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Tag Archives: supreme-court
Posted: October 15, 2016 at 5:23 am
To begin, I am greatly happy that you, Mdal, joined my debate. It appears that your arguments appeals to logic, which is, in my opinion the most persuasive type of argument. I will primarily be appealing to logic, however will also touch on the ideals of value, as it is one of the main moral reasons I support this idea. I have also adapted the format of my arguments to suit your style.
Voltaire, an enlightenment thinker, regarded with as intuitive and influential a mind as Montesquieu, Rousseau, and Locke. All influential people who host beliefs that influenced the framers of the Constitution, and all of which created ideals that support, and influence my own belief on restricting the rights of the first amendment to hate group’s gathering in public areas.
I agree with your definition of what the constitution is advancing us towards, “a stable, liberty driven, peaceful, prosperous state” and would in turn like to define hate groups as any groups that gather with the intentions of breeding fear, terror, hate, or violence towards any particular group of people (defined as a group of similar races, religion, or belief [such as sexual orientation].) More specifically, I will be focusing on, and discussing the two groups you mentioned, the Ku Klux Klan, and the Aryan Brotherhood.
Now, before I begin my own arguments, I will answer your question: “who gets to say what is ok and what isn’t?”
I have long meditated in search of a proper way for our nation to adapt to such a monumental change as I have proposed. The only way that I could think of was to add a fourth branch to our current system of checks and balances. This branch would be in charge of adapting the constitution to better suit the nation as it evolves (including any exceptions the members of this branch deem necessary to create.) They would have equal power to the executive, legislative and judicial branches, and would their adjustments would be checked by both the legislative branch (requiring a majority vote as opposed to the current two thirds vote necessary to create an amendment) and the judicial branch to make sure that any and all changes and exceptions created by this new branch follow the main ideals that are upheld within our nation, and do not violate the main intentions of the framers ideals. I realize that this is also a very controversial topic, and would love to hear any and all concerns you have regarding this issue; however, I do not want this to distract us from the main topic of our debate.
Rebuttal #1: In response to the “slippery-slope” argument Logic: The system of checks and balances was created in order to stop one particular group from gaining power. Adapting this system by creating another branch should quite any worries you had about the “slippery-slope” that may occur, as the extent of the branches power will be modified by two other branches, the Legislative and the Judicial. Therefore, the new branch will not be able to abuse this power, and they, because of these restrictions, would not be able to quiet the entire, “market place of ideas.”
Rebuttal #2: In response to the argument that this will limit the market place of ideas Logic: You brought up the argument that if we allow bad ideas to mix with good ideas, then the good ideas will “rise to the top.” In response to this, I would like to bring up the case of Osama Bin Laden, a terrorist who has, what are commonly assumed to be “bad ideas.” Because of Bin Laden’s influential abilities, his bad ideas were able to rise above the good ideas, and eventually led to a great influx of new members into terrorist beliefs, and further led to the tragic destruction of the World Trade Center in 2001.
I am in no way saying that the KKK or the Aryan Brotherhood has equal power to Terrorists, but I am instead proposing that they have similar bad ideas focused on fear and hatred towards a group of people. If the KKK were to gain an influential leader (horrendous, but influential none-the-less) as Osama Bin Laden, who’s to say whether or not our current small national terrorist group the KKK would turn into a world-wide terrorist organization such as that created by Osama Bin Laden?
It is better to regulate the public meetings of these organizations now, as opposed to later when their power may exceed that of the government they are encompassed by.
Rebuttal #3: In response to the argument that Free speech keeps our government accountable. Logic: As the government is not a group of people regulated by race, religion, or belief (refer to definition of groups of people). And the branch will only have the power to regulate hate groups from publicly discussing (note I am not restricting their right to gather in privacy, purely in public) their ideas, the proposition will have no effect on those who wish to speak out against the government.
Now onto my main argument:
Argument: We are currently not fully acknowledging people’s natural rights Logic: According to the natural rights originally proposed, and supported by enlightenment thinkers such as Locke, Montesquieu, and Rousseau all people are born with the right to live his/her life any way he/she likes without causing physical harm to another individual, directly or indirectly.
What I question within this right is the restriction, “without causing physical harm to another individual, directly or indirectly.” I concede that I am working under the assumption that hate groups gather with a common goal to assert their superiority (through violence or terror) over a different group of people. I also concede that I work under the assumption that mental harm can become so intense that it can eventually harm a person physically (I only state this because this was not common knowledge around the time of the enlightenment, and therefore was not included in their right.) I believe that these are fairly common assumptions, and therefore will continue with my argument. If we allow groups that have a goal of asserting superiority over a specific group of people, whether they currently act upon this goal, or whether they plan on accomplishing this goal in the future, they either directly or indirectly threaten the safety of others.
I also could go on, however do not wish to state all of my arguments in the first round of our five round discussion.
Thank you again for accepting this debate, so far it proves to be quite promising.
I will first respond to tsmart’s rebuttals to my 3 opening arguments, from there I will counter tsmart’s single argument, finally I must respond to the possible creation of a 4th branch of government as the actor created by tsmart in this case. Though I too do not want this debate dramatically side tracked by a debate about the actor who will create the proposed new laws set forth by tsmart. However as he uses this new 4th branch as an answer to my 3rd argument it has become very important to the core of this debate and will thus be discussed when answering Tsmart’s first rebuttal.
With this signposting finished, lets get to some arguments.
Rebuttal #1: Tsmart’s Rebuttal assures us that through the creation of the 4th branch of government who’s sole job is two interpret freedom of speech, and decide what is and what is not allowable under our new laws which limit certain types of speech. Tsmart’s exact quote of what the 4th branch of government would be is: “This branch would be in charge of adapting the constitution to better suit the nation as it evolves (including any exceptions the members of this branch deem necessary to create.) They would have equal power to the executive, legislative and judicial branches, and would their adjustments would be checked by both the legislative branch (requiring a majority vote as opposed to the current two thirds vote necessary to create an amendment) and the judicial branch to make sure that any and all changes and exceptions created by this new branch follow the main ideals that are upheld within our nation, and do not violate the main intentions of the framers ideals.”
My response: Whooooooo eeee! Where to start on this one?
To begin with it seems at first blush that the 4th branch is going to usurp what has been the power of the Supreme Court, namely interpreting the constitution. However upon closer examination it seems that Tsmart actually has created a body whose job is much more than merely interpreting the constitution, it is actually a body whose job is to CHANGE the constitution. So basically this new body is invented to abridge and thus destroy the power of the 1st amendment (one of the most important amendments in our constitution, one who has been upheld through countless court cases) take the power of the states and congress (the governmental structures who usually keep all of the checks and balances on the creation of new amendments)and given it all to this new 4th branch. Basically we have reorganized the very makeup of American government for the express reason of censoring people. *****In a cost benefit analysis the cost of destabilizing the government by shifting around the powers set in our government by our founding fathers to a new, strange, and untested power structure for the possibly non-existent benefit of censoring hate groups seems dramatically unbalanced. Under this cost benefit analysis it seems as if any marginal benefits we might get from censorship are DRAMATICALLY outweighed by the dangers of the radical upsetting of our governmental structure and thus shows that the CON’s proposed solutions just aren’t worth the trouble.
Rebuttal #2: In response to my argument for an open Market Place of Ideas (something we have now but will lose if we lose Freedom of Speech) Tsmart brings up the example of Osoma Bin Laden and how his ideas have risen to the top in some places and beat out better ideas, so we should instead keep these sort of ideas out of the public’s purview.
My Response: Tsmart actually just proved my point by using the example of Osoma Bin Laden, tell me readers (and Tsmart) have you been convinced by listening to Bin Laden on our television? It wasn’t hidden from us. Everyone in the US is allowed to listen to what Bin Laden has to say, yet HERE in the US where the market place of ideas flourishes Bin Laden’s brand of extremism hasn’t gained a foothold. The places where he is much more popular don’t have the myriad of view points like we have the capacity of getting here in the States, instead in places like Iran, Saudi Arabia, Afghanistan, Pakistan and other nations in the Middle East we find a correlation between the free-er the speech, the less extremist the views in the country. This is because when the market place of ideas is allowed to work, people are able to make well informed decisions and that usually leads them away from extremist views and towards the center ground when considering an issue. Thus we can see how Tsmart’s example just proves exactly how important the market place of ideas really is and how important it is to keep from abridging the first amendment which is SO key to keeping the market place of ideas viable.
Rebuttal #3: I stated that freedom of speech is a huge check on the government. Tsmart says: “…the branch will only have the power to regulate hate groups from publicly discussing (note I am not restricting their right to gather in privacy, purely in public) their ideas, the proposition will have no effect on those who wish to speak out against the government.” My Response: What about the hate groups Tsmart? What happens if an incredibly racist, cruel, mean, hate filled Neo Nazi has a well conceived critique of the the government, but wants to express this brilliant critique in hate filled language? His speech, though offensive to you and me, will also give a benefit to the society because he will point out something about the government which needs to be looked at. Re-reading your quote you say that the hate group will be unable to discuss their ideas in public, what if their ideas have to do with the government? Is this a new exception? Are Hate groups allowed to talk about the government? You see how restricting even a small part of Freedom of Speech has huge ramifications for everyone in our society? Rather than risk the benefit of one of the best checks on our government (freedom of speech) we should play it safe and not try to silence people we don’t agree with.
On to Tsmart’s argument of expanded natural rights, His claim is that if people are railed against in public by hate groups they may be harmed mentally and that may eventually lead to physical harm. Thus we should protect these minorities and targeted groups from the hate groups.
Response to Tsmart’s Argument: Tsmart, it seems as though you have come to an overreaching understanding of what the government is supposed to do in situations like this. Your solution is to take preemptive action by taking away freedoms from people who might threaten others. However it seems as though the goal you are trying to accomplish is to make certain that the targeted minority groups ARE safe as well as help them FEEL safe. This goal can be met much better by an investment in anti-hate laws which will increase the punishment for hate crimes, or better yet you could increase the capabilities of the police and thus keep extremist groups like the hate organizations in line. However abridging freedom of speech is not the best, or even a decent, way of defending targeted minority groups.
Debate: Freedom of Speech | Debate.org
Posted: October 8, 2016 at 10:22 pm
United States Constitution
Twenty-fourth Amendment, amendment (1964) to the Constitution of the United States that prohibited the federal and state governments from imposing poll taxes before a citizen can participate in a federal election. It was proposed by the U.S. Congress on August 27, 1962, and was ratified by the states on January 23, 1964.
In 1870, following the American Civil War, the Fifteenth Amendment, guaranteeing the right to vote to former slaves, was adopted. The Twenty-fourth Amendment was adopted as a response to policies adopted in various Southern states after the ending of post-Civil War Reconstruction (186577) to limit the political participation of African Americans. Such policies were bolstered by the 1937 U.S. Supreme Court decision in Breedlove v. Suttles, which upheld a Georgia poll tax. The Supreme Court reasoned that voting rights are conferred by the states and that the states may determine voter eligibility as they see fit, save for conflicts with the Fifteenth Amendment (respecting race) and the Nineteenth Amendment (respecting sex). It further ruled that a tax on voting did not amount to a violation of privileges or immunities protected by the Fourteenth Amendment. In short, because the tax applied to all votersrather than just certain classes of votersit did not violate the Fourteenth or Fifteenth Amendment.
