Blame Game

In December of 2012 a truly horrific and evil event took place in Newtown, Connecticut. A mentally ill and disturbed individual killed his mother and took her legally purchased Remington Bushmaster AR-15. He then proceeded to travel to the Sandy Hook elementary school where he went on a rampage killing many, including children. This was one of the darkest days in American history. I’m here to say that those responsible for this horrific event should be held accountable. However, I’m also here to say that the list of those responsible for this event does not include the manufacturer of this improperly used tool; Remington Arms Company. However, thanks to a recent Supreme Court ruling, this last position is going to be debated in court. This is very very wrong for a number of reasons.

The Supreme Court recently ruled that a suit seeking to hold the Remington Arms Company liable for the damage caused to the victims and their families could proceed to trial. It is important to note that the plaintiffs in this case are pursing damages not strictly along lines of product liability but under one specific component of a 2005 Massachusetts law regarding the sale of firearms. This detail aside, I’m writing this piece as a foreshadowing of what a successful suit here may lead to. If this suit is successful, the ramifications could ripple through tort law with massive implications. The purpose of this post is not to debate gun control or some other ideological point. This post is purely about how wrong this decision is legally and the damage that could be caused were this suit to be successful.

Under the argument made by the plaintiff in this case, a manufacturer of a firearm such as Remington Arms Co. could be held legally liable for damages caused if an individual uses one of their firearms to illegally harm or kill someone given the way in which the firearm is advertised and sold. Specifically, when the item is pitched to potential consumers in such a way as to reasonable lead to violent acts, such as the Sandy Hook shooting.

Without getting too deep into the legal weeds, the manufacturer of a product can be found liable for damages caused by its product when either the user or someone else is harmed by either the intended or reasonably foreseeable use of a particular item. Generally, this is when a product malfunctions. A classic example is an oven exploding while being used to cook a Sunday roast subsequently hurting someone in the kitchen. Another critical component of such a suit is that the use of the item at question must be a legal usage. In other words, a company is generally not held liable for damages caused by their product when it is used in an unintended and illegal manner. This goes to the foreseeable usage of the item, as previously mentioned. To continue with the Sunday roast scenario, no one would suggest that the manufacturer of an oven would be liable to the family of a loved one who was trapped and cooked inside said oven in lieu of the roast by a deranged family member.

However, the unique argument being made here is that the manufacturer specifically pitched their product in such a way as to knowingly increase the odds of their product being used to harm someone or with complete disregard as to this possibility. In our oven example, this would look like the manufacturer using advertisements depicting their oven being used to harm someone or targeting a particular demographic who they had reason to believe was predisposed to such criminal activity. I’ll save you the graphic depiction of such an advertisement here. I think this is a rather large jump for a jury to make.

To drive this point further, I’m going to compare and contrast this incident to other examples of product liability scenarios. Let’s start with a drunk driver. Under the law, either a bar tender or the cashier at a convenience store can potentially be held liable for damages caused by a driver in a drunk driving related injury. These are referred to as dram shop laws. Under these statues, someone who provides alcohol to a visibly impaired individual can be held liable were that person to then harm someone while driving drunk. While the bartender can be on the hook, Budweiser is not, specifically for the before mentioned reasons. The product they manufactured operated as intended and it was not used in an illegal or in an unforeseeable manner. Also, Budweiser didn’t advertise this product to encourage impairment or negligent driving practices.

Another classic example of product liability is the tobacco industry. Several tobacco companies have been held liable for damages caused by their products. The reason being that they essentially lied about the effects of their product and what they contained. This resulted in the legal and intended usage of a perfectly operating cigarette causing harm to consumers and bystanders. To try to compare this to our shooting scenario. This would be as if Remington knew that their AR-15 firearm somehow caused individuals to becoming criminally violent and use said weapon to commit illegal acts. Of course no one, not even the plaintiffs in this particular case are trying to make that case. However, these tobacco companies were also found to be liable because they targeted young people for their harmful products by depicting smoking as being the cool thing to do. Therefore, there is some precedent for the argument being made by the plaintiffs. However, it is the specific application of this precedent to this scenario that I’m opposing here.

