Archive for the ‘Freedoms’ Category

Another child murdered. Another family in turmoil. Another mother in pain so excruciating that she collapsed on television. This mother now joins other mothers forever deprived of the pleasure and joy of loving a child and watching it achieve in life and in school, attending proms, graduating, heading for college, and eventually having its own family.

What monster could perpetrate such a crime? What kind of twisted personality could snatch a child walking from the school bus to home in virtual plain sight of the child’s friends? Who in God’s name could murder an innocent young human being and toss it’s body on a garbage dump as if it were a piece of trash?

This is what happened to Somer Thompson and her family in Florida. One day, they were happy and loving, the next day, they were thrown into absolute chaos, forever touched by a vicious murder, lives forever dark and brooding. This family and this mother will never “move on” They will live their lives forever in the grip of depression and a Post Murder Syndrome (PMS), which seems to be a peculiarly American disease.

As much as it tends to trivialize and remove the human element from despicable acts, the statistics of child abuse and murder stagger the imagination. Every year in America, about 3,000,000 incidents of child abuse are reported to various government agencies. Sure, not all of these turn out to be legitimate cases of child abuse, but if even ten percent are valid, 300,000 children are the objects of some sort of abuse. That is staggering and it suggests a society that hasn’t come to grips with its acceptance of cruelty against children.

The numbers on homicides are also mind boggling. From the time that statistics on murder began to be reported to the federal government in the early 1900’s until the present time, more Americans have been murdered in this country than have been killed in all of the wars America has engaged in since the birth of the nation. If you doubt this statistic, do as I did. Visit your local library and take a look at a publication called The Statistical Abstract of the United States. Tabulate the number of murders per year, beginning with the first year on record, 1900. My own tabulation covered the years 1900 through 2000, and the total number of murders was just short of 2,000,000. That’s almost two million dead people in a span of 100 years, an average of about 20,000 murders a year. Of course, the number per year will vary. In some years the figure may be less than 20,000 and more in others. But the total number of almost 2,000,000 is still there.

The number of Americans who died in America’s wars, roughly 1,000,000 (I’m working from memory here), pales in comparison to the number of murders. But at least we can understand and accept death as a result of military conflicts. We cannot understand and we ought not to accept senseless murder and child abuse.

What in God’s name can we do to prevent the violence against innocent beings in our society? At the moment, solutions seem elusive. When a murder is sensationalized in the media, we get on a roll and the air and cable waves are loaded with talking heads and experts of all sorts who raise our righteousness to a new level the way a balloon with a (rumored) six year old boy in it rises and soars across the Colorado prairie. Then, as soon as the current murder or sensational event loses its immediate emotional impact and hence its revenue potential, those same media twerps file the story in the bin of yesterday’s news. Remember Elian Gonzales?

Concurrent with the loss of media interest, our righteousness subsides and the victim loses its identity, relegated to the obscure and forgotten pages of The Statistical Abstract of the United States. Unfortunately, there are no solutions in this obscure government publication.

As individuals, we may be powerless to effect change, but as a society, we ought to be ashamed.  Shame, however, is un-American. Murder is the price we pay for freedom.


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This past Saturday, we drove from Annapolis to Philadelphia to scout out Philly’s historic locations, snap a few photos, snack a little bit, and get sunburned a lot. And, we walked our buns off.

Philly’s primary historical landmarks are concentrated amid lots of tall buildings without historical significance at the moment, but though the historic area may be small in size, it seems larger when you just sort of meander around.

And that’s what we did. We meandered through the Liberty Bell exhibit, the Philadelphia Mint, and the final resting place of Benjamin Franklin and a host of other Colonial personalities instrumental in developing the Declaration of Independence and later the Constitution of the United States. The sense of history and of the times made our meandering worthwhile.

However, we weren’t able to tour Independence Hall. Tickets are required for entry, but by the time we arrived, the day’s ticket quota was gone. According to the National Park Service, tickets are used as a means of spreading the visitor flow throughout the day. Sounds reasonable to me, but I was irked nevertheless. I wanted to see where those Colonial firebrands stood and condemned the British to hell, a tradition that still lives when the subject of universal health care arises.

Interestingly, as we waited in a rather long line to enter the Liberty Bell exhibit, a group of people stood near the line and handed out pamphlets about the Falun Gong. This is a religious group whose members have been persecuted in China, and on this day, the group’s message and writings were aimed at those who in appearance were probably Asian. At least, they overlooked us and others who resembled us, probably assuming, and correctly so, that the number of non-Asians fluent in the Chinese language would range from nil to nada to zilch.

