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Posts Tagged ‘Constitution’


CNN, you ought to be ashamed of yourselves!

There was a time that CNN lived up to its name as a “Cable News Network”.  These days, it seems it’s anything but the news.  It’s opinion and even then, poorly formed and ignorant opinion.  (I’ll discuss the pit bull, Chris Cuomo, another time!)

As I often do during the day, I’m reading through CNN.com/US and there’s an article about gun control.  The author, Jeff Yang, suggests that an answer to the “epidemic” of gun violence is to make owners of guns get insurance.  The article is stupid enough on its own but simply the fact that CNN would publish it is amazing!

Let’s walk through a few counter-thoughts for a moment:

  1. Requiring doctors to have insurance doesn’t stop malpractice from happening.  It only provides a means for the survivors or victims’ families to carry on, at least financially.  The patient is still injured, suffering, or dead.
  2. Requiring drivers to have insurance hasn’t stopped car accidents from happening.  It only provides a means for financial recovering in the wake of a crash.  The damage is still done, injuries still happened, and in some cases, the dead are still dead.

There is no case I can think of where requiring insurance has prevented a potentially negative event from occurring.  In fact, “requiring” insurance is not always enforced even in cases (such as driving) until or unless an event occurs that brings it to light.  The fallacy of those who think like Mr Yang is the thought process that believes a law will prevent something from happening.  Obviously Not!  Even with all of the thousands of laws on the books today–if not millions–crimes and law violations occur on a regular basis.

Insurance may cause a law-abiding citizen to reconsider gun ownership if the cost of that insurance is too great.  For the criminal, die hard, or mentally ill?  Not necessarily.  And even if a person has insurance for a legally obtained firearm, there is no guarantee that in the heat of the moment, someone will not end up dead.

CNN’s Andre Spicer has an equally ineffective idea:  Let’s convince retailers that selling guns isn’t in their best commercial interest!  Great!  So that takes care of Walmart and introduces more shops that are “gun free” like Starbucks.  It doesn’t get guns off of the streets.  It also does nothing to stop a destructive person from walking into an elementary school with a gun and killing people.  How much more gun-free can you get than an elementary school???

Well, those signs in the windows or at the curbs that says “Gun-Free Zone” were REALLY effective, weren’t they!?!?!?!!!

The only answer to gun violence in this country–or anywhere in the world–is a complete revocation of any rights regarding gun ownership with full surrender, then confiscation, and then extreme punishment for anyone found to own a gun.  At that point, there would almost have to be immediate incarceration on a felony charge with the possibility of life in prison or the death penalty before things would change significantly.

I don’t advocate any of this, by the way!  I don’t advocate anything mentioned up to this point!!!

HOWEVER, I do agree that doing nothing is not the right answer, but there needs to be an unemotional, logical, reasoned out approach, hammered out by liberals and conservatives, and then simply implemented.  Doing SOMETHING and doing the RIGHT THING are not one and the same though.  A change may mean that the Constitution is amended–it has been before and likely will be again.  Not an easy path or a likely one at that.  But if and when it does occur, be prepared to either live by the new rules or to move into the criminal class when you don’t.

And be prepared in that day to live with a lot of other changes that will leave the United States of America less great, less free, and less united!

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It seems that as an NPR listener (but not supporter), I’m barraged on a regular basis with stories about same-sex couples and their plights as they seek one thing or another on a road to parity with traditional, non-same-sex couples.  The coverage has gotten me to sit down and reason through the arguments for and against same-sex marriage.  What I am NOT going to do here is to trot through the religious arguments, or even the “nature” arguments on the topic.  Not relevant here is a discussion on the basis for homosexuality either, or its history in civilization.  What is relevant is what I see as the coming legal response to the issue based on the US Constitution.

Disclaimer 1:  I am not a Constitutional expert.  Then again, I doubt that you are either if you are reading this.

Disclaimer 2:  I do not support same-sex anything.  But that’s not the point here.  It is important for you to keep in mind though as you read on.

Same-Sex Marriage has to become the law of the land!

Federal courts must find in favor of plaintiffs that laws banning same-sex marriage are unconstitutional.

