Tag Archives: constitution

SC priest: No communion for Obama supporters – Yahoo News

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.

“A well regulated Militia, being necessary to the security of a free State…”

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.

The right to be let alone

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.”

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

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.

Huckabee bristles at creationism query – Yahoo! News

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.

“We don’t burn no draft cards down on Main Street …”

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 1st 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.

Science, houses, stones, and creation …

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 greatest menace to freedom is an inert people” — Brandeis

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).

U.S. Senate slams free speech

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