Settled Law and a Living Constitution

We are often told that we have a "living" constitution. I am a moderate and agree with this assessment. After all, if it were not so, we would still be living with a permanent decision in the Dred Scott case. Nobody is in favor of that.

A "living" constitution has given us most of the freedoms we enjoy today. Many of them are bundled within the 14th Amendment, which is somewhat akin to placing all your eggs in one basket. But that's another story......

This year there has been a sea change in our society surrounding the Roe v Wade decision, which was made under the auspices of the 14th Amendment. Several states, almost half at this point, have passed new restrictions on abortion, leading the Pro Choice crowd to talk of "settled law."

While I am pro choice, I am also a Constitutionlist and a believer in a "living" Constitution. After all, it was this belief in a "living" Constitution upon which Roe v Wade was predicated and upheld.

Settled Law implies that once the Supreme Court decides an issue, then it's settled. Court nominees have had to convince Congress that they believe Roe v Wade to be settled law. I do not believe in "settled" law.

So, how do I merge both beliefs, which may seem to be in opposition to one another? Let's explore this.....

A Living Constitution implies that changes made by Amendment will apply as the people change and society grows.

Some people will be saying that the changes to abortion law are all part of a "living Constitution", and there is merit in that argument.

Others will opine that "Settled" Law means there can be no changes made to law after a Supreme Court decision has been rendered. There is also some merit to that view.

To really decide this issue you have to look at which changes by Amendment have been successful and which have not. You don't have to look very far for the example. It was the Volstead Act, the 18th Amendment in 1920. It was a failure and repealed by the 21st Amendment in 1933.

Here then, is the dilemma we face.

If we believe in settled law then we should still have slavery under Dred Scott, or Separate but Equal. Since "settled" law is not possible with an amendable Constitution, we don't have those things anymore.

So, we would have to say we don't believe in settled law. We believe in a "living" Constitution which changes with the needs of the people. (Notice I say "needs" and not "wants.")

People wanted Prohibition, just as they once approved of slavery. We are not populists. So, the "living" Constitution is capable of changing its mind, just as it did with the Volstead Act.

This may seem as being in agreement with a reversal of Roe v Wade under the 14th Amendment, but it wouldn't be true.

The big difference in all of this argument, and the point which most often goes unsaid, is that "settled" law has only always applied to our being granted more rights under the law.

The one time they tried to use the Bill of Rights, which is comprised of all 27 Amendments, to tell us what we could not do, was a failure and needed to be reversed.

Abortion is a right granted, not removed. As such, "settled" law is not contradictory to our "living" Constitution. It is compatible with it.

"Cider House Rules" with Michael Caine and Toby Macquire

Being a Michael Caine fan carries with it many risks. The main one is that he makes any movie offered to him. He once remarked that, "I am an actor, and that's what I do. I don't write the stuff." He’s right, so I am always willing to take a chance on one of his films, hoping that it will be another gem; such as "The Man Who Would Be King", "Secondhand Lions", or this beautifully scripted film from the book of the same name by John Irving; screenplay  by Peter Parnell.

Although this film deals with the thorny subject of abortion, I don’t think it ever really preaches to the issue one way or another. The orphanage where Homer Wells; played by Tobey Maguire works takes in unwed mothers; offering them a choice of an abortion or giving the child up for adoption. That means that there are always children waiting to be taken away by a loving family.

Homer has been at the home since he was born there, and Dr. Wilbur Larch; played by Michael Caine; has raised him almost like a son. He has even taught him obstetrics and also how to perform an abortion. Homer doesn’t have a real “problem” with the choices other people make; he just doesn’t like to perform that procedure. As a child who was given up at birth he often wonders what would have happened had his mother chose to abort him. It is the source of constant debate between Dr. Larch and Homer.

               

The film successfully portrays all of the characters who inhabit the book by John Irving. There is Nurse Edna; played with great sympathy by Jane Alexander. She is not only a caring nurse and surrogate mother to the children in her charge, but she is also in love with Dr. Larch, although she knows that nothing will ever really become of her feelings. Dr. Larch is in love with his work, as well as the ether he inhales to help him cope with the sadness he sees all around him.

