The 14th Amendment

On February 8, 1861 the seven Southern States announced their secession from the Union they had pledged to join under the Constitution which included Article 1 Section 2; and a 3/5 of a person rule as far as slaves were concerned. This gave the more rural Southern states representation based on a population that included many slaves; whose votes went to their owners under the 3/5 provision. This was of course changed by the 14^th Amendment in 1869.

The South violated the Constitution in seceding from the Union by claiming a Right under the 10^th Amendment; which gives the States rights over certain issues; or powers; not relegated to the Federal Government. It sounds nice; but seceding violated Article 1 Section 4 which prohibits states from leaving the Union.

The 14^th Amendment was, however, enacted under strange circumstances as the South was just getting back on its feet and re-establishing their state legislatures. North Carolina and South Carolina were the last 2 states to ratify the 14^th Amendment, and only did so under duress. The 39^th Congress made it mandatory for the states to ratify the Amendment as a condition of rejoining the Union. There are parts of the South where Amendment 14 is openly despised, and there has even been talk of trying to abolish it by Amendment, in much the same way as Prohibition; the 18^th Amendment; was later repealed by the 21^st Amendment.

This may sound far-fetched, but it’s really not. The crux of the argument for repeal would be that the states have a right under Article 1, Section 4; which gives the states the right to proscribe the time, place and manner in which to hold elections. That argument would hold that the state legislatures of the South; particularly North Carolina and South Carolina; were mandated to approve the 14th Amendment as a condition to re-join the Union. But a closer inspection of the text reveals that though they have that right, Congress may change or alter that law except for the choosing of Senators. Still, it would be a messy battle with much at stake.

As time went on the 14^th Amendment became the “go to place” to fit in every perceived “right” which Americans wanted to include. Although I am in agreement with the issues at hand, I also think the 14^th Amendment has become so overburdened that should it ever be repealed or amended it would affect many areas of our society. The 14^th Amendment has become the easy path for expanding rights in all sorts of instances.

This sort of overburdening was not begun until after Women’s Suffrage; the 19^th Amendment; which could have been added to the 15^th Amendment giving the right to Vote to all men of any race. The problem with that would have been the ensuing call for universal suffrage at a time when black men were still routinely barred from voting in the Southern states. The implication of the 19^th Amendment was that it had nothing to do with the precedent set up by the 15h Amendment. In other words; blacks were still not going to be able to vote. This is one of the instances in which bundling like-minded legislation would have resulted in a positive change.

Civil Rights and the Voting Rights Act both have their underpinnings in the 14^th Amendment, and these protections should have been tacked onto that Amendment; making it stronger.

But the 14th Amendment now holds the Miranda Decision; which should have been founded under the 5th Amendment; the right to have due process; which would include an attorney and the right to remain silent.

Abortion and Same Sex Marriage are both rights which should have been held to exist under the 9^th Amendment; “the enumeration of certain rights, shall not be construed to deny or disparage others retained by the people.”

This may all seem to be unimportant; and perhaps it is just a “parlor game” which I like to play when I have nothing better to do. But think of it this way; you’re mailing all of your valuables to a new home. Do you put them all in one envelope, or do you break it up into several packages so that you don’t lose it all in one shot? To put it more simply; you just don’t put all your eggs in one basket. This is especially true when there are other baskets lying around, waiting to be used.

Indiana Religious Freedom Law - Why it's Different

It all started with Peyote. In 1993 Bill Clinton signed the Federal Religious Freedom Act to allow the Indians to use peyote in their religious ceremonies. Of course when the Rasta’s in Florida wanted their religious rights upheld to smoke marijuana in deference to their God, Ja, they were refused; but it all started with the peyote.

By 1998 it was becoming sort of a fashion to champion state laws protecting Religious Freedom; and as usual we now have a patchwork quilt of laws in different states; all of which are keeping the attorney’s very busy. Now, this past week, we have the Indiana law weighing in; supposedly in the name of religious freedom; and at this writing the Governor is demanding clarification of the law’s provisions to ensure his state is “gay friendly.”  It’s a shame that the reason he caved in was due to public pressure and not sound law; which the bill was not to begin with. We’ll get to that.

But first, why was this bill received by the public with such an immediate and decisive response? What’s different in this bill that is different from the 1993 Federal law; as well as the 2 dozen other states which have Religious Freedom Acts on the books?

Well, the first thing which struck me when I read it; I actually do that; was that Section 5, which purports to grant rights to Religious groups, actually makes it legal for an OPINION to be a valid reason to deny someone else the right to service.

The law takes great pains to define certain words in the bill; but nowhere does it define the term Religion; leaving the door open for an inability to determine anything in court. Under such vaguely written statute an opinion can be construed as a religion. This would actually make the Rasta’s quite happy, as they ritually; or religiously; smoke weed. It’s not just about wedding cakes. It works both ways, you see.

