Tag: Constitution

I Have Nothing to Hide

 

So when they continued asking him, he lifted himself up and said unto them, He that is without sin among you, let him be the first to cast a stone at her.
― John 8:7 (Jubilee Bible 2000)

In any discussion of government surveillance, such as has been revealed by the recent WikiLeaks “Vault 7” release of CIA documents, there are some folks who are apt to pipe up with “Let the government spy on me – I have nothing to hide.” By that they presumably mean for their listeners to understand they are not terrorists, criminals, or perverts, and to drive home their utter lack of impure intentions they will often add a feebly humorous aside about how government agents would fall asleep from the boredom of eavesdropping on them. How reassuring to learn that government flouting of the Fourth and Fifth Amendments to the Constitution is okay because there are some among us who are without sin! Whether these folks realize it or not, their smug pronouncement comes out of them because in their lives the presumption of innocence has always been a given, and therefore government agents would have no interest in their good citizen behavior. It doesn’t seem to occur to them there are others in our culture who, through no fault of their own, are presumed guilty, and there are still others who are just as law abiding as the “nothing to hide” crowd, but may be concerned about hackers and thieves accessing their data, or simply want to be left alone and feel that their affairs are their own and should not be the concern of the government. We can use locks on our doors not only to keep out criminals after all, but nosy neighbors and government snoops as well.

Jesus und Ehebrecherin
Jesus and the Adulteress; drawing by Rembrandt.

The digital age has changed the game somewhat by introducing new channels of communication and cheap storage for vast quantities of information. The Fourth and Fifth Amendments are no less valid, however, in stating that citizens should be secure in their “effects”; that government officials need warrants; that citizens cannot be compelled to testify against themselves; and that government shall follow due process of law in proceedings against any citizen. Naturally the Founding Fathers did not foresee the age of computers, smartphones, and the internet. They didn’t need to foresee those things, because in looking back on thousands of years of ancient Roman and Greek law and English common law, they were able to extract valid principles which were applicable to the general human condition whatever the particulars of any one era might be. Since their time, we have moved from postal mail and personal messenger to phone calls and telegrams, and now to blog posts and email. Government snooping amounts to the same thing whatever the means of communication, and it is protection from the ends that the Founding Fathers wrote into the Constitution.

That much should be obvious, yet the erosion of the Bill of Rights continues bit by bit, often with the excuse that technology has wrought different contingencies in our modern era. There are no different contingencies – what has changed is that the state of emergency appears now to be permanent because it suits the agenda of powerful interests in the military-industrial complex. In the past, the United States government trampled rights for various reasons which seemed sensible to many at the time, from the Alien and Sedition Acts of 1798, to the Palmer Raids of 1919 and 1920, to the internment of Japanese-Americans in World War II. Always the advocates of such policies invoked a state of emergency to justify the abuse of state power, but eventually calmer heads and changing circumstances would prevail and the balance would be corrected.

A segment of Eisenhower’s January 17, 1961 farewell address, with commentary.

As long as there are enablers of government snooping who complacently and self-righteously announce to everyone within earshot that they “have nothing to hide,” dislodging the powerful interests invested in the current status quo and restoring a constitutionally correct balance between citizens and government will be a protracted struggle. Those who value the privacy of their communications enough to take measures to protect it, such as by using the Tor internet browser or encrypting their emails, are thereby presumed guilty of possible anti-state, criminal, or sexually deviant enterprises by government snoops and their sanctimonious “nothing to hide” enablers because the very action of taking privacy measures draws scrutiny from those groups and is something they deem an admission of being up to no good. It is as if the Fourth and Fifth Amendments have been turned upside down, and objecting to having snoops looking in the windows of your house and walking in through the front door any time they please is fussy obstructionism, definitely unpatriotic, and possibly prosecutable. The “nothing to hide” folks are unconcerned over these developments, secure as they are in the comforting knowledge of their own innocence, though they may want to keep in a corner of their uncluttered minds the notion that the perception of innocence by those in power can shift capriciously, and so they are well advised to note this paraphrased bit from a poem by the German Lutheran pastor Martin Niemöller: They came for the Privacy Advocates, and I did not speak out – Because I had nothing to hide.
― Techly

 

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As High as an Elephant’s Eye

There’s a bright golden haze on the meadow.
There’s a bright golden haze on the meadow.
The corn is as high as an elephant’s eye,
And it looks like it’s climbing right up to the sky.

