Monday, January 27, 2014

Personhood v. Property: A Difficult Line to Draw with No Clear Answers

A brain dead pregnant woman with a 14 week fetus lies in a hospital room on life support.
    A corporation endorses candidates for office and makes independent expenditures on their behalf.
    A slave in 1836 is taken by his owner to Fort Snelling, Minnesota.
    A primate communicates with its keepers.
    A robot or computer wins Jeopardy.
    A highly intelligent space alien visits Earth.
    Six bizarre scenarios, but all raise the same question: Which is a person?  The woman, the fetus, the corporation, the slave, the primate, the robot, or the space alien?
    One of the most perplexing questions ethically and constitutionally is who is a person and therefore entitled to protection under the Constitution?  There may be no simply answer but the line between property and personhood is a difficult one to draw but it is one that is dividing America politically and it will continue to be one that shapes policy debates into the future, much as they have in the past.  However, when it comes to debates such as abortion or corporate free speech rights, too many people think there are simple answers to resolving questions by simply asserting that something is a person or not.
    Beyond recent events in the news, the occasion for raising this issue is that about a week ago I debated University of St Thomas professor Teresa Collett.  It was at a forum about the concept of free will and free choice–issues that underlie the pro-life and pro-choice debate.  We debated the day before the anniversary of Roe v. Wade.  My task was to defend the philosophical or ethical concept of choice–she took the contrary position.  What she really wanted to do was argue against abortion.  She and the crowd were adamant in asserting that they knew the fetus was a person.  In the end, I argued their position was a matter of faith.  There is no scientific answer defining who or what is a person.  In part, the philosophical basis for pro-choice is about skepticism about what it means to be a person.  Skepticism about ultimate truths also underlies in part the concept of recognizing individual freedom and toleration for diverse opinions.  Whatever I believe may not be correct and others may not share  this view.
    It is just not so easy as some think to define who or what is a person.  The Constitution does not define who or what is a person and there seems to have been a binary switch in terms of how to think about persons–either you were one or not.  If you were a person you had certain rights, although exactly what those rights were was debatable.  Few debated that children, women, or non-US citizens were persons, yet they did not enjoy all the same rights and privileges as did mature men.  Even today rights are qualified–children have limited rights and are not entitled to vote until a certain age and they face other restrictions (smoking, drinking, and driving) that adults do not.  Non-citizens are also restricted in what they are permitted to do.  And take us back more than 100 years, or even simply today, and women were restricted in what they could do.  Similarly, gay and lesbians are persons but in many states still face restrictions on marriage.  All of these people are persons constitutionally, but face limits on their rights.
    But if something is not a person constitutionally, what is the alternative? Property.  Slaves prior to the Civil War and the passage of the 13th Amendment were simply viewed as property of their owners.  That is why when Dred Scott was taken north to Fort Snelling and free territory he was not considered free under the Missouri Compromise.  He was human but nonetheless property and could not be taken away from his owner less it would be a violation of the Fifth Amendment eminent domain clause.  Property status means no rights except as they attach to the owner.  Animals were historically viewed as property and therefore owners could do whatever they wanted to them.  The same with computers, or robots.
    But for so many reasons, the line between property and personhood has become more complex legally to draw for a simple reason–there is no objective answer to what constitutes a person.  Contrary to the assertions of many, especially in the pro-life community, there is no objective scientific answer to what constitutes a person.  Simply asserting that one is a member of the homo sapiens species is not an answer–it is not even the beginning or the end of the analysis.
    Rightly or wrongly the Supreme Court has ruled corporations to be persons and entitled to some rights, yet no one would claim these entities to be homo sapiens.    A human zygote is genetically a member of the  homo sapiens species, but to call it a person is also foolish since it lacks all the other attributes we attribute to persons including a sense of self-awareness or maybe a concept of will.  A brain dead person on life support is genetically human, but not alive, is she really a person?  Or consider a primate who shares 99%+ human DNA is compared to a child born with severe genetic mutations.  Genetically how much of a difference is there really between the two.
    Now push the issue into a stranger direction.  What about super smart computers or robots who can think and develop a sense of self-awareness of the world?  Think of HAL in the movie 2001: A Space Odyssey.  Or how about a day in the future when humans are rebuilt along the lines of Lee Majors in the old television show Six Million Dollar Man and a human is half machine and  half flesh and blood?  Compare him to a robot?  What if both kill someone–who can be charged with a crime?  Or what if space aliens from a more advanced civilization visit Earth and they are a lot smarter than us?  They may not be humans but if they had superior intelligence and were self-aware, they have attributes they we presently use to distinguish us from animals in denying them rights.
    Defining who or what is a person is a complex task.  There may be no one correct answer and I contended at the debate on free will and abortion that ultimate answers rely in part on reaching social consensus on this question.  But even there the answer is not resolved.  By that, even if something is recognized as a person that does not resolve the issue of what rights are entitled.  Rights also must be adjudicated in light of the rights of others and in regarding to competing social values that must be weighed.  Even if we treat corporations as persons, that does not mean that they get all the rights as other homo sapiens and it may be the case that we favor or let the rights of real humans trump that of corporations.  Similarly, even if we concede that a fetus is genetically homo sapiens, that does not mean it is a person and even if a person we do not know what rights it is entitled to and how those rights must be weighed in comparison to other social values–such as respect for a right for women to control their bodies.

