Saturday, May 03, 2014

Justice Stevens's Liberty-Destroying Amendments: Part III

I ended my last column by remarking on Retired Supreme Court Justice John Paul Stevens's treatment of the campaign finance law, the First Amendment, and freedom of speech in his book, Six Amendments: How and Why We Should Change the Constitution. Then this dropped into my in basket: Donald Sterling's "racist" rant in an illegally recorded private conversation that was released to the public. I had to address the subject, otherwise the issue would sit as a gnawing distraction in my craw.

I am not a fan or follower of any sport. For a while, I wondered what all the fuss was about concerning L.A. Clippers owner Donald Sterling. Spiked, a British news and column blog, ran an excellent article by Sean Collins on how private remarks about race or religion can lead to charges of bigotry or "hate speech" by the press and news media, and also by private citizens. The danger to freedom of speech, Collins writes in his April 30th article, "Not So Sterling Attack on Free Speech," is that,

Those who warn about the NSA spying on every conversation are now among the loudest cheering Sterling’s downfall, which wouldn’t have happened without illegally obtained evidence. Do we really want to make pillow talk fair game? Expect more ‘gotcha’ stories, with leading figures being ‘outed’ for private comments recorded surreptitiously….

Sterling’s downfall came from impolitic speech, not from causing any actual harm….

Many will say that this is not a free-speech issue, because Sterling did not have his First Amendment rights taken away, and the government did not step in to censor him. But free speech is more than legal rights vis à vis the state; it also includes whether we tolerate expression in society. Much of the debate over Sterling, as in other recent controversies (like the ousting of Brendan Eich at Mozilla), focuses on how the owners, boards of directors or managers should or shouldn’t respond. But the real issue is not how those few at the top respond; it’s how people in society respond.

And the problem today is that the broader response is intolerant: say something we deem unacceptable, and you must disappear. It would be perfectly fine – indeed a good thing, in my view – to express disagreement and disgust with racist views, and to argue against them in the strongest terms. But that’s not the response we see today. Instead, it is ‘make it go away now’. It’s really problematic when people feel that the only way to express anger or opposition to something objectionable is to call for the one voicing that opinion to be hounded out.

I think even Collins misinterprets Sterling's remarks. However, he concludes his article with a warning:

Today, too many people are so convinced that they are in the right, that they are fighting bigotry and hatred, that they fail to see how their response is truly intolerant and illiberal. It’s becoming almost automatic that, whenever something politically incorrect is uttered, a mob with pitchforks and torches rises up, seeking revenge and punishment. That response is unthinking, emotional and blind to the long-term consequences for a free society.

So, I listened to the TMZ tape, twice in case I missed something, the first time bracing myself to hear an incoherent, expletive-rich tirade by Sterling on blacks and Hispanics. Instead, I was surprised to learn that Sterling made no racist remarks at all, and that if an accusation of "racism" is to be leveled on anyone, it should be laid on V. Stiviano, his former girlfriend, with whom he was having a contentious conversation about her obsession with her "mixed" white and Mexican ancestry and showing off with black sports figures. I was so startled by what Sterling did not say, and what V. Stiviano did say, I left this comment on Collins's article:

Listening to the TMZ tape, I failed to detect any "racism" in Sterling's remarks. In fact, I'd say the "racism" is all on the woman's side. His complaint -- which he didn't or couldn't articulate -- is that she has no sense of privacy and feels compelled to flaunt her skin color or whatever publicly. He doesn't understand why she does that. Also, now that I've listened to the tape twice, I suspect that she [V. Stiviano] had the whole conversation recorded for some vendetta reason, and that she's responsible for its publication. All I hear in the tape are the protestations of a man being hounded by a "race conscious" bimbo, whose only claim to fame is that she was once Sterling's girlfriend. But, leave it to the "race conscious" news media to quote him out of context.  

I think I know Cliven Bundy, who was also unjustifiably accused of racism, better than I ever would want to know Donald Sterling, but I can commiserate with Sterling, as well, up to a point (he has a reputation for uttering racist remarks and behaving badly to "minorities").  Both men are not the most well-spoken and articulate individuals by any means. They were average individuals addressing a difficult subject, Sterling in a verbal clinch with a whiney, half-Chicana, publicity-seeking harpy.

