Category Archives: Supreme Court

Are You A Crab?


People are so easily confused.  Mathematically if a = b and b = c, then a = c, and we can say that a and c are the same.  In the real world though, being equal and being the same are not synonyms.  They are related, but that is all.

We should have settled that particular concept as a nation a long time ago, and yet, we still haven’t gotten it through our collective thick skull.  We got it wrong – very wrong – at first.  We had to have drawn out court battles in order to reach the Supreme Court and have it ruled, specifically, that “separate but equal” is not.

We see many people who want to refer to the Constitution as the authority of the land, and in many ways, that is good and true.  It should never be forgotten though that it is a horribly flawed document and subject to revision and improvement.  Even the “founding fathers” knew this and that is why they had a built in mechanism for that change.  The very first thing they did after ratifying the Constitution was to change it.  Not only was that necessary to satisfy treaty commitments (because remember that, at the time, that is precisely what the document was), but it also demonstrated clearly that the document could, and should be changed as and when necessary.

We started with a clearly defined right to own people as property and no suffrage right for women (not until August 18, 1920) or non-land owning men.  In fact, a careful reading of the US Constitution shows that we have no constitutional right to vote at all.  It is inferred, much like the right to privacy, but it is not explicitly stated.  What we do find are a series of requirements that must be met if one is to be allowed to vote, and another set of requirements on which it is impermissible to base disenfranchisement of a citizen.  No, really.  Check it for yourself.  Here is the entire constitution right here.  You will find that you are required to own land (a constitutional requirement that has never been revoked), that you must be at least 18, that you may not be prohibited from voting “on account of sex,” nor “on account of race, color, or previous condition of servitude”, but no where will you find that it specifically grants that you have the right to vote in the first place.

Understand that it is this very important distinction which allows states to do things like revoke the rights of felons to vote, and establish voting requirements such as length of residency.  In some states, the voting rights of convicted felons are automatically restored, and in some states they require an act of the governor, which requires a petition on the behalf of the convicted felon.  It is this which allowed the states to institute the Jim Crow laws that included ridiculous and impossible “literacy tests” like this one.  (Go ahead.  Try it.  You’ve got 10 minutes.  Remember, as it says in the article, if you miss 1 question then you don’t get to vote.)

-> As an aside, understand also that the lack of a right to privacy will also be used, in court, and may already have been used in the FISA court, to justify programs like PRISM as the security apparatus violates the 4th amendment to track your metadata.  It has already been encroached on to say that there is “no legitimate expectation of privacy” in a public place (thus allowing the wide spread use of surveillance cameras “for your safety”), nor even when owning a cell phone. <-

Which brings us back to where we started today.  The notion of equivalency versus sameness.  We absolutely should strive for equality in society and under the law.  However, that does not mean that we are all the same.  Nor does it mean that we are all experiencing the same things.

Men and women are not the same.  Biologically we are different.  Society drives us into different directions and cross purposes all too often.  It does not mean that individuals may not cross these gender boundaries, or that they shouldn’t feel completely free to do so, but we are different.  Regardless of those differences though, we are still equal.  Right?  We ought to be able to agree on that.  Yet, we still find many sexists, and we still have major inequalities in our society in terms of pay, for example, not to mention in protections of the law for violence.

The Zimmerman verdict last weekend has sparked much outrage this week, and rightfully so.  It was a situation and trial that has been mishandled from the very beginning and ended with a verdict which was tragic.  As I wrote last week though, we have to accept it, because that is the foundation of our justice system.  If we have an issue with the verdict, then we have to address the system, not this specific case.  We have to, as I have seen some do, call for changes to the laws, and then we have to act on those calls.

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Fearing No Shots Across The Bow


It is very likely that in the next week, either on Monday or Thursday, the SCOTUS will release two important decisions relating to marriage equality in this country.  We are facing many crises of freedom right now, from Orwellian privacy invasion of individuals, to infringements on the press freedoms we like to believe exist in this country, to killing of American citizens without trial (or even charges), and so on, but much of America simply doesn’t care about those issues.

Marriage equality though, it seems some people still care about.  Enough that 30 states took the extraordinary steps over the last few years to actually prohibit same-gender marriages, and another 7 prohibit them by law.  Additionally, of course, we still have the “Defense of Marriage Act” on the books at the federal level.

I have written about this before, and I am not going to get deeply into the reasoning here.  (Cliff notes version: There is no moral or constitutional justification to deny a marriage to any consenting adult to any other consenting adult.  No religious authority should be required to give their sanction to it, but that is an entirely separate matter.)

