Can We Agree That Constitutional Safeguards Are Good?

This hurts my brain (5.00 / 1)

I need to read this in pieces or my brain will be overloaded and will, in all likelihood, probably explode.

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by: EvanMKenney @ Tue Feb 12, 2013 at 22:48:50 PM UTC

Question for you Evan... (0.00 / 1)

...sorry to hijack this post, but you've been fairly visible lately (commenting in the Globe, posting on the GOP chair battle) and one fact that I've learned about you strikes me and I wanted to ask you about it.

You certainly adhere to libertarian views and that is why I find it odd that you are receiving a government subsidy for your college education.  You go to Fitchburg State, which of course is a government funded college and you are paying a much lower tuition rate because it is being subsidized by tax payers like me.

How do you reconcile your libertarian views with the fact that you rely on government to help get you through college?

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by: Simple J. Malarkey @ Wed Feb 13, 2013 at 13:45:19 PM UTC

[ Parent ]

Just wondering... (0.00 / 0)

Governor Patrick has been on record saying offering in-state tuition to illegal immigrants doesn't cost anything, but rather, actually generates revenue.

How then could Evan's tuition possibly have cost you any tax dollars?!?  The Gov himself said it isn't true.

"Concentrated power has always been the enemy of liberty." - Ronald Reagan

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by: kjkuros @ Thu Feb 14, 2013 at 12:32:30 PM UTC

[ Parent ]

Why don't you ask Gov Patrick that question, I don't... (0.00 / 0)

...speak for the Gov.  I'm just waiting for an answer to my question.  

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by: Simple J. Malarkey @ Thu Feb 14, 2013 at 12:39:39 PM UTC

[ Parent ]

Kudos to Kuros (0.00 / 0)

It's always encouraging to see our reps with a finger on the pulse and contributing to us lay folks, but you're asking a question of a troll, who never provides substance or answers, but will tell you that YOU have to, and then declare that you have conceded your position because he can't answer even his own questions or defend his own positions.  It's frustrating, but that's just the nature of trolls.  Thanks for trying.

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by: Term Limits @ Thu Feb 14, 2013 at 21:48:37 PM UTC

[ Parent ]

Ah the old Liz Warren, Obama rationale (0.00 / 0)

Tell me Simple J,

Where exactly does the state get it's revenue? Would that be taxes payed by the people of Massachusetts? Is that not a contract that a taxpayer is forced into?
Are libertarians not allowed to drive on the "state provided" roads? They did in fact pay for them, even if it was coerced. Are libertarians allowed to call the fire department if their house is burning down?
Your argument is that the state is "providing" this education, but that is false. I am assuming Evan's parents as well as Evan have payed taxes thereby granting him the ability to get a quality education that is subsidized by the state.

"You built a factory out there? Good for you," she says. "But I want to be clear: you moved your goods to market on the roads the rest of us paid for; you hired workers the rest of us paid to educate; you were safe in your factory because of police forces and fire forces that the rest of us paid for. You didn't have to worry that marauding bands would come and seize everything at your factory, and hire someone to protect against this, because of the work the rest of us did."

So does that factory owner not pay an excise tax that is equal to the amount of goods being hauled out of the factory? Are the taxes on the raw materials, and finished good not enough? How about the income generated by the factory? Then the income payed by all of the workers at the factory? Do you get my point?

With government intrusion into all aspects of our lives, it is close to impossible to do anything now without government intervention, which is probably why Evan is smart enough to have libertarian leanings. It is becoming more and more difficult to anything without the big daddy government intruding on our abilities to conduct day to day affairs.

But that is the way you want it isn't it Simple J?

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by: Sawx75 @ Thu Feb 14, 2013 at 13:09:22 PM UTC

[ Parent ]

Good question (5.00 / 2)

I genuinely appreciate it. My mind is still young. I like to think I'm principled, but I keep an open mind.

Although I believe that government shouldn't have a place in what ideally would be a free market of college/university education, my family has invested (whether or not they agree it is a sound or just investment) in the infrastructure of this state education, therefore my family is entitled to utilize these creations, even though I believe a truly privatized educational system would most benefit students.

I have chosen the State option because, frankly, inflation and government intervention leave me no choice. Although this market is demented, my decision as a consumer to attend a state University is strictly financial.

It is my position that, without governmental financial aid, tuition prices would drop tremendously. No one in a free market would attend a school that charges $75,000 a year, so the institutions would either be forced to lower their prices, or close.

