The Constitution is not a Suicide Pact – Part II

I’m reminded this morning, listening to Pete Dominick on Sirius 104, that another suicide pact issue is the free speech/campaign finance law conundrum.  Maybe it’s not really a conundrum, the rest of the world doesn’t treat it that way, only so-called free speech absolutists, like the Fab 5 on the Supreme Court, who actually find that free-speech is really quite limitable for poor people, just not for rich people.

Constitutional law professor Erich Segal commented, often, that the Citizen’s United decision is a “unique” view of campaign finance limits.  Perhaps he also meant that the equation of money and speech itself is unique. It’s all so unique and HORRIBLE FOR DEMOCRACY!  The execrable Will Cain was arguing in favor of free speech for all (businesses) with his usual libertarian nonsense (miming a jacking off motion) that takes a theoretical approach to aspects of life that do not require theoretical approaches.  We live here in the actual 3D real world – we have long historical experience with money corrupting politics, ALWAYS!  We have empirical evidence that the Citizen’s United system is just legalized bribery in which the people with the money to spend on campaigns have all the access to the politicians as well as the means to buy and hijack media.  We can study the history of the Copper Kings, the trusts, the selling of Senate seats before the 17th amendment, etc, etc. etc.  We don’t need theories.

And it’s so transparent because nobody who advocates for the confluence of money and speech believes that you can shout “fire” in a crowd.  They intellectually believe that society has an interest in limiting speech in the case of libel and fraud and other uses of speech that are clearly deleterious to life, limb and especially money.  But rich people should not have their “speech” limited by law.  They earned it and they know better.

That’s where this really comes from.  It’s not at all an effort to defend the 1st amendment from those who would sacrifice it for squishy, granola eating “good government” reasons. It’s a continuation of the old Federalist aristocracy-centered government when people believed that the men with money should have more say about things because they clearly knew more and God had smiled on them.  

Because in a real democracy Joe Shmoe with $20,000 in the bank should have as much ability and right to run for office as Thurston Howell III.  But as we all know, when Joe Shmoe walks into a party office and they ask him how he would finance his campaign and he says “Well I’ve got $20,000 but people like me and Ill work really hard to shake every hand and kiss every baby” he would have his posterior kicked out of the office right after he said “$20,000”.  Meanwhile across town billionaire Thurston, despite being a low grade moron, will have been recruited to run for office so that they can use his check book to win a seat. 

To think that the 1st amendment means that we have to just throw our hands up in the air and say “what are you going to do?” and shuffle away from addressing the problems in our democracy is insane.  Or as Will Cain said this morning “the answer is always more speech.” Which oddly enough is also the NRA’s answer to violence:  more guns!.  

The Constitution is not a Suicide Pact – unless you choose it to be

That construction has several fathers (Jefferson, Lincoln and Justices Jackson, Goldberg, Posner) but I think Jefferson’s is the best for illustration purposes. He wrote this when the constitutionality of the Louisiana Purchase was questioned (sounds awfully tea party to question the constitutionality of the Louisiana Purchase doesn’t it?):  

“[a] strict observance of the written law is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to the written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the ends to the means.”

Essentially, while the law is good, if following it would threaten life, liberty and property then choose life (to mix Jefferson and Frankie Goes to Hollywood for the philosophical win!).

The right and left both observe this on different issues.

Regarding the threat of Islamic terrorism the right have gladly thrown the 1st, 4th, 5th, 6th, 7th & 8th under the constitutional bus.  Overall, as Jon Stewart has illustrated, their dedication to the Bill of Rights seems rather spotty except for the 2nd amendment and the 10th. Pretty sure they’d hate the 3rd too if it was at all relevant.

To be fair to their argument, Islamic terrorists (but not Christianist terrorists, ok, not that fair to their argument) are such a threat (a noun, a verb & 9/11) that almost anything we do to protect the homeland is okay under Jefferson’s construction. And if the individuals in question are not even American citizens, like those under indefinite detention at Gitmo, then what are we even talking about? Lindsay Graham and neo-cons engaged in anti-Islamic jihad will move heaven and earth to prevent any more high body count tragedies like 9/11, or even low body count tragedies like the Boston Marathon.  No American should ever be killed by a Muslim anywhere and we’ll send our armies anywhere to die for that principal.

