Thursday, April 17, 2014

Fuzzy Thinking and Wooly Mammoths

Remember me when I am gone away,
Gone far away into the silent land.
—Christina Georgina Rossetti, Remember (1862)

The news is out! All it will take for South Carolina to join 47 other states in having an official state fossil is agreement on whether it is important to let people know how old the fossil in question is. The idea of having a state fossil in South Carolina came from eight-year old Olivia McConnell.

Olivia was dining in a restaurant whose menu included not only food selections but also interesting facts about South Carolina. She noticed that the state had no state fossil. Olivia sent a letter to two members of the legislature asking them to introduce legislation designating the wooly mammoth as the official state fossil. She gave the legislators three reasons to designate the wooly mammoth including the fact that one of the first discoveries of a vertebrae fossil in North America was in South Carolina where in 1725 slaves dug up wooly mammoth teeth on a plantation.

Given the tradition of state fossils one might have thought that it would be a no brainer for the South Carolina legislature to designate the wooly mammoth as its state fossil. Lots of states have them. Colorado named the Stegosaurus its state fossil in 1982. Less than a month ago Kansas designated the flying pteranodon and the sea-roaming tylosaurus as official state fossils. In 1981 by concurrent resolution, rather than legislation, Mississippi designated the prehistoric whale as the state fossil.

Designating the wooly mammoth as South Carolina’s state fossil proved to be a no brainer, but not in the usual sense. It was a no brainer because two senators of limited capacity but of religious fervor and legislative clout, insisted that if South Carolina were to have an official fossil, the state should at the same time affirm that the wooly mammoth and the other creatures of the world were created on the sixth day. Senator Kevin Bryant who, among other things, believes climate change is a “hoax”, wanted the bill amended to include three verses from the Book of Genesis that explain how the wooly mammoth and the rest of us came into existence.

When the bill was first introduced it included recitals that said the “giant mammoths used to roam South Carolina” and its “teeth were discovered in a swamp in South Carolina in 1725 and the wooly mammoth is the “ first scientific identification of a North American vertebrate fossil.” The statute itself simply read as follows: “Section 1-1-691. The Columbian Mammoth is designated as the official State Fossil of South Carolina.” Senator Kenneth Bryant thought the bill would be even better if it described the other animals that were created along with the wooly mammoth. Accordingly, he proposed that the following language from the book of Genesis be added to the bill: “And God made the beast of the earth after his kind, the cattle after their kind, and everything that creepeth upon the earth after his kind: and God saw that it was good.” With the addition of that language Senator Bryant, like God viewing creation, viewed the bill designating the wooly mammoth as the state fossil as good. His colleagues did not agree. The amendment went nowhere.

Another amendment was offered and accepted by the senate that included the wooly mammoth’s birthday. That amendment makes it plain that as complex a being as the wooly mammoth may have been, it didn’t take God very long to create it and lest there be any confusion, it recites that twice. The amendment reads in its entirety as follows although because of a misplaced quotation mark it probably does not accomplish what its supporters intended: “Section 1-1-712A. The Columbian Mammoth, which was created on the Sixth Day with the other beasts of the field, is designated as the official State fossil of South Carolina and must be officially referred to as the ‘Columbian Mammoth’, which was created on the Sixth Day with the other beasts of the field.” (Because of the amendment’s focus on the fact that the wooly mammoth was created on the sixth day presumably the author wanted the official name to include that fact. The author was better at bible studies than grammar. By placing the quotation mark around “Columbian Mammoth” all the author has created is a redundancy. God did better when creating the wooly mammoth even though it is no longer with us.

The South Carolina House has refused to go along with the sixth-day business. Kevin Johnson, one of the senators who sponsored the bill has suggested that if the sixth day language and another more innocuous amendment are rescinded, the wooly mammoth will enjoy all the benefits that come with being an official state fossil. The wooly mammoth should not yet mention the prospect of its new position in South Carolina to any of its family, however. Two of its direct descendants in the South Carolina senate may prevent that from happening.

