DOMA Gone, Gay Marriage In California To Stay, And A Moment Of Silence For Harvey Milk

     The Supreme Court has just struck down the Defense of Marriage Act (DOMA), ruling that it is unconstitutional for the federal government to discriminate between straight and same sex couples.  This is a broad sweeping decision that will allow gay couples that are married to have equal recognition by the federal government and access to the same federal benefits that straight married couples have .  In the proposition 8 case, the Supreme Court ruled that the plaintiff, simply being a voter in California, has no standing to appeal the broad decision handed down by a state court which reinstated gay marriage in California.  We have reason to believe that Justice Kennedy would be willing to join a 5-4 decision to strike down discrimination between straight and same sex couples at the state level, were such a case to be brought before the Supreme Court.  I remain hopeful.  I'm proud to have been a part of this movement and to witness history.  I can't help but think of Harvey Milk.  I suggest that each of us remember why this happened.  It is because of people like Harvey Milk who agitated for homosexuals to stand up and be recognized.  He argued that when the gay community comes out that society changes, that when they know you it is harder for them to discriminate against you.  Sons, daughters, brothers, sisters, friends, co-workers, and many others who let their families and communities know who they were made this possible.  It was Harvey Milk and those who followed him and stood up who made this day possible.  It is up to them and the rest of us to keep this conversation moving towards equality under the law.

“All men are created equal. No matter how hard they try, they can never erase those words. That is what America is about.”                                       -Harvey Milk

 Justice Kennedy, four other justices, all of those who came out, and those of us who fought for their cause have written our words within democracy.  I watched as the news broke and wept tears of gratitude for Harvey Milk and the hope he gave us, a man who lost his life in the service of this cause.  I think it is poetic that today had direct ramifications for the state in which he fought so hard to make a difference.  I have to go my phone is blowing up with texts.

Thanks Harvey.

A Surveillance State Too Secret For Oversight

Most of the comparisons between our government and George Orwell's "1984", that aren't playful, are little more than hyperbole that is juvenile and hackneyed.  We don't have thought crimes, and citizens aren't the property of the state.  That being said I'm going to suspend my better judgement, because I feel that buried within all of those hackneyed comparisons is an honest point.  One that is ugly, perhaps clumsy, and that... yes... may even violate my good taste! Yet it is my belief that a narrow parallel being drawn reflects something developing in our state, just as much as it has often reflected a clumsy critique of that state when understood too broadly.  When "Big Brother" is watching in "1984", I think it is appropriate for us to ask how different the apparatus of the surveillance state we now live in is from the one portrayed in the book.  I'm not asking whether we could end up with something like the surveillance state in the book, but what are the real differences between the kind of surveillance state they have and the one we have as it stands now.  The Fourth Amendment prohibits search and seizure with out a warrant, despite this fact our government argues that it has a right to collect the emails of those who aren't under suspicion.  I've yet to hear an interpretation of the Constitution defending these programs in their current form that respects the rule of law.  While I might not be as concerned about the rule of law when some one engages in civil disobedience, whether my government respects the rule of law when it comes to the Constitution is an entirely different matter.  We live in a state that is too secret for oversight.  One that has eliminated many of the opportunities for oversight.  No one can bring a suit who can't prove that they've been spied upon, and no one knows if they've been spied upon.  Senators aren't allowed to bring legislation to the floor addressing these programs because they are classified.  Instead of simply classifying the means and methods of these programs, the net of secrecy is cast as wide as possible to include any account of the kinds of sacrifices we are making in terms of our privacy.  The system our nation was predicated on wasn't based on trust.  It was based on checks and balances that involved a citizens access to the courts making these determinations, or the ongoing legislative oversight by their elected representatives.  One that wasn't different in principle from the notion Reagan put forward when he said, "Trust, but Verified".  I've heard Lindsey Graham and others argue that if the government wants to read their email then that's just fine with them.  Good... why don't you go ahead and forward your email for them to read.  This argument ignores the fact that the space for individuals to exist separate from the state, is threatened when their phone calls or emails are seized without warrant.  What this argument fails to understand is that we are not a collective hive, and my liberty isn't something that you can sacrifice because you wouldn't be bothered.  That is not up for democratic debate.  The Bill of Rights is unconcerned with how you think technology has changed, or what kinds of my liberty you are willing to sacrifice.  To suggest otherwise is to invite the comparison to the book, at least in respect to the surveillance state.  A surveillance state that is too secret for oversight.  One that is no longer held accountable to the checks and balances of the judiciary,  elected representatives, or the innocent citizens whose privacy it violates.

