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Monday, October 3, 2011

Judicial Interpretation (August 30, 2011)


This is actually from an e-mail to my sister.  Just wanted to share it here.

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You asked me what method of Constitutional Interpretation I adhere to.  As this is something I have never thought out, I wish to do so now, so please bear with me if I seem to wander and meander a bit.

It seems to me that there are two main methods of Constitutional Interpretation: originalism and “Living Document”.  What I propose to do is define each and then explain my views.

First, “Living Document”.  This method of interpretation basically says that the Constitution is a document that needs to adapt to changing times, which is fine.  However, living document adherents often turn the Constitution into a jumble of meaningless noises.  Often, they say that whatever the prevailing view is on a particular topic is how the Constitution should be interpreted.  This is farcical nonsense on its face.  By removing any meaning from the words, the Constitution becomes meaningless and nothing more than a “scrap of paper”.  Words have meaning and that meaning does in fact limit what can be done.

Second, literalism.  Literalism basically says that the text of the Constitution should be interpreted according to the words and/or the intent of the Founding Fathers.  This view does not allow for things that change over time.  The other problem is that since the Constitution was the product of compromise (3/5 Compromise, Great Compromise, etc.) there is no one view or intent that can be seen as prevailing.  Look at the immediate aftermath of the Constitution.  Almost as soon as it was ratified, different parties came into being that interpreted the Constitution differently.  As for the original words, the fact is that like it or not, the meanings of word change over time.  So how do we judge the words, according to today’s meaning or according to the meanings at the time?  If you go with today’s meanings, then you have drifted away from what the Founders meant.  If you stick with the original meaning, then you are stuck in the late 18th century, which is a whole different problem.

I would discard both of these main views.  I am sure there are others, but since I don’t know them offhand, I won’t worry with them right now.

My basic view of the Constitution pretty much blends parts from both of these.  As the Literalists say, words have meanings and these meanings limit the government.  The shifting views and morals at any given time do not determine the meaning of the Constitution, although the shifting views do need to be taken into account in certain circumstances.  For example, “cruel and unusual punishment” is a vague term that has little meaning on its own.  What is “cruel an unusual”?  That standard has changed over time and our interpretation of the meaning needs to change as well.  However, something like the First Amendment which says “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,” is a straightforward proposition that properly leaves little room for discretion or interpretation unless the public welfare demands limits of some sort (i.e. fighting words, yelling “Fire!” in a crowded theater, etc.).  So, basically, if the term/phrase is vague then it can properly have its meaning shift over time, whereas if the term/phrase is not vague, it should be interpreted in a stricter manner.

As for the issue of federalism, the Constitution is plain on its face that the federal government is supreme.  Witness the Supremacy clause.  There is no room for interpretation there.  All federal laws and treaties are supreme over state laws.  Now, this would seem cut and dry, except for the fact that the states are given particular powers and are guaranteed existence under the Constitution.  So, while the federal government is supreme, it cannot constitutionally be dictatorial.  The issue is further clouded by the Necessary and Proper and Interstate Commerce clauses being used almost indiscriminately to justify almost anything being passed.  What is needed is a balance where the federal government is supreme, but the state governments are robust enough to enter the debate.  I think something that would help here is repealing the 17th Amendment and making the senators represent that states (as they were intended to do in the first place) by having the states appoint them.

The federal government should be smaller than it is now, but not so small that it cannot provide the people with basic needs and security.  Note that basic needs do not include TVs, cars, or other things, but do include housing, food, and clothing needed for survival.

Were the Confederate soldiers terrorists? (April 12, 2010)

That was the title of an opinion piece I read today. It was on CNN.com (http://www.cnn.com/2010/OPINION/04/11/martin.confederate.extremist/index.html) which I found out as I was going through the site looking for news. I was so intrigued that I stopped and read the entire thing. Ok, so I read alot, but still, it was interesting.

