This week has been troubling for our nation's civil liberties, namely the people's right to privacy and freedom from unwarranted government intrusion. On Monday, the Supreme Court allowed police to gather the DNA of arrestees to help them solve unrelated crimes. That decision drew justified dissension from Justice Scalia and civil liberties groups. Besides its unsound application of Fourth Amendment precedents, the opinion gave too much deference to the police, as if pretending that the State would not abuse its power to collect DNA for ulterior purposes, and minimized the loss of privacy, which surely was great for arrestees. We shouldn't be less sympathetic just because arrestees are involved - any of us can be arrested and what rights taken from some are taken from us all.
Compound that is this week's revealing of massive surveillance of American citizens by their government and collection of communications records by the NSA. It has drawn justified debate about the extent of government surveillance necessary to protect Americans from terrorism while maintaining their civil liberties. And finally, President Obama and the politicians have to be candid about what's going on. What is discouraging is the muted response from Congress, with many politicians (besides Rand Paul) too spineless to criticize the NSA's actions. While the intelligence community and politicians will try to muzzle the media and informants, this timely revelation advances our ideals of a transparent government and having the people (through the press) check on their government.
These happenings are not surprising and shows what happens what the government has too much power and lacks transparency. The checks and balances prescribed by the Constitution failed because Congress lacks the will to speak up and investigate, the Executive Branch predictably stretched their powers under the Patriot Act, and the judiciary fails to be an independent check on the powers of government. In fact, the judiciary has done the people disservice by trusting the government to not abuse its powers, whether under the Patriot Act or the Fourth Amendment, and by shielding activities of the FICA from meaningful review. What will ultimately drive change will be the people. It might not be easy to advance the cause of civil liberties, especially when terrorist threats remain, but it is necessary to safeguard our right to privacy and check on the power of government.
Showing posts with label Law. Show all posts
Showing posts with label Law. Show all posts
Sunday, 9 June 2013
Wednesday, 27 March 2013
Thinking about Gideon and Same-Sex Marriage
Fifty years later, we cannot forget about the monumental case of Gideon v. Wainwright, which established that the right to an attorney for the indigent accused is fundamental and must be provided by states. I remember learning about Gideon even before law school, and its story continues to reverberate with me. Anthony Lewis, who passed away this week, wrote a remarkable book called Gideon's Trumpet, which I recommend to any American interested in learning about law, our government, and the special place constitutional rights play in our daily lives. Unfortunately, the promises of Gideon have not been realized across the country, where poor criminal defendants in many states do not have adequate legal representation. It is our duty, even for lawyers not working in criminal law, to make sure that Gideon is not confined to the Supreme Court reports made fifty years ago.
Thinking about Gideon makes me ponder the same sex marriages being argued these two days. I see the parallels: both times, the Court is asked to recognize and extend rights guaranteed under the Due Process Clauses to individuals disfavored by mainstream society: the poor criminally accused or same sex couples. The law is quite clear on both: Gideon was a slam-dunk case under the Sixth and Fourteenth Amendments, and Perry and Windsor, with the procedural issues aside, are also clear-cut if we apply precedents that marriage is a fundamental right and the states are reserved the power to determine domestic relations. But the timing I feel is important and the two cases diverge. The time to decide Gideon was 1963, and not anytime later, whereas the time to declare a constitutional right to same-sex marriage has not yet arrived. The best course for the Court would be to strike down DOMA Section 3 under existing precedents, which does not require it to decide whether sexual orientation classifications deserve heightened scrutiny, and wait to tackle whether states must recognize same-sex marriage. The democratic process and public opinion should run its course, and I'm confident they will for the better.
Thinking about Gideon makes me ponder the same sex marriages being argued these two days. I see the parallels: both times, the Court is asked to recognize and extend rights guaranteed under the Due Process Clauses to individuals disfavored by mainstream society: the poor criminally accused or same sex couples. The law is quite clear on both: Gideon was a slam-dunk case under the Sixth and Fourteenth Amendments, and Perry and Windsor, with the procedural issues aside, are also clear-cut if we apply precedents that marriage is a fundamental right and the states are reserved the power to determine domestic relations. But the timing I feel is important and the two cases diverge. The time to decide Gideon was 1963, and not anytime later, whereas the time to declare a constitutional right to same-sex marriage has not yet arrived. The best course for the Court would be to strike down DOMA Section 3 under existing precedents, which does not require it to decide whether sexual orientation classifications deserve heightened scrutiny, and wait to tackle whether states must recognize same-sex marriage. The democratic process and public opinion should run its course, and I'm confident they will for the better.
Sunday, 16 December 2012
America, it's time to talk about guns
The recent tragedy at Sandy Hook should kick start a much-needed national dialogue about guns. It should happen in legislatures and town forums, not in courts. Ever since Heller, the question of gun laws have been mostly in the courts and concerning the Second Amendment. Politicians have refused to touch this poisoned chalice, even when recent events show it is much needed. I believe we can have sensible and effective gun control laws, which are currently lacking, without infringing on the people's Second Amendment rights.
But we must start somewhere. The politically taboo topics of gun control laws, especially at the federal level, and how accessible guns are to the mentally unstable are serious questions we need to ask. Too many lives are at risk to gun violence in America, and arguably it's worsening. The statistics and unclear and messy as to whether more restrictive laws, or less laws, are correlated with gun violence. But the public needs to learn, debate, and devise solutions to this problem rather than let it go on only in the courts while we sit on the sidelines or in the possible range of fire.
"Let us make our country worthy of their memory."
