Tuesday, June 29, 2010

Thoughts on States' Rights

Despite my absolute abhorrence of gun ownership and use and secret desire that the Second Amendment had never been written (or the punctuation therein had at least been applied less ambiguously), I find myself supporting the Supreme Court's recent decision (McDonald v. Chicago) that local or state laws cannot entirely prohibit handgun ownership. Why? Because I believe in a strong central government more strongly than I believe in gun control. I think it's pretty self-evident that states should not have the ability to entirely rescind rights given to its residents by the federal government. (Disclaimer: I have never taken a constitutional law course, and so while I know there are things going on with the Fourteenth Amendment and incorporation and such, I'm not even pretending to speak authoritatively about specific legal precedent, etc. This is all just one average citizen's "common sense" thoughts with very little background info other than the text of the Constitution.)

Only the First Amendment explicitly states it is enumerating rights that "Congress shall make no law respecting"; the rest simply refer to rights of "the people," "any person," or "the accused." Thus it seems to me it's entirely legitimate to assume that the entire Bill of Rights, with the exception of the First Amendment, describes rights that all U.S. citizens have and that neither the federal nor state or local governments can take away. (Lucky for us, the First Amendment very definitely was part of this mysterious incorporation process that somehow the Second Amendment was left out of, because it apparently seemed pretty obvious to everyone else that if Congress can't censor what you say, neither should your state legislature or city council.)

In general, I think the rights conferred upon citizens by the federal government should be the absolute minimum recognized by states, that states could grant extra rights but couldn't take away any already granted by the federal government. How can a state claim jurisdiction over something that the country of which it is a member has already granted to every citizen (resident?)? If people could be citizens of the U.S. without somehow being under the jurisdiction of any other governmental body, there might be a case to be made that states can then do whatever they want and if you don't like it you can go someplace else, but to me it seems like it's entirely pointless to be granted a right by the federal government if it's entirely possible every single state (you have to live somewhere!) would curtail it. Then where would you be?

Thus, the first issue I have with state's rights: that (in some cases) a person who is a resident of both the United States and a specific state is thought to somehow be primarily under the second-tier state's jurisdiction and only secondarily under the jurisdiction of the first-tier, overarching federal government. (I know the Ninth Amendment confers all powers not enumerated in the Constitution to the states, but I'm talking here about the ones I think it does very definitely enumerate.)

At first blush it seems all very nice and reasonable that local governments are best situated to rule and regulate themselves, that the people in an area may have different concerns than the country overall and that they might prefer to regulate different aspects of life or regulate life in different or opposing ways to those of some other locale. After all, who wants some distant bureaucrat telling them how to best run their own affairs? However, I think local rule can only be truly fair and effective when communities are remarkably homogeneous and when everyone there chose to live there.

Regarding the inevitably incomplete homogeneity: I think local rule tends to silence minorities (of all varieties) even more effectively than federal rule does. On a nationwide scale, people who are the minority in a city or state might be either a much larger minority (say, African-Americans in New Hampshire versus the entire U.S.) or even the majority (say, conservatives in Massachusetts versus the country at large). There is simply more room for a meaningful debate about equality and representativeness and more impetus toward protection of minority rights on a nationwide level due to the increased visibility and larger numbers. Protecting the rights of one gay couple in some random small, overwhelmingly conservative and/or religious town may not seem like a legitimate issue to the rest of the townspeople (it's just a few people being deviant or provocative or asking for special treatment), whereas on the national stage gay rights are at least a recognized concern, however divided governmental bodies and the populace at large may be on the issue. Minorities deserve protection no matter where they are, but if they're a small enough minority, a lot of times it's not even clear to the majority that they are a distinct minority that merits protection. It's helpful for a more removed federal government to make these calls.

Regarding choice: If every state had a clearly-enumerated list of laws that was easily compared to that of every other state and if all residents of a state chose to move there based on their willingness to be bound by those laws, I would have no issue whatsoever with states enacting whatever laws they so desired. However, the vast majority of people (myself excluded) probably did not simply pick a state they wanted to live in based on the political and social attitudes represented therein. People live places for all sorts of reasons: they were born there, their parents moved them there when they were still minors, that's where they went to school and so they stuck around, that's where the job they found is or their job relocated them to, that's where their or their spouse's family is, that's the kind of climate they enjoy or has the sort of landscape they find enjoyable (hiking, rafting, skiing, beaches, etc.). While many of these may in some way reflect legal structures (regarding industry regulation or educational funding or what have you), the laws of a place are very rarely a conscious consideration of any one individual when planning to relocate. It could be argued that that is the fault of the individual, not the state, but I find this pretty unrealistic.

In addition, there are plenty of reasons why the state you're in now is likely to be the state you stay in. Many poor people lack the resources to relocate or the skills to find employment in certain other regions of the country. And, more than anything else, people just tend to go for the status quo, so all other things being equal, they tend to stay put.

