In a recent decision, the Supreme Court ruled that a community can’t ban the possession of guns. It is a right that is not only safe guarded specifically in the Second Amendment of the Constitution, it is a right that is guaranteed by the Nine Amendment.
That's right, the Ninth amendment. Even if there wasn’t a Second Amendment, the Ninth states that just because the document listed some of the rights that people have (the Bill of Rights), doesn’t mean it is all the rights that are “retained by the people.”
An argument that could be applied is that if the voters of the community decide they don’t want anyone owning a gun, even for a very good reason, then the government should not have the right to trample on the rights of the voters by declaring the law unconstitutional. That would be absolutely true if we lived in Greece 2,500 years ago. At that time, the form of government was a straight forward democracy. In a democracy, the majority rules absolutely. If one more voter supported the banning of guns than the other side, there would be no guns. And, more importantly, the Supreme Court would have nothing to decided, the voters have spoken.
But, we live in a constitutionally limited republic. The difference from a straight forward democracy is that the majority does get to make the rules but they can’t make rules that violate the rights of the minority without good reason.
In California, Chief U.S. District Judge Vaughn Walker ruled that the ban on gay marriage passed by the voters of California is unconstitutional. Charles J. Cooper, the lead counsel defending the ban, said, “The decision whether to redefine the institution of marriage is for the people themselves to make, not a single district court judge…” (1) The attorney seems to believe we are living in a democracy and not a republic.
As stated above, something can't be banned just because a majority of voters support it. In this case, the rights of people who would like to marry, the minority, would be violated. In a constitutionally limited republic, the government can not allow the rights of the minority to be violated without good reason.
The U. S. District Judge made the best ruling possible in the case of marriage.
(1) http://www.theoaklandpress.com/articles/2010/08/13/news/cops_and_courts/doc4c645dd9dfda6976950235.txt
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Responsible Community Working Together in Shared Responsibility.
Friday, August 13, 2010
Monday, August 9, 2010
Interpretation of the Constitution
As an example of the shifting community standards and how the Constitution applies we should examine the use of pillory and red lettering as punishment. Judges and juries issued both forms of punishment during the time of the writing of the Constitution. There were no appeals at the time for what would be considered today cruel and unusual.
The Supreme Court at the time didn’t take such cases because the punishments were not usual, if they were cruel. In fact, discussion at the time of the adoption of the Constitution, according to the book “Discussion on the Adoption of the Federal Constitution”, was concern that the form of punishment discussed above and others at the time would be made unconstitutional if it was adopted. But, cases that tested the cruel and unusual clause of the Eight Amendment, didn’t come forward until many years later.
In today’s society both punishments, pillory and red lettering, most likely would be ruled by the Supreme Court to be both cruel and unusual. But, by looking at the original intent, both were not considered unconstitutional at the time. So, what is the reasoning behind declaring both cruel and unusual when it was clear at the time that the authors of the constitution and the legislatures that approved it didn’t think they were?
It is that the authors, in this case specifically and in the entire document with some exceptions, intended the Constitution to be interpreted with some consideration to the contemporary standards. The authors used vague language at times, modifiers, conditional phrases and other things to weave together a document that could be approved at the time and would last more than a few years as did the Articles of Confederation.
In this specific case, they used the terms, “cruel and unusual”. Courts would need to rule that a punishment was both cruel and unusual, as they have throughout history. This would allow the community standards at the time of the writing of the Constitution to stay in place, but, as one debater observed at the time, “if a better way can be created, then so be it.”
When there was full agreement on an issue they wrote in very exacting terms. They didn’t use the same phrasing used in those parts of the Constitution where they were concerned about finding a compromise. The primary example of which is The No Religious Test Clause Article VI, section 3. It would appear that no one had any objection to insuring that no office holder or appointee had to be of a certain religion, or religious at all.
The authors of the document tells us by the words they used how to interpret the Constitution. When they felt strongly about an issue and where able to work without much compromise, they used very clear language. This tells us in itself something even greater than the clarity on the issue the authors were addressing. This tells us that when they were able to and wanted a strict interpretation, they could use clear language. But, when the authors were intending to allow contemporary community standards (and, by extension perhaps, community standards) to have some weight in a decision, they used more vague language that would allow some room to shift the application of the established principles.
