Crack v. Powder

Class: Criminal Procedure

Professor: Jacobs

Subject: Should Crack Cocaine Carry the Same Penalty as Powder Cocaine.

The class started out with a couple of regulars lamenting the discrepancy in federal sentencing for the respective forms of cocaine. I think everyone is aware of the disparate impact the harsher punishments for crack has had on blacks. Much like methamphetamine today, which is overwhelmingly found in rural white poor areas, crack was a phenomenon that took root in areas that were distinctly definable: mostly inner cities with black users.

Here are some statistics from the National Association of Criminal Defense Lawyers:

The average crack cocaine sentence, 120 months, is greater than: the 103-month average for robbery; the 76-month average sentence for arson; the 64-month average sentence for sexual abuse; and the 31-month average sentence for manslaughter.

Sentences for crack offenders are roughly two to six times as great as sentences for powder cocaine offenders distributing equivalent quantities of drugs.

The average sentence for crack cocaine (ten years) is thirty-five percent longer than the average methamphetamine sentence and fifty-two percent longer than the average powder cocaine sentence.

I would take those statistics with a grain of salt. The point is, there is a major differentiation in federal sentencing for coke and crack. And apparently this is the way Congress wants it.  They reaffirmed their decision to keep the disparity in 1995 after the Federal Sentencing Commission recommend a change.

I won't rehash the arguments for parity in sentencing between the two different cocaine derivatives; I'll just post a link. My classmates for parity explained themselves well and, as a result, the issue boiled down to really only one question: Is crack the same thing as coke?

My answer: Hell no!

If God came down from the clouds and commanded that you had to make a choice between smoking crack or snorting a line of coke one time and one time only, which would you choose? Yeah I thought so.

Look, I've never done either, and frankly, I'm for decriminalizing both. But, because of the 90's and its lessons, I know enough to not swallow the argument that the two drugs are one in the same. As one of my classmates stated succinctly: "I ain't never heard of any 'cocaine babies." Well put.

I'm going to let Wikipedia do the scientific talking for me concerning the chemical differences between the two, with the exception of saying that crack is derived from coke, and is much more potent, addictive, and debilitating.

When I brought these facts up in class (only after someone said that they are both equally addicting) I received the sarcastic lambasting of: " ... oh, well I didn't know there was a doctor in the room." Of course I'm not a fucking doctor, but my computer is asshole.

Anyway, besides the facts, how bout some analogies.

Swords and pistols are both made from steel. They're both weapons meant to kill people. But they are completely different in both their form and function. Is it appropriate for the law to take notice of this? Or, is it wrong, simply because one type weapon derived from steel is hypothetically used more predominantly by a specific group in society?

If the purpose of the federal sentencing were to only punish narcotic use per se, there might be an argument for creating equal guidelines. But I don't really think this is the argument. Like I said earlier, I would like to see all drugs legalized for personal consumption. However, if we are going to enter into prohibition, shouldn't we be rational about it and take notice of the drugs that are more dangerous than others? I hope no one out there really thinks marijuana should be on the same level as heroin.

Still, the arguments about racist motivations continue. Because the drugs are both "cocaine," it is wrong to punish one user because he is poor and not the other because he can afford the better stuff. Well, if the motivation were truly to afflict the poor and let the rich snort up, then I might be with you. But I think the crippling effect of violence and dependency which ravaged inner cities was the real motivation for the legislatures of this nation on cracking down (no pun intended) on the rock.

Beyond this, isn't it perverse to claim that a drug which disproportionately afflicted black communities shouldn't be dealt with because doing so would amount to racism? Wouldn't the fact that the lawmakers in this country tried to do something about the epidemic signal that there is concern for the law abiding citizens who live in those areas that were plagued by crime? I think turning a cold shoulder would allow a much harsher indictment of those in the position to do something.

