A friend of mine asked me to write about the Electoral College. Of the many items I wish to write about this is actually one of those topics on my list. A few years ago as I moved out west, I had a conversation with one of my Aunts discussing the importance of the Electoral College. She had never though about the purpose behind the college and was appreciative of my explanation. I hope you are too.
As usual, I've researched this topic to expand my knowledge of the process and the reason behind the process. I don't remember being taught about the Electoral College specifics during any class while in high school or in my US History college class. This does not mean I wasn't taught the subject; it does mean, though, that the emphasize placed upon the topic, if taught, was not significant enough to be retained by my memory cells.
Every election year, one group or another proposes ending the Electoral College system of electing the President and the Vice President. One of those is a bastion of liberty ideals, one Sen. Dianne Feinstein, who in 2004 proposed an end to the "out-dated" system of electing the heads of the Executive Branch of our Federal Government. The problem these people have with the system is that the populous does not actually vote for the President and the Vice President of the United States. (If you thought you did, I'm sorry but you do not.)
Under the Electoral College, on November 4 of the every 4th year election year, when the citizens of the Country vote for President and Vice President, they are actually voting for the electors of their state. The electors then in December will cast their vote for President and Vice President. Only the electors actually vote for a President and a Vice President; the citizens do not. Thus when you look at our system, the citizens of a state vote for the electors who will represent them in the vote for the President and the Vice President. Thus a majority of a state's voters will decide the allocation of a state's electors. The majority of state's then decide who are the President and the Vice President.
There are pros and cons to both sides of the issue. (I will include several links at the end of my blog for your leisurely review. The most informative link will be the pdf file from a FEC administrator.) One of the loudest arguments against the system is that a person could win the Presidency without a majority of the popular vote - which has occurred four times in our history: John Quincy Adams (1824), Rutherford B. Hayes (1876), Benjamin Harrison (1888), and most recently, George W. Bush (2000) (Downey, pg E-96). This aspect is crucial to the system and my arguments. I will only discuss my thoughts on why the electoral college is important and why it should remain in place. I will admit up front, I believe the majority of those who wish to change the system are progressives who wish to destroy the US - see the link above, Sen. Feinstein is a liberal and a progressive.
My arguments for why the electoral college is important rely on the name of our Country and the substance found in Article II of the US Constitution. I do not rely on any of the arguments which state the populous is not informed enough to vote (although it might be biased in its vote). I do not believe in that aspect of the Electoral College. I hope to sway you to my side.
First, what is the name of our Country? Is it America? No. Although we are incorrectly, I believe, referred to as Americans, we do not belong to the Country of America. We belong to the United States of America. Our Country is actually, the United States. We each are citizens of our respective states which then belong to a union of said states to form our Country, the United States. Every four years, the country gets together to elect a President who represents the UNITED STATES. This is the key to the argument. The President does not represent the citizens of the country; instead, the President represents the union of the States. Thus the President (and the Vice President) should be elected by a majority of the States and not by a majority of the citizens. This is what the electoral college accomplishes.
As already stated, the majority of the populous could vote for a single person who actually will not become President. The essence of the electoral college ensures that the most populous states do not then elect the President and the Vice President. For example, Texas, California, and New York account for 26% of the total population of the country. This means that 1/16th of the total number of states has 1/4th of the population of the country. If you add in the next 6 states for a total of 9 states, the percent of the total population reaches 51%. This means that if those 9 states ALL voted for the same candidate and the rest of the country voted for the opposite candidate, 1/10th of the states would choose the President. (Granted this argument relies on the fact that the approximate number of voters in each state is directly related to the total number of people in that state and that everyone of the voters in each state votes the same. Realize, this is for the argument.) However, by the electoral college method, those nine states would amass only 241 electoral college votes which is an insufficient number (270 is needed) for President. Instead, the other 41 states (plus DC) would have chosen the President. Again, the President is the President of the United States; not the President of the people of the United States.
(It should be noted, that if two more states all do the same as the nine states above, the President would be decided by 11 of 50 states. However, in the reality of the situation, most states seem to be united by different factors. For example, the South has usually been referred to the "Bible Belt" and tend to vote Republicans. The West and the Northeast tend to be more liberal and usually votes Democratic. When you look at the populous of Florida, it is 50/50 with respect to ideology between the two parties. Thus their vote can sway from one party to another as evidenced by their vote for Republicans in 2000 and for Democrats in 2008. The Electoral College allows the little States to join together to have their voice heard in the election of the President vice having the larger States always dominating the election results.)
Second, we look to the Constitution. Section 2 and 3 of Article II list the duties and responsibilities of the President. One of those responsibilities is the power to make treaties with other nations. Another the President is the Commander in Chief of the Army and the Navy of the United States. The President appoints Ambassadors and Judges. Every appointment is for the benefit of the United States. Each of the duties and responsibilities in some way benefits the country as a whole. Additionally, the President is the person who is selected to interact with other countries.
Some might argue these also benefit the citizens as much as they do the states. However, the benefit bestowed on the states is more substantial to the union than any benefit which may or may not be bestowed on the citizens. Think of bestowing benefits on a company. The company benefits more than the individual employees of the company. The President represents the States to the world for benefit to the States which will then be indirectly beneficial to the people.
We stand alone in the world with this form of election. However, we stand alone in many aspects of our government. Is this necessarily a bad thing? I think not. Argentina elects their leader by popular vote. Russia elects their leader by popular vote. Iran elects their leader by popular vote. They are "democracies." We are a Republic. China elects their leader by a selection process which relies on a lower level of bureaucracy to elect the members of the next higher bureaucracy until you have an overall leader. It would be the same as if the Congress elected the President (one of the original proposals for election of the President). Which would you prefer, our system or the system of any of the countries mentioned?
I will offer a disadvantage to the system which is near and dear to my heart: political parties. I am disenfranchised with the ideologies of the two big political parties. The Electoral College maintains the two-party system making it difficult, actually out-right impossible, for a third political party to win the Presidency. However, the need for the voice for the President to be the States vice the populous overrides this disadvantage in my opinion.
We are the United States. As such, we elect our leader by ensuring that the individual states have a say in the leader vice a majority of the population. The Electoral College is essential to our Republic form of government and should continue to exist....
Mike
References not linked above:
Downey, D. (Ed.). (1987). New Standard Encyclopedia. IL: Standard educational corporation.
Kimberling, William. (1992). The electoral college. Retrieved 12 Aug 2010 from http://www.fec.gov/pdf/eleccoll.pdf (This is a well written dissertation on the Electoral College!)
National Archives and Records Administration website: http://archives.gov/federal-register/electoral-college/index.html
Wikipedia for how nations mentioned elected their leaders.
US Census Bureau for population numbers: http://www.census.gov/popest/states/NST-ann-est.html
US Constitution: http://www.usconstitution.net/
Friday, August 13, 2010
Monday, August 9, 2010
Marriage Is Not a Fundamental Right
On Aug 4 a Federal Judge for the Ninth Circuit ruled California's Proposition 8 unconstitutional. Proposition 8 was a state initiative to add to the State Constitution the definition of marriage as only between a man and a woman. The proposition passed by a slight majority vote of 52%.
It was amusing to listen to the talking heads scream about how one judge overruled the decision of millions of voters. Do they (the talking heads) not realize this is how our system of government is supposed to work? Under our system of government, the wolves and a lone sheep sit down to dinner together and decide what's for dinner. And it won't be the sheep. If majority ruled every time, the rights and privileges of the few would be trampled upon every time. This is not a principle upon which our Country was founded. There will be, no there has be, that one person who stands up for the minority when they are being over run by the majority. In other words, there must be a balance between what the majority wants and the rights of the minority. As long as what the majority wants does not infringe on the rights of the minority, then what the majority wants they'll get. Only when the rights of the minority are infringed will the majority's will get pushed back. This is the reason for judicial review. As I've stated before, even when we don't agree with the ruling, we must support the ruling; to do otherwise would be to fail the principles of our Country.
The ruling is an interesting read. The judge was very thorough in his ruling and at the same time, he was very strategic and very intelligent in the manner in which he rules Prop 8 unconstitutional. The issue before the court was whether a proposition which defined marriage as between a man and a woman infringed upon a same-sex couple's right to marriage under the 14th Amendment's Due Process and Equal Protection clauses.
When confronted with a constitutional right question, the court must first decide if the right is a fundamental right. In this case, the court ruled that it is. His ruling, though, is not a stand-alone ruling. This right has been decided by several past court cases. One of the cases not cited by the judge in Perry v. Schwarzenegger (I do not know if this is how the case will be known, but, by convention, this is the most likely name) is Skinner v. Oklahoma, a 1942 case I've written about in a previous blog.