When a young couple; Candy Kendall, played by Charlize Theron; and Lt. Wally Worthington, played by Paull Rudd; arrive to have an abortion, something awakens in Homer which causes him to leave with the couple on their departure. When events with the two lovers change the circumstances of their relationship Homer finds that he is confronted by love for the first time.

Meantime back at Candy’s family apple orchard, its apple picking time. With nowhere else to go, Homer decides to stay on at the orchard and work with the migrant workers who pick the apples and make the cider each year. He lives in the bunkhouse; also known as the Cider House. There is a wooden sign in it that has a list of the Rules. Nobody but Homer can read, so it’s kind of silly to have them posted in the first place. The workers feel that the rules were made with no input from them, so why should they be bound by them? The Rules were made by people who never have to face their particular set of problems; making the rulers, and their rules, irrelevant.

Arthur Rose; played by Delroy Lindo; has been picking apples for the Kendall’s for years. He arrives with his “crew”; including his daughter Rose Rose; played by Erykah Badu. Homer is the only white person in the bunk house, and although they are uneducated people, Homer is drawn to them. And, in turn, he is as much a mystery to them as they are to him.

But Homer has a way with people; he is very much Dr. Larch’s son in many ways; and he develops an easy camaraderie with the whole crew. He is particularly drawn to Rose Rose, seeing her as a figure of tragedy and lost opportunity. And when something happens to her that causes him to use the very skills he detests righting a greater wrong, he is both shocked and enlightened by his experience.

Back at the orphanage Dr. Larch finds that the board is going to replace him. He has to do something to salvage his position. This orphanage is the only family he has ever known. While Nurse Edna reads to the girls each night at bedtime, Dr. Larch does the same with the boys. He reads them exciting classic adventures and each night as he leaves the dormitory he says the same thing; "Goodnight you princes of Maine, you kings of New England!" He says this as both a blessing and a way of making them feel valued. He is deeply loved by all.

Faced with the prospect of losing his orphanage Dr. Larch fakes credentials for Homer to convince the board to appoint Homer as the next director. This is not the first time Dr. Larch has falsified a document on Homer’s behalf. Unbeknownst to Homer, the heart condition he has been diagnosed with is not real, but it did keep him out of the war.

In the end Homer sees things less in terms of black and white. He still doesn’t like performing abortions, but he has seen some things which change his opinion of Dr. Larch. In the end he is the one tucking the boys in at night. And as he continues to send them off to sleep with the same hopeful thought; “Goodnight you princes of Maine, you kings of New England!" he finally realizes what his coworkers at the orchard meant about the Rules.

Note: They spelled Michael Caine's name wrong on the cover.

"South of East Jesus" by G. Bernstein (2014)

The cover of Glenn Bernstein’s newest novel, “South of East Jesus”, speaks volumes about the dual nature of human beings. The silhouette depicts a man and a woman; one in portrayed in light; and the other in darkness. You can see through them both. Even the title contains a message of sorts; as if we are all a bit shy of the mark when it comes to perfection.

I don’t know whether my assessment has any validity to it, or if I have conjured up this explanation as a result of Mr. Bernstein’s tale, which explores these very questions. He does so through the character of Renny, a woman who finds herself alone and pregnant after the suicide of her husband Parker.

When an emergency terminates the pregnancy of one of her twins, Renny finds herself in the care of Dr. Thomas Ryan, a widower, and a man with a reputation to uphold. Renny, on the other hand, has nothing to lose and everything to gain as she finds herself drawn to this kind, empathetic professional.

But lines get blurred when simple acts of kindness become more than simple, and Renny stokes the fires of passion with her every move. Soon, they both face the biggest single dilemma of their separate lives. What happens as a result of having crossed those lines becomes something which consumes them both.

Steamy dialogue and fast paced writing make this a compelling read for fans of romance novels. I could hardly keep the book out of my wife’s hands long enough to read it myself, without searching for it each time I went to pick it up. This is Mr. Bernstein’s 2^nd book, and I would suspect that it will not be his last.

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Mickey Rooney - RIP

Word just came in that Mickey Rooney; iconic force of entertainment; has passed away at age 93. An accomplished professional in all aspects of show business, his passing represents yet another loss to the golden days of vaudeville, radio, movies and television. 