There is room in the interpretation of the Constitution to consider contemporary community standards. The authors were smart people that had a lot of experience in hammering together a nation. They know that community standards would shift over time and wrote a document that reflected that.
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Friday, August 6, 2010
Where personal responsiblity begins
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| Flowers in the alley |
It starts with flowers along an alley in Pontiac, Michigan. The alley runs south off of Huron Street for two blocks. It is clear the alley has been around for a long time. The base pavement are bricks from at least a hundred years ago. Many other coatings have been added, most of which is breaking up. The back of the buildings that face the alley are in even worse shape. They need repairs, paint, windows and brick work. Weeds and trash are all around.
But, on an entrance to what appears to be a flat are flowers. They are multi colored pansies that were planted in the Spring. They are well watered, healthy and there are no weeds. Someone has taken the time to make this dull, broken alley a little better. Perhaps at their own expense.
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| Bricks falling form a building |
The difference between the two is personal responsibility. Someone that occupies the flat in the alley took personal responsibility to make the community environment just a little better. The person who planted the flowers could have spent money just on themselves, but instead invested in the community. While they may have little or no control over the repairs that are needed on the buildings or the alley, they have made a personal investment.
As for the broken pieces of brick that are falling off the building around the corner, the owner is not doing what he or she can. Since the building repairs have not been made, a hazard has been created. Perhaps the owner is having a difficult time financially, or the bank owns the building, but none of that matters. Someone’s lack of personal responsibility over the things that can be controlled is, well, for lack of a better word, irresponsible.
Personal responsibility is anchored in what you can control and do something about. It is balanced with what is good for the individual, the family and the community. Like the example in the Bible of the poor woman who gave all she could even though she had children to feed, the person that planted the flowers is to be rewarded. The owner of the building who has done nothing with the hazard that is created by the broken pieces of brick falling on the sidewalk needs to answer to the community as to why the repairs have not been made.
The community’s right to know why the repairs have not been made is the beginning of the shared responsibility between the individual and the community.
On a personal note: To the owner of the building, fix it before someone gets hurt. To the City of Pontiac, clear the walk of the bricks and issue a summons to the building owner to answer for the lack of responsibility.
To the person that planted the flowers, you have my respect. It was you that sparked my imagination to write this blog post.
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Wednesday, August 4, 2010
Leave the guns at home during political rallies
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| Gun right supporters at Miller rally (1) |
In a rally for Joe Miller, senate candidate in Alaska that has the support of Sarah Palin and the Tea Party Express, some of the marchers worn guns over their shoulder or strapped to their waist. This is allowed because the guns were not concealed and Alaska is a right to carry state. Miller, a gun rights supporter, said that he wasn’t bothered by the presences of guns at his rally.
The Second Amendment, supported by the Responsible Community, guarantees a person’s right to “bear arms” in the United States. There is disagreement to the full meaning of the amendment, but it does support gun ownership in some way. But no right is absolute. There can be reasonable restrictions placed on gun ownership. As an example, those that have shown a lack of restraint in the past can have their second amendment rights taken away.
But there is also another restriction that should be honored at political and other social gatherings. That is the restriction of personal responsibility. Political rallies are, in the last couple of years, very heated. The political events that were part of the health care debate last year are just an example. People from all sides of the spectrum were their showing their passion – and sometimes nearly uncontrolled anger. If the heated political environment continues at the pace it is and there are guns at the rallies, trouble is going to follow. One side or the other is going to get out of hand.
Remember Kent State at the end of the turbulent ‘60’s. Those deaths happen when there was a command structure in place that was suppose to prevent such events. Yet, fear, anger and a lot of passion got the best of everyone. Even Vice President Spiro Agnew in a David Frost interview at the time said that the killings were an, “over-response in the heat of anger.” (2) That over-response killed four people.
Passion is a part of politics. That can’t be denied. As passion builds in the climate we have, fear and anger can overcome a rational person. If someone has a gun handy or if they are concerned about a weapon that someone else’s has, it is going to become too easy to take action.
