Pro Logica

September 3, 2012

Legal Abortion? Blame Texas

Filed under: Specific rulings of SCOTUS — Tags: , — Ron Toczek @ 2:58 pm

While this topic is old news relative to my posts on abortion, I am repeating my views here because I believe the pro-life people are pursuing the wrong tactic for eliminating abortion, mainly because health of the pregnant woman,rape and incest will always be contentious subjects.  Certainly, person-hood amendments to constitutions would be definitive to protecting new-born life but they cannot totally prevent abortions especially since SCOTUS has defined a right to privacy and Congress has done nothing to prevent SCOTUS from ruling on the topic.

When we examine the Roe v. Wade ruling we find that there is nothing in the U.S. Constitution about abortion, absolutely nothing.  Also, the right to privacy cannot make an illegal action into a legal one–consider the use of hearsay in criminal trials  or the principle of the seal of confession in the Catholic Church.  This, together with Amendment X limits SCOTUS jurisdiction to Federal laws concerning privacy unless the law specifically states that it applies to all the States.

Following this logic, Texas had every right to tell SCOTUS to stick their ruling up their you-know-what, but by meekly acquiescing they set a precedent for the other States.  However, pro-life groups should notice that nothing has changed either with the Constitution or laws enacted under it, meaning each state can repudiate the Roe v. Wade ruling whenever it so desires.

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In the Aftermath of the AFCA Decision by SCOTUS

Filed under: Specific rulings of SCOTUS — Tags: , , , , — Ron Toczek @ 12:42 pm

The news sphere has been rife with comments about the SCOTUS decision to uphold the Affordable Care Act.  In a 5-4 decision, Chief Justice Roberts has been credited with the swing vote whereas many pundits were ready to give that position to Justice Kennedy.  So much for predictions.  Since this was an important milestone for health care here in the U.S. it was not surprising to see the number of news articles and blog posts which appeared–I know that I have only read a small portion of what is available.  For all the analysis, criticism and praise thrown out to the public, I am commenting here on three aspects of the ruling which, in my opinion, has received very little coverage:

  1. The ruling is very conservative, much more so than the dissenting opinion by the ‘conservative’ justices,
  2. The arguments against the forced expansion of Medicaid are specious, and
  3. The use of the word ‘liberty’ as a synonym for ‘freedom’ by Justice Kennedy.

(Before getting to the above three topics, I am expressing my disapproval of any simple majority vote being either an expression of democracy or an example of the rule of law–stated in a prior post—simply because one vote by one person is not enough to establish a law to be worthy of enforcement.  One can only marvel at the possible attempts to corruptively influence a single person to change their vote.  A 5-4 SCOTUS ruling, for or against, should always be declared  as favorable to the defendants of the suit or to the constitutionality of the law in question.)

1.   ‘Conservative’ in its adjectival sense expresses a desire to do things as they have been done in the past and there are many old sayings which attest to its virtue.  Here, its opposite is ‘innovative’ or ‘a desire to change from the traditional’.  Since new ideas and new gadgets are always arising and shortcomings of the traditional methods–usually due to unforeseen consequences caused by individuals trying to exploit the traditional for their own benefit, deficiencies from the expected public outcome of the traditional may occur and some innovative course of action may be necessary to correct the imbalance.  Being conservative means to weigh the innovations against their practicability and to guard against a hasty acceptance of the new before many of its unintended consequences have enfolded.  Many times, innovation wins out before a long enough trial period due to youthful exuberance for the new, necessity for an immediate solution, special interest lobbying or sometimes just plain ignorance, enough so that the new does not quite live up to its expectations necessitating further modifications or even some backtracking, all to be expected in a working republican government.  It is very disconcerting that a political party (the Republican Party) using the name of the classification of our government is actively rejecting the essential principle underlining republican governments, that of compromise among the lawmakers.

The oldest tradition applicable to a constitutional government comes from parliamentary law and basically says that the legislative body determines the law and that any judicial body can only determine that law’s constitutionality and specific applicability, in other words, a judiciary does not have the authority to make law; the purpose of the law and whatever its effects on the governed cannot be a consideration of the judicial body.  Essentially, this tradition can be restated as saying that the finding of a constitutional provision which allows the legislative act is enough to make it constitutional.  The dissenting opinion is relying upon the principle that finding a provision which might not justify the law is enough to declare such law as unconstitutional, a principle which is found nowhere in parliamentary law.  Chief Justice Roberts found a constitutional provision which allowed the mandate and being conservative in outlook made the conservative decision.  I point out again that for SCOTUS to enter a ruling stating that a Federal law is unconstitutional is an attempt to make law and by examining the law which authorized the establishment of the Federal marshal system one can see that it prevents the Judiciary from enforcing any of its rulings.