To pivot back to the case of the Sandy Hook attack, the plaintiffs in this case are arguing that Remington should be held liable specifically because they target the sale of their product to young individuals. They also claim that they [Remington] specifically built up the idea of using their product in a glorified war-like scenario. The argument being that Remington, through their advertising, targeted certain individuals who romanticize violence with firearms. While a creative argument, I seriously doubt any reasonable person would come to the conclusion that Remington in any way was trying to pitch their AR-15 as a tool which they intended to be used to illegally harm another individual. In order for the plaintiffs to be successful here, they would have to convince a court that Remington intentionally advertised this firearm as a tool to be used to commit crimes. Even if this were the case in the basement of Remington headquarters, it is worth noting that it was the mother, not the murderous son, who purchased this firearm. You’ll recall that the shooter had to kill his mother and take the gun, both of which are criminal acts, in order to be able to play out any fantasy he had about the product. Therefore, the supposedly sinister sales methods of Remington didn’t work, unless we’re to believe that the shooter in Newton simply beat his mother to the punch.

When a company makes a product that malfunctions and harms someone, they should be held liable. If they lie about the impact of the usage of their product, they should be held liable. I’m not aware of anyone who disagrees with these positions. People do bad things and hurt others. Usually, when they do, they use a tool or some item to perform said acts. In virtually every incident of such an action, any tool used to inflict harm is used in a way that the manufacturer of said product neither ever envisioned nor intended. The maker of a knife surely didn’t make their product to be used to commit murder. Louisville Slugger doesn’t make baseball bats for the purpose of armed robberies. In the same vein, Remington did not manufacture their AR-15 to be used to kill elementary school children, nor can the argument reasonably be made that they could have foreseen such use of their product. This suit is, frankly, a joke and doesn’t deserve one penny of the tax payer dollars it will take in being argued before a court of law.

The right to offend

This past weekend was Halloween. This is a great time of year, especially in a college town such as State College Pennsylvania. Students get a chance to let loose during the middle of the stressful semester. This includes partying and dressing up in their costumes of choice. Many would think this is a great chance for students to engage in freedom of expression. Unfortunately, according to the student government of Penn State (UPUA), as well as several aligned student groups, such as the College Democrats, The Penn State Student Black Caucus, as well as others, this is certainly not so.

This past Thursday, the UPUA sent out a joint statement via twitter with the before mentioned student groups warning about potentially problematic Halloween costumes which may amount to “cultural appropriation”. For those amongst us who are not culturally “woke”, cultural appropriation in the context of an outfit or costume would be someone dressing in a particular way to highlight a particular stereotype of a culture or to mock a particular culture altogether. A specific example of this would be a student of European heritage wearing a sombrero. Another may be an Hispanic student dressing up as a leprechaun. Essentially, it’s the making fun of a particular culture of which the individual in the costume doesn’t belong. My motivation for this essay was not the issue of cultural appropriation itself, or the weird smell of social segregation that accompanies it, but rather one specific word used in the statement: liberty. According to the UPUA and others, not only should students refrain from this form of expression, but they actually don’t have such a liberty to begin with. Not only do we specifically have this right to offend, but it is my opinion that the protection of this right to unpopular speech is critical for the survival of our democratic republic.

Perhaps the greatest part of this nation is our freedom of speech and expression enshrined in the First Amendment of the constitution. Without this right to speak freely and critically, the argument could be made that we would enjoy no others. The oppressed would not be made free and wrong would not be made right. However, the true genius of this right is that the state doesn’t pick winner and losers. By this I mean all speech, regardless as to its popularity or how it makes you feel, is protected speech. This includes everything from the corner preacher to Halloween costumes. You have the liberty, frankly, to be an absolute ass. To suggest otherwise is to expose oneself as being painfully ignorant of the long and clear legal jurisprudential history of courts defending exactly such expression.

This Trojan-horse attempt to limit speech is simply the latest in a broader push to eliminate what is commonly referred to as “hate speech”. I place this term in quotations because it doesn’t actually exist in any legal context. I like to refer to this concept as a unicorn, legally speaking that is. Time and time again, most recently in a 2017 case, the U.S. Supreme Court has stated that there is no “hate speech” exception within the First Amendment. This long jurisprudence dating as far back as the 1920’s includes protection for such horrific speech as cross burning and the infamous bigoted and hateful signs displayed at the deaths of soldiers by parishioners of the Westboro Baptist church of Topeka, Kansas. While some speech has been prohibited, such as direct calls to violence against clear targets, the speech at issue here of a costume clearly doesn’t rise to the level of problematic speech justifying its censorship. Therefore, to claim that a college student doesn’t have the liberty or the right to wear an offensive costume on the last day of October is rather ridiculous and exposes the advocates level of ignorance as to their own rights as citizens. While this aloofness may be annoying, there is actually a real danger in this drive towards censorship.

