Category: Law

Guns v. Country

It’s tough to surpass The Onion with their synopsis of conservatives’ gun policy: “‘No Way To Prevent This,’ Says Only Nation Where This Regularly Happens.” The New York Daily News had their own snappy headline: “God Isn’t Fixing This” – as they mocked four conservatives for their usual empty platitudes in the wake of yet another mass shooting. The New York Times issued its first front-page editorial in nearly 100 years, calling for a ban on high-powered weapons, and lamenting the disgrace of conservative gun policies.

Following San Bernardino, conservatives werent content to offer their customary palliative – prayer, and a call for even more guns. As a special bonus, they defeated a law that would have made it illegal for people on terror watch lists, the mentally ill and convicted felons to buy guns. The stupid never ends.

There’s an unfortunate resemblance between conservatives’ approach to this issue, and their approach to universal health care. The US ranks near the bottom of the developed world in every health measure: infant mortality, child mortality, adult mortality and life expectancy. And Americans pay more than double the OECD average in per capita healthcare expenses. The thing sets the US apart from those other countries is that it does not have universal, government-paid health insurance. The US has spent decades trying to reinvent the wheel, though the cure for poor health and high healthcare costs has been well-known for ages, with success stories the world over.

It’s the same with gun control. The solution has been effected in every other developed western country, with excellent results: make all guns harder to obtain; and ban the most dangerous guns altogether. Instead the US has done nothing – and to go with the easiest access to guns in the western world, the US not coincidentally has by far the highest rate of gun violence. The murder-by-gun rate in the US is at least eight times higher than it is in every country in Western Europe. It’s 60 times higher than the UK rate.

America’s gun troubles extend to every corner of the country. 49 US states have higher gun-murder rates than every country in Western Europe. (The rate in Vermont is a bit lower than that of Portugal.) At the high end, Missouri’s gun-murder rate is 25 times higher than the typical Western European country. Louisiana’s rate is nearly 40 times higher.

Moving beyond comparisons with Western Europe: the US gun-murder rate is 50% higher than that of Argentina; triple that of Chile; 3.5 times that of Israel; six times that of Greece; seven times that of Canada; twelve times that of India; 35 times that of Australia; and 175 times that of Poland.

In response to a 1996 mass-shooting, Australia passed strict gun control legislation – and hasnt had a single mass shooting since. Australia’s gun murder rate has dropped by 60%; it’s violent crime rate has dropped by more than 20%; and studies show that the price of guns on the black market has gotten so steep, that criminals lack the means to purchase them.

Meanwhile, the US has had more than 350 mass shootings in 2015 alone, and is on track for 30,000 dead from guns by year’s end – making for a very typical year. We neednt wonder what a solution might look like, or whether it might succeed. The cure for the national scourge of gun violence is gun control – same as it’s been everywhere, the world over.

 

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Editor’s note: The Field Guide is off for winter break – we’ll see you in the New Year.

 

Refs:

http://www.nytimes.com/2015/12/05/opinion/end-the-gun-epidemic-in-america.html

http://www.theonion.com/article/no-way-to-prevent-this-says-only-nation-where-this-36131

http://money.cnn.com/2015/12/13/media/new-york-daily-news-guns/

http://www.washingtonpost.com/wp-dyn/content/article/2010/06/11/AR2010061103259.html

https://en.wikipedia.org/wiki/List_of_countries_by_firearm-related_death_rate

https://en.wikipedia.org/wiki/Gun_violence_in_the_United_States_by_state

Nice paper showing how gun prices make it harder for criminals to obtain guns, when stricter gun control is adopted: http://home.uchicago.edu/~ludwigj/papers/EJ_gun_markets_2007.pdf

Stupidity from the usual suspects:

Success stories abroad:

The US body count:

We at the Field Guide offered our own market-based solution: require that gun owners buy insurance to cover any harm their gun may do – including harm done after it’s stolen. Then sit back and watch as the insurance market prices guns into oblivion. Sorry for trying to reinvent the wheel – we just like listening to conservatives argue against free markets. https://liberalfieldguide.org/2014/01/31/gun-economics/

 

 

VW Buggin’ Out

News of Volkswagen’s fraudulent evasion of EPA and EU regulations is astonishing. Emerging facts show that VW sold 11 million cars and trucks that were secretly designed to run clean only when they were being emissions-tested, but to run dirty otherwise. The difference between clean and dirty performance is enormous. Under dirty operation, VW diesels emit up to forty times more nitrogen oxides (NOx) than they do under clean operation. NOx is known to cause respiratory problems – sickening and killing many thousands of people each year.