But we must start somewhere. The politically taboo topics of gun control laws, especially at the federal level, and how accessible guns are to the mentally unstable are serious questions we need to ask. Too many lives are at risk to gun violence in America, and arguably it's worsening. The statistics and unclear and messy as to whether more restrictive laws, or less laws, are correlated with gun violence. But the public needs to learn, debate, and devise solutions to this problem rather than let it go on only in the courts while we sit on the sidelines or in the possible range of fire.
"Let us make our country worthy of their memory."
Sunday, 7 October 2012
An election up for grabs, the downtrodden Red Sox, and Supreme Court balancing in the middle
I watched the first presidential debate in a pub on Wednesday and came away impressed with Mitt Romney. The onus was on him to put in a strong performance and he did in several ways. He showed a sense of urgency about the nation's problems, while showing his compassionate side and ability to understand. He was aggressive throughout and criticized President Obama without appearing solely partisan and obstructionist on every policy issue. Romney also gave some specifics about his policies, which allows wonks to dissect and contrast them against Obama's. Without doubt Obama's insipid performance helped Romney shine, and with Romney scoring the style points, I must wade through both contenders' policies for substance and see what they really want for the nation beyond the rhetoric.
Obama desperately needed Friday's jobs numbers and he got what he wished for. I think it will have a huge impact, especially on those undecided voters who are finalizing their choices right now. The jobs numbers, especially the drop in unemployment below the dreaded 8%, would shore up Obama's appeal and help him maintain an edge in the polls. Underneath though, all the papers and economists suggest that the jobs recovery remains steady but very slow. The two biggest barriers to jobs growth are 1) the fiscal cliff come January and businesses' uncertainty (and hence their reluctance to hire) and 2) ongoing weak demand from emerging economies such as China and recessionary Europe. Obama may be partly responsible for the former, but not the latter.
Onto our national pastime, the Red Sox finally put us fans out of our misery with an absolutely atrocious season. I could not be more disappointed in the team and where it has gone and is going. Much of the blame, I agree, should start at the top with the ownership and front office. The players, too, I emphasize are not blameless. The Red Sox's problems are so deep that they would take many years to fix. I am unsure whether the Fenway Sports Group can turn it around and maintain the support of the fans. For me, the season was a mix of apathy, disgust, bewilderment, and mostly disappointment.
Finally, the high court resumed its term this past week and the cases thus far promise to make this term as interesting as the last. For those who keep track of cases based on ideology, last term's main cases did not turn out to be as conservative as the court's reputation is - mainly helped by Chief Justice Roberts's U-turn in the health care case. We'll see about this term, in which Justice Kennedy will continue to play his role as a swing vote. I will definitely be paying attention to the headline affirmative action case of Fisher v. University of Austin, as well as others to follow, especially if the Court takes up DOMA or Proposition 8.
Obama desperately needed Friday's jobs numbers and he got what he wished for. I think it will have a huge impact, especially on those undecided voters who are finalizing their choices right now. The jobs numbers, especially the drop in unemployment below the dreaded 8%, would shore up Obama's appeal and help him maintain an edge in the polls. Underneath though, all the papers and economists suggest that the jobs recovery remains steady but very slow. The two biggest barriers to jobs growth are 1) the fiscal cliff come January and businesses' uncertainty (and hence their reluctance to hire) and 2) ongoing weak demand from emerging economies such as China and recessionary Europe. Obama may be partly responsible for the former, but not the latter.
Onto our national pastime, the Red Sox finally put us fans out of our misery with an absolutely atrocious season. I could not be more disappointed in the team and where it has gone and is going. Much of the blame, I agree, should start at the top with the ownership and front office. The players, too, I emphasize are not blameless. The Red Sox's problems are so deep that they would take many years to fix. I am unsure whether the Fenway Sports Group can turn it around and maintain the support of the fans. For me, the season was a mix of apathy, disgust, bewilderment, and mostly disappointment.
Finally, the high court resumed its term this past week and the cases thus far promise to make this term as interesting as the last. For those who keep track of cases based on ideology, last term's main cases did not turn out to be as conservative as the court's reputation is - mainly helped by Chief Justice Roberts's U-turn in the health care case. We'll see about this term, in which Justice Kennedy will continue to play his role as a swing vote. I will definitely be paying attention to the headline affirmative action case of Fisher v. University of Austin, as well as others to follow, especially if the Court takes up DOMA or Proposition 8.
Sunday, 1 July 2012
The Supreme Court's Health Care Decision - Making Sense of It
Disclaimer: the statements below are solely those of the author, and do not represent the views of any other person or organization.
The debates and discussions about the Supreme Court's decision on the Affordable Care Act will continue for a long while. The politicians, health industry, and public will focus on the policy debates behind the ACA and whether it should continue or be repealed. November 6 may well settle that question. Legal scholars and lawyers, on the other hand, will parse through the interesting mix of opinions and what they mean for constitutional law. Both are important but neither is easy.
1. Impact on Politics - a clear winner is Barack Obama and the Democrats who pushed ACA through Congress. The ACA is Obama's signature legislative achievement and having it upheld, or at least mostly upheld, is necessary for Obama to win reelection. How much of a boost it provides his election prospects is uncertain - I still think the economy will be more important. As for Republicans and Mitt Romney, they will redouble their efforts to defeat Obama in November and amass enough political capital to repeal the ACA. The decision may light a fire in their constituency, but they would need a strong majority and the right circumstances come January to repeal the ACA.
2. Impact on Businesses and the Health Industry - for them, they can rest easy because they above all needed certainty. The health industry and other affected businesses have spent two years preparing for the implementation of the ACA. I know CMS has issued a number of rules implementing the law and for the law to be gutted would have undone the industry's expensive preparations. The impact of the ACA on the health industry is complex and long, and providers, insurers, other businesses are mixed about the ACA but at least they know it is the law of the land and must be complied with.
