Friday, November 19, 2021

Us vs Them

 

Us vs Them

The battle lines have been drawn. America is divided along ideological lines, each with historical roots that extend back to antiquity. There is a belief system (ideology) that holds certain core tenets: God is, and He is the rewarder of them diligently seek Him. He created us in His image and has a plan for mankind. He has delegated certain limited authority to us, and we, in turn, create government to protect the rights of man. It is this group and this doctrine that forms the philosophical basis for American law and government. This group, with which I identify, is “us”.

The other group holds that man is the highest authority and that government is a mechanism whereby the best and brightest will govern the affairs of everyone else. Government is the tool that allows the small group of elitists to control the masses (everyone else, in their view).  This is the ideology that is the basis for globalism and ultimately, a one-world government. These two ideologies are competing for the soul of America (and the world). This group is “them”

In order for a one-world government to operate, all traces of nationalism must be erased. Any notions of individual rights (as against government) must be quashed. The elites that have been chosen to lead must be obeyed if (according to this ideology) we are to “ascend” (or evolve) to higher social consciousness.  The operational plan requires that the foundations of self-governance (rooted in self-determination’ self-reliance, and personal accountability) must be destroyed. Any idea, or conduct, that is justified by the belief that it reflects the character and nature of God, must be tightly controlled or restricted altogether. ONLY the wisdom of the elites must be acknowledged as the guiding light for social conduct.

Laws, rules, regulations, mandates, executive orders, government departmental edicts are to be granted unquestioning moral authority. Assertions of personal liberty must never be permitted to trump “the greater good” or else the great global objectives (climate change, world peace, environmental balance, etc.) cannot be realized. Rebellion against these ideas must be suppressed by any and all means necessary.

We the people (“us” in this narrative)  however are committed to the founding principles. Conservatives (in this context) still believe that human rights are endowments from God, and that the primary purpose of any government is to protect those basic human rights (as defined and explained by God through His Word) by the authority of the governed.  WE (the people- “us”) hold that the only POWER that government may use against us is that which is derived from the AUTHORITY that WE (the people- “us”) have delegated to government in the first place.

It should be crystal clear to the reader at this point there can be no compromise as to these to competing ideologies, for they are diametrically opposed. They are mutually exclusive- one cannot exist in the presence of the other.

The heart and soul of America is up for grabs. Each person will decide which master they will obey but you cannot serve both. A failure to choose IS a choice.

Dr. John Sterling, MA, JD                                               November, 2021

Thursday, April 22, 2021

Comments on the George Floyd Trial

 

April 21, 2021

I have some questions, and some observations about the end of the George Floyd Trial (4/20/21)

The jury concluded that Minneapolis Police Officer Derek Chauvin was responsible in part for the death of George Floyd.

Under Minnesota law, applicable to the Floyd case, Second degree murder is charged when someone "...causes the death of a human being, without intent to effect the death of any person, while committing or attempting to commit a felony offense...". The requisite felonious act of which Chauvin is accused is "committing or attempting to commit felony third-degree assault" which in Minnesota is defined as the "intentional infliction of substantial bodily harm."

Third Degree murder is "perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life."

Second-degree manslaughter charge alleged Chauvin caused Floyd's death by "culpable negligence whereby the person creates an unreasonable risk, and consciously takes chances of causing death or great bodily harm."

Central to all of the charges is the element of causation, or that Chauvin was a substantial causal factor in Floyd's death.

The question is this: By what legal theory, or principle, does the state stack all those charges, which are (in my opinion) minor variations of a single action by a single perpetrator, against a single victim, at a single point in time and place.

In my experience, (admittedly limited) the judge instructs the jury at the end of the trial that if the prosecution's case in chief is not proven beyond reasonable doubt, the jury may still find the defendant guilty of one or more lesser charges.

I've never seen this happen before.

A felony is required for the conviction of 2nd degree murder. The requisite felonious act of which Chauvin is accused is "committing or attempting to commit felony third-degree assault" which in Minnesota is defined as the "intentional infliction of substantial bodily harm."

