Big-Government Elections, Small-Government Philosophy

I find distasteful the idea that the party pleading for "smaller government," (which means nothing to me, actually, because I've never seen a meaningful example of the use of this philosophy in practice) also wants more unfettered corporate money in elections.

If you support shrinking the size of government generally, should you not also support.... first, shortening the election cycle---to the extent that is even possible (how about British-style 4-week cycles?)....and second, reducing the amount of money we blow in the electioneering business? I guess on the second point my thinking could be criticized because these are decent jobs, and all. Don't want to shirk chances of economic recovery, and heaven forbid you question the idyllic profit model. I'm just saying it's sad how much it costs to run a campaign, considering all these fiscal challenges we face. And that it seems inconsistent to want your government to do so little, but to turn a blind eye to how much had to be spent to get you there. Cause, gee, to me---that's big government, too.

President Obama's campaign, even just the image of it, inspired because of the small-dollar donations coming from more people. You got the sense that this is how it should be. That is why Citizens United seemed to sting so much; it seemed like a direct rebuke on what I found so inspiring---a direct attack on our desire to decide for ourselves with our dollars. Because our dollars are few compared with those now busting (opaquely) through the gate.

If you want small government, cool. Just stop regulating my ability to marry, then-----oops! Did I slip off topic?.......If you want small government, do not applaud that which would increase the trend toward BIG elections for those wishing to become part of that government.

Worth the Arrest?

As Professor Idleman alerted our Constitutional Law course last year, there’s nothing like the posture of a criminal defendant challenging a law’s constitutionality. Compare Bowers v. Hardwick, 478 U.S. 186 (1986) (plaintiff who was charged but not indicted under Texas’ sodomy laws unsuccessfully sues attorney general in action seeking to declare laws unconstitutional) with Lawrence v. Texas, 539 U.S. 558 (2003) (criminal defendants’ charges expunged when sodomy laws declared unconstitutional). Sure the passage of time had more than a little to do with the diverging outcomes in Bowers and Lawrence — but the criminal defense posture didn’t hurt.

A criminal defendant and a plaintiff encounter necessarily inconsistent judicial receptions. Put simply, the claim of one who faces the cruel stigma of criminality — where his or her prospective jail time flows in part from a voter-initiated constitutional amendment — will receive a more exacting hearing than a civil complaint filed by an unjailed plaintiff, disgruntled on the losing side of that same amendment’s enactment.
Because Lawrence declared unconstitutional all sodomy laws, however, how could a gay American be criminalized?


Well, assume hypothetically that I was a lesbian. Assume, further, that I wanted to marry my girlfriend in Iowa — say, hypothetically, this Memorial Day weekend. Destination Iowa! What would be wrong with that? After all, Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009) — unanimously decided by a since-bullied Iowa Supreme Court — validated a gay person’s right to marry and be miserable and boring but yet markedly happier and healthier like his or her straight friends. What could go wrong with my road-trip-recognized rights?

Under Wisconsin law, I could face a $10,000 fine, be jailed for 9 months, or both. Wisconsin Statute section 765.30(1)(a) permits such a charge if:

(a) Penalty for marriage outside the state to circumvent the laws. Any person residing and intending to continue to reside in this state who goes outside the state and there contracts a marriage prohibited or declared void under the laws of this state.

I am not the first to point out that this law, enacted without gays in mind, could be applied to gay people in Wisconsin who are ready to marry though their state is not ready to marry them. But the provision’s effect in combination with section 13 of the Wisconsin Constitution bears mentioning because of the baffled reaction that follows my introducing the idea to my law school classmates (great cocktail party fare).

What an interesting patchwork of laws I would have to navigate were I, hypothetically, a person who had to live with such concerns. What a triumph of states-as-laboratories federalism. As Professor Boyden has pointed out, on a road trip across the States, I would accelerate into acceptance in Iowa, pump the brakes as I become civil unionized in Illinois, and screech to a halt in Indiana — where my marriage wouldn’t be recognized. Is that like a falling tree in a forest? If a gay marries in Iowa, can you hear it in Indiana? At least if so (to my knowledge), that gay tree can’t be arrested.

As the Journal Sentinel article notes, at least one prosecutor has indicated that enforcing Wisconsin’s don’t-marry-outside-Wisconsin-to-evade-Wisconsin-law statute would be a waste of resources, and that — regardless — juries likely wouldn’t bite. But does the avenue exist to further stigmatize an already stigmatized subset of the populace? As we like to say here in Sconnie — you betcha.
Julliane Appling, chief executive officer of the Wisconsin Family Council, reacted to the statute quoted above in the article linked above:

“If it were challenged and the courts decided to basically wink at it, and refused to enforce the law, we have a problem,” she said, adding that the constitutional amendment clarified that no marriage other than between a man and woman is legal.

