Geoffrey R. Stone's Blog, page 11
January 22, 2013
Roe at 40!
Forty years ago, I had the privilege of serving as a law clerk to Justice William J. Brennan, Jr. during the Supreme Court's 1972-73 Term. It was the year of Roe v. Wade, which was decided forty years ago today. In what has come to be seen as a highly controversial decision, the Supreme Court held that a woman has a constitutional right to decide for herself whether to carry an unwanted pregnancy to term.
Before turning to Roe, some history is in order. At the time the Constitution was adopted, the prevailing view was that human life did not exist until quickening (when the mother first feels movement), which typically occurs at around eighteen weeks, or roughly halfway through a pregnancy. American courts, following the English common law, consistently held that abortion before quickening was not a crime. Let me say that again: At the time the Constitution was adopted, abortion in the first eighteen weekss of a woman's pregancy was lawful.
Abortion rates soared in the mid-nineteenth century, as Americans left the land for industrial jobs. The large families vital to farming became burdens in crowded cities. Abortifacients were widely available from mail-order firms and pharmacists, and newspapers regularly ran ads for products and persons to "cure" pregnancy or "restore menses." Social scientists estimate that twenty percent of all pregnancies in this era were terminated by abortion.
In 1845, however, New York enacted a novel statute that for the first time declared it unlawful for any person to sell any product or perform any procedure with the intent to cause "a miscarriage." The New York law applied without regard to whether the abortion was pre- or post-quickening. Although a dramatic departure from the traditional approach, by the end of the century New York law had become a model for the nation.
Three factors contributed to this change. First, religious perspectives on abortion shifted during the evangelical fervor of the Second Great Awakening of the 1820s and 1830s. The long-standing Protestant understanding about the significance of quickening was increasingly challenged by the impassioned evangelical belief that God creates a separate and distinct human life at the very instant of conception.
Second, members of the medical profession, influenced by religious belief, began to propound the view that embryos are people from the moment of conception. In 1839, for example, Dr. Hugh Lenox Hodge published a widely-read pamphlet in which he confidently asserted that embryos can think and perceive right and wrong. In 1857, Dr. Horatio Storer initiated the "Physicians Crusade Against Abortion," warning that women who have abortions often "become confirmed invalids," develop "fatal organic disease,"and either die or are driven to insanity as a result of "moral shock." Storer denied that women should have any voice in the decision of whether they should carry a pregnancy to term, because during pregnancy a "woman's mind is prone to temporary derangement."
Third, the late nineteenth-century "social purity" movement, which sought to impose conservative religious and moral values on the nation, avidly embraced the anti-abortion cause. Preachers and other moralists demanded that the government prohibit contraceptives, drinking, lotteries and abortion.
The social purists insisted that the desire of women to control their own lives and bodies in the realm of reproduction was the product of a deformed and insatiable appetite for sex.
As one mid-nineteenth century moralist observed about abortion, "If women need not fear pregnancy as an outcome of sexual intercourse, what will keep wives faithful and daughters chaste?" The social purists managed to enact a broad range of federal and state laws prohibiting not only abortion, but also the sale or distribution of any product, device or information that could be used to prevent conception.
Despite these laws women, desperate to care for their families and to control their own lives, continued to seek abortions in ever greater numbers. But now these abortions had to be performed in unsafe circumstances and by less reliable practitioners than when the practice was legal. By the turn of the century, doctors estimated that as many as two million abortions were performed in the United States each year, resulting in the deaths of tens of thousands of women.
In the 1960s and early 1970s a few states, spurred by the efforts of the women's movement to make visible the terrible costs inflicted on women and their families by the late-nineteenth century anti-abortion laws, began to soften their prohibitions on abortion. But because these efforts encountered furious opposition from the Catholic Church progress was slow, even though by this time a substantial majority of Americans believed that women should be able to decide for themselves whether to end an unwanted pregnancy.
When Richard Nixon won the presidency in 1968, he found himself in the happy position of being able to appoint four new justices to the Supreme Court. With those appointments, the era of the liberal Warren Court came to a sudden end and a new conservative era came into being. Nixon's appointment of four new conservative justices -- Warren Burger, Harry Blackmun, Lewis Powell and William Rehnquist -- transformed the Court.
In a series of cases decided the same year as Roe, for example, the four Nixon appointees all voted to reject claims that consenting adults have a First Amendment right to read or view "obscene" materials, that a state's substantially unequal expenditures on different public schools within the state violates the Equal Protection Clause and that laws discriminating against women are presumptively unconstitutional. In these and a host of other decisions the Court's four new conservative justices lived up to their billing.
Given the assertions common in political discourse today about whether the Constitution protects the right of a woman to terminate an unwanted pregnancy, one might naturally assume that the four Nixon appointees opposed Roe v. Wade. In fact, though, three of the four new conservative justices (Burger, Blackmun and Powell) voted to hold the nineteenth-century anti-abortion laws unconstitutional. How could that have been? How could such conservative justices have joined Roe? Given how Roe is perceived today, that seems unimaginable.
What this reveals, and what we inside the Court knew at the time, is that even most of the conservative justices did not think of Roe as a difficult or controversial case. They would never have believed that Roe would still be thought politically divisive today, forty years later.
This was so because the foundation for Roe -- the Court's recognition that individuals have a constitutional right to decide for themselves about matters as fundamental and personal as reproduction -- had been laid years before. Thirty years before Roe, for example, in a case involving state-ordered sterilization, the Supreme Court held in Skinner v. Oklahoma that the right of the individual to make decisions about procreation is "one of the basic civil rights of man."
Eight years before Roe, the Court held in Griswold v. Connecticut that a law prohibiting married couples to use contraceptives violated "a right of privacy older than the Bill of Rights."And only a year before Roe, the Court in Eisenstadt v. Baird held unconstitutional a law prohibiting unmarried individuals to use contraceptives, emphasizing "the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child."
Thus, by the time the Court decided Roe, there was no serious question about whether the Constitution protects the fundamental right of the individual to decide for herself "whether to bear or beget a child." Put simply, the seven justices in the majority in Roe did not see the existence of such a right as seriously in dispute.
Moreover, as Justice Blackmun explained in his opinion for the Court, the denial of such a right would impose serious harm to women. Blackmun noted, for example, that pregnancy can be harmful to the physical health of the woman, that unwanted "offspring may force upon the woman a distressful life and future," and that "bringing a child into a family already unable, psychologically and otherwise, to care for it" can have devastating consequences both for the woman and the family.
Although there was a public outcry against Roe among Catholics, (the Court was flooded with organized form letters from students in Catholics schools), the general public reaction was positive. Indeed, Americans at the time supported Roe by a substantial margin of 52 percent to 44 percent. Moreover, and surprisingly today, Republicans were much more likely to hold this position in 1973 than Democrats (this was so because the vast majority of Catholics were Democrats).
Of course, much has happened in the forty years since Roe, due largely to critics of the decision like Robert Bork, who denied that the Constitution protects the right of an individual to decide for herself whether "to bear or beget a child," and the successful effort of conservative politicians to exploit Roe as a way to bring Catholics into the Republican Party and to reenergize the Christian evangelical movement.
Roe, however, was a triumph of American constitutional law. It changed the world in a fundamental way, protected the lives of women and strengthened the American family. Those who wish that Roe had never been decided would return us to a world of gender oppression, back-alley abortions and personal degradation.
Today, on its 40th anniversary, roughly 70 percent of Americans approve of Roe v. Wade. This is a much higher percentage than approve of President Obama, the Senate, the House of Representatives, or the Supreme Court. This is the highest percentage of Americans ever who have approved of Roe. It is almost unheard of for 70 percent of Americans to agree on anything, but having reflected on the matter for four decades, they now agree on Roe.
Before turning to Roe, some history is in order. At the time the Constitution was adopted, the prevailing view was that human life did not exist until quickening (when the mother first feels movement), which typically occurs at around eighteen weeks, or roughly halfway through a pregnancy. American courts, following the English common law, consistently held that abortion before quickening was not a crime. Let me say that again: At the time the Constitution was adopted, abortion in the first eighteen weekss of a woman's pregancy was lawful.
Abortion rates soared in the mid-nineteenth century, as Americans left the land for industrial jobs. The large families vital to farming became burdens in crowded cities. Abortifacients were widely available from mail-order firms and pharmacists, and newspapers regularly ran ads for products and persons to "cure" pregnancy or "restore menses." Social scientists estimate that twenty percent of all pregnancies in this era were terminated by abortion.
In 1845, however, New York enacted a novel statute that for the first time declared it unlawful for any person to sell any product or perform any procedure with the intent to cause "a miscarriage." The New York law applied without regard to whether the abortion was pre- or post-quickening. Although a dramatic departure from the traditional approach, by the end of the century New York law had become a model for the nation.
Three factors contributed to this change. First, religious perspectives on abortion shifted during the evangelical fervor of the Second Great Awakening of the 1820s and 1830s. The long-standing Protestant understanding about the significance of quickening was increasingly challenged by the impassioned evangelical belief that God creates a separate and distinct human life at the very instant of conception.
Second, members of the medical profession, influenced by religious belief, began to propound the view that embryos are people from the moment of conception. In 1839, for example, Dr. Hugh Lenox Hodge published a widely-read pamphlet in which he confidently asserted that embryos can think and perceive right and wrong. In 1857, Dr. Horatio Storer initiated the "Physicians Crusade Against Abortion," warning that women who have abortions often "become confirmed invalids," develop "fatal organic disease,"and either die or are driven to insanity as a result of "moral shock." Storer denied that women should have any voice in the decision of whether they should carry a pregnancy to term, because during pregnancy a "woman's mind is prone to temporary derangement."
