Thin-skinned babies want to punish flag burners

Freedom of Speech is meaningless if it only protects speech we all like.

Trump, soon to be known as “the Tweeting President,” has declared that people should be jailed for burning the American flagflagburning.jpg

People who claim to be patriots (but who don’t quite grasp the concept) are cheering him on, pointing out that burning the flag is an insult to America and the veterans who have fought for what the flag stands for.

Well, duh. Of course burning a flag is insulting. So is standing on a corner with a sign saying “God Hates Fags.” They know it’s insulting when they do it. That’s why they do it.

But America has thicker skin than Trump, who spends more time thinking about how much he can’t stand Saturday Night Live than he does going to necessary intelligence briefings.* America knows that we can take the insults, because we’re better than that.

And we know that if we start banning speech we don’t like, then it may be our speech they come after next. The Founding Fathers knew that when they wrote the 1st Amendment. The Supreme Court knows that, as they have ruled many times. You have to protect speech we hate. Speech we all agree with doesn’t need protecting.

So if you really believe in freedom, if you really are a patriot, then mean it. Stand for what the Constitution guarantees. Don’t make exceptions.

Don’t be a thin-skinned baby who can’t take an insult — you know, like the immature child that a minority of us chose to lead us.

*I am not making that up

How to Honor the Founding Fathers with the Electoral College

“The Electoral College was set up with a specific purpose in mind and we should do what the Founding Fathers want,” people say to me whenever I argue for getting rid of it.

Well, fine. If your desire is to do what the Founding Fathers wanted, then we’ll need to change a few things.Stock Photo of the Consitution of the United States and Feather Quill

  1. Stop having Presidential elections. There’s nothing in the Constitution about them. The Electors are chosen by the state legislatures in any way they wish. They could choose the lobbyists who give them the most money if they wanted to.
  2. How the state legislatures are chosen is not provided for in the Constitution either. So we should allow states to just appoint these people, too.
  3. The Founding Fathers also intended that whoever came in second place would be Vice President. Nothing wrong with that, right?
  4. Even if the states do decide to have elections, those states should only allow white men who own property to vote. Hey, do you want to honor the Founding Fathers or not here?

Of course, in those days where it could literally take weeks to travel from state to state, each state was much more independent and unique, almost like the way the European Union is now. We were less a country than a collection of independent states (which is why we are called the “United States of America” and not just “America”).

That changed quickly. People started seeing the President as the leader of all the people and not as just some figurehead off there in the distance. (Seriously, does anyone know who the leader of the European Union is?)

And the states started having elections to choose this leader. Congress decided on a date for these elections — because that’s not in the Constitution either — and soon, the popular vote winner in that state decided who the electors were. By 1824, this led to the election of Andrew Jackson, exactly the kind of person the Electoral College was set up to prevent getting into the White House. Thus, within forty years of the writing of the Constitution, while some of the Founding Fathers were alive, we had already moved away from the original intent of the Electoral College.

So for those of you who say we should keep it in order to honor what the Founding Fathers intended:  You’re 200 years too late.

Why someone might not stand for the National Anthem

I’ve never heard of this Colin Kaepernick guy before today, but apparently people are mad at him because he used his Constitutional right to protest our National Anthem by not standing for it when it was played.

Of course, he’s now being attacked left and right (okay, mostly right) by people who think he should be punished for not standing up for the Anthem that represents the country that allows people to not be punished for not standing up for the Anthem. Funny, that.

And all of the attacks on him go after him as the messenger of something that they don’t like. Why? Because they can’t attack the message itself, which is this: The National Anthem supports slavery.

Seriously. You don’t hear it in the first verse that everyone knows, but later on the lyrics say this:

No refuge could save the hireling and slave
From the terror of flight or the gloom of the grave,
And the star-spangled banner in triumph doth wave
O’er the land of the free and the home of the brave.

What’s that about? Simple. The British were attacking us in 1812 and they promised to free the slaves when they won. They accepted escaped slaves, who fought with the British. Francis Scott Key was proud of the fact that the Americans were able to stop this, putting into the lyrics that we should feel patriotic that the slaves met “the gloom of the grave” for daring to rebel against the United States.

After the war, the US demanded the return of the escaped slaves who lived, but the British refused. So there’s at least that.

But yeah, I can see why someone would say that we shouldn’t have a National Anthem that glorifies war and slavery.

And protesting is more patriotic than blindly accepting something wrong any day.

