Mark Byron

Overcharge

I haven't seen anyone directly comment on the prospect that Florida officials may have gone a bit overboard with a 2nd-degree murder charge on Mr. Zimmerman. Here's the definition from the Florida code that will be a great aid to his defense team-italics added.

The unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, is murder in the second degree...

That's going to be hard to prove. The fact that the guy was part of a neighborhood watch program points to something well short of the depraved psychopath the law is envisioning. To do that would require a major character assassination on the part of the prosecution, for it would only take one person our of twelve to say "whoa, isn't that a bit much for this scenario?"

If the prosecution is smart, they'll give the jury the option of a lower, manslaughter-type charge, which seems to better fit the case if self-defense isn't a good fit. However, that might not have been enough to keep the rhetorical lynch mob at bay who would want nothing short of a murder rap to be applied.

The Rodney King case comes to mind, where the first trial had the cops essentially up on attempted murder charges; when the jury was faced with the counter-argument that they were merely beating the crap out of King rather than trying to kill him, they took it and inadvertently set up some of the nastier rioting of my adult lifetime.

If a secondary charge isn't offered as an alternative, we're looking at a similar dynamic in the Treyvon case, where Zimmerman will be overcharged, acquitted and walking. That won't be pretty and will leave the White House of 2013 with the option of doing one of those "violate his civil rights" double-jeopardy end-runs to try him at the federal level as in the King case, assuming that the self-defense charge is weak enough to make a second trial hard to win for the feds.

Life and Death

"Mexican Cartel Leader Gets Life"-We all often struggle to find the meaning of life, but it's refreshing to see someone get it.

Oh, life in prison. Considering he offed three folks associated with the US consulate in Ciudad Juarez, he's lucky to just get life, although that might be a tool to placate the Mexican government, as they don't like seeing their nationals get the death penalty.

________________

Tomorrow, we mark the anniversary of one man executed on trumped-up charges, but He too knew the meaning of life; His was designed to be given for us all as the sacrifice to end them all.

May all the folks south of the border worshiping the Death Saint figuratively or literally turn to the God of life who trashed Death for us.

The Other Mark

If you're looking for news of my Cincy namesake, here's a link. I'm not him. I only visited there a few times, am not a photographer, and have a nearly inactive Facebook account.

This story might have some legs, since the court order of an on-line apology a day for a month to an estranged wife does have some First Amendment issues attached to it.

When I kept getting people coming in looking for me in Google, I wondered what I did or whether some old post was in the news. Nope, twern't me.

[Note-2/25:the post has been edited to remove bogus information on my part per my namesake's request.]

Club Gitmo; Not Just for Fur'ners Anymore

Who needs the Freedom to Ship Act? They may have passed the enabling legislation yesterday.

The law, contained in the defence authorisation bill that funds the US military, effectively extends the battlefield in the "war on terror" to the US and applies the established principle that combatants in any war are subject to military detention.

The legislation's supporters in Congress say it simply codifies existing practice, such as the indefinite detention of alleged terrorists at Guantánamo Bay. But the law's critics describe it as a draconian piece of legislation that extends the reach of detention without trial to include US citizens arrested in their own country.

All that's missing is declaring the Occupiers terrorists and the Newtownian clause to tell the courts to get lost.

Newt Versus Judicial Review

Let's fast forward to March, 2013.

In response to crippling protests of Occupiers shutting down ports and key rail facilities, Congress has passed the Freedom to Ship Act, declaring Occupy Wall Street a terrorist organization and authorized indefinite detention for Occupiers actively blockading foreign and domestic freight shipments. As part of the bill, Congress takes the lead of President Gingrich in denying the jurisdiction of the court system in assessing the constitutionality of the Freedom to Ship Act. The 9th Circuit declares Freedom to Ship unconstitutional within hours of Gingrich's signiture.

By June of 2013, 75,000 Occupiers are occupying space in detainment facilities (concentration camps, as NPR and CNN like to call them)  Also in June, a 5-4 Supreme Court majority concurred with the 9th, with Justice Kennedy noting that "the Court has had the implied right of judicial review of a law's constitutionality going back to Marbury V Madison over 200 years ago."

President Gingrich tells the Supreme Court to do an unnatural act with itself-

The executive and legislative branches can explicitly and emphatically reject the theory of judicial supremacy and undertake anew their obligation to assure themselves, separately and independently, of the constitutionality of all laws and judicial decisions.

Back to December 2011 and present reality. That quote above comes from page 6 of Newt's position paper on the courts. The original starts with "First, the executive..." and I left off the "First" for dramatic effect.

Would the detainees from the Freedom to Ship Act have grounds to appeal being stuck in Gitmo North? Based on what we're used to, yes, but Freedom to Ship would be a constitutional application of congressional and presidential power if I am reading Newt correctly.