Third, the late nineteenth-century "social purity" movement, which sought to impose conservative religious and moral values on the nation, avidly embraced the anti-abortion cause. Preachers and other moralists demanded that the government prohibit contraceptives, drinking, lotteries and abortion.
The social purists insisted that the desire of women to control their own lives and bodies in the realm of reproduction was the product of a deformed and insatiable appetite for sex.
As one mid-nineteenth century moralist observed about abortion, "If women need not fear pregnancy as an outcome of sexual intercourse, what will keep wives faithful and daughters chaste?" The social purists managed to enact a broad range of federal and state laws prohibiting not only abortion, but also the sale or distribution of any product, device or information that could be used to prevent conception.
Despite these laws women, desperate to care for their families and to control their own lives, continued to seek abortions in ever greater numbers. But now these abortions had to be performed in unsafe circumstances and by less reliable practitioners than when the practice was legal. By the turn of the century, doctors estimated that as many as two million abortions were performed in the United States each year, resulting in the deaths of tens of thousands of women.
In the 1960s and early 1970s a few states, spurred by the efforts of the women's movement to make visible the terrible costs inflicted on women and their families by the late-nineteenth century anti-abortion laws, began to soften their prohibitions on abortion. But because these efforts encountered furious opposition from the Catholic Church progress was slow, even though by this time a substantial majority of Americans believed that women should be able to decide for themselves whether to end an unwanted pregnancy.
When Richard Nixon won the presidency in 1968, he found himself in the happy position of being able to appoint four new justices to the Supreme Court. With those appointments, the era of the liberal Warren Court came to a sudden end and a new conservative era came into being. Nixon's appointment of four new conservative justices -- Warren Burger, Harry Blackmun, Lewis Powell and William Rehnquist -- transformed the Court.
In a series of cases decided the same year as Roe, for example, the four Nixon appointees all voted to reject claims that consenting adults have a First Amendment right to read or view "obscene" materials, that a state's substantially unequal expenditures on different public schools within the state violates the Equal Protection Clause and that laws discriminating against women are presumptively unconstitutional. In these and a host of other decisions the Court's four new conservative justices lived up to their billing.
Given the assertions common in political discourse today about whether the Constitution protects the right of a woman to terminate an unwanted pregnancy, one might naturally assume that the four Nixon appointees opposed Roe v. Wade. In fact, though, three of the four new conservative justices (Burger, Blackmun and Powell) voted to hold the nineteenth-century anti-abortion laws unconstitutional. How could that have been? How could such conservative justices have joined Roe? Given how Roe is perceived today, that seems unimaginable.
What this reveals, and what we inside the Court knew at the time, is that even most of the conservative justices did not think of Roe as a difficult or controversial case. They would never have believed that Roe would still be thought politically divisive today, forty years later.
This was so because the foundation for Roe -- the Court's recognition that individuals have a constitutional right to decide for themselves about matters as fundamental and personal as reproduction -- had been laid years before. Thirty years before Roe, for example, in a case involving state-ordered sterilization, the Supreme Court held in Skinner v. Oklahoma that the right of the individual to make decisions about procreation is "one of the basic civil rights of man."
Eight years before Roe, the Court held in Griswold v. Connecticut that a law prohibiting married couples to use contraceptives violated "a right of privacy older than the Bill of Rights."And only a year before Roe, the Court in Eisenstadt v. Baird held unconstitutional a law prohibiting unmarried individuals to use contraceptives, emphasizing "the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child."
Thus, by the time the Court decided Roe, there was no serious question about whether the Constitution protects the fundamental right of the individual to decide for herself "whether to bear or beget a child." Put simply, the seven justices in the majority in Roe did not see the existence of such a right as seriously in dispute.
Moreover, as Justice Blackmun explained in his opinion for the Court, the denial of such a right would impose serious harm to women. Blackmun noted, for example, that pregnancy can be harmful to the physical health of the woman, that unwanted "offspring may force upon the woman a distressful life and future," and that "bringing a child into a family already unable, psychologically and otherwise, to care for it" can have devastating consequences both for the woman and the family.
Although there was a public outcry against Roe among Catholics, (the Court was flooded with organized form letters from students in Catholics schools), the general public reaction was positive. Indeed, Americans at the time supported Roe by a substantial margin of 52 percent to 44 percent. Moreover, and surprisingly today, Republicans were much more likely to hold this position in 1973 than Democrats (this was so because the vast majority of Catholics were Democrats).
Of course, much has happened in the forty years since Roe, due largely to critics of the decision like Robert Bork, who denied that the Constitution protects the right of an individual to decide for herself whether "to bear or beget a child," and the successful effort of conservative politicians to exploit Roe as a way to bring Catholics into the Republican Party and to reenergize the Christian evangelical movement.
Roe, however, was a triumph of American constitutional law. It changed the world in a fundamental way, protected the lives of women and strengthened the American family. Those who wish that Roe had never been decided would return us to a world of gender oppression, back-alley abortions and personal degradation.
Today, on its 40th anniversary, roughly 70 percent of Americans approve of Roe v. Wade. This is a much higher percentage than approve of President Obama, the Senate, the House of Representatives, or the Supreme Court. This is the highest percentage of Americans ever who have approved of Roe. It is almost unheard of for 70 percent of Americans to agree on anything, but having reflected on the matter for four decades, they now agree on Roe.
January 17, 2013
Are Civil Unions 'Good Enough' for Same-Sex Couples?
The Thomas More Society is a national public interest law firm that "exists to restore respect in law for life, marriage, and religious liberty." It fiercely opposes reproductive choice for women and marriage for same-sex couples. It recently sent a letter to all members of the Illinois General Assembly calling on them to oppose the pending bill that would legalize marriage for same-sex couples in Illinois. This is my response to their letter:
The Thomas More Society's recent letter makes a series of misleading assertions about the proposal in the Illinois General Assembly to extend the freedom to marry in Illinois to same-sex couples. In fact, the proposed law protects both equality and religious liberty and merits the support of all members of the General Assembly.
The Thomas More Society suggests that a law recognizing marriage for same-sex couples denigrates the marriages of opposite-sex couples and brands those who oppose same-sex marriage as "bigots." This is absurd. The proposed legislation does not compel anyone to endorse same-sex marriage, to marry someone of the same sex, or to change her religious beliefs. It does not in any way insult those who marry persons of the opposite sex or suggest that those who disagree with the law are "bigots." Rather, whether or not those who oppose marriage for same-sex couples are "bigots" is a judgment wholly independent of this legislation.
Same-sex couples want to marry for the same reasons opposite-sex couples want to marry. They want to marry because they want to make a deep personal and binding commitment to the person they love. They are no different in this respect than opposite-sex couples. To deny them this right is unjust, unequal and incompatible with our most fundamental moral tenet: "Do unto others. . . ."
The Thomas More Society insists that civil unions are good enough for same-sex couples. Such couples, they submit, do not need the "title" of marriage. They should be happy that the state allows them to have "civil unions." Would they feel that way, I wonder, if the law said that interracial couples or interfaith couples or Catholic couples or Jewish couples or African-American couples could not "marry," but must be content with having "civil unions"? I think not. And with good reason. For the denial of the "title" of marriage serves only one purpose -- to denigrate and diminish the dignity of the same-sex or inter-racial or inter-faith or Catholic or African-American unions. It is a mean-spirited and cruel insult to the loving commitments made by such couples.
The Thomas More Society argues further that for Illinois to recognize marriage for same-sex couples would violate the religious liberty of its members. But how is this so? No religion has the right to demand that the State act in accord with its own peculiar precepts. Moreover, under the proposed legislation, no church, no synagogue, indeed, no house of worship of any denomination is required to sanctify any union that is inconsistent with its religious tradition.
The Thomas More Society, however, wants more. It insists that every institution, every organization, every business that is offended by same-sex marriage must be allowed to discriminate against same-sex couples. It wants every hotel, every restaurant, every florist, every photographer, every car rental agency, and every homeless shelter to have the right to discriminate against same-sex couples if their marriage offends their religious or moral precepts. Nothing in our constitutional or legal traditions permits such blatant private discrimination.
To the contrary, under settled law, once a business or other organization holds itself out as a provider of services or accommodations to the general public, it may not then refuse to provide those services or accommodations to people because of their race, gender, religion, national origin, disability, marital status, sexual orientation or gender identity, even if equality offends the business's religious or moral values.
I am confident that, despite the complaints of groups like the Thomas More Society, the Illinois General Assembly will soon pass and send to the Governor the pending legislation. When they do, it will be a major step on our continuing national path to an ever-more just and more equal society.
Both the Thomas More Society's letter and this response were published in the Chicago Daily Law Bulletin.
The Thomas More Society's recent letter makes a series of misleading assertions about the proposal in the Illinois General Assembly to extend the freedom to marry in Illinois to same-sex couples. In fact, the proposed law protects both equality and religious liberty and merits the support of all members of the General Assembly.
The Thomas More Society suggests that a law recognizing marriage for same-sex couples denigrates the marriages of opposite-sex couples and brands those who oppose same-sex marriage as "bigots." This is absurd. The proposed legislation does not compel anyone to endorse same-sex marriage, to marry someone of the same sex, or to change her religious beliefs. It does not in any way insult those who marry persons of the opposite sex or suggest that those who disagree with the law are "bigots." Rather, whether or not those who oppose marriage for same-sex couples are "bigots" is a judgment wholly independent of this legislation.
