Wednesday, June 23, 2010

Let Them Eat Cake

I'm from the government and I'm here to help you.
Ronald Reagan liked to say those were the scariest words in the language.  I've floated the idea that the scariest words are not those, but these.
We won't abuse the power.
When the government brought criminal charges against Robert Stevens for marketing videos he'd made showing dog fighting, it used a law designed to prohibit crush videos, films designed to satisfy the sexual fetish of liking to see small animals crushed to death - particularly by women wearing stiletto heels.
The law was enacted while Clinton was President.  And Clinton made clear when he signed the bill that despite its expansive language, it would only be used against the makers and distributers of crush videos. But as the Stevens case demonstrates, that's just not how it was used.
The good news for Stevens (and, for the Constitution and, really, for all of us) is that the Supreme Court saw through the law.  Unconstitutional, it said by a vote of 8-1.  Congress simply cannot designate a whole new category of speech (that which depicts cruelty to animals) as something outside the scope of the First Amendment.  Nor, and this is the part relevant here, can the promises of the government to act wisely enough to make constitutional the unconstitutional.
Writing for the Court, Chief Justice Roberts said this.
Not to worry, the Government says: The Executive Branch construes §48 to reach only “extreme” cruelty, Brief for United States 8, and it “neither has brought nor will bring a prosecution for anything less,” Reply Brief 6–7. The Government hits this theme hard, invoking its prosecutorial discretion several times. See id., at 6–7, 10, and n. 6, 19, 22. But the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly. Cf. Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 473 (2001).
Trust us, we won't abuse the power.
Sure.  Right.  No deal.
Join me now in Queens, N.Y. where, according to this article in the NY Times, district attorney Richard Brown is
a leader in finding new uses for hate crime laws.
Credit assistant DA Kristen A. Kane.  She's the one who figured out that New York's hate crimes law can be applied to more than just, you know, hate crimes.  Here's what the law says in justification for its existence.
Crimes motivated by invidious hatred toward particular groups not only harm individual victims but send a powerful message of intolerance and discrimination to all members of the group to which the victim belongs.
That's likely true.  It's also treading a thin constitutional line, since the law essentially makes the "message of intolerance and discrimination" a basis for criminal punishment.  My own view is that hate crime laws are unconstitutional.  The Supremes don't share that perspective (see  Wisconsin v. Mitchell, 1993), though, and while I can pontificate, they actually get to decide the question.
But what they're doing in Queens is somewhat different.
Rather than using the law to enhance punishments for crimes motivated by "invidious hatred toward particular groups," Rather, they're using the statute to enhance punishments on those who target the elderly because they're believed to have money and to be easy prey.
They do that because the hate crime law as written doesn't limit itself to hate crimes.  And the USA Patriot Act, that post-9/11 abomination that allows the government to snoop and sniff and sneak and complicates your life in numerous ways that don't make us a bit safer from terrorists, a law that contains bunches of provisions Congress had refused and refused to pass year after year until 9/11 and then the word terrorism got used and Congress said, "Sure, where do we sign," the USA Patriot Act has been used to investigate and prosecute gamblers and pornographers and all sorts of baddies who don't have squat to do with terrorism.  And the original idea of social security numbers was that they were to be used only for purposes of the social security system.
A judge once told me (he was speaking of the Ohio General Assembly, but his point applies to every legislative body) that they shouldn't be allowed to touch criminal law because "they just fuck it up."  Yeah.
Because when you give them power, they'll find a way to abuse it.
And it's really not enough that the government promises to be careful and not abuse the power.  Because they will.  The promise of noblesse oblige is as empty today and in this Republic as it has always and everywhere been.  The reality is that the aristrocrats abused the peasants no matter what their assurances to the contrary.  And the government will, given the opportunity, abuse the citizens.
Back when I was in the 6th grade (more decades ago than I care to realize), I had a history teacher who offered this definition of "democracy."
Democracy is the system where you get to decide who your dictator will be.
That's not entirely accurate.  But it ain't altogether wrong, either.

1 comment:

  1. Democracy is three wolves and one sheep voting on tonight's main course. Hey, it's fair, right? Everyone gets a vote, right? So what isn't fair about that?

    Nice post.