Category Archives: Equal Protection

Constitution Day Open Thread: Top 3 Amendments You Would Make

Today marks the 223rd anniversary of the U.S. Constitution, allegedly the supreme law of the land. The framers of the Constitution recognized that over time changes would need to be made through an amendment process. In the intervening 223 years, this document has been amended only 27 times.

This brings me to the question I want to pose to readers: what top 3 amendments would you make if you could and why?

Here are my top 3 in no particular order:

1. Rebalancing the Scales of Justice Amendment: The 4th 6th Amendment’s guarantee for the accused to have a court appointed [see comments below] lawyer is a wonderful idea but incomplete. Sure, the accused can be represented by a public defender but does not have nearly the resources available as the prosecution. My proposed amendment would go further than the 4th 6th Amendment and state that the accused would be guaranteed the same resources in his or her defense as the prosecution. For every tax dollar spent to prosecute a dollar would be made available for the defense (whether or not the accused uses a court appointed attorney). This amendment would also guarantee compensation for the wrongfully accused, hold prosecutors criminally and civilly responsible for withholding exculpatory evidence from the jury, and clearly state that a compelling claim of “actual innocence” (due to newly discovered evidence or technological breakthroughs) would be reason enough for a new trial for the previously convicted.

2. Term Limits Amendment: A single 6 year term for president, 2 terms for senators (keep the current 6 year term), 6 terms for representatives (keep the current 2 year term). These terms would be limited for consecutive terms only; if a president wants to make another run, s/he could do so after sitting out a term while senators and representatives would have to sit out a full 12 years (and make them deal with the consequences of their laws as private citizens for awhile) or run for a different office.

3. Accident of Birth Amendment: This would revise Article II, Section 1 removing the requirement that the president must be a natural born citizen and changing the requirement to match that of a U.S. senator. While this requirement might have made sense 223 years ago when the nation was getting started, we are now to a point to where we can do away with it. I don’t like the idea of disqualifying an individual for something s/he had absolutely no control over. Also, this would force the birthers to think about something else other than Obama’s birth certificate : )

Now it’s your turn.

Another Critique of the ACLU: Social Segmentalization

I did a critique as well as a defense of the ACLU for TLP not too long ago, but another aspect of the ACLU’s approach to defending civil liberties seemed worthy of analysis. Here goes.

On my Facebook feed this evening, I found this snibbet:

Every student deserves the opportunity to attend school and learn free of fear; however, this is not the reality for many LGBT young people in schools across the country. Jamie [Nabozny] experienced the kind of antigay verbal and physical abuse in his school in rural Ashland, Wisconsin, in the late 1980s and early 1990s that can only be described as the stuff of nightmares.

I know what you’re thinking. Michael, I thought you were a liberal. Or a libertarian. Are you about to become a conservative and attack the ACLU for supporting gay people?

No, not at all. What I will criticize the ACLU for is its segmenting the problem of school intimidation into being a “gay” thing instead of it becoming a larger social issue. Children have to face bullying in many of America’s schools that goes way beyond the jabbing that adults have to face, often with adults showing little compassion and instead speaking down to them.

I can attest to this myself. During the zenith of Seattle’s race-based quota system, I found my family relocating to the central part of Seattle, after living in northern Seattle. The cultural shock was extreme. While I’ve become far more knowledgeable of urban culture (I hesitate to say “black culture,” because it’s really more of an urban attitude that represents all colors), the bullying is still extreme in retrospect. The incidents were numerous: buying a pair of shoes I saw a cool kid wearing, that cool kid taunting me for copying him and hitting me upside the head with a metal object, causing my head to bleed and being falsely accused of sexual harassment by a girl in one of my classes I didn’t even know or ever talk to.

There was also bullying in the suburban school I had been to before, as there is everywhere. It was just more extreme at the inner city school. With incidents like Columbine and Virginia Tech, bullying really needs to be addressed on a large scale. Schools can’t have teachers on the payroll that could literally abuse a child and still be protected by a union. Teachers also should be made aware from day one that that kid in the back who is silent and sits alone at a lunchtable isn’t an antisocial troublemaker. He’s scared shitless. Chances are that most of the bullying he’s experienced will be summed up in his adult years as little more than childishness, but at the time, that’s certainly not how he feels. Having an arm around him and someone actually listening to him will change his life.

I certainly was that scared little boy, and I’m a straight white male. As long as public schools perpetuate more as prisons and forms of societal control than places of education, alienated young men will be produced. Utopia, being non-existent and likely impossible, is a very long way off but problems will never be solved with the ACLU approach of “school is hell for LGBT youth.” School is hell for youth period. Do something about it.

Activists Protest Proposed Church Next To NARAL Headquarters

July 22, 2010
WASHINGTON, DC — Picketers holding anti-Christian placards marched near NARAL headquarters in Washington today, denouncing plans to erect a right-wing Christian church within a block of the abortion rights group. Heated words were exchanged between supporters of the place of worship; luckily physical altercations were avoided in this escalating battle.

Tension has been brewing since late last year, when plans for the Lutheran-denomination church were unveiled in planning commission meetings. NARAL-friendly Councilwoman Diana Matthews had been quietly working to stall the plans, requesting additional information about the parking and infrastructure requirements of the planned structure, but the architect and engineer on the project quickly provided evidence that the demands of the new structure would not materially change from the property’s previous structure.

As the project has neared breaking ground, opponents and supporters have taken to the streets. “It’s an affront to the freedom that NARAL protects that these Christo-fascists would try to base their hate so close to our headquarters,” said Susan Colona, a NARAL employee. “It’s clear that they’re moving so close in order to threaten and intimidate the workers here at NARAL. It’s chilling, in the wake of the senseless murder of Dr. George Tiller, that they’re willing to escalate their actions.”

Protesters carrying signs with slogans such as “Go Back To Kansas” and “Keep Your God Out Of My Uterus” marched outside the headquarters. Supporters of the church countered nearby with opposing signs, “Abortion Is Murder — An Eye For An Eye” and “We Protect Those Who Can’t Protect Themselves.”

Pro-choice US Representative Donna Edwards (D-MD) sides with NARAL. “The actions of the picketers in support of this church are a clear example of hate speech. We are a country that values freedom of religion, and I don’t believe we can legally stop this congregation from forming, but I am deeply saddened that the church would choose such a site for their home.”

Pastor Elijah Williams, who would be heading the proposed church, doesn’t understand the fight. “While we as a church are generally against the practice of abortion, many within the ELCA are willing to make exceptions for circumstances such as rape and the health of the mother. In fact, Dr. George Tiller was a member of the ELCA, and we have publicly condemned Scott Roeder for his unconscionable actions. We are a peaceful church, and chose the site of our church because we thought it was the best place for our home, not because of its proximity to NARAL.”

Pastor Williams even suggested that the extremist protestors antagonizing NARAL were not from the ELCA, but rather sent by the Westboro Baptist Church, an organization known for sending protestors to funerals of US Servicemen killed in combat.

The fight doesn’t appear to be waning. NARAL has been searching for legal ways to fight the church, including potentially having the entire block declared a historic landmark due to its age. Stephen Simpson, a lawyer who had previously advised the ELCA on other matters, doesn’t see this as cause for hope. “What should have been a very simple process of building a home for a budding congretation is now likely to be derailed. Once national politics and the legal system become involved, this will become a circus. I hope the church and NARAL can come to some agreement to avoid this outcome.”

Given the contention between the parties, though, this appears unlikely at this time.

Did the Jury for the BART Shooting Get the ‘Right’ Verdict?

It was arguably the first nationally broadcast officer involved shooting of 2009. Early January 1, 2009 BART Officer Johannes Mehserle shot and killed Oscar Grant on a crowded platform at the Oakland station. Several videos (see them here) captured by cell phone cameras show what appears to me to be an execution style shooting of Oscar Grant.

Even as shocking and outrageous as this footage was, I cautioned readers at the time that the videos only tell part of the story (the videos aren’t exactly of the best quality either). Officer Mehserle’s defenders at the time said that he was likely reaching for his tazer rather than his gun. If this could be argued to the satisfaction of a jury pursuant to California law, then Officer Mehserle’s actions do not satisfy the conditions necessary to convict him of second-degree murder but involuntary manslaughter*.

And that is exactly the conclusion the jury ultimately reached. I can imagine a very contentious deliberation where several believed Mehserle acted with intent to kill while several others believed the shooting to be accidental. Those who believed the former must have been outnumbered by those who believed the latter and decided to agree to the lesser charge to prevent the jury from being hung and take the risk that another jury would find him not guilty.

This is pure speculation on my part, of course, but involuntary manslaughter is the verdict. The more important question: is it possible that the jury arrived at a ‘right’ and/or ‘just’ verdict?