Edward Snowden: NSA Whistler Blower Comes Forward

     I'm sure that an administration that has been relentless in crushing whistleblowers will find it easy to criticize someone like Edward Snowden, and his breach of security.  While it is still unclear who he is, it is hard not to look at the man behind the story and see someone who could be any one of us.  As this story moves forward we will be told who he is by different people representing different interests.  If nothing else he is courageous, and in the mean time all of us are having the debate he hoped we would.  After listening to him I am of the opinion that this issue couldn't have found a clearer and more articulate voice then Edward Snowden, if he is who he says he is.  He explains himself in a manner that is calm and rational as he speaks, with words that have a quiet power, and yet who he is doesn't matter.  Who are we?

The New Measure Of Our Privacy

What's Joe Scarborough so upset about?

   What's Shepard Smith so upset about?  

     Shepard Smith and Chris Wallace are a credit to Fox News, and I mean that.  They would be a credit to any cable news channel... even if it wasn't Fox News.  Shepard Smith and Joe Scarborough are right to be concerned here.  The president has been an utter disappointment when it comes to the transparency he vowed to bring to government, and as a guardian of our privacy.  Why should we even expect transparency on how the government handles privacy, from an an administration that elsewhere claims its own activities within the IRS weren't even transparent to the president.  Why are we so upset?  As Jack Balkin notes the advent of the security state is inevitable.  He notes that we can either have one that collects as little data as necessary and tells us as much possible about what it is doing, or we can have one that collects as much data as possible and tells us as little as possible.  Anyone who thinks there is any doubt as to which one a secret program, most of our senators and representatives were unaware of, that is a vacuum cleaner sucking up the whole internet falls into is under a delusion.  Hypocrisy is also troubling here.  This president criticized the Bush administration for searching library records.  What is the difference between what the Bush administration was doing in respect to those issues and the course that Obama has pursued?  Is it that the Bush administration searched records without any transparency at all? Oh wait... that is what has happened here as well.  Senator Merkley of Oregon started looking into this rabbit hole and found himself in a classified security wonderland he was not allowed to even address through legislation!  He was reduced to introducing an amendment that in effect said, "Hey... um... there is a program that is classified that I can't talk about that is concerning... and maybe we could declassify some of it so that we could engage in some oversight."  While Bush assumed the powers that he exercised, Obama has merely built up a secret legal architecture to defend them.  One that is without proper oversight and predicated on a legal framework that is one of the most deferential interpretations defending the exercise of government power.  While I usually respect the voice Chris Wallace brings to our national discourse, I am a bit perplexed here.  He states that the FISA court is providing the necessary oversight, and that he wouldn't want to trade the freedoms we have for those that they have in China.  First of all the FISA court is a joke that almost never ends with any punchline other than approval of the actions taken in the name of security.  Rick Klein revealed that there was a letter sent to Senate leader Harry Reid from the NSA last year, in it is stated that the FISA court had 1,789 requests that same year as of late August.  Only one was rejected.  This must be because the people running our national security apparatus are so competent and almost never engage in overreach.  Anyone who flirts with such a fantasy must dismiss the entire messy history these agencies have had, and why FISA was set up in an attempt to use smoke and mirrors to placate those who wanted to reign in the abuses perpetrated by them. We have courts that work and I don't see how one that has turned itself into a rubber stamp has any resemblance to them, or counts as oversight.  While his reference to FISA is irritating, his reference to China is frightening.  How is China any measure of what kind of state we want to live under.  Is this any kind of argument at all.  It ought to make us shudder.  The security state we now live in has been bipartisan, and if you want to recognize how far it has come. China has become a measure of what kind of society we are.

