Law

Boston Changed Nothing

Flickr/Pete Tschudy
We've all seen how the bombing in Boston, as so often happens with events like this, brought out the best in the people who were there. But it also—not surprisingly either—brought out the worst in some other people who were back in Washington. It gave them the opportunity to let loose their most vulgar impulses, the satisfaction they get from stoking fear, and their absolute disdain for so many of the things that make America what it is, has been, and continues to be. You'll recall that after September 11, the phrase "this changes everything" was repeated thousands of times. In too many cases, what that meant was, "This gives me the opportunity to advocate changes pulled from the darkest recesses of my imagination, the things I never would have dared suggest before. This is our chance." We can toss aside those pesky constitutional amendments that protect against unreasonable search and seizure or provide for due process, because we never liked them anyway. Hell, we can even torture...

Read Him His Rights

AP Photo/vk.com
AP Photo/vk.com Dzhokhar Tsarnaev T he capture of Dzhokhar Tsarnaev presents an important test for federal and state authorities: Can the United States resist the temptation to violate the civil liberties of people suspected of engaging in acts of terrorism? In some important respects, we seem to have avoided the systematic civil-liberties violations of the Bush administration. But when it comes to informing Tsarnaev of his Fifth Amendment rights, Obama is buying into the myth that ordinary police process is inadequate for dealing with domestic terrorism. It is not clear what the Obama administration will do with Tsarnaev, who has not been read his Miranda rights and who is engaging only in written communication from his hospital bed. But U.S. Attorney Carmen Ortiz has cited a "public-safety exemption in cases of national security and potential charges involving acts of terrorism" and indicated that Tsarnaev will be interrogated for at least a 48-hour period without being informed of...

When Fear Threatens Freedom

AP Images
Throughout American history, whenever the United States has felt threatened, our response has been repression. In hindsight we come to realize that the nation was not made any safer from the loss of civil liberties. This is a crucial lesson to be remembered as the country deals with the terrible tragedy of Monday’s bombings in Boston. The impulse to take away constitutional rights to gain security must be resisted because, in reality, complying with the Constitution is not an impediment to safety. If history repeats itself, there are likely to be calls to make it easier for police to search people and their possessions without warrants or probable cause or even reasonable suspicion. Once more, there will be proposals to allow the authorities to detain individuals, even indefinitely, on suspicion of their supporting terrorism. There are sure to be calls to allow law enforcement to more easily intercept electronic communications, even of those conducted entirely within the United States...

Is the Single-Issue Gun Voter Another Myth?

Over the last year or so, I've written at more length than most readers can probably tolerate about the myth of the gun lobby's power. But there's one part of that myth that I haven't addressed too much, and it comes up today as the Manchin-Toomey background-check proposal is being voted on in the Senate (as of this writing it looks like it will be unable to overcome a Republican filibuster). This part of the myth isn't completely false, it's just dramatically overstated. As you've probably heard, one of the reasons the gun lobby is successful is that gun owners are "single-issue" voters who not only won't consider voting for anyone who isn't right on guns, they're highly energized, writing and calling their representatives all the time, while the other side is passive and disengaged, not bothering to get involved on the gun issue. That means that representatives feel intense pressure from the right and no pressure from the left, making it all the more likely that any measure to stem...

Five Lessons from the Gosnell Abortion-Clinic Controversy

WikiMedia Commons
The hot conservative story of late last week, starting with a USA Today op-ed by Kristen Powers, was the failure of the mainstream media to cover the horrifying case of Kermit Gosnell, a Philadelphia doctor accused of committing infanticide, and maiming and, in some cases, killing his patients (most of them poor women) in an unsanitary abortion clinic. Perhaps the story does deserve more coverage than it has received, but the lessons to be drawn from it are different from the conclusions conservatives are making. Here are five points currently being overlooked in the coverage of the controversy. Feminists Were on It Whether the mainstream national media has given adequate attention to the Gosnell case is a matter of judgment, although claims that it's been entirely ignored are incorrect. (Consider, for example, Sabrina Tavernise's lengthy New York Times story from 2011.) But it should be remembered who hasn't been ignoring the story: feminist writers . Many prominent feminists, for...

