Friday, July 13, 2018

Kavanaugh is a good pick for SCOTUS

Even before Brett Kavanaugh was officially nominated for President Trump's second Supreme Court vacancy the Left was in a tizzy.  The Right seemed largely content with the top three names being floated: Brett Kavanaugh, Raymond Kethledge, and Amy Coney Barrett. The general consensus was that all three were highly qualified, and desirable as "conservative" court picks.

I recently listened to Judge Andrew Napolitano's assessment of Brett Kavanaugh as President Trump’s SCOTUS nominee.    I LIKE Napolitano.  I trust him. I agree with him on almost everything. 

ON this particular issue, I disagree with him and his concern over Kavanaugh.    Judge Nap says this: "The Kavanaugh nomination is not a question of his qualifications; it is a question of his values. It is dangerous for judges to embrace values that diminish personal freedom rather than expand it.".
So Judge Napolitano says that he questions Kavanaugh's "values" but actually, at least according to his web page, it is only this ONE value that Napolitano questions: the "proper" rendering of the Fourth Amendment. 

The whole argument, or position, involves the word "reasonable".
It is quite apparent that of all words in the English language that COULD have dozens of meanings or applications, this word must certainly rank in the top ten.  Notions of "reasonableness" are likely to be much more subjective than objective.  About the only way (certainly the BEST way) to determine the "legally reasonable" thing to do is to develop a standard based upon a set of behaviors, and try to remain consistent with the application of that standard. 

Kavanaugh has a history of decisions that reflect his judicial position with respect to precedent, and the application of constitutional principles.  Kavanaugh expressed that view in the course of a 2015 statement concurring in the denial of rehearing en banc in Klayman v. Obama, which was then before the U.S. Court of Appeals for the District of Columbia Circuit. The case centered on the constitutionality of the National Security Agency's controversial information-gathering program, which involved the NSA collecting the telephony metadata of all Americans. "In my view," Kavanaugh wrote, "the Government's metadata collection program is entirely consistent with the Fourth Amendment."

Kavanugh offered two principal explanations for why he considered the program to be constitutional. First, he invoked what's known as the "third-party doctrine," which says that if you voluntarily share private information with a third party, you no longer have a reasonable expectation of privacy in that information. "The Government's collection of telephony metadata from a third party such as a telecommunications service provider is not considered a search under the Fourth Amendment," Kavanaugh wrote.
But "even if the bulk collection of telephony metadata constitutes a search," Kavanaugh continued, turning to his second justification, the program may still be approved because the Fourth Amendment "bars only unreasonable searches and seizures. And the Government's metadata collection program," he wrote, "readily counts as reasonable" because it "serves a critically important special need—preventing terrorist attacks on the United States." He added: "In my view, that critical national security need outweighs the impact on privacy occasioned by this program."    (Source: )
I think Kavanaugh is solid on the first point. On the second he is correct as long as the "reasonablness" is able to be quantified and objectively measured. HOW MUCH reason is required to reach the "justification" threshold will always be a bit subjective because people cannot usually define a "bright line". When it comes to a terror threat, is 50% reasonable? 60%? 72%? 88.653%? If it YOUR spouse and family who is the potential target of a terror event, does that change your numbers?

As to the second point, we must never lose the ability to "check" government actions. There must always remain a balance of power, both within government, and between the government and the people. As long as that is preserved, the reasonableness argument is completely within both the letter, and the spirit of the law. Kavanaugh has this right.

Fourth Amendment law has developed some in the last few years as the court has had to continue to balance the liberties which government is charged to protect, and the public safety which government is also charged to protect.  No real discussion can take place on the reasonableness of the Fourth Amendment unless and until BOTH of these sometimes competing duties are fully understood.  That Kavanaugh leans a little more towards public safety, and Napolitano leans more towards individual liberties, is not cause for panic.  It is cause for dialog, transparency and a continuing re-assessment of the very real threats that our nation confronts.   Considering Kavanaugh’s record, it seems likely that he will continue to be a strong force for preserving our constitutional principles. If you truly value the constitutional values upon which our form of government, and our laws fin their foundation, then show your support of Brett Kavanaugh and President Trump.
John Sterling

Wednesday, May 9, 2018

The Militarization of Police

Recently I observed a photo of the Norman Rockwell painting of a policeman sitting in a diner, and making friends with a young boy.  Next to that, was another painting, made in the Rockwell style, but the policeman was in more “military” gear, and the boy was African American, and the engagement did not appear as warm and friendly as in the original painting.  Under these two pictures was a question why this must be so.  I wrote this response.