Additionally, this was the first law of its kind to target individuals as opposed to businesses. Section 11 of the bill actually abrogates your right as an individual to bring suit against an employer; thus making the State both the Legislature and the Judiciary. This is something we don’t do in America. The principles of Separation of Powers; and Conflict of Interests; is the backbone of Democratic Republican form of government.

I love using those two words together. It confuses some people. And it also shows the true divisive nature of our two party system. The very titles of the two parties immediately divide the populace. Democratic Party implies a Populace form of government; where the majority rules. That is not the case here. And the Republican Party smacks of nobility and privilege. Together the two keep us all at odds, and themselves in power.

The most common example in this whole Indiana thing has been the Baker. The Baker has rights. So do his customers. But the law says the Baker can’t discriminate against specific groups of people; in this case Gay and Lesbian couples. But the Bakery itself has rights which are only related to its operation. The Baker may choose to disassociate with Gays in his personal life; but as a Bakery, he is bound by Federal Law to serve all people. It’s very simple.

But here comes yet another Conservative politician; who all agree we have too many laws; passing another useless, and flawed law. So flawed, in fact, that at this writing the Governor of Indiana is demanding the Legislature rewrite the law to make  sure it is gay friendly by this Friday. We shall see.

Here is the link to the original 1993 Federal Law;

http://en.wikipedia.org/wiki/Religious_Freedom_Restoration_Act   

And here is the full text of Indiana’s “religious freedom” law. See if you can spot the difference and pay attention to Sections 5 and 11.

SENATE ENROLLED ACT No. 101

AN ACT to amend the Indiana Code concerning civil procedure.

Be it enacted by the General Assembly of the State of Indiana:

SECTION1.IC34-13-9 IS ADDED TO THE INDIANA CODE AS A NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2015]:

Chapter 9. Religious Freedom Restoration

Sec. 1. This chapter applies to all governmental entity statutes, ordinances, resolutions, executive or administrative orders, regulations, customs, and usages, including the implementation or application thereof, regardless of whether they were enacted, adopted, or initiated before, on, or after July 1, 2015.

Sec. 2. A governmental entity statute, ordinance, resolution, executive or administrative order, regulation, custom, or usage may not be construed to be exempt from the application of this chapter unless a state statute expressly exempts the statute, ordinance, resolution, executive or administrative order, regulation, custom, or usage from the application of this chapter by citation to this chapter.

Sec. 3. (a) The following definitions apply throughout this section: (1) "Establishment Clause" refers to the part of the First Amendment of the Constitution of the United States or the Constitution of the State of Indiana prohibiting laws respecting the establishment of religion. (2) "Granting", used with respect to government funding, benefits, or exemptions, does not include the denial of government funding, benefits, or exemptions. (b) This chapter may not be construed to affect, interpret, or in any way address the Establishment Clause. (c) Granting government funding, benefits, or exemptions, to the extent permissible under the Establishment Clause, does not constitute a violation of this chapter.

Sec. 4. As used in this chapter, "demonstrates"means meets the burdens of going forward with the evidence and of persuasion.

Sec. 5. As used in this chapter, "exercise of religion" includes any exercise of religion,whether or not compelled by, or central to, a system of religious belief.

Sec. 6. As used in this chapter, "governmental entity" includes the whole or any part of a branch, department, agency, instrumentality, official, or other individual or entity acting under color of law of any of the following: (1) State government. (2) A political subdivision (as defined in IC 36-1-2-13). (3) An instrumentality of a governmental entity described in subdivision(1) or (2), including a state educational institution, a body politic, a body corporate and politic, or any other similar entity established by law.

Sec. 7. As used in this chapter, "person" includes the following: (1) An individual. (2) An organization, a religious society, a church, a body of communicants, or a group organized and operated primarily for religious purposes. (3) A partnership, a limited liability company, a corporation, a company, a firm, a society, a joint-stock company, an unincorporated association, or another entity that: (A) may sue and be sued; and (B) exercises practices that are compelled or limited by a system of religious belief held by: (i) an individual; or (ii) the individuals; who have control and substantial ownership of the entity, regardless of whether the entity is organized and operated for profit or nonprofit purposes.

Sec. 8. (a) Except as provided in subsection (b), a governmental entity may not substantially burden a person's exercise of religion, even if the burden results from a rule of general applicability. (b) A governmental entity may substantially burden a person's exercise of religion only if the governmental entity demonstrates that application of the burden to the person: (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.

Sec. 9. A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding. If the relevant governmental entity is not a party to the proceeding, the governmental entity has an unconditional right to intervene in order to respond to the person's invocation of this chapter.