During the civil rights era of the 1950s, particularly following the Brown v. Board of Education decision in 1954, such policies increasingly were seen as barriers to voting rights, particularly for African Americans and the poor. Thus, the Twenty-fourth Amendment was proposed (by Sen. Spessard Lindsey Holland of Florida) and ratified to eliminate an economic instrument that was used to limit voter participation. Two years after its ratification in 1964, the U.S. Supreme Court, invoking the Fourteenth Amendments equal protection clause, in Harper v. Virginia Board of Electors, extended the prohibition of poll taxes to state elections.
The full text of the amendment is:
Section 1The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.
Section 2The Congress shall have power to enforce this article by appropriate legislation.
amendment (1920) to the Constitution of the United States that officially extended the right to vote to women.
…the United States to deny federal funds to local agencies that practiced discrimination. Efforts to increase African American voter participation were also helped by the ratification in 1964 of the Twenty-fourth Amendment to the Constitution, which banned the poll tax.
…in Southern states into the 20th century. Some states abolished the tax in the years after World War I, while others retained it. Its use was declared unconstitutional in federal elections by the Twenty-fourth Amendment to the U.S. Constitution, effective in 1964. In 1966 the Supreme Court, going beyond the Twenty-fourth Amendment, ruled that under the equal protection clause of…
Go here to see the original:
Twenty-fourth Amendment | United States Constitution …
Posted: October 6, 2016 at 2:50 pm
By Brooke Anderson – Climate Workers, October 3, 2016
Click here to download the sample resolution as an editable Word doc
[Sample] Local Union Resolution Against the Dakota Access Pipeline
WHEREAS, the $3.78Billion, 1,172-mile Dakota Access Pipeline would carry over half a million barrels of dirty crude oil from the Bakken oil fields in North Dakota, through South Dakota and Iowa to Illinois to connect to other pipelines bringing oil to the East Coast and the Gulf; and
WHEREAS, the pipeline is slated to pass through the tribal lands of Standing Rock Sioux near Cannon Ball, North Dakota, and underneath the Missouri River, the main source of water for the tribe; and
WHEREAS, the pipeline desecrates the ancestral burial grounds of the Standing Rock Sioux; and
WHEREAS, millions of workers including many union members their families, and communities live in the path of the proposed pipeline; and
WHEREAS, the transport of heavy crude is particularly volatile, leading to 18.4 million gallons of oils and chemicals spilled, leaked, or released into the air, land, and waterways between 2006 and 2014 in North Dakota alone, causing death, contamination of soil and water, and all kinds of disease; and
WHEREAS, scientists have warned that in order to avoid wide-scale, catastrophic climate disruption, the vast majority of known remaining fossil fuel reserves must be left in the ground; and
WHEREAS, Native American land protectors and their supporters have been brutally attacked by private security forces with attack dogs and pepper spray; and
WHEREAS, Native Americans and other activists defending their land and water have the same right to defend their land and engage in non-violent protest as workers who are protesting the actions of an unfair employer; and
WHEREAS, the U.S. Congress has repealed the ban on exporting oil, meaning that the oil transported by the pipeline is likely to be sold overseas and not contribute to US energy independence; and
WHEREAS, we know that the real threat to workers lives and livelihoods is catastrophic climate change; and
WHEREAS, many large corporations, and especially fossil fuel corporations, have been putting profits ahead of the common good of workers, the public, and the environment, and these corporations have been granted the unjust constitutional rights and powers of person-hood, and the doctrine of money as speech through activist Supreme Court decisions thereby diminishing democracy and the voice and power of the people; and
WHEREAS, numerous national and international unions have already passed resolutions against construction of the pipeline, including National Nurses United, the Amalgamated Transit Union, the Communications Workers of America, the United Electrical Workers, and others; and
WHEREAS, this local union is already on record supporting the development of renewable energy sources and investment in sustainable energy including quality union jobs; and
WHEREAS, more long term good paying jobs would be created by investing in sustainable energy infrastructure projects using already existing technologies while at the same time reducing pollution that creates greenhouse gases; and
WHEREAS, we support the rights of our union brothers and sisters building the pipeline to work in safe environments at jobs that are consistent with respect for the environment and the rights and safety of frontline communities; therefore be it
RESOLVED, that we call upon the Federal Government to make permanent the moratorium on construction of the Dakota Access Pipeline by revoking permits for construction issued by the Army Corps of Engineers; and be it further
RESOLVED, that this local union calls on the labor movement to support a just transition to a renewable energy economy and investment in the construction of a nationwide sustainable energy infrastructure that will address the growing threat of climate change and its consequent droughts, floods, fire, crop failure, species extinction and other dire consequences of global warming; and be it further
RESOLVED, that this local union make a financial contribution of $_____ to the land protectors at the Standing Rock protest camps; and be it further
RESOLVED, this local union urges its internal union and the rest of the labor movement to become actively involved in promoting a just transition to a sustainable alternative energy economy that protects the environment and respects the rights of all working people to good paying safe jobs, human rights and justice for all; and be it finally
RESOLVED, that a copy of this resolution be forwarded to the International Union and all Central Labor Councils we are affiliated, with, with a request for concurrence.
See the original post here:
Posted: October 1, 2016 at 1:43 am
At last nights presidential debate Donald Trump and Hillary Clinton made all kinds of attacks on each other. But on one notable issue, they were in complete agreement: they both think people on the federal governments no fly list should be categorically denied their right to buy guns under the Second Amendment. Both candidates have repeatedly said so for months. Trumps stance on this issue should be deeply troubling to those who care about gun rights and also to people concerned about constitutional rights generally, even if they dont care much about this one.
As both the ACLU and conservative commentators point out, the no fly list is notoriously inaccurate. It is also provides little or no due process protections. The process is secret, people are not told the reasons why they were placed on the list, and they are not given any advance opportunity to challenge the designation. And, once on the list, even a completely innocent person might find it difficult and time-consuming to get off it.
If Trump is committed to the idea that your Second Amendment rights can be stripped on such a flimsy basis, with so little due process, then virtually any other politically feasible limitation on gun rights is also acceptable. The sort of reasoning that would uphold this restriction on gun ownership would permit pretty much any other. That should give pause to people supporting Trump because they think he is going to protect Second Amendment rights. It is also yet another reason to doubt that he would appoint originalist judges committed to protecting important constitutional rights generally. Most such judges are unlikely to uphold these kinds of gun regulations (as well as many other items on his political agenda).
Trumps disdain for Second Amendment rights is not limited to the no fly list. At last nights debate, he also said he wants police to use stop and frisk searches to take away guns from bad people. Its not entirely clear what he means by this remark (it could be interpreted as being limited to people the police believe to be felons or gang members whom he also mentioned in the same part of the debate). But, at the very least, its another example of him advocating gun confiscation without due process. It also indicates a disturbing level of confidence that the government can identify bad people and take away their guns without victimizing the innocent.
Even people who do not care much about gun rights and the Second Amendment have reason to be concerned about Trumps position on this issue. As liberal legal commentator Mark Joseph Stern (who is no fan of gun rights), points out, if this constitutional right can be taken away with so little due process, others can be as well:
If the government can revoke your right to access firearms simply because it has decided to place you on a secret, notoriously inaccurate list, it could presumably restrict your other rights in a similar manner. You could be forbidden from advocating for causes you believe in, or associating with like-minded activists; your right against intrusive, unreasonable searches could be suspended. And you would have no recourse: The government could simply declare that, as a name on a covert list, you are owed no due process at all.
Stern believes that the Second Amendment should not be interpreted as protecting an individual right to bear arms. But so long as the Supreme Court continues to hold otherwise, revoking this right on the basis of a secret list with no due process sets a dangerous precedent for other constitutional rights.
In fairness to Trump, Hillary Clinton is no better than he is on the no fly issue. It is, as already noted, one of the few things they agreed on last night. While I believe that she is, on balance, a lesser evil than Trump, this is not one of the issues that makes her so. On other gun control issues, she almost certainly favors more extensive regulation than he does.
But there is this difference: Hillary Clinton and many other liberals make no bones about the fact that they believe either that the Second Amendment does not protect an individual right to bear arms at all, or that the right in question is an unimportant one that should be relegated to second-class status compared to what they see as more significant parts of the Bill of Rights. I think theyre badly wrong about that. But their reasoning at least creates the possibility that they and the judges they pick could approve the no-fly list gun ban without creating too much of a dangerous precedent for other constitutional rights. Like Stern, I believe that many liberals seriously underrate the risk of dangerous slippery slope effects in this area. But at least they are making some effort to contain them.
By contrast, Trump repeatedly claims that hes a strong supporter of the Second Amendment. If hes nonetheless willing to undermine it so blatantly, that does not bode well for the many constitutional rights for which he has (even) less regard.
UPDATE: Commenters on Twitter point to Trumps seeming support of a GOP bill sponsored by Sen. John Cornyn that would allow the government to ban people on the no fly list from buying guns for only 72 hours, after which they would have to go to court to provide evidence of links to terrorism, in order to extend the ban. Its a fair point, and one I should have addressed in the original post. But I dont think it much changes the bottom line on the dangerous implications of Trumps position on this issue.
While it is entirely possibly that Trump would sign the Cornyn bill if it passes, he has never clearly stated that he supports it. Much more significantly he has never said that he will only support the no fly, no buy policy if it includes a right to a judicial hearing. And, in the debate last night, he suggested the contrary by emphasizing his essential agreement with Hillary Clinton on the issue. He even said he quite strongly agrees with her. This implies he would be just as happy to sign a bill with no such judicial safeguards (which is the approach Clinton advocates). Trump did indicate that there should be a legal way for people to get off the no fly list if they should not be there. But, of course, that is no different from the status quo. People can already entirely legally get off the no fly list by asking the federal government to remove them. It just often takes many months or even years to happen.
The important broader issue here is not whether Trump would sign the Cornyn bill. It is Trumps cavalier approach even towards those constitutional rights, such as the Second Amendment, that he claims to strongly support.
See the original post:
Trump and the Second Amendment – The Washington Post
Posted: September 22, 2016 at 7:46 pm
Madison’s original proposal for a bill of rights provision concerning religion read: ”The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretence, infringed.” 1 The language was altered in the House to read: ”Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience.” 2 In the Senate, the section adopted read: ”Congress shall make no law establishing articles of faith, or a mode of worship, or prohibiting the free exercise of religion, . . .” 3 It was in the conference committee of the two bodies, chaired by Madison, that the present language was written with its some what more indefinite ”respecting” phraseology. 4 Debate in Congress lends little assistance in interpreting the religion clauses; Madison’s position, as well as that of Jefferson who influenced him, is fairly clear, 5 but the intent, insofar as there was one, of the others in Congress who voted for the language and those in the States who voted to ratify is subject to speculation.
