On: SOPA, PIPA and the state of our civil liberties

by: Joshua Howell

In case you missed it, the Internet went into anaphylactic shock last January. Facebook users “censored” their profile pictures, Google blacked out their logo, and popular websites like Wikipedia temporarily suspended their services.

The mass reaction was in protest of two bills, which at the time were attempting passage through Congress: the Senate’s Protect Intellectual Property Act (PIPA), and the House’s Stop Online Piracy Act (SOPA). Together, these proposals aimed to tackle the near intractable problem of online piracy, which experts estimate cost Hollywood studios, record labels and publishing houses $135 billion a year.

No doubt the legislation was well intentioned, but both were crudely constructed.

In the original bills, Congress used ill-defined terms such as “search engine,” “pirated material” and “foreign websites” to describe what they intended. But these categories are so vague and far-reaching the government nearly gave itself draconian censorship powers.

If implemented, both would have reversed the 1998 Online Copyright Infringement Liability Limitation Act (a mouthful if ever there were one), which immunized video websites such as YouTube from legal action if their services were used to disseminate copyrighted material. (So long as these sites remove offending videos when notified, they are not culpable for copyright infringement.) Yet under SOPA and PIPA, “search engines” like Google would have been reprimanded for providing access to “foreign websites” with “pirated material” , even though the process by which they aggregate their links is, for the most part, automated.

Clearly companies needn’t be punished because someone, somewhere might be using their services illegally.

But perspective, as it often does, should quell the indignation. Overzealous critics have argued that SOPA and PIPA have much to say about the size of our government, its ineptitude, and the role it plays in our lives. To many, these bills are new evidence that prove (beyond a shadow of a doubt, no less) that government is corrupt and out to cripple our civil liberties.

Not so fast. To the contrary, SOPA and PIPA prove the government is working just fine.

First, broad or slightly ambiguous bills are generally virtues, not vices. Often our legislature intentionally writes such bills because they give the judicial and executive branches ample room to exercise case-by-case discretion.

As an example, after a casual perusal through our Constitution one may have wondered what exactly constitutes an “unreasonable” search or seizure. Surely that phrase is less defined than “search engine.” But such ambiguity doesn’t stop this law from being enacted, nor our privacy from being protected.

The Supreme Court unanimously held unwarranted GPS tracking is unconstitutional

Case in point: It was in January the Supreme Court unanimously ruled the government cannot track its citizens’ whereabouts using GPS devices absent a warrant, because such actions constitute an “unreasonable search.”

Isn’t it better this way? Isn’t it better the Supreme Court can exercise discretion when interpreting a law written when GPS devices didn’t exist? If one found themselves being tried in public court, wouldn’t they prefer a judge factor in the current circumstances, rather than applying hard-and-fast rules written by 535 members of Congress from 50 states and 435 congressional districts?

Don’t overanalyze the situation. All SOPA and PIPA have proven is that this technique isn’t advantageous when dealing with matters requiring a high degree of technical expertise. Nothing more, nothing less.

Second, government’s proper functioning is shown by the difficulty these bills were facing before the protests.

Bad bills happen; and the Founders – disdainful of (but well-versed in) the effects of political factions, political money and special interest groups – put in place a series of mechanisms to ensure these floundering documents don’t become law. What they instituted largely remains intact, and can be summed in just one word: gridlock.

Consider: the internet blackout was meant to coincide with a committee hearing on SOPA in the House, but didn’t. The hearing was postponed due to lack of consensus on how the bill should proceed, portending significant reservations on behalf of those most familiar with the legislation. If SOPA couldn’t make it out of committee, how, pray tell, would it have gotten a majority in the House, let alone a supermajority in the Senate?

Yes, Americans must be vigilant in the protection of our civil liberties, but we needn’t devolve into histrionics and excessive argumentation because someone, somewhere is contemplating bad policy. Like terrible ideas before them, SOPA and PIPA were squashed, and The Founders, at least for now, have been vindicated.

Now, if you don’t mind, I’ve got an episode of Mad Men to pirate.

On: Politics and women's health

That sound you hear, is the quelling of a million or so stiletto heels, the combat boots of American feminism.

This time around, the cause of its militaristic attention is the Komen Foundation, which earlier this year reignited a facet of the culture wars unconsidered since gay rights took center stage. In choosing not to grant Planned Parenthood the approximately $700,000 it gives them annually, the Komen Foundation inadvertently caused America to reexamine the preeminent fissure in feminism today: abortion, and its relation to women’s health.