Before I reached a point of utter exhaustion, we decided to survey real history. With our trusty GPS activated, we headed cross-town to the Philadelphia Museum of Art where Rocky ran up about a million steps and then, at the top, gyrated around, finally assuming that triumphant pose now enshrined in a statue at the bottom of the steps.

We, along with a few thousand others in line, stood in front of the statue when out turn came, emulating Rocky’s pose for our own personal pictorial posterity. Like the fool I can sometimes be, I stumbled on the damned pedestal and almost fell, much to the delight of the smirking crowd. I didn’t blame them. Hell, I would have smirked, too. But I recovered nicely and pranced around with arms raised just like Sylvester Stallone did in 1976, 200 years after those rugged firebrands of 1776 may have pranced inside Independence Hall. I think George and Thomas would understand Rocky’s triumph if they were around today.

After the picture-taking session, we walked to the flight of concrete steps Rocky had enshrined in modern American cultural lore so many years ago. Four of us ran up them just as Rocky before us. One of us had better sense and sat down nearby, watching the other members of our party run up and then back down. One female member ran back up and down again, and I was surprised that she wasn’t winded in the slightest when she returned.

By now, the hours we had set aside for our sightseeing were about over. We headed back, taking a route through New Jersey and Delaware and onto US-301into Maryland. As we drove, I noted when we left one state and entered another and thought about the differences. Aside from the obvious—Welcome to Maryland, e.g.—are the people different? Do they look different? Do they speak different languages, New Jerseyese, for example? Do they think differently?

These are philosophical questions for another time. For the moment, suffice to say we had a good time and enjoyed learning a little bit about Philly. As my blogging cohort, Alexandra Jones, a native of Philly, might say, “Go Phillies!” In honor of her devotion to her team, I shouted those words as we passed the Phillies stadium on our way out of town.

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Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

These words constitute in total the First Amendment to the Constitution of the United States. Do you notice anything striking about them?

Read again the first five words: Congress shall make no law…

Given these plain words-Congress shall make no law— how do we explain the many limits on personal freedoms we find in the history of our country? For example, if Congress shall make no law against whites and blacks assembling together, how do we explain a 165-plus year history of enforced segregation in the U.S.?

If Congress shall make no law against the marriage of whites and other races, or of the marriage of members of the same sex, how do we explain a history of governments forcibly preventing those marriages?

One potential answer may lie in this question. Do those words say, “the state of Nebraska shall make no law” or “a corporation shall make no rule” or “a religious organization shall make no canon” or “the president shall make no signing statement?”

The answer of course is no, and therein lies the source of almost all socially and culturally restrictive laws in the United States. The restrictions mentioned and others were and still are a product of state laws.

How can this be? How can states make laws that violate the Constitution? That’s a leading question. These laws do not violate the Constitution. The legal rationale is simple when you think about it: the Constitution doesn’t specifically prohibit the states from enacting restrictive laws; therefore, the states are free to place restrictions on civil rights.

Ordinary individuals use the same logic in their daily lives. “Well, officer, the sign doesn’t say I can’t make a U-Turn.” I used that very defense when I made a U-Turn right in front of a San Francisco motorcycle police officer who promptly proceeded to follow me into a parking garage and issue a ticket.

Looking at the matter in historical context and constitutionally-relevant terms, the First Ten Amendments, AKA the Bill of Rights, did not originally apply to the states, and even now, a few of those pesky First Ten Amendments to the Constitution still do not restrict state action. How can this be in the 21st Century? Consider:

  • 1833. The Marshall Supreme Court concluded there was no expression in the Bill of Rights “indicating an intention to apply [guarantees of the Bill of Rights] to the State governments. This court cannot so apply them.” From David M. Obrien’s Constitutional Law and Politics: Volume II, Civil Rights and Civil Liberties.
  • 1845. The Marshall ruling reaffirmed.
  • 1922. Supreme Court rules “the Constitution of the United States imposes upon the states no obligation to confer upon those within its jurisdiction…the right to free speech.” From O’Brien.
  • Present. Marshall’s original ruling of 1833 has never been reversed by the Supreme Court or otherwise expressly overruled. O’Brien.

Why would the all-seeing, all-knowing Founders have omitted a restriction on state power? To begin with, the Founders were the products of their time and place and an existing social and cultural order with all of the attendant norms. The “people of the United States” were previously British colonists whipped around at the whim of King George. When they gained independence, they decided that any central government they created would have no such power over their lives.

The Founders did not, could not, have foreseen the evolution of American society from an agrarian, loosely connected conglomeration of isolated communities into an industrial and military world power.  Hence, they created a federal system in which almost all power was retained by the states, including the power to restrict the civil liberties of all resident’s within their respective borders if they so chose.

