Saturday, January 29, 2011

The U.S. Constitution - Lesson #15: Supreme Court Jurisdiction & Treason

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So during the last, I stopped about midway through the the Section 2 of Article III.  I totally skipped the parts dealing with the original and appellate jurisdiction of the Supreme Court.  I will address those last two clauses of Article III before I move on to the last section of this article.  And away we go.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction
This clause of the Constitution lays out the original jurisdiction of the Supreme Court.  Original jurisdiction is the authority to hear a case before any other court.  The Supreme Court has this authority in only two cases.  The first would be that where an ambassador or any other foreign representative is a party.  My research does not reveal to me why this areas is an important jurisdictional areas for the Supreme Court, but I can fancy a informed guess.  It would appear to me that an foreign representative would be hard pressed to find an unbiased jury in any state where they were charged with a federal crime.  The Supreme Court does not work by jury trials so they can look at the law and not the passions of the states and their citizens.  Also, with the advent of diplomatic immunity, I do not foresee many cases going before the Supreme Court on this issue.

The other area in which the Supreme Court has original jurisdiction is when a state is a party to an issue.  This may include if the federal government also has an issue with a state in question.  Though I am not sure why the Supreme Court does not instantly hear the case of U.S. v. Arizona over SB 1070.  If anyone has an answer to that let me know.
In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
The Supreme Court has the authority to review all  other cases with this clause in the Constitution.  The Congress though has the authority to alter this by law.  The case of Marybury v. Madison outlined this principle very well.  The Judiciary Act of 1789 purposely changed the original jurisdiction of the Supreme Court.  When Marbury then sued to get his judgeship from James Madison at the Supreme Court they struck down his case because the law changed the Constitution; it went against the Constitution by changing the courts original jurisdiction.

The long and short of it is that the Congress has granted the Supreme Court since 1925 to have discretionary jurisdiction over appeals.  They can choose what cases they want to hear on appeal from the state supreme courts and the federal courts of appeals.  Over the course of a year the Supreme Court gets over 7,000 writs of certioari abut only hears and makes judgments on about 100 every session.
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
This clause in the constitution protects every citizen a right to a jury trial where the crime was committed.  This is also protected in the 6th Amendment to the Constitution.  The restriction on the location of the trial was in direct response to the British sending American colonist oversees for trials in England for crimes committed in the colonies.  This is meant to prevent the government from putting a citizen on trial away from the community in which it was committed.

The last phrase is very interesting for us today.  If a crime was not committed in any state then the trial may be in the location as Congress may direct by law.  I would imagine that this means any terrorist caught oversees could be tried in military tribunals out of the civil courts.  But this also means they could pass a law forcing these trials to be held in our civil court.
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
Treason is the only crime to be mentioned specifically in the Constitution.  It also sets a very high standard by which a person must be convicted of treason.  Why we haven't tried to convict the American Taliban we have found over the years of treason is beyond me.  I am sure there is enough evidence to do so.
The Congress shall have power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
The corruption of blood is an ancient term that most do not understand in our Constitution.  The basic idea behind the term is that the government could not revoke the inheritance of the descendants of a traitor.  Meaning if you inherited something from your dad, who was a traitor, the government could not take it away from you.  To take it a step further, a child could not be punished for the treason acts of their parents.

That does it for Article III.  Next week we will start to look at Article IV that outlines the major parts that make our government a federalist system.  I will also address, that while I may not agree with gay marriage politically or in the Biblical sense, that the Supreme Court must strike down the Defense of Marriage Act.  I'll see you all next week.

Questions?  Comments?  Concerns?  Class dismissed!

Thursday, January 27, 2011

2011 State of the Union: The Good, the Bad, and the Ugly.

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As promised, today's article will focus on the Presidents State of the Union address that he made on Tuesday night.  Overall I was impressed with some of the things he said and wants to implement, but we will see if he actually follows through.  The statements presented are direct quotes from the President's speech.  They are not presented in any chronologically order but according to the following way.  "The Good" focuses primarily on the points made in the President's speech that I support.  "The Bad" focuses on the points made by the President that I would disagree with.  "The Ugly"are parts of the speech where the President is just plain wrong or characterizes the facts wrong.  I hope you enjoy.

