Burwell v. Hobby Lobby

This is kind of old by now, but rather than discard it completely, I thought I would resurrect it from the Save as Draft pile.

According to the Supreme Court, my employer has the right to tell me I can’t buy certain contraceptives with my insurance benefits. Apparently, certain employers have a pretty remarkable religious belief that if they do anything to make it possible for me to make a choice that conflicts with their religious beliefs that they are just as morally responsible for my choice as I am (and the Court bought that argument!). So then by the same logic surely they have the right to tell me I can’t buy them with my paycheck too, right? Why wouldn’t they? In both cases it’s their money, given to me in compensation for services rendered.  In both cases, there are exactly two ways for my employer to know which choices I made: I tell her or she violates my privacy. In both cases, unless she’s a total hypocrite, her religious objections are exactly the same. My sex life and reproductive choices are none of her damn business. So what makes health insurance different?

And if my employer is to be held responsible for my reproductive choices and therefore can hinder those choices, why wouldn’t they also be held responsible for my recreational choices? Surely, if I chose to spend my paycheck on booze, they enabled that choice just as much as they enabled me to choose to use contraceptives, so why wouldn’t they have a First Amendment right keep me from buying alcohol too, right?

And if they can tell me what I can’t spend my paycheck on, why wouldn’t they have the right to specify purchases that I have to make? Can my boss make me tithe? Can she force me to buy Bibles? By what principle would anyone limit her new right to dictate my spending habits?

The Supreme Court’s decision is based on a religious fallacy–that one person will be held accountable for the actions of another in final judgment–and a legal fallacy–that the First Amendment gives us a right not only to believe any stupid thing but to force the consequences of that belief on other people. It’s not the place of the Supreme Court to tell Hobby Lobby that they are wrong about the religious fallacy, but it is their place not to perpetuate the legal fallacy.



More letters to Congress

I’m in another round of writing to my representatives and senators about the NSA and surveillance. The following is what I sent to John Cornyn. Repeat letters to Senator Cruz and my representative are an abbreviated version of this, but all carry essentially the same message.

The AP is now reporting based on officially provided documents that the NSA not only gathered more data than they were legally authorized, continued to do so after they were told not to, but made lame excuses for doing so when the FISA court had to review them again. I have to say, rather than being comforted with the “transparency” of the Administration, I’m less and less likely to trust that no one is doing unethical or illegal things with this data. The story points out that there isn’t evidence that anyone is intentionally infringing on anyone’s privacy but that’s small comfort. If someone were intentionally abusing power, they would take steps to keep it hidden. And unintentional violations of my privacy are just as bad if not worse. If you can unintentionally invade my privacy, your processes are not well designed and easy to abuse. When we are talking about Federal power, easy to abuse is a fatal design flaw. True conservatives understand that.

Considering that the Founders were of the belief, from personal experience, that you could not trust a strong central government and therefore built a structure that you shouldn’t ever have to trust, I’m asking you what are you going to do to protect my rights as enumerated in the Bill of Rights (I mean in addition to my 2nd Amendment rights. You’re strongly on the record in that instance)?

You took an oath to support and defend the Constitution against all enemies foreign and domestic. I know you take that oath seriously. There is no greater threat to our constitution and our way of life than this regime of surveillance. I’ve contacted my congressman and your colleague Senator Cruz and was disappointed that they both have bought into what I can only describe as a liberal trust in the Federal Government’s forbearance, a trust that neither of them are willing to subscribe to on the topics of health care/Obamacare or the Second Amendment.

I am really surprised (though why I didn’t see it coming is an excellent question) that these vocal critics of government overreach in certain areas are fine with government overreach in surveillance.

And now I’m thinking about reaching out to other representatives in the area. We’ll see what comes of this.

Again with my congressman

Last July I got the following in an e-newsletter from my Congressman:

[My congressman], a long-time gun owner and avid supporter of the 2nd Amendment, is once again fighting against increased regulations on gun owners.

