Tilting at Windmills

That may not be the right analogy for this post, but it just seems kind of right at the moment.

Liberals and progressives don’t like what is happening in this country. So we must …

1. Kill the Filibuster!!! Well, okay, let’s play this one out. We kill the filibuster so we can pass voting rights and legalize abortion (more on this later) and do all sorts of things the liberal fever swamp wants to do and then the Republicans take over the Senate and without a filibuster … they do the exact same thing, only in reverse. And where did that get us? Seriously, the people who are shouting about this are simply incapable of seeing the long game (more on this later).
2. Pack the Supreme Court!!! Well, okay, let’s play this one out. We add six seats to the Supreme Court and fill them with Biden nominees. And then what happens at some point in the future when the GOP controls the Presidency and the Senate and a bunch of vacancies open up. They fill the court with conservative justices and we’re right back to where we started.
3. Pass a law that codifies Roe!!!! Well, okay, let’s play this one out. David Plouffe, one of Obama’s key advisors, just tweeted about this. Lots of supposedly smart people have talked about this too. Plenty of Twitter space is being taken up by people criticizing Dems for not doing this when they had the chance. But … playing this one out, guess what? There is a very strong argument to be made that Congress does not have the authority under the Constitution to pass a law that either legalizes or outlaws abortion. And even if it did, all it would take is for a Republican Congress to pass a law outlawing abortion, or the current Supreme Court invalidating the law authorizing abortion.

None of these “solutions” provides any long-term solutions to what the problem is. They are short-term fixes to make people feel good that they are proposing something, and with which to attack Senators and Congressmembers who they think aren’t doing enough. But, they would ultimately do nothing over the long-term. And that’s where the problem with Democrats/Liberals/Progressives lies. Right-wingers have been laying the ground work for the events of this past week for more than 40 years. They have been working towards this for so long and they have laid the foundation to make this happen.

Far too many on the left have slept through those efforts, believing that none of this was going to happen. They are too busy demanding 110% allegiance anything they want and objecting to any Democrat who isn’t willing to toe the line from one side to the other … and throwing juvenile temper tantrums when they don’t get what they want. And our leaders, while the GOP was laying the groundwork at the local and state level, were asleep at the switch, not engaged in the same type of complicated, hard work to maintain a base and power where it matters. The GOP has played the long game for decades while Democrats look at today and tomorrow and just think the future will take care of itself.

They dominate in enough states that they have a national presence that outweighs the actual votes they get. I saw somewhere recently that 40 million more Americans have voted for Democratic Senators than for GOP Senators. The numbers are not quite as stark in Congress, but more people across the country vote for Democratic Congressmembers than GOPers. And yet, here we are. The Senate is split 50/50 and the Dems have a razor thin margin in the House. Meanwhile, in some of the “red states” more votes are for Ds than for Rs, but the Legislatures and Congressional representation are dominated by the Republican Party.

Why?

It’s simple. Obtaining power and then preserving it through gerrymandering and playing to the electorate’s fears. The Republicans have mastered this in a way that Democrats can only dream of. Fear crime, fear immigrants, fear economic stability, fear, fear, fear. And people keep falling for it, giving the GOP power that exceeds the actual support for their policies. And once they get the power, they use the tools available to them to further chip away at the rights and policies that most Americans want and support.

Here’s another example of the problem, while Democrats and liberals and progressives focus on the impact overturning Roe has, the conservative justices and their allies are doing something far more sinister than just overturning Roe. As I’ve written in my last couple of blog posts, they are completely changing the way these types of cases are analyzed, in a way that will change fundamentally what rights survive and what rights don’t as long as they remain in the majority. They are not just overturning Roe, they are completely re-ordering constitutional analysis in way that will benefit their view.

