Update no.565

Update from the Heartland

No.565

8.10.12 – 14.10.12

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

To all,

The follow-up news items:

-- Congress is adjourned to allow our vaunted and noble representatives to focus on their re-election.  Yet, the even nobler and conscientious, House Oversight and Government Reform Committee is investigating the Benghazi attack [561] and seems to have a rather strange agenda . . . well, given the polarized, political partisanship in Congress, perhaps not so strange, now that I think of it.  Republicans are in a fire-aim-ready mode, far more interested in affixing blame rather than determining the facts and root cause.

Vice President Joseph Robinette “Joe” Biden, Jr. and Representative Paul Davis Ryan of Wisconsin squared off for their only public debate, moderated by Martha Myrna Raddatz of ABC News.  Well, first things first, the VP debate was far more entertaining than the 1^st presidential debate.  I think that is about the best thing I can say.  These events rarely, if ever, offer anything of substance.  We, the People, are still left with absorbing all the relevant information we can acquire to place the statements of the candidates into some sort of meaningful perspective.  No need to waste anyone’s time.

           There have been events in my life where I felt His Hand.  Some call it karma, some divine intervention . . . others may called it fate, or even luck or happenstance.  There are big events, little moments, and private instances.  These junctures, the proverbial fork in the road, come to all of us – some recognize them, some do not.

            As even a casual reader must know, I have been on a quest to understand the Constitution and the impact of the law on our lives.  I continue to read various judicial pronouncements at all levels from a district court to the Supreme Court, both in this Grand Republic as well as other nations.  I also read key formative documents that illuminate our history and the genesis of our laws.  Months ago, I decided to read and I am nearly finished with the opus magnus of Associate Justice Joseph Story (the youngest Supreme Court justice in history (32yo), served 1811-1845) – Commentaries on the Constitution of the United States (in 3 volumes) [412].

            Perhaps fortuitously, as I completed the Story Commentaries, the following essay arrived at our home.

“Individual, Community, and State: How to Think about Religious Freedom”

by Matthew J. Franck, The Witherspoon Institute

Imprimis

Hillsdale College (Michigan)

Published: September 2012; vol.41, no.9

Matthew opened his essay, “There is a growing awareness among Americans that religious freedom has come under sustained pressure.  In the public square where freedom of religion meets public policy, it becomes clearer all the time that there is a high price to be paid for being true to one’s conscience.”  He cites a number of contemporary cases reviewed in this humble forum to illuminate his underlying premise.

28.6.10   -- another 1^st Amendment assembly & speech case (university student group)
Christian Legal Society v. Martinez [560 U.S. ___ (2010); no. 08-1371] [U-451]
Argued April 19, 2010--Decided June 28, 2010

3.4.09   unanimous Iowa Supreme Court ruling on marriage rights
Varnum v. Brien [SC IA no. 07–1499 (2009)]     [U-381/2]

11.1.2012   established a “ministerial exception” for religious freedom
Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C. [565 U.S. ___ (2010); no. 10-553]        [NYR]
Argued October 5, 2011--Decided January 11, 2012

·      U.S. District Court of Colorado – Judge John L. Kane Jr. – issued a temporary injunction against enforcement of the Federal requirement for contraceptive coverage

http://www.adfmedia.org/files/NewlandPI.pdf

27.7.12   Judge John L. Kane Jr. issued temporary injunction on behalf of Newland family & Hercules Industries regarding presidential mandate ico
Newland v. Sebelius [USDC CO case 1:12-cv-1123-JLK (2012)] [U-555]
Dated: July 27, 2012

·     Christian Legal Society v. Martinez [560 U.S. ___ (2010); no. 08-1371; 28.June.2010] [451]

·      Varnum v. Brien [SC IA no. 07–1499 (2009); 3.April.2009] [381/2]

·       Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C. [565 U.S. ___ (2010); no. 10-553; 11.January.2012] [NYR]

·       Newland v. Sebelius [USDC CO case 1:12-cv-1123-JLK (2012); 27.July.2012] [555]

Franck went on to note, “It is that no one can claim, on behalf of an incorporated business he owns, any right of religious freedom or conscience that can trump a requirement of law.” [emphasis: the author]  Further, he said, “[T]here is a characteristic failure to perceive the legitimate contribution of religion to public discourse.”  There are points of agreement and many elements of disagreement; herein lies one key factor.  I would make precisely the same statement and implied accusation back to Matthew Franck.  The essential question appears to be, does religious freedom overwhelm all other freedoms and rights?  Thus, what place does religion have in proper public discourse?  Franck also quotes from Madison’s Memorial and Remonstrance [1785] and the Second Vatican Council’s Dignitatis Humanae [1965], as comparable documents espousing the place of religion in public debate, specifically from the “‘social nature of man,’ and the natural consequence that ‘he must profess his religion in community.’”

