(no subject)
Sep. 25th, 2004 11:00 am![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
vicarzGot a problem:
As I study constitutional law, I find that most of the things I consider American and just are in fact constructs formulated from the constitution that are in clear contrast to the text. Uh, I mean the decisions of the Supreme Court have been throughout history inconsistent, and poorly reflect the laws meant to be judged. Did you know the bill of rights was not incorporated for many decades, and only then by questionable moves of the Supreme Court?
The Constitution gave states rights, but basically only granted limited federal rights. The emancipation of the slaves after the civil war and the subsequent laws created in the southern states which circumvented every freedom granted the former slaves, gave rise to a period of federalism that pervades the decisions to this day. I have always liked the idea of federalism, distrusting states to preserve the rights of minority groups, but lately as I watch the public become more disenfranchised and special interests more powerful, I'm thinking perhaps local issue control might not be such a good idea. Would it be bad to reduce the federal government to the level it was designed - only intervening in areas states could not adequately be granted control or control without damaging national interests over state (typically in economic terms)? Can we trust the states not to discriminate?
Do we throw out the constitution as a relic that has passed the vision of the people who wrote it as not reflecting the current society and situation? If so, how is letting this popular culture dictate law view different than mob rule?
Much of what I appreciate about america is in fact flawed in terms of the constitution. In fact, things such as freedom of speech and religious freedom are not likely under the actual text. At the same time, obnoxious side effects such as uncompensated private oil drilling in federal land, subsidized farming, and corporate 'welfare' come from this same insanity. Special interests have invaded and rule.
So, I'm very tempted to join the conservatives in their calls for reverting back to the actual constitution in instead of the constitutional fiction I've come to accept as 'american.' The bill of rights is not part of the constitution, and was largely ignored for decades! I also hear this call as a possible way 'to create a village' in which citizens do read the papers, vote, and take action on political issues because they are directly affected by them. However, what about gay marriage, muslim rights, and other unpopular ideas? Who steps in and protects the rights of minorities? How do you distinguish a minority group from a special interest, and do you? What if it's better for the overall good to let majority rule at the expense of minority rights? How bad would a heterosexual protestant society be compared to our present diversity?
I am thinking that perhaps there could be a split - economic special interests vs. social special interests. Let local economic interests take precedence, while nationally civil rights are guaranteed. I feel it is better to allow gay people to marry and straight people to have weird sex, to allow the press to mock the leaders, to allow people to chose their god or no god, let people get high legally without getting a prescription from their doctor...but not fix the price of milk, pay people not to grow things, pay businesses to...well I'm of limited knowledge of much beyond the buzz-word of corporate welfare outside of agriculture. I also recognize that when it comes to preserving species and air/water quality, national interests may need to take precedence. Otherwise, what prevents Maryland with the popular opinions of MD residents, from polluting the potomac river just as it exits the state?
In this mix I don't know how you balance the need to create property rights in the form of patents to inspire the development of societal goods vs. preventing monopolies which create social losses through lack of competition. Is a free economy a good thing, or do we prevent a hospital for charging a high rate based on your immediate need to pay for life saving drugs? What if they charge you more based on your economic status, is that a proper use of economic freedom?
And then how firm are the lines of distinction? What if a black dance club applies for federal funding as a minority group institution - is it economic or social? Is providing cheap milk a social good, or a representation of the milk manufacturer's conglomerate? How can you distinguish from junk science produced by tobacco companies vs. a study performed by funding of a cancer victim's will? How do you work scientific truth into and junk science out of the legislative and judicial processes?
Also - Is there a reasonable cause to regulate income distribution in today's economy? Has the fundamental structure of business so drastically changed that startups are truly no longer viable? Is it proper to interfere with the free-market economy under the philosophy that the workers have unequal bargaining power, or are unions and regulations preventing societal benefits? Do you inspire the rewarding of successful ideas by allowing one company to rule as a reflection of economic freedom, or has it become a monopoly that should be disbanded to foster new smaller companies competing for the next successful idea?
Leftover thoughts:
Judges are elected. I'm convinced the best way to be elected a judge is to take a complex decision made by a reigning judge and attack it - and/or to mischaracterize it to say "SOFT ON DRUGS" or "MAKING YOUR LOCAL CHURCH GAY." I've seen history that seems to indicate that most of our famous political leaders are those that were negative - negativity gets votes, and attacking a perceived threat (you can create the perception for bonus points) gets you popular quickly. Then to remain on the bench you must do things like rule against law and for crying children, against law and against gay/minority rights, until someone finds something they can use from you background which creates animosity to you and they leap frog over your career.