Wednesday, April 9, 2014

Heeere's Johnny

No matter whether th’constitution follows th’ flag or not, th’ supreme coort follow th’ iliction returns.
—Finley Peter Dunne, Mr. Dooley’s Opinions

As usual, I am indebted to readers whose perceptive questions cause me to reflect on matters raised by them. The question this week is why Chief Justice John Roberts did not insert any smiley faces in his opinion in the case of McCutcheon v. Federal Election Commission. It is obvious to any reader of the opinion that he was having a good time writing that opinion and the friendly gloss he bestowed on bribery would have been enhanced by a smiley face. Since we have incorruptible politicians running the country (except for the few who inadvertently end up in jail) Chief Justice Roberts and four of his colleagues assure us we need not be alarmed by the effect of gifts of large sums of money to the campaigns of those seeking elected office.

It is difficult, but not impossible, to select one sentence in 46 pages of the Chief Justice’s opinion that stands out as the most amusing. A good candidate is found on page 2 of his opinion, however, where he says: “We have said that government regulation may not target the general gratitude a candidate may feel toward those who support him or his allies, or the political access such support may afford.” For the benefit of my non-lawyer readers, “general gratitude” is not a term taught in law school nor is it a particular word of art. It simply describes the warm feeling a political candidate has upon receiving a large sum of cash from someone who, before the gift, was a complete stranger. To bolster that bit of jurisprudential nonsense the Chief Justice hearkens back to an earlier triumph in judicial nonsense, Citizens United v. Federal Election Comm’n. He quotes approvingly from that opinion that: “Ingratiation and access . . . are not corruption.” (“Ingratiation” is the product of “general gratitude.”) Those are but a couple of the Chief Justice’s attempts at whimsical analysis. Early in his opinion he approvingly notes that the Court has historically said that Congress cannot “regulate contributions simply to reduce the amount of money in politics or to restrict the political participation of some in order to enhance the relative influence of others.” What the Chief Justice means by “enhance the relative influence of others” is that if the election process were a level playing field, the poor and the rich would have exactly the same opportunity to influence the outcome of the election. Money would not make a difference. The result of that would be to deprive the wealthy of the ability to obtain “ingratiation and access” that large contributions give them. Chief Justice Roberts observes that current law permits a voter to contribute up to $5,200 to nine candidates but not an additional $5,200 to a tenth. If there are more than nine candidates the wealthy voter would like to support, “the limits deny the individual all ability to exercise his expressive and associational rights by contributing to someone who will advocate for his policy preferences.” That he describes as a “clear First Amendment” harm. It penalizes the voter for “robustly exercising his First Amendment rights.” He observes that working for a candidate by going door to door on the candidate’s behalf is no substitute for giving money since if a voter wants to support 50 candidates the voter cannot possibly have enough time to do canvassing for all 50 candidates. By removing the limit on the total amounts a voter can give during an election cycle, a voter can contribute in a meaningful way to the campaigns of 50 or even 500 candidates.

If the reader wants one thing to carry away from the opinion the reader should focus on the Chief Justice’s elaborate discussion of quid pro quo. If there’s a quo for the quid, then it’s bad. “Access” and “ingratiation” are not quos because, according to the Chief Justice, they are not tangible benefits. A quo that has a tangible benefit for the donor is a no-no-quo. That, to someone not as sophisticated as the Chief Justice and his four concurring colleagues, would seem to be a difference that makes no difference. As Justice Breyer explains in his dissent, “Bribery laws. . . address only the most blatant and specific attempts of those with money to influence governmental action. The concern with corruption extends further.” He observed that in an earlier case the court considered undue influence to be as corrupt as a quid pro quo agreement. Chief Justice Roberts and his colleagues do not see it that way.

There is much more to the Chief Justice’s opinion than limited space permits me to explain and reading a column such as this is no substitute for reading the entire United States Supreme Court opinion-unless a reader’s time is valuable. In that case this is an adequate substitute.

Only a Justice more interested in the outcome than the law could write an opinion like the one in the McCutcheon decision. Chief Justice Roberts is such a Justice.