I'm not sure if AGs Mukasey and Gonzales are "conservatives" as they were cast last night during the debate, but they both did serve in the Dubya administration and both think the Newt position paper is "dangerous, ridiculous, totally irresponsible, outrageous, off-the-wall and would reduce the entire judicial system to a spectacle"

I tend to agree. Using our mythical Freedom to Ship Act to detain Occupiers like Club Gitmo folks would be perfectly constitutional under Newtonian rules. Under Newtonian rules, any law is constitutional if a majority of Congress and the president say it is. That means, effectively, that Congress can amend the Constitition by a simple majority if it tells the courts to take a flying leap at a rolling donut as part of the bill.

Getting rid of courts you don't like would be perfectly constitutional, since Congress has that power in the Constitution. Dissolving the Ninth Circuit and restocking a replacement with less liberal judges would be constitutional. Ignoring the courts altogether would seem unconstitutional, since judicial review is the one way to keep a majority of Congress and a president from ruling unchecked by the Constitution.

Absent judicial review, there would be nothing keeping a president from seizing dictatorial control if he or she had a majority of congress and Newtonian rules. Picture a Hugo Chavez with a majority of Congress; you want a Supreme Court with teeth to prevent a Czar Chavez.

That's not to say that we'd be getting a Czardine in Newt. The folks who would follow... I'm not so sure. That's why Newt might be too dangerous to get in the White House, and I was leaning towards voting for him at this point.

Freddie's understandable. His infidelities are forgivable. Newtonian rule courts are dangerous to civil liberties both right and left.

 

No Ex Post Facto in the Court of Public Opinion

To borrow from John Calipari, there's nothing good that can happen at a nightclub at 1AM and a college board press conference at 10PM. JoePa got the ax last night; defensive coordinator Tom Bradley will take over for the rest of the year, including a key game against Nebraska Saturday. Instead of celebrating the matchup between the two newest members of the Big 10, we get the fallout of the worst scandal to hit a college football program in recent memory.

That being said, I'm not sure if firing Paterno for an error of omission nine years ago is the right path, especially when he announced he was stepping aside at the end of the year. If we rewind the tape to the summer of 2002, we knew a lot less about child sexual abuse than we do now.

We were just starting the big coverage of the Catholic priest sex abuse stories; that was one of the big stories that got a lot of Catholic writers to start blogs back in 2002 as the Blogosphere was in its infancy. In the near-decade that has followed we've learned that even decent-looking people can have an inner pervert and to err on the side of reporting stuff to authorities. That's 20/20 hindsight that Paterno didn't have at the time.

Paterno did report stuff, but not quite to the right authorities. The folks in the athletic department sat on the information and some of them are being charged for those misdeeds. When you couple that with the seemingly glowing reputation of Jerry Sandusky (from a distance, I knew him as the headmaster of Linebacker U, but his charitable work with kids made it seem even less likely to have him as a sex abuse suspect at the time), it's easy to see where Paterno might not have been bugging his bosses for feedback on the incident or sicking a county DA on the case.

One upside of firing him ASAP is that he won't have to deal with question for the last 4-5 games of the season; PSU has three regular seasons games left, plus a bowl game and probably a slot in the first Big Ten title game. Given l'affair Sandusky, we wouldn't get to see the Goodbye JoePa tour that would have normally have accompanied the announcement of his retirement; too many folks would be saying Goodbye and Good Riddance instead.

Good Riddance to one of the straightest shooters in the history of college football? It might be needed in a fire-the-whole-chain-of-command response to such scandals that is common these days, but Paterno deserved a better exit. A year or two from now, if he's still with us, Paterno should get the kind of elder statesman of the game spot that John Wooden held for a good quarter-century after stepping aside at UCLA.

Arbitrary Church Rules

I recall going to a church business meeting last year at Sunrise Baptist here in Midland where they were debating a clause in the church bylaws forbidding members from taking the church to court, requiring their favored Christian mediation serves as a replacement for such disputes. One one level, there is good scriptural standing for such an attitude; 1 Corinthians 6 calls for keeping disputes within the church.

However, some of the rationale for such rules stems from the deep pockets many big churches have. When Sunrise was renting a small church building in the older section of town at the turn of the millennium and not having the money to pay a full-time pastor, there would be little for a litigious member to sue for. Fast forward a decade, and they have a nice newer building bought off the Midland E-Free near-megachurch when they outgrew the 600-or-so seat building and built even bigger digs; now, they are more likely to feel the need to have such suit-stopping rules, since they have more assets to cover.

A similar issue is at the Supreme Court, where such an arbitration mandate is in play. A teacher at a Lutheran school in metro Detroit got let go after coming down with narcoleptic symptoms; she felt the need to press an disability-discrimination lawsuit, but her contract stated that any such issue needed to go to arbitration instead. The church wants the suit thrown out and the Obama team is backing the sleepy teacher in her right to sue, saying that any pastoral exemption shouldn't extend to school-teachers, even if such teachers do a lot of religious teaching as part of their job.

This is a toughy. On one hand, that Biblical mandate makes taking a church to court problematic. However, if the arbitration process is stacked against someone who was wronged by a church, there seems to be a miscarriage of justice that needs a judicial remedy. I don't know the winning percentage of churches in such settings, but there is often an assumption that the church elders are right and the plaintiff is wrong.