Scholarly Commentary .–The explication of the religion clauses by the scholars has followed a restrained sense of their meaning. Story, who thought that ”the right of a society or government to interfere in matters of religion will hardly be contested by any persons, who believe that piety, religion, and morality are intimately connected with the well being of the state, and indispensable to the administration of civil justice,” 6 looked upon the prohibition simply as an exclusion from the Federal Government of all power to act upon the subject. ”The situation . . . of the different states equally proclaimed the policy, as well as the necessity of such an exclusion. In some of the states, episcopalians constituted the predominant sect; in others presbyterians; in others, congregationalists; in others, quakers; and in others again, there was a close numerical rivalry among contending sects. It was impossible, that there should not arise perpetual strife and perpetual jealousy on the subject of ecclesiastical ascendancy, if the national government were left free to create a religious establishment. The only security was in extirpating the power. But this alone would have been an imperfect security, if it had not been followed up by a declaration of the right of the free exercise of religion, and a prohibition (as we have seen) of all religious tests. Thus, the whole power over the subject of religion is left exclusively to the state governments, to be acted upon according to their own sense of justice, and the state constitutions; and the Catholic and the Protestant, the Calvinist and the Arminian, the Jew and the Infidel, may sit down at the common table of the national councils, without any inquisition into their faith, or mode of worship.” 7
”Probably,” Story also wrote, ”at the time of the adoption of the constitution and of the amendment to it, now under consideration, the general, if not the universal, sentiment in America was, that Christianity ought to receive encouragement from the state, so far as was not incompatible with the private rights of conscience, and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation.” 8 The object, then, of the religion clauses in this view was not to prevent general governmental encouragement of religion, of Christianity, but to prevent religious persecution and to prevent a national establishment. 9
This interpretation has long since been abandoned by the Court, beginning, at least, with Everson v. Board of Education, 10 in which the Court, without dissent on this point, declared that the Establishment Clause forbids not only practices that ”aid one religion” or ”prefer one religion over another,” but as well those that ”aid all religions.” Recently, in reliance on published scholarly research and original sources, Court dissenters have recurred to the argument that what the religion clauses, principally the Establishment Clause, prevent is ”preferential” governmental promotion of some religions, allowing general governmental promotion of all religion in general. 11 The Court has not responded, though Justice Souter in a major concurring opinion did undertake to rebut the argument and to restate the Everson position. 12
Court Tests Applied to Legislation Affecting Religion .–Before considering the development of the two religion clauses by the Supreme Court, one should notice briefly the tests developed by which religion cases are adjudicated by the Court. While later cases rely on a series of rather well-defined, if difficult-to-apply, tests, the language of earlier cases ”may have [contained] too sweeping utterances on aspects of these clauses that seemed clear in relation to the particular cases but have limited meaning as general principles.” 13 It is well to recall that ”the purpose [of the religion clauses] was to state an objective, not to write a statute.” 14
In 1802, President Jefferson wrote a letter to a group of Baptists in Danbury, Connecticut, in which he declared that it was the purpose of the First Amendment to build ”a wall of separation between Church and State.” 15 In Reynolds v. United States, 16 Chief Justice Waite for the Court characterized the phrase as ”almost an authoritative declaration of the scope and effect of the amendment.” In its first encounters with religion-based challenges to state programs, the Court looked to Jefferson’s metaphor for substantial guidance. 17 But a metaphor may obscure as well as illuminate, and the Court soon began to emphasize neutrality and voluntarism as the standard of restraint on governmental action. 18 The concept of neutrality itself is ”a coat of many colors,” 19 and three standards that could be stated in objective fashion emerged as tests of Establishment Clause validity. The first two standards were part of the same formulation. ”The test may be stated as follows: what are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the Constitution. That is to say that to withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion.” 20 The third test is whether the governmental program results in ”an excessive government entanglement with religion. The test is inescapably one of degree . . . [T]he questions are whether the involvement is excessive, and whether it is a continuing one calling for official and continuing surveillance leading to an impermissible degree of entanglement.” 21 In 1971 these three tests were combined and restated in Chief Justice Burger’s opinion for the Court in Lemon v. Kurtzman, 22 and are frequently referred to by reference to that case name.
Although at one time accepted in principle by all of the Justices, 23 the tests have sometimes been difficult to apply, 24 have recently come under direct attack by some Justices, 25 and with increasing frequency have not been applied at all by the Court. 26 While continued application is uncertain, the Lemon tests nonetheless have served for twenty years as the standard measure of Establishment Clause validity and explain most of the Court’s decisions in the area. 27 As of the end of the Court’s 1991-92 Term, there was not yet a consensus among Lemon critics as to what substitute test should be favored. 28 Reliance on ”coercion” for that purpose would eliminate a principal distinction between establishment cases and free exercise cases and render the Establishment Clause largely duplicative of the Free Exercise Clause. 29
Justice O’Connor has suggested that it is inappropriate to try to shoehorn all Establishment cases into one test, and has called instead for recognition that different contexts may call for different approaches. Supp.1 For example, the Justice proposes that cases involving government ”speech” on religious topics be judged by an endorsement test that would invalidate government actions only if a reasonable observer would perceive the action as an endorsement or disapproval of religious belief. Supp.2
Government Neutrality in Religious Disputes .–One value that both clauses of the religion section serve is to enforce governmental neutrality in deciding controversies arising out of religious disputes. Schism sometimes develops within churches or between a local church and the general church, resulting in secession or expulsion of one faction or of the local church. A dispute over which body is to have control of the property of the church will then often be taken into the courts. It is now established that both religion clauses prevent governmental inquiry into religious doctrine in settling such disputes, and instead require courts simply to look to the decision-making body or process in the church and to give effect to whatever decision is officially and properly made.
The first such case was Watson v. Jones, 30 which was decided on common-law grounds in a diversity action without explicit reliance on the First Amendment. A constitutionalization of the rule was made in Kedroff v. St. Nicholas Cathedral, 31 in which the Court held unconstitutional a state statute that recognized the autonomy and authority of those North American branches of the Russian Orthodox Church which had declared their independence from the general church. Recognizing that Watson v. Jones had been decided on nonconstitutional grounds, the Court thought nonetheless that the opinion ”radiates . . . a spirit of freedom for religious organizations, and independence from secular control or manipulation–in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” 32 The power of civil courts to resolve church property disputes was severely circumscribed, the Court held, because to permit resolution of doctrinal disputes in court was to jeopardize First Amendment values. What a court must do, it was held, is to look at the church rules: if the church is a hierarchical one which reposes determination of ecclesiastical issues in a certain body, the resolution by that body is determinative, while if the church is a congregational one prescribing action by a majority vote, that determination will prevail. 33 On the other hand, a court confronted with a church property dispute could apply ”neutral principles of law, developed for use in all property disputes,” when to do so would not require resolution of doctrinal issues. 34 In a later case the Court elaborated on the limits of proper inquiry, holding that an argument over a matter of internal church government, the power to reorganize the dioceses of a hierarchical church in this country, was ”at the core of ecclesiastical affairs” and a court could not interpret the church constitution to make an inde pendent determination of the power but must defer to the interpretation of the body authorized to decide. 35
In Jones v. Wolf, 36 however, a divided Court, while formally adhering to these principles, appeared to depart in substance from their application. A schism had developed in a local church which was a member of a hierarchical church, and the majority voted to withdraw from the general church. The proper authority of the general church determined that the minority constituted the ”true congregation” of the local church and awarded them authority over it. The Court approved the approach of the state court in applying neutral principles by examining the deeds to the church property, state statutes, and provisions of the general church’s constitution concerning ownership and control of church property in order to determine that no language of trust in favor of the general church was contained in any of them and that the property thus belonged to the local congregation. 37 Further, the Court held, the First Amendment did not prevent the state court from applying a presumption of majority rule to award control to the majority of the local congregation, provided that it permitted defeasance of the presumption upon a showing that the identity of the local church is to be determined by some other means as expressed perhaps in the general church charter. 38 The dissent argued that to permit a court narrowly to view only the church documents relating to property ownership permitted the ignoring of the fact that the dispute was over ecclesiastical matters and that the general church had decided which faction of the congregation was the local church. 39
Thus, it is unclear where the Court is on this issue. Jones v. Wolf restated the rule that it is improper to review an ecclesiastical dispute and that deference is required in those cases, but by approving a neutral principles inquiry which in effect can filter out the doctrinal issues underlying a church dispute, the Court seems to have approved at least an indirect limitation of the authority of hierarchical churches. 40
[Footnote 1] 1 Annals of Congress 434 (June 8, 1789).
[Footnote 2] The committee appointed to consider Madison’s proposals, and on which Madison served, with Vining as chairman, had rewritten the religion section to read: ”No religion shall be established by law, nor shall the equal rights of conscience be infringed.” After some debate during which Madison suggested that the word ”national” might be inserted before the word ”religion” as ”point[ing] the amendment directly to the object it was intended to prevent,” the House adopted a substitute reading: ”Congress shall make no laws touching religion, or infringing the rights of conscience.” 1 Annals of Congress 729-31 (August 15, 1789). On August 20, on motion of Fisher Ames, the language of the clause as quoted in the text was adopted. Id. at 766. According to Madison’s biographer, ”[t]here can be little doubt that this was written by Madison.” I. Brant, James Madison–Father of the Constitution 1787-1800 at 271 (1950).
[Footnote 3] This text, taken from the Senate Journal of September 9, 1789, appears in 2 B. Schwartz (ed.), The Bill of Rights: A Documentary History 1153 (1971). It was at this point that the religion clauses were joined with the freedom of expression clauses.
[Footnote 4] 1 Annals of Congress 913 (September 24, 1789). The Senate concurred the same day. See I. Brant, James Madison–Father of the Constitution 1787-1800, 271-72 (1950).
[Footnote 5] During House debate, Madison told his fellow Members that ”he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any Manner contrary to their conscience.” 1 Annals of Congress 730 (August 15, 1789). That his conception of ”establishment” was quite broad is revealed in his veto as President in 1811 of a bill which in granting land reserved a parcel for a Baptist Church in Salem, Mississippi; the action, explained President Madison, ”comprises a principle and precedent for the appropriation of funds of the United States for the use and support of religious societies, contrary to the article of the Constitution which declares that ‘Congress shall make no law respecting a religious establishment.”’ 8 The Writings of James Madison (G. Hunt. ed.) 132-33 (1904). Madison’s views were no doubt influenced by the fight in the Virginia legislature in 1784-1785 in which he successfully led the opposition to a tax to support teachers of religion in Virginia and in the course of which he drafted his ”Memorial and Remonstrance against Religious Assessments” setting forth his thoughts. Id. at 183-91; I. Brant, James Madison–The Nationalist 1780-1787, 343-55 (1948). Acting on the momentum of this effort, Madison secured passage of Jefferson’s ”Bill for Religious Liberty”. Id. at 354; D. Malone, Jefferson the Virginian 274-280 (1948). The theme of the writings of both was that it was wrong to offer public support of any religion in particular or of religion in general.
[Footnote 6] 3 J. Story, Commentaries on the Constitution of the United States 1865 (1833).
[Footnote 7] Id. at 1873.
[Footnote 8] Id. at 1868.
[Footnote 9] For a late expounding of this view, see T. Cooley, General Principles of Constitutional Law in the United States 224-25 (3d ed. 1898).
[Footnote 10] 330 U.S. 1, 15 (1947). Establishment Clause jurisprudence since, whatever its twists and turns, maintains this view.
[Footnote 11] Wallace v. Jaffree, 472 U.S. 38, 91 (1985) (then-Justice Rehnquist dissenting). More recently, dissenters, including now-Chief Justice Rehnquist, have appeared reconciled to a ”constitutional tradition” in which governmental endorsement of religion is out of bounds, even if it is not correct as a matter of history. See Lee v. Weisman, 112 S. Ct. 2649, 2678, 2683-84 (1992) (Justice Scalia, joined by the Chief Justice and Justices White and Thomas, dissenting).
[Footnote 12] Lee v. Weisman, 112 S. Ct. 2649, 2667 (1992) (Justice Souter, joined by Justices Stevens and O’Connor, concurring).
[Footnote 13] Walz v. Tax Comm’n, 397 U.S. 664, 668 (1970).
[Footnote 14] Id.
[Footnote 15] 16 The Writings of Thomas Jefferson 281 (A. Libscomb ed., 1904).
[Footnote 16] 98 U.S. 145, 164 (1879).