The author; a gentleman named Roland Martin; was making the point that if we call the Muslim extremists terrorists, we must do the same for the Confederate soldiers. After all, "[w]hen you make the argument that the South was angry with the North for 'invading' its 'homeland,' Osama bin Laden has said the same about U.S. soldiers being on Arab soil. He has objected to our bases in Saudi Arabia, and that's one of the reasons he has launched his jihad against us. Is there really that much of a difference between him and the Confederates? Same language; same cause; same effect."

How is that for an interesting argument? Totally and flat out wrong, but interesting nonetheless.

Throughout the article, Mr. Martin takes a few similarities and then proceeds to use them to build a shaky case. These similarities include: defending the homeland, people being treated badly, and innocents being killed. The problem is that he does not address the central issue. The Confederate army was just that, *AN ARMY*! The Muslim extremists are not an army. They are a group of guerrilla warriors. There is a vast differences between the two.

I am not saying that an army cannot terrorize people, but when they do during a time of war, they are war criminals, not terrorists. According to dictionary.com, a terrorist is

1. a person, usually a member of a group, who uses or advocates terrorism.
2. a person who terrorizes or frightens others.

There are two other definitions, but since they are period specific, I will avoid them. I also chose to look up terrorism and this is what it gave as the definition:

1. the use of violence and threats to intimidate or coerce, esp. for political purposes.
2. the state of fear and submission produced by terrorism or terrorization.
3. a terroristic method of governing or of resisting a government.

So, through a melding of these two definitions, we can define a terrorist as a person or group that uses threats or violence to intimidate or coerce.

I think that the Muslim extremists fit into this definition quite nicely. They randomly attack people or places with the intent of accomplishing certain goals.

The Confederate soldiers, on the other hand, do not fit this definition. While I will not defend slavery; it is in fact indefensible; I do believe that the Confederate soldiers had a point. Their states were attempting to break away from the United States and they were defending their home country from invaders.

So far, this sounds similar to what the Muslim extremists are saying. And that is Martin's point. Where he goes wrong is in giving the two moral equivalence. The Confederate soldiers; as a whole; did not go into the North and randomly attack civilians or non-military targets in order to inspire fear. Were there spies? Absolutely, but spying and terrorism are different things.

There are a few more definitions I would like to point out. Each of these comes form dictionary.com's definition of terrorism:

n. The unlawful use or threatened use of force or violence by a person or an organized group against people or property with the intention of intimidating or coercing societies or governments, often for ideological or political reasons.
The American Heritage® Dictionary of the English Language, Fourth Edition
Copyright © 2009 by Houghton Mifflin Company.
Published by Houghton Mifflin Company. All rights reserved.

Legal Dictionary

Main Entry: ter·ror·ism
Pronunciation: 'ter-&r-"i-z&m
Function: noun
1 : the unlawful use or threat of violence esp. against the state or the public as a politically motivated means of attack or coercion
2 : violent and intimidating gang activity terrorism> —ter·ror·ist /-ist/ adj or noun —ter·ror·is·tic /"ter-&r-'is-tik/ adjective
Merriam-Webster's Dictionary of Law, © 1996 Merriam-Webster, Inc.

Cultural Dictionary

terrorism definition

Acts of violence committed by groups that view themselves as victimized by some notable historical wrong. Although these groups have no formal connection with governments, they usually have the financial and moral backing of sympathetic governments. Typically, they stage unexpected attacks on civilian targets, including embassies and airliners, with the aim of sowing fear and confusion. Israel has been a frequent target of terrorism, but the United States has increasingly become its main target.

Which of these sounds remotely like the Confederate soldiers? The answer: None!

On the other hand, we could go on about the Northern General Sherman and his March to the Sea, which was definitely much more terroristic that anything the South did. Sherman targeted civilians and the support structure of the Confederacy. Even then, I would not call him a terrorist, but rather a war criminal.

If someone can point out to me somewhere where the Confederate army systematically engaged in attacks on civilians or the Union support structure, then I will concede that there may be a point. Mr. Martin, however, fails miserably. I do not understand where he is coming from and he makes absolutely no sense.