Moreover, it's not like everyone is just born into some limbo state and brought to the age of majority in an entirely neutral place then left to select where they want to live. I think it is deeply unfair to have minors be stuck some place that may have pretty extreme laws they never voted for or even tacitly accepted by willingly choosing to reside there. Pity the poor gay kid stuck against his or her will in a red state without hate crime legislation, gay marriage, civil unions, nondiscrimination policies that include homosexuality, etc. What about teenagers who want contraception who live somewhere they can't get it without parental consent? What about atheists (or just science nerds) living somewhere that mandates equal time for intelligent design as evolution? What are they supposed to do? It's hardly their choice to be there, and they have absolutely no representation. (I'm sure equally terrifying examples could be generated regarding living in a ridiculously liberal state, but I'm having trouble coming up with those since I just don't think like that. Or, you know, maybe not, since liberal states tend not to restrict what people can do; you can always be more conservative than your surroundings, but being more liberal than your surroundings often runs you up against legal bounds.) Simply because the adult population of where they live is unlike them, these children are stuck in what is quite possibly a hellish existence for them. With a stronger central government making many of the decisions that are now left up to the states, laws would probably be a little more balanced and mainstream, severely disturbing a much smaller percentage of the populace.

(Of course, the same argument can be made regarding citizenship on the national levela relatively small percentage of the world's population actively chooses in which country they want to live, and even if there were free movement between all nations, minors would still be stuck where their parents want them to be. This is one of the reasons I think Hobbes's social contract is full of crapnobody alive today actually made a conscious choice to leave the state of nature and join into the leviathan. Regardless, we as a country can't really do much to change that, but we could try to make life suck less for kids who aren't like their parents who happen to live in this country.)

And now the flip side of mobility: especially nowadays, everyone moves across state lines. (OK, not everyone, but 22 million people moved across state lines between 1995 and 2000, which appears to be about 13% of the population. In five years. So obviously way more than that has moved across state lines at some point in their lives.) It is absolutely impossible to be aware of every difference in law between your old state and your new state, especially before moving. (I'm still blown away that there's not a nice handy website that encompasses all state laws ever and permits them to be compared; states' websites are hit or miss, and they're all obviously in different formats and pretty much impossible to compare.) So you move to another state because of your job or something, and then the next thing you know, you learn you can't talk on your cell phone while driving, or your 17-year-old son can be charged with statutory rape for sleeping with his 17-year-old girlfriend, or you can't get a no-fault divorce without a year's separation first, or gay partners of biological parents don't have any legal rights over kids that were previously considered equally theirs, or it's illegal for medical insurance to cover abortions (or the reverse of any of these scenarios, though again, I'm having trouble seeing how discovering that the opposite of any of these was the case would be as problematicI guess there are plenty of people who would like the 17-year-old boyfriend of their daughters to be made sex offenders as punishment for premarital sex (essentially) and would be disturbed by the kind of laws that doesn't make it statutory rape if both parties are under 18 and within two years of each other's ages or whatever, right?). Most of these situations are ones that people would never expect to find themselves in in advance (divorce, abortion, children committing sex crimes, etc.) so they aren't that particular about seeing what the law has to say until it's suddenly applicable. How do you know, short of reading the entire legal code (which I assume is pretty obviously ridiculous) what random laws there may be that might crop up to impact your life in ways you never imagined?

If laws were consistent nationwide, there might still be things you never thought to look into, but you'd have a much better chance of hearing or seeing something about them if they were applicable to everyone in the entire country. You'd know that if it only took a month for your brother and sister-in-law to get a divorce, you could get one in about the same timeframe without having to remember that they live somewhere that's not New York (although actually I think that changed recently). You'd know if you read some story about surrogate mothers winning custody of the kids they bore that you'd better beware of that sort of thing if you're using any sort of nontraditional means of reproduction. (You'd know if you read some story about surrogate mothers suing for and losing custody of the kids they bore that it obviously wouldn't be an issue for you, rather than getting lulled into a false sense of security and then, ta-da, oh, that story took place in some other state and is actually the exact opposite of what would happen in your state.)

Basically I just don't think modern life works well with such a fractured system. In the age of the internet (which brings information about myriad such situations people find themselves in, often without making it clear how this may differ from state to state) and of frequent inter-state relocations (which suddenly and entirely (and largely unnoticedly) change the rules by which one is to abide), so many independent sets of laws seems pretty ridiculous. And then of course there are the ones, like most family laws, that turn into a giant mess when one party relocates. If you have a child with a partner you're not married to and then that partner leaves you and takes the kid to another state, which state's family laws apply? If you're gay and the state they went to doesn't recognize civil unions, domestic partnerships, or non-biological parents' rights but the state you resided in and formed your family in did, now what? Wouldn't it just be easier if it were the same everywhere? So yeah, I think states are pretty anachronistic, personally.

