Update from the Heartland
No.488
18.4.11 – 24.4.11
Blog version: http://heartlandupdate.blogspot.com/
To all,“Is This Your Democracy? – Refugee Influx Exposes Limitations of European Solidarity”
by Fiona Ehlers, Mathieu von Rohr and Christoph Schult
Der Spiegel
Published: 04/18/2011
http://www.spiegel.de/international/europe/0,1518,757666,00.html#ref=nlint
Refugees from the Arab Spring in North Africa made their way to Isola di Lampedusa (south of Sicily and west of Malta; Italian territory) for a host of reasons. Once there, the Italian government chose to issue refugee visas that in turn gave them default access to the entire European Union. France has raised a constitutional issue by refusing the Italian visas access, which has stacked up migrating refugees in the small coastal village of Ventimiglia. We see rifts between states and the EU, just as we see reciprocal chasms between the states and the Federal government in the United States. As the world population continues to grow, placing increased pressure on diminishing resources, we are going to suffer rapidly growing difficulties with immigration control. The United States and Europe must develop the means necessary to enforce and regulate border security and immigration control, or I am afraid we shall soon be dealing with internal violence, or worse insurrection. We are witness to the warning signs.
My boundless and voracious curiosity often leads me in strange directions. The knock-on, trickle-down effects occasionally consume me. I commonly seek the history behind elements of American societal attitudes . . . as reflected in so many of our laws . . . especially those that intrude upon or impose on our fundamental right to privacy in our supposedly free society.
Last September [458], I read and reviewed Roth v. United States [354 U.S. 476 (1957)] – a key and dominant Supreme Court ruling regarding the possession or distribution of obscene material. Justice Brennan, writing for the Court, referred to the predominance of the Hicklin test established by Queen's Bench Chief Justice Sir Alexander [James Edmund] Cockburn [later 12th Baronet] in Regina v. Hicklin [L.R. 3 Q.B. 360 (1868)] – the first prosecution under common law for such “crimes.” This week’s probe is that formative case, Regina v. Hicklin.
English citizen Henry Scott produced and distributed an anti-Catholic pamphlet titled: “The Confessional Unmasked; shewing the depravity of the Romish priesthood, the iniquity of the Confessional, and the questions put to females in confession.” Wolverhampton magistrate Benjamin Hicklin declared the pamphlet obscene under the Obscene Publications Act 1857 [20 & 21 Vict. c.83; AKA Lord Campbell’s Act or Campbell’s Act], and ordered all copies seized and destroyed. In the first judicial hearing, the Recorder of the Courts of Quarter Sessions overruled Hicklin based on the court’s assessment that Scott had no intention of depraving the innocent, only informing them of his opinion in perhaps excessively graphic terms. The four judge panel of the Queen’s Bench led by the Chief Justice rendered final judgment reversing the Quarter’s ruling, and declared Scott’s pamphlet obscene and him prosecutable for his “crime.” The Hicklin test became the standard of judgment for nearly 100 years – “obscenity is to deprave and corrupt those whose minds are open to such immoral influences.” The judges of the day and the following century thought nothing untoward about regulating the thoughts of individual citizens – all citizens – which it seems to me is hardly consistent with “Life, Liberty, and the pursuit of Happiness.” A citizen’s private, personal pursuit was OK as long as the power elite approved of the citizen’s choices, but certain choices had to be denied for the protection of the fragile, malleable and sensitive minds of common citizens. The reach of government 150 years ago was quite limited and virtually restricted to informants or notorious conduct that allowed the strong-arm-of-the-law to concentrate on the misbehavior of a single citizen. Today, government’s reach is long, deep and pervasive with virtually no boundaries. Heck, scientists are on the verged of literally reading the thoughts of a human being. The plethora of morality laws born in the Victorian era – prostitution, drug abuse, gambling, obscenity, alcohol, homosexuality, et cetera ad infinitum – now have the vast power of the State to enforce them, and we certainly have enthusiastic prosecutors all too willing to seek out and punish those who transgress against the moral code. Further, we have a substantial, socially conservative populous who are either quite comfortable allowing the government to enforce morality laws (after all they disapprove of “that” conduct and think no one should do “that” either), and they are also quite comfortable ostracizing anyone who speaks out against such laws as they must be immoral and perverts, and consequently labeled as such. Morality laws were never consistent with Liberty – not now and not in 1857.