Leave the guns at home. We don’t need them at political rallies.
(1) http://www.bradynetwork.org/images/content/pagebuilder/23320.jpg
(2) Stone, I.F. (1970-12-03). "Fabricated Evidence in the Kent State Killings". The New York Review of Books 15 (10). OCLC 1760105. ISSN 0028-7504.
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Saturday, July 31, 2010
Show me the money on illegal immigrant violence
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| Arizona Governor Jan Brewer |
In April, Governor Jan Brewer of Arizona said that the state was going through a crime wave because of illegal immigrants. Illegal’s had “invaded” the state over the last decade and pushed crime up, especially murder and kidnapping.
Well, show me the money, as the expression goes.
The fact is, crime is down. According to the latest reports from the FBI, the four large cities in the U. S. (that is, cities with population over 500,000) with the lowest violent crime are all in the southwest, San Diego in California, Austin and El Paso in Texas and yes, Phoenix, Arizona. Larry Dever, sheriff of Cochise County, where a popular farmer was killed a few months ago and blamed on illegal immigrants says that, “we’re not seeing the [violent crime] that’s going on” across the border.
Arizona has an illegal immigration problem that is only second to California. But, last year, the state’s overall crime dropped 12%. Between 2004 and 2008 it experienced an ever higher drop in crime of 23%. The city of Phoenix had a drop of 17% in violent crime last year and over 33% drop in the past decade.
States, according to the constitution, have not been granted the power to decide who belongs here and who doesn’t. It is the Federal government’s responsibility. Even given some disagreement with the responsibilities, if each state determines citizenship for the country, we will end up with a patch work of legislation that would confuse honest residents and leave gaping holes that could be exploited by those that would do the country harm. (Image, a cop in Michigan determining whose citizenship laws he should know about when arresting an individual.)
The country does have an illegal immigration problem. As with any issue, let’s face the problem on honest and real terms. By making grand statements that are at best just not true, we confuse the issue and raise fears that have no basis. Government has a responsibility to create legislation that is limited to the problem. Unsupported claims of violence in this case only promotes legislation that goes well beyond the limits of government responsibility.
Additional reading:
http://responsiblecommunity.blogspot.com/2010/04/going-backwards-because-of-immigration.html
http://responsiblecommunity.blogspot.com/2010/05/end-immigration-in-five-steps.html
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Friday, July 30, 2010
It's not Sharia Law it is Constitutional Law
A video playing on You Tube has raised the anger of some Christians because of apparent violation of First amendment directed by Muslims and carried out by the police in Dearborn, Michigan. In reality, when the facts are examined, it is the full exercise of the First Amendment right of assembly and as an extension, association.
In a video playing on You Tube entitled, “Sharia in the US” (1), two people, Nabell Qureshi and David Wood visited an Arab Festival in Dearborn, Michigan. There, they found a booth with a banner that said, “Islam: Got Questions? Get Answers.” Qureshi and Wood approached the booth and picked up a pamphlet that stated that Islam promotes peace. When they read the pamphlet they found that they disagreed with the piece and Qureshi and Wood stated that they, “noticed… it was full of poor logic and errors.” They then returned to the booth with cameras running to ask them to defend the opinions in the pamphlet. At this, security from the festival approached them. As the video shows, they eventually are escorted off the grounds by Dearborn Police.
That would seem to be the end of the story. But, Qureshi and Wood assert unfounded assumptions about the reasons for being asked (escorted, forced) to leave the grounds. A statement associated with the video in part reads:
“We [Qureshi and Wood] ask you, is it a coincidence that the city with the highest percentage of Muslims in the United States is the city where Christianity is not allowed to be represented (let alone preached) on a public sidewalk? Is it coincidence that in this city, people will say "No way!" when we say "This is the United States of America"? Is this what will happen when Islam takes over the United States?”
Qureshi and Wood’s assertion is that they were asked to leave because Muslims are forcing Sharia Law in the United States and they are supported by the Dearborn police department. The two say they are believers in the First Amendment right to free speech and the free practice of their religion. According to them, they should have been allowed to stay so they could preach about their religion.