Election 2008- My Dilemma, Part Deux (October 27, 2008)

Well, had a long talk with my brother and sister the other day. I still do not like McCain, but after learning some new information, I find it impossible to vote for Obama. I knew he was pro-abortion and pro-choice, but I did not realize that he has received a 100% rating from NARAL; at least I think that is the correct group. That changes alot. That means that he has a perfect anti-life voting record. Not sure how common that is, but it is bad.

My sister did point out that not voting for McCain could be seen as a tacit vote of support for Obama; at least I think that is what she said. I was driving at the time and may have missed a nuance of her meaning. Don't really agree with that, but I do think that McCain may be a palatable option, if a nose-holding one. I may even do a write in candidate.

One thing I do know is that there is no third-party I support. What this country needs is a equivalent to Germany's Christian-Democratic party. More on that in the future. Gotta go pick up 7th grade from Family Life.

Later.

Election 2008, My Dilemma (October 25, 2008)

Well, it is about 10 days until the Presidential Election and I have no idea who I am going to vote for. That is very weird for me and frankly, it's annoying. I normally know weeks ahead of time how I am going to vote.

For the first time ever, I find myself seriously contemplating voting for a Democrat for President. I am a very staunch Republican, but I am an American first. I see all the harm that Bush and his ideas have done to the country. Don't get me wrong, there probably have been worse presidents, but I am not sure who they are; or even if they exist. I voted for Bush in both 2000 and 2004. In 2000, I liked his message of compassionate conservatism and thought it looked alot like Catholic social beliefs about helping the poor while simultaneously not expanding government overmuch. I was much less enthusiastic in 2004, but I couldn't stand Kerry, so I voted against him.

This year, I find myself seriously respecting Obama. I think he is wonderful on social justice issues and I think his ideas may help the country alot. However, he is severely pro-choice and pro-abortion. That troubles me and really keeps me from being able to vote for him without some serious justification. I am not a 1 issue voter, but that issue is *VERY* important to me and has a large influence on my choice about whom I vote for.

McCain is uninspiring and seems to promise more Bush; which I cannot stand for. So I am impaled on the horns of a dilemma of conscience. Do I vote for Obama while holding my nose to the stench of his pro-choice and pro-abortion views, or do I simply not vote for president at all? Voting for McCain is out of the question unless I get some damned good reasons fast. voting for another candidate is possible, however, I have serious political and philosophical differences with them that prevent me from supporting them.

I need to do more research about some things quickly to make a decision. This is a unique and frankly uncomfortable position that I am in. Wish me luck.

Political Beliefs. Take...not sure....(November 23, 2008)

Last time I sat down and completely articulated my personal political beliefs was on October 31, 2004, shortly before the 2004 elections. At the time, I was a supporter of President Bush and a semi-partisan Republican. This is not meant to be a complete articulation as that post was, but it is meant to articulate changes that have occurred within me.

A lot has changed in 4 years.

While I do not condemn President Bush, neither am I a supporter. In fact, I am somewhat embarrassed by my support of him. While I stand by my statements that he was a better choice than John Kerry; for any number of reasons; I do not like him. But that is past.

Over the past several years, I have come to a slow and painful realization. Actually, I think I knew it before, but I never really acknowledged it. Conservativism is not the way of the future as I once thought it was. Neither is Liberalism or Progressivism. All of them contain some element of truth that allows them to be palatable, but none of them will work alone.

Teaching and learning about the Catholic faith has shown me something that I knew dimly before, but is now brillantly obvious. The Catholic Church stands in a unique position in terms of politics. Morally and ethically, it is a conservative institution. See the Church's position on abortion, euthanasia, homosexuality (which is misunderstood as I believe I mentioned before), sexual ethics, etc. Socially, it is a liberal institution standing for the right of the people to be cared for and calling for the support of the poor and oppressed.