 

Who cares what the Founding Fathers thought?

The Founding Fathers were a bunch of politicians, not too different from the politicians we have today (except that they were all rich white men). Some were tremendously intelligent people who deserve all the accolades they receive. Thomas Jefferson, Benjamin Franklin, John Adams — great men who did their best to create this great experiment.constitution_quill_pen

Others have been lost to history. William Blount? Alexander Baldwin? Pierce Butler? Some were mediocre men, who fought against giving people any power, who argued to keep slavery, who forced the great men into compromises like the 3/5ths clause and the 2nd Amendment in order to gain their votes.

You know — politics.

And that’s why it is so frustrating when the Constitutional Fundamentalists say that we should obey the “will of the Founders” when interpreting the Constitution.  Well, which Founders?  This wasn’t adopted unanimously, you know. To argue that we should never have a position about the Constitution based on who won is like saying we should never question Obamacare because hey, it got passed by some politicians so it’s gospel and cannot be challenged.

And that’s the key — I call these people Constitutional Fundamentalists because they view the document like it’s a religious holy book, handed down by the Founding Gods, and we should obey what the Founders said. (And, of course, 100% of the time, just like religious fundamentalists, these people know exactly what the Constitution means and it matches their own personal views perfectly! Isn’t that amazing!)

The Founders created a foundation for a building — the Constitution provides the very minimalist blueprint. “Freedom of Speech” it says, but it doesn’t go into any detail. Does it include libel and slander? Television and internet? Can you cause a riot and claim this freedom as a defense? Can you reveal military secrets and not get punished? The Constitution doesn’t say.

That means it has to be interpreted, just like it had to be within a few years of its passage, when the Supreme Court had to make decisions and Founding Fathers argued before members of the Court (who were also Founding Fathers) and they didn’t all agree! 

So, with all respect to the great men who founded this nation, who cares what they thought 230 years later? These were guys who thought you could cure diseases through bloodletting. They thought humans could be property, women should be close to property, and killing natives for land was perfectly fine.

This would be like trying to add air conditioning and heating to your home but being told “No, the original blueprints from 200 years ago don’t mention that, so you can’t do it.” We should not have our society limited, Amish-like, to a time that no longer exists.

Many religious fundamentalists already understand this. They already ignore the parts of the Bible they want to ignore, recognizing that something that was written so long ago should not guide modern thinking.

Somehow, Constitutional fundamentalists have yet to reach that stage.

 

 

 

Our Government’s on the side of the Good Guys

Attorney General Lynch made it quite clear that not only will she do her duty to serve the United States Constitution, but that our government is on the side of the Good Guys, fighting against those who would take away the rights of others.

Her speech against the bigotry we are seeing in North Carolina and elsewhere was wonderful, and I just have to include a few quotes here:ag

This action is about a great deal more than just bathrooms. This is about the dignity and respect we accord our fellow citizens and the laws that we, as a people and as a country, have enacted to protect them – indeed, to protect all of us. And it’s about the founding ideals that have led this country – haltingly but inexorably – in the direction of fairness, inclusion and equality for all Americans.

This is a time to summon our national virtues of inclusivity, diversity, compassion and open-mindedness. What we must not do – what we must never do – is turn on our neighbors, our family members, our fellow Americans, for something they cannot control, and deny what makes them human.

What this law does is inflict further indignity on a population that has already suffered far more than its fair share. This law provides no benefit to society – all it does is harm innocent Americans.

Let me also speak directly to the transgender community itself. No matter how isolated or scared you may feel today, the Department of Justice and the entire Obama Administration wants you to know that we see you; we stand with you; and we will do everything we can to protect you going forward. Please know that history is on your side. This country was founded on a promise of equal rights for all, and we have always managed to move closer to that promise, little by little, one day at a time. It may not be easy – but we’ll get there together.

Conservatives are aghast, of course, because Big Government is interfering with their right to treat other people as if they are inferior because their god fears them in bathrooms or something. These conservatives are in favor of “state’s rights” and “limited government” only when they agree with what is being done. When it comes to personal liberties such as the right to get married or gay rights or abortion — well, government just can’t be intrusive enough.

“It’s a public safety issue,” they say, as their nose grows to Pinocchio lengths. “Well, no, there have been absolutely zero cases of this happening, but — but — public safety!”

