Saturday, September 18, 2010

Constitution Day - Forgotten Again

The Constitution was signed by the 39 patriots who were its architects on September 17, 1787. There is no date in our founding’s history that should be more celebrated, because the Constitution [far more mentioned than understood these days!] was a careful crafting of values, structures, and assignments [and withholdings!] of power by a group of titanic thinkers who carefully factored in observations of what had worked and failed over history with the needs of a people who opposed tyranny but were anxious about anarchy. So, where were the celebrations this past September 17?

What is ominously troubling to me is that the current cute trend of neo-patriotism, with rah-rah-rah, sis-boom-bah, about 9/12, 8/28, “Tea Party-ism” [by pseudo-patriots who generally can't tell me the date of the real, original "Tea Party"] is not going to effect a real change in the growth of usurpatious, repressive national statism, because most people are really not serious about it. You can have all of the “yankee-doodlism” at a Glenn Beck religio-moralistic-red/white/bluism event, but until there is a true resurrection of deep commitment to founding values, the Reids and Byrds and Obamas of the world will remain the ascendant governmental reality. The one clear exemplar to me that this rash of neo-patriotism does not signal a resurrection of originalistic values is the comparative silence of this past September 17. Where were the rallies, the flags, the parades, the megaspeeches? Naturally, Hillsdale College [an originalism teaching “liberal” arts college in Michigan] commendably had a significant event, and other venues of serious Americanism marked that most important of all Americanism days with appropriate, but not very crowded, remembrances, but most of the Palin/O’Donnell hooplah-ites were oblivious to the coming and going of the day, because they were not commanded to march and celebrate by the various rightist demagogues who orchestrate the events that mobs are dutifully showing up at.

The uber-Left will continue to rise because truly committed originalists are few, far between, and increasingly marginalized by the superficial Woodstockism of neo-patriotism.
And that is irksome.

Sunday, September 12, 2010

9/11; Let's Not Forget What We Should Not Forget

It has been nine years since the coordinated homicidal attacks on the World Trade Center, on the Pentagon, and possibly on the capitol, which was commendably thwarted by heroic passengers to plop into a field in Pennsylvania. And we, of course, should never forget. But there are many things we should never forget.

We should not forget our regime of liberty, which was spawned from and during emergency, which found its ultimate voice in the Constitution. The Constitution, born of emergency, axiomatically does not admit of emergency exceptions. That was a point that eluded the Bush Administration, and which seems to be forgotten by the Obama one too. We do not inspire others elsewhere to embrace constitutional government by flouting its teachings and standards here. If the Bush theory that turbaned hooligans in distant lands wanted to destroy our way of life by this attack and by other measures was correct, then the assault on civil liberties here, which was installed by thoughtless and hysterical [or maybe calmly purposeful?] sorts in the Bush administration, has given the thugs the victory that we thought we were preventing by our illegal invasion of other sovereign lands without congressional declaration.

And even though we need to pay our respects to the horrors and deaths and sacrifices of 9/11, we must desist from the apparently increasing vogue of yearly ritual victimization ceremonies, which are both morbid and unhelpful to the advancement of legitimate values.

Let’s rebuild the Twin Towers [after we get a lucid and scientifically valid explanation of how the curiously unmentioned third tower collapsed when it was not hit by a plane!], let’s start to mind our own business around the globe, and let’s start to recall what the Founding Fathers intended when they launched their marvelous experiment of popularly sovereign governance in Philadelphia. That is what we really must not forget and what we should celebrate yearly with vigor and appreciation and resolve.

Friday, September 10, 2010

What's Wrong with the Juries?

So, what has happened to the jury system? The Framers adopted the common law jury as something essential to be installed in our Constitution, because they believed that the best safety we had from our government was that liberties could not be taken by government without the say-so of a group of neutral citizens. And those citizens were to be skeptical of their government, which was the real meaning of proof beyond a reasonable doubt and of the burden lying with the government, before liberty could be stolen. And the jury, constitutionally, could adjudge the facts and the law – jury nullification was and is a vital fixture in the firmament of our rights. Of course, judges now, being jealous of becoming irrelevant if the jury makes judgments about the law, will not permit nullification arguments and will shriek that the jury can only assess the facts, not the law. But the jury has the constitutional power to nullify prosecutions by disagreement with the law and with how it is implemented in any particular case, and nothing the judiciary can shriek about such undermines that power. The Framers gave it and the judiciary cannot take it away.