The left uses the construction to attack adherence to the 2nd amendment, believing generally that even if you don’t believe the entire amendment is an anachronism, the “well regulated militia” part as well as common sense should allow great latitude in gun/firepower control. The 2nd amendment does not allow for limitless availability to ordnance, automatic weapons, semi-automatic weapons, military style weapons, teflon coated bullets, high capacity magazines, etc. etc. etc. The protection of life against the criminal and the insane should allow states and localities to decide what gun control provisions make sense to them.

So it’s just a matter of what threat motivates you, gets under your skin, speaks to your fear.

But fear is irrational unless there is concrete threat. Statistics that back up your fear. And the numbers here are not squishy.  


Number of Americans killed in domestic terrorist attacks, 2002-2011: 30. Hey even if you go back a year and include 9/11 it’s still around 3,000. But if you go back to 1980, 1970, it’s still around 3,000. It just doesn’t happen very much and if not for that one day in 2001 it would be such an anomaly that more people drown in the U.S. every year (around 3700) than were killed by terrorists in 40 years.

Number of Americans murdered by firearms, 2000-2011: 115,997.  Since 1980 it’s over 900,000 Americans killed by gun violence.  In 2010 (a typical recent year, unfortunately) there were 31, 672 injuries by firearm, 11,078 murders by firearm, and 19,392 suicides by firearm.

So with the vast disparity in numbers it’s clear what the very serious people who rule us would choose as their priority, right?  It can’t even be close, right? Yeah, no, it’s not. There’s a 1000 – 1 spending gap on terrorism vs. gun violence.  Andrew Cohen, in the Atlantic even before Newtown asked: 

My question now is simple: Why do we spend at least 1,000 times more money protecting ourselves from terrorism than we do protecting ourselves from gun violence? I’m not necessarily suggesting that we spend less on anti-terrorism programs. Like everyone else, I am grateful there have been no mass casualty terror events since 9/11. I’m just wondering, instead, what possible justification there could be for spending so relatively little to try to reduce the casualties of gun violence.

Surely the Second Amendment alone — and the United States Supreme Court’s recent rulings in District of Columbia v. Heller and McDonald v. Chicago — cannot explain this contrast. Our government has asked us consistently since 9/11 to sacrifice individual liberties and freedom, constitutional rights to privacy for example, in the name of national security. And we have ceded these liberties. Yet that same government in that same time hasn’t asked anyone to sacrifice some Second Amendment rights to help protect innocent victims from gun violence.

Hard to understand why we have such a disparity in our political view of where the danger is. As the Guardian noted:

It is a surreal and difficult-to-explain dynamic. Americans seemingly place an inordinate fear on violence that is random and unexplainable and can be blamed on “others” – jihadists, terrorists, evil-doers etc. But the lurking dangers all around us – the guns, our unhealthy diets, the workplaces that kill 14 Americans every single day – these are just accepted as part of life, the price of freedom, if you will. And so the violence goes, with more Americans dying preventable deaths. But hey, look on the bright side – we got those sons of bitches who blew up the marathon.

Like most head scratchers in the political sphere the answer is to follow the money. Nobody ever lost an election by demagoguing against foreign evildoers. While actual safety is not all that motivating a factor to Americans given the real threat of guns, climate change, high fructose corn sugar, ammonium nitrate, etc.  In every case there is a lobby that stands to lose money, whether it’s the defense and security industry, the gun industry, the fossil fuel industry and the corporate food industry.

So I suppose, perhaps naively, that if the money were taken out of politics we would suddenly find our priorities actually making sense. Which is also not rational, but I believe it nevertheless.

Food Revolution Summit April 27-May 5

Looks like a great resource for nutrition news and apparently it’s all online.  So you can hear great speakers, learn stuff, be empowered to control your health and be sitting in your underwear on your couch.  What could be better?  

Go to and register to view talks by great food people like Dr. Dean Ornish, Dr. Mark Hyman, Mayor Cory Booker, Mark Bittman (NY Times), Dr. Joel Fuhrman.  Sustainability, nutrition, healthy eating, growing, the whole shmear.

I wrote “shmear”. Makes me think of bagels. NO BAGELS! I’ll go get a salad, don’t worry I’ll get over it. 

