A Supreme Court Opinion to heed

Back in 1971, Justice Hugo Black issued an extremely well-reasoned concurring opinion in the case of New York Times v United States. Many things have changed since 1971, but this clear-headed opinion addresses many aspects of the current controversy involving Edward Snowden. Back in 1971, The NYT had begun publishing installments of the then-classified Pentagon Papers, which indicated that America's war efforts were a sham, and that America had little to no hope of success in the conflict. This was sharply at odds with what U.S. politicians had be telling the public. In response to the initial publication installments, President Richard Nixon's Attorney General, John Mitchell, filed an injunction action seeking to prevent publication of further installments. The injunction was granted, and the case quickly rose up for review by the United States Supreme Court. There was no majority opinion, but the divided court did vote 6-3 to reverse the trial court and to allow the NYT to continue publication. The following excerpts are from Justice Black's concurrence:

"[T]he injunction against the New York Times should have been vacated without oral argument when the cases were first presented ... . [E]very moment's continuance of the injunctions ... amounts to a flagrant, indefensible, and continuing violation of the First Amendment. ... When the Constitution was adopted, many people strongly opposed it because the document contained no Bill of Rights ... . In response to an overwhelming public clamor, James Madison offered a series of amendments to satisfy citizens that these great liberties would remain safe ... . In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. ... [W]e are asked to hold that ... the Executive Branch, the Congress, and the Judiciary can make laws ... abridging freedom of the press in the name of 'national security.' ... To find that the President has 'inherent power' to halt the publication of news ... would wipe out the First Amendment and destroy the fundamental liberty and security of the very people the Government hopes to make 'secure.' ... The word 'security' is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security ... . The Framers of the First Amendment, fully aware of both the need to defend a new nation and the abuses of the English and Colonial governments, sought to give this new society strength and security by providing that freedom of speech, press, religion, and assembly should not be abridged.
The government had based its case on the Espionage Act of 1917. I'm reprinting an excerpt from the Act immediately below. One can immediately see how vague (arguably constitutionally defectively vague) and broad (arguably constitutionally overbroad) at least this portion of the Act is, something to keep in mind when considering that this is the law the government is supposedly enforcing in modern times to punish whistle-blowers, including Bradley Manning and Edward Snowden. Section 793(e) of the act (a section that Snowden was apparently charged under) makes it a criminal offense to do the following:
Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it.

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Time to ban predatory lenders and rent-to-own shops

David Ray Papke has recently published "Perpetuating Poverty: Exploitative Businesses, the Urban Poor, and the Failure of Liberal Reform," suggesting that it's time to pull the plug entirely on predatory lenders and rent-to-own outlets. If only legislators would base their decisions on what is just rather than the flow of money to their re-election campaigns. Why ban them rather than regulate them? Because it's been attempted for a long time, unsuccessfully. These business are great at evading the spirit of regulation.

In the end, the urban poor who shop and borrow at rent-to-own outlets, payday lenders, and title pawns do in fact pay exorbitant amounts that are much higher than what they would pay for goods at Walmart or loans at the local bank. As scholars have argued for almost fifty years, it is routinely the case that the poor pay more than middle and upper-class Americans for comparable goods and services.1 This includes food, housing, transportation, insurance, mortgages, and health care,2 and it certainly includes goods and loans from rent-to-own outlets, payday lenders, and title pawns. This article has four major sections. The first three examine the business models of, in order, the rent-to-own outlets, payday lenders, and title pawns. Each of these business models features a highly-crafted, standardized contractual agreement that does not merely support the business but rather is central to it. The fourth section of the article reviews reformist efforts related to these businesses and also argues that these liberal efforts at reform have been ineffective. The business models and concomitant contractual agreements of rent-to-own outlets, payday lenders, and title pawns are so sophisticated and adjustable as to make them virtually impervious to regulation. As a result, rent-to-own outlets, payday lenders, and title pawns continue not only to exploit the urban poor but also to socio-economically subjugate the urban poor by trapping them into a ceaseless debt cycle. A blanket proscription of these tawdry businesses might be the only way to drive them from our midst and to eliminate their active role in the perpetuation of urban poverty. . . . Some practices so fundamentally affront our shared values that they should quite simply be prohibited. It is one thing to exploit the urban poor, but it is another thing to systematically worsen their socio-economic condition and to thereby subject them to greater control and subservience. Exploitation, in other words, might be tolerable in our market economy, but subjugation should not be. You can take people’s money and the value of their labor, but you not should be able to yoke them permanently or even semi-permanently to subordination. By actively making the urban poor even poorer, the rent-to-own, payday lending, and title pawn businesses do just that and should be banned.
Papke's article can be found here. It is published by Marquette University Law School. For more on payday loans, see various articles at this site with the word "payday," including this look at how the battle between reformers and the industry wages on the ground.

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Democracy: More than majority rule

At Salon.com, Nicholas Buccola explains that a true democracy does more than merely count the votes. It is more than mob rule. The context is Justice Scalia's dissent in United States v. Windsor.

While the right to govern ourselves collectively is part of the “the beauty of what our Framers gave us,” it is not the whole of it. This right exists alongside the rights of individuals to be treated with dignity and respect. In his Windsor dissent Scalia all but mocks the majority’s concern for the “personhood and dignity” of individuals and contends that not only should the government be free to exclude same-sex couples from the institution of marriage, but he reminds us repeatedly that he believes the government should be empowered – if the majority wills it – to imprison homosexuals for making love in the privacy of their own homes. What one cannot detect in Scalia’s Windsor dissent is an appreciation for the idea that true democracy entails not only collective self-government, but respect for the right of the individual to govern his own conduct. Scalia’s dissent has all the markings of a brand of democracy too shallow to accept. Genuine democracy – like the conception of democracy defended by Frederick Douglass – is far more worthy of celebration this Fourth of July weekend.

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Cops fail to ask driver if he’s been drinking at DUI checkpoint

There is a lot of ignorance of the U.S. Constitution out on the streets. Consider this video made by a driver who committed the crime of asserting his Constitutional rights at a DUI checkpoint. The written account of the incident is here. More on motor vehicle checkpoints here and here. It's clear from videos like this (there are many) it is clear that there is a big difference between the law on the books and the law on the streets.

Continue ReadingCops fail to ask driver if he’s been drinking at DUI checkpoint