And what do they want? I’ve become convinced that they want to destroy the New Deal and its progeny that created a society and government that worked for more people than before the Depression. I’ve become convinced that they want to return to the Gilded Age and the Roaring 20s, when the rich could do whatever they wanted and everybody else was lucky to get table scraps. They want to return to an age when the federal government did virtually nothing to ensure the health and welfare of its citizens, and individuals were left to the whims of tycoons and state governments that were in their pockets. They want nothing more than to return this country to the way it existed more than a century ago.

I’ll say it again. The way to combat this and to defeat it is to vote and vote and vote. To regain the levers of power at all levels of government and to use that power to prevent a return to the dark ages that existed at that time. The solution is not to focus on ideas that are pipe dreams and that don’t afford any kind of long-term solution.

More Thoughts

(I may have a number of posts on this in the days ahead as I get my head around these things. Maybe not. Who knows. But anyway, I have more to say.)

In my post earlier today, I ranted about small government conservatives who believe it’s appropriate for government to infringe on what people do in their bedrooms and with their bodies. In this post, I’m going to focus on the concept or states’ rights and how that interplays with the constitution itself and the issue of privacy.

Many conservatives have attacked Roe v. Wade and other cases that rely on the concept of a constitutional right to privacy by arguing that there is no right to privacy to be found in the Constitution. They belittle the concept of the penumbra of the Constitution the Roe court discussed to find a right to privacy. And they insist that these types of issues are reserved for the States to address individually, on their own, and without federal intervention.

The preamble to the Constitution states that the Constitution was established to, among other things, “Secure the Blessings of Liberty.” Numerous elements of the Bill of Rights are based on a concept of individual privacy — the First, Third, Fourth, and Fifth Amendments, at a minimum, are grounded in a concept of privacy and freedom of government intrusion on one’s life. The drafters of the Bill of Rights also included in the 9th Amendment a statement that the enumeration of rights found there “shall not be construed to deny or disparage others retained by the people.” The language of the 9th Amendment clearly establishes that the drafters of the Constitution and Bill of Rights recognized that there were rights held by the people that were not expressly identified, but that they were just as profound as those expressly stated.

And then, after the Civil War, the 14th Amendment was adopted. It too includes the concept of liberty as a foundational principle.

My question for those who believe there is no inherent right to privacy is this: what is the point of liberty if you don’t have privacy? Privacy seems to be such a basic concept within the confines of what the Framers were trying to do. It is inherent in the relationship they were trying to establish between government and the governed. They didn’t include an express right to privacy because they likely didn’t think they needed to.

As a result, it seems obvious that there is a right to privacy that pervades the Constitution and the Bill of Rights and the Framers meant for that right to be fundamental, a backbone of the relationship between government and the people. Otherwise, how does one have liberty?

To me, that right to privacy means individuals living in this country have a foundational right to live their lives as they see fit as long as they are not harming others or society at large. So, government should not intrude on who you sleep with, what you do in the privacy of your home, who you marry, whether or not you choose to have children … on these foundational issues that are being discussed. Marriage, same-sex relationships, contraceptives, etc., the individual right to engage in those activities, between consenting adults, must be free from government intervention if we truly believe in a country of free people with the “Blessings of Liberty.” To suggest otherwise is to destroy the foundational principle of the Constitution.

Which brings us to states’ rights. I asked a conservative commenter over at PowerLine whether he thought there was a right to privacy in the Constitution and, if not, what he thought “liberty” meant. He said that there was a right to privacy, but it was a “state right.” Which, to be honest, I’m still trying to figure out. But I believe what he ultimately meant was that privacy is an issue to be reserved to the states.

Besides small government, this is another foundational issue for conservatives. States should have far more power than they do. The federal government is bad, bad, bad, bad. But, here’s the problem with that construct as applied in this context. Actually, there are two problems.