Saturday, January 18, 2014

NSA Spying and the Constitution: Why Obama does not get it

“[N]othing that I have learned since indicated that our intelligence community has sought to violate the law or is cavalier about the civil liberties of their fellow citizens.”
    –Barack Obama, January 17, 2014

    Barack Obama simply misses the point.
    In a windy speech seeking to address NSA spying on American citizens and foreign national, including our allies, Obama’s speech amounted to nothing more than “trust the government to do the right thing and protect your rights.”  Such a sentiment completely misses the point about why we have a Constitution and in particular, the Fourth Amendment and the demands that searches be conducted only upon probable cause.
    Let’s first start with why the speech.  The speech did not take place because the president was genuinely concerned or worried about the threat to individual liberties associated with the NSA intelligence gathering of our phone, e-mail and other metadata.  Instead, the only reason the speech took place was because of the disclosures by Edward Snowden.  Had those leaks not occurred it seems unlikely that the public would have known about the NSA spying.  After all, the FISA Court that issues warrants to allow for activity like this is a secret court–no different than the old Star Chamber of the British monarchy.  One can debate whether Snowden is a hero or a criminal but the truth is that he revealed something that the public would not have known about.
    As a result of Snowden we have come to learn of the extensive reach of the NSA in terms of spying on Americans and others across the world. We have also come to learn from a few scattered court decisions issued that the NSA has not always complied with court warrants, often exceeding them or acting way beyond their scope.  All in the interest in keeping us safe and secure from terrorism.  But Snowden’s disclosures have forced a public debate, pushing the president into the position of having to form a task force to reevaluate they NSA activity.  His speech on January 17, was a response.
    To say the least, Obama was unapologetic if not defiant.  He first appealed to fear and the threats to our security that terrorism poses and then he defended in a sanitized version how effective our intelligence gathering has been to protect us throughout history.  The ends I guess justify the means.
    But then Obama outlines the changes to the spying program.  Frankly, there were no real substantive changes.  The NSA will continue gathering metadata and will not stop monitoring calls and e-mails.  He does call for some minor changes in the FISA court but they are not really clear what they will be.  The major change is to say that the NSA cannot store the metadata anymore.  Someone else will?  But whom?  Private vendors, like the one who Snowden worked for?  Or companies like Target and Neiman Marcus?  Whether in private or public hands the data still exists, is still being examined, and still constitutes spying.
    Moreover, Obama misses other fundamental issues.  First, the issue is not whether the data has kept us safe and secure.  The issue is about following the law.  Rarely do I echo Rand Paul but he got it fundamentally right on CNN.  If we suspect someone is doing something illegal then get a search warrant.  The fourth Amendment requires particular suspicion to do searches–it does not allow for general fishing trips to look for information or to round up the usual suspects.  It’s not hard to get search warrants–I did it when I worked in government.
    Morever, the security versus liberty dichotomy is a false one.  When are only secure when our liberty is protected.  Additionally, there is no evidence that this wholesale spying is efficient or produces real intelligence.  It is overreach.  Use real intelligence to focus on real suspects.
    Third, to capitulate on the Fourth Amendment means we have lost.    Immediately after the events of 9/11 President Bush declared: “The object of terrorism is to try to force us to change our way of life, is to force us to retreat, is to force us to be what we're not. And that's--they're going to fail. They're simply going to fail.”  Bush was correct in saying what he did even though he would fail to honor them.  We fail as a country if we fail to respect our Constitution and Bill of Rights.  We are the “shining city on the hill” because we respect and do not abuse rights.  That is why stories about spying and torture are so bad.
    But finally, Obama misses it because in the end he speech comes down to no more than simply “trust the government to do the right thing.”  Tell that to James Madison and the constitutional framers.  Constitutions and bills of rights are written because we fundamentally should not always trust the government.  Both are written to restrain the government.  This is what Obama misses.
    I am not conspiracy theorist.  It was a single shooter in Dallas in 1963.  But what should be skeptical about the NSA spying.  We are told they are not listening to our phone conversations or looking at the content of our e-mails?  Should we believe them?  Remember Nixon and the extent of his spying and his assertions that we should trust the president when it comes to national security?
    Obama missed a great opportunity.  It was a chance to do what candidate Obama promised.  It was a chance to also reign in private business data gathering.  It was a change to move us to a new discussion about privacy and rights.  But he failed to do that and instead simply missed the point about spying.