(Remember the disclaimers)

The very nature of this Republic and its Constitution necessitate such an outcome.  Here’s why:

1.  Freedom of Religion:  The leading reason people who are opposed to same-sex marriage will give is that “God created marriage as an institution between one man and one woman”.  The basis for this comes from Genesis (which has no mention of the recent mythological Lilith) in which God created Adam and Eve.  Despite the numerous accounts of men having multiple wives—which didn’t mean God endorsed that, only that men did it—the Bible maintains a one man-one woman ratio as the normal pattern for marriage.  Exceptions can be found under Jewish law for taking the widow of a family member as a wife, but this was a matter of social welfare within the society.

Clearly, this view on marriage is a Judeo-Christian view or more simply put, a religious view. For the courts to consider this position, an argument would have to be presented on religious grounds.  A finding in favor of this argument is tantamount to Congress making “a law respecting an establishment of religion”.  It would be an unconstitutional finding.

And more so, Jews and Christians do not want marriage defined for them by Muslims, Hindus, or for that matter, certain sects of Mormons.  Marriage cannot be defined by a church or a religion and simultaneously be Constitutional.

2.  Biology:  A biological argument—that is, arguing that a species consists of male and female for the purpose of procreation—asserts that the only reason for marriage is for just that:  Procreation.  Yet there are many who marry, even heterosexual couples, who cannot have children.  And there are those who do not want children.  If procreation was the only reason for marriage, there would be a lot fewer marriages.

At the heart of this argument are three points:

a.  God told Adam and Eve to multiply

b.  The Catholic church taught that sex was only for procreation

c.  God created the sexes and designed the male and female biology in such a way as to show us how the two are designed to be together and function as one.  This cannot be replicated on a physical or spiritual level in same-sex couples.

Each point rests on a religious base, taking us back to the first argument about the Constitutional nature of bans on same—let’s call it what it is—homosexual marriage.  (If we say “hetero”, we say “homo”.  If we say “same”, we say “non-same”.  Let’s stick to similar descriptors from here out!)  Bans cannot be based on a religious argument and simultaneously be Constitutional.

3.  Civil Precedence:  Marriage in the United States has been a civil matter longer than anyone alive today can remember and I doubt that there is much available, if anything, that would show it to have ever been just a religious matter.

Marriages today are licensed by civil authorities.  A clergyman who officiates over a wedding even says “by the power vested in me by the State…”.  Without such power, that officiant has no authority to join anyone in matrimony, Holy or not.  The couple as well must must present their proof of civil licensure to be married.

Face it:  In the United States, our laws dictate that marriages begin as a civil matter and if divorce occurs, end as a civil matter.  Indeed!  Many marriages are entered into outside of any church or religious setting and church officials have no role in the divorce proceeding.

Conclusion:  In a quick review of marriage and a layman’s view on the Constitution and the law, I would have to conclude that marriage in the United States is a civil matter, defined by laws that must not lean towards the establishment of any religion.

On the other hand, Holy Matrimony is that special institution created and endorsed by God, the Creator, and it cannot be replicated by homosexual couples no matter how many laws are written to give them civil rights.  One must not confuse the authority of the so-called greatest nation on earth with the overwhelming authority of God!

Yet, it seems as though many in denial or rebellion against God’s authority seek approval and justification through man-made authorities.  They will get what they seek.  America is on a permissive path that will only widen over time.

Prediction:  Once marriage is no longer defined as being between one man and one woman, the next minority seeking parity will come to the fore.  It may be those seeking plural marriage, or maybe a group seeking some other variation.  Let’s consider plurals for a moment.  If marriage is not defined as being between one man and one woman, what is that definition?  Who gets to decide?  Is it one man, one man?  One man, two men?  One man, two women?

Someone will have to answer these questions and will not be able to lean on religion or religious opinions in doing so.  That’s what has already gotten us same-sex marriage bans and we see those being knocked down.

It was unfathomable just 50 years ago that we’d be here, yet we are.  So before you dismiss the “slippery slope” argument about a permissive view on the nature of marriage, we should consider how ridiculous this would have seemed had I made a prediction in 1963 that same-sex marriages would be legal in any state in 2013—fifty years hence.

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President_Official_Portrait_HiResI’m not talking about the man—the name.

I’m asking you if you know who the president is.  You could answer with “Chief Executive” as some have.  In a sense, he is the CEO of the United States of America.  Per the Constitution, the branch of government he is over is the Executive branch.  No stretch here at all.

More and more Americans like to point out that he is also Commander-in-Chief.  True.  As per the Constitution:

The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”

By virtue of Amendments and interpretation, he is also the commander-in-chief of the military branches that did not exist at the time the Constitution was written:  Air Force, Coast Guard, and Merchant Marine.  The Marine Corps is subordinate to the Navy and is included in the basic framework.