When the restriction of speech becomes accepted in society, the power to decide what can and can not be said flows quickly from the hands of activists advocating for cultural sensitivity to the government itself restricting the expression of its opposition. This naturally leads to oppression of the population. A single crack in the hull of our right to free speech, even unpopular speech, can quickly spell doom for our status as a free people. While history is replete with examples of this collapse from Nazi Germany to multiple nations south of our border, such as Cuba and Venezuela, we are currently watching those in Hong Kong dodging bullets and clubs for their right to speak out.

The student government, as well as the other clubs which signed on to this statement regarding costumes, is dangerous wrong. We have the right and liberty to offend and anger, and it is important that we do. To claim otherwise begins us down a dangerous road to oppression. Going forward, perhaps the student body would be wise to turn elsewhere for a current list of their liberties rather than their elected representatives.

Let’s Make a Deal

In less than two weeks, we will once again be facing a shutdown. After a partial government shutdown of over a month, Pelosi and Trump were able to reach a temporary agreement to reopen the government for three weeks. They are now facing a new deadline to either find an agreement or face another political disaster. As I see it, there are two options to ending this crisis. The first is that the two parties reach some legislative compromise. The second option, and the one that I think is more intriguing, is to punt this matter to the courts and turn them into a punching bag for America.

To quickly frame the shutdown dispute; back before Christmas, President Trump refused to sign a spending bill passed by the Senate which would have stoped the shutdown clock and kept the government running. He did this because there was no money set aside to build a physical barrier (call it what you want) along the southern border. There had been a bipartisan bill presented to him several months prior which included roughly twenty five billion dollars for border security and extended DACA protection, but still no money for the wall. That bill, as well as the last ditch efforts prior to the shutdown, were turned away. Since then, each side has held firm to their position. The Republicans claim we need a wall included in border security, while the Democrats have made a number of arguments against such a measure including claims that walls are immoral and racist. While both sides have come back to the table, there are few parties in Washington optimistic that a real agreement can be made.

The first question that comes to mind is how to end this crisis. As previously stated, I think there are two main options. The first option is that both sides (Trump and Pelosi) come to a compromise where democrats get DACA protection while Trump gets a beefed up border budget which would have to include funding for at least some small portion of new physical barriers on the border. This is essentially what the president offered in a speech from the White House last weekend. His offer was three years of extended DACA protection and 5.7 billion for border security including strategically placed physical barriers.

In my opinion, this would be the best solution for the country. It would show people that Washington can still work (sort of) by coming to some sort of compromise. It would also give each side of the partisan divide a reason to hate the other side just a little less because they’ll have gotten their opponent to give them something that they initially refused to. Whether this physical barrier would actually improve things or not is irrelevant in terms of how we can get the government back open again.

This would also give each party cover with their base, which, lets be honest, is really why we’re still stuck where we are. For Pelosi and the Democrats, they can go back to their corner claiming that they showed their newly established power in the House by blocking Trumps initial campaign promise of a massive wall along the entire border. For Trump, he can hit the trail heading towards 2020 having accomplished his main campaign promise from 2016. Unfortunately, the prospects of a compromise right now appear lower than the idea of Trump carrying the state of California in 2020. However, there is a second door we can go through here. One that would make the nauseating news cycle of the last month look like a late night informercial. Does the phrase “national emergency” sound familiar?

The second route we could go down to end this crisis involves Trump taking a rather extreme executive action and declaring the immigration situation at the southern border a “national emergency”. This would enable him to utilize Pentagon defense funds to build a physical barrier at the border, which is the president’s main crux in this debate. This would officially end the government shutdown scare. However, while this visible symptom would be cured, this executive action would create a whole new nightmare involving the courts and executive powers.