2.   The ruling concerning the Medicaid expansion is specious only because it differentiates between the methods employed by Congress to enact laws.   As I read the ruling, it would be allowable for Congress to rescind the old Medicaid law and substitute new provisions for Medicaid which exactly coincide with the new parameters.  This seems to set an artificial condition on Congressional methods for enacting laws–SCOTUS cannot really enforce any of its rulings.  As one can gather from the criticism of this aspect, Medicaid is a voluntary program for the States.

3.   Finally, the difference between ‘freedom’ and ‘liberty’, when talking politics, is the difference between individual and group action.  Every individual in a given society or culture has the freedom to obey or flaunt the norms or laws of their society or culture.  There may be consequences of that freedom, but the individual can accept those consequences.  The question of liberty does not arise until there is a subpopulation of some society or culture which considers itself distinct and separate from the present political entity and forms a goal of separating themselves from that ruling group.  Liberty in this political sense indicates that the group wants responsibility for its own laws and customs.  Revolutions are about liberty, not freedom; liberty is about groups, not individuals.  The question of viability, worthiness and morality of any revolutionary group are unrelated to the concept of liberty, contrary to most people’s expectations; not every revolutionary group has bettered the life of those people it purportedly represents.  Justice Kennedy, by using ‘liberty’ instead of ‘freedom’, had two aims: to rhetorically have the readers of the dissenting opinion associate his belief of the injustice of the mandate is on a par with the injustices of the British rule over its territories which later became the United States of America and also to mislead those same readers into thinking he has a valid argument but is nothing more than the freedom any individual already has to either obey or flaunt the law.

October 17, 2011

Freedom of Speech? Brown v. Entertainment Industries Assn.

The Supreme Court’s (SCOTUS’) ruling in this case is the culmination of a claim made by Entertainment Industries Assn. that a specific California law is unconstitutional because obeying it abridges a video game vendor’s protected free speech.  The law, itself, is only paraphrased in the ruling and I have not spent the effort to read the original wording of the law but the ruling only addresses the case in terms of its paraphrasing.  According to the ruling, the law bans a vendor in California from selling a video game–one which portrays violence as a socially accepted activity in situations where violence is not a socially acceptable activity–to a minor (someone under eighteen years old) without permission from that minor’s parent(s) or guardian(s).  The plaintiff in this case is a legal entity of the State of California–‘Entertainment Industries Association’–and the defendant, while nominally ‘Brown’, is actually the sovereign State of California.  Five justices agreed with the plaintiff (the majority opinion), two justices disagreed with the plaintiff but found the law to be too vague to enforce (a good equity ruling) and two justices agreed with the defendant. Whatever the actual wording of the California law was, the plaintiff’s claim was that the law, by violating their member’s freedom of speech, was unconstitutional and the majority opinion confirmed that claim.

At first, I thought that the majority opinion was ridiculous since it equated one side of a two party contract to an act of protected free speech, i.e., speech not subjected to abridgment by law.  I still do think that that decision is ridiculous and it exposes those five justices as having a lack of both, common sense and wisdom; they are, therefore, unqualified to be justices of SCOTUS.  Article I of the Constitution specifically enjoins Congress from interfering in contract obligations and, sovereign States have the sole power to define those citizens of the State who are eligible to sign contracts.  However, after spending some time reading the relevant sections of the Constitution, Wikipedia, some ‘freedom of speech’ rulings by SCOTUS and some historical documents, I have come to the conclusion that the worst aspect of this ruling is that it exists.  The Constitution flatly denies jurisdiction of this case to the Judicial Branch.