Same-sex couples want to marry for the same reasons opposite-sex couples want to marry. They want to marry because they want to make a deep personal and binding commitment to the person they love. They are no different in this respect than opposite-sex couples. To deny them this right is unjust, unequal and incompatible with our most fundamental moral tenet: "Do unto others. . . ."
The Thomas More Society insists that civil unions are good enough for same-sex couples. Such couples, they submit, do not need the "title" of marriage. They should be happy that the state allows them to have "civil unions." Would they feel that way, I wonder, if the law said that interracial couples or interfaith couples or Catholic couples or Jewish couples or African-American couples could not "marry," but must be content with having "civil unions"? I think not. And with good reason. For the denial of the "title" of marriage serves only one purpose -- to denigrate and diminish the dignity of the same-sex or inter-racial or inter-faith or Catholic or African-American unions. It is a mean-spirited and cruel insult to the loving commitments made by such couples.
The Thomas More Society argues further that for Illinois to recognize marriage for same-sex couples would violate the religious liberty of its members. But how is this so? No religion has the right to demand that the State act in accord with its own peculiar precepts. Moreover, under the proposed legislation, no church, no synagogue, indeed, no house of worship of any denomination is required to sanctify any union that is inconsistent with its religious tradition.
The Thomas More Society, however, wants more. It insists that every institution, every organization, every business that is offended by same-sex marriage must be allowed to discriminate against same-sex couples. It wants every hotel, every restaurant, every florist, every photographer, every car rental agency, and every homeless shelter to have the right to discriminate against same-sex couples if their marriage offends their religious or moral precepts. Nothing in our constitutional or legal traditions permits such blatant private discrimination.
To the contrary, under settled law, once a business or other organization holds itself out as a provider of services or accommodations to the general public, it may not then refuse to provide those services or accommodations to people because of their race, gender, religion, national origin, disability, marital status, sexual orientation or gender identity, even if equality offends the business's religious or moral values.
I am confident that, despite the complaints of groups like the Thomas More Society, the Illinois General Assembly will soon pass and send to the Governor the pending legislation. When they do, it will be a major step on our continuing national path to an ever-more just and more equal society.
Both the Thomas More Society's letter and this response were published in the Chicago Daily Law Bulletin.
January 9, 2013
Understanding the Second Amendment
Opponents of laws regulating the sale, manufacture and use of guns fervently invoke the Second Amendment. In their view, the Second Amendment ("a well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed") forbids the government to regulate guns. Period. End of discussion.
But it is more complicated than that. At the outset, let's put aside the argument that the "well-regulated militia" clause signficantly narrows the scope of the Second Amendment. Although most judges and lawyers endorse that interpretation, the Supreme Court, in its controversial five-to-four decision in District of Columbia v. Heller, rejected that understanding of the text.
So, let's consider that matter "settled." Let's assume, then, that the Second Amendment reads: "The right of the people to keep and bear arms shall not be infringed." Now, that sure sounds absolute. But it's not that simple.
Consider, for example, the First Amendment, which provides: "Congress shall make no law ... abridging the freedom of speech." This also sounds absolute. But does the First Amendment mean that the government cannot constitutionally regulate speech?
Justice Oliver Wendell Holmes put that possibility to rest in 1919 with a famous hypothetical. "The most stringent protection of free speech," he observed, "would not protect a man falsely shouting fire in a theater and causing a panic." In other words, even though the text of the First Amendment sounds absolute, it is not.
But how can this be so? Doesn't the text mean what it says? Here's the catch: Even though it is true that "Congress shall make no law ... abridging the freedom of speech," we still have to define what we mean by "the freedom of speech" that Congress may not abridge. The phrase "the freedom of speech," in other words, is not self-defining. And as Justice Holmes demonstrated with his hypothetical, it does not cover an individual who falsely shouts "fire!"in a crowded theater.
But that is only the beginning, for despite the seemingly absolute language of the First Amendment, the Supreme Court has long-held that the government may regulate speech in a great many situations. In appropriate circumstances, for example, a speaker can be punished for defaming another individual, for making threats, for selling obscenity, for distributing child pornography, for inciting a murder, for "leaking" confidential information, for using a loudspeaker at night in a residential neighborhood, for handing out leaflets on a public bus, for erecting a too-large billboard, and for using naughty words on television, to cite just a few of many possible examples.
Thus, although the First Amendment seems absolute in its protection of "the freedom of speech," the Supreme Court has reasonably recognized that it does not guarantee us the right to say whatever we please, whenever we please, wherever we please, in whatever manner we please. The "freedom of speech" is subject to regulation.
The same is of course true of the Second Amendment. Even if we agree that the Second Amendment forbids the government to "infringe" the right to "keep and bear arms," that does not mean that the government cannot reasonably regulate the manufacture, sale, ownership and possession of firearms. Indeed, this is precisely what Justice Scalia said in his opinion for the Court in Heller.
It is time for opponents of gun control to stop mindlessly shouting "The Second Amendment!!" as if that ends the discussion. It does not. Just as there is no First Amendment right to falsely yell fire in a crowded theatre, there is no Second Amendment right to carry an AK-47 there.
And that is only the beginning of what the Second Amendment does not guarantee.
But it is more complicated than that. At the outset, let's put aside the argument that the "well-regulated militia" clause signficantly narrows the scope of the Second Amendment. Although most judges and lawyers endorse that interpretation, the Supreme Court, in its controversial five-to-four decision in District of Columbia v. Heller, rejected that understanding of the text.
So, let's consider that matter "settled." Let's assume, then, that the Second Amendment reads: "The right of the people to keep and bear arms shall not be infringed." Now, that sure sounds absolute. But it's not that simple.
Consider, for example, the First Amendment, which provides: "Congress shall make no law ... abridging the freedom of speech." This also sounds absolute. But does the First Amendment mean that the government cannot constitutionally regulate speech?
Justice Oliver Wendell Holmes put that possibility to rest in 1919 with a famous hypothetical. "The most stringent protection of free speech," he observed, "would not protect a man falsely shouting fire in a theater and causing a panic." In other words, even though the text of the First Amendment sounds absolute, it is not.
But how can this be so? Doesn't the text mean what it says? Here's the catch: Even though it is true that "Congress shall make no law ... abridging the freedom of speech," we still have to define what we mean by "the freedom of speech" that Congress may not abridge. The phrase "the freedom of speech," in other words, is not self-defining. And as Justice Holmes demonstrated with his hypothetical, it does not cover an individual who falsely shouts "fire!"in a crowded theater.
But that is only the beginning, for despite the seemingly absolute language of the First Amendment, the Supreme Court has long-held that the government may regulate speech in a great many situations. In appropriate circumstances, for example, a speaker can be punished for defaming another individual, for making threats, for selling obscenity, for distributing child pornography, for inciting a murder, for "leaking" confidential information, for using a loudspeaker at night in a residential neighborhood, for handing out leaflets on a public bus, for erecting a too-large billboard, and for using naughty words on television, to cite just a few of many possible examples.
Thus, although the First Amendment seems absolute in its protection of "the freedom of speech," the Supreme Court has reasonably recognized that it does not guarantee us the right to say whatever we please, whenever we please, wherever we please, in whatever manner we please. The "freedom of speech" is subject to regulation.
The same is of course true of the Second Amendment. Even if we agree that the Second Amendment forbids the government to "infringe" the right to "keep and bear arms," that does not mean that the government cannot reasonably regulate the manufacture, sale, ownership and possession of firearms. Indeed, this is precisely what Justice Scalia said in his opinion for the Court in Heller.
It is time for opponents of gun control to stop mindlessly shouting "The Second Amendment!!" as if that ends the discussion. It does not. Just as there is no First Amendment right to falsely yell fire in a crowded theatre, there is no Second Amendment right to carry an AK-47 there.
And that is only the beginning of what the Second Amendment does not guarantee.
January 7, 2013
The Gun Debate
My recent post on gun control generated more than 1,500 comments. At least 80 percent of them were from people who oppose gun control. Some were pretty scary. The rest, as a group, made five arguments that deserve a response:
First: Gun homicides in the United States have decreased dramatically over the past twenty years even without any significant gun control. This proves that the regulation of guns is unnecessary. It is true that the gun homicide rate has declined significantly over the past 20 years. But this fact alone is misleading. In fact, the gun homicide rate has merely returned to what it was in the early 1980s -- roughly four people out of 100,000 are murdered by guns in the United States every year. But from the early 1980s until the early 1990s, there was a huge increase in violent crime in the United States and gun homicide rates more than doubled. This was due largely to the crack epidemic. Since then, as our incarceration rates have climbed to the highest in the world, the gun homicide rate has returned to 1980 levels -- which is almost twenty times higher than in other "advanced" nations. The recent decrease in the gun homicide rate is certainly good news, but it still leaves us with a profound national challenge.
Second: Why pick on guns? Lots of other things, like cars, cause even more deaths than guns. Why not ban them instead? In 2011, approximately 32,000 people died from guns and 33,000 died in car accidents. We certainly should take steps to reduce auto deaths. In fact, a variety of traffic safety measures -- including government policies dealing with seat belts, air bags, car seats, anti-lock brakes, median barriers, rumble strips, laws against speeding and drunk driving, mandatory liability insurance, and standards for drivers' licenses have substantially reduced traffic deaths over the past 60 years. In 1949, there were 7 traffic deaths for every 100 million miles traveled; in 2011 there was 1 traffic death for every 100 million miles traveled. If the government could take similar measures to enhance gun safety -- measures that are fiercely and tragically opposed by the NRA -- then we might similarly reduce gun deaths in the United States, saving many thousands of American lives each year.
