Category Archives: constitutional

01/16/13

It Only Takes One

The President’s gun violence plan seems pretty reasonable. It doesn’t strike me as executive power too far. Without boring you the history, executive orders are constitutional, especially where they are made within the context of some explicit or implicit congressional authorization, see Dames & Moore v. Regan. Here, the President has tweaked the efficacy of certain already existing gun controls, especially as they relate to sharing applicant and background check information. While the plan makes an appeal to Congress concerning a ban on assault rifles, the orders themselves do not purport to accomplish any such thing. The plan provides for some additional gun violence research, and it appeals to more responsible gun ownership. It also appropriately emphasizes the role of mental health in this discussion focused mostly on weapons. But, precisely because this set of executive orders seems largely uncontroversial they are at the same time probably more gesture than change. And, that’s okay.

Of course, the NRA would, in a brand new ad, call the President a hypocrite because his daughters’ private school enjoys the security of armed guards.

I doubt they’ll recant even as his plan provides for:

School resource officers [who] are specially trained police officers that work in schools. When equipped with proper training and supported by evidence-based school discipline policies, they can deter crime with their presence and advance community policing objectives.

It would make too much sense for the two sides of this conversation, equally vested in growing the rate of non-deaths and un-kills, to see common ground where they are standing on it.

People would point to other first-world successes in violence free society. Europe, Canada, that awesome jungle moon in Avatar.

But, America’s just different. We have a deep gun identity.

We conquered with a gun.

We were colonially liberated with a gun.

Our union endured by the gun.

Cowboys.

Annie Oakley.

John Wayne.

Rambo.

Gangsters.

Gang bangers.

Yosemite Sam.

Separating us from our guns is more than an exchange of rationale arguments no matter how rationale they may be. It will take a weening not a divesting.

In today’s blong, I would simply add song to my prior point that the collusion of a gun-free society means we will always be susceptible to the threat of just one. But, I think I would rather live with that risk in mind than a kind of Home Room Saloon.

Performed by ipoetlaureate. Music produced by Dave Santos.

Today’s blong here:

High Noon

01/8/13

Red Ryder Air Rifle

James Holmes has appeared for his preliminary hearing yesterday and today regarding charges that stem from alleged involvement in the Colorado shooting at a showing of The Dark Knight Rises.

These kinds of gun atrocities have not, and have largely never been, committed by the typically vilified criminal element of our inner city gangs or drug communities. They are committed almost exclusively by white, middle and lower-middle class, student-aged young people, suffering some mental illness.

So putting more guns nearer to this demographic, to wit, guns in schools or carried by teachers, exacerbates, not cures, the risk. At the same time, it also makes gun regulation less effective since so many times possession, in these circumstances, is secondarily or tertiarily obtained. Because of my strong constitutional, rather than personal, view on gun possession, I have been hesitant regarding gun control. And, notwithstanding the horror, they are, as a statistical matter, improbable, and represent, all other things together, less violence than society has historically borne. But precisely for the relative violence free lives we live, these sort of concentrated incidents of massacre are all the more impossible for our increasingly non-violent expectations/psyche to handle. And, because the safety we enjoy is at least in part the product of collusion — our collective agreement to obey the rule of law — the better we “collude” the more easy and effective is any one individual’s ability to break from that agreement and open fire on a group of people unarmed and psychologically unexpectant. This is a gun access problem. We can either try to make them less scarce or go wild west. There isn’t a happy medium.

A last constitutional note. Just because I’ve read the Federalist Papers too many times, I still respect the theoretical idea, upon which our own Declaration of Independence is grounded, that a government can make itself so illegitimate as to implicate its citizenry’s right to take up arms against it. It’s happening in Syria right now. And, of course, it is impossible to exercise such a right against an illegitimate sovereign if you yourself have been, as a matter of that same sovereign’s rule, disallowed weapon possession. This is why the Second Amendment exists. But, we are at a point, notwithstanding all manner of action packed one-man-army cinema, that even heavy assault rifles in the hands of citizens will be of only a minor annoyance to a government that can turn back in on itself the most sophisticated missile based and tactically trained military in the world. I’m not sure, therefore, that the Declaration’s notion in this regard can endure as a modern day justification for private gun possession as so many would cry. If our government has the will and political capital to beat us up, there aren’t enough assault rifles in West Virginia and my home state, South Carolina, to even put an eye out.

james holmes

Today’s blong is a retread from the original.

Performed by ipoetlaureate. Music produced by pumpkinFoot.