How'd I do? I'm on my way out the door to class, ironically, so I hope I didn't say anything that will bite me. Thanks for the question. It is genuinely appreciated, and valid.

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by: EvanMKenney @ Thu Feb 14, 2013 at 18:33:05 PM UTC

[ Parent ]

There's no free market in education. (0.00 / 0)

Only one or two colleges refuse federal funds.

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by: Couves @ Thu Feb 14, 2013 at 18:53:19 PM UTC

[ Parent ]

A for effort... (0.00 / 2)

...but your opinions seem to be built on assumptions to which you provide no evidence (but you are between classes).  

It sure is reasonable to point out your family pays taxes and therefore you have every right to take advantage of the services provided.  But there are many people that pay taxes and won't take advantage of the state college system.  Will you support paying taxes for services they use but you don't use or, as a libertarian, will you advocate eliminating those services?  

Not sure how "inflation and government intervention" left you with "no choice" to go to Fitchburg.  I hope the majors they offered had something to do with it to.  Sorry to be sarcastic, but the only government intervention I can think of forcing you to go to Fitchburg is the subsidy that allows you to pay about 1/2 to 1/3 of the cost of Emerson to learn media production.  

Also, you need to expand on your feelings that without government aid, tuition would drop tremendously.  What evidence can you present to back that up?  I can point to history.  Until the 1860s college was limited to only the elite and it wasn't until the progressive Republican Abraham Lincoln passed the concept of state land-grant colleges.  Also the modern expansion of higher education was the post WWII GI Bill.  Yes they deserved thanks from a grateful nation, but it also helped spur a huge economic expansion that  paid for the government investment many fold.

Why didn't the "free market" make college affordable before government intervention?  What model can you point to where high quality higher education is offered in a poor free market system that is affordable for everybody?  

Now, if you want to contend that gov aid and student loans (and research grants) give colleges an incentive to raise costs...I believe there is truth to that.  But the biggest exploitive force to that, is the "free market" for profit colleges.  Even with all the their faults, traditional higher ed institutions provide a substantial aid from their (mostly private) endowments.  They give money away, certainly the antipathy of free market principles.  That is because they harken back to a day when "higher learning" was viewed outside the content of markets.  

The bottom line for me is that I don't mind my tax dollars going to you and your classmates.  You all will be better able to be more productive in the future, making more money, therefore paying more taxes and therefore help take care of me if I run out of retirement money when I'm (hopefully) 85.  I can have a few million stashed away for retirement,  but potential nursing home care for two could be $50,000 a month in 40 years and break my bank.  Will you be taking my tax dollars today, to help you today, but argue in 40 years that I should have been "more responsible" and government has no role in taking care of me?

Is the basic belief that investing taxes into common services--like access to education--which provide both personal and societal benefits, but can not be afforded by many individuals, so radical or objectionable?  Maybe today.  But there is a long and strong history of that principle in our country's history.

Perhaps we can/will have an ongoing dialogue about libertarianism.  I feel it is a completely alien concept to the true roots of our nation, which truly lies in one of the original rhetorical bricks in the foundation of American political thought:

"...We...solemnly and mutually...combine ourselves together into a civil body politic; for our better ordering, and preservation and furtherance of the ends aforesaid; and by virtue hereof to enact, constitute, and frame, such just and equal laws, ordinances, acts, constitutions, and offices, from time to time, as shall be thought most meet and convenient for the general good..."

You won't find those words in any Ayn Rand book.  

 

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by: Simple J. Malarkey @ Fri Feb 15, 2013 at 04:01:34 AM UTC

[ Parent ]

Liberals like to talk about how empowering publicly-funded education is. (5.00 / 2)

But it sounds like you have plans to keep Evan on a short leash for at least the next 40 years.

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by: Couves @ Fri Feb 15, 2013 at 08:29:23 AM UTC

[ Parent ]

What about the emergency parking bans? (0.00 / 0)

Are there any or even the same Constitutional issues with those?  I'm not seeing much of a difference between seizing a parked car because it's parked versus seizing a traveling car because it's traveling.  

I didn't hear much griping about tyrannical parking bans from people.  Just saying...