There are two separate analyzes to make with this option. I’ll begin with the electoral politics of such a decision. For Democrats, this would be truly a gift from God. With this strong use of executive force from Trump, Democrats could point and yell “Trump is truly an authoritarian who is out of control and a danger to democracy”. While this admittedly wouldn’t be very different from what some in that camp have been saying since election night 2016, at least now it would have some validity behind it. This would be 2020 gold for them. I think this is partly the motivation behind Democrats being unwilling to compromise at all in this debate. For Republicans, the political consequences are more complicated.

As it relates to 2020, Trump could make this declaration and claim that he had to because of the extremists in the left who wouldn’t make any sort of legislative compromise. This would be good kindle for the Trump base heading into 2020. However, this route would likely leave Trump heading into 2020 without a “big beautiful wall”. I say this because I don’t see the court buying the argument that the situation at the southern border is a national emergency. This is largely due to the fact that illegal crossing at the border are down over the last few years. Another factor working against an argument of their being an urgent national emergency is the fact that the president has gone a month already without making such a declaration. Nothing at the border has significantly changed over the last month. Therefore, it’s hard to make the case that there is a national emergency now that didn’t exist a month ago. For these reasons, it would make little sense in terms of the electoral impact of such a decision for Trump to take this route in trying to end the partial shutdown. However, as I’ll explain later on, if things devolve to a point where the Trump camp sees no possible political win, punting to the courts could provide considerable political cover.

The second analysis to make here looks at how such a declaration would impact the relationship between the executive and the judiciary, as well as the role the courts would play in all of this. When a ruling party or government is either faced with a difficult decision, or if they want to make an unpopular decision, they’ll often turn to their good friend the judiciary. They will find a way within their governing structure to “punt” the political issue over to the judiciary for them to handle. This enables the struggling party to throw their hands up in the face of criticism and say the matter is no longer a political one but rather a legal one. This provides the party great political cover. If the court rules on the matter in favor of the ruling party, they can celebrate the decision. They also can go to the public with legal justification for their position. They can say “Look, the court agrees with us”. However, if the court rules against them, they can blast the court as being out of touch or simply wrong. Either way, the party punched itself out of a corner and into a much better situation by turning the court into a punching bag.

In terms of our current situation, this “punting” option for Trump would be declaring a national emergency. This would take this current legislative battle and turn it into a constitutional issue for the court. Immediately, there would be a court challenge to his use of this executive authority to use Pentagon funds for the border. If the court rules that his actions were constitutional, Trump gets a huge win that has the powerful legal backing of the courts. However, if the court rules against him, as I expect it will here, then he can turn his supporters loose on the “out of touch liberal court” for their horrendous decision. As for the democrats options here, their play would be the opposite of Trumps in each of the scenarios described here. Politically, this should be a very appealing option for Democrats. For Trump, this is only a good option if he sees no path to success in the legislative route. While this route doesn’t guarantee either side a win, I think it ensures that neither will really have to take a loss. If the court rules against them, they can simply blame the court in ruling incorrectly rather than having to explain why they failed to get a good deal in the legislature. My final analysis looks at the impact such a course of action would have on the country.

Personally, I think turning the ire of the nations partisans towards the court on this could be a very good route in terms of turning down the temperature of this battle. In most democratic nations, the courts have a very high level of institutional legitimacy in the eyes of the public. They are usually the most trusted institutions in the nation. Even when people disagree with a specific ruling, they will tend to still support the court as legitimately exercising its power. Turning again to our current issue, I think the court could serve as a bomb squad of sorts in ending the shutdown issue.

It is clear that this battle is a brutal partisan mess right now. With every passing day, partisans on both sides are looking at the other side as being more and more evil and dead wrong. If this issue ends via a legislative matter, I fear that this partisan battle won’t get any better. However, I think by the president declaring a national emergency, the courts involvement could tone down the situation. Referring quickly back to the idea that courts have high institutional legitimacy even when they rule against ones interests, even if ones side loses in this current battle on a ruling regarding the declaration of a national emergency, they are more likely to tolerate the decision and move on because it is coming from a branch of the government that, statically, people have more faith in; the judiciary. The downside to this route would be that we would likely be facing a prolonged legal battle over the constitutionality of the presidents actions. As previously eluded to, this would create a horrific news cycle.

