June 1, 2010
The Supreme Court and Defendant Rights

The Supreme Court handed down a 5-4 ruling today (Berghuis v. Thompkins) saying that people under arrest must claim their right to remain silent in order for it to be enacted, much as they must request a lawyer in order to access the right to representation. Some see this as an assault on defendant rights and civil liberties, one of the principle legacies of the Warren Court.

Is it? New justice Sonia Sotamayor believes so, as she laid out in her spirited dissent (pdf - dissent starts on page 24):

Criminal suspects…will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so. Those results, in my view, find no basis in Miranda or our subsequent cases and are inconsistent with the fair-trial principles on which those precedents are grounded.

The ruling seems to be common sense: No one is forced to speak, but to end an interrogation, the person being questioned must say that he or she is choosing to remain silent. After that, the police can no longer pursue questioning.

But the ruling is not a nod to common sense, but rather a move away from defendant rights. What it does, essentially, is create a new requirement for people being questioned by the police, putting the responsibility on the individual rather than the state to assert a right. Therefore, it requires people to be aware that such is their responsibility. Who’s least likely to be aware of this responsibility? The poor, the undereducated—i.e., the people most likely to be arrested in the first place, and those who make up the highest proportion of prison populations.

At the very least, this change should require a change to the Miranda warning, one that requires the police to spell out what a person charged with a crime must do in order to stop an interrogation, access legal counsel, etc. Will such a change occur? At the moment, it seems unlikely. The Warren Court protections of defendant rights, which include Griffin v. Illinois (1956), Gideon v. Wainwright (1963), and Miranda v. Arizona (1966), have been under assault on the national level since at least 1968, when Richard Nixon’s “law and order” campaign posed the protection of defendant rights as the coddling of criminals. The attacks would continue under Reagan, best embodied by the Willie Horton commercial, which is often analyzed for its racist implications but is as important for its portrayal of Democrats as soft on crime.

The rollback of the Warren Court rulings is increasingly important because the number of Americans in prison has exploded since 1980, reaching 7 million in 2006. According to the Washington Post, that’s one in every 32 Americans in prison, giving the U.S. the highest incarceration rate in the world.

(Source)

With so many Americans facing arrest and imprisonment, as a nation we have a responsibility to ensure that everyone understands their rights and responsibilities, and must err on the side of protection rather than restriction. Incarceration, after all, takes away the most fundamental of rights—freedom—and as such defendant rights require the most stringent safeguards.

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May 5, 2010
Off to the Miller Center

I’m heading off to the Miller Center of Public Affairs for what should be a rousing fellows conference. Nothing better than a few days in Charlottesville.

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May 1, 2010
Exxon and the Oil Hazard

Twenty-one years ago, the Exxon-Valdez oil spill in Prince Williams Sound, Alaska, brought home the environmental dangers oil drilling and transportation posed. Striking images of rescued and wasted wildlife brought the costs home to Americans who might not mourn the lost krill and algae but were drawn to images like this pair of tarred otters:

Source: Anchorage Daily News

The spill in the Gulf is not really comparable to the Exxon Valdez: It is orders of magnitude worse. The fragile coastal ecosystem, the region’s fishing and shrimping industry, the variety and abundance of wildlife affected, the unlimited source of oil flooding into the lush Gulf waters—all these mean more Americans will feel the impact of the spill, and the environment will be more damaged.

Politically, too, the effect will likely be greater. The Exxon spill resulted in the limited Oil Pollution Act of 1990, aimed at keeping Exxon out of the region. But no systematic regulatory reappraisal followed. The costly new spill makes that more likely (but by no means assured). 

The other political ramification, of course, has to do with offshore oil-drilling in the U.S. Yes, President Obama has opened the door for more drilling in the past year, but on the whole, this is a bigger problem for Republicans, who spent much of 2008 chanting “Drill, Baby, Drill.” The new response, “Spill, Baby, Spill,” is much more likely to benefit Democrats (as conservatives like Jonah Goldberg have admitted).

Complicating all that is the real need for energy alternatives and independence. Having lectured Thursday on the energy crisis of the 1973, I’m reminded how little control the US has over its energy supply and how crippling that lack of control can be to the American economy. The answer, however, is the same as it was then: Consume less. Live within limits. Move away from a petroleum-based economy.

The problem remains the same as well. Americans today are no more likely to embrace that message than they were thirty-one years ago.

(For an extensive collection of primary sources related to coverage of the Exxon-Valdez spill, check out Hard Aground from the Anchorage Daily News.)

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April 23, 2010
Sedition and the Tea Parties

From my piece in today’s Christian Science Monitor:

Sedition. The word is all the rage as the nation commemorated the 15th anniversary of the Oklahoma City bombing this week amid tumultuous times: a historic recession, massive deficits, nationwide “tea party” protests. As memories of the domestic terror attack resurface, critics of those tea party protests have shifted the debate from “racist or not?” to “seditious or not?”…

In a democratic country dedicated to freedoms of speech and press, sedition – inciting rebellion against the state – presents a conundrum. Where does legitimate, protected opposition end and sedition begin?

