Update no.451

Update from the Heartland

No.451

2.8.10 – 8.8.10

Blog version: http://heartlandupdate.blogspot.com/

To all,
We grabbed Aspen Shae and Shalee Lynn, jumped into the truck, and headed down I-35 to Austin for a long weekend with our newest grandchild Avalon Mar – 6 weeks old, born 9 weeks premature – along with her brother Judson James and Mom & Dad. We had a grand ol’ time. Thank you very much, Melissa and Tyson.

The follow-up news items:
-- A House investigative panel has formally charged Representative Maxine Waters of California [450] with violating ethics rules. Waters serves as a senior member of the House Financial Services Committee.
-- The government announced on Thursday that cement had been successfully pumped down the throat of the Deepwater Horizon well [442 et al]. BP confirmed on Sunday that the cement had properly hardened, effectively sealing the leak permanently. Now, the company intends to finish the relief well to pump more mud & cement into the bottom of the well to ensure the well never leaks again. The investigation into the root cause(s) of the tragic accident continues. Local government and residents seek to keep the focus on the clean up as well as the environmental and economic recovery of the region. The long-term environmental study of the consequences of the disaster will take generations. Hopefully now, we can discuss refinement of the entire deep-water drilling process without the Judiciary being necessary to the public debate.
-- A Federal district judge in California struck down the voter referendum Proposition 8 – the so-called marriage amendment to the state constitution – Perry v. Schwarzenegger [USDC CA(ND) no. C 09-2292 VRW (2010)] [421, 423]. The 138-page ruling was simply beyond my capacity this week. I expect to complete my review for next week’s update.
-- The Senate voted [Senate: 63-37-0-0(0)] to confirm President Obama’s nomination of Elena Kagan as Associate Justice for the U.S. Supreme Court to fill the seat vacated by retired justice John Paul Stevens. She took the oath of office on Saturday to become the 112th citizen and the 4th woman to occupy a seat on the bench of the nation’s highest court.

At this time every year, we are reminded of the mind-numbing devastation of the only two instances in human history (so far) when nuclear weapons were used in war. I could recount history and offer my usual counter-argument; however, this year, I shall ask just one question: where is the remembrance and condemnation of the vastly more destructive Imperial Japan as well as the even more mind-numbing potential for loss of life on both sides if Operations OLYMPIC and CORONET had been necessary to execute? As I so often say regarding his topic and I reiterate now, thank you very much, Harry Truman, for having the courage to do what had to be done.

The public debate over Arizona’s SB1070 law and the subsequent Federal suit against the law certainly brought the immigration situation to the forefront. In general, I do not often agree with Ann Hart Coulter’s vitriol. However, a recent essay of hers illustrates just a few of the difficulties we face in this debate.
“Justice Brennan's Footnote Gave Us Anchor Babies”
by Ann Coulter
humanevents.com
Published: 4.August.2010
http://www.humanevents.com/article.php?id=38409
All warm & fuzzy Ann wants us to believe her recitation of the law defines the capricious and fallacious interpretations of activist (read wrong) judges . . . well, she actually singles out one justice as the true culprit in the dilemma we face. She points to Footnote 10 of Associate Justice William Joseph Brennan, Jr.’s opinion for the Court in Plyler v. Doe [457 U.S. 202 (1982)], where he notes, “Justice Gray concluded that ‘[e]very citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.’ Id., at 693 {quoting from United States v. Wong Kim Ark [169 U.S. 649 (1898)] [399]}. As one early commentator noted, given the historical emphasis on geographic territoriality, bounded only, if at all, by principles of sovereignty and allegiance, no plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful. See C. Bouve, Exclusion and Expulsion of Aliens in the United States 425-427 (1912).” Coulter contends that Brennan’s footnote sanctioned the phenomenon known as “anchor babies.” The argument rises amid the growing debate over the 14th Amendment’s citizenship clause – namely Section 1, Clause 1: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Now we hear folks like Coulter arguing that the 14th Amendment was only intended for and limited to citizens with dark skin pigmentation who happened to be former slaves. The “anchor baby” phenomenon is a consequent artifact of the Federal government’s abysmal failure to enforce immigration law and border security. As with any law, we can cite examples of abuse, exception and extension. The Constitution including its amendments applies to all persons within its jurisdiction. Ann Coulter presents an interesting argument, but she is wrong.