To my knowledge; which is admittedly sparse and not exactly unbiased; no other church stands astride the political spectrum in quite the same way. Most that are politically active are either very conservative or very liberal. Now, I may be wrong and there could very well be other churches or religions that take the same stands. If I am wrong, I have no intention of impugning or ignoring any of them. Rather, since I am Catholic, that informs much of my knowledge. If I am wrong, please enlighten me. I will appreciate the education if it is given in a spirit of love and gentle reproof.

As I have said several times, for the first time this year, I found myself in the unenviable position of being unsure as to whom I would vote for. While I did vote for McCain (see my October 27th entry for reasons), I was very unhappy about it. I do support Obama and was happy to see him win, if only because I feel that it crosses a historical threshold that we as a country needed to cross. Having a minority elected as President has certainly brought out the crazies, but it is forcing us to confront certain realities about race relations. While I do not think we are as bad off as some suggest, we certainly have a way to go. Hopefully, Obama's election will give us a good shove in that direction.

In my aforementioned October 27th post, I mentioned that I think we need an equivalent of a Christian Democratic party. Basically; if my memory is serving me correctly; this party stood for social justice and for more traditional values and ethics. This seems to me to be the best party. I am not talking about a Church sponsored party; obviously for Constitutional reasons; but rather a party that takes the social justice aspects of the Democratic party- good wages, care for the poor and less fortunate, etc.- and combines it with the more traditional ethical and moral values of the Republican Party. In a certain sense, it would be the opposing side to the Libertarian party which is liberal ethically and morally and conservative economically (social justice sort of falls under this).

None of this is a cure-all for the ultimate problem, and that is the ideologues who currently run the political debate in America. Whether they are bloggers, pundits, obnoxious talk show hosts like Limbaugh or O'Reilly, members of the media, members of special interest groups, or what not, these ideologues show us a world where there are only two sides and an uncrossable chasm in between. Whether there is socialism and capitalism or there is progressive democracy and fascism, these ideologues show no sense of shading. They take everything and boil it down to "us v. them" which is quite possibly the most lazy and dangerous paradigm for us to use. Things are not that simple. There are always shades in between these two points. This is where I have to; though it totally galls me; admire Bill Clinton. Although an unprincipled and morally bankrupt man, he tried to walk a path between the two sides. And for the most part, he was remarkably successful.

This is what I hope Obama can do for us. From what I have seen and heard about him, he is a principled man who sincerely wants to change things. I hope he can do it. We need public and healthy debate of issues to keep America strong and on the right path. We need people to see that there are ways to compromise without ignoring your principles. We need to banish the ideologues to their proper places on the fringes of society. Heard of course, but not running the debate as they do now. We need to work together as one country to fix what Bush and his failed policies have broken. We need to stop blaming everyone but ourselves for our troubles.

At this point, I want to say that if Maryland had an open primary, I would change my party affiliation to Independent. As it is, I am in serious consideration as to whether or not I should become a Democrat. I really don't know.

Over the last several years, my political paradigm has shifted dramatically in certain ways and not so much in others. It is going to take time for me to assimilate the changes and come to a rational and reasoned decision. Will keep you apprised.

Deep Impact and Morality (January 7, 2007)

Ok, not exactly politics, but it's my blog and I'll share if I want to.  :-)

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I know, once again, two posts within a short period of time. The only reason this time is that I felt that each of my posts tonight deserve their own spaces and not to be crammed together.

Earlier this week, I was watching Deep Impact. If you have not seen it, I'll fill you in. It came out in 1998 (I believe) aroudn the same time as Armageddon. Both were about an astronomical body that will impact the Earth and wipe out all life. Where they differ is that Armageddon is more focused on what will happen out there and Deep Impact takes a more holistic view of events. Personally, I prefer Deep Impact; although I do love Armageddon; because it is more human.