Sec. 10. (a) If a court or other tribunal in which a violation of this chapter is asserted in conformity with section 9 of this chapter determines that: (1) the person's exercise of religion has been substantially burdened, or is likely to be substantially burdened; and (2) the governmental entity imposing the burden has not demonstrated that application of the burden to the person: (A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest; the court or other tribunal shall allow a defense against any party and shall grant appropriate relief against the governmental entity. (b) Relief against the governmental entity may include any of the following: (1) Declaratory relief or an injunction or mandate that prevents, restrains, corrects, or abates the violation of this chapter. (2) Compensatory damages. (c) In the appropriate case,the court or other tribunal also may award all or part of the costs of litigation, including reasonable attorney's fees, to a person that prevails against the governmental entity under this chapter.

Sec. 11. This chapter is not intended to, and shall not be construed or interpreted to, create a claim or private cause of action against any private employer by any applicant, employee, or former employee.

Bill O'Reilly and Gun Control - A Study in Contrasts

Bill O’Reilly, the news commentator who regularly spouts anti-gun control rhetoric, states on page 212 of his book “Killing Kennedy”; which I reviewed here on Tuesday; that Texas, in 1963, with no gun control laws, was the leading state for murders, with 72% of those murders occurring by gunshot.

It is now 2013, 40 years later, and guess what? Texas is still the most lenient state in regards to gun control; and Murder by Firearms there has almost doubled since 1963. But yet, as recently as January 16th of this year, Mr. O’Reilly still maintains that gun control laws will “not stop crazy people from committing murder”, even as he advocates for a mandatory 10 year Federal sentence for any gun crime; from killing your spouse, to robbing a convenience store.

At the same time he also feels that gun control laws; in which he claims to not believe; should be left up to the individual states. This, would of course, result in virtually no local gun control laws, leaving the prosecution of gun related crimes to the Federal Government which Mr. O’Reilly already feels is too big. It also seriously makes me wonder which side of the debate he is really on.

This patchwork, and asinine approach; pitting the States against the Federal government; will yield no other result than to fill the already overcrowded Federal Prisons, thus placing more people under government control than ever before. And, remember, this idea comes from a man who purports to be against “big government.” 

This is just one more example of why political commentators should not be writing serious books about history. It only serves to further display their already overworked misunderstanding of history, as well as calling into question just what their real agenda is.

"Millard Fillmore" by Paul Finkleman

Millard Fillmore is one of the least studied of the US Presidents. Yet, the years in which he served were marked by some of the main decisions and mistakes, that would lead to the Civil War. By 1844 the Whig Party was just about finished. The divisions in the country had become so sharply defined concerning slavery, that a new Party was formed. It was called the American Party, or the American Anti Catholic Party, and later on the Know Nothings. This is interesting in that the political situation in America today is almost the same. The biggest difference is that instead of the Know Nothing Party, today we have the Tea Party.

Millard Fillmore was not opposed to slavery, nor to it's expansion into the new territories and states. This was a most highly charged issue, which arose from the Founding Father's neglect to abolish slavery, leaving it, like today's National Debt, swinging in the wind for future generations to tackle. The band aids of the Missouri Compromise, and the Fugitive Slave Act, among others, merely served to stoke the flames of discontent that would eventually erupt into a full blown conflict which still defines our nation today.

Some of the most interesting parts of this book concern my own native state of New York, and New York City in particular. Governor Seward, who would later go on to purchase Alaska from Russia during the Lincoln Administration, repealed the 1799 Nine Months Law, which allowed Southerners visiting the free state of New York, to bring their servants with them, and then take them home again, like property. After 1841 this law was no longer valid. There were many free states who were beginning to ignore the Constitutional requirement to honor the laws of the Southern States where slavery was concerned. (The Full Faith and Credit stautes, under Artcle 4 in the Constitution, required that they do so.)

In 1852, while Fillmore was in the White House, New York freed 8 slaves who had been locked up overnight in a hotel room while their owner waited for a ship. This case was known as Lemmon vs. the People. During this same time, Governor Seward refused to extradite 3 Seaman who helped a slave stowaway aboard their ship, landing in New York. Virginia took the position that the slave was stolen, and that the 3 men had aided and abetted in this crime. New York took the position that human beings are not property and hence no crime was committed. When rebuked by the State of Virginia, Seward skillfully argued that Virginia's own stance on States Rights applied to New York as well, and since New York did not recognize slavery, there could be no extradition. Virginia withdrew it's claim.

A very thoroughly researched book, this is a must read in understanding just how we got to the tragedy of the Civil War, and how it still affects us as a nation today. Filled with the type of history not taught in school, this book further proves the assertion that "the only thing new is the history you don't know."

Washington Said It - Don't Blame Me!

