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 It was a failure and repealed by the 21st Amendment in 1933.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.

Who is a Citizen Under the Constitution?

The current contretemps concerning who is a Citizen under our Constitution seems to be revolving around the term “anchor baby”, which is a way of referring to a child born on U.S. soil automatically being a citizen. Although that has long been our accepted policy, the Constitution is not crystal clear on this issue.

Since this topic is destined to dominate the news for a couple of days, at least, I thought it might be helpful to post the 2 places in the Constitution where Citizenship is mentioned. The first is from Article 1; while the second is from the 14^th Amendment, which seems to have become the “eye of the storm.”

I have synopsized the meaning of each quote from the Constitution in an effort to give them some historical context.

Article 1, Section 4:8 states “Congress shall have the Power to……Establish an Uniform Rule of Naturalization…”

This implies that Congress would be responsible for setting up a bureau to deal with the specifics of Immigration and Naturalization. Today we call that organization Immigration and Customs Enforcement, or ICE, as it is more commonly referred. At the time it was written many of our leading citizens; including some of the leading politicians of the time; were not born here; hence the need to define the term Citizen.

The 14^th Amendment states in Section 1; “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.

The point of contention here seems to rest not in the opening phrase that all persons born here are Citizens, but rather in the phrase “subject to the jurisdiction thereof.” The phrase was included as a way of addressing the issue of “Indians not taxed” in the 2^nd Section of the Amendment.

I hope that this information will prove helpful to the reader as the controversy rolls forward.

"Rise of the Warrior Cop" by Radley Balko (2013)

There can be no timelier book than this. With the recent troubles in Ferguson, Mo., the issue of police “over reach” has come to the forefront of conversation. Particularly alarming to most people is the militaristic buildup of the local police forces with the use of cast off military gear.

For instance, I live in a small town in Huntersville. We have a tank; maybe two. We also have body armor and riot gear that is more than sufficient for the unrest which will undoubtedly accompany the Second Coming of Christ. The question is whether or not we really need it. And if not; what danger does having it pose to the average citizen?

In this book by Radley Balko you will find enough information to come to your own conclusion. From the Magna Carta on through our own Constitution, Mr. Balko has explored the path of the “Castle Doctrine” through an ever changing world. Whether or not you agree with his conclusions, this book will give you more than enough information to think things through on your own. To my mind that is the definition of a good book.

The author charts the course of the Castle Doctrine; which simply put states that your home is your castle and you have the right to defend it. It was the cornerstone of English law, and became the corner stone of our own Constitution, enshrined in the 3^rd and 4^th Amendments by implication, if not design. He also charts the rapid decline of those rights as interpreted by an increasingly conservative Supreme Court. And it’s not a pretty picture.

Beginning as early as the 19^th century our rights under the Castle Doctrine were already being displaced by an increasingly large Police Force. To some extent this development has been necessary to meet the problems of growth. In colonial times there were almost no rapes, robberies were rare because you couldn’t sell stuff locally; making it unprofitable; and murder was not commonplace. That all changed as we changed; bigger cities, bigger problems.

In the 1950’s Los Angeles Chief of Police Parker ushered in a new age of policing; basing his tactics on military strategy and firepower. By the Watts Riots of 1965 he saw the need for more militaristic policing and formed a squad of snipers and assault men. These were the first SWAT team. The term was invented after the fact by Parker himself.

With the advent of the War on Drugs, and the War on Terror, the government has gained even more power and arms. The cast offs from the Patriot Act funding alone have armed most small towns and large cities in America to alarming levels.

For the most part I agree with the author’s assessment of things. There is too much emphasis on military tactics rather than “Protect and Serve.” But at the same time these SWAT teams would never have happened had there not been a clear threat to law and order; as in the Watts Riots. And now, with homegrown terror groups openly advertising for the citizenry to arm, I have to start thinking of which gang I want to be part of.

There’s Nazi’s and Aryans; they won’t do as I am Jewish. Then there’s the Right Wing Fascists; but they are Christian; again the Jewish thing prevents me from joining up with them. The Leftists are too far left and would muzzle me with politically correct speech; I talk too much and would never fit in there. The other various and sundry groups are all too small to make a difference and; for one reason or another; they won’t have me either.

