Saturday, February 22, 2014

Why We Fight

Well, I was wrong to complain about Greenfield and Windy the other day.  Reading blawgs all the time I began to grow weary of their repetitive nature but I have to admit when you're writing it's a lot easier to simply refer to the Constitution rather than engage in a discussion of what the principles you hold are and why they are better.

However, Windy Pundit took me up on my challenge and actually did it.  And I doubt I could have done a better job.  Kudos to him.  Maybe we should all just add links to this post at the end of anything we write where we don't have time to discuss in detail our point of view.  Like a manifesto.  That's really not a bad idea.

Boise, What's the Haps?

For those who ignore that cesspool of insane that is Boise, you should be happy to learn that there is some good news!

First, though not really related to criminal law, the Idaho version of the "it's ok to hate for religion" bill that is doing well in Arizona died recently.  So that's heartwarming.

Next, the bill that would allow concealed carry on college campuses is surviving.  I realize you may think guns are bad, but well, I don't agree with you.  And in any case, there's nothing more annoying that a person charged with possession of a gun who was honestly carrying it for self defense.  The criminal law is for immoral acts.  Not to scare the populous into disarming itself.  Gah.  We'll never agree on this.  Moving on.

Last, and my personal favorite, a law that would have made it illegal to get into an accident because of your medical condition died.  Words cannot express how insane that law was.  But I can tell you that the current laws we have are often used to attack people who get into accidents due to things like diabetic shock.  I hope the attorneys out there that actually plead their clients to this madness are paying attention.

Now the bad news.

Ag gag bills are pretty common.  What makes anyone think you can pass these laws in view of the First Amendment, I don't know.  But we have a new one coming.  The most excruciating thing about it is that it is being passed because activists caught a place abusing cows in every way (I'm saying some sex went on).  And the reason for this being the response?  "Well, they're just taking things out of context and twisting it."  Uh.  How do you take sexy times with a cow out of context?  How do you twist it?  How are these people getting elected?

In any case, this story has gone viral.  Since I can't seem to find an Idaho news source giving the full story, here's the LA Times, though you can also find it on Reason blog, CNN, CBS, etc.

Rep. Malek of hotbed of crazy Kootenai County is apparently the lackey of the prosecutor club and is proposing what has to be the worst, stupidest law I've seen in a while:

Idaho’s 2004 law says a person is guilty of video voyeurism when images are broadcast “with the intent of arousing, appealing to or gratifying the lust or passions or sexual desires of such person or another person, or for his own or another person’s lascivious entertainment or satisfaction of prurient interest, or for the purpose of sexually degrading or abusing any other person.” Malek’s bill takes that out, and defines the crime as broadcasting intimate images of another person, without his or her consent, when “the parties agreed or understood that the images should remain private.”

In other words, Malek has zero understanding of the First Amendment.  But why would he?  He worked for the Kootenai County Prosecutor's office, which has the worst record of prosecutorial misconduct in the state.

And he's at it again!  Actually, this is an older Malek bill that makes zero sense other than, as he says, his dad is a doctor and he's a fucking idiot.  The bill essentially just adds healthcare workers to the list of people who if you hit them you will be found guilty of a felony and face five years in prison.  This article is about how some clueless jackass helped him rewrite it (it died last time when everyone recognized that they were going to be filling prisons with insane people), but never mentions his name.  But I remember.  Because it was so painfully stupid when it died last time.  The new law fixes everything because.. it's only three years.  Let us pray it simply dies again.  Because, as Sen. Nuxoll said:
“I just can’t imagine those patients who are under the duress, they are really going to be thinking about whether this is a felony or not.”

So, see, we can end on that positive note.  We still have reps that are intelligent, thinking human beings.  And we can pray they win.

Monday, February 17, 2014

The Comfort of Eternal Things

Windy Pundit picked up on the same Greenfield post I did and wrote his own take.  The ideas are similar.  Windy is no Greenfield, and steps back from his rhetoric and invective.  But like Greenfield, he is of the opinion that the Constitution and the Bill of Rights mean what he thinks they mean.  Civil Rights are right there, in black and white, and are meant to be applied as he has come to understand them.

The Constitution is a remarkable document, and like other remarkable documents, it apparently supports everyone.  What Greenfield and Windy see as being the intention of the "founders" or perhaps, if they're thinking more accurately, the populations of the colonies/states that ratified the document, is but one view.  Their view of the Constitution is one of the more attractive because it requires little thought, there simply are forbidden things and that is that.  The government can go this far and no further.  Keeping the government on its side of the line is one of our eternal duties.

I grow tired of this view.  I see it everywhere, and it is as intellectually dishonest as it is hypocritical.  Of course the Constitution isn't eternal.  Of course it doesn't simply mean X.  First, language is not and has never been a particularly good way to capture bright lines and the Constitution was one of the most vague pieces of writing ever.  Hell, even allowing the "Congress shall make no law" bit as much strictness as you'd like (and you shouldn't give it much at all if you have any understanding of our history), half the time we're arguing about what on earth "due process" is and what a "reasonable" search is.  Second, at the time the document was being written and adopted men were of opposing views and yet it passed.  It did not pass with the ringing of the hands of those who wanted to give the feds more power.  Adams was our second president and he passed the Sedition Acts.  Jefferson did the Louisiana Purchase without the consent of Congress.  And those are just the better known examples.  What Greenfield and Windy and their ilk trumpet so blindly as the meaning of the First Amendment was a concept shaped largely by men in the beginning of the twentieth century, men like Holmes and Hand and other men who had more sense than just about anyone alive today as far as I can tell.