For regular readers of The Agitator, you may be a little surprised that none other than Radley Balko believes the jury reached the right conclusion, however unpopular. While I’m not in total agreement with Balko’s reasoning in his recent article in Reason, he does make a persuasive case.**

At the very end of the article, Balko speaks directly to those of us who are a little less than satisfied with the outcome of this case:

The anger at Mehserle’s conviction on a charge short of murder stems from the perception that cops who allegedly commit crimes are held to a lower standard than regular citizens accused of the same crimes […]

[…]

There’s also the appearance of a double standard. Mehserle’s defense is that he made a mistake. In the heat of the moment, Mehserle inadvertently reached for the wrong weapon. But Mehserle had training. He had other cops there backing him up. If we’re going to be sympathetic to him, we should also show some sympathy and understanding for people like Cory Maye and Ryan Frederick, both of whom were tried for murder for killing police officers who broke into their homes at night. Both Maye and Frederick say they mistook the raiding cops for criminal intruders. Maye was convicted of capital murder. Frederick’s jury opted for voluntary manslaughter.

That said, Mehserle shouldn’t be required to suffer the accumulated anger stemming from other problems in the criminal justice system. He should be convicted of—and punished for—the crime the evidence presented at his trial proves he committed, nothing more. His jury did the right thing.

I can’t fault the jury for doing the ‘right thing’ as I am sure this was a very difficult case for each individual. And technically, Balko has a very good point that it was the jury’s job to make a decision on the facts of this case rather than consider the injustices that have befell many individuals such as Cory Maye and Ryan Fredrick. And because each of these cases took place in different states each with different legal standards, we probably aren’t exactly comparing apples to apples.

The jury may have reached the ‘right’ or ‘just’ decision but damn it, it sure doesn’t feel*** like the right decision. It seems to me that if a police officer can be convicted with a lesser penalty for an accidental killing**** that those who don’t have the benefits of wearing a badge should be judged similarly.

I really wish jury instructions for defendants who happen to be police officers or other government agents would include something I like to call the ‘average person’ test. Put simply, the jury would be asked to consider if the actions of the defendant would fit the definition of the charge if the individual was neither a cop nor government agent. If it’s a crime for an average person to act a certain way than surely the same action is a crime regardless of his or her chosen profession (no matter how difficult).

This case was about whether Johannes Mehserle’s actions met these definitions not whether BART Officer Mehserle’s actions met these definitions.

See the difference? It wasn’t a uniform that was on trial but a man. Nothing more, nothing less.

If the jury decided that Johannes Mehserle, the individual, committed involuntary manslaughter, then I would be much more inclined to agree with Balko.

But as long as the perception (which is reality, I believe) remains that the double standard exists for the badges and the badge-nots, there will be jurors who will deliberate accordingly whether or not their decisions are ‘right’ or ‘just.’

» Read more

Yes, the Second Amendment really means what it says… and that means you too Chicago

This past Monday, Samuel Alito, writing for the majority (with separate concurring opinions from Clarence Thomas and Antonin Scalia) in the case McDonald vs. City of Chicago and Village of Morton Grove; handed down what in 30 years will I believe, be held as one of (or perhaps half of a pair of, or the second in a series of) the most significant rulings in the courts history, not just for the right to keep and bear arms, but for the rights of all people in this nation.

I had meant to get this post out yesterday, but I had to take the time to read the entire opinion… all 214 pages of it… and think about it for a bit.

This judgment is notable, both for what it does, and for what it does not do; and I want to go into that in some depth… and I want to go into some of the background and issues surrounding the decision that aren’t necessarily about the right to keep and bear arms

However, that is going to get long…. and if you aren’t interested in constitutional law and the nature and exercise of the rights and powers of the states, it’s going to be boring. There’s only so much you can do to make enumeration and separation of powers issues over more than two hundred years, all that interesting.


Note: Also, for those of you who DO closely follow con law, this is going to be a gross simplification in some ways. I don’t have time to write a book here, and a book is what it would take to cover this comprehensively (actually several… there are a few out there already, and Heller and its progeny are sure to generate more).

At any rate, I’m going to break it out into another posts, and I’ll update this post with a link when I finish the other one.

… I should warn you, I’m already 5,000 words in, and I’m probably less than half done…

McDonald vs. Chicago is the first major gun rights case brought before the supreme court under the clarified Heller doctrine, to wit:

The right to keep and bear arms for all lawful purposes is an individual right, possessed by all citizens and lawful residents of this country (provided this right has not been statutorily stripped from them, with due process of law); and the core of that right, is the fundamental right to defense of self, and others.

Actually, McDonald is a bit more than just “first”… In fact, the case was prepared in advance, and filed immediately on the handing down of the Heller ruling; by the lead counsel on the Heller case, Alan Gura.

The issue at hand in Heller was to affirm and clarify the basic right; something which those on the left in general, and in the gun control lobby in particular, had been trying to deny for something like the last 40 years

Note: The modern gun control movement as currently constituted really began in the late 60s; roughly coinciding with accelerating decay of civil order and rise in civil unrest, the rise of the drug and counterculture, and dramatically rising crime rates.

More than anything else, it was the assassination of Robert Kennedy, and Martin Luther King that kick-started the gun control movement as it exists today.

The gun control movement in the U.S. as a whole has its roots in racial discrimination against immigrants in the pre-civil war northern cites, and blacks in the post civil war south.

Up until the late 1950s, the left as a whole actually advocated gun ownership, as a bulwark against the state… a position generally ascribed these days to the “far right”; but as the left post 1932 increasingly BECAME the state, their position on civilian non-police gun ownership changed.

The issue at hand in McDonald is substantially identical to Heller, with a crucial difference we’ll discuss in a moment; that of incorporation of the second amendment against state and local governments, as other rights enumerated in the bill of rights have been.

In Heller, the substance and nature of the right were affirmed. However, though the assertion of the right is very clear; it’s application is potentially limited.

Because the Heller case pertained to a federal enclave (Washington D.C. is not a part of any state. It is a federal enclave. Precedent in DC cases applies federally, but not necessarily to issues in the several states), the ruling only explicitly applied to the federal government.

In principle the right could be asserted against the states, or it could not be… depending on judicial interpretation. Either way a judge decided, it would almost be certain to be appealed… as indeed it was (in at least four cases so far, all of which were delayed pending the McDonald ruling).

Also, Heller left various questions open to interpretation, such as the standard of review for laws pertaining to the right to keep and bear arms, and whether interest balancing tests could be made.. or for that matter just what types of laws would be acceptable short of outright bans on firearms in the home (which were explicitly forbidden).

In Mondays decision on McDonald, it was affirmed (quite strongly), that the rights protected by the second amendment are equal in stature to the rights protected by the first amendment, and all the others.

In both the majority opinion, and the concurrences, the court made it explicit that the protections afforded by the second amendment applied against the state. Further, they made it clear that a strict standard of review was to be applied to any law regarding the right to keep and bear arms (though they do not by any means disallow all regulation. In both Heller and McDonald, it is acknowledged that some regulation of any right can be acceptable, but must be strictly scrutinized).

There is still one set of questions to be resolved, what exact restrictions against keeping and bearing arms will be acceptable under this standard of review. Just as there are many limitations against speech permitted by current jurisprudence, including many which probably should not be allowed under the constitution (such as most of what is called “campaign finance reform”); there will likely still be substantial restrictions allowed by the court. In any case, it will be years… likely decades… before the whole issue is settled law, and in the mean time, there will be a lot of contradiction and chaos.

The fight is certainly not over… in fact it’s really just getting started.

This is where we get into the theoretical discussion about the constitution, so I think I’m going to end here and pick it up in the next, much longer, post.

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

CounterPoint: Yes, Virginia, States Really Do Have Rights

This is a segment in The Liberty Papers’ continuing “Point/Counterpoint” series. This post is the rebuttal to my co-contributor Michael Powell’s post here, making the point that “states’ rights” are an antiquated and poisoned concept.

When I saw Michael’s post this morning, I was a little bit surprised. I was expecting him to make the argument that States’ Rights don’t exist. In fact, I was waiting for one specific statement that I’ve heard from those who attack the notion of states’ rights many times over. Thankfully, two comments in, commenter John222 made the point:

States don’t have rights, individuals do. Better would be to say, “The interest of the State in protecting the rights of it’s citizens”.

This is a common statement among libertarians, and although I’ve probably used it in the past, there have been points where I’ve become troubled by it.

Michael made some very important points in his post, and these are points that must be answered. However, to begin, we must have an understanding of the origin, the nature, and the limitations of states’ rights. Only by setting this groundwork may I refute Michael. But first, a caveat. In order to make the points I must make, I must work with two critical assumptions:

  1. Natural rights of individuals exist.
  2. Constitutional democratic government is legitimate.

For those that have read my previous work, it should be understood that I believe neither of these assumptions. I am a philosophical anarchist, and while I can construct a non-theistic basis for natural rights theory, I view them as artificial constructs, not incontrovertible truths. However, we must work within the framework we have, and thus I will concede these points for the purposes of this post. For the purposes of discussion and comments, please try to take these two premises at true, and if you have a problem with the argument flowing from those premises, attack the argument.

Let’s start at the beginning:

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, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Here’s the base. Natural rights are the area where we say to government: “Over this line you may not tread.”

Individuals have certain natural rights, and they empower governments to help them protect these rights. The statement that “States don’t have rights, only individuals do” does not account for what we consider the social contract. Individuals enter into an implicit contract with their government, offering to entrust some of the rights they hold in the “state of nature” to their government in order for cooperation and protection of those rights. Those governments do not gain *new* rights as governments, but they inherit the rights of those they are designed to protect.