California Fights Back

Flickr/ Neon Tommy
Last fall, California voters were confronted with two major and hotly-contested ballot measures—Governor Jerry Brown’s proposal (Proposition 30) to raise taxes on the rich to end the state’s chronic budget shortfalls, and a conservative initiative (Proposition 32) which would have curtailed unions’ ability to spend their treasuries on political campaigns. Proposition 30 passed and Proposition 32 was soundly defeated, but they had to overcome a joint, well-funded campaign by rightwing interests to prevail. As we reported in the January-February issue of the Prospect, the anti-30, pro-32 campaign received an $11 million contribution a few weeks before the election whose source could not be traced. The money came into the campaign from an Arizona-based 501c4—a “social welfare” organization that spends its funds on political campaigns but is not required to list the source of its funding. Under public pressure and in response to a court order, the Arizona group did reveal shortly before...

Closing the Gun Show Loophole: Better Than Nothing?

Flickr/Brittany Randolph
Ah, bipartisan compromise, just what the country is yearning for. We saw some yesterday, as NRA favorite Pat Toomey and NRA favorite Joe Manchin got together to see if they could come up with a plan for universal background checks, which as everyone knows are supported by 90 percent of the public in just about every poll that's been taken on the subject. What they produced, however, wasn't anything like "universal." Is it better than nothing? Sure. Should it be celebrated? Eh. Toomey and Manchin's proposal would close the "gun-show loophole," meaning if you buy a gun at a show you'll have to submit to a background check. It also covers sales over the Internet. What it doesn't cover is private sales between one person and another. You've probably heard the figure that 40 percent of gun sales happen outside licensed dealers, and while the evidence for this figure is thin , nobody really knows if it's too high or too low. Furthermore, nobody knows what proportion of that 40 percent...

The NFL's Concussion Problem Hits the Courts

When former Pittsburgh Steelers guard Ralph Wenzel passed away, after a long battle with dementia, he had the brain the size of a one-year-old's. The defensive stars Dave Duerson and Junior Seau , both of whom recently committed suicide, were found to have a severe brain disease associated with repeated blows to the head. These and countless more cases have made the public increasingly aware that the immense profits generated by the National Football League have been made possible by players battering themselves into miserable and premature death. On Tuesday in Philadelphia, more than 4,200 former NFL players brought their case that the NFL should be liable for these injuries before federal judge Anita B. Brody. While the evidence that playing NFL football frequently leads to severe brain injuries and premature death is increasingly strong, the lawsuit faces numerous hurdles if it is to proceed. First, there is a question of individual responsibility. Tackle football is not illegal,...

The New Deal That Could Have Been

Courtesy W. W. Norton and Company
I nvoking “dysfunction” is now the basic black of punditry about American politics. As the British political theorist David Runciman recently observed in the London Review of Books , “Commentators find it almost impossible to write about American democracy these days without reaching for the word ‘dysfunctional.’” Consider the lowlights of our political culture in just the past 15 years: a puerile impeachment; the subsequent president elected via a Supreme Court filled with political allies; a radicalized Republican Party, convinced that taxation and domestic government spending are a form of socialism; a failure by bipartisan elites even to prioritize, let alone tackle, continued high unemployment and the looming catastrophe of climate change. As Runciman’s editors titled his own essay on America’s lumbering democracy, “How can it work?” Courtesy of W. W. Nortn and Company It is one measure of the power of Ira Katznelson’s important, overstuffed new book, Fear Itself: The New Deal...

Over-the-Counter Plan B Strikes Back

WikiMedia Commons
One of the low points of Obama's first term was his administration's decision to overrule FDA experts and refuse to make over-the-counter emergency contraception—like Plan B—available to women under 17. Last Friday, a federal judge held that the action was not merely wrong on the merits, but illegal. If the decision is not overturned on appeal, women under 17 will (as they should) have the same access to emergency contraception that women over 17 have. The deplorable policy implications of the Obama administration's response does not, in itself, constitute an argument that it was illegal. The opinion by Reagan-appointed District Court judge Edward Korman, however, makes a compelling legal case that the override of the FDA was illegal. The crucial factor underlying Korman's opinion is the question of whether the executive branch followed the appropriate procedures. Congress, for better or worse, has the broad authority to regulate the availability of drugs. If it chose to ignore the...