For men (who predominantly view the world from a tree house in which no women are allowed), it was an opportunity for intriguing study. From such a perch, the vehemence of the outcry implied Komen’s decision was an act of pure ignominiousness: While Planned Parenthood raked in money from concerned donors, the Komen Foundation faced scurrilous charges regarding the politicization of women’s health, charges which eventually forced Komen to reverse its decision.

Said Tait Sye, a spokesman for Planned Parenthood, “People respond powerfully when they see politics interfering with women’s health. That’s why we’ve seen a tremendous outpouring of support.”

That comment is partially right, but mostly wrong. There are two important sets of questions worth contemplating here.

First, is the crowd which laments “politics interfering with women’s health” the same crowd which praised the Obama Administration for requiring all healthcare providers supply access to birth control? One in six Americans receives their healthcare from a Catholic institution (which finds the use of such control anathema). Does this fact make the mandate a necessity or a government overreach? Those are certainly political questions.

Second, even if Komen’s decision were purely political, what does it matter? What would happen if, at the heart of Komen’s decision, were passionate pro-lifers, who were only looking for an excuse to stop providing funds to Planned Parenthood? That would be evidence of their feelings toward abortion, not breast cancer.

Contrary to the debate’s polarizing opinions (and here, my particular complaint is with the left) Americans aren’t disagreeing about who deserves healthcare. Rather, we’re arguing about what constitutes healthcare, and, once resolved, how best to go about providing the service.

We’ve barely begun to answer these questions, and there are more troubling ones to follow. Here are just a few:

If most Americans are fine with abortion in cases of rape or incest, can the government allow (or even subsidize) those instances? If so, would Americans feel comfortable with a system which mandates rape victims prove the sex wasn’t consensual? Does the mere existence of this ambiguity entail the complete legalization of abortion?

(We seem to have stumbled back into the horrors of politics.)

Regardless, supporters of Planned Parenthood must realize that, for almost 30 years, the Komen Foundation has been a titan of breast cancer assistance. During its tenure, it has donated nearly $2 billion to research, advocacy, education and health services. By my mind, it has been some time hence they earned the right to not have their every motive questioned when they reevaluate and change their policies.

This, especially when Komen was merely discussing the appropriation of funds, and in no way considering their lessening.

Ladies and gentleman of the left, this isn’t an attack on women’s health; Komen still cares. But the dilemma regarding how to change that sentiment into lives saved is difficult and necessitates attention, rigor of intellect and consistency of philosophy.  As Komen recently discovered, those considerations don’t always yield clear (or socially acceptable) results. Still, they can take solace knowing that many share in their difficulties.

"... a week's worth of passionate (if needless) argument..."

Notice: before the reversal, millions of dollars were gushing not only into Planned Parenthood, but into the Komen Foundation as well, evidence of the number of people willing to donate money to breast cancer services, but unwilling to support Planned Parenthood. Isn’t this sufficient evidence of good will?

The point is, if supporters of either organization weren’t so intent on bickering (and if the media weren’t so intent on stoking the fire), women – and men – discussing the issue might realize they have more in common than they’d care to admit.

After a week’s worth of passionate (if needless) argument, the result has been that more women will get more services in more places. Not only does Komen care about the fairer sex, so does America.

And you say politics is terrible. 


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On: Ron Paul – A question of liberties

by: Joshua Howell

Contrary to the conceived wisdom, Republicans aren't searching for the 21st century Ronald Reagan; they're looking for a modern day Barry Goldwater. They don't want a president who, like Mr. Reagan, will bail out banks; who, like Mr. Reagan, will raise taxes; or, who, like Mr. Reagan, will leave office with a stronger national government and more federal bureaucrats.

Practicality (and a healthy portion of context) be damned, Republicans yearn for someone who will reaffirm Barry Goldwater's famous conservative aphorism: "extremism in the defense of liberty is no vice."

Such cravings explain the ongoing flirtation with Ron Paul, who began his executive aspirations not as a Republican, but as a Libertarian in 1988.  Since, Mr. Paul has cemented his place as an influential member of the right. He has written numerous books on libertarianism, effectively founded the Tea Party, and become a strong contender against Mitt Romney, the de facto Republican nominee. Indeed, with his near constant exhortations of "liberty" and "intellectual revolution," Mr. Paul seems a prime candidate to follow in Mr. Goldwater's ideological footsteps.

Yet voters have right to be wary; Mr. Goldwater was demolished in the 1964 election, and things will only be more difficult for his successor.