Drugs - there is one group of social issues that can be attacked through a legal framework I have a hard time arguing with: those chemicals that you ingest that may impair your ability to make 'free' decisions. Can you vote drunk? You can't sign a contract and have it be valid, for obvious reasons. What if it's clear you got drunk to sign the contract you were familiar with, just to make it invalid should it not be in your favor based on future events? What if you knew who you were going to vote for, but then did it drunk? How is knowingly being tired different than ingesting something that impairs you like pot or booze? Should 'mood altering music' be regulated or banned for similar logic?
What I find more worrisome is the american tendency to take legal drugs. You don't do pot, but you take xanax? Mormons won't touch caffeine, but it seems lithium is acceptable. Dood. The institutions seem to be pushing drug dependence under the guise of medication, then preventing more organic drugs. Why can't I chew cocoa leaves while I hike through the mountains? How is it still possible for the courts and legislatures to rule on drug harms to society when it is so clear that the harm to society is not from the drug use but overwhelmingly from the laws preventing the use? Why aren't laws being passed discouraging the medication of the masses through prescriptions, while we spend inordinate amounts of money on a war on drugs we can't and probably shouldn't win? Which front should we fight, if any, and if so, then how, and who decides, and based on what?
Soon I'm going to go on another rant against psyc meds. There must be a line further away from 'needs chemical adjustment' to 'pushing pills is easier than addressing problems.' The church is another drug in that argument - taking the place of therapy.
Ponder...
As I study constitutional law, I find that most of the things I consider American and just are in fact constructs formulated from the constitution that are in clear contrast to the text. Uh, I mean the decisions of the Supreme Court have been throughout history inconsistent, and poorly reflect the laws meant to be judged. Did you know the bill of rights was not incorporated for many decades, and only then by questionable moves of the Supreme Court?
The Constitution gave states rights, but basically only granted limited federal rights. The emancipation of the slaves after the civil war and the subsequent laws created in the southern states which circumvented every freedom granted the former slaves, gave rise to a period of federalism that pervades the decisions to this day. I have always liked the idea of federalism, distrusting states to preserve the rights of minority groups, but lately as I watch the public become more disenfranchised and special interests more powerful, I'm thinking perhaps local issue control might not be such a good idea. Would it be bad to reduce the federal government to the level it was designed - only intervening in areas states could not adequately be granted control or control without damaging national interests over state (typically in economic terms)? Can we trust the states not to discriminate?
Do we throw out the constitution as a relic that has passed the vision of the people who wrote it as not reflecting the current society and situation? If so, how is letting this popular culture dictate law view different than mob rule?
Much of what I appreciate about america is in fact flawed in terms of the constitution. In fact, things such as freedom of speech and religious freedom are not likely under the actual text. At the same time, obnoxious side effects such as uncompensated private oil drilling in federal land, subsidized farming, and corporate 'welfare' come from this same insanity. Special interests have invaded and rule.
So, I'm very tempted to join the conservatives in their calls for reverting back to the actual constitution in instead of the constitutional fiction I've come to accept as 'american.' The bill of rights is not part of the constitution, and was largely ignored for decades! I also hear this call as a possible way 'to create a village' in which citizens do read the papers, vote, and take action on political issues because they are directly affected by them. However, what about gay marriage, muslim rights, and other unpopular ideas? Who steps in and protects the rights of minorities? How do you distinguish a minority group from a special interest, and do you? What if it's better for the overall good to let majority rule at the expense of minority rights? How bad would a heterosexual protestant society be compared to our present diversity?
I am thinking that perhaps there could be a split - economic special interests vs. social special interests. Let local economic interests take precedence, while nationally civil rights are guaranteed. I feel it is better to allow gay people to marry and straight people to have weird sex, to allow the press to mock the leaders, to allow people to chose their god or no god, let people get high legally without getting a prescription from their doctor...but not fix the price of milk, pay people not to grow things, pay businesses to...well I'm of limited knowledge of much beyond the buzz-word of corporate welfare outside of agriculture. I also recognize that when it comes to preserving species and air/water quality, national interests may need to take precedence. Otherwise, what prevents Maryland with the popular opinions of MD residents, from polluting the potomac river just as it exits the state?
