Archive for the ‘Politics’ Category
posted by Albert Wong
By Albert Wong and Valerie Belair-Gagnon, Information Society Project at Yale Law School
In a recent article in the Columbia Journalism Review, we reported that major US newspapers exhibited a net pro-surveillance bias in their “post-Edward Snowden” coverage of the NSA. Our results ran counter to the general perception that major media outlets lean “traditionally liberal” on social issues. Given our findings, we decided to extend our analysis to see if the same bias was present in “traditionally conservative” and international newspapers.
Using the same methods described in our previous study, we examined total press coverage in the Washington Times, one of the top “traditionally conservative” newspapers in the US. We found that the Washington Times used pro-surveillance terms such as security or counterterrorism 45.5% more frequently than anti-surveillance terms like liberty or rights. This is comparable to USA Today‘s 36% bias and quantitatively greater than The New York Times‘ 14.1% or the Washington Post‘s 11.1%. The Washington Times, a “traditionally conservative” newspaper, had the same, if not stronger, pro-surveillance bias in its coverage as neutral/”traditionally liberal”-leaning newspapers.
In contrast, The Guardian, the major UK newspaper where Glenn Greenwald has reported most of Snowden’s disclosures, did not exhibit such a bias. Unlike any of the US newspapers we examined, The Guardian actually used anti-surveillance terms slightly (3.2%) more frequently than pro-surveillance terms. Despite the UK government’s pro-surveillance position (similar to and perhaps even more uncompromising than that of the US government), the Guardian‘s coverage has remained neutral overall. (Neutral as far as keyword frequency analysis goes, anyway; the use of other methods, such as qualitative analysis of article tone, may also be helpful in building a comprehensive picture.)
Our extended results provide additional context for our earlier report and demonstrate that our analysis is “capturing a meaningful divide.”
On a further note, as several commenters suggested in response to our original report, the US media’s pro-surveillance bias may be a manifestation of a broader “pro-state” bias. This theory may be correct, but it would be difficult to confirm conclusively. On many, even most, issues, the US government does not speak with one voice. Whose position should be taken as the “state” position? The opinion of the President? The Speaker of the House? The Chief Justice? Administration allies in Congress? In the context of the Affordable Care Act, is there no “pro-state” position at all, since the President, the Speaker, and the Chief Justice each have different, largely irreconcilable views?
November 1, 2013 at 11:02 am Posted in: Anonymity, Civil Rights, Culture, Current Events, Cyber Civil Rights, Government Secrecy, Politics, Privacy, Privacy (Electronic Surveillance), Privacy (Law Enforcement), Privacy (National Security), Technology, Uncategorized Print This Post 10 Comments
posted by Frank Pasquale
If you asked Ted Cruz or Jim DeMint who was the guiding spirit of their government shutdown, they’d probably mention Friedrich von Hayek. The Nobel Prize winning economist warned the world that “socialism” would put citizens on a “road to serfdom.” For the Tea Party, PPACA is a horror, perhaps even a new form of slavery, a threat to liberty even darker than the feudal past Hayek evoked.
But there is another figure just as important to current neoliberal thought as Hayek. Carl Schmitt provided jurisprudential theories of “the emergency” and “the exception” that highlighted the best opportunities for rapid redistribution of wealth upwards. In Never Let a Serious Crisis Go to Waste, Philip Mirowski explains how neoliberal thought, far from advocating a shrinking of the state, in fact sparks a redirection and intensification of its energies. As he puts it, “A primary function of the neoliberal project is to redefine the shape and the function of the state, not to destroy it” (56). Moreover, the “strong state was necessary to neutralize what [Hayek] considered to be the pathologies of democracy” (84). Even a temporary dictatorship can work in a pinch.