The consequences that VW now faces are no less staggering. In the US alone, where fewer than 5% of the relevant vehicles were sold, potential EPA fines exceed $18 billion. Individual states might also sue, and about 25 class-action suits on behalf of consumers have already been initiated. Criminal prosecution is also a possibility.

VW officials have admitted to covertly incorporating a “defeat device” in some of its diesel engines. According to EPA regulations,

(§86.1803-01) Defeat device means an auxiliary emission control device (AECD) that reduces the effectiveness of the emission control system under conditions which may reasonably be expected to be encountered in normal vehicle operation and use….

VW isnt the first automaker to get caught trying to sneak one past EPA. In the 1990s, Ford, GM, and several truck manufacturers paid fines for employing similar cheats, to misrepresent vehicle emissions for the benefit of EPA, while enabling those vehicles to have far better fuel economy than they could have otherwise attained.

And thus we come to our point. Lots of waste comes out of a car’s tailpipe, and present technology allows us to make tradeoffs between different kinds. In many cities – Los Angeles, Phoenix, Houston, London, Paris and Beijing, for example, where air pollution is a problem – we prefer to minimize the release of NOx. But we pay a price with diminished fuel economy, releasing significantly more carbon dioxide (CO2) per mile driven. While NOx directly harms human health, CO2 contributes to global warming. And there are many parts of the world that arent given to air pollution, where it would be preferable to allow cars to achieve better fuel economy, releasing more NOx, but less CO2.

EPA has always taken a one-size-fits-all approach to automobile emissions, which is reasonable, given that cars are mobile. A car sold in Florida, which has good air quality, can readily find itself in California or New York. But today, used in conjunction with a GPS sensor, VW’s engine software could be husbanded for a good purpose. Depending on a vehicle’s location and the time of year, an engine could alternatively tune itself to achieve the highest possible fuel economy – releasing the least possible CO2 in areas where NOx pollution is not a health hazard – but then tune down to minimize NOx release in localities where air quality is problematic, accepting poorer fuel economy as a tradeoff.

We arent excusing VW for its considerable wrongdoing. Rather, we’d take this occasion to consider the options that modern engine technology affords us, in light of our competing environmental objectives.

 

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Stupid Originalist Tricks

Why should liberals expend energy bashing conservatives – when conservatives do the job so much better? This week, the Field Guide takes aim at “originalism,” to again demonstrate that conservatism, at its roots, has no principles. It is not a political philosophy – it’s just a bunch of crap packed together by historical accident, and held together through a firm commitment to not thinking it to death.

Originalism, nominally, holds that the US Constitution should be interpreted the way the people who wrote it and-or ratified it would have interpreted it. Take the 14th amendment’s birthright citizenship clause:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

Hard to imagine how anyone who ever complained about judicial activism could suggest that the 14th amendment means anything but what it says: if you are born in the US, you are a US citizen. But it hasnt prevented conservatives from claiming that the US-born children of illegal aliens are exempt from the 14th amendment’s plain meaning.

Their argument seizes on the “subject to the jurisdiction thereof” requirement, somehow asserting that illegal aliens are not subject to US jurisdiction. Anyone who knows a little bit about law should know what the consequence of that would be. It would mean that illegal aliens could not be tried for any crime, nor compelled to appear for civil disputes either. They would have the same immunity as do diplomats (the actual, intended targets of the jurisdiction requirement), who can be expelled from the country, but cannot be brought to court to answer for their misdeeds. If that sounds crazy, wait – there’s more.

At the time of the 14th amendment’s ratification, the US had never had an illegal alien. The borders were open, and had been since colonial times. Anyone could emigrate to the US – and, under the common law, their children automatically became citizens. How could the writers and ratifiers of the 14th amendment possibly have intended an exception for a class of people that didnt exist!?

Moving on to the next stupid originalist trick: If you saw the GOP debate, you may have caught Marco Rubio advancing the loopiest anti-abortion argument to date. Per Rubio, the 5th amendment’s due process clause,

No person shall… be deprived of life, liberty, or property, without due process of law….

applies to fetuses and embryos. And so we dont need state or federal anti-abortion statutes – abortion is already illegal under the US Constitution – we just need five justices to say so.

