The “Citizens for Constitutional Freedom” Claim to Defend the Constitution. Here’s Why They’re Wrong.

Three days ago, a group of armed individuals took occupation of the United States Fish and Wildlife Service's Malheur National Wildlife Refuge, a federal building in remote Oregon. They did so on behalf of fellow ranchers who recently turned themselves in for setting fire to federal land. In both traditional and social media, a national debate has emerged as to how the government should address this situation, and whether those involved are protesters, occupiers, terrorists, insurgents, or a militia. While these are important discussions, at the heart of the matter is an invocation of the U.S. Constitution which has largely been overlooked.

Cliven Bundy, one of the individuals, has argued, “The United States Justice Department has NO jurisdiction or authority within the State of Oregon, County of Harney over this type of ranch management.  These lands are not under U.S. treaties or commerce, they are not article 4 territories, and Congress does not have unlimited power.” Thus, Bundy and the others view the federal government’s ownership of the land as unconstitutional. As such, they have now labeled themselves Citizens for Constitutional Freedom.

The relevant clause in Article IV of the Constitution that Bundy referenced reads, “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States…” Bundy proffered no further explanation as to why the refuge does not fall under this language. Regardless, the acquisition of control of federal land within states has long been settled in Supreme Court cases such as Hutchings v. Low, 82 US 77 (1872) (affirming the constitutionality of Yosemite National Park) and Alabama v. Texas, 347 US 272 (1954) (“The power over the public land thus entrusted to Congress is without limitations. And it is not for the courts to say how that trust shall be administered. That is for Congress to determine.”). Supreme Court decisions are law, which only can be overturned by later Supreme Court rulings or constitutional amendments, not by armed occupation.

As such, allow me to suggest an alternative label for the “Citizens for Constitutional Freedom”: criminals. Under 25 CFR 11.411 a person is liable for criminal trespass if he or she “knowing that he or she is not licensed or privileged to do so, he or she enters or surreptitiously remains in any building or occupied structure.” The refuge has now been closed, and they remain in the building. Further, they have the aggravating circumstance of possessing firearms within a federal building while committing a crime, as proscribed by 18 U.S.C. §930(b), which could land them up to five years in prison.

In the United States, processes and institutions exist for the redress of grievances. Government structures are of course not always well-functioning, and civil disobedience is a route other Americans have taken in order to initiate structural changes. However, civil disobedience does not come at the end of a gun barrel. It comes willing to accept the punishment and actions of the state as a means to show onlookers the injustice of the law. By being armed, and declaring a willingness “to kill and be killed”, these individuals present a threat to any federal authority who might arrive to lawfully remove the group from the premises.

Ensuring governmental authority remains limited is an important part of American citizenship, but the “Citizens for Constitutional Freedom” would gain more sympathy if they had a credible claim. They treat the Constitution as a legal code, expecting the document to anticipate all governmental actions in 4,543 words. However, John Marshall wrote in McCulloch v. Maryland 17 US 316 (1819) that a Constitution contains the “great outlines” of a legal system. So when we read the document looking for absolutist interpretations, “we must never forget that it is a Constitution we are expounding.”

The Constitution is not a static document, but comes to us through centuries of adjudication and interpretation. Ignoring the text and the path it has taken since 1787 renders one’s interpretation and analysis incomplete. Our political discourse would benefit greatly from more detailed and nuanced discussions around both the strengths and flaws of our foundational legal document. Committing armed trespass while making vague constitutional references injects no such detail or nuance, and only further obfuscates how the Constitution influences our interactions with each other and our government. 

Safe spaces and court cases: what protesters and professors get wrong on political correctness

The recent protests on college campuses, particularly at the University of Missouri–Columbia and Yale University, targeting insufficient actions to act against racism on the parts of respective administrations, has brought to the fore a complex and important set of questions for all Americans to consider. The rhetoric in both support of, and opposition to, the angered students has made straw men of the arguments on the other side. A more informed and nuanced discussion of the role of free expression in a community with rampant racial tensions could be a step toward understanding between the opposing viewpoints.

