Onward And Upward

Happy new year to all from Think Defense, and we’ll be back next week. Here’s to a happy, healthy 2017. May the new year be full of the moments that matter to you.

A Big Anniversary for the Bill of Rights

Thursday will mark 225 years to the day.

On December 15, 1791, the Commonwealth of Virginia became the eleventh state to ratify the first ten amendments to the U.S. Constitution. That meant that three-fourths of state legislatures had approved them, which meant the Bill of Rights was born.

To commemorate the occasion, here’s a great essay about one of its architects, James Madison. It talks about how Madison opposed a bill of rights at first because he feared that it would limit people’s essential rights to just those listed. He thought a list wasn’t necessary in a new system in which the people were sovereign and the government derived its power from their consent. He also believed that the real buffer against a tyranny of the majority lay in the Constitution’s structural checks and balances: federalism, bicameralism, and the separation of powers. Eventually, though, Madison came around, and at the first Congress of the United States, he introduced the amendments that became the Bill of Rights.

The ten amendments enshrine many of our most important rights and freedoms. They declare that, in America, you’re meant to be free in the following ways, among others.

  • You’re free to say, think, and believe what you want to say, think, or believe.
  • You’re free to print, publish, and broadcast information even if the government opposes it.
  • You’re free to associate with others, band together peaceably, and petition the government to redress your grievances.
  • The government can’t take your life, liberty, or property if it doesn’t follow fair and objective rules.
  • It can’t search or seize you, your home, or your property unreasonably or without following the rules.
  • It can’t take your property and put it to public use without paying you fairly for it.
  • It can’t punish you without telling you why and giving you a meaningful chance to defend yourself.
  • It can’t punish you excessively or inhumanely, no matter what.

For the full text of the U.S. Bill of Rights, see here. 

 

 

 

Our Great Living Poet

Bob Dylan won the Nobel Prize for Literature on Thursday, and it was nice to see the news. You may not know it depending on your walk of life, but Dylan is one of the great American poets of the past hundred years, and he’s had a lot to say about law and justice, too. He’s apparently the first songwriter to win the award, but that just means he writes poems and translates them into song and music. He reportedly hasn’t responded to the news yet, but it doesn’t matter. The honor is already his.

In tribute, below are the lyrics to one of my favorites. It’s not about law or justice, but it’s pure poetry written almost entirely in one- or two-syllable words. I’ve been singing a few lines from it to my son as a lullaby, and I hope you enjoy it, too, again or anew.

Hey, Mr. Tambourine Man, play a song for me
I’m not sleepy, and there is no place I’m going to
Hey, Mr. Tambourine Man, play a song for me
In the jingle jangle morning I’ll come followin’ you

Though I know that evenin’s empire has returned into sand
Vanished from my hand
Left me blindly here to stand but still not sleeping
My weariness amazes me, I’m branded on my feet
I have no one to meet
And the ancient empty street’s too dead for dreaming

Hey, Mr. Tambourine Man, play a song for me
I’m not sleepy, and there is no place I’m going to
Hey, Mr. Tambourine Man, play a song for me
In the jingle jangle morning I’ll come followin’ you

Take me on a trip upon your magic, swirlin’ ship
My senses have been stripped, my hands can’t feel to grip
My toes too numb to step
Wait only for my boot heels to be wanderin’
I’m ready to go anywhere, I’m ready for to fade
Into my own parade, cast your dancing spell my way
I promise to go under it

Hey, Mr. Tambourine Man, play a song for me
I’m not sleepy, and there is no place I’m going to
Hey, Mr. Tambourine Man, play a song for me
In the jingle jangle morning I’ll come followin’ you

Though you might hear laughin’, spinnin’, swingin’ madly across the sun
It’s not aimed at anyone, it’s just escapin’ on the run
And but for the sky there are no fences facin’
And if you hear vague traces of skippin’ reels of rhyme
To your tambourine in time, it’s just a ragged clown behind
I wouldn’t pay it any mind
It’s just a shadow you’re seein’ that he’s chasing