We're quick to want to keep Muslim internal law from getting into our courts, especially if the deck is stacked against women and children and for men; one of the more troubling parts of Herman Cain's rhetoric is his excessive fear of such sharia rules getting respected in US courts. However, if we want to go after Islamic legal infrastructure as unfair, would we also be on constitutional grounds to go after Christian legal infrastructure that may be unfair to some parties?

That's what the Supremes have to deal with. I have the feeling that there will be a lot of concurring opinions. Having to be nice to a gal with nap attacks wouldn't be a huge breech of Christian values; if anything, the school looks more like Pharisees at this point. Somehow, I don't see this one being 5-4 with Kennedy being the swing vote either way, since I could see this going anything from 7-2 for the teacher to 6-3 for the church.

Obama's Greatest Hit

Interesting news out of Yemen, where an US-born al Qaeda teleterrorist, Anwar al-Awlaki, was killed by US forces, likely a Predator drone aircraft. al-Awlaki was able to use his native English to spread his cause over the Web and inspired more than one American jihadi, including the Fort Hood shooter.

I don't have a problem with unmanned drone aircraft doing the shooting; it does make things a bit antiseptic for our side and a bit less gallant, but if the pilot can be doing the job from an office complex in Nevada, more power to 'em.

What is novel is that we've essentially put out a extrajudicial hit on Anwar al-Awlaki. There doesn't seem to be much doubt that he'd be up for either life in prison or a trip to Jack the Dripper had he been hauled to justice. It's not something that is good for a country that thrives on the rule of law to be shelving such principles on a global battlefield.

However, it is a battlefield, albeit an unconventional one. A missile strike delivered some rough justice without putting US or Yemeni troops at harm's way; if you're more of a pacifist or more of a legal purist, that is too rough, but a constitutional law prof turned president signed off on the policy.

It will be interesting to see if this gets anyone into the Democratic nomination race.

What Have You Done for Him Lately

It's interesting that the shooter in Frankfurt yesterday was a guy from Kosovo. One would think that he would have a soft spot for the US Air Force for their ousting of the Serbs from his country over a decade ago.

However, that is sooooo 90s, and we're in the 10s. Also, infidels are still infidels, even if they are former allies. Osama was happy to take US help in ousting the Russians from Afghanistan, then turned around and aimed at the less-egregious infidels.

Be thankful that modern Christian history is short on jihad-style thought; otherwise, we'd have the Westboro folks shooting at mourners rather than damning them loudly. Unfortunately, they're allowed to do that thanks to the First Amendment. They're allowed to question one's eternal destination as long as they don't try to expedite one's trip to eternity.

Reining in Big-Money Preachers

Sen. Grassley had been probing some high-profile TV ministries, including Benny Hinn, Creflo Dollar and Paula White. His staff released a report that didn't propose any new laws-

The review by the committee did not impose new rules on the religious organizations or suggest they be stripped of their tax-exempt status. But it did bring to light compensation practices that may raise eyebrows in the non-profit community and lead to a discussion of new tax policies for religious organizations.

"The staff review sets the stage for a comprehensive discussion among churches and religious organizations," Grassley said in a prepared statement. "I look forward to helping facilitate this dialogue and fostering an environment for self-reform within the community."

I'm not sure what reforms one would do.

Do some of these folks make too much money? Yes. However, would we want to set up a salary structure for pastors?

Are pastoral allowances often abused? Yes; housing allowances let pastors have a good chunk of money tax-free and that might be capped to keep pastors for paying for starter-castles tax-free.

Can a pastor use gifts from parisioners as a way of getting tax-free income? Yes; since things like birthday gifts or "love offerings" given a visiting speaker often fall under the gift catagory rather than a donation, the recepient wouldn't be taxed.

However, there isn't much in the way of legal steps that can easily be done. Making churches file financial statements with the IRS might be one step, but it also runs the risk of the IRS auditing churches that the president doesn't like; if there are no records, there is not coorsive tool for good or ill.

Salary caps for pastors is unlikely to fly in this Congress, nor is personally recording and 1099ing all church donations, including cash gifts, going to be viable. All that can be realistly done is to make churches and ministries more accountable. One problem with that is that many of the ministries are preacher-centered to the point where there is no outside supervision, no denomination or church board to keep a leader honest.

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Bene blogged on this news item yesterday-

With more prosperity teaching coming into Canada with Love World Christian Network Inc. (LoveworldCan) licensed by the CRTC [Canada's analogue to the FCC],  it’s difficult to complain about what the US isn’t doing to stem the tide of this poison.

I'm not sure what legally can be done to provide a legal anti-venom. The First Amendment would preclude shutting churches down for bad theology, tempting as that might be; the Charter of Rights would likely give them the same cover in Canada. You really wouldn't want to give the government that power, since the state religion isn't likely to be yours.

As long as they don't break any laws, there is little that the government can do short of doing some sort of Fairness Doctrine game making religious cable channels carry a variety of programming rather than be all-Pentecostal or all-Catholic. Even there, televangelists with a following could move to webcasts of their services and keep the action going there; the Todd Bentley Lakeland fiasco was mostly Web-driven rather than TV-driven.

