Scalia’s thought process: “Well, he probably did something else wrong anyway.”

Way back in 1989, I happened to be watching Episode Two of a PBS series entitled "Ethics in America." It was a terrific 10-part series that considered compelling topics in ethics. Supreme Court Justice Antonin Scalia was a participant in Episode Two. You can see all of the episodes, including Episode Two here (click on the little "VoD" button next to Episode 2). You might be wondering how I could possibly remember a particular comment from a particular episode from 20 years ago. I do remember: it was burned into my memory because it was so utterly bizarre. At about the 31-minute mark, the moderator (Charles Ogletree, Jr.) posed a hypothetical. What if you were an attorney and your client told you that he committed a murder a couple years ago? The clear answer is that the attorney-client privilege protects that admission; if you were that man's attorney, you could not tell anyone else what your client told you in the course of your consultation with him. Things got much more interesting, as the moderator elaborated on the hypothetical. Assume that your client tells you that after he committed the murder, the police erroneously arrested the wrong man. Further, assume that man has been found guilty by a jury and he is scheduled to be executed. As the attorney, what can you do to protect the life of an innocent man who is about to be executed for a crime committed by your own client who is confessing his guilt to you? This is a tough issue, right? At the moment where the moderator indicated that the innocent man was about to be executed for a crime he didn't commit, Justice Scalia spoke up: "Well, he probably did something else wrong anyway." You can see and hear this statement for yourself at 31:50 in the video. Although I'm certain that Justice Scalia would claim that his utterance was a "joke," (after all, other participants laughed), it makes you wonder, especially in light of a recent case decided by the United States Supreme Court, In re Davis.

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U.S. Supreme Court to decide whether Corporations have the same First Amendment rights as individuals.

On September 4, 2009, Bill Moyers hosted Trevor Potter, president and general counsel of The Campaign Legal Center (and former chairman of the Federal Election Commission), and Floyd Abrams, a First Amendment attorney. You can view the entire discussion here. The topic is whether longstanding federal election laws should be held unconstitutional so that corporations can freely spend unlimited amounts of money (e.g., in the form of movies, books, and other private initiatives) in order to directly affect the outcome of federal political campaigns. The case is Citizens United v. The Federal Election Commission. Many legal commentators are suggesting the Supreme Court has already suggested that it leaning in favor of the corporations on this issue. And we can almost guarantee how Chief Justice John Roberts is going to vote on this issue (and see here). I highly recommend viewing this discussion. I thought that Abrams looked very much like a man who was being paid big money to take position he knew to be reprehensible. On the other hand, Trevor Potter is taking a position that looks out for people like you and me. I realize that powerful corporate interests have already made puppets out of Congress, the SEC, the FDA and many other federal agencies (see these recent examples regarding tobacco legislation and the rejection of the bankruptcy cram-down option). With this as the context, I believe that Citizens United boils down to a simple question: Should our government be at least somewhat run by ordinary people or should corporate money flow even more freely at election time (much more than it flows already), allowing our federal government to be taken over entirely by powerful corporations driven almost entirely by the profit motive? Here are a few excerpts from Moyers’ discussion with Potter and Abrams:

TREVOR POTTER: This is a case about corporate money. If this case is won by the corporation, we will be in the ironic situation where corporations will have no limits on what they can spend in elections and unions still will. So, it's important to remember we're talking about corporations. Corporations exist solely to make money. Amassing economic power. They want, if they could get it out of government, monopolies. They want the ability to defeat their competitors. And if they can use government to do that, they will. Individuals have a whole range of interests. Individuals go to church, they care about religious and social issues, they care about the future of the country. They're voters.

So, they have a range of issues at stake that corporations don't have. Corporations just want to make money. So, if you let the corporation with a privileged economic legal position loose in the political sphere, when we're deciding who to elect, I think you are giving them an enormous advantage over individuals and not a healthy one for our democracy. . . . [C]orporations have a different status. And they ought to be focused on the economic marketplace and not the political marketplace.

FLOYD ABRAMS: You're opening the faucet, so to speak, so that more speech can occur. I don't think it's a can of worms to say that corporations, and it is unions as well, ought to be able to participate in the give and take of the democratic processes in the country. From my perspective, at least, the notion of saying that corporations and unions should be out of the picture either because they're too powerful, or because of the way their money has been created, is so inconsistent with the sort of First Amendment approach that we take in everything else, where we say over and over again, we don't care who the speaker is, we don't care where the speaker's coming from. And speech, we think, is, as a generality, a good thing . . .