[Footnote 17] Everson v. Board of Education, 330 U.S. 1, 16 (1947); Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 211 , 212 (1948); cf. Zorach v. Clauson, 343 U.S. 306, 317 (1952) (Justice Black dissenting). In Lemon v. Kurtzman, 403 U.S. 602, 614 (1971), Chief Justice Burger remarked that ”the line of separation, far from being a ‘wall,’ is a blurred, indistinct and variable barrier depending on all the circumstances of a particular relationship.” Similar observations were repeated by the Chief Justice in his opinion for the Court in Lynch v. Donnelly, 465 U.S. 668, 673 (1984) (the metaphor is not ”wholly accurate”; the Constitution does not ”require complete separation of church and state [but] affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any”).
[Footnote 18] Zorach v. Clauson, 343 U.S. 306, 314 (1952); Engel v. Vitale, 370 U.S. 421 (1962); Sherbert v. Verner, 374 U.S. 398 (1963); Abington School District v. Schempp, 374 U.S. 203, 305 (1963) (Justice Goldberg concurring); Walz v. Tax Comm’n, 397 U.S. 664, 694 -97 (1970) (Justice Harlan concurring). In the opinion of the Court in the latter case, Chief Justice Burger wrote: ”The course of constitutional neutrality in this area cannot be an absolutely straight line; rigidity could well defeat the basic purpose of these provisions, which is to insure that no religion be sponsored or favored, none commanded, and none inhibited. The general principle deducible from the First Amendment and all that has been said by the Court is this: that we will not tolerate either governmentally established religion or governmental interference with religion. Short of those expressly proscribed governmental acts there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.” Id. at 669.
[Footnote 19] Board of Education v. Allen, 392 U.S. 236, 249 (1968) (Justice Harlan concurring).
[Footnote 20] Abington School District v. Schempp, 374 U.S. 203, 222 (1963).
[Footnote 21] Walz v. Tax Comm’n, 397 U.S. 664, 674 -75 (1970).
[Footnote 22] 403 U.S. 602, 612 -13 (1971).
[Footnote 23] E.g., Committee for Public Educ. & Religious Liberty v. Regan, 444 U.S. 646, 653 (1980), and id. at 665 (dissenting opinion); Stone v. Graham, 449 U.S. 39, 40 (1980), and id. at 43 (dissenting opinion).
[Footnote 24] The tests provide ”helpful signposts,” Hunt v. McNair, 413 U.S. 734, 741 (1973), and are at best ”guidelines” rather than a ”constitutional caliper;” they must be used to consider ”the cumulative criteria developed over many years and applying to a wide range of governmental action.” Inevitably, ”no ‘bright line’ guidance is afforded.” Tilton v. Richardson, 403 U.S. 672, 677 -78 (1971). See also Committee for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 761 & n.5, 773 n.31 (1973); Committee for Public Educ. & Religious Liberty v. Regan, 444 U.S. 646, 662 (1980), and id. at 663 (Justice Blackmun dissenting).
[Footnote 25] See, e.g., Edwards v. Aguillard, 482 U.S. 578, 636 -40 (1987) (Justice Scalia, joined by Chief Justice Rehnquist, dissenting) (advocating abandonment of the ”purpose” test); Wallace v. Jaffree, 472 U.S. 38, 108 -12 (1985) (Justice Rehnquist dissenting); Aguilar v. Felton, 473 U.S. 402, 426 -30 (1985) (Justice O’Connor, dissenting) (addressing difficulties in applying the entanglement prong); Roemer v. Maryland Bd. of Public Works, 426 U.S. 736, 768 -69 (Justice White concurring in judgment) (objecting to entanglement test). Justice Kennedy has also acknowledged criticisms of the Lemon tests, while at the samed time finding no need to reexamine them. See, e.g., Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573, 655 -56 (1989). At least with respect to public aid to religious schools, Justice Stevens would abandon the tests and simply adopt a ”no-aid” position. Committee for Public Educ. & Religious Liberty v. Regan, 444 U.S. 646, 671 (1980).
[Footnote 26] See Marsh v. Chambers, 463 U.S. 783 (1983) (upholding legislative prayers on the basis of historical practice); Lee v. Weisman, 112 S. Ct. 2649, 2655 (1992) (rejecting a request to reconsider Lemon because the practice of invocations at public high school graduations was invalid under established school prayer precedents); Zobrest v. Catalina Foothills School Dist., 509 U.S. 1 (1993) (upholding provision of sign-language interpreter to deaf student attending parochial school); Board of Educ. of Kiryas Joel Village v. Grumet, 114 S. Ct. 2481 (1994) (invalidating law creating special school district for village composed exclusively of members of one religious sect). The Court has also held that the tripartite test is not applicable when law grants a denominational preference, distinguishing between religions; rather, the distinction is to be subjected to the strict scrutiny of a suspect classification. Larson v. Valente, 456 U.S. 228, 244 -46 (1982).
[Footnote 27] Justice Blackmun, concurring in Lee, contended that Marsh was the only one of 31 Establishment cases between 1971 and 1992 not to be decided on the basis on the Lemon tests. 112 S. Ct. at 2663, n.4.
[Footnote 28] In 1990 Justice Kennedy, joined by Justice Scalia, proposed that ”neutral” accommodations of religion should be permissible so long as they do not establish a state religion, and so long as there is no ”coercion” to participate in religious exercises. Westside Community Bd. of Educ. v. Mergens, 496 U.S. 226, 260 -61. The two Justices parted company, however, over the permissiblity of invocations at public high school graduation ceremonies, Justice Scalia in dissent strongly criticizing Justice Kennedy’s approach in the opinion of the Court for its reliance on psychological coercion. Justice Scalia would not ”expand[ ] the concept of coercion beyond acts backed by threat of penalty.” Lee v. Weisman, 112 S. Ct. 2649, 2684 (1992). Chief Justice Rehnquist has advocated limiting application to a prohibition on establishing a national (or state) church or favoring one religious group over another. Wallace v. Jaffree, 472 U.S. 38, 98 , 106 (1985) (dissenting).
[Footnote 29] Abington School District v. Schempp, 374 U.S. 203, 222 -23 (1963). See also Board of Education v. Allen, 392 U.S. 236, 248 -49 (1968); and Tilton v. Richardson, 403 U.S. 672, 689 (1971); Lee v. Weisman, 112 S. Ct. 2649, 2673 (Justice Souter concurring) (”a literal application of the coercion test would render the Establishment Clause a virtual nullity”).
[Footnote 1 (1996 Supplement)] Board of Educ. of Kiryas Joel Village v. Grumet,114 S. Ct. 2481, 2498-99 (1994).
[Footnote 2 (1996 Supplement)] Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (concurring); Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573, 625 (1989) (concurring); Board of Educ. of Kiryas Joel Village v. Grumet, 114 S. Ct. 2481, 2500 (1994) (concurring).
[Footnote 30] 80 U.S. (13 Wall.) 679 (1872).
[Footnote 31] 344 U.S. 94 (1952). Kedroff was grounded on the Free Exercise Clause. Id. at 116. But the subsequent cases used a collective ”First Amendment” designation.
[Footnote 32] Id. at 116. On remand, the state court adopted the same ruling on the merits but relied on a common-law rule rather than the statute. This too was struck down. Kreshik v. St. Nicholas Cathedral, 363 U.S. 190 (1960).
[Footnote 33] Presbyterian Church v. Hull Memorial Presbyterian Church, 393 U.S. 440, 447 , 450-51 (1969); Maryland and Virginia Eldership of the Churches of God v. Church of God at Sharpsburg, 396 U.S. 367 (1970). For a similar rule of neutrality in another context, see United States v. Ballard, 322 U.S. 78 (1944) (denying defendant charged with mail fraud through dissemination of purported religious literature the right to present to the jury evidence of the truthfulness of the religious views he urged).
[Footnote 34] Presbyterian Church v. Hull Memorial Presbyterian Church, 393 U.S. 440, 449 (1969); Maryland and Virginia Eldership of the Churches of God v. Church of God of Sharpsburg, 396 U.S. 367, 368 (1970). See also id. at 368-70 (Justice Brennan concurring).
[Footnote 35] The Serbian Eastern Orthodox Diocese v. Dionisije Milivojevich, 426 U.S. 697, 720 -25 (1976). In Gonzalez v. Archbishop, 280 U.S. 1 (1929), the Court had permitted limited inquiry into the legality of the actions taken under church rules. The Serbian Eastern Court disapproved of this inquiry with respect to concepts of ”arbitrariness,” although it reserved decision on the ”fraud” and ”collusion” exceptions. 426 U.S. at 708 -20.
[Footnote 36] 443 U.S. 595 (1979). In the majority were Justices Blackmun, Brennan, Marshall, Rehnquist, and Stevens. Dissenting were Justices Powell, Stewart, White, and Chief Justice Burger.
[Footnote 37] Id. at 602-06.
[Footnote 38] Id. at 606-10. Because it was unclear whether the state court had applied such a rule and applied it properly, the Court remanded.
[Footnote 39] Id. at 610.
[Footnote 40] The Court indicated that the general church could always expressly provide in its charter or in deeds to property the proper disposition of disputed property. But here the general church had decided which faction was the ”true congregation,” and this would appear to constitute as definitive a ruling as the Court’s suggested alternatives. Id. at 606.
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Posted: at 7:42 pm
n this Dec. 29, 2011 file photo, then-Republican presidential candidate, Rep. Ron Paul, R-Texas, listens as campaign chairman Jesse Benton has a word with him as he signs autographs in Atlantic, Iowa.
Charles Dharapak, AP
DES MOINES– The chairman of Ron Pauls 2012 presidential bid was sentenced Tuesday to probation and home confinement rather than prison, and two other top aides were awaiting their sentences for a scheme to cover up campaign payments to a former Iowa state senator who agreed to endorse their boss.
Although prosecutors were seeking more than two years in federal prison, Jesse Benton was sentenced to two years probation and six months of home confinement, along with community service and a $10,000 fine. He was convicted of conspiracy, causing false campaign contribution reports to be filed to the Federal Election Commission and participating in a false statement scheme.
Judge James Jarvey called the crimes serious and said Benton took advantage of the system designed to ensure transparency in how campaigns are financed.
Theres nothing like prison time to deter white collar activity, Jarvey said, before announcing that he thought the lesser punishment was enough of a deterrent in Bentons case.
Prior to the sentencing announcement, Benton told the judge he had endured years of sleepless nights and public humiliation. He said his career is ruined and that he was forced to place his home on the market after going into debt.
A steep price has been paid, he said.
Benton and his attorney declined to comment as they left the courthouse.
The campaigns manager, John Tate, and deputy manager Dimitri Kesari also were convicted. Tate was also scheduled to be sentenced on Tuesday. Kesaris sentencing is set for Wednesday morning.
The men have argued they broke no laws when they paid a video production company, which passed on $73,000 to former state Sen. Kent Sorenson. He dropped support for Michele Bachmann and endorsed Paul six days before the 2012 Iowa caucuses.
Venture capitalist Peter Thiel tells Morley Safer why he’s given more than $2.5 million to Libertarian congressman and presidential candidate Ron…
Prosecutors said it is illegal to cause a campaign to file inaccurate spending documents.
The men said they were targeted because of their conservative politics and argued campaigns typically dont identify payments to subcontractors of vendors.
They are expected to appeal their convictions to the 8th U.S. Circuit Court of Appeals. If the judges rule against the men, they may choose to seek further review of the U.S. Supreme Court.
The three men faced up to 35 years in prison had the judge handed down maximums to be served consecutively.
Benton, 38, of Louisville, Kentucky, is married to Ron Pauls granddaughter, Valori Pyeatt. He also had managed the successful 2010 U.S. Senate campaign for Pauls son, Rand Paul, in Kentucky and served as campaign manager for Sen. Mitch McConnells 2014 re-election, but resigned that summer as the investigation intensified in Iowa.