There are a number of other responsibilities and powers the president has—one can (and should) read the Constitution to get a clear picture of what the individual in this office can do and what limits are imposed.  A careful reading will show that the president has NO power or authority over a private citizen!  This American idea was intentional and is radically different from the European powers from which this nation sprang.  Indeed, if the president did have such power, we would be subjects.  But we are not.

All this to ask another question—again:  Who is the President, that we should have such respect for and alignment with?

He is just a man, fallible and limited in his knowledge as any human is.  He is a political standard-bearer for one ideology or another.  He is the chief executive of the government.  He is commander-in-chief of the military.  And he is a man who has no direct authority over me.

Yet, he is a man with an immense government at his disposal who can through influence, intimidation, or covert means, carry out actions around the world against Americans and foreigners alike and with total impunity.

In short, we have magnified the office to something it is not.  We have empowered the office through less than Constitutional measures.  And we have allowed the office to take upon itself powers that were not intended.

I understand what people mean when they suggest we need to have more respect for the president—but I refuse to yield my civilian right to dissent and opposition to his words, thoughts, and deeds in the name of him being the “Commander-in-Chief”.  I am no longer in the military and as such, I am no longer subject to his orders!

We threw off the yoke of tyranny when we declared our independence from England, King George III, and his institutions.  Let us not go back into that sort of bondage under a president!

MORE:  http://www.law.cornell.edu/constitution/

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In a recent online article, conservative TV and radio host Glenn Beck is quoted as saying “The question is not whether gay people should be married or not, the question is why is the government involved in our marriage?”

He was involved in an interview with atheist, liberal and outspoken Penn Gillette, half of the famous illusion team, Penn & Teller.  Glenn’s response shows the multiple layers of complexity the so-called marriage equality question has.  He is not addressing morality, whether Bible-based or other.  He is not addressing “nature” and “natural”.  What he is touching on, in his opinion, is the Constitution.  Looking at the Constitution as NOT touching on marriage, he comes to the thought that the government has no business in the marriage business.  His quoting of Thomas Jefferson, “If it neither breaks my leg nor picks my pocket, what difference is it to me?” is indicative of his position as well.  Allowing gay people to marry is of no concern to the government.

So back to his question.  I get his logic—really, I do.  I just don’t get his ignorance.

Why is the government involved in our marriage?  Because without a governing body to define the institution of marriage, the rights, privileges, and benefits afforded to those in that institution cannot be fairly administered to those who justly deserve them.  In short, no government in marriage takes us back to the days of Common Law Marriage or worse.  Anyone could claim to be “married” without a standard for proving such a bond exists.   

With no government in marriage, marriage licenses would be obsolete.  (Why should we need a license anyway?  It’s not like driving where a license implies training and skill is present.)

No government going in, why have government coming out?  An amicable divorce could be just as easily effected as the casual “wanna get married” event between any two consenting individuals, given age laws.

Perhaps Glenn’s question about government being involved in marriage was not serious.  It certainly wasn’t well-thought-out or worthy of plastering on gay-news-friendly sites!

http://www.businessinsider.com/glenn-beck-defends-gay-marriage-video-2012-12

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It’s what we call faulty comparison:  Mixed-Race Marriage and Same-Sex Marriage.

Those who liken one to another are likely focusing on the struggle to attain legitimacy for the union of the two parties in what is legally accepted as marriage.  But the comparison ends there.

Rights:  There are many things we claim to be a right, whether they are or not.  For instance, many people mistakenly saying that driving is a right.  It is not.  It is a privilege.  When I speak of rights, I’m talking about the widely recognized rights of American citizens laid out in the Bill of Rights (first 10 amendments to the Constitution) and or in other Constitutional amendments.  Nothing else.

Voting is a right.  Albeit an artificial right, it is indeed a right endowed by a government.  For instance, in a monarchy, typically there would be no need for voting and no right to do so.  The US being different, we have a government that only survives because of voting.  But there was a time in this country when it was not legal for women or Blacks to vote.  Each group struggled for that right to be granted to them.  Giving women the right to vote, and later allowing Blacks to vote, was truly a matter of equality under the Constitution.