            In contrast, Joseph Story recounts in exceptional detail the legal creation of each of the colonies, or rather colonial states, as well as the evolution of political thought that contributed to the Declaration as our societal manifesto and the Constitution as the foundation of our laws and governance.  Story noted the importance of Protestant Christian religion in the formative years.  Even at the time of the Commentaries, the influence of religion remained pervasive, and while marginally more tolerant than the colonial era, the predominant Protestant religion continued to practice rampant discrimination against those who did not believe as they believed.  Story’s reflection upon the first phrase of the First Amendment, “In fact, every American colony, from its foundation down to the revolution, with the exception of Rhode Island, (if, indeed, that state be an exception,) did openly, by the whole course of its laws and institutions, support and sustain, in some form, the Christian religion; and almost invariably gave a peculiar sanction to some of its fundamental doctrines.”  Story concluded his assessment of the freedom of religion, “It was under a solemn consciousness of the dangers from ecclesiastical ambition, the bigotry of spiritual pride, and the intolerance of sects, thus exemplified in our domestic, as well as in foreign 'annals, that it was deemed advisable to exclude from the national government all power to act upon the subject.”

            To answer my previous questions, neither the First Amendment nor our laws exempt religious organizations from enforcement.  Religion is not an excuse for the imposition on other citizens.  Therefore, religion does NOT trump the law.  The difficulty for We, the People, rests upon balance.  The First Amendment prohibits the imposition of the State upon religion. However, there is an equally important implicit prohibition upon religion’s right to impose upon other citizens.  Thus, the question transforms into where do we draw the line?  What is the proper balance?  To me, the answers are simple, yet I recognize that to others they are not so simple, or rather others draw the line deeper into the private domain.  Let the debate continue.

On Sunday, 14.October.2012, at 14:05 [T] MDT, history was made when Felix Baumgartner jumped from a balloon gondola at 127,800 ft ASL, achieved a speed of M1.24 (834 mph), and broke numerous records, including the long-standing Kittinger record [16.August.1960].  Congratulations to Baumgartner and the Red Bull Stratos Team for a job well done.

On Tuesday, the Supreme Court denied the appeal and refused to hear the arguments in the expansive case of In re: National Security Agency Telecommunications Records Litigation {AKA Hepting v. AT&T [9CCA no. 09-16676 (2011); D.C. nos. 3:06-cv-00672-VRW; M:06-cv-01791-VRW]; 29.December.2011}.  The case was a collective of 33 cases regarding the National Security Agency (NSA) “Terrorist Surveillance Program” (TSP) – the warrantless electronic surveillance project.  I am a long way from reading all the contributing judicial documents, although we have reviewed some:

·      ACLU v. NSA [USDC MI(ED{SD}) no. 06-CV-10204 (2006); 17.August.2006] [245]

·      Al-Haramain Islamic Foundation v Bush [USDC OR no. 06-274-KI (2006); 7.September.2006] [343]

·      In Re: National Security Agency Telecommunications Records Litigation, the appeal of al-Haramain Islamic Foundation v Bush [2.August.2008] [343]

·      Al-Haramain v. Obama [USDC CA(ND) M:06-cv-01791-VRW (2010); 31.March.2010] [433]

Shortly after 11.September.2001, President Bush issued consent orders allowing the NSA to significantly expand electronic surveillance efforts in the War on Islamic Fascism.  The TSP remained secret, compartmented and highly classified until 16.December.2005, when the New York Times published “Bush Lets U.S. Spy on Callers Without Courts” by James Risen and Eric Lichtblau [210, 343] – 1^st public disclosure of the TSP.  Six weeks later, the President acknowledged that following 9/11 he authorized a “terrorist surveillance program to detect and intercept al-Qa’ida communications” and stated that the program applied “only to international communications, in other words, [where] one end of the communication [was] outside the United States.”  As is so often the case in this Grand Republic, the lawyers went into convulsions of effervescent excitement.  Congress did not miss the significance and importance to national security of the disclosure and subsequent legal actions.  On 10.July.2008, President Bush signed into law the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008 (FISAAA) [PL 110-261; HR 6304; Senate: 69-28-0-3(0); House: 293-129-0-13(0); 122 Stat. 2436] [344].  The specific law at issue in Hepting is §802 – Procedures for Implementing Statutory Defenses [122 Stat. 2468; 50 USC 1885a] added by FISAAA, Title II, §201.  The law allows the government to retroactively indemnify telecommunications companies that contributed to the TSP.  Circuit Judge Mary Margaret McKeown wrote for the unanimous three-judge panel of the 9^th Circuit Court of Appeals and declared the §802 constitutional.  She wrote, “The intelligible principle that comes through in the legislative history [of the FISAAA] is one of protecting intelligence gathering and national security information.”  Courts at all levels upheld the constitutionality of §802 and the Supreme Court implicitly concurred.  As a consequence, the court felt the law had minimal impact on any particular citizen’s 4^th Amendment protection.  History shall judge the validity of the law and these arguments in defense of the law.