Anyway, in Deep Impact there are two things that happen that raise enormous ethical and moral questions. The first is when the President of the US; played awesomely by Morgan Freeman; announces that caves have been built to ensure the safety of 1,000,000 Americans. He states that 200,000 of these people have been preselected. The other 800,000 will be selected randomly using their Social Security numbers. Anyone over the age of 50 (maybe it was 60, but I am pretty sure it was 50) will be automatically excluded from the lottery. The ethical dilemma that comes up here is, "Is it ethical and moral to eliminate a groups of people from being saved merely dfue to their age?" This is a fascinating question.

Pragmatically speaking, it was the only possible choice. Since they would be underground for 2-3 years the older people might become too weak to help rebuild. So to ensure that the culture will continue on and be rebuilt speedily, a younger groups must be selected.

I do not think this decision could be defended ethically. I could be wrong, and would love to see a defense of it, but I don't think it could be. To basically kill off one group solely because of their age strikes me as morally indefensible. I also cannot bring myself to condemn the decision, because the circumstances are singularly unique and brought alot of pressure on everyone involved, I am sure.

The second ethical dilemma was the suicide of the astronauts. In order to save life on Earth, 4 Americans and 1 Russian fly their shuttle with nukes into the comet and blow it up. Was it the right thing to do? Absolutely. Was it ethical? I would argue yes. My grounds would be St. Thomas Aquinas' Principle fo the Double Effect. This Principle states that if you do something moral and it has a side effect that is immoral, then the action is not immoral even though one siade effect was. This is used to justify self-defense. Your intent is to rpotect your own life, but as a side effect of protecting your own life, your attacker dies. You are not guilty of murder because you meant to defend your own life, not kill them.

To apply this to the shuttle crew, they intended to save the lives of billions on Earth. In order to do that, they ended up suiciding. Suicide is normally an extremely immoral act, but under the circumstances, it was not because their intention was to save others. A little more clear cut than the first to be sure, but still an interesting moral dilemma.

Voting (from October 31, 2004)


If you are in the United States, make an informed vote on Tuesday. Vote for whomever you will, but please just vote.

It occurred to me today that I have never really sat down and articulated my political philosophy or how I vote. So, I decided to do so. This entry will be long and will have a few different sections. I will also reveal how I will vote for certain offices on Tuesday.

Before I explain about my beliefs, le me just say that ideologues annoy the bejeezus out of me. Ideologues see everything as black & white with no shades of grey. The world has many greys. If yer an ideologue and are proud of it, good for you. Just know that you annoy me.

I am a semi-partisan Republican. By this I mean that all other things being equal, I will vote Republican. However, I do have a few issues that will, and have trumped party affiliation. First is the candidates position on abortion. If they are pro-abortion, I will not vote for them unless there is no better choice. And I try to never use the word "pro-choice" because to be "pro-choice" is to be pro-abortion, so let's have our word usage be accurate ok? I also look at their positions on euthanasia, homosexual "marriage", stem-cell research, and legalization of marijuana. Support of any of these makes for an automatic disqualification from the possible realm of my voting. Also, if the candidate is from the Green, Libertarian, or Constitution party's or is Pat Buchanan or supports him, you get laughed off of my choices faster than Superman can fly. Greens are left-wing nuts, the Libertarian and Constitution party's more or less want to return to the Articles of Confederation due to the misinterpertation of the Constitution by Thomas Jefferson and the propaganda of the same, and Pat Buchanan is just a nut who has no understanding of history.

Ok, I am being harsh, and I know that. First, I will explain my antipathy towards Jefferson. He looked at the Constitution and decided to play to the "common man" and more or less make the government under the Constitution only a little more powerful than the government under the Articles of Confederation (AOC). The AOC government was a horrible mistake and way too weak. The federal government was always meant to be the supreme government in the US. Now, I will not deny that the government has gotten too big, but to argue as Libertarians and Constitution party members do, that the government is very limited and that the states are sovereign is errorneous. Article VI paragraph 2 of the Constitution states

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding."

