of its owner.

First paragraphs of stories – the ledes – present the slant. They tells the impatient reader all (s)he needs to know in order to have the correct perspective on a subject. While a more accurate understanding of the situation might result from reading the full story – with important facts “clarifying,” and possibly contradicting, the premise of the writer found deep in the story. Fortunately most readers don't get far beyond the first paragraph, so they know only what they are directed to “know” based on the initial slant.

But the icing on the cake – what tops it all off – is the headline. And that is the artfully written spin that directs the thinking of the laziest of readers. Once they've seen the headline they know, and probably agree with, the outlet's message.

All in all, when, for example, the public reads an editorial supporting a President who has knowingly misled the electorate, they will know that the editors are only laying out the organ's dogma. Readers expect the media to present the views their owners are trying to sell. After all, no one is surprised when an auto company fails to disclose all its product's problems or a lawyer tells only what is favorable to the jury. We believe what we want to believe – but we probably believed it before someone tried to convince us. It doesn't take billions to do so, but we'd take it if it were offered to us.

Conflicting Rights

Same-sex couples are entitled to get whatever wedding cake that they crave at the bakery of their choice. It's the law. And that right – one they have always had – was granted them as well by our nation when it was founded. The baker has no say in the matter.

Our first document as a new nation – indeed, the one that made us a new nation – the Declaration of Independence, listed both the quarrels we had with the British King and Parliament, and the principles for which we stood. It clearly stated that “all men are created equal.” Not only that, but that they were “endowed by their Creator with certain unalienable Rights” and among them was the right to “the pursuit of Happiness.” What else could the Founding Fathers have had in mind but that two men had the right to marry, and they were entitled to whatever wedding cake they wanted from whatever source they selected. It didn't matter what flavor icing they preferred or to have flowers, if they had a yen for them. They could even have two grooms on top (or, for women, two brides – a Constitutional amendment and court decisions have asserted that whatever men can do – as long as it is not proscribed by physical constraints – women can do as well). They were entitled. It was their right. (It's not even explicit Constitutionally that they're required to pay for it, though that is the subject of local laws.) And their Creator was in full agreement, having personally endowed men with the right.

At least that was the initial view of those eighteenth century pundits. They subsequently wrote a Constitution, a plan by which our new nation would function, and appended to it a Bill of Rights which spelled out the limitations under which our government would operate. In that listing, however, they omitted same-sex marriage, while making it forever unmistakable that we possessed the right to practice our religion as we saw fit, and without the interference of that government. That was the first right delineated. It was fundamental to our new republic, and central to our values. Governments had no right to specify where the Creator stood on any matter, nor had the Creator any right to decide right and wrong.

But the courts, as opposed to the Creator, have such a right; they have not only found the “right” to same-sex unions in the Constitution (they had to “find” it since it is nowhere mentioned in the document), but that such a right takes precedence over our government's specified obligation to abstain from interference in the “free exercise” of their citizens' religions. There are instances when rights are in conflict. And the Judiciary has assumed the responsibility to decide what is more important.

Of the three branches of government, the Judiciary was seen by the founders as least important, and its description, in Article III of the Constitution, is the shortest. Over the years, with no protest from the Legislative and Executive branches, although they are (in that order) supposed to hold the real power, the Judiciary arrogated the power. So the courts can decide that the “right” to abortion is more important than the use of speech (irrespective of what you thought, it isn't really protected by the First Amendment) to warn of possible consequences.

In addition to informing us as to which rights are most significant, the courts can also tell us whose rights take precedence. For example, the right of free speech guaranteed, for the courts, the right of Nazis to march through Skokie, Illinois, a city with a majority Jewish population including many Holocaust survivors. How the residents felt was not relevant. On the other hand, “hate” speech, which may hurt someone's feelings, is impermissible. And an individual with “gender dysphoria” – with the DNA of one sex but a preference for the other – may choose what bathroom to use. It doesn't matter, according to court opinions, if those who properly use that bathroom object. Their rights are trumped by those of the dysphoric individual.

The problems are not simple. There may be no agreement on the issues, but there isn't even agreement on the criteria to be used. Should the justices rely on the Founders' words or what is thought to have been their intent? To what degree is precedent controlling? What is the significance of public opinion and current fashion? Should the Justices base decisions on their own views? Sometimes they aren't even clear what their own views are. Justice Potter Stewart, in an opinion on a cinema pornography case, said

I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description ["hard-core pornography"], and perhaps I could never succeed in intelligibly doing so. But I know it when I see it (emphasis added), and the motion picture involved in this case is not that.

It may not have been clear enough as a basis for future opinions, but it was honest. (Supreme Court) Justices and (Lower Court) judges are often subjective in their judgments, and there are times when their view does not reflect what most people consider to be wise, or to be based on American law and tradition. When matters so basic to American society are involved, some form of review mechanism would be sensible.

The Constitution was written in the name of “We the People.” Changes in it must be approved overwhelmingly by Congress and the States. In selected cases it would make sense to bring Congress and the People into the conversation. Whether that would mean the [binding?] expression of opinion on specific issues, or simply exist simply for the purpose of guiding our representatives on the larger questions of the day isn't clear. Perhaps the People should have input to questions of majority versus minority rights, or the relative strength of the branches of government, or the relationship of the states and the Federal government. The distribution of power is certainly something that the People ought to weigh in on, since perceived abuse of power was one of the primary causes for them to want “to form a more perfect Union.” It's important that some of the power be returned to those in whose name it is being exercised. I'm sure that if we're determined we can find a way to do so. The People have rights, too.

