This column originally appeared in the Williston Observer on October 15, 2009.
Confronting Judicial Uncertainties
Our justice system is one of the best in the world. It exemplifies many of our basic beliefs: that one is innocent until proved guilty; the importance of due process; the concept of equal justice.
As with any human institution, our justice system is not perfect. Over time, a long series of Supreme Court decisions have ensured that our principles are applied.
One of the most famous, 1966's Miranda v Arizona, is the source of the Miranda Warning, which begins "You have the right to remain silent..." The decision in this case ensures that suspects are at least aware of their rights when they talk to police. Whether the suspects take the advice the Miranda Warning gives them is another story entirely.
Another famous case is 1963's Gideon v Wainwright, immortalized in the book Gideon's Trumpet, and the TV movie of the same name. This case ensured that all criminal defendants, even those not accused of a capital crime, must be provided a lawyer. One of my earliest memories of our justice system is watching Henry Fonda, playing Clarence Gideon, writing a motion to the Supreme Court by hand.
These cases, both decided before I was even born, stay with us today. They are applied in interrogation rooms and courtrooms on a daily basis. The police and prosecutors constantly push the boundaries of these and other important decisions, and the courts are constantly refining those boundaries for the next set of cases.
But even with all these defined boundaries, these legal limits, there still come times when we have to take serious looks at our system. The mere fact that the law and the processes to apply the law need refinement shows that what we have is not yet perfect.
As I watch and read news stories about national and local court cases, I grapple with these conflicts constantly. I'll take two examples to show what I mean.
First is the grand and divisive issue of the death penalty. Vermont, among other states, has decided that the death penalty is not a punishment we want to use. As we've seen in many cases, famous and infamous, those on death row can be placed there in error. The problem with the death penalty is its finality. Once the punishment is meted out, there is no going back.
Because we can, and do, err, my sense of justice tells me that the death penalty is unjust. But at the same time, my sense of justice tells me that in cases like those of now-executed Ted Bundy and Timothy McVeigh, justice was served in a way no other penalty could have satisfied. I struggle with this dichotomy in my own principles.
The second example involves another basic tenet of our criminal justice system: that after a convicted criminal does his time, he is then released back into society, and that's the end of it. It would be the height of unfairness, of injustice, to impose a higher penalty after someone has served his time or at any time after sentencing.
This, however, seems exactly what we do when we put convicted sex offenders on a list for the rest of their lives, and track them, publicly, after they are released. My senses are piqued when I hear about this, because it seems unfair, unjust. But at the same time, as a father, as a neighbor, as a member of the community, this is information I feel the need to know and the right to have.
Questions of fairness, of justice, can be hard to answer. The right thing to do can seem obvious in the abstract, but once you hear the details, see the effects on real people, imagine how you would react as you sat in a jury or if you or a friend or family member were a victim of a crime with similar circumstances, the obvious can be less so.
Fortunately, most of the time, these nagging issues do not become a part of an individual criminal case. Be it embezzlement, drunk driving, stalking, sexual assault, burglary, or murder, most of the details of the case are not cast into constitutional waters. When they are, however, we can be assured that those arguing the case, on both sides, are looking out for all of our best interests, both the interests of the public and the interests of the individual.
Note: the originally published column had Peter Fonda playing the role of Clarence Gideon in Gideon's Trumpet. The actor was actually Henry Fonda.
Thursday, October 15, 2009
Thursday, October 1, 2009
Constitutional FAQ
This column originally appeared in the Williston Observer on October 1, 2009.
Constitutional FAQ
One of the most popular pages on my U.S. Constitution web site is the FAQ. As you may already know, "FAQ" stands for "Frequently Asked Questions." The concept is to place such questions in a central location so that as the same questions arise again and again, the answers can be quickly found.
Despite the FAQ, I still get a lot of the same frequently asked questions, especially, it seems, from students who have come to expect that answers should fall into their laps, rather than come to them through a bit of research. I find these to be "teachable moments," and often refer these students to specific sections of the Constitution, writing "If you read this section, you'll find your answer."
