Reports From My Nanocosm

SC priest: No communion for Obama supporters – Yahoo News
A South Carolina Roman Catholic priest has told his parishioners that they should refrain from receiving Holy Communion if they voted for Barack Obama because the Democratic president-elect supports abortion, and supporting him “constitutes material cooperation with intrinsic evil.”

The Rev. Jay Scott Newman said in a letter distributed Sunday to parishioners at St. Mary’s Catholic Church in Greenville that they are putting their souls at risk if they take Holy Communion before doing penance for their vote.

Churches are becoming too involved in politics. It is this sort of coersion that should see a church lose its non-profit status. Non-profits are not supposed to get involved in politics in this way. As such, this church should lose its status as a non-profit.

It is fine for the priest to say “this politician is wrong to espouse pro-choice with regard to abortion – abortion is wrong.” But this priest has crossed the line saying a parishioner is going to hell for voting for that person and should not receive the sacraments of the church. He might as well said, vote for John McCain or don’t bother coming to this church any longer. That is the effect of his position.

In addition, it is small-minded and ignores all of the other reasons someone may vote for a candidate. Abortion is just one issue in a haystack of issues. What about all of the other social causes that the Catholic Church and Catholics care about? It would seem to me that Obama aligns himself with a greater number of those causes.

Furthermore, at a time the Catholic church is losing relevance and parishioners (except in immigrant communities), this does nothing to help its cause.

I’ve been fairly geeked about the challenge to the Washington D.C. gun control ordinance currently in front of the Supreme Court. This might be the first time the Court directly addresses whether the Second Amendment provides for an individual or collective right to bear arms. I believe it is a collective right.

Historic case may decide U.S. gun rights – Christian Science Monitor (via Y! News)

Some legal scholars believe the amendment protects a right to keep and bear only those firearms that are necessary for ongoing service in a state militia. Other equally distinguished scholars hold the view that the amendment guarantees individual Americans the right to possess and use firearms, even when the guns are not related to service in a militia.The US Supreme Court is set to hear oral arguments Tuesday in a potential landmark case that could settle the question once and for all.

The high court last addressed the issue almost 70 years ago in a case called US v. Miller. But that decision left the debate unresolved.

The Second Amendment says: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

First, the text of the amendment can be read literally to support an individual right to keep and bear arms but it also can be read to provide no such right. Because there isn’t a clear answer in the text I think we need to look elsewhere, such as history, for an answer.

The early United States had a serious distrust of a standing army and only had one official battery, stationed at West Point, after the Revolutionary War ended. Instead of having a large, professional, standing army, the United States relied on the state militias. In 1791, the year the Bill of Rights passed, the United States reorganized and expanded the standing army. The Second Amendment was included in the Bill of Rights to provide assurances to the states that the standing army would not replace the militias (remember, the founders distrusted standing armies). The militias have subsequently become the National Guard.

Second, the Bill of Rights was not initially considered applicable against the states as the Supreme Court held in Barron v. Baltimore. This means that a state government had a right to limit arms within its own territories. It wasn’t until the 14th and 15th Amendments were passed after the Civil War that courts started applying parts of the first ten amendments (Bill of Rights) to the states (and even that took a long while). For the Second Amendment to apply to the states, the Supreme Court will need to find that the Second Amendment was incorporated by the 14th and 15th Amendments.

I’ve seen some supporters of the argument for an individual right to bear arms use a few choice quotes from some of the founding fathers, such as Patrick Henry but I don’t think they are the only source of the founders’ intent and are not dispositive. When I see the quotes, context has not been provided and several allude to the responsibility of all men to join their local militias (conscription?).

As such, I don’t think the Second Amendment provides an individual right to keep and bear arms. Furthermore, it is up to states to decide through their police powers when and what type of guns and weapons can be possessed and used within its borders. Do I think people should be allowed to own guns, yes. But there isn’t a Constitutional right.

That said, I don’t think the Federal government has the power to restrict your possession of guns. However, it can and does use its commerce power to limit the transport of guns across interstate lines and when the sale of a gun will affect interstate commerce.

I gave a presentation during my privacy law class this afternoon regarding the research paper I’m working on. I warn you that it is very wonkish and raw. The ideas aren’t completely fleshed out and the whole thing is very much a work in progress.

This contains my personal thoughts and work product. Sorry for the image quality of some slides. I might distribute the slideshow file itself one day.

• The image has no special meaning
• My paper and this presentation just serve as a high level overview of the zones of privacy.
• My goal is to make a more responsive framework to consider privacy interests and to help the dialog regarding the right to privacy.