3. Impact on Federal Power - the constitutional challenges to the ACA were about the limits of federal power, specifically under the Commerce and Tax and Spending Clauses in the Constitution. The decision was a loss for proponents of strong federal power in several ways. First, Roberts and his conservative colleagues in dissent all agree that Congress's power under the Commerce Clause are subject to further limits, specifically that inactivity is outside the scope. Although the individual mandate may be a special case and Robert's discussion may be dictum, courts look more carefully at Congress's assertion of power under the Commerce Clause. I doubt that the various civil rights, environmental, and other social welfare laws are in jeopardy since existing Commerce Clause jurisprudence, even with the new inactivity limitation, sufficiently supports them.
The limitation on the Spending Clause power and the application of the coercion theory will also affect Congress's power to induce states through federal money. The Court did not fully enunciate what constitutes coercion, but they provided a concrete example of coercion (penalizing through withdrawing all Medicaid funds if a state refused to accept the ACA's reforms). That was the first major Spending Power limitation for almost a century. Overall, while the preexisting broad federal powers under the Commerce and Spending Clauses remain unchanged, the decision will likely lead to more stringent policing by the courts.
4. Impact on the Supreme Court - perhaps the biggest winner is the Supreme Court and the rule of law. Facing charges that the Court is a politicized branch and no longer a neutral arbiter of the law, John Roberts helped stem that tide and restore the Court's image as a legal institution. Many have welcomed the change and pointed to the whole October 2011 Term, which is less "conservative" and ideologically-divided than many past terms, while others have been more cynical and point to Roberts delivering a political victory to Obama while saving the legal victory for the challengers. Nonetheless, I think the Supreme Court has enhanced its stature in public eyes as a court of law, not a court of politics in disguise. How that carries on next term with affirmative action and gay marriage remains to be seen.
The public debate about the ACA and future of health reform will not die down soon. America needs health reform and innovative ways to solve the crises in our health care system. The decision puts the issue back to the election spotlight and to the people, where it should be, not with the courts. As for the law, the decision opens up debates about the expanse and limits of federal power, which will take years of litigation to define. Lawyers and law professors may be fascinated, but perhaps not so their clients and the law students.
The debates and discussions about the Supreme Court's decision on the Affordable Care Act will continue for a long while. The politicians, health industry, and public will focus on the policy debates behind the ACA and whether it should continue or be repealed. November 6 may well settle that question. Legal scholars and lawyers, on the other hand, will parse through the interesting mix of opinions and what they mean for constitutional law. Both are important but neither is easy.
1. Impact on Politics - a clear winner is Barack Obama and the Democrats who pushed ACA through Congress. The ACA is Obama's signature legislative achievement and having it upheld, or at least mostly upheld, is necessary for Obama to win reelection. How much of a boost it provides his election prospects is uncertain - I still think the economy will be more important. As for Republicans and Mitt Romney, they will redouble their efforts to defeat Obama in November and amass enough political capital to repeal the ACA. The decision may light a fire in their constituency, but they would need a strong majority and the right circumstances come January to repeal the ACA.
2. Impact on Businesses and the Health Industry - for them, they can rest easy because they above all needed certainty. The health industry and other affected businesses have spent two years preparing for the implementation of the ACA. I know CMS has issued a number of rules implementing the law and for the law to be gutted would have undone the industry's expensive preparations. The impact of the ACA on the health industry is complex and long, and providers, insurers, other businesses are mixed about the ACA but at least they know it is the law of the land and must be complied with.
3. Impact on Federal Power - the constitutional challenges to the ACA were about the limits of federal power, specifically under the Commerce and Tax and Spending Clauses in the Constitution. The decision was a loss for proponents of strong federal power in several ways. First, Roberts and his conservative colleagues in dissent all agree that Congress's power under the Commerce Clause are subject to further limits, specifically that inactivity is outside the scope. Although the individual mandate may be a special case and Robert's discussion may be dictum, courts look more carefully at Congress's assertion of power under the Commerce Clause. I doubt that the various civil rights, environmental, and other social welfare laws are in jeopardy since existing Commerce Clause jurisprudence, even with the new inactivity limitation, sufficiently supports them.
The limitation on the Spending Clause power and the application of the coercion theory will also affect Congress's power to induce states through federal money. The Court did not fully enunciate what constitutes coercion, but they provided a concrete example of coercion (penalizing through withdrawing all Medicaid funds if a state refused to accept the ACA's reforms). That was the first major Spending Power limitation for almost a century. Overall, while the preexisting broad federal powers under the Commerce and Spending Clauses remain unchanged, the decision will likely lead to more stringent policing by the courts.
4. Impact on the Supreme Court - perhaps the biggest winner is the Supreme Court and the rule of law. Facing charges that the Court is a politicized branch and no longer a neutral arbiter of the law, John Roberts helped stem that tide and restore the Court's image as a legal institution. Many have welcomed the change and pointed to the whole October 2011 Term, which is less "conservative" and ideologically-divided than many past terms, while others have been more cynical and point to Roberts delivering a political victory to Obama while saving the legal victory for the challengers. Nonetheless, I think the Supreme Court has enhanced its stature in public eyes as a court of law, not a court of politics in disguise. How that carries on next term with affirmative action and gay marriage remains to be seen.
The public debate about the ACA and future of health reform will not die down soon. America needs health reform and innovative ways to solve the crises in our health care system. The decision puts the issue back to the election spotlight and to the people, where it should be, not with the courts. As for the law, the decision opens up debates about the expanse and limits of federal power, which will take years of litigation to define. Lawyers and law professors may be fascinated, but perhaps not so their clients and the law students.