Third: What about the Second Amendment? There is no constitutional right to drive a car, but there is a constitutional right to own a gun! In District of Columbia v. Heller , a highly controversial five-to-four decision, the Supreme Court held in 2008 that the Second Amendment ("a well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed") guarantees an individual right to bear arms. In light of that decision, it is reasonable for the NRA and its supporters to invoke the Second Amendment. But they must understand that the Court did not suggest that guns may not be regulated. To the contrary, in his opinion, Justice Scalia explained that, like other rights, "the right secured by the Second Amendment is not unlimited." It is "not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." Indeed, "nothing in our opinion should be taken to cast doubt on longstanding prohibitions" on "carrying concealing weapons" or "on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." Moreover, Justice Scalia added, the Second Amendment protects only "the sorts of weapons" that were "in common use" in the eighteenth century. It therefore does not protect "M-16 rifes and the like." Thus, opponents of gun control should not overstate the breadth of either the Court's decision or the Second Amendment, both of which leave plenty of room for all sorts of effective and sensible regulations of guns.
Fourth: Gun control doesn't work. We have tried it in a variety of ways and in several jurisdictions and it has not reduced the gun murder rate. The plain and simple fact is that we have never had sufficient opportunity in the United States to experiment with serious gun control regulations to know how effective they might be. What we do know, however, as a Harvard University study concluded, is that "where there are more guns there is more homicide." This is true across "advanced" nations like the United States, England, Canada, Japan, Germany, Italy, Australia, etc., and across states (on average, states with the highest gun ownership rates also have the highest gun murder rates). In truth, there is no reason to believe that serious regulation of guns would be any less effective in reducing gun deaths than serious regulation of driving has been effective in reducing traffic deaths, and this is evident from the experience of a broad range of other nations.
Fifth: "I have owned guns all my life. If you attempt to use force to leave me defenesless I will defend myself against you and only one of us will walk away. I hope this sheds some light on the subject for you!" This sentiment was stated over and over again in the 1,500 comments to my earlier post, often in even more ugly terms. It sheds sad light, I suppose, on the "reasoning" of our nation's more vehement opponents of gun control. In a democracy, such threats cannot play a legitimate role in public debate. Whatever the right decision about gun control, we can never allow threats of terror to shape our judgment.
First: Gun homicides in the United States have decreased dramatically over the past twenty years even without any significant gun control. This proves that the regulation of guns is unnecessary. It is true that the gun homicide rate has declined significantly over the past 20 years. But this fact alone is misleading. In fact, the gun homicide rate has merely returned to what it was in the early 1980s -- roughly four people out of 100,000 are murdered by guns in the United States every year. But from the early 1980s until the early 1990s, there was a huge increase in violent crime in the United States and gun homicide rates more than doubled. This was due largely to the crack epidemic. Since then, as our incarceration rates have climbed to the highest in the world, the gun homicide rate has returned to 1980 levels -- which is almost twenty times higher than in other "advanced" nations. The recent decrease in the gun homicide rate is certainly good news, but it still leaves us with a profound national challenge.
Second: Why pick on guns? Lots of other things, like cars, cause even more deaths than guns. Why not ban them instead? In 2011, approximately 32,000 people died from guns and 33,000 died in car accidents. We certainly should take steps to reduce auto deaths. In fact, a variety of traffic safety measures -- including government policies dealing with seat belts, air bags, car seats, anti-lock brakes, median barriers, rumble strips, laws against speeding and drunk driving, mandatory liability insurance, and standards for drivers' licenses have substantially reduced traffic deaths over the past 60 years. In 1949, there were 7 traffic deaths for every 100 million miles traveled; in 2011 there was 1 traffic death for every 100 million miles traveled. If the government could take similar measures to enhance gun safety -- measures that are fiercely and tragically opposed by the NRA -- then we might similarly reduce gun deaths in the United States, saving many thousands of American lives each year.
Third: What about the Second Amendment? There is no constitutional right to drive a car, but there is a constitutional right to own a gun! In District of Columbia v. Heller , a highly controversial five-to-four decision, the Supreme Court held in 2008 that the Second Amendment ("a well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed") guarantees an individual right to bear arms. In light of that decision, it is reasonable for the NRA and its supporters to invoke the Second Amendment. But they must understand that the Court did not suggest that guns may not be regulated. To the contrary, in his opinion, Justice Scalia explained that, like other rights, "the right secured by the Second Amendment is not unlimited." It is "not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." Indeed, "nothing in our opinion should be taken to cast doubt on longstanding prohibitions" on "carrying concealing weapons" or "on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." Moreover, Justice Scalia added, the Second Amendment protects only "the sorts of weapons" that were "in common use" in the eighteenth century. It therefore does not protect "M-16 rifes and the like." Thus, opponents of gun control should not overstate the breadth of either the Court's decision or the Second Amendment, both of which leave plenty of room for all sorts of effective and sensible regulations of guns.
Fourth: Gun control doesn't work. We have tried it in a variety of ways and in several jurisdictions and it has not reduced the gun murder rate. The plain and simple fact is that we have never had sufficient opportunity in the United States to experiment with serious gun control regulations to know how effective they might be. What we do know, however, as a Harvard University study concluded, is that "where there are more guns there is more homicide." This is true across "advanced" nations like the United States, England, Canada, Japan, Germany, Italy, Australia, etc., and across states (on average, states with the highest gun ownership rates also have the highest gun murder rates). In truth, there is no reason to believe that serious regulation of guns would be any less effective in reducing gun deaths than serious regulation of driving has been effective in reducing traffic deaths, and this is evident from the experience of a broad range of other nations.
Fifth: "I have owned guns all my life. If you attempt to use force to leave me defenesless I will defend myself against you and only one of us will walk away. I hope this sheds some light on the subject for you!" This sentiment was stated over and over again in the 1,500 comments to my earlier post, often in even more ugly terms. It sheds sad light, I suppose, on the "reasoning" of our nation's more vehement opponents of gun control. In a democracy, such threats cannot play a legitimate role in public debate. Whatever the right decision about gun control, we can never allow threats of terror to shape our judgment.
January 5, 2013
Guns: Put Up or Shut Up!
In 1990, 78 percent of Americans thought we needed stricter gun laws. Today, only 44 percent of Americans think so. What has caused this dramatic shift in public opinion?
It is not because more people now own guns. In 1990, 48 percent of Americans had guns in their homes. Today, 45 percent of Americans do.
It is not because gun deaths are no longer a problem. Since 1990, a quarter of a million Americans have been killed by guns.
Why, then, has there been so precipitous a decline in the percentage of Americans who support stricter guns laws?
The answer lies largely in the democratic process. Those who oppose stricter gun laws have organized, they have aggressively promoted their positions, and they have been extraordinarily effective in electing candidates who support their policies and defeating those who oppose them.
The nation's largest and most potent anti-gun control organization, the National Rifle Association, increased its annual revenues from 1990 to the present by approximately 400 percent. It now has an annual operating budget approaching $300 million and 4.3 million dues-paying members.
The largest and most potent pro-gun control organization, the Brady Center to Prevent Gun Violence, has an annual budget of approximately $6 million and fewer than 30,000 dues-paying members.
The National Rifle Association spent more than $10 million in the 2012 election. The Brady Center spent less than $10,000.
These numbers bear repeating: The NRA has 140 times more dues-paying members than the Brady Center and it spent 1,000 times more money than the Brady Center in the 2012 election.
Is it any wonder, then, that those who support stricter gun laws are losing? This is, after all, a democracy. Advocacy, debate and politics matter. As Justice Louis Brandeis observed more than 85 years ago: "Those who won our independence believed" that the best "protection against the dissemination of noxious doctrine" is freedom of speech, that "the greatest menace to freedom is an inert people," and that "public discussion is a political duty."
That is why the NRA is winning. Their members are not "inert." They oppose and oppose and oppose what they deem to be "noxious doctrine."
Of course, the NRA does get a ton of money from gun manufacturers and vendors (including those who manufacture assault weapons and high-capacity magazines), such as Arsenal, Beretta, Browing, Brownells, DPMS Panther Arms, Glock, Remington Arms, Smith & Wesson, Sturm, Ruger & Co, and Winchester.
But the majority of the NRA's funds still come from ordinary citizens -- from its 4.3 million members.
Those who want to see more rational gun laws in the United States have to do more than complain about the NRA. We have to ask ourselves: Do we care enough about this issue to DO something about it? If we don't, then we can be sure there will be millions more needless and heartbreaking funerals in the decades to come.
I joined the Brady Center last week. If you are one of the 44 percent of Americans who want more reasonable gun laws, then you must DO something to make that happen. That is, after all, what our democracy is all about.
As President Obama said last week, "if we're going to change things, it's going to take a wave of Americans" who are truly committed to making change happen. It is time for that to begin. Or, . . . you should learn to duck.
It is not because more people now own guns. In 1990, 48 percent of Americans had guns in their homes. Today, 45 percent of Americans do.
It is not because gun deaths are no longer a problem. Since 1990, a quarter of a million Americans have been killed by guns.