Unlike Mr. Goldwater, Mr. Paul must contend with the religious right, which only entered the GOP during the Reagan Era, but now represents a sizeable portion of Republicans. Mr. Paul also faces an international threat more nebulous than the communists of the Cold War, which makes a coherent foreign policy more difficult to find.

His most challenging obstacle, though, is this: Support for libertarianism has a ceiling, and for good reason.

If intrigued, watch this 1988 episode of Firing Line, in which William F. Buckley, Jr. — the harbinger of conservatism and a good friend of Mr. Goldwater's — continually bested a younger Mr. Paul in an hour-long discussion on libertarian philosophy.

Ron Paul (right) with William F. Buckley, Jr (left) on a 1988 episode of Firing Line 

Said Mr. Buckley in that iconic voice: "As someone who occasionally calls himself a libertarian, I regret the extent to which the libertarian position is discredited by positions via a kind of reductionism that is simply incompatible with social life."

Quite right. If Mr. Paul can be accused of anything, it's reductionism. In but one sentence Mr. Buckley acknowledges what Mr. Paul (and many of his supporters) fails to: Liberty is complicated.

It's easy, when waxing philosophic, to refer to liberty as an ideal in which all can partake unmolested. But when determining the laws by which a society must abide for its preservation, we find that liberty (in the singular) is in reality a series of liberties (in the plural), and that these liberties, more often than not, rub against one another.

Consider the Hobbesian case, in which one's liberty to murder is superseded by the other's right to life. Such an exchange is not only uncontroversial, but beneficial.

Now up the ante. What happens when protestors display their rights to speech and assembly, but in so doing, and by breaking no laws, significantly disrupt surrounding business practices? Again, we have a conflict of liberties.

And what of the 1964 Civil Rights Act (a particular sticking point of libertarians everywhere, including Messrs. Paul and Goldwater), which rescinded individual property owners' right to serve whom they pleased, and exchanged it with another, better right: that of any and all persons to make use of public accommodations? Once more, we are engaged in a trading of liberties.

This last example undergirds the truth (or complication) that ultimately constructs libertarianism's ceiling of support: the status quo inevitably offends the liberty of some, which, a posteriori, implies that a government doing something can be as good, if not better, than a government doing nothing. Subsequently, it falls upon us, as a democratic republic, to decide which liberties are maxims, and which can be exchanged or infringed upon for the betterment of society.

To parse these questions, we often employ John Stuart Mill's thesis in On Liberty: "The only purpose for which power can rightfully be exercised over any member of a civilized community, against [one's] will, is to prevent harm to others."

(And like any good democratic republic, there is plenty debate as to what constitutes "harm.")

But until libertarians like Mr. Paul realize how complex the enterprise of liberty really is, he — and his son for that matter — has not the faintest hope for the White House.

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On: Auxiliary Precautions – Gingrich v. Madison

by: Joshua Howell 

Upon witnessing Newt Gingrich's spike in the polls late last year, one hardly needed William F. Buckley's famed perspicacity to predict an eventual downfall. Mr. Gingrich is, by all accounts, a mess of political and moral contradictions. His romantic life has made our generation – recent history's least likely to marry – cringe. His prior support for healthcare mandates, ethanol and legislative attempts to curb global warming have all the trappings of a liberal politician. His $1.6 million connection to Freddie Mac ties him to the right's idea of big government as little else can. He is, as George Will, the current vanguard of conservative thought, noted, distinctly "anti-conservative."

What pundits failed to predict, however, was an aggressive attack on America's judiciary, an attack which ultimately, if briefly, propelled Mr. Gingrich to the top. That was our mistake. Far from surprising, it should have been expected; conservatives have long been beset by the courts:

Roe v. Wade effectively legalized abortion, and is now a rallying call for the right. The number of prenatal lives taken a year (note: not "lost," but "taken") has some crying holocaust.

The Slaughterhouse Cases of 1873 are seen by conservative thinkers as the court's first of many assaults on "economic liberty." If an individual's economic activity can be regulated, they ask, what can't?

But what has most recently burned the Republicans is the court's support for same-sex marriage. Of the six states which have legalized same sex marriage, four have done so at the behest of the judiciary. This tactic has sat most uneasily in conservative Iowa, which, conveniently, was the first in a series of Republican caucuses and primaries.

Therefore, an attack on the courts from one of the right's more excitable and opportunistic members was due. Few, however, could have predicted the heights of its short lived success.

