Update from the Heartland
No.285
21.5.07 – 27.5.07
Blog version: http://heartlandupdate.blogspot.com/
No.285
21.5.07 – 27.5.07
Blog version: http://heartlandupdate.blogspot.com/
To all,
In the United States of America, this is Memorial Day – a day of remembrance and gratitude for those who have sacrificed so much for our freedom. May God bless them all.
On occasion, the Wall Street Journal asks accomplished individuals and authorities in their arena of expertise to offer their top five book choices. As a timely, fortuitous, and appropriate addition to the list, we have:
"War Stories -- On Memorial Day, keep in mind these books about soldiers in battle."
by John McCain
http://www.opinionjournal.com/weekend/fivebest/?id=110010129
Saturday, May 26, 2007 12:00 a.m. EDT
1. "For Whom the Bell Tolls" by Ernest Hemingway (Scribner, 1940).
2. "The History of the Decline and Fall of the Roman Empire" by Edward Gibbon (1776-88).
3. "This Kind of War" by T.R. Fehrenbach (Macmillan, 1963).
4. "Hell in a Very Small Place" by Bernard B. Fall (Lippincott, 1966).
5. "All Quiet on the Western Front" by Erich Maria Remarque (Little, Brown, 1929).
Please allow me to be so bold and presumptuous to offer my choices.
A. "Goodbye, Darkness" by William Manchester (Little, Brown, 1979).
B. "Battle Cry" by Leon Uris (Putnam, 1953).
C. "Once an Eagle" by Anton Myrer (Henry Holt & Co, 1968).
D. "The Killer Angels" by Michael Shaara (Ballantine, 1974).
E. "Fields of Fire" by James Webb (Prentice Hall, 1978).
Lest we ever forget what the warriors do for us all.
We have a few follow-up news items from previous Updates:
-- The long awaited emergency appropriation bill – Iraq Accountability Appropriations Act of 2007 [H.R. 2206] [277, 281-4] {vote: House: 280-142-0-11; Senate: 80-14-6} – passed both chambers, and the President is expected to sign the funding bill. Deadlines for withdrawal from Iraq were removed, but the plethora of earmark pork spending additions remains. The war funding confrontation now moves to September. One kinda last word on this topic, these debates over the conduct of the war should be carried out beyond public view. Public debate during wartime only serves the enemy.
-- According to CNN, Astronaut Navy Commander Bill Oefelein – the middleman in the bizarre Nowak assault case [269-70] – will be released from the astronaut corps and returned to the Navy. As precious as an astronaut position is for many of us, his departure is quite sad, but as the old saying goes, we reap what we sow.
-- Department of Justice liaison to the White House Monica Goodling – counselor to Attorney General Alberto Gonzales – testified with congressional immunity before the House Judiciary Committee. The U.S. attorney firing plot continues to thicken. [268, 283]
RMS Cutty Sark – one of the fastest tea clipper ships in its day – suffered significant damage in a suspicious Monday morning, London, dry dock fire. Fortunately, the ship’s deck house, masts and rigging had been removed for the refurbishment. London authorities indicated they would investigate the origins of the fire and take appropriate action. Preliminary examination indicated the damage was not as bad as initially feared. Since the initial announcements, the news services have gone cold. If any of our English subscribers have more recent information, I would like to hear more of this event.
I was asked my opinion on the latest Rosie O'Donnell incident – an on-air confrontation with co-host Elisabeth Hasselbeck on the 23.May.2007 broadcast of The View. On a prior program, Rosie said, "655,000 Iraqi civilians are dead. Who are the terrorists?" Now, what are we to take from Rosie's implicit statement? The following day, Joy Bahar lit the match – in my opinion, intentionally, given Rosie's prior statement – to torch off the conflagration. The arguments were shallow, ill-informed, unfocused and myopic. Rosie loves to cast herself as the victim, and this incident is a perfect example. My take from all this folderol . . . if Rosie or any of us cannot stand up and defend our opinions by ourselves, then perhaps we should not be expressing our opinions. In the next two days of the frenzied feasting by the Press, ABC announced Rosie would not be returning for the last five weeks of her contract. It is sad and unfortunate that a person as outspoken as Rosie has such a thin skin and fragile character.