Speaking before the men were sentenced, an Iowa political consultant said the case is a stark reminder to anyone in the early presidential contest states including Iowa, New Hampshire and South Carolina that theyll be intensely watched and they should follow the rules carefully.
What you might get away with doing in a local state legislative campaigns can get you in really deep serious trouble on a presidential campaign if its exposed, said Craig Robinson, who served on Steve Forbes presidential campaign in 2000, was state GOP director in 2008 and is publisher of the conservative The Iowa Republican blog.
2016 The Associated Press. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed.
Read the rest here:
Top Ron Paul aide learns fate for 2012 campaign violations …
Posted: September 20, 2016 at 7:06 pm
DES MOINES, Iowa The chairman of Ron Paul’s 2012 presidential bid was sentenced Tuesday to probation and home confinement rather than prison, and two other top aides were awaiting their sentences for a scheme to cover up campaign payments to a former Iowa state senator who agreed to endorse their boss.
Jesse Benton was sentenced to two years’ probation and six months of home confinement, even though prosecutors were seeking years in federal prison.
He was convicted of conspiracy, causing false campaign contribution reports to be filed to the Federal Election Commission and participating in a false statement scheme.
The campaign’s manager, John Tate, and deputy manager Dimitri Kesari also were convicted. Tate was also scheduled to be sentenced on Tuesday. Kesari’s sentencing is set for Wednesday morning.
The men have argued they broke no laws when they paid a video production company, which passed on $73,000 to former state Sen. Kent Sorenson. He dropped support for Michele Bachmann and endorsed Paul six days before the 2012 Iowa caucuses.
Prosecutors said it is illegal to cause a campaign to file inaccurate spending documents.
The men said they were targeted because of their conservative politics and argued campaigns typically don’t identify payments to subcontractors of vendors.
They are expected to appeal their convictions to the 8th U.S. Circuit Court of Appeals. If the judges rule against the men, they may choose to seek further review of the U.S. Supreme Court.
The three men faced up to 35 years in prison had the judge handed down maximums to be served consecutively.
Benton, 38, of Louisville, Kentucky, is married to Ron Paul’s granddaughter, Valori Pyeatt. He also had managed the successful 2010 U.S. Senate campaign for Paul’s son, Rand Paul, in Kentucky and served as campaign manager for Sen. Mitch McConnell’s 2014 re-election, but resigned that summer as the investigation intensified in Iowa.
Speaking before the men were sentenced, an Iowa political consultant said the case is a stark reminder to anyone in the early presidential contest states including Iowa, New Hampshire and South Carolina that they’ll be intensely watched and they should follow the rules carefully.
“What you might get away with doing in a local state legislative campaigns can get you in really deep serious trouble on a presidential campaign if it’s exposed,” said Craig Robinson, who served on Steve Forbes’ presidential campaign in 2000, was state GOP director in 2008 and is publisher of the conservative “The Iowa Republican” blog.
Originally posted here:
Ron Paul aides facing prison time in campaign finance …
Posted: September 18, 2016 at 8:12 am
I recently posted a revised draft of my forthcoming article, The Effect of Legislation on Fourth Amendment Interpretation, and I thought I would blog a bit about it. The article considers a recurring question in Fourth Amendment law: When courts are called on to interpret the Fourth Amendment, and there is privacy legislation on the books that relates to the governments conduct, should the existence of legislation have any effect on how the Fourth Amendment is interpreted? And if it should have an effect, what effect should it have?
I was led to this question by reading a lot of cases in which the issue came up and was answered in very different ways by particularly prominent judges. When I assembled all the cases, I found that judges had articulated three different answers. None of the judges seemed aware that the question had come up in other cases and had been answered differently there. Each of the three answers seemed plausible, and each tapped into important traditions in constitutional interpretation. So you have a pretty interesting situation: Really smart judges were running into the same question and answering it in very different ways, each rooted in substantial traditions, with no one approach predominating and no conversation about which approach was best. It seemed like a fun issue to explore in an article.
In this post Ill summarize the three approaches courts have taken. I call the approaches influence, displacement and independence. For each approach, Ill give one illustrative case. But theres a lot more where that came from: For more details on the three approaches and the cases supporting them, please read the draft article.
1. Influence. In the influence cases, legislation is considered a possible standard for judicial adoption under the Fourth Amendment. The influence cases rest on a pragmatic judgment: If courts must make difficult judgment calls about how to balance privacy and security, and legislatures have done so already in enacting legislation, courts can draw lessons from the thoughtful judgment of a co-equal branch. Investigative legislation provides an important standard for courts to consider in interpreting the Fourth Amendment. Its not binding on courts, but its a relevant consideration.
The Supreme Courts decision in United States v. Watsonis an example of the influence approach. Watson considered whether it is constitutionally reasonable for a postal inspector to make a public arrest for a felony offense based on probable cause but without a warrant. A federal statute expressly authorized such warrantless arrests. The court ruled that the arrests were constitutional without a warrant and that the statute was constitutional. Justice Whites majority opinion relied heavily on deference to Congresss legislative judgment. According to Justice White, the statute authorizing the arrests represents a judgment by Congress that it is not unreasonable under the Fourth Amendment for postal inspectors to arrest without a warrant provided they have probable cause to do so. That judgment was entitled to presumptive deference as the considered judgment of a co-equal branch. Because there is a strong presumption of constitutionality due to an Act of Congress, the court stated, especially when it turns on what is reasonable, then obviously the Court should be reluctant to decide that a search thus authorized by Congress was unreasonable and that the Act was therefore unconstitutional.
2. Displacement. In the displacement cases, the existence of legislation counsels against Fourth Amendment protection that might interrupt the statutory scheme. Because legislatures can often do a better job at balancing privacy and security in new technologies as compared to courts, courts should reject Fourth Amendment protection as long as legislatures are protecting privacy adequately to avoid interfering with the careful work of the legislative branch. The existence of investigative legislation effectively preempts the field and displaces Fourth Amendment protection that may otherwise exist.
Justice Alitos concurrence in Riley v. Californiais an example of the displacement approach. Riley held that the government must obtain a search warrant before searching a cellphone incident to a suspects lawful arrest. Justice Alito concurred, agreeing with the majority only in the absence of adequate legislation regulating cellphone searches. I would reconsider the question presented here, he wrote, if either Congress or state legislatures, after assessing the legitimate needs of law enforcement and the privacy interests of cell phone owners, enact legislation that draws reasonable distinctions based on categories of information or perhaps other variables.
The enactment of investigative legislation should discourage judicial intervention, Justice Alito reasoned, because [l]egislatures, elected by the people, are in a better position than we are to assess and respond to the changes that have already occurred and those that almost certainly will take place in the future. Although Fourth Amendment protection was necessary in the absence of legislation, the enactment of legislation might be reason to withdraw Fourth Amendment protection to avoid the very unfortunate result of federal courts using the blunt instrument of the Fourth Amendment to try to protect privacy in emerging technologies.
3. Independence. In the independence cases, courts treat legislation as irrelevant to the Fourth Amendment. Legislatures are free to supplement privacy protections by enacting statutes, of course. But from the independence perspective, legislation sheds no light on what the Fourth Amendment requires. Courts must independently interpret the Fourth Amendment, and what legislatures have done has no relevance.
An example of independence is Virginia v. Moore, where the Supreme Court decided whether the search incident to a lawful arrest exception incorporates the state law of arrest. Moore was arrested despite a state law saying his crime could not lead to arrest; the question was whether the state law violation rendered the arrest unconstitutional. According to the court, whether state law made the arrest lawful was irrelevant to the Fourth Amendment. It was the courts duty to interpret the Fourth Amendment, and what the legislature decided about when arrests could be made was a separate question. History suggested that the Fourth Amendment did not incorporate statutes. And the states decision of when to make arrests was not based on the Fourth Amendment and was based on other considerations, such as the costs of arrests and whether the legislature valued privacy more than the Fourth Amendment required. Constitutionalizing the state standard would only frustrate the states efforts to achieve those goals, as it would mean los[ing] control of the regulatory scheme and might lead the state to abandon restrictions on arrest altogether. For that reason, the statute regulating the police was independent of the Fourth Amendment standard.
Those are the three approaches. The next question is, which is best? Ill offer some thoughts on that in my next post.
See the original post here:
Should privacy legislation influence how courts interpret the …
Posted: September 8, 2016 at 6:40 am
CREDIT: DYLAN PETROHILOS/THINKPROGRESS
By Erica Hellerstein and Judd Legum
In 1991, New York Magazine published an influential cover story, titled Are You Politically Correct? The headline was splashed across the glossys front page in bold red and white letters, followed by a list of supposed politically correct questions:
The article opened with what appeared to be a heated exchange between students and a Harvard professor, Stephan Thernstrom, as he made his way through campus. As John Taylor, the author of the piece told it, Thernstrom was anonymously criticized by students in the Harvard Crimson for racial insensitivity in an introductory history course he taught on race relations in America. As word of the criticism spread throughout campus, Thernstrom quickly found himself embroiled in controversyand the target of an angry group of students. The first paragraph describes Thernstroms reaction in vivid detail:
Taylors opening certainly painted a dramatic picture. But there was only one problemit wasnt exactly true. In a 1991 interview with The Nation, Thernstrom himself told reporter Jon Weiner that he was appalled when he first saw the passage. Nothing like that ever happened, he quipped, describing the authors excerpt as artistic license. What eventually happened was perhaps unsurprising: Thernstrom decided not to offer the controversial course again. Although it was a voluntary decision, the professors story soon turned into a famous example of the tyranny of political correctness. The New Republic declared that the professor had been savaged for political correctness in the classroom; the New York Review of Books described his case an illustration of the attack on freedom led by minorities.
These claims ultimately proved to be greatly exaggerated. Weiner tracked down one of the students who complained about Thernstrom; she explained that their goals werent to prevent him from offering the class, but to point out inaccuracies in his lecture. To me, its a big overreaction for him to decide not to teach the course again because of that, she said. A professor of government at Harvard went a step further, concluding that there is no Thernstrom case. Instead, a few student complaints were exaggerated and translated into an attack on freedom of speech by black students. The professor called the episode a marvelous example of the skill of the neocons at taking small events and translating them into weapons against the pluralistic thrust on American campuses.
Back in the 90s, the conversation around political correctness was largely driven by anecdote that could easily be distorted to support a particular point of view. Last year, the same magazine that published Taylors 1991 story returned to the topic, this time publishing a treatise on political correctness by Jonathan Chait. The piece, Not a Very P.C. Thing to Say, describes a resurgence of the P.C. culture that flourished on college campuses in the 90s, even more ubiquitous now thanks to the rise of Twitter and social media. This new movement of political correctness, Chait argues, has assumed a towering presence in the psychic space of politically active people in general and the left in particular. He describes it as: a system of left-wing ideological repression that is antithetical to liberalism itself. P.C. ideology can be seductive to some liberals who can be misled into thinking that this is liberalism, Chait told ThinkProgress. And I think we need to understand that its not.
Its a depiction thats made its way outside of coastal media commentary to rhetoric on the campaign trail. Criticism of the illiberal strain of political correctness has found an eager audience among a range of GOP presidential hopefuls, many of whom readily invoke P.C. as a leftist bogeyman. At a recent Republican Jewish Coalition Conference, Sen. Ted Cruz (R-TX) declared that the politically correct doublespeak from this administration has gone beyond ridiculous.