But shouldn’t pro-“family” groups jeer, not cheer efficient enforcement of section 765.30(1)(a)?  After all, if a person were hauled into court as a criminal defendant charged under it — a statute essentially made applicable to gays who marry despite section 13 of the Wisconsin Constitution, see Wis. Const. art. XIII, sec. 13 — wouldn’t the case’s procedural posture improve the chances for overturning the amendment that necessitated the defendant’s drive to Iowa in the first place?

CROSSPOSTED AT MARQUETTE UNIVERSITY LAW SCHOOL'S FACULTY BLOG.

Finger-pointing is oversimplification; not leadership

I cried Friday---hard, and for a long time---about the uphill battle one faces in the world of overabundant misinformation to advocate for a rational middle seeking not to exploit, but to emphasize the best in every person, and in every group---even the flawed. I'm also overstressed because I am over midway through law school, and suddenly confronted the idea that perhaps those institutions I'd sought to join by starting this journey were less worthy of my respect. Sadly, as a hopeful future state employee, it was my would-be boss who told me just how little I should value these institutions, filled as they are with greedy benefiteers.

What bothers me about Scott Walker’s governing style is not that, as a WI voter last November, I didn’t expect the policies he’d promote; though I did underestimate him, thinking people were confusing him as a slightly thinner haired Marco Rubio. What does not sit well with me is the commitment to high-stakes finger pointing. First, the trial lawyers were the bad guys—driving business away with their frivolous lawsuits. Next, President Obama is a trying to bankrupt our state, purposely, because his administration allocated $810M for high-speed rail between Milwaukee and Madison. Then it was time for union workers—for all teachers, notably, as this rhetoric seems to go—to “pay their fair share,” which meant not just actually paying, but releasing their ability to collectively bargain. A move that makes adopting Daubert with teeth in WI small potatoes. (Thanks for your services and legal scholarship, and all, Professor Blinka, but your reasonableness test alone is bankrupting us!)

In Wisconsin under Walker's leadership, at once, there is a call for understanding of the serious plight we are in--but an absence of calls to come together. There can be no unity where there are no calls for shared sacrifice--but you get the sense that unity matters little. Instead, we get the rhetoric of class warfare: vilification of one group at another’s expense. Making the group who is unaffected feel as if the problems will go away but for these who are fighting their image as the sole problem. I say this as someone unincluded in all groups vilified thus far, with the exception of those supporters of the President who would like to modernize rail nationwide. But that’s less personal than what I’ve been seeing in this battle-the-teacher week. Debate today devolves quickly; talk turns coarse and it takes a huge leader to soften proposals publicly and make the machine work in a way that doesn’t let the commentariat lose it on one another. The problem, though, if you glance at the summary of this year's budget bill, is the purposefulness of the finger pointing. What irks me is the explicitness of the blame in a world too complicated to point a finger unless you're pointing at the collective whole.

Vilifying any group is not leadership—that is abdication. How can a solution be palatable when people feel under attack? How can you rationally think about policy when you have to defend your own character? (See, e.g., the television commercials---funded by who?!!---calling for support of the budget proposal because unions must pay their fair share; even if this was so, the tone of these ads---right after we're through watching ads from the political season!---is all "us versus them" all the time.) 

Does democracy mean helping only those (like the police and firefighters unions exempt from the budgetary collective bargaining assault) who got you a job? Is this about turning your people against one another to make a splash large enough for your own political gain, Governor? 

Scott Walker and tea party leaders like him arose in a vacuum where the GOP had been because of that party’s complete abandonment of fiscal responsibility for at least a decade. But, more, the tea party leaders rose to power because the President sought shared sacrifice from so many whose sense of entitlement counsels them to think they’ve already given too much. One who is not inoculated by right-wing media may opine their sense of entitlement is taught to them by Fox News, whose headline online yesterday drummed up the sense that the protestors were skipping work over any other overarching narrative. Fueling the anger at the worker... to the worker? But you are us! We are you!

We are all in this fiscal situation together. The problems we face deal more with retiring baby boomers--I am convinced of this. I start this blog even at the expense of simply talking with myself, inspired by the sense that few seek ignorance purposefully; that few believe their neighbors, but not they, contribute to problems facing our nation; that we can speak respectfully to groups of people while asking them for sacrifice, thereby showing our own supporters how to conduct themselves; and, perhaps most importantly, that problems don't have two solutions and two black-or-white positions to take. 

Let's work together in the gray areas our politicians seem unable to articulate because of the constantly running political season. People themselves must set the stage for that kind of rising of the rational middle. Resist the politics of exploitation.