Opportunity Knocks

On Monday, when we took up Sen. Jennifer Fielder’s bill creating a constitutional right to fish, hunt and trap, I had that familiar, sinking feeling that the Montana Senate had once again given up on logic for the day.*

The idea is lunatic enough as it is – after all, fishing, hunting and trapping are simply pastimes enjoyed by a minority of the population and in that sense no more worthy of constitutional protection than canoeing or skiing or drinking beer or crocheting or … well, you get the idea.  But then Sen. Fred Thomas doubled down on this foolishness by rising to his feet, voice trembling with righteous indignation, to insist that we had to pass this bill because our “rights are under attack.” I don’t know, but it seems to me that if the bill creates rights that we don’t currently have, it’s hard to see how they’re already under attack.** 

What Fielder and her pals were doing here was protecting their own interests by claiming a right that doesn’t really exist. They want access to public lands, resources and wildlife for their own benefit, and they resent the fact that, particularly in the case of trapping, there are other Montanans who dispute how those lands should be used and how that wildlife should be treated. What better way is there to prevail in that kind of dispute than to claim some imaginary right to do whatever you want, and attack your opponents for suppressing that right?

But Fielder was in something of a quandary when she proposed to create a right and in the same breath assert she already had it. She tried to get out of the mess by claiming that all she was doing was “clarifying” what the voters intended when they added the hunting and fishing provision to the Montana constitution in 2004. You can read that provision (Article IX,Section 7) for yourself, but since all it says is that the opportunity to harvest fish and game is to be forever preserved, you’ll probably be hard pressed to conclude that – oops! – what we really meant was that there’s a right to trap.

Sen. Jed Hinkle, by the way, made a big deal out of that opportunity language. Why, he claimed, we don’t even know what the term means. It can’t be found in a legal dictionary! So when we protected the opportunity to hunt and fish, Hinkle figures, we must have really meant the right to hunt and fish and trap. This linguistic legerdemain might have been a little more plausible if, in his closing comments, Hinkle hadn’t shot himself in the foot by noting that with this bill we had – wait for it – a “great opportunity” to define that most obscure of words: opportunity!

Fielder’s bill to amend the Constitution got out of the Senate with 30 votes aye (all Republican) and 20 votes no (18 Democrats and 2 Republicans).**  It takes the aye votes of 100 legislators to put a constitutional amendment on the ballot, so the bill needs 70 votes in the House to move forward, and that probably ain’t going to happen. But you might just give your representative a little nudge to make sure it doesn’t. Opportunity knocks.

*You can listen to the whole sorry debate here.

**Technically, the bill doesn’t actually create a right to fish, hunt and trap. Rather, it asks the voters to put that right into the Montana constitution.

***You can check out how your senator voted here.

A Mindless Syllogism

It seems like every time I’ve turned on the television recently, or clicked on an on-line link, I’ve been subjected to House Speaker Austin Knudsen’s repeated video entreaties to call Sen. Tester and insist that he confirm Neil Gorsuch’s appointment to the Supreme Court. Unless you’ve been in a coma or unplugged from the internet, you too have probably seen the Knudsen video. But in case you haven’t, here it is:

Now, admittedly – and this is particularly true in the era of Donald Trump – when it comes to political advertising, tweeting and the like, we can’t expect much in the way of logic or respect for the facts. But I figure that if Knudsen is going to beat us on the head with the same message over and over again, which presumably means he thinks he’s got something worthwhile to say, he’s fair game for a little critical deconstruction. Here then, verbatim, is Knudsen’s pitch:

I’m Montana House Speaker Austin Knudsen. I know what it’s like to fight against Washington’s War on the West.  That’s why we need Judge Gorsuch on the Supreme Court. A judge who will interpret the law, not make the law.

The Senate must confirm the President’s nominee. Senator Daines is supporting Judge Gorsuch, but Senator Tester, what’s he waiting for? Call Senator Tester and tell him it’s time to confirm Judge Gorsuch to the Supreme Court.

Nobody, not even Knudsen himself, could possibly regard this statement, taken at face value, as anything other than absurd. Whether or not we need Judge Gorsuch is an open question, but surely the answer to it doesn’t depend on what Austin Knudsen does or doesn’t know. If Knudsen had stayed home in Culbertson tending to his law practice and had never become familiar with “Washington’s War on the West,” would we not need Judge Gorsuch? Is that what he's telling us?

