Tag Archives: Legal/Constitutional

Monday’s Mtg: #MeToo – What does sexual harassment mean now?

This is an overdue topic. As everybody knows, in 2017-18 dozens of high-profile American men were accused of sexual harassment and/or sexual assault. We all know the big names: Harvey Weinstein, Al Franken, Kevin Spacey, comedians Aziz Ansari and Louie C.K., journalist Mark Halperin, and even former President George H.W. Bush. A new social movement arose out of it all – the #MeToo phenomenon – as thousands of women were moved to share their personal stories. We’ve seen the Oscar speeches and saw/read endless opinion pieces on #MeToo. And, if surveys are any guide, some of us probably have direct personal experience with sexual harassment or assault.

But, what if anything has really changed? Are we at a cultural inflection point on sexual harassment and misconduct, or have we just cleaned house in some industries that get a lot of media attention (entertainment, politics news media)? A backlash against #MeToo has sprung up. Do these critics have a point, or are they just revanchist? What turns a moment into a movement? What turns a movement into permanent social change?

Public opinion, for one thing. On cultural change, it’s the whole ball game in the long-run. So, I thought Civilized Conversation could talk about what sexual harassment means now in the workplace and in our personal lives. Our group will never win any awards for its diversity. But, the differences we do have on gender, age, and experience will make for an interesting discussion.

Here are some optional background readings. Thanks to Scott for finding the ones on public opinion and to Gale for suggesting we use the Aziz Ansari incident as case study.

SUGGESTED BACKGROUND READING –

What and how much –

Case study: Aziz Ansari incident –

What Americans think about –

Critiques of / future of #MeToo –

NEXT WEEK: Deportation nation: Will Americans really let millions be ejected?

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Monday’s Mtg: What should every American know about the Constitution?

We have talked about the Constitution many, many times and in many detailed and abstract ways. We have never asked what should the average citizen know about the Constitution, both in terms of what’s in the document and why it matters.

What they do know is not much. The level of public ignorance of our founding document is astounding. Forget bills of attainder, living constitution versus original meaning, and substantive due process.  More than one-third of Americans cannot name a single right guaranteed in the Bill of Rights, and one in six believe Muslims are not entitled to equal constitutional rights and equal protection!

So, or our purposes assume that the average American is a tabula rasa on this stuff. What are the most critical, basic things about the Constitution that they need to know? Do they need to be familiar with anything other than the bare basics of the Bill of Rights and the basic powers of government?  What about the history of how and why the Constitution was written and/or a teeny little bit on how judges and SCOTUS interpret it? What do people probably need to unlearn that is wrong?  You get the idea.

Below are some optional readings. They include a quiz for YOU to take on basic Constitutional knowledge; discussions of public ignorance and its importance; and links to some old CivCon meetings. You might want to peruse the two meetings that dealt with progressive versus conservative methods of constitutional interpretation if you are not familiar at all with the subject. The one on the liberal POV had the better links.

Also, at Monday’s meeting I will pick which two volunteers will help me pick our next round of topics (March – June). Send me your topic ideas!

SUGGESTED BACKGROUND READING –

Related CivCon meetings:

Your knowledge of the Constitution –

What they teach kids about the Constitution –

  • In California: What kids learn, by grade.
  • There is a “National Constitution Day” every September 17, by law. School kids must spend an hour on it with.  DavidG has been a guest speaker in local high school classes.
  • California is trying to promote/recognize constitutional and civic knowledge.
  • The Simpsons version of Schoolhouse Rock explains it all.

What the public actually knows –

NEXT WEEK: US foreign policy – How do we know we are the good guys?

Monday’s Mtg: Do we really have a democracy?

Jim Z.’s topic is timely, for obvious reasons. But it’s also complicated and lends itself to different approaches.

First, we could discuss how much democracy this country has had in the past, given constitutional limits on majority rule and long-standing anti-democratic characteristics of American politics and culture. It might be helpful here first to explicitly identify which features make a democracy deep and lasting. Which of these does a democracy most depend on?