The venerable and celebrated peanut farmer, Jimmy Carter -- oh yeah, and Nobel laureate and former POTUS -- cast aside tradition and declared that the Bush administration is “the worst in history.” Carter backtracked the following day. He violated a long held, unwritten rule of ex-presidential etiquette. In some measure, dear ol’ Jimmy is probably correct. I suspect most folks in the United States and the World do not see Islamic Fascism as a threat, but in true socialist form, these poor downtrodden Muslims are victims of American commercial oppression and exploitation. If so, the conclusion that the American reaction to the 9/11 attacks by this administration was wild and wrong, and thus succumbed to whimsy regarding the administration’s aggressive actions in the War on Islamic Fascism. I have not studied American presidents and their administrations to the level I can claim authority on the “worst in history,” but of the administrations since I was old enough to appreciate such things, I have a different opinion than that Georgia peanut farmer.
I direct your attention to this Leonard Pitts opinion column:
"More government intrusion in our lives"
by Leonard Pitts
Wichita Eagle
Opinion: Monday; May 21, 2007; page 7
Aalso titled as,
"Government shouldn't judge morality for us"
by Leonard Pitts Jr.
http://www.miamiherald.com/285/story/113473.html
The genesis of Leonard's ire stems from an Alabama state law – the Anti-Obscenity Enforcement Act of 1998 – that makes unlawful the sale of any device used “primarily for the stimulation of human genital organs.” Sherri Williams, a resident of Florida, owns two adult toy stores in Alabama and challenged the constitutionality of the Alabama obscenity law. Beyond all the judicial wrangling and legal mumbo-jumbo, this case hinges upon a state’s authority to enforce public morality, and at an even more basic and fundamental level, the definition of public morality. Yet, before we jump into the greater meaning to all citizens, let me just summarize my take of the various rulings in this litany – the court’s rationale truly scares the bloody hell out of me. I want to analyze the logic in these judicial pronouncements, but I suspect the details will bore to tears most folks. Yet, I wrote an opinion of the case [168] when the Supreme Court declined to hear the original appeal, but asked for further examination of the case in light of Lawrence v. Texas [539 U.S. 558 (2003)] -- a case decided after the first couple of cycles of Williams, which has now made the third full cycle between U.S. District Judge C. Lynwood Smith and the 11th Circuit Court of Appeals (11CCA). According to Leonard, the case is once again before the Supreme Court. We do not know, as yet, whether the highest court will hear the case. Perhaps we should wait to hear what the Supremes have to say, but Leonard’s articulate and concise admonition compels me to add my voice.
We could allow this discussion to descend into the prurient aspects of the case; after all, we have plentiful fodder for such stimulating rumination. Yet, beyond the salacious aspects, this case portends profound potential impact on every citizen’s fundamental right to privacy – the implications are enormous.
In the United States of America, this is Memorial Day – a day of remembrance and gratitude for those who have sacrificed so much for our freedom. May God bless them all.
On occasion, the Wall Street Journal asks accomplished individuals and authorities in their arena of expertise to offer their top five book choices. As a timely, fortuitous, and appropriate addition to the list, we have:
"War Stories -- On Memorial Day, keep in mind these books about soldiers in battle."
by John McCain
http://www.opinionjournal.com/weekend/fivebest/?id=110010129
Saturday, May 26, 2007 12:00 a.m. EDT
1. "For Whom the Bell Tolls" by Ernest Hemingway (Scribner, 1940).
2. "The History of the Decline and Fall of the Roman Empire" by Edward Gibbon (1776-88).
3. "This Kind of War" by T.R. Fehrenbach (Macmillan, 1963).
4. "Hell in a Very Small Place" by Bernard B. Fall (Lippincott, 1966).
5. "All Quiet on the Western Front" by Erich Maria Remarque (Little, Brown, 1929).
Please allow me to be so bold and presumptuous to offer my choices.
A. "Goodbye, Darkness" by William Manchester (Little, Brown, 1979).
B. "Battle Cry" by Leon Uris (Putnam, 1953).
C. "Once an Eagle" by Anton Myrer (Henry Holt & Co, 1968).
D. "The Killer Angels" by Michael Shaara (Ballantine, 1974).
E. "Fields of Fire" by James Webb (Prentice Hall, 1978).
Lest we ever forget what the warriors do for us all.
We have a few follow-up news items from previous Updates:
-- The long awaited emergency appropriation bill – Iraq Accountability Appropriations Act of 2007 [H.R. 2206] [277, 281-4] {vote: House: 280-142-0-11; Senate: 80-14-6} – passed both chambers, and the President is expected to sign the funding bill. Deadlines for withdrawal from Iraq were removed, but the plethora of earmark pork spending additions remains. The war funding confrontation now moves to September. One kinda last word on this topic, these debates over the conduct of the war should be carried out beyond public view. Public debate during wartime only serves the enemy.
