Emergency Manager Law initiative may not be close enough

The Michigan Board of Canvassers was deadlocked on the approval of a citizen’s initiative petition asking for a popular vote on the emergency manager law.  This is one of those situations where you need a score card to keep up on the game.  Yes, it is a game, one that isn’t being played very well by any of the players.

A group that would like the emergency manager law to go away submitted petitions to have the issue placed on the November ballot in Michigan.  The board of canvassers for the state has the task of certifying the submitted petitions.  The board is made up of two Democrats and two Republicans.  They found that there were more than enough signatures according to the law to approve it for the ballot.  But, the board split on the size of the type on the top of the petition.  The two Republicans said the font size was too small, the two Democrats said something like, “close enough.”

The Constitution of the State of Michigan insures that citizens will have input on state affairs with an initiative.  The state law that governs citizen’s initiatives says that the font size on the headline of the petition must be 14 point type.  (MICHIGAN ELECTION LAW (EXCERPT), Act 116 of 1954, 168.482 Petitions; size; form; contents.)  It is understood that the large font size on the header is an attempt to prevent the head line from being unreadable, meaning that the signer would need to rely on the petitioner for an explanation of the ballot proposal.  This in the past has been problem when petitioners don’t properly represent the meaning of the proposal.

A spokesman for the company that printed the petitions says that the headline is in a 14 point font.  But he could be in trouble if he printed the wrong font size.  What the groups should have done is ask for an approval from the board of canvassers in advance of the actual collection of signatures. 

The committee has promised they will take it to court.  This is where this type of issue should be in the first place.  The members of the board of canvassers should be non-partisan.  But, according the Michigan Constitution, it is to have four members and no party is to have a majority.  To leave a decision about a ballot issue with a partisan committee is to know that there will be trouble.  One party or the other, for political reasons, is not going to want the initiative to get through the board.  The objecting party will place tremendous pressure on their party’s board members to find a reason to not pass the initiative. 

The court could rule that the size of the font is indeed, “close enough”.  The requirement to have a certain font size could be determined to be an unreasonable restraint to an initiative.  They have ruled in the past that way with the timing of petition submissions.

But for now, the law is the law.  Close enough is not close enough since there is a specific requirement in the initiative law for the size of the font.  If the court doesn’t decide to let the initiative on the November ballot, the group will have to start over for the next election cycle. 

Let’s hope they do a better job next time.

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Rights are not absolute

A continuing debate with a couple of readers about absolute rights grew out of posts on gun rights.  The readers all say in no uncertain terms all rights are absolute.  This reply may be deeper than most would like to read, but there are some very basic reasons why rights are not absolute.

Let’s first define the meaning of absolute and a right.  Absolute means that something is always the same under all conditions.  A right is an action that can be taken by someone.  So an absolute right is something that you can do under all circumstances.

Anytime there is a social contract, which could be as simple as two people living together, a family or a community, rights are limited and not absolute.  The only way people can live together is to give up at least the full measure of some rights and others all together.  Even those rights that we retained under the United States social contract, the Constitution, can have limitations placed on them to help build a safe and secure environment.

The original Constitution had no guarantee of rights.  What the Constitution did, was established a frame work for electing a government that would write a set of laws.  With some limitations on what laws the federal government could establish, it was left to the elected officials with support of the people to write laws.  If there was a compelling reason, the elected officials supported by the people, could limit the actions that people took for the common good.

Not that the authors of the Constitution and those that supported it in the various states at the time, didn’t think that rights were important.  Many supported the Constitution with a condition.  They wanted amendments added to guarantee individual rights.  After all they had just tossed out the foreign occupation by a tyrannical government (a government not elected by a free and open election).  But, they also wanted both security and a working frame work that they could depend on for their personal and professional lives.  The forerunner of the Constitution, the Articles of Confederation, was a disaster.  The unrestraint rights that the individual states had under that charter worked against all the other states.  Without the ability to limit the rights of individuals, institutions and states for the common good, the union was nearly torn apart.