Sterling's "racist" remarks on the tape are so elusive, ambiguous, and open to interpretation, one can't even cherry-pick his responses to Stiviano's nagging and conclude that he was a dyed-in-the-wool racist (if you knew nothing else about him, which I didn't). One could conclude that he was lacking in character and independent judgment, yes. But racism? Hardly. Not in Stiviano's tape.

Now that I've dealt with the brainless sock puppets of the news media, I urge readers to listen to the TMZ tape and judge for themselves. Stiviano has since been interviewed by Barbara Walters on "20/20" and is singing another song.

That being said, let's tackle Justice Stevens's ideas on sovereign immunity in Chapter 4 of his book.

The subject is whether or not a state can be taken to court by residents or citizens of another state, or is immune or indemnified from such suits, or is not immune because it is not in compliance with federal law. The chapter also deals with whether or not the federal government can be sued by individuals. The Tenth, Eleventh and Fourteenth Amendments of the Constitution played a role in past Supreme Court decisions. Stevens provides a history of the issue and concludes that states and state officers should have no protection or defense if they are in violation of federal law. The Supreme Court has always been split on whether or not states are protected by the Eleventh Amendment (The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State).

While the history of this issue is as muddled and governed by non-essentials as other issues discussed by Stevens, governed as it is by attention to procedural niceties and a hypothetical deference to federal authority (and Stevens's predecessors on the Court were as guilty of that as he is), I found the whole subject irrelevant, because all the states today are fiscally beholden to the federal government via a cornucopia of "entitlements" and bribes in terms of subsidies, grants and various welfare programs. To begin with, the states surrendered their "sovereignty" the moment they agreed to accept federal money for anything, whether to build highways or adopt federal standards of education in public schools.

 Criticizing the Court's latest decision that perpetuated the notion of sovereign immunity, Stevens writes:

Congress's power to enact laws that impose obligations on states and state agencies should include the power to authorize effective remedies for violations of those federal commands. (p. 105)

But, which commands? Which laws? Stevens makes no distinction between legitimate, proper laws, and fiat laws that "regulate" or abridge individual rights. As noted in Part II, Stevens does not even seem to be conscious of individual rights. They never enter into his calculations about what to do about alleged inequities in constitutional law.

His new amendment to the Constitution would read:

Neither the Tenth Amendment, the Eleventh Amendment, nor any other provision of this Constitution, shall be construed to provide any state, state agency, or state officer with an immunity from liability for violating any act of Congress, or any provision of this Constitution. (p. 106)

In Chapter 5, "The Death Penalty," Stevens tackles capital punishment. Early on, he rejects, or at least questions, the usual arguments in favor of the death penalty: as a deterrent to crime, especially murder; and as retribution. Of the two, Stevens thinks the second justification is more plausible than the first.

It can no longer be argued that execution of a potentially dangerous offender is necessary in order to remove the risk that he will commit further crimes. And the notion that the possible imposition of a death sentence is a significant deterrent on potential murderers must be modified to evaluate the marginal difference between the deterrent effect of that possible sentence and the deterrent effect of a sentence of life imprisonment without the possibility of parole. It is unlikely that criminals contemplating vicious crimes engage in the kind of cost-benefit analysis that would draw a distinction between those sentences. The real justification for preserving capital punishment surely rests on the interest of retribution. (pp. 109-110)

For once, I agree in part with Stevens. If one examines how some of the most vicious crimes have been committed, they do not seem to have been committed by perpetrators worried about the possible consequences in a court of law. They were committed by the perpetrators under the delusional hubris that they could get away with it, while they were on a "psychological high of invincibility." More often than not, they bungle the crime and leave evidence of their culpability behind; that is, it is only after the commission of the crime that they begin to be concerned about the possible consequences, and take precautionary actions to cover it up or leave evidence intended to mislead investigators away from their culpability and responsibility. 

