Friday, Feb. 22, 2019

Part I

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In striking down excessive fines and asset forfeiture, Supreme Court unanimously re-establishes basic principle of constitutional self-government

A unanimous decision handed down just days ago by the United States Supreme Court reestablishes a very basic principle of constitutional self-government. USA Today reported with the headline, High Court Caps Excessive Fines. Richard Wolff, reporting for the paper, tells us the Supreme Court ruled unanimously that states cannot impose excessive fees, fines, and forfeitures as criminal penalties. Wolff continues, “The decision which United the court’s conservatives and liberals makes clear that the Eighth Amendment’s prohibition against excessive fines applies to states and localities as well as the federal government.”

In the release of this unanimous opinion, there were some concurring opinions, but the majority opinion was written by Associate Justice Ruth Bader Ginsburg speaking for the Court. Justice Ginsburg back on the Court actively after she had been away following surgery to deal with lung cancer. But as you look at this story, we have to understand there’s more here than just the headline news that even in this contentious time, the Supreme Court came to a unanimous decision on a major question. It is also really important to understand that there were huge issues at stake here.

Now, the immediate cause of the decision has to do with the fact that the United States government, state governments and local governments have used a system of fines and financial penalties, and most specifically a process known as forfeiture in order to seize private property in order sometimes to use, at other times to liquidate that property, in order to use the proceeds from those sales or liquidations in order to fund portions of government, most particularly criminal investigation and criminal prosecution. The idea behind forfeiture is simple enough to understand.

There are huge amounts of money involved in many criminal enterprises. Some of that money is represented not just in cash. It is also represented in items or objects such as expensive as SUVs or aircraft. When you think about the enterprise of smuggling drugs, you can come to understand that there would be huge amounts of money involved in what could be seized, and at the state, at the national and at the local level, law enforcement agencies have been applying this kind of forfeiture and they’d been seizing those SUVs, fast boats, planes, and other kinds of assets. They’ve been doing so sometimes even without a criminal conviction of the person from whom the property was taken.

In an editorial, published yesterday in the Washington Post, the editorial board said, “The Supreme Court took one small step towards potentially redressing a big constitutional outrage, the pervasive and unjust forfeiture systems that states and localities have used to deprive even innocent people of their property.” The editorial board goes on to summarize this particular case. The court ruled unanimously for Tyson Timbs, an Indiana man who pleaded guilty to dealing in a controlled substance and conspiracy to commit theft. He was sentenced to a year of home detention and five years of probation. Yet state authorities did not stop there. Under a process separate from the criminal proceedings known as Civil Asset Forfeiture they also move to seize his $42,000 Land Rover, which he bought with money from an insurance payout he received when his father died.

The board summarizes, “In civil asset forfeiture cases, law enforcement officers target property such as a sports utility vehicle suspected of being connected to a crime and the standards they must meet to complete a seizure are lower than in criminal prosecutions.” In the case of Mr. Tim’s, Indiana authorities claimed he used his Land Rover to transport heroin. A state court in Indiana ruled that that was not a proportionate penalty. Similarly, the Supreme Court came to the very same conclusion ordering this week in this decision that states and localities are bound to the very same constitutional limitations that operate for the United States Federal government.

Adam Liptak and Shaila Dewan reporting for the New York Times summarized the issue this way, “The practice known as civil forfeiture is a popular way to raise revenue and is easily abused, and it has been the subject of widespread criticism across the political spectrum. The Court’s decision will open the door to new legal arguments when the value of the property seized was out of proportion to the crimes involved.” In the majority opinion, Justice Ginsburg wrote, “For good reason, the protection against excessive fines has been a constant shield throughout Anglo American history. Exorbitant tolls undermine other constitutional liberties. Excessive fines can be used, for example, to retaliate against or chill the speech of political enemies.”

Now, remember how we began, this particular issue has united the left and the right. Liberals and conservatives, very liberal people and Libertarians. Why? It is because there is a very basic constitutional principle that is involved and was vindicated unanimously by the United States Supreme Court in the middle of this week. Justice Clarence Thomas concurring with the majority opinion said that, “The right to be free from excessive fines is one of the privileges or immunities of citizens of the United States of America.”

Now, here’s where we need to do just a little bit of history. A very interesting term was used by Justice Ginsburg in explaining why these constitutional rights must be respected as being even older than the United States Constitution. In order to understand that term, let’s just remind ourselves of what she said, “Anglo American,” what does Anglo American mean? It means the combination of the histories of Britain and the United States. It is grounding America’s constitutional tradition in an even older tradition that goes back to England.

