Mob Rule's Rejects: How the Ninth Circuit Thwarted the "Will of the People" and Why That's a Good Thing

Spanish master Francisco Goya's 1799 etching The Sleep of Reason Produces Monsters easily could apply to the insanity of 21st-century America
Spanish master Francisco Goya's 1799 etching The Sleep of Reason Produces Monsters easily could apply to the insanity of 21st-century America
Francisco Goya/Museo del Prado

Like a visual version of an earworm -- you know, those songs that get caught in your head and you can't get out -- I've been thinking a lot lately about a famous 18th-century etching by the Spanish artist Francisco Goya called The Sleep of Reason Produces Monsters.

It features an image of an artist asleep at his desk while a collection of owls, bats, and other creatures of the night swirl about him.

My "eyeworm," to coin a term, is a result of too much television and Twitter, two marvels of modernity that project the stupidities of mankind.

Paranoia, fear, anger, hatred, resentment are the emotions that rule these outlets, and others like them, old media and new alike, from Facebook to newspapers to the Internet to talk radio.

Click on CNN and you'll probably hear about some cruise ship or airplane flight getting turned around mid-journey by an irrational Ebola scare.

See also: -A Historic Ruling Makes Gay Marriage Legal in Arizona, but LBGT Leaders Say Much More Must Be Done Here

Sometimes just a vomiting passenger is enough to do the trick. I reckon every time I drink tequila, my neighborhood is at risk for a full-scale panic.

Even normally sane individuals are discussing travel bans and quarantining all of West Africa, though medical experts continue to tell us that the Ebola virus is not that easy to get and that travel bans could make things worse.

Former congressman and perennial presidential candidate Ron Paul always has struck me as one of those "broken clock" politicians, like the timepiece that's right only twice a day.

True to form, during a recent interview with Larry King on King's new online talk show, Politicking, he scored both on Ebola and on the other source of a lot of irrational fear these days, the Islamic State in Iraq and Syria, known as ISIS.

"Right now, I think the panic [over Ebola] is more dangerous and will cause more harm than the disease itself," the physician-turned-politico told King.


Similarly, he recognized ISIS as a threat but observed that the United States' bombing of it may only contribute to the problem.

"Here, we're terrified about the taking over of the world [by] a group of people that doesn't have a navy or an air force or intercontinental ballistic missiles," he stated.

You could have said the same of al-Qaeda before 9/11. Still, the man has a point.

Before ISIS and Ebola, Americans were freaking out about children fleeing horrific violence in Central America to the relative safety of the United States.

How many Americans were threatened by this "crisis"? Zero.

Yet at the height of the influx in June and July, you would have thought the United States was on the verge of collapse.

Politicians and the media peddle in fear and irrationality because, let's be realistic, it sells.

Nothing motivates people to vote quite like scare tactics, and horror is part of the daily diet offered by news channels to guarantee viewers, along with the requisite story about a lost or dead dog and the weather forecast.

As for our 21st-century god, the Internet, it feeds on clicks, eyeballs, whatever's trending. It's democratic, with a small "d."

Granted, my lack of faith in humanity seems threatened by two recent rulings from the Ninth U.S. Circuit Court of Appeals: one overturning Arizona's no-bail-for-immigrants law, Proposition 100, and another overturning same-sex marriage bans, which has resulted in scores of lesbian and gay couples joyously joining in wedlock.

These civil rights victories are, of course, enormous. And they are welcome.

For too long the lesbian, gay, bisexual, and transgender community has been denied what Chief Justice Earl Warren once called a "fundamental freedom," the right to marry, and to pursue happiness (or as some might counter, unhappiness) as promised by the Declaration of Independence.


And the denial of bail to those suspected of being in the country illegally and of having committed a class-four felony or above has been an insidious practice, crafted by bigots to punish an entire class of individuals.

Regarding the nullification of Arizona's gay marriage ban, Governor Jan Brewer (ever the hater) decried the ruling via press release.

"The federal courts have again thwarted the will of the people," she inveighed.

I wholeheartedly agree.