Rep. [Blah] introduced an amendment to the FY2014 Commerce, Justice and Science Appropriations Bill that would prohibit the use of any funds to require reporting of multiple rifle or shotgun sales to an individual. The amendment was passed by the full House Appropriations Committee and included in the Commerce, Justice and Science appropriations bill Wednesday morning, July 17, by a voice vote.

Chairman [Blah]’s amendment is in response to a program that was implemented two years ago by the Department of Justice that requires gun dealers in Texas, Arizona, California and New Mexico to report all sales of multiple rifles or shotguns to the same buyer to the federal government.

“The government has no business tracking the gun purchases of law-abiding citizens. American’s should not be placed on a watch list for simply exercising their constitutional rights,” said Chairman [Blah]. “President Obama should focus his attention on criminals rather than honest citizens exercising their rights.”

Well, okay, I don’t agree with that position, but it is kind of reasonable. I have to say that because it’s basically my argument against the NSA surveillance programs if you just substitute “gun purchases” with “internet usage” or “phone calls.”

So I wrote him a note, which I failed to save (dangit!) in which I pointed out that similarity. So here’s the response I got:

Thank you for contacting me with your concerns regarding NSA surveillance programs.  I appreciate hearing from you on this important issue.

The House recently defeated an amendment to restrict the NSA phone surveillance program during floor consideration of the FY14 Defense Appropriations bill.  I recognize that many are disappointed, this issue merits thoughtful and thorough consideration NOT simply fifteen minutes of debate on the House floor.  Dismantling one of our most critical counterterrorism tools in such a manner could have troubling national security consequences.
We must provide our intelligence community the capabilities necessary to defend America and its citizens while ensuring fourth amendment protections against unlawful search and seizure are secure.  I am pleased that House Intelligence Committee Chairman Mike Rogers has pledged to add privacy protections on the program into the forthcoming intelligence authorization bill this fall.  You can be sure I will keep your strong views in mind as Congress crafts national security policy options in the months ahead.
Thank you for taking the time to contact me.  I appreciate the opportunity to represent you in the U.S. House of Representatives.  Please feel free to visit my website or contact me with any future concerns.

The man is wimping out. No sir, not on my watch. Maybe if I come at him from the tea-party side:

Dear sir,
In response to a previous letter, you said the following:
“We must provide our intelligence community the capabilities necessary to defend America and its citizens while ensuring fourth amendment protections against unlawful search and seizure are secure.”

I don’t know, balancing our God-given Constitutional rights against security needs sounds pretty moderate to me. As the Lt. Gov learned last time around (and to paraphrase Barry Goldwater) Moderation in the Republican Primary is no virtue. Even the Bible has guidance for you, Rev 3:16 “So then because thou art lukewarm, and neither cold nor hot, I will spue thee out of my mouth.” (King James Version).

I know you wouldn’t ever equivocate on the 2nd Amendment so what makes the 4th (and 5th and 3rd) of lesser importance than the 2nd that we can afford to compromise on them? Isn’t the entire Bill of Rights there specifically to protect us from an overreaching Federal Government? Or are you a part-time Patriot?

I should note that in the last round of statewide elections, “moderate” was the dirty name-calling name of choice. I suppose no one would buy calling these guys “liberal” since liberals are extinct hereabouts. Calling his patriotism into question was probably over the line, but he made me mad.

A letter from my Congressman

About three weeks ago I posted a letter I world-wide-webbed (not sure if it’s really email or not) to my congressman and yesterday I got a response:

I am very concerned about the operations of the NSA and strive to uphold the Constitutional rights of my constituents. I believe it is crucial that law enforcement officials along with the intelligence community have all necessary resources to help prevent terrorism and protect American citizens. However, we must ensure those resources do not fringe on the protections within the Constitution.