A shutdown is a state of exception when the government gets to do things it normally can’t do, like close the Environmental Protection Agency, de-fund WIC, close the national parks, send a lot of government employees home [in what is in many ways a lock-out], and all sorts of other stuff. A shutdown is a moment in which a choice gets made about which laws to obey and which laws to ignore, when the government gets to decide that some people are essential and some people aren’t.
posted by UCLA Law Review
Volume 61, Discourse Discourse
October 15, 2013 at 7:05 pm Posted in: Civil Rights, Constitutional Law, Current Events, Economic Analysis of Law, Financial Institutions, International & Comparative Law, Law Rev (UCLA), Politics Print This Post No Comments
posted by Zephyr Teachout
“I no longer believe that freedom and democracy are compatible.” – Peter Thiel
Dear concurrers: I’m excited to be guest blogging this month. Look forward to comments and discussion–there’s a lot going on (a shut down, a major Supreme Court decision), and I’ll just be posting thoughts, reactions, ideas, related to politics, power, and the Supreme Court. I will likely be focusing on McCutcheon v. FEC (nice summary by Rick Hasen here). Today, I have just a few thoughts about the government shutdown: namely, I want to connect it to the last big Supreme Court case, Citizens United. Unlike Peter Thiel, I think freedom and democracy are compatible, so long as there are good structural rules in place enabling their co-habitation. One set of those structural rules are those that create barriers to unlimited political giving and spending.
Remember this ad?
It should be on your mind for two reasons.
posted by Suzanne Kim
Friday’s New Jersey Superior Court decision in Garden State Equality v. Dow holding that equal protection requires the extension of marriage to same-sex couples was an important victory for marriage equality overall and for recognition of the importance of naming. The decision arises at a time when debate continues over whether the New Jersey legislature will override the gubernatorial veto of the last year’s Marriage Equality and Religious Exemption Act, which would have extended the title of marriage to same-sex couples in New Jersey.
Seven years ago, the New Jersey Supreme Court concluded in Lewis v. Harris that the equal protection challenge to the state’s refusal to marry same-sex couples could be separated into two distinct issues – (1) whether same-sex couples had an equal right to the rights of marriage; and (2) whether they had a right to the title “marriage.” As to the first question, the court easily concluded that same-sex couples were entitled under equal protection principles to the benefits and privileges of marriage. But as to the second question, the court was careful to maintain a distinction between substantive rights and naming. In deferring to the legislature, the majority chose not to “presume that a difference in name alone is of constitutional magnitude.”
The question of access to the title of “marriage” has often focused on the social costs associated with being labeled something other than married. In her stirring dissent from the court’s deferral of the naming question in Lewis v. Harris, then-Chief Justice Poritz identified the stigma and devaluation flowing from giving same-sex couples a title other than marriage. I have written more extensively about this issue elsewhere.
The decision in Garden State Equality v. Dow highlights the substantive costs (apart from the social ones) of failing to use the term “marriage.” With DOMA’s Section 3 in place prior to Windsor, committed couples in New Jersey—in marriages or civil unions—were similarly, if not equally, situated regarding substantive rights and privileges. But with Section 3 invalidated and many federal agencies conferring federal benefits only to married same-sex couples, not couples in civil unions, New Jersey’s committed same-sex couples do not receive equal protection as promised by Lewis. The decision underscores just how much there is in a name.
posted by Suzanne Kim
The New York state court system this week unveiled its Human Trafficking Intervention Initiative to expand a network of pilot courts specially aimed at linking prostitution defendants with a range of social services, and offering the potential for non-criminal dispositions or reduced charges for these defendants. The program represents an important step toward addressing the exploitation of women, men, and children through sex trafficking. The recognition of coercion in the sex trade and of the coexistence of prostitution with needs for housing, healthcare, immigration assistance, job training, and drug treatment echo reforms in the domestic violence context to create more integrated judicial approaches to addressing the needs of victims.
These reform efforts raise the question of how much attention should be paid to the market supporters of the sex trade. Law enforcement has tended to focus on sellers of sex, rather than its purchasers, although every state in the U.S. but Nevada criminalizes both the sale and the purchase of sex. Our American approach, however, is not self-evident. Sweden criminalizes patronage but not prostitution, akin to many European countries. The NY reforms suggest further thinking about allocation of criminal responsibility.