Why, then, has there been so precipitous a decline in the percentage of Americans who support stricter guns laws?
The answer lies largely in the democratic process. Those who oppose stricter gun laws have organized, they have aggressively promoted their positions, and they have been extraordinarily effective in electing candidates who support their policies and defeating those who oppose them.
The nation's largest and most potent anti-gun control organization, the National Rifle Association, increased its annual revenues from 1990 to the present by approximately 400 percent. It now has an annual operating budget approaching $300 million and 4.3 million dues-paying members.
The largest and most potent pro-gun control organization, the Brady Center to Prevent Gun Violence, has an annual budget of approximately $6 million and fewer than 30,000 dues-paying members.
The National Rifle Association spent more than $10 million in the 2012 election. The Brady Center spent less than $10,000.
These numbers bear repeating: The NRA has 140 times more dues-paying members than the Brady Center and it spent 1,000 times more money than the Brady Center in the 2012 election.
Is it any wonder, then, that those who support stricter gun laws are losing? This is, after all, a democracy. Advocacy, debate and politics matter. As Justice Louis Brandeis observed more than 85 years ago: "Those who won our independence believed" that the best "protection against the dissemination of noxious doctrine" is freedom of speech, that "the greatest menace to freedom is an inert people," and that "public discussion is a political duty."
That is why the NRA is winning. Their members are not "inert." They oppose and oppose and oppose what they deem to be "noxious doctrine."
Of course, the NRA does get a ton of money from gun manufacturers and vendors (including those who manufacture assault weapons and high-capacity magazines), such as Arsenal, Beretta, Browing, Brownells, DPMS Panther Arms, Glock, Remington Arms, Smith & Wesson, Sturm, Ruger & Co, and Winchester.
But the majority of the NRA's funds still come from ordinary citizens -- from its 4.3 million members.
Those who want to see more rational gun laws in the United States have to do more than complain about the NRA. We have to ask ourselves: Do we care enough about this issue to DO something about it? If we don't, then we can be sure there will be millions more needless and heartbreaking funerals in the decades to come.
I joined the Brady Center last week. If you are one of the 44 percent of Americans who want more reasonable gun laws, then you must DO something to make that happen. That is, after all, what our democracy is all about.
As President Obama said last week, "if we're going to change things, it's going to take a wave of Americans" who are truly committed to making change happen. It is time for that to begin. Or, . . . you should learn to duck.
January 3, 2013
The Illinois Senate, Same-Sex Marriage and the Catholic Church
Although the Illinois Senate's Executive Committee voted 8 to 5 today to support a bill to legalize same-sex marriage in Illinois, the Senate adjourned without voting on the measure. According to the Chicago Tribune, the Senate's failure to take a final vote came after a furious lobbying campaign by the Catholic Conference of Illinois and Cardinal Francis George.
In testifying against the measure, Springfield Catholic Bishop Thomas John Paprocki, echoing Cardinal George's earlier attack on the bill, insisted that the proposed law "would radically redefine what marriage is for everybody" by undermining the concept of the "natural family." "Neither two men nor two women," he declared, "can possibly form a marriage," and the "law would be wrong if it said that they could." The notion that marriage is between a man and a woman, Paprocki proclaimed, "is given to us in human nature, and thus by nature's God."
In a post on this site a few days ago I challenged the logic and morality of a similar argument by Cardinal George. See http://www.huffingtonpost.com/geoffrey-r-stone/cardinal-george-same-sex_b_2393892.html
What follows is an email exchange I had with a Mr. J.W. after that earlier post:
Professor,
Read you in Huffpo. This is an appeal to your intelligence and sense of legal justice.
Marriage is a vow between a man and a woman. It is a word that measures. As such, law recognizes this fact in nature. You can no more arbitrarily change the meaning of the word "marriage" than you can change the meaning of the word "inch." Such a change renders obsolete (destroys) all other measurements founded on the obvious principle of an inch. It destroys all boundaries written in law. . . .
If we can erase the meaning of "marriage," like a mere line in language, what line can we not erase? The boundary of age? Age is arbitrary! The boundary of freedom? No laws, no words can be counted on to differentiate between, criminal or lawyer, prison or mansion, closet or courtroom. . . .
When [people] pass judgment ("Catholics are bigots") on the Cardinal and his flock, they reveal themselves as LIARS. This is the only real term left for fools tinkering with the absolute fact of marriage.
J.W.
Dear Mr. W,
Thanks for taking the time to share your views. The problem is that you misunderstand the nature of law. Marriage -- at least in the debates over same-sex marriage -- is a legal concept. Various faiths can decide for themselves whether they want to recognize or not to recognize same-sex marriage. That is entirely up to them. But "marriage" as it is involved in the debate over same-sex marriage is a legal, not a religious, concept. It is defined, recognized and enforcement by the state.
Like any legal concept, "marriage" can evolve over time. Indeed, that is the very nature of law. As scientific, economic, social, political, cultural, moral and psychological understandings change over time, so too do legal concepts.
The "right to vote" was once defined as applicable only to propertied white men over the age of 21. Then it was redefined to include all white men over the age of 21. Then it was radically redefined in 1865 in the Thirteenth Amendment to include black men. Then it was radically redefined again in 1920 in the Nineteenth Amendment to include women. Then it was redefined yet again in 1971 to include all persons over the age of 18. The definition of the legal concepts evolve.
Indeed, this is true of almost every legal concept. The meaning of the word "search" in the Fourth Amendment, once defined as a physical intrusion into a physical space, was was redefined in 1968 after the world discovered wiretapping and parabolic microphones.
Similarly, the meaning of the Fourteenth Amendment's concept of "equal protection of the laws" changed profoundly when the Court held that "separate but equal" was not "equal" and that women could not constitutionally be prohibited from being lawyers.
Such familiar legal concepts as "insanity," "property," "liberty," "contract" and "speeding" have all evolved over time. Indeed, the meaning of "marriage" itself has changed. At one time, most states had anti-miscegenation laws that defined marriage as a contract between two people of the same race. And, of course, the legal age limits for marriage have also changed over time.
Anyway, you get the point. As much as you might want to cling to a particular, traditional definition of "marriage," that is simply not how the law operates. Tradition is useful, but it is never determinative. What matters is not what is traditional, but what is right.
All best.
Geof Stone
Professor,
Thank you for your conversation. So, lets skip the evolving legal concepts and turn to the fact that Catholics will again be barred from participation in legislation because of their faith, as you "cling" faithfully to the modern progressive legal concepts. It is a convenience to ignore that separation of Church and state runs both ways.
It seems like Catholics are headed to the same fate as Thomas More. As with Henry VIII, many heads will roll to accomplish the latest progressive legal interpretation of marriage.
Regards,
J.W.
Dear Mr. W,
It's fine for Catholics to participate fully in politics, but their arguments, as for all citizens, should not consist of trying to impose their religious beliefs on those who don't share them. If there are good policy reasons not to recognize same-sex marriage, then we should discuss them. But religious belief is not a policy argument.
And no "heads will roll." No Catholic priest will be required to perform a same-sex marriage, no Catholic will be compelled to enter into a same-sex marriage, and no Catholic will be prohibited from entering into an opposite-sex marriage. In fact, the issue of same-sex marriage has nothing to do with the rights of Catholics, except insofar as they want everyone else to live according to their own religious beliefs.
Geof Stone
Postscript: Not only did no Catholic heads roll today in the Illinois Senate, but Cardinal George, Bishop Paprocki and the Catholic Conference of Illinois once again "rolled" the will of the people of Illinois. But take heart, for this too shall pass.
In testifying against the measure, Springfield Catholic Bishop Thomas John Paprocki, echoing Cardinal George's earlier attack on the bill, insisted that the proposed law "would radically redefine what marriage is for everybody" by undermining the concept of the "natural family." "Neither two men nor two women," he declared, "can possibly form a marriage," and the "law would be wrong if it said that they could." The notion that marriage is between a man and a woman, Paprocki proclaimed, "is given to us in human nature, and thus by nature's God."
In a post on this site a few days ago I challenged the logic and morality of a similar argument by Cardinal George. See http://www.huffingtonpost.com/geoffrey-r-stone/cardinal-george-same-sex_b_2393892.html
What follows is an email exchange I had with a Mr. J.W. after that earlier post:
Professor,
Read you in Huffpo. This is an appeal to your intelligence and sense of legal justice.
Marriage is a vow between a man and a woman. It is a word that measures. As such, law recognizes this fact in nature. You can no more arbitrarily change the meaning of the word "marriage" than you can change the meaning of the word "inch." Such a change renders obsolete (destroys) all other measurements founded on the obvious principle of an inch. It destroys all boundaries written in law. . . .
If we can erase the meaning of "marriage," like a mere line in language, what line can we not erase? The boundary of age? Age is arbitrary! The boundary of freedom? No laws, no words can be counted on to differentiate between, criminal or lawyer, prison or mansion, closet or courtroom. . . .
When [people] pass judgment ("Catholics are bigots") on the Cardinal and his flock, they reveal themselves as LIARS. This is the only real term left for fools tinkering with the absolute fact of marriage.
J.W.
Dear Mr. W,
Thanks for taking the time to share your views. The problem is that you misunderstand the nature of law. Marriage -- at least in the debates over same-sex marriage -- is a legal concept. Various faiths can decide for themselves whether they want to recognize or not to recognize same-sex marriage. That is entirely up to them. But "marriage" as it is involved in the debate over same-sex marriage is a legal, not a religious, concept. It is defined, recognized and enforcement by the state.