• Outline of my discussion

• One of the earliest arguments in the Supreme Court for implied rights to privacy came in Olmstead in 1928.
• Olmstead was the first case in front of the Supreme Court to challenge a wiretap of phone conversations.
• The court held that wiretapping did not require the police to enter the home, therefore did not require the higher standard of probable cause.
• Brandeis, in his dissent, identified an overreaching privacy interests:
  • privacy of the individual
• Holmes provides the first mention of privacy rights in penumbras I can find.

• Justice Douglas replaced Brandeis on the Supreme Court
• In Pollak, the Court sustained a challenge to a policy that allowed public bus to play a local radio station over speakers.
• But Douglas dissented, arguing that it violated the sanctity of thought and belief.
  • Douglas built on what Brandeis had to say in Olmstead.
  • Argued that a right to privacy is found in the Fourth Amendment which protects the home from invasion, as well as the First Amendment which respects the thoughts and beliefs of people.
    • This presented two different zones

• Toward the end of the McCarthy era, Douglas gave a few speeches that he then published as a book entitled The Right of the People.
• Douglas talked through much of what he was thinking about privacy and then later used in his Griswold opinion less than ten years later.
• The second section was: The Right to be Let Alone
  • Douglas focused on privacy related to:
    • Conscience
    • Person/body
    • Home
  • He also picked up on Holmes dissent in Olmstead which identifies penumbras, or shadows, of the Bill of Rights as potential origins of privacy.

• Douglas referred to a natural right to privacy underlying the Bill of Rights.
• He concluded that privacy extends to:
  • matters of conscience
  • sanctity of the home
  • sanctity of the person and their body

• These zones of privacy have been described in terms of Concentric Circles.
• The further you go towards the center, the more protected that privacy interest is.
• Here, the privacy interests move outward from conscience to body to home.
• I’ll return to this model later.

• The case that put â??zones of privacyâ? into the lexicon is Griswold.
• Douglas, in his opinion, built on ideas he talked through in Right of the People.
• He also revisited the Holmes dissent in Olmstead which identified penumbras of the Bill of Rights as potential origins of the zones of privacy.
• Right of privacy lies within
  • 1st Amendment
  • 3rd Amendment
  • 4th Amendment
  • 5th Amendment
  • 9th Amendment

• Next in the progression establishing zones of privacy were the abortion cases: Roe v. Wade and Doe v. Bolton.
• Roe confirmed that there are zones of privacy
• It provided that the zones of privacy are broad enough to protect a woman’s right to abortion, but it was not an absolute right.
• Roots of the right to privacy lie in the
  • First Amendment,
  • Fourth and Fifth Amendments
  • penumbras of the Bill of Rights
  • Ninth Amendment
  • concepts of liberty guaranteed by the first section of the Fourteenth Amendment.

• In Doe, Douglas penned a concurrence in which he broadened his initial zones of privacy to be more inclusive
  • autonomy over development and expression of intellect
    • corresponds with matters of conscience
  • freedom of choice over basic decisions over life
    • corresponds with sanctity of body/person and home
  • freedom to care for health, from bodily restraint or compulsion
    • corresponds with sanctity of body/person

• Returning to the visual model of concentric circles used earlier
• Justice Douglas broadened his original zones of privacy from the Right of the People so the circles encompass more broad freedoms enjoyed in life.
• Here, the privacy interests move outward from autonomy of the mind to freedom of basic life decisions to freedom of health and movement.
• Again, the idea of concentric circles is a visual model I’ve seen used by others commenting on the zones of privacy.

• I think a better way to visualize the variety of privacy interests is a stack, like a stack of pancakes, stacked on top of one another.
• This visual model can serve as a framework for further identifying and analyzing the zones of privacy.
• The more fundamental interests live at the bottom, or foundation, of the stack.
  • Here, the most fundamental right and privacy interest belongs to the mind
  • Then the body
  • And on up.
• A stack is a more scalable framework with which to consider privacy interests.
• In addition to the interests here, we can add additional interests as they arise.

• A stack can be broken down into generic, high-level categories
• Or like here, take a sectoral approach that considers privacy on a more granular level.

• Or a stack can return to more generic levels of privacy interests such as Douglas in Right of the People.