So, I’m left with the over militarized Police and Armed Forces. I guess I will have to take my chances with them for now. The one thing which bothered me about this book; which has a lot to offer; is that when covering the 1960’s and 1970’s the author never once mentioned the assassination of scores of officers; at least 4 in New York City alone; who were gunned down from rooftops while walking their beats. There was an epidemic of these shootings across the nation at the time.

People in those neighborhoods mourned their loss. For a balanced account of how the militarization of the police occurred, these events must be taken into account. To leave them out calls into question the agenda of the author. There are abuses; to be sure; but to place the blame wholesale upon the police is a bit much. It took 2 to dance this waltz. At least some of the heavy handed tactics came about after the rise of the drive by shooting in the wake of the crack epidemic. It would have been nice to at least see this fact acknowledged by the author. 

To see a list of the police who were assassinated in New York City during 1971-1972, use this link to the NYPD Roll of Honor. These men were walking the street, armed with .38 revolvers; in their holsters at the time of their murders; by killers armed with high powered rifles shooting from rooftops in broad daylight. Some helicopters and automatic weapons would have been of great help in stemming the tide of these tragic murders, but the militarization of the police had not yet begun in earnest.

http://nypd.police-memorial.com/list-of-nypd-fallen-heroes/

Clinton, DOMA and Article IV - WTF?

Am I the only one who understands this, or am I just ill-informed? First off, if you don’t know the difference between an Amendment and an Article in the US Constitution, then this post is not for you. If you would like to know, then I’ll tell you.

An Amendment to the Constitution is something which has been added; or changed from the original Articles; which delineate what the government’s functions are, and how they are to go about their jobs. Amendments are; beginning with the first ten in the Bill of Rights; outline the areas of  our lives in which the government is not allowed to intrude. And sometimes; as with the 27th Amendment; they are merely additions or corrections to existing Articles. 

Secondly; Civil Rights Issues; of which Same Sex Marriage is but one; are not negotiable, and therefore not subject to populist elections. It is essential that you understand these two things. Okay, got that straight? Now, some background.

Bill Clinton is the ex-President who is seen as the godfather to the GLBT movement. I hope I have the initials in the proper order so as not to offend anyone. But Bill Clinton; in addition to giving us the ill-advised “Don’t Ask Don’t Tell” policy; also left us with a lasting legacy; and conundrum; in the form of the Defense of Marriage Act.

DOMA; it’s easier to use the acronym; basically stated that marriage in the United States consists of one man and one woman. That alone is confusing to me in that Bill Clinton is embraced by the GLBT community as a champion of their quest for equal rights. But what really puzzles me even more is the clause within DOMA which basically guts Article 4; the Full Faith and Credit Clause; which states that “Full faith and Credit shall be given in each state to the Public Acts, records and Judicial proceedings of every other state….” In essence, this clause prevents the individual states from not honoring your driver’s license, automobile registration, marriage license etc. when traveling through their districts. This was a good thing.

Can you imagine the confusion resulting in having to pay a fee at each state border as you travel across the country? Or having to get a temporary marriage permit while on vacation? Full Faith and Credit is the antithesis of State’s Rights, which brings me to the crux of this post.

Bill Clinton planted the seeds for all the confusion going on in the courts across the country right now in regards to Same Sex Marriage. That’s right; the godfather of alternative lifestyles is at the root of the problem being faced by GLBT people all across the land as they try to navigate the labyrinth of state laws which permit them to marry in some states, while making those unions illegal in others.

Further complicating the matter is that the Supreme Court struck down only that portion of DOMA which restricted Same Sex Marriage. It did not, however, strike down the clause which allowed the individual states to by-pass Article 4 of the Constitution. This is why you have lawsuit after lawsuit concerning Same Sex Marriage in one state after another. If the  entire DOMA had been struck down this would not be an issue.

President Bush postured to repeal the entire DOMA Act in order to gain conservative votes. Had he known what a roadblock DOMA could be for Same Sex Marriage he would have felt differently. This brings us to President Obama; who has stated in the past that his position on this issue was “evolving.” What is his administration’s position on this issue now?