But when it comes to the gay-marriage ban and denying bail to the undocumented, negating the "will of the people" is a good thing.

Just as it was a good thing when Chief Justice Warren wrote that bit about marriage being a "fundamental freedom."

That came in the opinion he authored for a unanimous court in the 1967 ruling Loving v. Virginia, which overturned laws prohibiting couples of different races from marrying.

Bigotry, intolerance, and the denial of civil rights often have been the "will of the people" in this country.

Segregation comes to mind. It was considered the natural order, just as many still regard heterosexual marriage as the only kind that should be practiced.

Though there already was an Arizona statute making marriage the sole province of straight men and women, the "American Taliban," as some mockingly call the Center for Arizona Policy, demanded an amendment to the state constitution.

In 2006, voters narrowly rejected it after it was placed on the ballot by initiative petition.

But CAP retooled it, and a right-wing Legislature sent it back to voters in 2008. Voters approved it by double digits.


Prop 100 was part of a package of anti-immigrant ballot measures pimped by recalled former Arizona Senate President Russell Pearce, back when Pearce was still in the state House.

The lot of them passed, with Prop 100 earning nearly 80 percent of the vote.

Murderers, child molesters, and the like normally are the sort of criminals denied bail, but Prop 100 was designed by disbarred former Maricopa County Attorney Andrew Thomas as part of what he called "my own no-amnesty policy."

Propaganda for the ballot measure advised that only illegal aliens accused of "serious felony offenses" would be held non-bondable.

But these serious felony offenses included altering a lottery ticket, stealing copyrighted music, and most significantly, making up a Social Security number or using a fake ID to obtain employment.

The practical effect: When undocumented people with fake IDs were picked up by the cops, they were charged with forgery and held non-bondable.

Most chose a plea deal rather than remaining in stir, but the lesser felony still made them deportable.

For a while, the federal government collaborated with the County Attorney's Office. When the undocumented were released, U.S. Immigration and Customs Enforcement took charge of them and booted them from the country.

Only recently has this practice changed somewhat on the feds' part.

In concert with Sheriff Joe Arpaio's immigration sweeps and worksite raids, and the promise of the never-fully-enacted Senate Bill 1070, Pearce's infamous "papers please" law, Prop 100 formed part of a legal mechanism to achieve a form of ethnic cleansing of Arizona's Latino population.

In part, Pearce sold Prop 100 as a way of hindering the flight of dangerous criminals, which was bull.

Dangerous criminals already are denied bail. Judges take flight risk into account when setting bail, and unlawful flight is no more a problem for the undocumented than for U.S. citizens.

More to the point were Pearce's remarks during one legislative hearing on the proposition.

"The bill doesn't go as far as it ought to go," he told his colleagues. "This is a very modest bill. If you're in this country illegally, you ought to be detained, deported. End of story."

His "modest bill," as the Ninth Circuit's final review tells us, violated the U.S. Constitution on its face and imposed punishment before trial.

Moreover, the U.S. Supreme Court has ruled that mere undocumented presence is not in and of itself a crime.

And, as the Ninth Circuit reiterated in striking down Prop 100:

"The Due Process Clauses of the Fifth and Fourteenth Amendments protect every person within the nation's borders from deprivation of life, liberty, or property without due process of law."

Were the people snookered by their representatives into voting to suspend the U.S. Constitution's protections for those here without authorization?

On the contrary, the popularity of SB 1070, and the election of bigot Jan Brewer as our governor in 2010 demonstrates that the public willingly voted to proscribe the rights of a minority.

Just as it did in 2008 with the same sex marriage ban.

I believe in democracy, of course, but like our Framers, I fear the tyranny of the majority.

And when reason sleeps, as it seems to do these days in America, I fear it ever more.

(Correction: The original version of this column indicated that the Legislature referred a gay marriage ban to the ballot in both 2006 and 2008. That was incorrect. The 2006 measure was a petition initiative, while the 2008 measure was referred to the ballot by the Legislature. I changed the wording of the column slightly to reflect the facts. Thanks to a reader for pointing this out to me.)


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