We happen to know that Rubio is an originalist, because after the Supreme Court’s decision in Obergefell, (legalizing gay marriage nationwide), Rubio said,

It must be a priority of the next president to nominate judges and justices committed to applying the Constitution as written and originally understood.

So did the 5th amendment, “as written and originally understood”, really include fetuses and embryos as “persons” – and outlaw abortion from way back in 1791?

To answer that question, it helps to know that abortion was legal in all 13 states at the time the Bill of Rights was adopted – as it had been in all 13 colonies previously – as it had been for several hundred years under the common law. And so Rubio will have to find some other pretext for his political beliefs. Or he can simply abandon originalism, and interpret the Constitution according to some other style. We at the Field Guide are betting that he does neither – self-contradiction, after-all, is the conservative way.

 

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Liberty, Democracy and Gay Marriage

Dissenting from the Supreme Court’s recent decision legalizing gay marriage nationwide, Chief Justice John Roberts wrote,

Those who founded our country would not recognize the majority’s conception of the judicial role. They after all risked their lives and fortunes for the precious right to govern themselves. They would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges.

In his own separate dissent, Justice Antonin Scalia wrote,

This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.

On the other side of the debate, a five-justice majority held that a person’s right to marry is so fundamental that it cannot be constrained by democratic processes. Justice Anthony Kennedy sums up the relationship between liberty and democracy embodied in the nation’s charter:

…[T]he Constitution contemplates that democracy is the appropriate process for change, so long as that process does not abridge fundamental rights.

As is often the case, both the Court’s prevailing liberals and its dissenting conservatives lay claim to the mantle of the nation’s founders. But which of them has it right?

Before 1776 Americans were British subjects, and regarded themselves as fortunate, compared to French and Spanish subjects, because of Britain’s longstanding liberal traditions. America’s pilgrims brought the principles embodied in the Magna Carta with them to the new world, including an expansive notion of individual liberty, safeguarded significantly by an independent judiciary.

Compared to liberty, democracy in 18th century Europe was relatively unknown. Scalia’s contention – that self-governance was 18th century America’s most valued liberty – isnt merely at odds with history, but with the plain language of the Declaration of Independence as well. Though the word “right” occurs ten times in the Declaration, it is never associated with the right to vote. The rights of rebellion and self-governance are not characterized as “unalienable” absolutes, but are conditioned upon a government’s failure to secure a people’s absolute rights to “life, liberty and the pursuit of happiness.” The term “democracy” is nowhere to be found.

The American Revolution was not born of a naked desire for self-governance. The text of the Declaration of Independence explains why the nation’s founders were driven to “dissolve the political bands” holding them to Great Britain: the king was running roughshod over their liberties. The bulk of the Declaration is a litany of complaints against an illiberal monarch.

Once one appreciates that the American Revolution was principally about liberty – that democracy was seized upon afterward as the best means toward that end – the particular form of the US Constitution makes perfect sense. Fearing that liberalism might be lost in the transition from monarchy to republic, the Constitution painstakingly limits democracy.

The original Constitution only granted suffrage to white men with property. The only government body they were permitted to elect directly was the House of Representatives. Senators were appointed by state governments. Americans still dont vote directly for the president, but for an intermediary body (the electoral college). And judges are still appointed by the president to lifelong terms.

To constrain democracy further, a Bill of Rights was appended to the Constitution. After amendments one through eight – in which 25 distinct rights are set above and beyond the reach of the majority’s will – the ninth amendment follows as a blank check for liberty for future generations:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Thus one cannot infer from the absence of a given right from the Constitution (like marriage – or gay marriage) that that right does not exist.

American liberty was not born in the American Revolution – it was carried over from a much older English liberal tradition that predates American democracy by several centuries. Democracy was a grand experiment, subject to considerable and manifold limits, to ensure that the prize, liberalism, would endure under a new form of government.

The US Constitution most acutely restricts the power and reach of the majority where it concerns our most basic rights – to prevent a majority from becoming a tyrant itself. Contrary to Roberts’ assertions, for centuries before the American Revolution, and centuries since, courts have stood as a bulwark against the day’s oppressors, upholding fundamental rights against usurpations by kings and majorities alike.