September 29, 2013 at 10:21 am Tags: Criminal Law, discrimination, human trafficking, legal reform, prostitution, sexuality Posted in: Culture, Politics, Privacy, Uncategorized Print This Post 2 Comments
posted by Gerard Magliocca
Sorry to interrupt the Symposium. I always wonder if I should post during a Symposium, but anyway . . .
One theme of federalism scholarship is that we sometimes need central authority to prevent “a race to the bottom.” In other words, with respect to certain regulatory topics, a state would be discouraged from acting on its own because business and people would flee to other states. Of course, some people think that this constraint keeps states from enacting foolish policies, but on some subjects the constraint keeps them from adopting beneficial ones. Only a national law can accomplish the goal, because moving to another country is harder.
The presidential nomination calendar provides an interesting perspective on this sort of state competition. There is significant value in being early in the presidential primary season. Candidates drop lots of money on TV ads and rallies in your state. Your state’s issues get a lot of attention. And you have influence over who gets nominated. Why, then, doesn’t every state try to be Iowa and New Hampshire? One answer is that Iowa and New Hampshire say that they will always change their election dates to be first, but that would lead to a clear “race to the bottom” without end. Tradition supplies another reason, but the “tradition” of the Iowa caucuses only goes back to 1976. No central authority is responsible. The parties can try to influence the primary calendar, but they cannot compel a state to pick one date over another. What accounts for the relative stability of the system in the last thirty years? Perhaps there isn’t as much to the “race to the bottom” theory as one might think. Or is there a kind of game theory equilibrium at work?
posted by Zvi Triger
When I hear about American supporters the new Russian homophobic legislation (or, for that matter, about President Putin and his aides who initiated such crazy legislation, which prohibits, among other things, even expressing tolerance towards LGBTs), I can’t help but recall a New York Time article from last year titled Homophobic? Maybe You’re Gay, which claimed that there is “empirical evidence of a connection between homophobia and suppressed same-sex desire.”
August 29, 2013 at 11:50 pm Tags: homosexuality, Russia, sexuality, Vladimir V Putin Posted in: Criminal Law, Culture, Current Events, International & Comparative Law, LGBT, Politics, Uncategorized Print This Post 2 Comments
posted by Gerard Magliocca
I was doing some research the other day and came across some interesting information about the use of discharge petitions in the House of Representatives. When this rule was created in 1910 (after a revolt of back-benchers against Speaker Joseph Cannon), only 135 members were needed to obtain a petition and move a bill to the floor. This was far less than half of the total membership, which meant that the minority party could almost always force a vote on legislation. In the 1930s, the rule was amended to create the present standard that you need a majority of the House to discharge a bill from committee.
Moreover, until the 1990s signatures on a discharge petition were secret until and unless the majority threshold was reached. That meant that it was easier to buck the party leadership, because the dissenters would be revealed only if they succeeded and only together. Punishing twenty people is risky for the Speaker. Punishing a few individuals is not. In 1993, though, the House changed the rule and required that all discharge petition signatures be public.
In both respects (the number required and transparency), changes to the discharge petition have strengthened the leadership of the majority party. It is hard to see how this has helped the country.
posted by Christine Chabot
While in recent decades the Court has become more diverse in some areas, such as gender and race, presidents have also appointed Justices with increasingly uniform educational and professional backgrounds. This lack of professional and educational diversity may be sub-optimal. Adrian Vermeule, for example, offers a carefully-reasoned argument for having at least one Justice with training in another discipline (he suggests appointing a Justice with a PhD in economics). At its most extreme, Vermeule’s argument insists that the professionally-diverse Justice have no training in law, to correct for correlated biases held by lawyer Justices.
My research suggests, however, that the extreme step of eliminating formal legal training will introduce a particular bias which some will find objectionable. In the past, Justices who did not attend law school were significantly more politically predictable than Justices who shared the benefit of formal legal education. Today, of course, a president choosing a Justice who did not attend law school would likely select a person who also has expertise in another field. But it is not clear a Justice with an advanced degree in economics or another discipline would exhibit the same political restraint as a Justice who went to law school. It seems more likely that Justices who attend law school will be either better-equipped or more inclined than others to vote independently of their personal political views. This may be reflected in greater levels of judicial restraint, incremental decision-making, and application of doctrines such as stare decisis.