Now, where does it go? How far back? Well, it goes back to the 15th of June in the year 1215, that was when King John, originally known as John Lackland, he was forced by the nobles to sign the document known as the Great Charter or the Magna Carta. In the Magna Carta, going back to 1215, there was established a principle that to be a citizen meant that the king or the government could not wantonly seize your property. This was a very important limitation upon an autocrat, upon a king or upon government in general. It was an unprecedented development in the history of liberty in which a king was forced to acknowledge that he did not have the right to seize private property without due cause. He had to make recompense. He had to buy it. He couldn’t merely seize it. Now, even as the Magna Carta is really more important to us now than it was even in the 13th century, after all, it took some time for the logic even of the document to work its way out.

The reality is that ever since the 13th century, deeply ingrained in the history of the English speaking peoples, as Winston Churchill called us, there has been the understanding that government does not have the right to disrespect a citizen’s private property, to seize it, to take it to rob a citizen of his or her own private property, not without cause. The Supreme Court’s unanimous decision on Wednesday indicates that in the judgment of the court, this is a principle that has been violated by this kind of non-commensurate forfeiture or seizure of property. It wasn’t fair. The punishment did not fit the crime. Some of this property had been seized from persons who turned out to be innocent or at the very least were never convicted of a crime.

By the way, King John, the king who was forced to sign the Magna Carta, he was originally known as John Lackland, and that Lackland referred to the fact that he did not have much land. He lacked land, therefore he lacked wealth. Now, King John has gone down in history as a particularly evil king. We’re not sure that he was actually quite as evil as later generations painted him, for instance, in the fables and myths concerning Robin Hood. But the reality is that there is no question of what happened on the 15th of June in the year 1215 when John Lackland, as King John, was forced to sign this Charter of Liberties for the English people. But, of course, Christians need to understand that there’s far more at stake here that we would understand.

It goes back to issues of human rights and human dignity grounded, not in some kind of ephemeral constitutional principle but grounded in something as concrete as the fact that we are made in God’s image. But there is also respect for private property that is embedded very clearly in scripture. When you think of the 10 Commandments and the command “thou shalt not steal,” that is in itself a validation of private property and it is a legal condemnation, a moral condemnation of robbing someone of his or her personal property. But the Christian worldview is also validated in this because we understand the danger of power, the danger of an unlimited unchecked power, the inherent danger of government power that can quickly turn into despotic power.

This is why the unanimous decision this week is really important as we put it within the context of American history because you are looking at justices that are defined as liberal, four of them and justices defined as conservative five of them. You are looking at a unanimous decision even though the justices, in their legal reasoning, did not get to the goal each in exactly the same way. The reality is, as Justice Ginsburg said, “The final conclusion really wasn’t difficult at all. This represented a clear violation of constitutional liberties, a clear violation of the power of government.” But here’s where Christians also need to pause for a moment and recognize what I have not seen recognized or noted in any of the media coverage of this particular unanimous Supreme Court decision.

Let’s understand what happened here. Government overreached. Government extended its powers, government seized property without warrant, but how was that checked? It wasn’t checked by revolution. It wasn’t checked by some foreign power. In the case of our experiment and ordered liberty, our constitutional form of government, the highest court, as a part of this government, ruled unanimously that the government had overextended its reach and had violated the liberties of citizens. Just pause for a moment and recognize what we’re looking at here. When you do have a constitutional form of government, as we do when you begin that constitutional form of government by recognizing the any healthy government, any government that will respect rights must be a limited government, as ours is. When you have a written constitution with actual words and sentences and grammar, well, as we do then you have a document to which you could point in order to say what is and is not constitutional.

It’s easy to look around the United States right now and recognize that we are in a moment of political peril. We’re in a moment of political polarization. We’re in a moment when many people are asking, “Can this experiment in ordered liberty and self-government work?” That might still be an open question, but it is really important then to note that sometimes it really does work. It did at the United States Supreme Court this week. It did so unanimously, and any decision like this that gets Associate Justice Clarence Thomas on the very same side of an issue as an Associate Justice Ruth Bader Ginsburg, that ought to have our attention because it probably points to either something very small that’s just procedural or something big that’s important. In this case, it was the latter.

Part II

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Pro-abortion movement opposes legislation banning abortion based on rage, gender, and disability, sparking debate over eugenics

Next, we turn to another issue that seems constantly in the news we talk about abortion because we have to again and again and again. And sometimes I say to myself, “Do we really have to talk about abortion in this particular episode of The Briefing?” But because this is such an important issue and it tends to come around almost daily, it seems in the news, sometimes we really do have to talk about it. For example, a headline this week from Kentucky, “Kentucky Now Wants to Ban Abortion based on Fetuses Race, Gender and Disability.” Deborah Yetter reported for the Louisville Courier-Journal, “Another bill to restrict abortion in Kentucky advanced in the General Assembly on Wednesday. This one banning abortion because of the gender, race, or disability of the fetus. We were told the House Bill 5 passed on a 10-4 vote by the Veterans, Military Affairs and Public Protection Committee after some impassioned arguments by those on both sides of the issue.”

