Constitutional Confusion (an unfiltered opinion)

This year, New York voters will decide on an automatic ballot measure asking whether a convention should be held "to revise the state constitution and amend the same." The question, provided for by Section 2 of Article XIX of the constitution, provides for this referendum every twenty years. The last convention called by this measure took place in 1938, yielding a variety of reforms. In 1965, although the ballot question was not up for automatic offering, public outcry for constitutional reforms spurred the state legislature to place the same on that year's ballot. The subsequent convention, held in 1967, represents the last time a state constitutional convention has been held (though the proposed changes were rejected by voter referendum).

I had hoped to draft this article merely to provide information without revealing my personal views on the subject. However, my opinion is itself influenced by considerations from both sides, which I hope will help others make an informed decision, whatever that may be.

I describe my position as a "soft 'yes'". As a student of law, policy, and regulation, it excites me that we have an opportunity to participate more directly in our democracy by electing delegates to convene and discuss possible changes to our state's governing document. And yet, for months now ago, the campaign for a "No" vote has enjoyed a strong public presence on social media and car magnets.

What bothers me about the "No" campaign is its use of misinformation and fear-mongering. For example:

• A circulating Facebook post propagated an unsubstantiated rumor that questions left blank would be counted as a "Yes" vote. This. Is. Not. True. First of all, the constitutional provision states that a convention be called "in case a majority of the electors voting thereon shall decide in favor of a convention". That is to say that a majority of voters must affirmatively vote yes to effect a convention. Furthermore, in no election in our democracy would a blank ballot count as a vote in favor of anything. 
• A lot of materials throw around $350 million as the cost of a convention. However, this has been debunked as resulting from an error which inflated the cost of the 1967 twice over. The true cost is thought to be more like $47 million; not peanuts, for sure, but an infinitesimally small percentage (0.02%) of the state's $163 billion budget for fiscal year 2018. 
• Public employee unions have placed an undue focus on pensions. This is not without some basis in reality; research has revealed that a majority of New Yorkers favor a shift away from the current level of government (i.e. taxpayer) support for certain pension reforms. 
• As the above-linked pension-issue article explains, unions’ opposition to the convention "has been grossly misleading. As with any politically sophisticated special interest group pursuing an unpopular agenda, the unions have tried to exercise their influence in the shadows while framing their opposition in terms of popular causes and groups." It's ironic that the "No" campaign assails an amorphous cohort of "special interests" as an invisible hand with nefarious influence over a potential convention. First of all, "special interest" is defined as "a group of people or an organization seeking or receiving special advantages, typically through political lobbying." Hence, the union-backed "No" effort is itself a "special interest". Further, if the objection is financial, the "No" campaign has spent just as much - if not more - on its efforts surrounding the convention question. Some uncertainty exists because the "No" campaign derives support from groups who are not required to report such expenditures to the state Board of Elections.  Thus, the accusation of devious political activities by the pro-convention side rings incredibly hollow. 
• Similarly, certain "No" campaign materials gloss over the details of the referendum procedure to depict a possible convention as a sketchy backroom reimagining of the constitution by which "they" completely screw "us" over. Think about this, though: I've seen A LOT of "No" bumper stickers. If, somehow, a strong "Yes" vote comes out of the woodwork and a convention is called, opponents will clearly have a strong and unified voice with which to elect delegates and oppose any proposed amendments harmful to their interests. Indeed, people seem to ignore the fact that any proposed amendments will be voted on as ballot referenda on Election Day 2019. A simple diagram illustrates the process:

Despite the availability of neutral materials explaining the convention procedure, the oversaturation of fear-mongering antagonistic literature has left a wake of distrust and confusion amongst the public. Some opponents have expressed trepidation about the delegates who'll convene in Albany in 2019. "I don't know anything about the delegates! And they could potentially strip us of our rights!" This uncertainty is a necessary part of our reality, since candidates won't register and begin campaigns unless and until a majority of New Yorkers vote "Yes". Other skeptics understand this dilemma, but lament that the candidates for convention delegate will emerge from the same party-run machines that have yielded our current situation as one of the most corrupt, divisive, and ineffectively governed states in the country.