First, they are living in a fantasy world that ended when the Constitution was adopted. Our country’s initial governing document, the Articles of Confederation, set up the world that they would prefer. A world in which the federal government had virtually no power and almost all power was reserved to the States. But after almost ten years of anarchy, the Framers of the Constitution realized that was an unworkable arrangement and replaced the Articles of Confederation with the Constitution, a document that establishes an unwieldy balance between federal power, states’ rights, and individual liberty and freedom. Under the Constitution, the federal government has far more power than it did under the Articles of Confederation. But ultimately …

Second, the Constitution, as discussed above, establishes a foundational principle of individual liberty, individual rights, and also acknowledges that there are rights that are enumerated that individuals retain and which are subject to protection from government intrusion.

What is the point of a Constitution that establishes those basic principles if they can be tossed aside in some states? How is that commitment to the “Blessings of Liberty” upheld if one state can deny an individual the right to marry who they want, while other states allow for such marriages? How is that commitment to the “Blessings of Liberty” and the concept of unenumerated rights upheld if every time a new right is raised, the response is … “Well, it’s not expressly identified in the Constitution”? If states’ rights advocates had their way (and it feels like they are with the current Court), the promises of the Constitution would only be upheld in states that truly understand the concept of individual liberty and it ain’t the Red States who do. Which raises the question … why bother with a federal Constitution governing the entire country.

*******

Meanwhile, I just had a brief conversation with a friend who wanted to know how the Court could uphold the individual freedom to own and carry a gun, while denying the freedom to abortion. I want to try to address that, and my response will likely be wholly inadequate.

The reality is this. Abortion is not found anywhere in the Constitution. The right to keep and bear arms is right there in the 2nd Amendment. As a result, one has to get to abortion in a different way than guns.

I’m gonna be a little too honest here. I totally, 1000% believe there is a right to privacy that is inherent in the Constitution. I do question though how that right extends to abortion. Whether you agree with it or not, there is a concept that a fetus is a human life. This is far different than the right to same-sex relationships or same-sex marriages or the use of contraceptives to prevent a pregnancy to even start.

Please don’t start screaming at me here. I am pro-choice, as strongly pro-choice as anybody. I believe it is such a personal decision and that government should simply exclude itself from any involvement in this issue. Unfortunately, that is not the world we live in. Unfortunately, I’m beginning to feel like it’s the issue, above all others, that may just rip this country apart.

But, whether one can get an abortion simply is not on the same level as what the 2nd Amendment provides. Because the 2nd Amendment is express. It is clear (sort of). And it doesn’t involve the complicated concept of whether the rights of a fetus or the rights of a woman should prevail. It’s just … difficult.

I get the frustration at guns aren’t an issue and anybody can own and carry one, while abortion will be left up to the states — half of which have pretty much already outlawed it now that the Supreme Court has issued its decision. It seems contradictory. Confusing. But as an attorney, I get that this might make sense if you have the views of the conservative Justices and others who believe what they do. Do I agree with them? Of course not, but I can see the fine lines that create the distinction.

And one more thing … if you are frustrated with the decisions of the Supreme Court this week, there is only one solution, one power, that you have. It is rather simple. Vote and get everybody you know and love to vote as well. It really is that simple. Vote.

What Boggles My Mind

Conservatives are supposed to believe in small government, one that does not infringe on our lives and our rights. And yet, one of their champions on the Court, Clarence Thomas, suggests same-sex marriage, same- sex sex, and contraceptives should be next on the chopping block.

If you really are a small government conservative supportive of the idea that government should not infringe on our lives and our rights, the concept of privacy in our lives and bodies should be paramount. If you believe that the Framers intended for such a small government concept, personal privacy is inherent in that concept and, while not expressly stated in the Constitution, should be considered the backbone of personal autonomy free from government intervention.

Small government conservatives who believe as Thomas does aren’t actually small government conservatives. They are ideologues driven by a narrow view based on religion and what is abhorrent to them. Government to them is supposed to enforce their world view and nothing else. That’s not small government, that’s a religion-based dictatorship.