• A cross-section of each interest can then be divided into concentric circles based on the relation to the person in question.
• Relationships:
  • Self
  • Very Close: Spouse; Immediate Family; or special relation, such as priest, lawyer, doctor, etc
  • Very close would also include banks, accountants, email service providers, and anyone with a similar confidential relationship.
  • Personal: Friends, neighbors, close co-workers, house guest
  • Semi-public:
  • Public: when out on the street

• The further someone is from the center, the more that is required to pierce the veil between each relationship.
• Example: The interests of the states in the viability of a fetus has been found to reach into a woman’s interest in her body that is protected by a right to abortion.
  • State interest grows with the progression of the pregnancy and the relationship grows closer.
• Example: The tax man comes calling with questions regarding discrepancies between reported 1099 income and investment income reported on an Income Tax form.
  • The relationship becomes closer since it is more direct. Here, it is more of a personal relationship.
  • However, it remains specific to only items related to income tax filings.
  • Government can’t use taxpayer relationship to ask for health information.

• This could be similar to First Amendment jurisprudence.
  • Strict Scrutiny:
    • 1st Am: necessary to promote a compelling govâ??t interest
    • Privacy: Covers public relationships encroaching the boundaries of close and even personal relationships
  • Intermediate scrutiny:
    • 1st Am: substantial relation to a important govâ??t interest
    • Privacy: When the distance between the request is not as much
  • Rational Basis:
    • 1st Am: rational relationship to a legitimate govâ??t interest
    • Privacy: used when the relationship gap is minimal or non-existent.

• Cases immediately following Roe & Doe confirmed that zones of privacy exist
  • They include independence to make important decisions
  • And are broad enough to protect a woman from State interference when she chooses to abort a pregnancy.
• Cases generally focused on the explicit rights of privacy provided by the Fourth and Fifth Amendments.
• Cases have also refused to define certain aspects of life within a zone of privacy such as bank records.

• The court also drew lines in the sand to limit the reach of the zones of privacy
  • In Bowers v. Hardwick, the court limited the right to privacy in a home to legal rights.
    • Sexual freedom in the bedroom once deemed illegal was not protected from government interference.
  • This was overruled 17 years later in Lawrence v. Texas
• There has also been a group of unhappy dissenters who have argued strongly against a right to privacy.
  • 4 justices in Casey
  • 3 justices in Lawrence â?? this quote from Justice Thomas says it all. He can’t find a general right of privacy.

• Because the Zones of Privacy rely on implicit rights from the Bill of Rights, they are vulnerable to change
  • It is possible that Justice Thomas will get his way and the clock reversed to 1964, pre-Griswold.
• To preserve any of the implied rights currently in the zones of privacy, we need a Constitutional amendment regarding an explicit right to privacy.
  • Needs to cover people & corporations because most data is collected by private parties and the government gets a lot of its information from private parties.

I’m working on a paper and presentation about the zones of privacy and keep running across this quote from Justice Brandeis’s dissent in Olmstead v. United States. I like it a lot so I am sharing it:

“The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone – the most comprehensive of rights and the right most valued by civilized men. To protect, that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. And the use, as evidence in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth.”

It appears the gay community were just given an opportunity to challenge the Federal Defense of Marriage Act along with state bans on same-sex marriage.

Court: Gay couple can’t divorce in RI – Yahoo! News

A lesbian couple that married in Massachusetts cannot get divorced in their home state of Rhode Island, the state Supreme Court ruled Friday.

The court, in a 3-2 decision, said the state’s family court lacks the authority to grant the divorce of a same-sex couple because Rhode Island lawmakers have not defined marriage as anything other than a union between a man and a woman.

“The role of the judicial branch is not to make policy, but simply to determine the legislative intent,” the court wrote.

Cassandra Ormiston and Margaret Chambers wed in Massachusetts in 2004 and filed for divorce last year in Rhode Island, where they both live. But opponents of same-sex marriage said the court correctly avoided taking a step toward recognizing such unions.

Massachusetts, the only state where gay marriage is legal, restricts the unions to residents of states where the marriage would be recognized, and a Massachusetts judge decided last year that Rhode Island is one of those states.

No law specifically bans same-sex marriages in Rhode Island, but the state has taken no action to recognize them. The justices said Rhode Island laws contain numerous references to marriage as between a woman and a man.

Without knowing more details, I think this couple has a valid challenge under the Privileges and Immunities clause, Full Faith and Credit Clause, as well as Equal Protection Clause. As much as I feel for this couple though, I don’t think they should challenge the Rhode Island ruling. Stronger and more favorable cases will come along with more sympathetic plaintiffs. This couple were residents of another state, Rhode Island, who had a drive-through wedding in Massachusetts. I think it will play differently in the courts if the couple had lived in Mass. but moved to another state for job or other reasons. It would also be more powerful if it were a state that bans same-sex marriage rather then Rhode Island which appears mostly neutral, except for the 3-2 ruling today. A statute passed specifically to discriminate against gays will also allow courts to add teeth to the rational basis standard of review they are likely to use. If that is the case, hopefully the decision resembles Romer v. Evans in which the Supreme Court said the state constitutional amendment was â??born of animosity toward the class of persons affectedâ? and further that it had no rational relation to a legitimate governmental purpose.