Sunday, 20 May 2012
Coming Full Circle
I was rooting for Chelsea yesterday. As an Arsenal fan, I would normally not. Even for neutrals, it was difficult supporting a team bankrolled by a Russian oil tycoon. They are not a glamour side, but in fact are the worst Chelsea team for years.
Nonetheless, it is their story that moved me. Their triumph over two of Europe's best teams in Barcelona and Bayern is a testament to human spirit and teamwork. They showed that faith indeed can move mountains. A lesser side would have capitulated a long while ago, but they stood together and with a bit of luck, defeated the odds to scale the pinnacle.
For many of the old guard, such as Didier Drogba, Petr Cech, and Frank Lampard, the final was the culmination of years of hard toil. They had gone through seven managers since Jose Mourinho, but time and time again the European Cup eluded them, often in dramatic circumstances. But they persevered and deserve the fruits of their work, especially Drogba and Cech's outstanding performances.
Yesterday, I attended the Joint minority bar judicial internship program's orientation for this year's intern class. I remember taking part just a year ago as a student intern in last year's class. At that time, I was like the others yesterday - mystified about the law but eager to learn. This year, I have come back as an alum and am glad to see the new faces who will continue to make the program strong.
My experience last summer has led me to where I am now. Through the program, I met Yang and learned about AABANY. I joined the association before the summer and have actively participated in its programs, such as helping to plan this year's program. I also met Emily, with whom I share a similar background. That led me to working with her at Success and becoming interested in education reform.
The journey remains long and there are many opportunities and challenges ahead. I will board the next train tomorrow. Where that leads me is unknown, but I must be the conductor of my own route. As I close one chapter for another, I will not forget the journey thus far - everything that I have learned and everyone whom I have met. One day, I hope to find myself like the old guard of Chelsea yesterday, holding aloft a grand prize after years of hard work. For now, I content myself with knowing that my investment last summer in the JMBJIP is coming to a full circle.
Nonetheless, it is their story that moved me. Their triumph over two of Europe's best teams in Barcelona and Bayern is a testament to human spirit and teamwork. They showed that faith indeed can move mountains. A lesser side would have capitulated a long while ago, but they stood together and with a bit of luck, defeated the odds to scale the pinnacle.
For many of the old guard, such as Didier Drogba, Petr Cech, and Frank Lampard, the final was the culmination of years of hard toil. They had gone through seven managers since Jose Mourinho, but time and time again the European Cup eluded them, often in dramatic circumstances. But they persevered and deserve the fruits of their work, especially Drogba and Cech's outstanding performances.
Yesterday, I attended the Joint minority bar judicial internship program's orientation for this year's intern class. I remember taking part just a year ago as a student intern in last year's class. At that time, I was like the others yesterday - mystified about the law but eager to learn. This year, I have come back as an alum and am glad to see the new faces who will continue to make the program strong.
My experience last summer has led me to where I am now. Through the program, I met Yang and learned about AABANY. I joined the association before the summer and have actively participated in its programs, such as helping to plan this year's program. I also met Emily, with whom I share a similar background. That led me to working with her at Success and becoming interested in education reform.
The journey remains long and there are many opportunities and challenges ahead. I will board the next train tomorrow. Where that leads me is unknown, but I must be the conductor of my own route. As I close one chapter for another, I will not forget the journey thus far - everything that I have learned and everyone whom I have met. One day, I hope to find myself like the old guard of Chelsea yesterday, holding aloft a grand prize after years of hard work. For now, I content myself with knowing that my investment last summer in the JMBJIP is coming to a full circle.
Wednesday, 21 July 2010
California's voters should approve Proposition 19
In November, California will vote in a statewide referendum on whether to legalize marijuana. I believe that the proposition in question, Proposition 19, should be approved. Many reasons exist, some of them compelling, for approving the use of a drug that many people nonetheless consider criminal. For me, the two most convincing are legal and fiscal: removing arbitrary criminal policy and relieving fiscal policy. First, California serves notice how the enforcement of marijuana law and marijuana use, whether criminal or medicinal, overwhelmingly affects the poor and minorities. In fact, with medicinal marijuana legal, enforcement of the current laws is very arbitrary: many poor blacks and Hispanics, for example, are arrested at will. Legalizing the whole class will help lessen some of the capriciousness in a very grey area of criminal law and policy. Second, California, like many other states, is facing a growing and unwieldy fiscal crisis. Illegality of marijuana costs the state directly through police work, and more so, indirectly through loss of potential revenue. The Proposition authorizes several revenue-generating provisions that should help alleviate California's budget problem. It is something badly needed for a small price to pay.
Of course many would challenge the Proposition, and polls are indicating that opinion is close to 50-50. Besides the moral and criminal arguments, a legal issue arises: will California's proposition legalizing marijuana conflict with the federal government's ban on marijuana? The Supreme Court's recent decision in Gonzalez v. Raich, which upheld the federal government's ban on marijuana, even medical, as a legitimate use of the Commerce Clause, should serve as a guide. Despite that broad and seemingly ineluctable precedent, I believe that the new proposition, if passed, may survive legal scrutiny. First of all, Congress has not expressly preempted marijuana regulation - many states have differing laws that coexist with the federal ban. Second, the proposition itself has few provisions that directly challenge the Congressional ban. Criminal use or drug trafficking will continue to be outlawed. Third, the proposition's revenue-generating aims also shields it from being struck down: states have a large leeway on laws that seek to raise money, as opposed to laws seeking to regulate. Finally, the proposition does not violate the mirror side of the Commerce Clause, the dormant clause that prevents states from inhibiting interstate commerce. Thus, I believe that should the proposition pass and then is challenged, which it doubtless will, the Supreme Court could in fact uphold it. Right now, the issue lacks ripeness but who knows, some day limited criminalization of marijuana might become a fact, a boon for California and most of us.
