Category Archives: rights

Due Process, Progressive Style

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During a confab at the University of Virginia concerning college students and sexual misconduct, the following remarks were made in all seriousness:

Amanda Childress, Sexual Assault Awareness Program coordinator at Dartmouth College, a position newly created just for her:

Why could we not expel a student based on an allegation? If we know that a person is reasonably a threat to our community, why are we not removing them and protecting the safety of our students?  It seems to me that we value fair and equitable processes more than we value the safety of our students.  And higher education is not a right.  Safety is a right. Higher education is a privilege.

Childress went on to claim that 90%-95% of sexual…misconducts…are unreported, committed by repeat offenders, and intentional.  She seems not to have disclosed how she knows the per cents of unreporteds, despite their not having been, you know, reported.  She also seems not to care that due process is a fundamental right, acknowledged in the 5th Amendment—which Amendment, as well as the Constitution as a whole, most assuredly are not waived at the campus gate.

But wait—there’s more!  Linda Fairstein, Senior Advisor for the Sexual Misconduct Consulting Group at K2 Intelligence, told the panel that criminal acts

should only be handled in the criminal justice system.

But only if the criminal justice system gets it right.  If not, the college administrators must step in and administer justice.  After all, a prosecutor might decide there isn’t enough of a case from which to get a conviction.  Properly administered justice, then, must depend not on an actual crime’s beyond reasonable doubt, but on the much more conveniently squishy “preponderance of the evidence;” just 50.1% of certainty.  Because

If there’s no other forum, now it’s a matter of getting it right.

Never mind that it was done right in the first place, by the criminal justice system.  If there’s no case, there’s no case.  Americans, even students on a college campus, remain innocent until proven guilty—not until a college administrator gets the outcome he wants.

There’s nothing more naked, more despotic, more anti-American than guilt by accusation.

Progressive Gun Rights

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…are what government says they are.  Last week, though, the 9th Circuit, in a 2-1 decision, struck down a San Diego County, California law that asserted exactly that.  This law

requir[ed] residents to show a “pressing need” in order to get a permit to carry weapons in public.

However,

The judges found that in order to receive a permit, a person need only show a desire to defend himself outside the home.

Judge Diarmuid O’Scannlain, writing for the court, clearly does understand the situation.  Addressing three other Appellate Court rulings upholding public carry restrictions (a fourth Appellate Court struck such restrictions), he wrote

they misapprehend both the nature of the Second Amendment right and the implications of state laws that prevent the majority of responsible, law-abiding citizens from carrying in public for lawful self-defense reasons.

Jon Lowy, Director, Legal Action Project of the Brady Center to Prevent Gun Violence, demurred, however:

Neither history nor precedent supports this aberrant, split decision that concocts a dangerous right to carry hidden handguns in public places to people whom law enforcement has determined…have no good cause or qualifications to do so.

Rights are what a Progressive government says they are, according to this Progressive.

No, Mr Lowry.  You clearly do not understand inalienable rights, nor our Constitution.  The right to life is inalienable, and it carries with it the inalienable right to self-defense.  Neither are “concocted rights.”  These rights, moreover, carry within them the right to possess the means with which to carry out that defense.  Everywhere.  These inalienable rights are not at all limited to places convenient to government.  Full Stop.

Moreover, the 2nd Amendment of our Constitution says this:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The binding document, within which our governments—at all levels—must operate, has said all there is to say on our right to keep and bear arms.  Especially in public.  Governments have very little at all to add regarding “good cause or qualifications.”  Full Stop.

A Thought on the Contraceptive Mandate

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Notre Dame, et al., finally are getting their day in court concerning the Obamacare Contraceptive Mandate.  Notre Dame’s case centers on the premise that the government’s compromise in formulating the mandate still leaves religious organizations required to be agents authorizing contraceptive coverage, which violates Notre Dame’s (et al.) religious beliefs.

Two things about this case disturb me.  One is the Seventh Circuit’s attitude in hearing the case, as illustrated by this exchange:

Matthew Kairis (representing Notre Dame): The government is requiring Notre Dame to play a role.

Judge Richard Posner: But that role seems so trivial.

The role exists, and it forces the school to violate its fundamental religious tenets.  There’s nothing trivial about that.

The other thing is this argument by the government’s attorney, Mark Stern.  It’s a slippery slope, Stern claims, threatening the heart of the contraception mandate.  This goes along with his distortion of Notre Dame’s position:

It’s not enough that Notre Dame is going to get out of it, they don’t want anyone else to get in.

The first is at the center of the problem with the contraceptive mandate: the mandate forces religious entities and secular entities that try to operate according to their owners’ religious tenets (see, for instance, the Hobby Lobby case) to violate those tenets, and so is a violation of the Establishment Clause.  Of course the mandate should be threatened.  It should be eliminated.