But I hope no one construes this post to mean that I have no concern about the abysmal situation in our country's prison system at the moment. The "War on Drugs" has caused a lot of grief (disproportionately for minorities) in this nation and I personally think we need to reevaluate the situation. Chucking young men into prison is hardly an answer to our narcotics problem. I think legalization should be looked at and, interestingly, one of the Congressmen I loathe the most, Barney Frank, has introduced a bill to decriminalize marijuana. I hope he is successful in at least moving that drug back into the traditional areas of state regulation and getting the Feds out of it.

 

What the Hell is Happening to This Country?

I read on Yahoo's news service today that the majority of our elected officials failed the Intercollegiate Studies Institute's "Civic Literacy Test." Their average grade was a 44% while average citizens scored 49%. So I guess we're electing people that are dumber than us; but even still, American citizens fail.

These types of "Americans are idiots" tests come around every once in a while and always make me question the adequacy of majoritarian democracy. I mentioned to my girlfriend the other day that I wouldn't oppose some sort of civic test that we would have to pass in order to vote. She called me a racist - with love. Her opinion isn't crazy apparently because, as I have learned this semester in Employment, Congress and the Courts share her view that facially neutral tests are in fact discriminatory under Title VII. And somehow I'm the racist (pardon me for not believing that some races will do better than others for inherent lack of ability).

Do these types of tests depress anyone else, or am I alone? Why even fucking bother with politics if its going to be used by a population that has no grounding in the forming principles of our nation? 71% of Americans failed a very basic quiz covering the Constitution and economics. Only 0.8% received an A.

Some findings from the report:

Although Congress has voted twice in the last eight years to approve foreign wars, only 53% know that the power to declare war belongs to Congress. Almost 40% ... believe it belongs to the president.

Only 55% know that Congress shares authority over U.S. foreign policy with the president. Almost a quarter incorrectly believe Congress shares this power with the U.N.

Only 27% know the Bill of Rights expressly prohibits establishing an official religion for the U.S.

[50%] incorrectly believe ... that the phrase "a wall of separation" between church and state ... can be found in the Constitution.

Less than 50% can correctly name the three branches of government.

This is a multiple choice exam! And there is no partisan awards here ... everyone fails; no matter their income, age, ideology, education, or whatever.

Here is the really depressing part:  when asked "do America's founding documents still matter," 48% "strongly disagreed that America's founding documents remain relevant."

They might as well throw me in that last category - not because I don't want them to matter but because, clearly, they fucking don't.

The worst scores were on the free market vs. centralized planning portion of the exam, while the best scores could be found on questions concerning the Declaration of Independence.

You can take the quiz here.  It is 32 questions. I got a 97% because I attributed "of the people, by the people, for the people" to the Declaration of Independence.  And I am ashamed of myself for doing so.

NYU Law Is The Place To Be

In what looks like another coup for NYU Law, it was announced this week that visiting professor Richard A. Epstein will be making a permanent move from Chicago to New York. From NYU Law's website:

Professor Richard Epstein, the James Parker Hall Distinguished Service Professor of Law at the University of Chicago, will join NYU School of Law as a permanent member of the faculty in Fall 2010.

Epstein, who is currently visiting the Law School for the fourth time, is considered to be one of the most influential thinkers in legal academia. He is well known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects

'I am honored to be able to join the NYU faculty whose collegiality and seriousness of purpose has been evident to me since I first started visiting at NYU four years ago,' Epstein said.

It's sad to see Chicago Law lose another libertarian thinker in its continuing metamorphosis from a bastion of conservative thought into one that teaches "Law and Poverty or other made up stuff" (This is Scalia talking ... I'm really just trying to fit this in the post and still think Chicago is a hell of a school).

In any case, NYU has made a habit out of coaxing great professors away from other prestigious schools lately. They don't kid around either. Columbia lost Catherine Sharkey to us after NYU sweetened the move downtown with a bad ass $4.2 million dollar floor of a turreted apartment complex near the park. Some other notables include Arthur Miller from Harvard (many believe he is the inspiration for Scott Turow's Perini in One L), Estlund from Texas (now working on the NLRB Obama transition), Hills from Michigan, and now Epstein from Chicago.