Of course many would challenge the Proposition, and polls are indicating that opinion is close to 50-50. Besides the moral and criminal arguments, a legal issue arises: will California's proposition legalizing marijuana conflict with the federal government's ban on marijuana? The Supreme Court's recent decision in Gonzalez v. Raich, which upheld the federal government's ban on marijuana, even medical, as a legitimate use of the Commerce Clause, should serve as a guide. Despite that broad and seemingly ineluctable precedent, I believe that the new proposition, if passed, may survive legal scrutiny. First of all, Congress has not expressly preempted marijuana regulation - many states have differing laws that coexist with the federal ban. Second, the proposition itself has few provisions that directly challenge the Congressional ban. Criminal use or drug trafficking will continue to be outlawed. Third, the proposition's revenue-generating aims also shields it from being struck down: states have a large leeway on laws that seek to raise money, as opposed to laws seeking to regulate. Finally, the proposition does not violate the mirror side of the Commerce Clause, the dormant clause that prevents states from inhibiting interstate commerce. Thus, I believe that should the proposition pass and then is challenged, which it doubtless will, the Supreme Court could in fact uphold it. Right now, the issue lacks ripeness but who knows, some day limited criminalization of marijuana might become a fact, a boon for California and most of us.
Wednesday, 30 June 2010
Supreme Court's Perverse McDonald v. Chicago Ruling
The Supreme Court's recent ruling, McDonald v. Chicago, interpreted the Second Amendment's "right to bear arms" broadly and applicable to the states. Thus, no state may henceforth prohibit all possession of handguns, especially for self-defence and use in the home. Notwithstanding any personal feelings on the gun debate (disclaimer: I am for gun control), I believe that the ruling was in error on both matters of law and fact. It will have enormous and altogether malicious consequences for the country in the decades to come.
First, I do not find the majority's appeal history and tradition convincing. The original Second Amendment, added in 1791, was primarily included for organizing a militia (hence, the attached militia clause). Even after the Civil War, Congress included the Fourteenth Amendment's Due Process Clause to embed the powers of communities and limits of states. The evidence that the Framers intended to protect an individual right to bear arms is scanty. Sure, self-defence is a right worthwhile to defend but how one defends oneself and one's property is not without bounds. It would surprise me much that the Framers or any historical authority contemplated the Amendment to apply to individual ownership of firearms.
Second, besides the citation to history, which I always find suspect in deciding law, the sense that a right to firearms is fundamental strikes me as out of place. Fundamental rights include a number that deserve the highest level of constitutional protection: speech, voting, travel and others. They arise because they are so rooted in the history and traditions of the people, or because they are necessary to sustain a limited government of "ordered liberty". I do not find gun ownership so fundamental from history, especially since long-time precedent has not recognized a right to own guns. And can anyone logically say that owning a gun is so essential to a free and orderly society that it is fundamental? Unlike other fundamental rights such as religion or fair trial, owning guns imposes a duty and harm on society, especially when ownership is misused. Guns and firearms are not necessary for eking out a living, or exercising one's civic duties. It is not fundamental to a healthy and prosperous life, nor to a vibrant democracy.
Third, I find the Court's disregard for traditional separation of powers among states and the federal government surprising. States, as individual sovereign entities, retain broad police powers to regulate matters of public safety and welfare. Gun legislation, including acts prohibiting its use in private places, fall under that umbrella. The federal government does not have those police powers. Meanwhile, the Court has traditionally deferred to states in their economic and social legislation, i.e. rational basis test. I do not understand why the Court does not show similar deference to Chicago. Chicago's legislators knew their city and neighborhoods best; they were properly elected by the people; they, through a democratic, political process, enacted the strict gun control laws. If the people do not like them, they can repeal the laws through their legislators. The courts, especially the Supreme Court, should not meddle in those matters.
Finally, I find the decision lacking in guidance for lower courts to apply the new law. Granted the Supreme Court is the most important appellate court whose role is to consider broad, abstract questions of law, not fact. Nonetheless, it should have delineated at least a standard for applying the Second Amendment. Should the right to bear arms be elevated like other fundamental rights, so that strict scrutiny applies? Or should it be given a classification similar to gender, which invokes intermediate scrutiny? By not laying down any tests or rules, the Court only guarantees a mix of rulings from various federal courts. More litigation will be forthcoming, especially from gun rights supporters, all of which will keep the federal courts busy for a long while. Without doubt, many of those will end up in the Supreme Court.
There is a fundamental flaw with the so-called originalist view of constitutional interpretation. By looking at history and what rights meant when they were written, be it the 1780s or 1870s, that view disregards the dynamic nature of the Constitution. It is living document, whose Amendments allow it to change with times and needs of the people. Making law and establishing precedent based on what was applicable centuries ago is shortsighted, maybe fatal. What matters most is the shape of human events in 2010, not 1787. Guns and violence continue to be a blight, especially in inner-city neighborhoods and backwater communities. States and citizens need to be given the leeway to tackle these problems through social legislation. The Supreme Court is wrong in giving deference to history and tradition over the problems of the present. In fact, I find the Court's refusal to apply the law to the facts of the case disheartening. The statistics of how many Chicagoans the strict gun laws have saved should matter more than what James Madison intended with the Second Amendment. Too bad many on the Court do not see it the same way.