Natural rights theory does not hold that individuals give up their rights to the government, the rights are retained. It is best to be understood as a legal contract — individuals freely, by exercise of their rights, create their government. They voluntarily empower their society — their government — to protect their rights. A government that reaches beyond the legitimate power of protection of those rights, as Jefferson himself states, deserves no longer our assent or our support. If said government treads beyond the lines defined above, that government has violated the social contract.

“Government”, of course, is not a singular entity. Governments are hierarchical, competitive, and numerous. In many cases, we are under the jurisdiction of several governments — entities within entities. In many cases, the governments we live under must make compacts with other governments outside our territory — treaties — in order to help complete the tasks which we have empowered them. Each of these agreements are contracts or compacts. Rights of the citizens of the government are not abridged, they are retained — at least if the government empowered to act on behalf of its inhabitants are legitimate.

How, then, do we describe the relationships between these levels of government or between competing governments? How do we define the lines over which they may not tread? Let’s take one example: borders. What are borders, other than the territorial lines defining the government which protects the rights of its inhabitants? What do we call a government’s relation to its borders? Territorial rights! Now, of course, these rights are not that of “the government”, but they are the territorial rights of which the individuals supporting that government have ceded to their government to protect.

Likewise, how do we define our US Government’s relationship to the United Nations and the nations of the world? We use the term sovereignty: the inviolability of our government to the others of the world — the statement that our government has “rights”, i.e. lines over which those other governments may not tread.

The nature of the United States Government and its relationship to its constituent States is a tricky one, historically. The United States Constitution — our governing document — is a compact between states, not a contract directly between the federal government and the people. Historically, the people of the several States entrusted their governments — the entities to which they had entrusted their rights for protection — to form a federal republic. One may support the claim — at least until 1865 — that the States retained sovereignty, and that they had contractual RIGHTS as constituent members of that federation.

These rights are not inherent to them, as States. These rights are the rights entrusted to them by their inhabitants, and the rights they are protecting are not the rights of the State as State, but a collective bargaining arrangement to protect the rights of their inhabitants. Regardless of how you define this, though, the rights exercised are contractual rights exercised by the States on behalf of their inhabitants. The States drew a line, and told the United States Government “over this line you may not cross.” For the United States Government to cross that line would allow the State, if it so chose, to exercise its sovereignty and break the contract — secede.

These rights are not without limit, though. We previously stated that government is created by individuals in order to secure their natural rights. But those rights are retained. A government which does not secure those rights — a government in fact which violates them, is not a legitimate government at all and may be disbanded. Likewise, federal governments or supra-national bodies do not have super-natural powers — they are still only as legitimate as the rights of their constituent states (and thus the rights of their constituent inhabitants). If the United States Government attempts to violate the sovereignty of the states in order to violate the natural rights of its constituent inhabitants, it is just as illegitimate as if the individual state takes that action…

…which finally brings me back to Michael’s post!

Specifically, this country is, and always has been, a work in progress. I said it was illegitimate for a federal government to violate the sovereignty of its constituent States and if a federal government were to do so, it would justify secession. However, while Michael says he wouldn’t cry crocodile tears if the South had been allowed to secede, the South’s secession would not have been justified under States’ Rights theory. Why? Because slavery — a State deliberately violating the natural rights of its inhabitants — is not a legitimate government, and thus the Southern States did not have true sovereignty. A government which violates the natural rights of its inhabitants as a matter of design cannot be granted the authority to act on behalf of its citizens.

The Fourteenth Amendment, in the wake of the Civil War, finally codified this statement. Prior to this, the United States Constitution did not have a method for the Federal government to impede the States from abridging the natural rights of its citizens. (Of course, one can infer from this that the Civil War was illegal, but the destruction of slavery in the South can hardly be described as immoral). It should be stated that Michael’s quote from George Wallace was not truly a defense of States Rights. Those rights of States to discriminate by law against their citizens had long been removed via the Fourteenth Amendment. If he truly believed that the right of the State was inviolable (I doubt this to be the case — I personally think it likely that “States’ Rights”, like patriotism, just happened to be the last refuge of a scoundrel), he was simply wrong.

Michael is correct, of course, that in the intervening century, the term “States’ Rights” was used by all manner of racists, supporters of Jim Crow, and people who are “defiant of settled law”. In American politics, terminology tends to have this problem — terms become appropriated by unsavory characters, and the terms themselves pick up unsavory connotations. We “libertarians” constantly bemoan the fact that our previous label, “liberal”, as appropriated by big-government Democrats. We had to abandon the term completely and build a new one. States’ Rights has some of that connotation, but by definition that doesn’t not negate the concept of those rights.

The term “States’ Rights” may, in fact, be coming into a renaissance. As Michael points out, individual states are fighting the Feds on medical marijuana, and California — the state where we both live — has a ballot measure in November to legalize marijuana entirely. This is in direct contravention of the Controlled Substances Act, but more importantly, this is a state protecting its citizens from the overreaches of Washington!

But again, look at the nature of government. A State government that violates the natural rights of its inhabitants is acting illegitimately. At the same time, a Federal government that violates the natural rights of its inhabitants is acting legitimately. In this case, it is right for the inhabitants of a State to pool to their rights collectively — using their States’ rights — to protect themselves from the Federal government on their behalf. Individuals often have little recourse against the Federal leviathan. They need all the help they can get.

Either way, I think that Michael did not prove, as I thought he would attempt, that states don’t have rights. He did make some valid points that the terminology of states rights had been hijacked for the last century by those State governments who wished to protect their racist fiefdoms. But he belied his own point by bringing up the fact that the very same terms are also being used by States to protect the liberty of their inhabitants from Federal overreach.

Explaining DADT & Gays In The Military To A Seven-Year-Old

As the father of 2 1/2 year old and soon-to-be 1 year old boys, I know that there are going to be a lot of questions to be answered in the future on a wide range of subjects. Those questions need good answers, because there’s a big thing out there called “reality” and a lot of it can be bewildering to a child. Some questions will be easy, and some will be hard. One of those questions that will probably be easier than I expect will be the day that my kids start asking about a couple that are very good friends of ours — Manny and Chuck.

That might be an awkward day, but it’s a great chance to teach my kids about respect, and to treat people as individuals rather than by some “group identity”. In some ways, I think they’ve got an advantage. Growing up in a very sheltered environment as I did, I met them (through my wife) as “gay Manny & Chuck” instead of “Manny & Chuck, who happen to be gay”. It took me time to learn to treat them as individuals first and as members of a “group” second. My kids will be lucky enough to know them as individuals first, and then as they become old enough to understand a little bit more about the world can put the rest of the pieces together.

But Congressman Ike Skelton of Missouri would prefer that his constituents and their children grow up in a world of ostracizing those who are different. Here’s why he’s going to push against the repeal of DADT:

“What do mommas and daddies say to a seven-year-old child about this issue? I don’t know,” Skelton said. “I think it would be a family issue that would concern me the most … What they might see in their discussions among the kids.”

Really? That’s why you’re going to block DADT?

First things first. The whole argument is a red herring. I can’t imagine that some 7 year old is going to ask their parents question about some hypothetical gay soldier. They’re probably going to ask questions about some classmate who’s getting teased every day because he’s got two daddies who hopped the border to Iowa to get married, or because he overheard someone singing Katy Perry’s song, “I kissed a girl”. DADT is going to be a non-starter.

The truth is that it’s not going to be possible for Skelton to shelter all the parents of Missouri from these questions. The only way for Skelton to be sure that parents don’t have to have these discussions with their children is for gays to not exist at all. That’s may be his ideal world, but it’s certainly not reality.

But let’s say the question comes up. Let’s say that some politically astute 7 year old asks his parents whether gay people should be allowed to serve in the army. And just for the sake of argument, I’m going to try to put myself in the character of a typical conservative, red-blooded, patriotic Christian parent from Missouri. This certainly isn’t the answer that I would give, but I think it’s an answer that would allow them to teach their kids true American values without impinging on the morality they’re trying to instill.

Kid: Daddy, why is it that they let gays in the Army? Doesn’t Jesus say it’s wrong?

MO Parent: Yes, son, that’s correct. But this is America. It’s a free country, and even though it’s not something we approve of, it’s not something that we can or should make illegal. Soldiers exist to protect freedoms, even some freedoms that we don’t approve of. There’s no reason that we should discriminate to stop gays from joining in the fight to protect those freedoms, is there? They may have to answer to God someday, but they shouldn’t have to answer to Washington.

Was that so hard?

Hat Tip: Kevin Drum

Modern Jurisprudence is PROFOUNDLY Broken

Two contrasting stories out of the Supreme Court today, that bring home the fact that jurisprudence in this country is profoundly… hopefully not irreparably… broken.

First, from the New York Times:

NO MORE LIFE SENTENCES FOR MINORS WHO HAVEN’T MURDERED…. In yet another 5-4 ruling, the Supreme Court said this morning that incarcerated minors can’t receive life sentences if they haven’t killed anyone.

By a 5-4 vote Monday, the court says the Constitution requires that young people serving life sentences must at least be considered for release.