The question now is how or by what mechanism have we reached a point in our constitutional history when most of the restrictive state laws and state constitutions no longer have effect? Did we suddenly become enlightened and eliminate them? No. Almost all of the laws and discriminatory portions of state constitutions were invalidated one by one by the U.S. Supreme Court under a concept called the Nationalization of the Bill of Rights or sometimes the Selective Nationalization of the Bill of Rights.

Some examples will serve to illustrate the snail’s pace at which fundamental rights became available to citizens by Supreme Court rulings rather than through state legislative action.

  • 1927 Freedom of speech
  • 1931 Freedom of the press
  • 1934 Freedom of religion
  • 1958 Freedom of Association
  • 1965 Right to privacy

Some have characterized the Supreme Court’s actions as interference in state’s rights. Others have used terms such as “activist judges” who “legislate from the bench.” The legal terminology is Judicial Review, a practice originating with the Marshall Court in which federal courts may under some circumstances review state actions for constitutionality. Almost all cases involving civil rights were taken to the U.S. Supreme Court because state legislatures and state courts failed to provide relief through the political process.

In one well-known case, Brown v. Board of Education, the Supreme Court invalidated the 50-year old practice of separate but equal facilities under which many states prevented the integration of the races in schools. Subsequent to this ruling, President Eisenhower used federal troops to integrate Central High School in Little Rock, Arkansas.

There followed numerous school integration clashes in the South, notably one in which the governor of Alabama, George Wallace, vowed  “I draw the line in the dust and toss the gauntlet before the feet of tyranny, and I say, segregation now, segregation tomorrow, segregation forever.”

This archaic attitude exemplifies the philosophy of those who even today wish to roll back the Constitutional clock. Despite the recent election of Barack Obsma as the first black President of the United States, the old Confederate states and their scattered allies haven’t forgotten the indignity of being forcibly dragged kicking and screaming into the modern world through the process of Judiaicl Review.

They forget that had they demonstrated a decent respect for the civil rights of everyone, not just the influential and landed gentry, the Civil War would not have occurred and over 500,000 Americans would never have died in a futile and destructive war. In wars, the best and brightest die. The worst remain to poison future generations.

Now, the worst are already calling for an end to affirmative action and other programs established to aid the disadvantaged among us based on the rationale that Obama’s election proves the U.S. is free of racial bias. Blacks no longer need a bootstrap to haul themselves up by.

All Americans should resist these call. If those forces who now cry for white equality had granted equality to others in the past, they wouldn’t have sufferred the embarassment and indignity of forty years of losing to the civil rights movement. “Legisltating from bench” would never have become a revisionist rallying cry for bigots at the expense of decent and well meaning Americans. Hurray for the triumph of Marshal and the triumph of judicial reciew.


1. 1. The rationale for the Nationalization of the Bill of Rights is frequently said to be based on the 14th Amendment to the Constitution, which reads in part, “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.”

2. I wrote this essay several years ago. Some progress has been made in the arenas of civil and political rights, but social progress remains problematic despite the election of Barak Obama as America’s first black president. This morning I spoke with a resident of East Texas. I asked in the N word was still used in Texas. Her reply was quick and to the point. “Yes, every other word out of the mouths of the Anglos as she referred to them is N….r.” East Texas is a small part of Texas and of the United States, but my own broader experiences tell me this is representative of the attitudes in many parts of the U.S. Archaic mind sets are alive and well.

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One of our esteemed California Senators, Dianne Feinstein, was prominently on display during Barack Obama’s inauguration as our 44th President. Ordinarily, that would be a meaningless occurrence except as a photo op. But Dianne was one of the Democratic Senators who voted in favor of Michael Mukasey as Attorney General in the Bush Administration, even though Mukassey testified before Congress that he didn’t know if waterboarding is torture or not.

Dianne’s rationale for supporting Mukassey seemed odd. Mukasey admited that he is as dumb as dirt. Why would Dianne want a person in office who lacked the smarts to read a comic strip much less the U.S. Constitution? Well, she said, the Office of Attorney General has been vacant too long. The office neededs an effective leader.

We all agreed then and agree now with the second part, but the office had effectively been without leadership for the past seven years at the time of Mukassey’s hearing. So, what’s another year? Why couldn’t Dianne have waited for a new president? Only Dianne can answer the question and she doesn’t seem inclined to expand on her original “reasoning.”

However, if she wants a few facts to help her see the light, I refer her to Evan Wallach who wrote a compelling opinion piece for the Washington Post about waterboarding titled Waterboarding Used to Be a Crime.