The past year has brought about a whole new set of questions that I had not seen before — whether they will attain "Frequently Asked" status or not, only time will tell.
One perfectly reasonable question often goes like this: "I've searched through the Constitution and cannot find the words 'health care' anywhere. What gives Congress the right to enact health care legislation at all?"
Parenthetically, I usually tell such questioners that the Congress doesn't have "rights" to do anything. It does, however, have the "power" to do things. The discussion of rights versus powers is sometimes an overwhelmingly philosophical one, but the distinction is important.
That detail aside, the answer to many questions of this type have the same answer: Article 1, Section 8 is a list of the powers of Congress. Some of them are quite specific and limited (for example, the power to coin money or establish post offices).
Others, however, are succinct in their phrasing but expansive in their practical effects. Clause 1 is one of the most expansive, granting Congress the power to collect taxes in order to, among other things, provide for the "general Welfare" of the United States.
If health care cannot be called a component of the general welfare of the people, nothing can be.
Clause 18 completes the picture. This clause grants Congress the power to make all laws "necessary and proper" to carrying out the powers listed previously. Whether the Framers of the Constitution understood what they had done when they wrote clauses 1 and 18 is a subject of some debate in historical and political science circles, but for all practical purposes the debate is settled.
When the Bush and Obama administrations were bailing out troubled banks, a common question went like this: "Under what authority does the government gain control of private business by giving or loaning them taxpayer money?"
The answer is another expansive clause of Article 1, Section 8; Clause 3, the interstate commerce clause. Under this clause, paired with Clause 18 again, the Congress has the power to enter into arrangements with business such as it did at the beginning of this year. I hasten to note that the government was not looking for an actual take-over of the affected businesses, but some degree of control was thought necessary (and proper, if you'll forgive the constitutional pun) to bring banks under control. This would give Congress and government agencies time to come up with new regulations to prevent such crises in the future, once the direct government influence of the businesses was removed.
Finally, this question came to me recently: "How does the Constitution say the people can kick out the Congress or the President?"
Questions such as these bemuse me, and it happens quite often. A plain reading of the Constitution reveals that there is nothing like a "recall clause", but the questioner assumes it must be there.
In my response, I told the questioner that there is no such clause in the Constitution, and that it was actually a good thing that it's not there. Recall efforts are disruptive and take attention away from the work that the Congress or the President should be doing. If a member of Congress or the President acts in an egregious manner, there are ways of removing them from office (to wit, impeachment). Short of that extreme and rare measure, the people are free to exercise their rights of free speech, of petition, and, ultimately, the power of the vote.
Constitutional FAQ
One of the most popular pages on my U.S. Constitution web site is the FAQ. As you may already know, "FAQ" stands for "Frequently Asked Questions." The concept is to place such questions in a central location so that as the same questions arise again and again, the answers can be quickly found.
Despite the FAQ, I still get a lot of the same frequently asked questions, especially, it seems, from students who have come to expect that answers should fall into their laps, rather than come to them through a bit of research. I find these to be "teachable moments," and often refer these students to specific sections of the Constitution, writing "If you read this section, you'll find your answer."
The past year has brought about a whole new set of questions that I had not seen before — whether they will attain "Frequently Asked" status or not, only time will tell.
One perfectly reasonable question often goes like this: "I've searched through the Constitution and cannot find the words 'health care' anywhere. What gives Congress the right to enact health care legislation at all?"
Parenthetically, I usually tell such questioners that the Congress doesn't have "rights" to do anything. It does, however, have the "power" to do things. The discussion of rights versus powers is sometimes an overwhelmingly philosophical one, but the distinction is important.
That detail aside, the answer to many questions of this type have the same answer: Article 1, Section 8 is a list of the powers of Congress. Some of them are quite specific and limited (for example, the power to coin money or establish post offices).
Others, however, are succinct in their phrasing but expansive in their practical effects. Clause 1 is one of the most expansive, granting Congress the power to collect taxes in order to, among other things, provide for the "general Welfare" of the United States.