I Give Up

I wrote recently about guns and the 2nd Amendment and what I felt were reasonable limitations on gun ownership (actually, almost none of my ideas involved limitations, but were instead ideas that regulated the possession of guns, consistent with the language of the 2nd Amendment that refers to a well-regulated militia). I explained how I thought my ideas could withstand judicial scrutiny by a court acting rationally and without a political agenda.

Well … the Supreme Court demonstrated today that they are not acting rationally and they most definitely have a political agenda that is driving their analysis.

The Supreme Court threw out a New York law that required individuals seeking an unrestricted concealed carry permit to, among other things, show good cause for why they should get such a permit. According to the majority decision, “good cause” essentially comes down to a showing of a specific need for self-defense, rather than a generalized need for self-defense. The court held that this requirement was unconstitutional. Which might be fine, but how they went about reaching that conclusion most definitely is not.

As I wrote in my previous post on this issue, for decades, almost 100 years, if not longer, the courts have consistently engaged in a balancing of government interest versus fundamental right when analyzing whether a government infringement on such a right is constitutional. With the most fundamental of rights, the test is strict scrutiny. The government’s interest must be compelling, its remedy must be narrowly tailored to address that interest, and it must be the least restrictive way in which that interest can be addressed. This has been the test for every fundamental right found in the Constitution since at least the 1930s. Without this kind of balancing, without considering the government interest (which is really the public interest), we would essentially have anarchy where individual rights trump the public interest every single time.

So … what did the Court do. They established a test for 2nd Amendment analysis … is the gun restriction consistent with the history of the 2nd Amendment and with the history of gun regulation in this country. There is no balancing test allowed. No consideration of the government interest in enacting the restriction. None. Nada. Zilch. Nothing. The public interest has been eliminated from the calculation.

No, instead, modern day gun restrictions are now only evaluated based on whether they are consistent with history, with what was happening 250 years ago when the amendment was enacted. Essentially, what this means is that there can be no progress on gun restrictions. No movement towards a more rational manner in which we handle the scourge of gun violence in this country.

Several of the Justices who joined the majority decision authored concurring opinions in which they tried to argue that this decision does not do away with other types of regulations related to guns — like background checks, or limits on felons owning guns, etc. The problem with their efforts is that they completely ignore the real impact of the majority opinion. No law, unless it is consistent with history, pass constitutional muster and, for instance, I’m pretty certain there is no historical support for background checks.

It’s the worst decision the Supreme Court has ever handed down on guns. We will now live in a country that, from sea to shining see, from purple mountains majesty to amber waves of grain, will be filled with people walking the streets with guns on their hips or in their backpacks or … well, just right there, in their hands. And it will all be legal, thanks to this Court. We will be returning to the days of the Wild, Wild West. But it won’t be just the West … it will be the entire country.

We won! Won more violence, more death, and more despair.

Sports Talk

I’ve wanted to write about the Golden State Warriors latest playoff run for weeks, but for fear of jinxing it, I haven’t done so. Now that they won another championship, I can get a few things off my chest.

I’ve been a Warriors fan since the 1970s. Just like being a San Francisco Giants fan, that meant decades of misery. I lost a lot of interest in the NBA around 15-20 years ago, when the game became a stand around game, instead of a game of movement and passing. I mean, how many times do we have to watch Lebron dribble the ball down the court, slowly, and then stand and dribble with a defender on him and the other eight players standing to the side, waitin for Lebron to do something. Yes, there was a team here or there who didn’t do this, but most of the league went to this kind of one-on-one, isolation play all too frequently and the game just ground down into a monument to boredom.

The 2014-15 season dawned and a new era began, launched by the Golden State Warriors. They won their first championship in almost 40 years that year, playing a game of movement, passing, teamwork, and shooting never seen in the game before. Steph Curry and Klay Thompson, the Splash Brothers, performed magic on the court to the thrill of their fans.