Well of course not. He’s offering us this ridiculous non-sequitur because as lame as it is, it’s better that the mindless syllogism it’s attempting to cover for. That, apparently, goes something like this.

There is some undefined thing called Washington’s War on the West which is inimical to our (read Tester’s constituents’) interests.

There are laws that would protect these interests from Washington's assault if they were properly upheld.

These laws will be upheld if the Supreme Court is populated by justices who “interpret the law, not make the law.”

Judge Gorsuch will be such a justice.

Ergo, Sen. Tester should support the confirmation of Judge Gorsuch.

While the logic in this line of reasoning makes sense, the problem is with the premises, all of which lie somewhere between being at best arguable and at worst figments of Knudsen’s fevered imagination. So really, it's best not to lay out the argument at all. Just stick to the illogical soundbites.

When it comes to Knudsen’s question – what is Sen. Tester waiting for? – the answer is really pretty simple. As Knudsen says, senators “must confirm the President’s nominee.” Presumably, in doing that, we would like them to know who they are dealing with. Tester recognizes that there is a lot more involved in confirming Gorsuch than discovering his views on the War on the West, whatever that may be. There’s corporate involvement in elections, clean air and clean water, women’s health care, and the sovereignty of tribal nations, for example. Here’s a link to Tester talking about his meeting with Gorsuch on those very issues.

So, Speaker Knudsen, what’s delaying Sen. Tester is the need to act with due diligence, and we should all be glad that’s true. It’s something you might recommend to Sen. Daines, who apparently wouldn’t recognize it if it slapped him upside the head. He certainly didn’t think it was necessary as long as the nomination came from Donald Trump, and when Barak Obama nominated Merrick Garland, he refused to even consider it.

A Brutal Disgrace

Seven years ago, when the Supreme Court handed down its opinion in Baxter, it freed  Montana physicians from the fear of criminal conviction for providing aid in dying to the terminally ill. Dying patients could request a life ending medication that would allow them to end suffering, to avoid the loss of autonomy that the treatment of terminal illness often brings in its wake, and to have a small measure of control over when and where and with whom to spend their final hours. The court said that in acceding to these requests from adult, terminally ill and mentally competent patients, doctors were clearly acting with their patients’ consent, and accordingly would have an affirmative defense if they were ever charged with a crime.

If that all sounds a bit legalistic, read the decision, because the court also made clear that in providing aid in dying, doctors would be acting in harmony with the rights of the terminally ill, established in law, to be autonomous, to make decisions about their own treatment, and to refuse treatment - even food or water - to hasten their own deaths. Providing aid in dying would recognize these rights and be an act of compassion and respect.

But now Rep.Brad Tschida wants to make it an act of murder.

House Bill 536, which Tschida brought to the House Judiciary Committee last Friday, is brutal in its simplicity and intent. Under the bill, physicians who respond to a request from their patients for aid in dying will no longer be protected. No matter how heartfelt the request, no matter how badly the patient is suffering, no matter how immanent death is, no matter how clear-headedly the patient is acting – no matter any of this, a doctor who honors a request for aid in dying can be charged with murder. The clear desires of the dying patient will be to no avail.

If there is anything more outrageous than this bill itself, it is the hearing it was accorded in the House Judiciary Committee. Because bills like this have been heard in the past, much of the testimony was familiar. Proponents claimed, as they have done over and over again, that providing aid in dying is susceptible to all sorts of terrible abuses, while producing not the slightest shred of evidence that these abuses have ever occurred anywhere, let alone in Montana. Opponents pled for their autonomy and liberty to be respected and told stories of how spouses, or children, or parents died at home, peacefully, and surrounded by family.

All that was to be expected. But what was not to be expected was the careless and callous way in which the hearing was conducted. Faced with a bill of significant social, legal and moral consequence, the committee chairman, Rep. Alan Doane, would allow only half an hour of testimony - fifteen minutes per side. After that time was up, he cut off testimony from opponents who had traveled across the state to testify. When members of the committee tried to elicit testimony from the opponents, he refused to recognize further committee questions.

 I have been in a lot of hearings on a lot of bills, but I have never seen a chairman act as abusively and recklessly as Doane did in the hearing on this bill. His performance was a gross disservice to the public, to his colleagues in the House, and to the duty to govern with intelligence and compassion. You can watch video of this entire sorry episode here.

HB 536 is ugly legislation, and its hearing was an utter disgrace. It is unworthy of the Montana legislature and the people of this state.