 

Oh, what a beautiful morning!
Oh, what a beautiful day!
I’ve got a beautiful feeling
Every thing’s going my way!

― Excerpt from “Oh, What a Beautiful Morning” from the musical Oklahoma!; lyrics by Oscar Hammerstein II.

The hemp plant, Cannabis sativa, has had a tortured history over the past hundred years on account of its close relative, also Cannabis sativa, but more commonly known as marijuana. The variety grown as hemp and renowned throughout history over several continents for its practical uses has a vanishingly small tetrahydrocannabinol (THC) content of less than 1%, while the variety grown for its psychoactive properties has a THC content over 20%. Smoking hemp would induce a headache rather than relieve one. Why then has hemp been demonized along with its fun-loving and meditative relative?

Like the shreds of fiber running through a stalk of hemp itself, the story has many strands, and they are all entwined within the Cannabis sativa plant as a whole. In the early twentieth century, Mexicans fleeing the chaos of revolution in their country came to the United States in large numbers and brought their recreational and medicinal use of marijuana (their term) with them. Americans had long grown hemp, but they had little interest in its higher THC relative. Americans evidently preferred liquid spirits. The influx of Mexican immigrants with their loco weed coincided with the push toward prohibition of alcohol which culminated in the passage of the 18th Amendment to the Constitution in 1919.

Americans who were now prohibited alcohol could not be allowed to turn to marijuana for relief, particularly considering its association with poor brown-skinned people and, increasingly, poor black-skinned ones. The demonization began in the southwestern and southern states in the 1920s and spread to the rest of the country by the early 1930s. Government agents would have too much difficulty discerning innocent hemp in the field from devil weed, and therefore it was all to be outlawed. Farmers who still wished to grow hemp had to apply for a license from the government and submit to oversight and red tape. Fewer and fewer farmers wished to put up with the hassle from the 1930s on until, after a brief blip of government encouragement during World War II, no one was growing hemp in this country after about 1956.

Hemp for Victory, a 1942 short film from the United States Department of Agriculture.

 

There are also possibly self-serving culprits in the demonization of marijuana among the powerful of the 1920s and 1930s in the United States, among them William Randolph Hearst, Andrew Mellon, and the DuPont family. Hemp, a useful and unglamorous plant with no psychoactive properties, was difficult to demonize. It’s smoky Jazz Age relative, on the other hand, lent itself more easily to demonization, and then hemp, the real target of powerful business competitors, was more easily tossed by them onto the smoldering pyre of public condemnation as a matter of guilt by association.
Sing a Song of Six Pants (1947) 2
Shemp Howard, in the middle, receives an ironing board rebuke from Moe Howard, on the left, while Larry Fine looks on in Sing a Song of Six Pants, a Three Stooges short from 1947. Shemp should not be confused with hemp, nor with Joe Palma, also known as “Fake Shemp” after he doubled for Shemp following the famous comedian’s untimely demise.
The lowest point was reached in the 1970s and 1980s with the designation of marijuana as a Schedule I narcotic in the Controlled Substances Act of 1970, the creation of the self-perpetuating Drug Enforcement Agency (DEA) a few years later, and in the 1980s the introduction of draconian mandatory, minimum sentencing laws with the promise and encouragement of zealous enforcement by the administration of President Ronald Reagan. The prisons, many of them now privately operated for profit, have been bursting at the seams ever since, mostly with the grandchildren of those poor brown or black people we discussed earlier, a lot of them busted for minor drug offenses. How do you control a population? Start with their customs and particularly target what you can portray as their vices. Have a stiff alcoholic drink then and consider whether your profitable – and even patriotic – plan to grow some useful hemp is worth your while to hassle with the DEA, the ultimate overseer, state laws tendering you encouragement notwithstanding.
― Izzy

 

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Alternative Constitution

 

Once again Arizona has stepped forward with groundbreaking legislation after the State Senate passed on Wednesday, February 22, a bill that would allow the state to charge the organizers of peaceful protests with racketeering if rioting erupts. Among the niceties of the bill are civil asset forfeiture, allowing the state to seize the property of the protest organizers. How do you keep taxes low? By stealing! The bill awaits review in the State House of Representatives. The last time the Arizona legislature made such a big splash in the national news was 2010, when it led the way in the fight against illegal immigration with the “Show me your papers” bill that went all the way to the United States Supreme Court, which struck down three of its four provisions. The back and forth on that bill between Arizona Governor Jan Brewer and President Barack Obama ultimately led to the finger wagging incident (Yay, Jan!) on the tarmac of the Phoenix airport in 2012.


