While We Are Wringing Our Hands….

While we wait for the impact of sequestration to hit, we might ponder this: In an interview with Spiegel Online, a Harvard economist insisted that we could save an amount equal to the sequestration cuts every year  just by ending the War on Drugs.

“The prohibition of drugs is the worst solution for preventing abuse,” said Professor Jeffrey Miron. “Firstly, it brings about a black market that is corrupt and costs human lives. Secondly, it constrains people who wouldn’t abuse drugs. Thirdly, prohibiting drugs is expensive.”

I have made this point before.

The direct costs of our counterproductive drug war have been estimated at more than 60 billion dollars a year. And yet, in all the years we have pursued this war, we have not reduced the percentage of Americans using hard drugs. Instead, that sixty billion dollars a year has destroyed lives, incentivized criminal activity, increased police corruption, laid waste to several South American countries, and decimated inner city neighborhoods.

If our elected officials are really so intent upon reducing the national debt, wouldn’t it make more sense to stop spending enormous sums for a failed policy, and use at least some of the savings for treatment? Better still, we could legalize marijuana–which medical experts tell us is less dangerous than booze–and tax it.

I don’t know whether we’d save more than the sequester, but abandoning a failed, horrifically expensive program would be a far more rational approach than taking an indiscriminate, meat ax approach to the budget.

Comments

Worthwhile Reminders

I finally got around to reading “Healing the Heart of Democracy” by Parker Palmer yesterday, and was struck by his observation that it isn’t disagreement that makes our politics so contentious–it is demonization.

Back in the day, as they say, I remember Dick Lugar responding to challenges by saying “That’s an issue upon which people of good faith can differ.” By the time he was attacked by Tea Party purists, that simple recognition–that otherwise good people can differ in their analysis of a situation–had become heresy in some precincts.

When we de-humanize those who disagree with us, we make conversation–and conversion–impossible. I’ll grant that some folks are so rigid, so afraid to consider facts that might be contrary to their own worldview, that reasonable debate is not possible. (As a friend of mine used to say, you can’t reason someone out of a position they never reasoned themselves into.) But those tend to be folks on the fringe. When we write off everyone on the other side of an issue, we abandon any possibility of productive discourse.

Alexander Hamilton addressed this very human tendency in Federalist #1: “So numerous indeed and so powerful are the causes which serve to give a false bias to the judgment, that we see wise and good men on the wrong as well as on the right side of questions of the first magnitude to society. This circumstance, if duly attended to, would furnish a lesson of moderation to those who are ever so much persuaded of their being in the right in any controversy….In politics, as in religion, it is equally absurd to aim at making proselytes by fire and sword. Heresies in either can rarely be cured by persecution.”

Later in that same essay, he points out that partisans are unlikely to sway others to their opinions or to increase the “number of their converts” by the “loudness of their declamations and the bitterness of their invective.”

As difficult as it may be in an era positively dominated by invective and loudness, those of us who care about the conduct of public affairs need to work on substituting vigorous but respectful disagreement for demonization. Otherwise, the public square will be entirely dominated by the “true believers” of all sorts who are so vested in labeling and attacking that they cannot participate in anything remotely resembling democratic discourse.

In an era where every ideologue claims fidelity to the Founders, maybe we should actually listen to one.

Comments

Forgetting the Basics

Back when I first became politically active,and especially after I joined the Hudnut Administration as Corporation Counsel, I was schooled by then-County Chairman John Sweezy. John’s favorite admonition was “Good government is good politics.” For someone serving as the City’s chief lawyer, that meant hiring people because they were best qualified, not because the party “owed” them. A lot of people were disbelieving when I told them that party officials never interfered with such decisions, but it was true. That same adage meant that administrators and City-County Councilors alike should act in the public interest, as they saw that interest.

Much of the long run of GOP dominance in Marion County can be attributed to this very basic premise that voters will reward sound stewardship–that good government is good politics.

I thought about that adage, and my own experience, when I read Charles Blow’s column in this morning’s New York Times. Blow reports on recent Pew polling showing that most Americans have negative opinions of the GOP–62% say the party is “out of touch” with the American people; 52% believe the party is too extreme; only 45% think the party is looking out for the country’s long-term future, and even fewer–39%–believe the GOP is open to change.

There are numerous reasons for these dismal ratings, but the most recent is Congressional Republican willingness to allow the sequester to take effect rather than agree to “revenue enhancements” in the form of either tax increases or the closing of tax loopholes.

An insistence on protecting the pocketbooks of the very wealthy no matter what the consequences for the country as a whole (the Director of the Congressional Budget Office has estimated that the sequester could cost 750,000 jobs in 2013) has become the primary image of the GOP. That image of fat-cats and influence-peddlers unconcerned with the circumstances of regular folks is not helped by the party’s other image as culture-war politicians hostile to women’s rights and dismissive of the claims of gay Americans, immigrants and minorities.