Hey you know what is a real threat to public safety, unlike this pretend threat? One that actually causes deaths on a daily basis? Letting people carry guns everywhere. Yeah, fat chance that they’ll do anything about that public safety issue.

We all know it’s not about public safety. It’s about damned religious aversion to any kind of sex — the same kind of idiotic view that wants to keep people in love from getting married because it creeps their god out.

 

Why I hate hate crimes

A recent trend in law has been to punish people for thinking in ways we don’t like.

The way it usually works is this: People who get into fights or threaten others because of their race or sex or religion or sexual orientation can be charged with crimes usually called “ethnic intimidation” and the like. hate crimes

So if you beat up someone, you can be charged with assault. But if your reason for beating them up is because of their race, you can be charged with assault and more.

See the distinction? We’re now making it a crime to have views we don’t like. This seems to me to be a clear violation of the 1st Amendment’s Freedom of Speech clause — and as I’ve said many times, that clause means nothing if we don’t protect speech we hate. Speech we all agree with doesn’t need protection.

I think it is perfectly fine for the criminal’s views to come into play at sentencing. A judge should be able to take into consideration the motives and reasons for the attack when deciding a proper punishment. We do that now, even in cases that don’t involve “hate crimes.” Giving someone a harsher sentence and/or requiring other sanctions when their motives are based on hatred and intolerance is justifiable.

But the crime itself punishes people for saying things we disagree with, and that’s where it goes too far.

I had a case once where a man was arguing with a woman who butt in front of him in line at the supermarket, and as they yelled at each other, he ended up calling her a “stupid nigger.” He was arrested and charged with Ethnic Intimidation. He told me he was so angry at her that he just said the thing he knew would hurt her the most, but that his anger was not based on her race — it was because she had butted in front of him in line. “If she had been overweight, I would have called her fat,” he said.

That’s not an admirable thing for the man to do, but it shouldn’t be illegal. Our current laws against harassment could have covered this situation just fine and still punished him (and, chances are, had he not said this, they probably both would have been charged).

I was ready to use this case to challenge our state’s Ethnic Intimidation law, but as it turned out we worked out a deal to a much lesser charge, he paid a fine, and it went away — which was the best result for my client.

There is a big difference between laws prohibiting discrimination and criminal laws that punish you for being a bigot. I think everyone has the right to be a bigot. Why, without bigots, how would Fox News stay in business?

 

Law is Politics

The legal system makes a lot more sense when you realize that it’s all politics.

There are those who insist that the law is absolute; that there is only one interpretation of it; and that only crazy radical liberals engage in “judicial activism.”

But the bottom line is that the law is whatever judges say it is.

Every judge has their own opinion as to what the “original intent” of the law was. If everyone agreed on what the “original intent” was, we wouldn’t need judges.

Even the Founders disagreed over the wording. The scales-personal-injury-lowConstitution was written to be specifically vague in parts because that was the only way they could get it passed.

You know — politics.

Within a few years of its passage, there were cases before the Supreme Court to interpret the Constitution’s meaning. The very Founders who wrote the damn thing argued before the Court as to how it should be interpreted.

Whenever anyone says there is only one “original intent” they always amazingly also know exactly what it is and — even more amazingly — it always matches what they already believed. (Sort of like religious nuts who are convinced there is only one interpretation of the Bible and it’s always the same thing as their own.)

And the meanings of words change over time. “Cruel and unusual punishment” does not mean the same thing in the 21st Century as it did in the 18th. The 14th amendment gives rights to “people” but at the time it was written, it did not include women or gays (and barely included blacks). Meanings change. Society changes.

Conservative judges interpret the Constitution just as much as liberal judges do — the difference is that liberal judges tend to be more honest about it. Or maybe the conservatives ones are just deluded, like Scalia was, that he had some great “insight” into the Founders’ desires, like he was an avatar to the gods. It was the conservative justices who reinterpreted the 2nd amendment to turn it into a personal right after 200 years. It was the conservative judges who decided that corporations were “people” and money was “speech.” And a new Court could turn around and say “nope” and change it back, using the exact same words in the Constitution.

Politics.

I know some people want the law to be like a science, where you can do an experiment or do some research and know the answer, but it isn’t. It’s politics. It’s written by politicians. It’s judged by people who are elected (and are therefore politicians) or who have been appointed by politicians. The judges don’t all agree, just like politicians don’t agree.

And most of them (if they aren’t deluded) will admit that the Constitution is not a religious document written by gods; it’s a political document written by a bunch of politicians.