The Rights of the People

Prop 8: Majority Rule Of Minority Rights

Today the Supreme Court of the United States (SCOTUS) is hearing the case regarding the constitutionality of California’s Proposition 8 (Prop 8) which made same-sex marriages in the state illegal.  Two lower courts have overturned the proposition, so the question of whether the Supreme Court could intervene was brought into question since the lower court’s ruling was not overturned by the Appeals Court.  Also called into question was whether the federal courts could decide an issue that was based solely in the states which would be based on 10th Amendment to the US Constitution.  (SCOTUS blog)  However, SCOTUS is hearing the case and will be making its ruling later this year.  It could indeed overturn the lower courts on the grounds of the 10th amendment, but it’s not likely since there has been a precedent set by such cases as Lawrence v. TexasRomer v. EvansLoving v. Virginia, and even Brown v. Board of Education.

Though the Appeals Court did not overturn the lower court’s ruling, there was a difference between the two.  The lower court ruled that a majority vote cannot strip away the rights of a minority.  Basically, this would make all constitutional bans on same-sex marriage null and void if upheld and not just California’s Prop 8.  The Appeals Court would rule that it just applied to California and to no other state because same-sex marriages were legal before Prop 8 was passed thus stripping away the rights once they had been granted; whereas, other states simply banned same-sex marriage before it became legal.  So there are two ways for the Supreme Court to rule if it upholds the lower courts.

gay-marriage-debate-thumb-320x240-9845We’ll start with the lower court’s ruling that a majority vote cannot strip away the rights of a minority thus making all the state constitutional bans unconstitutional.  Thomas Jefferson would have disagreed with this notion.  He felt that since we had such a diverse population that the will of the majority should always be upheld since it would be void of outside influence and would point the nation in the best possible direction.  However, we have the luxury of a bit more history to look back on than Mr. Jefferson did.  We can see that the will of the majority is not always correct.  Case in point the Territory of Wyoming.  When the territory was set up in 1868, it included the right for women to vote.  This was long before the passage of the 19th Amendment (1920).  When Wyoming applied for statehood, the federal government said it would have to get rid of its suffrage in order to be admitted since the rest of the US didn’t allow women to vote, and it was still the majority opinion that they shouldn’t.  The territorial government refused to budge and said it would wait for the rest of the country to catch up.  Wyoming would be admitted in 1890 as the 44th state without giving up the right for women to vote in the state.

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”  9th Amendment

supreme-courtIn Afroyim v. Rusk (1967), the Supreme Court ruled that Congress could not strip away a person’s citizenship which is guaranteed under the Citizenship Clause of the 14th Amendment.  With this ruling though, the court was stating that once you have a right, it cannot be stripped away.  In Brown v. Board of Education (1954), the Supreme Court ruled that states could not establish separate schools for black and white students (state-sponsored segregation).  As a result, racial segregation in all matters was ruled to be in violation of the Equal Protection Clause of the 14th Amendment.  It did not matter if a state had passed segregation laws or not.  The case Griswold v. Connecticut (1965) set the legal precedent for the 9th Amendment to the US Constitution.  Though the case pertained to a person’s right to privacy, the ruling had something more to it.  In writing his concurring opinion, Justice Arthur Goldberg stated, “Other fundamental personal rights should not be denied protection simply because they are not specifically listed [in the US Constitution].”

The Supreme Court has already ruled that government cannot ban interracial marriage (Loving v. Virginia, 1967), so what would be the difference between that ruling and the ruling to come regarding Proposition 8?  Opponents to interracial marriage were making the same arguments then that opponents to same-sex marriage are making now.  It’s not so much whether Prop 8 is going down or not.  The real question is going to be how and the full effect of that ruling.  Will it be more in line with Afroyim and thus would technically only apply to the state of California (since they are the only state to strip away the right to same-sex marriage after it was granted), or will it be more toward the Brown and Griswold rulings which would negate all same-sex marriage bans?  Though it has been completely overlooked, will the precedent set by the 9th Amendment come into play as much as the Equal Protection Clause of the 14th Amendment?  These questions will be answered in a few months when the court’s decision is announced, but it will be felt for ages to come.