The actions at these universities across the country have poured forth stories of the disheartening experiences of black students, both past and present. After a string of high-profile murders of black men at the hands of police officers, the country again finds itself publicly acknowledging the racial tensions that have never truly gone away. However, the story many Americans have received over the past week seems to have been twisted, with those students claiming to be victims of racism being questioned, without similar discourse around those who have been accused of actually creating victims and furthering racial tension. As Virginia Pasley has argued, “Maybe we shouldn't worry so much about the students who ask that others consider their feelings and their histories, the ones who don't want to talk to reporters, the ones who would like people to stop wearing Native American headdresses or blackface to Halloween parties.”

However, the creation of safe spaces by protesting students at Mizzou and the outrage of Yale students toward an administrator’s view on racially insensitive Halloween costumes has put free expression and political correctness in the titles of critical commentaries. Shockingly few of these critics, of course, have acknowledged that students at Mizzou may have good reason to distrust the media and its discourse. Many Americans are uncomfortable with addressing race as such, and instead would rather drip of cowardice by denigrating political correctness; a heuristic for defending racial insensitivity. Indeed, these objections to safe spaces and political correctness often come from positions of privilege: those who have experienced no need for safety and for whom culture need not be corrected.

And so the type of political correctness found on the modern university campus is a public attempt toward empathy. Supporters view the wrongs of history as seeds which bring forth the perennial pain of inequality in American society. Political correctness is one step toward denying nourishment to those seeds, in hopes they will not bloom again. Without this empathic listening and a willingness to understand the realities of others, a person with privilege often cannot see their own advantages. Urging politically correct expression, then, is one way of encouraging and displaying an understanding of the lack of socioeconomic privilege that comes with race, gender, ability, sexual orientation, and other differences. It is a way of saying that society is at least trying to recognize hardships based on these immutable characteristics.

But these realities do not render the protesters infallible. Previously, political correctness dealt exclusively with social and private constraints: violators of these norms would be shunned, boycotted, named, and shamed. However, now those seeking to uphold a more socially just culture call for the imposition of legally or institutionally punitive measures on those who utter undesired expression. This is a fundamental shift.

American law is based on philosophical liberalism, which requires the accommodation of contrary views for consideration in the marketplace of ideas. While free expression is not absolute in the U.S., protections remain broad. When striking down a statute aimed at banning cross burning, the U.S. Supreme Court wrote in a 2003 case that the government can justifiably limit “those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals”. This “serious expression” of an intent to commit violence is a very specific standard for limiting expression. In 2011 the Court found the Westboro Baptist Church protected by the First Amendment when protesting a soldier’s funeral with outrageous signage. It held that the group had the right to address public issues on public property in a peaceful manner. The police can, at times, punish an expressive act for the potential results or context of that speech, but vanishingly rarely for the content thereof.

Is our legal tradition at odds with state-enforced political correctness? UCLA Law Professor Eugene Volokh seems to think so, objecting to the Mizzou university police’s request for the reporting of “hurtful” speech. University of Chicago Law Professor Geoffrey R. Stone would agree, arguing that no university should take positions on matters of substance. One Mizzou professor has accused the student protesters of having an “a la carte” approach to the First Amendment. So while supporters of these student protesters assert that free expression does not equal the freedom to bully, outraged detractors view their political correctness as a denial of legitimate political discourse, and some have gone to hyperbolically compare it to fascism.

The critics, however, have lost sight of their own context. Almost all people have a list of topics not worthy of public debate. Take miscegenation as an example: most modern-day Americans would be troubled by a university giving prominent speaking time to an individual wishing to convince others of its immorality. In classes, we would be troubled if our children were ‘taught the controversy’ that inter-racial marriage may or may not be morally defensible. We do not need to actively censor these ideas; a vast majority feel that society has resolved these issues and moved beyond these discussions. But this is generational; many Americans felt differently about miscegenation only three generations ago. Thus with present college students: what many of them find unworthy topics of serious public discourse (racially insensitive Halloween costumes, for example), older commentators find to be legitimate political issues about which reasonable people may disagree.

The modern challenge of racism is that few people are consciously or actively engaged in overt discriminatory practices which lead to evidenced subjugation of those who are not straight white males. One could sardonically note that blacks just so happen to be arrested, jailed, and killed at astronomical rates, for example. But even if racism is less legally identifiable, it is no less important to combat. Advocating for political correct expression sets the tone of acceptable discourse in society. However, involving the machinery of the state to compel socially responsible expression creates a conflict between social justice and individual liberty. Resolving that conflict in favor of social justice would require a wider re-cognition of the American legal system, which is largely based on individual liberty.