July 23, 2013 at 11:47 am Tags: diversity, Legal Education, Supreme Court appointments Posted in: Constitutional Law, Courts, Law School, Politics, Supreme Court, Uncategorized Print This Post One Comment
posted by Christine Chabot
Do Justices vote independently of all political forces surrounding their appointments? My earlier post discusses how, even in recent decades, Justices’ votes have been surprisingly independent of the ideologies of Senates to which they were nominated. Even so, it may be that presidents fared better than the Senate and recently enhanced their ability to appoint ideologically-compatible Justices.
History is rife with examples of Justices who disappointed their appointing presidents. As recounted by Henry Abraham, Teddy Roosevelt complained vociferously about Justice Holmes’ ruling in Northern Securities, Truman called Justice Clark his “biggest mistake,” and Eisenhower also referred to Justices Warren and Brennan as “mistakes.” My earlier study finds frequent grounds for presidential disappointment, based on voting records for eighty-nine Justices over a 172-year period. Just under half of these Justices voted with appointees of the other party most of the time. Still, of the last twelve Justices, only two, Stevens and Souter, aligned most often with appointees of the other party. This low number calls into question whether the frequency of presidential disappointments has diminished recently.
My recent paper identifies change over time using regression analysis and more nuanced measures of presidential ideology. The analysis shows ideologies of appointing presidents did not significantly predict Justices’ votes before the 1970s, but they gained significant predictive power thereafter. This enhanced success coincides with Presidents Nixon’s and Reagan’s efforts to prioritize ideology in appointments to the bench. While earlier presidents did not uniformly ignore nominees’ ideology, they lacked modern technological resources. By the Reagan administration, computerized databases allowed presidential aides to quickly assemble and analyze virtually all of a nominee’s past writings. The improved information may have enabled presidents to better anticipate nominees’ future rulings.
July 10, 2013 at 11:22 am Tags: appointments, presidents, Supreme Court Posted in: Constitutional Law, Courts, Empirical Analysis of Law, Law Rev (Hastings), Politics, Supreme Court, Uncategorized Print This Post 5 Comments
posted by Christine Chabot
Thanks, Sarah, for the warm welcome. It is a pleasure to guest blog this month.
With pundits already speculating about President Obama’s next Supreme Court nominee, it seems a good time to discuss relationships between political forces surrounding Supreme Court appointments and Justices’ decisions. Justices sometimes disappoint their appointing presidents, and ideologically-distant Senates are often blamed for presidents’ “mistakes.” For example, David Souter and John Paul Stevens turned out to be far more liberal than the Republican presidents who appointed them (Bush I and Ford, respectively). These presidents both faced very liberal Senates when they selected Souter and Stevens.
Are nominees like Souter and Stevens anomalies or part of a larger pattern of senatorial constraint? My recent article in the Hastings Law Journal offers the first empirical analysis of the Senate’s role in constraining presidents’ choices of Supreme Court nominees over an extended period. It considers ideologies of Senates faced by nominating presidents and measures whether the ideologies of these Senates predict Justices’ voting behavior. The analysis substantially qualifies earlier understandings of senatorial constraint.
Earlier empirical studies consider only limited numbers of recent nominees (see article pp. 1235-39). They suggest that the Senate has constrained presidents’ choices, and many scholars theorize that the Senate has enhanced its role in the appointments process since the 1950s. Analysis of a larger group of nominees shows the Senate’s ideology has had significant predictive power over Justices’ votes in only two isolated historical periods. Senatorial ideology was last significant in the 1970s, shortly after the filibuster of Abe Fortas’s nomination to be Chief Justice, but then it actually lost significance after the Senate rejected Bork in 1987.