From the Press reports on the Supreme Court’s recent decision, Christian Legal Society v. Martinez [560 U.S. ___ (2010); no. 08-1371], my interest peaked, and I developed a preliminary opinion, which illustrates why it is so important to read the entire decision, including opinion(s) of the dissent. My humble opinion changed in a rather unusual manner. The University of California Hastings College of the Law in San Francisco was founded in 1878, and through its “Registered Student Organization” (RSO) program, the college extends official recognition to student groups. Hastings claimed to have established a Nondiscrimination Policy in 1990 that applied an “accept-all-comers” requirement on RSOs as a condition to receive college sanction and support. The Christian Legal Society (CLS) sought RSO-sanction in 2004, which Hastings rejected since CLS refused to subscribe to the “accept-all-comers” requirement. CLS then claimed Hastings’ RSO open-access policy places unreasonable and undue restrictions on their First Amendment freedom of speech and assembly. It is far from clear whether Hastings created and applied its “accept-all-comers” membership policy as an answer to CLS or to all RSO groups. Sadly, the Court presents conflicting facts that strongly appear to be self-serving rather than expansive and substantive to the issue at hand. Both the plurality and dissent note that Jewish & Muslim RSOs were sanctioned by the university, but regrettably, neither faction of the Supremes informs us whether the “accept-all-comers” policy was applied to or accepted by the other religious affinity groups (or any student groups for that matter). If yes, the CLS has no case; if no, the university policy is clearly unconstitutional. Why the Court failed to make such a fundamental, basic reference is simply bizarre? The critical omission seems to stand in stark contrast to the Supremes earlier ruling in Boy Scouts of America v. Dale [530 U.S. 640 (2000); no. 99-699] [436] where the Court took a very broad view of the right of an organization to hold and enforce discriminatory membership criteria. Interestingly, the dissent illuminates a bona fide threat that an “accept-all-comers” policy enables – adversaries could flood membership and literally dismantle the targeted organization; the Court failed to reconcile such a threat with the obvious First Amendment restrictions of the CLS decision. At the end of the day, it was Associate Justice John Paul Stevens in his concurring opinion that most clearly and succinctly defined this decision. He observed, “Other groups may exclude or mistreat Jews, blacks, and women--or those who do not share their contempt for Jews, blacks, and women. A free society must tolerate such groups. It need not subsidize them, give them its official imprimatur, or grant them equal access to law school facilities.” Although the Court did not extend dominance of the university’s Nondiscrimination Policy over a student affinity group’s First Amendment rights, the argument applies to many cultural differences (although not applied directly by the Court, as that would be too broad an endeavor): exempli gratia, the anatomical modesty dicta of some religions and sub-cultures cannot be imposed upon the whole; conversely, nudity cannot be forced upon the remainder of our society because some of us are avowed naturists; we seek reasonable compromise and balance in societal and cultural forces. The Court sought to find that balance; however, I believe they failed on several levels.

On 27.July.2006, President Bush signed into law the Adam Walsh Child Protection and Safety Act of 2006 (Adam Walsh Act) [PL 109-248] ostensibly to “protect children from sexual attacks and other violent crimes.” In the shadow of the Supreme Court’s United States v. Comstock [560 U.S. ___ (2010); no. 08-1224] [441] decision, United States District Court Judge Jack Bertrand Weinstein of the Eastern District of New York took on the massive scattergun “punitive” injury inflicted by the Adam Walsh Act – United States v. Polouizzi [USDC NY(ED) 06-CR-22 (JBW) (2010)]. Pietro Polouizzi (AKA Peter Polouizzi or Peter Polizzi) was reported in court documents as a good husband and father of five sons, who had not harmed and posed no threat to his children, other minors or the community at large. Polouizzi was also convicted on twelve counts of receipt of child pornography, in violation of 18 U.S.C. §2252(a)(2), and eleven counts of possession of child pornography, in violation of 18 U.S.C. §2252(a)(4)(B). His conviction was set aside as a result of several judicial errors. As he awaited retrial, “conditions of his bail imposed the following requirements:
“(1) prohibition on association with minors, except in presence of guardian;
“(2) surrender of passport;
“(3) random drug testing;
“(4) mental health treatment;
“(5) home detention with electronic monitoring;
“(6) prohibition on use of family’s computer;
“(7) prohibition on entering son’s bedroom; and
“(8) a one million dollar bond secured by defendant’s home and other properties.”
All of these pre-trial restrictions were imposed upon a citizen who has not been successfully convicted of a crime and posed no threat to himself, his family, his community or society. Anyway, Judge Weinstein confined this ruling to just the mandatory electronic monitoring aspect of the law as a violation of Polouizzi’s Eighth Amendment right against excessive bail. The judge noted, “Required wearing of an electronic bracelet, every minute of every day, with the government capable of tracking a person not yet convicted as if he were a feral animal would be considered a serious limitation on freedom by most liberty-loving Americans.” I would have expanded the judge’s constitutional argument, so I suppose that is one more reason I am not a judge. Fortunately for all of us, even those of us who have never needed bailment, Judge Weinstein had the courage to take on an emotionally charged, oppressive law. I am generally opposed to laws like the Adam Walsh Act that are well intentioned and noble of purpose, but are far too broad, indiscriminate and oppressive in application. In such laws, we appear to be perfectly willing to destroy the lives of hundreds of generally decent, productive citizens with our desire to preempt Ottis Toole, or John Couey, or John Wayne Gacy. There are bad people among us, and there are even worse people who seek to harm our children. Our desire and efforts to protect our children from harm does not give us the right to impose punitive restrictions on a citizen not convicted of an appropriate crime. Further, we must resist our penchant to codify our moral outrage against those whom we disapprove, without factual proof beyond a reasonable doubt. The difficult part for all of us can be represented by the notion that if the Adam Walsh Act had been in force in 1981, eight-year-old Adam John Walsh may well be alive today
and may not have suffered at the evil hands and demented mind of Ottis Toole; however, such judgment does not rationalize or justify violating the constitutional rights of all citizens.