  • A constitutional foundation of rights, separation of powers, checks/balances, civilian control of the military, etc.?
  • Free and fair elections with universal suffrage and protections for voting rights? What about ease of voting?
  • Public faith in democracy and/or in government and/or a high level of public engagement in civic life?
  • Pluralism (multiple and competing organized interests)?
  • Strong democratic institutions, in government and outside of it (free press, political parties, so on)?
  • Limits on powerful private interests’ political power and on corruption and cronyism?

That’s a bunch of two-hour meetings right there, some of which we’ve done (undemocratic Constitutional features, voter ignorance, money in politics). Last year we even discussed whether U.S. democracy really could unravel.

A second approach for us would be to dive right in to the (in my opinion) large and growing threats to American democracy that have emerged in the last 20 years. Obviously, Donald Trump is embodies and leads the most obvious threats, his own presidency and political movement. But, there are others.

I believe that if we want to save our democracy, we have got to be honest about one particular elephant in the room: The Republican Party and its increasingly authoritarian nature. Their gutting of the Voting Rights Act and voter suppression laws/policies. The outright theft of a Supreme Court seat. Highly aggressive state-level gerrymandering to lock in electoral advantage. The welcoming of far right-wing news media and even White nationalists into the party. Legislative hostage-taking. Union-busting to “defund the Left.” And now, a deliberate, coordinated attack on the rue of law, including the FBI and DOJ.

To be fair and balanced (!) but also accurate, undemocratic forces may be emerging within progressivism, too. Examples: Antifa-type violence, intolerance of dissent on social media, etc. We could talk about the full range of partisan/ideological threats to democracy. Other, structural threats to U.S. democracy exist and might be worth discussing, too, especially runaway economic inequality and rural economic stagnation, rising xenophobia, and even foreign interference in our elections.

Finally and on a more philosophical note, we could challenge the implied premises of Jim’s question. Is a lack of democracy really a big problem in the United States? Would more of it really help solve our big problems? Does the Constitution straightjacket us from taking bold steps toward increasing majority-rule? And, does the public really want more control over a political system they all say they have no faith in and most of them care little and know even less about?

I will do a short intro on Monday and then focus my effort on making sure we address major avenues of inquiry in our discussion and on making sure everybody gets a chance to be heard. Jim, do you have anything you want to say to start us off?

A lot of links this week, since it’s a big topic. I think they all add value and don’t repeat much or rehash old issues. My suggestion: Focus on recommended ones.

SUGGESTED BACKGROUND READING –

How Democratic is the USA –

Do we have too much democracy?

Threats to US democracy –

Solutions –

NEXT WEEK: Lessons of the Vietnam War, 50 years later.

Monday’s Mtg: Does Big Money really control U.S. politics?

That big money has too much control over our political system is one of the few political statements that almost all (85%-90%) Americans agree with. Most progressives I know think Big Money is pretty much the root of all evil in politics, or at least the largest single impediment to solving our national problems. Few conservatives I know go quite this far, but polls show a majority of conservatives and Republicans agree with the general proposition that regular people are priced out of the system.

We last discussed campaign finance reform in 2015, although we do related issues periodically, like corporations’ free speech rights in 2014. For this one, I thought we could sharpen our understanding of the (alleged) problem a bit. How did big money get to be the lifeblood of politics at almost all levels of government? What’s the evidence that Big Money really is our political system’s worst problem (as opposed to other factors, see below)? And, what might be done about big money’s dominance given the GOP’s almost total dominance of government these days and its almost complete opposition to any reforms progressives would support?

I will do some kind of informative, non-polemical opening to set the stage for discussion then open things up. Here are some readings and some more-detailed-than-usual discussion questions.