July 3, 2013 at 12:19 pm Tags: appointments, judicial selection, Senate confirmation process, Supreme Court Posted in: Constitutional Law, Courts, Current Events, Empirical Analysis of Law, Law Rev (Hastings), Politics, Supreme Court Print This Post 5 Comments
posted by Frank Pasquale
Many thanks to Danielle for mentioning Barry Friedman and Dahlia Lithwick’s article “What’s Left? Have progressives abandoned every cause save gay marriage?” They argue:
[S]omehow, somewhere along the line, to be progressive … stopped meaning a commitment to help the poor. The central problems that defined the left from the early history of the Progressive movement through the Great Society are as urgent today as they ever were: Economic fairness; a war on poverty, meaningful education reform, voting rights, workers’ rights, racial justice, women’s rights, equal access to child care and health care. But while none of these social ills has been remedied in modern America (and many are now worse) all that talk about “welfare queens” seems to have scared folks off. Face it: There is not, and never has been, anything sexy about the minimum wage.
You certainly won’t find very egalitarian views expressed at a $10,000-a-plate Democratic Party fundraiser, or among the millionaire anchors of cable networks. But I think Friedman/Lithwick are looking for lefties in all the wrong places. Sure, the mainstream media isn’t going to take the concerns of workers seriously. It’s going to feature a lot of fauxgressives instead. But take a look at Sarah Jaffe and Josh Eidelson’s excellent podcast, Belabored. Both also do serious reporting on recent strikes and other labor actions led by people who, increasingly, have little left to lose. If you’re looking for direct legal interventions, check out the Center for Progressive Reform. They’ve been defending labor and environmental regulation for years.
As for welfare and poverty coverage: both Mother Jones and Alternet are outstanding. Sam Pizzigati of Too Much has doggedly exposed inequality. He’s also chronicled past actions (and present movements) to remedy grotesque disparities. There are many members of Congress who supported the “People’s Budget,” which tries to preserve health care and education funding.
Speaking of education: the dialogue about university life on twitter puts to shame any stuffy salon you’ll find on the New York Times’s “Room for Debate” page. Check out @reclaimuc, @zunguzungu, @tressiemcphd, @jhrees, @gerrycanavan, among many others. I think the single best magazine piece on the crisis in higher education today was written by two prolific tweeters, Aaron Bady and Mike Konczal. These are very exciting thinkers, thinking far more holistically and humanely than nearly anyone you’ll see featured in mainstream media.
Finally, in terms of progressive views of technology, Twitter is a godsend. As I completed an article on the role of algorithms in finance the past semester, I found inspiration in items shared by @dgolumbia, @evgenymorozov, @marginalutility, & @interfluidity. There are also communities I follow on health care and IP. Sick of hearing about financialization as a cure for pharma’s innovation fatigue? Follow @DrRimmer, or go whole hog for @JacobinMag’s feature on socializing pharma.
I don’t want to just give a list of names, but I will say this: no one should lament reformers “missing in action”. Virtual communities dedicated to protecting the interests of the disadvantaged exist, and can find each other now more easily than ever. A progressive press would do better to cover the existing left than to lament the failings of liberals.
posted by Deven Desai
We need more outlets to challenge the way things run. Challenging corporations is difficult, necessary, and proper. Someone in San Diego tried to do that. He is losing his case. It turns out that if you scribble anti-bank messages, you could face 13 years in jail. The medium: washable children’s chalk, not spray paint, on the sidewalk in front of banks. The bank: Bank of America. Now, you might think the First Amendment would be an issue here; it’s not. According the news report, “a judge had opted to prevent the defendant’s attorney from ‘mentioning the First Amendment, free speech, free expression, public forum, expressive conduct, or political speech during the trial,’ and the defendant must now stand trial on 13 counts of vandalism.” The defendant was saying other banks were better banks. Bank of America did not like it, claimed it cost $6,000 to clean up the chalk, and apparently used its influence to have the city gang unit investigate and hand the case to the attorney’s office. Given that this defendant may not be allowed to engage in this speech, because of anti-graffiti and, my bet, property laws, all that may be left is the Web. I think offline mediums matter and should be protected. The Web is an alternative, not a substitute. But even on the Web a protester will have problems.