If health care cannot be called a component of the general welfare of the people, nothing can be.
Clause 18 completes the picture. This clause grants Congress the power to make all laws "necessary and proper" to carrying out the powers listed previously. Whether the Framers of the Constitution understood what they had done when they wrote clauses 1 and 18 is a subject of some debate in historical and political science circles, but for all practical purposes the debate is settled.
When the Bush and Obama administrations were bailing out troubled banks, a common question went like this: "Under what authority does the government gain control of private business by giving or loaning them taxpayer money?"
The answer is another expansive clause of Article 1, Section 8; Clause 3, the interstate commerce clause. Under this clause, paired with Clause 18 again, the Congress has the power to enter into arrangements with business such as it did at the beginning of this year. I hasten to note that the government was not looking for an actual take-over of the affected businesses, but some degree of control was thought necessary (and proper, if you'll forgive the constitutional pun) to bring banks under control. This would give Congress and government agencies time to come up with new regulations to prevent such crises in the future, once the direct government influence of the businesses was removed.
Finally, this question came to me recently: "How does the Constitution say the people can kick out the Congress or the President?"
Questions such as these bemuse me, and it happens quite often. A plain reading of the Constitution reveals that there is nothing like a "recall clause", but the questioner assumes it must be there.
In my response, I told the questioner that there is no such clause in the Constitution, and that it was actually a good thing that it's not there. Recall efforts are disruptive and take attention away from the work that the Congress or the President should be doing. If a member of Congress or the President acts in an egregious manner, there are ways of removing them from office (to wit, impeachment). Short of that extreme and rare measure, the people are free to exercise their rights of free speech, of petition, and, ultimately, the power of the vote.
Thursday, September 17, 2009
Sizing up the 2010 governor's race
This column originally appeared in the Williston Observer on September 17, 2009.
Sizing up the 2010 governor's race
Just a little under a year ago, in this space, I noted that Governor Jim Douglas was a virtual shoo-in for governor in the 2010 election, should he decide to run. As you've surely heard or read by now, Douglas has, indeed, announced his intention to not run in 2010.
True to his Vermont spirit, Douglas assured Vermonters that he would serve out his term, unlike some other notable Republican governors. When VPR's Bob Kinzel suggested that Douglas could give his Republican lieutenant governor Brian Dubie a leg up in the 2010 election by stepping down early, Douglas was unequivocal about his intention to go the distance.
With the curtain on the Incumbent Protection Plan drawn back, Douglas's decision opens up possibilities for a new face in the office, the same way Howard Dean's decision gave Douglas his chance, and Madeleine Kunin's decision allowed Richard Snelling to step back into the governor's office.
On the Republican side, there are several familiar names mentioned as contenders, though none have officially announced as yet. These include Lt. Governor Brian Dubie, former Vermont National Guard Commander Gen. Martha Rainville, recent Republican convert Tom Salmon, and Mark Snelling, son of the late aforementioned governor. The general consensus is that everyone else is awaiting Dubie's decision before moving ahead with their own plans.
On the Democratic side, there are several familiar names, many of whom are now serving the state with distinction. Unlike the Republicans, though, some are not waiting to make their intentions known.
Deborah Markowitz has been Vermont's Secretary of State since 1998, having been elected to the office six times. In 2008, she was reelected with 70.8% of the vote. In her role, she has been a champion of towns and cities and of open government. I've been impressed with her efforts promoting free and fair elections, and in her office's efforts to move the state to higher and higher voter turn-outs. Though she is the veteran of many statewide elections, I'm not sure of her experience as an executive.
Doug Racine is a former lieutenant governor and on-again-off-again member of the state Senate. Racine lost a bid for the governor's office in 2002, to Douglas. Racine has the benefit of statewide name recognition and executive experience, both in business and government. In Chittenden County, at least, he enjoys wide popularity, being re-elected to the Senate in 2008 by the highest vote count in history. Fair or not, though, I do feel like Racine had his chance in 2002.