In Kentucky, we have known that this bill was coming for some time. The debate had already begun in the larger public, but notice that the bill is introduced in this news story as “Another Bill to Restrict Abortion in Kentucky.” Now, understand the importance of the media and the choice of words in the framing of an issue here. What if that news story begun differently saying, “Another Bill to Protect the Unborn Based Upon Their Race, Gender or Disability is Being Advanced in the Kentucky General Assembly.” Now, we’d be talking about the same bill, but you would see the difference in worldview reflected in those two very different lead phrases in the news story that was published on this legislation, and you’ll also note something else. You are really looking at something that demands our attention here.

We are looking at the fact that there are people who are energetically publicly putting themselves on the line against a bill that would forbid abortion solely on the basis of the fact that the fetus is identified by race or gender or disability. Yes, people are actually making that argument. It’s not particularly new. We have seen this kind of legislation opposed by the pro-abortion movement again and again and again. The same movement that defended partial-birth abortion. The same movement, that right now, demands that taxpayers pay for abortion. The same movement that defends late-term abortion as we’ve seen chillingly abortion right up until the moment of birth is now once again openly opposing legislation that you would think even those who are committed to a liberal worldview would have to accept to protect fetuses, unborn babies on the basis of their identification of race or gender or disability.

The article continues, “Dr. Nicole Nolan, a Louisville Obstetrician, said she frequently sees patients who must make agonizing choices about whether to continue a pregnancy in cases where a fetal defect is discovered, sometimes severe and likely to cause fetal death. She said, listen to her words, “This bill does not help my patients. It just exists to take away patient choices.” Again, note the moral sleight of hand here. What we have is the abortion of an unborn baby on the basis of race or gender or disability just dismissed as morally insignificant. What is presented here as most significant is simply called patient choices. The legislation is opposed because, “It just exists to take away patient choices.”

There was another very interesting worldview dimension to the debate at this stage in the Kentucky General Assembly, it came down to the issue of eugenics. Eugenics is a very old curse to humanity. It is the idea that children or babies should be chosen as to whether or not they should be allowed to live based upon some kind of characteristic. Eugenics means good genes or good birth or good breeding. You can understand exactly where this leads. During the time between the first and second World Wars in Germany during the time that Germany was governed by what was known as the Weimar Republic, a very liberal experiment in government there in Germany. The doctors who were later identified as the Nazi doctors came up with a category they called Lebensunwertes Leben: Life unworthy of life. They came to the distinction we need to note before the rise of the Nazis, they came to the distinction that there were certain human beings who deserve to live and there were other human beings who had no right to live. They divided life between life worthy of life, and life unworthy of life.

The report in the Courier-Journal pointed to a dispute between a prominent Kentucky Rabbi and a supporter of the legislation. The Rabbi argued that it was not legitimate to use the term Nazi when referring to this kind of race-based abortion. The supporter of the legislation argued otherwise. The important thing is apparently no one was there in order to make clear that eugenics didn’t begin with the Third Reich. It didn’t begin with the Nazis. Even in Germany, it began years before the Nazis came to power. It began when human dignity was no longer grounded upon a Biblical conception of the image of God but was rather just believed to be a social construct. But if human dignity is just a social construct, we must recognize it will inevitably lead not only to eugenics but too far worse. The 20th century at least demonstrates that.

Part III

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Regardless of what one Kentucky politician claims, if you support Roe v. Wade, you are not pro-life

But while I’m talking about this issue here in Kentucky, I want to turn to another article that was published just this week. It was written by Philip M. Bailey, again in the Louisville Courier-Journal. In this case, it points to one of the Democrats running for the Democratic nomination for governor here in this year’s gubernatorial election in Kentucky. This particular Democrat is the incumbent Kentucky Attorney General Andy Beshear, who was also the son of the immediate past governor, Democratic Governor, Steve Beshear. But in this case, the headline is not about the governor so much as the governor’s designated running mate. Here’s the headline, “Andy Beshear’s Running Mate Describes Herself as a “Pro-life” Democrat. But if you look at the headline it’s not merely a headline. It appears as an accusation. An accusation that the pro-abortion Democrat running for governor has chosen a running mate who has at least, at sometimes, described herself as pro-life. But the really interesting part of this story isn’t the headline.