We shall not see the likes of him again; which makes you tube all the more worthwhile. For a good example of his powerful dramatic acting skills hit the following link;

http://robertwilliamsofbrooklyn.blogspot.com/2013/02/the-comedian-with-mel-torme-and-mickey.html

Drinking the Kool-Aid

Let’s begin by saying that I am Pro-Choice on the Abortion Issue. My reasons for this are very simple. I don’t get pregnant, and I am not willing to adopt any of the millions of children who are already without homes, so I choose to not cast the first stone at those who are Pro-Choice. But, neither do I dismiss the concerns of those who are Anti-Choice. At the same time though, I am not for overturning the Roe vs. Wade ruling which made abortion legal.

Why am I even writing about this? Well, for some unknown reason I receive the e-mails from NARAL, which is some sort of Women’s Rights group. How or why I receive these e-mails is irrelevant; although I wish they would stop sending them as they tend to tick me off. Here’s why.

I just got this one a week or so ago. It concerns the “would be” Governor of Virginia who is Anti-Choice on Abortion. His reasons are that it is comparable to slavery and it is pushing this country towards Civil War. NARAL says you should be infuriated, and to prove it they want you to send them money to stop the plans of this fellow down in Virginia. But they need to bone up on their own history a bit first. 

For starters, they claim he’s nuts for comparing Abortion to Slavery; and I agree. But what they are missing is that Roe v. Wade, which legalized Abortion in America; from sea to shining sea; was decided on the 14^th Amendment, the very one which this fellow in Virginia is claiming as the basis for being Anti-Choice. So, the problem for NARAL is this; if the Court’s decision concerning Roe v. Wade relied on reference to the 14^th Amendment, how can they now be opposed to the very same Amendment?

In Roe v Wade, the justices found, by a vote of 7-2; Justices White and Rehnquist dissented; and the Court found for Roe and upheld her right to abortion in the first trimester (90 days). The Court stated that the 14th Amendment, in Section 1, contained three references to a “person.”

I thought the findings were correct, but have always believed the decision should have been based on Amendments 4, which gives you the right to freedom from undue search and seizure, and to be secure in your homes; and with the 9^th Amendment ceding all rights to you not denied by the Constitution; meaning that they are implied by omission.

So, the views of the “would be” Governor are that a Civil Rights issue; which Abortion is; could set off a conflict not unlike the Civil War, which was the very way in which we got Amendment 14 to begin with. And, if that’s not inconsistent enough for you, the NARAL group is now opposed to the very reasoning by which Roe v. Wade was decided in the first place.

I hope this is clear to you all. Inconsistency is the one thing I have come to expect from my Political leaders and Social advocates. With their minds so firmly set on “winning”, they have lost their intellectual capacity to reason in a consistent manner. And this, I believe, is the biggest threat of all.

Women's Rights - The ERA that Never Was.

Question: What is the total number of registered voters in the US as of the last Presidential election?


The answer is that there are 169 million registered voters in the United States. 86 million are Democrats, and 55 million as Republicans, with about 28 million others unspecified. Of these, in the 2008 election it is estimated that about 131 million persons cast a vote. Of those votes 70 million were women, and 60 odd million were men.

Given these numbers I am constantly amazed at the fact that the ERA has never been Ratified by the Senate, where it has languished since passing the house in 1972. Since that time the Supreme Court decided Roe V. Wade, and then all the hoopla surrounding the passage of the ERA vanished, seemingly overnight. As a matter of fact, there are women in this country who are under the impression that they have the protection offered by such an Ammendment. With a woman Presidential Candidate in 2008, as well as the 17 Senators and 76 Congresswomen currently serving in the Legislative branch of our government, you would think that this would be a high priority issue.

We have had 3 women Secretary's of State who have traveled the world talking about Women's Rights in places like the Middle East and China. But I have never heard any of them mention the lack of an ERA here at home. The same is true of the 35 women serving as Governors of individual states. Here in North Carolina, we have a woman Governor, Beverly Purdue. She has just lost a battle with the Republican state legislature concerning a new 24 hour waiting period for a woman to seek an abortion. The woman must also watch a film and view photos about the negative consequences of abortion. No mention is made of the children born into inescapable poverty, or abuse. My question is, where are all the women on this issue? Why don't I hear more from the leaders of NOW as they have continued, for almost 40 years, to collect money for Women's Rights? Where is the money going? After all, Congresspersons, as well as Senators, are about the cheapest things that money can buy.