Stevens writes:

…I am convinced that the question whether we should retain the death penalty depends on the strength of the interest in retribution – the interest in avenging the harms caused by the most vicious criminals. (p. 110)

Retribution and justice, however, are not necessarily synonymous. In countries or societies governed by the rule of law, vengeance can be visited on murderers only as an afterthought, as an attendant, secondary consequence after a concern for justice. But, so much human history is a bloody record of retribution and vengeance, when the real or alleged crimes of a few are blamed on whole populations or groups and those populations or groups are made to pay the price for others' actions. The Hatfields and the McCoys, the Holocaust, the interminable tribal warfare among Muslims, are examples of collectivist notions of retribution and vengeance, and often excused by the perpetrators of the massacres, genocides, and pogroms as "justice."   

Stevens references two cases, both of which required some form of capital punishment, Florida v. Nixon (2004) and Baze v. Rees (2008) to illustrate commonly held notions of retribution and the Eighth Amendment prohibition against "cruel and unusual punishment) and why he thinks they miss the mark in their intentions.

The first case concerned Joe Elton Nixon, who murdered a young woman by tying her to a tree with jumper cables and set her on fire with her belongings. Stevens notes that her "charred body made it obvious she had suffered a gruesome, excruciatingly painful death."  (See Daniel Greenfield's article about a similar crime and the controversy over the botched execution of another convicted murderer.)

Nixon had already been convicted and sentenced to death by Florida. Nixon appealed claiming that he had not been consulted by his attorney on a plea of guilty. The Chicago-Kent College of Law noted:

After several appeals the Florida Supreme Court granted Nixon a new trial. The court said Nixon's lawyer's comments were essentially a guilty plea and that because Nixon did not explicitly agree to the strategy, the lawyer was "per se ineffective."

However, an appeal to the highest court in the nation found that:

In a unanimous 8-0 decision, the Court ruled that Nixon's lawyer's strategy - pursued without Nixon's express approval - did not automatically qualify the lawyer as ineffective. The Court reversed the ruling of the Florida Supreme Court, faulting that court for inappropriately applying presumptions of prejudice and deficient performance.

The second case involved a suit brought against the state of Kentucky by two convicts who claimed that certain drugs used by the state during executions were ineffective in preventing pain in the subject. The Chicago-Kent College of Law noted:

In a 7-2 decision with four concurrences and a dissent, the Court held that Kentucky's lethal injection scheme did not violate the Eighth Amendment. Noting that the inmates had conceded the "humane nature" of the procedure when performed correctly, the divided Court [concluded that the] inmates had failed to prove that incorrect administration of the drugs would amount to cruel and unusual punishment….Justice John Paul Stevens wrote a separate concurring opinion supporting the judgment but for the first time stated his opposition to the death penalty.

 Reviewing the opinions that concurred in both cases, vis-à-vis the notion of retribution and causing (or avoiding) pain in the executed, Stevens wrote:

…But even under his view [Justice Clarence Thomas's] the interest in retribution would not justify any attempt to apply an "eye for an eye" standard of punishment. Just as the Nixon case and its aftermath illustrate the waning public support for using the death penalty to avenge serious crimes, the Baze case reminds us that the Court has already developed a rule of law that prohibits states from subjecting the defendant to the kind of pain that he inflicted on his victim. (pp. 118-119)

Following that summation, Stevens then wrote:

The requirement that guilt of a criminal charge be established by proof beyond a reasonable doubt has been part of our law from our early years as a nation, but it was not until 1970 that the Court finally held that it was an aspect of "due process" protected by the Fifth and Fourteenth Amendments to the Constitution. (p. 119)

Stevens then discusses, and quite rightly, the presumed infallibility of proof of guilt that could lead to unjust sentences, and chiefly the death sentence. The advances in DNA technology and forensic science have caused the release of many individuals sentenced to long terms in prison and execution, in which proof of guilt had been upended. Stevens notes, however:

We may never know…that the risk of such injustice arises when a defendant is sentenced to death. Moreover, we also know that the risk is significant and that the finality of state action terminating the life of one of its citizens precludes any possible redress if a mistake does occur. (p. 122)

I am of two minds on this subject. An individual found guilty of first degree murder (and beyond the shadow of a doubt) has forfeited his own life. I do not see the justice in allowing him to live, even without chance of parole, but at taxpayer expense, so that he may indulge, while incarcerated, in activities his victims are no longer able to enjoy: pursuing hobbies, reading up on criminal law, body building in a prison gym, sports, and etc. Perfect justice would require that the criminal vanish as he made his victim vanish, and this would be communicated to him in no uncertain terms before his execution, with no mention of retribution by "society" or how his death would serve the interests of "crime deterrence."