Today’s blong here:

Dark Night

11/6/12

Color My Map

My wife couldn’t get over John King’s hands. (King, along with Wolf Blitzer, is one of CNN’s main electoral analysts on election night.) They were frozen in a sort of claw position no matter the gesture. I told her, “Uh. Everyone knows the molded action-figure-finger is the optimal hand positioning for manipulating the Magic Board.” Sheesk. She knows nothing about politics.

On another night where only “swing states” really mattered, John King’s crippled hands and political analysts, cable-wide, were literally swinging around digital states like misshapen blue and red pucks on ice. Grided counties and precincts and swirling percentages and exit polls and actual votes. It was like a math team had exploded.

This just in: I nailed my Montana prediction. Again.

The candidates have been campaigning relentlessly in places like Ohio and Pennsylvania and Virginia and Florida and Colorado for the chance that those states would swing to their ledger. Tonight Romney was only able to pendulum Virginia and Indiana and North Carolina, however. That was never going to be enough.

[For those of you keeping score at home, I went Obama, Romney, Obama on my predictions. Best 2 out of 3. Consider it "nailed."]

I don’t mind the political striation of our country. It’s pretty amazing really. America is not comprised of drastically red and blue states, although such creatures exist. I mean, places like Florida and Colorado are literally split down the middle 50/50. And, that’s a real impressive thing. Our political differences live on top of each other. Don’t let the map and King’s hobbled hands fool you. It’s not red in the middle and blue on the edges. It’s a puzzle of both throughout.

I’m thankful for the mad theater of our national presidential race. It’s like the Super Bowl and Family Fued all rolled up into one. It creates real democratic energy and I believe we will see that turnout was up again for a fifth straight election.

My wife also wondered out loud whether John King was married for his incessant breathless and auctioneer style talking. Surely not. And, she vowed that she would certainly call to tell me to stop if I were ever in his position. Did I mention she plainly knows very little about politics?? Incessant talking like a precious treasure.

Congratulations to President Obama. I believed he had earned a second term. And while I don’t publicly endorse, I had privately hoped. As I indicated, we would have been in capable hands either way. But, I’ve always sensed in President Obama a discretion that I could trust even over policy I could not.

Forward.

Written and performed by theipoetlaureate. Music produced djclutch.

Today’s blong here:

Swing State

09/23/12

Don’t Drop the Soap

There is a lot of hidden tragedy. So to get too dogmatic about one seems a high horse amongst Clydesdales. One in a crowd.

But prison rape to me has long been infuriating. (Not where you thought I was headed?) It’s just totally unacceptable, with any regularity, in a civilized criminal justice system.

It’s like fighting in hockey. Punching your opponent in the face isn’t “part of the game.” It’s called battery.

Rape isn’t “part of jail.” It’s torture.

And notwithstanding some alleged and unofficial policy of the US Government for a better part of the last decade concerning enemy combatants, torture remains illegal.

And yet, in this particular form it continues as an incident of serious prison life that we seem fine to ignore.

Just this week horrific videotape surfaced concerning the unspeakable mistreatment of prisoners in a Georgia detention center. (Georgia as in the East European country, not the United State, although that tape is probably coming soon — for the Georgia Bulldog football team, certainly, if not the State. Got ‘em.) It apparently includes footage of a man being sodomized with a broom. But prison rape and humiliation aren’t unique to faraway and emerging countries or some exception to the rule. It happens miles from your home. You just don’t have to give it much thought.

In some ways, the statistical occurrence of prison rape is probably inflated for its coverage in pop culture. But, it just has never struck me as something to be shrugged at over an incidence rate.

“Eh. My stogy in the bed only burned down the house once.”

And even where most prison assault is inmate on inmate, as we turn collectively from the truth about it or, worse, make it a part of our culture of irreverence in comedy or cinema, we abet.

Prisoners have recourse and access to courts. But, the constitutional burden to recover for injury suffered while you are incarcerated is fairly high. Prison officials typically cannot be liable in simple negligence. The standard applied usually requires some showing of deliberate indifference, in safety or medical attention or some other constitutionally significant interest, before liability will lie against them.

But even more than the fairly stacked deck of substantive law against them, there exist innumerable systemic obstacles to the inmate’s ability to fight for their own protection. No counsel. Uneducated in the law. Illiteracy. Limited access to legal materials. Bad handwriting. That whole toilet in the cell thing. Even their own apparent and, often, actual, untrustworthiness makes their claims hard to adjudicate fairly.

So the chances of them mounting any suit against a prison official, for deliberately ignoring their welfare in this respect, is dubious.

Although not similarly situated, it seems right that we ought to one day view this inhumane incident of prison life with the same horror that we now would the living conditions and arcane practices of orphanages and mental hospitals in the early and middle parts of the last century.