Like any legal concept, "marriage" can evolve over time. Indeed, that is the very nature of law. As scientific, economic, social, political, cultural, moral and psychological understandings change over time, so too do legal concepts.
The "right to vote" was once defined as applicable only to propertied white men over the age of 21. Then it was redefined to include all white men over the age of 21. Then it was radically redefined in 1865 in the Thirteenth Amendment to include black men. Then it was radically redefined again in 1920 in the Nineteenth Amendment to include women. Then it was redefined yet again in 1971 to include all persons over the age of 18. The definition of the legal concepts evolve.
Indeed, this is true of almost every legal concept. The meaning of the word "search" in the Fourth Amendment, once defined as a physical intrusion into a physical space, was was redefined in 1968 after the world discovered wiretapping and parabolic microphones.
Similarly, the meaning of the Fourteenth Amendment's concept of "equal protection of the laws" changed profoundly when the Court held that "separate but equal" was not "equal" and that women could not constitutionally be prohibited from being lawyers.
Such familiar legal concepts as "insanity," "property," "liberty," "contract" and "speeding" have all evolved over time. Indeed, the meaning of "marriage" itself has changed. At one time, most states had anti-miscegenation laws that defined marriage as a contract between two people of the same race. And, of course, the legal age limits for marriage have also changed over time.
Anyway, you get the point. As much as you might want to cling to a particular, traditional definition of "marriage," that is simply not how the law operates. Tradition is useful, but it is never determinative. What matters is not what is traditional, but what is right.
All best.
Geof Stone
Professor,
Thank you for your conversation. So, lets skip the evolving legal concepts and turn to the fact that Catholics will again be barred from participation in legislation because of their faith, as you "cling" faithfully to the modern progressive legal concepts. It is a convenience to ignore that separation of Church and state runs both ways.
It seems like Catholics are headed to the same fate as Thomas More. As with Henry VIII, many heads will roll to accomplish the latest progressive legal interpretation of marriage.
Regards,
J.W.
Dear Mr. W,
It's fine for Catholics to participate fully in politics, but their arguments, as for all citizens, should not consist of trying to impose their religious beliefs on those who don't share them. If there are good policy reasons not to recognize same-sex marriage, then we should discuss them. But religious belief is not a policy argument.
And no "heads will roll." No Catholic priest will be required to perform a same-sex marriage, no Catholic will be compelled to enter into a same-sex marriage, and no Catholic will be prohibited from entering into an opposite-sex marriage. In fact, the issue of same-sex marriage has nothing to do with the rights of Catholics, except insofar as they want everyone else to live according to their own religious beliefs.
Geof Stone
Postscript: Not only did no Catholic heads roll today in the Illinois Senate, but Cardinal George, Bishop Paprocki and the Catholic Conference of Illinois once again "rolled" the will of the people of Illinois. But take heart, for this too shall pass.
January 1, 2013
Cardinal George, Same-Sex Marriage and the Law of Nature
With the Illinois legislature poised to consider a bill to legalize same-sex marriage, Chicago's Cardinal Francis George officially entered the political fray by issuing a letter that urges Catholics to urge their representatives to oppose the legislation. The core of George's argument was straightforward: "Civil laws that establish 'same-sex marriage' create a legal fiction," he wrote, because the "State has no power to create something that nature tells us is impossible."
Really? "Impossible"? Where, exactly, does "nature" tell us that? Does "nature" speak directly to Cardinal George? More likely, George got his information from Saint Thomas Aquinas, who communed with "nature" 750 years ago. In his prodigious Summa Theologica, Thomas largely rewrote much of Christian moral theology and provided a rationale in "nature" for the notion that same-sex sex is contemptible in the sight of God.
Thomas posited that God had instituted the order of nature by which everything was fittingly directed to its proper end; that God had created "natural" coitus for the sole purpose of procreation; that man should not contravene the order of nature; and that man therefore should not engage in any sexual act that is not directed to procreation.
Thomas defined luxuria as the sin of excess in sexual pleasures. There is no sin in sexual things as such, he explained, as long as they are undertaken for the proper purpose (reproduction) and in the proper manner (sexual intercourse in the missionary position).
Thomas divided luxuria into six separate acts: simple fornication, adultery, incest, deflowering a virgin, rape, and vice against nature. Although the first five are mortal sins, they are not as serious as the vice against nature, because they involve "natural" coitus (ejaculating into a vagina). Sins against nature are more serious, because they are an affront to God.
Thomas identified four sins against nature: (1) masturbation, (2) sex with a person of the opposite sex other than in the "natural" manner (i.e., with the man on top), (3) sex with someone of the same sex, and (4) bestiality.
Central to Thomas's classification system was the concept of "unnatural" acts. For Thomas, the key determinant was whether the act was intended to result in procreation. His definition of "natural" was premised on an assumption about the purpose of the genitals, and he inferred this purpose from the behavior of animals.
There are several interesting gaps in this reasoning. First, the declaration of purpose is arbitrary. There is no reason why the purpose of the genitals might not also be to give pleasure for pleasure's sake. It is not a mortal sin for a man to walk on his hands, even though that is not their "purpose."
Second, the definition of "natural" is strained. As Saint Jerome observed, sexual desire is "innate" in humans, and to remain chaste requires one to "act against nature." The term "natural," in other words, is plastic.
Third, Thomas's assumption about animal behavior was erroneous. Some animals masturbate, most do not use the missionary position, few are monogamous, and some, like the hyena, the hare, and the weasel, engage in same-sex behavior (facts that were well-known at the time).
Fourth, it is surprising that Thomas would declare animal behavior the model for human behavior, particularly because "unnatural" acts were condemned as brutish and animalistic. Moreover, in every other context Christian theologians, Thomas included, emphasized that man is not like the animals.
Finally, Thomas's scheme left unanswered some awkward questions. For example, may a woman who is past menopause have sex?
The plain and simple fact is that reasoning about what is "natural" is deeply vulnerable to distortion by one's own personal values and preferences. Cardinal George insists that same-sex marriage is incompatible with "nature." One might just as easily the same about celibacy. There is such a thing as right and wrong, but invocations of what "nature" commands is no way to get there.
If Cardinal George wants to invoke the law of "nature," then perhaps he should invoke Jesus: "Do unto others as you would have them do unto you." (Matthew 7:12; Luke 6:31). This precept, which is found in one form or another is virtually every religious and ethical tradition, is a pretty good law of "nature." Apply that one to the issue of same-sex marriage.
Really? "Impossible"? Where, exactly, does "nature" tell us that? Does "nature" speak directly to Cardinal George? More likely, George got his information from Saint Thomas Aquinas, who communed with "nature" 750 years ago. In his prodigious Summa Theologica, Thomas largely rewrote much of Christian moral theology and provided a rationale in "nature" for the notion that same-sex sex is contemptible in the sight of God.
Thomas posited that God had instituted the order of nature by which everything was fittingly directed to its proper end; that God had created "natural" coitus for the sole purpose of procreation; that man should not contravene the order of nature; and that man therefore should not engage in any sexual act that is not directed to procreation.
Thomas defined luxuria as the sin of excess in sexual pleasures. There is no sin in sexual things as such, he explained, as long as they are undertaken for the proper purpose (reproduction) and in the proper manner (sexual intercourse in the missionary position).
Thomas divided luxuria into six separate acts: simple fornication, adultery, incest, deflowering a virgin, rape, and vice against nature. Although the first five are mortal sins, they are not as serious as the vice against nature, because they involve "natural" coitus (ejaculating into a vagina). Sins against nature are more serious, because they are an affront to God.
Thomas identified four sins against nature: (1) masturbation, (2) sex with a person of the opposite sex other than in the "natural" manner (i.e., with the man on top), (3) sex with someone of the same sex, and (4) bestiality.
Central to Thomas's classification system was the concept of "unnatural" acts. For Thomas, the key determinant was whether the act was intended to result in procreation. His definition of "natural" was premised on an assumption about the purpose of the genitals, and he inferred this purpose from the behavior of animals.
There are several interesting gaps in this reasoning. First, the declaration of purpose is arbitrary. There is no reason why the purpose of the genitals might not also be to give pleasure for pleasure's sake. It is not a mortal sin for a man to walk on his hands, even though that is not their "purpose."
Second, the definition of "natural" is strained. As Saint Jerome observed, sexual desire is "innate" in humans, and to remain chaste requires one to "act against nature." The term "natural," in other words, is plastic.
Third, Thomas's assumption about animal behavior was erroneous. Some animals masturbate, most do not use the missionary position, few are monogamous, and some, like the hyena, the hare, and the weasel, engage in same-sex behavior (facts that were well-known at the time).
Fourth, it is surprising that Thomas would declare animal behavior the model for human behavior, particularly because "unnatural" acts were condemned as brutish and animalistic. Moreover, in every other context Christian theologians, Thomas included, emphasized that man is not like the animals.
Finally, Thomas's scheme left unanswered some awkward questions. For example, may a woman who is past menopause have sex?
The plain and simple fact is that reasoning about what is "natural" is deeply vulnerable to distortion by one's own personal values and preferences. Cardinal George insists that same-sex marriage is incompatible with "nature." One might just as easily the same about celibacy. There is such a thing as right and wrong, but invocations of what "nature" commands is no way to get there.
