Category Archives: Law

The New Attack on Democracy: What the Founders Knew But We’ve Forgotten

constitutionOne of the foundational principles of American democracy is under attack.

When the nation’s Founders crafted the United States Constitution in 1787, they were careful to include a requirement that:

“The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States.” (Art I, Sec. 6, Clause 1).

A similar provision for compensation applies to the president:

“The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.” (Art II, Sec. 1, Clause 7).

The Founders understood that providing compensation for the new government’s elected officers was not a trivial matter, but an essential and cutting edge principle of the new democracy that they were striving to create — and one that directly and profoundly affected the kind of people who would be willing and able to serve as representatives of the people.

They knew too that no other nation on earth insisted on compensation for its elected officials.

In England, members of parliament as a rule served without pay.  In colonial America, candidates for public office usually followed the practice of their English counterparts and promised to serve without compensation.  In the states themselves, only Pennsylvania provided for “wages” from the “state treasury” to “all lawmakers.”

The Founders knew that this English aristocratic practice of not paying public officers created an enormous disadvantage for less wealthy candidates who could not afford to serve without receiving an adequate income for their efforts.

The Founders did not want public service to be a genteel avocation reserved for men of independent wealth, as it was in England, but wanted instead to create a system in which – as James Madison said – public office would be open to “those who have the most merit and least wealth.”

Fueled by the rhetoric of anti-government and anti-egalitarian demagogues (mostly in or allied with the Republican Party), this foundational and deeply American egalitarian principle is now under attack in this country – especially in California, where voters are responding to the state’s budget crisis by cutting the salaries of legislators and city officials, and where our billionaire governor constantly rails against legislative salaries and supports a 10 percent pay cut in legislative compensation.

But as the Founders knew – and we clearly have forgotten – adequate compensation for public officials is an essential element of a democratic government.

Cutting the salaries of public officials will mean that only the rich will able to serve – and when only the rich can serve, we will have the opposite of the government that Madison envisioned – one in which our representative have “the most wealth and the least merit.”

The Founders would not be pleased that the people are now so willingly – even eagerly – abandoning one of the fundamental principles of the American democracy that they fought to create.

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Orange County Republicans Shed Crocodile Tears Over the Effects of Prop 13

croctearsRepublican crocodile tears flowed this weekend in Orange County as a group of city officials called F.I.S.T. – “Fight Insane State Theft” – comprised of 14 Orange County mayors and 42 city council members, nearly all of them Republicans – protested Republican Governor Schwarzenegger’s plan to take away billions in state property tax revenue from their cities.

According to the Orange County Register, the group held a rally this past weekend in Placentia, joined by an array of Republican front organizations posing as anti-tax crusaders, including Citizens for a Better Placentia, Fullerton Association of Concerned Taxpayers, and Yorba Linda Residents for Responsible Representation.

The Register notes that the protesters are “particularly concerned about losing funds for roads and other transportation projects.”

But it is the Republicans themselves – and their corporate funded anti-tax allies – who are themselves directly responsible for giving the state the power to take away property tax revenue from California cities.

Prior to 1978, local governments in California (as elsewhere in the nation) could set their own property tax rates and spend the money that they raised on local needs.

But the Republicans did not trust local governments or local voters with the power to tax local property or to spend that revenue as they thought appropriate.

So they decided to give the state the sole power to set property taxes and to give the state legislature the sole power to decide how that money would be spent.

Prop 13 took away the cities’ power to set property tax rates or levy property taxes, and gave all such power to the state — where it would be subject to Prop 13’s strict limits and the 2/3 rule – in other words, subject to the statewide anti-tax minority’s veto, regardless of the wishes or needs of local officials or voters.

Now our local Republican elected officials and Republican anti-tax front groups are outraged about “losing funds for roads and other transportation projects”  — which, by the way, tend to benefit large landowners and developers more than local citizens — because the state wants to spend that money elsewhere.

This latest instance of Orange County Republican hypocrisy reminds me of an exchange from Samuel Beckett’s play Waiting for Godot:

Estragon: We’ve no rights any more?
Laugh of Vladimir, stifled as before, less the smile.
Vladimir: You’d make me laugh if it wasn’t prohibited.
Estragon: We’ve lost our rights?
Vladimir: (distinctly). We got rid of them.