What is of interest right now is that the right is, again, mouthing off about how they are above the law.  As is so often the case, they’re already screaming that no matter what the decision from the Supreme Court, they’re not going to be bound by it, unless they like it.

Now, let’s stop for a moment, because to a small degree, they have a fair point.  That is how a democracy, or even a representative republic, which we are supposed to be, is theoretically supposed to work.  If we do not like the laws, then we can work to change them.  So, that part would be reasonable.  However, what they’re saying is not, “If the decision is against us, then we must change the law.” which is essentially what many said following the ridiculous Citizens United decision.  (Not that it has led to a successful change, but that is still what many are saying today.)  No, what they are saying is quite flatly,

As Christians united together in defense of marriage, we pray that this will not happen. But, make no mistake about our resolve. While there are many things we can endure, redefining marriage is so fundamental to the natural order and the true common good that this is the line we must draw and one we cannot and will not cross.

As I, and many others, are reading this, it is both a veiled threat of the kind that is common from the right, that alludes to a revolution, and a statement that “we” will not enforce your ruling.  It is true, as they point out in their letter, that the courts have no enforcement mechanism, but instead must rely on the executive branch for that.  If they are more than just talk this time around, we may be forced into a situation where we find out if more people are in support of what is right and the rule of law, which in this case are the same thing, or in support of hate and bigotry.

The rest of the letter is the same standard tripe that these people have been trotting out over and over again.  It lacks any more merit this time around than it had the last half a million times that it was paraded around.  It is full of fallacies and bigotry.  Half-truths and bald-faced lies.

I suspect that as with most utterances from the right, it is a lot of hot air.  They talk a lot and have almost no spine to actually back it up.  Except that lately, they seem to be starting to feast on themselves.  We will see what the SCOTUS rules, and then we will proceed from there.  Because yes, no matter how they rule, this issue will not be over.  I know that, and everyone should.  If the SCOTUS rules correctly in favor of equality, then the right will be weeping and wailing and gnashing their teeth and then trying to find ways to overturn it.  If they do not, then the equal rights movement will continue to fight for ways to fix that error.  The Dred Scott decision had to be reversed, and it took time.  I hope this is not a similar situation, but if it is, we will eventually do it.

Because that is what is right and good.

This may well end up like Roe v Wade, though.  Producing another cause for the right to protest for the next half-century.  We may wind up with picket lines at weddings, and counter protestors in front of churches to protect the wedding party.  And, sadly, I wouldn’t put it past a few extremists on the right to start killing ministers and pastors performing weddings, because that is what history has shown us the right wing in this country is capable of producing, despite the vast majority of them being a bunch of blow-hards with no real intellects.  We already have too many in the LGBQT community that are suffering violence for no reason other than who they are, or more accurately, the insecurity and bigotry of who others are.


Surprised? No. Outraged? Yes!


Let me begin with a question.  It is a simple question.  We’ll come back to the context in a moment.  In all seriousness.

Why are you surprised?  Or, perhaps, better, why would anyone be surprised?

The Guardian newspaper this week, using leaked documents, “revealed” the existence of “PRISM” – a broad program to collect “so-called meta data on your telephone calls.”  The article goes further to claim that the NSA also has direct backdoor access to the servers of major tech companies (Microsoft, Yahoo, Google, Facebook, PalTalk, YouTube, Skype, AOL, and Apple) which between them own the vast majority of all online communications between e-mail, video, and chat.

Again, why would anyone be surprised?  This is really not news.  The specifics of it might be new, but we have known about the existence of this program for years.  I don’t think the public knew the name of the program, or had seen that nifty logo.  The Foreign Intelligence Surveillance Act (FISA) court was set up in the mid-1970s.  The PATRIOT Act was approved by near unanimous consent (357 to 66 in the House and 98 to 1 in the Senate) and signed into law by George W Bush on 10/25/2001.  It was introduced on 10/23.  So, in less than 48 hours it went from concept to law.  It was then renewed in 2006, and again in 2011 by the current POTUS.  It is these two laws which provide the broad foundations for the program, however, there are many, many other laws which have been passed that have aided and abetted the development of these programs.

Again, why are you surprised?  In 1979, the Supreme Court upheld this kind of invasion of privacy.  They found in the Smith v Maryland case, that collecting, what was called at the time the “pen register” (that is the time equivalent of the meta data), was legal.  This is the modern, technologically equivalent program.  When it goes further into the courts, they will uphold it.