As I argue in Speech, Citizenry, and the Market: A Corporate Public Figure Doctrine, corporate power to speak has gone up. Corporate power to limit speech has not. A corporate public figure doctrine would allow someone to use a corporation’s logo and name to challenge to corporation on public issues. A corporation’s word mark is its given name; its logo, its face. Just as we would not limit the ability to question and identify human public figures for speech, we should not do so for corporate public figures. A foundational commitment of free speech law, perhaps the foundational commitment, is that public figures don’t and can’t own their reputations. Yet, through trademark and commercial speech doctrines corporations have powerful control over their reputations. If corporations are people for free speech purposes, as a constitutional matter, their control over their reputations can be no greater than the control other public figures have. Corporations cannot have it both ways. Corporations want and receive many of the legal rights natural persons receive. They should be subject to the same limits as other powerful, public figures.
HT: Fred von Lohmann for noting the story on Facebook.
PS. I am not saying corporations should be challenged, because they are corporations. That is silly. In that sense, I would challenge those who challenge, but that’s me.
July 1, 2013 at 1:13 pm Tags: citizens united, dilution, First Amendment, free sp, public figure, trademark Posted in: Constitutional Law, First Amendment, Intellectual Property, Political Economy, Politics, Technology, Web 2.0 Print This Post 20 Comments
posted by UCLA Law Review
Volume 60, Issue 5 (June 2013)
|First Amendment Constraints on Copyright After Golan v. Holder||Neil Weinstock Netanel||1082|
|Intraracial Diversity||Devon W. Carbado||1130|
|When to Overthrow your Government: The Right to Resist in the World’s Constitutions||Ginsburg et al.||1184|
|Interbank Discipline||Kathryn Judge||1262|
|A Proposal for U.S. Implementation of the Vienna Convention’s Consular Notification Requirement||Nicole M. Howell||1324|
June 30, 2013 at 4:01 am Posted in: Civil Rights, Financial Institutions, First Amendment, Intellectual Property, International & Comparative Law, Law Rev (UCLA), Politics, Race Print This Post No Comments
posted by Deven Desai
Lawyers must write. Academics must also write. Gandhi built a newspaper to get his ideas to the people. Again, writing is important. And good writing is even more important if the writing is about, or flirts with, politics. I have noted my love of Orwell’s Politics and the English Language. A main point is that when one writes in simple, clear sentences, one cannot lie. Lies are quickly revealed. I came across this passage from Hemingway and noticed a similar sentiment. Like Orwell, Hemingway explains why poor writing can work for a time, but is not good writing:
This too to remember. If a man writes clearly enough any one can see if he fakes. If he mystifies to avoid a straight statement, which is very different from breaking so-called rules of syntax or grammar to make an effect which can be obtained in no other way, the writer takes a longer time to be known as a fake and other writers who are afflicted by the same necessity will praise him in their own defense. True mysticism should not be confused with incompetence in writing which seeks to mystify where there is no mystery but is really only the necessity to fake to cover lack of knowledge or the inability to state clearly. Mysticism implies a mystery and there are many mysteries; but incompetence is not one of them; nor is overwritten journalism made literature by the injection of a false epic quality. Remember this too: all bad writers are in love with the epic. Death in the Afternoon, p. 54; (2002-07-25). Ernest Hemingway on Writing (No Series) (Kindle Locations 848-854). Scribner. Kindle Edition.
posted by Danielle Citron
I could not have timed my chat with Marvin Kalb better. On Sunday, before talking about cyber hate for the U.S. Holocaust Museum’s 20th Anniversary Tour in Chicago, Kalb and I discussed his most recent book, The Road to War: Presidential Commitments Honored and Betrayed (Brookings Institution Press 2013). The timing was auspicious not just because the book had come out days before but because at least 40% of the nation was reeling from learning about the most recent abuse of Executive power: the NSA’s PRISM program and leaked FISA court Verizon order.
Before I recount some of the highlights of our conversation, I wanted to begin with a wonderful and incredibly apt description of Kalb written by a UPI reporter:
[Kalb] is the senior statesman of U.S. media. Tall, handsome, brilliant, unfailingly courteous, Marvin Kalb looks and acts more like a senior statesman than the chief diplomatic correspondent he was for CBS News and NBC over 30 years when these networks cared about world news. Now these media organizations still bill themselves as world news networks but, most nights, forget about the rest of the world.