Even some libertarians (which generally describe the political beliefs of those that I am addressing this response) believe that rights can be curtailed and are not absolute.  Morris and Linda Tannehill, in the book The Market for Liberty, write, "Rights are not inalienable.”  Their theory is that an individual gives up their right if force is used against another that causes detriment.  This is the point from above and the formation of a social contract.  The only difference between libertarians in this case and federalist at the time of the Constitution was who would require the individual that committed a crime to be punished.

Communities are in near continuous debate on the limits of individual rights.  If we are to find the balance between freedom and the protection of others, the debate must be robust and flourish.  But, to assume that individual rights are absolute and can’t be restricted based on a compelling reason to prevent harm to another living in the community is false.

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Why gun rights are different than other rights

With the national convention of the National Rifle Association (NRA) this weekend, it is a great time to examine gun rights.  As one of the most powerful special interest groups in Washington and in every state capital, the association gets its perverted way more than not.  It has evolved from an organization that was promoting safety and use of firearms to a “civil rights” group that is fueled by manufactures whose only interest is to sell more guns.

The NRA has it wrong for the most part.  They believe that any regulation of guns is going against what the founders had planned for us.  But, of all the rights we retained in our social contract with one another and with the signing of the Constitution, the right to bear arms is different.  It warrants greater restrictions than others because of the differences.

First, rights retained are not absolute.  If the community has a compelling reason it can restrict a right.  If the exercise of a right by an individual will directly cause harm to someone, the community not only has the right but the compelling responsibility to restrict it. 

Next, all rights have been restricted.  Speech has been restricted by fighting words, pornography and libel.  Assemblies of people can’t restrict the movement of emergency vehicles.  The property we own can’t have structures that may cause harm to the neighbors.  Even the right to face an accuser can be revoked it if is reasonable to believe that the witness’ safety is in grave danger. 

Finally, and perhaps the most important issue, the full exercise of the right to bear arms carries with it a risk that no other right carries.  If someone is shot and killed, the victim can’t stand up and respond.  Yet, if a speech is given that criticizes a politician for his policies the politician can stand up to respond.  If a group of people assemble to protest that same politician’s policy, he can gather another group of people to assemble in support of his policies.  No one is directly harmed.  But, when someone is shot and killed, all rights are lost at that point.

We didn’t give up the right to own weapons, the NRA has that correct.  Many people disagree on the meaning of the second amendment, but in the end, it does provide at the very least the right to own weapons.  But, a right retained doesn’t mean we also didn’t provide the community with the responsibility to insure a safe and peaceful environment.  A community may not prevent ownership of weapons to members in good standing but it does have the right to reasonably restrict the possession and use. 

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Freedom of speech and employee speech in Guillen case

Many people are talking about Ozzie Guillen’s mere five day suspension as manager of the Miami Marlins for talking to the press about his affection for Fidel Castro.  Some are saying that Guillen has a right to express his political views and should not have been suspended.  But, this isn’t a case of freedom of speech, although there is growing concern about the line between company employee and private lives.

In a recent interview with Time Magazine, Guillen said that he “loves Fidel Castro”.  It is something he expressed a few years ago while working for the White Sox.  It is hard to believe that Time interviewed him because he was just another immigrant from Venezuela that made good.  If that was the case, he would have had wider discretion about his freedom of speech.  Time was interviewing him because he was a major league manager of a baseball team.  In that role, he has to put on his employee face and give the answers that support his team and the sport.  Just as any employee would if being interviewed by the magazine or talking to a customer about the products or services the company sells.

Those that follow the Supreme Court know well that the justices are always looking for the line between the issue they are judging and everything else.  At what point did the defendant cross the line?  Or, if the case that is in front of the court is a violation of constitutional rights, where does the right start and end?  In Guillen’s case, where is the line between his private life and that of manager of the Miami Marlins.

There are other situations around the country that aren’t as well known.  Here in Michigan, a teacher claims she was fired from a charter school because she was helping raise money for the Trayvon Martin family.  In another part of the country, a military man is being drilled out of the service because of his criticism of the current military policy of the military and the administration.  On a more personal level, we have all been tempted to say something at work, but have not for fear it would be something we regret.