Big salaries aren't illegal. Bad theology isn't illegal. Heart-tugging pitches for money aren't illegal. Tacky, no doubt. But they're not illegal and aren't likely to be.

Preventing Crazies

Toning down the political rhetoric is the issue of the day, but popular conservatives don't seem to be the problem here. Our shooter wasn't saying anything about Beck or Palin or Rush or any of the usual suspects of the right.Rock and rap have nihilistic wings that seemed to have been more an inspiration than any media talker, but there aren't political points to be made by bashing them.

Demonizing your foes is not cool, given that the foe isn't usually the Devil himself. However, that isn't the problem; most murders of this type are done by people who aren't emotionally playing with a full deck and need help.

I'm not sure if the tone of our political discussions are going to change the number of attacks on public officials. Oklahoma City is about the only major piece of political terrorism that was right of center. Most everything else was either crazed (both shots at Ford, Reagan and Tuscon) or of the left (both Kennedies and Truman) with only King's assassination being a "right-wing" thing if you can chalk up racism as a conservative thing.

It doesn't seem that our shooter in Tuscon was coherently conservative; he seemed of the left more than of the right but with an anarchic, nihilistic streak that was more psychotic than political. The solution there would be to do more to get edgy folks into psych treatment sooner, but civil liberties issues crop up there, as it's hard to deem folks to be a danger to others before they actually act out on their thoughts.

Such aggressive treatment of violent-leaning personalities would require spending more resources on mental health and making the laws in that area less libertarian so to make it easier to force marginal folks into treatment. That will tick off both sides of the aisle, as it spends more money and makes the ACLU types nervous.

The Due-bill of Due Process

Folks in the immigration system are now entitled to a lawyer if they aren't competent to represent themselves, so sayeth U.S. District Court Judge Dolly Gee. That make sense, since it parallels the right to council from Gideon v Wainwright.

But critics say the decision inappropriately places a new financial burden on American taxpayers and ignores the risk of keeping sometimes dangerous immigrants in the U.S.

If someone is too out of it to represent themselves, we might be sending back someone who shouldn't be deported. A crazy citizen might get sent overseas if the system errant assumes they are an illegal and gets railroaded across the border. There isn't much chance that you or I will be sent to Mexico or China that way, but if you were Hispanic or Chinese, that might be a real prospect.

Freedom isn't free, the modern patriot loves to say. Nor is our legal system free; it cost money to run the system, and hiring a few more public defenders to make sure things are done right isn't inappropriate.

Crazy illegals aren't the most lovable critters on the planet, but we're supposed to love everyone, even those least of these who are getting sent packing back to the old country. Giving them their day in court without them having a true fool for a client seems just.

Educating Rita... and Juan and Ceasar

This will get immigration hawks hot and bothered, doubly so if they are fiscal conservatives; kids who went through California's high school system as illegal immigrants qualify for resident tuition status there. The rules make the college students work towards legalizing themselves; that shouldn't be too hard, since a student visa that anyone overseas can get would work just fine.

It doesn't bother me. I'm not one to take things out on the innocent, and kids here with illegal parents shouldn't get the short end of the stick. If they went through our school system, giving them the heave-ho back to Mexico or wherever when they turn 18 doesn't quite sit well with me.

Since they are now adults, they need to make themselves street legal and can't fall back on the innocent child story anymore. Treating them as locals rather than immigrants for tuition purposes doesn't seem off given that they have been here for a while as a kid.

Yes, this will tack on to Cali's big deficit, which is another reason why I can see the usual suspects on the right will chew the scenery with this one in the next few days. However, that's just one more thing going on Jerry Brown's plate as he gets stuck running herd over CA's fiscal mess. It's far from the straw that broke the camel's back, since there is a few shipping containers full of big government that Clyde's hauling right now.

19 Means Nothing

At least that's the case in cribbage; you can't get a 19-point cribbage hand, so "having 19 in the crib" was a euphemism for zero.

Prop 19 in California, the one to legalize pot in the state, means very little, either. It really won't legalize it, since it still illegal on the federal level. Local cops will look the other way since it's not a state offense, but the DEA and FBI will still be on the case.

That means that the drug gangs won't be put out of business. If you could go down to the corner 7-11 and get a tin of High Nites smokeless marijuana ("Hi, I'm Walt Garrison and I don't smoke pot."), that would put a dent into the Zetas and other bad actors. However, that won't happen until we change the law on the federal level, since any store bold enough to do so runs the risk of being seized by the feds.

You can make a case for such legalization, that the War on Drugs does more collateral damage than its worth, at least for pot. However, doing so without getting rid of the federal laws first creates a disrespect for the law.

In Arizona, folks are looking to enforce immigration laws the feds ignore and in California, folks are looking not to enforce drug laws the feds enforce. Strange game.

 

Rough Justice

A would-be thief picked the wrong car to try to steal in Detroit; even after being shot, the driver of the target car shot back, killing the would-be thief.