In Skinner, Justice Douglas said, "Marriage and procreation are fundamental to the very existence and survival of the race." Unfortunately, he did not explain his reasoning for the marriage portion. Procreation, logically, can be seen as a fundamental right. If we were to limit the procreation of a race or group of people, the limitation could spell the end of said group or race. Marriage on the other hand is not necessarily a fundamental right. Unfortunately, the Supreme Court has not ruled this way.
Once a right falls into the "fundamental" category, it must satisfy strict scrutiny. As stated in an earlier blog, to pass strict scrutiny, a law or regulation must fulfill a compelling State interest and must be narrowly drawn to satisfy that interest. In this case, Judge Walker did not review Prop 8 under strict scrutiny. This is his strategic and intelligent ploy used in his decision. Instead, he used the rational basis test.
Under the rational basis test, a law or regulation only has to fulfill a legitimate state interest and be rationally based to do so. Judge Walker failed Prop 8 under this test, the lower of the two tests. Thus, on appeal, a higher court will be less likely to overrule his decision because he utilized a lesser test to fail a law aimed at a right the Supreme Court has ruled fundamental. Brilliant!
So the question now is how is marriage not a legitimate state interest? Marriage is a legitimate state interest. The advocacy of stable families and households aids in the promotion of stable societies. Thus the real question is how is preventing gay marriage related to a legitimate state interest? Unfortunately, it is not. And this is where the defendants (Prop 8 supporters) fell awry of the law.
The defendants' arguments in every aspect of the case were weak and ill-formed premises and conclusions. The plaintiffs' arguments were far superior. For example, the defendants argued that studies show children raised by a mother and a father are more apt to be productive members of society than children not raised in that situation. The flaw in the defendants argument is that the studies they relied on compared families to single-parent households. If you compare a child raised in a same-sex family to a child raised in an opposite-sex family, the results are very similar. Thus, the defendants' argument fails. I'd like to point out, that a child raised by a couple not married is apt to follow the trend of the children of two parent households also. So what does that do to the defendants' argument?
Another argument utilized by the defendants was that marriage is supposed to promote procreation which obviously a same-sex couple cannot do together. This is another severely flawed argument. If you say that marriage is for procreation thus we will not allow same-sex marriages because they cannot procreate, then you MUST ALSO force those opposite-sex couples to DIVORCE (if married) or NOT TO MARRY when one of the pair is found to be sterile. Additionally, you would not be able to allow the marriage of the elderly as their child production days are either numbered or finished. Be careful of the unintended consequences of decisions!
So just what is marriage? To answer this question, you have to look to history. When communities first formed, a man took a woman and they lived together to form a family. The fact that the couple was together was enough to satisfy the marriage aspect. In other words, the basic right of everyone is a right to co-habitate with a person of their choosing. This is the fundamental right. Marriage is only a societal recognition of the basic right of co-habitation. (At the end of my blog will be links to three websites on the history of marriage. It is highly recommended to review this websites. Marriage rituals have changed over the years based on the interjection of religion into the customs of society and also on the changing of the customs of a society.)
The defendants in the Prop 8 debate contend that they cannot tell homosexuals not to co-habitate. The State of California went so far as to allow "domestic partnerships" which recognize the same legal rights as a marriage. The only exception is the use of the word marriage. So, if the Prop 8 defendants acknowledge that homosexuals can life together, and that the same may have the legal rights that a married couple possess, why are they so opposed to the word marriage for same-sex couples? (This was the essence of Prop 8: a fight over the use of a word!)
Many of the opponents of same-sex marriages are religions. The religious people point to the religious doctrine which governs their religion. For example, in the Bible, Leviticus 18:13 states "No man is to have sexual relations with another man; God hates that." Additionally, in Leviticus 20:13, "If a man has sexual relations with another man, they have done a disgusting thing, and both shall be put to death." This is the basis behind the shunning of homosexual couples. I would like to point out that both of those passages relate to MAN and not to WOMAN. In the book of Romans, which is a letter by Paul, there is a reference to female homosexuality but it is not as strong as the passages from the old testament. Thus, the Bible is against male homosexuality and not necessarily female homosexuality. (The Qur'an a similar passage exists, 7:81 "Indeed, you approach men with desire, instead of women. Rather you are a transgressing people.")
The pro-religion people will argue that the passage in the New Testament is an extension or acknowledgment of sin to female homosexuality. They will say that all homosexuality is a sin. To which I retort: 1 Corinthians 5:9-11, "In the letter that I wrote you I told you not to associate with immoral people. Now I did not mean pagans who are immoral or greedy or are thieves, or who worship idols. To avoid them you would have to get out of the world completely. What I meant was that you should not associate with a person who calls himself a brother but is immoral or greedy or worships idols or is a slanderer or a drunkard or a thief. Don't even sit down to eat with a person." This is another letter by Paul, except this time to the Corinthians. Look closely at that passage. God is acknowledging the existence of homosexual people along with other nefarious people and is also acknowledging you CANNOT ESCAPE THEM. Paul is also saying that as long as they don't purport themselves to believe in God the Christian way you can associate with them. Just don't associate with homosexuals who say they believe what is in the Bible.
The right of association is a fundamental right. The First Amendment gives us this right, "Congress shall make no law...abridging..the right of the people peaceably to assemble." This right is explicit in the Constitution. Thus religions do not have to admit homosexuals or assemble with homosexuals. It is their right. So, homosexuality is a sin in most religions. Granted. However, most religions are tolerant of the sins of others. If you are religious and you don't like homosexuality, don't associate with homosexuals. This does not give you any power to tell the rest of society who they can associate with!
Another argument by the religious groups is that by acknowledging marriage can be between same-sex couples means that in public schools this will be taught as an alternative to opposite-sex marriage. To which I retort, so what? Even if that happens, you cannot teach homosexuality into a heterosexual person. I, for one, have known I like girls (I'm a boy) since puberty. This was not taught to me. This attraction I feel for females I have no control over. It's instinctual. Thus, you cannot say that by teaching an alternative lifestyle as normal will turn a heterosexual into a homosexual. I'm sure there is a small probability that it could happen but the percentage will be so small as to be inconsequential to the argument. I can acknowledge that some homosexuals are instinctively heterosexual but choose to be homosexual but I cannot support the argument that ALL homosexuals choose to be homosexuals. That argument fails logic.
History shows us that marriage is nothing more than the recognition of a couple's commitment to one another. Is that such a bad thing, even if you find homosexuality repulsive, to acknowledge that two people want to be committed to each other when they are of the same sex? If society is willing to allow same-sex couples to co-habitate, why not extend the word marriage to that relationship?
I was against using marriage for homosexual couples. As a matter of fact, my proposition was to only use the word marriage for couples joined together in a church and to use "civil unions" for couples, including same-sex couples, joined together by a Justice-of-the-Peace or court. After researching marriage and reading the ruling in the Prop 8 case, I changed my mind. In our Country, at one time, some States refused to acknowledge interracial marriages because of the same faulty logic used to not acknowledge same-sex marriages. To not extend the recognition of marriages to all couples who are devoted to each other violates logic. If we are to do that (not recognize a devoted same-sex couple), why don't we all become like the Sneetches in the Dr. Seuss book?
Marriage is not a fundamental right, but maybe to protect a class of people from unwanted vilification by State power, it should be. Which is what the Supreme Court has ruled......
Mike
(Note: I spent four days researching and contemplating this subject. I do not intend to insult anyone so if I did, that was not my intention. For those against same-sex marriages, I hope to show you a line of thinking you might not have thought about.)
References not linked:
Google answers: http://answers.google.com/answers/threadview?id=468306 (Homosexuality and the Bible)
http://skepticsannotatedbible.com/quran/gay/long.html (Homosexuality and the Qur'an)
History of Marriage:
about.com: http://marriage.about.com/cs/generalhistory/a/marriagehistory.htm
psychologytoday.com: http://www.psychologytoday.com/articles/200505/marriage-history
essortment.com: http://www.essortment.com/all/historyofmarri_rimr.htm
It was amusing to listen to the talking heads scream about how one judge overruled the decision of millions of voters. Do they (the talking heads) not realize this is how our system of government is supposed to work? Under our system of government, the wolves and a lone sheep sit down to dinner together and decide what's for dinner. And it won't be the sheep. If majority ruled every time, the rights and privileges of the few would be trampled upon every time. This is not a principle upon which our Country was founded. There will be, no there has be, that one person who stands up for the minority when they are being over run by the majority. In other words, there must be a balance between what the majority wants and the rights of the minority. As long as what the majority wants does not infringe on the rights of the minority, then what the majority wants they'll get. Only when the rights of the minority are infringed will the majority's will get pushed back. This is the reason for judicial review. As I've stated before, even when we don't agree with the ruling, we must support the ruling; to do otherwise would be to fail the principles of our Country.