A scene from 1984, starring John Hurt, Richard Burton, and Suzanna Hamilton. Lest we forget Obama and his usefulness, he’s masquerading here as the hated Emmanuel Goldstein on the screen in the auditorium.

 

This seems as good a time as any to propose an Alternative Constitution. There’s no need to formalize things with a constitutional convention, though if one were really necessary there couldn’t be two better candidates to co-chair the convention than Joe Arpaio, former sheriff of Maricopa County in Arizona, and Yvette Felarca, a leader of the violent “By Any Means Necessary” group in California. Both are tough-talking, no-nonsense types who will make sure things get done at the convention or they’ll bust some heads to know the reasons why. Like Archie and the Meathead on All in the Family, they are opposite sides of the same coin, though not nearly as many laughs.


All in the Family reminds us that politics colors nearly everything in life, like it or not.

Here are some highlights of the Alternative Constitution:

  • Amendment 1 – Congress shall make no some law[s] respecting an establishment of [a certain] religion, or prohibiting the free exercise thereof [of some of them]; or abridging the freedom of speech [for some people], or of the [not fake news] press; or the right of the [certain] people peaceably to assemble, and to petition the Government for a redress of grievances [of some people].
  • Amendment 2 – A well regulated Militia, being necessary to the security of a free State, [T]he right of the people to keep and bear Arms [lots of them; high powered semi-automatics, too], shall not be infringed.
  • Amendment 4 – The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not [sometimes] [often] be violated, and no Warrants shall issue, but upon probable [almost any] cause, supported by [sometimes secret] Oath or affirmation, and particularly [vaguely] describing the place to be searched, and the persons or things to be seized [and locked away for good!].
  • Article 1, Section 9, Clause 8 – No Title of Nobility shall be granted by the United States: And no [non orange and non bigly] Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument [except rental income and business favors], Office, or Title, of any kind whatever, from any King, Prince or foreign State.

Cactus with flowers, a true gift of Arizona.
Pretty good, huh? Feel free to alter the text yourself, and to print it out in ALL CAPS, if that suits your political bent. Nothing gets a point across like YELLING, after all. The Dated Constitution, or DC, will be kept around in the National Archives, where tourists can gawk at it and scholars can squabble about the nuances of its language. The late Justice Antonin Scalia, who soon may have a federal courthouse named after him in Charlottesville, Virginia, cleared the way for interpreting our most important national document by underscoring that freewheeling activist judicial decisions are BAD, except when rendering a judgment in a case such as Bush v. Gore, which was GOOD, and not activist at all. (To which Justice Clarence Thomas might have added, were he to speak, “Ditto!”) No worries then with the Alternative Constitution, or AC, which will be the document of record for folks like University of California-Davis campus cop Lieutenant John Pike and the eloquent Zack Fisher of Phoenix, Arizona, both stout defenders of freedom against the despicable encroachments of sniveling protesters and pushy brown immigrants. Thanks to Arizona’s new law, all these paid protesters will soon get their comeuppance when they try their shenanigans in The Grand Canyon State, and Supreme Leader at the helm in Washington is sure to have Arizona’s back, regardless of what activist so-called judges may have to say about it.
― Ed.

 

 

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A Good Day for Swearing

 

“Better to remain silent and be thought a fool than to speak and remove all doubt.”  ― Abraham Lincoln*

Today is Inauguration Day in the United States, and a new president will be sworn into office by Chief Justice John Roberts with the following words from Article 2, Section 1 of the Constitution:

“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”



“Gimme Shelter” by The Rolling Stones.
A cry of protest from long ago that is just as relevant today.