I come to another SCOTUS case from several different directions – customs search, obscene material, First Amendment – United States v. Thirty-Seven Photographs [402 U.S. 363 (1971); no. 133]. The State’s acquired authority to inject itself into our private affairs grew from a long series of actions . . . taken . . . and We, the People, did nothing. U.S. citizen Milton Luros returned to the United States from Europe on 24.October.1969. In his luggage were 37 photographs – the subject of this case. Customs agents discovered the photographs during a routine entry search, declared the images obscene, and seized the photographs under the authority of the Tariff Act of 1930 (AKA Smoot–Hawley Tariff) [PL 71-361; 19 U.S.C. 1305 (a)]. The district court validated the government’s action; the appeals court overruled; and, the Supremes reversed, siding with the government – the 37 photographs in Luros’ possession were obscene. We can all appreciate that many of us are offended by profanity, vulgarity, bizarre or aberrant behavior, or even by nakedness or sex. From a very early age, we are taught to hide our anatomy, to be embarrassed by the immodesty of others, and to keep all things sexual very private to such an extent that we are embarrassed to even discuss such topics with our children. Fortunately, the Supremes have backed away from obscenity cases for all the correct reasons. Beyond the question of imposition of morality laws upon our most fundamental Liberty, the 1971 case is similar to a contemporary case, entering adjudication at the district court level – Abidor v. Napolitano [USDC NY ED case 1:10-cv-04056-ERK] – the principle difference being the material involved, obscene versus potentially terrorist material. The latter case also involved the medium; customs agents seized laptop computers, which inherently included all applications and files stored on the hard drives. The question before the court is the conflict between the Fourth Amendment and border security law. The Thirty-Seven Photographs case may not be the pivotal or landmark Supreme Court decision worthy of review, but it does represent the challenges we face as we reconcile the proper place of government in the public and private domains. The Abidor case is not likely to be successful; however, the judicial pronouncements should prove interesting and enlightening. Freedom is far too precious and fragile to look away.
A continuation from Update no.486:
I eventually replied to the earlier thread:
My apologies for this delayed response.
As with all difficult topics, I seek to find the elements of agreement, however small they may be, and work from there – so it is with abortion.
Before we jump into the deep end, I would like to open with an unrelated but reflective story. A friend, colleague and shipmate of mine criticized and argued with me over my steadfast support for organizational, zero tolerance, anti-drug policies including random drug testing. More than a decade has passed since those debates. Truth be told, I have come to appreciate his position to a great extent. Similarly, our youngest Son argued against the original USA PATRIOT Act [2001, PL 107-056] in the fervor of the post-9/11 days; I defended the administration’s actions and the new law. Subsequent administrations have proven themselves unworthy of our trust. We have allowed the State and our employers far too deeply into our private lives. It is my steadfast and adamant defense of every citizen’s fundamental right to privacy that drives me in so many debate topics including abortion.
I believe everyone can and will agree that the medical procedure commonly known as abortion, i.e., termination of a pregnancy, is an unfortunate, regrettable event. Concomitantly, I believe everyone will also agree that it will be a better day in human biological and evolutionary history when abortions are no longer necessary and are relegated to the scrap-heap of antiquated medical procedures. That said and if agreed, we move onto the tortuous task of finding solutions.
We can debate when life begins, but I do not see that as productive toward finding solutions. Thus, I shall bypass that question for the moment.
I have always seen the physical act of abortion as a symptom rather than a root issue. A woman or couple who reached the difficult decision of terminating a pregnancy at least recognized they were not prepared or willing to sacrifice 20 years of their lives to raise a child properly, and in some cases, may not even have a clue as to how to raise a child.