BUT... if the placement of a knee on the upper back/ shoulder (Chauvin's knee was NOT on Floyd's neck in any of the footage I have seen) is an approved method of restraint in most police departments, then what is the likelihood that it represents an ascertainable risk of "substantial bodily harm"? Said another way, if it was known that such a move would place a suspect at risk of substantial bodily harm, IT WOULD NOT BE APPROVED as a restraint method. Since that is an essential element of the 2nd Degree Murder charge, that count should have failed on those grounds.

A similar argument could be made for the Third Degree murder, which in Minnesota is when one is "perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life." IF the form of restraint use by Chauvin is approved by a significant number of police agencies, then by the same logic, then how can it be supported that Chauvin's conduct was "imminently dangerous"? There IS a case to be made that it was not the METHOD per se, that Chauvin used, but rather the length of time which he deployed that method. A "good" (approved) method might be justified for two, three, or even four minutes, but at some point that method might become unacceptable. A baton might be used to strike a knife-wielding assailant but the same baton used repeatedly after the assailant is disarmed, would be an excessive use of force. A strong case can be made (I think) that this was such an example.

That only leaves standing the final charge; 2nd degree manslaughter. Even then, the question is not the method, but the duration. The standard would have to be what the "reasonable, trained, police officer" would deem reasonable. In this case, other cops testified that Chauvin's use of this technique was excessive. That's pretty damning testimony which would lead a reasonable "non-cop" to find Chauvin guilty of the 2nd degree manslaughter charge.

Here's something that probably needs to change. There is a persistent notion that if you can talk, then are NOT having "too much" difficulty breathing. If you can talk, you can breathe.

Reliable, expert testimony in the Floyd trial instructs us that that particular piece of "common knowledge may, in fact NOT be true.

On 25 May 2020, during the actual arrest, George Floyd pleaded at least 16 times, “I can't breathe.” One officer in attendance nonetheless told bystanders, “He's talking. He's fine”.   (source: https://www.acpjournals.org/doi/10.7326/M20-4186 )

Police have long been taught that if/when a person in custody is complaining of not being able to breathe, they may be telling the truth. (I say MAY be, because people in custody will say anything to try to escape custody).

Possibly, the myth that the act of speaking indicates the ability to breath may come from standard first aid training for victims of choking. But the point here is, that it is NOT "common knowledge" so it is not therefore "common sense" to let somebody up from the position of control on the ground- something that accusers of Derek Chauvin (and other officer's similarly accused) have bandied about. (i.e. the nine-year girl to whom is attributed great wisdom and insight when she told Chauvin to "Get off of him".) If common sense is a counterpart to common knowledge, then it might be reasonable for officers to doubt Floyd's claims. He was, after a felon on drugs, resisting arrest. (A very large felon, at that).

But given the publicity of this trial and the outcome for Derek Chauvin, police departments and police training academies all over the world will be altering their training with respect to any restraint methods that involve the detainee's respiratory functions. This is a GOOD thing.

I think the defense team may have missed the boat however by not making the point that prior to this, we (police) may not have had all the information we needed, and moreover, MAY have received improper training based on incomplete understanding human physiology. What, if any, impact could/should that have on Chauvin's conviction?

Another important lesson that needs reinforced is that politicians must exercise self-discipline and refrain from commenting on cases that are being investigated or cases that are in the trial process. Rep. Maxine Waters on Saturday night (4/17/21) called for protesters to "stay on the street" and "get more confrontational" if former Minneapolis police officer Derek Chauvin is acquitted in the killing of George Floyd. "We've got to stay in the street and demand justice," Waters said to reporters, according to video posted on social media. (Source: https://www.cnn.com/2021/04/19/politics/maxine-waters-derek-chauvin-trial/index.html)
Shaun King, the opinion writer and Black Lives Matter activist, agrees. Under the headline “America will riot if Derek Chauvin isn’t convicted for killing George Floyd,” King wrote: “Yes, Dr. (Martin Luther) King said that riots ‘are the language of the unheard,’ but hear me now – if Derek Chauvin is not convicted of some degree – first, second or third – of murder, if he is not held accountable in the court of law, a reckoning is going to befall this country one way or another. And it should.”  (Source: https://www.azcentral.com/story/opinion/op-ed/greg-moore/2021/04/03/if-derek-chauvin-acquitted-or-guilty-will-there-riots/4823203001/)

Justice is never served when procedures are not followed, or relevant evidence is ignored, or juries are unduly influenced, as is certainly the case with the Floyd trial. Emotions must be checked and reason must rule the day. Any time a trial becomes a media circus, or the innocence or guilt of the accused is the fodder of media elites, the rule of law becomes trashed and none of us are safe.  The Criminal justice system will not, and CANNOT work effectively if it must give way to careless, inflammatory, performances by politicians and media folks. This represents, in my opinion, the collapse of our republic.