The NSA has been involved in this kind of snooping and has been caught at it before.  We know this.  It isn’t new.  In 2005, the EFF filed a lawsuit against AT&T for illegally cooperating with the NSA to facilitate these actions.  If you read this article, or remember from the time period, you will note that the defense from the administration is almost precisely the same.

In 2006, one of the sitting FISA judges quit the appointment and others urged congress to give the FISA court a direct role in overseeing the wiretapping program.

“The administration defends the eavesdropping program, saying it is only targeting communications to and from suspected terrorists, that government lawyers review the program every 45 days and that Congress authorized the president to track down 9/11 co-conspirators, thereby giving the president the ability to bypass wiretapping laws.”

In 2009, the director of the National Cybersecurity Center resigned, and blamed the NSA’s “pwer grab” as a threat to “our democratic process.

In 2001, William Binney resigned from the NSA  after more than 30 years, including time as director of the World Geopolitical and Military Analysis Reporting Group, and started blowing the whistle, warning about the size and scope of the NSA’s surveillance program.

This is not tin foil hat conspiracy theory territory.  This is you can only be surprised if you weren’t paying attention.  This is, “If you aren’t angry, you aren’t paying attention” territory.

For most of the last 60 years there has been talk of Project ECHELON.  Not just in tin foil hat, conspiracist circles where we can laugh at it, but also in the halls of government, with official investigations.  There have been actual investigations and acknowledgements of its existence with accompanying refusals to discuss its full expanse.  Sound familiar?

Many in our governments, around the world, took Orwell’s 1984 not as a warning, but as a guidebook, just as many right wingers took Ayn Rand’s work not as a poorly written morality play, but as the writings of a prophetess.

Now, as I said, there is no reason that anyone should be surprised.  However, that does not mean that we should not be outraged, nor does it suggest that we should accept it.  I hope that this will be the moment that people will awake and arise.  I do not expect it, but I do hope for it.  Perhaps we will remember and live up to the words of at least one of the “Founding Fatherstm

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Yay!! It’s over! Oh, wait…


Ah, isn’t that cute?  Kittens!  Yay!  It’s over!

Unpack your kittehs!

Except, it’s never really over!

One of the great sources of frustration to non-Christians is the compartmentalization of the respectable, honorable and decent teachings of that religion from the daily lives of so many.  We see that they go to church on Sunday and maybe Wednesday, and then the rest of the week, they lie, cheat, steal, molest children, commit rapes, murder, and all sorts of mayhem that are completely divorced from their supposed beliefs.  While some of this is certainly attributable to “being human”, there is a pattern of behavior that is not.  It is not my purpose or the purpose of this space to attack any religion or to draw out the laundry list of supporting evidence for this.  The point is that we, as a country, tend to do the same thing with our politics.

We allow it to go unwatched for long periods of time, and as we do, we get more and more distressing government in place.  When the cat’s away, the mice will play, no?  We pay attention only at times of crises or around elections.  Do we remember last January when the SOPA/PIPA fight came up and there was an internet blackout?  As I wrote the following week, it is an ongoing battle, not a one day action.  The same is true of all politics.

Okay, so the Presidential preference poll took place on November 6th.  Fantastic!  You went out and voted?  Bravo!  Brava!  I am proud of you!  I thank you for being a responsible and contributing member of our society.  You are part of less than 50% of the eligible voting population with any claim to being patriotic, in my eyes. My eldest son participated in his first.  We also had Senators, Congressmen, state legislators, judges, county officials, city officials, state constitutional amendments, county referenda, etc.  The Presidential election wasn’t the only one on the ballot.  It was only the most highly publicized.

Did your guy win?  Congratulations.  He was marginally better than the likely alternative.  Mine didn’t, but I knew he wouldn’t.  He was completely ignored by the press.  That is a crucial factor in the election process.  In fact, all of the alternate candidates were effectively shut out of the process by the media.  When the most well known of the bunch, Jill Stein, attempted to attend one of the main presidential debates, she was arrested, you really have significant issues in this country.

Politics is not something that we can engage in at election time and then disengage from the rest of the time.  My son said to me the same thing that many people have said, “I don’t feel like I should really vote because I’m not educated enough on all of the issues.”  During the lead up to the election he took one of the “Who is your candidate?” online tests.  It told him that Jill Stein was his candidate.  As we were discussing it, he told me that there were many questions that he didn’t answer because he either didn’t care or didn’t know about the issues.  I wonder how many people did the same.