The truth is, there isn’t a blanket right to express your personal thoughts whenever you want.  Remember, rights are not absolute.  Employees make a choice to work somewhere even in bad economic times when there are few choices.  Employers, as in the case of Guillen, have broad discretion when it comes to controlling the speech of their employees while on the job.  And, it has nothing to do with the First Amendment.  The only time the line between the freedom of speech and an employer’s time clock becomes blurred is when there is illegal activity or when the employee is clearly not on the clock.

But, what we all must be on guard about is when an employee isn’t on the job or when not representing the company at the time.  Corporate America would love to control our every action to assure that their image is solid.  Most companies, though, realize that it is better to take a softer line when an employee isn’t on the job out of respect for the employee’s privacy rights.  (Remember, there is a right to privacy in our legal system and community.)

Guillen, in my opinion, may end up being fired because of the outrage of the Cuban community in Florida and across the country for his remarks in support of the Cuban dictator.  No matter how good Guillen thinks Castro is, he is still a dictator.  As an employee, speaking as an employee, Guillen should have kept his mouth shut until he was off the clock. 

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Grand jury rights for all

One of the last hold outs of the numerated rights guaranteed in the Constitution that haven’t been extended to every individual through the states is a grand jury.  It just might be time for that to happen.

The Fifth Amendment in the Constitution in part states:

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury…"

The original Constitution, before the 14^th Amendment, was interpreted to be applied only to the Federal Government.  Before the 14^th, the Supreme Court consistently allowed the states great leeway in the rights that they allowed and those that they did not.  But, the 14^th Amendment changed all of that, well, most of it.  Speech, assembly, trial by jury and many other things that are taken for granted now, where not always allowed by the states. 

Now, in the Trayvon Martin case in Florida may be just the case needed to push the guarantee of a grand jury to the Supreme Court.

A special prosecutor was appointed by Florida’s governor to investigate the shooting death about two months ago of a 17 year old by a neighborhood watch captain.  News media following the case have reported that the special prosecutor appointed has never used a grand jury in her 25 year career.  In the last couple of days, she has stated that she will not be using a grand jury and the decision to indict will be her’s alone based the evidence.

Rallies and marches have taken place bringing nation attention to the case.  As a result, the news media has reported the various details about the case.  Many of the details released swung in support between the shooter and the victim.  For the observer, it has been confusing at best and impossible to follow at worse.  The need for a special prosecutor had become apparent from early on and the governor did the right thing in appointing one, if the move is honest, sincere and not politically motivated. 

There is no doubt that an unbiased, intelligent prosecutor could gather the evidence and organize it in a way that would make it easier to understand.  But, we do have checks and balances in our system of government. (Hey, in a nod to a previous post, the term “checks and balances” can’t be found in the Constitution.)  In every function of government, we need a process that checks the details and develops an opinion on the evidence from someone that isn’t invested in a particular outcome.  The special prosecutor will have an investment in the outcome, whether personal pride or political.  If a grand jury were to review the evidence and issue an opinion, the community could have a much better confidence in the outcome.

States though, don’t have to present evidence to a grand jury.  In many cases, prosecutors are allowed to study the evidence and issue an opinion to indict or not.  First, this is a situation where even though it isn’t a clearly stated right in the Constitution for states to call a grand jury, states should.  By adding the grand jury to state judicial systems that don’t use them now, everyone in the country can enjoy the same rights in their own state that were intended solely for our relationship with the Federal government.

Additionally, depending on the ultimate outcome, this could be the case that sets up a challenge.  The defendant, if the shooter is indicted, could appeal to the Supreme Court for protection under the Fifth Amendment.  The lawyers are on record of implying that to indict without a grand jury would be a mistake.  (Since the writing of this blog, the current lawyers have withdrawn from the case, but the issue of indictment without a grand jury is there.)

It would be better to just apply the wisdom of the Constitution to the states.  The confidence in the local community’s government would be so much greater.

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The Constitution is over rated

Every time we get into a discussion about rights, we argue over if it is allowed by the Constitution of the United States.  It has become our go to document on the rights of human beings.