Even while studying for other exams, I can’t get ConLaw out of my head.

It appears Mike Huckabee can’t win either way regarding religion. His far-right, evangelical base is likely to abandon him if he doesn’t say he supports creationism in public education. Those not on the far-right are likely to avoid him if he says religion-based education belongs in public schools. He doesn’t need to worry about me. I don’t intend to vote for him, regardless of his position on creationism in school.

Huckabee bristles at creationism query – Yahoo! News

Republican presidential candidate Mike Huckabee, a Southern Baptist preacher who has surged in Iowa with evangelical Christian support, bristled Tuesday when asked if creationism should be taught in public schools.Huckabee â?? who raised his hand at a debate last May when asked which candidates disbelieved the theory of evolution â?? asked this time why there is such a fascination with his beliefs.

… [H]he expressed frustration that he is asked about it so often, arguing with the questioner that it ultimately doesn’t matter what his personal views are.

“That’s an irrelevant question to ask me â?? I’m happy to answer what I believe, but what I believe is not what’s going to be taught in 50 different states,” Huckabee said. “Education is a state function. The more state it is, and the less federal it is, the better off we are.”

I disagree with Huckabee when he says his personal views are irrelevant. On the contrary, the personal opinions of Presidential candidates are always highly relevant regarding Constitutional rights and the controversies that follow them.

He’s absolutely right about education being a state function. Education has always been and should remain the domain of the states. The Federal government is involved in education for two major reasons: money and the Constitution. First, we don’t need to look further than the “No Child Left Behind Act” to see the role money plays. Nobody wants to see government money given away without strings attached and accountability mechanisms in place. But even if the Federal government stopped spending money on education and withdrew its related tentacles, the Constitution will require the Federal government to remain involved in education. The First Amendment says that the government “shall make no law respecting an establishment of religion” (Establishment Clause). The Supreme Court held 20 years ago, 7-2, that teaching creationism in public education violates the establishment clause. For that reason, States still won’t be able to teach creationism in schools.

In addition,

[Huckabee] told reporters that the theory of intelligent design, whose proponents believe an intelligent cause is the best way to explain some complex and orderly features of the universe, should be taught in schools as one of many viewpoints. “I don’t think schools ought to indoctrinate kids to believe one thing or another,” he said.

This goes to my previous comments regarding the creationism versus evolution debate (Science, houses, stones, and creation). Intelligent Design is not science, rather another phrase for creationism that was coined in an attempt to skirt Constitutional Law.

Each time I read about United States v. O’Brien, 391 U.S. 367 (1968), whether in my notes, outline or Constitutional Law book, the tune Okie from Muskogee starts playing in my head.

We don’t smoke marijuana in Muskogee;
We don’t take no trips on LSD
We don’t burn no draft cards down on Main Street;
We like livin’ right, and bein’ free.

… more lyrics

I can blame the third line of the song. O’Brien upheld a Federal law banning any person from knowingly destroying or mutilating their draft cards. O’Brien, the person, burned his draft card on the steps of the South Boston Courthouse in March 1966 to protest the Vietnam war. The court held that the law banning draft card destruction was content-neutral. It then provided a rule that is still used to today to determine if content-neutral laws violate the First Amendment protection of speech.

Content-neutral government regulation is sufficiently justified if it:

1. is within the constitutional power of the government;
2. furthers an important or substantial governmental interest;
3. if the government’s interest is unrelated to the suppression of free expression; and
4. if the incidental restriction on alleged 1^st Amendment freedoms is no greater than is essential to the furtherance of that interest.

I personally think O’Brien was a BS ruling because the Congressional history shows Congress passed the law in reaction to draft card burning, a form of political speech. Thus, the law was content-specific which would require a higher level of review. In which case, its goal would need to accomplish a compelling government interest and be narrowly tailored to have no less restrictive alternatives. Even under the less rigid test provided in the case, the regulation should fail because it was passed to suppress expression, namely draft card burning. The Supreme Court is made up of humans and is liable to make mistakes from time-to-time.

BTW: I hear the Grateful Dead (with the Beach Boys) version, rather than the original Merle Haggard song. The Grateful Dead/Beach Boys version comes from a live set played in April 1971 at Fillmore East. Give me a holler if you’d like a copy of the MP3 (free, of course). I love the Grateful Dead policy of allowing audience members to tape their shows and freely distribute. More bands should follow it to increase the scope of their audience.