-- According to CNN, Astronaut Navy Commander Bill Oefelein – the middleman in the bizarre Nowak assault case [269-70] – will be released from the astronaut corps and returned to the Navy. As precious as an astronaut position is for many of us, his departure is quite sad, but as the old saying goes, we reap what we sow.
-- Department of Justice liaison to the White House Monica Goodling – counselor to Attorney General Alberto Gonzales – testified with congressional immunity before the House Judiciary Committee. The U.S. attorney firing plot continues to thicken. [268, 283]
RMS Cutty Sark – one of the fastest tea clipper ships in its day – suffered significant damage in a suspicious Monday morning, London, dry dock fire. Fortunately, the ship’s deck house, masts and rigging had been removed for the refurbishment. London authorities indicated they would investigate the origins of the fire and take appropriate action. Preliminary examination indicated the damage was not as bad as initially feared. Since the initial announcements, the news services have gone cold. If any of our English subscribers have more recent information, I would like to hear more of this event.
I was asked my opinion on the latest Rosie O'Donnell incident – an on-air confrontation with co-host Elisabeth Hasselbeck on the 23.May.2007 broadcast of The View. On a prior program, Rosie said, "655,000 Iraqi civilians are dead. Who are the terrorists?" Now, what are we to take from Rosie's implicit statement? The following day, Joy Bahar lit the match – in my opinion, intentionally, given Rosie's prior statement – to torch off the conflagration. The arguments were shallow, ill-informed, unfocused and myopic. Rosie loves to cast herself as the victim, and this incident is a perfect example. My take from all this folderol . . . if Rosie or any of us cannot stand up and defend our opinions by ourselves, then perhaps we should not be expressing our opinions. In the next two days of the frenzied feasting by the Press, ABC announced Rosie would not be returning for the last five weeks of her contract. It is sad and unfortunate that a person as outspoken as Rosie has such a thin skin and fragile character.
The venerable and celebrated peanut farmer, Jimmy Carter -- oh yeah, and Nobel laureate and former POTUS -- cast aside tradition and declared that the Bush administration is “the worst in history.” Carter backtracked the following day. He violated a long held, unwritten rule of ex-presidential etiquette. In some measure, dear ol’ Jimmy is probably correct. I suspect most folks in the United States and the World do not see Islamic Fascism as a threat, but in true socialist form, these poor downtrodden Muslims are victims of American commercial oppression and exploitation. If so, the conclusion that the American reaction to the 9/11 attacks by this administration was wild and wrong, and thus succumbed to whimsy regarding the administration’s aggressive actions in the War on Islamic Fascism. I have not studied American presidents and their administrations to the level I can claim authority on the “worst in history,” but of the administrations since I was old enough to appreciate such things, I have a different opinion than that Georgia peanut farmer.
I direct your attention to this Leonard Pitts opinion column:
"More government intrusion in our lives"
by Leonard Pitts
Wichita Eagle
Opinion: Monday; May 21, 2007; page 7
Aalso titled as,
"Government shouldn't judge morality for us"
by Leonard Pitts Jr.
http://www.miamiherald.com/285/story/113473.html
The genesis of Leonard's ire stems from an Alabama state law – the Anti-Obscenity Enforcement Act of 1998 – that makes unlawful the sale of any device used “primarily for the stimulation of human genital organs.” Sherri Williams, a resident of Florida, owns two adult toy stores in Alabama and challenged the constitutionality of the Alabama obscenity law. Beyond all the judicial wrangling and legal mumbo-jumbo, this case hinges upon a state’s authority to enforce public morality, and at an even more basic and fundamental level, the definition of public morality. Yet, before we jump into the greater meaning to all citizens, let me just summarize my take of the various rulings in this litany – the court’s rationale truly scares the bloody hell out of me. I want to analyze the logic in these judicial pronouncements, but I suspect the details will bore to tears most folks. Yet, I wrote an opinion of the case [168] when the Supreme Court declined to hear the original appeal, but asked for further examination of the case in light of Lawrence v. Texas [539 U.S. 558 (2003)] -- a case decided after the first couple of cycles of Williams, which has now made the third full cycle between U.S. District Judge C. Lynwood Smith and the 11th Circuit Court of Appeals (11CCA). According to Leonard, the case is once again before the Supreme Court. We do not know, as yet, whether the highest court will hear the case. Perhaps we should wait to hear what the Supremes have to say, but Leonard’s articulate and concise admonition compels me to add my voice.