But, think about these issues.  Rick Santorum thinks that we don’t have the right to privacy because the word privacy isn’t mentioned in the Constitution.  Also, don’t look to the Constitution to insure that you are innocent until proven guilty, it isn’t there.  While the Constitution outlines many ways that States can’t deny someone to vote such as by gender or race, the document doesn’t guarantee the right to vote.  As a final example, but not the end of the misconceptions, the words “separation of powers” can’t be found in the Constitution.

The Constitution may be a guide on our rights, but is not the final word.  If we were to only have those rights that are numerated in the document, we would limit ourselves.  Even if we made an attempt to list every right, it would still be an incomplete list.  Many of the people that helped write the Constitution were leery about adding the “Bill of Rights” because there were concerned that it would be seen as a complete list.  They didn’t see the document as the final say on our rights, which we retained, but limiting what the government could do.

Need an example?  Remember a few years ago when cities around the country were taking property and giving it to developers?  The Supreme Court’s interpretation of the Constitution, led by the strict constructionist, said that property could be taken and given to developers that would increase the tax base of the city.  In just a few short months, states past laws that made it illegal.  Even though the Constitution seemed to allow the taking of property, people across the country realized that we had more rights than listed in the old document and enacted laws that guaranteed those rights.  (This is happening again in our country.  Property is being taken by the states of Texas and Oklahoma for the pipeline.  Something the Republicans have wanted to do for a long time and that Obama was trying to protect until he reversed course.)

Something is over rated if it is seen as being more than it is.  The Constitution of the United States is a great document, one that every country should adopt.  But, it is not the final word on our rights, it is just the base.  We have plenty more than listed and we should work with legislatures to ensure those rights.

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No more room to push people away

It used to be that when people weren’t happy with the way things were, they could get up and move.  If the official religion was to their liking, they moved.  If they didn’t like the people in office or the way the government was run, they moved and started their own. 

This was the reason the Europeans came to the New World other than to find wealth or follow wanderlust.  People from a religious sect that was being persecuted in the “Old World” came to this new land.  They set up their own communities and declared their religion the official one.  There were waves of them each finding a beach to settle.  Of course, they had to push a few Native Americans around, and, in the end killing more than a few.  But, each group made themselves a home and could dictate what the cultural norms were in their stretch of real estate.

Soon, the coast became too crowed.  People were bumping into each other and religious and social conflict arose.  The early settlers than began to move inland, pushing even deeper into territory they convinced themselves was rightfully theirs.  Before long, Americans moved deep into the west.  There they found plenty of resistance from the Native Americans and the Spanish who moved up from Mexico into the southwest and California.  Wars were fought and people died, all in the name of freedom and expansion.

Well, we have run out of room to explore, conquer and declare our own.  Now, there are all kinds of people living in the same space, especially here in America.  Religions, cultures and personalities are bumping into each other.  We can’t expect the same old solutions, that everyone conform or go find your own piece of real estate.  There is nowhere for anyone to move. 

This isn’t happening to just one small town.  It is happening across America.  What was once a country made up of states with hundreds of small communities, is now one big market. 

Our reactionary instincts that are being articulated by many of our more conservative politicians are asking us to save the country of old.  They are asking, demanding, that we dampen down the errand cultures that have invaded our communities (or worse yet, have been home grown by liberals that want to destroy America) and force everyone to conform to an idealistic America that somehow got lost.  Just vote for them and they will fix what is wrong with America, as if there is something wrong, and return us to the glory days of old.  What, to again return to the days when we explored, conquered and then declared someone else’s land our own – to make room for more freedom?

We can’t do that anymore.  It won’t work, as if it really worked in the past.  Look at the Trail of Tears and tell me that by moving the errand cultures out of our idealistic American communities made us a better land, a better culture.

It’s not stiff backs that stand up to change that we need, it is acceptance and tolerance.  Even if it was right in the past to push cultures and religions that challenge the local norms out of the community, it isn’t the solution now.  There is no place to run anymore.  (There wasn’t then, but to cover all the people that were killed and cultures that were destroyed in this blog would have lost focus on the direct point.)  There does need to be standards – people can’t be harmed.  But what harm comes from allowing people to express their own personalities and that of their religion and culture in a peaceful way?

None, is the answer, none.  The better way is to learn from all the other cultures that live around us. 
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