Well, according to Eric Holder and the Justice Department, the portion of DOMA which remains intact regarding Full Faith and Credit; which would allow a Same Sex Marriage in Vermont to not be honored in Kansas; the government; for now; will not pursue a change. What the hell does that mean?

Full Faith and Credit has served this country well; both socially and commercially; for well over 200 years. The patchwork quilt created by Bill Clinton; and unchanged by his predecessors; is an ill omen of things to come. As a legal precedent it threatens us in more ways than just Same Sex Marriage. With Conservatives calling for a roll back to an era before the Civil Rights Act of 1964 it threatens us in more ways than you can imagine.

And, as these elections about Same Sex Marriage roll around to your state, it is important to remember that Civil Rights are not subject to elections. They are non-negotiable. 

Government Shutdown and the 10th Amendment

With the government all but shut down; as the Republicans and Democrats face off with one another over “Obamacare”; there has been much talk of how stagnant and stymied our representatives in both the Congress and Senate, have become. They can’t even agree on a budget, again.

Some articles have suggested that this is the first government shutdown in 17 years. I have to disagree with that statement, as the government has been leapfrogging from the threat of one shutdown after another for quite some time now, and as such, they have become ineffective. And the people are concerned; rightfully so; that we are getting shortchanged by our lack of representation in Washington by the very people we elect; and then pay; to serve us.

   

So what can we, as the people who employ these jerks do? Well, for starters, let’s look at the Declaration of Independence, which, although not law in itself, is the underpinning of our country’s quest to become a nation of laws. That document states that;

“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.”*

When the smoke from our Revolution faded away and the Constitution adopted as the law of the land, the Founding Fathers; wise men that they were; added 10 Amendments, known as the Bill of Rights, in order to make sure that our government would continue to afford “we the people” the protection from the tyranny which we had just thrown off. It’s time to take a closer look at the 10^th Amendment, which states that;

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Now, what does that Amendment mean to us as citizens of our beleaguered country in the throes of stagnation brought about by the “Shutdown?” It means that we the people, acting collectively in our individual states, can fire these bastards and take back our government. No killing necessary; though it does seem an attractive idea; just good old Constitutional law.

Since the Federal Government cannot regulate what is not stated in the Constitution; and there is no provision prohibiting it; we can call for elections in our individual states as per Article 1 Section 4 which states that;

“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.”*

Now, I’m by no means a Constitutional scholar, but it would seem to me that we have some wiggle room to make them squirm like a worm on a fishing hook. And, it appears to me that now would be a good time to use it.

*Any perceived “errors” are from the original text of the documents noted. They reflect the language and accepted spelling of the time in which they were written. For me to “correct” those words would seem to be a bit of sacrilege. 

The Bill of Rights

This document is known as the United States Constitution. I have copies of it in my car, as well as several locations in my home. It comes in handy when watching the news, or fact checking a crime related drama. And sometimes, it just makes comforting reading. The entire document was put together by people, who, like you and I, were vastly different in many ways. That is, all except one. We ALL believe in the Right of Freedom of Speech, that Right which gives you the Freedom to Peaceably Assemble to air your grievances. That's the called the First Amendment. It appears in the Bill of Rights, a section of the Constitution which has expanded over the years, sometimes into contentious territory. But never has anyone, on either side of whatever debate, officially condoned the emasculation of the First Amendment. That is until now.

By their silence, the Mayors, the Members of Congress, the Senators, and even the President of the United States, all stand complicit of the worst sort of treason possible; the treason of Indifference. The treason of watching it all go wrong, while standing aside and collecting a salary paid by the people they were sworn to protect, but don't.

Then there are the "Foot Soldiers” and “Pawns", who, under the banner of "Authority", beat, pepper spray, and arrest those who exercise the Rights which these same "Authorities" are sworn to uphold. These are the ones who later espouse the all too familiar, "I was only following orders."

So let's begin with the first order. If we are to play by the rules, then let's start with the first one; the First Amendment to the Constitution. For those in power, and in need of reading this document, which is the cornerstone of our Republic, I have printed it here, with the First Amendment highlighted for their convenience.

The Bill of Rights

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Amendment II

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Amendment III

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Amendment VII

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.