The court ruled in the case of Terrance Graham, who was implicated in armed robberies when he was 16 and 17. Graham, now 22, is in prison in Florida, which holds more than 70 percent of juvenile defendants locked up for life for crimes other than homicide.

“The state has denied him any chance to later demonstrate that he is fit to rejoin society based solely on a nonhomicide crime that he committed while he was a child in the eyes of the law,” Justice Anthony Kennedy wrote in his majority opinion. “This the Eighth Amendment does not permit.”

The Eighth Amendment, of course, prohibits cruel and unusual punishments.

Justices Alito, Scalia, and Thomas dissented. Chief Justice John Roberts also sided with the minority, though he agreed with the majority on the specific case of Terrance Graham’s fate.

In Justice Kennedy’s majority ruling, he made note of the “global consensus” against life-sentences for youths who haven’t committed murder. The sentence will likely enrage the far-right, which tends to throw a fit when justices take note of international developments.

In a concurrence, Stevens, joined by Ginsburg and Sotomayor, threw an elbow at one of their colleagues: “While Justice Thomas would apparently not rule out a death sentence for a $50 theft by a 7-year-old … Court wisely rejects his static approach to the law. Standards of decency have evolved since 1980. They will never stop doing so.”

and in a complete reversal of logic, this judgement:

AP: High Court: ‘Sexually Dangerous’ Can Be Kept in Prison

WASHINGTON (May 17) — The Supreme Court ruled Monday that federal officials can indefinitely hold inmates considered “sexually dangerous” after their prison terms are complete.

The high court reversed a lower court decision that said Congress overstepped its authority in allowing indefinite detentions of considered “sexually dangerous.”

“The statute is a ‘necessary and proper’ means of exercising the federal authority that permits Congress to create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those imprisoned and to maintain the security of those who are not imprisoned by who may be affected by the federal imprisonment of others,” said Justice Stephen Breyer, writing the majority opinion.

President George W. Bush in 2006 signed the Adam Walsh Child Protection and Safety Act, which authorized the civil commitment of sexually dangerous federal inmates.

The act, named after the son of “America’s Most Wanted” television host John Walsh, was challenged by four men who served prison terms ranging from three to eight years for possession of child pornography or sexual abuse of a minor. Their confinement was supposed to end more than two years ago, but prison officials said there would be a risk of sexually violent conduct or child molestation if they were released.

A fifth man who also was part of the legal challenge was charged with child sex abuse, but declared incompetent to stand trial.

The 4th U.S. Circuit Court of Appeals in Richmond, Va., ruled last year that Congress overstepped its authority when it enacted a law allowing the government to hold indefinitely people who are considered “sexually dangerous.”

But “we conclude that the Constitution grants Congress legislative power sufficient to enact” this law, Breyer said.

Justice Clarence Thomas dissented, saying Congress can only pass laws that deal with the federal powers listed in the Constitution.

Nothing in the Constitution “expressly delegates to Congress the power to enact a civil commitment regime for sexually dangerous persons, nor does any other provision in the Constitution vest Congress or the other branches of the federal government with such a power,” Thomas said.

Thomas was joined in part on his dissent by Justice Antonin Scalia.

It seems clear to me, that both of these decisions are examples where justices are deciding a case based on what they want to do and finding a way to justify it, rather than a considered opinion of the law and the constitution.

In the first case, the majority came to what I believe is the right decision on constitutional ground, but for what appear to be the wrong reasons. The minority on the other hand are supporting an unconstitutional practice, based on pragmatic considerations.

In the second case, the majority supported a CLEARLY unconstitutional practice for pragmatic reasons; and the minority dissented based on the constitution.

Both cases however, highlight a major problem with our “justice system” today: We can’t deal effectively with our criminals, our prisoners, or our prisons.

There are many reasons for this of course, but what it comes down to, is that there are too many crimes, too many criminals, and too little honesty in how we deal with either.

Both of these cases are about recidivism. The plain fact is, more than 40% of people who go to prison, go back. More than 60% who go to prison for violent crimes go back. More than 80% who go to prison for sex crimes go back.

There have been a number of attempts at dealing with these difficult facts; none of them effective, and most of them unconstitutional.

In the case of the criminals under 18 being imprisoned for life because of sentence enhancements… The problem here isn’t that it’s a 17 year old in prison for life for something other than rape or murder… Its that “sentence enhancements” even exist at all.

Firstly, I think the whole “global consensus” thing is not only irrelevant, but dangerous and unconstitutional (interpretation of American law should ONLY be based on the Constitution, and the constitutions of the several states)

Yes, the law evolves, and yes it is influenced by changing moral standards, which is influenced by world culture.

When we wrote our constitution, it was in large part based on principles inherent in English common law; as was the early constitutional scholarship and interpretation until we built up our own body of case law. The goes further back to the greeks, romans, even the Assyrians. Certain basic principles of law and justice are universal; or have filtered up through from the earliest formalized conceptions of both rights, and laws.

However, it is important that case law be consistent with the written constitution; and that any case law which is not be ignored in interpretation of future cases, and hopefully be reversed.

If the American people want to change their constitutions, they can. There is a mechanism for that. Until they do, there should be no other arbiter for American law than the constitution.

One of the fundamental principles of jurisprudence is that the law should be knowable, and predictable; not arbitrary and capricious. One should not need to follow “evolving moral standards” and case law in other countries, to know whether one is violating the law.

In a system where ignorance of the law is no defense, the law must be written and knowable. The fact that in todays world it is not; is not an indication that we have evolved morally, it is an indication that modern jurisprudence is profoundly broken.

All that said however I agree that the law in question should have been struck down, just for a different reason.

I believe that “sentence enhancement” conditions are themselves a bad thing. They are invalid and unconstitutional as far as I am concerned. A crime is a crime, and one should be punished the same way for the same crime, as everyone else.

Certainly, there can be special circumstances, but they shouldn’t increase punishment; a maximum punishment should be set, and that’s it. There should be discretion for judges to reduce sentences, but not to increase them. Three strikes laws, hate crime enhancements, all of them need to go.

The problem that three strikes laws are intended to solve (high recidivism rates), is more properly addressed by longer or more harsh initial sentences, combined with better rehabilitation and reintegration efforts, and a better running of our penal system.

In the second case, we again have an issue of inappropriate sentencing.

Genuine sexual predators (rapists, molestors etc..) need to be put away for life without parole, or they need to die (though I have grave reservations about the death penalty). Either way, they need to be permanently removed from society.

For some reason, we treat sex crimes as far less serious than major property crimes, or other violent crimes; as if rape were not every bit as serious as attempted murder (believe me, it is).

Some things require ultimate sanction, and serious sex crimes are among those things.

On the other hand though, we now classify the most piddling things as sex crimes. Right now, we have hundreds of 18 and 19 year old young men in prison around this country, for having consensual sex with their 17 year old girlfriends (somehow, we almost never imprison older young women for sex with teenage boys). We make people register as sex offenders for having consensual sex in the back of their cars in a parking lot…

Which just reinforces the point: We’re broken both ways. We are far too harsh on one side, and far too lenient on the other; and just plain broken all the way around, because a sentence doesn’t mean what it says it means.

The very idea that a state official can simply decide you are too dangerous to be let out of prison, EVEN THOUGH YOUR JUDICIAL SENTENCE IS OVER… It’s disgusting. It’s abhorrent to the very nature of our country, and our constitution.

Three strikes laws, sentence enhancements, sex crime laws… All are seriously broke; because they are attempting to deal with practical problems, in an impossible way. You can’t achieve the goals they’re trying to achieve, with the techniques and tools they are using.

We’re broken. We need to fix it. We need to protect society from real criminals, real dangerous people, real evil people; and we need to provide a strong incentive for the “casual criminal” (and we are all “Casual Criminals” now). But we need to do it, without destroying what it means to be American.

In order to do this, we must first reduce our prison population, not by releasing the truly dangerous; but by DRAMATICALLY slashing the amount of people we imprison (both today, and in the future).

The first thing we need to acknowledge, is that the so called “war on drugs” has not only failed, but was wrongly conceived in the first place.

Imprisoning people for drug use simply does not achieve the goals it is intended to achieve. It doesn’t reduce drug use at all. It doesn’t reduce crime at all, in fact it increases it. It turns people who might otherwise be productive… or at least LESS of a drag on our society; into total dependents. It frequently makes them into “harder” criminals.

It just doesn’t work.

Frankly, I think we should entirely decriminalize drug use and possession; even if we choose to maintain prohibition on importation, sales, and distribution.

Then there is the question of the proliferation of felonies… Damn near everything is a felony these days. Two students in Virgina were charged with felonies last year for THROWING SNOW BALLS. Schoolchildren have been charge with felonies for drawing pictures with guns in them…

Felonies are supposed to be reserved for “high crimes”. Those things which must be punished by long term removal from society.

Does anyone really believe it is necessary to send someone to prison for two years, for serving hotdogs wrapped with bacon out of a cart (yes, that is a felony in several jurisdictions in this country).

The fact is, we classify far too many things as felonies, which simply should not be. We need to eliminate most of those felonies.

What it comes down to, is that we should reclassify most non-violent felonies as misdemeanors, and eliminate custodial sentences for them; substituting EXTREMELY HIGH fines, and supervised restricted release (ankle bracelets etc…).