As to the latter, surely Notre Dame has an opinion on the morality of other organizations providing contraceptives and abortifacients.  However, Notre Dame is not presuming to speak for them or about their legal right to provide these things, nor is Notre Dame arguing that health plan providers should be barred from offering coverage that provides these things.  Notre Dame and its fellow plaintiffs are merely arguing that they ought not be forced to be parties to the transactions.

A Pending Blow for States’ Rights

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A group of legislators in Maryland has introduced the “Fourth Amendment Protection Act” in the Maryland state legislature, a bill that would deny state support to Federal agencies engaged in warrantless electronic surveillance.  This bill is aimed directly at the National Security Agency and its warrantless monitoring and tracking of US citizens (secret warrants?  C’mon), and it would block the provision of “material support, participation, or assistance in any form” by any state entity or any entity of a political subdivision of the state, or by companies with state contracts.

That “material support, participation,…” ban would include providing water and electricity via public utilities to the NSA at its Ft Meade HQ.  Other parts of the bill would prohibit the use of evidence gathered by the NSA in state courts and prevent state universities from partnering with the NSA on research.

The bill would have state or local officials who violate the ban subject to as much as a year in a county jail and a $5,000 fine.  Such officials also would be fired from their jobs and be barred from public service

Delegate Michael Smigiel (R, Dist 36):

I want Maryland standing with its back to its people holding a shield. Not facing them holding a sword.

Freedom of Speech

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The House Ways and Means Committee voted—on party lines—to move to the full House for debate (and passage) a bill that would delay Treasury’s proposed regulations that would “limit the political activities of so-called social welfare groups.”  These regulations are targeted at 501(c)(4) groups and written in a way that will affect conservative groups more than liberal groups.

That’s not what interests me, though.  What does interest me is a Democratic Party Congressman’s remark decrying the bill.  Congressman Bill Pascrell Jr (D, NJ), who sits on the Ways and Means Committee, said,

It is about disclosure.  Nowhere in the Bill of Rights does it say you have the right to say anything you want—and also not pay any taxes.

There are a couple of things wrong in this short statement….

Actually, there is such a right, and it’s not just in the Bill of Rights, but in the Constitution as a whole.  Our Constitution is a document that explicitly limits the Federal government to a short list of permitted activities and powers with which to carry out those activities: the 18 clauses of Article I, Section 8, and the powers enumerated in Articles II and III are the sum total of what the Federal government can do.  Nowhere in there is there any tying of political speech to the payment of taxes.  An American citizen has no obligation whatsoever to pay a tax to the Federal government in order to receive permission to speak publicly.

Moreover, what rights American citizens do have under this Constitution, especially in relation to the powers of the Federal government, were clearly laid out in The Federalist [emphasis added]

The powers delegated by the proposed Constitution to the federal government, are few and defined.  Those which are to remain in the State governments are numerous and indefinite.  The former will be exercised principally on external objects…with which last the power of taxation will, for the most part, be connected.  The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people….

and in the 9th and 10th articles of the Bill of Rights which Pascrell seems not to have read:

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

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

and in the 1st article of the apparently unread Bill of Rights, which says this, in part:

Congress shall make no law…abridging the freedom of speech….

Notice that: nowhere in there is speech tied to the payment of a tax.  Quite the opposite.  Speech cannot be abridged in any way, and taxes exist primarily to fund the government’s ability to engage in its outward looking authorizations.  In particular, taxes cannot be used to regulate—to abridge—speech.

To say to an organization, “If you want excusal from paying taxes, you must engage primarily in these kinds of activities” is entirely legitimate.  To say to that same organization, however, “If you want excusal from paying taxes, you may not speak of these things which we will identify for you,” is exactly that abridgment.  This is, nakedly, a tax on speech.

Then there’s this: “It is about disclosure.”  No, Congressman, it isn’t.  The Federal government has no legitimate interest in who says what in the political arena.  The articles in The Federalist were, every one, written by Publius, even though the authors in fact were Alexander Hamilton, James Madison, and John Jay.  Anonymity is, in fact, a major protection for a speaker against a government that might presume to object to that speech and seek to act against the speaker—by, for instance, demanding a tax payment as a condition of being allowed to speak.

A propos this whole free speech limitation that the Democrats want to impose on us is this statement with which “Publius” opened The Federalist:

It has been frequently remarked, that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not, of establishing good government from reflection and choice, or whether they are forever destined to depend, for their political constitutions, on accident and force.

This is a typical Democrat’s lack of understanding of our Constitution.