Monthly Archives: March 2012

Mar 22 2012
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United we stand, divided we blight

I see the eminent domain argument against the Enhanced Economic Zone (EEZ) blight designation of most of Columbia, Missouri Enhanced Economic Zone as an important facet of the opposition to this plan, but here I want to flesh out what I see as a fundamental principle driving the vigorous opposition to this plan. It simply isn’t fair in the way it allocates economic opportunity and public investment to the rich and politically connected, and it is that failure that must be recognized first and foremost because it is the inequity and unfairness of government policy that underlies most of the deep divisions in our polity. Indeed, I cannot remember a time when America was more sharply divided against itself.

We are a diverse polity. In some ways that gives America unique strength. But it also means that there is much difference between people: Religion, culture, sometimes language. History tells us of the old conflicts that still cast their specter over our mutual association. I think sometimes we forget how deeply the scars of war, slavery, and other oppressions have marked our society.

The prime virtue of America was that it offered equal opportunity. Equal opportunity before the law, the freedom to pursue happiness. For those escaping the shackles of a particular bondage, this freedom is like air to a drowning man.

But we must not forget these principles that are the foundation of our mutual association. The effort to carve up our public weal, to submit it to the appropriations of the powerful and connected, is an anarchic project. To prioritize one person or group’s needs and desires above the rest inspires resentment, destroys trust between individuals and groups, and foments disrespect for the law itself.

Let us quit this proposal of carving out economic benefits to companies and individuals who seek personal profit at the expense of the average citizen. I propose instead the City of Columbia instead focus on the provision of its core public services to citizens. Certainly our police department is a prime example of how poorly provided public services can alienate citizens and tarnish our city’s reputation. Our schools face chronic problems of underachievement, and many of our citizens have immediate needs that might be appropriately provided through refinements and investment in the basic city infrastructure. Let us focus our public policy in areas where we can provide immediate service to the citizens of Columbia.

And I want to suggest that it is not such a bad thing to stop competing with other cities to offer companies tax breaks for relocation and promises of “jobs”. Indeed, by breaking from this race to the bottom, Columbia has a chance to show national leadership on this issue. Wouldn’t that be something?

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Mar 20 2012
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The President has the authority to decline to enforce an unconstitutional law

Let me start with a general proposition that I believe to be uncontroversial: there are circumstances in which the President may appropriately decline to enforce a statute that he views as unconstitutional.

–1994 Memorandum to White House Counsel Abner Mikva by Assistant Attorney General Walter Dellinger

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Mar 10 2012
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Wise words from Eugene Volokh

Never fall into the trap of actually believing that our legal fictions and our metaphors are real.

-From yesterday’s post, A Metaphor Will Take You Only So Far

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Mar 05 2012
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Backfile checking Rex and everyone else: the forgotten history of the KKK and the NEA

Last month, retired philanthropist Rex Sinquefield ignited a storm of controversy by claiming that the public school system was a creation driven at least partly by the efforts of the Ku Klux Klan. Sinquefield cited an op-ed in an obscure Missouri publication for support of this claim, but wound up apologizing for his statement. And that is where the debate ended.

It is unfortunate that no one has thought to consider this subject further. That is because there is documented history of the involvement of the Ku Klux Klan and other white supremacist organizations in the evolution of American public education and the National Education Association. Consider this excerpt from a review of Doug Lawson’s book “The Department of Education Battle, 1918-1932: Public Schools, Catholic Schools, and the Social Order“:

The efforts of the educational trust were supported by a number of organizations that fostered civic progressivism, including two organizations not usually associated with reform: the Southern Jurisdiction of Scottish Rite Masonry and the Ku Klux Klan. Both of these groups advocated a federal department of education, a national university, and compulsory public schooling. Although the NEA never went on record as favoring compulsory public education, its close association with the Southern Scottish Rite and its failure to distance itself from the KKK convinced Catholics that the NEA intended to use a department of education to drive parochial schools out of existence. The church countered the NEA’s efforts through intense political lobbying by the National Catholic Welfare Conference (NCWC). Douglas J. Slawson’s fascinating look at a relatively unexplored episode in American history recounts fourteen years of maneuvering and counter-maneuvering by the NEA and NCWC over attempts to establish a federal department of education and compulsory public schooling.

Or this excerpt from Wikipedia’s entry on compulsory public education:

The movement for compulsory public education in the United States began in the early 1920s. It started as a disorganized Catholic opposition to the Smith-Towner bill, a bill that would eventually establish the National Education Association and provide federal funds to public schools. Eventually, it became the movement to mandate public schooling and dissolve parochial and other private schools.[1] The movement focused on the public’s fear of immigrants and the need to Americanize; it had anti-Catholic overtones and found support from groups like the Ku Klux Klan.[2]

The Oregon School Bill aimed to close private Catholic schools in Oregon and have the children sent to the public school system. Since public schools taught state-mandated curricula, the Klan saw this measure as a way to “Americanize” Catholic children and limit the amount of “non-Protestant” instruction they received. Oregonians who supported the Compulsory Education Bill, including the Oregon Klan, made the argument that private and parochial schools were often controlled by non-American organizations that emphasized foreign ideologies over traditional American values.[6]

 And the same thing happened in Indiana, where the Klan also pushed an explicitly anti-Catholic, anti-private schools agenda:

This “second” Klan was organized in 1915 in Atlanta . In 1920, the southern group began a national publicity campaign, and the first Indiana chapter opened in Evansville in the fall of that year. A few people joined, but then a huge membership drive led by D. C. Stephenson from 1922-1924 brought in 118,000 members across the state (see document 6). Stephenson moved to Indianapolis and started a newspaper,The Fiery Cross, which ran from December 1922 to February 1925. In 1924, Klan numbers overwhelmed the state’s Republican Party and elected the governor (Ed Jackson), a majority in both houses of the legislature, and nearly all of the state’s thirteen congressmen.