Martin Luther King and Today's Gun Advocates

Photo from the Library of Congress/Dick DeMarsico
Martin Luther King, Jr. was assassinated 45 years ago yesterday, and one of the interesting little sidelights to the debate over guns that you might not be aware of is that gun advocates claim King as one of their own. You see, King had armed guards protect his family, and at one point applied for a permit in Alabama to carry a concealed weapon himself. He was turned down, since in the Jim Crow days the state of Alabama wasn't about to let black men carry guns. You can find references to these facts on all kinds of pro-gun web sites, as nonsensical as it may seem. Gun advocates want to claim King as part of their cause, but also want to completely repudiate everything he believed about the power of nonviolence, which is kind of like Exxon saying John Muir would have favored drilling for oil in Yosemite because he sometimes rode in cars. The reason Martin Luther King sought armed protection was there were significant numbers of people who wanted to kill him, and eventually one of them...

It's a Nice Day for a Gay Wedding

flickr / soyoureengayged
Last week's oral arguments in two landmark cases involving same-sex marriage will likely not be followed by opinions until late June. In the interim, there will be a great deal of speculation about what various rulings might mean. With respect to the legal challenge to Section 3 of the Defense of Marriage Act, speculation about the outcome will be less common because most legal observers (including me) expect a comfortable majority of the Court to strike it down. With respect to the challenge to California's Proposition 8, however, the outcome is less certain. Each outcome will lead to markedly different developments for gay and lesbian rights. For this reason it's worth teasing out the implications of the possible rulings in the challenge to Prop 8. The are three potential outcomes, which I will argue are in ascending order of desirability: Prop 8 Is Upheld This would be the worst-case scenario, a 21st century Bowers v. Hardwick , the 1986 case upholding a Georgia sodomy law. Kennedy...

Obama Pleads for Empathy on Guns

Throughout his presidency, Barack Obama has portrayed himself as Washington's last reasonable man, pleading that we can find some common ground on almost any issue despite our disagreements if we just listen to each other and open our hearts a little. Republicans complain that it's all just an act—he's just trying to look like the reasonable one, to make his opponents look more intransigent and stubborn and gain the upper hand politically. That may be partly true, even though they don't need his help to look unreasonable; they do a fine job of it all by themselves. The latest narrative on the gun issue is that the prospects for meaningful legislation are slipping away as the tragedy of Newtown fades from our ridiculously short memories and members of Congress feel little of the public pressure required for them to stand up to the NRA. So Obama has been campaigning for his favored legislation, and yesterday he gave a speech in Colorado, the centerpiece of which was a plea to both sides...

The Dead End That Is Public Opinion

If you want to produce change, make politicians as terrified as this sandwich. (Flickr/Sakurako Kitsa)
As the effort to enact new gun legislation hobbles along, liberals have noted over and over that in polls, 90 percent or so of the public favors universal background checks. In speaking about this yesterday, President Obama said, "Nothing is more powerful than millions of voices calling for change." Then Jonathan Bernstein explained that opinion doesn't get political results, what gets results is action. I'd take this one step farther: what gets results is not action per se, but action that produces fear . I'll explain in a moment, but here's part of Bernstein's argument: See, the problem here is equating "90 percent in the polls" with "calling for change." Sure, 90 percent of citizens, or registered voters, or whoever it is will answer in the affirmative if they're asked by a pollster about this policy. But that's not at all the same as "calling for change." It's more like...well, it is receiving a call. Not calling. Those people who have been pushing for marriage equality? They were...

Gay-Marriage Opponents, Left Behind

The American Prospect/Jamelle Bouie
The American Prospect/Jamelle Bouie O utside of the Supreme Court this week—where the nine justices were hearing oral arguments about the constitutionality of California's ban on same-sex marriage—a young woman and an old woman were arguing. "If you put all the gay people on an island," began the older woman, who looked to be in her fifties. "See, this is why people think you guys are like the KKK!" interjected the young woman. "You're talking about rounding us all up—" "Let me finish! If you put all the gay people on an island, in a generation there would be no gay people. They would die out." "That's not a realistic scenario. We all live in this country together." The older woman was nonplussed. After fielding a few more hypotheticals—How would you feel if your son or daughter were gay? What about the separation of church and state?—it became clear she was not going home convinced, and the two parted ways. America, on the other hand, has gone home convinced. The about-face in public...

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