The institution of American law, of course, has been created, shaped, and maintained nearly exclusively by white males, many of whom view their job as simply calling balls and strikes. This is a problematic claim that one can and should hold inherently objective views, with no subjective reflection of one’s experiences. There rarely exists the recognition that a biased strike-zone renders the mere calling of balls and strikes an act of bias itself. Thus, yelling ‘First Amendment!’ at students of color when they demand safe spaces or institutional condemnation of racist expression comes across as tone deaf to the greater challenge of re-understanding what is fair for all in America. Many of the students making headlines have moved beyond the colorblind fallacy, understanding that race-blind policies entrench the structurally unequal status quo.

Yet here lies the nuance: while the First Amendment was in fact written entirely by white males, many of whom owned slaves, and has been almost exclusively interpreted and applied by white males, it is not inherently void. Rendering it so would be fallacious. It can be considered voidable, and the context of its creation should be understood when assessing it. Such an assessment should subject the First Amendment and the U.S. Constitution itself to debate on college campuses, full of vehement, caustic, and sometimes unpleasantly sharp criticisms. Students should be uninhibited, robust, and wide-open in their discussion of these documents, so that all races, genders, and experiences have a voice. Indeed, an inclusive discourse, where subjective experiences are expressed, where hot emotions clash with cold reason, would be most fitting for the First Amendment. Because that is all it asks for.

Assured Dysfunction: Egypt’s Parliamentary Constituencies Law

This post can also be found at the Atlantic Council.

Earlier this week Egyptian President Abdel Fattah al-Sisi approved a law to govern the upcoming parliamentary elections, presently scheduled to occur “before the end of March 2015.” The law creates an electoral system which is overly complex, marginalizes political parties, and allows for easy government manipulation. 

In accordance with Article 102 of the Egyptian Constitution, the law calls for the House of Representatives to include 567 members: 120 members chosen from closed party lists, 420 individuals elected by geographic districts, and 27 member appointed by the president. Each elected official will serve a 5-year term. 

Regarding the 120 seats chosen from closed party lists, Egypt will be divided into four large geographic regions. Each party will have a separate list with candidates from each region. The final 120 members must include at least 24 Christians, 21 females, 8 Egyptians living abroad, and 8 handicapped persons. Regarding the 420 individuals, they will be elected as independents from 237 electoral districts. Of those districts, 83 will elect a single representative, 123 will elect two, and 30 will elect three representatives. Presidential spokesperson Alaa Youssef stated that each elected member would “represent equal segments of the electorate.” 

PARLIAMENTARY ELECTIONS TIMELINE June 9: The Parliamentary Election Law is issued by then-interim President Adly Mansour. December 8: The Electoral Districts Committee sent the bill to the cabinet for approval of the proposed 231 electoral districts. December 10: Egypt’s cabinet approved the bill and sent it to the State Council. December 15: the State Council increased the number of independent constituencies to 237 and approved the law. December 16: The High Electoral Commission approved the law. December 22: President Abdel Fattah al-Sisi approved the law.

This electoral system, like others of Egypt’s past, is complicated. The presence of a parallel voting system, similar to that of the 2012 constitution, is not by itself overly complicated. It is used in countries such as Japan and the Philippines. But a parallel voting system which includes new electoral districts of variable district magnitudes (the number of representatives elected in a given district) and four regional party lists is a lot to digest for any political community, especially one which has seen several new constitutions and heads of state within the past four years. The political process, for voters and parties, of learning the incentives of new electoral structure will be gradual, and will be based more on experiences from previous elections than detailed analyses of the current law. 

The benefits of the system’s complication, however, are not sufficient. Regarding district magnitude, only 30 districts will elect three candidates and 80 will elect only one, with the majority electing just two. These variations in district magnitude could have different effects on strategic voting, how centrist or extreme the elected representatives are, and to what extent elected officials deviate from the desires of voters. While each elected official will represent about 131,000 voters, Egyptians in different electoral districts will be asked to vote and think in different ways. As such, Egyptian in districts which are physically much smaller in cities like Cairo and Alexandria will vote differently than Egyptians in physically larger districts in the desert and in Upper Egypt. Generally, the simultaneous use of a majoritarian system in parallel with a proportional system is motivated by the desire to mitigate the drawbacks of each. However, it is unclear if this goal is actually achieved in practice. 