But notwithstanding the importance of the jury in protecting people’s rights, juries increasingly cleave to the government. Juries, during the voir dire process, will claim that they do not believe everything government says, they do not think cops are telling the truth just because they are cops, and they know the defendant is not guilty unless or until they find otherwise, and to the requisite level of proof. However, they smile and nod when a shiny-badged cop says things, and look askance when defense witnesses say things, and forget that the government has an agenda in all cases which could well result in untruths being told. But they just don’t want to believe this cop is lying or shaving the truth; they know it happens elsewhere, but…, oh, just not here!

Wow, we are tossing into the ash can one of the great constitutional protections we have, and we are thereby dissolving into just another banana republic police state. We weep when we muse that our boys and girls are dying in distant lands to protect our rights here, but we are utterly oblivious to the rights they are dying for, and while they protect them over there, we tear them up over here.
Every time a juror blindly believes their beloved cops, or the government position, against contradictory evidence [or even without contradictory evidence!], they sully the memories of the founding fathers who long ago died for us here, and of the young kids who are still doing so over there. For shame, for shame.

First they came for the murderers, with insufficient evidence, and I did not vote not guilty, because I was not a murderer.

Then they came for the kidnappers, with insufficient evidence, and I did not vote not guilty, because I was not a kidnapper.

Then they came for the drunk drivers, with insufficient evidence, and I did not vote not guilty, because I was not a drunk driver.

Then they came for me, with insufficient evidence, and there was no one left with courage to vote not guilty.

Don't Ask; Don't Tell

Although we do not intend to turn this blog into a Gay Rights Forum, we are unwaveringly devoted to enforcing and protecting the human rights and constitutional rights of all, so it is important to point out the recent ruling regarding the “Don’t Ask; Don’t Tell” military policy of the federal government.

In Log Cabin Republicans v. The United States and the Secretary of Defense, here in the Central District of California’s U.S. District Court, Plaintiff Log Cabin Republicans attacks the constitutionality of the statute known as the “Don't Ask, Don't Tell” Act (“the Act” or “the Policy”), found at 10 U.S.C. § 654, and its implementing regulations. Plaintiff's challenge is two-fold: it contends the Act violates its members' rights to substantive due process guaranteed by the Fifth Amendment to the United States Constitution, and its members' rights of freedom of speech, association, and to petition the government, guaranteed by the First Amendment.

To remind all of the issue, the Act provides that any member of the U.S. Armed Forces who engages in homosexual conduct is subject to discharge unless the servicemember is able to demonstrate that he or she has no propensity to engage in “homosexual conduct.” Under the Act, homosexual conduct includes sexual acts with persons of the same sex, admissions that one is homosexual or bisexual, and attempts to marry a person of the same sex.

The “Don't Ask, Don't Tell” component is not expressly within the statute, but instead describes a prohibition on speech and association regarding one’s non-military reality, and the suit essentially urges that the homosexual reality is protected by the liberty clause of the Fifth Amendment [along the same lines discussed in the Prop. 8 ruling], and the implicit prohibition on talking about it or joining groups pertaining to it or petitioning the government to change the policy about it violates the First Amendment speech and association and redress of grievances clauses.

The defendants [U.S. Government and the defense secretary] presented no evidence in the trial, assuming that their “we are the government and we accordingly know best” arrogance would carry the day. The plaintiffs [Log Cabin Republicans] introduced a lot of evidence, by way of testimony and studies and expert opinions, and on the fundamental rights component of the attack, the Court, Judge Virginia A. Phillips, had little trouble siding with the plaintiffs [as is generally the case when the other side introduces nothing but subjective arrogance].

The Court found that the Don't Ask, Don't Tell Act infringes the fundamental rights of United States servicemembers in many ways, some described in the trial memorandum. The Act denies homosexuals serving in the Armed Forces the right to enjoy "intimate conduct" in their personal relationships. The Act denies them the right to speak about their loved ones while serving their country in uniform; it punishes them with discharge for writing a personal letter, in a foreign language, to a person of the same sex with whom they shared an intimate relationship before entering military service; it discharges them for including information in a personal communication from which an unauthorized reader might discern their homosexuality. In order to justify the encroachment on these rights, Defendants faced the burden at trial of showing the Don't Ask, Don't Tell Act was necessary to significantly further the Government's important interests in military readiness and unit cohesion. Defendants failed to meet that burden.