Hey, Mr. Tambourine Man, play a song for me
I’m not sleepy, and there is no place I’m going to
Hey, Mr. Tambourine Man, play a song for me
In the jingle jangle morning I’ll come followin’ you

Then take me disappearin’ through the smoke rings of my mind
Down the foggy ruins of time, far past the frozen leaves
The haunted, frightened trees, out to the windy beach
Far from the twisted reach of crazy sorrow
Yes, to dance beneath the diamond sky with one hand waving free
Silhouetted by the sea, circled by the circus sands
With all memory and fate driven deep beneath the waves
Let me forget about today until tomorrow

Hey, Mr. Tambourine Man, play a song for me
I’m not sleepy, and there is no place I’m going to
Hey, Mr. Tambourine Man, play a song for me
In the jingle jangle morning I’ll come followin’ you

The Circle of Life

Earlier this month, the California Court of Appeal published an interesting DUI case that we may talk about next week.

This week, I want to talk about something else.

My wife and I welcomed a baby boy into the world on Saturday. He’s our first. He spent his first three days in the Neonatal Intensive Care Unit, where he gave us a couple good scares. But he’s emerged with a clean bill of health, and we got to take him home last night.

What does this have to do with law and justice?

Only that, like most parents, I feel the weight of responsibility for his new life, and I’m more acutely aware than ever that my generation—or rather, our generations—are responsible for what becomes of this world.

We’re responsible for what becomes of us as a people and planet, and there’s no silver bullet. No magic potion. No easy fix. Anyone who tells you different is lying to you.

As man’s relationship to government evolves in this century, it’s up to us to be the adults in the room. It’s up to us to defend our common rights, freedoms, and dignity. It’s up to us to create and preserve a world in which our children can be safe, healthy, and happy.

With that, may God bless the United States of America, and may God bless my little boy every day of his life.

Patient Privacy Gives Way for Good Cause

If you’re a doctor in California, here’s a healthy reminder that the Medical Board can subpoena your patients’ records for good cause, over their objection and yours.

In a recent decision, the California Court of Appeal upheld an order that compelled a doctor to produce three of his patients’ records even though all three didn’t want them released.

It all started when the Board got a complaint from a private investigator that the doctor, an ophthalmic plastic surgeon, was billing for services he didn’t render, misrepresenting some of the services he did render, and falsifying documents.

The Board began to investigate the complaint, and later, it issued subpoenas for the three patients’ records on the ground that the doctor had departed from the standard of care in their treatment. Two of the patients wrote to the doctor to say they didn’t want their records produced and were happy with their quality of care. The third wrote that he hadn’t received notice of any subpoena, but he didn’t want his records produced, either.

The doctor moved to quash the subpoenas, and the Board opposed it and moved to compel his compliance.

The trial court sided with the Board but limited the subpoenas to a three-year range. It doesn’t appear that the patients pursued their objections in court.

On appeal, the court upheld the order, and in the process, it surveyed the case law on what constitutes good cause for breaching the privacy rights of patients.

In three prior cases, the courts had found no good cause. In one, the evidence consisted of a declaration from the Board’s investigator that supplied no facts, only a conclusion that the records “may offer evidence to substantiate” an allegation of gross negligence. In another, the Board supplied experts who suggested, based on their review of pharmacy records, that two doctors were overprescribing, but they didn’t explain why, and the doctors submitted competent evidence to rebut them.

In the most recent case, however, the court found good cause for the subpoena because of specific billing irregularities and other evidence that a doctor was overprescribing. He’d prescribe large amounts of an amphetamine to one patient. He’d prescribe to the same patients at two different pharmacies on the same day. He’d prescribe the same drugs to multiple family members and refill their prescriptions before the due date.