The marginalization of the political influence of parties by restricting them from participating in the majoritarian contests could be one such goal. Only 120 of 567 members of the legislature are allowed to carry the banner of a party. Even if all 120 proportionally-allotted seats were won by a single party, no governing legislative majority would be possible in order to present a unified voice to challenge the political power of the presidency. This was likely a desired result of those who crafted the electoral law: parties are given far fewer seats than they were during the late-2011 through early-2012 legislative elections which were dominated by the Muslim Brotherhood. The past electoral strength of Muslim Brotherhood has likely turned the present government sour to political parties, thus leading to a conscious decision to marginalize their potential strength within electoral politics. Nonetheless, the Conference Party supports the law, and theWafd Party, the Reform and ‎Development Party, Egyptian Front, and Democratic Alliance will participate in the election, with many expressing criticism of the law. Both the Egyptian Social Democratic Party and al Dostour Party have opposed the law. 

A related, though distinct, decision which strengthens the present government’s hand is the prevalence of geographically-based representatives. Farid Zahran of the Egyptian Social Democratic Party expressed concern the government might gerrymander, engaging in the splintering and packing of opposition-heavy geographic areas. Zahran is right to be concerned: the drawing of electoral districts by a unitary, partisan body is the easiest way to manipulate the results of an election while maintaining the veil of legitimacy. Moreover, these elections are particularly important as the first parliamentary plebiscite under the 2014 constitution, as they will set the precedent of electoral behavior in all future elections. 

This law creates the need for both voters and parties to perform complex political calculus, nearly eliminates the ability for any party to form a legislative coalition, and gives the government an unchecked ability to draw electoral lines. In the context of a strong executive as both enshrined in the 2014 constitution and as seen in practice, this law assures that Egypt’s legislature will be too dysfunctional and manipulable to act as a legitimate check on executive power. 

Egypt’s New Terrorism Law

The original can be found at the Atlantic Council here.

Egyptian president Abdel Fattah al Sisi approved a new terrorism law earlier this month. While disturbing, the law is not surprising when viewed in the context of Egypt’s consistent rhetoric of its war against terror. With the Egyptian militant organization Ansar Bayt al-Maqdis recently pledging allegiance to the Islamic State of Iraq and al-Sham (ISIS), the threat is real. The recently passed law, however, comes at a high cost. 

First, the terrorism law is deeply flawed, as it is overly vague and allows legal culpability for constitutionally-protected actions. According to Article 1 of the new law, “a terrorist entity is any group which disrupts public order or threatens the safety, security or interests of society, or harms or frightens individuals or threatens their lives, freedoms, rights or security or harms national unity…” Here, any organization that the Egyptian government claims has ‘disrupted public order,’ ‘threatens the interests of society,’ ‘frightens individuals,’ or ‘harms national unity’ can be labeled a terrorist organization. In reality, any organization which publicly expresses displeasure with the social or political status quo in Egypt could foreseeably fall into one of these categories. 

The Cairo Institute for Human Rights Studies criticized the potential designation as a terrorist entity any group which calls “through any means to stop a specific law or overturn a court verdict,” noting that such wording could include peaceful political expression. Free expression is guaranteed in Article 65 of Egypt’s constitution. This law, however, empowers the government to label organizations which peacefully and constructively express political or social opposition as terrorists. In practice, this law could be used to silence, for example, organizations calling for protests against the verdict in which charges were dropped against ousted president Hosni Mubarak.

Second, the law gives the executive branch of the Egyptian government potentially damaging power over the rights of Egyptians with no or insufficient due process. The government first has the right to dissolve, freeze the assets of, and arrest the members of an organization designated as a terrorist entity in a manner discussed above. Under Article 74 of the Egyptian constitution, a political party can only be dissolved by a court judgment. The government can also create a listof terrorist entities (Article 2) and a list of national security threats (Article 5). In short, the executive branch, security forces, and the public prosecution are empowered to identify and eliminate terrorist organizations by ending the organizations’ activities and seizing their property. 