Both Markowitz and Racine have officially announced their intention to run for governor in 2010.
Senate President Pro Tem Peter Shumlin has been mentioned frequently as a possible contender, but has not made a formal announcement as yet. Shumlin has served in the House and the Senate since 1989. Shumlin ran for lieutenant governor in 2002, losing to Dubie. It would be interesting to see the two lock horns again for the big chair in 2010, but I have a feeling the experience may have left Shumlin gun shy. He may be more content to serve the state on the legislative side.
A possible dark-horse candidate could be Treasurer Jeb Spaulding. TV commercials produced for the Treasurer's office, offering Vermonters a chance to recover misplaced bank accounts, have graced the airwaves for years, boosting Spaulding's statewide name recognition. Spaulding also enjoyed a whopping 89.9% support rate in the last election, though he had no serious Republican opponent, a luxury he would not enjoy in 2010.
Finally, there are rumblings that our U.S. Representative Peter Welch might be interested in the governor's job, and also that recently selected Speaker of the Vermont House, Shap Smith, is contemplating a run. I'm dubious, however. Welch, like Racine, has made a trip to the trough, in 1990, losing to Richard Snelling; and Smith, with even less experience than 2008 Democratic loser Gaye Symington had in the same job, might not see statewide office as attainable just yet.
Lastly, this question: Kunin, after leaving office, joined the U.S. diplomatic corps, serving her adopted country as ambassador to her native Switzerland. Dean, as we can well-remember, ran for president in 2000, then became head of the Democratic National Committee. What, then, is in store for Douglas?
When he spoke with Kinzel at the end of August, he had no plans yet, but I'm sure offers will begin to flow soon, if they have not already. Whatever role he plays, I am certain of one thing. He will play it with distinction.
Sizing up the 2010 governor's race
Just a little under a year ago, in this space, I noted that Governor Jim Douglas was a virtual shoo-in for governor in the 2010 election, should he decide to run. As you've surely heard or read by now, Douglas has, indeed, announced his intention to not run in 2010.
True to his Vermont spirit, Douglas assured Vermonters that he would serve out his term, unlike some other notable Republican governors. When VPR's Bob Kinzel suggested that Douglas could give his Republican lieutenant governor Brian Dubie a leg up in the 2010 election by stepping down early, Douglas was unequivocal about his intention to go the distance.
With the curtain on the Incumbent Protection Plan drawn back, Douglas's decision opens up possibilities for a new face in the office, the same way Howard Dean's decision gave Douglas his chance, and Madeleine Kunin's decision allowed Richard Snelling to step back into the governor's office.
On the Republican side, there are several familiar names mentioned as contenders, though none have officially announced as yet. These include Lt. Governor Brian Dubie, former Vermont National Guard Commander Gen. Martha Rainville, recent Republican convert Tom Salmon, and Mark Snelling, son of the late aforementioned governor. The general consensus is that everyone else is awaiting Dubie's decision before moving ahead with their own plans.
On the Democratic side, there are several familiar names, many of whom are now serving the state with distinction. Unlike the Republicans, though, some are not waiting to make their intentions known.
Deborah Markowitz has been Vermont's Secretary of State since 1998, having been elected to the office six times. In 2008, she was reelected with 70.8% of the vote. In her role, she has been a champion of towns and cities and of open government. I've been impressed with her efforts promoting free and fair elections, and in her office's efforts to move the state to higher and higher voter turn-outs. Though she is the veteran of many statewide elections, I'm not sure of her experience as an executive.
Doug Racine is a former lieutenant governor and on-again-off-again member of the state Senate. Racine lost a bid for the governor's office in 2002, to Douglas. Racine has the benefit of statewide name recognition and executive experience, both in business and government. In Chittenden County, at least, he enjoys wide popularity, being re-elected to the Senate in 2008 by the highest vote count in history. Fair or not, though, I do feel like Racine had his chance in 2002.
Both Markowitz and Racine have officially announced their intention to run for governor in 2010.