Sunday, December 6, 2020

Are Mandatory Vaccinations Constitutional?

Coronavirus and Smallpox do not warrant the same intervention.

Could mandatory vaccinations for Covid-19 be a constitutionally permissible exercise of state authority?

Americans are responding differently to the government response to the Covid-19 pandemic.  Generally, the recommended (or required, in some cases)  mandate from government at local, state, and federal levels, includes at least 6’ social distancing, and mask-wearing. Rarely are these requirements issued as a result of geographically -specific, case-driven, studies. Usually, they have been pronouncements made because of media and political pressure without regard to actual corona-virus impacts in the immediate area.  Some Americans are happy to follow those mandates because they either believe in the prophylactic effect of those measures, or the effort is small compared to the inconvenience or the risk of negative social pressure. Other Americans are reluctant to comply without more science, or more of a causal connection related to actual threat statistics.  Some people refuse to comply with government mandates just because it seems like excessive intervention in violation of individual personal rights (liberties).

Depending on the willingness of those people above mentioned to do their own research, and to base their positions on science and law, they might incorporate one of two US Supreme Court cases from 1905; Lochner v New York, and Jacobson v. Massachusetts.   A searcher of truth will rely on the best science available, and be particularly respectful of conflicting data and opposing conclusions drawn from the same research. (Sadly, I KNOW this is often not true). In a more perfect world, laws and policies would always consider the best science available, and consistent with jurisprudence, would never be tolerant of government intervention that was more than the minimum absolutely necessary. Probably, every person reading this will be aware of many examples where government has not been faithful to  this rule.   

Jacobson v. Massachusetts and Lochner v. New York are both 1905 Supreme Court cases.  Both cases deal with private (individual) rights in tension with public duties and the rights of the public.  Both are context-specific, so understanding and applying  the legal principles cannot be accomplished without the context of the case fact patterns and narrative. The two cases "say" opposite things if one does not understand (and apply) the context.

In 1902, A Massachusetts statute granted city boards of health the authority to require vaccination “when necessary for public health or safety.” When smallpox surged in Cambridge, Massachusetts, the city’s board of health issued an order pursuant to this authority that required all adults to be vaccinated to halt the disease. The statutory penalty for refusing vaccination was a monetary fine of $5 (about $100 today). There was no provision for actually forcing vaccination on any person. (https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1449224/ )

Henning Jacobson refused vaccination, claiming that he and his son had had bad reactions to earlier vaccinations. The Massachusetts Supreme Judicial Court found it unnecessary to worry about any possible harm from vaccination, because no one could actually be forced to be vaccinated: “If a person should deem it important that vaccination should not be performed in his case, and the authorities should think otherwise, it is not in their power to vaccinate him by force, and the worst that could happen to him under the statute would be the payment of $5.” (https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1449224/)

In Jacobson, The Supreme Court had no difficulty upholding the state’s power to grant the board of health authority to order a general vaccination program during an epidemic. No one disputed, and the Constitution confirmed, that states retained all the sovereign authority they had not ceded to the national government in the Constitution. (See: 10th Amendment to the U.S. Constitution) Jacobson was the rare case in which a state’s jurisdiction was not questioned—because no one claimed that the federal government should control a local smallpox epidemic. Instead, the question was whether the state had overstepped its own authority and whether the sphere of personal liberty protected by the Due Process Clause of the 14th Amendment38 included the right to refuse vaccination. (https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1449224/)

Jacobson must be understood in the context of the smallpox epidemic.  Smallpox was a devastating disease. On average, about 30% of people who got it died. Those who survived were usually left with scars, which were sometimes severe. Smallpox was equally severe across age, sex, and economic conditions.  Smallpox was a genuine public health threat. Covid-19, on the other hand has a mortality rate of less than 1% (probably less than a half of one percent). It is most dangerous to people with compromised immune systems and people over 60 years of age.  It is NOT the same threat, and does NOT require the same counter-measures.