My recent Kent State Post got me an e-mail from my daughter, Sarah, which likened what I said to paragraphs 20-25 of George Washington's Farewell Address in New York at the end of the Revolutionary War. This was, to say the least, high praise indeed, coming from her. But, truthfully I had no idea what Washington said in paragraphs 20-25 of his farewell Speech. So I set out to rectify that, in case it should ever come up I want my daughter to think I knew all about it, but seeing as she reads this thing, I guess I'm not fooling anyone. But here it is, don't blame me, Washington said it- although I do tend to agree with him. Google the entire speech, it's worth reading as we plunge into a campaign year that is sure to be filled with venomous rhetoric and false allegations from both sides of the aisle. You'll find me sitting quietly by...

Paragraphs 20-25 of Washington's Farewell Address in New York

20 I have already intimated to you the danger of parties in the state, with particular reference to the founding of them on geographical discriminations. Let me now take a more comprehensive view, and warn you in the most solemn manner against the baneful effects of the spirit of party, generally.

21 This spirit, unfortunately, is inseparable from our nature, having its root in the strongest passions of the human mind. It exists under different shapes in all governments, more or less stifled, controlled, or repressed; but, in those of the popular form, it is seen in its greatest rankness, and is truly their worst enemy.

22 The alternate domination of one faction over another, sharpened by the spirit of revenge, natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism. But this leads at length to a more formal and permanent despotism. The disorders and miseries, which result, gradually incline the minds of men to seek security and repose in the absolute power of an individual; and sooner or later the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation, on the ruins of Public Liberty.

23 Without looking forward to an extremity of this kind, (which nevertheless ought not to be entirely out of sight,) the common and continual mischiefs of the spirit of party are sufficient to make it the interest and duty of a wise people to discourage and restrain it.

24 It serves always to distract the Public Councils, and enfeeble the Public Administration. It agitates the Community with ill-founded jealousies and false alarms; kindles the animosity of one part against another, foments occasionally riot and insurrection. It opens the door to foreign influence and corruption, which find a facilitated access to the government itself through the channels of party passions. Thus the policy and the will of one country are subjected to the policy and will of another.

25 There is an opinion, that parties in free countries are useful checks upon the administration of the Government, and serve to keep alive the spirit of Liberty. This within certain limits is probably true; and in Governments of a Monarchical cast, Patriotism may look with indulgence, if not with favor, upon the spirit of party. But in those of the popular character, in Governments purely elective, it is a spirit not to be encouraged. From their natural tendency, it is certain there will always be enough of that spirit for every salutary purpose. And, there being constant danger of excess, the effort ought to be, by force of public opinion, to mitigate and assuage it. A fire not to be quenched, it demands a uniform vigilance to prevent its bursting into a flame, lest, instead of warming, it should consume.

20 I have already intimated to you the danger of parties in the state, with particular reference to the founding of them on geographical discriminations. Let me now take a more comprehensive view, and warn you in the most solemn manner against the baneful effects of the spirit of party, generally.

21 This spirit, unfortunately, is inseparable from our nature, having its root in the strongest passions of the human mind. It exists under different shapes in all governments, more or less stifled, controlled, or repressed; but, in those of the popular form, it is seen in its greatest rankness, and is truly their worst enemy.

22 The alternate domination of one faction over another, sharpened by the spirit of revenge, natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism. But this leads at length to a more formal and permanent despotism. The disorders and miseries, which result, gradually incline the minds of men to seek security and repose in the absolute power of an individual; and sooner or later the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation, on the ruins of Public Liberty.

23 Without looking forward to an extremity of this kind, (which nevertheless ought not to be entirely out of sight,) the common and continual mischiefs of the spirit of party are sufficient to make it the interest and duty of a wise people to discourage and restrain it.

24 It serves always to distract the Public Councils, and enfeeble the Public Administration. It agitates the Community with ill-founded jealousies and false alarms; kindles the animosity of one part against another, foments occasionally riot and insurrection. It opens the door to foreign influence and corruption, which find a facilitated access to the government itself through the channels of party passions. Thus the policy and the will of one country are subjected to the policy and will of another.

25 There is an opinion, that parties in free countries are useful checks upon the administration of the Government, and serve to keep alive the spirit of Liberty. This within certain limits is probably true; and in Governments of a Monarchical cast, Patriotism may look with indulgence, if not with favor, upon the spirit of party. But in those of the popular character, in Governments purely elective, it is a spirit not to be encouraged. From their natural tendency, it is certain there will always be enough of that spirit for every salutary purpose. And, there being constant danger of excess, the effort ought to be, by force of public opinion, to mitigate and assuage it. A fire not to be quenched, it demands a uniform vigilance to prevent its bursting into a flame, lest, instead of warming, it should consume.