Combined, that would reduce our prison population by more than three quarters immediately (the drug changes alone would cover 60%). This would allow us to deal with the remainder of that population more appropriately. More harshly for those who need it, and with a higher focus on rehabilitation for those who are willing to make the effort.

Importantly, it would allow us to eliminate early release for those who have not made serious and genuine rehabilitation efforts; allowing prison officials and judges to exercise discretion appropriately.

Perhaps when we no longer have to be so concerned about overcrowding, and inappropriate early releases, and imprisoning those who should not be; we can restore some sanity to the system as a whole.

But that’s all related to the practical issue.. The pragamatic justice as it were..

The bigger issue here, is that under todays conception of jurisprudence, it is impossible to know or understand whether you are breaking the law or not. Whether your crime is a felony or not. Exactly what that crime might be, or what the punishment for it might be.

That isn’t law, or justice; and it isn’t what our country is supposed to be.

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

Quote Of The Day

From Matt Welch, @ Reason:

I have also “knowingly employ[ed] an unauthorized alien,” and “intentionally employ[ed] unauthorized aliens” (or at least, I had a pretty good idea that the dudes in front of Home Depot had a non-trivial chance of being “unauthorized”). Speaking of which, “unauthorized” is my new favorite illegal/undocumented term of art.

“Unauthorized.”

I love it.

“Illegal” implies criminality, and as we all know, only unsavory characters break the law. Except for all the laws that we break daily — those don’t count. “Illegal” aliens are bad people, or they’d not be doing something illegal.

“Undocumented”, on the other hand, implies a paperwork snafu. Don’t worry, boss, we’ll get the contract signed once my secretary faxes it over. Gotta get the documents right, but we need to wait on the corporate signature-trail to come in line. Don’t worry, we’re all trying to get things done, but why wait on the paperwork when we need to make progress here?

But “unauthorized”?

No, nothing but “unauthorized” can correctly describe what we’ve got going on here. While “illegal” implies an impartial rule-making system under which we all fit, “authorized” implies an authority figure, an in-group, and an out-group. No term better signifies a society where your rights exist at the pleasure of the State, a society where you’d better fall in line, or your authorization might be terminated. An arbitrary and capricious regime who holds in its grasp the very ability to approve or deny your existence as an economic actor.

We’ve left the impersonal confines of appeal to law or appeal to process. Now we’re straight on to appeal to the king rule of men. You’d best make sure those men are your friends, not your enemies.

Peak Liberty

This is a post I wrote at my personal blog back in June 2005. I was reminded of it today, as many of the points Doug touched on in his post this morning were in the same vein as points I made back then, and after a search I was surprised that I’d never cross-posted the old post here. Even today, infringements on personal liberty such as the individual mandate are only making the situation worse, and the piece, while 5 years old, hasn’t lost its relevance. So here it is.

———————————————————

America has been, throughout the course of our history, a nation that values liberty. In 1787, at the time of the Constitutional Convention, liberty was on the brain. A Constitution was written to ensure that all people in this nation, for all time, would enjoy the blessings of freedom. Freedom from tyranny of government, which was ensured by the protections of a document that limited its powers and a Bill of Rights that enshrined personal liberty into its hallowed wording. And a nation whose freedom was guaranteed based upon the rule of law as written in that document, not the whims of an electorate or the legislature of the day.

There were flaws at that time, to be sure. The nature of our nation did not yet live up to that document’s billing. “Freedom to all” meant freedom to land-owning white males. Everyone else was out of luck. The work of millions of people helped to change that fact. The souls of hundreds of thousands of young men were lost in a war to bring freedom to the slaves, only to take another 100 years to bring true equality with the end of Jim Crow. Racial equality came to pass. Gender equality came to pass. Even today, these battles are still being fought for the rights of same-sex couples. Since the day this country was founded, you have seen the liberty of unpopular groups gain hold and reach parity with the rest. In a country that is based upon the right to be safe in unpopularity, the march of history has been remarkable to make that a reality.

But there’s another current at work. We are slowly seeing social liberty for all groups reach parity. Parity, however, can be equally great or equally poor. As unpopular groups have raised their level of acceptance and been granted the same rights as those of the popular, liberty has been defined down for all.

We have reached a point, socially, where government regulation intrudes on our lives and decisions from the time we wake until the time we retire, and all through our slumber. Rights, from what one can ingest into his body, be it benevolent medicine to malevolent narcotics, are decided by government. Free speech has survived, mostly, as long as you have a legal degree and training to comply with McCain-Feingold. The 2nd Amendment is still alive, and you’re allowed to own firearms, as long as you apply to the right bureaucrat to inform the government where to look for them. You have the freedom to practice religion, as long as you make sure not to do it anywhere approximating a “public” place. You have the right to be safe from unreasonable search and seizure, provided, of course, that you never visit the library. Seemingly innocuous laws such as the requirement to wear a seat belt in a car or a helmet on a motorcycle may be in your own best interest, but forcing such behavior is tyranny nonetheless.

Economic liberty, of course, has become a joke. It is almost unnecessary to even go into the details, but we must remember what we’re up against. The land of the founding fathers was one where government and business were more separate than religion and government are now. Starting with the anti-trust acts (probably before, of course), continuing through Wickard v. Filburn, through the Sarbanes-Oxley legislation of 2002, the government has a hand in regulation of every business in this nation. On the personal level, nearly every monetary transaction performed is taxed through a myriad of different local, state, and federal rules, you only own as much of your income as government allows, and likewise you only own as much of your property as government allows. You exist economically not as an individual, but as a servant of the state.

It is obvious, that as some personal liberties may be slowly advancing, many other liberties are quickly dying. So we ask ourselves, how did it get so bad? Can we turn it around? Jon asks in this comment at Dadahead whether we should start thinking of it as Peak Liberty. I.e. just like the extraction of oil from the ground might eventually hit a point where the increase in demand and limited supply lead to global catastrophe, have we reached a point of no return in our loss of liberty? Have we reached a point where our only options will be an eventual slide into tyranny, requiring nothing less than a bloody revolution to turn around? And if so, how do we know the “Peak”? Has it happened yet?

Then perhaps somewhere it peaked and we’ve been sliding downward, living on the backside of the bell curve for a while now. We’ve peaked and have entered liberty’s long emergency. As with peak oil, defining peak liberty might not be clear except in hindsight. Was it the Civil War? Was it Brown v. Board of Education? The Sherman Anti-Trust Act? The Civil Rights Act of 1964? Was it landing on the moon? ADA?

Or was it some act against democracy that defined the peak (Dred Scott? ERA fails? NAFTA?) Is protecting against “flag desecration” just one more drop out of a near empty tank? Does our ‘democracy’ function like our suburbs now, sprawling, messy and without some sense of direction other than growth?

It is a valid question. After all, we can look at the possible peaks. The Civil War, where slavery was ended but the concepts of federalism were greatly weakened and the federal government made more powerful? The 16th Amendment, where we first determined, as a nation, that the ability to keep ones income was a privilege, and the extent allowed was determined by the whim of government? The New Deal, where many people were helped, but where it was taken as fact that individuals were subservient to “society” and the government thereof? The sixties, where we reached our greatest heights in the civil rights movement, only to transition to the even more obtrusive welfare state of the Great Society, and the victim politics that arised? Or was it today, when our Supreme Court decided that private property rights no longer matter? Or has it not happened yet? Are we still on the upward trend (doubtful).

I can’t answer where the peak was, but it certainly seems like we’re on the downslope. Peak Liberty, as a theory, has some serious flaws. After all, liberty is not a finite resource. It is elastic, and greater liberty can be enjoyed by all. So no matter what happens, it can be reversed. It is certainly possible that an equilibrium point can be reached. It may be argued that Europe has reached that point, and only something as silly as a “European Union” can move them farther down the slope. But the effort and ease at which that reverse occurs depends greatly on what point of the downslope has been reached. If we act in time, we can defeat tyranny at the ballot box. But history has shown that people do not respond to the lack of liberty until it is too late. If the slide continues, the day will come where government will not tolerate our attempts to restrain it, and that government must be replaced, by any means necessary.

Peak Liberty, like Peak Oil, can happen. Each can also be avoided. Peak Oil, of course, is a completely different topic, so the aversion strategies are beyond the scope of this post. But to avoid Peak Liberty, it simply takes education. Oddly enough, our own government has provided us all the lesson plans we’ll ever need. Pissed off about Social Security? A failure of government. Pissed off about the inefficiencies of the IRS? Blame government. EPA declared your home “wetlands” and not letting you build that inground pool? Overreaching intrusion of government on your private property rights. Government educational system in your locale a morass of corruption, lack of discipline, excess of political correctness, and not doing a thing to educate your kids? Ask why we rely on government as the primary source of education in this country? And first and foremost, trumpet Kelo v. New London to everyone in earshot. People listen to what affects them personally. Nothing is more personal than the government seizing your house for what they determine is just compensation, only to turn it over to another private entity.