The refrain of "same flawed process, different mechanism" rings true, to a degree. Nonetheless, how can we expect things to change if we don't take advantage of different opportunities for change? Holding a convention would afford us an opportunity to fix a number of problems in our state, including:

• reforms to streamline the court system, eliminating inefficiencies that are estimated to cost the state $502 million per year; 
• enumerate rights not currently in the state constitution despite their guarantee by the federal Supreme Court; 
• remove constitutional provisions that are redundant or unnecessary; and
• enact voting reforms, such as allowing for same-day registration and other measures to increase voter participation. 

The whole enterprise involves a certain leap of faith: faith that if we vote to hold a convention, we will elect competent delegates who draft proposed amendments in the public interest. Then, if all else fails, the popular vote will prevent any nefarious proposals from being enacted. Because of this failsafe mechanism, I think the convention is a chance worth taking. People are very quick to criticize our state's elected leaders and the corruption that seems to pervade all levels of government. It's sad that a collective cynicism threatens to quash a once-in-a-generation opportunity to participate in government in a different way.

I'll concede, of course, that it would be wasteful if a convention took place, only to yield no viable amendments and therefore no tangible progress. This is why I'm a "soft 'yes'" ...instead of a "raging-liberal constitutional opportunist 'Yes'". As laid out about, the likely cost of the convention sounds like a lot of money, though it pales in comparison to our state's overall spending. Further, spread across our entire population, it translates to a handful of dollars per person. At the very most, we'd be out a few bucks. Without taking the leap, however, we lose the chance to reform our government in ways that can pay for themselves several times over.

Based on the sheer presence of the "No" campaign, I'm not holding my breath that a convention will be held. If it is, though, you can be sure to find further coverage of the process here.

Gun Chaos

It's been over two weeks since the mass shooting at the Route 91 music festival in Las Vegas, which killed 58 people and injured nearly 500 others. 

In the interim, you've probably seen and heard all the related banter: calls for restricting firearm access for the mentally ill, proposed bans on accessories that can be used to make guns fire more rapidly, lamentations that gun control laws couldn't have prevented this sort of incident anyway, assertions that the way to make people safer is more widespread firearm dispersion, etc. You've likely come across the staggering fact that more people have been killed by guns in the United States since 1968 than have died in all wars, combined. You've seen Second Amendment advocates lament that these sorts of incidents are simply "the price of freedom", amidst frightening statistics that there have already been around 275 mass shootings this year. Parents' forums have bubbled with fears of the next school shooting.   

Mass shootings demonstrate the extensive lethal capabilities of firearms, naturally placing the spotlight on the extremely divisive national debate over gun control. When it comes to policies and regulations, though, they "are a bad way to understand gun violence." 

Most everyday incidents of firearm-related death and injury differ significantly from tragedies such as the recent one in Vegas. Many gun-related deaths occur in connection with domestic violence incidents, with an average of 50 women per month killed by romantic partners. The presence of a gun in a domestic altercation makes it five times more likely that the woman will be killed. Others firearm fatalities occur in inner-city communities, with black men statistically fourteen times more likely to be shot and killed than white men. Around 62 percent of all firearm deaths are suicides. 

On an average day, 93 Americans are killed with guns. This number exceeds the amount of fatalities in certain so-called mass shootings, but because the deaths occur under various circumstances, dispersed around the country, they don't garner the same immediate attention and outpouring of sympathy and outrage. With any policy issue, it's unproductive to focus only on the most significant, horrific, and sensationalistic national events and shouting about one particular solution. As reported on fivethirtyeight.com:

If we focus on mass shootings as a means of understanding how to reduce the number of people killed by guns in this country, we’re likely to implement laws that don’t do what we want them to do — and miss opportunities to make changes that really work. Gun violence isn’t one problem, it’s many. And it probably won’t have a single solution, either.

The response to this tragedy has been mixed. Some have opined that there is no solution, at all - the Second Amendment guarantees the right to own guns and thus can't be infringed upon, period. A few, including U.S. House of Representatives Speaker Paul Ryan, asserted that better health care for mental illness could prevent mass shootings. Other advocates acquiesced that background checks and other regulations are necessary to restrict gun ownership to people who will use them responsibly. Gun control cynics pointed out that background checks won't necessarily prevent criminals from obtaining dangerous weapons. Some have made the distinction between rifles or sport-shooting guns and more deadly semi-automatic weapons. 