UPDATE:
Prop 8: Oral Arguments – Audio
Prop 8: Transcript

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By Popular Vote
Unconstitutional Proposition

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Who’s Watching

It was reported in a recent article in Governing magazine that several cities across the US are installing audio surveillance systems on their public buses, which has sparked a debate over privacy concerns and whether or not this particular type of surveillance violates wiretapping laws or maybe even the Constitution.

We have grown accustomed to their being cameras recording our movements when we are out and about… when we go to the bank, into a store, and even in places in restaurants and bars.  There are the occasional complaints that these violate our right to privacy, but the counter to that is that we are not entitled to privacy once we leave the confines of our homes.  When out in public these days, anyone can be taking your picture or video and posting it online… and usually we will never know anything about it.  But for some reason we like to make a big deal when organizations and companies attempt to bring about surveillance mostly as a way to curb violence and crime.  Growing up and riding the bus to school, I can still remember when cameras first showed up on my school bus.  But that camera like all the others have remained mute.  There is no audio.  They were only designed to capture actions and not words.  So there in lies the difference between what we come to think of with security cameras and the types of cameras these cities are trying to use.

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”  4th Amendment US Constitution

video-surveillance-signAs we have basically accepted surveillance cameras as a way of deterring crime, what is it that they expect from capturing audio, as well?  According to the article in Governing, it’s to provide safety and to resolve public complaints.  But could adding audio to the surveillance really add anything to what the video camera is already showing?  I guess it’s a possibility.  It could easily show that the person that just started beating another was actually being taunted and teased consistently by another passenger.  But is it worth that extra step since the guy that started beating the other is guilty of assault that the video captured.  Does hearing the audio of that person being teased make it any less of a crime?  Not one bit.  So is the audio even worth it then if it would have no direct effect?  As for others that might be plotting something big (i.e. a bank robbery or terrorist plot) are generally not going to be sitting in a public place where they could be overheard by any number of people sitting around them.  So again, it easily takes out the justification for needing the audio.

Footage from video surveillance cameras can be used in court so long as the footage was obtained with a warrant, but could audio be used in the same capacity?  Privacy groups say this could easily fall under wiretapping laws, which technically requires the government to get a warrant first.  In Kyllo v. United States (2001), the court holds that unlawful search and seizure extends to unlawful use of public space in order to gain private information.  Evidence obtained is inadmissible.  However, the Patriot Act gives the government the authority to listen to our phone calls and read our emails if they feel there is a threat without such a warrant, but would the legality of audio surveillance fall under that particular federal law since it doesn’t particularly involve those two things?  And it still remains to be seen how that particular part of the Patriot Act doesn’t violate the 4th Amendment as well.  But to counter the wiretapping laws, one could argue that in a public space a warrant isn’t needed since anyone can overhear anything you’re saying, and you cannot make the assumption that the conversation you are having in a public space is private; therefore, it would not fall under the wiretapping laws.

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”  9th Amendment US Constitution

Do we have a right to privacy?  Yes… in our private residences.  The moment we step out the door, we are no longer guaranteed that particular right as we are then in a public space.  We may not like it, but that is the overall simplicity of the matter.  Does that justify that these cities have a right to install audio surveillance with their video on public buses?  Not necessarily.  Just because you are able to do something doesn’t necessarily mean that you should.  The people in these cities should be asking themselves how much more audio can give them over just video, and whether its worth the particular investment.  Do they really need to hear our conversations?  How much more can they possibly get from it?  It appears to be moving to the extreme side of surveillance in the name of safety only to have the same results.