So, if you’ve been waiting for a prison rape blong, you’re welcome.

By the way, Patriots v. Ravens?? Hands down the worst officiated game ever. To the very last and deciding play.

Okay. Here we go. Prison rape time.

Performed by theipoetlaureate. Music produced by Dave Santos.

Today’s song blog here:

How Come

06/28/12

Battle of Wits

I mostly hate the cultish “Princess Bride.” I hate it precisely for other peoples’s exaggerated praise for it. Typically juvenile of me. “Oh, it’s dialectic is so rich.” “Andre the Giant is superb!” Whatevs. Rocky IV, by contrast, slays every time. “Whatever he hits . . . he des- thtrrroys!” (That’s thick phonetical Russian, right there.)

But, in reading the United States Supreme Court’s decision in National Federation of Independent Business v. Sebelius, I was reminded today of one of the movie’s most famous and hysterical scenes:

Two things.

First, I have no political or personal objection to the Patient Protection and Affordable Care Act.

Second, I think the individual mandate is probably constitutional as an exercise of the Commerce Clause power, according to how existing precedent would inform the scope of that power. That being said, I think existing precedent probably takes too expansive a view of the text. Unfortunately, that ship sunk decades ago.

So, as I make the following comments, I don’t mean to say that I disagree with the result of the Opinion, but only that I fell for two of the most classic blunders: (1) matching wits with a Sicilian when death is on the line and (2) provoking an Asian land-war.

Today’s case involved a challenge to the Affordable Health Care Act. There were two main objections to it. I would comment on the Supreme Court’s treatment of only one. The principal challenge to the Act concerned the constitutionality of an “individual mandate.” The individual mandate portion of the Act says that all individuals must carry health insurance or pay an annual penalty. In other words, “Aflac!”

But, before the Supreme Court could decide whether that mandate was constitutional, it had to determine if it could even hear the case.

The Anti-Injunction Act prohibits a court from considering a challenge to a tax before that tax has actually been collected. In other words, you have to have already paid the tax before bringing a lawsuit. You can’t preemptively challenge or “enjoin” a tax you don’t like.

If the “penalty” under the Healthcare Act, for violation of the mandate, is, in fact, a “tax,” then the US Supreme Court could not entertain the case. If it was not a tax, then the Court could.

Guess what the plurality opinion concluded?

The penalty is not a tax.

Having so concluded, the Court was free to consider whether the individual mandate was, in fact, otherwise a constitutional exercise of Congressional power.

There were two possible bases for finding the mandate constitutional.

1. Congress properly included the mandate as an exercise of its Commerce Clause power;

or

2. Congress properly included the mandate as an exercise of its Taxing power.

(I could explain these constitutional clauses to you but I could also Ped-Egg your back with a cheese grater. Suffice it to say, Congress has to be specifically authorized by a provision of the Constitution before it can do stuff. These are the two most commonly employed authorizations of power.)

There are 9 Justices on the Supreme Court. You need 5 to agree on the outcome of any issue. None have to agree as to the reasoning.

4 concluded that the mandate was unconstitutional under either power.
4 concluded that the mandate was constitutional pursuant to the Commerce Clause power.
1 concluded that the mandate was constitutional pursuant to the Taxing power.

[Punches TI-81. Graph mode.]

That makes 5 Justices concluding that the mandate was constitutional under some power. In other words, it stays.

Wait just a second. How can a mandate penalty that’s not a tax be constitutional pursuant to the Taxing power? Nice try, Chief Justice Johnny R. Obviously, “A clever man would put the poison in his own goblet because he would know that only a great fool would reach for what he’s been given.”

I’m of course not a great fool, so clearly you did not say that, for purposes of the Anti-Injunction Act, the mandate is not a tax but, for purposes of the constitutional analysis, it is? [Nervous laughing.]

And, you must have known me not to be a great fool — you would have counted on it — so clearly I cannot choose the wine in front of me or the not-tax in front of you or the tax not in front of either of us!? [Anxiously perspiring.] Wait, what are we talking about it??

To quote the Opinion of the Court, “Hey, look over there!”

Chief Justice Roberts then concluded by saying, “I switched glasses while your back was turned!! Hahahahahahahaha!”

Let me summarize:

To allow itself the opportunity to rule on the constitutionality of the mandate, the Court concluded that the penalty was not a tax. Then, to uphold the constitutionality of the mandate, the deciding jurist, Chief Justice Roberts, then concluded that it was — a tax.

Truly, a dizzying intellect.

Performed by ipoetlaureate. Music produced by DJ Transform.

