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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.

Notes:

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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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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After her speech at the Democratic National Convention last night, Sarah Palin has become an overnight Hollywood celebrity whose picture suddenly graces the covers of a whole slew of Hollywood magazines. Welcome to the Republican-created World of Obama, Sarah.

All of this is occurring even though earlier speaker Rudy Giuliani excluded Hollywood and the media from that well-known Republican-defined group of elite and powerful patriots called “the American people.”

In his polemic, anti-Obama tirade, which clearly establishes the Republican Party as off the grid of normal people, Rudy made it clear that he doesn’t plan to follow Obama’s lead even if he (Barack) is elected President of the United States.

That’s exactly the message contained in the Republican mantra that Obama isn’t qualified to be the commander in chief. “We will not follow an unqualified Democrat. We prefer an unqualified Republican.”

Aside from wishing to become the First Lady Moose Hunter of America, Sarah Palin clearly and heartily presented an image that transcends her suddenly acquired Hollywood star status.

Without reservation, she endorsed every single element of the Bush-McCain ideology. We now know with certainty that she is no agent of social change. She is merely another run-of-the mill right wing politician, better looking than your average bear but a run of-the-mill 19th Century adherent of a belligerent foreign policy and a non-existent domestic social policy. She is the antithesis of Hillary Clinton in every respect. Consider:

She, and now the entire Republican Party, enthusiastically endorse the concept of teen pregnancy without access to a medically supervised abortion, even if the pregnancy may have resulted from rape or incest.

In fact, Sarah opposes abortion even if a pregnancy ends with the birth of a child so deformed that it will require a lifetime of expensive care.

Imagine the financial burden of a poor, single teen mother who isn’t privileged to be the daughter of a governor or vice president. How is that teen mother to afford decent care for years to come?

Worse, Sarah Palin demonstrated last night that she is perfectly willing to hold up her own Down Syndrome child as an example of her anti-abortion ideology in an effort to gain votes.

The entire Republican Presidential Convention program last evening failed to include any mention of a single issue of importance to average American working men and women. No mention of health care, no mention of education, no mention of employment, no mention of medical care for the less-fortunate among us.

Just a steady polemic about Barack Obama, exemplified by that paragon of moral virtue, Rudy Giuliani, who seemed on the edge of an apoplectic collapse in his haste to spew his personal distaste of Obama above and beyond the hearty applause of his fellow “patriots.”

Yes, now we know. Last night a star was born. The third point of the Bush-McCain-Palin Axis.

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Now that my Firefox browser is functioning adequately, I discovered a useless feature.

Firefox informs me which of my Facebook Friends is online when I login.

Frankly, my dears, I don’t give a damn. It’s going to be one of two or three politicians who apparently leave their Facebook page open in perpetuity.

I have visions of them welding a laptop to a nightstand near their beds and attaching it to a Rube Goldberg device that screeches when an E-mail arrives.

No, my real Facebook interest isn’r in the sleeping habits of politicians but in the little bits and pieces of information an astute observer can detect by closely examining those ubiquitous come-ons (some call them targeted advertisements) that appear in Facebook’s extreme left panel.

Like this morning, I noticed a bit of information that floored me.

Tom Cruise has an IQ of 124. My God, that’s up there in the vicinity of John McCain’s.

Only fools click on those enticements, so I clicked, determined to prove that my IQ is at least equal to Tom’s.

Well, I worked through a 10-question quiz and concluded quickly that my own IQ was bound to be at the top of the IQ scale. 124? Nada, Tom. How about Mensa qualified?

Not to cheer my own intellectual capabilities, but the quiz actually tested the possession of specific, simple facts, like How many sides does a Pentagon have?

Well, the correct answer–growing like a mitosic cell–wasn’t included. Long story short, I checked five because George Bush’s skull has five sides.

Or, What are the primary colors? The choices were red, green, blue, and yellow. Hell, I knew that. Yellow for crissakes. What am I, a moron?

After I checked the correct answer to all of the ten questions, I clicked a button to see the outcome of my genius.

There’s always a catch. The vendor of this clever advertisement wanted my cell phone number before he/she/it would tell me my IQ.

That isn’t the worst of it. When I clicked a Close Window button, I became mired in a never-ending series of windows, none of which wanted to close. I finally shut down my machine and had breakfast.

I have a sneaking hunch some of those windows are lurking beneath the surface, waiting for an appropriate opportunity to grab me by the throat.

I also have this eerie feeling that no one ever scores below Tom Cruise.

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…as one famous philosopher/blogger might phrase it…

For completely inexplicable reasons, luck seems to smile on me when I surf the net. Last night was another one of those times.

Completely by accident and without any planning or plotting on my part, I found myself looking at the customer wish lists of a major book dealer. OMG!

This was too much even for me to resist. I fell into a reverie. Who did I want to be nosy about tonight?

Ah, yes, that’s it. GN. What does he read?

So I entered his name in the Search bar and, whoopsey doo, up popped two familiar names. Gavin C. Newsom and Gavin C. Newsom. You’ve got to be kidding. Nope.

Well, what else could the nosiest human on the face of the earth, besides Dick Cheney, do in a situation like this? I clicked the first one and, wowee, el Gavo’s wish list appeared. Want to know what he’s wishing for? Of course you do.

The Nine Nations of North America by Joel Garreau.

Quickly, I checked the second Gavin C. Newsom. Hoo boy.

Laughter in Your Soul and Growing Pains by Jamie Owens-Collin.