Please be assured I have read your comments and share your concerns regarding these issues and am looking into this matter.  I will continue to monitor this situation and keep your thoughts in mind over the next few months as congressional inquires take place on this important issue.
Okay, so I’m glad he’s concerned and I’m glad he has read, shares, and is keeping in mind my concerns. I’m glad he’s looking into the matter and monitoring the situation, but I was really looking for something a little less passive.
In the bigger picture, this is a fascinating look at the multiple personality disorder of the modern Republican/Tea Party. On the one hand, ever since 9/11, the GOP has been about protecting the homeland and there has long been a strong national security focus in the party. So he can’t risk angering those voters. But recently, there’s been this resurgence of Constitutional ardor especially amongst the Tea Partiers, not to mention the distrust/fear/hatred of Barack Obama as a person that bring a big tapestry of “what the hell is this government spying all about?” (I am so frustrated that no one in this crowd worried about this during the Bush Administration’s warrantless wiretapping adventure). My largely-rural Texas district, deeply red, hotbed of the most extreme forms of modern conservative thought, must be a difficult puzzle for the congressman who has to represent it. How does he thread this needle? By being wishy-washy, of course.
He really has no good options here. I almost wish he would come down firmly on the side of National Security. At least that would give his campaign a handle I could grab and shake during the primaries.

A letter to my Congressman

I fear that the hoopla over the NSA and domestic spying is dying down so I wrote a letter to my Congressman. By the time I was done I was so pleased with it, I decided to share it here. (Hello NSA, I haven’t forgotten about you. I hope you get some food for thought out of this, too.) I’m also sad to report that in Turkey, they want to develop a park and there’s rioting in the streets. Here, the government decides their going to virtually follow us all over the web and we can’t even be bothered to picket the federal building. Sad.

Dear Congressman,
As a student of history, I’m very much concerned about the recent revelations of the federal government tracking massive amounts of data on phone calls and internet activity. My wife thinks I’m overreacting, taking the position that having our privacy breached by private business is much more problematic and expressing confidence that the government wouldn’t abuse the kind of power this gives them. I don’t think it’s possible to overreact when it comes to limited government.

The founding fathers had direct experience with tyrannical powers and did everything they could think of to prevent such powers from taking hold, specifically addressing the abuses they had experienced like ex post facto laws, quartering of troops in private homes, indefinite detention without trial, and warrantless searches and seizures. The system they built has worked quite well for over two centuries, but you don’t have to look very far back to find examples of the kind of activities my wife doesn’t think we need to worry about. We only need go back as far as Richard Nixon.

It seems to me, the dangers of programs like PRISM and BLARNEY, and the National Security Letters authorized by the Patriot Act is to ask a simple question: What would Nixon do? (WWND)

Would there have been any need for the Watergate burglars if Nixon had had access to a program like PRISM? If Nixon could just call on AT&T to provide him with all the phone traffic in and out of that hotel and had access to the computing power I carry around on my hip today, is there any reason to think that we would have ever known about his abuses?

I’m not claiming that either President Bush or President Obama are or were the kind of men who would have set themselves up as tyrants, but how long will it be before the US again unknowingly elects another Nixon? We have no way of knowing. The Constitution worked in Nixon’s case because the founders came up with a good system. But with modern technology we cannot sit idly by and assume the Constitution will continue to protect us without taking thoughtful action to maintain and extend the protections left to us and our posterity.

I mentioned the Third Amendment above for a specific reason; I believe that PRISM and the other programs violate the Third Amendment, if not in the letter of the amendment, certainly in its spirit. The British government used to house soldiers in private homes as a means to intimidate the populace, to spy on them as directly as you can imagine, and to have the most chilling effect they could muster on “disloyal” speech and actions. PRISM and the Patriot Act, in setting the government up to watch over our shoulders as we call our family and friends and browse the world wide web has precisely the same effect without anyone having to make up the spare bed.

I hope you will stand up to the Executive Branch and the short-sighted leadership of your own party who somehow, despite all their skepticism of government power, feel it is acceptable to set up an infrastructure of surveillance that any Saddam Hussein or Bashar al-Assad would kill for. I’m counting on you!

What PRISM really means

Over the weekend, I heard a lot of people trying to defend PRISM, the NSA’s domestic internet spying program (they also claim it’s only ever incidentally domestic… whatever), saying that they only collect metadata on my phone calls and look for patterns in my internet communications. But today I get an email from my cable company trying to talk me into their Intelligent Home wherein I can run my security system/climate control via the internet. Not in God’s green earth! Not with the NSA looking over my shoulder all the dang time. Tracking who I call for how long and how often is intrusive enough, I’m not going to let the government know my comings and goings at my house.