The Silent Discussion

For the past several days, across our country, we have been glued to the news at the horrible events in Newtown, Connecticut.  The word “tragic” just doesn’t seem to do any good to describe this awful event.  But it finally has this nation talking about several subjects that have been off limits for the past several years.  I’m not here to discuss gun control or not.  I did that in an article last August when no one else seemed to be talking about it after the shootings in Colorado and Wisconsin.  Though we have talked about the news story, everyone seemed to leave the overall issues aside.  As the country now debates gun control and even mental health issues, I can only assume that the larger issue will be completely overlooked and the secondary ones will resort to the same old political rhetoric that have scared us away from them in the first place.

America_Mental_HealthI’ll start with the overall secondary issues, and first on that list is mental illness.  Though the media might put on the term of “deranged” onto any individual who caries out these mass shooting spree that is not an indication that they are mentally ill.  According to an article from the St. Louis Beacon, “Statistics show that the overall contribution to violence by mentally ill people in the United States is ‘exceptionally small’.”  So though the media might put on words to make us think in such a way, it doesn’t necessarily mean that it is true.  Some of these individuals are just committing suicide, but because of the way our media and the viewing public operate, they decide to go out in a blaze of glory that will forever get them remembered, and they always try to outdo the previous ones.  Think about it… with all the mass shootings over that past several years, how many of the gunmen’s names do you remember and how many of the victims’ names?  We obviously can’t stop people from committing suicide 100% as much as we would like to, but we can take away their motivation for doing these mass shootings… especially if the person committing these vile acts remained nameless.  But what about those that are mentally ill, even if it is a small percentage.  Obviously, this puts the spotlight on mental illness again.  In this country, we have tended to ignore mental illness for the past several years.  According to the National Institute of Mental Health, 26.2% of Americans 18-years old and older (about 1 in 4 adults) has a mental disorder.  When applied to the 2004 national study conducted by the US Center for Disease Control and Prevention (CDC), that is roughly 57.7-million people.  These could range from social phobias, eating disorders, obsessive-compulsive disorder, and autism to major depressive disorder, bi-polar disorder, and suicide.  There are two sets of stigmas that we should be addressing with mental health.  First is the stigma we place on the individual.  We tend to treat them differently as if they aren’t part of our society.  We tend to chastise them, make fun of them, and overall place a “bad” image of them on the people that are around.  The second stigma comes to parents that have children that have a mental disability. Every parents wants to think their child is perfect, but sadly that is never the case.  The stigma here goes to the parent feeling like they are a failure if there is something wrong with their child, and they want to hide it away as much as possible.  The only failure is when a parent refuses to admit there’s a problem and seeks that help for their child.  I’m not claiming every parent is like that as many parents do seek help and guidance from professionals in those situations, but there are still those that don’t.  And even as these children grow into adults, parental guidance can sometimes go out the window.  It is imperative that family and friends continue to watch to make sure that the individual is getting the help that he/she needs as an adult as they might have gotten as a child.  And as a society, we need to start disassembling the stigma that there is something “bad” about mentally ill people.  Most struggle with it, and, in fact, you probably know someone who is but you may not be aware of it.  Most are kind and caring people that wouldn’t do anything like what we’ve been seeing on the news, but there are those few “bad seeds” that ruin it for everyone else.