Tuesday, June 1, 2010

Fighting for our Freedoms?

Preemptive disclaimer: I do not say this to downplay the real sacrifices, both on the battlefield and in later life, members of the military have and do make. (In fact, I think what our military asks people to do to their psyches is unconscionable and exploitative, but that's an entirely different can of worms I don't feel like getting into at the moment and has nothing to do with the specific, individual soldiers holidays like Memorial Day are meant to honor.)

I really, truly, honestly do not understand what people mean they thank our troops "for fighting for our freedoms!" Sarah Palin (I know, I know) tweeted this yesterday [edited to add spaces because my blog is not limited to 140 characters]: "VETERANS, not reporters, give freedom of the press. VETS, not politicians, give freedom to vote. VETS, not campus radicals, give freedom to assemble." Normally I would write this off as Palin being Palin, but I have heard the exact sentiment (though perhaps not those specific examples) every Veterans Day, Memorial Day, and many Fourths of July of my life from real-life, normal people I know. (At church, it was always "...who gave their lives for us to have the right to sit right here today and worship as we see fit.")

I just don't get it. I'm not trying to make a political statement abut war or the military or mock Sarah Palin for being an idiot (shocking, I'm sure) or decry the American habit of fetishizing our troops or imply that our troops aren't nice, honorable people or anything; I legitimately do not understand. (So if you can explain it in a way that seems at all coherent, please do.)

The general "fighting for our freedoms" formulation seems to imply that had we not fought in any or all of the wars we had, our country would have been taken over by our enemy or our government would have been overthrown or something catastrophic would have happened that would result in a totalitarian regime that would control our lives in unprecedented ways, banning religious expression and free speech, censoring the press, and doing who knows what other evil things. That's just plain untrue. In World War II, we weren't fighting for the freedom of American citizens, we were fighting to prevent Germany's gaining European hegemony. (The Pacific theater might provide more of a case since Japan actually did attack American soil, but again, had we not retaliated, I don't think anyone actually means to suggest that Japan would have rolled tanks into Washington and abolished freedom of speech.) If I remember correctly, World War I had even less to do with the U.S. Vietnam and Korea, though part of the general communist threat to the dominance of democracy and freedom in some grand sense, didn't have anything to do with fighting for U.S. citizens' rights.

Obviously the Revolutionary War was fought for the principles of democracy and freedom (though actually not the ones Palin or anyone else mentions since those tend to be part of the Bill of Rights, which didn't come until later). The War of 1812 seems a legitimate case of fighting in defense of the country and thus, by extension, the freedom of its citizens. Even the Civil War was legitimately about protecting a way of life in the United States (each side would have that perspective, even, though obviously they disagreed about which way of life deserved protection). But nobody still living knows anyone who fought in any of these wars, so presumably those aren't the people actually being thanked (which is a pity, really, because Memorial Day seems to be turning into Veterans Day part 2 or a Military Appreciation Day or something instead of a day of remembrance for those who have died).

So how about the current wars? I mean, I know we were attacked, but even so, and even despite the fact that it was indeed intended to be an attack on the American way of life and presumably on democracy and freedom, the terrorist groups we're talking about simply don't have the power to take away our freedoms. They're not big enough or strong enough to keep you from exercising your freedom of speech in this country. They're not in a position to tell you you can or can't worship as you please. And really, the 9/11 attack has nothing to do with Iraq at all, though I suppose had it turned out Hussein actually possessed WMDs, those would have posed a legitimate threat to America or Americans (depending on what he would be planning to do with them). Of course, even so, I'm still not sure anyone's ability to blow up chunks of the country in any way gives them a chance to deprive us of our freedoms unless they are able to then take over the country and replace the government.

So I wouldn't find it nonsensical if people thanked the military for "fighting for freedom" or "fighting for democracy" or even "fighting to protect our interests"—one or the other of those is actually applicable in every conflict we have gotten involved in. But fighting for our—Americans'—freedoms, especially fighting for specific freedoms like those of free speech, press, and assembly? I think that necessitates a deliberate (and inaccurate) reframing of the entire narrative of the American military's actions.

Regarding Palin's statement specifically, I do agree that reporters are not who guarantee or protect freedom of the press, politicians are not who bestow suffrage upon us, and protesters are not the source of the right of assembly. But neither are vets of any war in the past 300 years responsible for the granting of those rights (obviously) or even the protection of them in any literal sense. It's not veterans who give us the right to assemble peacefully, it's the first amendment to the Constitution. Barring an invading force of extreme power, the only way for our freedoms to be abridged is through the United States government itself in concert with a lack of attention or political will on the part of the citizenry.