On the other hand, because of the fallibility factor, I would support the idea of simply sentencing such an individual (together with the "vanishing" advisory) to life imprisonment in solitary confinement, but with none of the aforementioned amenities or indulgences. He would be incarcerated in a cell bare but for a bunk, a sink, and a commode, fed according to a prison's mess schedule, and left to his own mental devices until he rotted away. This also would amount to a "death row," but it would accommodate the very, very slim chance of a reversal of a court's conviction based on newly discovered skewed, quirky, manipulated, or false evidence.

Stevens ends this chapter with his proposed change to the Eighth Amendment:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments such as the death penalty inflicted. (p. 123; Italics mine for Stevens's added words.)

Stevens saved the subjects of gun control and the Second Amendment for his last chapter, "The Second Amendment (Gun Control)." It is here that he begins to lose his measured calm and presence of mind. He claimed in an interview that it was the Sandy Hook Elementary School massacre in Newtown, Connecticut on December 14th, 2012, that prompted him to write Six Amendments. In his Prologue, Stevens claims that his discussion of the Second Amendment would be confined "to the area intended by its authors." This means that he will inject a bit of mind-reading and psychologizing about men who have been dead for over a century and a half. Never mind what they wrote. He includes a quotation from the late Chief Justice Warren Burger to telegraph his own feelings about guns and the presumed power of the government to regulate the private ownership of guns:

Five years after his retirement, during a 1991 appearance on the MacNeil/Lehrer NewsHour, Burger himself remarked that the Second Amendment "has been the subject of one of the greatest pieces of fraud, I repeat the word 'fraud,' on the American public by special interest groups [e.g., he meant the National Rifle Association, or NRA] that I have seen in my lifetime."

(The MacNeil/Lehrer NewsHour, known since 2009 as the PBS NewsHour, is a "news" program of that BBC-wannabe, the Public Broadcasting Service, which in turn is "owned" by the Corporation for Public Broadcasting, which is affiliated with National Public Radio, both even bigger BBC-wannabes funded by taxpayer dollars and by "contributions from people like you.")

The Second Amendment reads:

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

The Cornell University Law site provides a judicial history of the amendment and its varying interpretations.

On the one hand, some believe that the Amendment's phrase "the right of the people to keep and bear Arms" creates an individual constitutional right for citizens of the United States. Under this "individual right theory," the United States Constitution restricts legislative bodies from prohibiting firearm possession, or at the very least, the Amendment renders prohibitory and restrictive regulation presumptively unconstitutional.

On the other hand, some scholars point to the prefatory language "a well regulated Militia" to argue that the Framers intended only to restrict Congress from legislating away a state's right to self-defense. Scholars have come to call this theory "the collective rights theory." A collective rights theory of the Second Amendment asserts that citizens do not have an individual right to possess guns and that local, state, and federal legislative bodies therefore possess the authority to regulate firearms without implicating a constitutional right.

So, the phraseology, which is fairly clear – given the historical fact that states in the Framers' time depended on private citizens who already owned guns to become members of a militia – has been a bone of contention. One school of thought grants individuals the right to own guns; another denies that the Amendment grants that right.

To the contrary to Stevens's interpretation notwithstanding, the amendment grants private citizens to own guns. There are no extenuating circumstances, such as the kinds of guns, under which a federal or state government can prohibit private gun ownership. The Cornell site records when the Supreme Court began to be unnecessarily fussy and "detail oriented":

In 1939 the U.S. Supreme Court considered the matter in United States v. Miller. 307 U.S. 174. The Court adopted a collective rights approach in this case, determining that Congress could regulate a sawed-off shotgun that had moved in interstate commerce under the National Firearms Act of 1934 because the evidence did not suggest that the shotgun "has some reasonable relationship to the preservation or efficiency of a well regulated militia . . . ." The Court then explained that the Framers included the Second Amendment to ensure the effectiveness of the military.