Mr. Gingrich after winning the South Carolina Primary

Enter – stage right – the chimerical Newt Gingrich. With his characteristic bombast and confidence, for a time he captivated Iowans, and in so doing validated a fear in political thought traceable to the time of Aristophanes (d. 386 B.C.): that the power of rhetoric could serve to "make the weaker argument stronger."

And it is the weaker argument. We know because we've had this conversation before.

It is a conversation that began with what the country's founders – being well studied in politics – recognized as a fundamental paradox of democracy: majorities, while indispensable, were inherently dangerous. It is a paradox with a long and erudite pedigree.

Thomas Hobbes openly fretted that democracy, if unchecked, would devolve into anarchy.

John Stuart Mill wrote that, through its laws, society could practice a "social tyranny more formidable than many kinds of political oppression…" This "tyranny of the majority," as he termed it, arises from the possibility (even likelihood) that "the people consequently may desire to oppress a part of their number…"

No doubt Madison, the "Father of the Constitution," had these philosophers in mind when he penned Federalist 51: "In framing a government," he argued, "the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government: but experience has taught mankind the necessity of auxiliary precautions."

And "auxiliary precautions" did The Founders deliver.

Our electoral democracy necessitates consensus building, "supermajorities" in the Senate encourage compromise, and the President's veto power can override it all.

But the last in this series of government impediments is the all important judicial review.

The "least dangerous" branch

It is this final precaution Mr. Gingrich fails to comprehend. Judges are America's referees, determining when the government has overstepped its bounds and, subsequently, infringed upon our rights. To do their jobs efficiently, as any referee, judges must be autonomous.

How autonomous? Take note of Article III of the Constitution, which says that judges pay "shall not be diminished during their Continuance in Office."

The reason, as Madison explains in Federalist 47, is that "power over a man's subsistence amounts to a power over his will." Autonomous indeed.

Or take Montesquieu, one whose quotes are peppered throughout The Federalist (again, from 47): "There can be no liberty… if the power of judging be not separated from the legislative and executive powers."

By wishing to remove judges from their posts due to "anti-American" rulings (whatever that means), Mr. Gingrich blurs to the point of erasure the line between the legislature and judiciary, and in doing so threatens the liberties enshrined in the Constitution.

Yet it is not there Mr. Gingrich ends his jeremiad. He opines in a position paper, that "if the Supreme Court were to hand down a decision concerning the constitutionality of the executive branch's war making powers with which neither the executive nor the legislative branches agreed, we are supposed to believe that the only recourse to checking this decision of the Supreme Court is to pass a constitutional amendment. This view is clearly fatally flawed.

"Drawing together 290 House members, 67 senators, and 37 states to pass a constitutional amendment is a difficult and time-consuming task. It is little wonder that the American people lose interest, shrug their shoulders, and give up on the fight if they believe they have to do so in order to correct a decision of five fellow citizens serving on the Supreme Court."

To The Founders, this was the precise intention. When the judiciary determines whether government has surpassed its limitations, judges use the Constitution as a rulebook. For that rulebook to be effective, it can't simply be rewritten at a whim – even at the majority's whim. Some things a government ought not be able to do.

Changes to the Constitution, we are told (in what I promise is my last reference to The Federalist, this from Number 79), are reserved for "great and extraordinary occasions." Until such times are upon us – which would be evidenced by the strong majorities necessary to change the Constitution – the judiciary is necessarily independent, its rulebook impervious to change.

Beyond our grasp

We needn't search far for direct implications; there are ramifications for us as college students.

Consider our most treasured right at this university: freedom of expression. It has long been said (to the point of becoming cliché) that colleges are "marketplaces of ideas." To this end, the courts have been resolute in defending the freedoms necessary so this might sustain.

There is Burnside v. Byars (1966) which stated that school officials "cannot infringe on their students' right to free and unrestricted expression" while "the exercise of such rights in the school buildings and schoolrooms do not materially and substantially interfere with the requirements of appropriate discipline in the operation of the school" – such interference would then encroach on others' rights.

Or Gay Student Services v. Texas A&M, which offers this delicious quote: "Freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order."

Even at first glance, these rulings are innocuous, and certainly not "anti-American," to coin Mr. Gingrich's phrase. A legislative usurpation of the courts could not possibly be borne from such judgments.

That, however, is not the point. It isn't sufficient that governments merely be disinclined to do things; political philosophy (and subsequently, political science) must begin its foundational considerations with the possibility of bad government.

What The Founders understood, is that in a free and open society, in which matters are decided by representatives chosen by the people, some things, absent significant and sustained disagreement by the populace, are simply not up for grabs.

To defend these rights, even from ourselves, we need an independent judiciary.