That does make something of a case for Second Amendment rights; the driver might well be dead had he not been able to shoot back. Such a case will give future thieves pause before trying something in tough neighborhoods and give non-city-folks like me pause before going into Detroit and other urban areas.

In Jail, in Michigan

The Flint serial slasher suspect has been extradited to Michigan. It's a life-saving move for him, since Michigan doesn't have the death penalty; it has never had it, coming into statehood without it. Virginia does have it, and it will be interesting to see if they want a crack at him and whether Michigan will let them.

I could see Gov. Granholm vetoing such a move. Gov. Snyder....? That might prove interesting.

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Speaking of jails, Midland County has a new one, as the old one downstairs at the courthouse in downtown was replaced by a new facility in the SE corner of town. It's now becoming a profit center for the county, as it takes in overflow from neighboring counties and from federal prisons. The feds pay better, as they get $50/day for them and only $30/day.

Welcome to Club Chemic, guys.

The Turner Diaries Blogs

Here's an interesting case out of Chicago, where an uber-right-wing radio talker named Hal Turner was convicted of threatening to kill three federal judges who got on his wrong side for some pro-gun-control rulings. The threats seemed to amount to his saying the guys should be killed and listing their home addresses and maps of their offices.

How does that differ from a fatwah calling for an infidel's death without doing anything active to bring it about? That might not be something the Southern Poverty Law Center would be getting into, since their focus is on wingnuts on the racist right.

Last last year, anti-Prop-8 groups published lists and addresses of people who donated to the pro-8 campaign, largely with the idea of harassing the folks who backed it. At least one guy lost his job over it, essentially being blacklisted over his pro-8 donation.

The SPLC won a civil case where they pinned the beating of a Hispanic kid by skinheads to a Klan leader's rhetoric even though the leader didn't say anything in particular about the victim; his steady bile of anti-non-Aryan hate was enough. Could the same logic be applied to militant clerics or militant political groups of both sides of the aisle who wish certain people dead?

Turner might have an interesting appeal case. Not that I support what he did by any means, but it opens the door for a lot of heated political rhetoric where "Death to X!" is the rallying cry can be treated as a criminal offense. Clearing the air of such rhetoric would be good, but we're in interesting First Amendment area here; the Supreme Court might well get this one.

Arab Christian Slasher?

Flint rarely gets in the news for good things, save the occasional sports star; Flint could contend for a basketball Olympic medal if it were a city-state. However, the news that was coming out of Flint the last few days was of a serial killer who liked knives and offing mostly blacks.

There is now a suspect under arrest, an Israeli Arab named Elias Abuelazam, who had a green card and was working in metro Flint. That first name might lean toward him having nominally Christan roots; there are quite a few Christian Palestinians (most Israeli Arabs are of Palestinian descent, just on the "wrong" side of the border) including Yassir's widow. Such Palestinian Christians wouldn't be uncommon in Michigan; metro Detroit has a large number and I remember my Saginaw Valley State Intervarsity Christian Fellowship group had a Palestinian guy in it.

This might lead to Arab-bashing in general, especially aimed at a large cadre of Arab-American shopkeepers like the slasher's boss in Mt. Morris. It will also lead to some Muslim-bashing, even though Abuelazam might not have been Muslim.

Judging Judges

The judge in the Prop 8 case has been widely rumored to be gay; this AP piece asks tbis question-

But the debate raises the question: Why is sexuality different from other personal characteristics judges posses? Can a female judge rule on abortion issues? A black judge on civil rights?

On abortion, even though it is viewed as a "woman's issue", women are not uniformly pro-abortion-rights nor particularly more "pro-choice" than men. The same isn't quite as true on civil rights cases, but you do see quite a few blacks critical of AA policies wanting to be judge on their merits and not their ethnic background.

However, a lot of marriage law is based upon traditional morality. Small-o orthodox Christian, Jewish and Muslim doctrine look down upon homosexual activity and have a male-female concept of marriage built in.

Most gay folks (at least those who aren't trying to reign in those same-sex urges) will have rejected an orthodox take on their faith and thus will have a dim view of those traditional roots that created marriage law. Those who are active in a faith lean towards heterodox places of worship who have accommodated modern secular views on sexuality; for Christian gays, there are a variety of welcoming mainline churches and  Jewish gays have Reformed synagogues.

That doesn't mean that a gay judge couldn't say "I don't see a right to same-sex marriage flowing out of the Constitution", but that it would be harder for him to not reject the tradition that marriage law is based on.

Pander Bears

I think the ACLJ has enough church-state cases to keep busy on. However, it is filing a suit to try and overrule the recent landmark-commission ruling on the proposed Cordoba House mosque. I can imagine Jay Sekulow pontificating about this on his talk show and using this as a fund-raising tool; even if it isn't directly used as such, his scenery-chewing style would take such an issue and get listeners riled up and in a giving mood.

Does this help the cause of Christ or just make him look petty?

First Intermission

Bene was happy with yesterday's district court ruling overturning the same-sex-marriage banning Prop 8 that California passed recently. However, if I might use a hockey analogy for the Peanut Gallery's resident Canadian, we're just finished the first period, for this is just the first step in a three step judicial process.