Maybe Epstein's move is a signal that NYU is moving in a new direction; away from that which made me name my blog after a shitty Gene Hackman movie.

Naming Epstein as my hero in a previous post and creating three articles in as many weeks about him may make some of my readers think I have turned into a fanboy of the man; and maybe you're right - I'll try to restrain myself from now on. But in any event, I'm glad he's staying at NYU ... we need at least a smidgen of libertarianism here in the Village.

Progressives Will Progress Into Government Jobs They Created and You Pay For

It looks like the Center for American Progress will be playing a large role in formulating policies in the new Obama administration. Bloomberg reports:

The center is the premier progressive think tank in Washington,' said Mark Green, head of the New Democracy Project, and urban-affairs institute in New York.

Just eight days after the Nov. 4 election, CAP released a 3oo,ooo word volume called 'Change for America: A Progressive Blueprint for the 44th President' that offers advice on issues such as economic revival and fixing the Federal Emergency Management Agency. Work on the book began almost a year ago

CAP, which has 180 staffers and a $27 million budget, devotes as much as half of its resources to promoting its ideas through blogs, events, publications and media outreach.

This group is funded by Soros, and the blogs Think Progress and the Wonk Room are under CAP's wing. Apparently, Obama has already endorsed much of the groups ideas. Just what kind of ideas? Well in true "progressive" fashion most of CAP's policies are not in any way progressive at all: mostly just demands for more 'councils' and agencies to deal with all the problems of our world. A sample:

CAP ... is advocating the creation of a 'National Energy Council' headed by an official with the stature of the national security adviser and who would be charged with 'transforming the energy base' of the U.S. In addition, CAP urges the creation of a White House 'Office of Social Entrepreneurship' to spur new ideas for addressing social problems. [I guess CAP's staffers would think better in the White House with public funds]

Basically, CAP advocates the creation of government positions to deal with everything. Energy problems? That's a no brainer, just get a guy and name him the energy chief and he'll fix everything. Natural disasters? Easy, just get a better guy than Bush had and call him the head of emergency management ... he'll fix everything. Social entrepreneurship (whatever the hell that means), no problem, just hire some of us CAP kids and give us tax payer money and well do ... well, we'll think of something.

I Promised I Would: Affirmative Action

Class: Constitutional Law

Professor: Guliboff

Topic: Affirmative Action

This is my attempt at what I think is an apt analogy to the doctrine of affirmative action:

Suppose I get burglarized. I call the police and run through all the bullshit and I never figure out who did it. I then rationalize a right to burglarize my neighbor. When he calls the police on me, do you think a valid defense would be to say "yeah I stole his stuff, but it's OK because someone else stole my stuff!" Probably wouldn't work.

But this is exactly how affirmative action works. There has been a harm to a group in our nation's history, and this somehow justifies committing a harm on another group regardless of whether the individuals bearing the burden are innocent or guilty of the original harm.

To make matters worse, the benefit of affirmative action does not even necessarily run to harmed individuals of the originally harmed group. Status in a group is the only prerequisite to whether you will be harmed or benefited regardless of whether you were culpable in the original harm or burdened by it.

So I should revise my analogy. I get burglarized, and then my neighbor goes and burglarizes someone in a different building with the rationalization that someone in his defined group (a resident of our building) was harmed. He gets the benefit of the second burglary, even though he was not a party to the first.

The whole problem in affirmative action is the law focusing on groups instead of individuals. That view distorts our understanding of justice and, in Thomas' opinion, creating the group is the harm itself.

Interestingly, the majority of the Supreme Court did find a harm principle in affirmative action cases. In Adarand, the Court required all racial classifications be subjected to "strict scrutiny" because "whenever the government treats any person unequally because of his or her race, that person has suffered an injury ..." Despite this finding of harm, the Court in Grutter allowed the affirmative action program of Michigan's law school to go forward because it had a "compelling interest in diversity." I still can't understand how diversity at a law school trumps a constitutional decree of being free from harm caused by unequal protection of the law; but hey ... maybe diversity really is that great.