Peak Liberty, like Peak Oil, relies on current trends. We may have reached Peak Liberty, but by changing trends we can step back from the abyss. Our current populace cares about nothing but bread and circuses, and our current political crop is perfectly willing to erode their liberty while providing those diversions. We can change the trends, but to do that, we need to win the hearts and minds. We can’t change government without changing the minds of voters, so let’s get cracking. There may be dangerously little time left.

Quote Of The Day

Economist Donald Marron:

I often tell my students that, in my humble opinion, one purpose of government is to help people be happy. The DC government did a good job on Wednesday.

I disagree with that on so many levels. The government’s job is to secure people’s rights, and as Thomas Jefferson so eloquently said, one of those inalienable rights is the pursuit of happiness. But we cannot move from a government built to secure negative rights to one built to fulfill positive rights just by wishing it so.

But this is one of those special cases where the government got it right. The government, through bigoted discrimination, was actively denying some citizens of their right to pursue happiness as they see fit. In this case, they did help people be happy, by getting out of the way.

Hat Tip: Ezra Klein

Sanctify This

In the “call their bluff” department, a California man is trying to protect the sanctity of marriage — by banning divorce:

Til death do us part? The vow would really hold true in California if a Sacramento Web designer gets his way.

In a movement that seems ripped from the pages of Comedy Channel writers, John Marcotte wants to put a measure on the ballot next year to ban divorce in California.

The effort is meant to be a satirical statement after California voters outlawed gay marriage in 2008, largely on the argument that a ban is needed to protect the sanctity of traditional marriage. If that’s the case, then Marcotte reasons voters should have no problem banning divorce.

“Since California has decided to protect traditional marriage, I think it would be hypocritical of us not to sacrifice some of our own rights to protect traditional marriage even more,” the 38-year-old married father of two said.

And for a little 2nd round of “Quote of the Day”:

he led a “ban divorce” rally recently at the state Capitol in Sacramento to launch his effort and was pleasantly surprised at the turnout. About 50 people showed up, some holding signs that read, “You too can vote to take away civil rights from someone.”

Ahh, yes, the wonder of democracy. All is well, as long as you’re part of the in-crowd (defined as “50%+1″).

Now, it goes without saying that when it comes to marriage law, I’m of the belief that government should be out of the marriage business. Separate the religious and the civil aspects of it. But if government’s going to enforce the contract, it has to open it to both gays and to polygamists. Not doing so is just blatant discrimination.

I’d love to see this actually hit the ballot, if for no other reason than to prove that this is about discrimination, not about “protecting the sanctity” of a contract that currently has a 50% failure rate.

Hat Tip: Popehat

Civil Unions In Illinois

My best friend of 29 of the 31 years I’ve been aboard this rock is a work-in-progress. I think he currently falls far too close to the “bleeding-heart-liberal” mindset, but he’s smart enough to eventually make the transition to “steely-eyed pragmatic libertarian”. He sent this along to me, and asked me to pass it along to like-minded folks in Illinois, where we both grew up.

Yo,

State Representative Greg Harris had indicated he will call the civil union bill for a vote during this October’s veto session. Contact your legislator again and urge them to support the Illinois Religious Freedom and Civil Union Act.

Click here for a super-easy way to contact your state representative–> http://action.aclu.org/ilcivilunion

Thanks,
-Mark

I’m not sure the legislation goes far enough, as this is in the initial test:

Provides that 2 persons may form a civil union if they: are not related by adoption or blood in any manner that would bar a civil union; are not in another civil union or marriage with any other living person; and are not under 18 years of age.

I asked my friend whether it was just his DuPage County right-wing upbringing that wants to limit civil unions to only two participants, and I’m still waiting on the response to that one. Until the bleeding-hearts get behind polyamorous civil unions, I don’t consider them to be intellectually consistent.

But for those of you in my old home of Chicago, after you shovel a deep dish pizza into your face (oh, how I miss Pizzeria Uno!) and watch Jay Cutler implode like every Bears QB in the last 20 years, write to your representative and see if you can do a little good in your state. After all, you don’t want to fall behind Iowa, do you?

It’s Time to Impeach Obama

It’s time to impeach Obama; indict him, and his entire administration, for fraud, coercion, extortion, influence peddling, and grand theft under the color of law, amongst hundreds of other charges.

It is not simply the auto issue; but that is currently the most visible.

This is no hyperbole. I am not simply spouting off. I believe, and will from this point forward, work to see, Barack Obama impeached, charged, indicted, tried, and imprisoned, for the crimes he and his cronies have committed against this nation, and its people.

Also, let me make this clear: This is NOT about politics, or at least not about political ideology. I believe that everyone, left, right, libertarian, or indifferent to ideology; should see what Obama and his administration are doing, and understand the damage it is doing, and will do, to this country.

We cannot allow our nation to become a nation of men. We MUST remain a nation of laws.

At this point, Obama, and his administration, aren’t even bothering to PRETEND to obey the law, or the constitution. They have embarked on a campaign of theft and fraud never seen before in the history of man kind; knowing that they had the full cover of the media protecting them, a friendly congress, and a co-operative judiciary.

They are in clear violation of the constitution, and hundreds if not thousands, of state and federal laws; blatantly and knowingly flouting them in fact, because, in Obamas words, “We won”.

Well, I’m sorry sir, for now at least, we are still a nation of laws; and you must be brought to account.

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

Sonia Sotomayor: Endorsed by The Badge Worshippers and Law Enforcement Bootlickers of America

Those who are of the badge worshipping and law enforcement bootlicking persuasion might assume that Judge Sonia Sotomayor may not have much to offer them as a Supreme Court Justice until they take a look at her record on the 2nd Circuit. As it turns out, Sotomayor has quite an authoritarian streak. It seems that when the powers that be are challenged by an ordinary individual, Sotomayor’s empathy seems to be with those who are employed by the government (and the facts of the circumstance be damned!).

Emily Bazelon writing for Slate warns those who are inclined to support Obama’s nominee: “Liberals, be careful what you wish for.”

The case which concerns Bazelon following her warning in Jocks v. Tavernier illustrates Sotomayor’s badge worshipping tendencies.

The story leading up to Jocks v. Tavernier begins in 1994 with truck driver Thomas Jocks’ truck breaking down on the Long Island Expressway. When the truck came to a stop, the end of his trailer was about 4 feet into the right lane. Trying to be a safe, responsible, and law abiding citizen, Jocks places safety flares as required to warn other drivers and walks nearly a mile to a gas station to find a pay phone* to call 911 about the unsafe situation. Upon arriving at the gas station, Jocks encounters Augusto Tavernier using the pay phone from inside his car.

Bazelon writes [emphasis mine]:

Jocks gave the following account of what happened next: He ran up and told Tavernier there was an emergency because his truck was jutting out onto the expressway. Tavernier told him to find another phone. Jocks repeated the emergency part of his story. Tavernier swore at him. Jocks knocked on his windshield and kept urging him to give him the phone. Finally, Jocks went into the phone stand and hung up on Tavernier’s call. At that point, Jocks said, Tavernier threw the receiver at him, tried to get out of his car, couldn’t because the phone stand was blocking his door, and drove forward. Jocks dialed 911. Tavernier charged him, yelling. Jocks yelled back. Tavernier said, “Why don’t I blow your fucking brains out?” and drew his gun. He pressed the gun into the back of Jocks’ head, and said, “Freeze, police”; and then an off-duty Nassau County police officer arrived, got the situation under control, and arrested Jocks.

Tavernier, too, proved to be an off-duty cop. After his arrest, Jocks was held for 24 hours and ended up having to make 28 court appearances before he was found not guilty of felony assault. He spent $20,000 on legal fees, lost his truck driving job, and had to give up full custody of his daughter, who went to live with her mother, his ex-wife. That dire, black moment on the LIE truly cost him.

Though Jocks was found not guilty of felony assault, much damage had been done. He still was out $20,000, his job, and custody of his daughter. Understandably, he wanted to be compensated for these very real damages. Jocks sued Tavernier and the detective who booked him for false arrest and malicious prosecution. The jury agreed and ordered Tavernier and the detective to pay damages of $600,000; the parties at fault successfully appealed to the 2nd Circuit.

Enter Judge Sotomayor – Bazelon continues:

The judges on the panel for the U.S. Court of Appeals for the 2nd Circuit were Sotomayor; Pierre Leval, a Clinton appointee; and John Walker Jr., appointed by President George Herbert Walker Bush […]

Walker wrote an opinion affirming the jury verdict, 2-1. But the drafting took a long time, and when a draft was finally circulated, Sotomayor responded to it by arguing that the grounds for a reasonable arrest are broad. As an off-duty cop who’d been hit in the face with a phone after an altercation, she argued, Tavernier was justified in making the arrest as a matter of law. That meant throwing out the jury verdict. Walker could not get her to change her mind. Instead, Leval decided he was persuaded by Sotomayor’s argument about how broad the grounds for making an arrest can be and switched sides. Finally, Walker gave up and switched, too. His written opinion throws one bone to Jocks by leaving open the possibility of a new trial based on one narrow argument (that he acted in self-defense when he threw the phone). But throwing out the $600,000-plus jury award was a huge blow to the plaintiff. The case was retried in 2007, and Jocks lost, based on the more constraining jury instructions that the trial judge gave because of the 2nd Circuit ruling.