DISCUSSION QUESTIONS –

  1. Big Money’s rise: Trends and amounts, who spends and on what and why do they do it?
  2. Regulations’ failures: Deregulation of campaign finance and lobbying rules. Citizens United et al. Rising economic inequality reinforcing political inequality. Over-regulation of economy led big biz to fight back? Recent state/local govts trying to reign money in.
  3. Harms: In elections vs in between elections. At which levels of govt? Visible vs. invisible harms. Crowding out the public interest vs. actively opposing it?
  4. Benefits: Are there any benefits to so much money in politics?
  5. Dogs that don’t bark: What things don’t happen due to big money’s influence that would or should happen?
  6. Other culprits: Ideological and partisan polarization, voter apathy/ignorance, changing news media/social media effects, candidate quality, etc. à Is big money really more important than all of these factors?
  7. Solutions: What fixes might be constitutional, possible given total GOP opposition at all levels, and effective?

SUGGESTED BACKGROUND READING – (many, some long – pick and choose)

NEXT WEEK: What is “fair trade?” Do we need it?

Monday’s Mtg: Sanctuary Cities – Legal, Moral, Sensible?

President Trump seems to have backed down on many of his most controversial promises on immigration. There will be no big “beautiful” border wall. No brand new paramilitary deportation force prowling the country. No flat out ban on Muslim immigration (h/t The Judiciary). The same is proving to be the case on his pledge to defund and thus eliminate “sanctuary cities.”

What are those? As the links below explain, there is no formal legal definition of what a sanctuary city is. But basically, a large number (400+!) of cities and towns across the USA have pledged not to turn over certain undocumented immigrants (UIs) that the local governments come into contact with, or even to notify the Feds that they are in custody. These places are not literally sanctuaries in the medieval-Quasimodo sense. Local authorities cannot physically interfere to stop federal agents from seizing a UI in local custody if they learn about it and want to do so.  But, sanctuary cities do refuse to (1) spend resources arresting and holding ever person they encounter they suspect might be here illegally, and (2) inform ICE/DHS and hold the person until they Feds come to take them away.  Sanctuary cities say they need to spend scarce law enforcement resources on serious crimes, not enforcing federal immigration law.

But, I don’t think this is over. The idea of sanctuary cities really, really infuriates many conservatives. They think it’s unconstitutional. Plus, the idea of big blue cities defying law and order to protect people who are here without permission (and are disproportionally  violent criminals, our President said) hits all the conservative outrage sweet spots. Since I’m seeing progressives going all-in to support the undocumented and defy the GOP’s push to reduce illegal immigration, I think this now almost totally partisan issue will be with us for a long time.

DISCUSSION QUESTIONS –

  1. What are sanctuary cities? Different meanings of, history of.
  2. Moral and policy pros and cons.
  3. Constitutional and legal pros and cons
  4. Trump’s actions and their legality.
  5. Bigger picture on immigration.

SUGGESTED BACKGROUND READING –

NEXT WEEK: July 3 fireworks – What does the United States stand for?

Monday’s Mtg: The Constitution – Not Democratic Enough or Too Democratic?

As befits a discussion group devoted to politics, philosophy, and other public issues, CivCon has done a lot of topics on the Constitution.  Oddly though, we have never looked explicitly at how democratic our founding document was and (as amended and interpreted) is. I phrased the topic as a normative question, since is begs the question of ought. It also might make for a livelier discussion and prompt us to make the political preferences behind our opinions more explicit.

I see more than one way to approach our pondering, too. We could focus more on the standard (but important) stuff, like looking at the basic structures and functions the Constitution sets up. As Jim Z. noted last week, the whole document is in some ways “rigged” against pure democracy; e.g., the Electoral College, two senators per state regardless of size, an unelected judiciary, vetoes and supermajorities requirements, etc. College students spend a lot of hours reading classic books on this topic, some of which are referenced in the links. We definitely should discuss why the Founders did this and whether it’s too little or too much democracy for the 21st century (or for our tastes).

A second approach would be to look at the Bill of Rights. These rights are fundamental to protecting democracy. Are they being enforced today as designed, and is that sufficiently democratic? I’m thinking campaign finance as free speech, curtailment of civil liberties in the War on Terror, and conservatives’ religious freedom initiative (bakeries and gay weddings) might come up in this part of the meeting.

Thirdly, we could take a strict result-oriented approach. How responsive is our national government to the will of the people? Whose interests does our constitutional system represent and who does it not listen to? Some big studies have tried to quantify that in recent years. Their conclusions are sobering.