We could allow this discussion to descend into the prurient aspects of the case; after all, we have plentiful fodder for such stimulating rumination. Yet, beyond the salacious aspects, this case portends profound potential impact on every citizen’s fundamental right to privacy – the implications are enormous.
From the various Williams rulings so far, we see key salients. The judiciary’s use of “public morality” and “sexual privacy” emotionalize and cloud the essential issue – We, the People versus the State, or in my common terms, private versus public. Many facets of this case enable the spin-doctors to take virtually any view they wish. However, I see far larger, reflective, and ominous questions in these court rulings, the specifics of the case, and in our society in general.
1. “Sexual privacy” – To the strict constructionists, there is no constitutional right to “sexual privacy.” They are correct, strictly speaking; there is NO explicit constitutional or fundamental right to sexual privacy, period. To claim as much sullies the Constitution. In fact, there is no mention of sex, sexual behavior, or sexual morays or rights anywhere in the Constitution. The term, as these judges use it, applies to a rather narrow subset of a far more expansive, fundamental right to privacy, which also is not mentioned in the Constitution. Yet, Judge Smith believes we have the expectation of sexual privacy. The 11CCA dryly states there is no such right, thus should be no expectation, and restates that the State’s judgment and determination that “certain sexual behavior is ‘immoral and unacceptable’ constitutes a rational basis for regulation.” The implications here are staggering. Imagine, if you will, the extension of the 11CCA's reasoning, and worse yet, the codification of the State's imposition upon the most intimate of personal affairs simply because some powerful majority disapproves of what they think our private sexual behavior MIGHT BE. Are we free or are we subject to the imaginations of a willful majority?
2. Sale – Alabama’s law in question in the Williams case makes no restriction on the use of these devices, only their sale. So, citizens/residents can use them; they just can’t acquire them – neat circular argument. However, the Supreme Court clearly defined the relationship between sale and use in such cases. “[T]he same test must be applied to state regulations that burden an individual's right to decide . . . limiting access to the means of effectuating that decision as is applied to state statutes that prohibit the decision entirely. Both types of regulation ‘may be justified only by a ‘compelling state interest’ . . . and . . . must be narrowly drawn to express only the legitimate state interests at stake.’” Carey v. Population Services International [431 U.S. 678 (1977)] at 688. Thus, in light of Carey, the State’s interest in such regulation becomes a critical path of debate.
3. State interest – The State has a bona fide, proper interest in public morality; that is the moral standards by which citizens conduct themselves in the public domain. However, that State interest cannot and should not be stretched to encompass or intrude upon the private domain unless an injury or abuse of the public good occurs. The State has the responsibility, authority and right to regulate public behavior and conduct for the general good of the community, and as such, commerce is a direct segment of that broad, general responsibility. Boundaries inherently bring disputes, and thus the judiciary occupies the position of interpretation of the law and resolution of disputes regarding the characteristics of the boundaries. This is true between national and international, state and federal, and private and public. Alabama argues their interest is “public morality.” A curious twist of selective reasoning comes in the comparison of the 11CCA’s ruling in Williams [02-16135] with the 8th Circuit’s decision in Citizens for Equal Protection v. Bruning [05-2604]. Various courts state that we have no constitutional right to privacy for sexual intimacy, and on the other hand claim the State has an interest and authority to determine proper sexual conduct in the privacy of our bedrooms and within our most personal relationships. I do not have access to the original arguments or even the district court’s findings, only the reflections of those arguments in the appeals court rulings, so far. No description of or rationale for the State’s interest in such regulation was offered other than the notional “public morality.” So many of our social confrontations and conflicts force us to examine the proper interests of the State. The temptation in those confrontations turns us to the instruments of State to enforce our views of morality. And, as long as the law does not affect us, we say, sure, I think the use of sex toys is immoral anyway. If Alabama is concerned about the public display of these devices, the state’s demand is appropriate. There is no mention of such public display. The basis of the state’s objection appears to be the “imagined” knowledge of their intended use, and thus disapproval of such usage as obscene and/or immoral. We must ask what is the State’s bona fide interest? Is it really the sale of certain devices or is it a desire by lawmakers to reduce or eliminate the use of such devices by regulating the sale? I continue to return to the same question – where is the harm to the public good? Does the use of such devices truly cause harm in some form within the public domain?