If Cardinal George wants to invoke the law of "nature," then perhaps he should invoke Jesus: "Do unto others as you would have them do unto you." (Matthew 7:12; Luke 6:31). This precept, which is found in one form or another is virtually every religious and ethical tradition, is a pretty good law of "nature." Apply that one to the issue of same-sex marriage.
December 19, 2012
Gun Crazy
Over the last 20 years, the percentage of Americans who think our laws regulating the sale and possession of firearms should be made stricter has declined from 78 percent to 43 percent.
Over the last 20 years, approximately 260,000 Americans have been murdered by firearms. The firearm homicide rate in the United States is 3.7 for every 100,000 people.
The average firearm homicide rate for Australia, Canada, England, France, Germany, Italy, Ireland, Japan, New Zealand and Spain is .22 per 100,000 people.
Thus, the firearm homicide rate in the United States is approximately 17 times higher than in our peer nations.
If the United States had had the same gun-related homicide rate as these other nations over the past twenty years, almost a quarter of a million Americans who were murdered by guns since 1992 might well have been spared that fate.
Economists estimate that the average life is "worth" appoximately $7 million. This means that America's firearm policy over the past twenty years has cost the nation approximately $1.75 trillion in lost lives. But who's counting?
Of course it may just be that Americans are 17 times crazier than Canadians, Germans, Italians, Australians, etc. Just ask the NRA. They'll tell you that's the explanation. And it is. But the crazies are those who support the NRA and who systematically distort the facts, ultimately contributing to the bloody deaths of thousands upon thousands of innocent men, women and children every year.
Tell me, really: Who are the crazy people?
But here's the rub: In 2010, the NRA and its affiliates spent approximately $275 million to prevent the regulation of firearms. The NRA's opponents -- organizations like the Brady Center to Prevent Gun Violence and Mayors Against Illegal Guns -- spent a combined total of less than $8 million in support of the regulation of firearms.
No wonder public opinion has shifted and no wonder politicians of all stripes are terrified to do the right thing. There is a solution. Americans like me who were horrified by the murders in Newtown and by the 10,000 needless murders that we can be sure will follow like clockwork in 2013, must actively support organizations that campaign and lobby for new gun laws. Otherwise, we are lost....
Over the last 20 years, approximately 260,000 Americans have been murdered by firearms. The firearm homicide rate in the United States is 3.7 for every 100,000 people.
The average firearm homicide rate for Australia, Canada, England, France, Germany, Italy, Ireland, Japan, New Zealand and Spain is .22 per 100,000 people.
Thus, the firearm homicide rate in the United States is approximately 17 times higher than in our peer nations.
If the United States had had the same gun-related homicide rate as these other nations over the past twenty years, almost a quarter of a million Americans who were murdered by guns since 1992 might well have been spared that fate.
Economists estimate that the average life is "worth" appoximately $7 million. This means that America's firearm policy over the past twenty years has cost the nation approximately $1.75 trillion in lost lives. But who's counting?
Of course it may just be that Americans are 17 times crazier than Canadians, Germans, Italians, Australians, etc. Just ask the NRA. They'll tell you that's the explanation. And it is. But the crazies are those who support the NRA and who systematically distort the facts, ultimately contributing to the bloody deaths of thousands upon thousands of innocent men, women and children every year.
Tell me, really: Who are the crazy people?
But here's the rub: In 2010, the NRA and its affiliates spent approximately $275 million to prevent the regulation of firearms. The NRA's opponents -- organizations like the Brady Center to Prevent Gun Violence and Mayors Against Illegal Guns -- spent a combined total of less than $8 million in support of the regulation of firearms.
No wonder public opinion has shifted and no wonder politicians of all stripes are terrified to do the right thing. There is a solution. Americans like me who were horrified by the murders in Newtown and by the 10,000 needless murders that we can be sure will follow like clockwork in 2013, must actively support organizations that campaign and lobby for new gun laws. Otherwise, we are lost....
December 14, 2012
Sexual Orientation Change Therapy and the First Amendment
Earlier this year, California enacted a law that defines as "unprofessional conduct" any effort of a "mental health provider" to engage in "sexual orientation change efforts with a patient under 18 years of age."
According to a report of a committee of the California Senate, sexual orientation change efforts (known as SOCE) include such practices as "electric shock or nausea inducing drugs administered simultaneously with the presentation of homoerotic stimuli" and "psychoanalytic therapy." The legislature found that such practices, when used in an effort to change a minor's sexual orientation, are both harmful to the patient and ineffective. It therefore prohibited their use.
Before the law took effect on January 1, 2013, several mental health providers who practice SOCE filed suit in federal court to enjoin the implementation of the new law on the ground that it violates their rights under First Amendment. In Welch v. Brown, federal district judge William Shubb, in a thoughtful opinion, agreed with the plaintiffs and held the law unconstitutional.
Although Judge Shubb's opinion was thoughtful, it was also, in my view, wrong on the law.
I should say at the outset that I come to this question as one who pretty consistently takes a strong pro-free speech stance. I am a member of the National Advisory Council of the American Civil Liberties Union, a past Chair of the Board of the American Constitution Society, and a fervent advocate of the view that the First Amendment protects offensive and disturbing speech, including the right of individuals to sell videos of dog-fights, spew hate speech, watch "obscene" movies, and advocate the overthrow of government. Why, then, do I think Judge Shubb was wrong in Welch v. Brown?
Suppose California prohibits mental health providers to apply leeches to treat depression or to use electric-shock treatment to cure teenage acne. If in these situations a mental health provider were to argue that the First Amendment protects her right to use the therapy she thinks best, we would see immediately that in these examples the First Amendment is simply irrelevant. This is so for the obvious reason that no speech is involved in the application of leeches or the use of electro-shock. The First Amendment is about "the freedom of speech." It is not about the freedom of a mental health provider to use her treatment of choice. Such regulations may or may not be good public policy, but they do not implicate the First Amendment. The same is true when electric-shock or nausea-inducing drugs are used to "treat" homosexuality.
In Welch, however, Judge Shubb correctly noted that at least some forms of SOCE involve speech. That is, some forms of SOCE involve talk therapy, in which the therapist speaks with the patient. Thus, he reasoned, even if the California law is constitutional as applied to other forms of SOCE, such as electric-shock and the use of nausea-inducing drugs, it is unconstitutional as applied to talk therapy because talk therapy is, after all, "speech."
But this is too literal an understanding of the constitutional guarantee of "the freedom of speech." Sometimes conduct is speech (think of burning a flag) and sometimes speech is not "speech," as strange as that sounds. In this instance, for example, the speech involved in talk therapy is, for all practical purposes, analogous to electric-shock therapy. It is a method of therapy, and it is the method, not the speech as such, that is being regulated. This is a common phenomenon. The state can regulate bribery, threats, conspiracy, and many other forms of "speech" because, in context, what is being regulated is not the speech as such, but the underlying course of conduct, of which the speech is but a part.
This line is not always easy to draw, but it is easy in Welch. What the state is regulating in the context of SOCE is not the speech of the therapist as such but the use of a method of therapy. Whether that method involves words or pills or electric shock is of no moment. The speech is incidental to the regulation of the method of therapy, and It is no more a regulation of speech for First Amendment purposes for the government to regulate talk therapy than it is for it to regulate drug or electric shock therapy.
California would raise a serious First Amendment question if it prohibited mental health providers from writing about the benefits of SOCE, or recommending that patients consider using SOCE in a state where it is legal, or advocating for repeal of the law because it unwisely interferes with sound methods of therapy. But the California law does none of those things. The challenged law may or may not be good public policy, but it does not violate the First Amendment.
According to a report of a committee of the California Senate, sexual orientation change efforts (known as SOCE) include such practices as "electric shock or nausea inducing drugs administered simultaneously with the presentation of homoerotic stimuli" and "psychoanalytic therapy." The legislature found that such practices, when used in an effort to change a minor's sexual orientation, are both harmful to the patient and ineffective. It therefore prohibited their use.
Before the law took effect on January 1, 2013, several mental health providers who practice SOCE filed suit in federal court to enjoin the implementation of the new law on the ground that it violates their rights under First Amendment. In Welch v. Brown, federal district judge William Shubb, in a thoughtful opinion, agreed with the plaintiffs and held the law unconstitutional.
Although Judge Shubb's opinion was thoughtful, it was also, in my view, wrong on the law.
I should say at the outset that I come to this question as one who pretty consistently takes a strong pro-free speech stance. I am a member of the National Advisory Council of the American Civil Liberties Union, a past Chair of the Board of the American Constitution Society, and a fervent advocate of the view that the First Amendment protects offensive and disturbing speech, including the right of individuals to sell videos of dog-fights, spew hate speech, watch "obscene" movies, and advocate the overthrow of government. Why, then, do I think Judge Shubb was wrong in Welch v. Brown?
Suppose California prohibits mental health providers to apply leeches to treat depression or to use electric-shock treatment to cure teenage acne. If in these situations a mental health provider were to argue that the First Amendment protects her right to use the therapy she thinks best, we would see immediately that in these examples the First Amendment is simply irrelevant. This is so for the obvious reason that no speech is involved in the application of leeches or the use of electro-shock. The First Amendment is about "the freedom of speech." It is not about the freedom of a mental health provider to use her treatment of choice. Such regulations may or may not be good public policy, but they do not implicate the First Amendment. The same is true when electric-shock or nausea-inducing drugs are used to "treat" homosexuality.