The response by the Dearborn Police to ask Qureshi and Wood to leave was the correct response because of First Amendment rights for the Arab Festival organizers.
Let’s first take a look at the exacting reading of the First Amendment:
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.
In this case, the most important part of the First Amendment is, “the right of the people peaceable to assemble, and to petition the Government for a redress of grievances.” For whatever else can be assumed about the situation that is describe above, it is about freedom of assembly and as an extension of that, freedom of association.
The Constitution guarantees the right to peaceable assemble, that is clearly stated. Over the two centuries since those words were written, the courts have determined that you can’t fully enjoy the freedom of assembly if you can’t assemble with the people that are like minded. After all, the following statement after freedom of assembly in the First Amendment is, “to petition the Government for a redress of grievances.” Groups can’t petition for a redress of their grievances if there are competing factions within the group. It would be confusing at best if at one time speakers were taking one position and then the next speaker was taking the opposite position.
This has been supported in the last few years by important Supreme Court decisions. The first is Hurley v. Irish American GLIB Association (1995 – No. 94-749). The St Patrick Parade organization in Boston was asked by the Irish American GLIB Association, a group that supports rights for gays, lesbians bi-sexuals, to include them in annual Boston St Patrick’s Day Parade. The St Patrick Day Parade organization refused on the grounds that to include them would not properly represent the organization. The Irish American GLIB Association sued. The Supreme Court ultimately ruled that to force the parade organization to include them would, “be a form of coerced speech and violated the organizers’ First Amendment rights” of freedom of assembly. The reasoning was that if we have the right to assemble, it must be with like minded people. Since the parade organization had the required assembly permits, they were in control of who paraded with them.
The second ruling was in Boy Scouts of America v. Dale (2000 – No. 99—699). A gay man wanted to be admitted to the Boy Scouts of America. The organization, as in the above case, refused on the grounds that it would be forced association and would not represent the organization in the way the membership intended. To do so, the court ruled, would, violate the private organization’s rights to freedom of association and expressive association.”
In both cases, the justices favored allowing members of an organization to chose the membership of their organization and participants of their events. To restate the clear intention of the First Amendment, it was to allow people to gather with like minded people to support their point of view. To allow those that would not fully support their point of view would be forced association, something the authors of the Constitution knew about and wanted to avoid.
In the video Qureshi and Wood assert that they were asked to leave because Muslims are forcing Sharia Law in the United states and they are supported by the Dearborn police department. The truth is, because of the Supreme Court rulings and a conservative interpretation of the First Amendment, is simply not the case. The Arab organization clearly had petition the City of Dearborn to assemble on public grounds. It is clear they filed the same paperwork as any other organization or individual would have had to that allow them to assemble with like minded people. This is the same thing that the St Patrick Day Parade organization does every year to march down the streets of Boston since 1762. It is also the same thing the Boy Scouts of America do every time they use public school class rooms for meetings.
The Arab group in Dearborn did not want others that were not like minded at the assembly, so they asked Qureshi and Wood to leave. When they didn’t they were escorted out of the area. The St Patrick Parade organization and the Boy Scouts of America had already asked the Supreme Court to not be forced to associate with people they didn’t agree with. The Supreme Court also fully supported their request.
What appears on the surface to be an infringement of the Qureshi and Wood’s First Amendment rights and that of all Christians, wasn’t. The Supreme Court in this case not only correctly supported the St Patrick’s Parade Organization and the Boy Scouts of America (which, by the way, state on the website of each organization is a Christian organization) and by precedent the Arab organizations right to assembly, but also would allow Qureshi and Wood to hold their own assembly and exclude who they wanted.
(1) http://www.answeringmuslims.com/
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In a video playing on You Tube entitled, “Sharia in the US” (1), two people, Nabell Qureshi and David Wood visited an Arab Festival in Dearborn, Michigan. There, they found a booth with a banner that said, “Islam: Got Questions? Get Answers.” Qureshi and Wood approached the booth and picked up a pamphlet that stated that Islam promotes peace. When they read the pamphlet they found that they disagreed with the piece and Qureshi and Wood stated that they, “noticed… it was full of poor logic and errors.” They then returned to the booth with cameras running to ask them to defend the opinions in the pamphlet. At this, security from the festival approached them. As the video shows, they eventually are escorted off the grounds by Dearborn Police.