In this mix I don't know how you balance the need to create property rights in the form of patents to inspire the development of societal goods vs. preventing monopolies which create social losses through lack of competition. Is a free economy a good thing, or do we prevent a hospital for charging a high rate based on your immediate need to pay for life saving drugs? What if they charge you more based on your economic status, is that a proper use of economic freedom?
And then how firm are the lines of distinction? What if a black dance club applies for federal funding as a minority group institution - is it economic or social? Is providing cheap milk a social good, or a representation of the milk manufacturer's conglomerate? How can you distinguish from junk science produced by tobacco companies vs. a study performed by funding of a cancer victim's will? How do you work scientific truth into and junk science out of the legislative and judicial processes?
Also - Is there a reasonable cause to regulate income distribution in today's economy? Has the fundamental structure of business so drastically changed that startups are truly no longer viable? Is it proper to interfere with the free-market economy under the philosophy that the workers have unequal bargaining power, or are unions and regulations preventing societal benefits? Do you inspire the rewarding of successful ideas by allowing one company to rule as a reflection of economic freedom, or has it become a monopoly that should be disbanded to foster new smaller companies competing for the next successful idea?
Leftover thoughts:
Judges are elected. I'm convinced the best way to be elected a judge is to take a complex decision made by a reigning judge and attack it - and/or to mischaracterize it to say "SOFT ON DRUGS" or "MAKING YOUR LOCAL CHURCH GAY." I've seen history that seems to indicate that most of our famous political leaders are those that were negative - negativity gets votes, and attacking a perceived threat (you can create the perception for bonus points) gets you popular quickly. Then to remain on the bench you must do things like rule against law and for crying children, against law and against gay/minority rights, until someone finds something they can use from you background which creates animosity to you and they leap frog over your career.
Drugs - there is one group of social issues that can be attacked through a legal framework I have a hard time arguing with: those chemicals that you ingest that may impair your ability to make 'free' decisions. Can you vote drunk? You can't sign a contract and have it be valid, for obvious reasons. What if it's clear you got drunk to sign the contract you were familiar with, just to make it invalid should it not be in your favor based on future events? What if you knew who you were going to vote for, but then did it drunk? How is knowingly being tired different than ingesting something that impairs you like pot or booze? Should 'mood altering music' be regulated or banned for similar logic?
What I find more worrisome is the american tendency to take legal drugs. You don't do pot, but you take xanax? Mormons won't touch caffeine, but it seems lithium is acceptable. Dood. The institutions seem to be pushing drug dependence under the guise of medication, then preventing more organic drugs. Why can't I chew cocoa leaves while I hike through the mountains? How is it still possible for the courts and legislatures to rule on drug harms to society when it is so clear that the harm to society is not from the drug use but overwhelmingly from the laws preventing the use? Why aren't laws being passed discouraging the medication of the masses through prescriptions, while we spend inordinate amounts of money on a war on drugs we can't and probably shouldn't win? Which front should we fight, if any, and if so, then how, and who decides, and based on what?
Soon I'm going to go on another rant against psyc meds. There must be a line further away from 'needs chemical adjustment' to 'pushing pills is easier than addressing problems.' The church is another drug in that argument - taking the place of therapy.
Ponder...
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no subject
Date: 2004-09-25 08:51 am (UTC)I completely agree about prescription drugs. They're the most abused drugs in the country, and easily the most accepted. *Everybody* (it seems) is on some prescription med or another. Are we all really that unhealthy? How did we survive before allergy meds and anti-depressants?
no subject
Date: 2004-09-25 09:51 am (UTC)I think that on the whole, that would be a good idea. Of course there are trade-offs, but yeah. It has the virtue that every state would be its own little petri dish. They could try new policies without having to get approval from everyone else. If it works out, the idea will spread to other states. If it doesn't, the damage is limited. The tricky part is, how much rope do we give them? How badly are we willing to let them screw up?
Massachusetts allows gay marriage (last I heard). Say they suddenly experience a influx of creative people with high disposable incomes. Their economy takes off, their cities revitalize. Maybe other states start cluing in. But what if Alabama takes all their educational budget and hands it over to unaccredited faith-based programs? 20 years from now, they've reverted back to a agricultural economy and can't buy dirt. What do we do?
All of these questions you're asking involve judgment calls. They're all grey issues - totally situational. Some corporate subsidies (new energy research) are good, some (oil subsidies) are bad. And those may change over time. Both "abolish copyright" and "let Disney decide" are roads to ruin.