We had a lively debate today in Constitutional Law regarding a series of cases regarding creationism in school science curriculum. The primary case is Edwards v. Aguillard, 482 U.S. 578, (1987), a U.S. Supreme Court case from 1987. In it, the Court struck down a Louisiana law that required ‘creation science’ to be taught whenever evolution was taught as part of science curriculum, and vice versa. The Court held the law was a violation of the Establishment Clause, part of the First Amendment. “Congress shall make no law respecting an establishment of religion …” It held that the law was passed specifically to require teaching of creation science in public schools with the purpose of advancing and endorsing a particular religious doctrine.

Also mentioned was a more recent case from Pennsylvania in which a school district required ‘intelligent design’ to be taught in science classes. That law was struck down as a violation of the Establishment Clause by the local Federal district court because, among other reasons, evidence existed that the textbook publisher cut ‘creation science’ and pasted ‘intelligent design’ in its textbook after Edwards. One typo, as relayed in class, was “crintelligent designce.”

The point of my post is this: Creationism is not science and does not belong in a science curriculum. I’m glad courts have been able to see past the smoke and excise creationism from public school science curriculum. Even my Catholic high school taught evolution in science classes without any need to add disclaimers or to limit the scope of the subject. Then again, it was college preparatory with an eye towards building young men who were ready for college.

Here is a good quote I just ran across that I think sums the whole debate of creationism versus evolution in school:

“Science is facts; just as houses are made of stones, so is science made of facts; but a pile of stones is not a house and a collection of facts is not necessarily science.” – Henri Poincare

Seeing that quote is actually what prompted me to make this post.

I’d like to make an additional note regarding this case. Justice Scalia, in his dissent, showed he really doesn’t care as much for original intent as he claims he does in other cases and his public speeches. He says in several places that determining original intent is nearly impossible.

• “discerning the subjective motivation of those enacting the statute is, to be honest, almost always and impossible task.”
• “legislative histories can be contrived and sanitized, favorable media coverage orchestrated, and postenactment recollections conveniently distorted.”
• “determining the subjective intent of the legislators is a perilous enterprise.”

Fun stuff.

The following passage from Justice Brandeis, part of his concurrence in Whitney v. California (1927), is still relevant today. I love the passion the passage exudes.

Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law-the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed. Whitney v. California, 274 U.S. 357, 376 (1927).

It seems to me that some elected representatives to the Federal government don’t respect the free speech rights of citizens to criticize government officials. Sadly, one of those is my elected representative, Dianne Feinstein.

Senate Approves Resolution Denouncing MoveOn.org Ad – New York Times

WASHINGTON, Sept. 20 â?? The Senate approved a resolution on Thursday denouncing the liberal antiwar group MoveOn.org over an advertisement that questioned the credibility of Gen. David H. Petraeus, the American commander in Iraq.

At a White House news conference, President Bush called the advertisement disgusting and said it was an attack not only on General Petraeus but also on the entire American military.

General Petraeus is a government official. As such, he is valid subject of criticism. Here, MoveOn felt it necessary to pay for an advertisement pointing out that the General has not been forthcoming to the American people in his evaluations of the war and, as policy, waters down essential statistics used to evaluate the war so things appear more rosy.

I disagree with President Bush that this is an attack on the American military. First, he’s overused and abused the “attack on the military” rhetoric. It seems that the Bush Administration categorizes every criticism of the war as an attack on the military and each soldier. Time to turn off the broken record that cries wolf. Second, criticism of the war itself and the officials leading the war does not equal an attack on the soldiers fighting the war. The attack here is levied at the policies of the military brass, particularly its leader General Petraeus, who make the decisions about how to wage this unpopular war. The ad brings up several good points regarding statements the General has made, his role in the war, and his policies that understate how many people have died. Nothing in the ad appears to criticize the ground troops. Third, the only reason the President finds the ad disgusting is because he’s directly responsible for the policies the ad criticizes the General for.

With that in mind, the Senate resolution is a travesty and violates the spirit of our Constitution, if not the actual text. It is irresponsible for the Senate to consider rebuking any critique of how the government operates, no matter how crude, rude, indecent, or obnoxious it gets. The First Amendment was enacted specifically to give citizens the freedom to criticize the government. The Founding Fathers themselves had a nasty habit of criticizing the English Crown when it was their government and felt it prudent to explicitly provide free speech rights to all when creating their fledgling government.

I am not a member of MoveOn, have never given it money, and don’t really like its tactics. That said, it is the right of the MoveOn membership to criticize our military leaders for their policies and statements.

Also covered in: The Washington Post and The Los Angeles Times.

Suggested reading: Animal Farm