O'Connor, in Adarand, agreed that there was harm in racial classifications by their very nature, but limited her comments to the more ethereal types of harm that Thomas always cites which run to the supposedly benefited groups. The harms she didn't discuss are the ones running to third parties after an application of a race determined "point" system in a fixed pie scenario like law school admissions. Law school is not some utopia of abundance where the principles of economy do not exist. When applicants of a pool are competing against one another for slots (which demonstrates the limited resources) any preference given is a detriment to those who did not receive it also. This detriment does not just run against whites when the program is attempting to place blacks. It runs against everyone else. This includes Asians, Hispanics, and whatever other race you want to make up. Many races (but more importantly individuals) that had nothing to do with our country's history of racism are burdened.

The absurdity award for Grutter doesn't go to the 'diversity trumps constitutional protections' rationale however. In part three of her majority opinion - in which Scalia and Thomas tactically joined - O'Connor stated "[w]e expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today." Wow ... the Constitution will magically change in 25 years and not allow racial classifications for the purpose of diversity. This was the first (and hopefully last) time a sunset provision was written by a Supreme Court Justice into our Constitution.

Stevens, Breyer and Ginsburg would not even require "strict scrutiny" review of "benign" racial classifications which aim to help minorities. They refuse to see any harm, or at least look past it. Chiding the majority in Adarand:

There is no ... constitutional equivalence between a policy that is designed to perpetuate a caste system and one that seeks to eradicate racial subordination. Invidious discrimination is an engine of oppression, subjugating a disfavored group to enhance or maintain the power of the majority. Remedial race-based preferences reflect the opposite impulse: a desire to foster equality in society.

What Stevens et al. believes, is that they have the ability to separate harmful race-based laws from the helpful. This is quite an impossible task. What makes it impossible is, again, the insistence on using group membership to define an individual's status. Thomas, in one of his best dissents I have ever read, takes the Grutter plurality to task:

I believe what lies beneath the Court's decision today are the benighted notions that one can tell when racial discrimination benefits (rather than hurts) minority groups, and that the racial discrimination is necessary to remedy general societal ills ...

The Law School tantalizes unprepared students with the promise of a University of Michigan degree and all of the opportunities that it offers. These over-matched students take the bait, only to find that they cannot succeed in the cauldron of competition. ... [T]his mismatch crisis is not restricted to elite institutions. Indeed, to cover the tracks of the aestheticists, this cruel farce of racial discrimination must continue - in selection for [law review and law firms]. And the aestheticists will never address the real problems facing 'underrepresented minorities,' instead continuing their social experiments on other people's children ...

I would just add to Thomas' "harms" running to the supposedly "benefited" the social stigma that they face at school. If a young black man with a great LSAT score and great GPA goes to Michigan after this case and tells the admissions board not to give him deference because of his race, there is still no way to prevent his classmates from making assumptions about how he got in. The school is attaching the stigma to all members of a certain group which is unfair. Interestingly, O'Connor, in Adarand, saw the likely effects of this line of thinking:

Even though it is not the actual predicate for this legislation, a statute of this kind inevitably is perceived by many as resting on an assumption that those who are granted this special preference are less qualified in some respect that is identified purely by their race. Because that perception - especially when fostered by the Congress of the United States - can only exacerbate rather than reduce racial prejudice, it will delay the time when race will become a truly irrelevant, or at least insignificant, factor.

It is surprising that she did not join part VI of Thomas' dissent in Grutter.

I would encourage everyone to read both cases in their entirety, but especially Thomas' dissent in Grutter. He summed up the problems with affirmative action extremely well. I'll leave you with his opening volley where he quotes Frederick Douglass speaking to a group of abolitionists 140 years before this decision:

In regard to the colored people, there is always more that is benevolent, I perceive, than just, manifested towards us. What I ask for the negro is not benevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with us ... I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of their own strength, if they are worm-eaten at the core, if they are early ripe and disposed to fall, let them fall! ... And if the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone! ... [Y]our interference is doing him positive injury.