Conservative complaints that the Court’s decision is anti-democratic are accurate, but misplaced. Democracy was born after the American Revolution as a means toward liberalism – not as an end in its own right. Liberty is the older tradition, which democracy was established to maintain and defend – not undermine. When the two are at loggerheads, democracy must yield.

 

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Editor’s note: The Field Guide is on summer vacay – we’ll be back with new material in mid-August.

Gay Marriage: Liberalism v. Democracy

Last summer, the Field Guide ran a three-part series on the tension between liberalism and democracy, particularly on how it plays out in developing countries, informing US foreign policy. But to see that tension, Americans need look no further than their own founding document.

The Bill of Rights, above all, is a list of what a majority cannot do through ordinary democratic processes. It is a bulwark of liberalism against the threat posed by democracy. The US Constitution, with its limited powers, cumbersome amendment process, and lifetime tenure for federal judges, is a grand scheme to guarantee the blessings of liberalism against the corrosive force of democracy. In American governance, liberty and democracy are not equal partners – liberty comes first.

The struggle between liberalism and democracy is so acute that hardly a Supreme Court session passes without conflict. The 2015 session included one of the most remarkable such cases in US history, Obergefell v. Hodges, through which the Court legalized gay marriage nationwide: a victory for liberalism, at the expense of democracy.

In a characteristically feeble opinion by Anthony Kennedy, five justices in the majority take a stand for liberalism. Marriage has long been regarded by the Court as a “fundamental right.” State restrictions on marriage have been struck down repeatedly over the past 48 years, including bans on inter-racial marriage, and limits on prisoner’s ability to marry. The majority’s decision extended this “fundamental right” to gay unions also, nullifying state governments’ bans on gay marriage.

In dissent, quite predictably, three conservatives pen disingenuous paeans to democracy – one each by Justices Roberts, Allito and Scalia. Scalia loves democracy so much, he once ordered Florida election officials to stop counting ballots, lest they come to the wrong result. The three of them, with Clarence Thomas, are such proponents of democracy, that just two terms ago they gutted the Voting Rights Act – freeing up southern states to go back to excluding minorities from the ballot box. They’ve gleefully squelched a democracy’s efforts to regulate campaign finance, and struck down gun-control legislation in American cities that have among the highest murder rates in the world.

But it’s far too easy to undercut the conservative dissents by invoking those Justices own considerable anti-democratic decisions of the past. They make some compelling points, which dont just merit an answer – they need to be soundly trounced, so that all may see the error of their ways.

While it’s unfortunate that the Court’s Opinion – now the law of the land – wasnt stronger, this bold stroke is worth repeating:

The idea of the Constitution “was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities….”

And even more eloquently:

[F]undamental rights may not be submitted to a vote; they depend on the outcome of no elections.

In other words, the specific complaint of the conservatives in dissent – that democratic processes were not respected; that states should be left to settle the gay marriage question as they see fit – has no place within the framework of the US Constitution, which exists significantly to exclude questions of fundamental rights from the democratic process. Majorities have wide latitude to make laws and set policy – but they cannot encroach on our most basic freedoms. And so when democracy and liberalism clash on this front, democracy must yield.

To understand why democracy was made to ride in the backseat behind liberalism, you have to go back to the birthplace of American democracy: the American Revolution.

We’ll meet you there next week.

 

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Race, Religion and Madness

There is a double-standard at play, with respect to our understanding of the Charleston killer. Though his act and his stated motivation conforms squarely within the legal definition of terrorism, many do not regard him as a terrorist, but as a common criminal – yet another well-armed, mentally-ill American. If, for example, he had been an Islamist, he would have been unequivocally identified as a terrorist, as were the conspirators behind the Boston Marathon and Charlie Hebdo attacks.

Consider this partial definition of terrorism, from the FBI’s website:

“Domestic terrorism” means activities… intended to intimidate or coerce a civilian population; to influence the policy of a government by intimidation or coercion; or to affect the conduct of a government by mass destruction, assassination, or kidnapping.

The definition calls for a specific act and an accompanying mental element. There’s no debate on the act. As for the intent, the accused put out a lengthy statement, declaring his racial and political beliefs and goals. And thus there can be no serious question as to whether what occurred in Charleston fits the legal definition of terrorism. It does, and obviously so.

And so we come to the curious reaction of many – including FBI director James Comey – who would not regard the accused as a terrorist, but as a mere criminal, and quite possibly insane. What’s happened is that white supremacy, as a political movement, has become so alien to mainstream America, that it’s no longer comprehensible as a cogent political philosophy.