For me, what this team did more than any other team was bring joy back to the game. And pace. And amazement. But back to that joy. The other thing that drove me crazy about how the NBA had developed was that it became an unhappy game. Players making millions playing a game, spending their time on the court with grimaces on their faces, rarely smiling, while bitching and moaning about every call and non-call.

The 2014-15 Warriors were a team that had fun playing and they showed it. And they won the whole shebang with their movement and shooting and joy at playing the game.

The next year, they won 73 regular season games, more than any team in the history, but lost in the finals. After that season, darkness came to town in the form of Kevin Durant. They won the next two championships with him playing a key role, but the joy was gone. The pleasure of playing the game was replaced with his grimace and scowl. The championships were nice, but the spirit of the team just wasn’t the same.

The made the championship the next year — five years in a row, and lost again. Injuries didn’t help, but that’s no excuse. Three championships in five years. And the wheels fell off the bus.

One injury was to Klay Thompson. He ended up spending more than two years away from the court with two different major injuries — achilles heel and a knee. Steph Curry went down with a season-ending injury early one of those injuries. The Warriors had the worst record in the game just a couple of seasons ago.

But they stuck with their core, added a few players through trades and the draft and role players through free agency, and kept plugging along.

When this season started, I had no idea what to expect. Thompson was still a mystery. What would he do when he returned after those two years off. Curry was getting older. So was Draymond Green. There were a few younger players that needed to play key roles but had been relatively untested. And there’s the fact that no player on the team is taller than 6’9″, which just seems so dysfunctional for a contending NBA team.

They raced out to the best record, than a couple of injuries slowed them down and Thompson’s return confused things for a bit, but by playoffs, they were relatively healthy and whole. Four playoff series done, they won against the Celtics Thursday night. Of all the teams in the East, the Celtics were the ones I feared the most because they were balanced with multiple weapons, played really good defense, and just seemed to be a match for the Warriors. Well, not this year.

Which brings us to the point I wanted to make. All of the naysayers and critics are coming out of the woodwork now. Criticizing the Warriors for being a team that money bought. One well-known sports journalist called their Game 5 win against Boston a “checkbook” win, meaning they won the game because they have the most expensive roster in the NBA. Which is true. They do. All told, including the tax they pay for how large their base payroll is, the Warriors spent $340 million for their payroll. But … did they do anything illegal to do that? No. They followed the rules and were willing to spend what it takes to win a championship.

Here’s the other thing though … they didn’t do this the way people usually criticize sports teams for. They didn’t spend a lot of money on free agents, luring them away from small market teams, and stocking their roster with players who will come in for a couple of years before heading off to a greener pasture. Yes, they did that with Durant. But that’s about it. Curry — drafted and stuck with the team. Thompson — drafted and stuck with the team. Green — drafted and stuck with the team. Looney — drafted and stuck with the team. Wiggins — acquired in a trade when, apparently, the rest of the NBA had lost interest in him. Poole — drafted. The only free agents on this team are role players like Gary Payton II, who the NBA had also lost interest in, but who has thrived on the Warriors. Andre Igoudala, the 2015 Finals MVP with the Warriors, who left for a couple of years before returning this year.

What the Warriors have done, unlike almost every other NBA team, is create an environment where players want to stay. The only team I can think if that comes close to the level of stability they’ve demonstrated over the last ten years is the Spurs. I can’t think of any other team that was able to draft, pay, and keep multiple superstar players through multiple contract extensions and renewals. This is what the Warriors have done — not open their checkbook to any player that wants to come to the team. They’ve drafted well, traded well, and filled their roster with guys who want to be there, who want to play the game the way the Warriors want it played, and the success of that system is apparent. Here’s hoping the Warriors keep this roll going through another generation of players — Poole, Wiseman, Kuminga, and Moody — as Curry, Thompson, and Green continue to age. And it won’t be checkbook sports success, it will be a system success and a personnel success.