As an ex-Judge Advocate General (JAG) in the Nevada National Guard, he cited a number of legal precedents for the argument that torture in general and waterboarding specifically are illegal under both U.S. domestic law and international law.

He recounted the case of two American soldiers court-martialed in 1898 at the end of the Spanish-American War for waterboarding two Filipino guerillas.

He also described in detail the process of waterboarding and its effects on the victims, including excerpts of testimony from the records of the Tokyo War Crimes Trial by two Americans who were waterboarded by Japanese interrogators during World War II.

And as late as 1983, a federal jury convicted a Texas sheriff and three deputies of civil rights violations for waterboarding a prisoner. The four were sentenced to 10 years in prison.

These are sketchy examples, to be sure, but the point is that waterboarding has a long history of illegality and any fool ought to know it. Maybe the fools in Congress didn’t, but clearly, the legal record cannot be ignored by any rational person. Not only is waterboarding a form of torture, United States courts have consistently held it to be a crime.

Now, today, we have Dianne Feinstein standing next to Obama and acting as if the whole thing never happened. And right in there among the power group was Nancy Pelosi who has vowed to take no crap from the commander in chief. Plus, there was Barbara Boxer in the mix. She’s an enigma to me, but if she follows in the footsteps of her Bay Area cohorts, look out, Barry.

We ought to be scratching our heads at the thought of any lawmaker waffling over the issue of torture. We further ought to be perplexed at Nancy for her sudden display of guts after her possum-like career as Speaker of the House of Representatives when Bush was President. And we need to watch Barbara Boxer closely for signs that she may have decided to join the Opposition Wing of the Democratic Party.

Then when election time rolls around, all good citizens should take into account any and all recalcitrant behavior by these individuals. If one or more of them stands for any future political office, whether the office is another term as a Senator, a Representative, the Governor of California, or dogcatcher, the voters should summarily dispatch one or all to the furthest reaches of political purgatory as the evidence may suggest.

I realize that America is in a joyous mood at the moment (except Republicans), and  I recognize my tendencies here toward negatives. I don’t wish to cast cold water on Barack’s vision of a new beginning for our country. But we need to recognize at the outset that Barack is going to face Congressional opposition on many fronts from members of his own party. We should be watchful for signs  that Pelosi, Feinstein, and Boxer may coalesce into an Axis of Opposition. Such an occurrence would be the coldest water of all.

However, our daughter is optimistic. She remarked succinctly, “I have a hunch Obama will not take any crap from those two (referring to Dianne and Nancy Pelosi). I hope she is right.

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El Gavo appeared on the Dr. Phil Show today as one of a panel of six to debate the issue of gay marriage. The panel was composed of three who support gay marriage and three who opposed it.

Everyone knows the pros and cons of the issue so I won’t go into them here except to say that the overriding theme for the pros was civil rights while the cons objected on religious grounds. In a nutshell the civil rights group favored giving something to someone whereas the religious group favored denying or taking something away.

I’ve heard all of the argument, so my watching wasn’t to hear them repeated. Rather, I wanted to observe El’s performance. His is one of the names floated frequently as a candidate for Governor of California in 2010 and he has developed a reputation for defending gay rights and gay marriage. I wondered if I could gain a sense of how he might perform before a statewide or nationwide audience.

Watchers of politics will often tell you that the issues are largely irrelevant on the state and national stages. That isn’t to say that everyone ignores the issues. But a majority of Americans are concerned with one issue: supporting themselves and their families. The distinction between a civil union and a religious union is relevant only to a small segment of American society. Americans want leaders with strong management skills and an ability to see the whole picture.

In other words, personalities and appearances count. Sarah Palin is a prime example of someone holding extreme views who was popular even with those who may have opposed her positions. Did El evince a similar appeal during the Dr. Phil Show?

If he did, it was difficult to discern. For the entire show, he hardly spoke. Admittedly, the conversation was moderated, but air time certainly seemed the province of those who opposed gay marriage on moral grounds. Their emotion as a group and as individual members was strong and visible.

El seemed subdued, rarely speaking. But when he did, he was clear and concise, and he demonstrated a command of the legal facts. I had the impression that Dr. Phil was more interested in emotion and histrionics rather than facts, hence his preference for the cons.

On balance, El’s appearance on the Dr. Phil Show was a wash. He didn’t gain any ground in his quest for higher office but he didn’t lose any, either. He merely sat there like a spectator. That’s no way to win an election.