This is the interpretation with which Stevens agrees. As I remarked in my first column, "Justice Stevens's Liberty-Destroying Amendments":

…[I]n the video on the NRO site, George Stephanopoulos asks Stevens about the five words Stevens would add to the "amended" Second Amendment: "…the right of the people to keep and bear arms [when serving in the militia] shall not be infringed." (Italics Stevens's) 

The "militia" meaning the National Guard or virtually any federal SWAT or armed law enforcement entity. It means that the government would have a monopoly on all weapons…..

Stephanopoulos: "Do you think that….clearly…that was what was intended?"

Stevens: "I do think that was what was originally intended, because there was a fear among the original framers that the federal government would be so strong that they might destroy the state militias. The amendment would merely prevent arguments being made that Congress doesn’t have the power to do what is in the best public interest."….

Have an argument that questions Congress's power to enforce gun-control? Stow it. Stevens's amendment forbids you to make it….

Stevens's amendment makes no sense at all. The right to bear arms as a private citizen either is or isn't "infringed." If it is infringed upon, then the only time you can exercise your "right" is when you're working for the government enforcing the government's will at gunpoint (lawfully or unlawfully). Then, when the task is completed, you would hand the weapon you used back to the armorer. You may "bear" the arms, but not own it. 

If it isn't infringed upon, then you may own and "bear arms," certainly without leave of the authorities, and without having to serve in any government policing or military force. Period.

In the Framers' time, state militias were largely drawn from a population of armed citizens. Stevens can't have been ignorant of this fact. What the Framers had in mind when wording that amendment was not only the ability of states to protect their sovereignty from federal power (together with dealing with violence in a state), but also the ability of private citizens to protect themselves from federal and/or state power, as well. The Framers were thinking in fundamentals and far ahead to a possible future when the government would turn on its citizens. (See a history of Shay's Rebellion and Cliven Bundy's recent stand against federal authorities, for examples.)

In conclusion, Justice Stevens's book is a prescription for the expansion of federal power beyond what already exists. I'm certain of this: That if the Framers could be brought back to life to see the present scope of federal power, it would cause them to faint in an instance of mass aneurisms, whispering: "What have you done???"

Six Amendments: How and Why We Should Change the Constitution, by John Paul Stevens. New York: Little, Brown and Company/Hachette Book Group, 2014. 192 pp.


GDW said...

I've never understood what's so difficult to understand about The Second Amendment. For one thing it's in The Constitution, so that should tell people something about it already (specifically, that if it were about anything other than limiting government power - not granting it - then it wouldn't be in a document that was created for no other purpose than to protect people from improper uses of government power). But more than that, the wording is really quite simple.

The phrase "A well regulated militia" has two vital considerations. First, "militia" - in those times - was synonymous with "military." The country was in it's infancy, and the various state militias were just as much of - if not more of - America's overall military might as The Continental Army was. Second, "well regulated" refers not to regulations concocted by men, but by those inherent in nature (eg: a tomato is "regulated" by gravity to fall of a table should it be pushed over the edge. Cause and effect is actually the "regulation" applicable here).

The second phrase - "being necessary to the security of a free state" - has it's own considerations. First, "being necessary" means that a military/militia necessarily has to be regulated by something (regulated by what? That is addressed shortly) - and second, "the security of a free state" is simply a fancy way of saying "making sure that America remains a free state/country" (as opposed to some other kind of country).

Combine all of this and, in plain English, it simply says the following: "The military needs to be kept in check if America is to avoid becoming a tyranical country" - and then it provides a way for that to happen. How? By ensuring that "the right of the people to keep and bear arms shall not be infringed." In other words: if the government knows that everyone - by right - can own and carry arms, then they're also going to deduce that many people will exercise those rights... which means that they had better not try to use the military to oppress the people... because if they do, the people will rise up and use force to "alter or abolish that government."

It's really that simple. All it requires is a bit of thinking - and, more importantly, honesty. Great article, Mr. Cline.

Edward Cline said...

GDW: Unfortunately, a little bit of thinking is either beyond the ken of the average politician, or his enemy or a nemesis. Most anti-gun advocates sense that if they gave the issue a bit of thinking, they'd realize what they were hankering for. So, they repress thought.