The ‘sins’ of SCOTUS in this case amount to:

  • As mentioned above, treating a sovereign State’s right to determine the eligible signers of contracts as an abridgment of free speech.  The only person having HIS freedom of speech abridged is the minor who is barred from signing a contract allowing HIM to legally purchase a product having certain characteristics unless those responsible for that minor give HIM explicit permission, but there are many prohibitions on minors entering legal contracts.
  • Effectively changing the Constitution (Amendment I) to read, “the sovereign States shall make no law abridging the freedom of speech” instead of “Congress shall make no law abridging the freedom of speech.
  • Effectively changing the Constitution (Article III and the Eleventh Amendment) to allow State defined corporate entities as legal parties to cases heard by SCOTUS–Article III and the Eleventh Amendment are very specific on who these parties may be.  Congress certainly may enact a law which could extend the definition of a person so as to allow such corporate entities, but I believe no such law exists.
  • Assuming jurisdiction over a case which concerns a difference of opinion between a citizen of a sovereign State and HIS State–specifically  banned by the Eleventh Amendment.
  • Ignoring Section 5 of the Fourteenth Amendment–Section 5 states that Congress, not the Judicial Branch, has the authority to implement the amendment.
  • Misusing the principle of judicial precedent.  More than likely, “Feiner v. New York” was the first case in which SCOTUS decided to hear a claim of abridgment of freedom of speech.  Even though the Eleventh Amendment excluded the case from SCOTUS jurisdiction, SCOTUS argued that the Fourteenth Amendment gave it jurisdiction.  The basic problem with the Fourteenth Amendment is that without Congressional laws defining its actual application any state law can be deemed unconstitutional.  This only mocks the term ‘sovereign State’ and could essentially eliminate all State governments contrary to the Constitution which enjoins the Federal government to guarantee a republic government for each State.  Use of the Fourteenth Amendment in this manner has effectively rescinded the Eleventh Amendment.  Sighting an illegal ruling does not justify a continuing illegal jurisdiction.

As I have recently reviewed many of SCOTUS’ rulings, I find that a majority of them seem to commit as least one type of these ‘sins’.

In spite of my conclusions, I do think that a citizen’s freedom of speech is essential for all republican governments and prior to the civil war it was the State’s obligation to define when abridgment to freedom of speech applied.  The Thirteenth Amendment, outlawing Slavery in the U.S. and all sovereign States required something like the first section of the Fourteenth Amendment but it also stated unequivocally that the U.S. Congress was the branch specifically authorized to spell out the amendment’s details.  While the Fourteenth Amendment talks about the privileges and immunities of the citizens and their equal protection of the laws it specifically enjoins Congress to define these properties.  Our country does not have a problem with its constitution but with a power hungry Judicial Branch and an exceptionally weak Legislative Branch which refuses to chastise and/or expel judges from the Judicial Branch when they act unconstitutionally.

With these unconstitutional acts by SCOTUS, I have often wondered why states have not asserted their sovereignty and just ignore those SCOTUS rulings which are not constitutional.  The only risk is that POTUS might agree with SCOTUS and withhold much needed funds graciously granted by the Federal government.  Pity, pity, pity!

February 8, 2010

On Supreme Court Rulings, in Particular the McCain-Feingold Controversy

The recent ruling by the Supreme Court on the McCain-Feingold law has stirred up quite some controversy.  Being a five to four decision makes the ruling far from unanimous and very subject to a reversal later.  Before talking about the particulars of this ruling, let’s review some applicable constitutional matters.

Our American Constitution states unequivocally that Congress and only Congress can pass laws for the government of these United States.  There is provision for a Presidential veto and a Congressional override.  It also states that the constitutionally enacted Congressional laws and the Constitution are the “supreme law of the land”  The Supreme Court is given no legislative nor executive power, but has taken the position that it is the supreme arbiter of the constitutionality of Congressional law, a claim nowhere visible among any of the various sections of the Constitution itself.  However, there is a smattering of truth to this claim precisely because of the manner in which the Supreme Court is expected to operate.

Courts, in general, adjudicate disputes, which, for the Supreme Court, primarily means disputes involving the interpretation of the Constitution or its constitutionally enacted laws and/or how a specific interpretation was applied.  There are other disputes that the Court has jurisdiction over but they don’t pertain to the claim under consideration.  Also, we can ignore the Court’s structure since it is the final ruling that matters.  When a particular ruling is made in favor of the party which claims the unconstitutionality of a law, the Court then sets a precedent which will be used as a criteria for other similar cases.  In effect, the Court says that it will render the same ruling in the same circumstances.  The important point to see in this process is that a ruling of this sort made by the Supreme Court is nothing more than a particular interpretation under particular circumstances of the appropriate section(s) of the Constitution.  To jump from a ruling in a dispute to a general claim of unconstitutionality is unjustified because it does not account for subsequent events such as constitutional amendments, Court make-up and judgmental errors of either omission or commission–after all, the ruling is just an interpretation, and like all interpretations, subject to change.