Those who commit acts of violence in furtherance of white supremacy are not afforded the dignity of being labeled political activists. Rather, they are belittled as kooks and-or criminals. We make no attempt to meet or comprehend their arguments – we summarily dismiss them as the product of ignorance, at best, if not madness. This is progress.

In the first half of the 20th century, the white supremacy movement was a basic part of the American political landscape. One-time Klan members included President Truman, Supreme Court Justice Hugo Black, and Senator Robert Byrd. Today, its adherents no longer seem like political actors, but as crazies, who might as well be wearing tinfoil hats in place of white hoods. This, again, is progress.

By comparison, they who commit indistinguishably insane acts under the auspices of religion are called “extremists” or “radicals.” Instead of likewise dismissing them as criminals and crazies, Islamist terrorists are dignified as political activists. While white supremacy has been dispatched to the dustbin of bad ideas, killing in furtherance of religion still has a recognizable logic, such that its advocates are not immediately identified as insane, criminally or otherwise.

What constitutes sanity or madness in a given time and place is informed by cultural and social norms, and even economics, and always has been. Michel Foucault filled three hundred pages adding window dressing to this simple observation, in his tedious classic Madness and Civilization. That we might treat the Charleston shooter as a mere criminal, or a madman, is an improvement. One hopes that we, as a society, will come to see violence committed in the name of religion to be no less mad.

 

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Refs:

https://www.fbi.gov/about-us/investigate/terrorism/terrorism-definition

http://thehill.com/blogs/blog-briefing-room/news/245649-fbi-head-wont-call-charleston-shooting-a-terrorist-act

http://www.thedailybeast.com/articles/2015/06/22/white-house-won-t-back-fbi-chief-on-charleston-terror.html

http://www.washingtonpost.com/posteverything/wp/2015/06/18/call-the-charleston-church-shooting-what-it-is-terrorism/

http://www.thedailybeast.com/articles/2015/06/18/let-s-call-charleston-shooting-what-it-was-a-terrorist-attack.html

https://en.wikipedia.org/wiki/Ku_Klux_Klan_members_in_United_States_politics#Edward_L._Jackson

Liberty v. Security

Centuries ago, an English jurist opined that it was better that a few good men be killed on the highways each year, than the rest of us should live in tyranny. Ever has it been thus: increased security, which one acquires by increasing the power of government, comes necessarily at the expense of liberty. It might be possible to eliminate nearly all crime – but to do so, one would have to eradicate almost all liberty.

Just as your plumber and electrician would gladly, for a price, improve your plumbing and lighting, so too would your police force make you safer – and safer – and safer still. When the Obama administration insists that they require certain provisions of the Patriot Act to make Americans safer, we have good reason to believe them. But no matter the intentions of these well-meaning professionals, our objective isnt to maximize our plumbing, lighting or security without respect to cost. Beyond a certain point, a society will prefer a certain amount of crime – rather than having a police camera at every intersection and in every living room, and-or the power to monitor all electronic communications.

While the natural evolution of government is, inexorably, to grow ever larger, the US now has a rare opportunity to go against the natural order of things, and to shrink the size of its security apparatus. At a minimum, the expiry of significant portions of the Patriot Act should be taken as an occasion to reevaluate the nation’s security priorities, particularly on how they impact privacy and the power and intrusiveness of government.

Of course one must avoid the conceptual error of the bureaucrats whose deregulation of the financial services sector unwittingly paved the way for the 2008 financial crisis. One does not want to be the man who throws away his umbrella because he hasnt felt a raindrop in ages – failing to realize that the umbrella had been keeping him dry all along. Americans have enjoyed relative quiet since the 1993 and 2001 World Trade Center attacks, and the 1995 Oklahoma City bombing, without experiencing domestic terrorism of that magnitude. By reducing the power of the police, we necessarily make terrorism, large scale and small, that much more likely.

Walt Whitman wrote that great poets needs great audiences. Analogously, great leaders need a great electorate. And it is unfortunate that no one in Congress trusts American voters enough to accurately frame the debate over extending the expiring portions of the Patriot Act. It is indeed a matter of sacrificing liberty for security, or vice-versa. The problem in part is one of trust – that the electorate is not expected to react reasonably to an act of terrorism – or three or six – much less accept it as a fair price to pay for increased liberty. Politicians like Rand Paul should stop equivocating, and make that case, because that indeed is the tradeoff we as a society must inevitably make.