Following his prize-studded reportorial career, Kalb became the first director of journalism’s school of higher learning at Harvard — the Joan Shorenstein Center on the Press, Politics and Public Policy. Now, still the profession’s senior statesman, he runs the center’s Washington office and hosts “The Kalb Report.” The author of two best-selling novels and a book titled, “One Scandalous Story: Clinton, Lewinsky and 13 days That Transformed American Journalism,” Kalb’s 13th book — his best — excoriates Congress for relinquishing its constitutional obligation to declare war.
The U.S. News and World Report’s Jamie Stiehm describes Kalb’s new book as “an elegant synthesis of how easy, too easy, it has become for an American president, any American president, to go to war” with Congress “ceding its rightful role in declaring war and tends to go along with the man in the White House.” Kalb’s book argues that so much power should not be concentrated in the President.
Here are some highlights from our conversation:
DC: Why has it been so easy for the Executive Branch to ignore the core constitutional guarantee that Congress declare war?
MK: We have a system of law undergirding Presidential authority to go to war — Congressional declaration of War and the power of the purse — yet it has been consistently ceded to the President. When I covered Vietnam in 1968, we had 500,000 troops on the ground. Who gave the President the authority to do so? I am a great believer of law, but if it is ignored with impunity, to whom do we turn?
DC: How did we get to that state of affairs–the President doing what he wants without check? Are things much different in light of recent revelations of our unsanctioned domestic intelligence apparatus?
MK: What we are witnessing this week stands as a confirmation of what we have ben seeing–unchecked Presidential power in the name of war time. In the Korea and Vietnam wars, one President after another made unchecked decisions and no one blew the whistle, most significantly Congress. Congress was successfully pressured to cede its power to the Executive Branch. For instance, only two Senators voted “no” for the Gulf of Tonkin resolution. When one of those senators, Senator Morse, saw President Johnson, the President put his arm around the Senator and said “Wayne, you are a good American. We do not want to hurt the troops.” Johnson wielded his power through persuasion and it worked–Congressional resistance was vanishingly small.
DC: What do you think of this week’s revelations about PRISM and the Verizon order?
MK: In important ways, I thought that we beat Big Brother when we prevailed in the Cold War. With the indiscriminate collection and analysis of all Verizon users’ telephony metadata (including who we called, where we were, and the inevitable revelation of sensitive information given the answer to the “who” question), we have become what we most fear–executive branch conducting surveillance over ordinary citizens in increasingly intrusive ways. Read the rest of this post »
posted by Danielle Citron
I’ve been meaning to recommend guest blogger Jeffrey Kahn’s recently published book “Mrs. Shipley’s Ghost: The Right to Travel and Terrorist Watchlists” (University of Michigan Press 2013).
Today, when a single person can turn an airplane into a guided missile, no one objects to rigorous security before flying. But can the state simply declare some people too dangerous to travel, ever and anywhere? Does the Constitution protect a fundamental right to travel? Should the mode of travel (car, plane, or boat) or itinerary (domestic or international) make a constitutional difference? This book explores the legal and policy questions raised by government travel restrictions, from passports and rubber stamps to computerized terrorist watchlists.
In tracing the history and scope of U.S. travel regulations, Jeffrey Kahn begins with the fascinating story of Mrs. Ruth Shipley, a federal employee who almost single-handedly controlled access to passports during the Cold War. Kahn questions how far national security policies should go and whether the government should be able to declare some individuals simply too dangerous to travel. An expert on constitutional law, Kahn argues that U.S. citizens’ freedom to leave the country and return is a fundamental right, protected by the Constitution.
“With authoritative detail, this elegantly written and constructed book takes on an overlooked travesty of contemporary counterterrorism—easy use of the terrorist watchlist to stop Americans from coming home. To reconstruct our right to travel, Kahn brilliantly polishes an undervalued gem of the Constitution—the Citizenship Clause. A necessary read.”