Senate President Pro Tem Peter Shumlin has been mentioned frequently as a possible contender, but has not made a formal announcement as yet. Shumlin has served in the House and the Senate since 1989. Shumlin ran for lieutenant governor in 2002, losing to Dubie. It would be interesting to see the two lock horns again for the big chair in 2010, but I have a feeling the experience may have left Shumlin gun shy. He may be more content to serve the state on the legislative side.
A possible dark-horse candidate could be Treasurer Jeb Spaulding. TV commercials produced for the Treasurer's office, offering Vermonters a chance to recover misplaced bank accounts, have graced the airwaves for years, boosting Spaulding's statewide name recognition. Spaulding also enjoyed a whopping 89.9% support rate in the last election, though he had no serious Republican opponent, a luxury he would not enjoy in 2010.
Finally, there are rumblings that our U.S. Representative Peter Welch might be interested in the governor's job, and also that recently selected Speaker of the Vermont House, Shap Smith, is contemplating a run. I'm dubious, however. Welch, like Racine, has made a trip to the trough, in 1990, losing to Richard Snelling; and Smith, with even less experience than 2008 Democratic loser Gaye Symington had in the same job, might not see statewide office as attainable just yet.
Lastly, this question: Kunin, after leaving office, joined the U.S. diplomatic corps, serving her adopted country as ambassador to her native Switzerland. Dean, as we can well-remember, ran for president in 2000, then became head of the Democratic National Committee. What, then, is in store for Douglas?
When he spoke with Kinzel at the end of August, he had no plans yet, but I'm sure offers will begin to flow soon, if they have not already. Whatever role he plays, I am certain of one thing. He will play it with distinction.
Thursday, September 3, 2009
Quality health care is a right
This column originally appeared in the Williston Observer on September 3, 2009.
Quality health care is a right
If you've read more than one or two of these columns, you know that I'm a big fan of President Barack Obama. He represents the best that America has to offer, and I'm happy to see him occupying the big chair in the White House.
But I'm no sycophant. Obama and his crew are not above criticism. To paraphrase James Madison, if Obama was an angel, there would be no need for criticism. But he is not an angel, and as such, he is subject to error.
So it is with his handling of the health care debate of late.
Democrats had a long wait to get to where we are today. We hold the White House, we hold a strong majority in the House, and we even hold a filibuster-proof majority in the Senate. In theory, we could do whatever we feel is best for the country.
The President, however, has waffled on too many points, allowing a strong stance to wither to a soft position on the issue. I agree with him that some reform of our current system is necessary. Using haberdashery as a metaphor, he said insurance reform is a belt and the public insurance option is a pair of suspenders — both will keep up your pants. Using his analogy, though, I say that if reform is the belt, the public option is the belt loops. If you don't have the latter, the former won't be effective.
The far-right lie machine is partially to blame for Obama's shift. The President has been working so hard to squashing the lies, there's little time left to talk about the basic issues. But the lies keep coming: death panels, pulling the plug on grandma, taxing the middle class, rationing health care, socialized medicine, and, most recently "The Death Book." If I didn't know better, I'd be scared.
But I'm more scared of what will happen without a strong public insurance option, and part of this fear is for myself. What if a I lose my insurance? I'm a Type 1 diabetic, completely reliant on insulin injected on a minute-by-minute basis to stay healthy and, indeed, alive. I am the definition of "pre-existing condition."
I've been fortunate that I love my job and the people I work with, that I've made good choices with my career path, and that I've had a bit of luck here and there. I hear horror stories about people like me who lose their jobs, or change a job willingly, or move to a new city, or even who graduate from college to the work force (and, thus, transition from their parents' insurance plan to their own), and have to wait for benefits to kick in.
It is a simple concept: No one should have to live with the fear of losing their insurance.
Recently-departed Senator Edward Kennedy was a champion of health care for all, and in the course of several television and radio obituraries last week, it was noted that one of his biggest frustrations over the past four decades was the lack of movement on universal health care coverage. Obama and the Democrats should honor Kennedy's memory by renewing their efforts to push for a better plan.