We are sovereign.  Not the Constitution.  We are.  The Constitution has been and will always be the plaything of the powerful.  If the best argument you can come up with is "well the Constitution said so" or "the founders thought so" then you will lose the war of ideas.  More ironically, you will have attempted to thwart authoritarians by relying on authority, pure and simple.  If your ideals have as much value as you credit them with having, then take the time to learn about that value and how to express it.  Otherwise, your simple, mindless repetition of this that or the other amendment and your waving of the shriveled ancient parchment you so love will not save you from the horde of children growing up today who think that document foolish and dated.  You are losing the war in our schools and in our courts.  Stop simply defining liberty in the negative and assume the lines you draw A. exist in the Constitution and B. that their constitutional pedigree holds them above suspicion.  Most of the ideas you love came about in the last century under the care of great men and women who, unfortunately, have mostly died out.  You do them no honor pretending that their ideas simply are the Constitution and having no idea how to defend those ideas.

And no, the majority of people will not agree that living dangerously is worth it, or that it's ok if the Constitution is a suicide pact.  Greenfield recognized that just lately in this piece on why he evidently thinks democracy is awful. Well, you can despair of democracy if you like.  But as far as I can tell, when it does finally go, the ideas you love will go with it.  The Greenfields can claim that they have "reason, logic, and the Constitution" on their side all they want.  But it will be the group with the people on their side that will decide the fate of this nation.

Sunday, February 9, 2014

Howling into the Void

The ever cranky and petulant Scott Greenfield posted an interesting bit.  Probably the most liberal/libertarian thing I've read in a while.  Those Volokh ninnies would never come close to this:

"In his dissent in Terminiello v. Chicago, Justice Robert Jackson crafted a phrase that embodies the subjugation of rights to transient fear.

This Court has gone far toward accepting the doctrine that civil liberty means the removal of all restraints from these crowds and that all local attempts to maintain order are impairments of the liberty of the citizen. The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.

That the Constitution is not a suicide pact flows from this, and at any given moment in history, the outcome of a decision may seem to be compelled by “a little practical wisdom,” meaning that we first must protect ourselves from who or what seems most threatening.

Nino, on the other hand, openly recognizes that this leads the law into black holes of doctrinal failure and the systemic violation of constitutional rights, but that the Court is only willing or capable of seeing that clearly from a distance, once the threat of war has passed.

Nino warns that we would be kidding ourselves not to realize that this will happen, and will happen over and over as the Court perceives our country to be threatened by harm, at War as the maxim goes, and crafts its decisions so that honoring the Bill of Rights doesn’t result in our suicide. Still, Nino doesn’t seem troubled by this. If anything, he appears to offer it in explanation, that sound doctrine and faithful adherence to the Constitution will invariably take a back seat to whatever war we’re fighting at the moment.

This explains a lot about our jurisprudence and the Supreme Court’s rulings. For those who tried desperately to persuade the Court that they are on the wrong side of the Constitution and history, at least they now understand why reason, logic and the Constitution never stood a chance."

This explains a lot about people's dislike for the ACLU and criminal defense attorneys. The cold hard reality isn't that we're perpetually at war because we like fighting but because unless you're willing to bend or break, conflict is inevitable. And it's particularly silly to hear an attorney, who trades in conflict, claim that everyone else should try better to get along. It's also a rather wrong-headed view of history, myopically focusing on the modern world and only from the perspective of the richest and most comfortable people on earth.

The true difference between our country and those of the first world and others is our obedience is to law, while other countries obey a party or an individual. Those situations lack stability. What we call liberty is more of a spiritual mindset. The Constitution and the law are an outpouring of who we are as a people. When our mindset changes, those things begin to change. If we choose to ignore them, to throw away our history, we may do that. We are not the slaves of our law, merely obedient to it as long as we choose to be. Situations can arise where the law must change immediately and forcefully. That has happened at least twice in our country's history, at the time when the 14th amendment was adopted and then again when FDR converted our nation into one where the balance of power sat most forcefully at the federal level.

The kind of freedom the libertarian yearns for hasn't really existed for almost a century now, though you can still find it on some islands out in the pacific where children can still get a job chained up in a factory. But even there, you'll still never get absolute freedom of speech, because while the government may have no power, plenty of individuals do, and will silence you.

At heart, when we whine and protest about the constitution, as Americans, we're really just pronouncing how our personal values believe a particular situation from our perspective should be treated, and trying to point to the most revered power we have, the only legitimate power, as reason why others should agree and acquiesce to our view. If they don't, then we have to decide, do we bend? Or do we fight?

Wednesday, February 5, 2014

I've been prosecuted, found guilty, and now I pay the prosecutor's salary!

Welcome to the new normal.

Fiscal irresponsibility by our leaders, including their insane war on drugs, mandatory minimums (because judges are dipshits and prosecutors must be king!), and my personal favorite, their own corruption, has led to our state's unbelievably insane restitution statute.  In the past, I've ranted.  Today, I simply post:

Justice?  Where is justice?  Where is limited government?  What world are we living in?  What society, so lost in navel gazing and blaming anyone that hurts its feelings, thinks that saddling every sucker who collapses beneath our "criminal law" with a mountain of debt does anything but ensure continued criminality?