The second period goes down at the regional appellate level; for California, that is the Ninth Circuit Court of Appeals. The 9th is noted for being the most liberal of the appellate circuits and the most overturned. If they rule in favor of Prop 8, the legal game might be over for the pro-same-sex-marriage forces, for they might not want to appeal and make a national precedent, since it would be a longshot to see the Supremes be to the 9th's left on an issue.

If the 9th Circuit rules against Prop 8, it will most likely be appealed to the Supreme Court. As expected, Elana Kagan just got confirmed by the Senate today, 63-37; five Republicans voted for her and Ben Nelson was the lone Democrat to be in opposition. That keeps the court at its current ideological split of four conservative justices, four liberal justices and Anthony Kennedy, a nominee of the elder Bush who has become the key swing vote after the retirement of Sandra O'Connor. Kagan's rebuff of armed-forces recruiters while running Harvard's law school on anti-don't-ask-don't-tell grounds, even when such actions risked Harvard's federal funding, would make here a likely anti-Prop-8 vote.

Kennedy was the swing vote in throwing out a Texas same-sex-sodomy law, but may not be willing to go as far as making same sex marriage legal nationwide, which would be the effect of such a ruling. He's conservative, but more of a status-quoian conservative than an activist conservative. He's been unwilling to overturn a liberal legal status quo but he's also been less than eager to overturn a conservative status quo.

We're in the first intermission, Bene, and we now sit back and let the pundits back in the studio pontificate about what went down in the first period and what might happen in the next two periods. We might even have a constitutional shootout at the end, where a national Prop 8 constitutional amendment might well be sought if Kennedy sides against Prop 8.

Weekend at Bernie-san's?

A Tokyo man who had been collecting his late wife's pension for five years was found to be dead... for about 30 years. It seems as his daughter was cashing his checks and had his mummified body in the house. Authorities wondered about the man's whereabouts but never got to the point of demanding to see the 111-year-old in person until now.

No word on whether he kept voting LDP all those years ;-). Or, given his Buddhist leanings, maybe Komeito?

How many other mummies are collecting Social Security and pensions? How often should the system demand that the person in question actually show up in person to show they're still alive and kicking?

Driver's licenses generally require renewal in person, especially when one gets elderly and their bodies start to go on them. However, if a child or son-in-law has power of attorney for an enfeebled oldster, they might be able to go years signing for them without having to have Grandpa actually be present to prove he's still with us.

Interesting question to ponder.

An Insubordinate VA

Interesting piece of news from the VA; they're allowing doctors to look the other way when patients use medical marijuana in states where it is legal and adjusting their proscribing of other drugs accordingly. Previously, medicinal potheads were barred from getting VA treatment.

I'm actually in favor of medical pot if done right. I found myself to the left of the house liberal in our circle of freinds in right-leaning Midland on the issue.

The problem with the evolving system of decriminalization on the state level while it is still illegal on the federal level still leaves people taking the drugs as federal criminals.

What needs to be done is, assuming things pass FDA muster, for drug laws to be changed on the federal level allowing for it to be used by prescription only for the areas where it is clinically effective (glaucoma, anti-nausea) on a tightly-controlled basis, not unlike what we currently have for, say, codeine. That might take a while, since doctors aren't in a good position to do clinical trials to see if ganja is effective given its illegality.

The problem with the VA decision is that they ignore the fact that marijuana is still illegal on a federal level. Were that decision made by Congress, that would be OK by my book, but to do it unilaterally oversteps the authority of the VA, nullifying a law that is on the books.

When you're treating folks trained to follow orders, telling them to ignore a lawful command sounds, well, insubordinate.

P.S.- I just noted that the guy who released the ruling was "Dr. Robert A. Petzel, the VA's undersecretary for health."With apologies to Steely Dan, this really looks like Petzel Logic.

Conservatives and Civil War II

When I first read this Erick Erickson post this weekend on Ideologues, my first though was to compare his William Wallace lovefest to Klingons who go to battle with the motto "It is a good day to die"; Erickson's take on Goldwater's thumping in '64-"My response…so?" He stood for what he believed ("My god, he's running as Goldwater") and went down fighting, giving us a full term of LBJ's Great Society as a result.

There are times where it is better to be a bit more tactical than always going down via a failed frontal assault. Worf was a human-raised Klingon who had the Klingon warrior blood but human guile to know that, to borrow from Patton, the warrior's job isn't to die for the cause, but to get the enemy soldier to die for his.

However, there is something a bit more sinister going on here, especially when I saw an ad for a new book from Thomas E. Woods called Nullification on the top right of Red State; here's a Red State review of the book. The cover hearkens back to Thomas Jefferson, but students of political history will associate the team more with John Calhoun. The South Carolina firebrand of the early 1800s wanted to give states the right to opt out, or nullify, federal laws, which made him a hero to the Southern thinkers who gave us the Confederacy.

State's rights is the battle cry of the book. However, that term has the connotation of bigotry and Jim Crow, as it was often applied to southern states in the mid 1900s wanting to keep Jim Crow intact. Tea Partiers might hear William Wallace ("they can't take away our freedom!"), but other folks hear George Wallace.