But marriage is not a Constitutional right.  The 14th Amendment was used to strike down laws against mixed-race marriages for reasons of equal protection under the law.  Here is what the Amendment says regarding equal protection:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The effect of this Amendment is to restrict states from making such laws.  It in no way made inter-racial marriage legal, nor did it define marriage.  It does not directly address marriage at all.  But is was the basis for overturning the convictions of the Lovings and as was stated in the Supreme Court decision:

These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”

Some will argue (and have already) that the same applies to same-sex marriage.  It’s an interesting point because under equal protection, there should be no law prohibiting anyone to marry. 

But not having a prohibition is not the same as allowing it.  I don’t know of any law that prohibits me from marrying a cartoon or video game character.  Jessica Rabbit and Lara Croft would be top of the list!  But just because there is no law prohibiting me from doing so, that doesn’t mean that I can legally do so.  It is faulty logic to say that absent a law, it’s legal.

To avoid this mess, and to set the record straight, what we need is a Constitutional Amendment that once and for all defines marriage.  It will be the law of the land and no state would be able to say otherwise.  But for all those calling for such a definition, they (we) must be equally ready to accept that the definition that wins may not be our preferred definition.

MORE:

http://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution

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The President is quoted as saying “Ultimately I am confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

What he was talking about in a recent fundraiser is the potential Supreme Court decision, due out later this month, that could invalidate part or all of the Affordable Care Act, also known as Obamacare.

But can this so-called Constitutional expert really expect to have things both ways?  Sure!

His administration has taken an unprecedented, extraordinary step in declining to defend DOMA in Federal Court.  It is a law, Constitutionally passed in 1996 “by large majorities and signed into law by the last Democrat President to have sex in the White House, even though it was not with the First Lady!

With his presumptive reelection hanging in the balance, President Obama is “confident that the Supreme Court will” in fact “take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress“—just not HIS law!

Mr Obama, you cannot have it both ways!!!

MORE:

http://www.huffingtonpost.com/2012/05/31/obama-health-care-law_n_1561265.html

http://en.wikipedia.org/wiki/Defense_of_Marriage_Act

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When the exercise of a Constitutional right is met with unopposed opposition, the right itself is in danger.  For instance, if in writing this post I have to fear a backlash from those who disagree, and if that backlash includes loss of my job, fines, or other institutional sanctions, my right regarding Freedom of the Press is being threatened.  That’s not to say that I should not be held accountable for what I “say”, but rather, the opposition to what I say should not be allowed to be institutionalized.  If my manager doesn’t like it, that’s his prerogative to disagree.  But for him to sanction me with fines, unpaid time off, etc., is wrong.  Those actions abridge my right to free speech and threaten the very fabric of our rights.

Fortunately, no such thing has happened to me.  Yet!

The story that brings this point to mind is that of Ozzie Guillen, Manager for the Florida Marlins baseball team, who said he loves and respects Fidel Castro.  From CNN.com:

The reaction by the team was swift — a five-game suspension. Major League Baseball Commissioner Bud Selig supported the move.  “Mr. Guillen’s remarks, which were offensive to an important part of the Miami community and others throughout the world, have no place in our game,” he said Tuesday.”

I have a problem with that.  Guillen is entitled to his opinion and others are entitled to disagree.  But for the Commissioner to support suspending him for the comments is inappropriate.  Nevermind the fact that Guillen later apologized—he has the right to realize he offended people and to apologize.  The suspension still stands.

What the Marlins and the Cuban-American protesters outside the stadium are saying is this:  “We believe in the Constitutional right to Free Speech as long as you say what pleases us to hear.”  I’m not alone in my view.  Also from CNN.com:

Frank Ramirez, a longtime fan, said that Miami “is the last place you want to say something like that.”  Still, he drew a distinction between the ball club suspending Guillen for what he said, rather than acting in response to fan outcries.  To suspend Guillen for the content of what he said — no matter how wrongheaded — comes across as a violation of his right to free speech, Ramirez said.”

What they are in fact saying is that they would choose to muzzle those who disagree with their view of Fidel Castro—just as Fidel Castro has done in Cuba since his rise to power over 50 years ago.  The only difference is that in Cuba, Fidel would have you killed—not merely suspended for a few games.

The consequence of Free Speech that is judged as in this case is the end to Free Speech.

MORE:

http://www.cnn.com/2012/04/10/us/florida-marlins-castro/index.html?hpt=us_c2

http://www.washingtonpost.com/sports/nationals/white-sox-watch-as-former-manager-ozzie-guillen-apologizes-for-castro-comments/2012/04/10/gIQAGkG68S_story.html

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