4. “Public morality” – Here lies the rub, and the very essence of this debate. American legal attempts to regulate public AND private morality can be traced back easily to at least the Comstock Act of 1873 [PL 43-257; 17 Stat. 599 (1873)] and a plethora of subsequent efforts at federal, state and local levels. Even today in this particular case, we may view the customers for and the purveyors of any device(s) used “primarily for the stimulation of human genital organs” as perverted, sinful, obscene, immoral, and otherwise really bad or misguided folks. That is our choice, our freedom to do so. Regardless, when it comes to our imposition of authority on all citizens, we should also ask the questions: where is the harm to the public good, or are we offended by the sale of those devices or by what we think those customers do with those devices in the privacy of their homes? I am having a very hard time seeing the “public morality” question here. Do we make the same judgment with regard to the sale of alcohol, tobacco products, condoms, lottery tickets, contraceptives, pornography, erectile dysfunction medications, ad infinitum? Further, unless these devices are being used on a school playground, a park bench, or some other public venue, how can the word “public” possibly be applied to the “immorality” of sex toys? Then, the issue boils down to the State’s professed interest versus a citizen’s right to conduct his private life as he sees fit. The 11CCA did not delve any deeper into the permeability of the boundary. For contrast, some citizens are offended by pork, some by any meat products. Some citizen somewhere is offended by virtually anything. We must learn as citizens to contain our offense to the public domain and those things that injure the public good. The fact that my neighbor buys bacon, cooks it in his house, and presumably consumes the pork may turn my stomach, and yet, how can I claim offense to the public good? Similarly, just because a citizen may purchase a sexual device, take it home, and use it for their pleasure in private, I cannot claim harm to the public good; after all, I am offended by the implicit or perceived carnal use of such devices, not some explicit public use.
5. A citizen’s fundamental right to privacy – The 11CCA repeatedly ignored the essential principle as is so often the case in other sensitive deliberations like abortion, assisted suicide, et cetera. Numerous cases over many years have flirted with the edges of the essential question or principle – does an individual citizen have a fundamental right to privacy? The judiciary’s reticence to buttress a citizen’s fundamental right to privacy is apparently a bridge too far. We have discussed the right to privacy numerous times in this forum. [202, 203, 224, 242-4, 258, 263, 280] No need to rehash the basis. The bottom line: does an individual citizen have a fundamental right to privacy, to enjoy protection from unwarranted intrusion by the State? In answering this most basic question, we can ask the concomitant question – without a citizen’s fundamental right to privacy, what protection do we have from intrusion by the State into our most intimate private lives? And yet, an unqualified, unbounded and inviolate privacy raises the specter of collateral consequences.
6. Collateral consequences – The 11CCA said, “If we were to accept the invitation to recognize a right to sexual intimacy, this right would theoretically encompass such activities as prostitution, obscenity, and adult incest -- even if we were to limit the right to consenting adults.” The 11CCA implicitly frames the State's apprehension regarding a definitive description of a citizen's fundamental right to privacy. The inherent reticence comes from our inability to forecast outcomes associated with future human behavior. By making too explicit a definition, the 11CCA implies unintended consequences in a myriad of other areas of legal dispute –prostitution, incest, assisted suicide, the use of psychotropic or hallucinogenic substances, abortion, bestiality, child pornography, ad infinitum – all those activities that occur at or beyond the boundary between the public and private domains. The court’s concern is valid. And yet, in my mind, we can readily reconcile the conflicts in each area of private behavior with simple criteria “absent injury to a person or abuse of an institution the law protects,” as the court suggests.
Given the tête-à-tête between the district court judge and the appeals court, the ruling of the Roberts court should make interesting reading and forecast the inclinations of the Court regarding the critical issue of a citizen’s fundamental right to privacy.
Why do we find ourselves with such weighty questions? The answer is quite simple -- technology. Technology . . . that enables us to connect around the world instantaneously; that enables the State to see far deeper into our lives, and that exposes us to aspects of life we never knew existed, just a few decades ago. The Comstock laws were tolerable back in the day; they are not today. We are faced with questions of governance the Founders could never have imagined, and yet they provided us a flexible structure to allow successive generations to adapt the law to the times in which we live. Our choice is always how we use the law for the public good without carving up our most basic right to “life, liberty and the pursuit of happiness.”