The ruling is an interesting read. The judge was very thorough in his ruling and at the same time, he was very strategic and very intelligent in the manner in which he rules Prop 8 unconstitutional. The issue before the court was whether a proposition which defined marriage as between a man and a woman infringed upon a same-sex couple's right to marriage under the 14th Amendment's Due Process and Equal Protection clauses.
When confronted with a constitutional right question, the court must first decide if the right is a fundamental right. In this case, the court ruled that it is. His ruling, though, is not a stand-alone ruling. This right has been decided by several past court cases. One of the cases not cited by the judge in Perry v. Schwarzenegger (I do not know if this is how the case will be known, but, by convention, this is the most likely name) is Skinner v. Oklahoma, a 1942 case I've written about in a previous blog.
In Skinner, Justice Douglas said, "Marriage and procreation are fundamental to the very existence and survival of the race." Unfortunately, he did not explain his reasoning for the marriage portion. Procreation, logically, can be seen as a fundamental right. If we were to limit the procreation of a race or group of people, the limitation could spell the end of said group or race. Marriage on the other hand is not necessarily a fundamental right. Unfortunately, the Supreme Court has not ruled this way.
Once a right falls into the "fundamental" category, it must satisfy strict scrutiny. As stated in an earlier blog, to pass strict scrutiny, a law or regulation must fulfill a compelling State interest and must be narrowly drawn to satisfy that interest. In this case, Judge Walker did not review Prop 8 under strict scrutiny. This is his strategic and intelligent ploy used in his decision. Instead, he used the rational basis test.
Under the rational basis test, a law or regulation only has to fulfill a legitimate state interest and be rationally based to do so. Judge Walker failed Prop 8 under this test, the lower of the two tests. Thus, on appeal, a higher court will be less likely to overrule his decision because he utilized a lesser test to fail a law aimed at a right the Supreme Court has ruled fundamental. Brilliant!
So the question now is how is marriage not a legitimate state interest? Marriage is a legitimate state interest. The advocacy of stable families and households aids in the promotion of stable societies. Thus the real question is how is preventing gay marriage related to a legitimate state interest? Unfortunately, it is not. And this is where the defendants (Prop 8 supporters) fell awry of the law.
The defendants' arguments in every aspect of the case were weak and ill-formed premises and conclusions. The plaintiffs' arguments were far superior. For example, the defendants argued that studies show children raised by a mother and a father are more apt to be productive members of society than children not raised in that situation. The flaw in the defendants argument is that the studies they relied on compared families to single-parent households. If you compare a child raised in a same-sex family to a child raised in an opposite-sex family, the results are very similar. Thus, the defendants' argument fails. I'd like to point out, that a child raised by a couple not married is apt to follow the trend of the children of two parent households also. So what does that do to the defendants' argument?
Another argument utilized by the defendants was that marriage is supposed to promote procreation which obviously a same-sex couple cannot do together. This is another severely flawed argument. If you say that marriage is for procreation thus we will not allow same-sex marriages because they cannot procreate, then you MUST ALSO force those opposite-sex couples to DIVORCE (if married) or NOT TO MARRY when one of the pair is found to be sterile. Additionally, you would not be able to allow the marriage of the elderly as their child production days are either numbered or finished. Be careful of the unintended consequences of decisions!
So just what is marriage? To answer this question, you have to look to history. When communities first formed, a man took a woman and they lived together to form a family. The fact that the couple was together was enough to satisfy the marriage aspect. In other words, the basic right of everyone is a right to co-habitate with a person of their choosing. This is the fundamental right. Marriage is only a societal recognition of the basic right of co-habitation. (At the end of my blog will be links to three websites on the history of marriage. It is highly recommended to review this websites. Marriage rituals have changed over the years based on the interjection of religion into the customs of society and also on the changing of the customs of a society.)
The defendants in the Prop 8 debate contend that they cannot tell homosexuals not to co-habitate. The State of California went so far as to allow "domestic partnerships" which recognize the same legal rights as a marriage. The only exception is the use of the word marriage. So, if the Prop 8 defendants acknowledge that homosexuals can life together, and that the same may have the legal rights that a married couple possess, why are they so opposed to the word marriage for same-sex couples? (This was the essence of Prop 8: a fight over the use of a word!)
Many of the opponents of same-sex marriages are religions. The religious people point to the religious doctrine which governs their religion. For example, in the Bible, Leviticus 18:13 states "No man is to have sexual relations with another man; God hates that." Additionally, in Leviticus 20:13, "If a man has sexual relations with another man, they have done a disgusting thing, and both shall be put to death." This is the basis behind the shunning of homosexual couples. I would like to point out that both of those passages relate to MAN and not to WOMAN. In the book of Romans, which is a letter by Paul, there is a reference to female homosexuality but it is not as strong as the passages from the old testament. Thus, the Bible is against male homosexuality and not necessarily female homosexuality. (The Qur'an a similar passage exists, 7:81 "Indeed, you approach men with desire, instead of women. Rather you are a transgressing people.")
The pro-religion people will argue that the passage in the New Testament is an extension or acknowledgment of sin to female homosexuality. They will say that all homosexuality is a sin. To which I retort: 1 Corinthians 5:9-11, "In the letter that I wrote you I told you not to associate with immoral people. Now I did not mean pagans who are immoral or greedy or are thieves, or who worship idols. To avoid them you would have to get out of the world completely. What I meant was that you should not associate with a person who calls himself a brother but is immoral or greedy or worships idols or is a slanderer or a drunkard or a thief. Don't even sit down to eat with a person." This is another letter by Paul, except this time to the Corinthians. Look closely at that passage. God is acknowledging the existence of homosexual people along with other nefarious people and is also acknowledging you CANNOT ESCAPE THEM. Paul is also saying that as long as they don't purport themselves to believe in God the Christian way you can associate with them. Just don't associate with homosexuals who say they believe what is in the Bible.
The right of association is a fundamental right. The First Amendment gives us this right, "Congress shall make no law...abridging..the right of the people peaceably to assemble." This right is explicit in the Constitution. Thus religions do not have to admit homosexuals or assemble with homosexuals. It is their right. So, homosexuality is a sin in most religions. Granted. However, most religions are tolerant of the sins of others. If you are religious and you don't like homosexuality, don't associate with homosexuals. This does not give you any power to tell the rest of society who they can associate with!
Another argument by the religious groups is that by acknowledging marriage can be between same-sex couples means that in public schools this will be taught as an alternative to opposite-sex marriage. To which I retort, so what? Even if that happens, you cannot teach homosexuality into a heterosexual person. I, for one, have known I like girls (I'm a boy) since puberty. This was not taught to me. This attraction I feel for females I have no control over. It's instinctual. Thus, you cannot say that by teaching an alternative lifestyle as normal will turn a heterosexual into a homosexual. I'm sure there is a small probability that it could happen but the percentage will be so small as to be inconsequential to the argument. I can acknowledge that some homosexuals are instinctively heterosexual but choose to be homosexual but I cannot support the argument that ALL homosexuals choose to be homosexuals. That argument fails logic.
History shows us that marriage is nothing more than the recognition of a couple's commitment to one another. Is that such a bad thing, even if you find homosexuality repulsive, to acknowledge that two people want to be committed to each other when they are of the same sex? If society is willing to allow same-sex couples to co-habitate, why not extend the word marriage to that relationship?
I was against using marriage for homosexual couples. As a matter of fact, my proposition was to only use the word marriage for couples joined together in a church and to use "civil unions" for couples, including same-sex couples, joined together by a Justice-of-the-Peace or court. After researching marriage and reading the ruling in the Prop 8 case, I changed my mind. In our Country, at one time, some States refused to acknowledge interracial marriages because of the same faulty logic used to not acknowledge same-sex marriages. To not extend the recognition of marriages to all couples who are devoted to each other violates logic. If we are to do that (not recognize a devoted same-sex couple), why don't we all become like the Sneetches in the Dr. Seuss book?
Marriage is not a fundamental right, but maybe to protect a class of people from unwanted vilification by State power, it should be. Which is what the Supreme Court has ruled......
Mike
(Note: I spent four days researching and contemplating this subject. I do not intend to insult anyone so if I did, that was not my intention. For those against same-sex marriages, I hope to show you a line of thinking you might not have thought about.)