First, I do not find the majority's appeal history and tradition convincing. The original Second Amendment, added in 1791, was primarily included for organizing a militia (hence, the attached militia clause). Even after the Civil War, Congress included the Fourteenth Amendment's Due Process Clause to embed the powers of communities and limits of states. The evidence that the Framers intended to protect an individual right to bear arms is scanty. Sure, self-defence is a right worthwhile to defend but how one defends oneself and one's property is not without bounds. It would surprise me much that the Framers or any historical authority contemplated the Amendment to apply to individual ownership of firearms.
Second, besides the citation to history, which I always find suspect in deciding law, the sense that a right to firearms is fundamental strikes me as out of place. Fundamental rights include a number that deserve the highest level of constitutional protection: speech, voting, travel and others. They arise because they are so rooted in the history and traditions of the people, or because they are necessary to sustain a limited government of "ordered liberty". I do not find gun ownership so fundamental from history, especially since long-time precedent has not recognized a right to own guns. And can anyone logically say that owning a gun is so essential to a free and orderly society that it is fundamental? Unlike other fundamental rights such as religion or fair trial, owning guns imposes a duty and harm on society, especially when ownership is misused. Guns and firearms are not necessary for eking out a living, or exercising one's civic duties. It is not fundamental to a healthy and prosperous life, nor to a vibrant democracy.
Third, I find the Court's disregard for traditional separation of powers among states and the federal government surprising. States, as individual sovereign entities, retain broad police powers to regulate matters of public safety and welfare. Gun legislation, including acts prohibiting its use in private places, fall under that umbrella. The federal government does not have those police powers. Meanwhile, the Court has traditionally deferred to states in their economic and social legislation, i.e. rational basis test. I do not understand why the Court does not show similar deference to Chicago. Chicago's legislators knew their city and neighborhoods best; they were properly elected by the people; they, through a democratic, political process, enacted the strict gun control laws. If the people do not like them, they can repeal the laws through their legislators. The courts, especially the Supreme Court, should not meddle in those matters.
Finally, I find the decision lacking in guidance for lower courts to apply the new law. Granted the Supreme Court is the most important appellate court whose role is to consider broad, abstract questions of law, not fact. Nonetheless, it should have delineated at least a standard for applying the Second Amendment. Should the right to bear arms be elevated like other fundamental rights, so that strict scrutiny applies? Or should it be given a classification similar to gender, which invokes intermediate scrutiny? By not laying down any tests or rules, the Court only guarantees a mix of rulings from various federal courts. More litigation will be forthcoming, especially from gun rights supporters, all of which will keep the federal courts busy for a long while. Without doubt, many of those will end up in the Supreme Court.
There is a fundamental flaw with the so-called originalist view of constitutional interpretation. By looking at history and what rights meant when they were written, be it the 1780s or 1870s, that view disregards the dynamic nature of the Constitution. It is living document, whose Amendments allow it to change with times and needs of the people. Making law and establishing precedent based on what was applicable centuries ago is shortsighted, maybe fatal. What matters most is the shape of human events in 2010, not 1787. Guns and violence continue to be a blight, especially in inner-city neighborhoods and backwater communities. States and citizens need to be given the leeway to tackle these problems through social legislation. The Supreme Court is wrong in giving deference to history and tradition over the problems of the present. In fact, I find the Court's refusal to apply the law to the facts of the case disheartening. The statistics of how many Chicagoans the strict gun laws have saved should matter more than what James Madison intended with the Second Amendment. Too bad many on the Court do not see it the same way.
Wednesday, 26 May 2010
Privacy in the digital age
Maybe Griswold was ruled just in the nick of time. In 1965, the Supreme Court first ruled that there exists a constitutional right to privacy (in that particular case, marital privacy to use contraceptives). That right is commonly and rightfully assumed in our culture. Now, more than ever, privacy is needed as the Internet and digital technology breaks traditional barriers. I recently read about Facebook's long history with privacy intrusions. Indeed, it is quite befuddling to tackle the privacy controls on Facebook - I tried but still cannot master it. Likewise, Google's collection of users' data for its satellite maps is also troubling. Sure, we appreciate the useful Google Apps but would prefer that our cars and pools remain off limits to remote public eyes.
Facebook and Google are just the biggest players. Granted, we are not Britain where public surveillance exists to an uncomfortable degree (thank goodness Labour's ID cards scheme has been scrapped by the coalition). Nonetheless, a sizable number of Americans are worried about big government and corporations looking over their shoulders. Technology plays a dual role: it liberates us to do new things but also breaks barriers that once protected private actions from public scrutiny. We are no longer sure. In fact, we are insecure about the privacy and sanctity of the home, an interest long protected by common law. Computer viruses pop up unexpectedly. Telemarketers continue to call. One paper not shredded may result in identity theft. Sometimes, this makes me (and likely others) want to board a raft and flee for an atoll.
Facebook and Google are just the biggest players. Granted, we are not Britain where public surveillance exists to an uncomfortable degree (thank goodness Labour's ID cards scheme has been scrapped by the coalition). Nonetheless, a sizable number of Americans are worried about big government and corporations looking over their shoulders. Technology plays a dual role: it liberates us to do new things but also breaks barriers that once protected private actions from public scrutiny. We are no longer sure. In fact, we are insecure about the privacy and sanctity of the home, an interest long protected by common law. Computer viruses pop up unexpectedly. Telemarketers continue to call. One paper not shredded may result in identity theft. Sometimes, this makes me (and likely others) want to board a raft and flee for an atoll.