In closing, freedom is not just what touches us. Denying another citizen their freedom of choice chips away at all freedom, including those that apply to us. Let us confine our disagreements to words at Debater's Corner and use the law sparingly to impose upon the private lives and choices of citizens. I know this segment is probably far longer than most folks care to read. However, I hope my opinion can help in some small way to focus just a few of us to carefully examine the laws we create.
Comments and contributions from Update no.284:
"I share your fears. I don't think people will wake up until something really bad happens. Oddly enough, as I was driving to work Sunday morning, heading west, I pictured a blast over downtown Phoenix, the mushroom cloud beginning to rise. I wondered what I should do, what would Daphne and the dogs do, how much time would I have, until the shock wave and the heat reached me and them.
"It is not if it happens. It is when it happens. It will happen in my lifetime. And the liberals will ask why didn't do something about it."
My response:
Quite soberly put, I must say, for that is indeed the question. Sadly, the Islamofascists do not possess the delivery media the Russians and Chinese possess. Most sophisticated nuclear devices are programmed for airburst to maximize the explosive effects while minimizing the radiological contamination. Surface or subsurface detonations that broach the surface are generally far dirtier with radiological effects lasting much longer than airbursts. The size of the device determines the dimensions of the fireball, and the shockwave moves at the speed of sound, i.e., you won’t have time to blink. So, when it comes, it most likely will be a very nasty secondary effects event, probably a surface event from a container or tractor-trailer. The fallout would take a day or two to reach us, depending upon the prevailing weather. Thus, when threatened by such a potential attack, preemptive action makes a lot of sense to me.
No, the naysayers will not ask why. They will blame the destruction on warmongers like me, who hypothesize about such things and condemn the aggressors. The liberals will say that the poor little ol’ terrorists never would have been driven to such destructive action if we had just given them what they want . . . oh, and some milk and cookies to show our friendship. Do I sound angry?
. . . with this follow-up:
"Using 780 mph, I figure 115 seconds (25 miles from downtown). But my math skills have deteriorated immensely.
"I don't think of us as warmongers, but as rationalists, realists, students of history."
. . . and my response to the follow-up:
The fireball expands quite a bit faster than the speed of sound, and the size of the fireball is determined by the yield of the device. The shockwave moves out from the fireball at the speed of sound. Nonetheless, two minutes does not leave much time. And, the EMP would eliminate the cellphone, car ignition, and virtually anything electrical. We don't need to dwell on the morbid, technical details of thermonuclear warfare. I don't think of us as warmongers either, but I know there are folks out among us who do. We must not ignore those who differ with us.
My very best wishes to all. Take care of yourselves and each other.
Cheers,
Cap :-)
1. “Sexual privacy” – To the strict constructionists, there is no constitutional right to “sexual privacy.” They are correct, strictly speaking; there is NO explicit constitutional or fundamental right to sexual privacy, period. To claim as much sullies the Constitution. In fact, there is no mention of sex, sexual behavior, or sexual morays or rights anywhere in the Constitution. The term, as these judges use it, applies to a rather narrow subset of a far more expansive, fundamental right to privacy, which also is not mentioned in the Constitution. Yet, Judge Smith believes we have the expectation of sexual privacy. The 11CCA dryly states there is no such right, thus should be no expectation, and restates that the State’s judgment and determination that “certain sexual behavior is ‘immoral and unacceptable’ constitutes a rational basis for regulation.” The implications here are staggering. Imagine, if you will, the extension of the 11CCA's reasoning, and worse yet, the codification of the State's imposition upon the most intimate of personal affairs simply because some powerful majority disapproves of what they think our private sexual behavior MIGHT BE. Are we free or are we subject to the imaginations of a willful majority?
2. Sale – Alabama’s law in question in the Williams case makes no restriction on the use of these devices, only their sale. So, citizens/residents can use them; they just can’t acquire them – neat circular argument. However, the Supreme Court clearly defined the relationship between sale and use in such cases. “[T]he same test must be applied to state regulations that burden an individual's right to decide . . . limiting access to the means of effectuating that decision as is applied to state statutes that prohibit the decision entirely. Both types of regulation ‘may be justified only by a ‘compelling state interest’ . . . and . . . must be narrowly drawn to express only the legitimate state interests at stake.’” Carey v. Population Services International [431 U.S. 678 (1977)] at 688. Thus, in light of Carey, the State’s interest in such regulation becomes a critical path of debate.