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"That it ceased to exist, I'll grant you, but whether or not it failed cannot be definitively said." - Metropolitan (1990)

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by: Patrick @ Wed Feb 13, 2013 at 00:13:49 AM UTC

In jail v. at home watching a movie (5.00 / 1)

Patrick - Emergency parking bans are pursuant to regulatory authority, similar to requirements to register your car, inspect it, maintain insurance. It would be difficult to argue that there is not a rational state interest in maintaining emergency routes, plowing streets, etc.

Violating the parking ban does not subject an individual to detainment. If you were to be at your car when the citation was issued and your car towed, you would not be subject to arrest. If the travel ban were not in place, you might be allowed to just move your car. Arguably, your car would not be seized past the point that it had been towed because you would have the right to retrieve it from the tow lot immediately. You could go back inside and watch a movie while you waited for the snow to stop.

Driving is also governed by regulatory authority, and we have a driver's license because it is a license, not a right. The problem with the Executive Order was that it effectively revoked that license such that suddenly, merely driving subjected someone to not only an investigative stop, but arrest, without any guidelines for enforcement.

Executive Order 543 was one page, and sidelined the entire body of case law pertaining to seizure of individuals driving vehicles as well as their vehicles.  

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by: Andrea Lance @ Wed Feb 13, 2013 at 16:45:03 PM UTC

[ Parent ]

They may close our highways... (0.00 / 0)

but they'll never take our

FREEDOM!

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by: Bravehaht @ Wed Feb 13, 2013 at 00:46:43 AM UTC

Well, until they take our freedom. (0.00 / 0)

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"That it ceased to exist, I'll grant you, but whether or not it failed cannot be definitively said." - Metropolitan (1990)

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by: Patrick @ Wed Feb 13, 2013 at 00:54:46 AM UTC

[ Parent ]

Thanks for the analysis (0.00 / 0)

What alternative would avoid these Constitutional problems?  Secondary enforcement?

Most people have objected to the order on purely policy grounds.  First off, it was obviously unenforceable.  The day after the storm, there were even kids driving ATV's all over my city.  Everyone knows that enforcement is much more difficult in severe weather conditions.  The idea was to make up for this with draconian penalties -- one year in jail.  This combination, no enforcement plus severe penalties, has been known to make bad policy since the days of Beccaria.

Better to just let people judge for themselves whether the importance of the car trip is equal to the obvious dangers involved.

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by: Couves @ Wed Feb 13, 2013 at 02:36:48 AM UTC

OUI check point guidelines... (0.00 / 0)

...were established based on court decisions, correct?  People challenged the checkpoints in court and the courts ruled them constitutional based on certain conditions and the State Police established guidelines based on those decisions.  

The same would be true regarding the driving ban.  If an arrest (or really anything) occurred, it can be changed in court and the court will decide.  If it goes to the SJC, then enforcement of future travel bans would be implemented based in the SJC ruling.  What is so hard about that?  Instead people are foaming at the mouth about tyranny.

BTW, was the penalties of a year in jail and the $500 fine part of EO 543, or was the penalty written into a law that EO 543 referred to?

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by: Simple J. Malarkey @ Wed Feb 13, 2013 at 14:20:54 PM UTC

Looking to the crime lab scandal (5.00 / 1)

Malarkey - What is so hard about appellate process: it takes forever, and in the meantime people will suffer extreme deprivations of liberty. The crime lab scandal is a horrible example - people have been wrongfully imprisoned, convicted, and deported. What I have tried to do in this post is flag the constitutional issues that could be raised in court or brought to the attention of elected officials to proactively ensure that future orders include constitutional safeguards.

The larger issue, as it seems like law enforcement may not have actually charged people with violation of the Executive Order itself, is where a stop justified by the Executive Order led to charges for separate crimes. Fourth Amendment remedies focus on flagrancy of police conduct, not remedying individuals whose rights are later found to have been violated. The Exclusionary Rule excluding unconstitutionally obtained evidence has a Good Faith Exception whereby evidence obtained by law enforcement acting in good faith reliance on existing law is not subject to exclusion.

I think the generalized cries of tyranny were due to a sense that the Executive Order just didn't feel right (too bare, draconian penalties) and stating articulate objections takes time and consideration of the issues, particularly where there was a legitimate safety concern to justify exercise of executive power. It doesn't help that this has become a falsely dichotomized discussion where people are expected to be either wholly for or against the Executive Order, not critical of its content. And, people were snowed in and while reasonable minds can differ, the Braveheart memes and traffic ban enforcement drone tweets were pretty funny.

Here is the Executive order. No reference to the penalties. I have only heard them quoted in the media.  http://www.mass.gov/governor/l...