In order for the laws of a legislative body to have supremacy, the body itself must be supreme. Also, if the Constitution itself is supreme any bodies it directly makes must also be supreme. Therefore, the states cannot be sovereign because to be sovereign is to be

" 1. Self-governing; independent: a sovereign state.
2. Having supreme rank or power: a sovereign prince.
3. Paramount; supreme: Her sovereign virtue is compassion.
4. 1. Of superlative strength or efficacy: a sovereign remedy.
2. Unmitigated: sovereign contempt." (courtesy of dictionary.com)

While states do govern themselves within certain limitations, they are not independent and are therefore not sovereign. Ok, to get back to where I was. Jefferson argued that the states were sovereign states that were equal or superior to the federal government. This errorneous idea has permeated much of the conservative political thought in the US and has led to a misunderstanding of the relationship between the federal and state governments. While states do have powers reserved unto them, these powers do not supersede federal laws.

The other part of my antipathy is that I am a Hamiltonian. The federal government needs to have more power than the states in order to hold the Union together, particularly in those early days. Jefferson took political positions to oppose Hamilton while he ruled according to Hamilton's ideas. Gotta love a hypocrite.

Ok, now to my beliefs. First off, as you've probably gathered I am pro-life. I can never fathom a reason to have an abortion. PERIOD. Disagree if you will, but don't try to change my mind because it won't work, believe me. I am, however, for the death penalty. ANd no, this is not contradictory. I exaplain this fully in an essay I wrote for Intro to Ethics entitled "Aquinas and Kant: Principle of Double Effect" which can be found at http://www.geocities.com/koomkie/christian/aquinas.htm. And my position is fully consonant with the Catholic Church's position. As section 2267 of the Catechism states:

"Assuming that the guilty party's identity and responsibility have been fully determined, the traditional teaching of the Church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor.

If, however, non-lethal means are sufficient to defend and protect people's safety from the aggressor, authority will limit itself to such means, as these are more in keeping with the concrete conditions of the common good and are more in conformity to the dignity of the human person.

Today, in fact, as a consequence of the possibilities which the state has for effectively preventing crime, by rendering one who has committed an offense incapable of doing harm - without definitely taking away from him the possibility of redeeming himself - the cases in which the execution of the offender is an absolute necessity "are very rare, if not practically non-existent." (courtesty of http://www.scborromeo.org/ccc.htm)

To put my position succintly, I believe the death penalty is justified if the risk to society is to great to either release the criminal or to hold them in jail. Also, the motive of having the person sentenced is important. If it is demonstrable that the person was sentenced based on a sense of retribution, then I cannot morally justify the sentence. If, however, the criminal was sentenced in order to protect society, then it is justified.

My philosophy in terms of the spectrum is in the center to just right of center. On moral issues I am on the right. In almost any other area, I am all over the place. I can be anywhere from conservative to liberal depending on the exact issue.

I am going to state the following, I believe that too much democracy is a bad thing. Before anyone gets all huffy, let me explain my thoughts. First off, in Maryland we vote on whether or not to retain judges. I beleive this to be a very bad idea, because in my mind judges need to be seperate from the process of voting. To do otherwise is to risk the judges becoming overly political. Say what you will about activist judges, but in my opinion judges should be appointed by the legislature and removed by the same. Also, too many people nowadays do not vote on substance, but instead vote on fluff issues such as: Is the candidate physically attractive? Do they make me "feel good"? and other such surface questions. Of course, it does not help that the candidates are packaged and that the media presents sound bites over substance. Also, the presidential "debates" suck. They need to be actual debates with give-and-take.

On some other issues, I am against any and all term limits. I want the Senate to go back to being appointed by the states so that Senators can represent the state's interests like they were originally intended to.

All that said, I am voting for President Bush. I am not a totally enthuastic supporter of the President nor am I a reluctant supporter, but I see him as a much better choice than any other candidate.

Anyhow, vote on Tuesday and think about whom you are voting for. 

My first post

I decided to move to here from Livejournal and to create 2 (maybe more in the future) separate blogs.  My first blog is for TV Reviews (http://bab5guy-tvreviews.blogspot.com) and this one will be for my political thoughts.  My first several posts will be thoughts from the past.  So here we go....