In conclusion, there is no perfect solution here. There are two options to ending this crisis. There is the legislative route or the “national emergency” route that gets the courts involved. As explained, both courses of action have upsides and downsides. The legislative route, while more expedient, will do little to tone down the partisan warfare in the country. Also, it leaves both parties open to taking a visible loss on the situation. If Trump pushes the big red button (no, not that one) and declares a national emergency, both parties will have some cover politically. Also, I think the overall temperature of the situation will be calmed down by the eventual looser being able to take their frustrations out on the judiciary rather than the legislature or the executive, which institutionally is more able to take such a beating. However, you’ll be extending this fight for likely months along with a brutal news cycle. As I stated earlier, option A is probably best for the country. However, as to which route yours truly thinks will ultimately be taken, I would predict the national emergency route simply because each side is too dug in for them to win this politically. However, if I’m being honest, I’m saying this mostly because I’m selfish and would love to be able to write about such a development. Regardless as to what eventually happens, I think we can all agree that Washington has failed the public on this one. We never should have gotten here, but that’s a topic for another day.

The Beginning

Welcome to the beginning of what I hope will be a very productive exercise in promoting positive political discourse. With this being the first post of this new blog, I have several goals I hope to accomplish. First, I want to introduce myself to you. Next, I want to explain the mission of this blog and what I hope to create with it. Lastly, I’ll explain my reasoning behind the name. Without further delay, here is a little bit about me.

I am currently a graduate student seeking a PhD in Political Science at Penn State University in State College Pennsylvania. My research interests are law and courts. Specifically, I am interested in studying Constitutional Law. My career aspirations are to become a constitutional scholar and to teach Constitutional Law either at the undergraduate or law school level. I am a licensed attorney in the state of Pennsylvania with a law degree from Penn State Law. I also have my bachelor’s degree in political science from Penn State. There is a reason this town is commonly referred to as “Happy Valley”. I have found it hard to leave.

My home-town is Berwick, Pennsylvania. It is a very small mostly rural town in northeastern Pennsylvania. It is a very conservative, blue collar, down to earth place. These characteristics of my home-town have helped shape my world-view. My parents have also contributed to that effort with my father being a traveling salesman and my mother being an extremely dedicated stay-at-home mom. I attribute many of my ideological and philosophical positions to them. I would describe myself ideologically as a “Reagan Conservative”. What this means to me is that I generally support low levels of government involvement in our lives, especially in the area of the markets. However, I recognize the importance and utility of a strong government presence in the area of national defense. I am also socially conservative. This has recently led to me being without a home in terms of political party, although I do identify most as a Republican. While I credit my parents with largely crafting my world view, I also attribute to them my sense of logical thinking and openness to facts and data, even if they threaten a preconceived notion of mine. If you’re wondering why I’m telling you so much about my upbringing, the answer lies in my mission for this blog.

Simply put, I’m starting this blog as an attempt to foster both passionate and insightful political discussion and debate. I want to use this blog to address current events both in the political and legal sphere from an academic background applying both my legal education as well as my developing scientific education. Too often today we see current events discussed at a very superficial level with little to no prolonged intellectual discussion after its twenty-four hours shelf life. I hope this project will serve as a means to create this deeper political discourse.

As for why I gave you such a detailed personal background about myself, I wanted the readers of this blog (hi, Mom) to have an understanding of where I’m coming from philosophically and ideologically on any given topic or post. I think understanding where I’m from, and the environment I grew up in, will aid readers in being able to do that. In other words, I want readers to be able to see how I got from point A to point B. Next, I’ll touch briefly on what went into naming this blog.

In the preamble to the Constitution, the founders expressed their desire to form “a more perfect union”. Their vision of this more prefect union was one with justice, peace, and prosperity for all of its people. This phrase expressed a desire to create a nation that was better than what they had at the time. It was a call towards progress of society. While our nation has often fallen well short of this goal, we have always strived towards creating this ideal place to live. I entitled this blog “A More Perfect Union” because I hope this project can serve this national call to progress by improving how we discuss politics.

With that said, I can’t wait to get after it. I hope I see people both enraged and delighted with what I write. I hope to see people hold me accountable when I make mistakes. I hope to see insightful and respectful battles in the comments section. But most of all, I hope this endeavor leads to a more enlightened society and a more perfect union.