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by: Andrea Lance @ Wed Feb 13, 2013 at 15:56:29 PM UTC

[ Parent ]

The Penalties (5.00 / 1)

The penalties aren't from the Executive Order itself; they flow from Chapter 639 of the Acts of 1950, which grants the Governor the authority to declare a state of emergency (whether caused by invasion, public disorder, or natural disaster). The statute sets the penalty for violation of an Executive Order at imprisonment for not more than one year or a fine of not more than $500. That's why I think a lot of the criticism of the Governor is overblown. He didn't unilaterally decide to set that penalty; it's automatic if he's going to issue an order under that statute.

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by: Tappan Wentworth @ Wed Feb 13, 2013 at 16:28:07 PM UTC

[ Parent ]

Thank you for clarifying that point... (0.00 / 0)

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by: Simple J. Malarkey @ Wed Feb 13, 2013 at 16:45:56 PM UTC

[ Parent ]

Crime lab scandal is a poor comparison... (0.00 / 0)

People are arrested for drugs scores of times each day in the Commonwealth...the drug lab in question processed about 50,000 cases in the years being questioned.  This driving ban has been declared twice in more than 30 years.  

Your larger issue, if a stop under the EO led to charges for separate crimes, appears to be a completely theoretical question, as there is no indication that this occurred.  Yes, you do have a theoretical point worthy of discussion.  But for now that discussion appears more for a law school classroom.  

At best, legislation could be drafted to clarify the 1950 law that is the basis of the EO.  Or, if someone was charged with a crime that was caused by a traffic stop due to the EO.  As a lawyer, I'm surprised at your criticism of the appellate process.  Yes, it often takes time, but it is one of the bedrocks of our judicial system.  Only until this process examines the complex issues surrounding a particular issue, can it be determined whether, in your words, "extreme deprivations of liberty" have occurred.  (I would assume that the SJC would up hold a conviction of someone arrested for a unrelated crime, due to a traffic stop under the EO, using the same standards as they have applied to DUI road blocks.)

Second guessing is a lubricant in our political system.  As is hindsight.  If this storm ended in a whimper, then the Governor's decision would have been proven wrong.  But hindsight showed us what went wrong in Long Island, endangering the lives of hundreds and costing thousands in unneeded tax dollars to clean up the mess, and that the Governor made the right decision.  Now his critics can only latch on to theoretical "what ifs", waving the banner of "extreme deprivations of liberty".  You may have to wait for another 30 years before this driving ban is imposed again, before a real case can be found to determine its constitutionality.  

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by: Simple J. Malarkey @ Wed Feb 13, 2013 at 17:06:24 PM UTC

[ Parent ]

Crime lab scandal is a great comparison if you're the one wrongfully imprisoned (5.00 / 3)

There is nothing theoretical about the fact that Executive Order No. 543 was devoid of the guidelines for enforcement required for OUI roadblocks to be constitutionally permissible. The situations I presented were allowed under the order.

Clarifications for enforcement to safeguard constitutional rights without impacting public safety were exactly what I suggested, such as:

-Basing locations for enforcement on crash data from previous storms.

-Requiring exclusion of evidence of a separate crime for which an individual was already under investigation, where the investigative stop was justified only by the EO 543.

That fewer individuals stood to be affected under EO 543's suspension of Fourth Amendment protections here as compared to the numbers wrongfully convicted in the crime lab scandal does not make EO 543 any more constitutional.

Recognition that cases are often moot by the time the appellate process is complete months or years later is the reason courts allow jurisdiction in cases where the issue is "capable of repetition yet evading review." Of course, where someone is subject to a year in jail, the appeals court can always vacate the conviction even if it can't give the year of life back.

No, we don't have to wait for the appellate process to provide redress for previous injustice. Freedom of speech on political matters can avoid injustice before it happens. Appellate attorneys (I am one) have to get their arguments somewhere. You can malign situations that have not definitely occurred yet as "theoretical" and "belonging in a law school classroom." The Supreme Court calls them "dicta" and refers to them in rationale for their decisions in the expectation that they will see them soon.

I prefer to be proactive rather than reactive when constitutional rights are concerned, which is why I never stopped having those law school classroom conversations when I got my law license, I moved them to courtrooms. And in this case, Red Mass Group.

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by: Andrea Lance @ Wed Feb 13, 2013 at 19:41:11 PM UTC

[ Parent ]