Also annoying, George Will. On This Week with George Stephanopoulos, George Will started to get huffy about all this invasion of privacy, not because he thought it was a bad idea generally (he actually said it might be useful with a government that you could trust) but because we have all this recent evidence with the IRS targeting conservative groups that we don’t have a government like that. Well, welcome to the light side, George, but where the hell have you been for the past 7 years? And, might I point out, this was exactly the argument I made 7 years ago to the conservatives who were defending Bush’s domestic spying, i.e. “Sure you trust this guy, but what about the next time a Democrat get’s elected? Do you want that person to have this kind of power?” I. Told. You. So.

And while I’m on the subject, some of the commentary I’ve seen out on the internet likened this kind of surveillance to police patrolling. It’s perfectly legal and appropriate for the police to be out and about patrolling the neighborhood and this is just like that they said. Well, no, it’s not just like that. If we each had a police escort patrolling us to work and home etc., that would be just like these electronic surveillance measures. I think if we each had a police shadow taking notes on everyone we talked to, that would not be acceptable, even if they did promise to file the notes away and only look at them if I ever did something scary. No.

Now is the time for coordinated political action. Protests at every federal building we can find. Candidates for every federal office up for election next year. Where’s that Occupy movement when we need them? Heck, draft the Tea Party too. Enough is enough.

PRISM and the NSA

I told you so. I said it back when George W. was president that it was a bad idea. I told the Obama campaign during the transition that they needed to repudiate the Bush era domestic spying. I told the Obama campaign and the DNC every time they begged me for money that they would get no money from me as long as it was still officially sanctioned policy to collect the private communications of Americans. My wife thought I was being overly dramatic. But here we are.

I’m not the only one upset. There’s The New Yorker and the Huffington Post both have blogs about it. Forbes, remarkably, thinks it makes sense and is a good idea. The mind boggles. Back in the Bush era I heard people rationalize the Terrorist Surveillance Program with comments like these. I thought they were stupid then. Here’s the problem: even if you trust the current administration not to do anything Assad-like with this kind of data, what about the next guy to sit in the Oval Office? What about three presidents down the road? What do you think Richard Nixon would have done with this kind of data available to him? This kind of program is a BAD idea. It should never have been instituted, it should never have been defended and we certainly should never tolerate anything like it. Period.

I will concede this much and no more: it is just possible that someone has mocked up a PowerPoint document and hoaxed the Washington Post with this PRISM story. It’s just possible that this is the June equivalent of someone’s April Fools Day prank. But I doubt it. I feel pretty confident that the people at the Washington Post know how to vet a source and find enough corroboration to be confident in publishing a story like this, because whatever credibility they might still have is on the line.

I’m typing this in Google Chrome. So if the NSA is listening I have this to say to you. Bite me. Take your domestic spying and your “foreign intelligence” and stick it up your ass. Same goes for you Mr. President. What good does it do to be a Constitutional Law professor if you haven’t studied enough history to understand why we have the Constitution in the first place? Pull your head out of whatever orifice that’s obscuring your ability to see the folly of this program. And the Senate: there are only 33 vertebrae in the human vertebral column. There are 100 of you. Explain to me how even working together you can’t manage one spine. And the House of Representatives, ugh, where do I even begin. I guess I can be glad that this is a Democratic President, because when there was a president of your own party, you rolled over like Paris Hilton’s lapdog. But I’m afraid it’s too much to hope for that the GOP will be even a little bit consistent about their stand on government overreach. I mean your track record is already pretty spotty. “Hey! we don’t like Obamacare because we don’t think government ought to get in between an American and his doctor over medical decisions, unless that American is a woman making procreative decisions. Then we’d better make sure there is an entire legislature getting all up in your business.” If I have to rely on the GOP to protect my right to privacy and to be free of unreasonable searches, I’d rather have a new Constitutional Convention and try again from scratch.