I cannot imagine how the women in America have dropped this ball. They need to band together for the 2012 campaign, making this an issue, and demand the passage of the ERA, without watering it down. The text of the Amendment is short and clear;

Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.

Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Section 3. This amendment shall take effect two years after the date of ratification.

The ERA was introduced in every session of Congress from 1923 until 1972, when it was passed by Congress, but not Ratified by the Senate, where it had a statute of limitations lasting 7 years for it's passsage. It was even extended an additional 3 years in 1979, but still never Ratified. It was still, at that time, only 3 votes short of becoming the law of the land. It has been re-introduced, and soundly defeated in every Congress since. Why?

Here's the dirty little secret that keeps this Amendment from becoming law. The wording is not limited to just women. It includes all the Gay Lesbian Transgender and Transsexual groups. By its wording it is all inclusive. Should the wording be changed to cover only Women? That would be short sighted and foolishly split the disenfranchised groups asunder, making it impossible to gain any advantage, and perhaps in the process, even roll back some of the Women's Rights that have been gained since the 1970's.

No issue is as easy to tackle as it first appears on the surface. But this is one that needs to be resolved if we are to going to continue roaming the world talking about Equal Rights for Women, as well as Human Rights for All. I urge you to call upon your respective leaders in the Congress and Senate to put this issue to rest. A state by state listing of your lawmakers is attached below. I hope that you will use it.

For your Senator, go to this site;

http://www.senate.gov/general/contact_information/senators_cfm.cfm

For your Congressional Representative, go to this site;

http://www.house.gov/representatives/

ERA - The Amendment That Never Was

I have been asking women for several months now if they thought that the ERA was a law. Most replied with either "yes", or, "I'm not really sure." Only a few knew that the law had been passed by Congress but not yet Ratified by the Senate. It was only 6 votes short of Ratification in 1973, and can be recalled for a new vote at any time.

Forgive me, for I am just a man, ignorant of many things. But I can no longer remain quietly on the sidelines while the major parties get ready to spilt the masses, once again, on issues of morality. Their focus would be better employed on fixing the economy, but that's another story.

This is the story of the Amendment that never was, and how it can be easily accomplished now, and why it is important that we do so in the year ramping up to the coming elections. The story begins in 1972, at a time when women were burning bras and demanding their rights concerning abortion and job opportunities. They got the former via Roe v. Wade, but the latter seems to have eluded them, and the frightening thing is this - the ones that don't know, don't seem to care, even after you tell them.

Right now the ERA sits, already passed by the House, and can be recalled at any time for ratification by the Senate. It was only 6 votes shy of Ratification in 1973. There are now 17 women serving in the Senate. Why have none of them called for a vote? And more importantly, why haven't the women's rights groups, like NOW, been withholding campaign contributions from these candidates, who should be trumpeting the cause of the ERA? Why are women afraid, or indifferent to, the prospect of being declared equal? As I said, I am but a man, and such questions are beyond my abilities to provide answers.

But I can tell you this, the wording of the ERA, as it now stands, encompasses people of ALL sexual persuasion, thus nullfying the debates over Gay Marriage and Rights. The bill, as written, is not gender specific. Perhaps that is what makes it too hot an issue to touch? I have printed it here before, and do so now, with the hope that you will read it;

Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.

Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Section 3. This amendment shall take effect two years after the date of ratification.

That's it! That's the entire earth shaking amendment which every one is afraid of!Can you imagine if this were passed before the election? The economy would become the issue, rather than the window dressing issues of morality encompassed within this propsed Amendment. Women Senators,of both parties, who enjoy EEO protection and equal pay under Federal Law, should be lobbying for this bill to be voted upon for the benefit of their Constituents. And those Constituents should be demanding to know why they have not.

Here is a link listing all the Senaors by State, and their contact numbers, give them a call, and tell 'em "Rooftop" sent ya'.


http://www.senate.gov/general/contact_information/senators_cfm.cfm