So I ask our Orange County Republicans: Having given up our rights, are you now ready to amend Prop 13 to return the property tax power to local governments and local voters?

The Trial of John Yoo

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John Yoo

I have just returned from a debate on presidential power at Chapman University Law School.

In retrospect, the event should more properly have been called “The Trial of John Yoo.”

And strikingly, it was Yoo who cast himself in the role of defendant.

The debate was titled “Presidential Power and Success in Times of Crisis,” and the debaters included John Eastman, Dean of Chapman’s law school and one of the nation’s smartest (and therefore most dangerous) conservative legal scholars, as well as progressive Chapman law professors Katherine Darmer and Larry Rosenthal.

The first speaker and featured star attraction was John Yoo, currently Professor of Law at the University of California at Berkeley and Fletcher Jones Distinguished Visiting Professor of Law at Chapman, and the former Deputy Assistant Attorney General in the Office of Legal Counsel under President George W. Bush who co-authored the now-infamous memos justifying waterboarding and other forms of torture.

For those of us expecting a high power constitutional firefight over Bush era torture and presidential power, the debate was a letdown.

In fact, only one side – Darmer and Rosenthal – really addressed the scope of presidential power in the war on terror or the legal and ethical issues involved in the Bush administration’s torture program.

The other side – Yoo and Eastman – focused instead on the legal and ethical charges – only vaguely alluded to in the debate, but prominent in the media – against John Yoo himself.

Yoo’s self-defense consisted of unsubstantiated claims that torture (or what he called “enhanced interrogation”) was necessary to prevent a repeat of a 9-11 terrorist attack against the U.S., and strained analogies to prior unilateral presidential actions during wartime (such as Lincoln’s attempt to suspend habeas corpus during the civil war).

Most significantly, Yoo argued that President Bush — and, by clear implication, Yoo himself — should not be legally or morally judged in Obama era hindsight.  Rather, Yoo claimed, the legal and moral judgment of the Bush administration’s policy on torture must take into consideration the legitimate fear of terrorism that gripped the nation immediately following the 9-11 attacks.

Professor Rosenthal aptly called this argument the “I lost my head” defense.

For now, I will leave to others the discussion of Bush era torture, as well as the extent of John Yoo’s personal moral and legal culpability.

What I want to note is that John Yoo knows that he is already on trial – not just in Spain, but here in the United States – and he is already attempting to put on his defense.

And if his performance at Chapman is an indication of his skill as his own defense attorney – and I think that it is – John Yoo is in serious trouble.

Yoo was meandering, inarticulate, and alternately simplistic and condescending.  He was no match for Darmer and Rosenthal – both former federal prosecutors and both clearly far smarter and more savvy than John Yoo.

I came away from the debate feeling that Yoo is a rather pathetic figure, intellectually out-classed by the others on the panel.

Yoo’s rise in the legal world of the Bush administration was obviously more a product of his political beliefs and ultra-conservative connections – he clerked for Supreme Court Justice Clarence Thomas and Thomas’ friend and mentor Judge Laurence Silberman – than of his legal skill.

Yoo was probably not really even the primary author of the torture memos – that dubious distinction most likely belongs to his boss at the Office of Legal Counsel, former assistant attorney general and now federal appellate judge Jay Bybee.

And if John Eastman’s tepid and uncharacteristically dim performance as co-counsel for Yoo’s defense is an indication, Yoo may just end up as the designated fall guy for public outrage over Bush’s torture program.

At Chapman today, one sensed that John Yoo knew that he was the going to take the fall and that there was little, if anything, that he could do about it.

Could You Have Killed Nick Adenhart?

Nick Adenhart (1986-2009)

Nick Adenhart (1986-2009)

The death this month of 22-year-old Los Angeles Angels rookie pitcher Nick Adenhart – killed by a drunk driver just hours after making a spectacular season debut – has lead to outrage against drunk driving in general and in particular against the driver who killed Adenhart.