It has become a tradition for presidents to use a Judeo-Christian Bible when taking the oath of office. There is no demand in the Constitution or other legislation to swear on the Bible, or on any book. People taking an official oath may legally place their hand on their heart, and many do just that. The third paragraph of Article 6 of the Constitution implies that an oath taker could use any holy book he or she desires:

“The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

When Keith Ellison, a Muslim, was elected to Congress from Minnesota’s 5th District in 2006, conservatives raised a fuss about whether the nation’s first Muslim elected to Congress should be allowed to take his oath of office using the Koran. In the end Ellison, a Democrat, used an English translation of the Koran owned by Thomas Jefferson.

What should be self-evident is that the words are what matter most about an oath of office, not the manner of taking it. How then to account for today’s outgoing President, a constitutional law scholar, signing into law the 2012 National Defense Authorization Act, one section of which authorizes the president to order the military to arrest and indefinitely imprison people anywhere in the world, including American citizens? Today’s outgoing President now bequeaths that unconstitutional authority to the incoming President, a thin-skinned narcissist with a vengeful streak, the Tweeter-in-Chief. God DAMN it!
― Vita


“Dreams” by The Cranberries.
Like all dreams, this one is open to interpretation.

 

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The Kolledge of Electoral Knowledge

Ohio Electoral College 2012 5
Meeting of the 2012 Ohio Electoral College; photo by Ibagli

The 538 members of the Electoral College meet tomorrow, December 19th, in the 50 state capitols and in Washington, D.C., to cast their ballots for President and Vice President. Many people across the country are unsure about the purpose of or need for the Electoral College, and they think we could do better without it. In Article II, Section 1 of the Constitution, the Founding Fathers established the Electoral College, though they never named it as such.

“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . . “

There is further elaboration on the Electoral College in the 12th and 14th Amendments.

Nowhere in the Constitution is there anything about constraining the Electors to vote for the winner of their state’s popular vote. In 26 states and in Washington, D.C., Electors are bound by state laws or party pledges to vote for the winner of the popular vote in their state. The Founding Fathers did not foresee the rise of political parties, and they imagined the Electors would act more independently than has proved to be the case. Political parties now choose the Electors and dictate how they vote, and over half the states have codified that policy into state law. The Electoral College functions now as nothing more than a rubber stamp for the winner take all system in all the states except Nebraska and Maine, which allocate their electoral votes by congressional district.

 

If the Electors exist only to rubber stamp the electoral votes determined by the popular vote in each state, then why bother with human Electors at all? If the purpose of the electoral vote system is to protect the minority rights of less populous states from being overrun by more populous states, then tally the electoral votes allocated by each state’s popular vote and do away with the Electoral College members altogether. If, on the other hand, we expect Electors to act at their own discretion, then do away with the restrictions placed on them by the states and by the political parties, all of which may be unconstitutional, and allow them to vote their consciences.

 

The Founding Fathers had some good reasons for establishing the Electoral College, though they failed to envision how it has played out since the 18th century. As it exists now, it is neither fish nor fowl, neither a body independent of the will of the people nor beholden to it. The Electoral College is beholden to the will of the political parties, and any member who votes independently of that will is termed a “faithless Elector,” and may be subject to legal penalties as well as party ostracism. What good is an institution like that?
– Ed.

Scene at the Signing of the Constitution of the United States
Scene at the Signing of the Constitution of the United States, a painting by Howard Chandler Christy. The figures in this painting who were instrumental in the establishment of the Electoral College were James Wilson, in the green coat directly beneath the flags, who proposed it; and seated to either side of Benjamin Franklin, at the center, were James Madison on the right and Alexander Hamilton on the left, the two men who explained it’s function and lobbied for it’s inclusion in the Constitution.

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The Fickle Fingerprint of Fate

In May of 2016, Department of Justice officials wrote a memorandum seeking a warrant to search a Lancaster, California, premises and to force the occupants to unlock any phones or electronic devices with their fingerprints if the devices were equipped with that technology. This amounted to a fishing expedition to circumvent previous court rulings which held that law enforcement could not compel a criminal suspect to unlock an electronic device with their pass code because that would be a violation of the Fifth Amendment protection against self incrimination. It is unclear whether the DoJ ultimately received the warrant they sought because not all documents related to the case are publicly available.