Hearing on long term unemployment not well attended by elected representatives

I’m told there was a special on soup today in the cafeteria.  Too bad the 4.6 million folks who have been unemployed for more than 27 weeks couldn’t partake. Only Sen. Amy Klobuchar (D-MN) attended the entire hearing. Sen. Chris Murphy  (D-CT), and representatives John Delaney (D-Md.) and Elijah Cummings (D-Md.) ultimately showed up. Out of the 19 member Joint Economic Committee, just 4 could be bothered. 

Surprise – More Solar Jobs than Coal Miners – in America. Yeah, This America!

There are more solar energy workers in Texas than there are ranchers. In California, they outnumber actors, and nationwide, America has more solar workers than coal miners.

Check out the chart to see how many people in your state are employed in the solar industry making cheap, clean electricity.  And watch out for those solar spills!

Imagine if our government got out of the oil and coal business just how much progress we could make.

The “Tyranny of the Minority” is a lot more real than the opposite in the U.S.

54-46 means the 54 lose. Even casual sports fans get that there’s something wrong there. Anybody with basic math skills or possibly the entire population of 3 year olds who have casually watched Sesame Street would look at that and puzzle. Then you add in that the 54 represented the opinions of 90% of the country, and… they… lost! and it’s even more crazy making. But it goes further.  There’s an institutional problem here.

Yes, the drafters of the Constitution were very nobly interested in protecting the rights of minorities and that has been one of the things that made our democracy so great. It’s worked more in theory than in fact, but still, on paper (that paper called the Constitution) it’s still one of those things that Madison, Jefferson, Hamilton, Adams, etc. got right. But the inability of a majority to actually rule has reached a ridiculous state. The Senate is in a state of dysfunction that makes the Lohan family took like the Brady’s.

Despite broad support from the American public, the bipartisan Manchin-Toomey amendment to extend background checks died in the Senate, six ‘ayes’ short of the 60 votes needed to overcome a Republican filibuster. But party divisions were only one reason why the gun vote failed. More important was the institutional structure of the Senate itself, which by its very design (two senators per state) gives disproportionate representation and political power to small populations in large, rural states.


That map and Ezra Klein’s Wonkblog makes the case that the background check bill failed because “the Senate is wildly undemocratic.” The filibuster was not in the Constitution, it came about several decades later, but the idea of two senators per state,no matter how large or how small was part of the bicameral bargain hammered out over cheesesteaks in 1789. At that time Virginia, the most populous state was 12 times larger than Rhode Island, the smallest state. Today California is 66 times the size of Wyoming, but still have the same number of Senators! The Senate is 5 times less proportionate that it was at the founding.

Drill down into the numbers more and you have a mind boggling disproportionality of representation noted by Cohn and Kingsbury in the New Republic:

And the supporters’ majority was even bigger than it seems. If you assume, for sake of argument, each senator represents half of his or her state’s population, then senators voting for the bill represented about 194 million people, while the senators voting against the bill represented about 118 million people. That’s getting close to a two-thirds majority in favor of the measure.

And again, those are just the numbers representing representation. This doesn’t count that 46 Senators voted against something that majorities supported in their states. There is no poll that had ANY state underwater in backing the expanded background checks.  

So there’s the practical everyday question of how do we overcome the gun lobby and the cowardice of so-called “representatives” to vote scared. As Gabby Giffords noted in her NY Times op-ed. these 46 Senators ran away from what they perceived as danger rather than doing what heroes do, what great Americans have always done and run towards it for the benefit of our fellow citizens.  2014 has to be a year when the cowards, the NRA toadies, are shown the door and people more dedicated to the will of the people (on ALL issues) are elected. But what can we do to make our government more representative on the macro level given the evolving disproportionate nature of our government today?

Is it enough to get money out of politics?  Would all 100 senators from all 50 states vote their constituents’ interests then? Maybe. But factionalism and regional interests that were a huge issue in 1790 have only been exacerbated by time. If Virginia had been 66 times larger than Rhode Island at that time their representatives in Philadelphia would have been insane to agree to such an equalization of their rights as 2 senators each and reliance on the population driven House of Representatives.  How do we evolve our system to better represent us?

To do nothing while others are in danger is not the American way.