Cruzs proclamations coincide with a string of recent student protests denouncing institutional racism on college campuses throughout the country. At Yale and Georgetown, students have asked that buildings named after white supremacists and slaveowners be renamed. At Claremont-McKenna College in California, the dean of students resigned after students criticized her response to complaints of racism on campus, and at the University of Missouri, the president resigned from his position after failing to respond to several racist acts against students, including an incident where a student drew a swastika with feces in a university bathroom.
There have also been recent student protests at Amherst, Brandeis, Harvard, Princeton, Dartmouth, and Ithaca College, among others.
The protests have earned plaudits and harsh condemnation. The Atlantic denounced The New Intolerance of Student Activism. On Fox News, Alan Dershowitz claimed that a fog of fascism is descending quickly over many American universities It is the worst kind of hypocrisy. The National Review argued that the notion that students need a safe space is a lie. They arent weak. They dont need protection Why would they debate when theyve proven they can dictate terms? Pathetic.
Others, meanwhile, are quick to point out that these angry responses often come from people who hold more institutional power than the students they critique. Marilyn Edelstein, a professor of English at Santa Clara University who wrote about political correctness in the 90s, said shes been troubled by commentators impulse to dismiss important ideas and and perspectives as simply politically correct.
I think whats going on today is a resurgence of the same kind of fear by privileged white men that other people might have different experiences and legitimate grievances about the way theyre often treated, she explained. A lot of the commentators who are crying, oh political correctness now again are not at risk of actually losing any power. Conservatives are controlling the Congress and Senate and a lot of state houses, and yet they want to mock 18 to 22 year-olds for caring about things like their own experiences of being excluded or made to feel like less-than-welcome members of a college community.
If theres one thing these two camps can agree on, its that censorship does exist on college campuses. But according to those who track incidents of censorship most closely, its impacting students and faculty across the ideological spectrum. Acknowledging the true nature of repression on college campuses is complex and does not neatly fit the narrative of P.C.s detractors, but it shouldnt be ignored. Absent a discussion rooted in reality, we appear condemned to repeat fruitless debate of the 90s.
In The Coddling of the American Mind, a cover story published last year in The Atlantic, Greg Lukianoff and Jonathan Haidt examine the climate of censorship and political correctness on college campuses. Something strange is happening at Americas colleges and universities, they begin ominously. A movement is arising, undirected and driven largely by students, to scrub campuses clean of words, ideas, and subjects that might cause discomfort or give offense.
Lukianoff and Haidt describe a number of incidents intended to demonstrate the surge of censorship on college campus. They distinguish the climate on campuses today from that of the 90s, arguing that the current movement is centered around emotional well-being. More than the last, it presumes an extraordinary fragility of the collegiate psyche, and therefore elevates the goal of protecting students from psychological harm.
The authors cite real examples of suppression on campuses, but they blame the rush to censor on students apparent aversion to uncomfortable words and ideas. The ultimate aim, it seems, is to turn campuses into safe spaces where young adults are shielded from words and ideas that make some uncomfortable, they conclude. And more than the last, this movement seeks to punish anyone who interferes with that aim, even accidentally. You might call this impulse vindictive protectiveness. It is creating a culture in which everyone must think twice before speaking up, lest they face charges of insensitivity, aggression, or worse.
This narrative positions censorship as the product of students who seek comfort, coddling, and refuge from challenging ideas. But John K. Wilson, an editor at The Academe Blog and author of the book The Myth of Political Correctness: The Conservative Attack on Higher Education, says that a significant portion of the criticism aimed at students is misguided. Commentators focus on student calls for censorship often ignores the growth of the administrative class, which can have just as profound consequences on speech.
I think that where there is a lot of efforts of repression going on its coming mostly from the administration, Wilson explained. One of the changes that has come about in the structure of higher education in recent decades is you have a dramatic growth in administration. And so you have more and more people whose sort of job is to work for the administration and in many cases suppress controversial activity.
Wilsons point is backed up by the data. The New England Center for Investigative Reporting found that the number of administrative employees at U.S. colleges and universities has more than doubled in the past 25 years. Moreover, the expansion of the administrative class comes as colleges and universities cut full-time tenured faculty positions. According to an in-depth article by Benjamin Ginsberg in the Washington Monthly, between 1998 and 2008, private colleges increased spending on instruction by 22 percent, but hiked spending on administrative and staff support by 36 percent.
Will Creeley, the vice president of legal and public advocacy at the Foundation for Individual Rights in Education (FIRE), explained that the growth of college administration has resulted in the creation of new fiefdoms for administrators that previously did not exist. In order to justify their existence, those administrators will occasionally make themselves known by investigating and punishing speech that at public universities is protected by the first amendment or at private universities should be protected by the promises that the university makes about free speech.
As the campus administration expands, there is no doubt that some conservative-leaning voices on university campuses have been censored. Earlier this year, a libertarian student group at Dixie University was blocked from putting up flyers on campus that mocked President Obama, Che Guevara, and former President George W. Bush. At Saint Louis University in 2013, a group of College Republicans was barred from inviting former senator Scott Brown (R-MA) to speak at a campus event over concerns it would jeopardize the schools tax-exempt status. In 2014, the Young Americans for Liberty student group at Boise State University was charged nearly $500 in security fees for a gun-rights event featuring Dick Heller of the Supreme Court guns-rights case D.C. v. Heller.
Then there are examples of suppressed speech deemed hateful or offensive, such as the University of South Carolinas suspension of a student who used a racial slur and the suspension of a student at Texas Christian University for tweets about hoodrat criminals in Baltimore. These instances are where questions involving censorship become more nuanced. For many, the line of acceptable, or even free speech, ends where hate speech begins. The definition of silencing, after all, depends on who you ask. To some, censorship comes in the form of tearing down a xenophobic poster; to others, its the impulse to equate student activism with the desire to be coddled.
But how do you define hate speech? Free speech absolutists say censorship is never the answer to constitutionally protected hate speech, no matter how offensive it may be. There is no legal definition of hate speech that will withstand constitutional scrutiny, Creeley pointed out. The Supreme Court has been clear on this for decades. And that is because of the inherently fluid, subjective boundaries of what would or would not constitute hate speech. One persons hate speech is another persons manifesto. Any attempt to define hate speech will find itself punishing those with minority viewpoints.
Liberals can, and have, gone too far in their calls for suppressing hateful speech. But the excesses of whats been deemed political correctness are not representative of the culture writ large, nor do they signify a broad leftist conspiracy to silence any and all dissenting voices. The reality of censorship on college campuses is more complicatedand less useful to the most vocal critics of political correctness. Left-leaning voices are censored, toothey just rarely seem to provoke the same amount of public outrage and hand-wringing.
When it comes to repression on college campuses, theres really no evidence that theres some left-wing, politically correct attack on freedom of speech, Wilson said. In fact, there are many examples of efforts to repress left-wing speakers and left-wing faculty. Most of the attacks on academic freedom, he explained, especially the effective attacks, come from the right.
You dont have to look far to find examples. Just last week, a professor at Wheaton College in Illinois was fired for claiming that Christians and Muslims worship the same God. Last month, George Washington University barred a student from hanging a Palestinian flag outside his bedroom window. In November, the Huffington Post reported that Missouri state Sen. Kurt Schaefer (R-Columbia) attempted to block a graduate student at the University of Missouri from performing research on the impact of abortion restrictions. At the University of South Carolina in 2014, a performance called How to Become a Lesbian in 10 Days was canceled after state legislators expressed concern that it would promote perversion. A professor at the University of Kansas was suspended in 2013 for anti-NRA comments. At the University of Arizona, a professor was fired for conducting research on the effects of marijuana for veterans with PTSD. In 2015, a vegan rights activist at California State Polytechnic University was prevented from handing out flyers about animal abuse on campus. In 2014, campus police blocked students at the University of Toledo from peacefully protesting a lecture by Karl Rove. The same year, adjunct faculty members at St. Charles Community College in St. Louis attempting to unionize were prohibited from gathering petition signatures.
Still, these cases havent really become widely cited or popular talking points. Wilson says thats because conservatives have been more effective at advancing their narrative. The left isnt really organized to tell the stories of oppression on campus and to try to defend students and faculty who face these kind of attacks, he explained. They need the institutional structure out there, organizations that are going to talk about the issues that will counter this media narrative of political correctness thats been around for 25 years now.
Hundreds of years before political correctness made its debut in thinkpieces or the fiery rhetoric of presidential candidates, it appeared in an opinion written by Justice James Wilson in the 1793 Supreme Court case, Chisholm v. Virginia, which upheld the rights of people to sue states. Arguing that people, rather than states, hold the most authority in the country, Wilson claimed that a toast given to the United States was not politically correct. The Justice used the term literally in this context; he felt it was more accurate to use People of the United States.
The Chisholm decision was ultimately overturned and Justice Wilsons phrase slipped into obscurity. Its hard to pinpoint exactly when the expression made a comeback, but, as John K. Wilson outlines in his book, The Myth of Political Correctness, it was mainly used jokingly among liberals in the twentieth century to criticize the excesses and dogma of their own belief system. Professor Roger Geiger wrote that it was a sarcastic reference to adherence to the party line by American communists in the 1930s. Conservatives began to subvert that framing in the 1980s and use it for their own political gain, eventually transforming the term politically correct to political correctness. The latter phrase was used to describe not just a few radical individuals, as politically correct was, but an entire conspiracy of leftists infiltrating the higher education system.
This narrative gained mainstream visibility in the 1990s, but it hadnt come out of the blue. Fears about the radicalization of American universities had been brewing for years. The attacks on colleges and universities that propelled it had been organizing for more than a decade, Wilson wrote. For the conservatives, the 1960s were a frightening period on American campuses; students occupied buildings, faculty mixed radical politics into their classes, administrators acquiesced to their standards, and academic standards fell by the wayside. Conservatives convinced themselves that the 1960s had never ended and that academia was being corrupted by a new generation of tenured radicals.
These concerns eventually found a home in the conservative commentary of the 1980s, of which Wilson provides several examples: A 1983 article in Conservative Digest claiming a Marxist network doling out the heaviest dose of Marxist and leftist propaganda to students had over 13,000 faculty members, a Marxist press that is selling record numbers of radical textbooks and supplementary materials, and a system of helping other Marxist professors receive tenure; philosopher Sidney Hooks proclamation in 1987 that there is less freedom of speech on American campuses today, measured by the tolerance of dissenting views on controversial political issues, than at any other recent period in peacetime in American history; and Secretary of Education William Bennetts assertion in 1988 that some places on campus are becoming increasingly insular and in certain instances even repressive of the spirit of the free marketplace of ideas.
The media soon latched onto this narrative. Many of the articles published were almost uniformly critical of the Left and accepted the conservatives attacks without questioning their accuracy or motives, Wilson wrote. By using a few anecdotes about a few elite universities, conservatives created political correctness in the eyes of the media, and in herdlike fashion journalists raced to condemn the politically correct mob they had discovered in American universities.
Fast-forward 25 years and not much has changed. Back in the 90s, the P.C. buzzwords were speech codes and multiculturalism; now, theyre trigger warnings and microaggressions. Whether or not you agree with microaggressions and trigger warnings, they dont constitute an existential threat to free speech. Just because a person finds them frivolous or unnecessary doesnt mean theyre censorious.
The term microaggression, for example, is often used to highlight subtle biases and prejudices. The point is to open up a dialogue, not to censor students. Nevertheless, microaggressions and trigger warnings are often used as examples of campus illiberalism. Chait wrote that these newly fashionable terms merely repackage a central tenet of the first P.C. movement: that people should be expected to treat even faintly unpleasant ideas or behaviors as full-scale offenses.