The Good
We need to get behind this innovation. And to help pay for it, I'm asking Congress to eliminate the billions in taxpayer dollars we currently give to oil companies. I don't know if you've noticed, but they're doing just fine on their own. So instead of subsidizing yesterday's energy, let's invest in tomorrow's.
 I can support this statement by the President for one reason.  We need to stop subsidies to ALL energy producers, oil, coal, gas, and green.  Only by knowing the true price of a product can the market actually decide on whether it should succeed or not.  If solar and wind power is cheaper it will win.  But don't subsidize it to hide the true cost.
That responsibility begins not in our classrooms, but in our homes and communities. It's family that first instills the love of learning in a child. Only parents can make sure the TV is turned off and homework gets done. We need to teach our kids that it's not just the winner of the Super Bowl who deserves to be celebrated, but the winner of the science fair; that success is not a function of fame or PR, but of hard work and discipline.
As a teacher I agree with this statement.  There is much to be said on the effect of socio-economic status (SES) has on a child's education.  But the parents need to be responsible to make sure their kids know how to read and do their homework.  This can be done whether your rich or poor.
So tonight, I'm asking Democrats and Republicans to simplify the system. Get rid of the loopholes. Level the playing field. And use the savings to lower the corporate tax rate for the first time in 25 years – without adding to our deficit.
Here, Here, Mr. President!  The tax code is too complex.  Also corporate taxes are rarely paid by the company but by the consumer in higher prices for the products and services they provide.
To reduce barriers to growth and investment, I've ordered a review of government regulations. When we find rules that put an unnecessary burden on businesses, we will fix them. But I will not hesitate to create or enforce commonsense safeguards to protect the American people.
I agree with the President on this in principle.But how many regulations are now being made with the  implementation of his health insurance and financial legislation passed this year.  How many regulations would be put in place because of a Cap and Trade legislation he wants to get passed?  These all hurt businesses.
This means further reducing health care costs, including programs like Medicare and Medicaid, which are the single biggest contributor to our long-term deficit. Health insurance reform will slow these rising costs, which is part of why nonpartisan economists have said that repealing the health care law would add a quarter of a trillion dollars to our deficit. Still, I'm willing to look at other ideas to bring down costs, including one that Republicans suggested last year: medical malpractice reform to rein in frivolous lawsuits.
Good Mr. President, go after the waste, abuse and fraud in and you will find hundreds of billions in savings.  I am surprised he is going after the trial lawyers, but more power to him.  It has been touted that 25-40% of health care costs are related to frivolous medical malpractice lawsuits.  That would not only help out the government but the regular Joe by lowering his costs in health care free of the government.
We live and do business in the information age, but the last major reorganization of the government happened in the age of black and white TV. There are twelve different agencies that deal with exports. There are at least five different entities that deal with housing policy. Then there's my favorite example: the Interior Department is in charge of salmon while they're in fresh water, but the Commerce Department handles them in when they're in saltwater. And I hear it gets even more complicated once they're smoked.
I have been saying this for years.  I have a plan currently in process that I might post to this site in pieces over the next few months.
Because you deserve to know when your elected officials are meeting with lobbyists, I ask Congress to do what the White House has already done: put that information online. And because the American people deserve to know that special interests aren't larding up legislation with pet projects, both parties in Congress should know this: if a bill comes to my desk with earmarks inside, I will veto it.
The Obama did object to Bush trying to hide the ledgers that stated who he was visiting with.  Though when he came into office he defended the policy.  I would like to know this information.  Also I hope he can stand behind his pledge to veto earmarked legislation.  Bush promised that every year but was too much of a chick shit to actually do it.  If he did this he would have my respect, right off the bat.
And if we truly care about our deficit, we simply cannot afford a permanent extension of the tax cuts for the wealthiest 2% of Americans.... In fact, the best thing we could do on taxes for all Americans is to simplify the individual tax code.
Another great idea that people have been touting for years.  Let's get it done.

The Bad
Our schools share this responsibility. When a child walks into a classroom, it should be a place of high expectations and high performance. But too many schools don't meet this test... we launched a competition called Race to the Top...  And Race to the Top should be the approach we follow this year as we replace No Child Left Behind with a law that is more flexible and focused on what's best for our kids.
No Child Left Behind and any other federal education program is unconstitutional.  They should be eliminated.  The last thing education and schools need is another level of bureaucrats in the mix.  As a teacher I know how much bureaucracy kills teachers and schools.
And this year, I ask Congress to go further, and make permanent our tuition tax credit – worth $10,000 for four years of college.
It is not the job of government to subsidize a college education.  I know I got a government subsidized loan to go to college, but that does not mean it was right or constitutional for the government to do so. 
Within 25 years, our goal is to give 80% of Americans access to high-speed rail, which could allow you go places in half the time it takes to travel by car.
Mr. President the one national passenger train system has not made a profit in years.  Americans don't want trains.  Americans love the freedom of driving their cars not sitting on a train.  If anything up date the interstate system to handle more and faster cars.  Though infrastructure investment does not spur economic growth.  Japan tried that for years with no luck at spurring permanent economic growth.