Despite this range of opinions, today's climate of clickbait news headlines and viral social media memes has portrayed the issue as falling on a typical "us-vs.-them," "conservative-vs.-liberal," "pro-vs.-anti-" divide. The implication is that one must pick a side - you're either pro-gun, or anti-gun, and that's it. This sort of environment makes it easy for individuals to misunderstand the positions of others. People miss the nuance of the debate, assuming that anyone who disagrees even slightly must have a view diametrically opposed to their own. 

Viewing the Second Amendment as absolute ignores the fact that all of our rights are subject to oversight for safety purposes. No one would seriously assert that the regulation of driver's licenses and automobile ownership unconstitutionally limits our freedom; we accept as reasonable that operating a car is a complicated and potentially dangerous activity that should be undertaken only by those with proper training - not to mention insurance. In fact, some have suggested that we should regulate guns in the same manner we do cars. (I know, I know, there's an obvious distinction insofar as there's no line item in the Bill of Rights about vehicles; aside from the fact that there couldn't have been one since automobiles didn't exist in the 18th century.) 

Another line of discussion has emerged about consumer areas more regulated than firearms - cold medicine, wireless phone contracts, puppies, and hunting. An important note here is that these are regulations on industry players - not on the consumers they serve. Part of our social contract as a democratic nation is that the government places restrictions on entire industries, limiting what products might be sold and to whom. Where there are safety, security, or even practical concerns, the state might require licensing and registrations to ensure compliance with  goals. So a better analogy than the car industry may involve the First Amendment: we each enjoy "freedom of speech," but no one expects to take the Time Warner Center elevator up to the CNN studios for unfettered access to an on-air microphone that broadcasts their opinions globally. 

While the outcry in favor of gun ownership usually centers on the individual right to bear arms, most observers agree that it's driven by the gun industry itself. Statistically, it's estimated that 37% of Americans own a firearm. Though gun owners comprise much less than a majority of the population, the National Rifle Association (NRA) has mobilized them as a vocal political presence closely allied with the Republican party. Their lobbying has eliminated manufacturer liability for gun fatalities, spurned the passage of state laws allowing firearms in public places, and exacerbated the cultural importance of guns as a states' rights issue. 

Another statistical approximation is that there are around 300 million guns in the United States. Speaking during a live episode of Pod Save America, University of Chicago Crime Lab director Jens Ludwig asserted that most such weapons are owned by otherwise law-abiding citizens who keep them in a basement or garage and don't actually put them to sue. He asked the audience to imagine the country as a bathtub, wherein the entire tub is full of guns "but we only need to worry about the drain" - "the drain" representing use of firearms for dangerous criminal activity. 

The Las Vegas massacre has yielded some discussion of graded weaponry and deadly gun accessories. The shooter used what's known as a "bump stock" to make his semi-automatic weapon operate like an automatic one. Since such a device exists only to make it shoot faster, thereby making it more harmful to targets, a bipartisan effort has emerged to ban bump stocks. As with many politically divisive issues, though, the focus on this particular facet of the debate seems destined to please no one: those who truly want to eliminate firearms from society feel that bump stock regulation doesn't go far enough, while staunch Second Amendment advocates see any such limitation as an infringement on their rights. 

Thus, it's likely that any policy changes will be achieved slowly as the debate rages on. Oddly enough, I keep coming back to the idea of compassion. Those on all sides of the issue obviously feel that their view is the correct one, without considering why their opponents feel the way they do. Like many other divides in our political climate, we stand a better chance of making meaningful progress if people venture out of their insular communities where everyone is like-minded. This, too, must be incremental; it seems unfair to say that someone who lost a loved one to a gun fatality (and therefore opposes gun ownership) should commune with firearm enthusiasts. 

Nonetheless, we must strive for a meaningful exchange of ideas across these divides. The current approach, wherein everyone remains set in their individual camps, clearly isn't working very well. 

Land of the Free (to Disagree)

If you're reading this, you're probably aware of the #TakeAKnee movement. Started by former San Francisco 49ers quarterback Colin Kaepernick last year, the campaign involves kneeling during the national anthem at sporting events as a protest to police brutality and other racial injustices plaguing this country's people of color. Over the weekend the movement gained increased attention after criticism from the White House and other elected officials.

During their Sunday games, most NFL teams participated in the protest in one way or another - players kneeled, sat, or stood together with arms linked in unity. Some teams elected to stay off the field during the anthem in an attempt to avoid the controversy altogether. Interestingly, the Pittsburgh Steelers decided on this course of action so that offensive tackle Alejandro Villanueva, the sole player on the team who wanted to stand for the anthem as usual, would not be visibly singled out. Nonetheless, he could be seen standing at the entrance to the field, with other players and coaches behind him in the tunnel (some of them with their hands on their hearts in salute to the flag as well).