But is there any evidence that the P.C. movement on campuses has gotten worse, or even exists at all? We asked Chait how and why he determined that political correctness, once again, was an issue worthy of exploration. He didnt offer any concrete examples. The idea for the story came from my editors, who noticed it, he replied. When I started to research the issue thats when I started to see something happening on campus that at the time wasnt getting that much attention. Now, in the months since, people are starting to pay attention. But I think its happening much more often.
Wilson offered a different take. I dont think theres really a crisis of any kind like this. Things are not that much different than they have been in the past. You have professors who get fired for expressing controversial views on Twitter, you dont have professors getting fired for microaggressions or for failing to give a trigger warning, he said, referring to the Steven Salaita casea professor at the University of Illinois who lost a promised tenured position over tweets that were critical of Israels invasion of Gaza in 2014.
Creeley did say that FIRE has seen an increase in case submissions, but he noted that isnt necessarily an accurate gauge of how much censorship is occurring on campus. He did point out that calls for speech limitations appear to be coming increasingly from students, a trend he described as new and worrying. He added that there seem to be a worrying number of instances where students are asking the authorities to sanction or punish speech that they disagree with, or to implement some kind of training on folks to change viewpoints they disagree with.
But if people who criticize these efforts are genuinely concerned about censorship, they should also worry when it comes from other sides of the political aislenot just when it neatly fits into a caricature of campus liberalism run amok. Creeley said that FIRE was disappointed to find that the case of Hayden Barnes, an environmentalist who was expelled from college for posting a collage against a proposed parking garage online, didnt take off in the media the way that other explicitly partisan cases did. It did not capture the sense of where those kinds of efforts to censor those types of students came from, he said. Its disappointing to me to see free speech be cast in partisan terms because I think that it turns the issue into a much more binary, much less nuanced, and much less thoughtful discussion.
The Missouri state senators proposal to block a students dissertation on the impact of abortion restrictions, for example, would appear to be just the kind of case that raises the ire of free speech proponents. But it doesnt appear to have gained much attention beyond coverage from a few predictably left-leaning sites. Furthermore, neither Chaits nor Haidt and Lukianoffs pieces mention the Salaita case, despite evidence suggesting punitive measures, including administrative sanctions and censorship, have been taken against Palestinian rights activists. A recent report from Palestine Legal and the Center for Constitutional Rights detailed more than 150 incidents of censorship and suppression of Palestinian advocacy in 2014 alone; 89 percent of which targeted students and facultycausing speculation about a Palestine exception to the free speech debate.
ThinkProgress asked Chait about how censorship driven from the right fits into his analysis of political correctness as the province of progressives. I think thats a separate issue than the phenomenon Im describing, he answered. If you look at my original piece, very few of the examples are formal censorship. I think youve got something much deeper which is a bigger problem for people on the left, which is a broken way of arising at truth on race and gender issues. That can happen and does happen in non-censorship ways.
It doesnt take a thorough examination of the medias framing of political correctness to realize that the conversation is fraught and prone to exaggeration. Thats partially due to a lack of research on the topic. Because theres not much data available, anecdotes are often elevated as evidence; people choose the sides that best confirm their preexisting political biases and worldviews. So how does political correctness actually impact creativity? A team of researchers decided to put this question to the test with hundreds of college students.
The researchers randomly divided students in groups of three and asked them to brainstorm ideas for new businesses that could go into a vacant restaurant space on campus. Groups were either all men, all women, or mixed. The control was allowed to start brainstorming ideas immediately, but the test group was asked to take ten minutes to think of examples of political correctness on the college campus. Cornells Jack Goncalo, one of the studys researchers, told ThinkProgress that the primer was their way of making P.C. salient to students in the test group. The control group wasnt asked to talk about P.C., so it wasnt on their minds.
Researchers wanted to challenge the assumption that an anarchy approach to creativity is sort of the only way to go or even the best way to go, Goncalo said. Our argument was that although P.C. is dismissed as being overly controlling and sort of the conservative view is that P.C. is a threat to free speech, we actually predicted that P.C. would provide a framework that would help people understand what the expectations are in a mixed-sex group and would reduce uncertainty. And by reducing uncertainty it would actually make people more comfortable to share a wide range of ideas.
Indeed, the researchers found that the mixed-sex groups instructed to think about political correctness generated more ideas and were more creative than the diverse groups that hadnt received the P.C. primer. But that didnt hold true for the same-sex groups. Groups of all men or all women that were told to think about political correctness ended up being less creative than the control group.
Goncalo said those results suggested that talking about political correctness actually reduced uncertainty among mixed-sex groups, making it easier for men and women to speak up and share their ideas. For diverse groups, P.C. can be a creativity booster.
Until the uncertainty caused by demographic differences can be overcome within diverse groups, the effort to be P.C. can be justified not merely on moral grounds, but also by the practical and potentially profitable consequences of facilitating the exchange of creative ideas, the study concludes.
Unfortunately, there arent many scientific papers on the topic of political correctness. The researchers study appears to be the only one that looks specifically at political correctness, creativity, and group activity. And even then, it wasnt easy to get their research published.
It was an uphill battle, Goncalo said. A lot of academics see the whole term political correctness as a colloquial non-scientific, non-academic thing. We had to push really hard to say this is a legitimate thing. It took the team nine years to publish the reportand when it eventually came out, there was push-back. I got emails from angry people who were really pissed off and actually hadnt read the paper or understood what we did or what found, Goncalo remarked. Just knee-jerk reactions to the whole thing. So it was polarizing as you might expect.
To be sure, their paper is just one study on a topic with limited scientific research. But its conclusions shouldnt be ignored; it raises worthwhile points about the impact of speech constraints and communication among diverse groups. After all, the ongoing conversation about P.C. often relies on anecdotal evidence rather than data. This is part of the reason its subject to such vigorous debatepeople like to tailor the evidence to their worldview, not vice versa.
Goncalo also came to an interesting conclusion about the value assigned to political correctness throughout the course of the study, which took nine years to publish. Were exactly where we were in the 80s and 90s, he noted. And I think what that says is that the word is still meaningful and people are still using it in the same way.
For all of the commentary about campus activism and political correctness, theres one group we rarely hear from: actual college students. ThinkProgress visited students at American University to learn about their impressions of the political correctness conversation taking place. Although the responses were from just a sampling of college students, they were telling.
Students at American University overwhelmingly told ThinkProgress they didnt find political correctness to be a pressing campus problem. Only one student we spoke to equated P.C. with censorship, while the rest of the students we spoke with seemed more concerned about hate speech and racist comments posted in online forums. The students quoted below preferred to be identified by their first names.
Azza, a senior at American University, said that much of the commentary aimed at critiquing political correctness fails to understand the experience of being a minority student on campus. Students of minority backgrounds deal with certain issues, they face certain issues, there are things that affect them differently, and when you enter a learning environment that is hostile towards you, you cant learn, she explained. People who are saying that this is suppressing free speech or that people want to be coddled are actually not at all concerned about free speech. The vast majority of people are concerned with a particular type of discourse being fostered on American universities that reflects their particular understanding of American life and society and values.
Azza used the suppression of Palestinian activism on campuses as an example: No one in these groups who are so supposedly concerned with free speech has said anything about that, because they dont actually care about free speech, she remarked. If they did, theyd be speaking on behalf of Palestinian students. What they care about is just not letting minority voices dominate the discourse by trying to get university administrators to create an environment thats safer.
Mackenzie, a senior at AU who was sitting near Azza in a student cafe, added: Just because [the conversation] is different from when [critics] were in college doesnt mean its wrong and that were being babied. We dont want to be babied, its not that. Were fighting for something that is right.
Other students told ThinkProgress they were unsatisfied with the administrations response to offensive messages posted on Yik Yak, an online platform where students have been known to anonymously post racist content. One of the biggest things thats been going around is the racist speech on Yik Yak, and how as an anonymous platform to spread information about other people its been used to threaten and scare students and make certain students feel unsafe, another student, who did not share her name, explained. Hate speech is not free speech. Once that the language that you use infringes on another students ability to feel safe on campus and to feel that theyre allowed to come to class without feeling threatened, that isnt free speech because youre taking someone elses rights away.
Marlise, a junior at AU, said she has encountered students who abuse the system. They use the trigger warnings if they dont want to hear the other side of things, or if they dont agree with something. I think that people on the outside appear to stand in solidarity with Mizzou but theres always going to be those people that say I dont want to hear the other side. Still, she agreed that the content posted on Yik Yak is a big issue.
Students also said that criticisms of political correctness are often underpinned by racial insensitivities on campus. Jendelly, a sophomore at AU of Dominican descent, said she feels as though there is a racially divided hierarchy on campus. My dad works for the county and he works alongside the mayor, she said. And a lot of people who hold those high positions in our town are white. But theyve never made us feel like were second to them or were three-quarters of a person. Coming here, in this school, I do feel like were placed in a hierarchy. And I feel like when I see a white person its like, oh I have to step up my game to reach their level. And I shouldnt have to feel like that.
Its unclear what the multi-decade debate over political correctness has accomplished in aggregate. But there is one group of people who find it incredibly useful: Republican politicians.
The use of the term political correctness, particularly in the Republican presidential primary, does not have a specific definition. Rather it functions like a swiss army knifeit is the answer to every kind of issue that a candidate might confront. Its a get out of jail free card for bigotry, sexism and lying.
When Fox News Megyn Kelly confronted Donald Trump in an August GOP debate with a litany of sexist attacks he made against women, he had a ready answer. I think the big problem this country has is being politically correct. Ive been challenged by so many people, and I dont frankly have time for total political correctness. And to be honest with you, this country doesnt have time either, Trump said. The audience applauded.
Trump loves to rail against political correctness on Twitter. He argues that our country has become so politically correct that it has lost all sense of direction or purpose. For example, he is not able to use the word thug without criticism.
Ted Cruz goes a step further. Political correctness is killing us, he argued during a Republican debate in December. On his website, Cruz blames political correctness for 9/11.
Cruz also finds political correctness useful for collecting email addresses.
Ben Carson tweeted that we should #StoPP funding political correctness and PlannedParenthood. What does funding for Planned Parenthood have to do with political correctness? He doesnt really explain, except to say that political correctness is making us amoral.
Carson also uses political correctness to justify his opposition to Obamacare and accepting Syrian refugees.
Confronted with criticism for saying that a Muslim should not be presidenta religious test that would violate the constitutionCarson replied that political correctness is ruining our country.
Why are these candidates so quick to point out instances of political correctness? Like a lot of things politicians talk about, it polls very well. A recent poll found that 68 percent of Americans, and 81 percent of Republicans agreed that A big problem this country has is being politically correct. Even among Democrats, 62 percent agreed.
Poll numbers like these have a snowball effect. The more popular the message, the more politicians will talk about it or use it as a way to divert the conversation away from more troublesome topics. The more politicians talk about political correctness, the more Americans will believe its a big problem. Rinse and repeat.
Is Chait, a liberal who regularly blasts Republican candidates as extreme and incompetent, concerned that political correctness has been co-opted to justify the ugliest aspects of American political life? Not really.
I think its always been misused by conservatives [liberals should] ignore the way that conservatives talk about this phenomenon, completely. And lets just have a debate among people who are left of center Conservatives are trying to interject themselves into it, Chait said.
This might be what Chait prefers but, on a practical level, the far-right has captured the bulk of the conversation about political correctness. Articles by Chait, while purportedly for the left, are promoted voraciously by the right to bolster the argument about political correctness on their terms, not his.
While the exploitation of the term political correctness by Republicans is, on the surface, problematic for liberals, it also serves an important function. Many people on the left prefer to think of themselves as open-minded and not captured by a particular political party or ideology. But over the past several years, the Republican party has tacked hard right. The policies embraced by Republicansincluding a harsh crackdown on immigrants, massive tax cuts for the wealthy and the destruction of critical environmental protectionshave left little substantive common ground with liberals.