3. State interest – The State has a bona fide, proper interest in public morality; that is the moral standards by which citizens conduct themselves in the public domain. However, that State interest cannot and should not be stretched to encompass or intrude upon the private domain unless an injury or abuse of the public good occurs. The State has the responsibility, authority and right to regulate public behavior and conduct for the general good of the community, and as such, commerce is a direct segment of that broad, general responsibility. Boundaries inherently bring disputes, and thus the judiciary occupies the position of interpretation of the law and resolution of disputes regarding the characteristics of the boundaries. This is true between national and international, state and federal, and private and public. Alabama argues their interest is “public morality.” A curious twist of selective reasoning comes in the comparison of the 11CCA’s ruling in Williams [02-16135] with the 8th Circuit’s decision in Citizens for Equal Protection v. Bruning [05-2604]. Various courts state that we have no constitutional right to privacy for sexual intimacy, and on the other hand claim the State has an interest and authority to determine proper sexual conduct in the privacy of our bedrooms and within our most personal relationships. I do not have access to the original arguments or even the district court’s findings, only the reflections of those arguments in the appeals court rulings, so far. No description of or rationale for the State’s interest in such regulation was offered other than the notional “public morality.” So many of our social confrontations and conflicts force us to examine the proper interests of the State. The temptation in those confrontations turns us to the instruments of State to enforce our views of morality. And, as long as the law does not affect us, we say, sure, I think the use of sex toys is immoral anyway. If Alabama is concerned about the public display of these devices, the state’s demand is appropriate. There is no mention of such public display. The basis of the state’s objection appears to be the “imagined” knowledge of their intended use, and thus disapproval of such usage as obscene and/or immoral. We must ask what is the State’s bona fide interest? Is it really the sale of certain devices or is it a desire by lawmakers to reduce or eliminate the use of such devices by regulating the sale? I continue to return to the same question – where is the harm to the public good? Does the use of such devices truly cause harm in some form within the public domain?
4. “Public morality” – Here lies the rub, and the very essence of this debate. American legal attempts to regulate public AND private morality can be traced back easily to at least the Comstock Act of 1873 [PL 43-257; 17 Stat. 599 (1873)] and a plethora of subsequent efforts at federal, state and local levels. Even today in this particular case, we may view the customers for and the purveyors of any device(s) used “primarily for the stimulation of human genital organs” as perverted, sinful, obscene, immoral, and otherwise really bad or misguided folks. That is our choice, our freedom to do so. Regardless, when it comes to our imposition of authority on all citizens, we should also ask the questions: where is the harm to the public good, or are we offended by the sale of those devices or by what we think those customers do with those devices in the privacy of their homes? I am having a very hard time seeing the “public morality” question here. Do we make the same judgment with regard to the sale of alcohol, tobacco products, condoms, lottery tickets, contraceptives, pornography, erectile dysfunction medications, ad infinitum? Further, unless these devices are being used on a school playground, a park bench, or some other public venue, how can the word “public” possibly be applied to the “immorality” of sex toys? Then, the issue boils down to the State’s professed interest versus a citizen’s right to conduct his private life as he sees fit. The 11CCA did not delve any deeper into the permeability of the boundary. For contrast, some citizens are offended by pork, some by any meat products. Some citizen somewhere is offended by virtually anything. We must learn as citizens to contain our offense to the public domain and those things that injure the public good. The fact that my neighbor buys bacon, cooks it in his house, and presumably consumes the pork may turn my stomach, and yet, how can I claim offense to the public good? Similarly, just because a citizen may purchase a sexual device, take it home, and use it for their pleasure in private, I cannot claim harm to the public good; after all, I am offended by the implicit or perceived carnal use of such devices, not some explicit public use.
5. A citizen’s fundamental right to privacy – The 11CCA repeatedly ignored the essential principle as is so often the case in other sensitive deliberations like abortion, assisted suicide, et cetera. Numerous cases over many years have flirted with the edges of the essential question or principle – does an individual citizen have a fundamental right to privacy? The judiciary’s reticence to buttress a citizen’s fundamental right to privacy is apparently a bridge too far. We have discussed the right to privacy numerous times in this forum. [202, 203, 224, 242-4, 258, 263, 280] No need to rehash the basis. The bottom line: does an individual citizen have a fundamental right to privacy, to enjoy protection from unwarranted intrusion by the State? In answering this most basic question, we can ask the concomitant question – without a citizen’s fundamental right to privacy, what protection do we have from intrusion by the State into our most intimate private lives? And yet, an unqualified, unbounded and inviolate privacy raises the specter of collateral consequences.