Rather than injecting the State (or anyone else) into a woman’s biological process, we should focus on prevention, alternatives or alleviation. Passing laws of prohibition that intrude upon those most private matters are simply not acceptable. Either we have Liberty or we suffer tyranny.
I appreciate the passion and fervor of both sides. For me, a woman does not relinquish the same fundamental right to privacy as all the rest of us. So, our challenge is finding solutions that do not violate the woman’s fundamental right to privacy. We simply cannot condemn contraception, deny proper sex education and training for our youth, and pretend sex is not an important part of life. We must shed our Victorian-era ridiculous morality. Sex is more than procreation, and the natural and normal youthful curiosity blooms in late adolescence, circa puberty. To pretend otherwise is to deny life itself, it seems to me.
So, if we want to stop all abortion, let us begin by growing up regarding sex. Let us create a robust system to cherish, nurture and protect children. Let us deal with the root causes rather than the symptoms.
The issue is NOT federal funding for abortion. That argument is simply one more initiative to inject the State into a woman’s body. To deny federal funding for those who need such assistance, we would be making a statement that the poor and disadvantaged are less important than the rich. I am not prepared to take that step. Likewise, I am not prepared to force women to return to back-alleys and coat hangers. Let us preserve our humanity as we seek balanced and compassionate solutions.
“That’s just my opinion, but I could be wrong.”
Now, this is hardly a definitive screed on a complex societal topic, but let it suffice as an initiator or stimulant. Over to you. . . .
Comments and contributions from Update no.487:
Comment to the Blog:
“No state, including Arizona, may make laws attempting to overrule Federal law. We settled that one in 1865, well before Arizona became a state.
“I could not discern what the Court ruled in the case of the religious school. I disagree with the use government money to support anything religious, including the tax-exempt status of churches, and the Establishment clause of the Constitution supports that. The Constitution was written in the Age of Reason and, unfortunately, the Age of Reason is long over now.”
My reply to the Blog:
One of the prime difficulties in short reviews is a paucity of breadth. I have to make assumptions to find balance between brevity and sufficient detail to present my opinion. So it is with both court cases in Update no.487.
Arizona SB1070 made no attempt to overrule Federal law, or even try to define immigration policy or law. The Supremacy Clause has been a part of the Constitution from the get-go. Arizona did not challenge the Constitution or the Supremacy Clause. Judge Bea’s opinion was the best-balanced view of the case; he concurred in part due to the implicit “punishment” aspect of two sections; he supported the basic premise of SB1070. Judge Bea was also the only one of the three circuit judges who made an effort to acknowledge the serious, detrimental situation faced by the border-states. Further, he noted that several states have similar laws, but the USG chose to challenge Arizona’s law. Given the Supremes’ Federalist bent of late, I suspect the ultimate appeal to SCOTUS will not be successful, which in turn means the border-states will continue to be trashed and abused by the lack of adequate response by the Federales, including the Judiciary.
In the Arizona Christian STO case, Elena Kagan hit the nail squarely on the head and drove the nail flush. The majority (5) affirmed the state’s use of “tax expenditures” (actually, tax credits) to circumvent the Establishment Clause. Kagan wrote a masterful dissent, but did not prevail. The outcome of this decision blurs the line of the Establishment Clause and punches holes in the wall of separation between church & State. This case did for government funding of religious organizations what Citizens United did for unlimited corporate campaign and election expenditures.
Another contribution:
“Thanks for your last update.
“Thought you might be interested in the attached.
http://www.bloomberg.com/news/2011-04-18/gasoline-falls-as-s-p-revises-u-s-credit-outlook-to-negative.html
“You guys aren’t paying enough for gasoline…our British Gallon is currently £5.60p per British Gallon!
“I’m quite certain you can’t agree Cap!”
My response:
Indeed! The root cost of refined petrol is essentially the same world-wide.
It is the taxes and fees that get attached to the commodity that drive the price variance between jurisdictions. The recent inflation appears to be a product of petroleum speculators, who seem to have a far greater impact on price than supply & demand.
We simply must wean ourselves off of fossil fuels. It is only going to get worse.