It’s the story itself and the fact that whatever pro-life means, it can’t mean what it means by putting the term in quotation marks as related to the woman designated as the running mate. She may have been identified as pro-life, she may have called herself pro-life, but whatever she holds to cannot be rightly designated as pro-life, not when it comes to the question of abortion. Responding to the accusatory headline, a spokesman for the Beshear Campaign, speaking of Jacqueline Coleman, the Lieutenant Governor candidate said, “Jacqueline believes that life is sacred and that’s why she’s personally pro-life, but as a woman, she does not believe politicians should impose their views on others, which is why she supports each individual woman’s constitutional right to make her own reproductive and health care decisions.”

In the same statement speaking of both the candidate for Governor and Lieutenant Governor, the second supposedly accused of being pro-life, this spokesman said, “Like any two people, they won’t agree on everything, but they both support Roe v Wade. This ticket opposes legislation that violates this decision and the Constitution.” Let’s just get to the bottom line. If you support Roe v Wade, you are not pro-life, not in any legitimate coherent moral sense. You are not. What we are noting is that state-by-state, city-by-city, government-by-government, seemingly day-by-day, this issue continues to unfold. Now, so many decades after Roe v Wade in 1973, we’re in a battle–a pitched battle–over the very meaning of human life, the value of human life, and if we don’t win that battle in the womb, we will inevitably lose the battle everywhere.

Part IV

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If “we parenting” becomes the norm in America, we are all going to pay the price

But finally, the entire topic of helicopter parenting has been newly in the media discussion. The New York Times ran an article with the insight headline “Parents Take Helicoptering to next level.” At almost the same time an opinion piece appeared in the same newspaper in which the author argued that helicopter parents are essential because helicopter parenting works. That was Pamela Druckerman, her argument is that if you look to the young people, the kids who get into the elite colleges, who make all kinds of distinctions, who appear more ready to here’s a new verb for us, adult than other young people, it tends to be because she argues they have had very involved, extremely involved, incredibly invested parents. The modern challenge of raising children, according to Druckerman, now basically, requires helicopter parenting and the young person who doesn’t have helicopter parents is at a significant social disadvantage. We’ve seen that argument appear over and over again lately. But I want to go back to the New York Times article about parents who are taking helicoptering to the next level because it wasn’t really in the news section.

It really wasn’t even in the style section. It wasn’t in the business section of the paper. It was in the sports section and oddly enough, the first illustration given of parents taking helicoptering to the next level is the parents of young people signing athletic scholarships or letters of intent putting on the uniform of the school and the sport that was chosen, but it’s not the kids putting on the uniforms. It’s the parents putting on the uniforms and posing for pictures about the common achievement of mother and father and child in winning this athletic scholarship.

Mark Tracy reporting for the Times sports section says, “Parents of college-age students have long, proudly advertised where their students attend school on sweatshirts, bumper stickers, coffee mugs, et cetera, but football parents, a special species of sports parents, have a new twist on it this year. As national signing day came, the trend du jour, is parents dressing up in uniforms alongside their talented sons. The resulting shots are, of course, posted to Twitter and Instagram from which they ricochet across the web. “I had buddies coming up to me being like, you know, you’re on Barstool Sports,” said Steve Snyder who posed alongside his son Sam, a tight end during Sam’s official visit to Missouri.

Later, Tracy summarizes, “The uniform photo op arguably reflects broader currents and child rearing. It could be cast as helicopter parenting or perhaps the next generation of helicopter parenting in which the parent ropes down from the chopper right after his child.” But if you take away even the immediate context of the uniform photographs and the Twitter and Instagram postings, if you take away the fact that we’re now looking at helicopter parenting taking the next level, as we are told here by Tracy, with parents coming down a rope after the helicopter, but the most interesting part was actually a statement by Julie Lythcott-Haims.

She is identified as a former Stanford University Administrator and the author of the book How To Raise An Adult. In an email to the New York Times, she said something incredibly revealing, “This is the era of we parenting that is, we have a midterm, we’ve got a game tomorrow. We’re being recruited by top-tier schools.” Now, just notice that it’s really, really important, isn’t it? The transformation of parenthood into we parenting in which we have a test. We have a camping trip coming up. We have a midterm. We have a scholarship interview. The we is incredibly revealing because it pops up without almost anyone noticing it. This author and former university administrator, no doubt having heard it, didn’t notice it. She began to notice the we. The we parenting, which after all we need to admit really does redefine parenting, but I want to say as a college and seminary president that we parenting explains a whole lot.

If we are required in order to get ready for a midterm, then the student probably won’t be. If we are required to get the student out of bed and to class on time than he or she probably will fail when alone. If we parenting becomes the norm in America then we all are going to pay the price. And on this issue, we have a problem, and on this issue, I’m bracing myself for the hate mail.