In Welch, however, Judge Shubb correctly noted that at least some forms of SOCE involve speech. That is, some forms of SOCE involve talk therapy, in which the therapist speaks with the patient. Thus, he reasoned, even if the California law is constitutional as applied to other forms of SOCE, such as electric-shock and the use of nausea-inducing drugs, it is unconstitutional as applied to talk therapy because talk therapy is, after all, "speech."
But this is too literal an understanding of the constitutional guarantee of "the freedom of speech." Sometimes conduct is speech (think of burning a flag) and sometimes speech is not "speech," as strange as that sounds. In this instance, for example, the speech involved in talk therapy is, for all practical purposes, analogous to electric-shock therapy. It is a method of therapy, and it is the method, not the speech as such, that is being regulated. This is a common phenomenon. The state can regulate bribery, threats, conspiracy, and many other forms of "speech" because, in context, what is being regulated is not the speech as such, but the underlying course of conduct, of which the speech is but a part.
This line is not always easy to draw, but it is easy in Welch. What the state is regulating in the context of SOCE is not the speech of the therapist as such but the use of a method of therapy. Whether that method involves words or pills or electric shock is of no moment. The speech is incidental to the regulation of the method of therapy, and It is no more a regulation of speech for First Amendment purposes for the government to regulate talk therapy than it is for it to regulate drug or electric shock therapy.
California would raise a serious First Amendment question if it prohibited mental health providers from writing about the benefits of SOCE, or recommending that patients consider using SOCE in a state where it is legal, or advocating for repeal of the law because it unwisely interferes with sound methods of therapy. But the California law does none of those things. The challenged law may or may not be good public policy, but it does not violate the First Amendment.
December 7, 2012
A Sure Way to Improve Criminal Justice: Record Confessions
In 2003, following an exposé of several questionable "confessions" obtained by Illinois police which resulted in murder convictions and in some cases death sentences for persons who were later exonerated, legislation was proposed in the Illinois legislature to require custodial interrogations in homicide investigations to be electronically recorded. Barack Obama, then a little-known member of the Illinois Senate, took the lead in negotiating with members of the law enforcement community who opposed electronic recording.
After lengthy give and take, Illinois enacted a law requiring that custodial interrogations of individuals suspected of murder must be recorded from beginning to end. This was the first law of its kind in this country. Now, ten years later, legislation and court rules provide for electronic recording of custodial interviews in Alaska, Arkansas, Connecticut, District of Columbia, Illinois, Indiana, Maine, Maryland, Minnesota, Missouri, Montana, Nebraska, New Jersey, New Mexico, North Carolina, Oregon, and Wisconsin. Other state legislatures and supreme courts are considering adopting similar laws. And exercising sound judgment, many police and sheriff departments throughout the nation now electronically record custodial interviews even when they are not legally required to do so.
The particular requirements vary somewhat from state to state. There are differences, for example, as to which suspected felonies trigger the recording requirement, what exigent circumstances can excuse non-recording, whether the recording must be audio or video, and whether a violation of the requirement mandates the presumed inadmissibility of the confession or merely a cautionary jury instruction. Although there may be one, uniform, ideal approach to these questions, there are also reasonable arguments to support the different approaches taken in various states.
After some hesitation and resistance, law enforcement's reception of these statewide recording mandates has become extremely positive. They recognize the many benefits of recording confessions: detectives are better able to concentrate on the interview rather than on note taking; there are no longer disputes about what was said and done during the interrogation; officers who might otherwise be tempted to play fast-and-loose with the rules are deterred from doing so; it is more difficult for interviewed suspects to bring trumped-up charges against police officers for alleged misconduct; and public confidence in the fairness of the criminal justice system is enhanced. All in all, this common sense reform has worked extraordinarily well.
Nonetheless, there are still some national, state and local law enforcement organizations that vehemently oppose statewide laws or court rules on electronic recording. Although they no longer dispute that recording is, in theory, a good idea, they nonetheless insist that each police and sheriff department in the nation should be free to adopt its own "best practices," which means that every local department could decide for itself whether or not to record, and if so when and how. Their reasons for opposing statewide rules are sketchy, at best. For example, they argue that "every locale is different" and that defense lawyers will use recordings to "get guilty criminals off." These are simply unwarranted objections.
As a practical matter, wholly localized rules would produce a hodgepodge of different requirements and procedures within a single state and a complete lack of statewide uniformity. The result would be dramatically unequal treatment for individuals who are brought in for questioning, for their rights would vary from one station house to the next based entirely on the fortuity of which department is undertaking the investigation. That is incompatible with elemental notions of fairness and sound law enforcement policy. And beyond that, such a melange of localized rules would produce no coherent mechanism to insure compliance. If the "rules" have no legally binding effect, then individual suspects would be left to the very discretion of investigating officers that a uniform, mandatory recording policy is meant to constrain.
In New York State, the Chief Judge of the New York Court of Appeals established a Task Force on Criminal Justice Reform made up of judges, prosecutors, police officials, defense lawyers, and academics. In recommending statewide legislation rather than optional "best practices" as determined by each local department, the Task Force determined that "electronic recording of interrogations was simply too critical to identifying false confessions and preventing wrongful convictions to recommend as a voluntary rather than mandatory reform."
This is a simple problem, with a simple solution. The use of electronic recordings has resulted in increased police professionalism, preclusion of testimonial disputes about what took place during closed-door interrogations, fewer motions to suppress confessions, more pleas of guilty, fewer false confessions, fewer wrongful prosecutions and unjust convictions, and substantial savings of time and money. The time has come for all law enforcement organizations to support mandatory state laws that require the use of electronic recording systems during custodial interviews. This is a simple, sensible and effective way to improve our nation's system of criminal justice.
This article was co-authored by Thomas Sullivan, a lawyer with Jenner & Block, Chicago (1954-77, 1981-present) and former United States Attorney for the Northern District of Illinois (1977-1981).
After lengthy give and take, Illinois enacted a law requiring that custodial interrogations of individuals suspected of murder must be recorded from beginning to end. This was the first law of its kind in this country. Now, ten years later, legislation and court rules provide for electronic recording of custodial interviews in Alaska, Arkansas, Connecticut, District of Columbia, Illinois, Indiana, Maine, Maryland, Minnesota, Missouri, Montana, Nebraska, New Jersey, New Mexico, North Carolina, Oregon, and Wisconsin. Other state legislatures and supreme courts are considering adopting similar laws. And exercising sound judgment, many police and sheriff departments throughout the nation now electronically record custodial interviews even when they are not legally required to do so.
The particular requirements vary somewhat from state to state. There are differences, for example, as to which suspected felonies trigger the recording requirement, what exigent circumstances can excuse non-recording, whether the recording must be audio or video, and whether a violation of the requirement mandates the presumed inadmissibility of the confession or merely a cautionary jury instruction. Although there may be one, uniform, ideal approach to these questions, there are also reasonable arguments to support the different approaches taken in various states.
After some hesitation and resistance, law enforcement's reception of these statewide recording mandates has become extremely positive. They recognize the many benefits of recording confessions: detectives are better able to concentrate on the interview rather than on note taking; there are no longer disputes about what was said and done during the interrogation; officers who might otherwise be tempted to play fast-and-loose with the rules are deterred from doing so; it is more difficult for interviewed suspects to bring trumped-up charges against police officers for alleged misconduct; and public confidence in the fairness of the criminal justice system is enhanced. All in all, this common sense reform has worked extraordinarily well.
Nonetheless, there are still some national, state and local law enforcement organizations that vehemently oppose statewide laws or court rules on electronic recording. Although they no longer dispute that recording is, in theory, a good idea, they nonetheless insist that each police and sheriff department in the nation should be free to adopt its own "best practices," which means that every local department could decide for itself whether or not to record, and if so when and how. Their reasons for opposing statewide rules are sketchy, at best. For example, they argue that "every locale is different" and that defense lawyers will use recordings to "get guilty criminals off." These are simply unwarranted objections.
As a practical matter, wholly localized rules would produce a hodgepodge of different requirements and procedures within a single state and a complete lack of statewide uniformity. The result would be dramatically unequal treatment for individuals who are brought in for questioning, for their rights would vary from one station house to the next based entirely on the fortuity of which department is undertaking the investigation. That is incompatible with elemental notions of fairness and sound law enforcement policy. And beyond that, such a melange of localized rules would produce no coherent mechanism to insure compliance. If the "rules" have no legally binding effect, then individual suspects would be left to the very discretion of investigating officers that a uniform, mandatory recording policy is meant to constrain.
In New York State, the Chief Judge of the New York Court of Appeals established a Task Force on Criminal Justice Reform made up of judges, prosecutors, police officials, defense lawyers, and academics. In recommending statewide legislation rather than optional "best practices" as determined by each local department, the Task Force determined that "electronic recording of interrogations was simply too critical to identifying false confessions and preventing wrongful convictions to recommend as a voluntary rather than mandatory reform."
This is a simple problem, with a simple solution. The use of electronic recordings has resulted in increased police professionalism, preclusion of testimonial disputes about what took place during closed-door interrogations, fewer motions to suppress confessions, more pleas of guilty, fewer false confessions, fewer wrongful prosecutions and unjust convictions, and substantial savings of time and money. The time has come for all law enforcement organizations to support mandatory state laws that require the use of electronic recording systems during custodial interviews. This is a simple, sensible and effective way to improve our nation's system of criminal justice.
This article was co-authored by Thomas Sullivan, a lawyer with Jenner & Block, Chicago (1954-77, 1981-present) and former United States Attorney for the Northern District of Illinois (1977-1981).
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