The Klan’s legislative program for 1925—directed against parochial schools and Catholic influence in public schools—was a complete failure. But other problems proved more pressing. D. C. Stephenson, the leader (Grand Dragon) of the Klan in the state since 1923, was a charming personality and powerful orator; he was also arrogant, cunning, evil, and hedonistic. Early in 1925, he assaulted, raped, and held captive his young secretary Madge Oberholtzer, who took poison and died one month later. Stephenson was indicted, and when Governor Jackson (who had now distanced himself from the Klan) refused to pardon him, Stephenson leaked information that to Jackson ‘s trial for bribery (the governor was acquitted on a technicality).

 
So where does this leave us?
Sinquefield was clearly wrong to imply that public schooling is entirely the creation of the Ku Klux Klan. But he was not wrong to imply that racist intent and KKK muscle weren’t involved in the evolution of public education in the United States. There is plenty of reliable historical evidence on that point. What is unfortunate is the unwillingness of the existing media to be aware of the historical record on this point, and Sinquefield’s inability to defend his statement with more than a passing reference to an obscure newspaper article.
I don’t think this is an argument that really has a policy impact, at least not apparently, as Sinquefield claims. I would note that modern day white supremacists now probably understand that they have no chance of determining the practice of public education, and are probably more interested in the prospects of obtaining school vouchers to support their own private schools with.
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Mar 04 2012
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Great literature and the advent of copyright

“Most of the world’s great literature was written before the first copyright statute, the Statute of Ann, enacted in 1710.”

That’s from a post today by Richard Posner on the future of libraries and books.

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Mar 04 2012
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Against Paul Armentano and NORML’s bogus federal lawsuit

Last year, attorneys from the National Organization for the Reformation of Marijuana Laws filed a federal lawsuit challenging the Department of Justice’s crackdown on the California medical marijuana industry. Though I support efforts at checking federal law enforcement over-reach, this lawsuit is so inept that I thought it was worth writing about. First, here’s the link to yesterday’s story on the NORML blog about the latest dismissal of the case. You should read it if you are not already familiar with the case.

http://blog.norml.org/2012/03/02/federal-governments-crackdown-on-medical-cannabis-not-unconstitutional-federal-judge-rules/

I want to make a few points. First, NORML’s attorneys base the entirety of their lawsuit on the claim that the Ogden memo somehow represents a promise or a statement made in court to a federal judge. However, the Ogden memo is literally just a memo that the DOJ released, and was never, so far as I know, represented in a federal court as a promise or a statement that the judiciary can hold the DOJ to. For NORML to make this claim flies in the face of reason. No wonder the judge dismissed this claim without a hearing. There was nothing to hear.

Second, the NORML claim is laughably spurious in attempting to relitigate the Commerce Clause issues the Supreme Court decided in Raich v. Gonzales (2006). NORML basically says “We know the Supreme Court decided this question already, but can you please check and see if they got it wrong?” Aside from being a completely wrong way to get the court to re-evaluate a decision, it is lazy, because there NORML makes NO argument as to why this question should be relitigated. No new constitutional claim, no spiffy new
argument, zilch. NORML’s claim is literally just a claim without warrant. Also, NORML’s lawyers seem completely unaware of the impact of the Bond v. US line of cases and the implications that this decision might have forsuch a challenge to the federal authority (tip: you might want to incorporate Bond).

If you were really interested in relitigating Raich, you would file an amicus brief in the Supreme Court litigation scheduled for this month against Obama’s Affordable Care Act, because that is where we can get the Supreme Court to meaningfully restrict Congress’s Commerce Clause powers in a way that would lay the foundation for challenging the constitutionality of the Controlled Substances Act. However, I have yet to hear NORML whisper a word about this topic.

There are other problems with this lawsuit, but those are the worst. I want to state plainly that it is intellectually dishonest for NORML to claim that a judge ruled that the federal crackdown is unconstitutional. What the judge actually did was dismiss a lawsuit that was so facially deficient that it didn’t warrant the court’s time for a hearing. NORML should not
promote its lawsuit as a legitimate, viable claim against the federal crackdown either. It’s dishonest and misleading to ordinary laypeople who don’t know the difference.

What’s the takeaway? For someone like me who supports marijuana reform, it is that Paul Armentano and the NORML media wing are not reliable sources of information, particularly about their own lawsuits and legal capabilities. They either don’t have the ability to correctly judge these issues, or they’re willing to dishonestly present a false narrative to the people who support and fund their organization. Neither possibility should be comforting.

A 2L from Thomas Cooley could write a better lawsuit. Seriously.

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