Not everyone will agree on the same balance to be struck between liberty and security, but it is the sort of issue that a democracy is ideally suited to hash out. We look forward to that debate, should our elected officials muster the courage for it.

 

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Editor’s note: the Field Guide is off for an early-summer vacay. We’ll be back with new material in mid-June.

 

Who’s Down with TPP

It aint your grandpa’s trade agreement. Though the proposed Trans-Pacific Partnership is attended by the usual chorus, featuring competing refrains of “International Trade Took My Job” versus “International Trade Got me a Better Job, plus some Sweet Deals at Walmart,” the controversial aspect of TPP isnt the opening of borders through the elimination of tariffs. It’s about strengthening the power of corporations over national governments, and limiting governments – democratic or otherwise – in their ability to regulate industry.

A relatively minor story just out of Congress serves as a good illustration. The House Agriculture Committee voted to repeal a US labeling law that requires meat to specify its country-of-origin. What’s interesting is why the committee moved to eliminate the law: not because they thought country-of-origin information was superfluous or irrelevant to consumers; but rather because the World Trade Organization decided that the labeling law discriminated against Canadian and Mexican firms. If the US fails to repeal the law, Mexico and Canada will be permitted to retaliate, and that will be costly.

Ignoring whether these labeling laws are actually good or bad for US consumers – we focus instead on the process. An international tribunal made a decision, and Congress is now likely to respond by changing US laws – not for the interests of their electorate (as if!), but without regard to their interests.

TPP goes even further. It would create new supra-national tribunals, in which firms could sue governments for their failure to respect TPP’s provisions. Prevailing firms could effectively collect their “lost profits” from taxpayers. And the tribunals would not be staffed by independent judges with lifetime appointments – but rather by corporate representatives on a rotating basis. Today you’re a plaintiff, tomorrow you’re a judge, and next week you’re a plaintiff again. Nice work if you can find it….

Tariffs have already been all-but eliminated across international borders by existing trade agreements. Modern-day trade agreements like TPP are much more concerned with dispute resolution processes and harmonization of national laws, to smooth things out for multinational corporations. That in itself isnt a bad thing. In past decades, the US pushed to make commercial laws uniform across the fifty states. The resulting Uniform Commercial Code has helped to facilitate interstate commerce.

But TPP would go even further, and may too much restrict the latitude of governments. For example, TPP takes aim at banking regulations. While we could all probably get on not knowing whether our pork chop hails from Texas or Manitoba, we should not be thrilled to see US banking reforms – passed in the wake of the 2008 financial crisis – undone.

Free trade is good – and freer is usually better. That the parties to a transaction may be based in different towns, states or countries isnt terribly important to the analysis. If everyone acts according to their individual interests, the net result is usually that everyone is better off. While things usually are that simple, circumstances arise when people, through their governments, should restrict trade to further a greater good.* And the problem with TPP is that it promises to run roughshod over democratic processes, by which individual nations tailor their laws according to their own values and their perception of the national interest.

 

Refs:

http://en.wikipedia.org/wiki/Trans-Pacific_Partnership

http://www.thenation.com/article/168627/nafta-steroids#

http://krugman.blogs.nytimes.com/2015/05/19/the-mis-selling-of-tpp/?module=BlogPost-Title&version=Blog%20Main&contentCollection=Opinion&action=Click&pgtype=Blogs&region=Body

http://www.washingtonpost.com/blogs/plum-line/wp/2015/04/30/battle-rages-over-key-obama-trade-policy/

http://www.bloomberg.com/politics/articles/2015-05-15/warren-claim-that-trade-bill-could-undermine-dodd-frank-is-right

http://news.yahoo.com/house-consider-repeal-meat-labeling-law-071204979–finance.html

http://www.azlyrics.com/lyrics/naughtybynature/opp.html

 

* For example, it doesnt much matter whether a factory releases carbon dioxide in Canton, Ohio or in Guangdong, China – the impact on global warming is the same. While people in one country might reasonably accept a dirtier local environment as a cost of having more local industrial jobs, their decision to not regulate carbon impacts people in all countries. And so it’s quite reasonable for other countries to limit trade with the polluting country, as a means of protecting their own environment.