Wednesday, 19 May 2010
Elena Kagan may well disappoint liberals
More than a week after the announcement of Elena Kagan as an Associate Justice, the nation is still debating and searching for clues about her judicial philosophy. Truth is, there are few such clues. If a page of history is worth a volume of logic (O.W. Holmes), then Kagan belies the rule. Her long and distinguished legal career reveals little about her legal mind. Unsurprisingly, many have focused on her personal life and tenure as dean of Harvard Law School. Some conservatives are taking delight at examining on her sexual life and questioning her stance against military recruiters at Harvard. Liberals generally are more diligent in asking whether she will truly serving the left as a Justice. I believe they likely will be disappointed.
Contrasting Kagan with her outgoing predecessor, the venerable John Paul Stevens, I find the former a consensus builder whereas the latter a greater dissenter. Stevens has led the left wing of the Supreme Court through a mixture of intellect, experience and will. Often, he has written forceful dissents against conservative opinions such as Heller and Citizens United. While he has tried to marshal other Justices to his views and build consensus with the right wing, Stevens nonetheless is apt to dissent when necessary. On the other hand, Kagan is a foremost consensus builder on a divided and conservative-leaning Court. Her academic hirings at Harvard and term as Solicitor General demonstrate her willingness to reach across boundaries, but will she continue to do so when it gets tough in the Supreme Court and the right wing refuses to budge? Will she command the respect that Stevens does, even years into her tenure? I do not see it happening as much. She may well, in building consensus, concur or reluctantly agree with the conservative Justices.
All that may be moot if Kagan turns out not liberal-leaning at all. I can infer little about her judicial leanings from her previous legal work. Her support for gay rights such as same-sex marriage is the most salient liberal bend, and many will expect her to uphold such rights as a Justice. On the other hand, she has supported strong executive power including warrantless wiretaps and holding enemy combatants without charge. Finally, Kagan preaches judicial restraint and non-activism. That news is a mixed blessing: she will defer to the political branches on constitutional questions regarding health care reform and financial regulation (good for liberals) but will also hesitate to use the courts to advance substantive rights. Overall, I see Kagan as a centrist instead of a liberal. Of course, any new Supreme Court Justice may swing either way and we won't know until a few years out, but given Kagan's consensus leanings and scanty judicial philosophy, liberals should not get too excited.
Contrasting Kagan with her outgoing predecessor, the venerable John Paul Stevens, I find the former a consensus builder whereas the latter a greater dissenter. Stevens has led the left wing of the Supreme Court through a mixture of intellect, experience and will. Often, he has written forceful dissents against conservative opinions such as Heller and Citizens United. While he has tried to marshal other Justices to his views and build consensus with the right wing, Stevens nonetheless is apt to dissent when necessary. On the other hand, Kagan is a foremost consensus builder on a divided and conservative-leaning Court. Her academic hirings at Harvard and term as Solicitor General demonstrate her willingness to reach across boundaries, but will she continue to do so when it gets tough in the Supreme Court and the right wing refuses to budge? Will she command the respect that Stevens does, even years into her tenure? I do not see it happening as much. She may well, in building consensus, concur or reluctantly agree with the conservative Justices.
All that may be moot if Kagan turns out not liberal-leaning at all. I can infer little about her judicial leanings from her previous legal work. Her support for gay rights such as same-sex marriage is the most salient liberal bend, and many will expect her to uphold such rights as a Justice. On the other hand, she has supported strong executive power including warrantless wiretaps and holding enemy combatants without charge. Finally, Kagan preaches judicial restraint and non-activism. That news is a mixed blessing: she will defer to the political branches on constitutional questions regarding health care reform and financial regulation (good for liberals) but will also hesitate to use the courts to advance substantive rights. Overall, I see Kagan as a centrist instead of a liberal. Of course, any new Supreme Court Justice may swing either way and we won't know until a few years out, but given Kagan's consensus leanings and scanty judicial philosophy, liberals should not get too excited.
Wednesday, 24 March 2010
Health Reform on Primary Care, Its Constitutionality
After 45 years, finally, significant health care legislation has become law. The law overall will improve American health care, and serve its purposes in improving access and lowering total costs (albeit more limited). I will discuss two aspects of health care reform: first, the law's impact on primary care and PC physicians; second, the law's constitutionality amid potential legal challenges.
The law will alleviate the shortage of primary care physicians, but will have negligible impact on the primary care system. The increased enrollment in health insurance will lead to greater demand for primary care, especially from new Medicaid patients. Furthermore, the government is adding incentives to medical school graduates to go into primary care, and existing physicians or medical entrepreneurs to do so. Thus, more primary care physicians will be part of the U.S. health care workforce, something urgently needed. On the other hand, existing financing mechanisms for primary care and the role of primary care in the provider and payer systems remain unchanged. Without reform from within, such as stronger gatekeeper models, greater care coordination, and chronic disease management, primary care will not undergo needed change as a whole. Perhaps the influx of physicians, increase in demand, and insurance reforms will have long-term beneficial effects on primary care, but much change will have to come from within.
Suits have already been filed alleging the unconstitutionality of the law, but the courts are highly unlikely to strike it down. The most contentious provision is the federal mandate on purchasing health insurance, something heretofore unknown in American law. The Supreme Court may grant certiorari, but will uphold the provisions for two main reasons. First, the Commerce Clause grants Congress much power and leeway to regulate economic activity that has even a slight nexus to "interstate commerce". Health insurance, along with its broad externalities, certainly falls under that umbrella. Second, the courts have given strong deference to legislative actions and policy, especially in the social and economic realms. The courts know they are limited in expertise in such broad areas, and lack the popular mandate found in the other branches. I think opponents may have a strong argument, especially using the due process clause and Tenth Amendment, but not enough for a winning one.
