Sunday, September 21, 2014

The Reservoir of Rights

On June 8, 1789 the little man with big thoughts, James Madison, rose from his seat to address Congress.
They were reluctant to hear him (pressing financial issues) but he knew the issue had to be addressed and proceeded anyway. What was so important?

The Bill of Rights.

Madison methodically went down his list explaining each item. Toward the end noting “the great object in view is to limit and qualify the powers of Government, by excepting out of the grant of power those cases in which the Government ought not to act”  he began to conclude. Before he could finish he needed to address an issue.

The issue was a problem people had with this list of “Thou shalt not’s” directed to the federal government. The Bill of Rights was not and on a practical level could never be comprehensive. So what about rights not listed? The objectors asked. Would they fall into the hands of the federal government? Madison responded by saying,

”It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow, by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution."

 The “last clause of the fourth resolution” was this:

“The exceptions here or elsewhere in the Constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the Constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.”

This would become the Ninth Amendment which would say:

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

You see, the state representatives wanted to be clear—crystal clear. They further wanted to specify that the powers not enumerated would reside with the states. Seemingly an obvious thing  ("superfluous" said Madison) but let there be no dispute, the states said. So—they added the Ninth’s companion the Tenth Amendment.

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

This was the vast reservoir of rights explicitly left, not to the federal government, but to the people through the power of the states. The Framers thought it was impossible to make it any clearer. Now years later, we see the insidious way the sands of time can cover even the most prominent of markers. 

One hundred and seventy-six years after Madison rose to speak, in the case GRISWOLD V. CONNECTICUT the Supreme Court would quote the Ninth Amendment to remarkably do the precise opposite of what the Ninth tried to make crystal clear: The federal government cannot touch the reservoir of rights. If an unenumerated right was to be found and made into law and otherwise enlarged or restricted it would be done by the people through the states. The federal Supreme Court invalidating the state law was, not shockingly, considered a “broadening of the power of the Court”. Not to worry, said the Court.

“In determining which rights are fundamental, judges are not left at large to decide cases in light of their personal and private notions. Rather, they must look to the "traditions and [collective] conscience of our people"

Who becomes the discoverers and then subsequent arbiters of what the “traditions and collective conscience” of the people would be? Would it be the representative of the people in the states? Or even the representatives of the people at the previously forbidden federal level? Is this republicanism or is this an oligarchy? Who is creating the law here?

Five to nine people have waded into the deep waters of the reservoir and standing there along the edge like ministers of the Gospel in their black choir robes, they decide who should be baptized and who is, well, not worthy.

Has the ill effects of time slowly doomed the American experiment?

Tyranny, Tocqueville warned, need not announce itself with guns and trumpets. It may come slowly. So slowly that we will barely notice when we become one of those countries where there are no citizens but simply subjects. So quietly that a well-intentioned foreigner might say, “Maybe you should do something about your oppression.” And we would look up confused and say,

“What oppression?”

#ninth amendment

Wednesday, September 17, 2014

Living Sacrifice

Lord God--

I look and see the truly wonderful life you have given me

In picture frames I see my beautiful wife

Always smiling and full of life

I see their faces, look in their innocent eyes
I'm trying hard, I pray Father let them be fine.

I know they are asking me to lead them
They want me to stand for them and provide for them
My dreams call out to me, but what about them?

Oh Father this dying while living !

sometimes I  feel so alone

Abba, help me be what you have called me to be

Show me the way
Give me the strength

Jehovah Jireh, stand with me

I cannot do this alone

#Sanctus Real life inspired

Monday, September 1, 2014

Blind Spot

This summer, Justice Ginsburg, in response to a question about the recent Hobby Lobby decision accused the male members of the Supreme Court of having a "blind spot" in regards to the rights of women.

Do you believe that the five male justices truly understood the ramifications of their decision?” Couric asked Ginsburg this week. “I would have to say no,” Ginsburg replied.

This comment falls in line with the accusation of a "War on women", an insensitivity and lack of consideration toward the plight and concerns of women.

Reading this comment of hers I could not help but think back just a few years to a case called Kennedy v Louisiana (2008), a  case before the Supreme Court concerning the brutal rape of an 8 year old girl. What follows is the abbreviated detail on the case present in the majority opinion itself.

"Petitioner’s crime was one that cannot be recounted in these pages in a way sufficient to capture in full the hurt and horror inflicted on his victim or to convey the revulsion to society...When police arrived at petitioner’s home between 9:20 and 9:30 a.m., they found L. H. on her bed, wearing a T-shirt and wrapped in a bloody blanket. She was bleeding profusely from the vaginal area. Petitioner told police he [stepfather and actual perpetrator] had carried her from the yard to the bathtub and then to the bed...L. H. was transported to the Children’s Hospital. An expert in pediatric forensic medicine testified that L. H.’s injuries were the most severe he had seen from a sexual assault in his four years of practice.

The little girl had denied her step-father had committed the crime, protecting him, but the evidence was overwhelming that he had in brutal fashion raped his step-daughter. In response and pursuant to the law in Louisiana he was sentenced to death.

The Court decided that the Eighth Amendment's prohibition against "cruel and unusual punishment" prevented the man from receiving the death penalty. This, in spite of the unequivocally clear allowance for the death penalty in the Constitution in the Due Process Clauses of the Fifth and Fourteenth Amendments that state no person shall be deprived of life without due process of law and in the Fifth's Grand Jury Clause that guarantees that no person shall be held for a capital crime without a grand jury indictment. If you can be deprived of life (after due process) then capital punishment was clearly not "cruel and unusual punishment.'

The Court cast aside the plain meaning of the Constitution and instead based on "our own independent judgment" and the "evolving standards of decency (!) that mark the progress of a maturing society" overruled the Louisiana law. This Supreme Court ruling explicitly allowed for the death penalty to remain in place for crimes against the state (like espionage or treason) but not for a brutal rape of an underage girl. So if an Edward Snowden were apprehended he could receive the death penalty but not the perpetrator of this type of crime.

What caused me to think of this case was that of the five Supreme Court members making this decision in 2008 was a single woman--Ruth Bader Ginsburg. The same woman who six years later in 2014 would opine that the male members of the Court were insensitive to the plight of women in not mandating that an employer violate their religious beliefs and pay for a select few drugs they considered abortifacients.

                                                 Who here has the blind spot?