That would seem to be the end of the story. But, Qureshi and Wood assert unfounded assumptions about the reasons for being asked (escorted, forced) to leave the grounds. A statement associated with the video in part reads:
“We [Qureshi and Wood] ask you, is it a coincidence that the city with the highest percentage of Muslims in the United States is the city where Christianity is not allowed to be represented (let alone preached) on a public sidewalk? Is it coincidence that in this city, people will say "No way!" when we say "This is the United States of America"? Is this what will happen when Islam takes over the United States?”
Qureshi and Wood’s assertion is that they were asked to leave because Muslims are forcing Sharia Law in the United States and they are supported by the Dearborn police department. The two say they are believers in the First Amendment right to free speech and the free practice of their religion. According to them, they should have been allowed to stay so they could preach about their religion.
The response by the Dearborn Police to ask Qureshi and Wood to leave was the correct response because of First Amendment rights for the Arab Festival organizers.
Let’s first take a look at the exacting reading of the First Amendment:
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.
In this case, the most important part of the First Amendment is, “the right of the people peaceable to assemble, and to petition the Government for a redress of grievances.” For whatever else can be assumed about the situation that is describe above, it is about freedom of assembly and as an extension of that, freedom of association.
The Constitution guarantees the right to peaceable assemble, that is clearly stated. Over the two centuries since those words were written, the courts have determined that you can’t fully enjoy the freedom of assembly if you can’t assemble with the people that are like minded. After all, the following statement after freedom of assembly in the First Amendment is, “to petition the Government for a redress of grievances.” Groups can’t petition for a redress of their grievances if there are competing factions within the group. It would be confusing at best if at one time speakers were taking one position and then the next speaker was taking the opposite position.
This has been supported in the last few years by important Supreme Court decisions. The first is Hurley v. Irish American GLIB Association (1995 – No. 94-749). The St Patrick Parade organization in Boston was asked by the Irish American GLIB Association, a group that supports rights for gays, lesbians bi-sexuals, to include them in annual Boston St Patrick’s Day Parade. The St Patrick Day Parade organization refused on the grounds that to include them would not properly represent the organization. The Irish American GLIB Association sued. The Supreme Court ultimately ruled that to force the parade organization to include them would, “be a form of coerced speech and violated the organizers’ First Amendment rights” of freedom of assembly. The reasoning was that if we have the right to assemble, it must be with like minded people. Since the parade organization had the required assembly permits, they were in control of who paraded with them.
The second ruling was in Boy Scouts of America v. Dale (2000 – No. 99—699). A gay man wanted to be admitted to the Boy Scouts of America. The organization, as in the above case, refused on the grounds that it would be forced association and would not represent the organization in the way the membership intended. To do so, the court ruled, would, violate the private organization’s rights to freedom of association and expressive association.”
In both cases, the justices favored allowing members of an organization to chose the membership of their organization and participants of their events. To restate the clear intention of the First Amendment, it was to allow people to gather with like minded people to support their point of view. To allow those that would not fully support their point of view would be forced association, something the authors of the Constitution knew about and wanted to avoid.
In the video Qureshi and Wood assert that they were asked to leave because Muslims are forcing Sharia Law in the United states and they are supported by the Dearborn police department. The truth is, because of the Supreme Court rulings and a conservative interpretation of the First Amendment, is simply not the case. The Arab organization clearly had petition the City of Dearborn to assemble on public grounds. It is clear they filed the same paperwork as any other organization or individual would have had to that allow them to assemble with like minded people. This is the same thing that the St Patrick Day Parade organization does every year to march down the streets of Boston since 1762. It is also the same thing the Boy Scouts of America do every time they use public school class rooms for meetings.
The Arab group in Dearborn did not want others that were not like minded at the assembly, so they asked Qureshi and Wood to leave. When they didn’t they were escorted out of the area. The St Patrick Parade organization and the Boy Scouts of America had already asked the Supreme Court to not be forced to associate with people they didn’t agree with. The Supreme Court also fully supported their request.