The Republican party I served in the 1970s and 1980s didn’t do everything right, but it understood that it was neither good government nor good politics to protect donors’ pocketbooks while disregarding the interests of ordinary citizens. While the party had its share of bigots and misogynists, both the Hudnut Administration and the County party rejected the politics of division and the extremism of the culture warriors, and actively recruited women and minorities. From time to time, I run into old friends from those days, and we bemoan the loss of that Republican party and its civic-minded leadership.

If it is sad to see the Grand Old Party devolving into a group of angry old white heterosexual men, it is profoundly dangerous for the country. The United States needs two reality-based parties. Neither the nation nor the Democratic Party are well-served by the absence of intellectually and morally honest conservative opposition.

Comments

Even Jerks Have Rights

A couple of days ago, the Indianapolis Star ran a story about a group of very odd bedfellows who are urging the Indiana Supreme Court to accept and reverse a case that presents significant First Amendment issues. I was one of those “bedfellows,” and I will admit that I would never have imagined teaming up with Phyllis Schafly’s Eagle Forum, or the “First Amendment” organization run by Jim Bopp! (I have more in common with other members of the group: Jim Brown, former Dean of IUPUI’s Journalism School, the Indianapolis Star itself, the Hoosier State Press Association, and a variety of other organizations.)

The case that gave rise to this challenge was a divorce and custody battle. The Judge awarded custody of the children to the wife, and the husband was furious. He vented his displeasure in a series of blog posts that were–well, just let’s say they were not complimentary. Among other things, the husband compared the decision to award custody to the mother to child abuse.

From what I can tell from the record, the guy is missing a few screws, and is fairly unpleasant to boot.

Being unpleasant, however, is not equivalent to waiving one’s right to free speech. In this case, the lower courts ruled that the husband’s online rants had violated an Indiana statute prohibiting intimidation. That Statute defines intimidation as a threat or threats that have the purpose of making their target behave in a certain way (for example, the man who tells his girlfriend that he will break her arms and legs if she leaves him). The Indiana Court of Appeals decided that the husband’s stated intention to continue publicly criticizing the Judge amounted to such a threat.

If that interpretation stands, the statute would criminalize common, constitutionally protected forms of speech. The purported “threat” was along the lines of “If you don’t reverse your decision, I’ll continue to badmouth you.” As Eugene Volokh, the constitutional scholar and law professor who is representing our group, puts it in his brief, this sort of “threat” is indistinguishable from the following:

(1)  a columnist’s writing, “Legislator A’s vote on issue B is ridiculous, and I intend to ridicule him until his constituents view him with contempt.”

(2)  an advocacy group’s picketing a store with signs saying, “The store owner’s decision to stock product C is disgraceful, and we hope our speech will expose the owner to disgrace and ostracism.”

(3)  a politician’s saying, “The incumbent’s decision D is so foolish that, once I tell the voters about it, he will be the laughingstock of the state.”

The truth is, the right to free speech is often exercised by people who have nothing of value to say. It is often a shield for vulgarity and stupidity. It protects people who use words to attack and diminish others. But so long as the weapon of choice is language–so long as there is no threat of non-verbal harm–the speech is protected against reprisals from government. As numerous courts have reminded litigants, the antidote to bad speech isn’t government suppression; it is more and better speech.

As tempting as it is to use the government to shut down annoying jerks, it’s well to remember that a government with that power can also silence the rest of us.

Comments

Two Sides of the Issue

The question of DNA testing is evidently coming before the Supreme Court this year. The issue is whether taking DNA from someone who has not been convicted of a crime is a violation of that person’s constitutional right to privacy, to bodily integrity.

You would think that a committed civil libertarian would be opposed to this practice, and perhaps if I knew more about the various situations in which the DNA is collected, and the arguments against its use, I would be. But I am very conflicted.

Unlike fingerprints, which are notoriously unreliable, DNA samples analyzed correctly are accurate. Because they are accurate, they prove innocence as well as guilt–DNA evidence has exonerated literally hundreds of people serving time for crimes they did not commit. It has saved countless others the trauma and expense of trials.

Furthermore, the procedures used to collect DNA are not particularly invasive. Typically, a quick swab of the inside of one’s cheek is all that is required–no more time-consuming than rolling fingers in ink and placing them on a surface capable of accepting the transfer, and barely more intrusive.

That said, there’s a legitimate concern that information from DNA and other identity markers can be abused. An effort to collect DNA from the citizenry at large would constitute serious overreach; it would tempt unethical officials to misuse the information, and identity thieves to steal it.

But what about routinely taking DNA samples from people who are arrested? The argument is that a national DNA bank would allow authorities to solve crimes like rape much more quickly, arguably preventing perpetrators from committing additional crimes before getting caught.

The 4th Amendment was crafted long before modern technology; we have to look to its purpose to determine how it should apply to these modern scientific marvels at our disposal. If taking someone’s DNA is a “search,” what is the probable cause, the legal justification, for that search? Can an arrest for some minor infraction provide that justification? Probably not.

I welcome comments and lessons from readers who know more about this issue than I do, because I see both sides of the argument. The positive results of expanded testing would seem to outweigh the negatives, but–especially in Constitutional law–the ends cannot justify otherwise forbidden means.

There are some very good lawyers who comment on this blog from time to time. I need your help now! What am I missing?

Comments