A Functional Theory Of Liberty

Liberty as a possession we share, as the bond we have with each other as Americans, has been misunderstood.  It has been understood as a possession.  Libertarians, as those who have done the most to stand up for our liberty, have often been those most responsible for distorting it.  We should forgive them for this, despite the monopoly they have pretended to exercise over the meaning of our liberty.  They at least attempted to honor liberty.  Liberty isn't a property of individuals in and of themselves, it is what demarcates the functional difference between individuals.  It is also the boundary limiting the state's exercise of power.  As long as we forget this, and that liberty is shared between us as a relationship, then the rigid lines drawn by ideologues cannot be far off.  It is only when you conceive of liberty in a vacuum that you are able to confuse it for a property.  If it is to have any meaning at all, it must be one that is functional.  William James understood Pragmatism as the demand that a difference, in order to be a difference, must make a difference.  It is ironic that it is here in the States, where pragmatism was born on the backs of pioneers, that we have forgotten this about liberty.  Liberty must function as a reality of potential within our freedom.  To the degree that it loses that functional measure, and is reduced to an ideological conception that no longer makes a difference, it is meaningless.  Should it be understood as a property then it loses its meaning in relationship to other individuals and states.  As I've mentioned in a previous post, the Ninth Amendment is revealing of the way the framers of the Constituition conceived of liberty.  It declares that we have all of those rights not listed explicitly within the Constitution.  It is something left open for each generation to complete.  It is something that exists in a functional relationship between individuals or the institutions governing them.  The genius of those who gave our nation's first draft of liberty is both subtle and layered.  One facet of its expression within the Constitution was a functional theory of liberty.  Liberty was carved out between the state and individuals to create the space necessary for them.  They understood that society as a whole must work collectively, but that those collective efforts are served better by the contributions of individuals exercising their freedom.  The framers understood that the success of the collective represented in the state and the success of the individual could not only find common purpose but were inseparable.  It was an understanding that an individual must have an inalienable relationship between other individuals and the state in order to have the distance necessary to not be overrun by them.  An understanding that didn't see the state as an enemy of individual liberty, but rather as a distinct entity marking out the boundaries of that liberty.  While the overreach of many states is always a danger, the successful state even serves to preserve liberty.  The individual is served best by a state that works to guard this boundary, so that an individual can fulfill themselves through the exercise of that liberty.  The only meaning liberty can have is one given a functional definition.  If we are unable to reasonably expect that we could exercise our liberty, in principle, as it currently exists between individuals and institutions then the space separating an individual from an institution is under threat.  That is also to say that the distance between individuals carved out by liberty are under threat.  If the institutional structures in place undermine the functional exercise of liberty then it isn't a liberty, and the space created for individuals collapses.  Any ideological understanding of liberty will only serve to set up a legal phantom without meaning in place of a functional reality between individuals and the institutions with with which they share a boundary.  The notion that the exercise of our liberty is never constrained by economic interests, or institutions in the market place that represent them, is absurd in the face of a functional theory of liberty.  The notion that access to healthcare is irrelevant to the exercise of our liberty collapses when you recognize that the spaces created for individuals within an economic region of our society are left unstable.  An economic institution is just as capable as a state of crushing the space for an individual to remain distinct in the boundary it shares with it.  The only question here is whether an institution threatens spaces created for an individual separate from it.  This is the only measure of any significance for our liberty.  Is there any real space between individuals and other institutions being created?  Does a specific conception of liberty threaten or promote the functional distance between them?  This is why the framers of the Constitution gave us a document that demanded that each generation grapple with its meaning.  The Ninth Amendment is one example of how our liberty is a boundary left open, that we must come to terms with as a generation responsible for it.  A boundary that only respects the functional space that is created by liberties, rather than any ideological conception of them.  It ought not concern us whether the oppressive institution collapsing that space is a government, or an entirely different one, bent on absorbing the individual.  This is why our founding fathers gave us a functional theory of liberty, because whatever meaning it has ever had has been in the actual exercise of our liberty.

Last WWII Veteran In Senate Dies: Frank Lautenberg 1924-2013

     I hope we can take a moment, in between the all of the shallow chatter about who will replace him, to pay some respect to a man who never forgot where he came from.  He had to support his family by working nights and weekends at the age of 19, after his father passed away from cancer.  He went to college on the GI Bill, which allowed for him to ultimately make a name for himself in business as a CEO.  It is those kinds of experiences that he brought to the Senate.  His understanding of opportunity was informed by the lasting memory of adversity overcome, rather than by some abstract ideal.  There is no ideological framework that can remain faithful to it.  He knew our understanding of opportunity must answer to the reality of those who attempt to meet it.  He stood at that door as an example of one of those who always made an effort to keep it open for the rest of us.  As the last World War II veteran in the Senate, his death marks the end of an era.  Dr. Samuel Johnson once remarked that coming into contact with your own mortality has a way of concentrating the mind.  The priorities of veterans like him, and others who served in that war, were born of that kind of concentration.  He will be missed.