Hold the damn phone** for a minute! In Sotomayor’s world view, even off duty police officers are given more standing, more benefit of the doubt***, and yes, more empathy than the rest of us? Whatever happened to “equal justice under law,” the very words engraved on the very U.S. Supreme Court building she intends work in?

If we want Judges and Justices to decide matters of law with empathy rather than the law and the facts, this is exactly the kind of “justice” we should come to expect.

But never mind that. The important thing is that we have a Supreme Court Justice who is a woman, Latina, and has “life experiences” that the rest of us couldn’t possibly understand!

» Read more

Does Sonia Sotomayor Believe that Some Individuals are More Equal than Others?

Perhaps we could chalk up President Obama’s SCOTUS nominee Sonia Sotomayor’s racially charged statement as a Bidenesque blunder if she had not made rulings as a judge which suggests that she does believe that some individuals are more equal than others. Ricci v. DeStefano is a case-in-point. Sotomayor joined the Second Circuit’s majority which concluded that Frank Ricci (a dyslexic white male) was not a victim of discrimination by the City of New Haven.

From Ricci v. DeStefano, UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

“We affirm, substantially for the reasons stated in the thorough, thoughtful, and well-reasoned opinion of the court below. In this case, the Civil Service Board found itself in the unfortunate position of having no good alternatives. We are not unsympathetic to the plaintiffs’ expression of frustration. Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear to have resulted in his scoring highly on one of the exams, only to have it invalidated. But it simply does not follow that he has a viable Title VII claim. To the contrary, because the Board, in refusing to validate the exams, was simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact, its actions were protected.”

Dissenting Judge Jose A. Cabranes (appointed by President Bill Clinton for what its worth) criticized the majority for failing to address the complex legal issues surrounding racial quotas in a meaningful way stating that the issues raised by Ricci were “far from well-settled.”

So where does this leave Sotomayor on Obama’s empathy test? Where is her empathy for a man, Mr. Ricci, who overcame his disabilities to pass the test which others (who did not have a disability) failed? Might Sotomayor ruled differently if the races were reversed? These are questions which deserve serious answers.

Fortunately for Mr. Ricci, his case will be decided by a Supreme Court which does not include Sonia Sotomayor among the Justices.

Quote of the Day: Empathy vs. The Rule of Law

President Obama says that he wants to nominate a Supreme Court Justice who has “empathy” as opposed to a jurist who makes decisions based on “some abstract legal theory.” Not surprisingly, I’m not the only one troubled by his selection criteria. Thomas Sowell has written an excellent 3 part series “Empathy” Versus Law” (Part 1, Part 2, Part 3).

Of all of the many quotable passages to choose from, I think this one captures the main point of why we should be concerned:

That President Obama has made “empathy” with certain groups one of his criteria for choosing a Supreme Court nominee is a dangerous sign of how much further the Supreme Court may be pushed away from the rule of law and toward even more arbitrary judicial edicts to advance the agenda of the left and set it in legal concrete, immune from the democratic process.

Would you want to go into court to appear before a judge with “empathy” for groups A, B and C, if you were a member of groups X, Y or Z? Nothing could be further from the rule of law. That would be bad news, even in a traffic court, much less in a court that has the last word on your rights under the Constitution of the United States.

Appoint enough Supreme Court justices with “empathy” for particular groups and you would have, for all practical purposes, repealed the 14th Amendment, which guarantees “equal protection of the laws” for all Americans.

The Constitution really DOES mean what is says

This morning, the 9th circuit court of appeals confirmed that the 2nd amendment is indeed incorporated against the states under the selective incorporation doctrine, in the case Nordyke Vs. King.

This means that the 2nd amendment has a lawful status equivalent to that of the first, fourth, fifth, and other amendments which explicitly protect our fundamental rights.

Of course, that is only lawfully binding within the 9th circuit; but it is expected that other circuits will take judicial notice of the 9ths ruling.

If you aren’t familiar with the Nordyke Vs. King; this is the case where a gunshow operator was denied access to use country fairgrounds for their gunshows, because a county ordnance prevented the possession of firearms on county property by anyone other than law enforcement.

The facts of the case as presented to the court are as follows (emphasis in bold and red are mine):

Russell and Sallie Nordyke operate a business that promotes gun shows throughout California. A typical gun show involves the display and sale of thousands of firearms, generally ranging from pistols to rifles. Since 1991, they have publicized numerous shows across the state, including at the public fairgrounds in Alameda County.

Before the County passed the law at issue in this appeal, the Alameda gun shows
routinely drew about 4,000 people. The parties agree that nothing violent or illegal happened at those events.

In the summer of 1999, the County Board of Supervisors, a legislative body, passed Ordinance No. 0-2000-22 (“the Ordinance”), codified at Alameda County General Ordinance Code (“Alameda Code”) section 9.12.120.

The Ordinance makes it a misdemeanor to bring onto or to possess a firearm
or ammunition on County property. Alameda Code § 9.12.120(b).

It does not mention gun shows.

According to the County, the Board passed the Ordinance in response to a shooting that occurred the previous summer at the fairgrounds during the annual County Fair.

The Ordinance begins with findings that “gunshot fatalities are of epidemic
proportions in Alameda County.”

At a press conference, the author of the Ordinance, Supervisor Mary King, cited a “rash of gun-related violence” in the same year as the fairground shooting. She was referring to a series of school shootings that attracted national attention in the late
1990s, the most notorious of which occurred at Columbine High School in Littleton, Colorado.

But the Nordykes insist that something more sinister was afoot. They point to some of King’s other statements as evidence that she actually intended to drive the gun shows out of Alameda County.

Shortly before proposing the Ordinance, King sent a memorandum to the County Counsel asking him to research “the most appropriate way” she might “prohibit the gun shows” on County property.

King declared she had “been trying to get rid of gun shows on Country property” for “about three years,” but she had “gotten the run around from spineless people hiding behind the constitution, and been attacked by aggressive gun toting mobs on right wing talk radio.”

At her press conference, King also said that the County should not “provide a place for people to display guns for worship as deities for the collectors who treat them as
icons of patriotism.”

Without expressing any opinion about King’s remarks, the Board of Supervisors adopted the Ordinance. County officials then exchanged several letters with the
Nordykes.

The General Manager of the fairgrounds asked the Nordykes to submit a written plan to explain how their next gun show would comply with the Ordinance.

As the County Counsel had told the General Manager, the Ordinance did not
expressly prohibit gun shows or the sale of firearms.

An aside from the the blog author: This is in fact a false statement. California statute in conjunction with federal law (i.e. the sum total of requirements imposed by both sets of statutes combined; not each set individually), requires that firearms transfers occur face to face, through an FFL; that the FFL conduct a background check and in person identity verification of the person they are delivering the weapon to at the time of sale, AND at the time of delivery if those times are separate; and that the sale be conducted at the FFLs place of business, an organized gun show, or a licensed auction.

Effectively, the only way they could conduct a gun show, would be to have pictures of guns available, at which time prospective gun purchasers could arrange to meet the FFL later at their place of business to purchase a firearm. It would not even be lawful to explicitly arrange for a sale at the show and then complete the transaction later.

The county counsel knew, or should have known, that this was the case.

The Nordykes insisted then and maintain now that they cannot hold a gun show without guns; perhaps because they thought it futile, they never submitted a plan.

During the same period, representatives of the Scottish Caledonian Games (“the Scottish Games”) inquired about the effect of the new law on the activities they traditionally held on the fairgrounds. Those activities include reenactments, using period firearms loaded with blank ammunition, of historic battles.

After the inquiries, the County amended the Ordinance to add several exceptions. Importantly, the Ordinance no longer applies to [t]he possession of a firearm by an authorized participant in a motion picture, television, video, dance, or theatrical production or event, when the participant lawfully uses the firearm as part of that production or event, provided that when such firearm is not in the actual possession of the authorized participant, it is secured to prevent unauthorized use.

This exception allows members of the Scottish Games to reenact historic battles if they secure their weapons, but it is unclear whether the County
created the exception just for them.

By the time the County had written this exception into the Ordinance, the Nordykes and several patrons of and exhibitors at the gun shows (collectively, “the Nordykes”) had already sued the County and its Supervisors under 42 U.S.C. § 1983 for various constitutional violations. The amendment did not mollify them, and their lawsuit has wended through various procedural twists and turns for nearly a decade.

I just want to highlight again one particular passage:

King declared she had “been trying to get rid of gun shows on Country property” for “about three years,” but she had “gotten the run around from spineless people hiding behind the constitution, and been attacked by aggressive gun toting mobs on right wing talk radio.”

At her press conference, King also said that the County should not “provide a place for people to display guns for worship as deities for the collectors who treat them as icons of patriotism.”

Disgusting.

Unfortunately the result here is mixed. The circuit has ruled that the 2nd is incorporated against the states; but that it did not overturn the statute in question… I’m not really sure I agree with or follow their reasoning on this one.

The ruling provides that the second amendment is explicitly incorporated against the states, in plain language:

We therefore conclude that the right to keep and bear arms is “deeply rooted in this Nation’s history and tradition.”

Colonial revolutionaries, the Founders, and a host of commentators and lawmakers living during the first one hundred years of the Republic all insisted on the fundamental nature of the right.