Since the Judicial branch of our government has no legislative or executive authority, a Supreme Court ruling is then nothing more than a request to the president to enforce their ruling and to Congress or a State, if unconstitutionality of a law was in the ruling, to change or delete the law as appropriate, however, these requests can never be mandatory or binding on the other two branches or a State.  There have been very few times when this separation of powers has been invoked and, generally, there are very few reasons not to grant the Supreme Court’s requests.  Overuse of this power could lead to an ineffective government.  Granted, there are those who believe that our government has reached that stage but it still functions pretty smoothly–no revolutions on the horizon.

As I understand it, that part of the McCain-Feingold Act which barred corporations from advertising for any specific candidate in the thirty days prior to an election in which that candidate has been entered is the part which has been ruled unconstitutional on the basis of the 1st Amendment.  Presumably all other campaign contribution laws are unaffected, in particular, it is still illegal for corporations to contribute anything toward any individual’s campaign.  While this is a necessary and good law it can be very difficult to prove that a violation has occurred.  I also understand that the term “corporation” is used to describe any legal entity that is not a person, which, for clarification purposes, I will use the term “corporate entity”.

When our Constitution was written, its writers had as their foundation the Declaration of Independence, the failures of the Articles of Confederation and certainly the actions of the king of England.  The Bill of Rights came directly out of the Declaration but the phrase ” government of the people, by the people and for the people” was nowhere explicitly written into the Constitution nor was there any allusion to the phrase except in the Preamble.  The Preamble is very clear in that the “word” people stands for the entire population governed by our Constitution, from which it follows that any right belonging to the people belongs to any individual person, i.e., human being, who is considered to be one of the people.  It follows that no corporate entity has any rights under the constitution.

Since the 1st Amendment does not use “people” or “person” w.r.g. to “free speech” the SC wrongly concluded that Congress could make no laws restricting corporate entities from exercising free speech.  However, legal corporate entities have  the right to advertise for anything which will be to their benefit, subject only to the advertising marketplace.  This, I believe, is the correct reason for a SC ruling.

Digging into the controversy, democrats seem to be more perturbed than republicans primarily because they believe that the for-profit corporations will preferentially advertise for republican candidates.  Republicans just smile because they think so too, although that remains to be seen.  Remember, corporations are still barred from contributing to the support of any individual candidate so, there can be no collusion between the two, either positive or negative, where by negative I mean that a candidate cannot even hint that he wishes any particular corporation not to advertise on his behalf.  Before placing an ad for a particular candidate, there are corporate concerns to be considered, and for-profit corporations would probably need their owners permission.

I have used the word “corporations” in the above paragraph because that was the term used while this topic was hot, and this approaches another reason for my thinking that the McCain-Feingold Act is unconstitutional.  In the fifth paragraph I have coined the term “corporate entity”.  Explicitly, a corporate entity is any organization with a membership or ownership, official or unofficial, of more than one person and no corporate entity can claim unofficial membership or ownership by all the people of the U. S.  Popular names for corporate entities are “factions” and “special interests”, not so honorable unless you are a member of one.  Some corporate entities are charitable organizations, non-profit and for-profit corporations, unions and political organizations.  My point is that political organizations are permitted to contribute to a candidate’s personal campaign while all the others are barred, very gross discrimination.   Nothing wrong with a political party or a PAC but they should be treated like any other corporate entity–no contributions to any candidate’s personal campaign–thus making any political candidate independent of any and all special interests.

As indicated in the above paragraph, banning any and all contributions by a corporate entity to a candidate’s campaign would be one element in campaign reform. A more important restriction would not allow residents from one state to contribute to a candidate running for Congress in a different state.  Details concerning corporate entities with foreign connections will need to be resolved, stiff penalties for any collusion between a candidate and a corporate entity will have to be set and measures taken that a candidate does not use gifted out-of-state money in his/her campaign.  I don’t suspect that Congress would enact any of these restrictions–they seem to enjoy the current corruption too much.  I do hope that some of the States consider limiting campaign donations for their own states Congressional candidates to their own State’s residents; the other States just might follow suit.  Clearly this particular aspect of reform cannot apply to presidential candidates.

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