The drunk driver who killed Adenhart — Andrew Thomas Gallo, also 22-years-old – has been charged with three counts of murder, one felony count of fleeing the scene of a traffic collision involving death or permanent injury, one felony count of driving under the influence causing injury and one felony count of driving with a blood-alcohol level above the .08 percent that is the legal limit in California – Gallo’s blood alcohol level was three times higher than the legal limit – and causing bodily injury.

If convicted, Gallo could spend 55 years in prison.

Gallo is a  particularly unsympathetic figure: he was on probation for a prior drunk driving conviction, was driving on a suspended license, and fled the scene after the crash.

Orange County District Attorney Tony Rackauckas expressed the community’s anger toward Gallo: “As the District Attorney, over the years I have seen some heart-wrenching things,” Rackauckas said during a media conference. “They don’t get much tougher than this. This Angel and his two friends were too young to be sent to heaven, but the defendant selfishly and recklessly got behind the wheel after getting drunk, and they didn’t have a choice…The defendant has acknowledged that he knew the dangers of drinking and driving based on his participation in this alcohol program… Knowing that he had caused this crash, Mr. Gallo cowardly fled the scene on foot without checking on the welfare of those he had just hurt.”

Of course, Rackauckas is correct.

But I question whether many of us are in a moral position to condemn Gallo.

There are people who don’t drink.

There are people who don’t drive.

Just about everyone else has driven drunk.

Especially in the car culture of Southern California – where it is just about impossible to get anywhere without getting behind the wheel – I venture to say that nearly everyone leaving a bar — or most people leaving a social occasion where they’ve consumed alcohol – are driving drunk.

Of course, most of these people don’t kill anyone.

But that’s just luck.

Coincidentally, in the midst of the outrage over Adenhart’s death, the Los Angeles Times reports that 70 sworn and civilian employees of the Los Angles County’s Sheriff’s Department were arrested for alcohol-related offenses last year, the majority for driving off-duty while under the influence of alcohol.

Each of them – and the hundreds more sherrif department employees who drove drunk but didn’t get caught — could easily have killed someone.

As could all of us who have ever gotten behind the wheel after drinking.

I am not suggesting that we should go easy on Gallo or other drunk drivers.

But in our culture of drinking and driving it is pure chance that many of us are not sitting in his place.

Democrats Should Be Joining the Tea Parties

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Democrats are responding to the growing nationwide phenomena of anti-tax “tea parties” protests by mocking them and by pointing out that they are prompted and run by right-wing organizations.

Neither response is a winning political strategy.

It is pure political stupidity — and bad economic policy — for Democrats to treat the tax protests with derision or contempt.

Rather than mocking the aims of the tea parties, Democrats should follow the lead of presidential candidate Barack Obama, who promised to “provide a tax cut for working families” and “restore fairness to the tax code and provide 95 percent of working Americans the tax relief they need.”

Obama also promised to provide tax relief for small businesses and startups by  eliminating “all capital gains taxes on startup and small businesses to encourage innovation and job creation.”

What Obama recognized – and Democrats already seem to have forgotten – is that working families are in fact being over-taxed while the super rich have gotten a free ride – and that voters will cast their ballots for the party and the candidates who they believe will create a fairer tax code and reduce their tax burden.

And while it is certainly legitimate to point out that the anti-tax tea parties are being manipulated and guided by right-wing groups and talk-show hosts whose agendas are not the same as working and middle class voters, this point is devoid of political impact unless it is accompanied by a commitment to do a better job than these groups of protecting working class and middle class economic interests.

For too long, Democrats – especially in California – have allowed Republicans to dominate and set the terms of the tax debate.

As a result, Democrats have allowed Republicans to paint them as the party of higher taxes – and have allowed the super rich to pretend to defend the economic interests of working families and the middle class while in fact shifting the costs of government to those who are least able to afford it.

Instead of responding to the tax protests with mockery and contempt, Democrats need to insist on talking about the kinds of taxes that the government imposes and who pays them.

We should insist that all taxes be progressive and focused on overturning the Republican’s outrageous favoritism of the super rich.

Especially in the midst of the current recession, we should oppose any increases whatsoever in regressive taxes – such as the sales tax, the automobile tax, and the gasoline tax – that disproportionately hit working and middle class families, unless and until the state and federal tax code is revised to require that the super rich pay their fair share.