BILL MOYERS: But we're not talking about free press issues here. We're talking about the power of an organized economic interest to spend vast sums of money that individuals can't spend . . . Would you disagree with the claim that big business dominates the political discussion today? Whether it's the drug industry or the health insurance industry? Big business is the dominant force in Washington. I mean, I see that as a journalist . . . we're not talking about free press issues here. We're talking about the power of an organized economic interest to spend vast sums of money that individuals can't spend.

It is important to deny powerful profit-seeking organizations the right to skew federal election results even more than they do currently. If the Supreme Court goes the wrong way on this issue, it would even make a mockery out of clean-money initiatives, such as this plan being promoted by Common Cause and this plan by Public Citizen.

Continue ReadingU.S. Supreme Court to decide whether Corporations have the same First Amendment rights as individuals.

Tortured logic, tortured justice

Sometimes, I cannot comprehend how the United States of America has come to occupy the landscape that it has in the year 2009. Growing up, I learned in school about all of the wonderful things that the United States had done for the world. Out of the tyranny that the British Empire had become, our forefathers had the temerity and the moral fortitude to announce to the world that we would be building a new kind of nation-- one in which the rights of the individual would trump government power. People were inherently vested with natural rights, inalienable rights. Our First Amendment- the right to speak freely, to worship (or not) as one pleases, free press, who could ask for a better check on governmental power? Can the government force the citizenry to quarter soldiers? Not here, we've got the Constitution! Governments stopping people for no reason, or on trumped-up charges? No way, we've got the 4th Amendment! To be sure, there were some stark contradictions, but I didn't realize those until I was a little older. I mean, it's a little hard to take seriously those that would lecture on the topic of liberty while being slave-owners, but the overall idea was pretty great. We were the force for truth and justice and all that is right. We proved it, too. We fought tyranny in World War II, the most recent (winning) war. We saw the evil that was done in the name of National Socialism, Fascism, or whatever label you want to use. We saw the evil in those Nazi bastards and we would have none of it-- and rightly so. The indescribable acts of torture and dehumanization were enough to turn anyone's stomach. I read Night, as well as some other works by holocaust survivor Elie Wiesel, and was moved to tears. I looked at the photographs of the concentration camps and saw the shivering, starving groups of people blankly staring at the camera lens. I saw the piles of bodies- massive piles of them! What kind of people could order (or commit?) these horrible, despicable acts? What kind of person could so callously cause the suffering of their fellow human beings? The Nazi experiment was a singular example of the brutality that one group could inflict on another. There is no crime so heinous that it could compare to the atrocities committed by the Nazis. The scale of the suffering defies understanding-- we named it The Holocaust. [More . . . ]

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Stop Discriminating against Sick People!

Stop Discriminating against Sick People! Jonathon Alter was a guest on "the Ed Show" tonight on MSNBC. In a noisy debate with Ed, he said that the goal of healthcare reform should be "to end discrimination against sick people". He said that the path to reform was largely irrelevant. That whether or not there was a public option was largely irrelevant. That healthcare reform is a civil rights issue, and that reform had nothing to do with the mechanics of that reform. To be clear, Mr Alter stated that he was personally very much for a public option. But he was also very clear that regardless of the public option, this reform needed to pass. I agree with Jonathon. Discrimination against sick people must stop. Discrimination against people with 'pre-conditions' must stop. Discrimination against people, must stop. It's time to act. Call your congressman. Enact healthcare reform.

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Proposed Amendment

I've been mulling an idea for an amendment to the U.S. constitution that probably won't have as much a chance as the failed Equal Rights Amendment, in which persons of the female persuasion would have been defined explicitly as full fledged people with the same rights as the white male landholders for which the constitution was originally penned. How's this?

"Government shall pass no law abridging the right of any person to decide whether an organism living within his or her own body is a harmful parasite or a welcome guest, and to respond accordingly."

A lawyer could probably tighten up the wording, but I think the gist is there. This amendment might save oodles of money on government health care in ways such as:
  • It would limit the ways in which lawyers determine what medical procedures are prohibited or required, and the associated overhead in managing those decisions.
  • It would remove the bureaucracy necessary to separate funding for procedures that everyone accepts under government insurance from those protested by a vocal minority.
Discussion?

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