In this case, too, the court held that substantial evidence supported the trial court’s finding of good cause because the investigator’s partial records revealed serious problems with the claims paperwork, which the Board’s expert reviewed. In some instances, the doctor’s paperwork didn’t support the services he billed for. In others, there was no documentation at all. In some, there were no signatures; in others, no dates of service; and his reports used canned, cut-and-paste language. So the court affirmed the order.

They Risked Their Lives, Fortunes, and Honor, But the Rest is Up to Us

This Fourth of July weekend, there is new scholarship that suggests that the official transcription of the Declaration of Independence may bear a meaningful typographical error that does not appear on the original parchment or on other, early versions of the document.

The potential error relates to the punctuation we call a period, and it appears as follows in that revered first sentence of the second paragraph (in brackets):

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness[.]—That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed….”

The potential error raises the question of whether the list of self-evident truths ends with the rights to life, liberty, and the pursuit of happiness or whether it goes on to include the observations that follow.

For my part, I think the parallel structure of those first few lines—that, that, that—settles the question, but in the end, it may not matter. The truth is that the Declaration was a touchstone statement of a revolutionary political theory—democracy—that transferred power from kings, nobles, and clergy to common men and women. Whether it’s self-evident or not, the American charter declared that government was, in some real sense, the exception not the rule; that it was the product of a social contract entered into by free people; and that it was empowered by their consent. These tenets were groundbreaking, and even at the dawn of the 19th century, they were far from obvious to the rest of the world; just ask France. Whether self-evident or not, moreover, they are not self-executing, so they rely on each generation to honor and preserve them.

For the full text of the official transcription from the website of the National Archives and Records Administration, see here. For a wonderful oral reading of the Declaration by 45 visitors to the National Mall in Washington, D.C., go here. For a look at other momentous events that have occurred on July 4, see here. They include July 4, 1826, when both John Adams and Thomas Jefferson passed away fifty years to the day of the Declaration’s adoption.

 

 

“I Worked on the Drone Program. The Public Should Know What Really Goes On.”

In a detour from criminal-justice issues at home, here’s a voice worth listening to about an issue that will soon affect us at home and abroad. In fact, the use of “unmanned aerial vehicles,” or drones, already affects us abroad because we use them abroad (of course), and it affects us now in the way people around the world perceive American power, whether we know it or not. That’s what this essay is about, but the proliferation of drones at home—and a looming future in which they fill our domestic skies—is something worth talking about too.

I don’t presume to have the answers, and I don’t substitute my judgment for that of the people who defend us. The world can be a dangerous place, and we’re not wrong in principle to use superior technology to protect us when it’s available. Above all, to be sure, we will protect this house. But as we wage war overseas, we should give ear to all voices that care about our national interest, especially when it belongs to a former UAV analyst who knows of what she speaks. We may also consider that most advances in human progress, like democracy, have moved us in the direction of more peace, not less, and that, ultimately, the only war we can win in the end—and the only one worth winning—is the one of superior ideas and values, not superior force.

On Loan From the British Museum, the Cyrus Cylinder Comes to the United States

This is really a terrific piece of history. As you may know, around 2600 years ago, Cyrus II of Persia created the largest empire the world had ever known, and yet, he left a legacy of tolerance and benevolence that endures to this day. That legacy is embodied in the Cyrus Cylinder, which is one of the great artifacts from the ancient world. Now, on loan from the British Museum, the Cylinder is concluding its highly-acclaimed, first-ever tour of the United States at the Getty Villa in Los Angeles from October 2 through December 2. For more information, check out this brief but engaging video.

The Constitution Needs Us, And Our Kids, And Our Grandkids, And Their Kids

The Constitution needs our help to remain strong and supreme. Yes you, and me too. It was the first constitution of its kind: a culmination of centuries of advancements in political thinking and theory, and it changed the world. It is the moral beacon of America against which no ally or enemy can rail, and it continues to inspire billions around the world as a model for the governance of free people. But our ability to uphold and defend it depends on whether we understand it, and whether we ensure each generation does, too. Here are some thoughts about that in light of Constitution Day, which was Tuesday.

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