References not linked:
The Good News Bible: Today's English version. (1976). NY: American Bible Society
The Qur'an: Arabic text with corresponding English meanings. (1997). Saudia Arabia: Abulqasim Publishing House
Google answers: http://answers.google.com/answers/threadview?id=468306 (Homosexuality and the Bible)
http://skepticsannotatedbible.com/quran/gay/long.html (Homosexuality and the Qur'an)
History of Marriage:
about.com: http://marriage.about.com/cs/generalhistory/a/marriagehistory.htm
psychologytoday.com: http://www.psychologytoday.com/articles/200505/marriage-history
essortment.com: http://www.essortment.com/all/historyofmarri_rimr.htm
Friday, August 6, 2010
Today We Remember the Destruction of Hiroshima
In reality, yesterday was the 65th anniversary of the day we, the United States, dropped one of the most destructive weapons in the history of man on the city of Hiroshima - Japan is 16 hours ahead of Pacific Standard Time. At about 08:15 in the morning of Aug 6, 1945, "Little Boy", the nickname of the first atomic bomb dropped in a war, was released from the B-29 bomber, the Enola Gay. President Truman had made the ultimate decision to wipe out a semi-strategic city. Death toll numbers are varied based on the source. Anywhere from 68,000 to 200,000 died in the blast along with the destruction of most of the city (Downey, pg H-179).
There is much debate about whether we needed to drop the bomb in the first place. Those who are in favor of the decision believe the bombs hastened the end of the war thus saving more lives than those lost in the two atomic bombs (Nagasaki was bombed Aug 9 with "Fat Man"). Those who oppose the decision believe the war was coming to an end anyway and Japan would've surrendered; they call attention to the dissenters in our own government. Obviously there are counter-arguments to both sides of the issue.
On July 26, 1945, the "Potsdam Declaration" was issued. This declaration was, in effect, a "surrender or face utter destruction" ultimatum. The problem with the declaration, from the Japanese standpoint, is that the declaration did not address the status of the emperor. Many Japanese wanted to retain their emperor and were afraid a surrender would end the emperor. (Even today, Japan has an emperor.) On July 29, 1945, the Japanese officially rejected the declaration. Eight days later the Japanese lost one of their cities along with many women and children as collateral damage.
For years the Japanese have been holding a memorial ceremony on this date, Aug 6, to remember those who died in the bombing and to call for total nuclear disarmament of the world. Today, or yesterday for them, was no exception. However, for the first time America sent a delegate to the ceremony. U.S. Ambassador John Rios attended the ceremony as the American representative.
There has been talk that we should apologize for the bombing. Of course, many Americans see this as ridiculous. Japan attacked us at Pearl Harbor first, and without provocation. Additionally, they have never officially apologized for the attack. Japan came close in 1991 when they released a statement saying they had meant to declare war on the US just prior to the attack.
I, for one, have never subscribed to the theory of apologizing for events or actions from the past with which one did not have direct involvement. I find it a ludicrous premise. How can anyone apologize for the actions of another? No one in our government today played a role in the decisions of 1945. Why should we apologize? I think it silly.
However, as I was contemplating my position on this matter, a strange concept came to mind. When we were growing up, anytime we got into an argument or a fight or a scuffle with someone else, what did our parents do to solve the situation? They made us apologize, even when we weren't really sorry. We apologized not because we were sorry; instead, we apologized to begin the road to atonement, to offer that hand of friendship to begin a conciliation. Maybe, just maybe, our parents were onto something.
Some might say we don't have to apologize because we helped rebuild what we destroyed. Some might say we will apologize only after Japan officially apologizes. Some might say we shouldn't apologize because it is a sign of weakness. However, how often have we ever said, "boy Mom and Dad were right" when recollecting some episode from our youth?
Well, maybe Mom and Dad were right. Maybe it's time for us to be the upstanding one and extend a hand in friendship and forgiveness vice a hand connected to the blunt end of a weapon or poised to push a button.....
Mike
References not linked:
Downey, D. (Ed.). (1987). New Standard Encyclopedia. IL: Standard educational corporation.
There is much debate about whether we needed to drop the bomb in the first place. Those who are in favor of the decision believe the bombs hastened the end of the war thus saving more lives than those lost in the two atomic bombs (Nagasaki was bombed Aug 9 with "Fat Man"). Those who oppose the decision believe the war was coming to an end anyway and Japan would've surrendered; they call attention to the dissenters in our own government. Obviously there are counter-arguments to both sides of the issue.
On July 26, 1945, the "Potsdam Declaration" was issued. This declaration was, in effect, a "surrender or face utter destruction" ultimatum. The problem with the declaration, from the Japanese standpoint, is that the declaration did not address the status of the emperor. Many Japanese wanted to retain their emperor and were afraid a surrender would end the emperor. (Even today, Japan has an emperor.) On July 29, 1945, the Japanese officially rejected the declaration. Eight days later the Japanese lost one of their cities along with many women and children as collateral damage.
For years the Japanese have been holding a memorial ceremony on this date, Aug 6, to remember those who died in the bombing and to call for total nuclear disarmament of the world. Today, or yesterday for them, was no exception. However, for the first time America sent a delegate to the ceremony. U.S. Ambassador John Rios attended the ceremony as the American representative.
There has been talk that we should apologize for the bombing. Of course, many Americans see this as ridiculous. Japan attacked us at Pearl Harbor first, and without provocation. Additionally, they have never officially apologized for the attack. Japan came close in 1991 when they released a statement saying they had meant to declare war on the US just prior to the attack.
I, for one, have never subscribed to the theory of apologizing for events or actions from the past with which one did not have direct involvement. I find it a ludicrous premise. How can anyone apologize for the actions of another? No one in our government today played a role in the decisions of 1945. Why should we apologize? I think it silly.
However, as I was contemplating my position on this matter, a strange concept came to mind. When we were growing up, anytime we got into an argument or a fight or a scuffle with someone else, what did our parents do to solve the situation? They made us apologize, even when we weren't really sorry. We apologized not because we were sorry; instead, we apologized to begin the road to atonement, to offer that hand of friendship to begin a conciliation. Maybe, just maybe, our parents were onto something.
Some might say we don't have to apologize because we helped rebuild what we destroyed. Some might say we will apologize only after Japan officially apologizes. Some might say we shouldn't apologize because it is a sign of weakness. However, how often have we ever said, "boy Mom and Dad were right" when recollecting some episode from our youth?
Well, maybe Mom and Dad were right. Maybe it's time for us to be the upstanding one and extend a hand in friendship and forgiveness vice a hand connected to the blunt end of a weapon or poised to push a button.....
Mike
References not linked:
Downey, D. (Ed.). (1987). New Standard Encyclopedia. IL: Standard educational corporation.
Wednesday, August 4, 2010
Time for a Constitutional Amendment to Oust the Congress
In the Declaration of Independence the words "all men are created equal" are written. There has been much debate on the meaning of these words. Even Vice President Joe Biden once told a gathering of like-minded democrats that they should all remember they are equal. Not sure what "equality" he was squawking about, but, we should all be clear about what the words in the Declaration of Independence don't mean which is what he was hinting at: we are all equal in ability or we are equal such that we should be paid the same, or any of those other ridiculous social justice issues he and his ilk use to seduce the electorate.
I can catch a football. I can run rather fast. Does this mean I have the same ability as Chad Ochocinco? Of course not. Chad and I are not equal in ability. He will best me every time. No matter what practice I may undergo, I will never be on the same level as Chad. Also, if I was his age, I, even with extensive coaching, would not be on his level. We are not equal.
The question becomes then, should we be treated differently as human beings based on this difference? No. To quote Temple Grandin, "different but not less." These are powerful words. We are all different from each other, but from a human being standpoint, we are all "equal." Each of us are not less than the other because of our strengths and weaknesses.
This is what the Founders were saying in the Declaration of Independence. They were railing against the "nobility" concept of European law - a concept which declared some people were some how better than others and therefore are entitled to make the rules, to make decisions regarding everyone else. Nobility is based on birthright and the Founders did not believe people were born with a right to rule others. Instead, the Founders said we are all equal. They believed that together we could make laws which respected others. No one is entitled to rule - it must be earned. And thus was born our Country and our Constitution.
But, the Founders left something out of the Constitution. The populous realized what was missing and passed Amendment XXII in 1951. Unfortunately, the 22nd Amendment only fixed one half of the problem. We should now stand together and fix the Constitution for good.
The 22nd Amendment limited the President of the United States to two terms. After FDR had been elected to a fourth term, the people realized that someone in power too long was not a good idea in accordance with our Country's principles. A person could, theoretically, be elected for life unless term limits were set. Even with the balances of power in our Constitution, someone in power is corrupted by power. A President for life is too akin to a King. This is not what we want or need in this country. It is now time to extend that same philosophy to the Congress.
Two months ago, Senator Robert Byrd passed away. He had served from 1958 until his passing. He served 52 years at our expense. In 2003, Senator Strom Thurmond passed away after serving in the Senate since 1956. He served 47 years at our expense. In the Congress there are numerous professional politicians who are reelected, not because they are good at their job; they are reelected because they spend all of their time trying to get reelected. Instead of doing the job description found in the Constitution, they worry more about what they have to do stay in a job at the taxpayer's expense. Additionally, there are people who do not vote with intelligence. Too many people vote in the hopes they get something in return. Hmm, a vote for something in return is that not an element of corruption? Instead of voting who will or could do the best job in the Congress, the electorate continue to vote the same people into the Congress and then complain about the rules and laws which come from those people. And instead of voting them out of office, which is a principle of our Republic, they make the "easy vote."