The Ugly
Now, by itself, this simple recognition won't usher in a new era of cooperation. What comes of this moment is up to us. What comes of this moment will be determined not by whether we can sit together tonight, but whether we can work together tomorrow.
With this quote early in his speech, the President talks like he has been a nonpartisan leader instead of ignoring most of the suggestions of the opposing party.  This is the same president who over two years ago said to Republicans "I won" when asked about compromise on his stimulus package.  Where did this heart for bipartisanship come from?  I know from where, the massive electoral switch that was made in November. 
Thanks to the tax cuts we passed, Americans' paychecks are a little bigger today.
You did not pass any tax cuts you merely extended the present tax rates to make sure you party did not get the blame for worsening the economy.
What we can do – what America does better than anyone – is spark the creativity and imagination of our people. We are the nation that put cars in driveways and computers in offices; the nation of Edison and the Wright brothers; of Google and Facebook. In America, innovation doesn't just change our lives. It's how we make a living.
Our free enterprise system is what drives innovation. But because it's not always profitable for companies to invest in basic research, throughout history our government has provided cutting-edge scientists and inventors with the support that they need. That's what planted the seeds for the Internet. That's what helped make possible things like computer chips and GPS.
In the first paragraph the President talks about all these innovations, none of which were created by the help of the government but by private investment.  Research has moved to the universities because the government gives them money to do it.  So why should a company spend money on research if they can save the money and buy it from the group that gets it's money from the government.  The Internet is a product of the government, but private enterprise is what made it the freest market in the world.
Take a school like Bruce Randolph in Denver. Three years ago, it was rated one of the worst schools in Colorado; located on turf between two rival gangs. But last May, 97% of the seniors received their diploma. Most will be the first in their family to go to college. And after the first year of the school's transformation, the principal who made it possible wiped away tears when a student said "Thank you, Mrs. Waters, for showing… that we are smart and we can make it."
What President Obama fails to mention about this school is that they were able to free themselves from the district and state bureaucracy to make these changes.  They were able to avoid the entrapment of the teacher's unions as well.
Now, I strongly believe that we should take on, once and for all, the issue of illegal immigration. I am prepared to work with Republicans and Democrats to protect our borders, enforce our laws and address the millions of undocumented workers who are now living in the shadows.
Why is it after two years you are finally open to actually enforcing the laws of this land?   First step, stop the lawsuit against the state of Arizona.
Now, the final step – a critical step – in winning the future is to make sure we aren't buried under a mountain of debt.
We are living with a legacy of deficit-spending that began almost a decade ago. And in the wake of the financial crisis, some of that was necessary to keep credit flowing, save jobs, and put money in people's pockets.
But now that the worst of the recession is over, we have to confront the fact that our government spends more than it takes in. That is not sustainable. Every day, families sacrifice to live within their means. They deserve a government that does the same.
So tonight, I am proposing that starting this year, we freeze annual domestic spending for the next five years.
What I find funny is NOW he wants to freeze spending after he has added more to the debt than all Presidents from Washington to Reagan.  NOW he wants to attack deficits after he has proposed deficits that are larger than all of the Bush deficits combined.  Get real Mr. President.  The fact is that your savings are a bit off.  It will save us a combined $20 billion a year to freeze our spending.  That is less than a drop in the bucket for our government spending.

Conclusion
Their were some bad things, all related to programs that don't work  or are unconstitutional.  The Ugly aspects of his speech really worry me though because of just how wrong he is in those areas.  But if the president can deliver on the good promises he made in this speech he may even convince me to vote for him in 2012.  I know shocker!

Questions?  Comments?  Concerns?  Class dismissed.

Tuesday, January 25, 2011

Public Policy: Abortion

On this day every year, their are always huge marches on Washington, D.C.  The reason for the marches is that today is the anniversary of the Supreme Court Decision of Roe v. Wade.  Many people come to protest that decision by the court.  The court case that effectively made the state's right to regulate such a medical procedure unconstitutional.  Today the focus of the blog will be on this historic event and contentious issue.

A Brief History of Roe v. Wade
Norma McCorvey (know as Jane Roe in court filings) found out she was pregnant with her third child and wanted to abort the pregnancy.  Her friend convinced her that she admit that she was raped, since Texas allowed abortions in the case of rape or incest.  Her plan failed when their was no police report about the alleged rape.  She attempted to get an illegal abortion and found it closed by the police.  She then filed a suit in U.S. District court.  The district court ruled in the petitioner's favor due to the precedent set by Griswold v. Connecticut that said the state did not have a right to stop the use of contraceptives.  It reached the Supreme Court where it was argued twice.