These events have been reported on and scrutinized from a variety of angles, so what follows are a few less popular observations.

1) NFL teams and players are private actors. 

There's something to be said about the unfortunate pressure faced by professional athletes as public figures in this situation.  If they come down on the wrong side of such a controversy, they risk alienating fans or creating discord amongst their teammates and/or team ownership... all of which puts at risk the success of the team on the field and, as a result, its financial success. Kaepernick, a free agent at the end of last season, remains unsigned as the current season enters its fourth week; some speculate that his acts of protest amount to a liability that no NFL team wants to take on.

It's an ominous reminder to current players that despite their right to free public expression, their employers are private actors who hold influence over their lives, since the First Amendment merely proscribes the government from taking action that infringes on speech. NFL employment is governed by league-wide collective bargaining protections as well as the terms of each individual contract. At least one reporter has concluded that a team could probably "fire" a player for protesting the national anthem, due to vague provisions about "personal conduct" and "public respect" for the game. Regardless, most of the official statements released by the teams expressed unwavering support for the players' desire to peacefully influence social justice, so it's not likely that participation in #TakeAKnee will result in any player dismissals.

2) Both sides of the argument are diminished by ignorance.

As with most politically-charged disagreements, this issue has been improperly reduced to an either/or, "us-versus-them" choice. The impetus to "pick a side" is particularly ripe in the powder keg of social media. Twitter, Facebook, and other platforms are alight with posts that proclaim support for #TakeAKnee in the name of free expression, while others deride the demonstrations as unpatriotic.

Opponents of #TakeAKnee diminish their own argument by misunderstanding key components of the movement - namely, jumping to the conclusion that anyone protesting the anthem is inherently unpatriotic. Patriotism is defined as "vigorous support for one's country".  This doesn't necessarily imply support for the flag or the military at the expense of other societal causes. There's a popular meme circulating which states that "Thinking NFL players are 'protesting the flag' is like thinking Rosa Parks was protesting transportation."

Another bit of nuance missing from the discussion is that critics of #TakeAKnee are fully entitled to their feelings. The same First Amendment that allows protest also permits vocal opposition to the movement. Nonetheless, the most legitimate criticisms of the protest are those which recognize the true basis of the campaign. Villanueva articulated an understanding of the issues Kaepernick seeks to call attention to, despite his opinion that doing so during the national anthem is inappropriate.

Conversely, it delegitimizes the campaign when its supporters call out certain public figures by name, imploring them to #TakeAKnee. A protest such as this should stand on its own merits, attracting support from those who genuinely believe in the cause without pressure to cater to a certain fanbase. It is human nature for there to be disagreements in society, and the change the movement seeks to effectuate will not come to fruition immediately.

If and when circumstances do improve, it stands to reason that there will still be opponents to the cause. I'm reminded of the aftermath of the 9/11 attacks, namely the proliferation of American flags and other pro-U.S. displays. After a time, a chorus of critics emerged decrying this era of so-called "bandwagon patriotism"; that is to say, they dismissed an objectively positive movement as a mere fad instead of a genuine display of national pride.

3) Avoiding the controversy may not be possible... nor necessary. 

For the aforementioned reasons involving possible fan alienation and its effect on their bottom line, it's understandable that NFL teams sought to avoid controversial optics involving the national anthem. But staying off the field as a team seems like a compromise where everyone loses, since it deprives players the opportunity to protest OR to participate in the traditional anthem ritual. Linking arms, too, smacks of a half-measure, though it amounts to an act of protest insofar as defying the "normal" ritual of standing with a hand on one's heart for the anthem.

The teams' statements, though, told a different story. Many of these explicitly pushed back against Trump's remarks that the NFL should quash the protests. One owner went so far as to thoughtfully enunciate the dichotomy between respecting our country's symbols of freedom, "including the right to have differences of opinion". All of the remarks emphasized the role of sport as both a unifier in society and an appropriate avenue for influencing social justice.

Hence, despite some calls that professional athletes "stick to sports," the NFL has afforded some latitude to the #TakeAKnee campaign. Before it's over, there is likely to be further discussion, conflict, and controversy. As I said before, it is both our nature and our right to disagree.