The law will alleviate the shortage of primary care physicians, but will have negligible impact on the primary care system. The increased enrollment in health insurance will lead to greater demand for primary care, especially from new Medicaid patients. Furthermore, the government is adding incentives to medical school graduates to go into primary care, and existing physicians or medical entrepreneurs to do so. Thus, more primary care physicians will be part of the U.S. health care workforce, something urgently needed. On the other hand, existing financing mechanisms for primary care and the role of primary care in the provider and payer systems remain unchanged. Without reform from within, such as stronger gatekeeper models, greater care coordination, and chronic disease management, primary care will not undergo needed change as a whole. Perhaps the influx of physicians, increase in demand, and insurance reforms will have long-term beneficial effects on primary care, but much change will have to come from within.
Suits have already been filed alleging the unconstitutionality of the law, but the courts are highly unlikely to strike it down. The most contentious provision is the federal mandate on purchasing health insurance, something heretofore unknown in American law. The Supreme Court may grant certiorari, but will uphold the provisions for two main reasons. First, the Commerce Clause grants Congress much power and leeway to regulate economic activity that has even a slight nexus to "interstate commerce". Health insurance, along with its broad externalities, certainly falls under that umbrella. Second, the courts have given strong deference to legislative actions and policy, especially in the social and economic realms. The courts know they are limited in expertise in such broad areas, and lack the popular mandate found in the other branches. I think opponents may have a strong argument, especially using the due process clause and Tenth Amendment, but not enough for a winning one.
Wednesday, 3 March 2010
Supreme Court must affirm in McDonald v Chicago
Yesterday, the Supreme Court heard the oral arguments in McDonald v. Chicago, a case where the appellants are challenging Chicago's strict gun control laws as unconstitutional. They base their arguments on the Second Amendment, which putatively protects "a right to bear arms". This case follows the Court's June 2008 ruling which established an individual right to own guns, but only applicable to the federal government. The current case, if ruled similarly, will enjoin states from passing many strict gun controls, including those that flat out prohibit them in private homes.
I strongly believe that the Supreme Court must uphold the Chicago statute in question. First, all states have a sovereign "police power" to establish laws concerning public safety, health and morals. The courts have protected the states' police powers, and often enjoin the federal government from stepping in. Gun control laws are doubtless among a state's legitimate exercise of police power. It should be up to individual states and their elected officials to determine the rigidity (or looseness) of their individual gun laws, not for a non-elected Court. Striking down Chicago's law will be a direct infringement of a state's police power.
Second, the Court's reasoning behind any ruling may be more important than the ruling itself. If it strikes down the law, it would invite questions about substantive due process and the Privileges and Immunities Clause of the Fourteenth Amendment. The appellants are basing their argument on the latter clause, which in fact has been rarely used in constitutional law and poses many issues which the Court (or constitutional law scholars) are unprepared to answer. If the Court bases its rationale on substantive due process, which is also infrequently used today, it must classify any subsequent "right" to bear arms as a fundamental right or limited right. Where to draw the lines then?
Finally, striking down the law and enshrining a right to own guns will be judicially and politically messy. As mentioned before, the Court will need to instruct lower courts where to draw a line between allowable state statutes (such as prohibiting guns in schools) or unconstitutional ones (such as prohibiting purchase of guns altogether). The line is more blurry than we may think. Doing so, the Court must get itself involved in questions of policy and the culture wars between pro-gun and anti-gun lobbies. That is why the Court has traditionally refused to rule so broadly or recognize an individual right to own guns from the Second Amendment. Precedent serves a role and the Court should follow it. Leave the issue of gun ownership and rights to state legislatures, who are more representative and more experienced in handling such matters.
The Supreme Court likely will rule the other way and strike down the law. If it does, it will do a supreme disservice to not just cities and states across the country, but also its own status as a court of law, not policy.
I strongly believe that the Supreme Court must uphold the Chicago statute in question. First, all states have a sovereign "police power" to establish laws concerning public safety, health and morals. The courts have protected the states' police powers, and often enjoin the federal government from stepping in. Gun control laws are doubtless among a state's legitimate exercise of police power. It should be up to individual states and their elected officials to determine the rigidity (or looseness) of their individual gun laws, not for a non-elected Court. Striking down Chicago's law will be a direct infringement of a state's police power.
Second, the Court's reasoning behind any ruling may be more important than the ruling itself. If it strikes down the law, it would invite questions about substantive due process and the Privileges and Immunities Clause of the Fourteenth Amendment. The appellants are basing their argument on the latter clause, which in fact has been rarely used in constitutional law and poses many issues which the Court (or constitutional law scholars) are unprepared to answer. If the Court bases its rationale on substantive due process, which is also infrequently used today, it must classify any subsequent "right" to bear arms as a fundamental right or limited right. Where to draw the lines then?
Finally, striking down the law and enshrining a right to own guns will be judicially and politically messy. As mentioned before, the Court will need to instruct lower courts where to draw a line between allowable state statutes (such as prohibiting guns in schools) or unconstitutional ones (such as prohibiting purchase of guns altogether). The line is more blurry than we may think. Doing so, the Court must get itself involved in questions of policy and the culture wars between pro-gun and anti-gun lobbies. That is why the Court has traditionally refused to rule so broadly or recognize an individual right to own guns from the Second Amendment. Precedent serves a role and the Court should follow it. Leave the issue of gun ownership and rights to state legislatures, who are more representative and more experienced in handling such matters.
The Supreme Court likely will rule the other way and strike down the law. If it does, it will do a supreme disservice to not just cities and states across the country, but also its own status as a court of law, not policy.
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