The original Boston Tea Party was a terrorist protest against British taxation; applying it to modern politics casts liberal Washington as colonial England. William Wallace fought to free Scotland from British rule; there to, the hermeneutic is that of Washington as England. Both are civil wars within the British Empire of the days.

When you add Calhoun's nullification as a precursor to the American Civil War to that hermeneutic, conservatives are fixin' for the political equivalent to a second Civil War. The parallel gets even richer when you note that the most conservative areas of the country are in the old Confederacy. The Tea Party got one of its bigger primary-season coups in Calhoun's old stomping grounds of South Carolina in Nikki Haley's win against establishment Republicans.

Are conservatives like the Macon-based Erickson merely exercising some hyperbole in their rhetoric, or are we really looking at dividing the US along Red State-Blue State lines and forming two countries? The motives are going to be more economic and social this time rather than the racism (and a bit of free trade, yes, granted) that marked the first civil war, but the rhetoric is looking more and more like we're in the 1850s rather than the 2010s.

Candygram for Big Oil! Candygram for Big Oil!?

Here's an interesting story from out of Houston, where an oil exploration company president's wife was the victim of a pipe bomb put in what was suspected to look like a box of chocolates. [Insert Forrest Gump joke]. [Insert Candygram for Mongo joke].  Thankfully, she survived.

Also, insert Glen Beck going over-the-top joke. Yes, there may well have been some ecoterrorists at play, but I don't think they'd be trolling low enough in the food chain to pick out Adams Resources Exploration as a target. They are publicly traded and have a market cap of $82 million as we go to press, but that's small potatoes compared to the megacorps that get all the publicity. 

What might be as likely is that someone had it in for Adams president James Brock Moore III. Unless the attacker had been doing some serious digging in the oil industry literature, Moore doesn't seem to be a likely target for some ecoterrorist. If I were the police, I'd be more inclined to be looking at mundane leads, like someone who had a beef with him or his wife.

2012 Might be Scary After All

There has been a lot of ink, cable TV shows, and at least one movie, on how 2012 is poised to be the end of the world, partly playing off the idea that 2012 is the end of the Mayan calendar. However, the scary part might have little to do with the Maya and a lot to do with American politics.

This morning, while I was meditating in my seat before church started, I was thinking that there might not be a FY 2012 budget. If the results of November's elections have enough Tea Party Republicans, either elected with their support or fearful of being primaried  willing to vote down a budget compromise with the Democrats, we might see the federal government shut down come October.

However, when we have a federal government that seems not to be thinking quite straight, that might be an improvement. AG Holder's comments while I was off at church doesn't seem to help, where he's threatening a second racial-profiling lawsuit against Arizona if their new laws prove discriminatory. Since they are unlikely to see a lot of people of German or English descent busted for being in the country illegally, that is something that may well happen even if there is no racial profiling per se.

The original Boston Tea Party was a precursor to the American Revolution, with anti-British terrorists trashing a ship-full of tea in Boston harbor; that imagery is what had me leery of the modern anti-Washington conservatives who have taken on that name. However, that's starting to change as Washington seems to be beyond repair.

If the federal government makes it hard for our border states to keep the rule of law there, they might have no choice but to declare independence from Washington. Quite a few other states might want to join them; Texas Gov. Perry floated that idea not that long ago. Between immigration issues and budget issues, it might not be the worst idea on the planet to recreate 1990 in the USSR and dissolve the US into 50 independent countries, to call the US quits after 9/30/2011 and just not fund the beast for FY 2012.

Stranger things have happened. I think that is too radical for my tastes, for border crossings to go to Toledo or South Bend don't sound appealing, but it will be a prospect on the minds of quite a few people as we go forward.

Where in the Constitution is That?

The Obama administration dropped the hammer on Arizona, or at least they're going to try...

In the suit, which names the state of Arizona as well as Gov. Jan Brewer as defendants, the Justice Department claims the federal government has "preeminent authority" on immigration enforcement and that the Arizona law "disrupts" that balance. It urges the U.S. District Court in Arizona to "preliminarily and permanently" prohibit the state from enforcing the law, which is scheduled to go into effect at the end of the month.

Minor problem... there seems to be nothing in the Constitution to prohibit Arizona from their activity. There are a lot of things states can't do under Article 1, Section 10, but statizing a federal law on immigration doesn't seem to be one of those off-limits activities. To make things worse for Team Obama, the Tenth Amendment gives powers not given to the federal government to the states and the people.

Do the feds have that power? They do have in Article 1 Section 8 the right "To establish an uniform Rule of Naturalization[.]" Arizona could argue that they are merely helping them enforce such rules, but the Feds could counter that such strict enforcement by Arizona takes away from the uniformity.

Given the current Supreme Court's lean towards giving states more leeway in such matters and stopping federal overreaches, I could see where a Kennedy-right coalition could side with Arizona. To do otherwise would open up a lot of areas where there are overlapping federal and state laws to seeing all state laws were the feds have a say invalidated.