Balancing act

Today is Labor Day, a federal holiday that commemorates the contributions of the American labor movement and sacrifices of workers. While I'd thoroughly enjoy discussing the legal and political history of industrial labor relations, this post concerns an issue more salient to many adults in this country: maintaining a balance between work and family responsibilities. 

Because of my own experience striving for "work-life balance", I'm quite curious (perhaps even nosy) about other families' work and child-care arrangements. I've known brave and capable women who return to work soon after giving birth, often sacrificing personal time to manage a household and earn a paycheck. Some of my friends - men and women alike - are selfless stay-at-home parents who meet their children's needs from sunrise until sundown while their partner works long hours. Others have managed a mixed schedule consisting of part-time work and part-time caregiving.  Still others have arranged to work from home certain days, allowing them to maintain a full-time workload while fulfilling familial obligations such as carpools and bus stop drop-offs and pickups. In addition to day care and/or school, most parents I know also rely on help from extended family members and/or babysitters to enable them to work (or do errands and chores kid-free). 

Social media is ripe with accounts of the struggle to balance work and family - specifically care of young children. In one such article, Why I Opted In To ‘The Motherhood Penalty’ At My Job, Jordan Jayson describes her decision to reduce her work-week to four days, and accept a proportional (20 percent) salary reduction in exchange. She discusses the satisfaction achieved by having one day per week to spend with her son when she'd otherwise be working, as well as the concerns about how her flexible work arrangement will affect her long-term earning prospects and professional reputation. The "mix of doubt, guilt, and self-criticism isn’t unfamiliar to working mothers. It comes with the territory," she writes. Furthermore, she talks about policy challenges involving parental leave policies, the perception of working moms as somehow "gaming the system," and the reality that in fact they work longer overall hours, toggling between childcare tasks and after-hours work once kids are asleep. Most significantly, Jayson criticizes the treatment of women as a "one-size-fits-all" constituency when it comes to desired career trajectory and the policies offered to help mothers in the workplace. 

Perhaps because the author's child is still young, one pertinent factor that the article doesn't address is the likelihood that over the course of her career one woman may need several different variations of a flexible-work schedule before returning to a "regular" full-time arrangement. As time passes, most children grow more self-sufficient with respect to both day-to-day self-care and entertaining themselves. They eventually spend most of their waking hours in school and other structured activities. Thus, if someone such as Jayson opts for a reduced workload after the birth of a child, she will eventually be able to return to full-time, therefore allaying her fears that she has forever harmed her wage-earning prospects. Still, the zeitgeist around working moms in particular seems to cast aspersions on any departure from a full-time work schedule in which the aim is to score every possible professional achievement. A working mom who returns to a regular full-time schedule will likely feel pressure to throw herself into work and handle emergencies or other last-minute developments with the same aplomb as her previous childless self. 

Of course, as Jayson also conveys, arranging atypical work schedules depends on the willingness of employers to accommodate workers' needs. In some industries this may simply not be possible; in others, flexibility may be easier to achieve. Another factor, of course, involves the practicalities of sharing childrearing responsibilities between partnered parents. Whether or not one has children, the way in which families handle the balance between wage-earning and childcare effects us all, insofar as it impacts how the next generation of humans is raised.  In my further posts, I plan to explore policies concerning parental leave and childcare, as well as the practices and attitudes surrounding which partner handles which household tasks. As always, I'd love to hear any reader reactions (including tales of flexible work arrangements) in the comments. 

On frequency & direction

I'm happy to report that more posts are coming! When I first conceived this blog, I had lofty aspirations of semi-regular, highly researched, topical think-pieces hashing out issues through my lens as both attorney and parent. Unfortunately, the stars have aligned such that I've not had time for any of these over the last year. Nonetheless, our nation's present political situation being with it is, I've felt more of a pull to write shorter commentaries on current events. Hence, that is what you will see for the foreseeable future... with an occasional larger research-laden article should the zeitgeist yield one. 

My aim in focusing on current events is to offer relevant perspective on timely sociopolitical issues, instead of in-depth analysis of topics that happen to strike me. If the last few months have taught us anything, it's that our political voices should not be confined to election cycles. Being civically engaged means participating in salient exchanges every day, so that we all reach a greater understanding of today's policy challenges. Here's hoping my contributions are worthwhile enough to inspire productive discussions.