—Susan Ginsburg, Senior Counsel and Team Leader, 9/11 Commission
“Despite an avalanche of writing about post-9/11 security policies, far too little attention has been paid to the increasingly important world of watchlists and their impact on the ability to travel. Jeff Kahn has filled this gap with a definitive account that deftly blends historical, legal, and policy analysis. And he has done it with real narrative flair. Mrs. Shipley’s Ghost will be required—and thoroughly enjoyable—reading for anyone interested in the intersection of data, security, and liberties.”
—Robert M. Chesney, University of Texas School of Law
Racial Uplift or Racial Scolding: The Baggage of Symbolic Representation in President Obama’s Speeches to Black Americans
posted by Taunya Banks
I was invited to stay around another month but a personal loss and the press of grading papers overwhelmed me. With apologies to the organizers, this is my first and last post for this month.
President Obama’s commencement speech at Morehouse College on May 19th triggered a debate in some corners of the blogger sphere that included notables like PBS’ Gwen Ifill and white studies scholar Tim Wise about his tendency to scold black folks. In its heyday Morehouse College, a private all-male historically black institution in Atlanta, educated many of the black male elite like Martin Luther King, Jr., filmmaker Spike Lee, former Bank of America Chairman Walter E. Massey, former United States Surgeon General David Satcher, former Secretary of Health and Human Services Louis W. Sullivan, film star Samuel Jackson, and social activist Julian Bond. Today it continues its mission producing Rhodes, Fulbright, Marshall and Luce Scholars, and Watson and White House Fellows. Thus he was speaking to a group of future leaders who happened to be overwhelmingly black.
I was a bit surprised at the uproar, especially when several acquaintances thought the Morehouse speech more significant than his speech a few days later on his administration’s drone policy. I have been increasingly troubled by this administration’s extrajudicial killings by drones of American citizens abroad. Thus I decided to more closely examine the controversy. Read the rest of this post »
posted by William McGeveran
I’m proud that my adopted home state of Minnesota became the 12th state to legalize same-sex marriage this afternoon. I’m also proud of my law school colleague Dale Carpenter, who was central to efforts to pass the measure. And I’m looking forward to some weddings.
There are lots of lessons about politics and gay rights to draw from today’s victory. But I want to emphasize a more general lesson about ballot measures.
Two years ago this month, the Minnesota Legislature, then controlled by a newly-installed Republican majority, voted to hold a statewide referendum on marriage. A proposed amendment to the state constitution on the November 2012 ballot would define marriage as between a man and a woman. Unlike many states, Minnesota does not allow citizen-initiated referenda. But a simple majority of the legislature can put proposed constitutional amendments to the voters without the governor’s assent.
Some insiders have claimed that the rationale for doing so was, at least in part, a raw political one. Advancing a measure important to social conservatives would drive up their turnout, helping preserve Republican legislative control. Surely that must have been at least part of it, along with a substantive desire to thwart same-sex marriage in Minnesota.
Whatever the reason, this turned out to be a political strategy failure of epic proportions. In retrospect, the scale of this miscalculation is stunning. Opponents of the amendment organized, raised over $10 million, and coalesced around a new strategy of personalizing marriage issues. The 31-year-old strategist brought on to manage the campaign against the amendment turned out to be a wunderkind. The amendment failed, 52.5% to 47.5%. A month beforehand, I would have predicted the reverse numbers. Not only that, but in a landslide that surprised everyone I know, voters also rejected a voter ID amendment, turned out a Republican U.S. House member, and flipped both chambers of the state legislature back to the Democrats by significant margins. The amendment drove turnout all right — just not the voters its proponents wanted. (The same appears to have happened in neighboring Wisconsin.)
And today was the final kicker. Two years ago, legislation actually allowing same-sex marriage was a pipe dream. Even at the beginning of 2013, it wasn’t clear if a bill would happen. Once again, I would have bet against it. But the sleeping grass-roots giant awakened by the amendment did not go back to bed. By all accounts, the organization that didn’t even exist two years ago pushed the measure through against considerable odds.
So, one other moral of this story: when it comes to referenda, be careful what you wish for.