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When the election results finally dawned on me last night, my thoughts went immediately to my daughters. Throughout the entirety of the Bush administration, I had feared for their future and the destiny of the United States. I had observed the decline of America’s influence in the world and the total abrogation of the U.S. Constitution under Bush and Cheney, whose concept of the lunatic paradigm of a Unitary Executive (an idea floated by the Founders but quickly discarded) brought this country to the brink of a dictatorship. I saw no positive accomplishments or promise of an optimistic future from the Bushies from start to finish.

In fact, the Republican power structure did its best to roll back civil rights and personal freedoms through the appointment of Supreme Court Justices who were known to be unalterably opposed, among other things, to abortion under any circumstances, even when an abortion would save the life of a mother. These Justices used an equally archaic Constitutional argument to justify their lack of compassion. The so-called Originalist approach to constitutional interpretation as applied by the likes of Roberts and Scalia would have us all believe that this is the year 1789 when the Constitution was ratified.

Under their nutty reading of the Constitution, a matter not explicitly permitted in the Constitution is not a “right.” This is, of course, an argument of convenience. The “right” of the President to rule the country isn’t in the Constitution, but that’s okay since it’s one of the inherent powers of the Commander in chief. “Inherent powers,” by the way, isn’t a phrase found anywhere in the Constitution, either. But somehow, negative one plus negative one adds up to positive three in favor of the Republicans.

A right to an abortion isn’t contained in the Constitution, either, and therein is a great irony. Abortion was legal in all of the 13 Colonies and continued to be legal in the newly formed United States until the early to mid-1850s when a move to ban abortions began in the Eastern part of the country and spread little by little. In other words, those God fearing, upright, moral paragons of perfection, the Founders, favored abortion. Roberts and Scalia want us to return to those thrilling days of yesteryear when it suits their ideologies but otherwise ignore the social realities existing then. Turning back the clock has been the sole thrust of the Bushies.

But even before Bush, the bellicose Republican Party managed to stifle needed initiatives introduced by the Clinton administration and rendered Clinton virtually impotent as the Chief Executive Officer of the United States. Even so, Clinton was a wildly popular president in spite of his moral failings and peccadilloes. Imagine what he could have accomplished in eight years if officially-sanctioned pornographers like Kenneth Starr and his Republican cohorts in Congress had thought about the country instead of wasting government funds investigating cigars and stained dresses.

Perhaps, and we are hopeful, the Obama presidency will be marked by a sense of comity and respect for every citizen of this nation, even those who have managed through incompetence to bring the nation to the brink of collapse from within. Certainly, we can expect a great deal of resistance from the remaining congressional Republicans. The Democrats fell short of the 60-vote majority needed in the Senate to end filibusters. But if the Democrats play their cards right, they’ll box the Republicans into some very unpopular positions and wait for the next round of Senatorial elections.

Yes, I feel good about the future of my daughters and the possibilities open to them under a new real Real American Era.

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Prostitution is said to be the world’s oldest profession. I hold to the belief that designing and selling fig leaves probably pre-dates it.

But that’s neither here nor there. San Francisco’s Proposition K, which would prohibit SF’s city officials from arresting and prosecuting prostitutes and pimps, brought to mind a thought that’s been percolating in my mind a long time.

Frankly, I’m amazed that prostitution exists at all given the abundance of free…uh… stuff in San Francisco and everywhere else in the United States and the world at large. Why, a thinking individual might ask, would anyone pay for something that’s practically forced on them?

It’s crazy to divert good money away from the essentials of life and into the pocketbook of a pimp. For the price of a one-minute sexual encounter, a person could enjoy a few drinks at the nearest saloon and a lengthier encounter with a willing partner.

But, prostitution does exist, and it’s just damned foolish that we can’t purchase shares of good American stock in a profitable corporation offering sexual favors from a broker. I’ll guarantee that the stocks will never decline and Wall Street will never again need to worry about excessive CEO salaries.

So, I am proposing a free-market system for prostitution. That’s the American way. Give members of the world’s most lucrative profession the same opportunities available to all Americans, guys like Joe the Plumber and my cousin.

Opening prostitution to the free-market would also reduce the tax dollars now used to ferret out and embarrass wayward politicians. The stigma of visiting a pro would disappear and along with it, publications like The National Enquirer. Politicians overall would govern more efficiently without the fear of public exposure.

We envision a whole new segment of the Gross National Product, one titled, aptly, Really Really Personal Services. The revenues derived from the RRPS segment would far outpace, say, the Transportation sector.

On the flip side, a free-market system of prostitution would give rise to strident calls for the regulation of free sex. If there is one thing Americans do not like, it’s someone engaging in unfair labor practices.

Given the pros and cons of Proposition K, we thus offer our endorsement. San Francisco’s action is one small step for many, one giant leap for free-market Republicans.

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