Creation of Adam (Michelangelo) Detail
“Creation of Adam,” by Michelangelo

Why is compelling a suspect to unlock a device with their fingerprint also not a violation of the Fifth Amendment? Because of a 2014 ruling in a Virginia Circuit Court which stated that fingerprints and other bodily attributes are not protected, while handing over a pass code to law enforcement is divulging of information, which is protected. Law enforcement has long been able to use a suspect’s physical characteristics to incriminate him or her, but has not been allowed to compel a suspect to give up information. The problem now is that technology has leaped ahead of current law, and judges and prosecutors are falling back on anachronistic case law to cope with the use of biometrics like fingerprints and iris scans to lock personal electronic devices. Case law going back one hundred years and more treats fingerprints as a way of determining a suspect’s culpability at a crime scene, not as a key to a suspect’s possessions which may or may not contain evidence. It is obtuse to claim that a fingerprint or any other biometric is not the same as a pass code when it is being used for the same purpose.

All seeing eye
“All seeing eye,” from U.S. currency

The use of biometrics is springing up not only in consumer devices, but in technology used by the military and law enforcement. The 2002 film, Minority Report, depicts a dystopian future when law enforcement and advertisers make great use of biometrics, and those predictions are proving more accurate with each passing year. The Department of Justice already uses facial recognition technology for surveillance of people in public spaces, and as we have seen with the National Security Agency, the ability of modern digital storage to accumulate massive amounts of data encourages the practice of scooping up everything indiscriminately. Like a fishing trawler using a drift net, law enforcement intends to collect everything now, store it, and sort it all out later. They think they are being efficient and better safe than sorry. But people are not fish subject to by-catch, which ought to be obvious enough, and to be sure the Fourth and Fifth Amendments to the Constitution make the distinction clear.
– Techly

Randolph County Veterans Memorial Park Bill of Rights marker
Randolph County, Georgia, Veterans Memorial Park Bill of Rights marker;
photo by Michael Rivera

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With a Song in My Heart

President Barack Obama visits Pentagon for Sept. 11 ceremony - Washington, D.C. 2012

Secretary of Defense Leon E. Panetta, left, President Barack Obama and Army Gen. Martin E. Dempsey, chairman of the Joint Chiefs of Staff, render honors during the playing the National Anthem during a ceremony commemorating the 11th anniversary of the Sept. 11, 2001 terrorist attacks on the Pentagon.

 

The recent flap over U.S. Olympic gymnast Gabby Douglas not placing her hand over her heart during the playing of the “The Star-Spangled Banner” at the Rio Summer Olympics medal ceremony prompts this week’s post. Etiquette for citizens during the national anthem is spelled out in U.S. Code, but that’s the extent of it. Civilians should place their hands over their hearts, and military personnel in uniform should salute. Veterans can place their hands over their hearts or salute, as they wish. There are no legal prohibitions for civilians who do not observe etiquette, whether knowingly or out of ignorance. Any deviation from etiquette by civilians is protected by the First Amendment to the Constitution. Military personnel who do not salute may be prosecuted non-judicially by their command under Article 15 of the Uniform Code of Military Justice.

The upshot of all this is that for most Americans their behavior during the national anthem is guided by custom, though in this case custom has been explicitly codified by Congress, as questionable as that practice may be. As with all matters of custom, those who deviate from the norm open themselves to criticism and opprobrium from the community at large. In the case of Gabby Douglas, public censure goes too far, and certainly legal sanctions are inapplicable, no matter how much people may howl on Twitter about what they perceive as her inappropriate lapse. The rush to judgment is just that, a hasty reaching for the first stone.

– Ed. 

 

 

John Carlos, Tommie Smith, Peter Norman 1968cr

American sprinters Tommie Smith and John Carlos, along with Australian Peter Norman, during the award ceremony of the 200 m race at the Mexican Olympic games. During the awards ceremony, Smith (center) and Carlos protested against racial discrimination: they went barefoot on the podium and listened to their anthem bowing their heads and raising a fist with a black glove. Mexico City, Mexico, 1968.

 

 

 

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