Important News on Discharging Student Loan Debts in Bankruptcy

Now don’t go running off to file bankruptcy, but…

Student loan debt is exploding but is virtually impossible to get discharged in bankruptcy. But a case in the 7th Circuit may have made some progress on this issue. The problem is that the standard for discharge has been the so-called “Brunner Test,” which requires:

  1. The debtor cannot maintain, based on current income and expenses, a minimal standard of living for the debtor and dependents if forced to pay off student loans;

  2. Additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans; and

  3. The debtor has made good faith efforts to repay the loans.

In a case (Susan M. Krieger v. Educational Credit Management Corp, 7th Cir., 2013) that went to the 7th Circuit, they found that the Brunner Test was too harsh and that like any debt the test should be an “undue hardship” rather than the difficult standard of Brunner. On April 10, 2013, the Seventh Circuit reversed the District Court decision and reinstated that of the Bankruptcy Court that ruled in Krieger’s favor.  

Susan Krieger was a destitute 53 year old who had spent 11 years paying off loans taken out to take paralegal courses. She never found work as a paralegal and had quite little income or prospects. The Bankruptcy Court found that her student loan should be discharged. The District Court used Brunner to reverse. But the 7th Circuit took a more sympathetic view. 

If you have excessive student debt this case could be a step forward to help.

The Chief Justice’s opinion:

Background Checks Filibustered 54-46, Boy Did You Mess Up Guys

Get it straight, it didn’t lose, it was filibustered. By procedure demanded by the Republicans it had to reach 60 votes to pass.

So 54 (actually 55, Reid had to vote against for procedural reasons) Senators voted to extend background checks and 45 elected United States Senators decided that they could not support even this tiny common sense measure supported by about 90% of the public.

“Shame on you!” shouted two women in the gallery after the vote. One was Virginia Maisch, who grabbed the third clip from the gunman who opened fired at then-Rep. Gabby Giffords in the Tuscon., Ariz., shooting in 2011. The other was Lori Hass, whose daughter was injured in the Virginia Tech shootings six years ago.

Four Democrats voted no. Begich – Alaska, Pryor – Arkansas (a poll has 72% in that state supporting the measure), Heidkamp – N.D., and Baucus – Montana. I don’t have polling in the other 3 states, but I bet they’re not that far off Arkansas and the rest of the nation. These four Senators are betting that the NRA will help them in their next election more than pro-gun control forces will hurt them. I think they bet wrong.

My prediction: another tougher bill will be on the floor within 6 months and it will pass because the pressure will continue to build and gather committed activists. 

This has just begun.

Update: Have to wonder if any of the “nos” today would have been changed if the bill had any chance of passage in the House. It didn’t, so it was easier for many to just go with the NRA on it.

This is relevant because it’s going to be hard to change the Senate dramatically. Begich, Pryor and Heidamp will struggle for re-election no matter what. Baucus can be reelected as long as he wants to. There are only a couple more GOPers in blue states like Ayotte or Toomey (whose bill it was). But the House can go blue in 2014 and then things become more possible even in the Senate.

Expanded Background Checks – Sen. Manchin just realizing NRA has no credibility

Feels like a surreal alternate reality, but yeah, the NRA has zero credibility Joe. Tell your fellow Senators.

Manchin later criticized the NRA, of which he has been a lifetime member with an “A” rating. “Now when when they are so disingenuous and telling members that our legislation, and I quote, ‘would criminalize the firearms by honest citizens,'” he said on MSNBC’s “Morning Joe.” “This bill does not even touch …”

“That’s a lie,” MSNBC host Joe Scarborough interrupted.

“It is a lie, Joe,” Manchin responded. “If they lose credibility, they’ve lost everything in Washington.”

Newtown figured this out, Aurora figured this out, Virginia Tech got it. America pretty much gets it. How is it that our elected representatives are the slowest people on the uptake of the duplicitousness and doubledealing of lobbyists? Could it be THE MONEY? Geez!

Tens of millions to receive substance abuse help under Obamacare

Can we end the war on drugs tomorrow? Please? Stop spending billions on failed interventionist policies, decriminalize marijuana and tax it, treat addiction like a health problem, not a law enforcement problem. There are so many wins there in that sentence – win, win, win, etc. It’s literally insane that we can’t get over this national brain fart. So many lives in this and other countries can be saved and improved.

The Raw Story details one of Obamacare’s many positive but rarely publicized aspects when fully implemented in 2014:  better substance abuse help.

“This is probably the most profound change we’ve had in drug policy ever,” Michael Botticelli, deputy director of the Office of National Drug Control Policy, told the AP. “We know one of the most significant reasons for the treatment gap is folks who don’t have insurance or who have an inadequate coverage package for substance use disorders.”