Another example: Left to themselves, laborers tend to organize and demand better pay and working conditions. Therefore there is little pressing need for western countries to impose their own labor standards on the developing world. However some third world governments systematically harass and suppress labor movements in an effort to artificially maintain a competitive advantage. It is reasonable to respond with trade restrictions if only to ensure a level playing field, if not to promote human rights.

 

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No Freedom to Discriminate

The US Supreme Court seems poised to end state bans on gay marriage in the few states that still do not permit it. Under the 14th amendment, states are not allowed to deny “equal protection of the laws” to any person. As distinctions between traditional marriage and same-sex marriage wither under scrutiny, state bans on same-sex marriage become ever more apparently a bald denial of equal protection, and will very likely be declared unconstitutional by the Court when it renders its decision in the coming months.

But just as one form of discrimination is about to be stamped out, another is trying to emerge. Such discrimination occurs in a commercial setting – when, for instance, a gay couple goes to a baker for a wedding cake, and the baker refuses. (This is analogous to racial discrimination from the Jim Crow era, when a black person seeking a room in a whites-only hotel could be turned away by the manager.) Unlike bans on gay marriage, which are perpetrated by the government, this form of discrimination is committed by private citizens – and there’s no federal law against it.

While the Bill of Rights and the 14th amendment secure individual rights against federal, state and local governments, they are generally inapplicable to the rights we hold with respect to each other. That’s why the US needed the Civil Rights Act of 1964 to end apartheid. Under federal law, before the Civil Rights Act, the proprietor of a shop could turn away any prospective customer or employee for any reason whatsoever. One could choose to serve and-or hire blacks only, whites only, Catholics only, Jews only, etc. – and the US Constitution had (and still has) nothing to say about it. While the Constitution forbids governments from maintaining whites-only buses, or blacks-only universities, it allows private parties to do as their conscience (or lack thereof) dictates. It is because of the Civil Rights Act – not the Constitution – that private parties cannot discriminate on the basis of “race, color or creed” in the course of operating a business.

While red states lag far behind blue states in virtually every socioeconomic measure, they are great innovators of bigotry and intolerance. The Supreme Court’s unfortunate decision in Hobby Lobby gave conservatives a new not-so-bright idea. The Court held that closely-held corporations can refuse to provide their employees with health insurance coverage for birth control, if doing so ran afoul of their “religious beliefs.” In other words, a corporation’s Constitutional “religious freedom” takes precedence over a federal law requiring them to provide insurance coverage for family planning.

Enter the “Religious Freedom Restoration Acts” (RFRAs) now working their way through state legislatures across the country. On their face, they seem innocent – as was the original RFRA passed by Congress in 1993, and signed into law by Bill Clinton. The idea was to give people the right to refuse certain impositions on the part of the government, when they conflicted with their religious beliefs. But a few red states got the notion to expand the application of these laws to private parties as well. And so if a gay couple asks a baker to bake them a cake, the baker might be able to rely on a state RFRA to refuse. The analog to Hobby Lobby is unmistakable, as it should be. Conservatives thought they found a new lipstick for their pig: by dressing up bigotry in the garb of religious freedom, maybe they could sneak it past the courts, and engender a whole new era of discrimination.

Indiana and Arkansas seemed bent on passing RFRAs that facilitated this new form of discrimination. And then something remarkable happened: corporate America rose up in opposition, and the GOP in both states were cowed into amending their laws so that bigots could not rely on them to discriminate.

The US Supreme Court has yet to hear a case on whether one can invoke ones religious beliefs to discriminate against others on the basis of their sexual orientation. Many states afford no protections for gays from discrimination. And Congress has thus far failed to pass a Civil Rights Act for gays. But it is heartening to see this new form of bigotry beaten back by public opinion. The LGBT community assuredly needs a federal Civil Rights Act affording them full protection from commercial discrimination, nationwide. And the road to that destination just got a bit smoother.