Mass Shootings 1980-2010So can we stop these types of shootings?  Not really.  But that doesn’t mean we shouldn’t talk about gun control or the Second Amendment (as it has been defined by the Supreme Court).  According to statistics (cited both in The Arizona Republic and The Washington Post), overall crime in the US is down.  However, to the untrained observer, it would appear that mass murders are increasing.  But according to official police reports to the FBI as stated in The Boston Globe, there has been no increase in mass shootings in the past few decades.  An average of 20 such shootings occur annually and an average of 100-people die each year according to the data.  That puts it rather coldly if one thinks about it in such terms.  So the conversation now moves to gun control, and let’s first get the old political rhetoric out of the way… gun control does not mean they are going to take away law-abiding citizens’ guns.  According to an article in Mother Jones, from 1982-2012 most of the weapons that the assailants used were purchased legally and that the weapon of choice was usually a semi-automatic.  Depending on which side of the political spectrum you fall on… more gun control or more guns, one can always find statistics and facts to back up their claims.  And both can be used as a solution to this part of the problem.  As stated earlier in the paragraph, most of the weapons used in these mass shootings were purchased legally by today’s law, though if the laws were tweaked a bit, it could keep certain individuals with mental health/psychological disorders from purchasing their weapons.  And Congress could put back in place the assault-weapons ban which expired in 2004… which the extension of the law had the support of then-President George W. Bush; however, the Republicans in Congress had been brainwashed by the National Rifle Association (NRA) and the Democrats were too afraid to go near the subject and risk political backlash.  There is no reason for such weapons in our society.  Sure, most that own them do so legally without incident.  Even in the case of Newtown, Connecticut, as it appears now, the weapons were bought legally by the shooter’s mother and were hers, and that he took them.  Again, you can’t prevent that, but you can limit the amount of semi-automatic weapons that are out there to carry out such horrible attacks.  But there are other things other than placing a ban on semi-automatic weapons in place.  Out of the first world countries, the US has the most lax gun laws.  According to CNN’s Christiane Amanpour, to buy a gun in Japan, a person must pass a written exam, a skills test, a drug test, and a mental health exam.  What would be wrong with such regulations here?  Most law abiding citizens would still be allowed to own a gun.  And the flip side of this argument, if more people were allowed to carry a gun, then some situations could have a drastically lower number of fatalities… and there have been some instances when lives have been saved by someone taking out a gunman with a personal weapon that they were carrying.  So both worlds are needed.  There needs to be common sense regulations (i.e. the ban on semi-automatic weapons) but also allowing people to conceal and carry as well.  Both can exist together.

InDeclaration: Gun Control and the Right to Bear Arms

We’ve tried to break this whole situation down to gun control in this country with some people attempting to bring in mental health, as well, and both are certainly key to it.  But we need to look at our culture… which includes the media.  We are fixated on violence… from TV shows to movies to video games.  It’s what sells, so that’s what gets made.  And the media doesn’t help by covering not the victims of such an attack but rather the person that carried it out.  I asked a hypothetical earlier which you should answer to yourself.  How many victims do you remember and how many shooters?  We need to reform our culture and thus our society to not be fixated on such things.  Some of the individuals that do this want to go out in a blaze of glory, and they achieve that by who we are and what we do.  If we put all the attention on the victims and none on who did it, they would lose their main reason.  Notice that each time it happens, they try to outdo another one that came before.  It’s one thing to commit suicide (as most do kill themselves in the end), but it’s another to take out a bunch of other innocent people before doing it.  Is anything we do going to solve this problem 100%.  Nope.  There will be times when people will find a way to carry out these attacks.  And though they can’t be prevented, they can be reduced in numbers so that we aren’t hearing about them every month.

As our politicians tackle the issues of mental health funding and gun control laws, we, the people, must focus on our society and how we correct a wrong turn that we made a long time ago.  We must be willing to seek help (for ourselves or for someone we know) if they need it.  There is nothing “bad” about having a mental illness and needing to get that help.  We must teach our kids that value of peace and love.  This does not happen by returning God into our schools.  I am a religious individual, and, to me, God belongs in our homes, our places of worship, and most importantly, in our own hearts.  Those are lessons that need to be taught at home.  Home life can be hectic, but there needs to be time for such lessons.  We should be discussing all of it.  And when I say we, I mean everybody from the President and Congress to the moms and dads and children.  The event in Newtown has awakened a discussion that we should have started having a long time ago before it ever got this bad.  Don’t let this moment slip through the cracks.  Let’s all start doing our share of this national conversation so that when we say “no more”, we can actually mean it.  This latest mass shooting tore at every heart string we had, and I don’t want to see what the next one will consist of to outdo it.  No more turning a blind eye.  It’s time for the real discussion to begin.

LINK:
NY Times – “Do We Have the Courage to Stop This?”