Tuesday, April 1, 2014

The United States of the NRA

Such as do build their faith upon
The holy text of pike and gun.
— Samuel Butler, Hudibras pt. 1

It is time to consider the possibility of disbanding Congress and turning over governance of the country to the National Rifle Association (NRA). At first blush that may strike some as a bad idea since Congress has been elected by the people whereas the NRA is a self-selected small (when compared with the overall population) group. But its membership is growing which indicates that it is a very popular organization and its growth does not occur in a random way. Every time there is an horrific act of violence involving guns, the NRA’s membership increases. Given the amount of violence the country now enjoys, it is safe to say that the NRA’s membership will continue to swell as gun deaths continue unabated.

By the time of the NRA’s annual meeting in May 2013 NRA membership had increased dramatically from the previous annual meeting. When addressing attendees at the 2013 meeting, Wayne LaPierre observed that NRA membership was in excess of 5 million people and its enrollment had increased by 500,00 members following the violent events of the preceding 6 months that included the Newtown School House massacre. As Mr. LaPierre said: “By the time we’re finished, the NRA must and will be 10 million strong.” He did not explain what he meant by “finished” but it’s safe to say the NRA would not, at that point, disband. Since its ranks are growing and people who join do so voluntarily, the idea that the NRA is self-selected rather than elected should not be of any great moment. Furthermore, the NRA is already heavily involved in determining what Congress does and does not do and we should quit pretending otherwise. There is, in fact, nothing Congress does these days that is of any moment since it passes virtually no legislation and confirms few, if any, nominees requiring its approval. The NRA, on the other hand, has repeatedly shown that when something needs to be done by governmental bodies it has the influence to see that it gets done.

When the question of approving a new Surgeon General was being considered by Congress, for example, a selection that one would not believe to be within the area of the NRA’s expertise, it quickly became apparent that those who so thought were wrong. The NRA proved that it had the knowledge and experience to be an important voice in helping members of Congress decide how to view the nomination. In a 2 ½ page letter to the Majority and Minority leaders of the senate, the NRA laid out a number of things the president had overlooked when nominating Vivek Hallegere Murthy to that post. In its letter the NRA examined all the things Doctor Murthy had said about guns during his life. Dr. Murthy had, for example, repeatedly suggested that anyone buying guns and ammunition should be licensed and should be required to undergo firearm safety training and testing, a proposal that the NRA’s letter says would “turn a fundamental, constitutionally protected right into a privilege for the few.” (The NRA was pointing out that learning how to properly use a gun is an unnecessary luxury and something most gun owners cannot afford.) Furthermore, (although this is my idea and not the NRA’s) on an almost daily basis one reads of children as young as two getting their hands on a parent’s gun and killing a sibling. It is perfectly obvious that neither licensing nor training would put an end to those kinds of accidents. The foregoing are not Dr. Murthy’s only transgressions. Dr. Murthy has tweeted that “Guns are a health care issue.” That is palpable nonsense since it is not guns that are health care issues but their effects when not properly used.

Others may say that the NRA lacks experience in foreign affairs, another arena in which Congress was once active. That, too, is nonsense. In September 2013 Secretary of State John Kerry signed the United Nations Arms Trade Treaty authorizing the government to participate in negotiating the United Nations Arms Trade Treaty. Well-versed in foreign policy as well as domestic policy, the NRA let it be known that it opposes the treaty “which clearly jeopardizes the right to keep and bear arms protected by the Second Amendment to the U.S. Constitution.” Chris W. Cox, the Executive Director of the NRA’s Institute for Legislative Action said the treaty: “threatens individual firearm ownership with an invasive registration scheme. The NRA will continue working with the United States Senate to oppose ratification of the ATT.” In adopting this position on foreign affairs it was joining other countries active in foreign affairs such as Syria, Iran and North Korea, all of whom are concerned with the treaty’s effect on their sovereign rights. The Senate and the House are in complete agreement with the NRA and the leaders of those two bodies have signed bipartisan letters pledging their opposing to ratification of the treaty.

There are a number of other advantages to turning the country over to the NRA not least of which is the elimination of the need to raise hundreds of billions of dollars every two years to determine who will sit in the Congress and do nothing more than draw salaries and quibble. Citizens would simply pay $35 annually for membership in the NRA. No proof of citizenship or other form of ID is needed to join. It’s a great opportunity and we should seize the moment.