Useful Blog Post for Provoking Critical Thinking about Civil Liberties

I find Radley Balko’s blog, The Watch, to be a generally useful source of materials for discussing current events pertaining to civil liberties. The fact that his blog is highly opinionated is, in my view, an asset insofar as discussion questions encourage students to critically evaluate his perspective. But at the end of 2014, Balko offered an especially useful post entitled “Horrifying Civil Liberties Predictions for 2015.” The entire post reads, as the title would suggest, as a set of predictions for 2015, but it is actually a roundup of the stories and developments chronicled on The Watch in 2014. I would think this is a wonderful way to get students thinking about civil liberties.


State-Law-Abiding Citizens Facing 10 Years in Prison for Violating Federal Marijuana Law

Nicole Flatow reports:

More than six months ago, the U.S. Department of Justice once again changed its position on marijuana. In the wake of Washington and Colorado laws legalizing recreational marijuana and the proliferation of medical laws, the agency that oversees federal prosecutors called on its U.S. attorneys to avert prosecution of those growers and distributors complying with state law.

U.S. Attorney General Holder also decried the impact of mandatory minimum drug sentences, and directed his prosecutors to avert them in non-violent drug cases — even cases already pending. But in a case set to go to trial next week, federal prosecutors in Washington will seek a ten-year mandatory minimum sentence against a family of individuals with medical marijuana cards who say they were growing marijuana for their own use… (read the rest at ThinkProgress)

A Sobering Thought about NSA Spying

Alex Tabarrok of Marginal Revolution offers an alarming answer to a provocative question:

Did Obama spy on Mitt Romney? As recently as a few weeks ago if anyone had asked me that question I would have consigned them to a right (or left) wing loony bin. Today, the only loonies are those who think the question unreasonable. . . . Do I think Obama ordered the NSA to spy on Romney for political gain? No. Some people claim that President Obama didn’t even know about the full extent of NSA spying. Indeed, I imagine that President Obama was almost as surprised as the rest of us when he first discovered that we live in a mass surveillance state in which billions of emails, phone calls, facebook metadata and other data are being collected.

The answer is yes, however, if we mean did the NSA spy on political candidates like Mitt Romney. Did Mitt Romney ever speak with Angela Merkel, whose phone the NSA bugged, or any one of the dozens of her advisers that the NSA was also bugging? Did Romney exchange emails with Mexican President Felipe Calderon? Were any of Romney’s emails, photos, texts or other metadata hovered up by the NSA’s break-in to the Google and Yahoo communications links? Almost certainly the answer is yes.

Did the NSA use the information they gathered on Mitt Romney and other political candidates for political purposes? Probably not. Will the next president or the one after that be so virtuous so as to not use this kind of power? I have grave doubts. Men are not angels. [Keep reading]


Does the Filibuster Prevent “Tyranny of the Majority”?

Richard Arenberg of Brown University criticizes those who contend the filibuster is “undemocratic and unconstitutional.” According to Arenberg, “‘the possibility that senators elected from 21 states that may contain as little as 11 percent of the U.S. population [can have] an absolute veto power over bills, resolutions and presidential appointments supported by senators who represent 83 percent of the people of the United States'” is not necessarily alarming and certainly not unconstitutional. Those who suggest otherwise, he continues, “misrepresent . . . the founding fathers’ design of the Senate.”

 The founding fathers greatly feared the “tyranny of the majority” – and they created the Senate to avoid what they deemed the rule of the mob.

The Senate was the result of the “great compromise” at the 1787 Constitutional Convention, which shaped the body to represent the states. Each state has two senators regardless of its population size – an idea so important to the framers that the Constitution in Article V requires that “no State, without its consent, shall be deprived of its equal suffrage in the Senate.” Therefore, changing the Senate’s composition would, in effect, require unanimous consent of the states, not the usual three-fourths needed to ratify a constitutional amendment.

With two senators representing each state, the idea that a Senate majority must somehow reflect a majority of the population is simply wrong. [More here.]

Mathew Yglesias of Slate Magazine responds:

. . . The whole thing hinges on the idea that filibustering defends minority interests and prevents the “tyranny of the majority.” But this is simply wrong. The problem of the tyranny of the majority is the problem that minority groups in society might see their interests trampled. But protecting the interests of the political party that lost the last election doesn’t achieve this goal.

Most people aren’t Jehovah’s Witnesses, and . . . you might see a proposal to trample on Jehovah’s Witnesses interests by banning them from knocking on doors. In this case, the filibuster would defend the interests of a minority group because it makes it harder to pass laws.

On the other hand, most people aren’t gay and some straight people think gay sex is immoral, so gay people may be subject to discrimination in employment and other venues. You might see a proposal to advance gay interests by banning employment discrimination on the basis of sexual orientation. In that case, the filibuster harms the interests of a minority group because it makes it harder to pass laws.

Which is to say that making it harder to pass laws simply makes it harder to pass laws. It has nothing in particular to do with majoritarianism or minority interests or anything else. It’s a status quo measure. To the extent that you think the status quo is great, then maybe you love a 60 vote threshold. Maybe you think it should be raised to 65 or 75 or 95. Or maybe instead of a bicameral legislature we should have a four-chamber legislature. It’s easy to think of new ways to make it harder to change the laws. But that’s the issue. Making it hard to change laws systematically preserves the advantages of whatever groups are advantaged by the status quo.


Should / Can we Amend the Constitution to Fix “The Biggest Problem in Politics”?

Ari Joseph offers an interesting proposal: amend the Constitution to outlaw private money in public elections.

Questions to ponder:

(1) Is the author correct that there is actually a problem here to be solved? That is, is the system actually tilted toward the “haves” and against the “have nots”? Is this an altogether bad thing? Is there anything to be said in favor of such a system? Conversely, does the author understate the problem? That is, is the system actually more corrupted and/or unrepresentative than suggested? Explain.

(2) If we could wave a magic wand and pass this proposed amendment, how much more representative of lower and middle class income Americans do you think the system would become? Or would it make no difference or even make the system less representative of those economic classes? Explain.

(3) If the “rules of the game” are presently tilted toward the interests of the few, how could a political movement successfully alter those rules so as to make a more even “playing field”? (And if such a political movement could gain that much power, would the amendment then still be necessary?) Explain.

(4) The author suggests that the elimination of private money from politics would be something of a panacea for all the ills of American democracy. Do you think the author is correct in favoring that particular reform, or are there other reforms — e.g. automatic registration, compulsory voting, proportional representation, reforming the nomination process, elimination of equal state representation in the Senate, elimination of the electoral college, moving from a “presidential” (separation of powers) system to a parliamentary system — that would be more likely to fix the problems pointed to by the author? Explain.