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.

February 17, 2012

Presidential Electability–A New Development

Filed under: Interpretation, U. S. Constitution — Tags: , — Ron Toczek @ 6:04 pm

After I’ve posted my view on presidential eligibility, two judges have made the national news.  One, a Georgia judge in a state case, has subpoenaed  the president asking him to prove his eligibility in order to be placed on the Georgia ballot in the upcoming November elections.  Two, another judge has stated his opinion that a native-born citizen is a natural born citizen and that Mr. Obama is a native-born citizen.  I did not pay attention to all the details in this latter situation so I am not sure whether there was a judicial ruling in a case but it seems to me that is was a Georgia judge, not a Federal one, who made the claim.

For those who have read my earlier post, you may probably guess what I am about to say.   To the judge issuing the subpoena Mr. Obama should reply,  “In 2008, I have met all the eligibility requirements for POTUS, and unless you have evidence to the contrary, I still meet the same qualifications and you cannot probe for evidence using me as a witness.  If you do have a credible witness who can testify that I am not a natural born citizen (of course you will have to supply a definition for such) your complaint is first with the sovereign state of Hawaii, claiming that the state was erroneous in issuing a statement saying that I am a natural born citizen.  Should the state retract their original statement, I can still contest that retraction but until the state of Hawaii does, you have no authority to issue a subpoena to me for the purpose of establishing my qualifications for POTUS.”  On the other hand, by not appearing, he certainly implied the above though I suspect that the judge would not see it that way.

Clearly, the other judge’s statement lies in the realm of pure opinion unless it occurs as a part of an official ruling.  An official ruling by a State judge would still be an opinion as far as the other States are concerned.  If a ruling by a Federal judge and no Congressional law is passed to the contrary and other states accept the definition as valid, an official opinion can then be accepted as a de facto law.  Judges like to assume their de facto laws are established laws (note Chief Justice Roberts statement on Roe v Wade), but standard parliamentary procedure dictates otherwise.

The case which prompted the Georgia judge to subpoena the POTUS brings up a new wrinkle in the process of electing a POTUS which has absolutely nothing to do with eligibility but a lot to do with electing a POTUS.  The primary concern of this Georgia case is to determine whether Mr. Obama should be allowed to have his name on the Georgia ballot as a candidate for POTUS, eligibility is just one of the considerations.

Some years back there was a national discussion about limiting Congressional delegates to two terms. At the time I was in favor of it chiefly because the Constitution, by not saying anything against it, just plain permitted it.  Those opposed used precisely the same argument and, consequently, nothing was done.  This latter stance was and is very hypocritical since laws are generally construed to be specific in a positive sense and hardly ever in a negative sense. There are laws which lay out their purpose and this can lead to unspecified actions being argued as against the purpose of the law, but the Constitution has no such purpose which a term limit restriction can be found to be against.  Also, the Constitution affirms the sovereignty of the States which implies that the States can very well apply further restrictions to their elected delegates.  Applying these principles to the electoral process for the POTUS, it is very clear that each State has complete control over its electoral representatives; i.e., they can require their electoral representatives to vote for a particular candidate, not vote for a particular candidate or something in between.  Translating this view into today’s regular election process wherein the candidates for POTUS are listed on ballots and then the state assemblies  appoint the electors, the state assemblies may still exercise their control over their electors but the state has an additional method of keeping a candidate for POTUS off the ballot by just not allowing it in the first place for whatever reason.

In other words, Georgia, as well as any sovereign State of the U.S., can, Constitutionally,  deny any presidential candidate a spot on their ballot, providing they have one, direct their electors on who to vote for or even give no direction to their electors.  Of course there are other, non-Constitutional considerations that would determine what a State actually does.

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!

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