Here are some guiding discussion questions and suggested readings/skimmings.

DISCUSSION QUESTIONS –

  1. Was/Is: What are the major anti-democratic (or at least non-majoritarian) features of the Constitution?   Why did the Founders include them? What key components of democracy were left out and why?
    –>  Which of these have survived unchanged to today and why?
  2. Ought: What is “too much” or “too little” democracy? Upside/downside of both?
  3. Rights: Which rights (speech/religion, voting, property, etc.) matter the most? Are any rights under assault or overly-broad now?
  4. Results: How responsive is our constitutional system to the will of the people? Which people? Evidence?
    –>  Is un-accountability self-correcting via elections?
  5. Future: What are your biggest concerns about our constitutional democracy going forward?

SUGGESTED BACKGROUND READING –  

Not democratic enough –

Bad consequences –

No, too MUCH democracy is our problem –

NEXT WEEK: Fascism, Part II – Is a global movement emerging?

Monday’s Mtg: The Elderly Prisoner Problem

Linda, who’s a criminal defense attorney in private practice, suggested this topic. Since 1995, the number of U.S. prison inmates over age 55 has roughly quadrupled. They now comprise one-sixth of the entire U.S. prison population.

Why so many aging prisoners?  One cause is the sheer size of violent crime wave that roiled the United States from the late 1960s to the early 1990s. Another is that the country is aging in general, including those that commit serious crimes. But most notoriously to blame are all of those harsh sentencing laws passed by state legislatures and Congress in response to the crime wave and the War on Some People That Use Certain Drugs. Civilized Conversation has discussed both mandatory minimum sentences and racism in sentencing on separate occasions.

Having so many aging prisoners is a problem for a lot of reasons. As one of the links below says, older prisoners “require special attention in prison, as they often suffer from chronic diseases, including diabetes, heart failure, cognitive impairment, and liver disease, as well as age related disabilities. They are also more vulnerable to victimization in prison.” Just providing their health care costs a fortune.  Many prisons have expensive geriatric wards. Nearly 80% of all deaths in prison are older (55+) prisoners.

Recently, the Obama Administration and some state governments – including California’s – have tried to devise programs to speed compassionate release for the least dangerous elderly prisoners whose further imprisonment makes little sense. This has proven harder than you might think, both administratively and politically. I imagine that the Trump Administration will end all federal efforts and that bipartisan criminal justice reform of any kind is dead. But, who knows?

Below are some rather duh-level discussion questions and a few straightforward readings on the elderly prisoner problem and on mass incarceration. On Monday I will skip my usual opening presentation, except to briefly summarize the issue for any new members that might not have read the background materials.

Linda, with her many years of experience as a defense attorney, will then have the floor.

DISCUSSION QUESTIONS –

  1. How big is this problem and what makes it a problem?
  2. What caused it? Whose “fault” is it? Was anybody thinking of this eventuality 30 or 20 or 10 years ago?
  3. Solutions:  What’s being tried, including by the USG and in California?
    How are those going? If not well, why, and what else should be done?
  4. Mass incarceration: Is the elderly prisoner problem another one of the consequences of America’s disastrous mass incarceration experiment? Or, is it a sad but inevitable consequence of our vast but in-the-past crime wave?
  5. CJ reform: Is there any hope for federal criminal justice reform now that Trump is president and the GOP controls USG?

SUGGESTED BACKGROUND READING –  

NEXT WEEK:  White male privilege – How real? How important?

Monday’s Mtg: A Progressive Constitution?

This one was Bruce idea, as a kind of follow-up to our 2015 meeting on the Founders’ view of government powers and in expectation that Hillary Clinton would be elected president. Now, of course, President Trump will fill the Supreme Court seat that congressional Republicans stole by refusing to fill Justice Scalia’s vacant seat for a year. Funny, but I can’t find the passage in the Constitution that allows the Party of strict constructionists and originalism to do this.

At any rate, no shift away from the long, conservative arc of constitutional law is going to happen in the next decade. Quite the opposite. That list of possible SCOTUS appointees that Trump issued during the campaign came straight from the Heritage Foundation and the Federalist Society. An ultra-conservative constitutional restoration is on the launching pad, in the lower courts as well as SCOTUS.