I also discussed this same test with another friend.  In that case though, he had taken the test after researching candidates for himself.  He was given a different result than the conclusion he had reached for himself.  He was questioning himself.  I suggested that rather than questioning his own research and conclusions, perhaps he should question the website, its conclusions and possible bias.

In both cases, they were making efforts to educate themselves, which is more than a lot of people can say!!  Too many people simply vote based on party lines, without any thought.

We cannot just cram for the election as though it were a high school test.  This is something we have to stay at least a bit more than peripherally on top off all the time.  Constantly there are issues going on that will impact our daily lives to smaller or larger degrees.  What those things are will vary from moment to moment, but they are constant.  The biggest in the news right now is the so-called “Fiscal Cliff”.  That is the impending sequestration that was agreed to in the Budget Control Act of 2011 on August 2, 2011.  How will it be resolved?  Will a deal be reached?  Will the Republicans continue to hold the middle class hostage in order to continue to give tax breaks to the wealthiest among us?  Do you care?  Are you paying attention?

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In loco vennum


Was it a critical decision?  I’m not really certain about that in the big picture.  And, by big picture, I mean long term.  Why?  Because in the long term, everything can change.  The Citizens United v Federal Election Commission decision issued on January 21, 2010 which undid nearly a century of settled law, the ratification of the 14th Amendment in 1868 which overturned the Dred Scott v Sanford decision of 1857 (probably the worst SCOTUS decision of ALL TIME), and Brown v Board of Education in 1954 had to overturn the precedent of Plessy v Ferguson from 1896, amongst others.  The doctrine of stare decisis is less and less meaningful as we become more and more politicized at every branch and level of society, and as we become less and less educated.  So, yes, though I promised to pick up on last week’s column, the SCOTUS decision on the Affordable Care Act and the ensuing madness has prompted me to deviate from that.  Next week, will see the promised second part of the education column.  However, I do see a very strong connection.  Many of the arguments that are being thrown around are being put out by people who simply have no education about the facts.  They do not have a clue what they are talking about.  They are also over-reacting.

First, let us clear up a few things.

One, I am not a big fan of the ACA.  It is better than nothing, but it barely qualifies as progress.  The first thing that must always be said about it is that every single piece of it originated from the right.  This is not in the same sense that I have been trying to drive home for a few years now and, that others have started to echo, that there is no visible left in America.  This is, if you accept what Faux News and the rest of the mainstream media defines as the left and right in American politics, every piece of the ACA originated from the right and then was adopted by the “left”.  After it was adopted by the “left”, and thus should have had “bi-partisan” support, then it was attacked by the “right”.  This is the ridiculousness of the game being played by the far right wing in this country.  This is why there are those, even on the far right, who are finally starting to admit that in the media’s attempt to be fair, they are being dishonest.  In the attempt to give each “side” equal recognition, they are committing a lie that each side is equally valid.  The individual mandate, for example, which was the focus of so much right wing ire, was the brain child of the Heritage Foundation, as so clearly explained here by Peter Ferrara who at the time was the “John M. Olin Distinguished Fellow in Political Economy” at said Foundation.  It was an answer to Clinton’s attempts to move the health care system forward, but to do it on the worker’s backs instead of at the expense of the employer.

The point is that it is not an over-reach by the left.  Not even if we let “the left” be defined by the mainstream media.  It was passed through by the Democrats, yes.  But, it is a Republican bill through and through.

Second, the damn thing is really complicated and there are some good parts in it that will benefit many Americans – allowing younger Americans to stay on their parents’ insurance until age 26, preventing insurance companies from refusing to insure due to pre-existing conditions, and removal of lifetime benefit caps, for example.  Being such a complicated law, it affects pretty much everyone top to bottom, and one source of reasonably accurate information is here.  Most of the law does not, however, go into effect until 2014.  By then, the infighting of the Republicans and the Democrats may have killed off parts of it, to the point where it may be pointless.  In fact, that was likely the very reason it was pushed out to 2014 in the first place.  (Much like the United States Congress Joint Select Committee on Deficit Reduction and its recommendations were set far enough out so that the the sequestering would never actually take place.  The congress would have time to act and make sure of that.  It is all a dog and pony show.  Neither the ruling members of Democrats nor the Republicans are serious about keeping their promises to actually accomplish anything positive for the country.  They are both in favor of serving their highest paying contributors and staying in power.  Any appearance of serving the rest of us is only an illusion created in the interest of staying in power.)


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