Should not the same premise to limit the President's term in office (corruption of power, King thinking, etc) also apply to those in Congress? Should they not be limited to serve in the Congress? Should they not be returned to the populous so that they can live like the rest of us under the rules they set up? This is not a strange premise - we only have to go back to the beginning of our country to find it in writing.
The Virginia Bill of Rights , which were based on the English Declaration of Rights and were used to write our Bill of Rights, has a provision which eludes to this premise. "That the legislative and executive powers of the state should be separate and distinct from the judicative; and that the members of the two first may be restrained from oppression, by feeling and participating the burthens of the people, they should, at fixed periods, be reduced to a private station, return into that body from which they were originally taken, and the vacancies be supplied by frequent, certain, and regular elections, in which all, or any part of the former members, to be again eligible, or ineligible, as the laws shall direct."
I repeat, "that the members of the two first may be restrained from oppression, by feeling and participating the burthens of the people, they should at fixed periods, be reduced to a private station." Unfortunately, we do not reduce to a private station the members of Congress such that they feel the burdens with which they have bestowed upon us. It is time for this to occur.
The other day, Glenn Beck showed footage of Rep. Pete Stark (D-CA). This guy feels he is better than everyone. He is in Congress, not because we gave him that honor, but because he is a great man who should rule the rest of us. His pompous and elitist attitude is prevalent in everything he says. Just visit to see for yourself: http://dailyradar.com/beltwayblips/story/pete-stark-raving-mad-strikes-again/.
Rep. Pete Stark has served since 1973. He is up for re-election this year. Something tells me, that even though many of the people in the videos are against Stark, he will get reelected because there are more voters who have no clue about the meaning of their vote and they'll vote him back into Congress.
It is time to remove the Pete Starks and the Barbara "I worked hard to be a Senator so could you please call me Senator vice ma'am?" Boxers and the Nancy Pelosis of the Congress and return them to the populous. It is time to amend the Constitution. We need term limits in the Congress much like what we have for the President.
Now some might argue that some in Congress are good leaders and might be replaced with bad leaders. Uh, that happens under a Republic. We then vote them out. Our government is of the people, BY THE PEOPLE. As far as I'm concerned, everyone should have a go at government. But I will agree with those who argue against term limits that we should balance the term limits such that our good politicians can still provide sound leadership.
With the balancing in mind, I propose the following:
Section 1. No person shall be elected to:
a. The Senate of the United States for more than two consecutive terms, and no person who has held a Senate seat for more than three years of a term to which some other person was elected shall be elected more than once.
b. The House of Representatives for more than four consecutive terms.
c. Either House of Congress if they have served at least one term in the other House of Congress such that the terms they would serve in both Houses would be consecutive terms with each other.
Section 2. For anyone who has fulfilled the term limits of Section 1 of this article, after having not served in the Congress for an amount of time equal to 1/2 of the total time they served consecutively, may be elected to either House of the Congress to again to be subject to the limits of Section 1 as if they had not served previously.
The essence of this amendment would be to:
a) limit Senators to 12 years of consecutive service followed by a 6 year break before they could serve again.
b) limit House of Representatives to 8 years of consecutive service followed by a 4 year break before they could serve again.
c) ensure no one could jump Houses of Congress in an attempt to avoid the consecutive term limits.
This amendment would ensure those in government are returned to the populous such that they live under the very rules which they have passed. Additionally, the taxpayers could save money by ensuring not a single member of Congress gets a pension for their service to the people.
I like my proposed amendment to the Constitution. It's time for term limits. I hope you agree....
Mike
I can catch a football. I can run rather fast. Does this mean I have the same ability as Chad Ochocinco? Of course not. Chad and I are not equal in ability. He will best me every time. No matter what practice I may undergo, I will never be on the same level as Chad. Also, if I was his age, I, even with extensive coaching, would not be on his level. We are not equal.
The question becomes then, should we be treated differently as human beings based on this difference? No. To quote Temple Grandin, "different but not less." These are powerful words. We are all different from each other, but from a human being standpoint, we are all "equal." Each of us are not less than the other because of our strengths and weaknesses.
This is what the Founders were saying in the Declaration of Independence. They were railing against the "nobility" concept of European law - a concept which declared some people were some how better than others and therefore are entitled to make the rules, to make decisions regarding everyone else. Nobility is based on birthright and the Founders did not believe people were born with a right to rule others. Instead, the Founders said we are all equal. They believed that together we could make laws which respected others. No one is entitled to rule - it must be earned. And thus was born our Country and our Constitution.
But, the Founders left something out of the Constitution. The populous realized what was missing and passed Amendment XXII in 1951. Unfortunately, the 22nd Amendment only fixed one half of the problem. We should now stand together and fix the Constitution for good.
The 22nd Amendment limited the President of the United States to two terms. After FDR had been elected to a fourth term, the people realized that someone in power too long was not a good idea in accordance with our Country's principles. A person could, theoretically, be elected for life unless term limits were set. Even with the balances of power in our Constitution, someone in power is corrupted by power. A President for life is too akin to a King. This is not what we want or need in this country. It is now time to extend that same philosophy to the Congress.
Two months ago, Senator Robert Byrd passed away. He had served from 1958 until his passing. He served 52 years at our expense. In 2003, Senator Strom Thurmond passed away after serving in the Senate since 1956. He served 47 years at our expense. In the Congress there are numerous professional politicians who are reelected, not because they are good at their job; they are reelected because they spend all of their time trying to get reelected. Instead of doing the job description found in the Constitution, they worry more about what they have to do stay in a job at the taxpayer's expense. Additionally, there are people who do not vote with intelligence. Too many people vote in the hopes they get something in return. Hmm, a vote for something in return is that not an element of corruption? Instead of voting who will or could do the best job in the Congress, the electorate continue to vote the same people into the Congress and then complain about the rules and laws which come from those people. And instead of voting them out of office, which is a principle of our Republic, they make the "easy vote."
Should not the same premise to limit the President's term in office (corruption of power, King thinking, etc) also apply to those in Congress? Should they not be limited to serve in the Congress? Should they not be returned to the populous so that they can live like the rest of us under the rules they set up? This is not a strange premise - we only have to go back to the beginning of our country to find it in writing.
The Virginia Bill of Rights , which were based on the English Declaration of Rights and were used to write our Bill of Rights, has a provision which eludes to this premise. "That the legislative and executive powers of the state should be separate and distinct from the judicative; and that the members of the two first may be restrained from oppression, by feeling and participating the burthens of the people, they should, at fixed periods, be reduced to a private station, return into that body from which they were originally taken, and the vacancies be supplied by frequent, certain, and regular elections, in which all, or any part of the former members, to be again eligible, or ineligible, as the laws shall direct."
I repeat, "that the members of the two first may be restrained from oppression, by feeling and participating the burthens of the people, they should at fixed periods, be reduced to a private station." Unfortunately, we do not reduce to a private station the members of Congress such that they feel the burdens with which they have bestowed upon us. It is time for this to occur.
The other day, Glenn Beck showed footage of Rep. Pete Stark (D-CA). This guy feels he is better than everyone. He is in Congress, not because we gave him that honor, but because he is a great man who should rule the rest of us. His pompous and elitist attitude is prevalent in everything he says. Just visit to see for yourself: http://dailyradar.com/beltwayblips/story/pete-stark-raving-mad-strikes-again/.
Rep. Pete Stark has served since 1973. He is up for re-election this year. Something tells me, that even though many of the people in the videos are against Stark, he will get reelected because there are more voters who have no clue about the meaning of their vote and they'll vote him back into Congress.
It is time to remove the Pete Starks and the Barbara "I worked hard to be a Senator so could you please call me Senator vice ma'am?" Boxers and the Nancy Pelosis of the Congress and return them to the populous. It is time to amend the Constitution. We need term limits in the Congress much like what we have for the President.
Now some might argue that some in Congress are good leaders and might be replaced with bad leaders. Uh, that happens under a Republic. We then vote them out. Our government is of the people, BY THE PEOPLE. As far as I'm concerned, everyone should have a go at government. But I will agree with those who argue against term limits that we should balance the term limits such that our good politicians can still provide sound leadership.
With the balancing in mind, I propose the following:
Section 1. No person shall be elected to:
a. The Senate of the United States for more than two consecutive terms, and no person who has held a Senate seat for more than three years of a term to which some other person was elected shall be elected more than once.
b. The House of Representatives for more than four consecutive terms.
c. Either House of Congress if they have served at least one term in the other House of Congress such that the terms they would serve in both Houses would be consecutive terms with each other.