Read the rest here.

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April 22, 2010
Populism and Wall Street

POPULISM, 1890s

“The West and South feed the country while Wall Street milks it,” c. 1890 (source)

POPULISM, today

East Village Tea Party protest, April 22, 2010 (source)

A number of stories have come out commenting on the lack of Tea Party antagonism toward Wall Street reforms. But anti-reform sentiment has popped up in conservative media of late. The above protesters could be anomalies or they could be harbingers of things to come. Time will tell.


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April 21, 2010
The Battle of the Bulge

Marc Ambinder at The Atlantic today looked at a statement from a group of ex-generals (pdf) who worry that young Americans are too rotund for the Armed Forces. In particular, these generals warned that stuffing kids with crappy food makes for substandard troops. Ambinder suggested that such the argument—linking obesity to weaker national security—may help advocates of improved nutrition in public school lunches and other anti-obesity initiatives coming from the government.

Ambinder’s on to something. There’s certainly a precedent for using national security to prompt the government into action on health programs. In 1921, Warren G. Harding—the first of a string of conservative Republican presidents—signed into law the Sheppard-Towner Act, which historians have called “the first federally funded health care program” in the U.S.

A number of factors led to the the passage of the bill (the work of the Children’s Bureau, newly-established woman suffrage), but part of the Congressional debate revolved around World War I. Some 30% of draftees proved to be unfit for service, due in large part to poor diets and childhood disease.

Lousy health care, it turned out, led to lousy soldiers.

Now, Sheppard-Towner was no SCHIP. The bill provided federal funds to the states to set up centers for prenatal and children’s health, and was defunded in 1929. But the debate over the bill showed how national security concerns could help win support for a welfare bill and shape government policy toward children’s health.

The argument itself is a little creepy: Feed the children so they can fight. But it has as its root concern for the health and well-being of children, many of whom could use more nutritious school lunches and better health education. If the ex-generals can help advance that goal, then I’m on board.

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April 20, 2010
Goldwater’s All-Purpose Tonic: The Non-Taxic, Magic Cold War Remedy

Goldwater Defoliation Tonic

A Balm for Boils, Burns, Bruises, Bigots, Birchers & Buckleys (source: CONELRAD)

I’m lecturing on Goldwater and the emergence of modern conservatism tomorrow, which seems appropriate given the regenerated debate about extremism on the right and responsible vs. irresponsible conservatism. Oh, how William F. Buckley, Jr. roiled over being lumped with the John Birch Society (now making a bit of a comeback).

The lecture also gives me a chance to break out my elephant-wearing-Goldwater-glasses campaign pin, my favorite of the pins graciously given out by the Arizona Historical Foundation at last fall’s Goldwater at 100 conference. And play the Daisy commercial, a model for anyone wanting to save on ad buys by turning their provocative commercials into media events.

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April 19, 2010
Rush Limbaugh: Nostalgia and Hypocrisy

Rush Limbaugh is nostalgic for the 1990s.

In the 1990s, his was the only show in town. His name was synonymous with talk radio. There was no Sean Hannity, no Glenn Beck, no Laura Ingraham, at least not on the radio dial. There was a conservative insurgency, a government shut-down, impeachment hearings, and Limbaugh was pretty much the only game in town. He considered himself the voice of the “vast right-wing conspiracy.”

But things have changed. There are nationwide protests associated with conservatism, but look around: Where is Limbaugh?

Read More

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April 18, 2010
Taxing Problems

Everyone’s talking taxes, thanks to the T.E.A. parties (taxed enough already, despite paying lower taxes that many of them consider fair) and massive deficits that need addressing. I’m working on a piece that will either become an op-ed or a post, but in the meantime, this presentation by the Miller Center on presidents and tax policy is a great resource to hear how presidents have sold their tax policies over the last 50 years (including Gerald Ford and his Whip-Inflation-Now campaign).

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April 16, 2010
Equal Rights, One Step at a Time

At a rally protesting the passage of Proposition 8, a friend of mine carried a sign reading, “We Already Decided: Equal Rights for All.”

The country is one step closer to that ideal with yesterday’s announcement that hospitals accepting federal funds can no longer discriminate against patients’ visitors.

It can be frustrating to watch Americans have to battle, time and again, for their rights, though in many ways it’s the story of America. The 14th Amendment, purportedly guaranteeing equal protection under the law (particularly for freed people), was added to the Constitution in 1868, enforced unevenly for a decade, and then failed to provide its original protections for another 90 years. Ninety years of struggle, ninety years of protest, ninety years of justice denied.

The Obama administration, though not moving as quickly as many had hoped, is making inroads to that promise of equal rights inch by inch. First with the Lily Ledbetter Act, signed within days of Obama’s inauguration, which protects women’s right to sue for pay discrimination.

Now hospital patients will have the basic right, long denied to gay men and women, to choose who visits them and who makes their medical decisions. The right to make such deeply personal decisions is at the heart of America’s promise of liberty, which makes us all a little freer today.

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