Decision of the Supreme Court
The majority opinion of the Supreme Court had several arguments.  First that the Texas law on abortion was too vague.  The main arguments of the Justices spawned from the Ninth Amendment, which protects those rights not listed in that Constitution.  In this case, it fell in the realm of the right of privacy in personal medical decisions. As stated in the LC-MS Commission on Theology and Church relations document Abortion in Perspective, "the Court held that abortion could not simply be prohibited, such prohibition being a violation of the woman's constitutionally guaranteed right of personal privacy. The Court also held, however, that this right was not  unqualified but was limited by other important interests of the states, if such could be shown to be pertinent here" (11).

The Supreme Court found that a two interests in which the state may have a compelling interest to justify regulations on abortion.  First, the interest of the state to protect the health of the pregnant mother. Secondly an interest in protect the potential human life.  In the first interest the court said that mortality rates of abortions (i.e. how many people die while performing the procedure) are less than natural child birth.  So a state could only justify a regulation to protect the life of the mother, like it must be performed in a properly licensed facility.  In the second interest the court found that the state has no interest in protecting the life of the unborn unless it is viable outside of the mother.  The court imposed the trimester system in place to say where the state had an interest in regulating abortions; this was further modified in future decisions.  Currently the court holds that the state may regulate the use of abortions to protect the life of the unborn if they can life outside of the womb, even with medical devices.  As you see the decision does not protect the right to abortion on demand, but only states when the states can regulate the use of such a procedure.


My View on Abortion
Protection of Life
The main reason to be against abortion is the protection of the inalienable right to life as stated in the Declaration of Independence and other political philosophers in the period of the Enlightenment.  The child has a right to life and to live.  It is the job of the government to protect the life of all its citizens.  These unborn babies in the U.S. are technically citizens of the individual states and the United States.  The U.S. therefore has an qualified right to make and enforce laws that protect the life of this child.  Even a child conceived from rape or incest deserve to live which brings me to my next point.

Here is an interesting take on this way the decision is designed.  As medical technology increases, to be able to sustain life outside of the womb the states could regulate the use of abortions more.  Since the state has a interest in the protection of the life of the unborn if it can exist outside the womb, with assistance, earlier and earlier in a pregnancy than abortion regulations could made illegal earlier and earlier in a pregnancy.

Abortion Alternatives
If a parent does not want a child their are plenty of viable alternatives other than taking the life of the unborn.; adoption being the most likely.  This means in cases of rape and incest this means a mother has to live with that evil act for nine months.  It is obvious that the mother may not want to be reminded of this act later in life after the child is given up for adoption.  The states should write laws to protect the identity of the mother and father of those who put up their children for adoption.  So they may not be found by their child, if they do not want.  This will not end a child from looking and possibly finding their mother or father but it does provide them some protection.  The state, working through private charity, should also help support these women in their choice to protect the life of the child conceived through criminal and evil means.



The Right to Privacy


Medical Exceptions
Michael Savage said in his new book "Trickle Up Poverty," that he would make abortion illegal "with the exception of the physical survival or the mother-to be determined by two licensed medical doctors.  This should be the policy of the states.  I have expressed to my wife before we got married, that if while pregnant the doctors told me I could only save my wife or my child, I would choose my wife every time.  And I would probably live with the guilt of that decision the rest of my life, knowing my decision probably ended the life of my child.  I am open to exceptions in conception due to rape and/or incest, but I lean more towards not allowing them in those situations due to my other arguments from above.

Rights of the Father
Their is so much talk about the rights of the mother and her privacy; what about the rights of the father?  A woman who gets pregnant with a long term boyfriend, or even a one night stand can make the choice to abort the child without so much as contacting him.  The child is just as much his as it is the mothers.  If the child is conceived by a sexual act with the mutual consent of both partners the rights of both parents should be respected.  The rights of the father should be protected as much as the mothers.  Obviously the rights of the father in an illegal sex act, such as rape and/or incest would not apply in this case.

I hope you enjoyed reading.  Next time (Thursday), I will have for you a breakdown and analysis of the President's State of the Union Address, which he makes on Tuesday night.  I hope to read a lot of lively discussion on this topic.  Facebook friends, come and subscribe to my blog on the original site (http://ajbulava.blogspot.com).  Questions?  Comments?  Concerns?  Class dismissed