Section 2. For anyone who has fulfilled the term limits of Section 1 of this article, after having not served in the Congress for an amount of time equal to 1/2 of the total time they served consecutively, may be elected to either House of the Congress to again to be subject to the limits of Section 1 as if they had not served previously.
The essence of this amendment would be to:
a) limit Senators to 12 years of consecutive service followed by a 6 year break before they could serve again.
b) limit House of Representatives to 8 years of consecutive service followed by a 4 year break before they could serve again.
c) ensure no one could jump Houses of Congress in an attempt to avoid the consecutive term limits.
This amendment would ensure those in government are returned to the populous such that they live under the very rules which they have passed. Additionally, the taxpayers could save money by ensuring not a single member of Congress gets a pension for their service to the people.
I like my proposed amendment to the Constitution. It's time for term limits. I hope you agree....
Mike
Friday, July 30, 2010
I Support the Judge's Decision in the AZ Immigration Law Case
Yes, I support the Judge's decision in the AZ immigration law case. This does not mean that I liked the decision, nor does it mean I fully understand the decision, nor does it mean I agree with the decision, nor does it mean I do not still support the AZ immigration law. It only means I respect the judge's decision and I will stand by the decision.
We are a nation of laws meant to shape a free and ordered society such that we all can live as we see fit without intruding into the domain of others. The only way for this to occur is to have respect for the laws which are passed. We might not all agree or like the law but we must obey the law. If we don't like a law, we can work to change it. Sometimes judgments made by those who have a veto power over the law might rise our ire but a response of defiance cannot be tolerated if we desire for the other laws to maintain our free and ordered society. Right or wrong, the judge's decision is the judge's decision and we must abide by it.
With that said, I shall now do something which might seem odd. I will argue that part of the AZ is unconstitutional - but not utilizing the weak Department of Justice argument that the law tramples on federal responsibilities. Just realize, I do not actually know what was argued or what actually was stated in the decision besides what I've heard from the talking heads. I am going to argue a provision of the statute unconstitutional based on some new knowledge I've gained about our governmental system.
The portion I shall argue unconstitutional is the portion which requires officials during a legal stop with reasonable suspicion that the person involved in the legal stop is an illegal alien to inquire about immigration status. One of the requirements missing from this provision is what law officers are supposed to do once they come across someone who meets this condition. The intent is for the law officer to arrest the suspected illegal alien. Now this would apply to anyone who could not prove they are a legal alien or citizen. How long does this process take? This is where the law begins to stretch from constitutionality into unconstitutionality.
Hypothetical situation: Individual stopped for speeding. His English is not the best in the world. He is very nervous and lapses back into his native language. The police officer asks for his driver license and registration. Unfortunately, the driver forgot his wallet thus does not have proof of who he is. The name on the registration is his name but it's a common foreign name. The nervousness coupled with the broken English and the lack of a driver's license raises the suspicion of the officer. Is this guy an illegal alien or is he legal? What should he do? He radios back to the precinct but the name provided is inconclusive due to similarity with other names. The officer now arrests the man on suspicion of being an illegal alien due to lack of documentation. The problem is that the man has lived in this country for six years and has been a US citizen for the past one year. Is this a problem?
When considering the constitutionality of a law, the court looks at the intent of the law to see if affects a right. If it does, there are several tests which can be applied to verify the law's constitutionality. When rights dealing with life or liberty arises, the court will ask if the right involved is a fundamental right. In this case, detaining someone falls into the fundamental right category of liberty. Now liberty can be taken away with Due Process of Law but the law must provide Equal Protection of the law. This is where the immigration law begins to fall apart.
In Planned Parenthood of Pennsylvania v. Casey (505 U.S. 833, 894), Justice Sandra Day O'Conner states, "The proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant." In the AZ immigration law there are several groups for whom the law is irrelevant. Among these are legal citizens carrying legal identification, legal immigrants or other foreigners with legal and proper identification, and even illegal immigrants. The law becomes a restriction upon those who are legal citizens who by their look and their speech might lead one to believe they are not legal citizens who do not have identification upon their person. This class of people is the class we are concerned with in this discussion.
To look at this another way: two people are stopped for speeding: One who is white without a driver's license and one who is Oriental without a driver's license. What happens in each case? Without the AZ law, both are cited for not speeding and for not having a license. With the AZ law, the Oriental person, based on circumstances, could be detained longer than the white to verify immigration. How long that detainment lasts depends on the speed of the system in verification of the person's immigration status. Thus the Oriental's liberty is being denied, not necessarily without Due Process of Law, but based on not being Equal Protection of the Law.
To pass the Equal Protection Clause, the law must be "applicable equally to all in like condition," Justice Oliver Wendell Holmes, Jacobsen v. Massachusetts (197 U.S. 11, 30). In the above scenario, two separate people are being treated differently. The reason they are being treated differently is because of certain traits associated with that person: race, color, nationality. When these traits become evident, this invokes the "strict scrutiny" test for constitutionality.
Under strict scrutiny, the State must prove that the intent of the law fulfills a "compelling state interest" and that the law is "narrowly drawn to satisfy this compelling interest." It is a valid state interest to ensure illegal immigrants are not in the state. It is a compelling state interest to remove said illegal immigrants from the state, especially if some of those immigrants are committing crimes against the populous of the state. The question then is the law "narrowly drawn" to satisfy this interest?
One only has to look to Skinner v. Oklahoma (316 U.S. 535) for the answer. In this case, thrice convicted felons were subject to sterilization because, at that time, it was believed criminal traits could be inherited from the parents. The problem with the law is that those subject to sterilization were "blue collar" criminals and not "white collar" criminals. Thus someone stealing $50 in a robbery three times was subject to the law while someone who embezzled $50 a hundred times was not. Why was this significant? Blacks committed most blue collar crimes while whites committed most white collar crimes. Thus Justice Douglas stated, "it has made as invidious discrimination as if it has selected a particular race or nationality for oppressive treatment." Thus the sterilization law was declared unconstitutional for failing substantive due process.
The AZ law is not narrowly drawn to protect the liberty of a legal US citizen such that they will not be detained any longer than another US citizen who is of a different race or national origin. Much like Skinner, a discrimination of national origin is subjecting a class of persons to oppressive treatment in a violation of the Equal Protection Clause. This means the law has stretched its umbrella of illegality over a legal action. Since the legal action is related to liberty - a fundamental right - the law must be declared unconstitutional.
The counter argument to this, which is made during many Supreme Court decisions, is that the number of people who would actually be denied liberty unjustly would be so small that it is unwarranted to declare the law unconstitutional. The problem with this argument though is our criminal system is based on the belief it is better to let a murderer go free to kill again than for the state to imprison an innocent person. Both are egregious actions, but the removal of freedom by state power outweighs the egregious nature of killing. We must stand by this principle even when our morals are assaulted.
I still agree with the AZ immigration law as written. However, I respect and stand by the judge's decision.
Mike
References:
Supreme Court Media: http://www.oyez.org/
We are a nation of laws meant to shape a free and ordered society such that we all can live as we see fit without intruding into the domain of others. The only way for this to occur is to have respect for the laws which are passed. We might not all agree or like the law but we must obey the law. If we don't like a law, we can work to change it. Sometimes judgments made by those who have a veto power over the law might rise our ire but a response of defiance cannot be tolerated if we desire for the other laws to maintain our free and ordered society. Right or wrong, the judge's decision is the judge's decision and we must abide by it.
With that said, I shall now do something which might seem odd. I will argue that part of the AZ is unconstitutional - but not utilizing the weak Department of Justice argument that the law tramples on federal responsibilities. Just realize, I do not actually know what was argued or what actually was stated in the decision besides what I've heard from the talking heads. I am going to argue a provision of the statute unconstitutional based on some new knowledge I've gained about our governmental system.
The portion I shall argue unconstitutional is the portion which requires officials during a legal stop with reasonable suspicion that the person involved in the legal stop is an illegal alien to inquire about immigration status. One of the requirements missing from this provision is what law officers are supposed to do once they come across someone who meets this condition. The intent is for the law officer to arrest the suspected illegal alien. Now this would apply to anyone who could not prove they are a legal alien or citizen. How long does this process take? This is where the law begins to stretch from constitutionality into unconstitutionality.
Hypothetical situation: Individual stopped for speeding. His English is not the best in the world. He is very nervous and lapses back into his native language. The police officer asks for his driver license and registration. Unfortunately, the driver forgot his wallet thus does not have proof of who he is. The name on the registration is his name but it's a common foreign name. The nervousness coupled with the broken English and the lack of a driver's license raises the suspicion of the officer. Is this guy an illegal alien or is he legal? What should he do? He radios back to the precinct but the name provided is inconclusive due to similarity with other names. The officer now arrests the man on suspicion of being an illegal alien due to lack of documentation. The problem is that the man has lived in this country for six years and has been a US citizen for the past one year. Is this a problem?