Nevertheless, understanding progressive views (there are more than one) of constitutional interpretation is still relevant, for several reasons. First, presidents usually find a way to appoint federal judges that share their highest constitutional priorities. For example, the liberal Obama appointed judges that agreed with his expansive view of executive power in anti-terrorism matters. Donald Trump is an authoritarian figure unmatched in American history and he might try to stack the judiciary with cronies that place loyalty to him above ell else. If Trump does this and the GOP refuses to stand up to him, progressives and their living Constitutionalism will have to bear the full weight of opposition.

Second, being in the wilderness sharpens the mind. Over the next four years the Democrats must decide whether and how to revamp their message. A lot of people feel that the New Coke must include a version of constitutional interpretation that can compete with the simplistic but effective “original intent” and “obey the written Constitution” marketing slogan of the Right. Lastly, esoteric matters of law aside, the public is on progressives’ side on most major constitutional issues. They do not believe that Medicare, federal aid to education, and Social Security are unconstitutional. They don’t want Roe overturned or the last limits on corporate campaign contributions to be swept away.

Unfortunately, the progressive POV on constitutional law does not easily fit on a bumper sticker. The Left views the Constitution as a “living document,” one that laid down timeless principles but that still must be interpreted non-mechanically in order to apply it to the today’s real world. But, beyond that commonality, progressive experts differ on specific methods and priorities. There are competing camps with catchy names like “ordered liberty,” “progressive originalism,” “democratic constitutionalism,” and others.

I’m not qualified nor interested enough to explain these nuances. But, I do know a bit. I will open our meeting on Monday with the basic ideas behind progressive constitutional interpretation as I understand them. Then, we can talk.

DISCUSSION QUESTIONS

  1. Originalism: Why do progressives consider it unworkable and even kind of fraudulent?
  2. Basic liberal stance: Why do progressives say the Founders intended the Constitution to be a “living document” that must be interpreted for modern times?
  3. Rules for deciding: Okay, but how? What rules/priorities do progressives think we should use for interpretation? Original meaning, precedent, societal consensus, modern values, outcomes? Can these add up to a coherent philosophy?
  4. Differences/Labels: What are the biggest disagreements among progressives on this stuff and how do they end up as “democratic constitutionalism, “ordered liberty,” “New Textualism,” etc.
  5. Future: How will progressive react to the coming conservative constitutional revolution?  Will they find any common ground with (some) Republicans?

SUGGESTED BACKGROUND READING –  

Who cares?

What might have been and what will be –

Critique of Conservative Methods –

Progressive constitutional interpretation –

NEXT WEEK: Are we living in the “Asian Century?”

Monday’s Mtg: Are There Better Ways to “Police the Police?”

This group’s ability to time its topics so well with breaking events is starting to scare me. We’ve discussed issues related to police use of violence several times recently, including in September 2014 on the events surrounding the death of Michael Brown in Ferguson, Missouri. But, there have been some big developments in the field just in the past few days.

Today (Friday 6/3), the Chicago city government released previously undisclosed information on 101 controversial instances of officer-involved shootings and violence, including 68 dash/body cam videos. This was just the latest effort to respond to public outrage over that city’s police department’s use of force. A mayoral task force recently condemned the CPD’s “code of silence” and “institutionalized racism.” Public protests are ongoing and the USDOJ is investigating the CPD as it has many other municipal police departments. Here in San Diego, the SDPD just recently released videos of several controversial use of force.

More broadly, police use of force and racial bias have been on the front burner nationally for 3+ years now, and different types of reforms have been tried in at least some of the USA’s 18,000 (!) law enforcement agencies. Things like increased use of body/dashboard cams, revamped officer training, greater transparency, and civilian oversight boards.

Yes, change is hard. The police have difficult and complicated jobs. Police culture is notoriously slow to change. Law enforcement has powerful political protectors and allies (inc. unions and politicians) that resist change.  Still, I agree with Linda.  We should not let this moment in the spotlight pass without reflecting on what we’ve learned about how to make the police in this country both more effective and humane.