President Obama needs to use the power of the bully pulpit to bring Democratic leaders together and come up with a comprehensive plan for American's health care future. The public health insurance option must be a part of that plan, as a safety net and as an alternative for business.
We must reform how insurance works in this country so that insurance companies are more concerned with patient outcomes than with profits.
We must spend money to find the most beneficial and cost-effective treatments for common conditions. We must work to prevent disease that is the result of lifestyle choices like smoking, overeating, and inactivity. We must continue to develop new equipment, techniques, and treatments that will help us or our loved ones.
We must leverage technology to contain costs and ensure the best care is cost-effective care.
I've wrestled with the notion of health care being a right versus a privilege, but I've come to the conclusion that without good health, there is no point to having freedom of worship or speech or expression. Good health is a right — a basic human right — and our government should start acting like it is.
Quality health care is a right
If you've read more than one or two of these columns, you know that I'm a big fan of President Barack Obama. He represents the best that America has to offer, and I'm happy to see him occupying the big chair in the White House.
But I'm no sycophant. Obama and his crew are not above criticism. To paraphrase James Madison, if Obama was an angel, there would be no need for criticism. But he is not an angel, and as such, he is subject to error.
So it is with his handling of the health care debate of late.
Democrats had a long wait to get to where we are today. We hold the White House, we hold a strong majority in the House, and we even hold a filibuster-proof majority in the Senate. In theory, we could do whatever we feel is best for the country.
The President, however, has waffled on too many points, allowing a strong stance to wither to a soft position on the issue. I agree with him that some reform of our current system is necessary. Using haberdashery as a metaphor, he said insurance reform is a belt and the public insurance option is a pair of suspenders — both will keep up your pants. Using his analogy, though, I say that if reform is the belt, the public option is the belt loops. If you don't have the latter, the former won't be effective.
The far-right lie machine is partially to blame for Obama's shift. The President has been working so hard to squashing the lies, there's little time left to talk about the basic issues. But the lies keep coming: death panels, pulling the plug on grandma, taxing the middle class, rationing health care, socialized medicine, and, most recently "The Death Book." If I didn't know better, I'd be scared.
But I'm more scared of what will happen without a strong public insurance option, and part of this fear is for myself. What if a I lose my insurance? I'm a Type 1 diabetic, completely reliant on insulin injected on a minute-by-minute basis to stay healthy and, indeed, alive. I am the definition of "pre-existing condition."
I've been fortunate that I love my job and the people I work with, that I've made good choices with my career path, and that I've had a bit of luck here and there. I hear horror stories about people like me who lose their jobs, or change a job willingly, or move to a new city, or even who graduate from college to the work force (and, thus, transition from their parents' insurance plan to their own), and have to wait for benefits to kick in.
It is a simple concept: No one should have to live with the fear of losing their insurance.
Recently-departed Senator Edward Kennedy was a champion of health care for all, and in the course of several television and radio obituraries last week, it was noted that one of his biggest frustrations over the past four decades was the lack of movement on universal health care coverage. Obama and the Democrats should honor Kennedy's memory by renewing their efforts to push for a better plan.
President Obama needs to use the power of the bully pulpit to bring Democratic leaders together and come up with a comprehensive plan for American's health care future. The public health insurance option must be a part of that plan, as a safety net and as an alternative for business.
We must reform how insurance works in this country so that insurance companies are more concerned with patient outcomes than with profits.
We must spend money to find the most beneficial and cost-effective treatments for common conditions. We must work to prevent disease that is the result of lifestyle choices like smoking, overeating, and inactivity. We must continue to develop new equipment, techniques, and treatments that will help us or our loved ones.
We must leverage technology to contain costs and ensure the best care is cost-effective care.
I've wrestled with the notion of health care being a right versus a privilege, but I've come to the conclusion that without good health, there is no point to having freedom of worship or speech or expression. Good health is a right — a basic human right — and our government should start acting like it is.
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