6. Collateral consequences – The 11CCA said, “If we were to accept the invitation to recognize a right to sexual intimacy, this right would theoretically encompass such activities as prostitution, obscenity, and adult incest -- even if we were to limit the right to consenting adults.” The 11CCA implicitly frames the State's apprehension regarding a definitive description of a citizen's fundamental right to privacy. The inherent reticence comes from our inability to forecast outcomes associated with future human behavior. By making too explicit a definition, the 11CCA implies unintended consequences in a myriad of other areas of legal dispute –prostitution, incest, assisted suicide, the use of psychotropic or hallucinogenic substances, abortion, bestiality, child pornography, ad infinitum – all those activities that occur at or beyond the boundary between the public and private domains. The court’s concern is valid. And yet, in my mind, we can readily reconcile the conflicts in each area of private behavior with simple criteria “absent injury to a person or abuse of an institution the law protects,” as the court suggests.
Given the tête-à-tête between the district court judge and the appeals court, the ruling of the Roberts court should make interesting reading and forecast the inclinations of the Court regarding the critical issue of a citizen’s fundamental right to privacy.
Why do we find ourselves with such weighty questions? The answer is quite simple -- technology. Technology . . . that enables us to connect around the world instantaneously; that enables the State to see far deeper into our lives, and that exposes us to aspects of life we never knew existed, just a few decades ago. The Comstock laws were tolerable back in the day; they are not today. We are faced with questions of governance the Founders could never have imagined, and yet they provided us a flexible structure to allow successive generations to adapt the law to the times in which we live. Our choice is always how we use the law for the public good without carving up our most basic right to “life, liberty and the pursuit of happiness.”
In closing, freedom is not just what touches us. Denying another citizen their freedom of choice chips away at all freedom, including those that apply to us. Let us confine our disagreements to words at Debater's Corner and use the law sparingly to impose upon the private lives and choices of citizens. I know this segment is probably far longer than most folks care to read. However, I hope my opinion can help in some small way to focus just a few of us to carefully examine the laws we create.
Comments and contributions from Update no.284:
"I share your fears. I don't think people will wake up until something really bad happens. Oddly enough, as I was driving to work Sunday morning, heading west, I pictured a blast over downtown Phoenix, the mushroom cloud beginning to rise. I wondered what I should do, what would Daphne and the dogs do, how much time would I have, until the shock wave and the heat reached me and them.
"It is not if it happens. It is when it happens. It will happen in my lifetime. And the liberals will ask why didn't do something about it."
My response:
Quite soberly put, I must say, for that is indeed the question. Sadly, the Islamofascists do not possess the delivery media the Russians and Chinese possess. Most sophisticated nuclear devices are programmed for airburst to maximize the explosive effects while minimizing the radiological contamination. Surface or subsurface detonations that broach the surface are generally far dirtier with radiological effects lasting much longer than airbursts. The size of the device determines the dimensions of the fireball, and the shockwave moves at the speed of sound, i.e., you won’t have time to blink. So, when it comes, it most likely will be a very nasty secondary effects event, probably a surface event from a container or tractor-trailer. The fallout would take a day or two to reach us, depending upon the prevailing weather. Thus, when threatened by such a potential attack, preemptive action makes a lot of sense to me.
No, the naysayers will not ask why. They will blame the destruction on warmongers like me, who hypothesize about such things and condemn the aggressors. The liberals will say that the poor little ol’ terrorists never would have been driven to such destructive action if we had just given them what they want . . . oh, and some milk and cookies to show our friendship. Do I sound angry?
. . . with this follow-up:
"Using 780 mph, I figure 115 seconds (25 miles from downtown). But my math skills have deteriorated immensely.
"I don't think of us as warmongers, but as rationalists, realists, students of history."
. . . and my response to the follow-up:
The fireball expands quite a bit faster than the speed of sound, and the size of the fireball is determined by the yield of the device. The shockwave moves out from the fireball at the speed of sound. Nonetheless, two minutes does not leave much time. And, the EMP would eliminate the cellphone, car ignition, and virtually anything electrical. We don't need to dwell on the morbid, technical details of thermonuclear warfare. I don't think of us as warmongers either, but I know there are folks out among us who do. We must not ignore those who differ with us.
My very best wishes to all. Take care of yourselves and each other.
Cheers,
Cap :-)
1 comment:
Your blog keeps getting better and better! Your older articles are not as good as newer ones you have a lot more creativity and originality now keep it up!
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