A NYU Law Classic

I never knew about this story, which makes me figure my 4 readers did not as well. Classic NYU Law from 2005:

Justice Antonin Scalia recently visited NYU Law School, and if press reports are any guide the welcome was rather mixed. According to this story, Scalia visited NYU to receive an honor from the student members of the NYU Annual Survey of American Law, a law journal. While at the law school, the Justice gave a question-and-answer session that was met with insults inside the room and a protest outside the room.
 The insult during the Q-and-A session has been widely reported online. Law student Eric Berndt, upset with Justice Scalia's oral argument questions and dissenting opinion in Lawrence v. Texas, asked the Justice: "Do you sodomize your wife?"

Underneath Their Robes has an eyewitness report:  

"There was this loud collective gasp from the audience, and for about 5 seconds Scalia stared at the questioner - I wasn't sure whether he was in shock like the rest of us, or whether he was going to come down from the podium and throttle the guy. He finally got a hold of himself and said he wasn't going to answer that and tried to move on to the next question, but for about 30 seconds the guy kept on badgering him and Scalia kept on trying to move to the next question, which he finally did."  

Wonkette reproduces an e-mail from Mr. Berndt explaining that his goal was to punish, embarrass, and dehumanize Justice Scalia for his allegedly bigoted views — what Mr. Berndt describes as an "act of resistance" against Justice Scalia's refusal to recognize his dignity.

A protest against Justice Scalia followed the Q-and-A:  

A planned protest in Washington Square Park followed the Q-and-A, which drew activists from OUTLaw, an organization of LGBT law students, the National Gay and Lesbian Task Force, the NYU Black Allied Law Students Association and the NYC Chapter of the National Organization of Women. The group held signs that read "Scalia Go Home To the Dark Ages" and "Repeal Scalia," and wore homemade t-shirts reading "Scalia Not My Chief Justice."

"Gifted people can either use their talents to help other people or hurt other people," said Bert Leatherman, a law student and the protest's organizer. "We all agree that Scalia has used his gifts to hurt people."

After listening to brief speeches around the fountain, the group organized and marched to Vanderbilt Hall, the law school building. The group stood inside the school's courtyard and chanted "Sexist, Racist, Anti-Gay, Nino, Nino, Go Away!"

"Scalia has got such a backwards world view and he wields so much power," said Dave Hancock, a Gallatin sophomore who joined the protest mid-march. "To be honored at a so-called progressive school is sickening."

Unsatisfied with the effect of their protest, the group quickly moved outside the law school and onto the corner of West 4th and MacDougal streets. They surrounded the first-floor room in which Scalia was receiving his honor and continued to chant and wave signs at bystanders. Some protesters wrote "Honk 4 Justice" on the back of their signs instigating cabs and cars to increase the noise volume.

All this is ripped off from Volokh

Eric started channeling his irritation for the status quo into his blog boozhy. One of his latest posts laments the schizophrenic election results for the gay community ... that is until he was distracted by a baby hippopotamus ... awwww look at it! 

Hey Paulson, I Got Somethin' You Can Bail Out

The Wall Street Journal had this to say about the ongoing bailout of Corporate America:

"The rescue efforts are evolving in ways that I don't think anyone anticipated ... "

I think they might mean the complete and utter circus that is "evolving" after the federal government put out a trough of loot. Treasury can't keep out the greedy pigs trying to feed. If they anticipated anything less they need to have their heads checked. Congress could have been smart and put clear restrictions on how the money was spent ... oh wait, they did ... and then conveniently did an end run around the rules to get their constituents in on the fun.

The first installment is almost all gone and the "reserve" will begin to spread out quick; especially with Congress clamoring for the money just as loudly as the constituents who will benefit.

Detroit just wised up and dispatched their lobbyists into the fray to defend their fair share of the taxpayers' money. And American Express conveniently gained "bank holding" status, which means they're now eligible to join the feast.  The credit arm of the auto makers are in the process of lobbying the government for the same title. I guess restricting TARP money to "credit lenders" is meaningless when just who fits that definition is to be determined.