By embracing criticisms of political correctness, liberal commentators are able to do something that is somewhat ideologically unexpected, while avoiding embracing substantive policies they might find intensely destructive. Its a painless way to demonstrate intellectual independence.
Bill Maher, a self-described liberal firebrand with his own show on HBO, has touted himself as politically incorrect for years. It makes his show more appealing to a broader audience and allows him an easy way to respond to charges of racism, sexism and other controversies that have plagued his career.
Concluding his piece in New York Magazine, Chait claims that the P.C. style of politics has one serious, fatal drawback: It is exhausting. There is certainly some truth to this. But the debate about political correctness is just as exhausting: Thirty years later, weve broken no new ground.
At its core, the P.C. debate is about something meaningful. It is a discussion about how people should treat each other. The language we use to define it may change, but the conversation will keep going. Still, after more than three decades of repeating the same arguments, perhaps its time to recognize that the current iteration of this discussion has run its course.
A new debate could rely less on anecdote and more on actual data. It could be less about protecting rhetorical preferences and more about prohibiting actual censorship. It could dispense with political grandstanding and become more grounded in reality, without the apocalyptic and shallow narratives.
The end of the phony debate about political correctness will not be the end of the debate about political correctness. But it could be the beginning of something better.
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Posted: August 29, 2016 at 7:47 am
Euthanasia is illegal in most of the United States. Physician aid in dying (PAD), or assisted suicide, is legal in the states of Washington, Oregon, California, and Vermont; its status is disputed in Montana. The key difference between euthanasia and PAD is who administers the lethal dose of medication: Euthanasia entails the physician or another third party administering the medication, whereas PAD requires the patient to self-administer the medication and to determine whether and when to do this. Attempts to legalize PAD resulted in ballot initiatives and “legislation bills” within the United States of America in the last 20 years. For example, the state of Washington voters saw Ballot Initiative 119 in 1991, the state of California placed Proposition 161 on the ballot in 1992, Oregon voters passed Measure 16 (Death with Dignity Act) in 1994, the state of Michigan included Proposal B in their ballot in 1998, and Washington’s Initiative 1000 passed in 2008. Vermont’s state legislature passed a bill making PAD legal in May 2013. However, on May 31, 2013, Maine rejected a similar bill within its state legislature (95-13).
Debates about the ethics of euthanasia and physician-assisted suicide date from ancient Greece and Rome. After the development of ether, physicians began advocating the use of anesthetics to relieve the pain of death. In 1870, Samuel Williams first proposed using anesthetics and morphine to intentionally end a patient’s life. Over the next 35 years, debates about euthanasia raged in the United States which resulted in an Ohio bill to legalize euthanasia in 1906, a bill that was ultimately defeated.
Euthanasia advocacy in the U.S. peaked again during the 1930s and diminished significantly during and after World War II. Euthanasia efforts were revived during the 1960s and 1970s, under the right-to-die rubric, physician assisted death in liberal bioethics, and through advance directives and do not resuscitate orders.
Several major court cases advanced the legal rights of patients, or their guardians, to practice at least voluntary passive euthanasia (physician assisted death). These include the Karen Ann Quinlan (1976), Brophy and Nancy Cruzan cases. More recent years have seen policies fine-tuned and re-stated, as with Washington v. Glucksberg (1997) and the Terri Schiavo case. The numerous legislative rulings and legal precedents that were brought about in the wake of the Quinlan case had their ethical foundation in the famous 1983 report completed by the Presidents Commission for the Study of Ethical Problems in Medicine, under the title “Deciding to Forgo Life-Sustaining Treatment” (Angell, Marcia. “How to Die in Massachusetts.” The New York Review of Books. 21 February 2013: 60.3. Web. 14 Jul. 2014.). The Commission sustained in its findings that it was morally acceptable to give up a life-supporting therapy and that withholding or withdrawing such a therapy is the same thing from an ethical stand-point, while artificial feeding and other life-supporting therapy are of the same importance for the patients and doctors. Before this report, to withdraw a medical therapy was regarded as much more serious decision than not to start a therapy at all, while artificial feeding was viewed as a special treatment. By 1990, barely a decade and a half after the New Jersey Supreme Courts historic decision, patients were well aware that they could decline any form of medical therapy if they simply choose to do that either directly or by expressing their wish via appointed representative.
In a 2004 article in the Bulletin of the History of Medicine, Brown University historian Jacob M. Appel documented extensive political debate over legislation to legalize physician-assisted suicide in both Iowa and Ohio in 1906. The driving force behind this movement was social activist Anna S. Hall. Canadian historian Ian Dowbiggen’s 2003 book, A Merciful End, revealed the role that leading public figures, including Clarence Darrow and Jack London, played in advocating for the legalization of euthanasia.
In the 1983 case of Barber v. Superior Court, two physicians had honored a family’s request to withdraw both respirator and intravenous feeding and hydration tubes from a comatose patient. The physicians were charged with murder, despite the fact that they were doing what the family wanted. The court held that all charges should be dropped because the treatments had all been ineffective and burdensome. Withdrawal of treatment, even if life-ending, is morally and legally permitted. Competent patients or their surrogates can decide to withdraw treatments, usually after the treatments are found ineffective, painful, or burdensome.
The California legislature passed a bill legalizing physician-assisted suicide in September 2015, and the bill was signed into law by Governor Jerry Brown on October 5, 2015.  The law went into effect in June 2016.
On May 31, 2013, the Maine state legislature rejected decriminalization of physician assisted suicide and voluntary euthanasia (95-43).
On December 5, 2009, state District Court judge Dorothy McCarter ruled in favor of a terminally ill Billings resident who had filed a lawsuit with the assistance of Compassion & Choices, a patient rights group. The ruling states that competent, terminally ill patients have the right to self-administer lethal doses of medication as prescribed by a physician. Physicians who prescribe such medications will not face legal punishment. On December 31, 2009, the Montana Supreme Court delivered its verdict in the case of Baxter v. Montana. The court held that there was “nothing in Montana Supreme Court precedent or Montana statutes indicating that physician aid in dying is against public policy,” although prosecutions under the state’s assisted suicide statute are still possible.
In the United States legal and ethical debates about euthanasia became more prominent in the case of Karen Ann Quinlan who went into a coma after allegedly mixing tranquilizers with alcohol, surviving biologically for 9 years in a “persistent vegetative state” even after the New Jersey Supreme Court approval to remove her from a respirator. This case caused a widespread public concern about “lives not worth living” and the possibility of at least voluntary euthanasia if it could be ascertained that the patient would not have wanted to live in this condition.
Measure 16 in 1994 established the Oregon Death with Dignity Act, which legalizes physician-assisted dying with certain restrictions, making Oregon the first U.S. state and one of the first jurisdictions in the world to officially do so. The measure was approved in the 8 November 1994 general election in a tight race with the final tally showing 627,980 votes (51.3%) in favor, and 596,018 votes (48.7%) against. The law survived an attempted repeal in 1997, which was defeated at the ballot by a 60% vote. In 2005, after several attempts by lawmakers at both the state and federal level to overturn the Oregon law, the Supreme Court of the United States ruled 6-3 to uphold the law after hearing arguments in the case of Gonzales v. Oregon.
In 1999, the state of Texas passed the Advance Directives Act. Under the law, in some situations, Texas hospitals and physicians have the right to withdraw life support measures, such as mechanical respiration, from terminally ill patients when such treatment is considered to be both futile and inappropriate. This is sometimes referred to as “passive euthanasia”.
In 2005, a six-month-old infant, Sun Hudson, with a uniformly fatal disease thanatophoric dysplasia, was the first patient in which “a United States court has allowed life-sustaining treatment to be withdrawn from a pediatric patient over the objections of the child’s parent.”
In 2008, the electorate of the state of Washington voted in favor of Initiative 1000 which made assisted suicide legal in the state through the Washington Death with Dignity Act.
On May 20, 2013, Vermont Governor Peter Shumlin signed a legislative bill making PAD legal in Vermont.
Attempts to legalize euthanasia and assisted suicide resulted in ballot initiatives and legislation bills within the United States in the last 20 years. For example, Washington voters saw Ballot Initiative 119 in 1991, California placed Proposition 161 on the ballot in 1992, Oregon passed the Death with Dignity Act in 1994, and Michigan included Proposal B in their ballot in 1998. Despite the earlier failure, in November 2008 physician-assisted dying was approved in Washington by Initiative 1000.
In 2000, Maine voters defeated a referendum to legalize physician-assisted suicide. The proposal was defeated by a 51%-49% margin.
Reflecting the religious and cultural diversity of the United States, there is a wide range of public opinion about euthanasia and the right-to-die movement in the United States. During the past 30 years, public research shows that views on euthanasia tend to correlate with religious affiliation and culture, though not gender.
In one recent study dealing primarily with Christian denominations such as Southern Baptists, Pentecostals, and Evangelicals and Catholics tended to be opposed to euthanasia. Moderate Protestants, (e.g., Lutherans and Methodists) showed mixed views concerning end of life decisions in general. Both of these groups showed less support than non-affiliates, but were less opposed to it than conservative Protestants. Respondents that did not affiliate with a religion were found to support euthanasia more than those who did. The liberal Protestants (including some Presbyterians and Episcopalians) were the most supportive. In general, liberal Protestants affiliate more loosely with religious institutions and their views were not similar to those of non-affiliates. Within all groups, religiosity (i.e., self-evaluation and frequency of church attendance) also correlated to opinions on euthanasia. Individuals who attended church regularly and more frequently and considered themselves more religious were found to be more opposed to euthanasia than to those who had a lower level of religiosity.
Recent studies have shown white Americans to be more accepting of euthanasia than black Americans. They are also more likely to have advance directives and to use other end-of-life measures. Black Americans are almost 3 times more likely to oppose euthanasia than white Americans. Some speculate that this discrepancy is due to the lower levels of trust in the medical establishment. Select researchers believe that historical medical abuses towards minorities (such as the Tuskegee Syphilis Study) have made minority groups less trustful of the level of care they receive. One study also found that there are significant disparities in the medical treatment and pain management that white Americans and other Americans receive.
Among black Americans, education correlates to support for euthanasia. Black Americans without a four-year degree are twice as likely to oppose euthanasia than those with at least that much education. Level of education, however, does not significantly influence other racial groups in the US. Some researchers suggest that black Americans tend to be more religious, a claim that is difficult to substantiate and define. Only black and white Americans have been studied in extensive detail. Although it has been found that minority groups are less supportive of euthanasia than white Americans, there is still some ambiguity as to what degree this is true.
A recent Gallup Poll found that 84% of males supported euthanasia compared to 64% of females. Some cite the prior studies showing that women have a higher level of religiosity and moral conservatism as an explanation. Within both sexes, there are differences in attitudes towards euthanasia due to other influences. For example, one study found that black American women are 2.37 times more likely to oppose euthanasia than white American women. Black American men are 3.61 times more likely to oppose euthanasia than white American men.
In “Gender, Feminism, and Death: Physician-Assisted Suicide and Euthanasia” Susan M. Wolf warns of the gender disparities if euthanasia or physician-assisted suicide were legal. Wolf highlights four possible gender effects: higher incidence of women than men dying by physician-assisted suicide; more women seeking physician-assisted suicide or euthanasia for different reasons than men; physicians granting or refusing requests for assisted suicide or euthanasia because of the gender of the patient; gender affecting the broad public debate by envisioning a woman patient when considering the debate.