It has long been regarded as the “true palladium of liberty.” Colonists relied on it to assert and to win their independence, and the victorious Union sought to prevent a
recalcitrant South from abridging it less than a century later.

The crucial role this deeply rooted right has played in our birth and history compels us to recognize that it is indeed fundamental, that it is necessary to the Anglo-American conception of ordered liberty that we have inherited.

We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments.

There could not be a better, and more unambiguous, declaration of right than this.

What is puzzling to me is how they decided that the county ordnance did not then violate the second amendment.

Yes, they make clear that laws which make exercising fundamental rights more difficult do not automatically infringe upon them (from a legal standpoint); but it seems to me this is a clear cut case of a local government, promulgating a complete ban on the possession of firearms on land controlled by that local government.

Such a ban should be clearly unconstitutional under this analysis.

It would be like saying free speech did not apply on county property, which IS clearly prohibited. Yes, there can be reasonable restrictions, but total prohibition should be right out.

Given the relative weakness of argument supporting the ordnance, and complete lack of precedential support, I can only conclude they were desperately hunting for a reason not to invalidate ALL gun control legislation in one stroke.

Now, the real question, is whether either party is going to continue appealing, and file a petition for certiorari before the supreme court.

Both parties have grounds, and standing to file; and both parties have both incentive and disincentive to do so.

If they do, and the court decides to take it, it would be the second most significant second amendment case ever, after Heller (Heller clearly supersedes Miller, and is therefore more significant)

By the by, if you read the whole ruling (and I recommend you do) there is some extensive discussion of Cruikshank, Presser, and Slaughterhouse. I believe that Heller provided an explicit foundation for all three to be overturned (at least partially).

Actually I believe that proper jurisprudence suggests they should be overturned as having had no facial validity in their initial rulings, being clearly against the principals engendered in the constitution; but Heller gives a precedential foundation for this).

Although I’m generally not a big fan of Hugo Black; I think he had the right concept on the 14th amendment. In fact, I believe it should have been clear without the fourteenth amendment, and merely through the supremacy clause that ALL elements of the constitution as directly related to the people and the protection of our rights (as opposed to the structural components of the constitution) applied to the states.

Also contained therein, is an analysis of the right to keep and bear arms as a fundamental individual right, and commonlaw right from before the founding of this nation through the passage of the 14th amendment and beyond; including a discussion of the racist nature of gun control.

The footnotes and citations too contain a wealth of information, this lovely nugget being my favorite:

we do not measure the protection the Constitution affords a right by the values of our own times. If contemporary desuetude sufficed to read rights out of the Constitution, then there would be little benefit to a written statement of them. Some may disagree with the decision of the Founders to enshrine a given right in the Constitution. If so, then the people can amend the document. But such amendments are not for the courts to ordain.

In all, the incorporation portion of the ruling and opinion are so well researched, and reasoned, in such depth; that I cannot see how a credible argument could successfully be made against it, given an honest arbiter.

Conversely, the section (only a few paragraphs of a 40 page ruling) arguing that the ordinance did not violate the second amendment was so poorly argued that I can’t see how a successful argument COULD NOT be made against it, given an honest arbiter.

So I say, Alameda County, PLEASE appeal this to the supreme court on incorporation grounds; and to the Nordykes, please appeal the decision to uphold the law.

Thanks ever so much.

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

I WILL NOT OBEY

As I have said here before, I am a senior technical executive at a large bank.

As it happens, a bank that was forced at gunpoint, by the secretary of the treasury and chairman of the federal reserve, to accept TARP funds (as all the top surviving banks in the U.S were).

Let me be clear: We did not want TARP funds, or need them; but we, and all the other major banks, were told in no uncertain terms that we WOULD take them.

As obscene as that is, it is irrelevant to what follows; excepting that we did take TARP funds.

The United States House of Representatives recently passed a blatantly unconstitutional bill, placing confiscatory tax burdens on anyone making more than $250,000 and working for an institution that received more than 5 billion of TARP funds.

The bill was in theory specifically addressed at the false outrage over retention bonuses paid to AIG executives; and is targeted only to their bonuses.

In theory.

Of course, this would be an unconstitutional bill of attainder, which wouldn’t pass even the most cursory constitutional challenge; so it was re-written to be broader.

Broader of course means more people would be affected, and congress would be given more power to steal more money.

In fact, if you read into the implications of the bill; it could be used to levy a 90% tax on any income over $250,000, earned by any family making more than $250,000 per year, where either spouse is employed by an institution that received federal “bailout” funds.

It appears that the Senate, and the Obama administration are cold on the bill and that it will not pass, or be signed into law if it did.

I do not earn that much money; nor do my wife and I earn that much together (though in the next few years it is entirely possible that we will).

However, I have something important to say.

If congress should pass any such bill, and the president sign any such law, I WILL NOT OBEY IT.

I will not allow congress to tell me how much I can earn. I will not allow them to take my income because of the actions of others. If they attempt to make me do so by force, I will resist with force.

I will most likely die in the process, which I regret; but at some point a line must be drawn. The constitution must be respected, or it is meaningless.

Congress can make no law that is unconstitutional on it’s face. If such a law be passed, it is the duty of the president to repudiate it; and it must not be signed. If such a law is signed, it is the duty of the agents of the government to refuse to enforce it. If the agents of the state attempt to enforce it, then they must be resisted with force, at all costs.

Anything less is submission to tyranny, and the diminution of citizens, to subjects; or worse.

I have made clear in the past that I would resist police abuse of the constitution. I will resist congresses abuses no less. I will resist the presidents abuses no less.

Agents of the state cannot exceed the legitimate authority of the state. When they do so, they are criminals, and they must be resisted as criminals.

Normally I do not advertise where my lines are; but congress is now in the midst of a tantrum of self indulgence, overconfidence, and hubris not seen since reconstruction.

Nancy Pelosi, Harry Reid, and Barack Obama, are pushing our nation headlong into tyranny and ruin; and decrying those who resist as racists, or reactionaries; simply for not wanting to be serfs.

I would suggest that we petition for the impeachment and prosecution (for conspiracy to deprive every resident of the United States of their civil rights) of any congressman who voted for such a bill; but I know it would do no good.

Government must be made to understand, WE WILL NOT TOLERATE SUCH ABUSE.

We will resist.

We will revolt.

We will not be made subjects, serfs, or slaves.

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

Pre-Law Student Suggests State Of California Divorce Marriage Licensing

Language matters. When you call a gigantic pork sandwich a “stimulus”, it becomes a very difficult thing to oppose. When your version of “campaign finance reform” is a big slap in the face of free speech and only increases the ability for moneyed interests to protect their incumbent investments, it is still seen by the majority of Americans as a positive “reform”.

Marriage is a religious concept. Contract is a state concept. To give the name “marriage” to what you get from a church and simultaneously define it as a civil contract, you open the door to very bitter disputes. Few but the extreme bigots in society would suggest that gays not be allowed to enter into civil contracts. But as we saw here in California last year, a majority said they shouldn’t get married. I’ve said that we should do away with civil “marriage” entirely, and use a different term to reduce double meaning.

Two students from SoCal agree, and they’ve decided to do something about it:

Ali Shams, a senior at the University of California-San Diego, was watching a soccer game with a bunch of buddies when his phone started ringing Tuesday, and refused to stop.

Surprising even the 22-year-old pre-law student, his personal project during Christmas break — framing a constitutional amendment initiative to replace the word “marriage” with “domestic partnership” under state law — was cleared by Secretary of State Debra Bowen to gather petition signatures for a potential statewide ballot.

Fox News, NBC, The Associated Press and many of the state’s largest newspapers were on the phone wanting to discuss the unusual initiative launched by Shams and his friend Kaelan Housewright, a 21-year-old senior at the California Institute of the Arts. More to the point was Queerty.com, a gay issues blog which marveled: “Straight Dudes File California Gay Marriage Ballot Initiative.”

The measure would overturn Proposition 8’s ban on same-sex marriage, and have California treat all unions — opposite-sex or same-sex — as domestic partnerships. It would also allow churches, synagogues and mosques to decide whom they want to marry in a social, rather than civil, ceremony.

The domestic partnership initiative might be an extreme long shot to pass — or even make it to the ballot. In what may be a first, the warring sides in the Proposition 8 campaign agree on something — they both hate the idea.

That’s always good. When two bitter rivals are presented with a way to stop fighting, they often hate the idea. Perhaps they’ll come around. It’s difficult to accept the idea that this dispute is largely over a single word rather than a much more important concept, but language matters.

What does this accomplish to truly end this dispute?

“We’re not banning marriage. We’re protecting fundamental rights for minorities and protecting the religious definition of marriage for” religious groups, Shams said.

As I’ve said before, those who are truly concerned about the sanctity of marriage should keep it in church, where it belongs. Let the legal system do what it is designed to do, arbitrate and enforce contracts. Once separated, the issue becomes much easier to argue — and you can see the motives of those for and those against much more clearly.

This, of course, doesn’t mean I think this will pass — but I hope it gets discussed enough to open a few minds.

Hat Tip: Co-contributor Doug @ Below The Beltway

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