Apparently, a lot of folks bought a new car they couldn't afford alongside their new houses. Detroit securitized their loans and sold them; which means we're all going to foot the bill. Congress is mulling whether to include a tax deductible for interest accrued on car loans to try and boost consumption.  I wonder how the foreign manufacturers are enjoying all of this - not to mention their consumers and hefty American Employee population. Someone should have told their workers that no matter how well they do they can't beat the big three; competition is an illusion in this country.

GM made a laughable proposition in its quest for TARP funds. They offered the American Tax Payers a stake in their worthless company in exchange for some money. Companies used to have to attract investors with the strength of their numbers and potential profits. That was a sucker's game apparently - especially for a business that burned through 7 billion last quarter. It's much easier to just use force.

The icing on the cake, however, is the way the tax payer is being treated now that their money has been stolen by Congress. The Fed refuses to disclose when, where and how their money was spent. Seem shady to anyone else? So much for political accountability. How the hell are we supposed to know whether our representatives screwed up if we can't see the results? Maybe that's the point.

Update:

Detroit (the city not the auto makers) now wants $10 billion, GE is getting $130 Billion tax payer insurance program, and Obama is asking for $50 billion to go to the auto makers.

Treasury actually put up a document online so that people can request their share of TARP.

And an independent research firm has deduced that since this bailout began, Washington has put $5 trillion on taxpayer funded credit. Thats a hell of a lot more than the $700 billion we were told this was going to take.

The Subjective 14th Amendment

In Goluboff's Constitutional Law class we are about to wrap up our segment concerning the Equal Protection Clause and its meaning in modern interpretation. The text of the clause is simple enough: "no state shall ... deny to any person within its jurisdiction the equal protection of the laws." Unfortunately, the Supreme Court's treatment of the language has rendered its meaning into a foggy mist of uncertainty. Two weeks of hypotheticals and case law has convinced me that SCOTUS needs to start anew.

Basically, as it stands now, the level of protection anyone gets is determined by how the law is classifying you.  If a law is distinguishing among citizens based on race, the Supreme Court has determined that they will use "strict scrutiny" in evaluating the law's constitutionality.  If the law has a "compelling interest" in its ends and its means are "narrowly tailored," then the racial classifications are just fine. No matter that those standards leave room for subjectivity to run rampant ... but more on that later. 

If you are being classified on the basis of sex or gender - which apparently is less invidious - you only get "intermediate scrutiny."  If the law has an "important interest" and its means are "substantially related" to the ends, then it passes muster. Ginsburg - she is a wily one - upped the ante and required that there be a "exceedingly persuasive justification;" which I guess is harder to meet than an "important interest." Anyone understanding the differences between qualitative and quantitative measurements is probably laughing at this point. 

And finally, if you are distinguished from your fellow citizens on other grounds - lets say mental retardation - you get "rational basis review." If the state can show a rationale for the law, and its means are somehow related, they'll be fine.

Now, this all sounds well thought out and fine, until you realize that the words used in defining the tiers of scrutiny have to be applied by human beings who are inherently subjective observers. This is not math, and all the talk about "compelling interests" vs. "important interests" is completely meaningless. Here is a somewhat crude analogy:  

Let's say a young man goes to an engineering school for his undergraduate education - Georgia Tech would be a good example. His identical twin brother somehow became interested in history and decided to take a different path in his educational career which led him to The University of Georgia. Now, hopefully any objective observer would agree that the selection of possible women for companionship at the respective schools is both qualitatively and quantitatively different.  No offense to Georgia Tech, but the girl to guy ratio is miserable for men, while the opposite is true at UGA. I'm not going to comment on the qualitative difference, but wink wink, nudge nudge to everyone who is familiar with those schools. Hypothetically, the brothers have the same taste in the fairer sex, but the choices for the engineer are abysmal. He manages to get a girlfriend though, as well as his brother. While home for Thanksgiving their good friend asks them how their love life is turning out and they both claim to have snagged an 8. But when their friend visits them he judges the GTech brother to have only snagged a 6 and the UGA brother to have reeled in a 10. I'm not going to belabor the point I'm trying to make ... 