Of course these tax protest “tea parties” are a Republican sham — the Republican anti-tax activists not interested in reducing the tax burden on the middle class and working families, but in keeping the Bush tax breaks for the rich — but that does not mean that the underlying middle class protest — even rage — at their tax burden should be ridiculed. On the contrary, it means that the Democrats should insist on seizing the debate and turning it against the Republicans — as Obama did.

Democrats can win the tax debate – if they take the tax protest “tea parties” seriously.

Related posts:

Why I Love Conservative Talk Radio’s John and Ken Show

The Charge of the Democrat Light Brigade: California Democrats Caught in Republican Tax Trap

Why the Republican Anti-Tax Movement Doesn’t Care About the Taxes that YOU Pay

Shout the Good News! Rick Warren’s Conversion

goya_peterWhen accessing the political apologetics of evangelicals, it is tempting to deal with them on their own terms and question whether their contrition is perfect and sincere enough to remove the stain that their sins have placed on their souls.

In Christian terms, forgiveness for sin requires a deep and sincere change of heart accompanied by sorrow for the wrong committed, and not merely regret for its consequences or an external manifestation of repentance.  You can’t cleanse the soul of sin with an insincere, superficial, or merely pragmatic apology.

In those terms, perhaps Pastor Rick Warren’s statement on the Larry King Show that he is “not an anti-gay or anti-gay marriage activist. Never have been, never will be” fails to meet the requirements for forgiveness and his apology for having misspoken on this issue (as he now claims) should be dismissed as insincere.

If I were fighting evangelical fire with evangelical fire, perhaps I’d say that Rick Warren’s contrition for his anti-gay and anti-gay marriage statements is inadequate and that he still deserves to be damned to progressive Hell.

But I am not an evangelical, and, frankly, I don’t think that the status of Rick Warren’s soul is any of my business.

For that reason, I would approach Rick Warren’s statements on Larry King about gay marriage from a different – and more secular — perspective.

I would note that as the leader of one of the largest evangelical churches in the nation, Rick Warren’s claim that he has “Never…been, never will be” an activist opponent of gay marriage is strikingly good political news for progressives, especially in California where the Prop 8 debate is far from over.

I would note, too, that Rick Warren’s mea culpa could not come at a better time – when the Republican Party, both nationally and in Warren’s home territory of Orange County – is desperately searching for traction in its losing battle against progressives, Democrats, and President Obama.  At the least, Warren is giving a clear signal to Republicans who think they can reverse the political tide by turning politics into a culture war, that he is not going to fight on their side.

Instead, Pastor Rick makes clear that, for him, the social gospel (the fight against AIDS in particular, but also fighting poverty and climate change, and ending the genocide in Darfur) is more important than social conservative issues like gay marriage.

That’s very bad news for Republicans.

So I would celebrate the Good News of Pastor Rick Warren’s awakening – and welcome him with love and open arms.

Iowa’s Same Sex Marriage Decision: What it Says and What it Means

libertykissIn 1998, the Iowa legislature, capitulating to a well-funded national campaign against gay marriage, amended the state’s marriage statute to define marriage as a union between only a man and a woman.

Today, in a stunning, courageous, and powerfully written decision, the Iowa Supreme Court unanimously ruled that the state’s anti-gay marriage statute is invalid because it violates the equal protection clause of the state constitution.

The Court’s decision in Varnum v. Brien (2009) is enormously significant not only because it allows same sex couples to marry in Iowa, but also because it so clearly, cogently, and conscientiously dismantles and destroys each and every one of the arguments that the anti-gay forces have made – and continue to make — against sex same marriage.

The Court described the plaintiffs as “six same-sex couples who live in committed relationships. Each maintains a hope of getting married one day, an aspiration shared by many throughout Iowa.”  According to the Court, these plaintiffs – “Like all Iowans” – are people who “prize their liberties and live within the borders of this state with the expectation that their rights will be maintained and protected,” but are different from other Iowans in being “sexually and romantically attracted to members of their own sex.”  These six couples, the Court observed, “seek to declare the marriage statute unconstitutional so they can obtain the array of benefits of marriage enjoyed by heterosexual couples, protect themselves and their children, and demonstrate to one another and to society their mutual commitment.”