Laws try to pretend that this isn't true. They try to pretend that it's all definable. And they get ever more complex in the process. And it becomes a complex rule system that lawyers (and only lawyers) can game. You've played role-playing and video games, right? You know there's always some little fuckwad who figures out a way to game the system. Increasingly, big interests with a lot of money at stake are not only gaming the system, they're getting the rules re-written. The Disney copyright extensions are the moral equivalent of paying the Everquest developers to write in a cheat code just for you. Law is becoming just a set of privileges, in the original sense of the word.
What makes it even scarier is that Congress is pushing so hard on the idea that judges are just there to enforce the laws they write. We need checks and balances and "activist" judges. Judges need to be able to say, "that's retarded, I'm not sending him to jail for that." Juries need to do the same. And cops (the executive branch) need to be able to say, "no, that's stupid and counter-productive."
Maybe we'd be better off with a set of guidelines, instead of actual laws. We shouldn't be trying to prove whether the Enron bosses did anything technically illegal. Whether they violated accounting principles or SEC rules or not, they went through a lot of effort to hide the true financial status of the company. They're deceitful bastards. They funneled billions of dollars into their own pockets and gutted thousands of people's retirement savings. They should be carved up and sold at auction. I would love to hear a judge pronounce, "You are hereby convicted of Being An Asshole in the first degree. You will spend the rest of your life begging on street corners. Fuck you."
Whew. Well, that was my incoherent rant for the day.
Y'know, we should have done this over coffee.
no subject
Date: 2004-09-25 10:03 am (UTC)Ok. The drug issue. I think you're half right and half wrong or at least didn't address one type of presciption med. My step mom uses lithium. She's chemically imbalanced and no therapy can help her. I feel that she has every right to just take her medication. I get creeped out by parents that let their kids die because they don't want doctor to help becuase of gods will.
However, a friends mom takes Xanax because she's "depressed" and then drinks with it so that she's all screwed up. Her adult children tried an intervention and got no results with it. They then tried to talk to her doctor and again got no results. Her doctor said that only she can talk to him about her medications. Laws won't be changed about prescription drugs until illegal drugs become legal. People want to take drugs, but they are afraid of the leagalities. Instead of worrying, they get their doctor to prescibe them legal drugs they can abuse without the risks.
And the judge issue I'm not even going to get started on. Judges are politicans and it shouldn't be that way. Period.
And now I'm going to eat breakfast. It was Kitty Jungle House Party last night so sleep was short.
no subject
Date: 2004-09-25 11:26 am (UTC)I am going to coin that petri-state analogy in your honor. Besides, Missouri and Alabama make very easy comparisons to the sort of life you'd expect to be fermenting in a petri dish.
I'm not sure I like guidelines instead of laws. While every system involves gaming, this one seems like the one that has, so far, beat all the other ones in terms of achievements in society fostered, and liberties granted. Sure we could do better, but the bar is so low that by coparison this place is great!
The problem with guidelines is the pressure towards mob rule. Mobs scare me.
no subject
Date: 2004-09-25 11:29 am (UTC)I know some people need prescriptions, just like you need an antibiotic when you're sick or people need to monitor their sugar levels. I just can't believe that EVERYONE needs drugs. I don't like the % of society that is medicating their friggin moods.
Now I want a drink.
no subject
Date: 2004-09-25 12:51 pm (UTC)no subject
Date: 2004-09-25 12:54 pm (UTC)What the hell do you think the Republican health policy is DOING? Trust me, it is harder to get Prozac if you don't have insurance than it is to get crack. Cheaper, too.
no subject
Date: 2004-09-25 01:13 pm (UTC)Second, this isn't a new (or even post-Reconstruction) problem. Even Jefferson, the Strict-Contructionist poster-boy, discovered that, once he was President, that he needed powers not explicity granted to him, or the federal government, in order to do his job.
Third, we are not using the same Constitution we were in 1791. We have amended it several times, and the 14th and 16th amendments represent a significant and deliberate change in the balance of power between the states and the federal government. Indeed, it could be argues that it would now be unconstitutional, in light of those amendments, to return to a Jeffersonian model (slavery notwithstanding...)