Sunday, January 5, 2014

The Right to Vote in a 21st Century Democracy: Thoughts From My New Book

Note:  I am pleased to announce the publication of my latest book, Election Law and Democratic Theory, published this month by Ashgate Publishing.  This blog draws upon some of the themes presented in chapter three of the book which examines voting rights in America.

    In just a few weeks Minnesotans will attend their party caucuses as part of the process of selecting the candidates who will run for governor and other constitutional offices,  U.S. Senator and House of Representatives, and the Minnesota House of Representatives, among other positions.  Yet if the past is any indication of what will happen, very few individuals will attend these caucuses–some by choice–but others will be excluded by economic or practical necessity, without the option of participating by absentee voting or through technologies that would make it possible to engage, even halfway around the world.
    The exclusionary nature of Minnesota’s caucus system questions what the right to vote really means.  Who gets to participate in our political system and how is among the topics I address in my new book, Election Law and Democratic Theory, published this month by Ashgate  Publishing.  It is if not the first at least one of the first books that makes a simple argument–election law are the rules that make democracy possible.  Election law define the rules of the game.  They define who gets to participate and how, and how the game of politics is played.    Election law rules should be premised upon the values and premises of American democracy, but more often than not they are not.  Instead, incumbency, partisanship, or simply the interests of those already in power right the rules to their benefit.  The aim of Election Law and Democratic Theory is to fashion a theory of democracy for election law and apply it to issues such as voting rights, money and politics, representation, and the role of political parties, corporations, and other entities.
    One of the central questions of the book is asking about the right to vote and what does it entail.  The Supreme Court has ruled that the right extends beyond the initial allocation of franchise.  It would make no sense to say one has a right to vote but then gerrymander legislative districts in a way to violate the “one person, one vote” principle.  Voting would hardly be a fundamental right (as the Supreme Court describes it) if the right could be taken away easily, or if obstacles were throw up that made it difficult to exercise that right.  Yet that has been the case throughout American history.  We have a tradition of extending the right to vote, broadening the constitutional notion of “We the people” to include more and more people, yet there is also an ugly tradition in America characterized by repeated efforts to suppress voting rights. After the Civil War Jim Crow lead to the disenfranchisement of African-American males, and now there is a battle to disenfranchise many new and potential voters just as the demographics are changing. 
    For voting to really be fundamental, it needs to be something that really guarantees voting rights at all stages of political process.  Voting in general elections is supposed to be fundamental  but many states including Minnesota disenfranchise felons.  The Supreme Court has also declared that the right to vote extends to primaries, but again, many have been excluded in the past because  the rule of absentee voting have made it difficult to vote.  Perhaps now with “no excuse” absentee voting more people will participate, but there is no right to vote early or by absentee, and conditions can be attached to it.
    But what about caucuses?  Does the right to vote extend to participating in caucuses?  Yes and no.  Parties have broad authority to decide who can attend their caucuses, but there are limits here.  But the real issue is not for people who want to attend caucuses but opt not to do so, but it is for those who wish to attend them but cannot because they are working, sick, or out of town.  Simply put, there is no absentee voting with the caucuses.  Consider some numbers.
    In 2012, approximately 66,000 individuals constituting less than 2% of the Minnesota voting age population attended its caucuses and cast a ballot in the presidential preference poll.  Conversely, in Wisconsin, a state often held in comparison to Minnesota in terms of its political culture, size, and demographics, its 2012 primary turnout was 25%.
    The point here is that in caucus states this event is an important political activity that excludes many individuals.    Franchise rights should include a right to vote absentee in this activity. Few would endorse the idea that illness, service to country, or work should be discounted as reasons for why individuals cannot show up in person to vote in a general or primary election.  That is why there is absentee voting for these events.  There is a recognition that the right to vote should be permitted for these events.  Yet as noted, absentee voting is a privilege.  The right to vote, if it means anything, should also entail a constitutional right to cast a ballot even if one cannot attend on election day, or caucus evening..  This is especially the case in a country were employers are not required to give paid time off to vote, let alone time off to vote at all.  Voters should not have to choose between making a living or voting.  The marketplace should not undermine the polity, or make voters choose between a civic duty (as some describe voting) or a constitutional right and the imperative to make a living.
    Additionally, and this is another point I make in my book, American democracy needs to catch up with the 21st century.  There is no reason that the right to vote should be stuck in a 19th century model of participation.  New technologies make new forms and avenues of participation possible, and the right to vote, including participation in the Minnesota caucuses, should reflect that.