By Popular Vote

Today is the first day that same-sex couples are allowed to get married in the state of Washington.  The legislation permitting same-sex marriage was passed by the legislature and signed into law by Governor Chris Gregoire on February 13, 2012, but it was stayed pending a vote of the people.  In every instance of same-sex marriage going to the vote of the people, it had been voted down.  But the general election of 2012 would turn out to be more interesting than all the years prior.

Washington was not the only state voting on same-sex marriage.  Maryland had also passed by same-sex marriage through its legislature and the people of the state were voting, too.  The people of Minnesota were voting on whether to ban same-sex marriage in their state.  And in the state of Maine, the people were voting to overturn its ban on same-sex marriage which was put in effect in 2009 after same-sex marriage was signed by the the governor earlier that year.  National polls in recent years have showed a shift in favor of same-sex marriage, but that has never played out in state contests.  Earlier this year, North Carolina voted 61%-39% to ban same-sex marriage… becoming the last southern state to put a ban in place.

gay-marriage-debate-thumb-320x240-9845Most eyes on election night were focused on the election of President and which party would control Congress.  But as the night went on, the results of these ballot measures began to come in.  Maine was the first state to announce that the voters had overturned it’s ban on same-sex marriage, making it legal in the state, by a vote of 53%-47%.  With that vote, it became the first state to overturn its ban on same-sex marriage.  In hindsight, it seems only fitting since it was the first state to approve same-sex marriage through the legislature and with the signature of its governor.  It was a risky move since if it had failed, it could have set back the movement in the state for years to come, but the LGBT community was allowed to rejoice.  Maryland would come in next.  By a vote of 52% to 48%, same-sex marriage was again approved by the voters.  This marked the first time a state, which did not have a ban on same-sex marriage in place, approved of gay marriage through a referendum after having it passed by the legislature.  And here’s a quirky bit of history to go with it.  Maryland was the only colony originally set up with Catholicism under the Calvert family.  Seems to be a bit ironic.  The LGBT community held its breath for the state of Minnesota.  Never had a state voted down a referendum to ban same-sex marriage.  Arizona did briefly in 2006 but approved a different one in 2008.  But again, the winds seemed to be pushing forward.  The people voted 51%-47% not to ban same-sex marriage in their state.  It didn’t make it legal, but it left the door open for it to happen one day in the future.

fivethirtyeight-0509-ssm1-blog480

It was stated at the beginning, more or less, how the state of Washington ended up voting.  The final vote was 53%-47% in favor.  Why might this be important.  I stated earlier that national polls had shown a shift by the people to support same-sex marriage recently.  In a poll conducted from November 16-19, same-sex marriage was supported by 51% with 40% opposed.  This was preceded by another poll, this time conducted by ABC News/Washington Post from November 7-11, found that 51% approved and 47% were opposed to same-sex marriage.  And just to add one more layer onto this, a June 6 CNN/ORC International polls showed that 52% approved same-sex marriage with 42% opposed.  This is a dramatic shift in support as only 25% approved of same-sex marriage in 1996.  By looking at the percentages in the states Maine, Maryland, and Washington, they are pretty much right on the national poll numbers.  The state of Minnesota, voted down their marriage ban by almost the same numbers as well.

Critics of same-sex marriage have always changed their tactics.  When state courts started overturning laws that violated that particular state’s constitution, the opposition started declaring that the legislatures had to approve of such things.  When legislatures started approving same-sex marriages, critics started saying that a vote of the people should make the determination.  Then they would set out on a ‘fear and smear’ campaign to get voters to approve of same-sex marriage bans.  But with some states, victory for equal rights had already been accomplished.  And with the passage of time, people have been able to see the lies that came with the ‘fear and smear’ campaigns of earlier years.  As the years continue to progress, it would seem that same-sex marriage will only garner more and more approval from the people.  States that currently have bans in place might even follow Maine and vote to overturn them.  But one must wonder since referendums in support of same-sex marriage have now been approved by the people, and a referendum banning same-sex marriage has been defeated in the same way, what will be the opposition’s next move?  No matter what it is, history has already dictated what that outcome will be.

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