The Court first asserted and defended its right and obligation to rule on the constitutionality of the anti-gay marriage statute.  Among the “basic principles essential to our form of government,” the Court explained, is that the state constitution “defines certain individual rights upon which the government may not infringe” including the right to equal protection of the law.  Citing the foundational United States Supreme Court case establishing judicial review of the constitutionality of federal statutes — Marbury v. Madison (1803) — the Iowa Supreme Court insisted that its “responsibility to determine if the law enacted by the legislative branch and enforced by the executive branch violates the Iowa Constitution” includes the obligation to “protect the supremacy of the constitution as a means of protecting our republican form of government and our freedoms.”

Certain fundamental rights, including the right to the equal protection of the law, are beyond “the vicissitudes of political controversy” and “beyond the reach of majorities and officials” to limit or deny.  Accordingly, the Court has the responsibility “to protect constitutional rights of individuals from legislative enactments that have denied those rights, even when the rights have not yet been broadly accepted, were at one time unimagined, or challenge a deeply ingrained practice or law viewed to be impervious to the passage of time.”

Turning to the equal protection question, the Court first noted that “equal protection can only be defined by the standards of each generation… So, today, this court again faces an important issue that hinges on our definition of equal protection. This issue comes to us with the same importance as our landmark cases of the past. The same-sex-marriage debate waged in this case is part of a strong national dialogue5 centered on fundamental, deep-seated, traditional institution that has excluded, by state action, a particular class of Iowans. This class of people asks a simple and direct question: How can a state premised on the constitutional principle equal protection justify exclusion of a class of Iowans from civil marriage?”

The proper equal protection question is not, according to the Court, whether the classifications made by the law are applied equally; instead the law itself must be equal: “In other words, to truly ensure equality before the law, the equal protection guarantee requires that laws treat all those who are similarly situated with respect to the purposes of the law alike.”

The Court noted that “courts apply a heightened level of scrutiny under equal protection analysis when reasons exist to suspect ‘prejudice against discrete and insular minorities . . . which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities.”  Looking at the history of discrimination and prejudice against gay and lesbian people, the irrelevancy of sexual orientation to an individual’s ability to contribute to society, the immutability of an individual’s sexual orientation, and the historical political powerless of gays and lesbians, the Court determined that a “heightened scrutiny” standard should be applied to gauge the impact of the anti-gay marriage statute on same sex couples.

Nevertheless, the Court found that the anti-gay marriage statute did not pass constitutional muster even under an “intermediate scrutiny” standard because it is not “substantially related to an important governmental objective.”

The Court first emphatically rejected the claims that permitting same sex couples would undermine the institution of marriage or would harm the state’s children.

While noting the “superficial appeal” of the argument that same-sex marriage ban promotes the ‘integrity of traditional marriage’ by ‘maintaining the historical and traditional marriage norm [as] one between a man and a woman,” the Court found this claim to be circular: “When a certain tradition is used as both the governmental objective and the classification to further that objective, the equal protection analysis is transformed into the circular question of whether the classification accomplishes the governmental objective, which objective is to maintain the classification. In other words, the equal protection clause is converted into a ‘barren form of words’ when ‘discrimination . . . is made an end in itself’.”

The Court next unequivocally held that “scientific research has repudiated the commonly assumed notion that children need opposite-sex parents or biological parents to grow into well-adjusted adults.”  The Court also found that, in regard to protecting children, the anti-gay marriage is both under and over-inclusive: “The civil marriage statute is under-inclusive because it does not exclude from marriage other groups of parents—such as child abusers, sexual predators, parents neglecting to provide child support, and violent felons—that are undeniably less than optimal parents. Such under-inclusion tends to demonstrate that the sexual-orientation-based classification is grounded in prejudice or “overbroad generalizations about the different talents, capacities, or preferences” of gay and lesbian people, rather than having a substantial relationship to some important objective. … The ban on same-sex marriage is substantially over-inclusive because not all same-sex couples choose to raise children.”