I’ll see you on Monday.

SUGGESTED BACKGROUND READING –

The problem, if you want background:

Reforms Are Happening:

Of special interest – Civilian Oversight boards:

Next Week: Bernie, (The) Donald, and the meaning of populism.

 

Monday’s Mtg: From Bundy to Black Lives – When Is Civil Disobedience Justified?

Breaking the law in order to highlight its injustice (one, but not the only, definition of civil disobedience) is all around us these days. In our crowded media environment, many individual acts or organized campaigns of civil disobedience don’t break through to the mass media. But, some that did in a big way are:

  • Black Lives Matter;
  • Occupy Wall Street;
  • Protestors disrupting Donald Trump rallies;
  • Cliven Bundy, et. al., facing down authorities in Nevada and Oregon to protest federal govt land policies;
  • Local government officials (like Kim Davis in Kentucky) refusing to sign same sex marriage licenses;
  • Edward Snowden leaking classified information on NSA eavesdropping programs.

Some of thee efforts involved many legal as well as illegal acts, of course, and some have achieved a lot more than just publicity. Black Lives Matter has had a major impact on the Democratic presidential primary and renewed efforts to reform policing. (We will discuss police reform and oversight on June 8.) The anti-Trump protestors have influenced the Republican presidential primary process, just maybe not in the way they intended. Others either fizzled out (Bundy) or just need more time to grow support (Snowden, perhaps).

The perpetrators of all of these illegal acts done for a higher purpose routinely cite as their inspirations famous civil disobedience actions of the past by abolitionists, civil and women’s rights activists, etc.   As the author of one recent book on the subject puts it, civil disobedience is an American Tradition.

Now, I believe we may be entering a new era of political activism. Why is a subject for another days – many, actually.  But I see this new era as arising from widespread public discontent with our political system and parties, income stagnation, and rapid demographic and cultural change. I think civil disobedience will play a heightened role in our politics because of the Internet and social media.  Even if I’m wrong, the recent big protest movements cited above are well worth a meeting.

My idea here is for us to see if we can identify some universal principles on when civil disobedience might be morally and politically justifiable. We’ll look to our own values and our current political and social environment, sure. But we also can use our history, others’ histories (e.g., from Gandhi all the way to terrorism!), religion, and philosophy. The latter two have been arguing about when civil disobedience is and is not justified for generations. There are many interesting questions we can pose. For example…

DISCUSSION QUESTIONS –

  1. DEFINITION: What is “civil disobedience [CD]?” How does it differ from passive resistance or non-cooperation?
    a.  Must CD be non-violent? What is non-violence, anyway?
    b.  When does CD become something else, like insurrection?
  2. CURRENT: What major CD movements/acts are occurring right now?
    a.  How have they been justified by their perpetrators?
    b.  Are they helping or hindering budding political movements?
  3. PAST: Are there any major lessons from U.S. history on when civil disobedience is justified? Do all Americans agree on them?
    a. Has it all depended on the object of the disobedience; i.e., on the morality of the goal? What else has mattered?
    b. Has CD ever worked by itself, unattached to a big political movement?
  4. RELIGION and PHILOSOPHY: What do they say about civil disobedience? When is it justified and within what limits?
  5. LAW/GOVT/YOU/ME: Should the law treat acts of civil disobedience differently from ordinary law-breaking?
    a.  What about when there is no democracy or no way to redress grievances?
    b. Is CD ever morally or religiously required?

SUGGESTED BACKGROUND READING –

Movements involving civil disobedience [CD]:

Justifications:

  • MLK’s Letter from a Birmingham jail, 1963. Highly recommended because notice how he justifies taking direct action.
  • Still, civil disobedience involves many thorny issues. Recommended.
  • Civil disobedience in philosophy. A hard read from the Stanford Encyclopedia of Philosophy.

Problem with + limits to civil disobedience:

Building grass roots political movements

Next Week: Thomas Jefferson and His Legacy.  Jim Z. will guide us!