 

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Refs:

http://en.wikipedia.org/wiki/Religious_Freedom_Restoration_Act

http://en.wikipedia.org/wiki/Employment_Non-Discrimination_Act

4 articles with comprehensive coverage of RFRAs: http://www.washingtonpost.com/blogs/govbeat/wp/2015/04/01/the-twisted-history-of-how-religious-freedom-laws-confused-everybody/

http://www.usatoday.com/story/news/politics/2015/04/02/arkansas-religious-freedom-bill/70831330/

http://www.huffingtonpost.com/2015/04/02/asa-hutchinson-arkansas-rfra_n_6995826.html

http://www.usatoday.com/story/news/nation/2015/04/02/indiana-religious-freedom-law-deal-gay-discrimination/70819106/

http://www.hrc.org/resources/entry/employment-non-discrimination-act

 

Bergdahl Rules

The successful effort to obtain the release of captured US Army Sergeant Bowe Bergdahl set a high water mark for idealism, and highlights the best of American governance. Though the subtleties of law and principle implicated in Bergdahl’s case are easily manipulated by cynics, and thus misapprehended by the unwitting many, a great deal of good, and a fine precedent, has nonetheless proceeded from a difficult situation.

The evidence strongly suggests that Bergdahl deserted. While he’s entitled to the presumption of innocence, for our purposes, we’ll assume that Bergdahl will be convicted of desertion, and that the Obama administration expected as much as they worked to obtain his release, ultimately paying a significant price. It’s also reasonably assumed that the five Guantanamo prisoners, whom the US gave up in exchange for Bergdahl, are indeed dangerous, simply because the Taliban wanted them. And so the threshold issue is why the US would give up so much to rescue a deserter, who has likely been brought back to the US for the sole purpose of standing trial, to thereafter serve a lifetime sentence in a military prison.

The rationale was best expressed in the terse phrasings of Army Chief of Staff Anthony Odierno: “It was always a high priority that every soldier deployed to Afghanistan would return home. We will never leave a fallen comrade behind.” Or as a US Admiral put it, “If a man goes overboard, we will go and get you – we wont stand around asking if you jumped.” The commitment of the US military to every one of its servicemen has no exceptions for poor performance. The policy of leaving no man behind has no asterisk after it.

Some have raised the issue of the US policy against negotiating with terrorists. However the Taliban has never been classified by the State Department as a terrorist organization, neither under the Bush nor Obama administrations. The US went to war against Afghanistan not because the Taliban – its rulers – were terrorists, but because they were harboring terrorists. The Taliban is better regarded as an especially brutal, repressive regime (and-or insurgency), in the vein of Hitler, Stalin, Pol Pot, Pinochet, Trujillo, etc. And the US has exchanged prisoners with many such regimes in the past, including Nazi Germany, the USSR, and even the Confederate States of America. Right-wing hysteria notwithstanding, the Obama administration’s decision to negotiate with the Taliban does not set a precedent or mark a departure from longstanding US policies.

A particularly silly criticism of the deal is that the US paid “too high a price” for Bergdahl – that after years of negotiating, the US in the end caved in and sent five enemy combatants for a single US soldier. Such critiques are particularly frivolous, advanced as they are in a factual vacuum, by people who were not privy to the negotiations. More absurd is the “problem” such critics seem anxious to head off: the US placing too great a value on the lives of its soldiers.

A more interesting issue is President Obama’s decision to flaunt the National Defense Authorization Act for Fiscal Year 2014, which mandates that 30 days notice be given to Congress before any prisoners are transferred from Guantanamo. That law, which Obama signed into effect, poses a separation of powers issue, and there is a very good chance that it is an unconstitutional usurpation of executive authority by Congress. (Obama said as much in his signing statement.) While in other countries the courts could resolve the matter with an advisory opinion, the US Supreme Court only has jurisdiction over live “cases and controversies” – i.e., the president cannot inquire as to whether a law is constitutional – he must make his own decision and act without the benefit of the Court’s opinion. And in such circumstances, very few conlaw scholars take the extreme viewpoint that the president must “faithfully execute” laws that seem to run afoul of the Constitution.

It would have been far easier for the Obama administration to do what some on the right-wing lunatic fringe suggested: try Bergdahl in absentia, obtain a verdict of guilt, and disown him. (Though it’s naive to imagine conservatives rallying behind the president as Bergdahl’s corpse was dragged through the streets by his captors.) Instead of taking an easy way out, the Obama administration stood fast to principle: faithful to the policy of bringing every man home; and to the presumption of innocence; and the commitment to due process, which affords the accused the opportunity to face his accusers and participate in his own defense. While the price paid for Bergdahl may have been dear, in the end it wasnt one soldier that the US was paying for, but a set of principles that go to the foundation of the republic.

 

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