Next episode: “Below The Beloit” – Well, did you ever?

Because I Said So

(Another in an ongoing – irregular – series on proposed Constitutional changes.

This particular schema will be continued – and I hope concluded – next week.)

There are times when the children just won't do what you want. The gurus currently in vogue tell us that the proper way to deal with them is to explain what you want, and why that is the best method for dealing with the situation at hand. Speak to them rather than taking any physical action. Treat them like adults.

But they're children.

Expecting them to respond to (adult) logic is unrealistic. However carefully you may have considered whatever you're asking of the child, he has a mind of his own. He knows what he wants and an explanation of why the choice is the wrong one may be very nice in a psychological essay, but it often doesn't work where “the rubber hits the road.” And where the child hits his sibling. “This hurts me more than it does you,” is one of the popular phrases heard at this time, accompanying what may be an appropriate corporal responseⁱ but it would be better to avoid the need for it.

So the answer to the invariable “Why?” when the logic proves fruitless is “Because I said so.” After all, you know better than the whining child. At least I assume you know better. But I'm not sure that's always the case. There are times when we all use that line because we lack a logical reason for what we want, but are sure we know best. Whoever argues with us simply isn't as smart as we are.

Which brings me to “judicial activism.”

There are times when it seems that the courts – especially the Supreme Court – take the same approach to what they view as a problem; when Justices expound on their own views and call them law. Judicial review dates back at least to the seventeenth centuryⁱⁱ and was known in the colonies and the United States to be a valid concept before it became a formal part of law in Marbury v Madison in 1803. That case established the authority of the Supreme Court to decide the constitutionality of laws passed by Congress. As Chief Justice Marshall said, “It is emphatically the province and duty of the judicial department to say what the law is.” It was a statement free of irony. Marshall viewed it as a matter of fact. It was what the Founding Fathers had decreed.

And there was, and is, no appeal. Indeed, unchallenged, lower courts can also make a determination of what is permissible under United States law or, it sometimes is claimed, in line with their own value systems. “Aye, there's the rub.” There are times it seems that the law is the law “because I said so.” And once established, the new concept – whether based on law or the confident extralegal views of the courts' decisions – is precedent and, though challenge may be made, it becomes more difficultⁱⁱⁱ to change.^iv

How does this come about? While the vast majority of legal decisions in no way deal with society's value systems, a few do. Who makes the decisions, and is there any way to change them? Is it justified for any group to have “the final say” over what others meant, or may have meant when framing legislation?

I'll try to deal with alternatives to the current system next week, but for now a statement of that system is in order. While there are variations in the choice of local and state judges, in the Federal system judges, including Supreme Court Justices, are appointed rather than elected. One of the major considerations in a presidential election – and politicians forcefully promote this consideration – is that the complexion of the Court will be governed by executive appointments: interpretation of the law will be in the hands of those who hold views comparable to those of the President. The “separation of powers,” and the system of “checks and balances” notwithstanding, the interpretation of law will be in the hands of those whose views are acceptable to the Chief Executive – for it is he who will appoint the justices.

The Constitution does provide for the Senate to “advise” the President and to “consent” to his appointments, and this power cannot be minimized. Congress, moreover, does have the power to impeach Federal judges.^v But, in respect to the outlook of the Court, there would not be so great an emphasis on the importance of presidential appointments if, in the end, the President did not have a major impact on that outlook. The appointment of an individual, with a lifetime position, allows the promulgation of particular views long after the individual who made that appointment has left office. And, with our Electoral College system,^vi that Chief Executive may not even have the support of the majority, as has happened on several occasions in the past.^vii

Is there any hope? Is change necessary? Is it appropriate? I think the answer is “yes” and I'll make some suggestions next week. And with those changes, our laws will have the meaning we consider right because we say so.

Next episode: “Judge For Yourself” – Conclusion of recommendations for improvement of the Judiciary.

i     I'm sure that I'll be faulted for my belief that there are times when physical punishment should not only be tolerated, but is the best response to a problem.

ii    Thomas Bonham v College of Physicians, 8 Co. Rep. 114, 1610. Citation in Wikipedia.

iii    Though certainly not impossible.

iv    The eleventh amendment to the Constitution, in 1795, was specifically enacted to overturn a Supreme Court decision (Chisholm v. Georgia, 2 U.S [2 Dall.] 419, 1 L.Ed. 440) which had been rendered in 1793. Although this took place before Marbury v Madison, it demonstrated both the acknowledgment of the Court's power to overrule a State court and an approved method for change: for remedying the perceived problem.

v     But Congress can only react to those nominated by the Executive branch. They cannot initiate the process. So however many times they reject a presidential appointment, they will only have another such nomination before them, and they can only impeach based on violations of the law, not on the basis of different interpretations of the law's meaning.

vi    A system that should probably be rethought.

vii    If there are more than two candidates for President, a minority choice is possible even if we follow the popular vote. Although a very significant portion of our citizens don't vote – and this, too, means that whoever is elected will only represent a minority – I have no sympathy for those who opt out of the system.