The Court also found that “If the statute was truly about the best interest of children, some benefit to children derived from the ban on same-sex civil marriages would be observable. Yet, the germane analysis does not show how the best interests of children of gay and lesbian parents, who are denied an environment supported by the benefits of marriage under the statute, are served by the ban. Likewise, the exclusion of gays and lesbians from marriage does not benefit the interests of those children of heterosexual parents, who are able to enjoy the environment supported by marriage with or without the inclusion of same-sex couples.”

The Court next rejected the claim that prohibiting same sex couples from marrying would advance the legitimate governmental objective of promoting procreation: “the sole conceivable avenue by which exclusion of gay and lesbian people from civil marriage could promote more procreation is if the unavailability of civil marriage for same-sex partners caused homosexual individuals to ‘become’ heterosexual in order to procreate within the present traditional institution of civil marriage. The briefs, the record, our research, and common sense do not suggest such an outcome. Even if possibly true, the link between exclusion of gay and lesbian people from marriage and increased procreation is far too tenuous to withstand heightened scrutiny. Specifically, the statute is significantly under-inclusive with respect to the objective of increasing procreation because it does not include a variety of groups that do not procreate for reasons such as age, physical disability, or choice. In other words, the classification is not substantially related to the asserted legislative purpose.”

The Court also rejected the claims that prohibiting same sex marriage promoted stability in opposite-sex relationships — “While the institution of civil marriage likely encourages stability in opposite-sex relationships, we must evaluate whether excluding gay and lesbian people from civil marriage encourages stability in opposite sex relationships. The County offers no reasons that it does, and we can find none. The stability of opposite-sex relationships is an important governmental interest, but the exclusion of same-sex couples from marriage is not substantially related to that objective” – and that prohibiting same sex marriage would conserve state resources – “Excluding any group from civil marriage — African-Americans, illegitimates, aliens, even red-haired individuals—would conserve state resources in an equally “rational” way. Yet, such classifications so obviously offend our society’s collective sense of equality that courts have not hesitated to provide added protections against such inequalities.”

Based on these findings, the Court concluded that none of the purported objectives of the ban on same sex marriage “were furthered in a substantial way by the exclusion of same-sex couples from civil marriage.”

Strikingly, and courageously, the Court then addressed the real basis for the same sex marriage ban – religious opposition to homosexuality: “While unexpressed, religious sentiment most likely motivates many, if not most, opponents of same-sex civil marriage and perhaps even shapes the views of those people who may accept gay and lesbian unions but find the notion of same-sex marriage unsettling… Whether expressly or impliedly, much of society rejects same-sex marriage due to sincere, deeply ingrained — even fundamental — religious belief. Yet, such views are not the only religious views of marriage… other equally sincere groups and people in Iowa and around the nation have strong religious views that yield the opposite conclusion… Our constitution does not permit any branch of government to resolve these types of religious debates and entrusts to courts the task of ensuring government avoids them… civil marriage must be judged under our constitutional standards of equal protection and not under religious doctrines or the religious views of individuals. This approach does not disrespect or denigrate the religious views of many Iowans who may strongly believe in marriage as a dual-gender union, but considers, as we must, only the constitutional rights of all people, as expressed by the promise of equal protection for all. We are not permitted to do less and would damage our constitution immeasurably by trying to do more.”

The Iowa decision can not be as readily overturned as the California Supreme Court’s similar decision in the Marriage Cases was overturned by Prop 8.

Unlike California, where the state constitution can almost immediately be amended by a simple majority vote in a ballot measure, the Iowa constitution can be amended only when majorities in both the state House and Senate in two consecutive general assemblies approve an amendment, and then the amendment is approved by a majority of voters in the next general election. Since each general assembly lasts for two years, the earliest that a proposed amendment overturning the Court’s decision could reach voters is November 2012.

It is also notable that in reaching its conclusions, the Iowa Supreme Court extensively cited and relied on the California Supreme Court decision in the Marriage Cases.

Let us hope that the California Supreme Court, which is now considering whether  Prop 8 can take away the fundamental right of gay and lesbian people to marry, carefully reads the Iowa decision.