Times change. When Norman Rockwell was painting, bad guys were "robbers" with revolvers. Villains did not declare war on cops or on society, and there were no school shootings. Parents were (for the most part) responsible, and our culture emphasized the desirability of public order over individual "liberty". 
After the columbine shooting, in response to the increased threat, and the obvious flaw in our prior tactics involving active shooters, cops all over the country began carrying rifles in their squad cars. If you expect a cop to go into an active shooter environment by himself, he not only needs a semi-auto rifle, and large-capacity handgun, but he needs also a ballistic vest, perhaps night vision, better communications (encrypted), and other "military" equipment. Then, because, he is asked to ONLY seriously hurt the people who pose a direct and violent threat, and yet must deal with people who are a threat but maybe not quite deadly, he must carry a tazer, pepper spray, and maybe some "beanbag" rounds for the shotgun. 
Make no mistake...most cops would rather be Norman Rockwell cops. But we did not declare war on the citizens. Some citizens brought war on us and many police agency heads are just politicians, who bend whichever way the political winds blow. Many departments, and agencies, find themselves without competent, moral, and wise leaders.

As our collective moral compass has fallen overboard, so have our individual morals. The concept of individual liberties, framed as they were by our civic duties, has also gone missing in action. Original intent, and founding principles are not in favor anymore. Thus, the "system" that was built upon certain presumptions, cannot work in this new paradigm. The more the paradigm shifts, the less effective will be a system of law and order, that promotes an old fashioned moral center nearly universally held by all citizens. We are no longer people, and states, "united". The culture war claims new victims everyday and the police are usually caught square in the middle.

Norman Rockwell could scarcely have envisioned the America we have become.

Friday, July 28, 2017

Addendum to Rights Vs Romans 8:31 (this is Part II)

(Consider this Part II of the post yesterday- Rights vs Romans 8:31.  I unwrap a little more of the First Amendment history analysis)
Most of the posts online regarding the bible verse in the Knoxville Police building are well-intentioned and full of passion but they are missing the main point.  Like coon-dogs chasing a ‘possum, their passion is strong but they are chasing the wrong target.  The issue here is a legal one.  Whether the sign offends is largely irrelevant for government has no authority to cause, nor duty to prevent, anyone from being offended/  If that were the case, 95% (or more) of Madame Rojero’s constituents are offended by the moving (or removing) of the sign in question and based upon those numbers, the sign should be left alone. The facts that are important are whether the presence of the sign violates the U.S. Constitution.  Below, I provide some case law background, and philosophical analysis of the law.  For the moment, however, suffice it say that the City of Knoxville is NOT in violation of either the letter, or the spirit of the law by placing that sign in a public place or by leaving it where it is.   

The government has an affirmative duty to protect the citizens against excessive government intervention and/or control.  In the case of religion, the government has duty not to actively attempt to proselytize or convert people into a specific religion or even religion in general.   This works the other as well, as the government is not permitted to be hostile towards religion or to influence people AWAY from religion.  It must be “neutral” in matters of religion.   
Religion in general and Christianity specifically provides the philosophical and moral foundation of our form of civil government.  Much of the philosophical framework is also found in non-religious texts dating back as far as the eleventh century, so just because an idea is found in the Bible, is not evidence that the idea is “religious” and therefore “off-limits” to government. The prohibition against murder is found in the Bible and in religious texts elsewhere, but do we advocate throwing out murder statutes because that prohibition is “religious”. Of course not.   Common sense, right?

The legal argument for government’s role (or absence of a role) finds its beginnings when America was a colony, long before the constitution.  By the time the Constitution came along, and “codified” the role of government, practices and beliefs regarding religion in society were already well-established.  What was “constitutional” at the time of the ratification was what had largely been expected of government in the first place.   Regardless of we understand the words of the text today, it was clearly and commonly known for the first two hundred years of our national existence, that the fundamental doctrines of Christianity provided the clearest and best template for self-governance.  (The writings and speeches of the founders on this subject are plentiful, and available for anyone who cares to do their own research).  I will not belabor the point here, but I provide a couple of quotes to illustrate my point.
“Of all the dispositions and habits which lead to political prosperity, Religion and Morality are indispensable supports. In vain would that man claim the tribute of Patriotism, who should labor to subvert these great pillars of human happiness, these firmest props of the duties of Men and Citizens. The mere Politician, equally with the pious man, ought to respect and to cherish them. A volume could not trace all their connections with private and public felicity...And let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.”  George Washington’s Farewell Address
The belief in a God All Powerful wise and good, is so essential to the moral order of the world and to the happiness of man, that arguments which enforce it cannot be drawn from too many sources nor adapted with too much solicitude to the different characters and capacities to be impressed with it.  (JAMES MADISON, letter to Frederick Beasley, Nov. 20, 1825)   NOTE: Madison is considered the “Father of the Constitution” as he authored a great deal of it.

The argument then, that any reference to religion, or any appearance of “religion” in a public place is somehow “unconstitutional” is patently false.
The First Amendment to the U.S. Constitution has this to say about religion:  ““ Congress shall make no law respecting the establishment of religion, nor preventing the free exercise thereof.”   Note that the prohibition is against “making law” and thus it is directed at the ONLY legitimate law-making branch: the Congress.  Neither the executive branch nor the judicial branch of government is authorized to “make law”.  Therefore any judicial action or executive action that has the effect of law, is prima facia (on its face) unlawful.   Note also that this prohibition is ONLY aimed at the federal government. When ratified it limited ONLY federal action.   States were free to pass their own laws regarding the state’s involvement or interaction with religion.  This was later changed by the Fourteenth Amendment (1868) and then subsequent Supreme Court decisions that “incorporated” most of the Bill of Rights and compelled states to be held to the same standard.  Still, in the context of original intent, the prohibition is against the legislative branch, and the act of "making a law".