This exact phenomenon showed up in Supreme Court doctrine concerning the "compelling interest" standard for race based discrimination. In Korematsu v. United States, the Supreme Court (6-3) struggled with the question of whether evacuation of all citizens of Japanese descent from the Western United States during WWII was a "compelling interest."  Compare this to the finding (5-4) of a "compelling interest" in Michigan having a "elite law school" thereby allowing the admissions board to distinguish between students on the basis of race.

So lets get this straight: during one of the most trying times in our nation's history, after an imperial attack and under possible invasion of the western seaboard, our Supreme Court allowed a law to take race into account - with three dissents.  Then, 50 some odd years later, the Supreme Court found a similarly "compelling interest" in a state having an elite law school? Never mind the fact that racial diversity may not even be an aspect in many people's minds of an "elite" school? Never mind the fact that some states don't even have law schools? A "compelling interest" is a pretty broad concept apparently. Subjectivity run amok.

Why gender gets less protection is similarly confusing. Rehnquist claimed that it was because women received less invidious discrimination in the past, and therefore we needn't be as on guard as when dealing with race. There are plenty who would disagree: after all, the 19th Amendment came a bit later than the 13th and 14th. There is an original intent argument concerning the 14th Amendment, but I won't bore you with that. The real frustration in all of this is that the Court applies these "standards" in a calls 'em as they sees 'em way that, in truth, makes a mockery of constitutional interpretation - such things should be left to bloggers. The meaning of the "tiers" changes each time the Senate confirms a new justice. But there is a way to fix it.

Strike down every law that makes any type of distinction between "citizens." Call me crazy but the Equal Protection Clause would be served mightily if our nation took this proposal up. Clarence Thomas advocates it all by his lonesome whenever Equal Protection comes up, and Kennedy seems to loathe the tier system even though he never joins Thomas' dissents.  I'm not alone.

Problems? These are a few always advocated:

1. How to deal with Affirmative Action

2. Prisons

3. Military

4. Restrooms and Gender Segregated Facilities

5. Hopefully the comment section will fill up with more making me feel like an idiot.

Answers:

1. Don't (A post on this in the coming week)

2. They are already in jail and have had most of their freedoms taken away so who cares if we segregate them.

3. If a woman can lift a 200 pound Marine after his legs have been shot then let her in ... on the other hand the military is quasi removed from constitutional law anyway, so its not really a problem (a post on this later in the week)

4. Make it optional and I promise they'll stay segregated ... besides, homosexuals have made it a non issue anyway ... as well as some universities that insist on coed showers and restrooms.

Cautiously Proud

I've been squarely opposed to the Democratic ticket since the primaries. The reason has been ideology.  Even though I truly believe the two party system has been a detriment, and I have been continually opposed to much of what the Republican Party has represented in the last eight years, I believed that a united Democratic government - Congress and the White House - would imperil this nation with a move to the left and a shift away from what I believe in.

I am still weary of what is to come.  But watching Obama get elected tonight has actually left me somewhat content. ABC, during their coverage, showed a Kenyan village watching the election on whatever electronics they could pull together. I have to admit that it struck me.  I saw a glimpse of Morehouse College in Atlanta, my home town, overflowing with cheering crowds, and it moved me. The fact that a black man - a member of a group that has been trampled under the heels of society for the last 500 years - can ascend to the most powerful post in humanity makes me proud of my country.

Although my beliefs in government are counter to Mr. Obama's, I'm still somewhat pleased tonight.

The Republicans need to give up on this culture war nonsense and get back to what makes their party viable: the ideas of freedom.

The American people want hope ... more government is not the answer to this desire. But tonight, the reverberance of our democracy selecting Obama has sent a message to the rest of the world that America is still the vestibule of that notion ... hope.