Thus, Plaintiff, on behalf of its members, was deemed entitled to judgment in its favor on the first claim in its First Amended Complaint for violation of the substantive due process rights guaranteed under the Fifth Amendment. That is, the Act is unconstitutional in that it violates the fundamental liberty interests protected by the Fifth Amendment. And then there is the First Amendment matter.

Recall the relevant portions of the First Amendment: “Congress shall make no law . . . abridging the freedom of speech, . . . or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The Plaintiffs urged that the Act also violated those protections.

Is the Act concerning conduct, or concerning speech? Does the content of speech become regulated by, and punished by, government here?

The Act in subsection (b)(2) requires a servicemember's discharge if he or she "has stated that he or she is a homosexual or bisexual, or words to that effect . . . ." 10 U.S.C. § 654 (b)(2) (emphasis added). The Act does not prohibit servicemembers from discussing their sexuality in general, nor does it prohibit all servicemembers from disclosing their sexual orientation. Heterosexual members are free to state their sexual orientation, "or words to that effect," while gay and lesbian members of the military are not. Thus, on its face, the Act discriminates based on the content of the speech being regulated. It distinguishes between speech regarding sexual orientation, and inevitably, family relationships and daily activities, by and about gay and lesbian servicemembers, which is banned, and speech on those subjects by and about heterosexual servicemembers, which is permitted.

The First Amendment's hostility to content-based regulation extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic. As a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.

The Court discussed the technicality between such standards in non-military settings and military settings [the latter allowing somewhat more regulation than the former]

In keeping with a well-established rule of deference, regulations of speech in a military context will survive Constitutional scrutiny if they “restrict speech no more than is reasonably necessary to protect the substantial government interest.” Without attending to the technicalities of the well-thought out discussion, the Court found that the Act fails this test of constitutional validity. Unlike the regulations on speech upheld in other settings, the Court found that the sweeping reach of the restrictions on speech in the Don't Ask, Don't Tell Act is far broader than is reasonably necessary to protect the substantial government interest at stake here.

The Act's restrictions on speech not only are broader than reasonably necessary to protect the Government's substantial interests, but also actually serve to impede military readiness and unit cohesion rather than further these goals.

Many of the lay witnesses also spoke of the chilling effect the Act had on their ability to bring violations of military policy or codes of conduct to the attention of the proper authorities. An eighteen year old, stationed in Bahrain, felt restrained from complaining about the extreme harassment and hazing he suffered because he feared that he would be targeted for investigation under the Act if he did so.

The Act prevents servicemembers from openly joining organizations, such as the plaintiff in this lawsuit, that seek to change the military's policy on gay and lesbian servicemembers; in other words, it prevents them from petitioning the Government for redress of grievances.

Furthermore, the Act punishes servicemembers with discharge for writing a private letter, in a foreign language, to a person of the same sex with whom they shared an intimate relationship before volunteering for military service. It subjects them to discharge for writing private e-mail messages, in a manner otherwise approved, to friends or family members, if those communications might lead the (unauthorized) reader to discern the writer's sexual orientation.

These consequences demonstrate that the Act's restrictions on speech are broader than reasonably necessary to protect the Government's interest.

Moreover, the Act's restrictions on speech lead to the discharge of servicemembers with qualifications in critically-needed occupations, such as foreign language fluency and information technology. The net effect of these discharges, as revealed not only in the testimony of the lay witnesses but also of the experts who testified and Defendants' own admissions regarding the numbers of servicemembers discharged and the costs of recruiting and maintaining an all-volunteer military force, compel the conclusion that the Act restricts speech more than reasonably necessary to protect the Government's interests.

And for all of those reasons, the Act was held to be unconstitutional in violation of the speech and petition clauses of the First Amendment.

Anyone interested should read about the credentials and accomplishments of the people who were punished under the Act; the testimony is sad and chilling.

One would hope, with all of the blather on the blogs and by the pundits about the Constitution these days, that people start to come around to understand that there is a realm of fundamental elements of human dignity that are supposed to distinguish us from the orangutan, and very often that distinction finds its voice, and its enforcement, in constitutional rights.

This is an excellent decision because of, if, for no other reason, its well-elucidated lessons about what our Constitution is all about. Or supposed to be about. It is also excellent, though, because of the human beings who got their day in Court, with a judge who understood, cared, and has courage to do the constitutional thing.