. . . a follow-up comment:
“Tax! What a conundrum! We have a special fuel 'sprit' tax, (motor sprit being an 'Anglo Saxon' description of vehicle fuel)! And then on top of that we have VAT (value added tax) this is applied to the final calculation and so we are taxed on tax! Extraordinary! How do the politicians get away with it?
“The conundrum is without the income the government couldn't function as the electorate wishes and with the tax the economy is stifled. Where do we go? Yes agree your view on speculators. I remember seeing the rows of 'storage tankers' parked up off Athens, waiting for the right moment. I believe these to be the single skinned vessels now deemed unsuitable for European waters.
“Not my subject Cap but certainly we need to be weaned off of fossil carbohydrates. It isn't a finite resource, how long, another 50 years? Than what Hydrogen? Interesting thought.”
. . . and my follow-up comment:
Conundrum indeed! Taxes have always been a hot button issue here in the colonies since 1637. We bear witness to the political convulsions associated with expenses and revenue. Taxes are the big watchword, guaranteed to invoke emotion and passion; however, it is the expenditures of the government that should be our real focus. We can and will debate spending for defense, for social programs, et cetera, but I would like to start with removal of authority and appropriations for the government to intrude into our private lives, then we can seek some form of balance between liberal and conservative spending programs confined to the public domain.
Fifty years . . . if we are lucky! We could argue that the volatility induced by the speculators is the canary in the mine. Our political leaders have been unsuccessful in helping us see reality and take action before we are forced to do so. Reality will smack us in the face soon enough. Necessity is the mother of invention, and I have faith that mankind will adapt . . . but probably not without bloody trauma as we fight for diminishing, scarce resources.
A different contribution:
“Basically, the 9th Circus Court has sided with illegal immigrants and has told Arizona that even though illegal immigration and cross-border violence is threatening the state, we can't take extra steps to depend defend ourselves, even though it's clear the Federal Government won't do a damn thing to help us here.
“Cap, I seriously believe that our worthless President does not care one wit about the security and safety of the people here in Arizona. Our police and border agents are outgunned. There are parts of this state where we can't go because the coyotes and drug runners control it. We've had people get killed because of the gangs coming over from Mexico. So what does Obama do? He has Janet Incompetano come out and say the border has never been more secure. Is she serious? She has betrayed the State of Arizona that elected her governor and she has sold out the American people as a whole to the Mexican drug runners and gangs. If Obama cared about our well-being in Arizona, he would pour more resources into this state, and the other border states, and stop this invasion, instead of having his idiot AG sue us. Well, if Obama feels we here in Arizona can all go to hell, then he and his whole Administration can go to hell, too!”
My reply:
As a citizen of the United States and resident of Arizona, your passion and directness cannot be denied. Regrettably, far too many in this Grand Republic seems to take the attitude – hey, not my problem – when in reality, the very real problem confronts us all.
Congress has not truly addressed the law regarding border crossings and other illegal immigration; they have not appropriated the necessary funds to properly defend the border or remove the economic drivers that motivate the border crossers. Further, the Executive has not vigorously enforced the existing law or lead the way in reforming immigration law. Partisan politics has immobilized the government. This issue will take a defense in depth including aggressive no-nonsense border protection. With all the work, jobs and money being poured into Northern Mexico by a wide array of American companies, pretty soon they will be crossing illegally into Mexico.
I was so angry just reading Judge Paez’s ruling for the court, started to calm down as I read Judge Noonan’s words, and finally thought at least Judge Bea had a reasonable grasp on the legal question and interpretation of the law.
I do not think President Obama is worthless, but in the context of illegal immigration he is no better or worse than his predecessors. All of them were/are consumed by party politics rather than the welfare of the nation. As with all societal issues, illegal immigration will not cure itself, will not go away, and will only get worse with time. Lastly, no need to blame this administration or any other, the problem is us – We, the People. We are the ones who tolerate the partisan politics as they disregard the necessary negotiations and compromise to achieve balanced solutions.
My very best wishes to all. Take care of yourselves and each other.
Cheers,
Cap :-)