Today’s song blog here:

Shell Game

05/8/12

For and Against Part Deux

North Carolina voted today to approve a constitutional amendment that would essentially prohibit same-sex unions of whatever name or design. The amendment reads: “Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State.” The language will effectively bar the state from giving legal recognition to civil unions between same-sex couples and likely has some far-reaching and even unintended consequences for families and children right now.

I don’t think I can say it any more diplomatically than I did when NY passed its same-sex legislation last June. So, I’ll self-plagerize and recycle the blong from that entry.

My audience is compromised of people who have deeply held convictions about this issue on both sides. And, many probably think they know my view. For personal and professional reasons, I am largely private about it.

Suffice it to say, I am for personal responsibility before God.

I am for self-determination in life and love.

And, I am for liberty in a pluralistic democracy.

Where these are found, I’m for it.

I am against bad and abusive relation.

I am against neglectful parents.

I am against failing our commitments.

Where these are found, I’m discouraged.

Many people believe that legal constraints, like the NC amendment, will preserve the sanctity of our traditional and heterosexual marriage. But, they are confused. Our modern marriage is already sick and soulless.

Let us all be for vibrant, committed, and God-fearing marriage.

Performed by ipoet. Music produced by Gudo.

Today’s song blog here:

A Little Less Somehow

03/26/12

The Stream

Sorry that things have been a little slow. Preparations for TEDxGreenville, in addition to the normal ramping of spring activities, have left me pretty thin. I’m hoping a couple more posts before this Friday’s presentation.

Until then, an oldie from the archives, below, in light of the Supreme Court’s consideration of the health care bill and mandate. Please, please do not read CNN or MSNBC or Fox for your information on it. There are too many expert and original source sites. I recommend this one.

Following CNN for legal analysis is like buying your milk at Bo-Nats. I mean, they’ve got it, but you’re probably getting dysentery.

Performed by ipoetlaureate.  Music produced by Juicebox Jackson.

The Way We Should Die

10/26/11

Drowning in a Puddle

So, they are evacuating Bangkok in anticipation of horrendous flooding. But, every time I’ve done an Act of God song, see,e.g., here, here, here, here, here, and here, it sounds like a leftover ballad from Farm Aid. There just isn’t much of an angle beyond, “Wow, this is really sad” and “man, the Earth sure is powerful.” So, I passed. The European Union came to an agreement regarding its debt crisis, and Greece specifically. But, I either missed it earlier or the news did not break until I was essentially done with today’s blong. Plus, a song about European economic policy might make the ladies swoon.

Earlier this afternoon, I had a homeboy message me concerning the People for the Ethical Treatment of Animals’ (PETA) recent lawsuit against SeaWorld for the enslavement of six Orcas. PETA alleges that their captivity violates the 13th Amendment’s slavery prohibition. As a constitutional matter, specious (although interestingly the Amendment is not circumscribed by words like “person” or “citizen” or “naturalized person/citizen” as is elsewhere found). As a human one, maybe not so much.

I LOVE SeaWorld. I remember, and probably still have, those molded plastic animal sculptures that you’d get out of the ginormous vending machine style dispenser and how they’d still be partially molten when they dropped. I think I had a pink dolphin. We took our kids, probably 4 years ago, and they sweated like little sweet potatoes in the Orlando bunsen burner of a sun but loved every minute. “Shamu” in particular. I mean the divers would literally ride, standing on the nose of the orca under water, until it shot them both high into the air. It was stunning.

So, the issue of animals in captivity is a difficult one. That’s where a lot of them are, really. Captivity. We eat them, domesticate them, wear them, hunt them, mount them. I was sort of enraged over the self-righteous view of many that Michael Vick’s atrocities, and they were unspeakable, were of some different order than the more culturally acceptable ways we casually kill or mistreat animals. For your lunch, let’s say. The chicken farmer didn’t have to have any of the malice or sadism others would project on Vick, for the experience to be just about as awful for the dead chicken as the dog.

So, it seems we tend to judge the humaneness of an act in regards to animals based on (1) our view of the human motives (distinct from the objective pain suffered by the animal) and (2) the capacity of the animal to be conscious of any suffering or harm incidental to, or directly caused by, the activity.

So the “sportsman” is seen as respecting animals because he (or she) hunts by some sort of chivalry code that “honors” the game. Their motives are different than the cock fighter. This was the sort of thing you heard about the Federal Judge who presided over Vick, like he had some moral authority, as a hunter, to condemn Vick for animal abuse.

This is not to disparage hunting. It’s to encourage consistency.