The Ninth Circuit would get the appeal on this, and they have been friendly to states-rights on things like assisted suicide. It will be interesting to see if they are consistent on the states-rights side or only give states powers they like.

Just because something is wrong doesn't make it unconstitutional. I think this one would go Arizona's way, but stranger things have happened.

Arizona Musings

I was critical of Barry Wong's proposal of making electric service customers prove legal residency. That logic will lead us down to a "papers-please" milieu that gives too much power to The Man. In the case of illegal immigration, most of the Peanut Gallery is OK, but that might not always be the case if we wind up on the wrong side of a future government.

However, I don't have a major problem with making being in the country illegal a crime that local officials can check on as well as the Border Patrol. Thus, the current flap over Arizona's new law is a bit unjustified.

The closest the law comes to the problematic edge is letting police check for IDs when there is probable cause of a crime. I'm reminded of a great line from Running Scared where the heroes move to bust some likely drug dealers who got out of a too-nice-for-the-area car-"In this neighborhood, a Mercedes is probable cause."

In some parts of the Southwest, ten guys waiting at a day-labor spot might be probable cause if the day-labor pool has a large undocumented factor. That will mean that collections of Mexican-looking folks will be given the papers-please treatment a lot more often than a similar bunch of Anglos (black or white) would.

Is that an unreasonable search? If the goal is to catch criminals, double-checking a group with a high likelihood of illegal behavior is reasonable. If the goal is to err on the side of avoiding racial profiling and keeping cops from harassing groups they don't like, then it's unreasonable.

Driving While Black is real. Flying While Muslim is real as well. I remember one Iraqi-American MBA student of mine at Sullivan U who had some sadly-funny stories of his trips through airport security; at least he could laugh at it, which I give him credit for.

Hangin' While Latino is coming to a street-corner near you if you're in Phoenix. It's likely to be a pain in the butt for people of Mexican descent in Arizona, but it might be a viable way to cut down on illegal immigrants. With the problems south of the border, where drug gangs are closing in on Colombian levels of control, such checks might be called for, even if they aren't going to make civil libertarians happy.

If the ratio of righteous busts to HWL false alarms is too low, I'll reconsider, but I think Arizona's current law is OK.

Very Right or Barry Wong?

Interesting story out of Arizona, where folks seem to be racing to see how tough on illegals they can be. A guy running for utilities commission,  Barry Wong, would move to require utilities to check the immigration status of customers and to refuse service to people without proper papers. Of course, people on the left and, oddly, the Chamber of Commerce think he is barry, barry wong on the issue; such rules are bad for business.

Such rules probably won't help matters too much. I don't think there are too many home-owning illegals, and landlords who don't want to check the immigration status could always put the electric bill in their name and tack that on to the rent.

The problem that I have with illegal aliens isn't the alien part, it is the outlaw position they are forced into. Not "outlaw" in the sense of a rampaging gunslinger, but the old-English source of the term, where the person declared outlaw is literally outside the law. They are without any rights. Dogs at least have animal cruelty laws to back them up, but the outlaw can be raped, tortured, enslaved, killed, whatever; they are a non-entity.

What Arizona is trying to do is to increasingly turn illegals into outlaws, by making them show paperwork to do mundane things. It also means that we will need to show paperwork to do mundane things as well; such a rule would apply to everyone, not just the people who look "foreign". Would you be willing to pull out your birth certificate every time you have to do business with your electric company?

If you want to implement the outlaw strategy of making life as an illegal untenable, you as a citizen will have to put up with a more intrusive security protocol that makes you prove your status in many mundane places. Or, to use the critique of the left on this one, are you willing to put up with (insert Fearless Leader accent) "Papers, please."

That's why I would lean towards a hybrid strategy of physically securing the border and normalizing the folks who are already here and making a go of it. I prefer "amnesty" to a police state, since I don't own a doughnut shop. Doing a  "round them up and send them back" routine would requite more of prove-your-ID state than I'm comfortable with.

Run this through your mind. If paperwork is required to do business in many settings, what will keep the powers that be from putting requirements on those papers, turning them into Mark of Leviathan Lite, where folks without the right IDs are essentially outlaws. 

Such ID systems could work well to cut down on illegal immigration. However, they could also be the precursor to a much more intrusive government than we'd like.

A Morning Constitutional

Just a reminder to the immigration hawks in the crowd-- here's the beginning of the 14th amendment to the US Constitution

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

First, let's look at the first sentence. Where you like it or not, children born in the US are citizens. It doesn't look at the status of their parents; since this was passed after the Civil War to make sure that former slaves were considered citizens, not looking at the status of your parents was vital for this to work.

Now, lets look at the second sentence in light of a proposed bill in Arizona to deny issuing birth certificates to the children of illegal immigrants who were born here. Since a birth certificate is the route to prove your US citizenship, being denied that is abridging the privileges of a citizen of the United States and thus unconstitutional.

I'm largely on Arizona's side in the current immigration flap, but this is both wrong and clearly unconstitutional. The avenue to change this is a federal constitutional amendment, not a state law.