The Court (in Jacobson) mentioned 2 justifications for the Massachusetts law. First, it found that the state may be justified in restricting individual liberty “under the pressure of great dangers” to “the safety of the general public.” The statute, by its terms, encroached on liberty only when “necessary for the public health or safety.” The smallpox epidemic proved the danger to the public. Second, by using the language of earlier decisions, the Court said that laws should not be arbitrary or oppressive. It also suggested that the state should use means that have a “real or substantial relation” to their goal. (https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1449224/)

Lochner is a case about the right of people to enter into contracts, to earn an honest living, and the limitations on government authority to interfere with that process. In America, the right to labor and earn an honest living is considered a God-given (inalienable) right which government is obligated to protect.  BOTH cases articulate important legal principles that relate to the current pandemic.

[below is excerpted and edited from Constitutioncenter.org]

The story of the Court’s 1905 opinion in Lochner v. New York begins in 1895, when New York State passed the Bakeshop Act, one of the state’s earliest labor laws, in an effort to regulate sanitary and working conditions in New York bakeries. At the time, Joseph Lochner was a Bavarian immigrant who owned Lochner’s Home Bakery in Utica. In 1899, Lochner was charged with violating the Bakeshop Act, as he had allowed an employee to work for more than sixty hours in one week. For this, Lochner was fined the requisite $25. Two years later, in 1901, Lochner was charged and convicted for a second offense of the Bakeshop Act’s 60-hour provision, this time paying a $50 fine.

Lochner’s attorney, Henry Weismann, argued on behalf of Lochner that the Bakeshop Act violated the Constitution’s protection of the “liberty of contract,” or an employer’s right to make a contract with his employee free from governmental interference.

The Court said that, in order to approve of a state’s use of its police powers to regulate contracts, the question was whether the legislation was:

    “a fair, reasonable and appropriate exercise of the police power of the State, or is it an unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty or to enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family?”

Therefore, because the Court found that the baking industry was no more or less healthful than other common professions, and that the law was not related to the health of the employees, it was an invalid exercise of the state’s police powers.

Lochner, though not the first case to do so, found that the due process rights of the 14th Amendment were not just “procedural,” but were also “substantive.” While “procedural” due process rights limit the means by which the state may deprive a person of their life, liberty, or property, “substantive” due process rights limit the types of activities and rights that the government may regulate by deeming them to be fundamental. (SOURCE: Constitutioncenter.org)

A lot can change in 100 years.  While the states’ sovereign power to make laws of all kinds has not changed much during the past century, what HAS changed is the US Supreme Court’s recognition of the limited authority of government and the mission of protection of that individual liberty.

Smallpox was a devastating disease. On average, about 30% of people who got it died. Those who survived were usually left with ugly scars. Smallpox is caused by the variola virus, a DNA virus of the genus Orthopoxvirus. Humans are the only known reservoir for this virus. It is transmitted from person to person, and natural infection occurs by inhalation of respiratory droplets or contact with infected material on mucous membranes.

Similarly, Covid-19 (SARS Covid-2) is spread by inhalation or contact, but non-human animals may also host this virus. Persons with incompetent immune systems are at risk of complications following vaccinations.

During the second half of the 20th century, the US Supreme Court recognized that the liberty protected by the 14th Amendment included most of the rights guaranteed by the Bill of Rights.43 Individuals were protected from an abuse of state and federal power. (https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1449224/)

In light of both Jacobson and Lochner, and consistent with U.S. Constitutional principles, The federal government does not have national authority to required vaccinations. This is ONLY a power held by state governments, and then ONLY when there is compelling evidence that such intervention is the least restrictive means to achieve legitimate state interests.