Every so often, a judicial pronouncement sparks heightened curiosity regarding the logic and reasoning.  So, it is in the case of Sullivan v. United States {[2012] EWHC 1680 (Admin) Case No: CO/1672/2011} – an extradition petition to Her Majesty’s Government for the return of a fugitive-from-justice, American citizen – Shawn Eugene Sullivan.  The issue at hand did not involve the alleged crimes, rather that if extradited, Sullivan would be exposed to “a real risk” of detention “under a process known as ‘civil commitment’” in contravention to “Article 5 of the European Convention on Human Rights.”  The law in question before the British court was the Sexually Dangerous Persons Act 1994 [Minnesota Statute § 253B.185 – Sexual Psychopathic Personality; Sexually Dangerous] that provided for indefinite detention of any convict determined to be “irresponsible for personal conduct with respect to sexual matters and thereby dangerous to other persons” as evaluated by the Minnesota Sex Offender Screening Tool Revised (MnSOST-R).  To put this legal debate into a relevant perspective, Sullivan is alleged to have sexually assaulted two girls under the age of 13 during the autumn of 1993, in Dakota County, Minnesota, and raped a 14-year-old girl on 31.January.1994, in Hennepin County, Minnesota.  Local law enforcement interviewed Sullivan regarding the Dakota County crimes at about the time of the Hennepin County rape.  Sullivan fled the country shortly thereafter.  Further, he was convicted of indecent assaults on two 12 year-old girls in Ireland in 1997.  I know we are not supposed to rush to judgment before trial, but events begin to paint clear picture – Sullivan needs to face a jury and answer the charges in Minnesota.  Lord Justice of Appeal Moses (Sir Alan George Moses) decided the Minnesota civil commitment law had the potential to violate Sullivan’s rights, thus he denied the extradition petition.  Bad characters like Sullivan need to be in prison.  I certainly do not wish a bad man on the British people, but I suspect he will do more to invite incarceration in England.  One way or another, justice will visit the perpetrator.  My interest in this case sprang from curiosity surrounding Sir Alan’s reasoning; I agree with Lord Justice Moses.  Although he did not say it, sex makes us crazy.  Indefinite extra-judicial confinement is an instrument of state that nearly invites abuse. 

News from the economic front:

-- The International Monetary Fund (IMF) issued its World Economic Outlook, and lowered its forecast for global growth next year, as it criticized U.S. and EU policy makers for their failure to resolve their fiscal challenges, which is threatening to worsen an already “slow and bumpy” global economic recovery.  The IMF lowered its forecast for global economic output from 3.9% to 3.6%.  They also noted their forecast assumes the U.S. Congress will take action to avoid the sequester “fiscal cliff” and that eurozone governments will follow the European Central Bank’s plan to buy sovereign debt by committing to economic reform and closer integration.  The IMF outlook provided ample ammunition to critics of government austerity, concluding that governments had systematically underestimated the damage done to growth by tax rises and spending cuts.

-- U.S. Attorney for the Southern District of New York Preet Bharara filed a civil lawsuit on behalf of the Federal Housing Authority against Wells Fargo & Co., accusing the biggest U.S. mortgage lender of behaving recklessly in issuing federally backed home loans. The action is the latest example of prosecutors and regulators going after banks for alleged misconduct in the housing boom and financial crisis.

Comments and contributions from Update no.564:

“Loosey goosey! Not heard that one before Cap.

“Hear hear to your comment re Spain and Germany. I see Angela's getting a hard time today. As if it's the German's fault they have messed in their own kitchen (or bed as we Anglo Saxons might say.)”

My response:

Peter,

            Re: “loosey goosey.”  LOL  It is a highly technical term for one’s habit of not being very precise or factual with statements.

            Re: Merkel.  Spot on, brother.  I do not like what I see in Southern Europe . . . way too far down the socialist spectrum, verging on anarchy.  The Greeks, and to a certain extent the Italians (I do not know so much about the Spaniards & Portuguese), chose to not enforce their tax laws, granted exorbitant entitlements, and were otherwise generous beyond their means with their citizens; and, now they expect Germany to make good on all the borrowed promises of their government.  Not good for any of us.

Cheers,

Cap

My very best wishes to all.  Take care of yourselves and each other.

Cheers,

Cap                        :-)