When considering the constitutionality of a law, the court looks at the intent of the law to see if affects a right. If it does, there are several tests which can be applied to verify the law's constitutionality. When rights dealing with life or liberty arises, the court will ask if the right involved is a fundamental right. In this case, detaining someone falls into the fundamental right category of liberty. Now liberty can be taken away with Due Process of Law but the law must provide Equal Protection of the law. This is where the immigration law begins to fall apart.
In Planned Parenthood of Pennsylvania v. Casey (505 U.S. 833, 894), Justice Sandra Day O'Conner states, "The proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant." In the AZ immigration law there are several groups for whom the law is irrelevant. Among these are legal citizens carrying legal identification, legal immigrants or other foreigners with legal and proper identification, and even illegal immigrants. The law becomes a restriction upon those who are legal citizens who by their look and their speech might lead one to believe they are not legal citizens who do not have identification upon their person. This class of people is the class we are concerned with in this discussion.
To look at this another way: two people are stopped for speeding: One who is white without a driver's license and one who is Oriental without a driver's license. What happens in each case? Without the AZ law, both are cited for not speeding and for not having a license. With the AZ law, the Oriental person, based on circumstances, could be detained longer than the white to verify immigration. How long that detainment lasts depends on the speed of the system in verification of the person's immigration status. Thus the Oriental's liberty is being denied, not necessarily without Due Process of Law, but based on not being Equal Protection of the Law.
To pass the Equal Protection Clause, the law must be "applicable equally to all in like condition," Justice Oliver Wendell Holmes, Jacobsen v. Massachusetts (197 U.S. 11, 30). In the above scenario, two separate people are being treated differently. The reason they are being treated differently is because of certain traits associated with that person: race, color, nationality. When these traits become evident, this invokes the "strict scrutiny" test for constitutionality.
Under strict scrutiny, the State must prove that the intent of the law fulfills a "compelling state interest" and that the law is "narrowly drawn to satisfy this compelling interest." It is a valid state interest to ensure illegal immigrants are not in the state. It is a compelling state interest to remove said illegal immigrants from the state, especially if some of those immigrants are committing crimes against the populous of the state. The question then is the law "narrowly drawn" to satisfy this interest?
One only has to look to Skinner v. Oklahoma (316 U.S. 535) for the answer. In this case, thrice convicted felons were subject to sterilization because, at that time, it was believed criminal traits could be inherited from the parents. The problem with the law is that those subject to sterilization were "blue collar" criminals and not "white collar" criminals. Thus someone stealing $50 in a robbery three times was subject to the law while someone who embezzled $50 a hundred times was not. Why was this significant? Blacks committed most blue collar crimes while whites committed most white collar crimes. Thus Justice Douglas stated, "it has made as invidious discrimination as if it has selected a particular race or nationality for oppressive treatment." Thus the sterilization law was declared unconstitutional for failing substantive due process.
The AZ law is not narrowly drawn to protect the liberty of a legal US citizen such that they will not be detained any longer than another US citizen who is of a different race or national origin. Much like Skinner, a discrimination of national origin is subjecting a class of persons to oppressive treatment in a violation of the Equal Protection Clause. This means the law has stretched its umbrella of illegality over a legal action. Since the legal action is related to liberty - a fundamental right - the law must be declared unconstitutional.
The counter argument to this, which is made during many Supreme Court decisions, is that the number of people who would actually be denied liberty unjustly would be so small that it is unwarranted to declare the law unconstitutional. The problem with this argument though is our criminal system is based on the belief it is better to let a murderer go free to kill again than for the state to imprison an innocent person. Both are egregious actions, but the removal of freedom by state power outweighs the egregious nature of killing. We must stand by this principle even when our morals are assaulted.
I still agree with the AZ immigration law as written. However, I respect and stand by the judge's decision.
Mike
References:
Supreme Court Media: http://www.oyez.org/
Friday, July 23, 2010
Inspiration from Glenn Beck
The beckoning of my school work means a shorter topic today. Instead of any of the topics mentioned in my prior blog entry, I side track slightly for another inspirational and uplifting entry. This now begs the question, "inspiration from Glenn Beck?" I know the mainstream media paints Mr. Beck as a loon or as someone trying to destroy America. Those who actually watch his show know better. He's funny. He's entertaining. He's enlightening. Yes, I said that word, "enlightening." The topics Glenn Beck discusses come from the very people who blast him. If you ever doubt Mr. Beck, all you have to do is look up the resources he cites.
I can't stand Joy Behar. She's truly a misguided loon. Yet I will watch her show. Not only to ensure I know the viewpoints of an enemy of America and capitalism, but also, for some of the entertaining aspects of her show. So if you view Glenn Beck as the devil and you've never watched the show, I challenge you to watch his show. He might prove you wrong. Of course there's the chance, he'll prove you right.
On Tuesday's show, Glenn, on his trusty blackboard, wrote a series of phrases to help Americans better their country. He is having a rally on Aug 28 in the same spot Martin Luther King Jr gave his famous, "I have a dream" speech. The rally is called "Restoring Honor Rally." On Tuesday, Glenn was showing us how to better ourselves to better our Country.
What he wrote:
1) No peace without HOPE
2) No hope without LIBERTY
3) No liberty without INTEGRITY
4) No integrity without VIRTUE
5) No virtue without ENLIGHTENMENT
6) No enlightenment without TRUTH
I believe he left off one statement: No truth without KNOWLEDGE
To better yourself you need to start at the bottom and work your way to the top. Improve your knowledge. Don't be like the President and his administration who rely on half-truths and innuendos without all of the facts before they speak. Use source material to improve your knowledge. Then you will know the truth.
After you've gained truth, you will possess enlightenment as you understand what is happening around you. With the gaining of enlightenment, you will have virtue - goodness, morality, or uprightness. By possessing virtue, this will help you to have integrity. With integrity, you know liberty and the essence of what liberty represents. Understanding liberty brings about the hope necessary to believe in the future. And from hope springs peace because once people have hope based off of liberty based off of integrity based off of virtue based off of enlightenment based off of truth founded in knowledge, people know how to live together to achieve all of those traits with each other.
I applaud Glenn Beck for this inspiration. I applaud Glenn Beck for his rally to restore honor to our government and our country and our world. Even if you don't like Mr. Beck, you must agree, his words of inspiration can be used by all ideologies.......
Mike
I can't stand Joy Behar. She's truly a misguided loon. Yet I will watch her show. Not only to ensure I know the viewpoints of an enemy of America and capitalism, but also, for some of the entertaining aspects of her show. So if you view Glenn Beck as the devil and you've never watched the show, I challenge you to watch his show. He might prove you wrong. Of course there's the chance, he'll prove you right.
On Tuesday's show, Glenn, on his trusty blackboard, wrote a series of phrases to help Americans better their country. He is having a rally on Aug 28 in the same spot Martin Luther King Jr gave his famous, "I have a dream" speech. The rally is called "Restoring Honor Rally." On Tuesday, Glenn was showing us how to better ourselves to better our Country.
What he wrote:
1) No peace without HOPE
2) No hope without LIBERTY
3) No liberty without INTEGRITY
4) No integrity without VIRTUE
5) No virtue without ENLIGHTENMENT
6) No enlightenment without TRUTH
I believe he left off one statement: No truth without KNOWLEDGE
To better yourself you need to start at the bottom and work your way to the top. Improve your knowledge. Don't be like the President and his administration who rely on half-truths and innuendos without all of the facts before they speak. Use source material to improve your knowledge. Then you will know the truth.
After you've gained truth, you will possess enlightenment as you understand what is happening around you. With the gaining of enlightenment, you will have virtue - goodness, morality, or uprightness. By possessing virtue, this will help you to have integrity. With integrity, you know liberty and the essence of what liberty represents. Understanding liberty brings about the hope necessary to believe in the future. And from hope springs peace because once people have hope based off of liberty based off of integrity based off of virtue based off of enlightenment based off of truth founded in knowledge, people know how to live together to achieve all of those traits with each other.
I applaud Glenn Beck for this inspiration. I applaud Glenn Beck for his rally to restore honor to our government and our country and our world. Even if you don't like Mr. Beck, you must agree, his words of inspiration can be used by all ideologies.......