The solution, as I see it, is to divide the powers and responsibilities of the various levels of government (and the various private institutions, like the church, industry, etc.) along the lines of what they are best suited to accomplish. The Federal government, being centralized and wealthy, is best suited to providing for those things which are universal to all citizens: civil rights, health care, environmental protection, workers' protections, food and drug safety, social welfare etc. The states and localities are best suited to address those needs which vary significantly from place to place, like law-enforcement, land use, utilities, roads, etc.
and don't even bother trying to find logic in present drug policy. You'll go mad. Try and figure out why prohibiting alcohol required an amendment, but prohibiting drugs (many of which were legal during prohibition...) falls under the Interstate Commerce Clause.
no subject
Date: 2004-09-25 02:04 pm (UTC)no subject
Date: 2004-09-25 02:10 pm (UTC)Granted the 14th was a major revision - but the language put forth in that amendement doesn't seem to substantiate many decisions citing that section.
I agree with your division, though social welfare is the one area that has been more traditionally allocated to the states (takes a village mentality).
Drugs and law - agreed. It's the one area in which NORMAL doesn't sound completely nutes - when they describe the political context in which many drugs were made illegal. This country seems to be dead-set against drugs that alter your moods for recreational use, unless they are patented and distributed by the medical community.
no subject
Date: 2004-09-25 02:40 pm (UTC)And I think you will agree that our peer group is not a representative sample, and would skew any anecdotal examination. Consider how many queer people we know, vs. the general prevalence.
no subject
Date: 2004-09-25 03:07 pm (UTC)I don't think the conservative idea of withdrawing the federal government to rekindle the average American's interest in politics makes any sense at all. They've preached their victimhood to the sky so consistantly that giving them what they want probably wouldn't stop them. Republicans have the executive and legislative branches right now but they're still crying about scary elite/homosexual/French/atheist/liberal/Hollywood agendas set on perverting the entire country. They're bemoaning the death of some golden age that never really existed while handing over more money to the same massive corporations that paved downtown America for a parking lot. Busting unions and simultaneously weeping over the demise of the union neighborhoods. Following the demise of communities, who would tell the people what issues actually affect them? Nobody on my street works with me, nobody went to school with me, my interests might be very different from theirs. The much touted 'village' has to come about despite the forces against it, we can't just pull back the federal government and say, 'Ok, have at it.' I suspect that alot of people wouldn't even pay attention if that suddenly happened, who has time to watch the news when the latest reality show is premiering?
Drugs - I had issues as a kid that could have been medicated, but I wasn't. I don't know and never will if this has worked out to my benefit or not. Sometimes I wonder if I would be diagnosed with something now, if I went in to get evaluated. I suspect that I exhibit occasional symptoms of ADD or something along those lines but the root cause isn't some chemical imbalance so much as perpetual confusion about my life after college. I do have insomnia but it does not interfere with my daily life, and thus requires no medication.
I tend to lose track of what I'm saying in response to posts that are that long so I'm sorry if anything doesn't make sense up there...
no subject
Date: 2004-09-25 04:01 pm (UTC)I had a guy in a pickup covered with lifer stickers nearly run me off the road, quite intionally (like more than once), on the way up from manassas once. I lived in centreville - funny how the place is so much white trash redneck mixed with immigrants!
I'm just entertaining the smaller entity idea. It may well not make sense.
they're still crying about scary elite/homosexual/French/atheist/liberal/Hollywood agendas
Tee-hee! I like that phrase...
elite/homosexual/etc
Date: 2004-09-25 07:00 pm (UTC)no subject
Date: 2004-09-25 07:05 pm (UTC)But then that's the problem that our society has. No one told them that life isn't always fun or easy. They want fun and easy and when it's not they take drugs to make it better. I'm not against recreational use of drugs. However, I am against the recreational use of drugs prescribed by your physcian as medication. I don't get a prescription to go to the movies or a club do I?
no subject
Date: 2004-09-26 08:52 am (UTC)http://www.livejournal.com/users/translucent_eye/56842.html?#cutid1
no subject
Date: 2004-09-27 02:30 pm (UTC)no subject
Date: 2004-09-27 02:51 pm (UTC)If mental illness is being misdiagnosed, it is because GP's are pressured by managed care to practice outside their specialty, not because there is some sort of fad. As I said, there is still enough of a stigma against mentall illness that even unquestionably ill people won't seek help, and the medications involved are unpleasant enough, on the whole, that nobody is going to stay on them if they aren't really sick. There may be people who are misdiagnosed or under-treated, because GP's don't know what they are doing, but I have yet to see any evidence that people are being over-treated in significant numbers.
It may be simply a matter of perspective, but me experience has been that it is exceedingly difficult, even with insurance, to receive psychiatric care in this country. The idea that Prozac is being handed out like candy is belied by the sheer resistance most insurance companies display when asked to pay on a psychiatric Dx.