Author’s conclusion: It is not hard to imagine a situation where the danger to the public is so great as to warrant a government “solution” that would overcome objections about personal liberty. But the Covid-19 vaccine is not it.   Not by a longshot.
JAS
Dec 2020


Saturday, November 21, 2020

Intellectual Inquiry: The Process of Knowing Truth

 

Intellectual Inquiry: The Process of Knowing Truth

Social media has changed the paradigm of intellectual inquiry in the world today. People have a platform to speak but sadly, they often do so without a proper understanding of the process of “truth-seeking”.  A lot of people claim "bias" from sources because those sources consistently tout the same message (arrive at a predictable outcome from the facts presented). But is bias present?  It certainly COULD be true that bias is present, but not necessarily so. Also possible is that a source of information that always reaches similar conclusions (i.e. a “conservative” or “liberal” position on some social issue) is employing proven methods of evidence analysis, and the reader who claim bias is just unhappy with those conclusions.  

It is good to question sources as the first step in analyzing the facts.  Source of information usually have some kind of motivation than can influence the presentation of the facts. Nowhere is this more necessary right now than with the Coronavirus pandemic. People cannot make informed decisions if the information being disseminated is factually incorrect, ambiguous, or contradictory. In the recent (2020) presidential election, the availability of accurate facts was often missing during election speeches (no surprise there).  All too common is when a proponent of a particular political/social position just flat-out lies to mark their political position and influence voters in their direction. In a recent debate between vice-president Pence and Kamala Harris, Pence challenged Harris’s statements as being factually incorrect. He said, ' You're entitled to your own opinions, but you're not entitled to your own facts'.  Phrased another way, Pence’s comment says, “You may interpret facts to reach a desired conclusion, but you cannot just make up stuff and call it a fact”.

Sometimes (often?) a source (of particularly, political information) almost never is factually correct, nor are their conclusions supported by the facts in evidence. On the other hand, the source alone does not validate, or invalidate, the truth of evidence. As with the old saying that even a broken clock is right at least twice a day, some sources of political commentary must certainly be right once in awhile, else they would eventually lose all credibility. Just because a fact is asserted by a particular biased source, and a conclusion is drawn from that fact (or facts), it doesn’t automatically mean that the information is incorrect.  It does mean that the truth-seeker owes a duty of due diligence to determine the veracity of the claim.

By definition, EVIDENCE is any fact which tends to prove the truth of the matter asserted.

Facts from a source MAY be true but irrelevant.  Or the facts might accurate but interpreted or "twisted" in a way that supports one conclusion over another. THAT is where we often find bias in a claim.

When people post on social media that they avoid any evidence from a source known for its bias, that is itself a form of bias. It produces a stream of thought that ONLY supports preconceptions- the opposite of an "open mind" (which surprisingly, is the attribute those very same people claim to possess.)  In 2 Timothy 4:3 we read about this kind of person: “For the time will come when they will not endure sound doctrine; but having itching ears, they shall heap to themselves teachers in accordance with their own lusts.”  We see it all around us- people who ONLY listen to preachers (or politicians) whose words affirm what the hearer wants to hear.  Yet that will not lead us to truth. In 2 Tmonthy 3:7 we see that this condition of the human sprit has been around a long time because even then there people who disregard anything that didn’t conform to their preconceptions. These were “Ever learning, and never able to come to the knowledge of the truth.”

Intellectual inquiry demands that any fact offered into evidence be first examined for its integrity. Then , if true, the fact must be evaluated for its relevance.  Then, if true and relevant, does it "tend to prove the truth of the matter asserted?" Only then does a fact become "evidence”, but your work is not done yet. You must "weigh" the evidence to determine some measure of probability that the conclusions drawn from that evidence are the correct conclusions. Often, facts may be true, but may support alternative conclusions. The inquirer who stops when the facts affirm the position the investigator seeks, is NOT a good investigator.  In criminal law, a good investigator anticipates the probing questions of a defense lawyer, and then is able to provide the DA with the evidence to overcome those objections or inquiries.  Good investigators, and good DA’s make the world a safer place.  Luke, the Gospel writer says it this way: ”Therefore, since I myself have carefully investigated everything from the beginning, it seemed good also to me to write an orderly account for you, most excellent Theophilus, so that you may know the certainty of the things you have been taught.”  Luke 1:3-4


The quest for truth is more difficult that many people realize.  We must train ourselves to go through these investigative processes before we allow ourselves to be convinced that we are truly “open-minded” truth seekers. Otherwise, we are every bit as biased as the people (sources) that we love to castigate on social media.


John Sterling. MA, JD

November 21, 2020