Let me toss in a disclaimer right here and now. I have no idea if these two Gavin C. Newsoms are the Gavin Christopher Newsom who is a noted San Francisco man about town.

But that’s a minor matter. The point is, there is some damned interesting info on this book dealer’s website including, not just a wish list but, in some instances, a person’s date of birth, city of residence, and a photograph. Most of the entries are restricted to a wish list, but even such limited info is invaluable in rounding out a one-dimensional character.

Did I look for others of my acquaintance? You betcha. What fool would let an opportunity like that slip by. But, not to worry. I will never release personal information on my friends or on private citizens I do not particularly care for. That would be a highly unprincipled act.

Furthermore, I do not intend ever to reveal how I managed to stumble across the wish list site except to say that the link was on another site, one of many, that randomly appeared when I Googled a generic term.

Now, will someone in the know verify the Gavster’s reading preferences?

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I’m going to expose my lingering puritan upbringing and ask a stupid question.

Will someone please explain why a 37-year old woman is still wearing nipple rings?

Shouldn’t a person be somewhat grown-up by then? Is there ever a time in America when we accept adulthood and put aside our childish ways?

I am far from being a prude, but for goodness sakes, think about your kids and their kids. Do you want a six-year old hollering, “Grandma, Grandma, you’ve got nipple rings” as you baby sit at a public playground?

This isn’t a topic only about aging women. Men are equally guilty of weighing themselves down with body adornments in private places.

Body mutilation is no longer an uncivilized custom. It has become an accepted part of our civilized culture.

At one time, only salty sailors sported tattoos. And in Japan, a tattoo was a sign of the yakuza, Japan’s underworld.

Nowadays in America, tattoos have spread over every inch of the human body. A visit to any popular beach is sure to demonstrate such.

Imagine America’s next-generation Ambassador to the Court of Saint James introducing himself to the Queen in accordance with American principles of familiarity. “Say, Queen, this here tattoo symbolizes the American spirit of eternal fertility.”

Even little kids run around proudly displaying washable tattoos. And each time I see a small kid flexing a tattooed muscle adult-style, I remember an incident in Japan.

Several of us were sight seeing in Yokosuka, a town south of Tokyo. I noticed a man staggering around and pestering passersby. Obviously, he was very drunk.

As we neared, he noticed us and turned his attention our way. But he didn’t pester us as he had bothered the Japanese pedestrians. Instead, he pulled his sleeves up to display tattooed arms.

He repeated over and over, “Yakuza, yakuza,” in the sloppy-friendly manner of drunks everywhere. He was quite proud of his status as a yakuza and of his tattoos. He wanted to impress gaijin, foreigners.

As soon as one of us smiled and said, “Ah, so,” signifying that we understood, he smiled and  proudly staggered away.

Will we become or are we already a nation of pseudo-yakuza, not gangsters but a multitude of individuals possessed of the same sort of adolescent bravado and defensiveness?

Somehow I have the impression that widespread body mutilation is just another form of conformity masquerading as rebellion.

I sympathize with the 37-year old woman who was required to remove her nipple rings with pliers at great pain to her.

But nipple rings at the age of 37? Come on.

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…all systems go…mostly…

This morning I began looking for information about the Santa Rita Jail in Dublin when I ran across a photo of a young woman under the heading “She’s an inmate in Santa Rita.”

Thinking perhaps this was a story about a poor unfortunate female trapped in the American web of justice, I clicked the link and suddenly found myself trapped in an endless web of warnings about malware in my machine and how the only way to protect myself was to click Next.

I’m kind of dumb but not that dumb. Still, the more I attempted to escape from the Santa Rita Jail, the more I became convinced that I had been transferred to The Black Hole of Inner Space.

I still don’t know how I managed to extricate my poor machine from this hell.

After gulping several cups of coffee to steady my nerves, I thought, “What the heck? It’s time for a system scan anyway.”

I am tighter than I am dumb, so I use free versions of Spybot and Ad-Aware SE. I booted up Spybot first.

This is my unlucky day. Another maze. Spybot, instead of running normally as usual, defaulted to some remote location on the web and wouldn’t let me go until I had upgraded my version to the latest one. For some reason, I now have two versions.

Okay, I started the newer one and it ran though a full systems scan and gave me an all clear sign. What a relief.

Then I clicked on Ad Aware. Again, I was prompted to update the program, which I did fairly easily, noting that I wanted a full system scan again.

This time, when the Ad Aware scan was completed, I saw a bunch of flashing red lights and a little icon which looked suspiciously like a tiny crab opposite a message “19 Critical Objects,” emphasized with the obligatory red font just in case my bowels weren’t loose enough.

With a shaking hand, I checked all 19 and discovered some interesting things. None was actually critical. The risk factor of each was low.

And all were tracking cookies, the purpose of which is to keep track of the sites I’ve visited for the purpose of inserting ads in the proper spot. That may well explain an ad for a porno site one day when I was reviewing an analysis of The Ten Commandments by Eliot Spitzer.

The third thing I noticed was that all of the tracking cookies had been planted courtesy of Internet Explorer. I thought that odd since I rarely ever use IE. I’m a Mozilla Man. Has IE managed to co-opt my browser?

Not really. Microsoft wouldn’t stoop that low. Would they?

No, certainly not. I recalled using IE one time a couple of weeks ago. Apparently during that one-time use, someone managed to slip 19 tracking cookies into my cache.

Lesson learned. Clear the cache every time you use any browser. You may find your machine trapped in porno hell.

Either that or restrain your prurient desires.

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