So a place like SeaWorld is hard to condemn. It reasonably sees as an accolade to its credit that the top zoologists, biologists, and animal lovers in their respective fields attend to the creatures it harbors. But, treating well someone you mistreated in the first instance doesn’t seem`very commendable. It’s like punching a friend in the eye and then handing them a top of the line ice pack. Or Tim Tebow mounting an “heroic” come back from the score deficit his own bad play created. (Second appearance of the word “mount” in this post.)

I have no idea how the animals feel about it. PETA is pretty fired up.

The worst part about slavery is that it’s not death. You live the hell, not escape it. In rhetoric, I would steer pretty well clear of associating animal captivity with slavery. We know what human captivity is and their seems to be an injustice in correlating the two.

Even still, to hold animals against their will and out of habitat to the affect of any misery at all seems something less than we should strive for. It’s not really a question of whether we can but whether we should. I believe that over time we can grown in our moral sensibilities. Maybe, we are not obligated to consider the well being of a cow in the same way as we consider our own but if the luxury of our philosophical and moral advancement allows us the intellectual perspective to close the gap on the two, then maybe that’s good.

I’m not ready to shut SeaWorld down. I sure wouldn’t call their activity slavery. But, maybe over time we can choose better.

This is one of those weird nights where I chose a song topic, began writing, and then peered into my library of beats and there was one of almost perfect sonic compatibility. I mean how many beats in the universe have what appear to be whale or dolphin squeals in the background? And, somehow I had one on hand?

Performed by ipoet (d/b/a Tom Lawyer). Topic by Conduct Lionhardt. Music produced by djclutch off his forthcoming Beat Tape ’11 (spoiler alert!).

Today’s song blog here:

No Room

03/3/11

Of Public Concern

The Supreme Court returned an 8 to 1 decision today, in Snyder v. Phelps, C.A. No. 09-751 (March 2, 2011), which held that members of the Westboro Baptist Church had the constitutional right to picket military funerals to express views of “public concern.”  Public concern is a term of art used to describe highly protected speech that implicates matters which can be fairly considered as relating to political, social, or other community interests.  In this case, the members of Westboro Baptist Church, over a 20 year period of time, have used military funerals as a vehicle to protest and prophesy the judgment of God over the alleged sexual sins of America, principally homosexuality and child abuse in the Catholic church.  The Supreme Court’s decision protected, in the absence of reasonable state law restrictions on the time, place, and manner of such protest, signage that expressed among other and equally horrible things, “America is Doomed”; “Pope in Hell”; “Semper Fi Fags”; and “God Hates You.”

I’ll say two things:

1.  The Supreme Court largely and likely got it right.

2.  Just because you can, doesn’t mean that you should.

Have pity on us.

Performed by ipoet.  Music produced by dj clutch, of course!

Today’s audio here:

god Hates You

02/21/11

President’s Day: The Least Powerful King

I bit off more than I could chew this time.  I waited too late and tried to do too much.  For some reason, in tribute to the day, I thought it would be interesting to chronicle all 44 presidents in today’s blong.  Not so interesting.  The delivery trails off so poorly about midway through the second verse that it sounds as though I’m being gently mauled by ground shrew.  In my defense, I wrote about 116 bars which I was determined to deliver in a single take, without punch-in.  But, that only works if I mean for my defense to be simply one of moronity in the first instance, for even trying.  Actually, I’m pretty proud.  This song is going to melt your face off.  In a very sort of presidential way, of course.

One of the most interesting aspects of our Chief Executive is the relative weakness of the position.  No leader of the greatest country or empire in the world has ever been so constrained.  And, yet, by constitutional design we divide the authority, traditionally centralized in the single person of history’s most accomplished kings and conquerors, among three coequal branches of government.  But, in our checks and balances, we have not been thwarted in producing greatness not only of country but of the particular and specific office of the president.

As a timely counter point, off of which I intended to pivot in the song but for time and exhaustion, the reaction of dictator’s and kings and puppet democracies in the middle east to assembly and free speech in the recent protests, including Libya, reminds us of the alternatives.

Like antiquity’s monarchs and warlords, our lesser “kings” have been of a mixed quality, some good some bad, some successful some impotent.  But, the office has had enough credibility to consistently, if not always, inspire us to real passion and ingenuity and goodness before the world.

Of course, to claim relative weakness of the presidency is never to forget that our executives have had more than sufficient power to exercise abuse in the same way government has for all of our history past.  But we believe, and endure, hoping that the abuse is dulled, in the first instance, and reversed with greater swiftness, for the constitutional limits, than were it otherwise.

Performed by ipoet.  Music produced by nomold.

Today’s audio here:

The Least Powerful King