 It was in Gitlow v. New York, 268 U.S. 652 (1925), that the Fourteenth Amendment extended the reach of federal government authority set forth in the First Amendment—specifically the provisions protecting freedom of speech and freedom of the press—to the governments of the individual states. The Supreme Court previously held, in Barron v. Baltimore, 32 U.S. 243 (1833), that the Constitution's Bill of Rights applied only to the federal government, that states were free to enforce statutes that restricted the rights enumerated in the Bill of Rights.  Religion and religion issues were still not a “constitutional” problem because most Americans were still unified in a basic belief system.   
 In 1937, Justice Benjamin Cardozo wrote that the Court was “selectively incorporating” rights it considered “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” These fundamental rights, Cardozo added, included only those “implicit in the concept of ordered liberty.” The individual liberty safeguards in the Bill of Rights go beyond a list of rights. Individuals have natural rights that are not listed in the Bill of Rights. The Ninth and Tenth Amendments make clear that rights and powers not listed remain with the people. One consequence of incorporation has been for the Court to seemingly place more value on those individual rights which are enumerated in the Bill of Rights than those natural rights which are not listed. (Source: It is precisely this error that is the subject of our discussion. Which one is the most important: the right of the majority to be protected by the First Amendment, or the right of an individual (or small minority group) to be left alone with respect to any "religious" reminder in the public square.

In Everson v. Board of Education (1947), the Supreme Court upheld a New Jersey statute funding student transportation to schools, whether parochial or not. So the “issue” raised was whether government of funding of transportation to a “Christian” school was violating the constitution.  It was not, because of the commonly-held value that all children should get a good education, regardless of whether it was provided by a “religious” institution.   See the logic here?  Just because some government action touches some “religious” institution or belief, does not mean it is an unconstitutional entanglement with religion.    Back in 1947, we still had some evidence of common sense in government. 

The Lemon Test
It was not until 1971 (the year I graduated from high school) that the Supreme court waded into the religious entanglement mess.  It was much less of a mess BEFORE the Supreme Court got involved but here we are.  The Lemon test, based on the 1971 U.S. Supreme Court ruling in Lemon v. Kurtzman, is the standard of judicial review in cases involving the establishment clause of the First Amendment. The Lemon test involves three criteria for judging whether laws or governmental actions are allowable under the establishment clause. A negative answer to any of the three questions means the act is unconstitutional.
1.           Does the challenged law, or other governmental action, have a bona fide secular (non-religious) or civic purpose?
2.       Does the primary effect of the law or action neither advance nor inhibit religion? In other words, is it neutral?
3.        Does the law or action avoid excessive entanglement of government with religion?
If the answer to all three is yes, the law passes the Lemon test.

The Endorsement Test
Justice Sandra Day O’Conner, in a concurring opinion, first proposed the endorsement test in 1984 in Lynch v. Donnelly. The endorsement test asks whether the challenged law or government action has either the purpose or effect of endorsing religion or disapproving of religion in the eyes of the community members. As O’Connor argued, “Endorsement sends a message to non-adherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. … What is crucial is that the government practices not have the effect of communicating a message of government endorsement or disapproval of religion.”

The Coercion Test
Justice Anthony Kennedy proposed a “coercion” standard in Lee v. Weisman (1992). In this case, the test focused on the psychological coercive effect of clergy-led prayer at graduation ceremonies. The Court found, “The school district’s supervision and control of a high school graduation ceremony places subtle and indirect public and peer pressure on attending students to stand as a group or maintain respectful silence during the invocation and benediction.” The Court stated in its decision, “… at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise.”

The Founding fathers did believe there were certain transcendent truths. When they articulated those truths, and memorialized them in monuments, and paintings and plaques and so forth, those objects are part of our legal and social history.  They still have religious significance but they also have historical significance.   Displaying artifacts without a specific intent to promote religion, or with the result that someone would be influenced towards a particular religion, is completely within the permissible constitutional guidelines, both in the historical context and in light of more recent Supreme Court decisions.  The Freedom From Religion Foundation, Madeline Rojero and the City of Knoxville, and anyone else who wants to remove Bible verses, or the Ten Commandments, from public places, are acting either out of ignorance, or hostility towards religion. If it is the latter, it is they who usurping authority and operating outside of the Constitution.  Even if the issue might be a little fuzzy (legally speaking, I think they are NOT ) then the “tie” goes to the majority. When an overwhelming number of citizens favor these memorials or artifacts, and there is very low probability of any “spirit of the law” breach, then I hold that it is fiscally, and politically foolish to try to placate or soothe the feelings of a small minority by making concessions, and ordering changes to be made.  Those are the things I would look for when considering any candidate for future public office.

John Sterling, MA, JD
July 2017