Missing from the bill is any judicial or legislative involvement, and no requirements of evidence are to be submitted to any independent reviewer. While groups areallowed to appeal decisions labelling them terrorist entities, the label itself allows wholesale removal of all political, property, and monetary rights, which would only be restored if the appeal were successful—a process which the law itself allows to take up to three years. Effectively, the Egyptian government can unilaterally remove all functional rights from any organization without having to present any evidence of its claims for three years, potentially violating constitutional Article 54’s due process requirements for restricting rights and freedoms.

When considering the political context of this law, is important to remember that Egypt does face legitimate terrorism threats, primarily but not exclusively in Sinai. Ansar Bayt al-Maqdis has been a thorn in the side of every Egyptian government since 2011 and shows no sign of stopping. The Egyptian people have legitimate fears of violence which any government would have to address. 

However, laws which combat terrorism but still allow for free political expression exist both within Egypt and around the world. Article 237 of Egypt’s constitution, for example, allows the government to combat terrorism, but cannot logically be inferred to violate the free expression guarantees of the same document while maintaining consistency. The removal of all rights from peaceful and lawful organizations will not defeat Ansar Bayt al-Maqdis, and the Muslim Brotherhood has already been prevented from functioning, had its assets frozen, and has been declared a terrorist organization. The terrorist entities law is yet another example of legislation passed by the Egyptian authorities which aim to restrict public space. It joins the so-called NGO law, which has given the Egyptian state regulatory authority over NGO funding and activity, and a restrictive protest law requiring that the ministry of interior receive prior notification of all demonstrations.

In the context of these previous legal actions, the goal of Egypt’s new terrorism law appears to be to suffocate the country’s civil society by granting the government the ability to eliminate any group it sees fit without providing evidence or reasoning. The ambiguous wording also affords it the opportunity to silence critics, activists, and journalists. This will chill any attempts to present alternatives to the political or social status quo, which is a key function of civil society and a free media in a liberal democratic society. 

Explaining America: #BlackLivesMatter and CIA Torture

One of the hats I wear is a teacher of English as a new language, mostly to new Americans. They all came here for a reason—for a better shot at happiness—and as such generally have a personal stake in the American Dream not only being a reality, but having room for them and their children, as well.

In order to present a full picture of the United States, however, I try to allow the students to draw their own conclusions from the country’s past: our relations with Native Americans, our Founding, our reactions to the various waves of immigrants, the history of slavery and its role in our governmental development, and the Women’s Rights, Civil Rights, and Gay Rights movements. The 2000 presidential election, for example, is a great lesson on our respect for governance institutions. I try to highlight the pressures and interests which explain what seems bad about American history and note the asterisks which often follow what seems good about American history.

In previous months, I have been asked questions which lead to teachable moments. An individual burning a Quran in Florida leads to a wonderful discussion of free speech and the path of 1^st Amendment litigation during the 20^th Century and where it stands today. A discussion on curbing climate change leads to a mention of the Kyoto Protocol, and therefore a lesson on the concept of dualism in international law. The controversies surrounding the Affordable Care Act can lead to an important lesson on federalism.

This past month has been different. Sure, the grand jury verdict regarding the death of Michael Brown led to a discussion about evidence and the presumption of innocence, but the verdict following the death of Eric Garner made the previous lesson feel hollow. Of course the CIA Torture Report can bring to the fore the separation of powers, but the existence of such programs which are so obviously “contrary to our values” is difficult to present in a non-judgmental way.

I love my country. I view America as a good literary protagonist: she has a complex past and she does make mistakes, but she’s affable and fundamentally good. These terrible news stories, however, have made explaining America more difficult and more troubling. Are Jim Crow and Korematsu really just skeletons in America’s closet, or are they examples of her deep flaws which she refuses to address? December 2014 suggests the latter.

The beauty and frustration of a federal republic is that no single institution can address these flaws alone. But America’s story is not over: We The People must actively engage in all levels of governance in order to write the chapter that we wish to read. Looking forward to 2015, I hope we write for America a better future, so when it eventually becomes the past itself, the job of explaining America will be an easy one.