Mike
Wednesday, July 21, 2010
A Knee-Jerk Reaction
I am taking a reprieve from studying today because the topics I want to discuss are mounting a coup in my head. From today's topic, to the topic of the ignoramus bill signed into law today (how does a bill which will cost the taxpayers money while raising banking costs (including credit union banking) protect the consumer?), to the topic of a bill based on a fallacy (the "paycheck fairness act"), the mental pressure to speak out about these issues was getting to me. So this morning while working out at the gym, I wrote the framework for today's topic. This hopefully will minimize the time to write the topic while at the same time provide practice for law school exams. (Law school exams are essay exams. Each question is a scenario from which the exam taker is supposed to identify the issues, discuss the relevant rules, analyze the scenario based on those rules and then provide a conclusion. In a time period that even the professor could not answer the question fully!)
Earlier this week I saw an on-line story about Ms. Shirley Sherrod. The article was detailing the bias in the NAACP towards the Tea Party as lop-sided. A video posted on the website Big Government (the website responsible for the prostitute sting videos against ACORN) showed Ms. Sherrod discussing how she did not help a white farmer (Ms. Sherrod is black). Of course there was much outrage at this "racist" incident. The NAACP called for her resignation and on Monday, the USDA, which is where she worked, called her while she was driving and pressed her for her resignation. Obviously she must have felt this was a "resign or you're fired" type of phone call since they told her to pull over so they could discuss this with her. Thus she resigned.
I snickered when I read the story. I again snickered when I saw the video on FOXNEWS later that day. But something stood out. Something which made me wonder was this over reaction and another example of the misuse of the word "racist." What stood out was the words she used.
Ms. Sherrod was retelling a story in which a white farmer came to her at the Georgia Dept of Agriculture looking for help with his farm so he wouldn't lose his farm to bankruptcy. She says she felt the farmer was talking down to her, much like a superior white would do to a black. Now of course, this is her perception of how he was speaking. This in no way is to say he was speaking in that manner. But that is how she perceived the conversation, so we'll believe her one-side of the issue for now. The key words are then spoken. She, with a half-laugh, says she did not give him her full potential. Her words were "I did not give him the full force of what I could do."
In other words, she HELPED him. However, she did not give him her full effort. If she gave help, but that help was a minimum effort, even if the reason to do so was the color of his skin, is that racism? To give him the minimum effort means she must have given more of her effort to someone else. Unless of course, she always gives the minimum - but I doubt this. If she gave her full effort to struggling black farmers but only gave the minimum to struggling white farmers is this racism? No, it's called AFFIRMATIVE ACTION.
Is that not what affirmative action is all about? She was appearing to favor blacks over whites. This is not necessarily racism. If colleges are required to enroll a certain percentage of underrepresented groups to ensure those minority groups have access to the college, is that not the same thing as providing more assistance to black farmers than to white farmers? I think so. Remember, she did not say she did not help him. She only did not provide the full force of her effort.
Should she have been fired over this? Should she have resigned over this? Of course not. What she did was not egregious, even if she had done this action yesterday. For one, it is not racism. Even though the NAACP came out and said it was racism, it is not. Remember, racism is the believe one race is superior to another. If we allow the umbrella of racism to cast a shadow on prejudices, then words and feelings which are not racism are elevated to the rank of racism. This would mean saying something bigoted like "all blacks eat fried chicken" is on the same level as the KKK calling for the end of interracial marriages because they view white blood is being contaminated by black blood with the birth of interracial babies! This violates logic! This violates common sense! Yet this is what the racist Jackson and the NAACP are accomplishing. It is ridiculous.
Of course, the video was edited. To listen further, Ms. Sherrod states she realized that helping people was not about the color of their skin. Helping people was about assisting poor farmers against rich farmers. This was the purpose of her story. She realized she was wrong and changed. She gave that white farmer the full force of her efforts, and to this day, that farmer's family is gracious to her. I should also mention, in case you don't know, her story happened 24 years ago! That's right, even if what she did was racist, the events happened 24 years ago. This means she was asked to resign over something long ago in the past. Senator Byrd was hailed as a great statesman yet when speaking of his KKK ties, "oh, he was just trying to get elected." Senator Byrd was the head of the West Virginia KKK! We can forgive Senator Byrd but we can't forgive Ms. Sherrod? Ridiculous.
This is not the first sign of a reaction from the Obama Administration or its appointees based on half-the-story. Don't forget about the President and his "stupid Cambridge police" comment. Don't forget about the Administration's reaction to the Arizona immigration law based on news stories vice the actual reading of the law. A knee-jerk reaction does no one any good. A knee-jerk reaction actually makes the situation worse not better.
Shirley Sherrod was the victim of a knee-jerk reaction. Even though the NAACP has retracted their statements based on the new facts, the damage is done. Ms. Sherrod deserved better treatment. She wasn't even given the chance to defend herself prior to the resignation request.
The boy who cried wolf strikes again........
Mike
See the story here: http://www.msnbc.msn.com/id/38321920/ns/us_news-life?Gt1=43001
Earlier this week I saw an on-line story about Ms. Shirley Sherrod. The article was detailing the bias in the NAACP towards the Tea Party as lop-sided. A video posted on the website Big Government (the website responsible for the prostitute sting videos against ACORN) showed Ms. Sherrod discussing how she did not help a white farmer (Ms. Sherrod is black). Of course there was much outrage at this "racist" incident. The NAACP called for her resignation and on Monday, the USDA, which is where she worked, called her while she was driving and pressed her for her resignation. Obviously she must have felt this was a "resign or you're fired" type of phone call since they told her to pull over so they could discuss this with her. Thus she resigned.
I snickered when I read the story. I again snickered when I saw the video on FOXNEWS later that day. But something stood out. Something which made me wonder was this over reaction and another example of the misuse of the word "racist." What stood out was the words she used.
Ms. Sherrod was retelling a story in which a white farmer came to her at the Georgia Dept of Agriculture looking for help with his farm so he wouldn't lose his farm to bankruptcy. She says she felt the farmer was talking down to her, much like a superior white would do to a black. Now of course, this is her perception of how he was speaking. This in no way is to say he was speaking in that manner. But that is how she perceived the conversation, so we'll believe her one-side of the issue for now. The key words are then spoken. She, with a half-laugh, says she did not give him her full potential. Her words were "I did not give him the full force of what I could do."
In other words, she HELPED him. However, she did not give him her full effort. If she gave help, but that help was a minimum effort, even if the reason to do so was the color of his skin, is that racism? To give him the minimum effort means she must have given more of her effort to someone else. Unless of course, she always gives the minimum - but I doubt this. If she gave her full effort to struggling black farmers but only gave the minimum to struggling white farmers is this racism? No, it's called AFFIRMATIVE ACTION.
Is that not what affirmative action is all about? She was appearing to favor blacks over whites. This is not necessarily racism. If colleges are required to enroll a certain percentage of underrepresented groups to ensure those minority groups have access to the college, is that not the same thing as providing more assistance to black farmers than to white farmers? I think so. Remember, she did not say she did not help him. She only did not provide the full force of her effort.
Should she have been fired over this? Should she have resigned over this? Of course not. What she did was not egregious, even if she had done this action yesterday. For one, it is not racism. Even though the NAACP came out and said it was racism, it is not. Remember, racism is the believe one race is superior to another. If we allow the umbrella of racism to cast a shadow on prejudices, then words and feelings which are not racism are elevated to the rank of racism. This would mean saying something bigoted like "all blacks eat fried chicken" is on the same level as the KKK calling for the end of interracial marriages because they view white blood is being contaminated by black blood with the birth of interracial babies! This violates logic! This violates common sense! Yet this is what the racist Jackson and the NAACP are accomplishing. It is ridiculous.
Of course, the video was edited. To listen further, Ms. Sherrod states she realized that helping people was not about the color of their skin. Helping people was about assisting poor farmers against rich farmers. This was the purpose of her story. She realized she was wrong and changed. She gave that white farmer the full force of her efforts, and to this day, that farmer's family is gracious to her. I should also mention, in case you don't know, her story happened 24 years ago! That's right, even if what she did was racist, the events happened 24 years ago. This means she was asked to resign over something long ago in the past. Senator Byrd was hailed as a great statesman yet when speaking of his KKK ties, "oh, he was just trying to get elected." Senator Byrd was the head of the West Virginia KKK! We can forgive Senator Byrd but we can't forgive Ms. Sherrod? Ridiculous.
This is not the first sign of a reaction from the Obama Administration or its appointees based on half-the-story. Don't forget about the President and his "stupid Cambridge police" comment. Don't forget about the Administration's reaction to the Arizona immigration law based on news stories vice the actual reading of the law. A knee-jerk reaction does no one any good. A knee-jerk reaction actually makes the situation worse not better.
Shirley Sherrod was the victim of a knee-jerk reaction. Even though the NAACP has retracted their statements based on the new facts, the damage is done. Ms. Sherrod deserved better treatment. She wasn't even given the chance to defend herself prior to the resignation request.
The boy who cried wolf strikes again........
Mike
See the story here: http://www.msnbc.msn.com/id/38321920/ns/us_news-life?Gt1=43001
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