News from the economic front:
-- The government reported the core price index for personal consumption expenditures, which exclude food and energy prices and is closely watched by the Federal Reserve, was unchanged from a monthly 0.1% rise in May. U.S. personal incomes were also flat from a modest 0.3% rise in May.
-- Fannie Mae reported its losses during the second quarter of this year decreased dramatically and it would need only another US$1.5B in government support as a result. Oh my, don’t we feel better already. Furthermore, after the expansive financial services reform legislation, Fannie Mae and Freddie Mac remain untouched by reform or tightening of the associated regulations, while they continue to feed at the public trough. What is wrong with this picture?
-- The Labor Department reported the national unemployment rate held steady at 9.5% as the U.S. economy shed 131,000 nonfarm payrolls in July. The private sector added 71,000 jobs, while 143,000 temporary workers for the 2010 census were let go.

Comments and contributions from Update no.450:
Comment to the Blog:
“‘Far too many people have begun playing 'where’s the oil?’ Please clarify. Don’t you want to know where that stuff went?
“I agree with you about the Stolen Valor Act. The First Amendment covers speech I find repellent; it does not and should never cover fraud. The person in question had a clear objective of gaining from his statements and clearly lied.
“With respect to Massachusetts, Maryland and the Electoral College: please clarify. I am unaware of either the current events or of supporting evidence for value of the Electoral College.
“Finally, the Arizona immigration-law debate. I feel that it would be a good gesture for Obama to visit Tucson and maybe the general border area, but not the border itself. The border would be a security nightmare.”
My reply to the Blog:
My attempt at sarcasm failed miserably. I was reacting to the plethora of Press reports about “where’s the oil?”, as if it had miraculously evaporated because they couldn’t see it on the surface. Being the “Light Sweet” variety, it is more volatile and evaporative. However, I worry that the majority of the released oil volume is suspended, sub-surface, and may have detrimental collateral effects beyond the obvious residue on beaches and marshes. So many of the Press reports seem to carry a tone of miraculous salvation rather than focus on the totality of the contamination.
I hope the appeals court takes a more reasonable line of reasoning than Judge Blackburn did in U.S. v. Strandlof.
The Maryland and now Massachusetts action was a state law that dictates all of the state’s electoral votes shall go to the winner of the “national” popular vote, thus negating the state’s autonomy and sovereignty. Thus, taken to an illustrative extreme, candidate A might win an overwhelming vote in the states, say 90%; however, since candidate B won the national popular vote, all of the state’s Electoral College votes would go to candidate B, rather than candidate A who won the vote in the state. This is a foolish, populist effort to negate the Electoral College without amending the Constitution.
The best the President could do with a visit to the Arizona border region would be a sympathy demonstration – sometimes that is important, other times distracting. As I have contended, the issue is Congress, not the President.

My very best wishes to all. Take care of yourselves and each other.
Cheers,
Cap :-)