What appears on the surface to be an infringement of the Qureshi and Wood’s First Amendment rights and that of all Christians, wasn’t. The Supreme Court in this case not only correctly supported the St Patrick’s Parade Organization and the Boy Scouts of America (which, by the way, state on the website of each organization is a Christian organization) and by precedent the Arab organizations right to assembly, but also would allow Qureshi and Wood to hold their own assembly and exclude who they wanted.
(1) http://www.answeringmuslims.com/
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Wednesday, July 28, 2010
Filibusters should end
The filibuster may come back into the news in the next couple of months. The senate is considering changing the rules of the senate for the next term, which would start in January after the upcoming election. The current filibuster rules were created to block legislation and appointments with no other reasonable purpose. Congress should abolish it.
The modern filibuster’s creation came out of the 80’s when republicans wanted to block some judicial nominations by then President Clinton. With the support of what could be called the “Super Majority Minority”, just 40 senators, legislation and appointments can be block. This means that a minority of senators can keep action from being taken that 59 senators, a near super majority, deem important.
Filibusters in a simple form have been with human organizations since the beginning of time. Up until the 80’s, it meant that someone who was granted the right to speak could do so until they couldn’t speak anymore. In most cases it stopped the organization from moving forward on all of its business until the filibuster was over. Since this usually lasted from a few hours to a day at most, it provided time for the opposition to gather their supporters or time for information about the decision to reach the constituents. The plan for the filibusters was that the opposition could change the outcome of a vote if they just had a little more time.
Pressure not only came from the both sides of the issue but also because no other business could get done. Everything stopped and people worked at finding a solution.
But, the modern filibuster in the U. S. Senate is different. Now just 40 people can oppose cutting off debate and no vote will be taken. As long as the votes aren’t there to cut off debate, the issues goes nowhere. No deadline for a vote. No debate of the issues. And 40 people can stop the will of the senate from being expressed. Other business that the senate needs to get done just continues.
It is completely legal for 40 senators to control the senate business in a United States. The Constitution says that the senate and the house of representatives can set their own rules with only a couple of exceptions. If it was the will of the senate, they could make it so that just 5 senators in support of legislation could pass it into law.
The senate should change the rules on a filibuster that it takes no more votes to stop debate and vote on an issue than it takes to pass. If it takes a simple majority to pass legislation, it should only take a simple majority to end debate.
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The modern filibuster’s creation came out of the 80’s when republicans wanted to block some judicial nominations by then President Clinton. With the support of what could be called the “Super Majority Minority”, just 40 senators, legislation and appointments can be block. This means that a minority of senators can keep action from being taken that 59 senators, a near super majority, deem important.
Filibusters in a simple form have been with human organizations since the beginning of time. Up until the 80’s, it meant that someone who was granted the right to speak could do so until they couldn’t speak anymore. In most cases it stopped the organization from moving forward on all of its business until the filibuster was over. Since this usually lasted from a few hours to a day at most, it provided time for the opposition to gather their supporters or time for information about the decision to reach the constituents. The plan for the filibusters was that the opposition could change the outcome of a vote if they just had a little more time.
Pressure not only came from the both sides of the issue but also because no other business could get done. Everything stopped and people worked at finding a solution.
But, the modern filibuster in the U. S. Senate is different. Now just 40 people can oppose cutting off debate and no vote will be taken. As long as the votes aren’t there to cut off debate, the issues goes nowhere. No deadline for a vote. No debate of the issues. And 40 people can stop the will of the senate from being expressed. Other business that the senate needs to get done just continues.
It is completely legal for 40 senators to control the senate business in a United States. The Constitution says that the senate and the house of representatives can set their own rules with only a couple of exceptions. If it was the will of the senate, they could make it so that just 5 senators in support of legislation could pass it into law.
The senate should change the rules on a filibuster that it takes no more votes to stop debate and vote on an issue than it takes to pass. If it takes a simple majority to pass legislation, it should only take a simple majority to end debate.
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